Gregory W. Christian Acting Director, USCIS Nebraska Service Center, answers the American Immigration Lawyers Association’s Questions about PERM, I-129, I-130, I-131, I-140, I-485, I-765, TN and H-1B applications
March 9, 2006
The following are questions supplied prior to the March 9, 2006 AILA Northwest Regional Immigration Law Conference and the NSC’s answers.
1. If an H-1B petitioner asks for a
certain period of time (based on the “recapture” of time outside the
country) but the Service did not see the evidence or felt that the
evidence of “recapture-able” time was insufficient, should it have
issued an RFE or just issued the approval for the period of time it
felt was demonstrated by the evidence (i.e., without issuing an RFE).
Of course, this could be generalized to other issues, too.
A:
In accordance with the HQ policy memo we do not RFE on recapture
issues. The burden is on the petitioner to provide clear evidence to
support any assertions made. If the petition is otherwise approvable,
an approval will be issued for the period of time demonstrated by the
evidence submitted.
2.
The I-140 form has a place for CIS itself to check Schedule A, Group
II, but there is no place for the petitioner to check that box, so
which box is the petitioner to check for these cases? There is a
“members of the professions/exceptional ability” box, but that
“exceptional ability” is different from Schedule A, Group II
“exceptional ability.”
A: In the situation where the
applicant is applying under schedule A it is recommended that a cover
letter be submitted with the I140 indicating that a schedule A
occupation is requested.
3.
The Yates Memo on “ability to pay” seems to indicate that the three
scenarios listed are meant to be obviously approvable cases (i.e., so
obvious that not even an RFE should be issued), but the NSC seems to
treat these as the only tests capable of proving ability to pay. That
is, NSC appears to insist on denying the I-140 if the petitioner does
not meet one of the tests, but the wording of the memo seems to
indicate only that those scenarios are completely obvious and don’t
warrant an RFE. For example, we had a case in which the denial included
a CIS-created table showing that the company’s bank statements
reflected monthly cash balances of more than $90,000 for a position
with a proffered salary of only $45,000, and the alien was being paid
about $44,000 at the time of I-140 filing.
A: On Page
3 of the same memorandum, it was explained that if required initial
evidence has been submitted but fails to establish ability to pay,
USCIS adjudicators are not required to accept, request, or RFE for
additional financial evidence. If additional financial evidence is
submitted but does not clearly establish the petitioner’s ability to
pay, the USCIS adjudicator may deny the petition and not RFE for
additional evidence to further clarify the discretionary evidence that
was accepted.
4. What exactly is the third-prong test in national interest waiver cases?
A: For purposes of submitting and reviewing evidence, Service guidance regarding the final threshold in Matter of New York State Dept. of Transportation, 22 I&N 215 (Comm. 1998) is:
“…The Service here does not seek a quantified threshold of experience
or education, but rather a past history of demonstrable achievement
with some degree of influence on the field as a whole.” 22 I&N at
219, note 6.
“Because, by statute, “exceptional ability” is not by itself sufficient
cause for a national interest waiver, the benefit which the alien
presents to his or her field of endeavor must greatly exceed the
“achievements and significant contributions” contemplated in the
regulation at 8 C.F.R. § 204.5(k)(3)(ii)(F).” 22 I&N at 218.
(8 C.F.R. § 204.5(k)(3)(ii)(F) defines one of the criteria used to
demonstrate “exceptional ability”: “Evidence of recognition for
achievements and significant contributions to the industry or field by
peers, governmental entities, or professional or business
organizations.”)
Accordingly, petitioners seeking the national interest waiver should
present documentary evidence relating to achievement, influence in the
field and, if applicable, evidence of recognition as set out in 8
C.F.R. § 204.5(k)(3)(ii)(F).
5.
The Service Center says one thing, but the AAO always says something
else. For example, in national interest waiver cases, some CIS
examiners have denied cases stating that the beneficiary did not prove
that the national interest would be “adversely affected” if a labor
certification were required, but the AAO never uses that language in
its opinions.
A: The precedent decision states, “The
petitioner seeking the waiver must persuasively demonstrate that the
national interest would be adversely affected if a labor certification
were required for the alien.” 22 I&N at 217. Probably for that
reason many petitioners seeking the waiver assert the national interest
would be adversely affected if the waiver were not granted. When a
petition is approved it is because the evidence is persuasive on this
point. If a petition is denied, the adjudicator would normally be
correct in addressing the point, both because it was argued by the
petitioner and because it was used by the AAO in the precedent
decision.
6.
Some examiners imply that if the person has H-1B status, he or she is
eligible for ongoing research anyway, and therefore the national
interest would not be “adversely affected” by requiring a labor
certification instead. This kind of analysis, however, appears nowhere
in AAO opinions. In addition, the same statements could be made about a
Nobel Prize winner in H-1B status – i.e., the national interest would
not be “adversely affected” by requiring a labor certification, because
the Nobel Prize winner could continue on in H-1B status, too.
A:
If the evidence presents “a history of demonstrable achievement with a
degree of influence on the field as whole,” and assuming the underlying
visa requirements and prongs one and two are also satisfied, the waiver
is warranted regardless of the alien’s nonimmigrant status.
From
time to time, researcher petitioners assert labor certification is
inappropriate or unavailable, and from there contend the national
interest would be adversely affected if the immigrant petition is not
approved. In the precedent decision, the Service determined that
“inapplicability or unavailability of a labor certification cannot be
viewed as sufficient cause for a national interest waiver,” even for
“certain occupations wherein individuals are essentially self-employed,
and thus would have no U.S. employer to apply for a labor
certification.” 22 I&N at 218, note 3.
Because
researchers typically have university or laboratory employers, an
adjudicator would not be in error if s/he were not to give the
assertion significant weight. Also, it would not be incorrect for an
adjudicator to address the claim by noting there is no automatic bar to
the alien’s services (whether by way of labor certification, extension
of any current H-1B status, or potential change to H-1B or J
nonimmigrant status). Contrary to the claim presented in the question,
this analysis also appears in AAO decisions.
7.
Please ask them to explain the relationship among EB-1A, EB-1B, and
NIW. It seems that NSC does not recognize the great difference between
EB-1A and NIW.
A: Each benefit is to be adjudicated
under its own statute, regulation and case law. To illustrate, for
petitions seeking alien of extraordinary ability classification,
adjudicators should refer to Matter of Price, 20 I&N 953
(Assoc. Comm. Exams 1994)(reaffirming “Congress’ intent to reserve this
category to ‘that small percentage of individuals who have risen to the
very top of their field of endeavor’”) and Matter of Chawathe (USCIS
Adopted Decision January 11, 2006) note 6 (reaffirming that “that
specific objective evidence be submitted to demonstrate eligibility”),
whereas in petitions involving a request for the national interest
waiver, adjudicators should rely on Matter of New York State Dept. of Transportation, 22 I&N 215 (Comm. 1998).
8. Please verify again when duplicate petitions are required on I-129 petitions.
A:
Whenever an alien will be applying at a consulate or POE and we need to
send a duplicate copy. As a courtesy, we would appreciate being sent a
duplicate of the actual petition and supplement in all cases, but
duplicate copies the supporting evidence are not needed. In the event
classification is approved but the COS or EOS request is denied, we
would need to send a copy abroad.
9.
When there are a number of attorneys in a firm, must the G-28 be signed
by all attorneys or only the one filing the case? As long as the firm
name is mentioned, can all attorneys at the firm discuss the case? Can
the signature of the attorney be a copy or must it be original.
A:
The attorney signing the G-28 is the attorney with whom we correspond.
The applicant or petitioner signature must be original. We will accept
a rubber stamp or mechanically produced signature for the attorney.
10. If an I-130 IR is received in your office, is it immediately transferred to California?
A: Yes.
11.
Why, when the primary beneficiary files the I-140/I-485 concurrently
and the spouse enters at a later date and his/her I-485 is interfiled,
does CIS transfer the case to the local district office? The local
office has no idea why it is being done and all the information NSC
needs for the determination, such as a marriage certificate and the
person’s passport and birth certificate is submitted with the
interfiled case.
A: The NSC does not summarily
relocate EB485 cases as indicated in the above scenario. The NSC
generally relocates EB485 cases on a case-by-case basis applying the
national EB485 SOP standards. Some of the case considerations outlined
in the national SOP are:
- A need for validation of identity;
- A need for validation of legal status;
- Questionable admissibility and /or qualifications;
- Apparent fraud;
- A second filing;
- An applicant with fingerprint results rejected twice;
- An applicant medical condition class A or B;
- The A-file cannot be located at the time of adjudication
An officer may choose to modify the interview-waiver criteria based
upon articulable case aspects, in response to developing local
circumstances, or regional concerns. Cases that involve recent
marriages may be one of the areas in which NSC adjudicators may deviate
from the interview waiver criteria; however, these assessments are made
on a case-by-case basis, based upon the individual case’s facts and the
evidence of record.
12.
Our office filed a TN application at the NSC requesting notification of
the approval be sent to the consulate (aka: loose TN). Our client was
then going to present the TN approval notice at the port of entry
instead of having the TN adjudicated at the border. In December 2005,
our office received a denial of the Nonimmigrant Worker Petition and
the NSC denial letter cited Title 8, Code of Federal Regulations,
Section 214.6(e) and have quoted the pertinent section to read as
follows:
Application for admission. A citizen of
Canada seeking admission under this section shall make application for
admission with an immigration officer at a United States Class A port
of entry, at a United States airport handling international traffic, or
at a United States pre-clearance/pre-flight station. No prior petition,
labor certification, or prior approval shall be required ……
However,
Section 214.6(e) does not state the above referenced language, nor
could we locate any other section under 214.6 that reflects the above
cited language. It remains unclear to us whether our petition was
denied in error, or whether it reflects a change in the Service
Center’s policy with regards to adjudications of TN petitions requiring
consular notification. As this is a very significant deviation from
prior practice and therefore of significant concern to our client, we
request that NSC provide clarification as to the basis for this denial.
Thank you.
The regulation quoted in the
denial you received was taken from an old copy of the 8 CFR and is no
longer in that format in the current regulations. However, the
regulation is still in effect. The NSC has jurisdiction to adjudicate
extensions of TN status and changes to TN status from another valid
nonimmigrant status. We do not have jurisdiction or authority to
adjudicate a petition for initial TN status. Application for initial
admission in TN status must be made at a US Class A port-of-entry, a US
airport handling international traffic, or a US
pre-clearance/pre-flight station. Based upon the information provided,
the petition in question was for new employment for a person currently
outside the US. The NSC does not now, and has not previously, processed
any TN petitions for Canadian Citizens who are not already in the US in
a valid nonimmigrant status.
13.
What is the criteria and procedure for requesting an expedited re-entry
permit application? In the past, NSC has accepted and approved expedite
requests but we would like to know the current criteria/procedure as
well as the timeframe for the expedite.
A: I-131
expedite requests are handled in one of two ways. You may request the
expedite at the time of filing. Clearly and boldly mark the case as
“expedite requested” and attach a reason for the request. Simply asking
for an expedite without giving an explanation will not result in the
case being expedited. Expedite criteria include severe financial loss,
extreme emergent situations, humanitarian situations, Service error,
compelling interest of the Service, a request originating from a U.S.
Government entity, or a request originating from a non-profit
organization in furtherance of the cultural and social interest of the
United States.
You may
also request that an already-filed application be expedited. You may
submit such a request by mail, clearly and boldly marking the
correspondence as an expedite request and giving a reason. As an
alternative, you may FAX the request to 402-219-6170 or 402-219-6171.
Again, clearly request an expedite and give a reason for it.
For
I-131s that are expedited, the turn-around time is 7 to 14 days if no
additional information is needed. It is very important to submit a complete application
at filing with passport-style photos (non-digital), proof of status,
proof of identity (facial features should be clearly recognizable), and
the appropriate filing fee. If requesting delivery of the travel
document by UPS, FedEx or other service, include a prepaid,
preaddressed mailer.
You can request
expeditious handling for other form types in the same manner unless the
petition is eligible for premium processing.
14.
How do the Service Centers handle rider I-765 petitions for spouses of
Ls. There are liaison notes suggesting it is preferred that these be
filed this way, presumably because of the relationship of the petitions
(that is, if the L renewal is denied, so is the I-539 and I-765).
However, I’ve had mixed experiences doing this. E.g. Recently I filed
with California this way and the EAD petition was first returned to me,
then accepted but forwarded to Nebraska.
A: We have
found it most efficient to have the I-765 filed with the I-129 and
I-539 so all can be adjudicated together. The example you reference
refers to an application filed with the CSC – we cannot comment on the
practices in place at that office.
15. Is the I-140 line of the NSC acknowledging the Grace Church case
(Nov. 2005 Fed. Dist. Ct., Portland, OR) as persuasive for EB(3)
equivalency cases? The case says that the USCIS must consider the
qualifications of the foreign national under both professional and
skilled worker and also that the employer and DOL have more authority
in interpreting what is equivalent in terms of degree equivalency as
stated on a labor certification application. The appeal filed by the
Service in this case has been dismissed.
A: We do
consider applicants under both the professional and skilled worker
categories. What happens most often is that the labor certification
specifies that the alien must have a bachelor’s degree or “equivalent.”
Equivalent is interpreted to mean a single foreign degree that is
equivalent to a US bachelor’s degree. If the beneficiary does not meet
the degree requirement as outlined in the labor certification form, the
petition is not approvable as either professional or skilled worker.
This is because the alien does not meet the minimum qualifications as
stated in the labor certification, i.e., a bachelor’s degree. If the
labor certification stated the requirement of a bachelor’s degree, but
also stated in block 15 that the employer would be willing to accept
certain training, experience, and/or education in lieu of the
bachelor’s degree requirement, it could potentially support a petition
for a skilled worker.
With
regard to the Grace Church decision, the NSC is not following the
finding by the court. In essence, in concluding that USCIS has no role
in interpreting the requirements listed on the labor certification in
the visa approval process, the court in this decision held that DOL,
not USCIS, makes the final determination of whether a beneficiary’s
qualifications meet the requirements of the labor certification. This
is contrary to 8 U.S.C. 1154(b) and to precedent 9th Circuit case law.
See K.R.K Irvine, Inc. v. Landon, 699 F.2d 1006 (9th Cir. 1983); Tongatapu Woodcraft Hawaii, Ltd. v. Feldman, 736 F.2d 1305 (9th Cir. 1984); Black Const. Corp. v. I.N.S.,
746 F.2d 503 (9th Cir. (Guam)1984). In these cases, the Circuit Court
states that INS [USCIS] is the final authority on that issue. Implicit
in determining whether an alien meets the requirements, is determining
what those requirements are.
16.
Beginning April 1, 2006, when we begin filing H-1B Petitions for a
start date of 10/01, will the numbers be reserved upon receipt of the
petition, or when it is adjudicated.
A: Guidelines and instructions for FY07 cap cases will be issued by headquarters.
17.
If we have cases that are unadjudicated 30 days or more after you
receive our response to RFE, what can we do to obtain a decision?
A:
Please use normal inquiry channels on cases of this nature, that is,
contact the National Customer Service Center. Be sure to tell the
customer service rep that 30 days have expired since the Center
received the RFE response. The NCSC practice is to refer the inquiry to
us.
18.
If all evidence presented, including the cover letter, with a petition
reveals that a box was incorrectly checked on the I-129, [e.g. all
evidence supports an extension of stay for a successive petition, but
the notify consulate box is accidentally checked] it would be
appreciated if your examiner would telephone the attorney to clarify,
rather than err in the adjudication, due to one erroneously-checked box.
A:
The form is the guiding document guiding document. It would not be an
officer error to adjudicate an I-129 based on what the petitioner and
counsel marked on the I-129. That said, however, the NSC does encourage
officers to seek clarification if everything in the file appears to
belie what is checked on the form. The NSC encourages practitioners to
supply their e-mail addresses with their filings to facilitate this
contact.
19.
If all evidence presented reveals an attorney is representing the
petitioner, including signature of the cover letter on letterhead
paper, on the filing fee check, signature on the petition papers, etc,
but the G-28 is inadvertently unsigned in the attorney box, could you
examiner please call the attorney rather than ignoring the presence of
the attorney and sending correspondence to the petitioner.
A:
In the absence of a properly-executed G-28, we are required to
correspond with the applicant or petitioner. Per regulations at 8 CFR
103.2(a)(3) “where a notice of representation is submitted that is not
properly signed, the application or petition will be processed as if
the notice had not been submitted.”
20.
How do you want us to handle appeals/motions for reconsider under 8 CFR
§ 103.3 (a) (2) (iii) and § 103.5 (a) (8)? Is a particular form
required, or may we advise you in our letter that we wish for you to
first consider the matter as a reopening/reconsideration and then, an
appeal to the AAO? Is one filing fee sufficient for both?
A:
For appealable cases, an appeal must be submitted on an appeal form.
There is only one fee for an appeal. The appeal is treated as though it
were a motion to reopen/reconsider. Should the reviewing officer find
that the appeal overcomes the denial, he/she will reopen the case and
approve. If not, the appeal will be forwarded to the AAO.
21.
If an appeal is filed, does the same examiner who denied the case
review it again or does someone other examiner review it before
forwarding it to AAO?
A: Yes, the original deciding
officer reviews the appeal; however it is reviewed by a supervisor
before being sent to the AAO.
22.
My understanding is that the examiner can issue an RFE without
supervisory review, but cannot deny without supervisory review. Is that
true? Please explain. Thanks.
A: Regulation requires
supervisory review of most denials; however there is no such
requirement for RFEs. Supervisory review of RFEs would place an
unmanageable burden on the Center.
Sincerely,
Gregory W. Christian Acting Director
USCIS NOTIFIES EMPLOYERS OF FILING CHANGES
Press Office
U.S. Department of Homeland Security
March 24, 2006
News Release
USCIS NOTIFIES EMPLOYERS OF FILING CHANGES
Two Service Centers designated to receive all I-129s and I-140s
Washington, DC – U.S. Citizenship and Immigration Services (USCIS) today announced changes to the filing procedure for two popular employer-sponsored immigration forms. Starting on April 1st, employers filing a Petition for a Non-immigrant Worker (Form I-129) should mail that form directly to the Vermont Service Center. Also starting on April 1st, employers filing an Immigrant Petition for an Alien Worker (Form I-140) should mail that form directly to the Nebraska Service Center. Employers should file any accompanying forms at these same centralized locations.
These changes mark the first phase of the USCIS initiative to use centralized filing and bi-specialized adjudication. Through this effort, USCIS will align similar workloads between two “sister” service centers. After April 1st, the Vermont and California Service Centers will process all I-129s and related dependent applications. The Nebraska and Texas Service Centers will process all I-140s and related permanent residency applications. Pairing work between service centers will allow USCIS to better manage cases and improve customer service.
Customers will receive a receipt notice from the service center that will process their case. Applicants and petitioners should note that the filing location for the form type is not necessarily the Service Center that will decide the case. USCIS will continue to process cases received before April 1st using pre-existing procedures.
USCIS has previously instructed customers to file I-129 and I-140 petitions at one of its four service centers. Once the amended filing instructions take effect on April 1st, however, USCIS will not reject any I-129 or I-140 sent to the incorrect service center. Instead, USCIS will accept the filing, redirect it to the correct location, and honor the initial receipt date. The April 1st changes, establishing a new filing location for forms I-129, I-140 and related forms, do not affect other aspects of the forms’ instructions and do not change the forms themselves. USCIS will continue to honor previous versions of the forms.
More information about this change is available by calling USCIS National Customer Service Center (NCSC) toll-free at 1-800-375-5283, by visiting USCIS.gov or by viewing the fact sheet .
USCIS ISSUES H-1B FILING GUIDANCE
Press Office
U.S. Department of Homeland Security
Public Notice March 24, 2006
USCIS ISSUES H-1B FILING GUIDANCE
Employers may begin filing petitions for FY 2007 on April 1st Washington, D.C.– USCIS will begin accepting filings for the FY2007 H-1B cap on April 1, 2006. In anticipation of this event, USCIS is reminding the public of important regulatory requirements. H-1B petitioners should keep this emphasis in mind as they prepare petitions in order to avoid delays in processing and possible Requests For Evidence (RFE).
8 CFR 214.2(h)(2)(B) requires that petitioners provide a detailed itinerary of the dates and places where work will be performed if those services will be provided in more than one location. For example, a labor contractor or consultant who hires H-1B workers to work at client sites must provide in advance an itinerary with dates and places where the worker will perform that work.
In addition, 8 CFR 214.1(c)(4) requires that an applicant for extension of status have maintained his or her nonimmigrant status. In situations in which an H-1B worker is changing to an employer other than the one for which the initial H-1B petition was approved, USCIS will require that the worker changing employers demonstrate that he or she actually did perform work for the original petitioning employer for a significant length of time. In situations in which the H-1B worker is processing abroad, USCIS will work closely with the Department of State to ensure that this same level of integrity is applied to consular processed H-1Bs.
USCIS – On March 1, 2003, U.S Citizenship and Immigration Services became one of three legacy INS components to join the U.S. Department of Homeland Security. USCIS is charged with fundamentally transforming and improving the delivery of immigration and citizenship services, while enhancing the integrity of our nation’s security.
The FY2007 H-1B Season Is Upon Us – By Ashwin Sharma, Esq.
March 20, 2006
By Ashwin Sharma
The FY2007 H-1B visa quota opens Saturday April 1, 2006. There is no way to predict how long the quota will last with any degree of accuracy, therefore, it is adviseable to file petitions as soon as possible. Last year’s quota ran out Mid-August 2005 – it was expected by many to last until at least September or October 2005. Since the IT market is booming, it is expected that this year’s quota will run out faster than last year.
Employers can petition for H-1B nonimmigrant workers as early as six months prior to the employee’s anticipated start date. Therefore, if an employer wishes to have an employee start on October 1, 2006, the earliest date that the employer may file the petition with the USCIS is April 1, 2006.
This year I urge those of you who hold a US Masters degree or higher to file only for one of the 20,000 visas available for holders of advanced degrees. Ensure that your attorney has selected this exemption, and not the regular 65,000. This will obviously increase the number of visas for other applicants who only hold an undergraduate degree.
Some pointers to maximize your success of obtaining an H-1B this year:
-
File early.
-
Ensure that you have compiled all of the documentation that your employer or attorney has requested. Missing, incomplete, or unlegible supporting documentation will contribute to higher than normal processing delays due to the hectic filing period immediately following April 1, 2006. On a related note, confirm that your employer has also put together all necessary documentation. Following up with employers is crucial, especially those who are not familiar with the H-1B process.
-
Make legible copies of all documents. Always include photocopies of both sides of your SSN and I-94 (if applicable).
-
Again, if applicable, be sure to get your educational evaluations completed early.
-
Include documentation showing your valid status until at least October 1, 2006. If you are presently in H4 or other dependent status, obtain documentation showing that your spouse is in valid status until at least October 1, 2006.
-
Make certain that your job title matches your educational and/or work experience background. Consult the Occupational Outlook Handbook (OOH), 2006-07 Edition to investigate the correlation between your job title, job duties and skill sets with your qualifications.
-
Make sure that your employer is offering the prevailing wage for your job and job location.
-
Discuss any past visa denials with your attorney.
Click here to view our firm’s H-1B page, or call us at 904-779-0111 if you have any questions about H-1B processing.
Market Is Hot For High-Skilled In Silicon Valley
By PUI-WING TAM
February 28, 2006; Page B1
Five years after the dot-com bubble burst, job growth has returned to Silicon Valley. But it’s a different kind of growth than in past recoveries, favoring higher-skilled workers.
Netflix
Inc.’s hiring shifts are typical. During the tech boom, the online movie-rental service created 100 customer-service jobs near its Los Gatos, Calif., headquarters in the heart of Silicon Valley. After the tech bust in 2000, Netflix eliminated half of those positions. But the total headcount at Netflix’s Silicon Valley offices has grown 20%, to nearly 200 staffers in the last few years.
That’s because Netflix, while shedding some lower-end jobs, has aggressively created new, higher-level jobs. It’s adding jobs in departments such as Web engineering and product development: That groups’ hiring of engineers jumped 20% to more than 50 people in 2005 alone. “Our new engineers have an average of seven to 15 years experience,” says Patty McCord, Netflix’s chief talent officer. “Five years ago, we hired people with three to five years of experience.”
![[Turning Around]](https://i0.wp.com/online.wsj.com/public/resources/images/MK-AF854_VALLEY_20060227193308.gif)
Past tech recoveries tended to bring new lower-skilled jobs as well as high-skill jobs. This time, tech firms — from big companies like Hewlett-Packard Co. to mid- and small-size firms such as Netflix, Adobe Systems Inc., and SanDisk Corp. — have moved lower-skill jobs out of the Silicon Valley area to cheaper locations, or outsourced them to foreign countries. The new
jobs they are creating locally often require specialized skills in engineering and design. Young companies like Google Inc. are simply starting out hiring at the high end, further shifting the overall balance.
A study last month by Joint Venture Silicon Valley, a nonprofit group representing businesses and government agencies in the area, found the nation’s tech capital had a net increase in jobs in 2005 for the first time in four years. Most of the growth came in the category of creative and innovation services, including firms in research and development, scientific and technical consulting and industrial design. In total, the number of Silicon Valley jobs in these areas grew 4% from 2002 to 2005, reaching 72,734. At the same time, the number of jobs in electronic-component manufacturing — which tend to involve assembly and other repetitive tasks — dropped 28% to 23,772, while jobs in semiconductor-equipment manufacturing fell 23% to 58,133. Overall, 14% of all the jobs in Silicon Valley today
belong to a sector called core design, engineering and science. That exceeds the comparable 9.3% slice of the work force in Austin, Texas; 8.7% in Seattle; and 8.3% in San Diego, according to the study.
Bill Gates is for big raise in H-1B visas
S Rajagopalan
Washington, March 21, 2006
VIA http://www.hindustantimes.com
Flying into Washington DC on a rare visit, Microsoft chief Bill
Gates has added his powerful voice to the demand that US Congress clear
the decks for a hefty increase in the number of H-1B visas.
Gates,
faced with the shortage of Indian and other foreign techies, decided to
come down to the US capital and personally lobby for an end to visa
woes that have affected the operations of Microsoft and other US giants.
The
visit came amid moves to come up with a legislation in the Senate to
raise the H-1B cap from 65,000 visas a year to 115,000, with a built-in
provision for 20% increase every year. “The high skills immigration
issue is by far the No. 1 thing. This is gigantic for us,” the world’s
richest man told the Washington Post and pointed to the irony
of Indian techies having to go back after doing advanced computer
courses in the US because of the visa shortage.
“It’s kind of
ironic to have somebody graduate from Stanford Computer Science
Department and there’s not enough H1B visas, so they have to go back to
India,” he said, adding: “And I have people who have been hired, who
are just sitting on the border waiting.”
Beginning fiscal 2004,
the H-1B visas are down to 65,000 from a peak of 195,000 allowed for
the preceding three years. The drop is so precipitous that the whole
H-1B quota is now exhausted well before the start of the fiscal year.
Gates
grumbled that he has a hard time understanding the logic of those who
decry the outsourcing of American jobs, but are still reluctant to the
entry of high-skilled people who are catalysts for US growth.
Alongside
the move to raise the H-1B cap, Gates backs the Bush administration’s
plan to boost the teaching of math and science in US high schools as
part of the long-term goal to expand the supply of qualified Americans
for tech jobs.
Immigration bill would add visas for tech workers
Via The San Fransisco Chronical
Friday, March 10, 2006
Buried in the Senate’s giant immigration bill — hardly noticed amid a fierce
debate over a guest-worker program for unskilled laborers — are provisions that
would open the country’s doors to highly skilled immigrants for science, math,
technology and engineering jobs.
The provisions were sought by Silicon Valley tech companies and enjoy
significant bipartisan support amid concern that the United States might lose
its lead in technology. They would broaden avenues to legal immigration for
foreign tech workers and would put those with advanced degrees on an automatic
path to permanent residence should they want it.
The measures include nearly doubling the number of H-1B skilled-worker
temporary visas to 115,000 — with an option of raising the cap 20 percent more
each year. H-1B visas were highly controversial in the Bay Area when their
numbers reached a peak of 195,000 in 2003.
Congress had increased the visas during the late 1990s dot-com boom, when
Silicon Valley complained of tech-worker shortages, although native-born
engineers complained that their wages were undermined by cheap labor from India
and China.
With the tech crash and the revelation that some of the Sept. 11, 2001,
hijackers had entered the country on student visas, the political climate for
foreign workers darkened, and Congress quietly allowed the number of H-1B visas
to plummet back to 65,000 a year.
The cap was reached in August — in effect turning off the tap of the visas
for 14 months. A special exemption of 20,000 visas for workers with advanced
degrees was reached in January.
“We’re in a bad crunch right now,” said Laura Reiff, head of the Essential
Worker Immigration Coalition, a business umbrella group backing more
immigration. “We are totally jammed on immigrant visas, the green card category,
and totally jammed on H-1B visas. You can’t bring in tech workers right now.”
Alarm in Washington has shifted from student hijackers to U.S.
competitiveness. Indian and Chinese students face brighter prospects in their
own booming economies, and the fear now is that they no longer want to come to
the United States.
The new skilled immigration measures are part of a controversial 300-page
bill by Senate Judiciary Committee Chairman Arlen Specter, R-Pa., now being
rewritten by the committee with the goal of reaching the Senate floor by the end
of the month.
Other provisions include a new F-4 visa category for students pursuing
advanced degrees in science, technology, engineering or mathematics. These
students would be granted permanent residence if they find a job in their field
and pay a $1,000 fee toward scholarships and training of U.S. workers.
Labor certification rules also would be streamlined for foreigners holding
the desired advanced degrees from a U.S. university. Immigrants with advanced
degrees in the desired fields, as well as those of “extraordinary ability” and
“outstanding professors and researchers,” would also get an exemption from the
cap on employment-based green cards and slots for permanent residence.
“The U.S. is educating these people,” said Kara Calvert, director of
government relations for the Information Technology Industry Council, a tech
industry group. “This allows these students to remain in the U.S. and contribute
to the U.S. economy.”
The provisions for highly skilled workers enjoy support in both parties in
the Senate and in the Bush administration after a raft of high-profile studies
have warned that the United States is not producing enough math and science
students and is in danger of losing its global edge in innovation to India and
China.
Sun Microsystems CEO Scott McNealy echoed many in the tech industry at a
conference in Washington on Wednesday when he warned that if skilled immigration
is not expanded, “There will be a great sucking sound of innovation out of the
U.S.”
Silicon Valley venture capitalist John Doerr suggested at a technology summit
last fall that the United States “should staple a green card to every kid, every
foreign national that graduates with a degree in engineering and science, so
that they stay here. Imagine innovation in America without Andy Grove, without
Jerry Yang, without Sergey Brin — Hungarian, Chinese, Russian. These immigrants
have contributed enormously to innovation and our well-being.”
But House Republicans are cool toward any increase in legal immigration,
including skilled workers, and are at sharp odds with the White House. They
passed a bill in December to crack down on border enforcement, calling for
construction of a 700-mile fence on the border with Mexico.
House Republicans omitted skilled immigration from their “Innovation and
Competitiveness Act,” released with much pomp last week, prompting House
Minority Leader Nancy Pelosi, D-San Francisco, to blast the proposal as doing
nothing “to ensure that the best and brightest from around the world are able to
contribute to innovation in the United States.”
The H4 virus
Via IndianExpress.com
Three weeks to find a partner, 45 days to get rid of
her. When it comes to shotgun IT/NRI weddings, the numbers don’t add up
anymore, says
IT was a grand
ceremony. Sindhu Rajagopal was as excited about marrying a software
professional as her Thanjavur-based parents. The groom, Kamesh Kannan,
was the ideal package—a Silicon Valley-based consultant, and an IIT
graduate with a master’s degree from an American university. In five
years, Kamesh had started a consultancy firm that had nine branches
across the US and one in Chennai.
Having
gone to Virginia with her husband (an H1B visa-holder) on a dependant
H4 visa, Sindhu’s American dream soon began to sour. She did little
except cook, clean and later, look after her daughter. Her weekends
were equally tedious.
A fortnight ago,
after five years of marriage, 30-year-old Sindhu arrived in Chennai.
Kannan’s parents took possession of her visa and she now lives with her
parents. Back in Virginia, Kannan has initiated divorce proceedings.
Once Sindhu signs the legal notice, Kannan will have his divorce decree
in just 45 days.
This
is not an unusual story, or the stuff of low-budget, desi crossover
films. Speedy arranged marriages between NRI men and India-based women
are becoming more short-lived than ever before. In NRI lingo, they’re
known as ‘21-day weddings’—so called because everything takes place
within the groom’s three-week holiday. The first week, the prospective
boy and girl are introduced, they get to know each other the week
after, and the wedding takes place in the third. No space for any
intensive digging.
The
result: ‘‘There is an alarming rise in divorces among US-based IT
professionals,’’ says Menaka Rajendran, a lawyer with Smith White
Sharma & Halpern, a US-based immigration law firm. Rajendran, head
of the company’s Chennai office, claims more than 50 per cent of 21-day
marriages solemnized in Punjab, Gujarat, Tamil Nadu, Andhra Pradesh and
Kerala over the last three years have broken down, some within a week.
More than 50 per cent of 21-day marriages solemnized in Punjab, Gujarat, Tamil Nadu, Andhra Pradesh and Kerala over the last three years have broken down, some within a week |
Every
year, 65,000 (the prescribed quota for India) H1B visa holders leave
for the US. Of this, more than 40 per cent are software professionals.
Rajendran says her Chennai office gets at least one call a day from
US-based IT professionals’ wives. After opening its Chennai office in
1999, the law firm recently set up branches in Mumbai and Ahmedabad
after receiving numerous calls from these cities.
‘‘According
to US Immigration Laws, H4 dependant-visa holders are not eligible for
a social security number. Without that, these women cannot even open a
bank account, let alone get a driver’s licence or work permit,’’ says
Rajendran. According to US laws, divorce proceedings are quick and
after a divorce comes through, there’s little any law firm can do. Due
to a backlog of cases, judges in US courts (district counties, as they
are called) have no time to even check the veracity of the signatures
of the women on divorce petitions.
‘‘Few
women even know that their H4 visa could be converted to H1 in just 90
days. They can look for a job, start working and be more independent
and mobile,’’ says Rajendran. Most of the women who are back in India
believe they could never have worked in the US.
Lately,
Smith White Sharma & Halpern has taken to organising programmes
across the country to educate prospective brides. ‘‘We found that the
Russian and Japanese consulates have counsellors who guide first-time
travellers and find out their future status. But the US consulate here
and the Indian embassy in the US don’t provide counselling sessions to
visa applicants,’’ says K Aishwarya, a second-year MA student of the
MOP Vaishnov College for Women in Chennai, who recently organised a
two-day awareness programme in her college. ‘‘We have heard of so many
marriages of our friends and their friends breaking up. It is a typical
scenario now,’’ she says. The college also launched an intensive media
campaign to publicise the issue in local Tamil magazines and television
channels.
Thirty-two-year-old
Nisha Kapoor from Haryana was married to Manish Kapoor, an
Atlanta-based accountant, but she never managed to get to the US. Even
after the birth of their two children, her husband came up with various
reasons to dissuade her and her parents from visiting him. Since they
had not registered the marriage in India, legally they were unmarried.
After seven years, Nisha, a BSc graduate, found herself divorced.
Worse, she lost custody of her older daughter. Nisha had willingly
signed the papers for ‘dissolution of marriage’ under the ‘mutual
consent’ slot, without even reading them.
In
some cases, the woman takes the call. Twenty-three-year-old Vani Reddy,
the daughter of a wealthy businessman in Hyderabad, walked out on her
husband and flew down from the US a week after their marriage because
‘‘she was disgusted with his lifestyle’’. Her husband is waiting for
his easy, 45-day divorce to come through.
| A study conducted in six popular women’s colleges in Chennai found that while 92 per cent of the students would love a US-based husband, only three students knew about the dependant visa status and its consequences |
As
parents frantically hunt for IT/NRI grooms, young women continue to
fall into the H4 trap. ‘‘In a study we conducted in six popular women’s
colleges in Chennai, we found that while 92 per cent of the students
said they wanted arranged marriages and would love a US-settled
husband, only three students knew about the dependant visa status and
its consequences,’’ says Aishwarya.
In
the late ’90s, Georgia-based lawyer Paddy Sharma converted her house in
Atlanta into an asylum for divorced women of South Asian descent called
Raksha. Now she has a difficult time coping with calls pouring in from
the US and India. ‘‘Every single day, I get calls. I cannot believe
there are so many women all over the US who are ignorant about their
status as immigrants in this country,’’ she says.
Back
in India, Sindhu visits her lawyer, urging her to stop Kannan from
going ahead with the divorce proceedings. Nisha is almost on the verge
of getting custody of her son after fighting legal battles for almost
two years. Meanwhile, many prospective brides are waiting have their go
at a 21-day wedding.
(Some of the names have been changed on request)
Business owner voices concerns over immigration law hurdles
By Patricia Zapor
Via The-Tidings.com
Though she’s an immigrant
herself, Carmen Larsen took a long time to come around to the idea of
hiring immigrants for her own company.
But having turned that corner eight years ago, Larsen understands the
advantages and complications of hiring immigrants. She also has
developed strong feelings about the problems with the current
immigration system, as well as some clear ideas about how it ought to
be changed.
As a board member of the Hispanic Chamber of Commerce of Montgomery
County, Md., Larsen is among the nation’s business owners who are
encouraging Congress to adopt immigration legislation that addresses
more than just enforcement problems.
An enforcement-only bill passed in the House in December has been
broadly criticized by the U.S. Chamber of Commerce, its Hispanic
counterpart, immigrant advocacy groups, labor unions and religious
institutions, including the U.S. Conference of Catholic Bishops. Those
organizations are lobbying for legislation that also would address
systemic problems with legal immigration and provide a way for illegal
immigrants currently in the country to regularize their status.
For Larsen, it was one person’s story that started to bring a whole range of immigration-related complications into perspective.
As the owner of AQUAS (Automated Quality Applications and Systems), a
small Internet technology and management consulting company in Chevy
Chase, Md., Larsen assumed that the costs and paperwork necessary to
hire skilled workers from outside the United States would be far more
trouble than it was worth.
“I used to say you had to be a permanent resident or a citizen,” she said. “It was just simpler.”
Born in Italy to Ecuadorean parents who were part of the diplomatic corps, Larsen came to the United States with them at age 16.
Having attended American schools abroad, she said, she never really thought of herself as anything but an American.
“I was an American long before I got here,” she said. She graduated
from Georgetown University in 1973 and became a U.S. citizen not long
after marrying an American when she was in her early 20s.
So, in running her business, Larsen didn’t feel any particular empathy
for people whose immigrant stories were dramatically different from her
own.
Then, a Russian who had been an unpaid intern for AQUAS asked Larsen to
sponsor his application for a visa that would allow him to return to
work there.
He had been an asset as an intern and Larsen was pleased at the
prospect of getting him back. He even offered to take care of the
paperwork himself and to delay his own salary to offset the extra
expense to the company of paying immigration processing fees, she said.
“As it turned out, I really didn’t have to do much,” she explained, and
the Russian man became a valued employee. Since then Larsen has
continued to hire immigrants for her staff of about 24.
She has learned a lot about what employers and immigrants go through to
meet the requirements for working legally in the United States. To
start with, paperwork and related fees to obtain an H1B visa, the
category for skilled workers, each cost her company between $3,600 and
$4,000, she said. Although few stay in the country long enough to
collect on Social Security, and they are ineligible for unemployment
compensation, employers must pay into both systems for H1B workers.
Larsen ticked off other problems:
—Employers of people with H1B visas are required to pay them at least
the rate set by the U.S. Labor Department, no matter what the
prevailing wage is for that job.
“That tends to be much higher than we would ever pay someone in the
current market,” Larsen said. Yet, when her company gets U.S.
government contracts, the maximum wage payable to workers fulfilling
those contracts also is set — at a rate lower than what the Labor
Department requires her to pay them.
“I get contracts from the federal government that would never pay the wages they require me to pay,” she said.
—The foreign-citizen spouses and children of workers with H1B visas
are allowed to join them in the United States, but they are not allowed
to hold jobs here. With a business based in one of the most costly
residential areas in the country, “we know that in this area a family
needs two incomes,” she said. So when an H1B employee brings a family,
“we have people living in substandard conditions because there is no
second income,” she added.
—Even getting a driver’s license for a legal immigrant is
complicated. Larsen learned that in Maryland, an H1B visa holder must
make an appointment with a particular office of the Motor Vehicle
Administration. A staff member of that office interviews the applicant
and reviews extra documents to make sure he or she is eligible to apply
for a license. Although the state has no role in enforcing immigration
laws, Larsen and her employee encountered an attitude of suspicion at
the Motor Vehicle Administration that the immigrant was trying to get
away with something illegal, she said.
“Are we encouraging people to come in without documents?” Larsen asked.
“I think we are.” She said she understands and accepts that there
should be extra requirements for immigrants to get permission to work.
But she believes some laws — such as the prohibition on spouses of
H1B visa holders getting jobs — serve little practical purpose and
only encourage people to do things illegally to survive.
“Business owners tend to want to do things the right way,” Larsen said.
“We don’t want to deal with undocumented workers. It’s bad for
business.”
But in the United States, she said, “the reality is we’ve set up a
system that encourages people to come in illegally” because doing
things the legal way is prohibitively difficult.
She told of being approached by a man who had obtained legal residency
under an amnesty program years ago. One condition of his visa requires
him to keep working. He had lost his job and needed an employer to
sponsor him in order to keep his visa. That sponsorship will cost the
new employer $5,000 in fees, a hefty price tag for a new, untested
employee.
In the meantime, to pay his bills, “he has to be one of those people working underground,” she said.
Larsen, who’s active in two Maryland Catholic parishes, said she was
only vaguely aware of the Justice for Immigrants awareness campaign
started last year by the U.S. Conference of Catholic Bishops. Though
the principles she voices echo those of the church in some ways, she
said her perspectives about immigration have come largely from her
experience as a business owner and from watching the changes around her.
For instance, she worries about the effects of having a whole community
of people in an underground economy who avoid all contact with the
government.
“It makes them more vulnerable to crime if they’re not going to be
forthcoming with the police for fear of being deported,” she said. “So
much is at stake.”
—CNS
Bush drops hints of relaxing H1B visa limit
An
inconspicuous banner outside the lane that led to the Indian School of
Business (ISB) seems to have caught the eye of US President George Bush.
“Would
you like to work in the US?” was what the banner asked. Well, Bush
seems to have answered that question during his interaction with a
select group of entrepreneurs at the ISB – an indication of relaxing
H1B visa rules was given.
At present, the cap on H1B visas is 65,000 for knowledge workers, and India Inc has been urging the US to relax the limit.
Sashi
Reddi, chief executive officer of AppLabs Technologies, said the issue
of H1B visas did come up during the informal interaction, and there was
an indication that the US was actively looking at relaxing the limit.
Reddi was among the 16 people selected to meet Bush.
Another
significant issue that came up during the discussion was about setting
up a US consulate in Hyderabad. According to an ISB spokesperson, the
response was, “An agreement has been reached but it’s Condoleeza Rice
who has to provide the funding.”
Questions on the Kyoto deal
were also asked and Bush is reported to have categorically stated that
he totally disagreed with it.
Apart from the above, however,
the sense one got from the people who interacted with Bush was that he
was very “informal in his communication, down-to-earth and casual as
the media was not around to take him on record.”
Rammohan Rao,
the dean of ISB, was visibly happy with the visit of the VVIP. “We were
happy to be short-listed for his visit and this will help us to attract
more international students and faculty to our school,” he added.
Incidentally,
US ambassador David Mulford had visited the ISB in January 2005.
Although nothing was stated about Bush’s likely visit to the ISB, it
seems that Mulford’s visit paved the way for ISB being shortlisted for
the high-profile visit.
The others who met Bush at the ISB
included Harsha Paruchuri, director of Pragati Offset Printers, Amar
Ohri, managing director (MD) of Ohri Group, Madhavi Vuppalapati,
chairperson of Prithvi Information Solutions, Anjali Patel, student at
ISB, Rajesh Mishra, MD of MESA Corporation, Seshavataram Manepalli,
executive director of Suryachakra Power Corporation, Sumanth Paturu, MD
of Icomm Tele, Nagarjun Valluripalli, CEO of Lanco Global Systems,
Siddharth Sanghi, vice-president of The Sanghi Group, Srinivas
Ventrapragada, CEO of Clintox Bio Services, Satish Reddy, MD of Dr
Reddy’s Laboratories, Teja Raju, MD of Maytas Infra, Salman Babukhan,
MD of Babukhan Constructions, Prachi Patodia, director of Knitters and
Shankar Prasad Madiraju, MD of SPC Biotech.
Infosys May Face Legal Trouble
Bangalore, Feb 17: Information available on the web
says that Infosys Technologies might face a possible class action suit
in California from a law firm for allegedly not paying overtime wages
to its employees who are working on H-1B visas there.
However, an Infosys spokesperson told ET, “We have read this report
and are currently examining the issue. Until we do so, we are not in a
position to discuss this matter.”
A class action is generally defined as a practical procedural device
in litigation for determining the rights of and remedies, if any, for
large numbers of people who have in common questions of law and fact.
The
law firm — United Employees Law Group, PC has alleged that it is
investigating claims against Infosys offices in California for
allegedly not paying overtime wages to ‘immigrant computer programmers’
ie, Indians working in the US on H-1B visas.
It has further said that if a California-based employee, whether a
US citizen or a foreign citizen holding a H-1B visa, works in computer
software and is not paid at least $47.81 per hour or the annual salary
equivalent of approximately $99,445, and works more than eight hours a
day or 40 hours a week, they may be entitled to overtime wages.
The law firm has further said, “If you are an employee of Infosys in
California and make less than $47.81 per hour and do not receive
overtime wages, you may qualify for damage or remedies.”
Employee files class action suite against Tata America
VIA INDIATIMES NEWS NETWORK
WEDNESDAY, FEBRUARY 15, 2006 02:23:52 PM
A
Nationwide Class Action Lawsuit has been filed against Tata America
International Corporation in the US against the company practice of forcing workers to hand
over federal and state tax refunds, reports Business Wire India. Tata America is
a subsidiary of the Tata
group.
The U.S. Immigration Law Blog by Ashwin Sharma 
Sen. Arlen Specter bill would provide for more H-1B visa numbers
A bill being drafted by Sen.
Arlen Specter, who chairs the Senate judiciary committee overseeing immigration issues, is proposing to increase the number of
H-1B visas issued annually from 65,000 to 115,000, with an option to
increase the cap yearly by 20%. A spokeswoman for Specter says details
of the proposal are still being worked out. However, the committee is
slated to discuss immigration legislation on March. 27.