Talk about U.S. Immigration

The H-1B anxiety

Just as last year, the U.S. employers desiring to hire foreign nationals on h-1b visa are scurrying to file their petitions and hoping that their petitions would be selected in the computer generated random selection process trying to hire the most employees they could.

Yesterday, after much suspense in the air, USCIS released an interim rule and issued a fact sheet disclosing that the Rule would prohibit ‘multiple and duplicate’ filing by an employer for the same employee. It appears that several employers and prospective employees were planning to file multiple and duplicate petitions to increase their odds of success in the computer generated lottery selection process.

The prohibition applies to job offer(s) from the same employer to the same employee whether the petitions are for one job or different jobs. In view of the limited number of the H-1B admissions available for the FY, the policy behind this rule is to afford employers equal opportunity in hiring H-1b workers. The rule however exempts “related employers” like parent and subsidiary companies etc. from the prohibition. In other words, related employers may file petitions for the same foreign national as long as the positions are different and there is a “legitimate business need.”

The last minute rule has sent people scurrying for clarifications whether multiple petitions in certain situations are ok or not. It appears that people are prepared to file multiple petitions because if their petitions are not selected the USCIS would refund their filing fee and they lose nothing. The rules also require that if an exemption is claimed erroneously the fee would not be refunded.

The H-1B petitions may be filed as early as April 1 each Fiscal Year for the employment start date of the first day of the FY i.e. October 1. The foreign national must have the qualifications to fill a professional position (specialty occupation); generally, a bachelor or higher level degree or a combination of education and experience, and is hired for a permanent position.

H-1B is a much wanted visa category as the foreign national enjoys long enough stay (6 yrs.), is subject to the least limitations and can seek legal permanent resident status while continuing to maintain the h-1b visa status.

The total number of H-1B admissions are subject to a fixed numerical limit each Fiscal Year (the ‘CAP’) that determines how many foreign nationals could be hired each year under the “specialty occupation” category. The annual numerical limitation was raised each year following the enactment of “American Competitiveness and Workforce Improvement Act of 1998″ (ACWIA) that was later amended by the “American Competitiveness in the Twenty-First Century Act of 2000″ (AC 21). Until FY 1996 the number of foreign nationals hired in the h-1b category was much less than the numerical limitations (CAP) imposed for the category. In FY 1997 the CAP was reached in September (a month ahead of the end of the Fiscal Year) and in the next FY by May 1998.

An all time high was reached when the Congress increased the annual cap to 195,000 for the years 2001, ‘02 and ‘03 from 115,000 in 2000. The numerical limits were restored to 65,000 in the FY 2004 i.e. from October 1, 2003. The 2004 “H-1B Visa Reform Act” also created a cap exemption for 20,000 advanced degree graduates of U.S. universities, these numbers are taken away from the above mentioned total numerical limit of 65,000 and do not raise the CAP in any way.

In FY 2004, the annual cap was reached early in the year and on February 17, 2004, USCIS announced no further cap-subject applications would be received. The coming years showed the same trend with the visa numbers getting exhausted much earlier each FY. In 2008 the USCIS anticipated that the CAP would be reached on the very first day of the FY. In an unprecedented event, on the very first day when the petitions could be filed for the FY 2008 (i.e. April 1, 2007) USCIS received enough number of applications that far exceeded the available H-1B admissions for the entire year. However, as required by the Rule, USCIS continued accepting the applications for the first two days of April, 2008 and then refused all others. The cap subject applications were pooled to be selected by the computerized random selection.

As the H-1B Visa numbers remain unchanged at 65,000 for the FY 2009, employers and foreign nationals, find themselves constrained by the numerical limits imposed by the U.S. immmigration law, because the demand for this visa category far exceeds the allowable numbers and think of ways to maximize their chances of H-1B allotment in the present lottery system. Immigration advocacy groups and businesses equally feel that nation’s immigration laws are hampering the economic growth by restricting the employment of foreign nationals and are the major cause for movement of business opportunities out of U.S.

Visa Waiver Program extended to more countries

Yesterday, the U.S. government signed an agreement extending the Visa Waiver program to three more countries, Slovakia, Hungary and Lithuania. A few weeks ago, Czech Republic, Estonia and Latvia were included in the VWP countires. Once the necessary requirements are satisfied, the U.S. government expects that the citizens of these countries would be able to undertake visa free travel to U.S. in the coming months.

Visa Waiver Program has been in existence for over 20 years and allows the nationals of 27 European and Asian countries to travel to U.S. without the need for a visa. Only countries with low visa refusal rate may qualify to be included in the program although the Immigration and Nationality Act allows additional countries to be designated as program country if those countries fulfilled the criteria. The U.S. Congress authorized the Department of Homeland Security to reform VWP, strengthen the security measures to be taken by the participating countries and expand the conditions set out for countries that wish to join the program.

A national of the VWP country may enter U.S. as a nonimmigrant visitor for 90 days upon production of a machine readable passport. Basically, a VWP visitor is subject to the same limitations as a B visa visitor would be in U.S. and must leave at the expiration of his authorized period but a short discretionary extension may be available in emergent circumstances.

No new immigration law in Indiana

Last week the Indiana Legislature allowed the porposed Immigration Bill, designed to punish hiring of illegal immigrant workers, to die. Two different versions of the Bill were passed in the Senate and the House and the State Legislature could not agree upon a compromise Bill. The reason: the Legislative leadres have not scheduled a conference committee hearing to work out the differences.

As of now, Indiana has not joined the group of States that passed laws to punish employers with licensing sanctions, for hiring unauthorized workers. However, possibility of such a law coming into effect next year is not ruled out.

Background check would no longer hold family based immigrants in abeyance

Those who are applying for family based adjustment of status need not wait long to que for their interview because of the pending name check. According to the latest instruction of USCIS if such an applicantion is ready to be processed in all the other respect and the only item remaining is the name check, the applicantion shall be placed in the interview que after 6 months of waiting for name check. However, lining up for the interview will not be available if the name check is performed and the application is awaiting the biographics (fingerprinting).

This policy gives a respite to all those I-485 applicants who have been awaiting their interview for years because name check clearance was not given.

Posted:March 4th, 2008 under Policy.

Indiana on Immigration Law

The Indiana State Legislature is considering imposition of the employer sanctions for hiring unauthorized labor. If the Bill is enacted, Indiana would join a group of other States that have enacted similar legislations punishing employers for hiring undocumented or unauthorized foreign nationals with knowledge that they do not possess the employment authorization.

Although, it has been repeatedly held that immigration is a subject of federal legislation, several States are beginning to legislate in this area pointing out the failure of the Congress in 2006 and ‘07 to enact a Comprehensive Immigration Reform. Earlier, a challenge to Arizona’s “Legal Arizona Workers Act” was turned down by a Federal District Court on the ground that the States are within their authority to enact laws relating to licensing sanctions against employers under the savings clause of the Immigration and Nationality Act. Section 274A(h)(2).

As Indiana considers the imposition of licensing sanctions against its employers for unauthorized hiring of foreign nationals the final details of the Bill are expected to be sorted out as the legislative session ends Mid March ‘08. Indiana immigration Bill, like similar legislations of other States, seeks to impose a three tier punishment on the employers: first a warning, then suspension and lastly revocation of business lincense.