The President asked Secretary Johnson and Attorney General Eric Holder to undertake a rigorous and inclusive review to inform recommendations on reforming our broken immigration system through executive action. This review sought the advice and input from the men and women charged with implementing the policies, as well as the ideas of a broad range of stakeholders and Members of Congress from both sides of the aisle. Our assessment identified the following ten areas where we, within the confines of the law, could take action to increase border security, focus enforcement resources, and ensure accountability in our immigration system.
Fixing Our Broken Immigration System Through Executive Action – Key Facts
A recent article by CNBC entitled “Investors to Obama: We need more foreign workers” explores the substantial problems faced by investors and entrepreneurs in securing sufficient numbers of foreign professional workers: the engine of innovation in the U.S. Last year we met the H-1B cap the first week it was open, again: the only solution to the problems highlighted in the article is an increase in H-1B visas, else the demand for the same will relocate to a country like Canada, which intelligently recognizes the true value of such talent.
The CNBC article was forwarded to me by a highly capable entrepreneur/investor client of mine. His situation warrants a short discussion, because it is supports the message in the article as well as the broader subject of our defective Business Immigration laws. This client moved his family to the U.S., and recently invested almost $500,000 in a new U.S. based business which employs nine (9) U.S. workers. Further, this client has purchased two Mercedes Benz vehicles and plans on buying a large house and, in the near term, investing another $1 to $5 million dollars in the U.S. – but only if USCIS approves an extension of his Business Immigration case. Unfortunately, USCIS seems a step away from denying his case, as our 1200+ page application on his behalf (which by the way weighed more than a newborn baby) was met with a ten (10) page Request for Additional Evidence (“RFE”).
The U.S. Department of Labor’s OFLC statistics on H-1Bs as of 8/31/14, including number of LCAs received, top occupations, states, and employers, as well as the number of certified, denied, and withdrawn LCAs, number of positions requested and certified, and percentage of applications timely processed.
Interestingly, of the top ten (10) H-1B Occupations:
- The top three (3) H-1B Occupations involve Information Technology.
- A total of six (6) of the top 10 H-1B Occupations involve Information Technology.
Link: H-1B_Selected_Statistics_FY2014_Q4 (PDF)
Release Date: April 07, 2014
WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) announced today that it has received a sufficient number of H-1B petitions to reach the statutory cap for fiscal year (FY) 2015. USCIS has also received more than the limit of 20,000 H-1B petitions filed under the U. S. advanced degree exemption.
Before running a random selection process, USCIS will complete initial intake for all filings received during the filing period which ended today. Due to the high number of petitions, USCIS is not yet able to announce the date on which it will conduct the random selection process.
A computer-generated process will randomly select the number of petitions needed to meet the caps of 65,000 visas for the general category and 20,000 under the advanced degree exemption. USCIS will reject and return filing fees for all cap-subject petitions that are not selected, unless found to be a duplicate filing.
The agency will conduct the selection process for the advanced degree exemption first. All advanced degree petitions not selected will become part of the random selection process for the 65,000 limit.
USCIS will continue to accept and process petitions that are otherwise exempt from the cap. Petitions filed on behalf of current H-1B workers who have been counted previously against the cap will not be counted towards the congressionally mandated FY 2015 H-1B cap. USCIS will continue to accept and process petitions filed to:
- Extend the amount of time a current H-1B worker may remain in the United States;
- Change the terms of employment for current H-1B workers;
- Allow current H-1B workers to change employers; and
- Allow current H-1B workers to work concurrently in a second H-1B position.
- U.S. businesses use the H-1B program to employ foreign workers in occupations that require highly specialized knowledge in fields such as science, engineering and computer programming.
For more information on USCIS and its programs, please visit http://www.uscis.gov or follow us on Facebook (/uscis), Twitter (@uscis), YouTube (/uscis) and the USCIS blog The Beacon.
Last Reviewed/Updated: 04/07/2014
Update (6:45 PM): AILA Liaison has been informed that due to the reported courier delivery problems with FY2015 H-1B petitions, USCIS will accept a second H-1B petition in certain limited circumstances. Specifically, for cap-subject petitions that were timely filed, if, upon inquiry, the carrier indicates that there may be a delivery delay or the package has been damaged, the petitioner may file a second H-1B petition with:
- A new fee;
- An explanation as to why the second petition is being filed, with supporting evidence (such as the notice from the carrier); and
- A request to withdraw the first H-1B cap petition.
USCIS will return the withdrawn petitions with the fee, even if they have already been receipted.
Petitions that do not include the above-referenced items will be treated as duplicate petitions and will be denied or revoked, and USCIS will not refund the filing fees. Please also note that if the FY2015 cap is met within the first five business days of April, USCIS will reject all petitions received after April 7, 2014, including duplicate H-1B petitions filed in accordance with these instructions.
Update (5:03 PM): A member has been informed by FedEx that approximately 200 packages have been delivered to the Vermont Service Center but were not scanned as delivered. Members can call FedEx directly (1-800-463-3339), provide the tracking number, and the representative should be able to confirm delivery telephonically.
AILA has received several reports from members who, upon inquiring about the status of their FedEx delivery, have been informed of delivery problems. AILA has reported the specific problems to USCIS headquarters. USCIS officials are investigating the situation and will report back to AILA as soon as possible. In the meantime, if you have been unable to confirm that your package has been delivered to the CSC or VSC, you might consider preparing a duplicate petition as a precaution. However, do not file a duplicate petition until you have confirmed that the original petition has been destroyed, misdirected, or lost. Under 8 CFR 214.2(h)(2)(i)(G), USCIS will deny or revoke duplicate filings by the same employer for the same beneficiary, and fees will not be refunded.
AILA will continue to provide updates as it learns more information from USCIS.
This week, Bill Snyder, a blogger for the anti-H-1B propaganda site Infoworld posted an article attacking Immigration of the Educated. What is especially interesting about Mr. Snyder’s position is the fact that it signals the resumption of the 2008 attack on the Optional Practical Training program (OPT). OPT being a temporary work authorized status granted to eligible F-1 students who may thus gain professional work experience post graduation, and perhaps a portion back of 20+ billion dollars in tuition they pay into our coffers each year.
Unjustified ire towards OPT is peaking only because the program may be utilized by eligible F-1 Science/Technology/Engineering/Math (STEM) graduates. Apparently, for Mr. Snyder, it is only then that the program transforms into what he terms “a sleazy end run around the law”. Mr. Snyder claims that these new STEM graduates, supported by their “tech company” employers, enter the U.S. workforce en masse to undercut IT wages. Said wages, which he admits in the first sentence, are already “climbing to more than $87,000 a year”.
The fact that Mr. Snyder’s argument against OPT flies in the face of the concept of American Exceptionalism and two basic economic principles, or that it is entirely bereft of any unbiased and relevant data is moot. The most significant takeaway from his article is that STEM OPT is nothing more than a scapegoat: this attack is actually and truly directed against the H-1B program itself. Mr. Snyder and other IT protectionists seek justification to undermine the OPT program not because of any alleged misuse, but because OPT allows a post graduate STEM worker precious time to find a good employer who may agree to pay government fees of up to $5,550.00 (plus attorney fees) to file an H-1B petition on their behalf. (There are no guarantees of approval, nor is the worker forced to even ultimately take up employment with the H-1B petitioner. As well, in the future, the H-1B worker, for any reason, may transfer to a new H-1B employer in as little as one week.)
Our immigration policy is increasingly hobbled by protectionists who, for short term gain (or perhaps unknowingly), damage our nation’s international lead in the STEM fields. Our insufficient H-1B cap that does the same: tens of thousands of highly qualified, valuable STEM professionals were rejected in last year’s random selection process (H-1B lottery), and sadly the scene is set be repeated again this year in April.
Our repeated rejection of STEM professionals is untenable and is certain to diminish our ability to attract the worlds best and brightest, unless we make drastic changes. Already, other nations are eagerly recruiting STEM workers (sometimes from within our own borders). The bottom line: the yearly H-1B cap must be increased to an amount commensurate to demand, or at the very least, to a level that isn’t exhausted in one week.
Data Reveals USCIS Increasing Number of Requests for Evidence on L-1B Cases, California Service Center Continues to Lead Vermont Service Center in RFEs and Case Denials
Responding to a Freedom of Information request submitted by The American Immigration Lawyers Association Liaison, USCIS revealed interesting data on L-1B nonimmigrant petitions receipted, approved, denied, and those subjected to a Request for Evidence (“RFE”) for FY2012 and FY2013. The data, when compared with USCIS statistics and a National Foundation for American Policy report, both released in 2012, reveals that the L-1B denial rate increased from 27% in FY2011 to 30% in FY2012 and 34% in FY2013.
The H-1B program is used by U.S. corporation to employ foreign professional workers in occupations that require theoretical or technical expertise in specialized fields. The program allows for about 85,000 new H-1B workers each Fiscal Year, a paltry number in the face of the U.S.’s need for Science, Technology, Engineering and Mathematics (“STEM”) workers. In an interview with Reuters last year, I predicted that 2013’s H-1B quota would be exhausted instantly – something that had not occurred since 2008. I was subsequently proven correct as USCIS received approximately 124,000 H-1B petitions during the filing period, each vying for one of the 85,000 “slots” available. On April 7, 2013, USCIS used a computer-generated random selection process (the “lottery”) to select a sufficient number of petitions needed to meet the caps of 65,000 for the general category and 20,000 under the advanced degree exemption limit.
This year, the Fiscal Year 2015 Cap season will begin on April 1, 2014 and I anticipate an even larger number of H-1B applications. This prediction is based not only on the strengthening national economy but also because U.S. Immigration authorities have reduced or eliminated other possible options for U.S. companies in acquiring STEM professional workers. Despite the tremendously positive impact that H-1B visa holders make in this country (including the substantial revenue the hefty H-1B application fees generate for USCIS and U.S. worker training programs nationwide), they are treated poorly by U.S. Immigration authorities. H-1B employers and beneficiaries suffer from absurdly high query rates and illogical consular delays. Many also subject to unusually long delays in filing for Permanent Residence, for example, an Indian born Software Engineer currently faces a wait time of eleven (11) years to obtain an employment based third preference (EB-3) green card.
As I have previously stated, our national immigration policy should emphasize our immediate need: to retain and increase our advanced degree professionals so that the we can continue to compete internationally and maintain our lead in new technologies. One of the best ways to accomplish this is to take concrete steps towards increasing the H-1B cap amount to 250,000.
Infosys Fined an Unprecedented $35,000,000.00 by the U.S. Government for Employing B-1 Visas in Lieu of H-1Bs
The Wall Street Journal reports that the U.S. Government will fine Infosys, an Indian Technology/Consulting giant, almost $35,000,000.00 for employing B-1 visa workers in lieu of H-1B visa workers.
By way of background, last year, Judge Thompson of the Federal Court for the Middle District of Alabama rejected all claims brought by Jack Palmer against his employer, Infosys. Palmer claimed to have been harassed and retaliated against after making allegations that Infosys’ massive B-1 visa program was used fraudulently in place of more appropriate visas. Palmer’s rejected claims were subsequently resurrected by the U.S. Department of Justice and the Department of Homeland Security, which continued its investigation into whether Infosys wrongly filed B-1 visas for workers performing work that actually required H-1B visas.
In a 2011 blog post I wrote about how Infosys may have been engaging in a perfectly legal action; per 9 FAM 41.31 N11, “ALIENS NORMALLY CLASSIFIABLE H-1 OR H-3″:
“There are cases in which aliens who qualify for H-1 or H-3 visas may more appropriately be classified as B-1 visa applicants in certain circumstances; e.g., a qualified H-1 or H-3 visa applicant coming to the United States to perform H-1 services or to participate in a training program. In such a case, the applicant must not receive any salary or other remuneration from a U.S. source other than an expense allowance or other reimbursement for expenses incidental to the alien’s temporary stay. For purposes of this Note, it is essential that the remuneration or source of income for services performed in the United States continue to be provided by the business entity located abroad, and that the alien meets the following criteria:
(1) With regard to foreign-sourced remuneration for services performed by aliens admitted under the provisions of INA 101(a)(15)(B), the Department has maintained that where a U.S. business enterprise or entity has a separate business enterprise abroad, the salary paid by such foreign entity shall not be considered as coming from a “U.S. source;”
(2) In order for an employer to be considered a “foreign firm” the entity must have an office abroad and its payroll must be disbursed abroad. To qualify for a B-1 visa, the employee must customarily be employed by the foreign firm, the employing entity must pay the employee’s salary, and the source of the employee’s salary must be
However, Senator Chuck Grassley (R-IA), apparently motivated by Palmer’s Testimony, addressed a strongly worded but poorly researched memo to Secretary Hillary Clinton in which he demanded a complete review of the B-1 visa. His request was inexplicably granted, and the resultant changes substantially injured the economic interests of U.S. organizations engaged in international trade, countermanded congressional intent on the subject, and escalated denials for B-1 applicants at U.S. Consulates, especially those in the ‘B-1 in lieu of H-1B’ category.
Moving back to present: Infosys’ fine is unprecedented in the history of Immigration law. It will have a major impact on both our nation’s technology/consulting sector and on our Immigration policy. In light of the fact that other nations are eagerly recruiting the world’s best and brightest (sometimes from within our borders), it can only be hoped that the Infosys fine will reinvigorate the push for the creation of a new U.S. visa category specifically designed for short term consulting projects, and/or to increase the U.S.’s yearly quota for H-1B professional workers to a level that isn’t exhausted in one week.
USCIS will remain operational during the Federal Government Shutdown thanks to the healthy funding it derives from USCIS filing fees
- Good news: USCIS’ operations though the Federal Government Shutdown are expected to continue because it is funded by sources other than appropriated funds (read: H-1B and other USCIS filing fees). In fact, this funding is so substantial that USCIS expects to send home only 353 of 12,558 employees during the temporary shutdown.
- Consulates remain operational at this point.
- Unfortunately, the DOL ETA will not process any employment based labor certifications during the shut down. The PERM PLC website is also down, as is iCert.
Update: the iCERT system is currently unavailable due to Federal Government Shutdown. It Appears that No LCA’s or Prevailing Wages Can be filed.
By Ashwin Sharma, Esq.
Update: our law office tried to file an ETA 9035/LCA a few moments ago and received the following message:
The iCERT system is currently unavailable
This Web application is currently unavailable due to the suspension of Federal government services. It will be available again when the Federal government resumes operations.
- Federal government shuts down (huffingtonpost.com)
- The Republicans Must Aggressively Seek Credit For The Federal Government Shutdown (forbes.com)