Temporary Worker Visas Are On The Rise

Employers in a number of industries across the U.S. rely on the H-2B visa program. The H-2B visa program allows thousands of foreign laborers from sixty-two nations to enter the U.S. temporarily every year to work in sectors of the economy that include construction, hospitality, landscaping, and food services. While the Trump Administration has targeted a number of high-profile immigration programs, the H-2B visa program has remained untouched.

In fact, the H-2B program was expanded in July when the Department of Homeland Security announced a one-time increase of 15,000 additional visas for low-wage seasonal workers for the remainder of this fiscal year. The increase is a 45 percent jump over the number of H-2B visas normally issued for the second half of the fiscal year, senior Homeland Security officials told the Washington Post. Employers in the United States who want to begin taking advantage of the H-2B visa program should contact an experienced Columbus immigration attorney as quickly as possible to begin the process.

WHY IS THE H-2B VISA PROGRAM EXPANSION SO IMPORTANT?

According to Joe Savarise, speaking for the Ohio Hotel & Lodging Association, the expansion is a big boost to U.S.-based employers who rely on international workers to help their businesses expand and flourish. “H-2B is critically important for the hotel and lodging industry,” Savarise told the Columbus Dispatch. Some employers, however, are saying that this summer’s H-2B expansion is not enough. Kerry Scott, a program director with Más Labor, an employment agency in Lovingston, Virginia, told the Dispatch, “There’s more need for (workers) than there are visas.”

Many of the thousands of laborers who enter the United States temporarily with H-2B visas do not do want to stay in this nation permanently. One of those laborers is 30-year-old Ricardo Martinez Nolasco, who has been employed seasonally as a landscaper in Ohio, from February through November, each year for the last five years. Mr. Nolasco then returns each year to Queretaro, Mexico, where he supports his wife and two children.

In Ohio, Mr. Nolasco works for Hidden Creek Landscaping in Columbus, which uses seasonal employees and typically struggles to find local landscaping workers in the Columbus area. Gail Reinhart, Hidden Creek Landscaping’s human resources manager, constantly recruits. She works the regional job fairs, and she partners with the Ohio Department of Job and Family Services to post recruitment ads for candidates. Still, the company cannot find enough local employees, so Hidden Creek Landscaping relies on the H-2B visa program.

AREN’T H-2B VISAS ABOUT “CHEAP” LABOR?

Many in the United States remain uninformed regarding the details of the H-2B visa program. It’s a myth that U.S. employers use H-2B visas to obtain “cheap” labor. In fact, Ms. Reinhart told the Dispatch that the H-2B visa program is “not an easy program to use.” Companies must pay the visa filing application fees and sometimes even pay for a worker’s transportation to the United States. If a company uses an employment agency to help locate prospective employees, that’s an additional cost.

However, if you are an employer in the United States and you need employees that you can’t find locally, you should first discuss your situation with an experienced Columbus immigration attorney who can explain the H-2B visa program and help you get started.

If you are a temporary foreign worker in the United States with any questions about your employment rights, your visa, or your legal status, an experienced Columbus immigration attorney can address your questions and concerns. Immigration laws are constantly changing and evolving, so you must work with a knowledgeable immigration attorney who stays abreast of current developments.

Foreign workers like Ricardo Martinez Nolasco help companies like Hidden Creek Landscaping in Columbus and scores of other employers across the United States to stay in business and prosper. Foreign employees pay income taxes, sales taxes, and rents for seasonal housing. And without the help of those international workers, Hidden Creek Landscaping’s dozens of local employees in the Columbus area would be looking for other jobs, or else the company would have to shrink and turn away customers.

WHY IS THE H-2B VISA PROGRAM SO POPULAR?

The H-2B visa program is good for business, and business people know it. Even Donald Trump’s Mar-a-Lago Club in Palm Beach employs H-2B visa holders. “We’re talking about American businesses that are at risk of suffering irreparable harm if they don’t get additional H-2B workers, so we do think that fits into the ‘America First’ focus of the administration,” Homeland Security’s David Lapan told USA Today regarding the recent expansion of the H-2B program.

The H-2B visa program typically draws strong political support from both parties because lawmakers want to promote and please industries in their home states, whether it’s seafood in Maryland, skiing in Colorado, or logging in Washington State. Republican Senator Thom Tillis of North Carolina said the H-2B program “is vital for businesses that desperately need temporary help to keep their doors open and keep their American workforce employed.”

Employers who hire foreign workers in the United States must be in compliance at all times with all immigration and employment laws. If your business hires foreign employees, do it only with the advice and help of a good immigration lawyer who routinely works on behalf of U.S. employers. When a U.S. company has international workers on the job, a number of federal laws, rules, and regulations come into play, so your business must be advised and represented by an immigration lawyer who knows the system thoroughly.

The federal government may examine an employer’s records to verify the employer’s compliance with federal law. Compliance investigations may be conducted by U.S. Citizenship and Immigration Services (USCIS), the U.S. Department of Labor (DOL), or by the U.S. State Department. An immigration lawyer can advise employers regarding E-Verify, I-9 audits, work authorization documents, and all other immigration-related concerns.

Almost every U.S.-based employer in the 21st century’s international marketplace needs the sound advice and legal services that an experienced immigration attorney can offer. If you employ international workers in the United States, or if you are an international worker yourself, you can learn more about your immigration-related legal rights, obligations, and options by speaking with an experienced and trustworthy Columbus immigration attorney.

Infographic – The Wait To Come To America

Applying for permanent residence in the United States can be quite the complicated process and each year the Immigration and Nationality Act (INA) limits the number of visas available. These limits currently stand at 226,000 for family-sponsored visas and 140,000 for employment-related authorizations. Also, each month, the government announces wait times for visa applications, which vary based on the type of visa sought, the number of visas available, and the applicant’s current citizenship. Additionally, the wait could be even longer if you come from countries deemed “oversubscribed,” such as the Philippines, Mexico, India, and China. For more information and legal assistance on immigration-related issues, speak with an experienced immigration attorney.

The Wait to Come to America

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Work Visa Caps Hurts Students

Columbus Investor Visa AttorneyWhen Miami University of Ohio awarded Chinese native Han Cheng, 23, a degree in engineering almost two years ago, he assumed he would be able to work for several years in the United States before returning to his homeland. What Cheng didn’t learn in his engineering classes was how difficult it is to receive a temporary work visa. After graduating, Cheng sent out over 500 job inquiries, but he could not find an employer to sponsor him for an H-1B visa.

“When I was talking to recruiters back home about going to college in the United States, they all made it sound like it would be easy to get work because the degree would be so desirable,” Cheng told the Columbus Dispatch. He returned to Shanghai last summer as his student visa expired.

The H-1B permits U.S.-based businesses to hire specialized foreign employees for three years (with an option to renew for a second three years). However, H-1B visa sponsorship is too burdensome and expensive for many employers. Smaller companies are reticent to hire foreign students because there’s no guarantee they’ll get visas, and that could leave a smaller business in the lurch.

As the population of foreign-born students in the U.S. increases, immigration experts say that remaining here to work after graduation will only get more difficult for students like Han Cheng. More than 800,000 foreign students arrived in the U.S. during the last school year (2012-2013); most came from China, India, South Korea, Canada, and Saudi Arabia. With only 65,000 H-1B visas available annually, it’s clear that few of those students will be able to work in the United States after they graduate.

If you are an international student with any questions or concerns regarding your visa or status, you should speak immediately with an experienced immigration attorney. A good immigration lawyer can answer your questions, address your concerns, and help you with any immigration-related legal issues. Most importantly, an experienced immigration attorney will vigorously defend your rights and help you to achieve your goals in the United States. And if you are an employer seeking to hire international students, consult first with an experienced immigration attorney who can help you cut through the legal red tape. You’ll be glad you did.

Accenture, Immigration Reform, and H-1B Abuses

bigstock-Passports-31148The task of fixing the HealthCare.gov website will fall to Accenture LLP, and that’s bad news. It means the Obama Administration has effectively offshore outsourced Obamacare. It’s likely that the tech jobs just awarded under the Obamacare contract (worth $90 million and paid for with U.S. tax dollars) will be based in India or performed by imported workers from India on H-1B visas. Accenture is one of the biggest offshore outsourcers of American jobs. In 2012 they used just over 4,000 H-1B visas, making them the fifth largest company using foreign workers to displace U.S. workers and to offshore outsource jobs.

It’s a company with a poor track record. Contracts with Accenture have previously been cancelled by states including Colorado, Texas, and Florida. In 2006, the U.S. Marine Corps cancelled a contract with Accenture to design and implement a global supply chain and maintenance system. In 2011, Accenture paid over $63 million to settle a lawsuit that accused the company of kickbacks, bid-rigging, and other serious violations.

Offshore outsourcers like Accenture typically use the H-1B visa to displace Americans and to transfer large tech projects to nations where labor costs less. In fact, in 2012, the top ten employers receiving H-1B visas were all offshore outsourcers of high-tech American jobs. Many of these jobs should have gone to U.S. workers, but employers are not required to recruit them; in fact U.S. workers are sometimes simply replaced with H-1B visa employees.

Offshore outsourcers like Accenture typically pay about 25 percent less for imported employees than the predominant wage for a U.S. citizen employee. In 2005, Accenture’s more than 12,000 H-1B foreign workers earned an average $53,000 for work that would earn an American employee $80,000. By undercutting labor costs, companies like Accenture out-compete American businesses seeking government contracts.

As it currently operates, the H-1B program hurts employers that hire American workers. Domestic sourcing companies like Ameritas Technologies and Systems In Motion are put at a disadvantage because they hire American citizens. Their competitors hire less expensive H-1B workers. It’s clear than any immigration reforms must include strict regulations for offshore outsourcers like Accenture along with a legal mechanism that makes enforcement meaningful.

Until those reforms happen, employers who seek to hire H-1B visa workers are going to need the help of an experienced immigration attorney. A good immigration lawyer can review your policies and records, go over your H-1B visa petitions, and help you to stay in compliance with always-changing immigration rules. In fact, if you are an employer with any immigration-related questions or concerns, don’t hesitate to consult an experienced immigration attorney promptly.

EB-5 Immigrant Investor Program

bigstock-Close-up-of-male-hands-with-pe-46137757Jay Peak is a year-round resort in northern Vermont featuring an indoor waterpark, ice arena, championship golf course, and New England’s best skiing and snowboarding. The resort offers a summer camp for kids, an August Music Festival, and corporate retreat facilities with all the accommodations and amenities.

Bill Stenger, the CEO of the Jay Peak resort, told NPR, “About $275 million has been raised and spent or in the process of being spent.” All of that money came from 550 foreign investors, many of whom are from China. Each agreed to risk a $500,000 investment for a project offering to create jobs in the U.S. In return, the government granted green cards to the immediate family members of investors, allowing them to live in the United States. It’s called the EB-5 immigrant investor program, created by Congress in 1990. Stenger says in 2008, when the recession hit and traditional financing disappeared, the EB-5 program was a lifesaver. Without EB-5 funds, the Jay Peak resort wouldn’t exist as visitors know it today. “We would be the same old sleepy little ski resort we were back in 2006 versus a four-season, very different place today,” Stenger says.

Since 2006, EB-5 projects have brought about $600 million into Vermont, which has operated an EB-5 Regional Center since 1997. Today, more than 300 EB-5 centers operate across the country. Most are private, for-profit organizations that solicit business proposals and recruit investors for those projects. Several of the privately-operated EB-5 centers have been accused of defrauding investors, so some investors find a state-run regional center to be more trustworthy, even though investments are never guaranteed.

If you are a foreign investor, a foreign national considering investment, or a U.S.-based business person seeking foreign investment, speak with an experienced immigration attorney about EB-5 visas and foreign investments in the United States. A good immigration lawyer can explain the complicated laws and regulations related to foreign investments in the U.S. Forms, petitions, applications, and guidelines are constantly changing and evolving, and enforcement is stringent, so you need legal advice that you can count on. Contact an experienced immigration attorney and get the guidance you need today.

OPT Visa Program Expanded

bigstock-Passport-Gavel-5802855June 28, 2012

In May the Obama administration decided to increase the parameters for Optional Practical Training (OPT) program, significantly increasing the number of fields involved. This is a somewhat significant development, potentially impacting thousands of students across the country.

For those unfamiliar with OPT visa, it is a temporary employment program connected with Science, Technology, Education and Mathematics (STEM) students in the United States on F-1 visas. OPT allows F-1 visa students to remain in the country and work for an additional 29 months before or after completion of their education.

In 2008 President George W. Bush added a 17-month extension to the program, increasing the maximum length of the visa from 12 months to its current parameters. To be eligible for the extension, the applicant must have received his or her STEM degree and have an employer enrolled in E-Verify.

The big change unveiled last month is that the administration is adding approximately 90 eligible fields to the total pool of OPT visa, with raises the number to 400. There will be no change to the 29-month limit.

New fields added to the program include Neuroscience, Pharmaceuticals and Aeronautics. Many of the new fields are additional disciplines under the umbrella of traditional STEM majors related to Mathematics, Engineering and Physics.

Studies have shown the vast majority of approved extension requests are for F-1 students studying math, engineering or some science-related discipline.

The U.S. has issued approximately 35,000 OPT extensions since the beginning of the program. Less than 700 extension applications have been denied. A Freedom of Information Act request by Computerworld revealed that there are 5,000 or so extension applications currently working through the system.

In some circles the Bush extension is still viewed as a controversial move. Critics thought it was a way to circumvent the H-1B cap limitation.

This expansion of the number of fields will no doubt add to that debate. On the heels of the Obama’s administration’s OPT expansion Charles Grassley, a senator from Iowa, requested a Government Accountability Office (GAO) investigation. Grassley cited concerns related to oversight, national security and potential impact on the economy and American workforce.

For us, this is a step in the right direction. It is an opportunity for graduates to gain some much-needed experience. And it is, in fact, a back-door to extending the H-1B program, but that is something we welcome.

This move puts pressure on graduating U.S. workers in some fields, but we don’t expect they will have issues finding work. Graduated with these kinds of degrees continue to be scarce.

And for the most part the expansion is minimal. It is a cosmetic move, with the administration wanting to put on the icing while taking credit for the entire cake. Obama is trying to show himself as a pro-business President, when he has not been as strong in that area as his predecessor.

US Senator To Look at Indian H-1B Denials

bigstock-Immigrant-Families-On-The-Marc-5037855February 16, 2012

Mark Warner, a member of the United States Senate from Virginia, says he will look into concerns regarding recent H-1B denials to applicants from India.

Warner is the co-chair of the Senate India Caucus. This month he spent a week in the country as part of a Congressional delegation. During the trip Warner was informed that some Indian companies believe the percentage of H-1B visas denials in their country has been higher than other parts of the world.

Warner said that in response to the concerns he has recently introduced legislation which would examine the U.S. visa issue and take a look at providing green cards to foreign nationals who graduate from American universities and wish to work in the country.

Warner has said he’s in favor of removing the caps on H-1B visas and introducing “additional opportunities for Indian H-1Bs.”

We agree with Warner’s assessment of the issue. While it’s somewhat difficult to put your finger on the reason, clearly a shift took place in the last year that resulted in denials increasing substantially.

The explanation for this is likely due to frustration by the embassies and consulates in India which handle approximately one-third of these approvals worldwide. Workload and irritation with United States Citizenship and Immigration Services (USCIS) policy could mean an increase in denials.

Regardless of the reason, the loser here is American business. Visas like H-1B have become a political football and we’re seeing attrition in the work force. This damages business relationships.

The bottom line is we’re not serving the best interest of business in the U.S.

BALCA Rules on Training New Workers

bigstock-Business-people-shaking-hands--13871435-1March 21, 2011

A judge for the Board of Alien Labor Certification Appeals recently ruled on an interesting case related to the burden employers face trying to prove the hardship related to training a new employee.

The case is a good one for our friends here in Columbus to take a look at, especially with regard to the intricacies related to federal code. It is yet another instance where experienced representation must be present when maneuvering the permanent labor certification (PERM) process.

In late 2006 a company sought PERM certification for a position entitled “Propagation Supervisor.” In May of 2009 an audit was requested by the Certifying Officer (CO) who requested the employer’s State Workforce Agency job order along with several other materials.

A few months later the CO informed the employer the request was not being certified “in part because the documentation submitted by the employee . . . was insufficient to demonstrate that a U.S. worker could not be trained to qualify for the position.”

In September of 2009 the employer’s representative filed a motion for the application to be reconsidered. The argument was that, among other factors, the growth of the business and illness suffered by the employer prevented the employer from training a U.S. worker for the position.

The CO denied this appeal in January of 2010 and forwarded it to BALCA. A brief prepared by the Employer’s council argued enough evidence had been provided to show an inability to train a U.S. worker.

The pertinent piece of the Code of Federal Regulations (656.17) states that the Department of Labor must evaluate the “training and experience possessed by the alien beneficiary at the time of hiring” and make sure more isn’t being required of U.S. applicants. The exception comes when “the employer can demonstrate that it is no longer feasible to train a worker to qualify for the position.”

To that end, the employer’s council mentioned that the CO needed to take into consideration “the change in business conditions” that made it impossible to train a U.S. worker. That change makes it different, the employer argued, than determining whether a new worker can be trained.

The employer supported its position with five primary points:

  1. A substantial growth in business and therefore in managerial responsibilities;
  2. The owner’s health problems, which often require him to have extended time off;
  3. The expansion of business operations;
  4. That the worker alien is the only employee with the requisite experience to train another Propagation Supervisor;
  5. That employer has had significant trouble hiring reliable workers in other positions and that employer experiences high turnover every year.

Ultimately, however, the argument was not convincing enough for the judge, who agreed with the CO.

The determining factor for the judge seemed to be that regulations require proof “it is no longer feasible to train a worker to qualify for the position, not that it is no longer feasible for the employer to train a worker to qualify.”

The judge found no reason the current Propagation Supervisor couldn’t be used to train a new worker and therefore saw nothing preventing the employer from hiring a U.S. worker and training them for the same job.

Columbus Immigration Attorney Review: BALCA Clarifies Website Policy

bigstock-Citizenship-documents-43205116March 1, 2011

A decision made this month by the Board of Alien Labor Certification Appeals (BALCA) highlights how the continually changing world of internet technology influences the way visa law is interpreted. Our neighbors here in central Ohio need to be aware of the minute details certifying officers (CO) evaluate as they examine visa petitions.

In October of 2007 an employer had its application for a Permanent Employment Certification for the position of “Dentist” audited. The employer was instructed to provide information related to recruitment.

The CO issued a denial of the certification request in March of 2009, on the grounds the employer failed to identify itself on a job search website. The employer requested a review but was denied again in November for the same reason.

According to the CO, the employer was in violation because “the information initially presented to interested individuals via the Search results would only show the employer’s name as listed with (the job search site), the position title, location and the date posted.” In this case the results on the search page listed the employer as “confidential.”

The employer believed that even though its name was not listed on the search pages, when a potential applicant clicked on the hyper link for the full job description he or she would be able to view the employer’s name and street address. The employer did not feel as if the advertisement was “blind,” as prospective employees would see the required information upon clicking the entire job listing. The CO did not agree and the case was forwarded to BALCA in November of 2009.

The judge assigned to the case pointed out that PERM regulations state an employer placing an advertisement on a web site other than its own must “name the employer.” He mentioned instances where such oversight made it difficult or impossible to determine if more applicants might have shown interest in the opening had they known the employer’s name.

The judge stated that on the search index page the job was listed with a position, the city and state, as well as the date. And just as the employer stated in its request for review, when a potential employee clicked on the search page link they were taken to a complete listing.

Ultimately the judge sided with the employer, pointing out that “the regulations make no such requirements for a search listing used to access the advertisements.” The judge made a point to note that a printed advertisement cannot be judged using the same criteria as a web page. There is no ability to acquire more information with a print ad, so “it must stand on its own content.”

The judge made the distinction that the web page listing search results “was not the advertisement” and “a potential applicant could get from that page to the advertisement with a simple mouse click, rather than the tedious process of contacting an anonymous entity that would be necessary with a deficient print advertisement.”

The judge returned the case to the CO, asking them to consider the text of the advertisement and whether it complied with the regulation.

Columbus, OH, Attorney Reviews the H-1B Program: Part 1

Columbus Investor Visa AttorneyFebruary 8, 2011

This is the first post in a four-part series analyzing the current state of the H-1B visa program. We hope the blogs will help interested parties here in Ohio gain a better understanding of the H-1B program as it now stands.

In January of 2011 the United States Government Accountability Office (GAO) released a complete overview and observation of the H-1B visa program. The intent of the review was to locate weaknesses and issues in order to modify and advance the effectiveness of H-1B.

Foreign workers in specialized industries play a vital role within the United States workforce. Due to restrictions within the current H-1B program the productivity and success of large and small companies is being directly impacted. The employment and immigration of specialty workers is also suffering because of the system currently in place.

Throughout the review process the GAO interviewed 34 companies impacted by the H-1B Visa program. Homeland Security creates a cap every year that dictates how many visa petitions are available. Once the cap is reached, no more petitions are granted for that year. Large and small companies incur certain financial and productivity costs as a result of the current program. The review concluded that the magnitude of the costs and overall impact varies depending on the size and age of each company.

All of the companies must pay designated Homeland Security filing fees in addition to any legal fees that accumulate during the H1-B Visa petition process. The GAO noted that for 26 of the interviewed firms the combined total of fees per petition ranged from $2,320 to $7,500.

Even following the petition process and paying the necessary fees does not guarantee a company its Visa petition will be granted. And companies experience significant financial losses due to rejected visa petitions. In addition to the filing and legal fees, they must also pay the administrative costs associated with filing H-1B Visa petitions. There is no way for the companies to know which petitions will be granted. As a result, the ability to plan projects as well as designate work is impacted significantly. The process of finding alternate recruitment methods in addition to hiring other employees on short notice increases the financial burden. In order to find qualified employees and meet specific deadlines the companies are forced to accumulate additional costs associated with higher salaries and a more demanding workforce.

One of the intents of the H-1B visa program review was to document the stark contrast between how the current state of the program impacts small versus large companies. The GAO learned that larger companies have the financial and legal means to absorb the costs associated with filing H-1B Visa petitions. These companies retain experienced legal teams that are familiar with navigating the immigration system in order to obtain the desired workers whether or not the original H1-B petitions are denied.

But while smaller, specialty companies rely on H-1B petitions being granted, they do not have the resources or financial means to challenge the decisions made by Homeland Security. The yearly cap has a major impact on small businesses that are not able to challenge the system and find alternate routes to obtain the desired employees. Paying the filing fees and legal fees is a financial burden even when the petition is granted, but when it is denied the long term effects are difficult to overcome. The implications of a long hiring process, missing project goals, finding alternate employees, and performing work quickly in order to meet professional obligations creates significant and detrimental losses for small companies.

Additional costs are also accumulated when companies have to petition for H-1B Visas to be renewed. Consistency within the workforce is important, so companies often desire to retain foreign workers for extended periods of time. Eventually, some companies will seek permanent residence in the United States for foreign employees. The GAO’s review estimates that the total cost of filing for an H-1B petition, renewing the petition, and seeking permanent residence is approximately $16,000 for one foreign worker. The structure of the program makes it challenging for companies to obtain and retain quality foreign workers.

The intent of the GAO’s review of the current H-1B program was to document and highlight the important issues that exist within the program. H-1B petitions play a vital role in the national workforce and economy. Modifying and amending the system is critical in order to support the immigration of foreign workers who increase the strength and productivity of specialty companies in the United States. Homeland Security must work towards building an efficient system that meets the needs of the U.S. companies as well as the foreign workers.