Terminating the H4 EAD?

Terminating the H4 EAD?

 
In February 2015, the Obama administration promulgated a federal regulation permitting certain spouses of foreign employees in H-1B visa status to seek authorization to work in the U.S.

Ordinarily, a spouse or child of a foreign employee in H-1B status is given a ‘derivative’ status known as ‘H-4’ status.  Under most circumstances, someone in H-4 status is not allowed to work in the U.S.   However, under this program, a spouse who is in H-4 status may apply for an Employment Authorization Document – (an ‘EAD’ or ‘work permit’) – if the H-1B spouse is also the beneficiary of an approved I-140 Petition for Alien Worker. 

The I-140 Petition For Alien Worker is the first step in the ‘green card’ process which shows that the foreign employee is eligible for a ‘green card’.  Because of the backlog of visa numbers for natives of some countries such as China and India, some foreign employees may have to wait years before they can take the second step of actually applying for a ‘green card’.  The executive order gave relief to the spouses of these foreign employees who successfully completed the first step while waiting for the second step.  It is typical for a foreign employee who qualifies for an H-1B visa to have a spouse who is also highly educated or skilled, so this program allowed spouses to put their education and skills to good use while waiting for a ‘green card’.

It was widely expected that when Donald Trump took office, he would attempt to eliminate this program.  Recent reports indicate that a proposed new federal regulation has been drafted that would do just that.

An added dimension to this story is the existence of a lawsuit styled Save Jobs USA v. U.S. Dept. of Homeland Security filed in April 2015 and presently at the D.C. Court of Appeals.  ‘Save Jobs USA’ is a consortium of technology workers who argue that the manner in which the H-4 EAD program was created was improper.  Proceedings in this case have been held in abeyance until December 31, 2017 to give time to the U.S. Dept. of Homeland Security (under the new Trump administration) to assess the case.  A ruling may be coming as early as January, so this may be a factor in how/when/if the Trump Administration addresses this program.

In the meantime, foreign employees and their family members who may be eligible for the program should examine whether they are in a position to benefit from these regulations…sooner rather than later.

 

Your HS&D Immigration Team

What Is The 'RAISE' Act?

What Is The Proposed RAISE Act?

On August 2, 2017, President Trump promoted a new Senate Bill drafted by Senators David Perdue of Georgia and Tom Cotton of Arkansas known as the ‘RAISE’ Act.

‘RAISE’ is an acronym for “Reforming American Immigration for a Strong Economy” Act.

The stated purpose of the Bill is to improve the American economy by limiting the number of immigrants admitted into our country.

A perhaps more valuable use of this Bill is to ‘RAISE’ our awareness of the more fundamental underpinnings of America’s unique immigration system.  If it causes us to pause and reflect on these core principles of American identity and values, it will have served a noble purpose.

Most political observers suggest that this Bill is not likely to pass Congress; nevertheless, an analysis of this Bill gives us an opportunity to examine: ‘what would constitute a healthy immigration policy in the U.S.’?  We will leave the political discussion to those who are more knowledgeably equipped to do so; the purpose of this article is to explore what we need in immigration policy to fit the unique history and present cultural pressures of American society today.

A very strong and simple narrative upon which this Bill rests is the easily accepted notion that Americans are competing for job openings and that the addition of more immigrants would make it more difficult for Americans to get these jobs.

It is, of course, more complicated than that, but rather than debate the economic consequences of immigration – which is a fact-driven analysis that supports various dimensions on both sides of the debate – it may be even more helpful to look at the core values implicated in the Bill.  It is a point that will conclude our discussion, but to begin, it may be helpful to compare the provisions of the Bill to the current existing law.

Thus, the place to begin is the actual language in the Bill.

The Preamble of the Bill states 4 objectives:  “To amend the Immigration and Nationality Act to

 

1. Establish a skills-based immigration points system,
    
2. to focus family -sponsored immigration on spouses and minor children,

     3.  to eliminate the Diversity Visa Program, [and]

 

    4.   to set a limit on the number of refugees admitted annually to the

United States, and for other purposes.”

 

We will go through each objective separately.

Today we will address the ‘skills-based immigration points system’.

 

1. Skills-Based Immigration Points System –

The first objective of the Bill is to amend the current Immigration and Nationality Act to establish a ‘skills-based immigration points system’.  The intent here is to ‘filter’ the types of persons coming to the U.S. to only those who can offer their education, skills and salary to meaningfully participate in and prosper the U.S. economy.  The immigration benefit provided is presumably a ‘green card’ – or Lawful Permanent Residency in the U.S.

Under the provisions of the Bill, a person accrues ‘points’ based upon age, education, English proficiency, extraordinary achievement and salary related to a job offer.  A person who accumulates a minimum of 30 points is eligible to be placed in an ‘Applicant Pool’ for up to one year.

An applicant calculates his or her points based upon a strong showing under the metrics of age, education, English proficiency, extraordinary achievement and salary for a job offered.

For example, a young person aged 22 – 25 accrues 8 points, while an older person, aged 41 through 45 accrues only 4 points.  Likewise, someone with a bachelor’s degree from a foreign institution is allowed 5 points, but a person with a master’s degree in the U.S. in a STEM discipline is entitled to 8 points.  The English exam is scored on ‘deciles’ where the higher the decile, the more points someone gets.

If an applicant reaches 30 points, he or she may file an application with USCIS and is placed in a ‘pool’ of other applicants and sorted on the basis of an applicant’s overall score.

Every 6 months, USCIS will invite the highest ranked applicants to file an immigrant visa petition for a visa.  There would be only 140,000 visas available each year, so the invitation will go out to a number that will be expected to result in 70,000 visas being issued for that 6 month period.

 

To assess the effectiveness of such a ‘points-based’ system, we should consider the present system in light of the Bill’s stated objective of helping the U.S. Economy.

Our present Employment-Based Visa system offers a number of different types of ‘temporary’ visas to employees with the opportunity to eventually apply for an immigrant visa – (or ‘green card’).

Types of Nonimmigrant Visas Available Under The Present System

To make this a manageable comparison, we will look only at those nonimmigrant visas that are comparable to the ‘highly-skilled’ sector contemplated by the Bill that also provide a pathway to a ‘green card’, (lawful permanent residency).

One of the most sought-after nonimmigrant visas is the ‘H-1B’ visa for foreign workers in a ‘specialty occupation’.  By legal definition, a ‘specialty occupation’ is one in which the job requires a person with at least a college bachelor’s degree in that occupational field to perform the work.  There is an annual allotment of 65,000 H-1B visas available each year. 

Another visa is an ‘L-1A’ visa for foreign employees who are either multinational executives or managers, and the ‘L-1B’ visa for foreign employees who have unique ‘specialized knowledge’ in the specific field or work required by an employer.

It is important to note that both of these require the foreign employee to work only for the employer that sponsored him or her for the visa.  Thus, the visa process is targeted to specific job openings for specific job duties that an employer needs filled.

For the H-1B visa, the demand for specific employees is so great that in the most recent fiscal year when H-1B visas were available, employers filed over 235,000 petitions for only 65,000 visas.  When one considers that the cost of filing an H-1B petition includes a $500.00 ‘Fraud Detection Fee’, and $1,500.00 ‘Education and Training Fee’ and a $460.00 ‘petition filing fee’, not to mention additional legal fees, the cost of filing an H-1B visa petition is not taken lightly.  Furthermore, the employer must show the U.S. Dept. of Labor that it will be paying the foreign worker as much as or more than American workers – (to insure that the wages of American workers are not ‘undercut’ by hiring foreign workers at lower pay).  All of these factors give an economic incentive for U.S. employers to hire U.S. workers before considering the hire of a foreign worker.  Despite these additional costs, the fact that U.S. employers still filed over 235,000 petitions with the hope of having their applications randomly chosen for processing gives a pretty clear indication of the current inability of U.S. employers to fill crucial positions in their companies.

The ‘EB-5’ visa is known as the ‘job-creation’ visa.  This specialized visa generally currently requires an investment of at least $500,000 or $1 million, (depending upon other factors) in a new commercial enterprise in the U.S. and proof that the investment will result in the creation of at least 10 full-time jobs for American Workers.

Also, in 2016, the prior Administration issued an executive order providing for ‘entrepreneurs’ who could provide a ‘significant public benefit’ by creating or maintaining a new commercial enterprise to be admitted into the U.S. to manage these investments.  The Order was purposely suited for high-tech entrepreneurs and was set to go into effect on July 17, 2017.  This executive order was ‘suspended’ by the Trump Administration on July 10^th for review and possible rescission or implementation on March 14, 2018.  

So to make a comparison between the proposed Bill’s intent to let in only 140,000 persons who reach a high score on age, education, job salary and/or extraordinary achievements, and the current system that offers employers the opportunity to seek foreign workers for specific needs, one needs to consider the benefits from an employer’s perspective.

First, one might consider whether average companies who typically utilize the H-1B, L-1A or L-1B visa programs to meet specific specialized needs would be able to compete with the largest well-sourced corporations for the top 140,000 individuals who might apply under the proposed bill.  (Remember, over the course of 5 days this past April, employers of all sizes filed over 235,000 petitions just for H-1B visas.).  Second, consider the challenge of employers planning to fill a position with the uncertainty of not knowing where a prospective employee might stand in the ‘applicant pool’, especially considering that only 70,000 visas would become available each 6-month period; (and that the family members of a successful applicant are also included in that limited number of 70,000).  It might also be useful to consider whether the top individuals who attain a high score under these metrics actually align with the specific needs of employers if they came to the U.S.  The proposed Bill does not necessarily clarify this, but presumably, a person in the ‘applicant pool’ does not necessarily have to work for a specific employer and might otherwise compete on the open marketplace for other employment. 

If the objective of the proposed Bill is to land the world’s ‘best and the brightest’ in the U.S. so that they can contribute to the American economy and possibly create new opportunities for U.S. workers, it is fair to question whether the sample of current immigration programs described above also seek the same goals.  A fair criticism of the current immigration system is that these immigration programs do a poor job of meeting these same goals.  In fact, when one considers that 2 out of every 3 H-1B petitions are rejected because there are too few visas to go around, and that many high-tech companies are moving operations to other countries because they cannot bring the world’s ‘best and brightest’ to the U.S., it is apparent that seeking creative solutions to identify and secure the highest qualifying individuals to come to the U.S. is a crucial need.  The proposed Bill helpfully exposes the flaws and limitations of our current employment-based immigration programs.

Here's hoping that the dialogue opened by the presentation of the prospective ‘RAISE’ Bill will help invigorate a bi-partisan legislative solution to our poorly functioning immigration system for U.S. employers.

 

Next:  ‘The Focus on Family-Sponsored Immigration for Spouses and Minor Children’

Navigating Uncertain Times:  Friday Roundup

Friday May 5, 2017

 

Whew!  That was close… [Check in again in October]

As you probably know, Congress has finally passed a budget bill that will extend the operations of the United States Government for the remainder of the 2017 fiscal year.  That is, until September 30, 2017.

Although much attention has been given to the fact that there was no direct funding for the construction of a new wall on the Southern border, the overall budget for the U.S. Dept. of Homeland Security increased by $1.45 Billion.  This includes an additional $700 million for Customs & Border Protection and $400 million for new detention facilities.  Thus, the ‘security’-side emphasis of immigration is clearly reflected in this bill.

In the meantime, many employers seeking highly-educated and highly-skilled workers are slowly realizing that they, once again, are unable to secure an H-1B visa to hire employees to contribute specialized knowledge to their companies.  All of the H-1B petitions that were randomly selected during the lottery have now been processed and Receipt Notices have been sent out.

There still may be a few Receipt Notices still straggling through the mail system, but for the most part, if you have not already received a Receipt Notice for one of your H-1B cases, you can lament the same way Chicago Cubs fans used to:  “Wait till next year”!

 

We can do better…

 

Have a nice weekend,

HS&D Immigration

Navigating Uncertain Times: Friday Roundup

Navigating Uncertain Times:  Friday Roundup

Friday March 24, 2017

Bored yet?

With multiple significant issues simultaneously taking stage, one can be excused for not knowing how to prioritize your concerns.  In the midst of efforts to repeal existing healthcare law, (“will they or won’t they?”), nominating a new Supreme Court Justice to replace Antonin Scalia, (the specter of a filibuster is being raised), and wondering how far and deep the Russian connection goes, one can be excused for overlooking ‘yesterday’s news’ – immigration.  And yet, out of sight does not mean out of mind – or inactive.  Things are still happening, and we will continue to search for and provide insight into issues that may affect you.

And this week, clients were buzzing about the ’60 Minutes’ segment this past Sunday characterizing the H-1B program as an ill-advised program for bringing ‘cheap labor’ into the country to replace U.S. workers.

In other news…

The H-1B Program – Reform?

Yes – but for the right reasons.

This past Sunday, the news program ’60 Minutes’ broadcast an investigative report on the H-1B visa program characterizing it as a means for employers to ‘bring in cheap foreign labor to replace American workers.’

I was astonished to hear that the H-1B visa program – of all visa programs – would be accused of bringing in ‘cheap foreign labor’.

Without making a full response, here are a few facts about the H-1B visa program that gives insight into the credibility of that claim:

·         The filing fees to file a new H-1B visa petition for a foreign employee a U.S. company wants to hire is $2,460.00; if you want the petition expedited, you can pay an additional $1,225.00;

 

·         Federal regulations require the U.S. company to pay the costs relating to the H-1B visa petition; and if the employer terminates the H-1B visa employee early, the employer must pay the transportation costs of the employee’s return overseas;

 

·         To file an H-1B visa, the U.S. company must first apply for certification of a ‘Labor Condition Application’ with the U.S. Department of Labor to establish that the company is paying the foreign worker a wage that is known as the ‘required wage’.  The ‘required wage’ is either the prevailing wage (as determined by the U.S. Dept. of Labor) for any employee at the worksite who is similarly situated or the actual wage of any worker at the worksite who is similarly situated whichever is higher.

 

In other words, to be able to secure an H-1B visa, the U.S. company has to attest to the U.S. Department of Labor that it is paying the foreign worker as much as or more than other U.S. workers at the worksite who are in the same position.

 

Given these additional costs to an employer, it is hard to understand from a business standpoint how it is ‘cheaper’ for a U.S. company to hire a foreign worker under the H-1B visa program than to hire a U.S. worker.

The ’60 Minutes’ segment certainly found some compelling stories of U.S. workers who suffered hardship because they were replaced by persons, at least some of whom were in the U.S. on H-1B visas.  According to the U.S. workers being interviewed, the company they worked for did not pay their replacements a salary as high as theirs.  To add insult to injury, these U.S. workers were forced the indignity of training the very persons who were replacing them.

These are very sympathetic stories.

And if the U.S. company did not comply with federal regulations by paying their H-1B employees the ‘required wage’, then that is a problem.

If the U.S. company hired H-1B employees in one worksite in compliance with the U.S. Dept. of Labor regulations, but then sent them as contract workers to the worksite of another company – where they earned less as contractors than the U.S. employees of the second company - then that is a tough business decision that both companies made.

And if the U.S. company employing H-1B workers made the experienced employees train the new H-1B workers how to do their job before terminating them, then that would seem to be an unnecessary indignity to the loyal employees of the company.

It is not my place to criticize the U.S. companies for their HR management or the economics of their business decisions; I don’t necessarily have all of the facts.  But to place the blame on the H-1B visa program simply because these incidents involved employees who happened to have H-1B visas is misdirected.  And to characterize the H-1B visa program as providing ‘cheap foreign labor’ is a mischaracterization which seems designed to scintillate the already hypersensitive public who generally wouldn’t have the depth of knowledge in immigration law to critically evaluate the validity of such an assertion.

So does the H-1B program need reform?

Yes…but not for those reasons.

At the end of next week, it is likely that over 300,000 H-1B petitions will be filed in the hope of getting one of only 65,000 visas.

One must ask – why would so many U.S. employers go to such great an expense (~$2,500 per petition – not including additional legal fees) just to get a 1 in 3 chance of having its H-1B petition selected at random for processing?  [Because there are more petitions than available visas, the U.S. Citizenship & Immigration Service holds a lottery to randomly choose 65,000 petitions to process.  This is known as the ‘H-1B Lottery’]

Clearly – there is an unmet labor need.

Reform Item #1:  increase the number of H-1B visas available each year so that U.S. companies can secure the workforce they obviously can’t fill with only U.S. workers

But there does seem to be abuse in the H-1B visa program.  There are, in fact, some U.S. companies that hire such a large number of foreign workers, especially for IT positions, that other employers have less of a chance of having their petitions randomly chosen in the H-1B lottery.  These few companies get a disproportionate share of the H-1B visas.  This leaves other, smaller companies who have legitimate needs to find highly-skilled employees in the foreign labor market left without key positions being filled.

I can think of many instances where a client has attempted to bring persons with highly specialized skills and experience to lead important business or service initiatives here in the U.S. – only to have the H-1B petition returned simply because of the ‘luck of the draw’.

Reform Item #2:  Limit the number of H-1B visas a single company can file to secure its workforce.  It may place an unfair burden on some companies, but it might even the playing field for the rest of the employers seeking persons to fill very specialized occupations.

Whether we like it or not, we are part of a larger global economy that requires highly trained and educated individuals to help U.S. companies compete on the world stage… regardless of where they come from.

I think we can come up with a better system to accomplish that.

EAD Alert:

Last week we discussed the unexpected news that USCIS would no longer be accepting ‘Premium Processing’ for H-1B petitions after April 3, 2017.  We discussed the inconvenient consequences of this decision.

To no one’s surprise, USCIS has been inundated with H-1B petitions seeking Premium Processing before the April 3 deadline.  So many, in fact, that it is causing delays in the adjudications… of EADs!

Why EADs?

An ‘EAD’ (Employment Authorization Document) is now available for a spouse of an employee in H-1B status – if the H-1B employee has an approved Immigrant Petition for Alien Worker (Form I-140) and the employee cannot apply for a ‘green card’ yet because their immigrant classification is oversubscribed for his or her country of origin.

This relatively new benefit for the spouses of certain H-1B employees is very popular and helpful for families living in the U.S.  It is common to file the application for an EAD along with the H-1B petition; and if the H-1B is adjudicated using Premium Processing, the EAD is customarily processed in an expedited fashion as well.  But now, because of the overload, USCIS has announced that processing of EAD applications accompanying Premium Processed H-1B petitions are being delayed.

Please plan and anticipate accordingly.

Have a nice weekend,

HS&D Immigration Group

 

[News Flash:  in answer to the question at the beginning of this blog post – the answer is “they won’t”]

Navigating Uncertain Times: Friday Roundup

Friday March 10, 2017

H-1B Alert!

Summary:

As most people know, the President issued a new and revised ‘Travel Ban’ this week – which we will discuss in more detail later – but a more obscure announcement was made that can have a wide-ranging impact on foreign nationals already living here on H-1B visas.

USCIS announced that it would be suspending ‘Premium Processing’ of H-1B visas beginning on April 3, 2017 (the first day of receiving new H-1B visas under the ‘H-1B cap’).

Those who will be most greatly affected by this development will by physicians who are completing their residencies in J-1 status – and need a Conrad 30 J-1 waiver to file a new H-1B petition.

H-1B Premium Processing Suspension

Late last Friday, USCIS announced that it was temporarily suspending ‘Premium Processing’ for all H-1B petitions filed on or after April 3, 2017.  It will be suspended ‘up to 6 months’.

And they are serious about it.  In fact, if one mistakenly files a ‘Premium Processing’ request after April 3, 2017 with the regular filing fee and the Premium Processing fee on the same check, they will reject the entire H-1B package petition.

Here’s why it matters:

As you may know, ‘Premium Processing’ is an application that one can file to request expedited processing of the H-1B petition.  It is accompanied by a filing fee of $1,225 – in exchange for a guaranteed decision within 15 calendar days.  This used to be a luxury – back when the normal processing times for H-1B visas was 4-5 months.

But now, the current processing time for someone filing an H-1B extension to continue working in H-1B status in our region is approximately 8-9 months.  Since employers are prohibited from filing an H-1B petition more than 6 months ahead of time, it is nearly impossible to get a new H-1B extension Approval Notice before the present H-1B status expires under regular processing. 

Since federal law and regulations permit a foreign employee working in H-1B status to continue working for 240 days following the expiration date of her existing H-1B status if her employer files an extension before her H-1B status expires, this would not be a particularly big deal…except that most states now issue driver’s licenses with an expiration date that corresponds to the H-1B validity date.  Thus, while someone who has timely filed an H-1B extension may still work, she cannot drive to work.

Thus, since most driver’s license offices require an H-1B Approval Notice to renew a driver’s license,  for about the past year it has become routine for foreign employees in H-1B status to use Premium Processing – just so that they continue driving to work.

 So the ability to use Premium Processing can make a big difference to employees in H-1B status.

But it’s an even bigger deal to a Physician who intends to use H-1B status to provide clinical care to patients following her Medical Residency.

Most foreign-educated physicians who complete their Medical Residencies in the U.S. complete their training using a J-1 visa.  But there is a catch.  The J-1 visa status requires the Physician visa holder to return home for 2 years following completion of her Residency in J-1 status.

Unless she gets a waiver of the 2-year home residency requirement

Typically, this is done with a Conrad 30 J-1 visa waiver.

Without going into great detail about the process, it is sufficient to say that it’s a lengthy process going through several state and federal agencies over several months before getting a decision.  But here’s a peculiarity of the Conrad 30 program:  it requires the Physician to begin work in H-1B status within 90 days of receiving an Approval of the J-1 Waiver.  Since nearly all Physician residencies conclude on the same day – (June 30) – this means that there is a window of time to get the J-1 waiver approved.  For a July 1 start date, one must actually get the Approval sometime after April 1.

What’s more, some states – like Tennessee – won’t issue an unrestricted Medical License until the Physician completes her Residency.  On the other hand, Conrad 30 J-1 waiver recipients are exempt from the H-1B cap – so we don’t have to worry about trying to get a petition filed on April 1 (while the Physician is still in Residency).

But the bottom line is – by the time the Physician is ready to file an H-1B petition, it is usually already May, June or July.

Luckily, we always had Premium Processing to make sure the Physician could begin work within 2 weeks of Residency completion….   I think you can see the problem.

If the Physician’s employer cannot use Premium Processing… and the processing time is 8-9 months… it’s possible that a Physician completes her Residency in June, but cannot begin to work until February of the following year. 

We can hope that perhaps USCIS will reinstate Premium Processing  sometime in October or November, but that is well past the 90-day window in which the Physician is mandated to begin employment,(not to mention that it is a long time after Residency just waiting to begin work).

It’s still a big deal.   

 

The Trump Travel Ban: version 2.0

On Monday of this week, the President issued a second Executive Order addressing the admission of refugees and certain persons from certain countries into the U.S.

The second effort is much narrower and tailored to address the flaws in the first ban which the 9^th Circuit Court of Appeals concluded were unenforceable.

Here is a snapshot view of some of the major differences:

·         Iraqi nationals were removed from the list of foreign nationals from predominately Muslim countries who were prohibited from admission to the U.S.

·         It eliminates the ban on persons from the remaining 6 predominately Muslim countries who have ‘green cards’

·         It re-establishes a 120-day ban on the admission of any refugees – but Syrian refugees are no longer ‘indefinitely’ banned; they are subject to the same 120 day ban just as other refugees

·         It reduces the total number of refugees resettled in the U.S. under the U.S. Refugee Assistance Program from 110,000 to 50,000

·         It no longer gives a preference to ‘religious minorities’ [most likely Christians in predominately-Muslim countries]

 

Several states have already filed lawsuits to block the new travel ban, fundamentally on the same basis as before.  However, since the Travel Ban 2.0 was crafted more carefully to avoid some of the legal flaws that led to the demise of the first ban, the outcome will be less predictable.

Here is a sample summary of some of the issues presented by the new Executive Order banning travel:

·         It appears that there is still an evidentiary weakness in naming Syria, Iran, Libya, Somalia, Sudan and Yemen as countries from which its citizens are prohibited from entering the U.S. because of fear that they may commit harm when they arrive in the U.S.  Although the sectarian violence and conflict in these countries is well-known, the relationship between the threat that exists in these countries with the threat that their citizens pose to the U.S. is tenuous from an historical precedent.

 

·         In the absence of historical precedent, the court may decide that a ‘blanket’ ban on entire nations is not well-suited  - ‘too broad’ - for the intended purpose of the ban.  A court may decide that the Department of Homeland Security and Department of State can ameliorate this perceived threat by less-dramatic means, such as simply scrutinizing the background of citizens from these countries on a ‘case-by-case’ basis.

 

·         The core intent and effect of the ‘Travel Ban’ is inextricably derived from the President’s earlier pledges to create a ban to prevent persons of the Islamic faith from entering the U.S.  Such a ban is clearly unconstitutional.  However, the Travel bans 1.0 and 2.0 maintain a restriction from at least 6 countries that are predominately populated by persons of the Islamic faith.  This tainted legacy of the ‘Travel Ban’ will be hard to disentangle from the very real security threats that the U.S. indeed faces from individuals and groups around the world who want to do harm to the U.S.  The origin and history of these ‘Travel Bans’ may doom their viability.

 

·         One final point to consider:  the Executive Order banning admission of certain persons from certain countries is stated to be ‘temporary’.  It’s a 90-day ban on nationals of the 6 predominately-Muslim countries and a 120 day ban on refugees.  The indefinite ban on Syrian refugees has been removed, so it is fair to consider whether or not this Executive Order is actually a temporary restriction.  A brief suspension of immigration benefits in response to an imminent threat – for the purpose of addressing security measures – would not in itself seem to be unreasonable.  The question for the courts would be – are the security measures actually in response to a verifiably real – or simply perceived – threat; if so, what actions are the Department of Homeland Security and Department of State taking to institute necessary ‘fixes’ to the system; and has the Administration placed too many restrictions on the ability to reinstate the normal travel accessibility once the ‘review measures’ and ‘fixes’ have been concluded after 90 or 120 days?

 

This is why our Constitution created a third and independent branch of the U.S. Government: to examine and determine whether or not an Executive action as controversial as this adheres to the body of law established by the Courts’ interpretation of the U.S. Constitution throughout our history.

 

Stay tuned as these cases make their way through our Court system.   

The 'STEM' bud is now showing...

Update on the STEM Extension

As discussed in our most recent post, there was concern that the deadline for the vacatur of the 17-month STEM OPT extension program would arrive without a new federal regulation to take its place.  [See our Blog of January 8, 2016]  The court's initial deadline was February 12, 2016.

Students concerned that they would have to relinquish their employment on that date can breathe a little easier.  The U.S. District Court for the District of Colombia recognized that the enormous volume of comments to the new proposed rule received by the U.S. Department of Homeland Security would require additional time for the Homeland Security to review the new proposed regulation.  Consequently, the Court set May 10, 2016 as the new deadline for vacating the previous regulation granting STEM students 17 months in OPT status.

Let's hope that a new regulation - basically providing the same benefits - is grafted into place by May 10, 2016.  

'Nipped in the Bud...

How Immigration Benefits for STEM graduates may get pruned

Because highly-sought H-1B visas are limited to only 65,000 each year, many highly-educated individuals seeking to work in the U.S. do not get a chance to secure work authorization in H-1B status.

Many of these applicants are foreign graduates of U.S. colleges and universities seeking work after graduation.

The greatest challenge for most of these graduates is a matter of timing. 

Here's why:

The allotment of 65,000 H-1B visas becomes available on the first day of the federal fiscal year, October 1.   However, one cannot apply for an H-1B visa more than 6 months ahead of time.  Thus, the first day someone can apply for an H-1B visa is April 1 of that same year.

Because of the intense demand for H-1B visas, U.S. Citizenship & Immigration Services, ('USCIS') typically receives more applications for H-1B status than there are available.  A whole lot more.  In fact, this past year, in April 2015, USCIS received nearly 3 times more applications than available H-1Bs.  In the first 5 days. 

USCIS will then typically hold a 'lottery' and randomly choose which H-1B petitions it will process.

Consequently, if you haven't filed your H-1B petition by April 5th, you're out of luck.  (Of course, even those who do get their H-1B petitions filed by then still may be arbitrarily denied a chance for an H-1B visa if his or her petition is not randomly chosen during the lottery.)

For graduates of U.S. colleges and universities, this poses a huge problem since most students graduate in May or June.  By the time they graduate, the H-1B application process has already shut down.  And since you must provide evidence of your educational qualifications, (e.g., a diploma), to apply for an H-1B visa, students are typically prevented from seeking an H-1B visa until April 1 of the following year.

Foreign students typically are allowed into the U.S. to study at U.S. colleges and universities with a 'student visa' - also known as an 'F-1' visa.

The final piece of the puzzle - if you haven't already considered it - is that the F-1 visa is valid only so long as the student is in a full-time course of study at a U.S. college or university.  When the program ends, (e.g., when a student graduates), then the student's F-1 visa status expires and the student must return to his or her home country.

Fortunately, there is an Option for these students to remain in the U.S. after their graduation.  It's technically an extension of the F-1 visa that allows the graduate to gain experience working in his or her field of study for one year following graduation.  This is called Optional Practical Training, (or 'OPT'). 

With OPT, a student can remain in the U.S. long enough to have the opportunity to file an H-1B petition during the next April's filing season.

In an effort to promote the workforce of highly-skilled technical employees, particularly for the technology sector, USCIS published a regulation in 2008 that permits an additional 17-month extension of OPT for individuals who graduate with a degree in one of the STEM areas, (Science, Technology, Mathematics and Engineering).  This would ostensibly give STEM graduates two chances to file an H-1B petition.

What's the Problem?

When the Department of Homeland Security published the regulation granting an additional 17-month extension of OPT, it did so without the customary 'Notice and Comment' period required of agencies wanting to promulgate new federal regulations.  It's argument was that the need to issue the regulations was so important at that time of year that it constituted extraordinary circumstances permitting it to avoid the Notice and Comment period.

Not everyone was enamored with these new regulations.  The Washington Alliance of Technology Workers concluded that it was harmed by the regulations, so it challenged the legitimacy of the 17-month STEM OPT extension, by filing suit in the Federal District Court for the District of Columbia.

The Federal Court ultimately agreed in August 2015 that the STEM OPT 17-month extension regulations were not properly promulgated and vacated the regulations - in effect saying that they should not be given any effect.  Nipped in the bud, if you will..

However, the Court also recognized the tumultuous consequence of instantly invalidating the work authorization of thousands of students working with STEM OPT 17-month extensions, so it stayed the vacatur of the regulations (postponed its effect) until February 12, 2016.

The Court stated:

     "The Court sees no way of immediately restoring the pre-2008 status-quo without    causing substantial hardship for foreign students and a major labor disruption for the technology sector.  As such, the Court will order that the 2008 Rule - and its subsequent amendments - be vacated, but it will order that the vacatur be stayed."   


It was anticipated that this delay would give the Department of Homeland Security enough time to go through a proper Notice and Comment period to validate these regulations.  However, on December 22, 2015, the Department of Homeland Security filed a Motion with the Court requesting additional time to complete the Notice and Comment period, train and educate personnel on the regulations.  The Motion requested that the stay remain in place until May 10, 2016.

As of today, the Court has not yet ruled on the Motion to extend the stay.  However, if the Motion is not granted, foreign graduates working under a 17-month OPT STEM extension may want to be prepared for the consequences on February 13, 2016.

Stay tuned for more information as it becomes available...

Is There a Doctor In The House…or Senate?

 

A long-term patient known as ‘Conrad’ is about to expire on September 30, 2015 unless Congress can resuscitate it and provide a permanent cure.

The ‘Conrad 30’ Program, named after former North Dakota Senator Kent Conrad - the law’s original sponsor, is a program for foreign physicians who come to the U.S. with a J-1 visa to complete their medical residency.  The J-1 visa permits foreign medical graduates to receive education and training in a Residency program in the U.S.  However, one of the terms of the J-1 visa – also known as an ‘exchange-visitor’ visa – is that it requires the visa holder to return to his or her home residence for 2 years before being eligible to adjust status or change to another type of visa that permits her to practice medicine in the U.S.  In other words, the newly-trained physician must return home for 2 years before being able to practice medicine in the U.S… unless….

…the physician is able to get a ‘waiver’ of the 2-year home residency requirement found in §212(e) of the Immigration & Nationality Act.

There are several ways in which any J-1 visa holder may request a ‘waiver’ of the 2-year home residency requirement; among these are ‘subject to persecution’ if she were to return to her home residence, exceptional hardship, and other scenarios with very high standards that not everyone can meet.  But physicians have a friend in ‘Conrad’.

The ‘Conrad 30’ program is designed specifically for physicians who desire a waiver of the 2-year home residency requirement.  Each state runs its own ‘Conrad 30’ program with its own set of guidelines, but there are a few fundamental terms that all ‘Conrad 30’ programs share; among those are that a physician must be willing to serve at least 3 years in H-1B visa status working at least 40 hours/week in a federally-designated medically underserved area providing primary care – and sometimes specialty care – to the underserved population.   You already know why it’s named ‘Conrad’; the ‘30’ stands for the number of slots available in each state for physicians willing to serve in these medically underserved areas.

Although there are some other programs that provide ‘waivers’ for physicians in J-1 visa status, (for example, Appalachian Regional Commission, the U.S. Department of Health & Human Services, U.S. Dept. of Veterans Affairs, etc.), these other programs have narrow restrictions that limit their availability.  It is recognized that the Conrad 30 program is likely the most useful waiver program for physicians in J-1 status.

However, the original Conrad 30 program had a ‘sunset’ date that has been extended by Congress to keep the program alive for years.

Unless you’ve been in a coma for the past several years, you must recognize that the volatility and rancor of our elected leaders in Congress make the prognosis of their cooperation on an immigration bill anything but certain.

 This year presents a risk that the program will die due to the negligence – and perhaps the intentional refusal of care - of our politicians.

The good news is that Senators Klobuchar of Minnesota and Heitkamp of North Dakota have introduced a Bill in the Senate, (S. 1189) that not only extends the life of the Conrad 30 program, but makes it a permanent federal law by removing the ‘sunset’ provisions.

Known as the ‘Conrad State 30 and Physician Access Act’, this bill would also clarify certain elements of the National Interest Waiver for physicians and permitting the spouses of H-1B visa-holding physicians to change status to other types of visas besides the ‘H-4’ derivative visa, among other things.

The ‘Conrad State 30’ Program is a powerful incentive for healthcare systems in rural, urban and other medically underserved areas to attract and keep physicians to care for communities in need of primary care medical services.  Many healthcare systems rely heavily upon the benefits of the Conrad 30 program to staff their hospitals and facilities - and foreign medical graduates recognize the valuable benefit it provides for them; its demise would impact these communities disproportionately.

So if you were waiting for the right opportunity to contact your U.S. Senator or Representative on an issue that overwhelmingly affects the health of small, rural communities, this would be a good time to ask for their support of Senate Bill 1189 – before it’s too late.

Experience Counts

Most of the employees I see coming to this country for professional jobs for my client employers want to become Lawful Permanent Resident, and, eventually, U. S. Citizens.  It is their goal not only to work here, but also to “live the dream”.  One of the first questions I get when filing for their L or H status is: “When can I get my ‘green card’?” 

For non-immigrant workers, that path to a green card often begins with the PERM Process, or the Permanent Labor Certification Process.  This is a process that must be initiated by an employer for an employee, and often employees will make that a condition of their employment during their hiring process.  A benefit of this process is that it takes into account the derivatives listed on the non-immigrant petition when the employee came to work in the United States.  Therefore, within one process, a non-immigrant worker, his/her spouse, and their minor children can all get their “green cards” at once.  Another benefit of this process is that if the filing is done within a certain time period, non-immigrant workers in H-1B status can extend their stay past the normal expiration date for a non-immigrant worker in H-1B status.  This is particularly important for those workers from one of the countries that have a waiting period before the actual lawful permanent resident application (Form I-485) can be filed. 

One of the most important steps in this process is the proof that the beneficiary of this process is qualified for the job for which the recruitment was done and the Labor Certification was issued.  An important part of that proof is the experience letter, which is the best and most useful documentation of the experience of the employee to be sponsored.  An experience letter is a letter from your previous employer(s) showing not only that the applicant has experience, but also that the applicant has the relevant experience for the job being offered.   Unfortunately for the applicant, that experience shouldn’t come from their current employer, even at another location.

As we work with the employers to obtain lawful permanent resident status for one of their employees, we will assist in the preparation of the experience letter to be sent to a previous employer.  The reason for this is that experience letters are more than just a matter of detailing that an employee worked somewhere and the dates of that employment, but also what that employee did while there to show that the employee has the experience required for the position.  Experience letters need to be on the letterhead of the previous employer, contain the name and contact information for the person signing the letter, the title and relationship to the employee of the person signing the letter, the start and end date of the employee’s employment, the title of the employee while at that company, whether the position was full or part-time, and a brief job description of the duties performed by the employee while at the company.  The job description should contain duties and tasks which are relevant to the position that employee has, or will have, with the employer who is sponsoring that employee for their lawful permanent resident status.   All of these elements should be in the experience letter as proper evidence of the employee’s experience and/or training.  If any of these elements are missing or lacking, USCIS can, and most likely will, reject the letter and conclude that the petitioner has failed to prove that the employee has the required experience or training.

These experience letters must be from a person who has direct knowledge of the actual work the employee performed while working for the previous employer.  This also needs to be a person who directed that work, not just a co-worker.  The best person to provide that experience letter will be a manager that was directly over the employee or their supervisor, either of whom is still working for the previous employer.  Other alternatives are managers or supervisors further up in leadership chain of the company who have managerial or supervisory responsibilities over the former employee’s direct manager and/or supervisor and are still with the previous employer.  Finally, if there are no managers or supervisors that were there when the employee was at the previous employer, then the letter can be signed by someone in the human resources department to confirm the dates of hire and the job duties for the position the previous employee was in.

However, some of the employee’s previous employers may have been acquired by another company in a merger or buyout.  This can create problems, but, with enough forewarning, steps can be taken to get a previous manager or supervisor, who is with the new company, sign an experience letter while providing USCIS enough information regarding why the information is being provided by the a new company.  This will allow USCIS to determine that the information from this new company is actually the same as if it had come from the previous employer.  This process, however, takes more time and can delay the filing of the I-140 if not started early in the PERM Process.

Another problem is when the previous employer is no longer in business.  Sometimes, if an employee is aware of his employer’s financial difficulties and is concerned over that employer’s viability to continue to do business, it is advisable to have that employer write an experience letter, detailing all of the information above, very shortly after the employee obtains new employment so that the employee is not stuck without the very valuable experience letter if the company closes.  When a company dissolves, the records are often lost or destroyed and there is no way to obtain an experience letter from that previous employer.  However, all is not lost.  USCIS has allowed for former managers or supervisors who are with new companies to write experience letters on behalf of a former employer since it is impossible to obtain an experience letter from that previous employer.  The requirements of the experience letter do not change, but the wording has to address why the letter is not from the previous employer, but rather from a different company where the employee had no previous contact and detailing that the previous employer is no longer in business.

While experience letters are not needed until the I-140 petition filing stage, we get them as soon as possible in the PERM Process.  Experience letters allow us to confirm exact dates of employment for the Labor Certification Application; to verify experience needed for the job being recruited for to make sure that the employee has the required experience for the job; and to determine if additional steps are going to have to be taken to get the experience letter that is needed due to some of the scenarios discussed herein.  The experience letter relates to the entire PERM Process; and experience counts.

Immigration in the 21st Century

Welcome to the Hunter, Smith & Davis, LLP Immigration Blog!

The Immigration Practice Group at Hunter, Smith & Davis, LLP, (known informally as 'HSD Immigration') is pleased to offer this source of information, commentary and insight into immigration in the 21st Century.

The hot topic of immigration is not limited to foreign nationals - it affects everyone - and it is not just an American issue.  The reality of accessible transportation and advanced communication has facilitated the migration of people all over the globe.  And some nations are dealing with it better than others.

The tragedy of the deaths of more than 80 African immigrants after their boat capsized off the coast of Italy last October brought attention to the desperate plight of persons encountering danger while seeking to escape their own dangerous or hopeless situations.  Syrians fleeing violence end up straining the resources of Jordan and neighboring states as they seek safety in refugee camps while Eastern Europeans seeking economic opportunities in Western Europe often find hostile communities there.  Immigration is a global issue.  Finding ways to accommodate the new reality of global migration is one of the great challenges of the 21st Century.

In the U.S.,  we are facing the immediate challenge of navigating between securing the border against threats to our national security while providing opportunities to persons around the world who offer a diverse mix of cultures, gifts, knowledge and experience that give the United States its preeminent character.

You will not find this blog to be a political forum for debate on the issue of immigration reform.  The reason for this is simple: it is recognizing up front that one of the few things that both parties - and their constituents - universally agree upon is that the current immigration system is dysfunctional.  What we will do along the way is help readers come to a fuller understanding as to why it is dysfunctional and identify areas for change.  There is no need to align with one political identity or another to do this.

For example, in about 2 months, immigration practitioners around the country will scramble, sweat and steer their clients through the ridiculous annual rite of the 'H-1B Games'.

[For those who do not know, the 'H-1B visa' is a popular visa for foreign professionals working in a 'specialty occupation'.  There are approximately 65,000 that become available on October 1 of each year.  Since an H-1B visa petition cannot be filed more than 6 months in advance, the first day one may apply for an H-1B visa is April 1 of each year (this is no April Fool's joke).  Unfortunately, the demand for these visas is easily twice as much as the number of available visas.  So one April 1 of each year, the FedEx and UPS trucks line up outside of the USCIS Service Centers full of H-1B petitions that everyone in the country has filed at once.]

For the past several years, because there are not enough visas to fulfill the need, the 'H-1B Games' (like the 'Hunger Games') has devolved into a 'Lottery' at which time USCIS will randomly and arbitrarily choose which professionals will get the opportunity to have their Petitions examined for a visa.  Invariably, world renowned researchers, physician specialists and other valuable talent sit out for another year while others - some less deserving, others perhaps more deserving - get an opportunity for a visa simply by the whims of chance. 

These are important developments that affect the lives of individuals, their employers and companies that rely upon employees with these specialized skills and training to excel in today's global economy.

Existing immigration laws also affect families who arrive and stay in the U.S.  One of the fundamental principles of U.S. immigration laws has been 'family unity', but the haphazard federal and state legislation and inconsistent application of laws and regulations have left many families scattered and hopeless about the chances of reunification.

At Hunter, Smith & Davis, we encounter these and many other of the myriad of immigration circumstances that affect employers, employees and families striving to contribute to the American Dream.  We are therefore in a  unique vantage point to elucidate, comment and inform you on the latest developments and issues in immigration law.

We hope you will continue to join us as we navigate these challenges moving forward into the 21st Century.  Welcome.  

Bienvinedo.
歡迎
Benvenuto
Willkommen
आपका स्वागत है
Welkom
Bienvenue

                                              -Your HSD Immigration Team-

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