Finding Sponsors For An H1-B Visa

The most important thing to know about obtaining employment in the U.S. and obtaining an H-1B work visa is that you should contact an experienced Columbus work visas attorney for sound legal guidance and assistance as you seek to obtain the visa.

U.S.-based employers who act as H-1B visa sponsors – and those who would like to act as sponsors – should also contact an immigration attorney if you require any legal assistance or if you have any questions or concerns regarding the H-1B visa.


The H-1B visa is the most widely-used work visa in the U.S. It is a nonimmigrant work visa that allows U.S.-based employers to employ international workers in “specialty” occupations for up to three years. H-1B visas can be extended once for a second three-year period.

employer requirements

The H-1B gives those U.S. employers the opportunity to hire a foreign-born professional for a “specialty” position if a U.S. citizen or resident with the necessary qualifications is not available. Employers and employees must meet a number of requirements in order to obtain an H-1B visa.


The H-1B visa is for professionals. Before you can qualify for an H-1B visa, you must have an employment offer from a U.S.-based employer in a specialized field like computer electronics, medical research, engineering, architecture, or a similar industry.

H-1B visa petitions are submitted by employers, not by potential employees. H-1B visa holders must have a bachelor’s degree or the equivalent. The United States approves 65,000 H-1B visas each year; another 20,000 H-1Bs are reserved for international workers with advanced degrees.


The H-1B visa provides a visa holder with a variety of immigration benefits that are not offered by the other nonimmigrant visas. Those immigration benefits are:

  • You’ll have the ability to stay in the United States for up to six years.
  • You’ll have the ability to transfer your work authorization status to another employer.
  • The H-1B visa is accessible. Any foreign national may apply for it.
  • The requirements are minimal. You need only a bachelor’s degree and a job offer.
  • Your spouse and dependents can accompany you to the U.S. with H-4 visas.


H-1B visa petitions are accepted each year starting on April 1st. Those who are approved and selected for H-1B visas may begin working in the United States the following October.

h-1b visas in america

Employers in the United States want to hire international workers for specialty positions, but how can you find a U.S. employer who will sponsor you? You may not be sure how to find an employer who will make the job offer that is right for you. Here are some tips that may help:


You can learn a lot simply by typing certain phrases into a search engine like Google. Use a phrase like “H-1B visa sponsors” or “companies that sponsor H-1B visas.” Be more specific by using phrases like “H-1B visa sponsors in Ohio” or “H-1B visa sponsors in Michigan.”

U.S. job sites like Monster and CareerBuilder may also be helpful. Then, you should compile a list of the U.S.-based companies that you might like to work for that sponsor H-1B visas – and prepare job applications for those employers.


The next step is to update your resume, complete the job applications fully and accurately, and send the applications to the companies that you listed in step one above.

After you are offered a job in the United States – not before – make certain that the employer understands that you need H-1B sponsorship so that the company can apply for your visa next April.

The H-1B visas have already been approved for 2019, so right now you will not be able to obtain an H-1B visa before April 1st, 2020 or begin working in the United States before October 1st, 2020.


Another option to consider is an internship. If you are in the United States with an F-1 student visa, and if you want to stay in the U.S. and find employment, try to find an internship at a company that sponsors H-1B visas.

If you can get there, you can also learn about internships at career events and job fairs. In fact, you should be “networking” as much as you can.

social media for networking

Outside of the United States, you should talk to friends and family members. Look for a chance to network with someone who represents a U.S.-based employer. Social media platforms and career platforms like LinkedIn can be helpful for networking.


If you are already in the United States with an H-4 visa or with an F-1 visa, it is good to know that most universities in the U.S. are not covered by the H-1B annual cap restriction. This allows universities to sponsor an unlimited number of H-1B visas.

It is an option that will allow you to continue living in the United States. The disadvantage to this option is that you cannot transfer the H-1B visa from your university job to another employer.


Most consulting companies operate honestly and legally, but you must be careful, because some do not. Some consulting companies may tell you that they will sponsor an H-1B visa – but only if you pay. You need to know that selling or paying for an H-1B visa is a crime in the U.S.

consulting companies

Make a list of the larger, reliable global consulting companies, like TCS (Tata Consultancy Services) and Wipro Limited. Then go to their websites, learn what employment is currently available, and apply for the jobs that look right for you.


Scores of employers in the United States – in virtually every field of employment – are H-1B visa sponsors, including Amazon, Google, Microsoft, and Facebook.

Contact an experienced Columbus immigration attorney if you need any legal advice or assistance as you seek employment in the United States. An immigration lawyer’s help is your right.

USCIS Reaches H-1B Cap For FY 2019

H-1B nonimmigrant work visas for fiscal 2019 are no longer available. Here is what our H-1B visa lawyers want employers in the U.S. to know.

According to U.S. Citizenship and Immigration Services (USCIS), H-1B visa petitions for fiscal 2019 have already surpassed 65,000 – the yearly limit on H-1Bs established by law.

USCIS also has received enough petitions for the extra 20,000 H-1B visas set aside each year for petitioners with a master’s degree.


Every year beginning on April 1st, USCIS accepts H-1B visa petitions for the following fiscal year.

FY 2019 is the sixth successive year that employers in the U.S. have needed more H-1B visas than the law authorizes. Also for the sixth year in a row, the H-1B cap was surpassed in the first few days of April.

H-1B petitions received after the cap was reached are being returned by USCIS to the applicants.

In 2005, the H-1B cap was set by law at 65,000. Another 20,000 H-1Bs are made available for employees holding advanced degrees – at the master’s level or higher – earned at U.S. institutions.

By June, the employers who have been chosen to receive visas for fiscal 2019 will be contacted.


International workers who receive those H-1B visas may begin working for their U.S.-based employers in October.

The H-1B visa is a nonimmigrant work visa that allows U.S.-based businesses to employ international workers with “specialized” knowledge when qualified U.S. citizens or residents are not available to fill specialized positions.

Many U.S.-based businesses use H-1B visas to hire immigrant workers in specialty occupations.


The Immigration and Nationality Act of 1965 defines a “specialty occupation” as employment requiring specialized knowledge in a particular field and requiring a bachelor’s degree or its equivalent.

These specialized workers include mathematicians, engineers, computer programmers, and scientists working in robotics, chemistry, and biotechnology.

The demand for highly-knowledgeable workers in these particular fields exceeds the supply of qualified U.S. citizens and residents available for the work, so employers must be fully prepared when applying for H-1B visas and must have the help of a good immigration attorney.

The employer and the employee both must qualify for the H-1B visa to be granted. It’s a long and complicated application and a lengthy, difficult process.


H-1B visas are requested by employers, not by their prospective employees. Anyone who is hired through the H-1B visa program must have a bachelor’s degree or an equivalent credential.

To obtain an H-1B visa, a U.S.-based employer must make a job offer to an international worker in a specialized field such as engineering, architecture, computer electronics, medical research, or another specialized, technical field.

The compensation provided by the U.S. employer must be consistent with pay for similar positions in the same region.


H-1B work authorization is good for three years and may be extended to six years – if a qualified U.S. citizen or resident is not available to take a specialized position.

When USCIS requests more information regarding an H-1B visa petition, it is usually because there is a question about the employer’s need for the visa or about the prospective employee’s qualifications.

That’s another reason why companies that need H-1B visas should have the insights and advice of an experienced immigration lawyer from the start of the H-1B application process.

Although it is too late to seek an H-1B for fiscal 2019, it is not too soon to start preparing H-1B applications for fiscal 2020 – or to look at alternatives to the H-1B visa. If you are looking to work in Florida, a Florida Immigration Attorney may be able to help.


Employers should begin now to identify international job candidates who need sponsorship. Some may already be working in the U.S. with temporary work authorizations. Candidates and employees who may need H-1B sponsorship include:

Anyone now in H-1B status with an H-1B cap-exempt employer (an educational, governmental, or nonprofit employer) who seeks employment with a cap-subject employer.

Recent graduates and students now in Curriculum Practical Training (CPT) or Optional Practical Training (OPT) who will need H-1B sponsorship when their training expires.

Those now holding a different nonimmigrant work visa (such as a H-3, H-2, TN, J-1, or O-1 visa).

Employers with questions about the H-1B visa – and those who want to apply for fiscal 2020 – should contact an experienced Michigan or Ohio immigration attorney at once.


While it is now too late to apply for an H-1B visa for fiscal year 2019, it is not too early to begin work on H-1B petitions for next year – or to consider potential alternatives to the H-1B visa.

U.S.-based companies that need to obtain H-1B visas for fiscal 2010 should start the process immediately.

It is also important for U.S. employers to know that H-1B visas are not exclusively issued to corporations like Google, Apple, Microsoft, and Facebook. Employers of all sizes and in every part of the U.S. apply for and obtain H-1B visas.

H-1B employees contribute substantially to local communities and the national economy, pay state and federal taxes, and help businesses create even more jobs and other new opportunities.


An experienced immigration lawyer understands the immigration system and knows how to acquire the visas that employers require. Employers, of course, must realize that due to the H-1B visa cap, not even a single H-1B visa can be guaranteed.

Frankly speaking, H-1B visas are difficult to acquire.

If you are an employer in the U.S., you will need an immigration attorney’s help meeting deadlines, providing complete and accurate information, and avoiding the misunderstandings and mistakes that can prevent U.S. employers from obtaining the visas they need.

A knowledgeable immigration lawyer can put your company in the best position to acquire the H-1B visas that the company needs. Your lawyer will also know about other visa options that may be equally effective for a number of employers.

Every visa petition and immigration procedure is complicated and takes time. Everyone who is seeking a visa will need reliable legal advice and insights.

That is why it’s smart for employers who need work visas to contact an immigration attorney as early as the need becomes clear.

Employers must not do this alone. Pay no attention to the unreliable and outdated information you find online. You must have the hands-on help of a trustworthy Michigan or Ohio immigration attorney.

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 a skilled Columbus immigration attorney as quickly as possible to begin the process.


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.


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 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 attorney who practices immigration law 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.


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 immigration lawyer 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.

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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. According to our immigration attorneys, 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 lawyer.

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’re studying abroad and you’re having issues or any questions related to your visa or status, you need to consult a knowledgeable immigration attorney. Only then can you get the answers to all your questions, as well as support when dealing with any legal issues that are related to your immigrant status. It is essential that you seek the advice of an experienced immigration attorney, because their complete understanding of the law surrounding immigration issues will help them aggressively defend your rights as an international student. Likewise, if you are an employer looking 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 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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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 EB-5 investor visa 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 our experienced EB-5 investor visa attorneys and get the guidance you need today.

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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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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.