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.
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. Something H1-B visa attorneys have experience with.
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.
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.
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 H1-B 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.
Our Columbus H-1B visa lawyers recently learned that 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 H-1B visa 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 an experienced H1-B visa lawyer with whom to strategize may reduce the randomized effects of the H-1B cap lottery.
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
Despite recent news, the US continues as a fertile grounds for foreign investors. Unemployment rates are relatively low in many US Cities including Columbus, Ohio and Washington, DC, where our firm maintains offices. There are several available visa alternatives for foreign investors seeking temporary employment in the United States. Below, our E1 & E2 investor visa attorneys focus on three viable investor options including Intracompany Transferee (L-1), Treaty Trader (E-1) and Treaty Investor (E-2).
The L-1 visa category is a temporary visa for Intracompany Transferees. It allows companies abroad to establish a presence in the United States by transferring a worker with a qualifying employment position, i.e., an “executive” or “manager” (an L-1A) or a worker with “specialized skill” (an L-1B), to a qualifying business such as a U.S. affiliate, parent, or subsidiary entity on a temporary work basis. The employee must have worked for the foreign company for one continuous year out of the preceding three years. Larger multi-national corporations who frequently transfer employees may seek a “Blanket L-1” which allows it to transfer executives rather quickly. Finally, executives and managers may seek permanent residency (a “green card”) under requirements which mirror those under L-1.
The qualifying employment positions necessary for the L-1 visa are narrowly defined terms under Federal law that must be rigidly followed when applying for this category. Generally, “managers” and “executives” are higher-level employees who have significant managerial, supervisory and policy making authority. A person with “specialized knowledge” is a vital employee with unique knowledge of the company product or service that does not meet the definition of an executive or manager. It is not necessary for the employee to have held the same position abroad as the intended job in the U.S., as long as the employee was a manger, executive or worker with specialized knowledge and continues to be one of those qualifying positions in the U.S. company. L-1B workers can remain in the U.S. up to five years, while L-1A executives and managers are allowed to stay for up to seven years.
It is also necessary to prove there is a “qualifying business relationship” between the foreign and U.S. companies which means that the relationship is either one of parent/subsidiary or affiliate. Key corporate documents will therefore be necessary components of the application. Federal Regulations allow a new parent, subsidiary, branch or affiliate office in the U.S. to employ a manager or executive under a “new office” petition which will only be approved for one year. Thereafter it may be extended upon proof that the business is active and operating and requires an executive or manager.
Another option for foreign investors and traders is the “E” visa category. The E-1 (Treaty Trader) and E-2 (Treaty Investor) provide nonimmigrant (temporary) visa status for nationals of countries having commercial treaties with the U.S. to engage in trade or business investment activities. In order to qualify under either E-1 or E-2, the person must be a citizen of a treaty country of which there are over 125. One of the principal advantages of the “E” visa category is that once approved for E status, the visa holder is admissible for two years, but may receive indefinite extensions up to two years at a time. A person may qualify as the principal trader or investor or as an employee of a trader or investor company having the same nationality (determined by Federal Regulations).
The E-1 classification is for a person coming to the U.S. solely to engage in trade of a substantial nature principally between the United States and the foreign state of which s/he is a national. The trade involved must be an international exchange of items of trade for consideration between the U.S. and the treaty country. Pure domestic trade will not suffice. It must also be “substantial trade,” i.e., the international trade must have a sizeable and continuous flow of trade. When the U.S. places an economic embargo or sanctions on a country (e.g., Iran), the country’s E-1 privileges are often rendered inoperable.
The E-2 classification is set aside for a person coming to the U.S. solely to direct and develop the operations of an enterprise in which s/he has invested, or is actively involved in the process of investing, a substantial amount of capital. The E-2 visa holder can be the investor, or an employee of the individual or company that is making the investment.
The E-2 visa holder’s investment must derive from investor controlled funds, and it must be “at risk,” in the commercial sense. Loans secured with the assets of the investment enterprise are not allowed. There is no minimum dollar requirement for the amount of the investment but it must be substantial in that it is sufficient to ensure the successful operation of the enterprise. Generally, the lower the cost of the enterprise, the higher, proportionally, the investment must be to be considered a substantial amount. Federal Regulations suggest that if the total investment is $100,000 or less the E-2 investor should provide 100% of the investment.
The E1 & E2 investor visa lawyers at Shihab & Associates, Co., LPA have represented investors in complex multimillion dollar enterprises as well as small ones before the US Citizenship & Immigration Services as well as consulates around the world.
January 18, 2009
As immigration lawyer, I am presented with these questions frequently: what are the circumstances that would justify extending an H-1b visa beyond the maximum period allowed by statute? Or how can I extend my H1b visa beyond six years?
Congress dealt with this issue by passing legislation in 2000. The USCIS subsequently published several “guidance memoranda” in which it created criteria for extending H-1B visas beyond 6 years. In order to understand these criteria, I have created all the scenarios which will cause USCIS to either approve or deny an extension beyond the 6 year limit.
Prior to the enactment of The American Competitiveness in the Twenty First Century Act of 2000 (AC21) foreign nationals present in the US on H-1B visas, and who could not reach the point of I-485 in the permanent residence process, simply had to pack their bags and go home at the conclusion of the six (6) year term. The labor certification process (which forms the basis for the majority of permanent residence applications) had been riddled with protracted and overlapping administrative processes that took years. Such delays often caused aliens on H-1b visas to reach the maximum six (6) year limit and depart the United States prior to completing their permanent residence process. For those lucky ones whose employers were willing to continue the permanent residence process despite their departure, they were able to return back to the US after an interruption caused by the aforementioned six (6) year limitation.
The departure of these H-1B visa holders after six years of service working in their field in the US, created in my opinion, a lost opportunities for the foreign nationals, the employers and for the US at large. Many employers forfeited the services of highly trained and skilled employees as well as their investment in visa sponsorship, extensions and in applying for the permanent residence processes.
Congress realized this problem and in 2000 it introduced AC21 which sought to allow H-1B employees to extend their status beyond the maximum allowable six (6) year limit, if they reached certain stages in their permanent residence application processes.
Permanent Residence Process
The most popular method of applying for employment based permanent residence is through labor certification, now called PERM. A PERM application is filed electronically before the US Department of Labor (USDOL) and it is intended to assure that the permanent employment of a foreign national does not displace equally qualified US workers. Once this process is complete, the employer must then file an immigrant petition for alien worker (I-140). Currently, employees are able to concurrently file an application for permanent residence (i-485) along with the I-140 petition. The I-485 application is the last step in the permanent residence process and its approval results in the issuance of permanent residence, also known as green card, to the foreign national.
Congress also created a quota system which assures that America continues to be a cross section of people from all nationalities. Hence, it instituted a “per country” limitation system to assure that nationals from one country do not become proportionally more populous in the US than others. This per country quota system favors foreign nationals who have higher academic or professional achievements coming from the same country. For instance, currently nationals of India have a significant backlog in the permanent residence process due to the proportionally higher number of Indian nationals who have applied for immigration when compared with other nationals. Within that specific Indian per country limitation system, those whose permanent employment requires the attainment of higher educational or professional achievements will receive their permanent residence status sooner. This is what is referred to as the employment based immigration preference system also known as EB-1, EB-2, and EB-3.
The Visa Bulletin, issued monthly by the US Department of State, publishes the dates that allow certain applicants to move forward with their permanent residence process based on the start date of their immigration process, also known as the priority date.
H-1B Visa Time Recapture
One of the most common ways to extend H visa beyond what might seem as a six year limitation is to recapture time the foreign national spent outside the US. So long as absence was not for brief vacations, the law allows the foreign national to precisely spend six (6) years in the US on H-1B visa. Hence, if an alien took a leave of absence for an extended period of time, he or she could request that such time be “recaptured” and the alien could request that his H-1b visa status be extended for those missed days. Another manner in which the alien could recapture lost time is through applying for an extension of the H visa to recover time between the initial issuance of the H-1b visa while the alien was outside the US, and the time that he or she enters the US on H status. For instance, if the H-1b visa approval was issued for a start date of October 1, 2003, but the alien, due to visa processing or other reasons, first enters the US on February 1, 2004, the alien is entitled to request a 4 month extension to be tacked on beyond September 30, 2009.
Extension Beyond Six (6) Years When Labor Certification is Filed
PERM Application Pending For More Than One Year – If an alien has a pending PERM application which had been filed by his employer 365 days or more prior to the alien reaching 6 years on H-1B visa, then the alien is entitled to successive one year extensions. This is true even if the employer who filed the original PERM application is not the same employer who now seeks to extend the H-1B visa beyond six years.a. Example: Employer “A” files a PERM application for Joe Alien who at the time of the application has already been in H-1B status for 4 years and 9 months. Six months after the filing of the PERM application, Joe Alien transfers his H-1B visa to Employer “B.” One passes after the filing of the PERM application and it remains pending. Employer “B” now uses the fact that there is still a pending PERM application which Employer “A” filed for Joe Alien to request extension of Joe Alien’s H-1B visa status for another year to continue to work for Employer “B.” Under this scenario, the USCIS will approve this extension beyond six years even though It was Employer “A” who originally filed the labor application and Employer “B” filed the extension.
Appeal of Denied Labor Application Pending – If the alien’s labor certificate application is denied, the employer filed a timely appeal of such denial to the Board of Alien Labor Certification Appeals (BALCA), and a final decision on such appeal is not issued by BALCA, the alien is entitled to one year extension on his or her H-1B visa. This is true even if the employer who filed the original application for alien labor certification and subsequent appeal is not the same employer who now seeks to extend the H-1B visa beyond six years. It must be noted that there are very few cases who continue to be before BALCA at the present time.
Approved Expired Labor or PERM Application Filed One Year Prior – if more than six (6) months had passed since the issuance of approval by the USDOL of a PERM or a labor application (also called certification), and the employer had not filed an I-140 within such six months period, the USDOL rules state that the certified PERM or labor application had expired and can never be used subsequently. Under this scenario, the alien is not entitled for extension of his or her H-1B visa beyond six (6) years.
Approved Unexpired Labor or PERM Application Filed One Year Prior – If, however, six (6) months had not elapsed since the issuance of certified PERM application but 365 days had elapsed since the filing of such PERM application, then the alien is entitled to a one year H-1b visa extension beyond six years. This is true whether the employer filed or failed to file an I-140 within the six month period.a. Example: Employer “A” filed a PERM application for Joe Alien who had been in the US on H-1B visa at that point for 4 years and 9 months. Joe Alien is very lucky because his PERM application is certified 10 months after it is filed. Employer “A” now seeks to extend Joe’s H-1B visa for another year 2 months later when Joe had been in H-1B visa status for 5 years and 9 months. Employer “A” had not filed an I-140 at that point. Joe is entitled to an extension for one more year since six months had not passed since the PERM certification had been issued.
Pending or Approved I-140 Petition Filed One Year Prior – Certain permanent residence applications do not necessarily require the filing of a PERM application. Those are permanent residence applications filed in the first preference employment based categories (EB-1) or an EB-2 petition seeking waiver of the labor certification requirement because the alien’s immigration is in the US National Interest. Similar rules apply to those aliens who are the beneficiaries of I-140 petition filed more 365 days prior to the request for extension beyond six (6) years. If an I-140 had been pending for more than 365 days, then the alien is generally entitled to successive one year extensions of his or her H-1B visa.
Appeal Pending For Denied I-140 Filed One Year Prior – If the I-140 is denied, it is timely appealed, and the underlying PERM or the I-140 petition was filed 365 or more days by the time of requesting the H-1B visa extension, then the alien is eligible to receive successive one year extension on the alien’s H-1B visa beyond 6 years.
Aliens Subject to “Per Country” Limitations -a. I-140 Approved and Less Than One Year Passed Since Filing of PERM or I-140 – If the H-1B alien could not file an I-485 application because his or her priority date is not current due to limitations on his or her foreign country chargeability (country of birth), and the alien has an approved I-140 petition, then the alien is entitled to H-1B visa extension for 3 years beyond six years. This is true even if the underlying PERM application or the I-140 had not been filed more than 365 days by the time the H-1B visa extension was sought.i. Example: Joe Alien was born in India but now holds British Citizenship. Joe’s employer files a PERM application on his behalf which is approved in 5 months. Joe’s’ employer filed his I-140 soon thereafter which gets approved in one month. When Joe tries to file an I-485, he was told that he could not do that because he is chargeable to India as he was born there. Because Joe Alien is unable to file his I-485 as a result of the” per country” limitations placed on his foreign country chargeability, he is able to file for 3 year extension beyond his six years. This is true even if 365 days had not passed since the filing of his PERM application.b. I-140 Pending and Less Than One Year Passed Since Filing of PERM or I-140 – If a PERM is approved and the subsequent I-140 is filed but less than one year had passed since the filing of the PERM application then generally the alien is not able to renew his H-1B visa beyond six years since rules in the preceding paragraphs do not apply. However, if the alien is subject to the “per country” limitations in that the alien had not been able to file a concurrent I-485 application along with the I-140 petition, then USCIS will allow the alien to request premium processing service for the pending I-140 within the 60 days prior to the expiration of the alien’s six year term on H-1B visa in order to get the I-140 approved then file for H-1B visa extension for 3 years as outlined in 6.a. herein.
i. Example: Joe Alien, a national of India, is in the US for 5 years and 6 months. Joe had never thought about applying for permanent residence in the US until recently. Joe’s employer files a PERM application on his behalf which miraculously is approved in 4 months. By this point, Joe had been in the US for 5 years and 10 months. Joe’s lawyer tells him that he is eligible to file for I-140 under the EB-2 preference category but because of the per country limitation placed on Indian nationals in EB-2 category, he is presently unable to file I-485 concurrently. Based on USCIS memoranda, Joe is able to file for I-140 under premium processing since Joe is now within 60 days of the expiration of his six (6) years on H-1B visa, get his EB-2 I-140 approved then file for a 3 year extension of the H-1B visa because Joe is unable to proceed in his green card application as a result of the “per country” limitation.
The rules governing the extension of H-1B visa are very complex. I have tried to simplify these rules by exploring all of the possible scenarios and sub-scenarios which may occur and the corresponding to rule that would apply based on memoranda recently published by the USCIS. The lawyers at Shihab & Associates, Co, LPA are keenly versed in all aspects of H-1B visa extensions. They have represented numerous large and small companies which regularly employ foreign nationals and have filed more than a thousand H-1B visas during the last few years.
As an H1B attorney, I have observed a recent alarming increase in the frequency of Requests for Evidence (RFE) issued against H1b petitions filed by smaller Information Technology firms. There is no geographical pattern for the location of such IT consultants as I observed this flurry of record RFEs coming against our clients based in Columbus, Ohio, Washington, DC, or anywhere for that matter. The RFEs are extremely lengthy and require the submission of voluminous documentation, some of which has nothing with the regulatory requirements for Specialty Occupation (H1B). For instance, some of the RFEs demand the submission of zoning permits, floor plans of the premises occupied by the company, tax records, a list of all H visas submitted, and more; but the most concerning request usually proof that the petitioner is an employer, not an “agent.”
Although an “agent” technically may petition for an H-1B worker, once the Service believes that the employer is acting as an agent, it imposes extremely taxing documentary requirements on the petitioner that go above and beyond the normal kinds of paperwork that evidence most employment relationships. Once USCIS believes the employer is acting as an agent, its demands for evidence can become impossible to fulfill and may trap the employer in an impossible spiral in which all of its petitions become suspect in the eyes of the Service. Once an employer has fallen into such a trap, it may prove nearly impossible to get out of and result in disastrous consequences for the employer’s business.
In essence the petitioner is placed on the defensive to invoke the IRS of whether there exists and employer employee relationship since the H1B employees may work at a “worksite” other than the petitioner’s offices. USCIS charges such petitioners as a “staffing agencies” and requires a detailed itinerary of activities of the H1b beneficiary.
The flexibility and fast pace that business demands today from employers and their employees challenges traditional, old school business models. This is particularly true in fields such as information technology, where companies need to be able to move their employees from one site another in order or provide specific consultants with specialized skills at a moment’s notice to satisfy their clients. Companies that cannot provide these services when and how they are needed will not be able to compete. Gone are the days of the single office or worksite, the leisurely pace of life without the Internet.
Unfortunately, the USCIS has not kept pace with the changes that business today requires. The Service still imposes standards reminiscent of outdated business models onto petitioning companies, and the results can be exasperating for companies seeking to employ an H-1B worker, the employee, and the company’s clients.
Because of this, it is important for employers to seek truly experienced immigration counsel. Such counsel must have experience that goes beyond the typical bounds of navigating the demands and requirements of filing a successful H-1B petition. The ideal attorney will also be able to give employers practical advice on ways to structure and run human resource models and employment relationships that will minimize interference or suspicion from USCIS. Such advice may take the form of examining the employer’s typical work orders or employment contracts. The attorney will also advise the employer on best practices in documenting the placement and hiring of its employees, in addition to warning the employer of the kinds of employment and business practices that may rouse the suspicion of USCIS or trigger requests for evidence or denials.
Unfortunately, very often employers come to knowledgeable and experienced attorneys when problems have already started, due to retaining inexperienced counsel that charges bargain basement fees or after having filed a petition on its own. At this point, many employers have already been characterized as an “agent” by USCIS and are unable to prove to the adjudicators that they have a normal employer-employee relationship. Smart employers seek experienced counsel early in the hiring process, when the attorney can advise the employer on how to document and create relationships with both the employee and its clients that will lead to smooth and successful H-1B employment. The lawyers at Shihab & Associates, Co., LPA are experienced in these matters and have successfully counseled their clients on measures to avoid these traps.
We hope you had a Merry Christmas. As immigration lawyers and immigration attorneys we would like to extend our season’s greetings to you and your family. We know you had a great year in 2008 and you earned it. But many Americans had a jobless Christmas this year. From the nation capital, Washington, DC, to the heartland of Cleveland and Columbus, Ohio to the motor city, Detroit, Michigan we know that Job creation will be your biggest challenge. So let me explain why the H-1B visa cap increase has no negative effect on US Job creation.
One major concern of opponents of an increase in H-1B visas is that holders of these visas are taking jobs away from U.S. workers. However, this argument is based on a misconception of the process involved in issuing H-1B visas and the reasons why an increase is needed. H-1Bs are issued to holders of a bachelor or higher degree in specialty occupations where there are no available U.S. workers. In general, companies that hire H-1B temporary workers do so in order to grow, not to replace U.S. workers. Those companies are creating jobs.
There are checks against using the H-1B program to displace U.S. workers. The H-1B application process involves filing a Labor Condition Application (LCA) with the Department of Labor in which the employer certifies that the wages to be paid to the temporary worker will equal or exceed the prevailing average for the occupation, and that the working conditions will not have an adverse effect on similarly situated U.S. workers, among other things. Also the H-1B program requires companies to confirm that the H-1B workers are not replacing American workers. If some companies are slipping through the cracks and using the H-1B program to take jobs from U.S. workers, that would be a reason for procedural reform, and not a reason to make fewer H-1Bs available.
Critics of a cap increase argue that the H-1B program is merely a means for petitioning companies to obtain cheap foreign labor. However, there are also built-in procedural checks to protect against this (i.e., the LCA and its attestation that wages will equal or exceed the prevailing wage for the position). The H-1B employer is required to pay the higher of the prevailing wage and the wage paid to similarly situated professional in the company. Again, if some employers are finding a way out of paying such wages to H-1B employees, then there must be more administrative oversight or a reform of policy to guarantee that employers are in actuality paying at least the prevailing wage. It makes no sense to limit or decrease the number of visas available thus hindering our ability to be competitive worldwide in cutting-edge technologies in the hopes that to do so will make this problem better.
Fraud in H-1B Petitions
Opponents of the H-1B program and of the cap increase have been pointing to the recent H-1B Benefit Fraud & Compliance Assessment, published by USCIS in September of 2008 to support their position. Although the report definitely identifies procedural areas in which USCIS must improve, it does not make a good argument against the need for more H-1Bs. The report looks at a sample of 246 H-1B cases from a total of 96,827 approved, denied, or pending applications. 13.4% of those 246 cases had either some type of fraud or a technical violation. Please see our prior article discussing this report in more details: What is the future of the H-1B Program ?
The frauds detected by the audit included: the business did not exist, degrees and experience letters were fraudulent, forged signatures, and the beneficiary was performing duties significantly different from those described in the LCA. Some of the more prevalent technical violations included: the beneficiary was paying the application fees, the prevailing wage was not being paid, the beneficiary was working in a geographical location not covered by the LCA filed in their case, and the beneficiary was “benched,” or place in a non-productive status when work was not available.
From the list of frauds and technical violations, only some could be used to argue that the H-1B program is used to displace workers or to obtain cheap labor. And it is unclear how many of these abuses were even found in the cases that were actually approved by USCIS, since the sample included cases which were denied. The report states that among the approved cases, 19% were found to contain fraud or technical violations. However, the report does not break this number down more to detail where the more serious frauds and violations were found. The percentages of those instances may be very small. In any case, this report cannot support a conclusion that the H-1B program is a method to accomplish employers’ hidden agendas of displacing U.S. workers and avoiding higher wages. The proper method of minimizing abuses is to reformulate policy and procedures, not to cut off the supply for our economy’s demand for skilled workers.
While the country is not seeing its best days, current immigration policies are definitely not helping. The H-1B visa permits foreign workers to come temporarily to the U.S. to fill newly created jobs when U.S. workers are unavailable. Demand for such workers can be used in such a way to help the ailing economy. But to ignore this demand is hurtful to the economy because it forces companies to employ workers outside of the U.S. and causes workers with great talent or skill to search for jobs in other countries.
A solution to this problem can be found in a policy that increases the H-1B cap, at least temporarily, to alleviate demand. However, we should never lose sight of the need to improve U.S. science and math education, as these subjects are the basis for the most popular professions for which H-1B visas are sought.