Carl Shusterman's Immigration Update

H-1B Advice for Students and Their Employers

USCIS statistics reveal that only 1,000 H-1B "cap-subject" petitions were submitted each week during the second, third and fourth weeks of April.  See

 

http://shusterman.com/toc-h1b.html#1

 

At this rate, there will be H-1Bs available until sometime in September.  However, I do not believe that this will be the case.  Why not?

 

Because, there are hundreds of thousands of F-1 students in the U.S.  Many of these students will graduate from U.S. universities this June, and seek to work in the U.S. 

 

Regarding employment in the U.S., these students should consider the following:

 

1. They may apply for Optional Practical Training (OPT).  This is a fancy term for a one-year work permit.  Under certain circumstances, the term of OPT may be extended for an additional 17-months.  See

 

http://shusterman.com/toc-student.html#3

 

2. If the student's job offer requires a university degree of the type that he/she possesses and if the employer pays them at the prevailing wage, the employer can petition them for H-1B status as soon as the student obtains the required degree.  Savvy employers will hire the student initially on OPT and ask the USCIS to change the student's status to H-1B beginning on October 1, 2009.

 

Why should students seek H-1B status in 2009 if their OPT work permits are valid until 2010?

 

The principal reason is that this year there are almost 20,000 H-1B slots that are up for grabs.  Last year, employers submitted so many H-1B petitions that an individual's chance of obtaining H-1B status was only about 50%.  The same thing could happen in 2010 leaving many students high and dry.

 

I predict that the H-1B petition submissions will rise significantly in June.  Therefore, F-1 students who wish to work in the U.S. need to plan ahead. 

 

When is a good time for their future employers to seek the approval of labor condition applications and prepare H-1B petitions for submission to the USCIS? 

 

A good time would be now.   

Physicians To Benefit From H-1B Slowdown

Do you have the mistaken assumption that H-1B visas are strictly the province of computer professionals? In reality, almost half of H-1B visas are utilized by health care and education professionals.

This year's minimal H-1B usage is a boon to physicians finishing their medical residencies and fellowships. Why? Because, unlike last year when the H-1B cap was reached in the first week of the program, this year only 42,000 H-1B petitions were submitted toward the 65,000 cap. What's more, employers submitted a mere 1,000 petitions in the second week and another 1,000 during the third week. At this rate, the 65,000 cap won't be reached until sometime in September.

So, how does this help foreign-born physicians?

A little historical perspective is helpful. Prior to 1991, the only temporary visa category available to physicians who wanted to pursue medical residencies and fellowships in the U.S. was the J-1 exchange visitor visa. That year, Congress passed the Miscellaneous and Technical Immigration and Naturalization Amendments which, for the first time, permitted physicians who had successfully completed all three parts of the United States Medical Licensing Examination (USMLE) to obtain H-1B visas to pursue their residencies and fellowships.

In general, most physicians prefer to do their training on H-1B rather than J-1 visas since the latter category comes at a steep price. J residents and fellows are compelled to return to their home countries for a minimum of two years before they can return to the U.S. on H-1B visas or as permanent residents. Alternately, they can obtain a "waiver" of this requirement, usually by being sponsored by a government agency and practicing for three years in a medically-underserved area.

H-1B residents and fellows have no such requirement. However, most residents and fellows complete their training for H-1B "cap-exempt" employers, usually universities or hospitals which are affiliated with universities. This subjects them to another requirement.

Although these physicians are not subject to the home residency requirement, they are restricted in the type of employers that they can work for after they complete their training. This is because their training usually ends on June 30th. Since "cap-subject" H-1Bs were not available beyond the first week of April for the past couple of years, these physicians have been restricted working at "cap-exempt" jobs. That is, they must practice medicine at a university, at an institution which is related or affiliated with a university, at a nonprofit research institute or at a government research institute. Such jobs are hard to come by.

However, this year is different. Since it is all but certain that the H-1B cap will not be reached by June 30, H-1B medical residents and fellows will be able to transition from "cap-exempt" training programs to "cap-subject" jobs which begin on October 1st.

A word to the wise. Physicians who accept jobs in affluent areas can qualify for H-1B status, but it is doubtful that they will qualify for permanent residency through employer sponsorship. Therefore, savvy physicians will look for jobs in areas where the number of physicians are few and where American physicians are reluctant to practice, mainly in inner city and remote rural areas. This way, they will be able to qualify for permanent residence either through PERM or National Interest Waivers.

For additional information about temporary visas and permanent residence for physicians, job opportunities and "how to" immigration videos, see our "Physicians" web page at

http://shusterman.com/toc-phys.html

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

 

          http://shusterman.com/toc-h1b.html#1

 

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

 

http://shusterman.com/toc-h1b.html

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

http://shusterman.com/vb.html

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 applicaton 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.