Labor Immigration Law

United States Labor Immigration Law News and Analysis

Archive for October, 2009

Wall Street Journal on the H-1B Program

Over the past months we have written extensively about the issues raised by today’s Wall Street Journal article “Slump Sinks Visa Program” but it is still an interesting read.   Most of our readers are aware of the current H-1B quota and the fact that a substantial number of H-1B visas still remain available (for comparison, prior years’ H-1B quota was exhausted in as little as 5 days).

The article explains the decrease in the H-1B demand not only due to the economic slowdown and the corresponding decrease in hiring but also to recent anti-immigrant sentiment in Washington,

Vivek Wadhwa, a visiting scholar at the University of California at Berkeley who has studied H-1B visas, said that [the decreasing number of H-1B applications trend] has been compounded by what he sees as rising anti-immigrant sentiment in the U.S. “The best and the brightest who would normally come here are saying, ‘Why do we need to go to a country where we are not welcome, where our quality of life would be less, and we would be at the bottom of the social ladder?’” Mr. Wadhwa said.

[Also,] some would-be employers are put off by a crackdown on fraud. U.S. Citizenship and Immigration Services, which administers the H-1B program, has been dispatching inspectors on surprise company visits to verify that H-1B employees are performing the jobs on the terms specified. The fraud-detection unit in coming months is expected to inspect up to 20,000 companies with H-1Bs and other temporary worker visas.

However, the article also points out the value of the H-1B program to the U.S. economy,

While the number of visa holders is small compared with the U.S. work force, their contribution is huge, employers say. For example, last year 35% of Microsoft’s patent applications in the U.S. came from new inventions by visa and green-card holders, according to company general counsel Brad Smith.

Google Inc. also says that the H-1B program allowed it to tap top talent that was crucial to its development. India native Krishna Bharat, for example, joined the firm in 1999 through the H-1B program, and went on to earn several patents while at Google. He was credited by the company as being the key developer of its Google News service. Today, he holds the title of distinguished research scientist.

Read the full article here.

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DHS Estimates of the Legal Permanent Resident Population in 2008

In a report released this month, the Department of Homeland Security (“DHS”) provides some estimates and analysis of the numbers and demographic composition of the legal permanent residents (“LPRS”) in the U.S. as of January 1, 2008 (yes, the data is 22 months old but the analysis is recent and should not have changed much over the past months).

Summary of Findings

In summary, an estimated 12.6 million LPRS lived in the United States on January 1, 2008.  One-half obtained LPR status in 2000 or later; one-quarter became LPRs during 2005-2007.   Of the 12.6 million, an estimated 8.2 million were eligible to naturalize and become U.S. Citizens.  Between January 2006 and 2008, the LPR population grew 5 percent, and the population eligible to naturalize increased 2 percent. In general, the size of the LPR population changes less rapidly than the total legally resident population because increases in the number of persons becoming LPRs each year are offset by persons naturalizing.

Country of Birth.  Mexico was the leading country of origin of the LPR population in 2008. An estimated 3.4 million or 27 percent of LPRS came from Mexico. The next leading source country was the Philippines (0.6 million), followed by India (0.5 million), People’s Republic of China (0.5 million), and the Dominican Republic (0.4 million). Forty-three percent of LPRS in 2008 were born in one of these five countries. The 10 leading countries of origin, which also include Cuba, El Salvador, Canada, Vietnam, and the United Kingdom, represented 56 percent of the LPR population.

State of Residence.  California was the leading state of residence with an estimated 3.4 million LPRs in 2008. The next leading states of residence were New York (1.5 million), Texas (1.3 million), and Florida (1.2 million). These four states were home to 59 percent of LPRS in 2008.   The next leading states of residence were New Jersey, Illinois, Massachusetts, Washington, Virginia, and Arizona. The 10 leading states represented 76 percent of the LPR population. The leading states of residence of the estimated LPR population and population eligible to naturalize were generally the same.

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USCIS Ombudsman Recommends Changes to LCA/H-1B Filing Process

In a formal recommendation to USCIS, its Ombudsman has reviewed the current H-1B filing requirements with respect to LCAs and has concluded that changes to the LCA/H-1B filing process are necessary to avoid a number of negative consequences prejudicing employees and employers alike.

The drive behind this policy review by the USCIS Ombudsman is a number of August and September 2009 complaints by H-1B petitioners where either (1) the LCA was incorrectly denied by the Department of Labor (“DOL”), or (2) the there were significant LCA processing delays and where such incorrect denials or delays caused substantial hardship to the beneficiary employee or the petitioner employer.   In many cases, untimely H-1B filings can lead to problems, including (a) the potential loss of employees’ legal status; (b) business operation disruptions due to the loss of continuity in the employment of key employees; and (c) economic loss to employees in the form of lost wages and costs of travel overseas due to loss of status.

The Problem

The main problem with the current LCA/H-1B filing requirements is that an H-1B filing requires that a certified LCA be included in the initial H-1B petition.   8 C.F.R. § 214.2(h)(4)(i)(B) (2008), states that “[b]efore filing a petition for H-1B classification …, the petitioner shall obtain a certification from the Department of Labor that it has filed a [L]abor [C]ondition [A]pplication …” [emphasis added].   Further, the June 12, 2009, revision to the “Instructions for Form I-129” state, in relevant part (see p. 3), that “[t]he petition must be filed by the U.S. employer and must be filed with: 1. Evidence that a [L]abor [C]ondition [A]pplication has been filed with the U.S. Department of Labor …” [emphasis added].

Despite this language, USCIS currently requires that petitioners include a certified LCA with their H-1B petition.   Additionally, in connection with the April 15, 2009, iCERT LCA system transition, DOL has been denying LCAs based on federal employer identification number (“FEIN”) mismatches with the DOL’s own database (which is not necessarily up-to-date).  These FEIN-mismatch denials have been adding at least 10-14 days to the time it takes to certify an LCA and as a result have caused significant hardship to employers and employees who have been under a time constraint to file an H-1B petition.

The USCIS Ombudsman Recommendation

The recommendation put forward by the USCIS Ombudsman is nothing revolutionary.  In fact, it seeks a return to previous guidance by legacy INS.    In 1992, the legacy INS responded to LCA processing problems occurring at DOL at that time by accepting H-1B filings accompanied by evidence of an LCA filing, and subsequently issuing an RFE to obtain the later-approved LCA.  This approach permitted customers to meet filing requirements, preserve legal status, and avoid employment disruptions until DOL was able to address its underlying LCA processing problems.

The Ombudsman recommends similar two-part solution:

  1. Reinstate USCIS’ previous practice of temporarily accepting an H-1B petition (Form I-129) supported by proof of timely filing of an LCA application with DOL, and issue a Request for Evidence (RFE) whereby the H-1B petitioner later provides the certified LCA; and
  2. Establish a temporary policy under which USCIS would excuse late H-1B filings where the petitioner has documented an LCA submission to DOL that was improperly rejected.

An important note is that this is not a policy change.  It is merely a formal recommendation of a policy change by the USCIS Ombudsman.  We hope that this policy will be considered and put into effect by USCIS to eliminate the negative effects the current policy has on employers and employees alike.

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Texas Service Center EB-1A RFEs

Our office is not alone in noticing the increased amount of RFEs issued in connection with EB-1A, Alien with Extraordinary Ability, filings.  We have noticed not only that some RFEs are very vague in terms of language and requirements but also that cases which are clearly well-documented and supported as part of the initial filing are issued RFE or even in some cases a straight denial.

The Texas Service Center has provided some assurance that they are undergoing an RFE review process starting October 2009 whereby they will inspect a portion of the outgoing EB-1A RFES for quality.  While this may be of little comfort to EB-1A petitioners already subject to an RFE, we hope that in the future the qualify and specificity of Texas Service Center RFES would improve.

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Pending Derivative Form I-485s Due to File Separation

We are aware of many cases in which USCIS approves Form I-485 for the principal applicant but does not do so for any derivative family members’ I-485 petitions.   While in some cases this may be due to missing evidence, security clearance difficulties, or some other legitimate reason, in many cases it is possible that the derivative applicant’s file may just be separated from the principal applicant’s file.

To address this kind of cases, USCIS Ombudsman has provided a new procedure which may help derivative applicants.   Under the new procedure, if a family member’s derivative adjustment of status application has been pending in excess of 30 days from the approval date of the principal applicant’s Form I-485, an email inquiry with subject line of “Unapproved Derivative I-485″  should be submitted to cisombudsman.publicaffairs@dhs.gov with the following information:

  • DHS Form 7001;
  • A copy of the principal applicant’s Form I-485 approval notice;
  • A copy of the Form I-485 receipt notice for the derivative; and
  • Any other evidence that is pertinent to the case.

This procedure was announced on October 8, 2009, so we do not yet have opinion about its usefulness, but we hope that it provides another avenue for derivative beneficiaries to move forward with their I-485 adjustment of status application.

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H-1B Administrative Site Audits – Overview of Information Sought

We have reported of increased H-1B employer site visits as part of USCIS’ Administrative Site Visit Verification Program (ASVVP).  Some of our clients have experienced such site visits and in this article we aim to describe the process and the kind of information sought by the site inspectors during each visit.

Generally, site inspectors arrive unannounced at the H-1B petitioner’s location.  Site inspectors will identify themselves with USCIS credentials and seek to speak with the petitioner (or the person who signed the H-1B paperwork).  In the petitioner’s absence, another suitable individual, such as HR representative, will  be sought.

The site inspector will seek information for the following categories.

1.  Does the facility visually appear to be that of the sponsoring organization?

The goal is to make sure that the address of the sponsoring organization and the actual facility suggest that the petitioner does business at that facility.  Information about the location, including whether it appears to be a residential or commercial property, whether other businesses share the same location, etc.  Some photographs may be taken.

2.  Was an organizational representative authority present?

The goal is to speak with a proper petitioner representative about the business.  If access is denied or no such representative is found, the site inspector may seek information from neighboring businesses.

3.  Did results of the site visit suggest presence of a legitimate organization?

In this section the site inspector tries to determine whether the site is one of a legitimate organization.  In addition to reviewing the site location and representative (#1 and #2 above), the site inspector may ask and analyze other factors to determine whether a legitimate business is conducted.  Such datapoints include type of product or service offered, number of employees (part- and full-time), type of clients, number of H-1B employees, number of alien employees, length of time the organization has been in business, other business locations.

4.  Did the organization have knowledge of the beneficiary and the petition filed on behalf of the organization?

This is a fairly simple question the answer to which may suggest fraud if the company representative is not aware of an H-1B application filed by the company.  Information about the employee’s duties, salary, job location may be sought.

5.   Was the beneficiary working for the organization?

The site inspector may seek information and records showing that the beneficiary was working for the employer, including time sheet reports,  performance reports, etc.

6.  Were you able to identify and speak to the beneficiary?

The site inspector will attempt to determine whether the beneficiary is currently at the location, and if not, whether the employee has been terminated, working at a different job site, etc.

7.  Was the beneficiary knowledgeable, cooperative and forthcoming with questions?

The site inspector will describe the behavior of the H-1B beneficiary and the beneficiary’s description of his or her employment with the petitioner company.  Any discrepancies noted with the information provided by the employer should be highlighted by the site inspector.

8.  Was the beneficiary paid the indicated salary?

This kind of inquiry seeks to determine whether the beneficiary may be underpaid or placed on bench period.  The site inspector may seek W-2s, pay stubs or other payroll information.

9.  Was the beneficiary performing the duties as indicated?

The site inspector will seek information and records from the company to determine whether the beneficiary’s duties are consistent with the stated duties on the sponsor paperwork.

10.  Do you recommend further inquiry?

The site inspector would, based on the entire record, make a recommendation as to whether further inquiry on this employer is necessary.

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November 2009 Visa Bulletin – Minor Forward Movement for EB-3 China and India

The November 2009 Visa Bulletin was released by the State Department.  The second visa bulletin for the fiscal year 2010 does not bring much movement.  The slight forward movement can be observed in EB-2 and EB-3 China and in EB-3 India.  All other categories, including EB-3 Rest of World (ROW) remain unchanged.  Here is a summary of the November 2009 Visa Bulletin:

  • EB-1 remains current across the board.
  • EB-2 China moves forward by a week to April 1, 2005 while EB-2 ROW remains current and EB-2 India remains unchanged at January 22, 2005.
  • EB-3 ROW remains unchanged at June 1, 2002, EB-3 China moves forward by three months to June 1, 2002, while EB-3 India moves forward by one week to April 22, 2001.
  • Other worker visa numbers remains unchanged at June 1, 2001, except for India which moves forward by one week to April 22, 2001.
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USCIS Considers Fee Increase Amid Decreased Filings

We wrote in September about the gap in expected revenue by USCIS following the filing fee increase of Summer 2007.   We noted that the agency has a $282 million shortfall in expected revenues.

As a result of the announced 2007 fee increase, USCIS saw a surge in applications and hiring in 2007, ahead of a hefty increase which, for example, pushed the cost of applying for citizenship from $400 to $675.  USCIS was flooded with a record 7.7 million immigration applications in 2007 as applicants rushed to file before the new fee went into effect.  Not surprisingly, filings dropped off after the higher fee went into effect, as it has historically with other fee increases.

The resulting shortage in revenue has left USCIS struggling to find alternatives.  It is important to note that the sharp decline in immigration filings resulting from the eceonomic downturn will cause a further decrease in filings and revenues.

Alejandro Mayorkas, director of U.S. Citizenship and Immigration Services, told reporters last week in Los Angeles that USCIS is considering cutting costs, raising fees or reorienting revenue in the next two years to alleviate the revenue shortage problem.   “When one does hire additional personnel, and revenues two years later drop, one must be able to address that,” Mayorkas said.

Additionally, immigration officials are also looking to Congress for relief after requesting $206 million to pay for fees for asylum seekers and refugees and for military naturalizations.

While it is too early to know any details of any proposed USCIS fee hike, the tone of Director Mayorkas’ comments and the sharp economy-related drop in employment-based filings suggests that a USCIS fee hike is very possible.  We will continue to monitor any developments on this topic and update our clients and readers.

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H-1B Recapturing Time Spent Outside of the U.S.

H-1B Duration and Limits

By law, the maximum duration of stay in any H status is six years.  As a result, if a foreign employee held one or more kinds of H status, or held L status, then the total period spent in the U.S. in all of these statuses are added together to determine how much time towards the six-year maximum remains available.

There are some limited exceptions which allows an H-1B worker to extend his or her status past the six-year maximum.   If the foreign worker’s work in the United States is seasonal or intermittent in nature, or if he or she spends six months or less per year in the U.S., then the six year limit does not apply.  More notably for H-1B workers, the foreign worker can apply for one-year incremental extensions of H-1B status if he or she has remained in status and has had a labor certification or I-140 pending for 365 days or more.  Similarly, H-1B status can be extended by three years if the employee has a I-140 approved on his or her behalf.

Recapture of Time Spent Outside

The regulations’ limit on H status to six years refers to time spent in the U.S. on H status.  As a result, time spent outside of the U.S. does not count against the six-year maximum and can be added to the validity of the H-1B petition in a process referred to as “recapture.”

There are many circumstances in which a foreign worker needs to extend his or her H-1B petition past the sixth year validity.  Often such recapture is the only way an H-1B employee can bridge the gap and become entitled to the 1- or 3-year H-1B extensions described above.

Our office handles an increasing number of H-1B recapture of time petitions.  In almost all H-1B recapture cases, the main issue is providing sufficient evidence to show that the H-1B worker was outside of the U.S. between certain dates.

Types of Evidence to Show Time Spent Outside of the U.S.

The Department of Homeland Security has an electronic system for tracking entries and exits of foreign nationals.  Unfortunately, this system is not very reliable and any request for H-1B time recapture should be submitted with clear evidence establishing that the foreign national was outside of the U.S.

The best evidence is copies of I-94 cards and passport entry/exit stamps.  However, not many people remember to make a copy of their I-94 card or passport once they enter the U.S. or when they have to surrender  their passport when obtaining a renewal passport.  We always encourage our clients to make good clear copies of passports, I-94 cards and entry/exit stamps every few months or after international trips.

If I-94 cards and/or border entry/exit stamps are not available, the government can accept any credible documents  showing that the foreign national was abroad.  Such documents can be flight tickets (or paperless ticket confirmations), hotel itineraries, or frequent flier mile statements.

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Definition and Duties of H-1B Dependent Employers

The H-1B regulations impose certain additional recruitment and attestation requirements to so called “H-1B dependent employers.”  Therefore, it becomes to understand the definition of H-1B dependent employer.

Definition of H-1B Dependent Employer

Pursuant to 20 CFR 655.736,  an H-1B dependent employer is one which meets one of the following standards:

  1. The employer has 25 or fewer full-time equivalent (“FTE”) employees in the U.S. and employs more than seven (7) H-1B nonimmigrants;
  2. The employer has at least 26 but no more than 50 FTE employees and employs more than twelve (12) H-1B nonimmigrants; or
  3. The employer has at least 51 FTE employees and employs H-1B nonimmigrants accounting for more than fifteen percent (15%) of the employer’s total FTE employees.

Duties of H-1B Dependent Employers

If an employer is deemed to be H-1B dependent, then an additional set of requirements applies:

  1. The employer has to promise that it will not displace a similarly employed U.S. worker within ninety (90) days before or after an H-1B visa petition is filed;
  2. The employer will make good faith efforts to recruit U.S. workers; and
  3. The employer must make a job offer to an equally or better qualified U.S. applicant.

Exempt Employees

The  H-1B dependent requirements do not apply to “exempt” H-1B candidates.  Exempt H-1B candidates are those holding a master’s or higher degree or its equivalent in a specialty related to the intended employment, or who earn wages (including cash bonuses and similar compensation) at an annual rate of at least $60,000.

Calculations Must Be Made With Each LCA/H-1B Filing

As employers constantly change the composition of their workforce, it becomes important to perform the H-1B dependent employer analysis with each LCA/H-1B filing.  If an employer turns out that it is H-1B dependent and if the H-1B candidate it not exempt (as described above), then the additional set of requirements (described above) must be met before the H-1B petition can be filed.

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