Behind The Scenes, Immigrants Keep The USA Running

Many of us in the 21st century spend a big part of our lives “online,” yet the virtual world still depends on the physical, including the labor of those who create, manufacture, and provide the essential goods and services that everyone requires. Many of us connect to this behind-the-scenes, virtually invisible economy only when we purchase the final product from a retailer, but at every stage in the economic chain, real people by the millions contribute real muscle and sweat every day.

In the United States in the 21st century, for example, it’s almost a certainty that the blueberries, strawberries, peaches, asparagus, or lettuce you purchase from any grocer passed through the hands of Latin American migrant labor. Closer to home, many of us see – and hire – housekeepers and lawn service providers who are immigrants. They’re servers and cashiers. In many cities, immigrants drive most of the taxis and deliver most of the newspapers. They perform many of the mundane essential functions that keep the economy running.


If you hire immigrants to work for your company in the United States, or if you are yourself an immigrant in the United States – with or without documentation – you can learn more about your legal rights, obligations, and options by speaking with a trustworthy and experienced Michigan or Ohio immigration attorney. Immigration law is complicated and constantly changing, which sometimes makes compliance quite challenging for both employers and the immigrants they hire.


At one newspaper, the Boston Globe, reporters and editors earlier this year encountered for the first time a world previously invisible to them. In their climate-controlled offices and conference rooms, these professional journalists and their bosses had only the vaguest notion about how their work actually, physically gets into a reader’s hands in the form of a morning newspaper. For the most part, newspapers are delivered by low-paid immigrants. The story began late last year when the Boston Globe contracted a new company to deliver the newspapers.

If you thought newspapers were dead, they’re not in Boston, where several hundred thousand subscribers to the Globe expect delivery 365 days a year. Although the change to a new contractor should have been routine, it wasn’t. Like so many other behind-the-scenes services, the delivery of newspapers in many cities is provided by mostly marginalized immigrant workers, and many of them lack documentation.


To move a printed newspaper from the presses into hands of thousands of Boston subscribers takes a small army of people willing to work 365 nights a year – without regard to snow or road conditions. At a distribution center, they fold and stack newspapers, load them, and use their own vehicles, driving in the last several hours before sunrise. As independent contractors, they pay for their own gas and insurance. Most barely make the minimum wage. Many of the delivery people are immigrants.

ACI Media Group promised to cut the Globe’s costs for delivering newspapers by paying delivery workers less – while demanding more. ACI, based in California, had trouble hiring enough workers in the Boston area to deliver the Globe, and many who were hired walked off the job due to low pay and unreasonable working conditions. Newspapers went undelivered – news that quickly made it to the Globe’s newsroom.


After a week, the newspaper was in crisis. Writers, photographers, and editors were recruited to make sure the Sunday Globe got delivered – an unprecedented move. According to the New York Times, two hundred reporters and other staffers stayed up all night and “bagged thousands of newspapers and stacked them in their cars.” Reporter Kevin Cullen wrote, “whatever they pay the delivery people, it’s not enough, and it’s more than a little depressing to think this debacle has been brought about by a desire to pay them even less.”

Globe Columnist Marcela García wrote that delivering the newspaper was “an unbelievably eye-opening experience.” A Mexican-born bilingual journalist, columnist, and editorial writer who frequently reports on immigration issues for the Globe, Garcia added, “Reporters delivering their own work – that’s a story. But off camera, and working side by side with us as we assembled the Sunday paper, were the people who are there every night, making not much more than minimum wage.”


The following Tuesday, the Globe’s publisher, John W. Henry offered a public apology to the newspaper’s subscribers. Henry wrote, “Getting a daily newspaper to your front door is a complicated exercise in logistics – this is something the Globe has been innovating in for more than 150 years…. Until Globe staffers embarked on an effort to save more than 20,000 subscribers from missing their Sunday paper, we had underestimated what it would take to make this change.”


The following Saturday, January 9, almost two weeks after the newspaper’s delivery problems first emerged, Globe reporter Michael Levenson wrote about the “long hours, little pay, [and] no vacation for delivery drivers.” Levenson graphically explained for readers the “grueling nocturnal marathon for low-income workers who toil almost invisibly on the edge of the economy.” On January 13, a Globe editorial admitted that “drivers get no vacation, and lack worker protections.”

The editorial called on the Massachusetts attorney general and federal authorities to investigate the delivery companies. The present system depends on mostly immigrant, often undocumented workers who are often manipulated and bullied by unscrupulous employers. The Globe offered a rare look at how just one company relies on immigrant workers. A similar story could be told about thousands of U.S. companies in a number of labor-intensive industries, from agriculture to manufacturing to construction.


Recent data released by the Institute on Taxation and Economic Policy (ITEP) tells us that immigrants in the United States pay sales taxes, property taxes, and state and federal income taxes. Half of all working immigrant families file income tax returns, but if they don’t, the taxes are still paid because they’re deducted from paychecks. ITEP says “the 11.4 million undocumented immigrants living in the United States pay billions of dollars in local, state and federal taxes.” Hard-working immigrants deserve the same reasonable wages and benefits that U.S.-born workers expect and routinely enjoy.

If you are an immigrant in the United States – with or without documentation – and you have questions about your legal status, work authorization, visas, or any other immigration concern, speak at once with an experienced Michigan or Ohio immigration lawyer. An experienced immigration attorney can also discuss immigration-related labor concerns with U.S.-based employers.

Business Coalition Asks Congress To Renew EB-5 Investor Visa Program

For more than two decades, the EB-5 investor visa program has benefitted U.S.-based businesses as well as international investors. It’s created tens of thousands of jobs here in the United States. It’s also been criticized for a number of reasons. Congressional authorization for the EB-5 program is scheduled to expire in 2016 at the end of the fiscal year on September 30. Hopefully, Congress will act to protect and strengthen the EB-5 program and safeguard its ongoing success.

With the September 30 deadline rapidly approaching, international investors who would like to learn more about the EB-5 investor visa program and about the variety of investment opportunities in the United States may want to speak right away with an experienced Ohio immigration attorney. Congress will almost certainly renew the EB-5 program this year, but the lawmakers will also almost certainly make some important changes. The $500,000 minimum investment level may increase, the definition of a Targeted Employment Area will likely change, and there will almost certainly be new requirements for participating investors.


Business groups including the U.S. Chamber of Commerce, the Real Estate Roundtable, the American Immigration Lawyers Association, and others have joined in a coalition urging Congress to renew – permanently – the often-controversial EB-5 investor visa program before it expires in September. In July, the coalition called on lawmakers to renew the EB-5 investor visa program with additional security measures, adjustments to the controversial investment incentives, and streamlined processing of visa requests.


The EB-5 investor visa program promises international investors in the United States eventual lawful resident status and an opportunity for naturalized citizenship. In a letter to both the House and Senate Judiciary committees, the coalition wrote that “Congress must not let this important job-creating program lapse, in large measure because of the immediate negative consequences to U.S. businesses and projects counting on EB-5 investment to create jobs for Americans.”

The coalition’s July letter also mentions that the EB-5 investor visa program was responsible for more than $15 billion in investment and for creating approximately 100,000 jobs between 2005 and 2010. Some critics, however, allege that the EB-5 program is riddled with fraud, and others charge that the current operation of the program fails to meet the goal of reinvigorating economically depressed communities and regions. There’s wide agreement in Congress that additional security measures and some adjustments to the program are needed. Several lawmakers have even proposed the creation of a new “EB-6” visa.

The most acrimonious aspect of the EB-5 debate regards investments in economically depressed areas designated as Targeted Investment Areas (TEAs). Critics charge that wealthy real estate developers have unfairly taken advantage of the lower investment minimum required for TEAs, and that rural and depressed regions are not obtaining the benefits from the EB-5 program that they’ve been promised.


The coalition of business groups did not offer a specific proposal for new EB-5 legislation, but they want to reduce the gap between TEA and non-TEA minimum investment requirements. Their July letter to the two Judiciary committees says, “Lawmakers and stakeholders with diverse perspectives should all be involved to build consensus and forge a compromise reform package.”


Since the recession, the EB-5 investor visa program has emerged as a popular source of investment funds, particularly for real estate development projects. In the nation’s capital alone, EB-5 investors have put up more than $110 million and created more than 1,500 jobs. In 2013, about 85 percent of the EB-5 visas issued went to investors from China, with the others were spread among investors mostly from Japan, Great Britain, Russia, and South Korea.

Congress wants to tighten oversight of the popular program, so a number of changes to the EB-5 have been offered by lawmakers. The ideas include increasing the minimum investment, not counting derivative visas toward the annual cap of 10,000 EB-5 visas, and heightened scrutiny of applications and investments. The variety of proposals proves how important the EB-5 program is to the U.S. and to its job creation and economic growth. Between 2005 and 2013, the EB-5 program brought roughly $5.2 billion investment dollars directly into the United States.


Under the current regulations, an international investor seeking to obtain an EB-5 visa must invest at least $1 million – or at least $500,000 in a TEA – in a new business that will create ten or more full-time U.S.-based jobs. The EB-5 program additionally offers participating international investors and their immediate families the benefits of lawful permanent residency in the United States.


To participate in the EB-5 investor visa program, investors must go through a process which determines that they are admissible to the United States as well as eligible for the EB-5 visa. It begins with the filing of an eligibility petition. For the EB-5 visa, this is the I-526 petition, which asks about the source of the investor’s funds and how he or she intends to invest those funds. Upon approval of the eligibility petition, if the investor now lives outside the of the U.S., he or she must submit a visa application to the U.S. Department of State, and a consular affairs officer at a U.S. Embassy or Consulate eventually determines if the investor is admissible.

If the investor is in the United States with another visa, an application for adjustment of status must be submitted to the U.S. Citizenship and Immigration Services (USCIS). USCIS conducts background checks and may ask the applicant for a personal interview. USCIS may also be assisted by the State Department or other federal government agencies when conducting background checks of EB-5 applicants.


If the investor is admissible, a conditional visa will be issued that allows the investor to reside for two years in the United States. Prior to the conclusion of that two-year period, the EB-5 investment must create at least ten full-time U.S.-based jobs. If all of the other requirements of the EB-5 investor visa program have been satisfied in the two-year period, the investor obtains lawful permanent resident status.

International investors should also speak with an Ohio immigration attorney about two additional immigration options apart from the EB-5 program: the E-2 visa program, which requires a “significant” investment and does not provide the investor with a green card, and the EB-1(c) visa, which requires an applicant to be sponsored by a qualifying employer. Immigration is complicated, and obtaining an investor visa takes some persistence, but in the end, international investors are almost always quite pleased.

Invest in America for a Visa

bigstock-Citizenship-documents-43205116Under the EB-5 investor visa program, foreign citizens are allowed to apply for and be issued a visa to live and work in the United States based on their ability to make a substantial investment into the U.S. economy. Under current regulations, “substantial” means an amount equal to at least $500,000 if the investment is made into a pre approved industry or geographic region in need of a cash boost, or at least $1,000,000 if invested in any other region or industry.

Here’s the Catch

Actually, it’s not a catch, so much as it is a failsafe to protect the system from abuse. In order to be approved for an investor visa, the foreign investor must make a qualifying investment into a U.S. based enterprise, but this will only allow the investor to be issued a conditional visa good for a period of up to two years. At the end of the initial two year period, the investor must show that his or her investment meets government minimums to be considered a success.

If the investment was not a success, then the investor may be able to apply for an extension for the initial visa, but there is no guarantee that the extension will be approved. The standard set by the government is that the investment must create at least 10 jobs if the funding is made into a new U.S. based venture, or that the investment must increase a company’s net worth or employee workforce by at least 40% if the investment is made into an existing business or venture.

Notes of Caution

Foreign investors need to be careful about making any kind of investment because of the risks that are usually involved. There is no guarantee that a funding will be a success and nobody is able to provide this kind of guarantee. Also, the government requires that investments be made or that a substantial step has been taken toward an investment before it will approve the issuance of an EB-5 investor visa.

If the funding is made into an illegitimate or unqualified business, the foreign investor may find out too late and be required to start the entire investment and application process all over from the beginning once a legitimate and qualifying business has been found and the funding made again.

In terms of making sure that a funding opportunity is legitimate and will qualify under immigration guidelines, an attorney can provide the foreign investor on how to perform due diligence on the investment to make sure the investor is not wasting his or her time. This is only one benefit of working with an attorney to apply for an EB-5 investor visa.

Benefits of Working with an Attorney

Along with helping the investor make sure that an investment opportunity is legitimate, an attorney can explain and answer questions about the EB-5 investor application process, can help the applicant compile and submit all of the necessary evidence and paperwork to support the issuance of a visa, and can represent the applicant should a decision need to be appealed.

H-1B VISA: One’s Loss is Another’s Gain

bigstock-Passports-31148November 19, 2009

Despite Canada and the US having a relationship spanning more then two centuries and sharing one of the most successful international relationships, Canada is clearly capitalizing on our failed immigration policies.

On November 28, 2008, the Canadian Government introduced major changes to the Economic Class permanent immigrant category. The Economic Class now includes a Provincial Nominee Program. To qualify for a permanent residence in Canada under the Alberta Provincial Nominee program, U.S. H-1B holders need NOT have a job offer in Canada to obtain residency. The applicant must only be working in the US for one year under the valid non-immigration visa, and must have one year working experience in “a major high demand occupations”. Recent advertisements in major newspapers in the US, goes like: “Alberta, Canada Welcomes H-1B Visa Holders and Their Families. Work Here. Live Here”.

This is like a boon to all US H-1B visa holders who have to wait for more than 6 years to get that elusive green card and the security it brings. Why should they live in insecurity in the US, when Canada is offering a better solution? H-1B visa holders in the US are increasingly tired of their temporary status, where their future hangs in the balance as politician argue.

Policy makers have fought over the H-1B cap for years. Some Senators continue to harass and shame top users of the program and calling the program “a job-killer in America.” H-1B holders feel unwanted and unwelcome in the US and for a good reason.

According to Maclean’s, a Canadian weekly news magazine, from during the last ten years, the number of skilled workers coming from the US into Canada has more then doubled.

Because of the current restrictive H-1Bvisa cap, Microsoft opened a Development Centre in Canada. This has been a boost for the Canadian Economy. While we debate our H-1B visa program, Canada is capitalizing on this pool of some of the brightest and talented professionals. Reform is needed to avoid irreparable damage to our world competitive edge. We must welcome and protect H-1B holders.

Killing The H-1B visa Program! Will They Succeed?

bigstock-Passports-31148November 20, 2009

In a New York Times op-ed, Thomas Friedman, wrote that America should remember how it became the wealthiest country in history. He says it was not through fearing free trade, state owned banks or protectionism. It was through a flexible open market, adding to it, the most diverse highly intelligent immigrants from all over the world.

Some of our legislators have forgotten the principles that lead to our success. A clear example is a new anti H-1B & H-2B proposed legislation introduced this month by Sen. Bernie Sanders (I-Vt.) and Sen. Charles Grassley (R-Iowa) dubbed as “Employ American Act,” which in fact has nothing to do with employing Americans. It basically mandates that if a company lays off more than 50 workers in any area, the company cannot hire any foreign workers for one year and all company foreign workers on visas approved in the preceding 12 months shall be cancelled. The bill also precludes judicial review for any visa cancellation.

This has to top the list of most irresponsible legislation introduced in 2009. To highlight the hasty nature of the introduced legislation, let’s consider an example. If this legislation to become law, the practical effect is as follows: If, let’s say, Ford lays off workers in a plant in Detroit Michigan, this legislation would prevent Ford form hiring on H-1 B a foreign scientists in its Columbus, Ohio research facility that is working on designing a more efficient engine to compete with its foreign competitors. It further will automatically cancel all recently approved H-1B visas for its entire foreign scientists anywhere in the US. This legislation servers no purpose except to harass companies that hire foreign nationals on H-1B visa. The practical impact of this legislation is that hiring foreign nationals becomes a liability to US corporations.

Sen. Grassley said with the current high unemployment rates (over 10%), companies should give preference to American workers when recruiting. But what he does not say, is that H-1B visas fill job vacancies in high tech areas where American workers are unavailable. It serves no purpose to force companies to cancel visas on difficult to fill positions because it had layoffs in completely unrelated job classifications in a completely different part of the country. This legislation is better dubbed as “Kill American Competiveness ACT”

This year Sen Grassley, along with Sen.Durbin also introduced the H1B and L-1 Visa Reform Act of 2009, which set more restrictions on H-1B visa. Legislation is aimed at Indian outsourcing firms. The act prohibits any company with more than 50 employees from having more than half of their workforce on H1B or L-1 visas. The legislation included some anti-fraud provisions and proposed higher salary for visa holder.

All such restrictive legislation will only encourage off shoring of jobs and further negatively impact our economy. companies would be forced to set their research facilities or at least portions of it outside the US resulting in net loss of jobs in the US. It is that simple, if companies can’t hire skilled workers, they will go to other countries.

Immigrants and Veterans Day

November 12, 2009

Veterans Day: It is the day we honor our men & women who served and sacrificed. Large number of Immigrants has served and continues to server in our military. Many of them have sacrificed their lives to protect our American values. I have the pleasure of representing some of them as an attorney. According to CATO Institute, more than 700 Congressional Medals of Honor were given to immigrant veterans. This is more than 20% of all recipients. To all Veterans, happy Veterans day.

The TARP H-1B Application

bigstock-Passports-31148May 29, 2009

As the list of companies receiving TARP funds has exceeded 550 institutions across the country, human resource managers and company executives have made it unambiguous that they are concerned about H-1B compliance. Under the Employ American Workers Act, (EAWA) signed into law this year, TARP fund recipients will be treated as H-1B dependent employers when they hire foreign nationals on H-1B visa. This law does not include those employed by the TARP fund recipients on, or before February 16, 2009. The normal exemption for foreign nationals receiving a salary of $60,000 or higher, or having a relevant master’s degree is not available for companies receiving TARP money.

The reason that many of the 550 plus companies should be careful is twofold: The first challenge large employer’s face is compliance with the H-1B dependant attestations without utilizing an elaborate and expensive tracking system; the second is applicability of The False Claims Act on TARP funds recipients.

H-1B Dependent Requirements

H-1B dependent employers must make certain promises and must be able to demonstrate compliance if audited by the Department of Labor. TARP fund recipients who file H-1B petitions:

  • Must not displace similarly employed U.S. Workers within 90 days of fling the H-1B petition
  • Must not place the foreign national at another site where similar displacement occurs and must make a bona fide inquiry of such third party site displacement
  • Must take good faith steps to recruit U.S. workers at wages at least equal to the wage offered to the H-1B worker
  • Must offer the job to U.S. workers who apply if they are equally or better qualified.

Take Bank of America for example, a TARP fund recipient. With an employee base exceeding 176,000 and offices in the U.S. and 150 countries, this employer must have a policy system in place to confirm that H-1B hires are not displacing similarly employed U.S. workers within the driving distance of the work location of the H-1B worker. There are two components to the displacement rule. The first is “lay off” of U.S. worker(s), and the second is “essentially equivalent jobs.”

The later deals with comparing the laid off worker’s job duties and place of employment to the H-1B worker’s. If the H-1B worker will be working at a location other than the employer’s job site, they must also comply with similar secondary site displacement requirements. In addition, the employer must make a bona fide effort to recruit U.S. workers using industry-wide standards and must offer the job opportunity to equally or better qualified U.S. workers. Keeping in mind that the definition of “U.S. workers” encompasses a much larger pool than U.S. citizens, it also includes U.S. permanent residents and other categories of workers authorized to work in the U.S.

The False Claims Act Trap

Sen. Charles Grassley (R-Iowa), one of the most outspoken opponents of the H-1B program already suggested the use of the False Claims Act against TARP recipients for purported violations of the Reinvestment Act. The False Claims Act (“FCA”) provides, in pertinent part, that: Any person who knowingly presents to the U. S Government a false or fraudulent claim for payment or approval is liable for a civil penalty of not less than $5,000 and not more than $10,000, plus 3 times the amount of damages which the Government sustained.

The False Claims Act can certainly be applied for TARP recipients who were found to have violated the H-1B requirements. Currently the law requires CEOs and CFOs to provide written certification of compliance that they meet the requirements of the Reinvestment Act (including the TARP H-1B restriction) to receive government financial assistant. Publicly-traded entities are required to file this certification with the SEC. Private Companies are required to file the certification with the Secretary of the Treasury.


Given the high stakes involved, TARP fund recipients are rightfully cautious when filing H-1B petitions and must have all the procedural steps necessary to confirm full compliance. Such companies must adopt a written corporate compliance policy for H-1B filings. The requirements imposed on H-1B dependent employers were never intended to apply to such large corporations. It was designed for companies that have a propensity for hiring H-1B workers with 15 % or more of their workforce composed of non-exempt
H-1Bs. It was also intended to be punitive and to apply to willful violators of the H-1B program. In the pre-TARP requirements, a company, such as Bank of America, would have had to hire over 20,000 H-1B employees before it would be required to comply with the displacement restrictions currently imposed. The implementation of the H-1B TARP regulations is like fitting a square peg in a round hole. It can be done, but it requires a skilled tradesman.

H1B Lawyer on Filing Approvable H1B Petitions

bigstock-Citizenship-documents-43205116July 9, 2009

What are the elements that constitute an approvable H-1B petition? This is the question that my clients who call my Columbus, Ohio office ask frequently. What can the employer and employee do to help their visa attorney get the best results for them. I have a client in Washington, DC once tell me, please give me a list of your most important items that would help you get my case approved.

As an H1b attorney who filed more than 1000 petitions in my career, there are 3 main issues in mind that would determine whether an H1b petition will be approvable: 1) issues related to the employer; 2) issues related to the position; and 3) issues related to the prospective employee.

Issues related to the employer normally depend on whether the employer has the ability to pay the wages of the prospective employee, whether the employer is truly an employer and not an agent who places employees at temporary assignments without controlling much of their activities. Depending on the size of the employer, the USCIS will take a differing position. Our firm has for more than a decade represented large employers having more than 30,000 employees obtain visas and green cards. I have also represented many small firms whereby we filed H1B petitions for their prospective employees. If you are a large employer, chances that USCIS is comfortable about the size of the organization and will trust that the employer does have the ability to pay the wages of the employee and that it also passes the IRS test of employer-employee relationship in that it controls the activities of the employee on a daily basis.

Now, when it comes to the smaller employer, the story is drastically different. The smaller employer (less than 50 employees) has additional documentations to submit to create this comfort level depending on the circumstances. These additional documentation include, but are not limited to, the existence of in-house projects, business plans, contracts for work, financial information and many more. When it comes to smaller employers, proper planning must be undertaken as the days of USCIS rubber stamping H1B visas are over.

In addition, it is important to note that USCIS is now keeping a keen eye at smaller employers as there is a feeling that such smaller employers do violate the regulations frequently. Smaller employers are encouraged to plan their H1b petitions with competent H1b lawyer, one who has many years of experience in H1b petitions in order to assure that contradictory information is not filed. This is what our firm has preached for almost a decade: get your story right before the USCIS! This is concerted effort between H1b immigration lawyer and the employer jointly.

The second issue deals with whether the position is a specialty occupation meritorious in getting an H1b visa. Just by naming the title of the position as “programmer analyst” is not sufficient to cause a position description to pass USCIS scrutiny. The position responsibilities are essential in achieving the specialty nature of position description. In addition, copying standard language from published US Department of Labor or USCIS material will not do it either. USCIS has grown very impatient of employers or attorneys who do that. So, make certain that you allow your attorney to spend the time to analyze the position description carefully and to make certain that it is in fact specialty occupation.

Finally, the alien must be eligible to receive the H-1b visa or status. If the alien outside the US, then there are no issue in proving that the H1b visa employee had maintained status. That is only an issue if the employee is currently in the US. Make certain that you give your H1b attorney sufficient documentation that proves proper status. The other relevant issue that pertains to the prospective employee is whether or not he or she is qualified to fill the particular position. If the alien employee has a foregin degree, then an equivalency evaluation from a reputable evaluator must be obtained. There are special rules that apply if the employee has less than a four year bachelor degree or its equivalence that must be studied carefully.

These are short synopsis of some of the large issues that governs the approvability of an H1b visa. In the end I would like to leave the reader with one thought: consult with an aggressive and reputable H1b visa lawyer one who will help your company achieve its objectives. The immigration lawyers at Shihab & Associates, Co., LPA, are very experienced in H1b petitions for large and great emphasis on small employer issues.

Avoiding the H1B Visa Cap Through Cap-Exempt Employers

bigstock-Immigration-Rally-In-Washingto-7293583March 16, 2009

In the mad rush up to the April first filing deadline for the H-1B cap season, most employers experience an anxiety stemming from concern over whether or not USCIS will select their petitions in its lottery-like cap for the 65,000 available visas. In the storm of activity this period inspires in employers and employees, many forget to ask themselves fundamental questions about the whole process. Many companies or petitioning organizations who are hiring foreign workers should ask themselves, however, is if they are even subject to the cap at all.

Organizations that are not subject to the H-1B visa cap are called “cap-exempt.” Such organizations include governmental research organizations, non-profit research organizations, and institutes of higher education. Although many types of cap-exempt organizations are easily identifiable, many employers may be surprised to realize that their organization is also cap-exempt, or that legal arguments may be made that can convince USCIS of their cap-exempt status.

For example, the law specifically states that an employee of an “institution of higher education” is exempt from the H-1B visa cap. Immigration law references the definition of an institution of higher education found in the Higher Education Act of 1965. This means any public or private university or college that admits students with the equivalent of a high school diploma to at least a two year degree program is a cap-exempt employer.

The example of a public or private university is probably the most clear cut example of a cap-exempt employer. However, the law also states that a cap-exempt employer may be a “related” or “affiliated” non-profit organization in regards to an institute of higher education. Because of the imprecision of these terms, questions have arisen as to what organizations qualify for definition as those that are “related” or “affiliated” with an institute of higher education.

Such institutions may include hospitals, including teaching hospitals, as well as medical and other types of research institutions. Other less obvious examples may include a non-profit organization with credit-based placement for a university or college’s students. One example included a school district who hired a language teacher through a credentialing program with a local university.

To determine whether or not an organization is “affiliated” with an institute of higher education, the USCIS will consider factors including “ownership, management, previous relationships with or ties… and contractual relationships.” Employers should examine any and all connections they have with any university, college, or research institution for evidence to support an argument of affiliation. This also includes employers that otherwise would not be considered cap-exempt but for the fact that the employee performs the work at such an institution. Only an experienced immigration attorney will be able to provide the counsel necessary to make this kind of a nuanced argument.

Even though the U.S. economy is in the throes of a marked slowdown, there is no indication that this year’s H-1B cap will not be met. Employers are still seeking the best and the brightest talent at rates that far outnumber the available visas. Because of this, employers with experienced immigration counsel with whom to strategize may reduce the randomized effects of the H-1B cap lottery.

H-1B attorney on H-1B RFE’s, Part 3

Columbus Investor Visa AttorneyApril 21, 2009

In my prior blogs Part I & Part II on the same topic, we took on the H-1B RFE (Request For Evidence) question addressing different aspects of this growing area in immigration law and an escalating area of concern for many. In this blog, I will address the H-1B RFE when its inquiring, at least in part, about the beneficiary. The major issues typically inquired upon are:

  • Length of time in H-1B or L-1 status
  • H-1B recapture issues
  • H-1B beyond six years
  • Educational background of the beneficiary
  • Status of the beneficiary

The above list is by no means exhaustive and one should be aware that there are other issues that can come up that typically require an experienced H-1B attorney to help address them.

Length of time in H-1B or L-1 Status: This is a reasonably straight forward issue but one that generally generates RFE’s if it is not presented properly. The general rule is that the beneficiary can only get six years of total H-1B time. Time spent on L-1 visa will count towards the six year limit. Unless the total time on both statuses is clearly articulated with evidence in the petition, expect an RFE. If the beneficiary had an intervening other non-immigrant visa status, the time calculation should be clear on the intervening time. Off course the issue of who is subject to the H-1B numerical limitation cap and who is not, is relevant here but should be the subject of a separate future blog to be given appropriate treatment.

H-1B recapture time rule: Recently USCIS realized what is a simple common sense rule. This did not happen without court decisions overruling H-1B denial by USCIS. The rule is time spend outside the US should not count towards the maximum six year limit. If the person is outside the US, the six year H-1B clock stops. This allows for time recapture in an H-1B petition. If the beneficiary is recapturing any such time in the petition, clear evidence should be presented which should contain passport stamping and airline tickets. It is easy to make mistakes or be unclear in time calculation which will trigger an RFE. Clear presentation is important especially when presenting multiple recapture times.

H-1B beyond six years: If the beneficiary has used up all the six years on H-1B and the recapture time will not give them the time needed, they should look into the rules regarding H-1B extension beyond six years. This deals with filed PERM labor certification more than 365 days prior to filing petition or approved I-140 petition when a priority date is not available. We have explained this rule in details in a prior blog. The beneficiary may be entitled to more H-1B time in these cases. Failure to clearly articulate the applicable rule for the requested time will trigger an RFE. The legal standard must be explained and one must reference the appropriate USCIS policy memos or law in the petition. If this is not done, expect an RFE.

Educational Background: Unless the beneficiary has both a clear US degree equivalence, and relevant degree to the position offered, USCIS can challenge the H-1B petition based on education. A college degree or its regulatory equivalent is required for an H-1B approval. A recent appeals decision upheld the denial of H-1B petition for a Mechanical Engineers degree holder because the title programmer analyst did not relate to his college degree. In this example the petition failed to present sufficient nexus between the beneficiary’s educations and the position offered. Establishing the nexus after an RFE is issued can be more difficult.

In RFE situation USCIS will take adverse posture and your job to meet the standard becomes more difficult. For beneficiaries with less than full equivalency, for example 3 year bachelor holders, the beneficiary must show three years of practical experience for every year of education they are short. For those that did not attend college, we will be looking at 12 years of documented experience. The documentation must be very detailed signed by prior employers or drafted by prior supervisor with sufficient details to show progressively responsible and relevant experience.

Status of the Beneficiary: If the beneficiary has no status gaps they are in good shape. But who does? Immigration rules are too rigid and many beneficiaries have experienced being between jobs, unable to prove that they have been in status, or inadvertently found themselves in situations where they felt that their immigration status has been compromised. This can certainly trigger an RFE. In a worse case scenario, however, a denial based on status issues should not be the basis for the denial of the H1B petition. The petition may have to proceed based on councilor notification and the beneficiary may have to leave the US and re-enter. Off course, this scenario should be the subject to a separate blog due to its complexity.

Suffices to say that if there is a concern in this area, it is critical to discuss this matter with an experienced H-1B attorney and bring the circumstances to the attonry’s attention early. It is of a substantial advantage to the beneficiary for this issue to be addressed in the original petition upfront not in an RFE scenario