Labor Immigration Law

We wrote earlier about the availability of limited I-140 premium processing filings.  It is only available to certain H-1B holders who “H-out” of their status and for whom the only way to remain on H-1B status would be a I-140 premium processing filing.  Please read our earlier article for details on this.

The USCIS has released some clarifications on the I-140 premium processing procedure.

First, not all cases of I-140s are eligible for premium processing.  Prior to the suspension of premium processing for I-140’s last Fall, only certain I-140 case types were eligible. For example, National Interest Waivers and Multinational Managers were not eligible for premium processing. Those case types are still not eligible for premium processing, even in an “H-out” situation.

Second, the I-140 premium processing is available if the beneficiary is in H-1B status in the U.S.

Finally, the current program is only available if the beneficiary is within 60 days of the end of the 6th year of H-1B time. The purpose of this premium processing option was to benefit those individuals who could not qualify for a one-year extension and who needed an approved I-140 to remain in the US.  It was originally assumed that the term “6th year” could be read to mean “last year” in H-1B time. However, USCIS has said that they will be taking the term “6th year” literally. Therefore, if the beneficiary is in the 7th or 8th year of H-1B time, your premium processing request may not be accepted.

The USCIS has received comments on these three clarifications and is working to consider, and possibly, adjust the scope of the I-140 program.  However, until USCIS releases modifications of the program, the I-140 premium processing program remains somewhat limited in scope and applicability.

We wrote earlier today about the pending announcement that USCIS is restoring the possibility of filing I-140 via premium processing.  As we discussed earlier, the premium processing is limited to workers who are nearing the end of their sixth year in H-1B nonimmigrant status.

The premium processing procedure will guarantee 15 calendar-day response by USCIS for a non-refundable fee of $1,000.  To take advantage of the I-140 premium processing, the I-140 petition must be filed on behalf of aliens:

• who are currently in H-1B nonimmigrant visa status;
• whose sixth year will end within 60 days;
• who are only eligible for for a further extension of H-1B nonimmigrant status under section 104(c) of AC21 (permitting 3-year H-1B extensions upon approved I-140); and
• who are ineligible to extend their H-1B status under section 106(a) of AC21 (permitting 1-year H-1B extensions if I-140 or the underlying labor certification is pending for at least 365 days).

Even though the premium procedure is limited in certain cases, it brings welcome relief to a number of H-1B holders who are nearing the limit on their H-1B status.  Please contact us for more information on how you can take advantage of this new rule.

BREAKING NEWS

The USCIS has confirmed that on July June 16, 2008, it will resume premium processing for I-140s in certain limited circumstances. It is expected that these limited circumstances will cover cases where beneficiaries whose H status will expire within 60 days of filing the request and who need I-140 approval to become eligible for the additional H time. This change is intended to address circumstances where an individual needs the approved I-140 to receive additional H time under AC21.

The USCIS has not yet issued an official notice and we will continue to monitor the situation and update as we learn more.

Update: the starting date is June 16, 2008, not July 16, 2008, as we reporter earlier.

Following the H-1B lottery, where roughly half of the applications were rejected in the lottery, we are providing an overview of the pending H-1B relief bills in Congress.

The main piece of legislation in connection with H-1B relief is the SKIL Bill (HR 1930, S 1083).   The bill would raise the H-1B cap to 115,000 and provide for market-based increase if the cap has been reached during the previous years.  The bill would also exempt from the cap professionals with U.S. master’s or higher degrees AND some medical specialty certificate awardees.  Finally, the SKIL Bill contemplates including into the 20,000 advanced degree cap holders of advanced degree from non-U.S. educational institutions.

The STRIVE Act of 2007 (HR 1645) has provisions similar to the SKIL Bill.

HR 5630, introduced by  Rep. Giffords (AZ) seeks to increase the cap to 130,000 and, similarly to the SKIL Bill, includes a market-based escalation provision.

Finally, HR 5642, introduced by Rep. Smith (TX) seeks to increase the cap for fiscal years 2008 and 2009 to 195,000.

The U.S. Department of Justice announced May 1, 2008, that it has imposed a civil fine of $45,000 to iGate Mastech, Inc., a Pittsburgh computer consulting company in connection with the company’s alleged discrimination against United States citizens in its employment practices and advertisements.

The DOJ found that between May 9, 2006, and June 4, 2006, the company placed 30 job ads for computer programmers that expressly favored H-1B holders to the exclusion of U.S. citizens or green card holders.  Some of the ads contained text identical or similar to, “Only H-1s apply, and should be willing to transfer H-1B.”

Such discrimination is prohibited under the U.S. Immigration and Nationality Act.   “We are committed to protecting the right of all authorized workers in the United States against citizenship status discrimination,” said Grace Chung Becker, Acting Assistant Attorney General for Justice Department’s Civil Rights Division.

While we are uncertain of the motives of the company to place such ads, the civil fine settlement comes as a result of a complaint by the Programmers Guild (PG) in 2006.  According to PG, iGate Mastech is just one of at least several companies engaged in the practice of discriminating against U.S. workers “in favor of cheap H-1B workers.”  If these are the motives, DOJ’s actions should serve to the great benefit of the labor immigrants.  It has been one of the main arguments of the H-1B program critics that the program undercuts the salaries of U.S. professionals.  By eliminating companies who intentionally seek foreign talent at a cheap rate, DOJ helps to ensure that the H-1B program’s critics have less of an argument against it.

Here is DOJ’s press release.

The USCIS announced late last week that it would permit F-1 students who have properly filed H-1B petitions in April and have their petition selected during the random lottery to request a change of status processing in lieu of consular notification.

The Problem
On April 8, 2008, USCIS announced a rule which would automatically extend the F-1 status of students who are beneficiaries of approved H-1B petitions so that the cap between the F-1 status expiration and the employment start date of October 1 would be automatically covered under F-1. However, the rule was published after the filing period for FY 2009 H-1B had closed and as a result, many F-1 holders who applied for H-1B visas calculated that their F-1 status would expire before October 1 and therefore they would have to leave the U.S. and requested consular notification on their H-1B application.

The Fix
As a result of the timing of the new rule, USCIS exacerbated a problem which the new rule aimed to solve. To its credit, USCIS released guidance that it would allow F-1 holders whose H-1B petitions were randomly selected to receive H-1B visa number for FY 2009, to now request a change of status processing, if such requests are received within 30 days of the issuance of the H-1B receipt notice.

Procedure To Request Change of Status
The procedure to request a change of status in lieu of consular notification, petitioners (or authorized representative) should send an email with the request to the USCIS service center where the H-1B petition is pending within 30 days of the issuance of the receipt notice. The requests should include the receipt number and both the petitioner’s and beneficiary’s name, date of birth, I-94 number, and SEVIS number.

The e-mail addresses for requestig change of status are:

• Vermont Service Center
  • Premium Processing cases: VSCPPCAPGAP.Vscppcapgap@dhs.gov
  • Non-Premium cases: VSCNONPPCAPGAP.Vscnonppcapgap@dhs.gov
• California Service Center
  • Premium Processing cases: CSC.ppcapgap@dhs.gov
  • Non-Premium cases: CSC.nonppcapgap@dhs.gov

The Washington Post published today an article about the H-1B visa program and how its benefits and problems affect immigrants, employers and American workers.  The article is fairly short but it compresses the feelings of the three major stakeholders in the H-1B visa program debate.

The U.S. Employers
The H-1B program was designed to help U.S. companies obtain temporary skilled foreign workers to assist in projects for which there is a shortage of U.S. workers.  During the dot-com boom, most of these H-1B visas were used by software companies attracting talented software engineers from India, China, or eastern Europe.  Today, many of these H-1B visas are used by a more diverse group of U.S. employers, but software engineers are still among the highest in demand.

Based on the number of applications for this year’s H-1B season, 163,000, compared to last year’s number of 140,000, the demand for skilled foreign labor is strong and getting stronger. According to the Post article, companies, “offer the same salaries and perks whether you’re from Baltimore or Bangladesh . . . but [they] simply cannot find enough qualified U.S.-born staff to fuel [their] growth.”

The Foreign Talent
Foreign skilled workers’ stake in the H-1B visa program is often distorted.  The Post article highlights how many of these skilled workers come to the U.S. on H-1B visa and use the H-1B visa’s “dual intent” status to start a procedure of obtaining a permanent residency.  This, after all, is how this great country was built, and such influx of talent should not only be temporary, for the duration of the H-1B visa of six years, but should be made permanent to that the U.S. economy, as a whole, benefits.

The Critics
There are critics of the H-1B program, of course, and the Post article outlines their position.  Some critics consider the H-1B program a “cheap labor” allowing U.S. businesses to hire and sometimes exploit foreign workers who come to the U.S. and often have little or no bargaining power.  While such comments are justified in certain occasions and based on past cases by some employers, such cases seem to be limited to few individual employers and the Department of Labor is tasked with ensuring that no wage discrimination and workplace abuse takes place.

Conclusion
The debate about the benefits and disadvantages of the H-1B program will continue for as long as the program exists.  In economic slowdown, it is easy to point the finger to foreign workers as taking away jobs from qualified American workers.  But we should not lose sight of the greater benefit to the economy caused by the constant influx of educated foreigners who allow U.S. companies to stay competitive in a global economy.

Over the past few days we have been asked on numerous occasions - what happens to my OPT when my H-1B is approved? Can I withdraw my H-1B?
Background.  This question is prompted mainly by the new OPT extension rule which went into effect recently.  (See our previous posts for more details as we wrote extensively on this topic.)  Many OPT holders applied for their H-1B visas this April and are eagerly awaiting the outcome.  However, for many OPT holders, the April 2008 OPT rule extends their OPT duration by as much as 17  months.  Thus, some have asked us what are their options.

Answer.  The answer is, if you would like to stay on OPT longer you must withdraw your H-1B application.  It is important to note that once the H-1B application is approved and if it was filed as a “change of status,” then your OPT is cancelled automatically.  Therefore, prompt action may be necessary.  Another important note is that only the employer may submit withdrawal of the H-1B application since the application is technically filed by the employer.

If you need professional assistance with your OPT/H-1B visa applications please contact us.

USCIS had released a preliminary count of the H-1B applications filed during the period between April 1 and April 7, 2008.  There are 163,000 H-1B petitions and more than 31,200 of those were for the advanced degree category.

The computer-generated lottery is expected to be conducted next week, with the 20,000 advanced degree holders going first.  The11,200 advanced degree petitions not included in the lottery will be counted first towards the 65,000 overall cap.

The Department of Labor (DOL) has released the PERM statistics for the first two quarters of its Fiscal Year (FY) 2008, covering the period between October 1, 2007, and March 31, 2008 (the “Period”).

During the Period, there were 44,090 PERM applications received, there were 12,600 cases certified and, as of March 23, 2008, there were 28,000 cases pending.

Among the highlights provided by DOL are that 66% of the certified PERM cases were H-1B workers.  The top five states of intended employment were California, New York, New Jersey, Texas, and Florida.  Among the countries, India was top, followed by China, South Korea, Philippines, Mexico, Canada, and the U.K.