India Inc to raise H-1B visa issue in US
| Via The Economic Times | |
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Commentary: H-1B Visa and EB Green Card Stories – Via Compete America
H-1B Visa and EB Green Card Stories:
America’s Losses Are Our Foreign Competitors’ Gains
Personal Accounts of the Crisis
The following stories illustrate the impact that H-1B visa shortages and EB green card backlogs have on highly educated foreign-born professionals, U.S. employers and our collective ability as a nation to compete in the global marketplace. Each story details how the unrealistic caps in both programs impede U.S. employers’ ability to recruit and retain much-needed foreign talent and the difficulties that are in turn imposed on these sought-after employees. Eventually, many of these professionals will have no choice but to leave the United States and take their valuable skill sets with them, which hurts U.S. competitiveness, our economy and workforce.
Possible Avian Flu Remedy in China, Not the United States Project(s): Mr. Long is a skilled researcher who has expertise in manipulating strains of avian flu. He was contacted by the firm to help their team of researchers develop an avian flu vaccine. Issue: Though Mr. Long is highly skilled and qualified for the position, and spent years conducting related research at the Laboratory of Animal Infectious Disease Ministry of Agriculture at Yangzhou University in the Jiangsu Province in China, it is unlikely that he will be able to join the firm to conduct this important research. The reason he will be inaccessible to the firm is because, as in years past, the H-1B cap was exhausted before the fiscal year even began. Mr. Long will be unable to pursue an H-1B visa for over a year’s time. Consequences: He says that if he does not get a visa, he will “find a job in a university or institute in China, but will not have the conditions to continue [his] work with influenza, for few institutes . . .[are] allowed to research influenza in China.” Source: Frederick News-Post, June 5, 2006 |
Competitor Nations Advance in Software Design Over the United States Project(s): Mentor Graphics Corporation is a mid-sized company specializing in software and hardware systems developed for electronics designers. Issue: The company lost one highly qualified job candidate from outside the United States because of the unavailability of H-1B visas. Mentor Graphics also stands to lose a current, highly skilled employee who is also seeking an H-1B visa, as his student visa will expire soon. Consequences: The company will have to forego hiring and retaining two highly skilled software workers, losing them and their valuable skills to foreign competition. Source: The Oregonian, June 9, 2006 |
Medical Research Gain for Australia, Not the United States Project(s): Mr. Bearelly is a chief resident at Thomas Jefferson University interested in conducting research on hepatitis C. Issue: Mr. Bearelly has received an offer from an Australian institution to do research on hepatitis C, which he cannot complete here because he has no green card. He has been told that his pay will be comparable to what he would receive in the United States but that he will not have to work through any of the “visa hassles.” Consequences: Mr. Bearelly says that if the green card backlog is not addressed soon, he will head to Australia. Source: Philadelphia Inquirer, April 8, 2006 |
India Benefits from Software Expertise, United States Does Not Project(s): Nilesh Khare works for an Austin, Texas-based software development firm and came to the United States from India with his family six years ago on an employer-sponsored H-1B visa. Issue: In 2002, Mr. Khare applied for an employment-based green card and is awaiting a response, nearly four years later. Mr. Khare’s wife, Ashwini, is a highly educated environmental engineer, but because her husband does not have a green card, she cannot work as an H-1B dependent. Consequences: The Khares say that if Nilesh does not receive a green card soon, they will look to employment opportunities in India or another country with a more efficient and inclusive visa system where his wife may seek employment. Source: Austin American-Statesman, May 8, 2006 |
Europe Gains in Software Development, United States Does Not Project(s): The small business develops software designed to monitor and track the listening and viewing habits of consumers who use portable devices, including iPods, MP3 players and other technologies. Issue: In an industry with very few experts, the company cannot afford to lose some of the best employees in the business to foreign competition. Consequences: However, because of the H-1B visa shortage, MusicStrands nearly lost two highly coveted technology engineers to their European competition. Source: The Oregonian, June 9, 2006 |
Scientific Research Gain for India, Not the United States Project(s): At the institute, Dr. Sengupta and a team of researchers are developing a weather satellite that will allow meteorologists and other scientists to monitor natural disasters and related events through satellite imagery in real time. The technology is coined the Geostationary Operational Environment Satellite (GOES-R) and is scheduled to launch in 2012. Dr. Sengupta also works under contract with the U.S. Department of Defense on research aimed at finding ways to predict cloud formation. This capability could potentially help the military plan and execute missions over distant battlefields, which are generally aborted when there are overcast skies. Issue: Though Dr. Sengupta is instrumental to the research being conducted to develop and enhance GOES-R and is central to the Defense project, he is currently in the United States on a temporary visa. Consequences: As Dr. Sengupta has little hope of transitioning from his nonimmigrant (temporary) status to a green card due to years of backlogs, it will be difficult for U.S. employers to retain him here in America, especially if he chooses to return to his native India or another nation stepping up its efforts to attract such talent. Source: Wall Street Journal, June 27, 2006 |
Philippines Gains Civil Engineer, Who Worked in the United States Project(s): A 41-year-old Filipino man who left the southern Philippines for California in 1998 to take a job as a civil engineer now faces the prospects of having to return to his homeland after spending roughly eight years here in the United States. Armed with two college degrees from a Philippine university, he has been a highly educated asset to different California-based companies for the past eight years. He currently works as a surveyor for an Irvine, California real estate development firm. Issue: Though he is here on an H-1B visa, if his green card case does not complete processing soon, after being stuck in the backlog for many years, he likely will choose to leave his current job and seek employment abroad in the Philippines when his visa expires this August. Consequences: While H-1B visa extensions do not count against the H-1B cap, it is costly and time consuming to continue to extend an H-1B visa waiting for an EB green card to complete its processing; not to mention it is difficult for this employee to ever be promoted to another position in the company while he waits for a green card. Source: Orange County Register, May 6, 2006 |
India Gains in Technology, Not the United States Project(s): The firm hired Mr. Damania in 2003, and at that time, the company started the process to secure an employer-based green card. Currently, he is still waiting to enter the final phase of the process, and the federal government this month began considering applications from Indian applicants who cleared the initial phases of the process in 2001. Issue: As a highly skilled software developer, Mr. Damania has the option to leave the United States and his current employer to seek employment outside the states. His wife, Meenaish, who is an MBA-educated banker, resorts to volunteering at the New Jersey Department of Environmental Protection because she cannot seek employment until her husband receives a green card. Consequences: If Mr. Damania does not receive a green card soon, he will be better off to leave the United States and take the couple’s skills to another country. Source: Philadelphia Inquirer, April 8, 2006 |
Software Technology Advances for India, Not the United States Project(s): Mr. Kapoor, an Oracle software technician at Florida State University, came to the United States a few years ago on a high-tech worker H-1B visa. Issue: He applied for a green card more than two years ago, and his application is still pending. Though he remains hopeful that he will be able to keep his job and secure a green card, recently one of Mr. Kapoor’s childhood friends from India chose to leave the United States, no longer being able to wait for the backlogged green card system to grant him resident status. Consequences: Mr. Kapoor may also choose to leave the United States and put his skills to use in his native India or another country where such talent is welcome. Source: Roll Call, March 2, 2006 |
India Makes Advances in Electrical Engineering, The United States’ Loss Project(s): Various projects Issue: Vivek Malapati, a native of India, is a highly educated product manager at a Minneapolis power equipment company. Mr. Malapati is twice graduated from the University of Utah, with a bachelor’s degree in electrical engineering and a master’s in business. He is currently here in the United States on an OPT visa while his employer attempts to secure an H-1B visa. Consequences: Unfortunately, as there are no H-1B visas available in 2007, Mr. Malapati may choose to relocate to another country where he can secure residency in a timely manner. Source: Salt Lake Tribune, July 22, 2006 |
Philippines Retains Its Skilled Math and Science Teachers Over Choice to Go to the United States Project(s): Currently, the district has more than 70 open positions for administrators and classroom instructors and, among the openings, are vacancies for roughly a dozen math and science teachers. As the gap widens between the number of U.S. and foreign students graduating with degrees in science, technology, engineering and math, Globe Superintendent of Schools Dr. Timothy Trent announced that he and another member of the school board would head to the Philippines in May for math and science teacher recruitment. District administrators are hopeful that the school system will be able to secure H-1B or J-1 visas to bring teachers from the Philippines here to the United States Issue: Though Dr. Trent explained that the Philippines was chosen because other state school systems have recruited high-quality instructors from the country, their efforts will likely be hampered because of the current H-1B cap exhaustion. Consequences: As the H-1B visa cap has already been reached for FY 2007, it will be difficult to bring the Filipino instructors to the country to work in Globe, AZ schools in the coming year. Source: Arizona Silver Belt, May 3, 2006 |
United Kingdom Gains Engineering Talent, United States Does Not Project(s): Various projects Issue: Raghu Ballal, who was born in India, is a civil engineer with a master’s degree in electrical engineering from Lamar University in Texas. Mr. Ballal has worked for the past six years in Sacramento, California, on an H-1B visa sought by his current employer, the Shaw Group. Over the past few years, Mr. Ballal has led and been a part of numerous environmental engineering projects, including landfill design. He is currently seeking a master’s of business administration degree and had hoped to attend the University of California at Berkley or Los Angeles. However, if Mr. Ballal pursued a degree at one of these universities, once he received the degree, he would be unable to accept a promotion at the Shaw Group or change jobs because of the limitations of the current green card system. Consequences: Mr. Ballal is planning to leave the United States for the United Kingdom, where he will study at Oxford University and make valuable contributions there in field of civil engineering. He says, “If I go to the United Kingdom now, I would be a U.K. citizen before I even became a green card holder in the United States.” Source: Sacramento Bee, August 3, 2006 |
Korea Gains U.S.-Educated Biological-MicroElectro Mechanical Researcher, United States Loses That Talent Project(s): Dr. H entered the United States as a graduate student in applied physics and was awarded a Ph.D. by Cornell University. He subsequently worked at the Lawrence Livermore National Laboratory in California while on an H-1B visa. In 2002, Dr. H was offered and accepted a position to be a tenure-track Assistant Professor in Electrical Engineering and Computer Science, specifically in the field of Biological-MicroElectro Mechanical Systems at the Massachusetts Institute of Technology (MIT). Dr. H applied for “adjustment of status” in October 2002, and MIT filed a labor certification application with the U.S. Department of Labor under “special handling” for university professors. Upon its approval, MIT submitted a petition for permanent residence on Dr. H’s behalf. The petition was approved in May 2003. Issue: Today, 34 months after MIT’s petition for permanent residence was approved, Dr. H continues to wait for final approval of his green card. Dr. H cannot apply for research grants that require the principal investigator to be a U.S. permanent resident. Consequences: He has no feelings of security about his future here in the United States. It is likely that Dr. H will choose to leave the country for an opportunity elsewhere. Source: Provided by MIT, 2006 |
Geological Research Advances for Foreign Competitors, Not the United States Project(s): Dr. X was awarded a Ph.D. degree in Geology from the GeoForshungsZentrum in Postdam, Germany in 1999. Dr. X then joined the Department of Earth, Atmospheric and Planetary Sciences at MIT as a Postdoctoral Associate. In 2002, he was promoted to the position of Research Scientist and obtained an H-1B visa. In March 2003, MIT filed an “Outstanding Professor/Researcher” petition for permanent residence based on his outstanding accomplishments and MIT’s desire to keep him on the permanent research staff. That petition was approved in September 2004. Issue: In October 2003, Dr. X and his wife filed applications for “adjustment of status.” Dr. X’s final approval was granted September 22, 2005, but his wife’s was not. Essentially, when he became an immigrant, his wife, who had held H-4 status, had to apply for independent work and travel permission. In October 2005, USCIS announced that priority dates for immigrant visas had retrogressed for citizens of China. Mrs. X was told that although her husband’s green card was already approved, she would have to wait an undetermined period of time for her priority date to become current and before USCIS would adjudicate her case. As of March 1, 2006, Dr. X’s wife’s priority date had still not been reached, and as such, she has no green card. Consequences: It is unknown how long the continued wait will be until USCIS catches up on backlogged cases. MIT stands to lose Dr. X to foreign competitors if his wife’s residency status is not addressed soon. Source: Provided by MIT, 2006 |
Europe Gains U.S.-Educated Wildlife Biologist, United States Cannot Hold on to Talent Project(s): N/A Issue: As a recent graduate of the University of Utah, Manuele Antonacci, a native of Parma, Italy, is enthused about his future in the U.S. workforce. However, like many foreign-born students who study in the United States with hopes to contribute to the talent pipeline upon graduation, he is nearing the expiration of his student visa. Mr. Antonacci, who hopes to become a wildlife biologist, is currently working in the university’s International Studies office, while waiting approval from the school on his occupational practical training (OPT) so he can continue to work post-graduation. Though he has no firm job offers yet, Mr. Antonacci hopes that his potential employers will be willing to apply for an H-1B visa to keep him in the United States temporarily. However, the current cap on H-1B visas for FY 2007 will make it nearly impossible for Mr. Antonacci to secure residency in the coming year. Consequences: Though he says, “I don’t want to go back to Europe now; I really have no ties there,” Mr. Antonacci may choose to return to Italy or take his education and talent to another country. Source: Salt Lake Tribune, July 22, 2006 |
Competitor Nations Gain Technologists, United States Loses Project(s): N/A Issue: As with many other companies in the United States, HP is faced with a pending workforce talent dilemma, as the cap for H-1B visas for FY 2007 has already been reached. Though the company has not been prevented from hiring highly educated foreign-born professionals just yet, company representatives say, “it’s not just about our ability to hire people; it’s also about the retention.” Consequences: HP could lose out on stellar employment prospects in 2007 because the H-1B visa cap prevents highly educated professionals from working in the United States. The company’s competition overseas stands to gain valuable workers that will not be granted temporary residency status here. A company representative notes, “there is a race for the best and brightest, and we have these numerical limitations.” Source: San Francisco Business Times, July 14, 2006 |
Competitor Nations Advance in Civil Engineering, Not the United States Project(s): Various projects Issue: Roughly 75 civil engineers employed by Caltrans, California’s state agency responsible for highway, bridge and rail transportation safety, maintenance and planning, are working on H-1B visas nearing expiration. Consequences: Unless the state is able to obtain green cards for these highly educated engineers, they will be forced to leave the United States to return to their native countries or take their talent to a competitor nation. Source: Sacramento Bee, September 10, 2006 |
China to Make Gains in Electrical Engineering, United States Does Not Project(s): Various projects Issue: Anna Li, a native of China, is a highly educated foreign-born professional with a master’s degree in engineering. Ms. Li has worked in the United States for five years on an H-1B visa, which is set to expire in April 2007. Two years ago, Ms. Li applied for a green card. Consequences: Given the current EB green card backlog, it is unlikely that Ms. Li will be able to obtain a green card by the time her H-1B visa expires. She may have to leave the United States for an opportunity elsewhere. Source: Copley News Service, September 1, 2006 |
Another Nation May Gain Physician, United States Loses Valued Professional Project(s): Various projects Issue: Dr. Alok Sharma is a native of India, who came to the United States 10 years ago on an H-1B visa. After years of working as a physician in Yuma, Dr. Sharma applied for a green card. Though his green card application was approved in January, Dr. Sharma still faces a four to five year wait to secure permanent residency status because of extensive backlogs in the EB green card system. Consequences: While Dr. Sharma waits to obtain a green card, he may decide to leave the United States for a job opportunity in a competitor nation with a less cumbersome immigration system. Source: Arizona Republic, October 2, 2006 |
Canada Could Gain Database Manager, Not the United States Project(s): Various projects Issue: Mr. Akinwande, a native of Nigeria, works as a database administrator for an insurance company in Phoenix, Arizona. He is here on an H-1B visa and has applied for a green card. While waiting to become a resident, he was offered a promotion by his employer, which he had to turn down because of the limits of the current green card system. In addition, though Mr. Akinwande and his family live in Arizona, he pays out-of-state tuition for his son to attend Arizona State University because he does not have a green card. Consequences: He says that he is considering moving to Canada, noting, “Right now if I applied, it would take me about 12 months to get a permanent resident card. Here, you don’t know how long the process will take.” Source: Arizona Republic, October 2, 2006 |
Software Engineering Gain for Competitor Nations, Not the United States Project(s): Various projects Issue: Mr. Salihoglu graduated from Yale University in May with a dual degree in computer science and economics. He planned to work for Google, Inc. here in the United States. However, proof of at least a bachelor’s degree is required for an H-1B visa application, and because Yale’s graduation took place four days after the cap on H-1B visas was reached for FY 2007, Mr. Salihoglu is one of many highly educated foreign-born graduates of U.S. universities who were unable to obtain an H-1B visa this year. After returning to Turkey following graduation, Mr. Salihoglu will come back to the United States this fall to work for Google on an OPT visa. Consequences: More than likely, when his OPT visa expires, Google will relocate Mr. Salihoglu to another Google office in a competitor nation. Source: Yale Daily News, October 5, 2006 |
Financial Services Sector Gain for United Kingdom, Not the United States Project(s): Various projects Issue: Ms. Zhou is a recent graduate of Harvard University with a degree in economics. As Harvard’s commencement took place on June 8, days after the cap on H-1B visas for 2007 was reached, Ms. Zhou was unable to secure an H-1B visa upon graduation. Consequences: Though Ms. Zhou looked forward to a career in the United States, given the H-1B visa cap, she had no choice but to relocate to London for the job with Citigroup. Source: Yale Daily News, October 5, 2006 |
Competitor Nations Gain Investment Banking Analyst, United States Does Not Project(s): Various projects Issue: Mr. Konieczny, a native of Canada, is a member of the Yale University class of 2006. Upon graduating, he planned to take a job in New York with investment banking firm, Lehman Brothers. Because he graduated just days after the cap on H-1B visas for 2007 was reached, Mr. Konieczny was unable to secure an H-1B visa and was informed by his prospective employer that he would have no choice but to move abroad to keep his job. Consequences: As a result, Mr. Konieczny followed the job and was permanently relocated to an overseas office in a competitor nation. Source: Yale Daily News, October 5, 2006 |
El Salvador Retains Management Consultant, United States Loses Project(s): Various projects Issue: Ms. Segovia, a native of El Salvador, is a 2006 graduate of Harvard University. Like many other highly educated foreign-born graduates of U.S. institutions, she was unable to obtain an H-1B visa this year. She had hoped to use her OPT visa to work in the United States for a year after graduation, but summer jobs she held during college counted toward the 12-month OPT allowance. Consequences: Ms. Segovia will work in the United States until her OPT visa expires, at which point, her employer has agreed to send her home to El Salvador until another H-1B visa application can be filed. While she remains hopeful that she will be able to secure long-term residency status in the United States, Ms. Segovia says, “Right now, I have no idea what’s going to happen and I don’t think anybody else does.” Source: Harvard Crimson, October 5, 2006 |
China Gains Vanderbilt Medical Center Researcher, The United States’ Loss Project(s): Various projects Issue: Wang has been conducting research at Vanderbilt on an H-1B visa. However, Wang can only research in the U.S. for a total of six years before he must leave for a full year before even being eligible to apply for another H-1B visa. In the meantime, two years ago, Wang applied to become a naturalized U.S. citizen. Wang continues to wait for an answer on his application that may or may not come before he has to leave. Consequences: Wang remains in legal and professional limbo as he tries to plant roots in the United States where he wants to live. Despite numerous inquiries as to why his application had being help up for over 20 months, Wang still has never received any word back. In Wang’s case, it may only be a matter of time before he is asked to leave the country. Source: Nashville City Paper, November 1, 2006 |
*Note: These personal accounts were extracted from recent newspaper coverage of the H-1B and EB green card issue.
Highly Educated Foreign Professionals: Separating Myth from Reality
Highly Educated Foreign Professionals: Separating Myth from Reality
Highly educated, foreign-born professionals infuse U.S. companies with needed talent, increase innovation and help to revitalize our economy. Despite these benefits, opponents of the program raise allegations that are not based in fact and do not reflect the realities of either the employment-based (E
green card or H-1B visa programs. Below, we shatter the most common of these myths with the real facts.
Myth: Foreign professionals take jobs from U.S. workers.
Reality: The EB green card and H-1B visa programs are a source of job creation and retention in America.
There is a long history of foreign professionals coming to this country and contributing to America’s economic success. This drives job creation and helps keep America competitive. By helping to develop new products and services, conducting cutting-edge research, developing new medical treatments and enabling companies to expand their client base, foreign professionals create good-paying jobs for American workers.
In the last 15 years, immigrants have started 25 percent of U.S. venture-backed public companies, such as Intel, Sun Microsystems, eBay, Yahoo! and Google. In 2005, these publicly traded venture-backed companies generated more than $130 billion in revenue. Moreover, Indian and Chinese entrepreneurs founded nearly one-third of Silicon Valley’s technology companies that accounted for $19.5 billion in sales and generated more than 72,000 jobs.
The EB green card and H-1B visa programs are helping to keep jobs in America. If companies cannot get the talent they need at home, they will have to look elsewhere.
Myth: Because of high-tech sector layoffs, foreign workers are not needed.
Reality: The EB green card and H-1B visa programs are important tools for hiring highly educated foreign-born nationals in all sectors of the U.S. economy. These visa programs are particularly important for attracting those who graduate from U.S. universities.
EB green card and H-1B visa professionals work in all sectors of the economy as architects, teachers, lawyers, doctors, engineers, researchers, and in many other professional occupations, including information technology fields. Employers adjust their use of these visa programs to adapt to changing labor market conditions.
Moreover, the EB green card and H-1B visa programs allow U.S. employers to hire foreign-born students who receive a degree from a U.S. higher education institute. About half of those graduating with U.S. master’s or higher degrees in science, technology, engineering or mathematics (STEM) fields are foreign nationals. In 2005, 55 percent of U.S. master’s and 67 percent of U.S. Ph.D. electrical engineering students were foreign-born. It is counterproductive to educate and train these individuals and then send them home to compete against us.
Myth: Foreign-born professionals are a source of cheap labor.
Reality: The H-1B visa program contains strong provisions to ensure U.S. workers are protected. U.S. companies must meet strict criteria set by the U.S. Department of Labor, U.S. Citizenship and Immigration Services and the U.S. Department of State.
Employers must pay H-1B professionals the higher of 100 percent of the prevailing wage set by the Department of Labor or of what they pay other similarly situated workers. Foreign workers must receive the same benefits and working conditions as U.S. workers.
In addition to wage requirements, it is expensive just to hire an H-1B worker. Taking into account the recruitment and training fee (generally $1500), the anti-fraud fee ($500), the filing fee ($190), the “premium processing” fee that is often necessary ($1000) and the legal fees and costs, U.S. employers typically spend between $5000 and $6000 just to secure an initial H-1B approval. And that is on top of the recruitment, compliance and other administrative costs.
Myth: Foreign professionals lower the wages and working conditions of U.S workers.
Reality: The H-1B program contains safeguards that protect U.S. workers’ wages and working conditions.
Employers must guarantee that the U.S. workers will not be adversely affected upon the hiring of an H-1B professional. The wages of U.S. workers are protected by requiring the employer to pay H-1B professionals at least the actual wage paid to U.S. workers in a similar position, or the prevailing wage for the position, whichever is higher. The H-1B visa program cannot be used when there is a strike or lockout at the worksite.
Employers also must notify their U.S. workforce when hiring an H-1B professional. This notification includes the occupation of the H-1B professional, as well as the salary range of the professional and information on how U.S. workers may file complaints with the government if they have concerns about the H-1B hire.
Employers who fail to comply with Department of Labor regulations may be subject to investigation, civil and administrative penalties, payment of back wages, and debarment from participating in key immigration programs. The H-1B program is not about cheap labor – it is about keeping America competitive with the best talent available. Fraud and willful misrepresentation should never be tolerated. Those who abuse our system should face an appropriate combination of civil and/or criminal penalties.
Myth: The H-1B cap is based on economic data and empirical research and protects U.S. jobs.
Reality: The H-1B cap bears no relation to demand for jobs by U.S. workers. Whether set at 65,000 or 195,000 visas annually, the cap has always been a politically expedient compromise not based on market need.
For fiscal year 2007, the supply of H-1B visas ran out more than four months before the fiscal year even began. When employers face a 16-month blackout period on hiring needed professionals, it harms their competitiveness. It is simply not reality that they can turn to an untapped supply of U.S. workers. The whole problem is that qualified workers in key specialties are in short supply, and the positions go unfilled and functions unperformed. This harms the ability of U.S. employers to strengthen and create additional jobs. Moreover, when it becomes impossible to get critically needed workers in this country, employers will simply go to where the needed workers can be found.
Myth: Nothing is being done to boost the U.S. workforce.
Reality: U.S. employers make substantial contributions to promote and support technical education and training for U.S. workers.
U.S. employers are required to pay a $1500 fee with each H-1B petition filed that goes toward scholarships and training for U.S. workers. In the last eight years that this fee was effective, U.S. employers have paid more than $1billion in fees – funding more than 40,000 scholarships for U.S. students in math and science, supporting science programs for 75,000 middle and high school students and training more than 82,000 U.S. workers. If the H-1B program is adjusted to meet demand, this contribution will only increase. In addition, many employers oversee their own U.S. worker training programs.
Myth: H-1B workers are “indentured servants” who are trapped by an employer.
Reality: H-1B professionals are sophisticated, know their market value and can apply to change employers, so they are not beholden to one employer.
H-1B professionals are able to change jobs as soon as another employer files a visa petition for them. (This portability provision does not affect the length of time that H-1B workers may remain in the United States.) Thus, if their original job is unsatisfactory, H-1B visa holders may change jobs in a similar manner to a U.S. worker. It is not unusual for H-1B professionals to switch employers several times during their stay.
In addition to being required to pay H-1B employees at the prevailing wage for U.S. workers, employers are prohibited by law from requiring H-1B professionals to work under conditions different from their U.S. counterparts, including hours, shifts and benefits.
Many H-1B workers are sponsored for permanent residence, a fact that points to the need to establish a direct path for immigrants seeking permanent residence. The H-1B program was designed for temporary workers. Those seeking green cards clog the system, and are forced into a legal limbo created by their temporary H-1B status.
Myth: Foreign workers do not pay U.S. taxes.
Reality: Foreign workers resident in the United States pay the same taxes on worldwide income as U.S. workers. They also pay the same social security, unemployment and state taxes.
USCIS Service Center Operations Replies to AILA Questions (5/23/07)
Via AILA
1. Cap-subject cases and Premium processing: We understand from USCIS that there was no advantage in the random lottery for cases filed under premium processing. All cases received on 4-2-07 and 4-3-07 were treated equally regardless of regular or premium processing. However, it is also our understanding that a majority of the cap-subject cases were filed using premium processing. Could USCIS confirm what percentage of cap-subject cases were filed using premium processing?
A: Premium processing cases received no advantage and were no likelier to be selected in the random selection process. All filings were treated equally and all filings had an equal likelihood of being selected. It is only after the random selection process was completed that the type of filing became meaningful. If a premium filed case was selected, it would be adjudicated before a non-premium case simply due to the 15 calendar day time constraint for an adjudicative decision to be made. Due to the fact that a higher percentage of premium-filed cases vs. non-premium cases have been worked to completion thus far, there may be a perception among some that these cases received some type of advantage. However, CIS can confirm that there was no advantage to filing premium; again, all cases received the same likelihood of being selected through the random generation process.
2. USCIS issued a notice on 5-17-07 stating that premium processing for I-140 labor certification substitutions was no longer available as of 5-18-07. Could USCIS confirm whether I-907’s received on 5-18-07 would be accepted or rejected?
A: These I-907s received on May 18, 2007 will be rejected.
AILA’s CIR Daily Update 5/24/07: Debate Continues; Amendment to Massively Increase H-1B Fees Passed
On 5/24/07, the Senate resumed consideration of amendments to the CIR bill (S. 1348).
The highlights:
• A Coleman amendment to allow local government officials to inquire about immigration status was narrowly defeated, 48-49.
• A Dorgan amendment to sunset the new worker program also was defeated, 48-49.
• A Sanders amendment to dramatically increase H-1B fees was passed, 59-35.
• A Vitter amendment to prevent legalization for the undocumented was defeated, 29-66.
Summary of Senate Proceedings—5/24/07
Coleman/Bond Amendment to Allow Local Officials to Ask Immigration Status (#1158)
Yesterday evening, Senator Coleman (R-MN) introduced an amendment, co-sponsored with Senator Bond (R-MO), urging enforcement of what he referred to as “the original intent of Section 642(b) of IIRAIRA.” This amendment, in essence, would override state and local government policies that encourage immigrants to contact the police when they are victims of or witnesses to a crime. Specifically, the amendment would ban what Senator Coleman termed local “sanctuary policies” that currently prevent state and local government officials and law enforcement officers from asking about immigration status during routine stops, including stops for traffic violations. Instead, this misguided amendment would allow those officials, and any government entity or official, in fact—even teachers and health care workers—to inquire about an individual’s immigration status if they have “probable cause to believe the individual is undocumented.”
Senators Menendez and Kennedy opened debate this morning with strong criticism of Senator Coleman’s amendment. Both Senators cited the potential this amendment will have for virtually legalizing racial profiling. “What constitutes probable cause, Senator Menendez asked, “Foreign accent? Skin color? A foreign name?” The Senators also noted that current law already provides ample authority for state and local police to assist federal immigration agents in enforcing the law against criminals and terrorists.
Senator Kennedy then posed the following question: “Does this amendment actually weaken, rather than strengthen, our security?” “Yes!” he declared, since immigrants simply will be unwilling to come forward and report to police on any useful information they might have. “Report to deport” is all the Coleman amendment achieves, he said, a notion that simply “makes no sense.” Another effect that the Coleman amendment will have, he added, is that not only will immigrant be afraid to report to police crimes they have witnessed for fear of being asked their immigration status, they also will fear seeking health care in many situations. For instance, immigrant victims of domestic violence and sexual assault naturally will become even more reluctant than they already are to safely report crimes committed against them to law enforcement agents.
As scheduled, voting on this amendment began at 12:45 pm. Once the final votes were tallied, the amendment was defeated by a very narrow margin, 48-49.
Dorgan Amendment to Sunset New Worker Program (#1181)
Senator Dorgan (D-ND) introduced an amendment, co-sponsored with Senators Durbin (D-IL) and Boxer (D-CA), that would sunset the new worker program after 5 years. In proposing the amendment, Senator Dorgan again recited the criticisms he made of the program prior to his failed amendment on Tuesday, an amendment which sought to eliminate the new worker program entirely. He argued that the new worker program amounts to nothing more than a “Byzantine” attempt by certain interest groups to lower the wages of American workers by hiring cheaper foreign workers. Senator Durbin added that a new worker program without sunset provisions would create a permanent underclass of people who never assimilate into the fabric of the country, who become dispossessed of rights and become disillusioned in the process. By example, he cited the current plight of working class Turks in Germany, and North Africans in France.
Senator Kennedy (D-MA) then took the floor and again issued a strong defense of the new worker program. He stressed the necessity of such a program for the economy and for American businesses, and argued that, far from driving down wages and taking American jobs, such a program actually ensures that American wages remain competitive and fair. Without a new worker program, he added, the hiring of cheaper, undocumented workers will persist and American workers will suffer, quite the opposite of Senator Dorgan’s earlier contentions. Furthermore, Senator Kennedy added that without a new worker program, the exploitation of undocumented workers by unscrupulous employers will continue, and the border will remain a sieve for more undocumented workers to come through. No job can be offered to any immigrant, he continued, before it is openly advertised and offered to American workers first. Finally, he contrasted the situations in Germany and France, brought up by Senator Dorgan, with that in the U.S., stating that the underlying bill provides new workers an opportunity to earn points toward permanent resident status under the new merit-based point system. Such a possibility does not exist in those other countries.
Senator Specter (R-PA) echoed similar sentiments in support of the new worker program, and urged his colleagues to vote against Senator Dorgan’s amendment. Senator Kyl agreed, calling this new Dorgan amendment merely a “light version of the amendment that was defeated” on Tuesday, and adding that “sunsetting” the program does nothing to eliminate illegal immigration into the country, since employers simply won’t have the workers they need to fill labor shortages and immigrants will continue to cross the border seeking available jobs.
This amendment was defeated, 48-49.
McCain Amendment Regarding Payment of Back Federal Taxes (#1185)
Senator McCain introduced an amendment regarding the payment of back taxes. While AILA has not yet seen the actually text of the amendment, we understand that it was included in last year’s Senate bill, S.2611, and requires those who legalize to pay back taxes for periods they worked while in undocumented status.
This amendment was accepted by voice vote.
Akaka Amendment Regarding Children of Filipino WWII Veterans (#1186)
Senator Akaka (D-HI) introduced an amendment yesterday that would exempt from the numerical limitations on family-based immigrants the unmarried and married sons and daughters of naturalized Filipino World War II veterans. Senator Kennedy expressed his support for this amendment.
This amendment passed by a vote of 87-9.
Sanders Amendment Raising Fees for H-1B Visas (#1223)
Senator Sanders (I-VT) introduced an amendment that would increase the fees for H-1B visas from $1,500 to $8,500. This additional fee would be on top of existing fees, and funds would be used for training and scholarship programs. Senator Sanders listed the Teamsters Union and the AFL-CIO among supporters of his amendment. Without this amendment, Senator Sanders said, “skilled middle class and upper middle class Americans” would be hurt, and their wages would continue to be suppressed. Senator Sanders cited evidence that certain U.S. companies admit hiring foreign H-1B workers over American workers because “foreign workers are willing to work for less money than Americans,” earning “huge profits” as a result.
Just prior to the vote, Senator Sanders announced that he had made changes to his amendment, dropping the fee for H-1B visas from the $8,500 he proposed earlier, down to $5,000. Following Senator Sanders’ announcement, Senators Kennedy and Specter expressed their support for the bill.
This amendment was accepted, 59-35.
Vitter Amendment to Prevent Legalization of the 12 Million Undocumented (#1157)
Senator Vitter (R-LA) introduced an amendment that “strikes at the heart” of the underlying bill. The amendment seeks “to eliminate the fundamentally flawed Z visa amnesty” provision from the underlying bill, thereby preventing undocumented immigrants from legalizing. He stated that “rewarding illegal behavior, as was done in
the 1986 amnesty,” sent the wrong message to those outside the country wanting to get in, many of whom are here today in undocumented status. This message, he argued, must not be repeated, so the Z visa provisions in Title VI should be taken out of the underlying bill. Senator DeMint (R-SC) voiced support for this amendment.
Senators Specter and Kennedy attacked this amendment, saying it essentially guts the major thrust behind the underlying legislation, making the entire bill virtually obsolete should the amendment pass.
This amendment failed, 29-66.
The following amendments were introduced, but voting on them was delayed until after the Memorial Day recess.
Dodd Amendment (#1199)
Senator Dodd introduced an amendment he spoke about yesterday, seeking to increase family unification. The amendment would address provisions in the current bill curtailing provisions for parents of U.S. citizen (USC) sponsors. In particular, it would increase the green card cap on visas issued to parents of USCs to 90,000, up from the 40,000 set aside in the underlying bill, making sure sufficient numbers of visas are available to those parents coming to the U.S. It also would lengthen parent visitor stays to 180 days, up from the 30 days allowed for in the underlying bill. Finally, the amendment would make penalties for parent overstays applicable only to those parents, not their USC sponsors.
Senator Menendez expressed strong support for this amendment, as he did yesterday, chastising those who characterize family reunification as mere “chain migration,” and declaring that those who denigrate parents coming to the US, wanting to join their USC children, have simply chosen to dismiss the very essence of what America was built on.
Voting on this amendment was delayed until after the Memorial Day recess.
Cornyn Amendment Expanding Restrictions on Immigration Benefits and Due Process (#1184)
Yesterday, Senator Cornyn (R-TX) introduced an amendment that would expand restrictions on immigration benefits and due process, closing what Senator Cornyn terms “loopholes” in the underlying bill that allow legalization of what he called “absconders,” those who have failed to deport after being ordered deported, or who have reentered the country unlawfully after being removed. The full ramifications of this amendment are still being grappled with, but it is becoming increasingly clear that this amendment, if passed, would exclude a large portion of the undocumented population from the legalization program in the underlying bill. Moreover, because of its retroactivity provisions, this amendment would further aggravate the devastating impact of the
material support bar and would prevent vulnerable populations from certain forms of protection through immigration relief.
Senator Menendez took to the floor to offer his strong opposition to the bill, focusing in particular on the dangers of retroactivity provisions in any legislation. How fair is it, he asked, to punish someone for doing something that was legal when they did it? Regarding immigration laws in particular, such retroactivity, he declared, was near universally recognized as a policy that led to tremendous harm in prior laws, and for this reason, was eliminated in all prior negotiations leading up to the underlying bill. Senator Cornyn was being disingenuous at best, Senator Menendez implied, by trying to insert it into the bill now through his amendment.
Voting on this amendment was delayed until after the Memorial Day recess.
Menendez Amendment (#1194)
Senator Menendez introduced an amendment, co-sponsored by several other senators, that would move the cut-off date for legal immigration applicants from the May 1, 2005 date proposed in the underlying bill, to January 1, 2007, the same date proposed for legalization of the undocumented. “All this amendment does, Senator Menendez said, “is bring justice and fairness to the underlying bill by treating legal applicants and the undocumented the same.” The amendment “provides the same cut-off date for those who played by the rules and are sponsored to come here by a United States citizen, as those who entered in undocumented status with nobody sponsoring them.”
The amendment also would add 100,000 green cards a year to aggressively reduce the backlog and avoid lengthening the eight-year deadline for clearing the adult children and sibling backlog. This backlog clearance must be completed before immigrants in the new legalization program can begin obtaining legal permanent residency status.
Voting on this amendment was delayed until after the Memorial Day recess.
McConnell Amendment Requiring ID Cards to Vote in National Elections (#1170)
Senator McConnell (R-KY) introduced an amendment requiring that individuals across the country present a government issued, valid, photo identification card in order to register to vote. The impetus behind this amendment, he said, was a story about undocumented individuals in San Antonio who voted despite not being citizens of the U.S. Senator McConnell said he was sure that “such a story, if true, is certainly happening elsewhere” as well.
Voting on this amendment was delayed until after the Memorial Day recess.
Feingold Amendment to Set Up Commissions to Study U.S. Treatment of Refugees During WWII (#1176)
Senator Feingold (D-WI) introduced an amendment setting up commissions to review the circumstances surrounding injustices suffered by European Americans, European Latin Americans, and Jewish refugees during World War II.
Sessions Amendment Preventing Those Who Legalize From Collecting Earned Income Tax Credit (#1235)
Senator Sessions (R-AL) introduced an amendment to prevent undocumented workers who legalize from collecting any benefits relating to the Earned Income Tax Credit.
Senator Kennedy offered a brief, but passionate criticism of the Sessions amendment, saying that while murderers and other criminals, many of whom have committed heinous crimes, still can collect the Earned Income Tax Credit, the Sessions amendment would prevent a person from collecting the tax credit simply for being in the country in undocumented status. Senator Kennedy said that he would reserve the rest of his comments on this amendment for a later time during the debate.
Durbin Amendment to Require Jobs Be Offered to Americans Before Y Visa Holders
Senator Durbin (D-IL) introduced an amendment to require that jobs be offered to Americans before they are offered to Y visa holders in the new worker program, and removes a provision in the underlying bill allowing the Secretary of Labor to declare labor shortages. Senator Durbin asked that this amendment be considered after the Memorial Day recess.
In general, AILA believes this “bargain” bill is unacceptable and unworkable in its current form. However, while the process is still very much in flux, we are working closely with our allies to improve the bargain as much as possible during Senate floor debate over the next few weeks. We will keep you posted about amendment information as it becomes available.
USCIS ISSUANCE OF RECEIPTS FOR H-1B CAP CASES ON-GOING (AS OF MAY 11, 2007)
USCIS has issued an amendment to their previous statement indicating all H-1B’s for this FY would be processed by May 11, 2007
WASHINGTON – Due to the unprecedented volume of recent H-1B filings, U.S. Citizenship and Immigration Services (USCIS) is temporarily experiencing a receipting/data-entry (DE) front log at its Service Centers. In an effort to give our customers more accurate information about current receipting timeframes and USCIS service level commitments, we are providing the following projections for fee receipting and data entry processing for H-1B cap cases currently at our Service Centers:
Note: These projections do not apply to Premium Processing or I-129 H-1B (cap or non-cap) cases.
California Service Center
USCIS expects to provide in time-compliance for receipting of all form types by June 15, 2007.
Nebraska Service Center
USCIS is currently providing in time-compliance for receipting of all form types as of May 10, 2007
Texas Service Center
USCIS is currently providing in time-compliance for receipting of all form types as of May 10, 2007.
Vermont Service Center
USCIS expects to provide in time-compliance for receipting of all form types by June 2, 2007.
USCIS reminds the public that it may take additional time for a Service Center to complete fee receipting and data entry of an application or petition received and for the receiving Center to mail the appropriate receipt notice. USCIS recommends that persons who have filed a petition or application with USCIS wait at least thirty days from the applicable receipt processing timeframe noted above, before contacting USCIS with inquiries about form receipting. If a response is not received from USCIS within thirty days of the dates listed above, please check the USCIS website at www.uscis.gov or call USCIS customer service at 1-800-375-5283 for updated processing information.
USCIS REACHES H-1B EXEMPTION CAP FOR FISCAL YEAR 2008 & AILA UPDATE
USCIS REACHES H-1B EXEMPTION CAP FOR FISCAL YEAR 2008
AILA: Was the master’s cap random lottery, for cases received on 4/30/07, already conducted? We are getting questions from members whose cases were received on 4/30/07 and who received receipt notices dated 5/2/07. Does that mean they made the lottery, or, is this going to be handled like the regular lottery in that receipts between 5/1/07 and the day of the lottery are just informational? Members are also reporting receiving approvals (under premium processing) for cases filed on 4/30/07 so we would like to confirm that they are valid.
SCOPS: Yes, the random number generator (RNG) has been run for H-1B Master’s cap-exempt cases received on 4/30/07. Only cases received on 04/30/07, the final cut-off date for this particular grouping, were subject to the RNG. These cases have been subsequently sent to the “floor” for adjudication and as you note, some have already been approved with notices sent to the appropriate parties. These are legitimate approvals. Cases received on 5/1/07 or later will be rejected and fees will be returned. If a case was received on 5/01/07 or later and was data entered, it will be rejected as well and the fee will be refunded to the petitioner or his or her attorney of record.
AILA – USCIS Service Center Operations H-1B Processing Q & A 5/2/07
VIA AILA
1. Please confirm whether or not all of the receipt notices for cap cases have been sent out. If not, when does USCIS anticipate that they will all be sent?
A: USCIS has previously indicated May 11th as the completion date for this effort.
2. Hypo – Petitioner files a case under the bachelors cap on 4-2. On 4-10, beneficiary completes his master’s degree and Petitioner files a case under the Masters cap. On 4-13, bachelors cap case is picked for the random lottery and later approved. Masters cap case is also approved.
If Petitioner now wants to revoke one of the petitions, it is better to send in the revocation notice on the bachelors or the masters cap case?
A: It does not matter from the beneficiary’s perspective. Once he or she has earned the Master’s degree he or she will always be exempt unless the law changes so there are no future cap issues as there might be with other exemptions-for example an alien who is exempt due to employment “at” a cap-exempt facility who moves away from that employment would likely require a cap spot in the future. It does not matter from the petitioner’s perspective as its obligations are the same regardless of whether the beneficiary is cap-exempt or not. It also does not matter from a cap conservation perspective as USCIS has previously indicated that it does not allocate cap slots on a per-slot, unique basis in the way immigrant visa slots are allocated. Situations such as these involving withdrawals, denials, etc. are already accounted for in USCIS’ estimated target number of petitions needed to reach the cap and withdrawal of a single cap-subject approval will not restore that individual slot to the cap pool.
Current Cap Count for H-1B Advanced Degree Cap Fiscal Year 2008 (as of April 30, 2007)
| Cap | Beneficiaries Approved | Beneficiaries Pending Petitions Receipted | Beneficiaries Pending Petitions yet to be Receipted | Total | Date of Last Count |
H-1B (FY 08) | 58,200 1 | —— | —— | —— | Cap Reached | 4/2/2007 |
H-1B Advanced Degree Exemption (FY 08) | 20,000 | 9,078 | 10,787 | 22 | 19,887 | 4/30/2007 |
The U.S. Immigration Law Blog by Ashwin Sharma 
NASSCOM Statement on the H-1B Program