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Carl Shusterman's Immigration Update


  1. H-1Bs: Let the Market Decide the Number of Working Visas
    Back in 1982, when I left the INS to enter private practice, the number of H-1 visas was unlimited. All professionals, including registered nurses, were eligible for H-1 visas. Also, there was no maximum duration for H-1s.U.S. employers could petition for H-1 workers all year long, yet the program did not generate the amount of controversy that it does today. It was a market-based system which allowed U.S. employers to fill jobs in a global economy, plain and simple.

    The Immigration Act of 1990 ushered in the present era of government control of "H-1B" temporary visas. For the first time, a numerical cap (65,000) was imposed along with a maximum duration of stay (6 years). Registered nurses were banished from the category.

    All of this has proven to be a nightmare. Every few years since 1990, Congress has had to step in to change the numerical cap (to 115,000, then to 195,000, then back to 65,000), to create exemptions to the cap, establish a "cap-dependent" category and to allow persons to exceed the six-year maximum under certain circumstances. The result is a crazy-quilt system that only a lawyer could love. Employers don't understand the nuances of the law and the many memos interpreting it. Neither do the visa holders. Often, the agency itself misinterprets the law.

    In my opinion, the complexity of the law serves to facilitate abuses by unscrupulous employers. Yet, there are those in Congress who seek to make the law even more complex!

    Before Congress acts, it may be wise to examine what happened this year in an economy mired in recession. Employers submitted fewer than 42,000 regular cap petitions in the first week of availability compared with over 163,000 petitions submitted during the same period last year. This despite the fact that many students working using Optional Practical Training (OPT) who lost out in the "H-1B Lottery" last year were petitioned again this year. Also, new USCIS restrictions on "cap-exempt" petitions forced many employers to submit "cap-subject" petitions this year. See

    The main lesson to be learned is that the market worked. Given the large number of jobs lost in the U.S. economy, employers submitted far less petitions than they did last year. Contrary to what critics of the program maintain, the cost of employing an H-1B worker exceeds that of hiring a U.S. worker given attorneys' fees and government filing fees.

    Further, according to Vivek Wadhwa of Harvard Law School, skilled immigrants have fueled our tech boom. Over half of Silicon Valley tech start-ups and a quarter of those nationwide were founded by immigrants from 1995 to 2005. In 2005 alone, these companies generated $52 billion in revenue and employed 450,000 workers -- a number greater than the number of H-1B workers in the tech industries over the prior 10 years combined.

    Congress should stop trying to micro-manage the program, and return to a simple market-based system. The plain truth is that the overwhelming majority of U.S. employers comply with the law. Those that abuse the law should be stripped of their ability to petition for H-1B workers.

    Alas, I fear that my advice may fall on deaf ears. Therefore, employers, H-1B workers and their attorneys, seeking to navigate the current complex system, can search our "H-1B Page" which contains almost 100 links to information about this most-complicated of all temporary working visas at

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    Updated 12-02-2013 at 06:13 PM by CShusterman

  2. EB-3 Category to Close Down on May 1st
    On April 8, the State Department published the May 2009 Visa Bulletin online. Gone is the much-lamented six-year wait for green cards for professionals and skilled workers who are being sponsored by their employers. Instead, green cards are "unavailable" in this category for the next 5 months. See

    This is the earliest that the category has become unavailable in my 33 years of practicing immigration law. Persons who have played by the rules and have pending applications for adjustment of status now have no idea when, or even if, they will qualify for permanent residence in the U.S. They live in fear of their temporary visas expiring, their children "aging out" and losing their jobs before they can secure green cards.

    U.S. employers are fit to be tied. At considerable expense, they obtained temporary working visas for employees filling important positions in their companies. They unsuccessfully attempted to recruit U.S. workers for job vacancies, and obtained approved PERM applications and immigrant visa petitions.

    Over half of the students graduating from U.S. universities in science and engineering are foreign-born. If it is impossible to obtain green cards in the U.S., these students will find work in Europe, in Canada, or in India and China. The U.S. will no longer be the world leader in science and technology. The national security implications of this are both enormous and frightening.

    Hospitals in rural and inner city locations are particularly hard hit. It is impossible to obtain temporary visas for RNs despite the growing national shortage. Now, the wait for green cards for RNs is impossible to predict. It is folly to think that we can guarantee healthcare coverage to all Americans as long as hundreds of thousands of nursing jobs remain vacant.

    U.S. immigration laws severely restrict the number of the people who can qualify for green cards through their jobs. Now, even this restrictive system has broken down.

    To add insult to injury, the unavailability of immigrant visas in the EB-3 category will not deter the USCIS from issuing RFEs on pending I-485s. Woe be onto you if your employer cannot demonstrate his "ability to pay" you each year since your labor certification was submitted or if your employer's original job posting was done incorrectly. Your application for adjustment of status will be denied, and you will be placed in removal proceedings.

    Immigrants who followed the complex immigration rules will get the following message: Never mind that you paid your taxes and never got so much as a parking ticket, that you were active in your church and that your children were straight A students, that you always maintained your legal status in the U.S.

    For you, the American Dream is over.

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    Updated 12-02-2013 at 06:13 PM by CShusterman

  3. H-1B Filing Season Starts - Unneccessary Problems Plague Employers
    Today, immigration attorneys and employers will submit H-1B petitions to the USCIS, probably in excess of the numerical caps. However, the number of H-1B petitions filed will, no doubt, be reduced by the current recession and by the restrictions imposed by law on employers receiving TARP funds.

    Unfortunately, a number of issues have arisen recently which will unnecessarily increase the number of H-1B petitions filed, and make the continued employment of needed professionals problematic.

    The USCIS has denied cap-exemption to certain institutions recently on the grounds that the word "affiliated" in AC-21 implies that they are owned by the university that they are affiliated with. This is despite the fact that neither the law, the legislative history nor any regulation imposes a co-ownership requirement. Because of this new USCIS policy, a number of employers are filing H-1B petitions under the cap to avoid petition denials later in the year on the grounds that they are not cap-exempt.

    For example, a non-profit hospital in a medically-underserved area obtained the approval of a physician in H-1B status on a cap-exempt basis because the hospital has an affiliation agreement with a university. The physician's H-1B status needs to be renewed in the fall of 2009. Usually, the hospital would wait until the fall and submit an H-1B extension of status for the physician on a cap-exempt basis. However, because of recent USCIS denials of such petitions, the hospital has no choice but to try to obtain the approval of a cap-subject H-1B extension.

    Another new USCIS policy that has some employers worried involves the minimum educational requirements for physical and occupational therapists. The regulations are clear that these standards are established by the state licensing boards. Thousands of H-1Bs and I-140s have been approved for licensed therapists with B.S. degrees. Despite this, the USCIS has recently started to deny H-1Bs and I-140s for such therapists relying on the Labor Department's Occupational Outlook Handbook (OOH). The three government-authorized healthcare credentialing organizations (CGFNS, FCCPT and NBCOT) have all informed the government that they were erroneously relying on the OOH. See these letters on our "Allied Health*Professionals" page at (Occupational Therapists)
    and (Physical Therapists)

    However, employers had to submit and pay filing fees for H-1B petitions for therapists today without any guidance from the USCIS as to whether a state-issued license for a therapist with a B.S. degree in Occupational or Physical Therapy will be sufficient to establish that the therapist meets the minimum educational requirements.

    The failure of the USCIS to follow immigration laws and regulations is having a damaging effect on U.S. employers and patients alike.

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    Updated 12-02-2013 at 06:02 PM by CShusterman

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