I was so happy to see that finally – after months of complaints – USCIS leadership is going to do something about some of the outrageous denials coming out of its California Service Center. According to an article in the L.A. Times, USCIS Director Alejandro Mayorkas is looking into a dramatic spike in denied O and P visa petitions, which are intended for aliens of “extraordinary ability” and entertainment groups/culturally unique performers, respectively. The article states that even the White House and Congress have gotten wind of the stench coming out of Laguna Niguel, which I’m sure has been embarrassing for a Director that has vowed to change and humanize the way America’s immigration benefits agency works. Whatever the reasons, I’m just glad that something is going to happen. I’ve seen way too many artists and entertainers apply for O-1 visa extensions, only to be told that they no longer have the same level of “extraordinary ability” they apparently had when USCIS originally approved their petitions. Such bad behavior prevents truly talented people from bringing their services to this country, which is really in no one’s interests. Ali M – do your thing, and make the process of petitioning for an O or P visa as transparent and consistent as possible.
Demand for visas to the U.S. is so strong in China right now that the U.S. Embassy in Beijing and the many U.S. Consulates around the country are staying open on Saturdays for the next few weeks in order to ease the backlog and shorten wait-times for visa interviews. According to the State Department’s website, the United States issued more than 487,000 visas to Chinese citizens in 2009, and demand for visas is up 28% in 2010 over the same period last year. This “Super Saturday Visa Program” – which was sounds a lot like a variety show from Taiwan, but that’s besides the point – is a creative response to this sharp increase in demand, and hopefully gives Chinese citizens a positive view of traveling and even immigrating to the U.S. I just wonder if this unprecedented accommodation (come on, how many government employees will ever work on a Saturday?) is partly due to the newly-found wealth of so many Chinese, which I’m sure our elected leaders would love to see transferred to American stores, hotels, restaurants, and any other places where tourists spend money. Let’s see if the demand for visas in, say, Pakistan increases by 28% – would the U.S. Consulate in Karachi stay open on Saturdays to accommodate the extra demand? I somehow can’t see that happening.
This must be the week of government techniness. After USCIS announced that it had created some online contraption called VIBE (see yesterday’s post), purportedly to help employers file I-129s and I-140s, the Department of Labor announced that it has a new online resource for H-1B employers and workers called the H-1B advisor. While VIBE seems to be an online tool that is actually used to file petitions with USCIS, the H-1B Advisor is purely a source of information for anyone connected with the H-1B nonimmigrant visa category. The Advisor is initially divided into two sections – one for employees and one for employers – and is then further sub-divided by type of employee and type of employer. The whole thing seems fairly user-friendly, and contains clear and concise statements of the law concerning employment of H-1B nonimmigrants. My one critique would be that it’s almost too legalistic, which could scare some users off. I especially love how the first two sub-categories of employers are “I am an H-1B dependent employer” and “I am a willful violator.” Say what? Willful violator? That definitely does NOT sound good out of context, and the DOL might want to re-phrase some of these terms, or at least provide a tool on the same page that defines them (there is a glossary, but it is not accessible directly from the initial pages). Minor criticisms aside, this is a very useful site that will demystify the H-1B category for many people, attorneys included.
Aside from severely screwing up international air travel, Iceland’s Eyjafjallajokull volcano has also caused a serious immigration conundrum for countless foreign nationals stuck in the United States. After all, if someone’s authorized stay ended on April 15th, but that person’s flight was cancelled and he can’t return home until after the 15th, he’d be unlawfully present in the U.S. and could potentially have problems re-entering the country. Not to worry, though – U.S. Customs and Border Protection and USCIS have announced measures that foreign nationals can take to avoid any immigration problems due to the volcano. Travelers that entered on the Visa Waiver Program (VWP) can go to CBP’s offices at the airport (I know that this is the case in Los Angeles, at least), and seek “satisfactory departure.” Foreign nationals that entered the U.S. on a visa have to go through USCIS to extend their authorized period of admission, and should ideally do so at least 45 days prior to the expiration of their stay. Interested travelers can contact CBP or USCIS directly for more information. The bottom line is that, with the right planning, this volcano need not spew lava on anyone’s ability to re-enter the country if they’re stuck in the U.S. through no fault of their own.
Good news for professionals wanting to work in the United States: H-1B applications are low so far this next fiscal year. The Vermont Service Center released its first H-1B numbers on April 6th, stating that 9,525 cap-subject petitions had been received so far this year; of those, 6,791 are regular cap petitions and 2,734 are masters degree petitions. I’d have to check and see how those numbers compare with FY2010, when H-1B petitions were at an all-time low, but next year’s numbers are certainly far less than those in previous years, when the entire 65,000 quota was met on the first day of the fiscal year, April 1st. FY2011′s low numbers obviously reflect a still-shaky economy and job market, but they also reflect opportunities for highly-skilled foreign workers to come to the United States that simply didn’t exist a few years ago. Although the H-1B quota has remained 65,000 for the past several years, foreign workers that didn’t secure job offers by April 1st were essentially out of luck. In the realm of the H-1B, timing is everything, and bad timing meant not being able to work in the United States for at least one more year, if not longer. This sputtering job market means that foreign workers lucky enough to find a job in the U.S. can now apply for H-1Bs throughout more of the fiscal year, and don’t have to worry so much about that dreaded day of judgment April 1st. The one caveat in all this: numbers aren’t out yet from the California Service Center, the other USCIS service center that handles H-1B petitions. Assuming that they’re similar to Vermont’s numbers, though, foreign professionals are going to hopefully have another leisurely fiscal year finding employment and securing the right to work in the United States.
I was just reading through the minutes of a meeting between the American Immigration Lawyers Association (AILA) and the Department of Labor’s Wage and Hour Division (WHD), and realized for the first time just what an important force the WHD is for immigrant workers in the United States. The WHD investigates, among other things, violations of the terms of a foreign national’s employment in the U.S. with respect to specific immigration benefits. Anyone that wants to petition for a foreign worker has to either submit a Labor Condition Application (for H-1Bs and some other nonimmigrant categories) or a Labor Certification (for green cards). Labor Certifications and Labor Condition Applications contain an employer’s promises to both the U.S. government and the foreign worker, and violations of any of the terms in those applications are potentially very serious for the petitioning employer. The WHD can step in whenever a violation has occurred, using its investigative and enforcements powers to levy a wide range of sanctions on U.S. employers, including the recovery of back wages owed to foreign workers. According to the minutes I was reading, the WHD recovered $8.3 million in back wages over the course of 189 investigations in 2008, the last year for which data is available.
Some things to keep in mind about using the WHD: there is a 12-month window from the date of occurrence in which to complain about violations of the H-1B program. Also, if employees have fallen out of status because they were “benched” after complaining about wage or other labor violations, the WHD can issue a letter acknowledging that a complaint has been filed, which is usually required for a petition to transfer their H-1B status to another employer.
Employees with bona fide employment abuse complaints should not hesitate to contact the WHD. This is one of those agencies that is on the side of employees, not employers. If you, as an employee, are following the law, but your employer is not, the WHD seems like an effective and under-utilized means of solving your work problems once and for all.
U.S. Secretary of Labor Hilda Solis announced on Monday that the Department of Labor would begin certifying applicants for U-visas, allowing them to remain in the United States legally if they assist with a criminal investigation or prosecution. The law requires that a law enforcement agency or official certify that a potential applicant “has been helpful, is being helpful, or is likely to be helpful in the investigation or prosecution” of criminal activity. When I first read that the DOL was certifying U-visa applicants, my thoughts immediately turned to Labor Certifications and LCAs, and I became very confused. I had to read the DOL’s press release to realize that it actually does have an investigative wing as well – the Wage and Hour Division – and that it does qualify as a “law enforcement agency,” albeit an obviously less-appreciated one. Secretary Solis said that “regardless of immigration status, no one should have to suffer criminal abuse silently.” I commend her decision to become involved in qualifying U-visa cases, and hope that it leads other federal agencies to follow suit.
Senators John Kerry (D-MA) and Richard Lugar (R-IN) introduced a bill today in Congress called the StartUp Visa Act of 2010, aimed at making the U.S. some badly-needed moolah and helping it remain at the forefront of the global economy. I have to confess that I haven’t read the full text of the proposed bill – it is Friday afternoon, after all – but from the blurb I read on AILA’s Infonet, it looks as if qualified immigrant entrepreneurs that have secured at least $250,000 of start-up capital from a U.S. investor will be eligible for a two-year visa. Apparently, over 160 venture capitalists from across the U.S. have endorsed this proposal. I also endorse this proposal – not that it counts for much – but I have my doubts about its vaibility as a non-immigrant visa category. I don’t know whether it’s a sign that I’ve been in the immigration business too long, or whether I’ve just had some horrendous cases over the years, but the first thing that popped into my mind when I read this was the horrible realization that USCIS is going to make an absolute mess of this visa category if it ever becomes law. I can see prospective visa applicants getting letters from venture capital firms confirming that there will be a $250,000 investment, and USCIS denying the case for lack of evidence. I can see regulations being promulgated regarding the sufficiency of the start-up capital, whether the entrepreneur’s business plan is viable, whether everyone involved in the business venture has the proper qualifications, and a myriad or other issues on which to base a denial. There are already ways for foreign entrepreneurs to come to the United States and start businesses; the real problem here is that USCIS has developed a culture of “no,” especially when it comes to small businesses. Any attempt to get more foreign talent and more foreign money into this country is great, and should be welcomed. If Senators Kerry and Lugar really want the U.S. to remain competitive in this globalized world, though, they’ll work on systemically reforming the way that USCIS operates.
Ah ha! I knew it was too good to be true – USCIS is seldom altruistic, and makes user-friendly administrative decisions even less frequently. I’m referring to USCIS’s recent Q&A posting on accepting H-1B petitions without an LCA, where LCA adjudication has been held up by the DOL’s pathetically inefficient iCERT service. USCIS had announced last month that it would begin accepting H-1B petitions without an approved LCA if the LCA had been pending for at least 7 days. The Service even outlined the type of evidence it needed in order to accept an H-1B petition without an LCA, giving attorneys and employers hope that a way around the DOL’s idiotic system had finally arrived.
USCIS, in its infinite wisdom, decided instead to pull a fast one on the immigration community - proving the old adage, once again, that if something is too good to be true, it probably is. An updated Q&A, released on December 8th, states that although petitions with proof of an LCA pending for at least 7 days will still be accepted, petitions that have had an LCA denied will not be accepted without a certified LCA. Say what, USCIS? There are hardly any LCAs that remain pending after 7 days; the only thing that remains pending after 7 days are appeals of denied LCAs, which now, apparently, cannot be submitted.
In one fell swoop, USCIS essentially took attorneys and employers back to the dark days of not being able to file H-1B petitions unless the DOL miraculously approved the LCA the first time around, which doesn’t happen very often. The DOL’s iCERT database, containing the Federal Employer I.D. numbers of American businesses, is full or errors, and more often than not the DOL denies an LCA because of mistakes in its own database. We used to be able to file the H-1B petition without the LCA and at least argue that USCIS should accept it, but now, thanks to the Service’s moronic new policy directive, those days are over as well. The only thing we can do now is beseech the DOL deities to show mercy and adjudicate our LCAs quickly and accurately – or heaven help our clients with denied LCAs and a fast-approaching H-1B deadline.
Unfortunately, I’m being proven right about H-1B numbers not being around very much longer. USCIS announced today that, as of December 8, 2009, the H-1B count stands at 61,500. That’s an increase of 2,600 H-1Bs in 11 days – which means that by the end of 2009, the remaining 3,500 H-1Bs will almost certainly have been used up. I suppose that the immigration community should be happy that H-1B numbers have lasted this long – but the fact that I’m even thinking something like that says a great deal about the sad state of petitioning for professional workers in the United States.
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