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In Part 1 (posted on March 7) of my comments on the new H-4 work permission which will be available shortly for spouses of certain H-1B specialty workers, I discussed the limitations on this policy, something that was initially downplayed in at least a few published comments in the wake of the euphoria that initially greeted the DHS's announcement of the new policy in the February 25 Federal Register.
In essence, the new employment authorization will not be available to all H-4 spouses, but only to those whose H-1B husbands or wives are already well along in the green card process and who come within the relatively limited provisions of Sections 104 or 106 of AC21.
To summarize the new policy, which was discussed in detail in my March 7 post, only H-4 status holders whose spouses are the beneficiaries of approved I-140 petitions under Section 104 or have already been approved for an extension H-1B status beyond the initial six years under Section 106 (as opposed merely to being eligible for the extension according to the language of that section) will be granted work permission (beginning on May 26).
For all other H-4 spouses of H-1B employees, there is no change in the rules. As far as work permission is concerned, they are out of luck (unless they are eligible for H-1B or some other work permission in their own right, as at present).
This raises the question: if granting H-4 spouses work permission is such a wonderful idea, as the DHS argues that it is, and justifiably so - see below- why limit this benefit to only a limited class of H-4 status holders? Let us look at the DHS's own justifications for adopting this restriction, as explained in the above cited 74-page Federal Register notice.
The DHS begins with a general explanation for the new policy, under the heading: Purpose of the Regulatory Action: (page 8 of the 74-page notice)
"The lack of employment authorization for H-4 dependent spouses often gives rise to personal and economic hardships for the families of H-1B nonimmigrants. Such hardships may increase the longer these families remain in the United States. In many cases, H-1B non-immigrants and their families in the United States must wait for many years for employment-based immigrant visas to become available. These waiting periods increase the disincentives for H-1B non-immigrants to pursue LPR status and thus increase the difficulties that U.S. employers have in retaining highly educated and highly skilled non-immigrant workers."
The Federal Register notice continues:
"These difficulties can be particularly acute in cases where an H-1B nonimmigrant's family is experiencing economic strain or other stresses from the H-4 dependent spouse's inability to seek employment in the United States. Retaining highly skilled workers who intend to acquire LRR status is important to U.S. businesses and to the Nation given the contributions of these individuals to U.S. businesses and the U.S. economy. These individuals, for example, contribute to advances in entrepreneurship and research and development, which are highly correlated with overall economic growth and job creation."
On page 16 of the above notice, the DHS adds additional emphasis to the arguments in favor of allowing H-4 dependent spouses to work:
"The comments supporting the proposed rule largely underscored the socioeconomic benefits the rule would have for certain H-1B non-immigrants and their H-4 dependent spouses. For example, several commentators noted that while they knew about the restriction on H-4 employment before coming to the United States, they did not anticipate such a long wait for LPR status or the emotional toll that long-term unemployment would take on them and their families. Other commentators noted that they have not been able to apply for a social security card or a driver's license in certain states because they did not have an Employment Authorization document [EAD]." (Bold added.)
With respect to the last sentence quoted above, the argument about inability to obtain a social security card or driver's license through lack of an EAD would not appear to make any logical sense, because H-1B principals do not receive EAD's but only I-797 petition approval notices from USCIS, and yet there are few, if any instances of their being unable to receive social security cards through lack of an EAD.
The Federal Register notice continues (also on page 16):
"Approximately 200 commentators noted that the current policy of allowing only the H-1B nonimmigrant to work often led to family separation or the decision to immigrate to other countries that authorize employment for dependent spouses."
Given the strong arguments that the DHS presents above for allowing H-4 dependent spouses to work, what is the rationale for restricting this permission to the spouses of H-1B workers who are being sponsored for green cards, and who, even more restrictively, are already well advanced in that process?
Are not H-1B workers who have not yet been sponsored for green cards, or who may never be, also benefiting the US economy with their high levels of skill and education? Do their families not suffer from the same economic pressures, possible family separation and other disincentives to accepting work in the United States as their peers who are being sponsored for permanent residence?
These questions will be explored further in Part 3 of this three-part series.
Roger Algase is a New York lawyer and graduate of Harvard College and Harvard Law School. He has been practicing employment-based and family-based immigration law for more than 30 years.
Roger's practice focuses on H-1B and O-1 work visas, J-1 training visas, and green cards through labor certification (PERM). extraordinary ability (EB-1) and opposite sex or same sex marriage, among other immigration and citizenship cases. He welcomes questions and comments at email@example.com
Updated 03-30-2015 at 10:07 AM by ImmigrationLawBlogs
This is Part 2 of my two-part series about China's Tang Dynasty, which can truly be called a golden age of immigration. At the conclusion of this post, I will also venture a comparison with the welcoming attitudes toward immigrants in China during that far-off time (A.D. 618 - 907). and the somewhat different attitudes toward skilled foreign workers in the United States of America 12 to 15 centuries later, in this year 2015 of the Christian Era.
We are, of course, only a few days away from the April 1 beginning of the annual April H-1B lottery ritual madness, as America once again gets ready to reject an estimated two thirds or more of the educated, highly skilled foreign workers who are expected to have cap subject petitions submitted on their behalf this year. These professionals are asking for nothing more than the opportunity to put their talents and hard work at the service of America's economy and society, and to help our country maintain its competitiveness in the increasingly challenging marketplaces of the world (as well as inside the US).
America's response is to tell the great majority of these well educated and highly qualified professionals to go back to their countries of origin, or not to bother to come here in the first place.
As shown in my first installment of this series (see Immigration Daily, March 16 issue) Tang Dynasty China, and especially its capital city, Chang'an (modern Xi'an). was a global center and the home of almost every ethnic group, religion, fashion, musical, cuisine and sports style known in what is now East and West Asia at that time. People of Turkish and other non-Chinese origin were not merely tolerated strangers, but were accepted at the highest level of society.
According to some sources, there were even (unsubstantiated) rumors that the Tang Poet Li Po (Li Bai), generally regarded as one of the two most famous Chinese poets of all time, (along with another Tang poet, Tu Fu, a/k/a Du Fu), might have had some Turkic ancestry, to give just one possible (but not proven) example of ethnic assimilation in Tang society. There are many others.
More reliably, a well known contemporary Chinese writer, Jin Yong (b. 1924) has been cited as stating that during the Tang Dynasty, at least 23 non-Han Chinese held the post of prime minister.
This does not mean, however, that immigrants during the Tang Dynasty were free from all legal restrictions. The website quoted in my previous post on this topic,
informs us as follows:
"Some of the foreigners came to trade, made a profit, and returned home; others settled permanently in the cities of China [presumably without any requirement of obtaining Form I-551, carrying it around on their person at all times, and risking having it revoked for trivial offenses, as with US green cards more than a millennium in the future]. Within each of these cities, foreigners lived in segregated areas, and from them the city government selected a respected or influential man as their chief."
The above website continues:
"Most foreigners adopted Chinese manners or habits. [Assimilation does not seem to have been as much of a problem in those days as some immigration opponents in present day in America would like the public to believe.] If a foreign [person] committed a crime against his own countrymen, the customary law of his native land would apply; [No paranoia against Sharia law there, it would seem, as many of the foreigners were Arabs according to this same site, unlike the situation in some US states.]if the crime were committed against a man of a different nationality or a Chinese, the Chinese law would prevail."
There was one restrictive proviso, however:
"Intermarriage with Chinese was allowed and many foreigners did marry Chinese women; they were not allowed, however, to take their Chinese wives back to their home countries."
It would be interesting to investigate the reason for this prohibition. Was China of that period afraid of losing population if too many women emigrated? Having no expertise in Chinese history or culture, I will not presume to try to answer this question or to speculate further on the reason for the restriction.
Suffice it to say that 21st century America has no compunctions about sending American citizens of either gender into involuntary exile if they wish to remain together with a non-citizen spouse who may have been unfortunate enough to get caught up in our relentless deportation mill (which a Texas federal judge has recently ordered to keep grinding away, at least as far as the Obama administration appears to be interpreting his decision, correctly or otherwise).
Nor, to get back to the H-1B context, does America circa A.D. 2015 have any hesitation about sending the most skilled foreign professionals back home accompanied by their American university diplomas, if not by American spouses.
If the ancient Chinese prohibition against foreigners leaving the country with their Chinese wives strikes us as irrational more than a thousand years later, how rational would Chinese society of that time have thought a requirement of sending the most skilled foreigners back home with their hard-earned, valuable, Chinese educational certificates in hand?
For that matter, how rational is America's policy of turning away the most skilled and educated foreign workers and sending them home, or barring them form our shores, by the standards of any sane society, ancient or modern?
The above should be enough to show that America has a great deal to learn from Tang Dynasty China as another April 1 rolls around.
As a final note, there is, unfortunately, one other lesson which present day America may be able to learn from Tang Dynasty China. This is that no period of tolerance of or welcome toward immigrants seems to last forever, no matter how enlightened a society may be.
The above website concludes:
"In general, Chinese and foreigners interacted peacefully until the 9th century when Uighur traders started conflicts with Chinese [sic]. The public resentment against foreigners became clear when a law was passed in 779 to compel 1,000 Uighurs resident in Chang'an to wear their own native [costume] and forbade them to marry Chinese or to pass themselves off as Chinese in any way at all. Popular feeling against them mounted until, in 835, all private intercourse with foreigners was prohibited. In 845 all foreign religions were persecuted."
Evidently, the Tang Dynasty's golden age of immigration was at an end. Conflict between Uighurs and ethnic Chinese did, of course, not end at that time, but is still very much a part of Chinese current affairs. But that is beyond the scope of this post.
The moral of this story, however, remains clear. Openness and tolerance toward immigrants cannot be taken for granted in any society, at any time or place, but they have to be courageously fought for and vigorously defended.
America may be in a relatively tolerant time toward immigrants compared to other periods of our history, such as the late 19th and early 20th century exclusion laws and the racially-based immigration quotas of the 1924 immigration law which were not abolished until 1965 - only 50 years ago this year.
But it would be a mistake to become complacent and assume that this tolerance toward people who may look, speak or pray differently from the majority will automatically last forever.
From this perspective, the stubborn, irrational, refusal of Congress to increase the H-1B cap limits is more than just a severe blow to the most skilled and educated immigrants in our society and their US employers; it may be a straw in the wind signifying that there is mounting pressure for America to close its doors against all immigrants - just as Tang China ultimately did.
As if there were any doubt about this, one only has to look at the immigration enforcement-only bills that are now apparently ready to come out of Representative Bob Goodlatte's (R-VA) House Judiciary Committee - including one which would reinstate state racial profiling immigration laws such as Arizona's notorious S.B. 1070, and bring back Sheriff Joe Arpaio's terror raids in Hispanic communities and his infamous desert tents.
21st century America may have more of a lesson about immigration to learn from Tang Dynasty China than most people realize.
Roger Algase is a New York lawyer and a graduate of Harvard College and Harvard Law School. He has been practicing employment-based and family-based immigration law for more than 30 years.
Roger's practice is focused on H-1B and O-1 work visas, J-1 training visas, and green cards through labor certification (PERM), extraordinary ability (EB-1), and opposite sex or same sex marriage, among other immigration and citizenship cases. He welcomes questions and comments at firstname.lastname@example.org
Updated 03-29-2015 at 07:40 PM by ImmigrationLawBlogs
In an excess of inhumanity, total incompetence, or both, a US consulate in Hermosillo, in northern Mexico, has twice denied a visa to a young Mexican man who was scheduled to receive a desperately needed life-saving heart and liver transplant at the Mayo Clinic in Rochester, Minnesota.
The Guardian reports on March 26 as follows:
"US based Consejo de Latinos Unidos, which helps uninsured people receive medical care, stepped in to try to get [20-year old Jose Chua Lopez] to the Mayo Clinic.
The organization's director, Kevin Forbes...said that consular officials processed an application for a tourist visa when they should have told Chua to apply for a humanitarian visa and that they then failed for weeks to respond to queries about his status."
With this utter lack of even minimal humanity or competence on the part of our officials in charge of granting legal visas, even in the most desperate circumstances, is it any surprise that so many Mexicans try to come to the US illegally?
The Guardian also reports that there is no possibility of performing this procedure in Mexico.
For the full story, see:
Updated 03-26-2015 at 04:03 AM by ImmigrationLawBlogs
In Part 1 of this 3-part series, I took a close look at Senate Judiciary Committee Chairman Charles Grassley's (R-Iowa) prepared statement in connection with the March 17 hearings of his committee entitled: "Immigration Reforms Needed to Protect Skilled American Workers" to see if his criticisms of the H-1B program met any reasonable test of consistency, logic or common sense, and whether his claimed interest in "reforming" this program to protect American workers was consistent with his pro-off-shoring, anti-minimum wage and anti-union voting record.
On the basis of that analysis, as I mentioned in my post, there does not appear to be any record of support for the rights of American workers by Senator Grassley outside of the context of trying to bar well educated, highly skilled Indian, Chinese (who make up a large part of the H-1B visa population) and other foreign workers from America's shores, or to send those who are already here back to their own or some other countries where they can use their talents to compete against America.
Nor is Senator Grassley's opposition to visas for skilled foreign workers limited to H-1B, as shown by his following comments about the L-1 intra-company transferee visa:
"Unlike the H-1B program, there is no cap on the number of L-1 visas that may be issued each year and there is no requirement to pay L-1 workers the locally prevailing wage or eve the actual wage being paid to similarly qualified employees.
The problems with the L-1 visa are not as apparent, especially since the USCIS quashed an internal report that highlighted fraud and abuse. The agency seemingly didn't want another black eye as they had [sic] with the H-1B program."
The Senator continues:
"Nevertheless, there are problems. In August 2013 the DHS Office of the Inspector General , at my request, examined the potential for fraud and abuse in the L-1 program, in particular the adjudication of "specialized knowledge" petitions and petitions being opened for "new offices" by L-1[A] transferees."
With regard to specialized knowledge, the Senator warns that a "liberal definition" of this term could, in theory, result in a "limitless" number of petitions being approved. Once again, Senator Grassley is raising the specter of immeasurable hordes of immigrants inundating the United States - the classic fear-mongering ploy of the anti-immigrant movement, especially in conservative, mainly white states and congressional districts.
Yet, Grassley says earlier in the same statement that in fiscal year 2013, the total number of L-1 petitions approved amounted to exactly 11,944. Whether this amounts to a takeover of the workforce by unlimited hordes of foreign workers in a nation of 300 million people is open to serious question.
One might add that, as anyone who has ever filed an L-1B specialized knowledge petition with the USCIS California Service Center can attest, a "liberal definition" of "specialized knowledge" is, at least at present, far from the reality. Moreover, this deals with the question of what levels of legal skilled immigration are appropriate for America. It has nothing to to with Grassley's totally unsubstantiated claim of "fraud and abuse" in the L-1 program.
Turning to L-1A new office petitions, Grassley quotes the OIG as saying that they are "inherently susceptible to abuse because much of the information in the initial petition is forward-looking and speculative". Of course, the very nature of a new office is that its future activities can only be estimated and projected. For this reason, this type of visa is limited to one year, though Senator Grassley does not mention this.
It is not the concept of a new office that is speculative. It is Grassley's accusation, without providing any supporting evidence, that this visa is subject to fraud and abuse that is speculative.
To be fair, Grassley also cites an instance in which a company by the name of Electronics for Imaging allegedly paid a group of Indian L-1 workers only $1.12 per hour for an 120-hour week! Grassley claims that this did not violate the terms of the L-1 visa (though it would seem highly unlikely that this petition could have been approved if USCIS had known about this in advance), but he is forced to acknowledge that the US Department of Labor did have a tool for dealing with this abuse, namely the Fair Labor Standards Act.
One might also ask the Senator whether this incident might make him wish to rethink his opposition to raising the federal minimum wage.
L-1 is not Senator Grassley's only other target besides H-1B. After taking a shot at B-1 in lieu of H-1B, he zeros in on the F-1 optional practical training program, which he associates with "potential fraud" as well as (of course) "threat to national security", without giving any examples or specifics. (Yes, we know that some of the 9/11 hijackers nearly 14 years ago had valid student visas. I do not recall that any of them had OPT status).
There is only one area in which the Senator appears to have a valid point regarding F-1 OPT. He refers to an IBM help wanted ad making OPT status specifically, not just legal work permission in general, a requirement for the offered job. Presumably this was to take advantage of the fact that OPT does not have a prevailing wage or even a requirement that the F-1 worker be paid at all.
According to the Senator, this ad, which was admittedly a form of blatant discrimination against US workers, resulted in $44,400 in civil penalties against IBM in a settlement with the Department of Justice. $44 million might have been more appropriate.
Still, one horrible example alone is no reason scuttle the entire OPT program, which would mean sending F-1 students home as soon as they graduate with their hard-earned, expensive degrees from American universities which have invested so much money, resources and efforts in educating them.
What emerges from Senator Grassley's statement is that he certainly does not like foreign workers. His suggested remedies to what he sees as the flaws in the employment based visa system, and the inadequate Democratic response to his efforts to gut this system, will be discussed in Part 3 of this series.
Updated 03-22-2015 at 12:11 PM by ImmigrationLawBlogs
The following post has been revised and updated as of March 22 at 10:20 am
On March 17, Senate Judiciary Committee Chairman Charles Grassley (R-Iowa) launched his expected attack on the H-1B program in a prepared statement for his hearings on employment-based immigration. But his attack went beyond H-1B, and included an assault against L-1 visas, and even against the Optional Practical Training program for F-1 students. It seems that Senator Grassley has never run across a foreign skilled worker whom he doesn't regard as a danger to America.
Senator Grassley's committee hearing is entitled:
"Immigration Reforms Needed to Protect Skilled American Workers"
The title itself is instructive, because it shows a lack of balance and an interest in dealing with only one side of the H-1B equation, namely the protectionist side. Nothing in the title mentions anything about the the job creation, innovation, global competitiveness and other benefits to America's economy and businesses in being able to attract skilled workers from every part of the world.
Then, in the body of his statement, Grassley launches into his description of the H-1B program, as he perceives it:
"Over the years, the [H-1B] program has become a government-assisted way for employers to bring in cheaper foreign labor, and it now appears that these foreign workers take over - rather than complement - the US workforce."
This inflammatory statement sets the theme for all of Grassley's remarks to follow - H-1B, in his view, is not a program for skilled foreign workers to devote their education and talents to enhancing America's economy. but is just a vehicle for cheap foreign workers to take over the US labor market and throw Americans out of work.
Even though Grassley does not use this term, his statement that "cheap" foreign workers "take over" the US workforce has the same overtones as those of the politicians who rail against the "invasion" of America by hordes of "illegal aliens". Even though barely into his remarks, Grassley has clearly left the universe of objective discourse about a useful and important visa program which might or might not benefit from some improvements here and there, and is already operating in a different universe of fear and prejudice against foreign workers in general.
Having "established" that H-1B workers are undesirable because they allegedly steal American jobs, Grassley goes on to allege that there are too many of these foreign workers.
"Even though the H-1B cap is 65,000 [per year], the actual number of foreign workers coming in through the program is much more because of numerous exemptions. For example, in Fiscal Year 2014, the agency in charge [USCIS] approved 315,857 H-1B petitions."
But the above is just by way of introduction to Grassley's real attack on the H-1B program:
"The program is highly susceptible to fraud and abuse."
In support of this, he cites a study by the Fraud Detection and National Security Unit within USCIS which (according to Grassley) shows a 20% violation rate in a random sample of H-1B petitions. Of course this would be a serious problem, if true, requiring some countermeasures.
But this would still mean that 80 per cent of H-1B petitions are in total compliance with the law, even assuming Grassley's claim is correct. In other words, again according to his figures, it would mean that, in 2014, there were 252,685 approved H-1B petitions which even Senator Grassley could find no irregularity with.
Should these quarter million admittedly genuine petitions (according to Grassley himself) have been denied and the skilled foreign worker beneficiaries have been required to leave the US because of the other alleged 20 per cent rotten apples in the H-1B barrel?
Unfortunately, there is no such thing as an immigration program, or any US government program, that is entirely free from fraud and abuse. But is the appropriate response to cancel the entire program instead of taking reasonable steps to reduce or eliminate fraud while allowing people with genuine claims to benefit as intended?
Senator Grassley then turns to his next main theme - alleged abuse of US workers in the H-1B program. Fortunately for him, there appears to be a convenient bete noir for him to trot out as an exhibit - namely Southern California Edison, which, again according to Senator Grassley, allegedly laid off 500 American workers and replaced them with foreign workers.
The Senator does not claim that there was any fraud or wrongdoing in this regard, even though he alleges that in 2013, one of the two IT contract worker companies involved had paid $34 million in a civil settlement in a completely unrelated matter.
Senator Grassley does claim that the 500 American workers lost their jobs (and were forced to train their replacements) to "cheaper workers who didn't possess the skills that they had". But instead of providing any factual support for this claim (which, even if true, would not have been against the law or involved any fraud or wrongdoing), he quickly switches the subject in a remarkable slight of hand:
"Worse still, most of the 500 jobs that had been held by by Americans at Southern California Edison will eventually just move overseas. According to the Los Angeles Times, Edison admits that about 70 % of the work will shift overseas permanently."
But what does H-1B have to do with off-shoring? H-1B is a program that relates to jobs in the United States. It is the antithesis of off-shoring. Grassley implies, without presenting any evidence for this, that H-1B is, somehow, the first step along a slippery slope that ultimately leads to off-shoring because both involve hiring foreign workers.
But it is much more logical and reasonable to regard H-1B as the ultimate defense against off-shoring. If American companies are allowed to hire the best workers they can find for a particular position, regardless of country of origin, there is less incentive to move the job out of the US entirely. This way, the H-1B worker's skills, purchasing power, and tax payments go to benefit the US economy directly, not that of some foreign country.
One of the biggest incentives imaginable for off-shoring by US companies would b to cancel for further restrict the H-1B program.
Even though my respected colleague and distinguished legal scholar Nolan Rappaport (see Part 2 of this series) warns me against engaging in ad hominem arguments in a number of personal communications, and with good reason, I do not think it is unfair or beside the point to look at Senator Grassley's record to see if he has ever voted against any foreign trade agreements which actually promote off-shoring, or whether his alleged interest in protecting the wage levels of American workers has ever been translated into support for increasing the minimum wage.
According the site:
Senator Grassley has consistently voted for foreign trade agreements, which normally involve off-shoring American jobs, and has opposed raising the minimum wage here in the US. The AFL-CIO has given him a zero rating on supporting labor union rights.
It does not appear that Senator Grassley's claimed support for protecting American jobs and wages is evident in any other context except that of trying to keep skilled foreign workers out of the United States or forcing them to return to their own countries.
I also want to thank Nolan for providing me with the link to Senator Grassley's statement:
Of course, Nolan's sharing this material is for informational purposes only and does not imply either agreement or disagreement with the content.
In Part 2 of this 3-part series I will show that Senator Grassley's attacks against skilled worker immigration are not limited to the anti-immigrant right's (and admittedly, some of the left's too) favorite whipping boy - H-1B, but extend to other programs as well. I will also examine (in Part 3) whether there has already been a major, entirely reasonable, legislative attempt to address Senator Grassley's concerns by enacting reforms which could increase confidence in the effectiveness of H-1B - an attempt which Senator Grassley voted against.
Finally, also in Part 3, I will suggest a possible H-1B reform which could meet Senator Grassley's concerns about this program more than half way, if he is genuinely interested in improving the program, rather than simply eliminating most or all immigration by skilled Indian, Chinese and other foreign workers in order to exploit anti-immigrant nativist feeling among "conservative" white voters.
Roger Algase is a New York lawyer and graduate of Harvard College and Harvard Law School. He has been practicing immigration law for more than 30 years, focusing on H-1B and other employment-based immigration cases. He welcomes questions at email@example.com
Updated 03-22-2015 at 01:02 PM by ImmigrationLawBlogs