U.S. Immigration Policies Hurting Companies and People

Between the ridiculous RFEs asking, among other things, zonal and fire dept. permits for IT consulting companies, work orders for three years, 221g’s at the consulates and the so-called ”administrative processing” of cases for several months at consular posts in India, the apparent CBP excesses at the ports of entry (for example Newark), the apparent revision of H-1B forms requiring employee attestations, the Administrative Site Visit and Verification Program (ASVVP) aka anti-fraud visits, the Verification Initiative for Business Enterprises (VIBE) background  checks, and now the Neufeld guidance on H-1B adjudications, the USCIS is, in essence exterminating businesses dependent on H-1B visas.

The worst effected are small to mid-size companies in the U.S.  From an employer standpoint, after clearing all the above hurdles, there is no guarantee that an employee will make it beyond the airport.   And for those H-1B workers who are already in the U.S. with their families, if an H-1B extension is denied for some absurd reason, that pretty much leaves them with no option but to leave the U.S., inspite of the fact that there may be children in the middle of a school year, a pregnant spouse, or a treatment-undergoing child for some ailment.  If anybody at the USCIS is listening – THESE ARE REAL PEOPLE, REAL LIVES.  DON’T TREAT THEM AS JUST FILES!

 

USCIS to Significantly Increase Employer Site Visits

As part of its H-1B “anti-fraud” initiatives, the U.S. Citizenship and Immigration Services (“USCIS”) conducted 5,191 site visits the previous fiscal year.  In a recent letter to Senator Chuck Grassley of Iowa, the USCIS informed that in the current fiscal year (October 1, 2009-September 30, 2010), there will be 25,000 H-1B employer site visits.  The letter further states that the fraud investigation officers will make surprise visits to H-1B employers’ offices and/or even client locations where an H-1B employee is stationed.  Based on the experience of several H-1B employers, it is evident that the officers typically ask questions about the H-1B petition, salary information, ask to see actual work station of the employee, job title and functions, supervising person’s information, if employee is available, interview the employee, and ask to take photographs of inside and outside of the work location or employer’s offices.  It is suggested that employers cooperate with the investigating officers in a reasonable manner. 

The said letter to the Senator also refers to the fact that USCIS contracted with Dunn & Bradstreet as independent information provider.  D&B will provide information the adjudicating officers seek in relation to adjudicating H-1B petitions.  It might also include L-1 and other employment-based petitions although the letter does not specifically address the L-1 category.  The officers will primarily access D&B and other commercially available resources in performing background checks on the employers, including but not limited to, financial viability of employers, number of employees, and other pertinent information.  

At this time, it is prudent for employers sponsoring work visas to obtain a copy of the D&B report to ensure that the information contained in the report reflects the accurate information about their companies. 

 

USCIS Issues Guidance on H-1B Adjudications

The legal requirement that TARP funded companies are not allowed to file H-1B petitions was only the tip of the iceberg of what was coming.  It appears like the worst is yet to come and that this is just the beginning of the onslaught on consulting companies in the United States.  On January 8, 2010, the United States Citizenship and Immigration Services (USCIS) issued guidance pertaining to adjudication of H-1B petitions, specifically in the context of its escalated strict scrutiny of H-1B employer-employee relationships and third-party site placements.  Among other things, the definition of an ”employer” has been narrowly interpreted to exclude a lot of businesses intending to file H-1Bs.  The guidance addresses multiple scenarios where the placement at third-party sites takes place and includes IT consulting companies as well. 

Where an H-1B employer intends to place its employee at an offsite location, the USCIS will, in the adjudication of such an H-1B petition, ensure that there is a valid employer-employee relationship in place.  In the context of third-party work sites and existence of employer-employee (Petitioner-Beneficiary) relationship, such evidence would include, but is not limited to - 

1. Petitioner’s right to control the H-1B Beneficiary.  Right to control may be exercised by the Petitioner supervising the job duties of the Beneficiary.  It need not be supervision of each and every function. 
2. Petitioner’s review of the Beneficiary’s duties;
3. Petitioner’s authority to hire and fire the Beneficiary;
4. Petitioner’s authority to conduct performance evaluation and make salary revisions;
5. Petitioner’s payment/reimbursement of food, travel, and lodging expenses to the Beneficiary;
6. Whether the Beneficiary reports to the Manager or other person with supervisory authority of the Petitioner at least on a weekly basis.  Supervision may include, but need not be limited to, weekly updates to the Petitioner via phones or other medium of communication, review of timesheets, reporting back to the main office of the Petitioner;
7. Whether the Petitioner pays wages to the Beneficiary on a periodic basis;
8. Whether the Petitioner provides fringe benefits to the Beneficiary;
9. Whether the Beneficiary utilizes the Petitioner’s tools, technologies, and/or processes at the offsite location;
10. Whether the Petitioner reviews the progress of the Beneficiary at the offsite location on a periodic basis; and
11. Whether the Petitioner claims the Beneficiary as its employee for its tax purposes.    

The above list is not exhaustive.  In addition, the USCIS has indicated in its guidance that the H-1B petitions consisting of 1) self-sponsored employees; 2) independent contractors; and 3) third-party placements (job shops) are likely not going to be approved.  The guidance provides a whole host of documents that the employers are required to submit in cases of initial filings, extensions, or transfers. 

It goes to show that the USCIS is operating in a world that is far from the present-day reality of business world.  This is certainly going to drive a lot of companies out of business in this tough economic environment.  As one employer says, “if our clients’ requirements are not met due to these protectionist and restrictive laws, the clients are going to outsource the projects to companies outside of U.S.”

 

Immigrant of the Month – Jerry Yang

Jerry Yang - the Co-Founder of Yahoo! and its former CEO.  Born in Taiwan, Jerry Yang moved to the United States when he was 8 years old along with his family.  Growing up in California, he obtained undergrad and graduate degrees from Stanford University.  Along with David Filo, Jerry Yang founded Yahoo! web portal in the early 1990s, which paved the way for millions of people obtaining email addresses, online search which was powered by Google for a few years, e-commerce, among other things.  The success story of Yahoo! made Jerry Yang a rich man with his personal net worth upwards of $2 billion.  Apart from his achievements, Jerry Yang is also known for his philanthropy.  He and his wife donated several million dollars to Standard University.  Here’s congratulating Jerry Yang for his contributions to the field of information technology, internet, and for co-founding Yahoo! and providing jobs to thousands of people in the United States and around the world.

 

H-1B Quota Reaches Cap on December 21, 2009

Nearly 9 months after the H-1B filings began,  USCIS has informed that as of December 21, 2009, it has received sufficient petitions to reach the cap for FY2010.  It will reject cap-subject petitions seeking an employment start date in FY2010 (Oct 1, 2009 – September 30, 2010) that are received after December 21, 2009. USCIS indicated that will apply a computer-generated random selection process to all petitions that are subject to the cap and were received on December 21, 2009.  The next cap-subject H-1B filings begin April 1, 2010 for an employment start date of October 1, 2010.

 

Comprehensive Immigration Reform ASAP Act of 2009 Introduced in Congress

Rep. Solomon P. Ortiz (D-Texas) and Sen. Robert Menendez (D-New Jersey) have introduced “Comprehensive Immigration Reform for America’s Security and Prosperity Act of 2009“ legislative bill in the House of Representatives and Senate, respectively.  The legislative bill itself is 644 pages.  While there are a whole host of issues addressed in the bill, I skimmed through some portions of it and here are some points based upon my understanding of it:

 

• Increases the Employment Based quota from 140K to 290K per year with recapture of past unused numbers.
• Recaptures of Family Based unused numbers.
• Immediate relative definition to be expanded to include imm family members of LPRs as well.
• L-1 violations to be investigated by DHS
• Mandatory L-1 employer audits on an annual basis.
• Mandatory compliance audits of employers with more than 100 employees total and if 15% are L-1.
• Prevailing wages for L-1 employees.  And mandatory Level 2 of OES wage for L1 positions.
• Mandatory filing of W-2 evidence by employers with DHS on a yearly basis.
• Money penalties of $10,000 per violation of H-1 or L-1 laws.
• DOL to hire additional 200 staff to handle complaints, etc.
• L-1B employees placement is tied to displacement of U.S. workers at client sites.
• L-1B placement at client locations no more than 1 year unless DHS Secretary waives in writing stating that no U.S. worker is displaced. 
• Restrictions on new office L-1s by requiring a long list of documents.  Sort of like RFE is etched in the law itself!!!
• No discussion of H-1B quota increase or anything (at least to the extend I read).
• And many more, which I could not get to yet. 

If you want to read the bill for yourself, click on the following link:

http://thomas.loc.gov/cgi-bin/query/z?c111:H.R.4321:

 

USCIS H-1B Quota Update – 64,200

USCIS confirmed that as of December 15, 2009, it received 64, 200 H-1B petitions out of a possible 65,000.   USCIS continues to accept H-1B petitions as of December 15, 2009. I will continue to monitor the numbers and will try to post the latest information on the blog.

 

WSJ Article discusses “Outdated Indian Visa Rules” But Completely Ignores H-4 Visa Issue

An Article published on Wall Street Journal criticizes unfavorable visa rules in India that do not allow for spousal work permits.  Guess What? I did a ctrl+F to find the word “H-4″ in this article and to my surprise, there is absolutely no mention of U.S. visa rules pertaining to H-4 visa holders’ inability to work.  According to the article, the U.S. recognized work visa categories and “allows their spouses to seek employment freely or with the minimum of procedure”.  We all know that this statement is not complete.  Well, how could a discussion on spousal work permits in the U.S. immigration be complete without addressing the inability of H-4 spouses to seek employment?  In response to the said article, I provided my comments to the author:

Ms. Kathleen:

I read your article on outdated visa rules in India.  While I understand your argument that the rules should be relaxed so dependent spouses (husband or wife) could apply for work permit, it is quite important to note the reciprocity rules and how thousands of Indians are left to stay home without having an ability to work. 

For example, in the U.S., there are thousands of H-4 individuals, dependent visa holders of H-1B work permit visa holding spouses.  These H-4 folks are several times high in number compared to L-2 spouses, dependents of L-1s.  E-1 or E-2 is not available for Indian nationals.  This means that even though there are thousands of eligible H-4 spouses with college degrees, they are staying home doing nothing.  There is no rationale I can think of in allowing L-2 and E-2 spouses to work and not H-4 other than the rationale that if H-4 spouses are allowed to work, that would mean the H-1B quota is in essence twice in number because most H-4 spouses are well-qualified to get a job in the U.S. and will indeed get those jobs.  This narrow-minded, restrictive rule of not allowing H-4 spouses to work is missing in your article.       

If you want to truly raise your voice for spousal work permits, please include the H-4s in your future articles as well.  Your article is totally one-sided in its interpretation of US immigration laws, totally ignoring the most important visa category  – H-1B/H-4.  Any “work permit for spouses” argument cannot ignore the H-4 spousal work permits.  In fact, there are websites if you are interested in checking out.
http://www.h4help.org/jjj/index.php/Jobs.html
http://www.lekhika.com/h4help/

Regards,
Krishna Palagummi

 

E-3 Visa For Australian Nationals

Under the U.S. immigration laws, E-3 temporary work visa category has been established.  E-3 visa is similar to H-1B visa category in terms of eligibility requirements except that: E-3 visa has a separate quota of 10,000 visas annually; E-3 visas are not counted in the H-1B cap; and there is no limit on number of E-3 (two-years each) extensions you can get (with some exceptions).  The State Dept. confirmed that it is not necessary that Australians need to apply for an E-3 at one of the U.S. consulates in Australia only.  Therefore, the flexibility of applying for an E-3 visa at any U.S. consulate that processes non-immigrant visas makes things easy in terms of not having to take a long flight to Australia if you are already in the U.S. or in this part of the world.      

 

CNN Blog Discusses the “Failure” of H-1B Visa Program

A blog post on CNN’s website by David Gewirtz, a CNN contributor, explains the failure of H-1B visa program.  Unfortunately, Mr. Gewirtz gets the facts wrong.  In one place on his post, Mr. Gewirtz claims that the H-1B quota has permanently increased to 115,000, while the truth is that it is still at 65,000.  The blog refers to “adding” an additional 6,800 visas, which again is inaccurate piece of information.  6,800 is a result of US trade agreements with Chile and Singapore and it is not in “addition” to the 65,000 quota but it is in fact part of it.  Thus, the general quota remains at 58,200; Chile and Singapore – 6,800; and US advanced degree holders quota at 20,000. 

Elsewhere in his blog, Mr. Gewirtz explains that H-1B is an extendable visa which can be extended up to 10 years in total.  The truth is H-1B visa is available for a maximum period of six years only.  Not sure where Mr. Gewirtz got his number from. 

Mr. Gewirtz goes to great lengths to refer to India and China coming out of “abject” poverty – perhaps his knowledge of 1990s India is from a movie “Salaam Bombay”, how Indian companies filed thousands of H-1Bs, but also refers to a few top US companies that filed H-1Bs. 

The truth is that economic conditions and the market always have been guiding the demand/supply for temporary foreign professionals (I prefer to use the word “professional” as opposed to “worker” because H-1B visa category, which is for Specialty Occupations, requires that individuals hold at least a Bachelor’s Degree”).  For example, in 2009, the H-1B quota has not reached the cap yet, i.e. 8 months after USCIS started to accept visa petitions.  Thus, we do not really need to have a quota system.  The demand and supply is all dependent upon market conditions.  Moreover, immigration rules do not allow for filing of speculative H-1B visa petitions.  Thus, unless there is a genuine need for a foreign national to work on a given project, an H-1B is unlikely to be approved by USCIS.  In an in-depth research on H-1B program by Harvard University, H-1B program is said to be not displacing American workers as concluded by Mr. Gewirtz.  All of Mr. Gewirtz’s opinions in his blog are perhaps a summary of his upcoming book “How To Save Jobs”.  While Mr. Gewirtz has right to his opinions, as a CNN contributor, he has the responsibility of not deviating from providing the public with accurate information.  Next time, Mr. Gewirtz  – do your homework before writing about an issue!  And the irony is that even CNN is dependent on H-1B professionals at least since 2002 and a few of them  – software professionals.     

http://ac360.blogs.cnn.com/2009/12/04/the-failure-of-the-h-1b-visa-program/