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”]

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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