Talk about U.S. Immigration

The new form for employment authorization

April 28, 2008 on 2:46 pm | In Changes in Law | No Comments

The employment authorization application (EAD form) or the I-765 as it is popularly known is revised, as announced by the USCIS, on April 24, 2008.

The form I-765 is used by the foreign nationals to request U.S. Government’s approval that the foreign national is eligible to be lawfully employed in U.S. Majority of immigration enforcement involves removal of foreign nationals engaged in unauthorized employment. Therefore, any modification in the process relating to employment authorization becomes very important and proper compliance is expected to maintaining valid immigration status.

The interim regulation, published in the Ferederal Register on April 8, 2008, extended the Optional Practical Training period for certain categories of courses in science, technology, engineering and math (known as STEM) to 29 months and allows the qualified non immigrant students on F1 visa, to extend their OPT work by another year.

The new I-765 form would include the course codes for the designated STEM courses. The previous form may be used until July 8, after this date it would no loger be valid and only the new form, dated, April 8 2008, would be accepted.

H-1B in its Present State

April 16, 2008 on 2:04 pm | In statements | No Comments

The H-1B visa category is probably the most coveted employment based visa as it covers a vast category of professional occupations. This visa category provides U.S. employers with highly skilled international workforce for a temporary period, while the foreign national enjoys minimal restrictions on his stay in U.S. and can concurrently seek permanent residency. Both, the employers as well as the employee stand to gain. In the last decade demand for this visa has been constantly rising.
The H-1B visa, aka specialty occupation visa, allows the American companies, institutions etc. to hire foreign nationals to fill professional level positions requiring specialized knowledge. “The Immigration Act of 1990”, eliminated the entertainers, artists and athletes from this category and created two separate nonimmigrant categories “O” and “P” to accommodate them. The H-1B visas have undergone several legislative and regulatory changes.

Typical H-1B occupations include architects, accountants, doctors, engineers, management consultants, scientists, systems analysts, primary and secondary teachers, and college professors and researchers. The foreign national could initially be admitted for a period up to 3 years which may be extended to a maximum authorized stay not exceeding 6 years. The Department of Labor Regulations ensure that the H-1B worker is paid the ‘required wages’, is provided the similar working conditions as and is hired only in the absence of qualified and willing, U.S. workers.

The total number of visa admissions under this category is subject to an annual numerical limitation also known as CAP. Every H-1B petition, filed by an employer for a foreign national reduces the annual numerical limit by one. H-4 dependants, i.e. spouses and children of the H-1B are exempt from the CAP. The first time, CAP was reached in the fiscal year 1997 then again by May in FY 1998. The “American Competitiveness and Workforce Improvement Act” (ACWIA) raised the H-1B numbers to 115,000 in FY 1999, 115,000 in FY 2000 and 107,500 in FY 2001. This Act was further amended by the “Twenty First Century Act of 2000” (AC 21) which raised the CAP to 195,000 for FYs 2001, ’02 and ‘03. Together, the two enactments provided liberally in favor of H-1B visa category consequently CAP was not reached in FYs ‘01 through ‘03.

“The H-1B Visa Reform Act of 2004” brought back the annual numerical limit to 65,000 and created additional 20,000 visas for foreign nationals holding master’s or higher degree from U.S. institutions of higher education. H-1B employment at some institutions is CAP exempt. The CAP for the FY 2004 was reached in February 2004 and for the FY 2005 in October 2004. In the later years, the available visa numbers were exhausted much earlier in the year. For the fiscal year 2008, the CAP was reached the first day of April 2007, i.e. the first day on which filings could be accepted for the fiscal year. However, the USCIS decided to continue accepting the applications for the first two days as required by the rules and pooled the applications so received to pick 65,000 of these through a computer generated random selection process (lottery). It is reported that in FY 2007 the total number of applications received exceeded twice the number of visa admissions available. With no change in the available annual visa numbers, this year also (FY 2009), USCIS anticipated the same rush in filing H-1B petitions as was last year and decided to use the lottery selection process.

In an attempt to better manage the CAP and the rush in filing, caused by the shortage of H1Bs, USCIS announced an interim final rule modifying the H-1B filing procedure. The interim rule reasons that the modification was necessary to afford all the employers an equal and fair opportunity in making the lottery. Although, only 500 instances of duplicate filing were reported last year.

Among the most talked about provisions of the interim rule is the prohibition on duplicate or multiple filings by the same employer for the same employee in a fiscal year, even if it is for different jobs. The law allows only one CAP number to be allotted per beneficiary, regardless of the number of petitions filed on his behalf. Immigration & Nationality Act, Section 214(g)(7), 8 U.S. Code Section 1184(g)(7). Although recognizing that this provision of the statute contemplates multiple filings of H-1B petitions; USCIS has made it clear that it would revoke an approved petition upon finding a duplicate or multiple filing.

The rule creates an exception for the related employers, namely; parent or subsidiary or affiliated companies, may file two or more petitions for the same alien, only one per employer, if there were two or more job offers for distinct positions. Some think that the exception created a safe haven that encouraged forming subsidiaries and affiliates overnight. It appears that to increase their chances of making the lottery, both, employers and employees were resorting to duplicate / multiple filings. Employers filing multiple petitions for the same employee and the employees having several employers file petition for him. USCIS recognizes that too many employers are chasing too few H-1B visas. The rule also laid out that any petition that incorrectly claimed exemption from the CAP would be denied and all the fees retained. Since the rule came just a few days before April 1, when the filing started, those who had planned on filing multiple /duplicate petitions were scrambling to clarify the rule.

This year, USCIS anticipated that even the master’s degree exemption of 20,000 visas would become oversubscribed during the initial filing days and suspects that it may include duplicate filings. About 163,000 petitions were received until April 7, 2008 and master’s CAP was oversubscribed. Two lotteries were conducted on the April 14, 2008; which is when the premium processing period of 15 days started. The petitions filed towards the master’s degree exemption were subjected to the lottery selection process first and any such petition not so selected were then pooled for the regular 65,000 CAP subject lottery selection. The master’s petitions, therefore, stood twice the chance of getting accepted; which indicates a preference for the highly qualified foreign workers from U.S. institutions. USCIS has retained some petitions on a waiting list as it anticipates some petitions were likely to be returned, refused or rejected as ineligible. A decision on these waitlisted petitions could be expected by the end of May 2008.

The American Immigration Lawyers Association (AILA) says, “[p]roviding for visas based on lottery, rather than on the needs of the economy, is no way to run an immigration policy” and calls upon “the Congress to enact legislation to fix the broken H-1B system” and “to provide new legal avenues for employers to fill legitimate labor needs.” Several Bills have been proposed in the Congress, to raise the CAP and at least one seeks to restore it to the FY 2003 level, but none have been converted into law. The H-1B scramble could be checked and perhaps the businesses would also not move out to other countries if the annual numerical limit was raised. Perhaps this has been a contributory factor in the economic growth in Asia.