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Carl Shusterman's Immigration Update

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  1. H-1B Cap: Congress Needs to Do Its Job

    http://shusterman.com/images/H-1B-visa.jpg During the first week of April, the USCIS received 233,000 H-1B petitions from companies in the US seeking to employ foreign-born professional workers. This exceeds the number of H-1B petitions received last year by over 60,000. Under current law, only 85,000 of these petitions can be approved, about 36%.

    Most of the other 64% of these petitions will be returned to disappointed employers. Computer professionals, physicians, teachers, researchers and many others will have to find jobs abroad. If they are in the US, most will be forced to return to their home countries.

    Congress has faced this problem in the past and resolved it by increasing the H-1B quota. In January 2013, a bipartisan group of Senators introduced the “I-Squared” bill which would do just that.

    However, Congress is stalemated on this and many other immigration issues.

    The Chairmen of the Senate Judiciary Committee and the Immigration Subcommittee oppose this legislation and are focused on tightening loopholes in the H-1B program. Many of their concerns are valid. When a few companies use H-1B workers to displace US workers, I think we can all agree that this is wrong, and that the law needs to be changed to prevent this from happening.

    But why can’t the H-1B cap be raised and loopholes in the law be closed at the same time? This would be a reasonable compromise and Congress is supposed to adapt at the art of compromise, especially when the H-1B program is clearly in the our national interest.

    Smart, well-educated foreign-born scientists worked for the Manhattan Project and helped save many thousands of American lives in World War II. More recently, foreign-born professionals were responsible for developing the anti-HIV cocktail and founding major US employers like Google, Yahoo, Intel and providing jobs for hundreds of thousands of American workers.

    It’s time for Congress to get its house in order and pass H-1B legislation.


    H-1B Lottery

    Outside the world of Congress, on April 13, the USCIS selected the 85,000 lucky H-1B lottery winners. However, it will be some time before they are notified.

    The USCIS will begin to adjudicate H-1B cap-subject cases where the employers paid an extra fee for premium processing starting on April 27. Then, by May 12, these employers will receive approvals, denials or requests for additional evidence on these cases.

    After this, USCIS will begin to adjudicate non-premium processing H-1B petitions. This process will probably continue until August.

    Most H-1B professionals for whom petitions are approved by the USCIS will be able to start work on October 1, 2015 although students with OPT will be able to continue their employment throughout the summer if H-1B petitions are approved on their behalf.

    Employers can expect that by sometime in June, they will receive back their H-1B petitions as well as refunds of filing fees for petitions which were not selected in the lottery.

    Updated 04-17-2015 at 02:00 PM by CShusterman

  2. H-1B Lottery Odds are Less than 50% Apply for an EB Green Card Now!

    In 2014, when over 172,000 petitions were filed for 85,000 visas, immigration lawyers had the following advice for the H-1B lottery losers:




    1. Look for a cap-exempt H-1B employer;
    2. Get a TN or an E-3 visa if you are eligible;
    3. Extend your OPT if you are a STEM graduate;
    4. Go to graduate school on an F-1 visa; or
    5. Return to your country, and try again next year.


    http://shusterman.com/images/H-1B-visa.jpg
    This year, there will probably be over H-1B 200,000 petitions filed for 85,000 visas, so the odds of being selected for the H-1B lottery will be far less than they were last year.


    This year, there is a better alternative to waiting for the H-1B lottery results: Have your employer sponsor you for a green card now.


    Last year, the wait in the EB-3 professional category was 18 months. This year, the EB-3 wait has been decreasing every month. Consider the first 3 months of 2015: January (19 months), February (13 months) and March (9 months). Odds are the EB-3 waiting times will continue to shrink, perhaps to 6 months or less.


    This is great news for both employers and employees getting ready for the H-1B lottery in April. After all, even if one wins the H-1B lottery, he cannot get H-1B status for at least 6 months, until October 1, 2015. So why not start your application for a green card now? It is not necessary to wait until April to apply for a green card.


    Let's examine the following categories of potential immigrants:


    1. Students who will Graduate this June


    If you are due to graduate from a US university in June, you will be granted a 12-month OPT work permit (EAD), perhaps with the possibility of a 17-month extension if your degree is in a STEM (Science, Technology, Engineering and Mathematics) field.


    If you employer immediate files a PERM application of your behalf, it will probably be approved before the end of 2015 and you can file forms I-140 and I-485 simultaneous. 90 days later, you will qualify for another EAD, and you will get your green card a few months later.



    2. Registered Nurses and Physical Therapists


    Most RNs are ineligible for H-1B visas, so it may not make sense to apply. However, both RNs and PTs are Schedule A shortage occupations, meaning that their employers do not have to file PERM applications for them. Instead, they can simply file I-140s for them, and when their priority dates are reached a few months later, they can submit I-485 packets and received an EAD 90 days later. A few months after that, they will receive green cards.



    3. Other Professionals

    If you are not eligible for OPT and are not an RN or a PT, there is no reason to worry. If you are present in the US on another type of working visa (E-1, E-2, H-1B, H-4, J-1, J-2, L-1, L-2, O, P, R, etc.) your employer can sponsor you for a green card, and you will be probably get an EAD within 12 months and a green card shortly thereafter.

    If you outside the US, you will have to get your green card abroad, but do not let that stop you. If your employer in the US is willing to sponsor you for a green card, you will probably enter the US as a permanent resident within 1 to 2 years.


    Unfortunately, Congress has yet to abolish the per-country quotas for EB visas. Until they do, applying for a green card will take many years for persons born in India and China with needed job skills.



    4. Section 245(k)


    What if so many people who lose the H-1B lottery all apply for green cards now that the waiting times start to retrogress?


    If you are in the US, remember that section 245(k) of the law permits you to adjust your status under an employment-based category as long as you have not been out of status for 180 days or more since you last admission to the US. In other words, you have 6 months of wiggle room.


    So, if you lose the H-1B lottery, don't jump off a bridge. Have your employer sponsor you for a green card, now!

    Updated 02-17-2015 at 04:06 PM by CShusterman

  3. Indian IT Company Agrees to Pay $34 Million Settlement

    http://assets.bizjournals.com/dayton/news/scales%20of%20justice*304.jpg?v=1
    Various companies have paid one million dollars or more to the government in order to settle cases involving immigration violations. However, the $34 million settlement that an Indian IT company recently agreed to pay is the largest yet.

    What did the company do to bring this on itself?

    The U.S. Attorneys’ Office in the East District of Texas accuses Infosys, a multi-billion dollar company based in India, of misusing B-1 business visitor visas to place foreign-born employees in professional jobs in the United States.

    USCIS.gov states that persons on B-1 visas are permitted to come to the U.S. to engage in any of the following activities:

    • Consulting with business associates
    • Traveling for a scientific, educational, professional or business convention, or a conference on specific dates
    • Settling an estate
    • Negotiating a contract
    • Participating in short-term training
    • Transiting through the United States
    • Certain air crewmen may enter the U.S. as deadhead crew with a B-1 visa


    However, in order to work as a computer programmer or a systems analyst in the U.S., a person must usually possess an H-1B visa. Most H-1B employers are subject to a numerical cap which, in practice, allows them to sponsor professional employees only during the first week of April each year. Also, applying for an H-1B worker involves an expenditure of several thousand dollars in attorneys’ fees and government filing fees.

    Infosys employs over 160,000 workers in more than 30 countries. Approximately 15,000 of these workers are employed in the U.S. 10,800 have H-1B visas and 1,600 have L-1B specialized knowledge visas. According to a confidential source, the number using B-1 visas is about 1,000. The company claims that it uses B-1 visas only for “legitimate business purposes”.

    In the settlement agreement, the government and Infosys essentially agree to disagree. The government states that the company provided their B-1 workers with a memorandum which instructed them “to deceive U.S. Consular Officials, including specific instructions to avoid certain terminology, to secure entry of the visa holder in the United States." Infosys, despite agreeing to pay the government $34 million, "denies and disputes any claims of systemic visa fraud, misuse of visas for competitive advantage or immigration abuse. Those claims are untrue and are assertions that remain unproven."

    The matter began as a whistleblower case brought by a disgruntled employee. A civil lawsuit by the employee was dismissed. However, in 2011, the B-1 issue raised by the employee led the Department of Justice and the DHS to audit Infosys’ I-9 forms.

    This settlement does not subject Infosys to any civil or criminal judgment. It allows the company to continue to supply IT professionals to U.S. firms and to be eligible for federal contracts.

    Although $34 million sounds like a lot of money to you and me, given that Infosys’ market capitalization exceeds $30 billion, the settlement amount is simply “chump change” for the company. Indeed, news of the settlement had little effect on the company’s stock price. And making the payment certainly beats spending time in Federal Prison.

    However, this is should be a cautionary tale for any employer thinking of toying with U.S. immigration laws, especially those who don’t have a rainy day fund of several millions of dollars to tap. U.S. Attorney John Bales made the point succinctly: “We want other companies like Infosys to be on notice that we will be looking.”

    Also, the settlement may aid lawmakers in the House who are trying to limit the use of H-1B and L-1B visas by IT consulting firms in rounding up the necessary votes to do so. The Senate bill (S.744) already contains such a provision.

    Employers beware!

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    Updated 12-02-2013 at 01:08 PM by CShusterman

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