HR 5642, introduced by Representative Lamar Smith (R-TX), would raise the H-1B cap to 195,000 for this year and next.
HR 5634, also introduced this past week by Representative Patrick Kennedy (D-RI), would exempt from the green card caps individuals who receive Ph.D.s within the three year period preceding the application.
I don't have a sense yet if either bill will move this session.
[NOTE: Apologies for the incorrect description of 5634 earlier.]
Many of you are getting ready to file H-1B cases. USCIS has sent a new rule for publication which will makes several important announcements:
- Employers are barred from filing duplicate H-1B applications for the same employee (even if the petitions are for different positions). There is an exception for related companies that file more than one petition for the same employee. All petitions by an employer for an employee will be barred if there are duplicate filings.
- Applications received on any of the first five business days beginning April 1st will be included in any lottery of H-1B petitions (this past year it was only for day one and two).
- Petitioners claiming to be exempt from the cap who are later found to be subject to the cap will not get a refund of their fees.
- If an application is received before April 1st, it will be rejected and a petition is deemed received when USCIS gets the application and stamps it received as opposed to the date it is postmarked.
- Premium processing will not start until after the random selection process has been completed.
- Master's cap cases (the 20,000 H-1Bs reserved for graduates of US graduate degree programs) will be adjudicated first and if there is a lottery for those cases, cases not selected in the master's cap will be thrown in to the general lottery for the 65,000 H-1Bs available.
NBC News is reporting this stunning development. The breach was at the Bureau of Consular Affairs, the same part of the State Department that handles visa processing. Three contract workers have been fired so far. You'll no doubt be hearing a lot more about this soon.
Why does an application that now costs twice as much to file as this time last year take twice as long to adjudicate? This and other questions are being asked by Democrat power Senators Kennedy, Schumer and Leahy.
In August 2007, a long awaited "no-match letter" regulation from US Immigration and Customs Enforcement was released. It quickly was challenged in court and the rule was barred from taking effect by a federal district court. Today, DHS released a proposed rule that makes very few actual changes to the previously released rule and instead attempts to address procedural questions raised by the court in its preliminary injunction.
The rule describes the obligations of employers when they receive no-match letters from the Social Security Administration or receive a letter regarding employment verification forms from the Department of Homeland Security. The rule also provides "safe harbors" employers can follow to avoid a finding the employer had constructive knowledge that the employee referred to in the letter was an alien not authorized to work in the US. Employers with knowledge that an immigrant worker is unauthorized to accept employment are liable for both civil and criminal penalties.
The rule finalized a proposed rule released on June 14, 2006. The Department of Homeland Security, ICE’s parent department, received nearly 5,000 comments on the rule from a variety of interested parties including employers, unions, lawyers and advocacy groups. According to DHS, the opinions were highly varied with both strong opposition and support being enunciated. DHS also held a meeting with business and trade associations to discuss the proposed rule.
Why did the court block the rule from taking effect?
The rule was challenged in court prior to it taking effect in September 2007 and a judge issued a preliminary injunction on three grounds:
- DHS failed to supply a reasoned analysis justifying what the court thought was a change in DHS’ position - that a no-match letter may be sufficient, by itself, to put an employer on notice that its employees may not be work authorized;
- DHS exceeded its authority (and encroached on the authority of the Department of Justice) by interpreting anti-discrimination provisions in the Immigration Reform and Control Act (IRCA); and
- DHS violated the Regulatory Flexibility Act by not conducting a regulatory flexibility analysis.
How has DHS attempted to address the court’s objections?
On March 21, 2008, DHS released a supplemental proposed rule designed to address the court’s concerns. DHS is hoping that the court will overturn the preliminary injunction and allow the agency to implement the proposed rule. The agency is also continuing to appeal the court’s order. The agency is providing 30 days for comments.
In the proposed rule, DHS first addressed the court’s concern that that agency had failed to provide a detailed analysis explaining the agency’s new position that no match letters are an indicator of unauthorized status.
DHS first cites a number of sources indicating that Social Security numbers are being used to gain employment authorization by people unauthorized to work. It included quotes from the 1997 report of the US Commission on Immigration Reform and also cites reports issued by the Government Accountability Office and the Inspector General of the Social Security Administration. It also notes that the industries most affected by the rule have admitted that much of their workforce is unauthorized and millions of employees have used false numbers. Finally, the agency cites to public and private studies confirming that a sizeable portion of employees identified by no-match letters are working illegally in the United States.
DHS cites two other justifications for the law. First, many employers fail to respond to no-match letters because they fear being accused of violating anti-discrimination rules if they react inappropriately to them. The no-match rule would provide protection from such liability if the employer follows the requirements of the regulation. Second, many US citizens and aliens would benefit by being notified of problems in the Social Security database and being able to get proper credit for their earnings. US citizens would also benefit, according to DHS, by seeing an expansion of employment opportunities as a result of unauthorized employees being terminated for not providing a valid Social Security number.
DHS then describes in the rule a series of rulings and opinions by the agency that it believes show the agency has had a consistent position on no-match letters. But the agency states that even if it concedes that it is taking a new position, it meets the requirement to show a reasoned analysis justifying the chance in policy. In this case, it states that the “most basic justification for issuance of this rule – and for the “change” in policy found by the district court – is to eliminate ambiguity regarding an employer’s responsibilities upon receipt of a no match letter. Absent this rule, employers have been taking very different positions based on DHS’ ambiguous statements.
DHS also defends the rule by pointing out that only employers with more than 10 employees identified with no-matches get SSA no-match letters and only if the percentage of no-matches exceeds .5% of the employer’s work force.
With regard to the question of usurping the Justice Department’s anti-discrimination enforcement authority, DHS insists that its rule does not interfere with “the authority of DOJ to enforce anti-discrimination provisions of the INA or adjudicate notices of intent to fine employers.”
It also specifically rescinded statements from the August 2007 rule’s preamble describing employers’ obligations under anti-discrimination law or discussing the potential for anti-discrimination liability. That includes the statement “employers who follow the safe harbor procedures…will not be found to have violated unlawful discrimination.”
With respect to the regulatory flexibility analysis, DHS takes the position that the rule is a voluntary safe harbor rather than a mandate. Hence, the rule does not require a showing that employers will not be significantly impacted economically.
However, the agency claims it is going to comply with the judge’s ruling by providing an initial regulatory flexibility analysis (IRFA). They have provided a very cursory summary of the analysis in the proposed regulation, but DHS says it will provide a full analysis in the docket of the rulemaking.
DHS claims that it has been stymied to some extent in providing a highly specific analysis because the Social Security Administration has denied its request for the names and addresses of the companies already identified by SSA in its preparation to release no-match letters pursuant to the August 2007 regulation. SSA reminded DHS that this disclosure would actually be illegal under taxpayer privacy laws. SSA did, however, provide more general information including a table showing the distribution of employers slated to receive no match letters in 2006. DHS estimates it will cost employers anywhere from $3,009 to $33,759 depending on the size of the employer and the percentage of current no-match employees assumed to be unauthorized. DHS does not believe these costs constitute a “significant economic impact.”
DHS notes that the costs associated with losing an employee as a result of the rule are due to the Immigration and Nationality Act itself and not the new rule. However, the agency does not mention “false positives” where employees authorized to work are incorrectly identified in a no match letter. The agency did not account for costs associated with losing employees not being able to resolve problems within 90 days, something that critics fear will become common as hundreds of thousands of people attempt to resolve problems at the same time under the new rule.
DHS did site the following costs: labor cost for human resource personnel, certain training costs, legal services and lost productivity.
Did DHS mention any changes to the August 2007 rule in its proposed rulemaking?
DHS only announced two relatively minor changes. First, DHS changed the rule require that employers “promptly” notify affected employees after they are unable to resolve a mismatch through internal checks. Employers would now be given five business days to notify employees.
Second, DHS makes clear that employees hired before November 1, 1986 are not covered by the no-match rule since these workers are not subject to IRCA.
The following is a summary of the rule released in August 2007 with notes in brackets showing changes made by the March 21, 2007 proposed rule
Why did ICE issue this rule?
All employers in the US are required to report social security earnings for their workers. Those W-2 form reports listing an employee’s name, social security number and the worker’s earnings are sent to the Social Security Administration. In some cases, the social security number and the name of the employee do not match. In some of these cases, the SSA sends an employer a letter informing the employer of the no-match.
In some cases, the no-match is the result of a clerical error or a name change. In other cases, it may indicate that an employee is not authorized to work.
ICE issues similar letters to employers after they conduct audits of an employer’s Employment Eligibility Verification forms (the I-9s) and find evidence that an immigration status document or employment authorization document does not match the name of the person on the I-9 document.
To date, there has been considerable confusion and debate over an employer’s obligations after receiving a letter like this as well as whether an employer would be considered to be on notice that an employee is not unauthorized to work. This rule clarifies both issues albeit in a way that will be very unfriendly to employers and workers.
DHS cites the Mester Manufacturing case from the 9th Circuit Court of Appeals to remind employers that if they will have "constructive" knowledge that an employee is out of status, they are in violation of IRCA, the statute that punishes employers for knowingly hiring unlawfully present workers or violating paperwork rules associated with the I-9 employment verification form.
When is this rule effective?
It becomes effective September 14, 2007. [Note that DHS has not stated how much lead time would be provided between release of a new rule and its implementation date].
How has the definition of "knowing" changed in the rule?
Two additional examples of "constructive knowledge" are added to the list of examples of information available to employers indicating an employee is not authorized to work in the US. First, if an employer gets a written notice from the SSA that the name and SSN do not match SSA records. And second, written notice is received from DHS that the immigration document presented in completing the I-9 was assigned to another person or there is no agency record that the document was assigned to anyone.
However, the question of whether an employer has "constructive knowledge" will "depend on the totality of relevant circumstances." So this rule is just a safe harbor regulation telling how an employer can avoid a constructive knowledge finding, but not guaranteeing that an employer will be deemed to have constructive knowledge if the safe harbor procedure is not followed.
What steps must an employer take if it gets a no-match letter?
First, an employer must check its records to determine if the error was a result of a typographical, transcription or similar clerical error. If there is an error, the employer should correct the error and inform the appropriate agency – DHS or SSA depending on which agency sent the no-match letter. The employer should then verify with that agency that the new number is correct and internally document the manner, date and time of the verification. ICE is indicating in the preamble to the regulation that 30 days is an appropriate amount of time for an employer to take these steps.
If these actions do not resolve the discrepancy, the employer should request an employee confirm the employer’s records are correct. If they are not correct, the employer needs to take corrective actions. That would include informing the relevant agency and verifying the corrected records with the agency. If the records are correct according to the employee, the reasonable employer should ask the employee to follow up with the relevant agency (such as by visiting an SSA office and bringing original or certified copies of required identity documents). Just as noted above, thirty days is a reasonable period of time for an employer to take this step.
The rules provide that a discrepancy is only resolved when the employer has received verification from SSA or DHS that the employee’s name matches the record.
When 90 days have passed without a resolution of the discrepancy, an employer must undertake a procedure to verify or fail to verify the employee’s identity and work authorization. If the process is completed, an employer will NOT have constructive knowledge that an employee is not work authorized if the system verifies the employee (even if the employee turns out not to be employment authorized). This assumes that an employer does not otherwise have actual or constructive knowledge that an employee is not work authorized.
If the discrepancy is not resolved and the employee’s identity and work authorization are not verified, the employer must either terminate the employee or face the risk that DHS will find constructive knowledge of lack of employment authorization.
What is the procedure to re-verify identity and employment authorization when an employee has not resolved the discrepancy as described above?
Sections 1 and 2 of the I-9 would need to be completed within 93 days of receiving the no-match letter. So if an employer took the full 90 days to try and resolve the problem, they then have three more days to complete the new I-9. And an employee may not use a document containing the disputed SSN or alien number or a receipt for a replacement of such a document. Only documents with a photograph may be used to establish identity.
Does an employer need to use the same procedure to verify employment authorization for each employee that is the subject of a no-match letter?
Yes, the anti-discrimination rules require employer to apply these procedures uniformly. DHS is also reminding employers about the document abuse provisions which bar employers from failing to honor documents that on their face appear reasonable. But employers now have the safe harbor of a new regulation stating that this provision does not apply to documents that are the subject of a no-match letter.
DHS notes that if employers require employees to complete a new I-9 form, the employer must not apply this on a discriminatory basis and should require an I-9 verification for ALL employees who fail to resolve SSA discrepancies and apply a uniform policy to all employees who refuse to participate in resolving discrepancies and completing new I-9s.
Note that under the March 2008 proposed changes to the August 2007 rule, employees hired before November 6, 1986 are not subject to this rule.
What if the employer has heard that an employee is unlawfully present aside from hearing from SSA or DHS in a no-match letter?
Employers who have ACTUAL knowledge that an alien is unauthorized to work are liable under the INA even if they have complied with the I-9 and no-match rules. But the government has the burden of proving actual knowledge. DHS also notes that constructive knowledge may still be shown by reference to other evidence.
Does DHS have the authority to regulate the treatment of notices received by the SSA?
A number of comments on the rule questioned this issue, but they were dismissed by DHS. Presumably, the issue could be the source of litigation.
Why is DHS issuing this rule when the White House supports comprehensive immigration reform that would give employers legal options for hiring these workers?
DHS indicated in the preamble to the rule that while it wants to work with Congress on such legislation, there is no way to predict when it will pass and interior enforcement needs to be conducted. Others are arguing that the White House is interested in demonstrating to Congress that it is "getting tough" on illegal immigration in order to increase the likelihood that members of Congress would support CIR.
Will following the procedures in this rule protect an employer from all claims of constructive knowledge, or just claims of constructive knowledge base on the letters for which the employers followed the safe-harbor procedure?
An employer who follows the safe harbor procedure will be considered to have taken all reasonable steps in response to the notice and the employer’s receipt of the written notice will there not be used as evidence of constructive knowledge. But if other independent exists that an employer had constructive knowledge, the employer is not protected.
Are there any special rules for circumstances such as seasonal workers, teachers on sabbatical and employees out of the office for an extended period due to excused absence or disability?
No, but DHS has noted that the rule provides a safe harbor to prove an employer does NOT have constructive knowledge and that if an employer makes a good faith effort to resolve a situation as rapidly as practicable and documents such efforts, that would be considered in evaluating the question of constructive knowledge.
What are the time frames required under the rule to take each necessary action after receiving the no-match letter?
- Employer checks own records, makes any necessary corrections of errors, and verifies corrections with SSA or DHS (0 – 30 days)
- If necessary, employer notifies employee and asks employee to assist in correction (0 - 90 days) [Note: Under the March 2008 proposed rule, employers have five days to notify employees of the no-match if the employer conducts its internal review]
- If necessary, employer corrects own records and verifies correction with SSA or DHS (0 - 90 days)
- If necessary, employer performs special I-9 procedure (90 - 93 days)
May an employer continue to employ a worker a worker throughout the process noted above?
Yes. The only reason an employer would have to terminate prior to 93 days if the employer gains actual knowledge of unauthorized employment. DHS notes that it is not requiring termination by virtue of this rule; rather, they are just providing a safe harbor to avoid a finding of constructive knowledge. Employers may be permitted to terminate based on its own personnel files including failing to show up for work or an employee’s false statement to the employer. [Note: SSB always recommends consulting labor counsel before terminating employees for such reasons during the no-match process].
Employers may terminate as well if they notify an employee of the no-match letter and the employee admits that he or she is unauthorized to work.
What if the no-match letter is sent to the employee, not the employer?
The new rule only applies in cases where the written notice is to the employer.
Does it matter which person at the employer receives the letter?
No and DHS will not allow a designated person to receive these letters despite concerns raised about a no-match letter not making it to the appropriate party for too long. DHS has noted that an employer can determine an office within a company that becomes the recipient of all mail from DHS and SSA.
Does verification through systems other than that described in this rule provide a safe harbor?
No, and this includes instances where SSA provides options SSN verification as well as the USCIS electronic employment verification system. But DHS does note that DHS may choose to use prosecutorial discretion when employers take such steps.
Does an employer filing for a labor certification or employment-based green card application have constructive knowledge constitute "constructive knowledge" that a worker is unauthorized?
The new rule includes language stating "an employee’s request that the employer file a labor certification or employment-based visa petition on behalf of the employee" may be an example of a situation that may, depending on the totality of relevant circumstances, require an employer to take reasonable steps in order to avoid a finding of constructive knowledge. But DHS notes that some employees are work-authorized and are not necessarily unauthorized to work just because they request such sponsorship from an employer.
Does an employer have to help an employee resolve the discrepancy with SSA or DHS?
No. An employer merely needs to advise the employee of the time frame to resolve. They are not obligated to help resolve the question or share any guidance provided by SSA.
In what manner must employers retain records required under the new rule?
The rule is flexible in this regard and employers may use any manner it chooses. The rule permits employers to keep records alongside the I-9 form. Employers are encouraged to document telephone conversations as well as all written correspondence.
If a new I-9 is prepared based on this rule, does that affect the amount of time the I-9 must be retained?
No. The original hire date remains the same even though the safe harbor procedure is used. So if an employer was hired several years ago, for example, has the I-9 form prepared again and then moves on to a new employer, the original date of hire applies for purposes of determining whether the one year retention requirement still applies.
Doesn’t requiring an employee to fill out a new I-9 form per this rule constitute document abuse?
DHS does not believe this is the case because any document presented that contained a suspect SSN or alien number would not be facially valid and that it is proper for employers to require new documentation.
Won’t this rule lead to massive firings across the country?
Many people are certainly worried that employers won’t bother to go through the safe harbor procedures and will just panic and fire all workers that are the subject of these notices or will simply decide not to spend the effort complying. DHS denies that this is likely to be the case and has said the rule is in response to confusion under the current process.
Will an employer be liable for terminating an employee who turns out to be work authorized if they get a no-match letter?
If the employee IS authorized to work and an employer does not go through the various safe harbor steps in the rule, then the employer might be liable in an unlawful termination suit.
Won’t this rule result in a major negative economic impact on the country?
That is an argument being advanced by many opponents of the rule. DHS only responds that this is speculative and also that complaints that small firms would be disproportionately affected because of the costs in complying are speculative as well.
What if the employee is gone by the time the no-match letter arrives?
An employer is not obligated to act on a no-match letter for employees no longer employed by them.
Aren’t SSA and DHS databases unreliable?
DHS admits that the SSA and DHS databases have problems (as evidenced by GAO studies). But they say a no-match letter is nothing more than an indicator of a problem and that this does not warrant alone stopping the changes proposed in the rule.
Won’t this rule encourage identity theft?
DHS denies it, but critics are concerned that the only step left for workers is to ensure that a social security number and name match and the only way for an unlawfully present worker to ensure this is to usurp someone’s identity. DHS believes the criminal penalties for identity theft will act as a sufficient deterrent.
Here it is after months of waiting. I'm pouring through it now and will shortly post a detailed summary.
Several of you have linked to this really outrageous story from this morning's New York Times front page. Were it only a one time incident, it would be easy to dismiss as a bad apple. But this is not the first time I've reported on a scandal like this on this blog. And it's just one type of corruption in a broad range. Most examiners at USCIS are decent people just trying to do a difficult job. But there is a subculture at the agency comprised of abusive individuals who probably were bullied themselves at one point in life and now take their revenge on the immigrants who are at their mercy. I don't know how the agency can identify this minority within the agency, but when they don't stories like these become front page scandals. One suggestion - have customer-friendly, well-publicized systems to report abusive behavior by examiners and then take those complaints seriously. Make an anonymous reporting system so people don't feel intimidated in making their complaints (obviously with safeguards to prevent people from being punished based on false reports).
The ABC's of Immigration - The H-1B Cap
It's a rather long post, but here is my detailed FAQ on the new H-1B cap incorporating changes announced March 19, 2008 in a new USCIS regulation.
On October 1, 2003, the allotment of H-1B visas provided annually by Congress dropped from 195,000 to 65,000. Out of that number, 6,800 are reserved for the H-1B1 program for nationals of Chile and Singapore. Numbers not used of that 6,800 (which will likely be several thousand) will be made available in the 45 day period beginning October 1st. Congress also has allocated an additional 20,000 H-1B visas for graduates of US masters programs or higher.
This week, the H-1B cap for fiscal year 2009 is to open up and USCIS is expected to announce almost immediately that it has received enough applications to meet the 2009 cap (which covers the fiscal year running from October 1, 2008 to September 30, 2009. Numbers in the 20,000 pool will likely last a little longer, but probably not much more than a few days.
The next allotment of H-1B visas
in the 65,000 pool will open up on October 1, 2010 with applications being
accepted on April 1, 2009. Until then, it will be impossible to obtain new H-1B
visas for cap subject employees except for visas leftover from the H-1B1
Who is actually subject to the cap?
Not every H-1B applicant is subject to the general cap. The cap does not apply to applicants filing H-1B visas through institutions of higher education or their related or nonprofit entities as well as nonprofit research organizations and government research organizations.
Visas will still be available for applicants filing for amendments, extensions, and transfers unless they are transferring from an exempt employer or exempt position and were not counted towards the cap previously (such as a physician who receives an H-1B for residency training with an exempt hospital and then seeks a job in private practice afterwards)
Physicians receiving waivers of
J-1 home residency requirements as a result of agreeing to serve in underserved
communities are exempt. Also, graduates of US masters and doctoral degree
programs draw numbers from a “bonus” allotment of 20,000 visas. As noted above,
nationals of Singapore and Chile draw from a separate cap of 6,800 (5,400
for Singapore and 1,400 for Chile ).
Must one be employed by the institution by which he or she is claiming the H-1B cap?
Note that the statute states that applicants who work AT such institutions are covered so individuals employed by entities other than these institutions but who provide services at the qualifying institution may be cap exempt.
In 2006, USCIS released a memorandum discussing this question. The agency recognized that the law permitted third party employers to obtain a cap exemption, but set a requirement that the employment must “directly and predominantly” further the essential purposes of the qualifying institution.
USCIS has stated that the burden
is on the petitioner to establish there is a logical nexus between the work
performed by the beneficiary and the normal primary or essential work performed
by the institution. They specifically give the example of a physician employed
by a medical group who serves patients at an exempt university hospital.
What does it mean to be “affiliated” or “related to” for purposes of the H-1B cap exemption?
USCIS in the same June 2006 memorandum noted above has taken the position that “affiliated” for cap exemption purposes means the same thing as it does for fee exemption purposes (affiliates of institutions of higher education are exempt from worker retraining fees) even though the term is defined in the fee exemption statute and not in the cap exemption statute.
The term in the fee exemption context means “a nonprofit (including but not limited to hospitals and medical or research institutions) that is connected or associated with an institution of higher education, through shared ownership or control by the same board or federation operated by an institution of higher education, or attached to an institution of higher education as a member, branch, cooperative or subsidiary.”
This relatively restrictive definition
would seem to eliminate many employers. However, “related to” has yet to be
defined by USCIS.
How does USCIS allocate H-1B visas for applications received on the day the cap is announced as having been hit?
USCIS’ policy is to hold a random drawing to select the exact number of petitions from the day’s receipts needed to meet the cap. USCIS announced that for FY2009, if it receives too many applications in the first five days, all applications received in those five days will be considered together in a random drawing. This is a change from the previous year where just two days’ worth of H-1B applications were included together.
All cases filed on that date or
later that are subject to the H-1B cap will be returned. Returned
petitions will be accompanied by the filing fee.
Can an applicant re-submit an H-1B application?
Petitioners may re-submit their
petitions when H-1B visas become available for FY 2010. The earliest date
a petitioner may file a petition requesting FY 2010 H-1B employment with an
employment start date of October 1, 2009 would be April 1, 2009.
What will happen to the petitions that do not count against the cap?
Petitions for current H-1B workers normally do not count towards the congressionally mandated H-1B cap. USCIS will continue to process petitions filed to:
- Extend the amount of time a current H-1B worker may remain in the United States
- Change the terms of employment for current H-1B workers
- Allow current H-1B workers to change employers (unless the beneficiary is transferring from a cap exempt employer to a cap subject employer and was never counted towards the cap- in that case the beneficiary will be subject to the cap)
- Allow current H-1B workers to work concurrently in a second H-1B position
USCIS will also continue to process petitions for new H-1B employment filed by applicants who will be employed at an institution of higher education or a related or affiliated nonprofit entity, or at a nonprofit research organization or a governmental research organization. USCIS will also continue to process H-1B petitions for workers from Singapore and Chile consistent with Public Laws 108-77 and 108-78.
And doctors working in underserved communities as a result of receiving a J-1 home residency requirement waiver sponsored by a state or federal agency will also be exempt from the annual cap even after they complete their service. Nationals of Singapore and Chile and graduates of US masters and doctoral programs will be counted against caps specifically set aside for those groups.
Note that beginning in January 2008, USCIS requires cap exempt cases to be filed at the USCIS California Service Center.
What will happen to F and J visa holders who are beneficiaries of an H-1B petition?
In the past, INS (now USCIS) had safeguards in place for those with F and J visa status. According to 8 CFR Section 214.2 (f)(5)(vi), if it can be determined that all of the H-1B visas will be used before the end of the current fiscal year, the director of USCIS can extend the duration of status of any F-1 student if the employer has timely filed an application for change of status to H-1B. However, in recent years, USCIS has chosen not to exercise this discretion and no word has been given on whether they will or will not do so in the future.
8 CFR Section 214.2(j)(1)(vi) has
similar language regarding those in J status. If the USCIS director can
determine that all of the H-1B visas will be used before the end of the current
fiscal year, the director of USCIS may extend the duration of status of any J-1
nonimmigrant if the employer has timely filed an application for change of
status to H-1B. USCIS also declined in recent years to exercise this
When will the numbers in the new 20,000 “bonus” cap be filled and who qualifies?
For the current fiscal year that began on October 1, 2007, USCIS reached the 20,000 cap on just a few weeks afterward. However, many believe the cap will be hit even earlier this year.
To qualify in this bonus cap,
applicants must have earned a US
master’s or higher degree. Graduates of medical residency and fellowship
programs do not qualify in this category.
What will happen if I am not exempt from the cap and my current status expires after the numbers run out?
In order to deal with the lack of H-1B visas, a number of alternate categories may be available including O-1 visas, TN visas for Canadians and Mexicans, E-1 and E-2 visas, L-1s and J-1 training programs. Many will look at pursuing graduate education in the United States and then will be eligible for the bonus H-1B quota.
An option available to many this year will be filing for permanent residency. There are many work-related green card applications that can be filed without a labor certification. And the new PERM labor certification program means that employment authorization can be obtained much earlier. Now that concurrent filing of I-140 and adjustment of status applications area available, it may be possible to secure an employment authorization document in a matter of a couple of months after the green card process is started. Furthermore, premium processing of I-140s is now available in several categories.
Note that green cards are backlogged as of April 2007 for numerous categories and nationalities so a permanent residency strategy may not work for many.
We advise people subject to the cap looking for alternative strategies to consult early with their immigration lawyers.
What happens if the 20,000 bonus
cap for master’s degree holders and higher and the general cap of 65,000 are
reached within the first five days of the fiscal year?
Under a rule promulgated in March 2008, If both caps are exhausted within the first
five days, USCIS will first conduct a random selection process for the master’s
cap cases and then those not selected will be counted in the random selection
process for the general cap. This is intended to ensure that those not selected
in the master’s cap are treated no worse than those in the general cap. A
person not selected in either drawing will have his or her application
What happens to petitioners who file multiple applications?
March 2008 rule released by USCIS, petitioners are barred from filing more than
one H-1B petition on behalf of the same alien even if the petitions are for
different positions. If an employer legitimately has two positions it wants an
alien to fill, it would need to amend the application or file a concurrent H-1B
application to change the job or add additional duties. Employers found to have violated this rule
will have all petitions for an individual worker rejected. Note that the new
rule does not preclude related employers from filing petitions on behalf of the
same employer. But in these cases, the related employer may be requested to
show that it has a legitimate business need for the employee lest employers seek
to use related employers to improve the chances of an applicant being selected.
Will an employer get a refund of the
filing fees if it files a case claiming to be exempt from the H-1B cap and
USCIS decides it is subject?
Under the March 2008 rule, USCIS will now deny the case and keep the filing fees rather than reject the case and return the fee. According to USCIS, this is because it is necessary for the agency to actually adjudicate the case to determine if it is subject to the cap.
As we hear the grim predictions from folks like Alan Greenspan that the US may be heading in to the worst economic downturn since World War II, Congress should be looking to promote free trade policies that will stimulate world economic growth rather than pushing protectionist policies that will only hurt our economy. That includes ending the artificial shortage of H-1B workers and letting market forces determine how many highly educated workers come from abroad.
The Wall Street Journal has called on Congress to increase H-1B numbers. They are just the latest voice calling for action. But there are labor cartel members - the Programmer Guild, IEEE-USA and others - who would rather use legislation to maintain a scarcity situation in order to push up salaries beyond what the market dictates and preserve jobs for individuals unable and unwilling to compete. They are even willing to see US companies fail before compromising. Unfortunately for them and for America, companies will do what it takes to survive. And for many, that means simply moving operations overseas. The ONLY responses the antis have to the outsourcing argument is that outsourcing is unpatriotic and the threats are idle. The threats are not idle. Moving operations overseas is a reality and you can hear Lou Dobbs whine about it on a nightly basis. As for patriotism, make it economically viable for companies to stay in the US and you'll see the pace of outsourcing drop precipitously.
As cities and states rush to sign 287(g) agreements with Immigration and Customs Enforcement to allow their police forces to become immigration enforcement agencies, unintended consequences are starting to emerge. Namely, criminals are becoming emboldened in targeting illegally present immigrants. After all, why would the victims report the crimes to police officers who have the dual mission of trying to get people deported? And, by the way, when crime starts to rise in one neighborhood because it is completely unchecked, you can assume it's going to eventually start to go up all over town. Evidence is starting to emerge that this is, in fact, beginning to happen.
After 9/11, Congress toughened provision barring the admission of people not only who had engaged in terrorism, but who were members of organizations deemed to be terror groups. This is important and obviously necessary to protect the country.
The problem is when you have a bureaucracy carrying out the law combined with a system that often takes years to correct problems, tragic results ensue. My friend Dan Kowalski at Bender's Immigration Bulletin forwarded me a link to a story in the Washington Post about one such case. It involves a translator named Saman Kareem Ahmad who was denied a green card three weeks ago despite risking his life for a US Special Forces unit and getting letters of commendation from the top generals in the Army and the Secretary of the Nave. His crime: he was once part of the Kurdish Democratic Party.
The KDP was labeled many years ago a terrorist organization because it had been involved with trying to overthrow Saddam Hussein. That is the reason the KDP remains on the terrorist group list despite the fact that the KDP is now a part of the governing coalition in Iraq. Why is the KDP still labeled a terrorist group if its offense was trying to carry out the same mission the US military carried out five years ago this week? Beats me. Obviously, times have changed. This is not that different than saying Osama bin Ladin is NOT a terrorist because 20 years ago the CIA helped him in the Mujahidin's fight with the Russians. Times change and our list of terrorist groups needs to change as well. Or at least we need to have more flexibility for USCIS to waive inadmissibility when the facts clearly show a person is not a threat to the country.
My guess is that the examiner who denied the case has no idea why the KDP is on the terrorist list. And, unfortunately, we've seen over and over again that USCIS cares little about the sacrifices made by our soldiers or people like Saman who risk their lives for our sake. I've highlighted too many cases on this blog for people to dismiss this as a one off problem. It's time for some common sense reforms so we can keep out the real bad guys and allow deserving applicants like Mr. Ahmad to have an opportunity to come to this country.
A major Northeastern tomato producer announces it's shutting down because of the loss of labor and the difficulty in sponsoring workers for visas.
Siskind Susser Bland Atlanta lawyer Karen Weinstock's book The H-1B Book: 2008-2009 edition has been published by ILW. This is a very comprehensive, easy to follow book with considerable analysis as well as numerous useful charts, checklists and primary source materials. Karen - Congratulations on the publication of your new book!
Recently, I wrote about the case of a Virginia high school student denied in state tuition at the University of Virginia because his parents are illegally present in the US (despite the fact that the student was born in the United States and is a US citizen). I'm happy to report that the school received an opinion from the Virginia Attorney General that permits universities to make exceptions for students over the age of 18. That's not perfect, but it is certainly an improvement over the prior obviously unconstitutional policy.
Hat tip to Dan Kowalski for this.
Another major editorial, this time from the Washington Post, endorses the need for more H-1B visas:
If nothing changes, America will miss out on another crop of talent this year.
H-1B visas are reserved for the world's best and brightest, and barring their entry is economic self-sabotage. The cap keeps out doctors, engineers and other specialists -- people who save lives and often create jobs for others in America. One need only look at the national origins of founders of companies such as Google and Sun Microsystems to realize that foreign talent has helped keep the U.S. economy on the cutting edge. These are talents the United States has been struggling to grow at home, given that more than a third of all science and engineering doctorates awarded in the United States go to foreign students (for whom the number of visas is not capped), according to the National Science Foundation.The H-1B visa cap was set well before the tech boom and so does not reflect current needs. Because lawmakers lack the political will to keep the world's talent in America, companies are following it overseas, setting up shop in Canada, India, Eastern Europe and other areas where the skills they need are plentiful. As a result, investment and jobs are being shipped abroad. As Bill Gates testified this month, the jobs created by the A-earning foreign students who did not remain in the United States will now go to the "B and C students" surrounding them at home in India rather than to their American counterparts.
The New York Times reports on the resurgence in popularity of the EB-5 visa and how it is helping attract capital for development projects around the country.
If you want to put a human face on the story of what is happening in the state of Arizona, read about how Yvonne Watterson is fighting to salvage a future for the young people at her school who are illegally present in this country. It's easy to attack illegal immigration. But when you actually know people who are illegally present, you realize that there are tragedies playing out all across the country. We need to get past the jingoistic and knee-jerk responses and focus on what is in the best interest of this country. What solutions will allow us to secure our border and not become a police state. What ideas will allow us to not waste the tremendous human capital we have - particularly with young people - while also establishing a workable system that ensures people immigrate legally.
This case is vitally important because RICO has become an important tool being used by anti-immigrant groups to target employers and this is the first Circuit Court decision I'm aware of addressing the question. The plaintiff in the case was Canyon County, Idaho and the defendants included Syngenta Seeds, Sorrento Lactalis, Swift Beef Company, Harris Moran Seed, and Albert Pacheco. No word yet on whether the county intends to appeal to the US Supreme Court.
Greg Siskind is a partner in Siskind Susser's Memphis, Tennessee, office. After graduating magna cum laude from Vanderbilt University, he received his Juris Doctorate from the University of Chicago. Mr. Siskind is a member of AILA, a board member of the Hebrew Immigrant Aid Society, and a member of the ABA, where he serves on the LPM Publishing Board as Marketing Vice Chairman. He is the author of several books, including the J Visa Guidebook and The Lawyer's Guide to Marketing on the Internet. Mr. Siskind practices all areas of immigration law, specializing in immigration matters of the health care and technology industries. He can be reached by email at firstname.lastname@example.org