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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.

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International Students Deserve Thanks

bigstock-Close-up-of-male-hands-with-pe-46137757The next time you encounter a student in the United States from another country, say “thanks!” International students contributed $24 billion to the U.S. economy in the 2012-2013 academic year. A report published in November by the Association of International Educators (NAFSA) found that foreign students bring a lot more than a desire to learn when they enter the United States.

Spending by the 819,644 students bolsters an estimated 313,000 jobs in the United States, and the $24 billion spent in academic year 2012-2013 represented a 10 percent increase in spending over the previous academic year. Spending by foreign students and their families was highest in California, New York, Massachusetts, Texas, and Pennsylvania. By their spending on education, housing, food, clothing, transportation, telecommunications, and insurance, international students and their families create an estimated three jobs for every seven students and families.

International enrollment is surging in the United States, and last year it increased by 7.2 percent over the 2011-2012 academic year. The direct, tangible economic benefits of having foreign students come to the U.S. are undeniable; $24 billion is hard to ignore. But the less apparent benefits are perhaps even more important than money; increased cross-cultural friendships and understanding, and maybe just a smaller step toward a more peaceful world.

Even for the most savvy scholars and scientists, immigrating to the United States is often tricky and always difficult. Foreign students should consult with an experienced immigration attorney to answer any questions or concerns regarding their immigration status and related matters. If you are accused of violating any immigration law or regulation, promptly contact an experienced immigration attorney to provide the legal representation you’ll need. A good immigration lawyer will also assist with visa applications and with any immigration-related interviews or hearings. Whatever your immigration-related legal concern may be, don’t hesitate to contact an experienced immigration attorney right away.

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Raising The H-1B Cap

bigstock-People-Visa-Sign-1751484Businesses throughout the United States are starting to assess their H-1B visa needs for fiscal year 2015. Greater competition than ever is expected for the limited number of available H-1B visas. Raising the number of available H-1B visas would help ever-growing U.S. business needs. The H-1B visa allows U.S.-based businesses to hire foreign nationals in specialty occupations and specialized fields such as architecture, engineering, science, medicine, and math. Workers must hold at least a bachelor’s degree and may work in the U.S. for up to six years.

Since 2005, only 85,000 H-1B visas are available each year, and 20,000 of those are reserved for workers with advanced degrees from U.S.-based institutions. Employers, particularly those in the high-tech sector, are expressing a need for more H-1B visas to meet the demands of the U.S. labor market. The H-1B cap has been reached earlier every year since FY 2011, and it is expected to be reached rapidly once again for in FY 2015, demonstrating that the H-1B cap is set too low to meet the needs of U.S.-based employers.

Raising the H-1B cap will not cause a “flood” of foreign-born workers, as some opponents have feared. The Bureau of Labor Statistics estimated that there were more than 31 million workers in professional and related occupations in the United States in 2012. The H-1B cap of 85,000 is less than three-tenths of one percent of this figure, so raising the H-1B cap would not negatively impact U.S. workers.

Employers or prospective employees with questions or concerns about seeking an H-1B visa should consult with an experienced immigration attorney as quickly as possible. A good immigration lawyer can assess your situation and provide the legal advice you need; he or she can also assist with forms, applications, and other immigration-related paperwork and procedures. If you’re an employer or worker trying to obtain an H-1B visa, or if you have any questions or issues pertaining to immigration-related employment, obtain the counsel of an experienced immigration attorney right away.

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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.

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Senate Bill 3192

bigstock-People-Visa-Sign-1751484July 25, 2012

We wanted to make sure you were aware of an interesting piece of legislation that was recently introduced by two members of the U.S. Senate.

In May, Senators Lamar Alexander, a Republican from Tennessee and Chris Coons, a Democrat from Delaware, introduced Senate Bill 3192, which carries the title: “Sustaining our Most Advanced Researchers and Technology (SMART) Jobs Act of 2012.

According to the authors, SB 3192 is designed to create a path for non-citizens who earn a masters or doctoral degree in a STEM field from an American university to remain in the country for up to a year while they search for employment related to their field of expertise. Once they have received employment, they would be eligible for a green card. Additionally, these STEM-specific green cards would not count towards any caps or limits already in place.

SMART would make use of a new Family Fourth Preference (F-4) visa category. F-4 is currently a 65,000 cap non-immigrant category used for “brothers and sisters of U.S. citizens, and their spouses and minor children.”

In the bill’s release, Coons pointed to his belief the U.S. has not been doing an adequate job retaining the most talented young minds it educates. “Instead of sending them home after graduation, we should be encouraging them to stay in the U.S. to pursue their innovations and create jobs here,” he said.

“It makes no sense to attract the most talented scientists and engineers from other countries to our schools to educate them, only to send them home to compete with American companies and create jobs in other countries,” said Alexander.

The authors pointed to some interesting statistics related to the bill, namely that immigrant-founded startup companies created 450,000 jobs in the last decade and have generated more than $50 billion in sales in a single year. Also, more than 40 percent of Fortune 500 companies were founded by immigrants or their children. In Silicon Valley more than half of new high-tech startups are founded by immigrants.

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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.

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Visa Bulletin Retrogression: Consequences for Spouses

bigstock-Immigration-3151682February 21, 2012

It is an exciting time for many foreign nationals living in the United States. During the last four months, the EB-2 priority dates for India and China have moved forward over two years. As a result, many employment-based immigrants have been able to file Applications for Adjustment of Status earlier than they ever expected. At times such as this, many forget about the possibility of Visa Bulletin retrogression, the “rolling back” of priority dates.

Visa Bulletin Retrogression is of particular concern for foreign nationals that are intending to or already are married. Spousal concerns can prevent or delay the filing of Adjustments of Status Applications. Such, when combined with Visa Bulletin retrogression can be devastating. As the Department of State has recently stated that Visa Bulletin retrogression is likely to occur soon (See HERE) we thought we would take the opportunity to discuss two common issues that face employment-based Adjustment of Status Applicants with regards to their families:

Delaying Adjustment of Status due to Impending Marriage

United States immigration law permits only pre-existing spouses to immigrate to the United States with the principal employment-based immigrant. That is, a couple must be married before the employment-based immigrant receives their green card. Thus, intending employment-based immigrants sometimes delay filing for Adjustment of Status until after they are married so that their new spouse can immigrate to the United States with them.

Visa Bulletin retrogression can delay the filing of Adjustment of Status in such cases. If, the Visa Bulletin retrogresses before the marriage occurs, the couple will not be able to Adjust Status until the priority date is current again.

For most foreign nationals, the risk of retrogression is worth it. If one marries after they get their green card, they can only bring a spouse to the United States by filing an I-130 Family-Based Immigrant Petition. This process can take years.

Failing to File Due to A Family Member Being Located Abroad

Sometimes spouses of employment based-immigrants are unable to apply for Adjustment of Status due to extended trips outside of the United States. Where retrogression occurs before the spouse can return to the United States and file an Adjustment of Status, the spouse could have trouble reentering the United States.

A spouse abroad can obtain an immigrant visa to enter the United States by “following to join” the principal employment-based immigrant in the United States, that is, applying for an immigrant visa at a consulate. This process can, though, take some time. If retrogression occurs and the principal immigrant’s priority date is no longer current, a consulate won’t be able to issue an immigrant visa. The spouse abroad will have to wait until the priority date is current again.

The inability of a spouse to obtain an immigrant visa can sometimes be circumvented by entering the United States as a non-immigrant, either in a derivative capacity (H-4, L-2, etc.) or in their own right (F-1, H-1B, L-1, etc.), but such cannot be guaranteed. If the principal immigrant the United States cannot maintain their non-immigrant status, no derivative status will be available to the spouse abroad. Further, if the visa bulletin retrogresses after the principal immigrant in the United States receives his or her green card (rather than while the application is still pending), obtaining a nonimmigrant visa for a spouse abroad could be more difficult; consulates will be reluctant to issue some types of non-immigrant visas to those with permanent-resident spouses.

Thus, if retrogression occurs and a spouse abroad cannot obtain a nonimmigrant visa, they will be stranded outside of the United States until the principal immigrant’s priority date becomes current again. This ultimate scenario, while somewhat unlikely and rare, has occurred in the past. If there is a possibility that such might happen with you or a family member, it would be wise to consult with an immigration attorney.

Conclusion

Family issues can complicate the Adjustment of Status process in many ways. Any decisions regarding these issues must be informed ones as to protect and preserve family eligibility for immigration benefits. As such, we at Sam Shihab & Associates, LLC are always happy to provide consultation on such issues.

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FAQ: H-1B Extensions Beyond Six Years (Part 1)

Columbus Investor Visa AttorneySeptember 30, 2011

A few years back this blog touched on a few of the specifics connected with extending an H-1B visa beyond six years. Given how many of our clients here in the Columbus, Ohio community work closely with the visa we thought another look at this aspect would be helpful.

What is the history of 7th year H-1B extension?

Prior to 2000, if a foreign national here on an H-1B visa could not reach I-485 (permanent resident) status within six year they were required to leave the U.S. What would often happen is that delays in the permanent residence application process meant H-1B visa holders would reach the end of their six years before completion. Since the situation meant employers often lost the investment they had made in skilled employees, Congress elected to introduce AC21.

What is AC21?

In 2000, Congress passed the “American Competitiveness in the Twenty-First Century Act,” or AC21. Among other things, AC21 allowed for H-1B workers to begin working for a new employer upon filing the petition instead of waiting for approval. It also provided the ability to extend the H-1B visa beyond six years if an ongoing PERM Labor Certification began at least 365 days prior to the end of the sixth year.

What is Time Recapture?

One way to extend an H visa past the six-year limitation is to “recapture” time spent outside the U.S. Since the law allows that visa holders can spend “precisely” six years in the country with an H-1B, a request can be made that trips outside the country be added to the back-end of the visa period.

The alien can also apply for an extension of the visa in order to recapture time between the visa’s issuance date and their actual entry to the U.S.

How can I get an extension beyond six years if I’ve filed for labor certification?

  • Your PERM application has been pending for more than a year: If an alien’s PERM application was filed at least 365 days prior to the six-year mark of the H-1B visa they may file for successive one year extensions. (Note: The employer who filed the original PERM does not have to be the same employer now seeking the extension.)
  • Pending appealing of denied labor application: If an employer filed a timely appeal of a denied labor certification application and is still awaiting final decision they are entitled to a one year extension of the H-1B visa as long as 365 days has lapsed since the filing of the PERM labor certification. Again, the employer who filed the original labor certification application does not have to be the same employer now seeking the extension.
  • Approved unexpired Labor/PERM application filed one year prior: If less than six months have elapsed since the certified PERM application was issued and 365 days have passed since the filing of that application – the foreigner has the right to receive a one-year extension beyond six years.
  • Pending or approved I-140 petition filed one year prior: Permanent resident applications that have been filed using the first-preference category (EB-1) and a specific sub-category of the second-preference group (EB-2 – “National Interest Waiver” – which allows the labor certification requirement to be set aside because the immigration is considered to be in the United States’ best interest) do not require the filing of a PERM application.

I-140 beneficiaries can also take advantage of these rules, when they file their petition more than 365 days prior to the extension request. If more than a year has passed since the I-140 has been pending, the foreigner is, in most cases, entitled to consecutive one-year extensions of their H-1B visa.

What are the H-1B extensions related to “per country” limitations?

  • Your I-140 has been approved and less than a year has passed since filing a PERM of I-140: If your priority date is not current because of country of birth limitations, but you have been approved for I-140 you are entitled to an H-1B extension of for three years beyond the six-year period.
  • This is still true even if your PERM application or I-140 was not filed more than 356 days by the time the H-1B was sought.
  • 1-140 is pending and it has been less than a year since filing PERM or I-140: If a PERM application has been approved and you have filed an I-140 within a year of the PERM application you will not be able are generally able to renew your H-1B beyond the six-year period. But there are options.

In Part 2 we will discuss these options.

Professional Golfer Faced Visa Struggles to Play American Tournament

bigstock-Immigrant-Families-On-The-Marc-5038074July 15, 2011

The U.S. Open golf tournament took place last month at Congressional Country Club just outside of Washington D.C. It is considered among the most prestigious tournaments in the world. This year it also had a connection to the world of immigration.

While we don’t imagine many among our readership are members of the PGA tour, we thought those here in the local community would appreciate a story about the hurdles everyone has to jump through.

Robert Rock, a professional golfer from England, qualified for the tournament two weeks prior to the event, which began play on June 16. But traveling to Bethesda, MD for the event meant Rock would have to acquire a visa.

And though he started the process on May 30, a driving-under-the-influence offense committed as a teenager would delay the proceedings for 34-year old Rock and create one of the tournament’s more interesting sub-plots.

After winning the Italian Open on June 12 (the first victory of his career), Rock found he was not approved to travel and couldn’t fly from Turin to the U.S. So instead he flew back to London. In England he met with U.S. immigration officials, approximately 72-hours before his tee time at the Open.

Rock’s visa was finally approved at about 4pm on Wednesday, meaning he had approximately 22 hours to get himself to the states or lose his place in the field. The golfer was complimentary of the U.S., saying afterwards he thought “(The US Embassy) rushed it through as fast as realistically you can do . . . they did a great job for me.”

But Rock’s saga was still not over, as he still had to get to Congressional. He took the first flight leaving London for U.S., one that landed in New York at 11:30 pm Wednesday night. He rented a car and finally reached the Washington area at 3:30am, roughly 11 hours before his 2:19 pm tee time the following day.

And incredibly Rock played well that first day. He ended up shooting a 1-under round of 70 that had him tied for tenth and was the best round shot by any Englishman in the field. He would end up finishing a more than respectable 23rd in the field.

Some reports said the process cost Rock upwards of $24,000 in various fees, though he himself said the real figure was “nowhere near that much.”

Columbus, OH Attorney: Notice of Intent to Revoke: Know Your Rights!

bigstock-Passport-Gavel-5802855June 28, 2011

Congratulations! Your I-130 petition has been approved! You worked hard, put together a good petition, and now your loved one can immigrate to the United States, perhaps joining you here in central Ohio, worry free. Right? Not always. Even after the United States Citizenship and Immigration Service (USCIS) has approved your I-130 petition, they can issue a Notice of Intent to Revoke (NOIR) and turn your world upside-down.

A NOIR is, essentially, a failsafe that allows USCIS to deny your I-130 petition after it has been approved. If, after your I-130 petition has been approved, USCIS discovers that it made a mistake in approving it, or discovers new information that shows you aren’t entitled to approval, it issues a NOIR.

An NOIR letter should explain to the petitioner exactly why the I-130 is being revoked, setting forth the law and facts that, according to USCIS, show that the petitioner is not entitled to their approved I-130 petition. It should also inform the petitioner that they have a right to respond to the NOIR and explain why their NOIR should not be revoked.

So, you’ve gotten a NOIR in the mail. What can you do?

  1. Respond – A NOIR will not go away. If you don’t respond to it, USCIS will revoke your I-130 petition.
  2. Act Fast – A NOIR should state a time period (often 30 days) in which you are permitted to respond to the NOIR. However you decide to respond to the NOIR, make sure you do so within the allotted time period.
  3. Inspect the Record – You have the right to inspect USCIS’s record relating to the I-130 that USCIS intends to revoke. Inspecting USCIS’s record can help you find holes in the Notice of Intent to Revoke and allow you to make better factual and legal arguments in response.
  4. Submit Evidence in Support of Your Arguments – Your response to the NOIR is your only opportunity to present evidence to USCIS. Don’t waste it. You may be able to clear up USCIS’s misunderstanding of the facts by providing them with better information.
  5. Make a Legal Argument – You may be able to present a legal argument that will convince USCIS that your I-130 shouldn’t be revoked. Even if USCIS doesn’t agree with your legal argument, you might be able to appeal USCIS’s decision to a higher authority.
  6. Consult an Attorney – A NOIR is a scary thing – a letter from a government-trained immigration law expert, telling you that your I-130 petition is going to be revoked in a matter of days. After reading a Notice of Intent to Revoke, an I-130 petitioner might think that there is nothing that they can do.

Depending on your particular circumstances, a trained attorney, using the above mentioned tactics as well as other techniques, may be able to tear a seemingly-air-tight NOIR to shreds or otherwise work around it.

An NOIR is serious business. It has the potential to put an I-130 beneficiary out of work, out of the country and away from their family, but if you take it seriously and act fast, you may be able to beat it.