ILW.COM - the immigration portal Immigration Daily

Home Page


Immigration Daily

Archives

Processing times

Immigration forms

Discussion board

Resources

Blogs

Twitter feed

Immigrant Nation

Attorney2Attorney

CLE Workshops

Immigration books

Advertise on ILW

VIP Network

EB-5

移民日报

About ILW.COM

Connect to us

Make us Homepage

Questions/Comments


SUBSCRIBE

Immigration Daily


Chinese Immig. Daily




The leading
immigration law
publisher - over
50000 pages of
free information!
Copyright
1995-
ILW.COM,
American
Immigration LLC.

View RSS Feed

Greg Siskind on Immigration Law and Policy

Grassley Removes Hold on 3012

Rate this Entry

Many readers already know from the comments that Senator Grassley has removed his hold on HR 3012, the bill that would remove per country quotas in family and employment-based green card cases. I've stated my support for this bill simply because I don't think it is good policy to disciminate against qualified applicants based on their nationality.


I've also noted that I think the deal struck to get Grassley's support is deeply problematic. In short, the Grassley amendment to 3012 allows the Labor Department to change the way it investigates and audits H-1B employers. Under current law, the Labor Department approves Labor Condition Applications that are correct on their face rather than first investigating the underlying facts. That does not stop the Labor Department from investigating afterwards, though it is a complaint driven process so it will normally not investigate unless someone tells the agency that misprepresentations and violations are happening.


The Grassley language would allow the Labor Department to hold up the approval of an LCA while it audits/investigates in cases where the employer has more than 100 employees with more than 15% working on an H-1B (typically, staffing companies, but sometimes other types of employers). And it could do the same if the DOL determines that there are "clear indicators of fraud or misrepresentation of material fact, or is obviously inaccurate." If the DOL chooses to audit, an employer has no recourse to go to a judge to review the DOL decision to audit (such as if the employer does not meet the size/H-1B dependency threshhold).


The objections of many to the new DOL authority are not about whether the DOL should be able to investigate fraud. I don't think any reasonable people would say that oversight is bad. But there are problems that I can envision happening. First, if the DOL is just plain wrong and the company is completely innocent, they are effectively still going to be punished. You need an approved LCA in order to file the H-1B petition and claim a number under the H-1B cap. If the LCA is held up due to an audit or investigation and the employer is cleared of any wrongdoing, the H-1B cap is still likely to get hit and the worker won't be able to join the company.


Another problem is how you define "fraud". Now there's how you and I think about fraud and what it means. And then the government's view. You and I think fraud means the employer is knowingly trying to mislead the government to procure a benefit. But then there is what we've seen in practice - a presumption that small employers are likely fraudsters. Don't believe me. Here's the link to the document USCIS tried to keep secret that was leaked and says exactly that.


And the one way to prevent DOL from abusing this new authority to effectively shut an employer out of using the H-1B process even without proving anything - access to the courts - is removed.


I've drawn the fire of many because I have stated that I can't support HR 3012 with the Grassley language. But I also think the Grassley language can be tweaked to accomplish the goal of making it easier for the Labor Department to go after fraud without punishing innocent employers. First, you can keep the current process of approving facially correct LCAs but have the Labor Department investigate AFTER the LCA is approved. That way, employers could still proceed with their H-1B filings and if the DOL finds fraud, it can still revoke the H-1Bs, impose fines, debar the employer, etc. And you don't need to make the process complaint-driven, thus allowing the DOL to investigate based on the same factors as in the Grassley language.


Second, we should add language to the Immigration and Nationality Act prohibiting federal agencies from considering being a small business a fraud indicator. Employers would still need to demonstrate that they can meet the H-1B requirements, but merely being small won't be enough to trigger a fraud investigation.


I wouldn't mind leaving the judicial review language in place if the audit process happens post-LCA approval instead of pre-LCA approval. That's because innocent employers would not suffer the same significant level of harm merely because they're selected for investigration.


And if we're making changes to the bill, I'd also suggest offering something to the many people who are worried that the bill will severely affect them if there's a substantial roll back in worldwide priority dates when the bill takes effect. There is a relatively fast phase in period for the bill that can be slowed down so that those currently in line are not hurt as much. I think such a change would smooth over a lot of the ruffled feathers that are evident just from looking at the discussions in the comments section of this blog.


My bet is that Senator Grassley would not see these changes as a major concession since it still gives the Labor Department significant new authority to investigate fraud. Unless, of course, his real goal is to just make the H-1B program a lot harder to use regardless of whether the employer is following the rules.

Submit "Grassley Removes Hold on 3012" to Facebook Submit "Grassley Removes Hold on 3012" to Twitter Submit "Grassley Removes Hold on 3012" to Google Submit "Grassley Removes Hold on 3012" to StumbleUpon Submit "Grassley Removes Hold on 3012" to Reddit Submit "Grassley Removes Hold on 3012" to Digg Submit "Grassley Removes Hold on 3012" to del.icio.us

Tags: None Add / Edit Tags

Comments

Page 1 of 8 123 ... LastLast
  1. Sa's Avatar
    "And if we're making changes to the bill, I'd also suggest offering something to the many people who are worried that the bill will severely affect them if there's a substantial roll back in worldwide priority dates when the bill takes effect. There is a relatively fast phase in period for the bill that can be slowed down so that those currently in line are not hurt as much. I think such a change would smooth over a lot of the ruffled feathers that are evident just from looking at the discussions in the comments section of this blog."

    ROWers in this blog want all the marbles . This bill not increase the wait for ROWERS only by few months.
  2. Paul Wilson's Avatar
    Greg,

    What do you think about this proposal involving improving the transition period and making the bill not retroactive to Oct 2011?

    http://www.petition2congress.com/7147/change-hr-3012-transition-periods/

  3. Greg's Avatar
    Paul - I'm not sure if I support the proposed new transition language because I would like to first get an analysis from DOS comparing how priority dates will move if the current 3012 language is used versus other formulae. But I think the idea of examining the transition language is warranted.
  4. SAM's Avatar
    Greg,

    What will be your take status on this bill? Looks like it will be passed in current form? Will there be any other hurdles that will stop the bill?
  5. Greg's Avatar
    I'm guessing the bill will have problems in the House (and perhaps even in the Senate still) unless more palatable H-1B language is included. But, as my post noted, there are changes that can be made that will retain the spirit of what Grassley is proposing without being an invitation for overreach by the DOL.
  6. Alex's Avatar
    Mr. Siskind,

    Does anyone actually consult AILA (or you in particular) when this bill has been written? You mentioned in one of your responses that you need to see DOS analysis to make an opinion about the percentage allocation. Would you happen to know if the Senators and legislators have such analysis in their disposal when making such important decisions and the possible consequences if this bill is passed?
    One more question: Do you know how the process will continue? Will there be any discussion, additional negotiations, additions of amendments, and of course how would the opinions of all sides be heard?
    Thank you.
  7. Ken's Avatar
    Greg,

    It looks like you have mainly two concerns on Grassely amendments.

    1) Holding LCA hostage until proven not guilty (presumption of guilty).

    2) Not allowing judicial review.

    My question is why AILA not part of the negotiations with Grassley?
    Why no one is objecting this deal including the tech companies who basically gets hit with the amendments?
  8. Greg's Avatar
    To be honest, I think the Grassley language caught a lot of people by surprise and it has not been widely vetted. I think there's been a scramble over the last few weeks to educate people on what the language actually means and what some of the unintended consequences are.
  9. jxv's Avatar
    Mr. Siskind,

    You seem to have quite a bit of experience in the legislative advocacy arena and in the past you have been in AILA's board of Governors.

    I am a member of America Benefits (americabenefits.org). We are a very young organization of employment-based immigrants that sprung up as many of our members were shut out of Immigration Voice for voicing their discontent about HR 3012.

    We understand the need for a reasonable compromise regarding per-country caps. However, the current ransition period is far from reasonable. Many of our members (including myself) are in H1B visas an realize that Gressley-s amendment is no make-up, it is a do-over.

    How can we engage with interested parties to help modify the bill?
  10. Greg's Avatar
    Hi jxv - I looked at your site and think your organization's ideas have merit. I agree in principle with the idea that green card numbers should be increased at the same time the per country quotas are phased out, but also know that there's some serious opposition in the House (on the GOP side) to this. But using lottery numbers for five years as you suggest would probably be a way to accomplish this. As for strategy, send me an email to gsiskind@visalaw.com and I can talk to you off line.
  11. Alex's Avatar
    I concur with jxv. Please share with us if there is any possibility to discuss with you and the other interested parties a resolution which will provide more flexibility and not jeopardize H1-B and the future immigration applicants.

    How do you practically see the amendment/bill getting vetted and modified to become palpable?
  12. Sa's Avatar
    Who runs the organization americabenefits.org ? When are you having a lobbying day on the Capitol hill like IV did?
  13. Sam's Avatar
    I read Americabenefits.org. It is a good effort. Somehow if you are able to prevent Hr 3012 this year next year you can try to be involved in negotiation. Still it is good idea if you are able to make congress to hear your concerns. My best wishes for your effort.
  14. Ken's Avatar
    I looked at americabenefits.org, it is a good effort, hope your efforts may stop this bad bill before it becomes law.
    While I agree there shouldn't be any discrimination based on place of birth when it comes to the employment based immigration, at the same time there should be a reasonable phase out period before the actual FIFO takes place. 85-15 is laughable and it will make the unfair system more unfair.

  15. WorldWideEB's Avatar
    I agree with Mr. Siskind, tweak the language to avoid gutting the H-1 system, and soften the blow during the transition to make sure the worldwide category gets at least some minimum until the oversubscribed countries catch up. 50-50 split sounds fair to me. This way immigrants in non-oversubscribed countries won't face the sudden shock of an extra 5 to 6 years of waiting as could happen with the current transition. Using the DV visas for a number of years to clear the EB backlog would also be a great idea.

    Mr. Siskind, please do what you can to help bring these necessary changes to fruition.
  16. Paul Wilson's Avatar
    Greg,

    I'm not sure I understand, but you're saying you wouldn't support a change to the transition language without any analysis, but yet you support the existing bill with its transition language without any analysis? If no one has accurate data on inventories and visa demand, then how was it determined that 15%, 10%, 10% are appropriate percentages for the transition? Especially if the bill is introduced retroactively (from Oct 2011), this would mean the first transition year is effectively erased.

    Please don't take this the wrong way. I was just really curious about what your opinion is on the whole transition language part. IV probably believes that no transition language is necessary in practice because India needs to get the relief right now, but they have this language to appease somebody. I'm just wondering who came up with 15%, 10%, and 10%....

    For example, I can tell you the reasoning for the proposed percentages 50%, 30%, and 10%. Currently, spill-over estimates show that India gets 50% of all visas in EB-2 and around 30% over all categories. The proposed 50% reserve guarantees that once the bill passes, India will get some immediate relief, i.e. an increase of 20% from the status quo, applied incrementally for each of the three years in the transition period. This will continue until they reach full FIFO at the end of the 3rd year. It is just a gradual transition from the current percentage of visas that they get to 100% FIFO, and the point is that it's gradual. The math is really rudimentary but it has some logic behind it. What is the logic behind 15%, 10%, and 10%?
  17. Sa's Avatar
    Its wonderful to see how the ROW people want to protect the H1 system from being gutted , Even though they were claiming Indian companies are "abusing" and committing "fraud".
  18. John Doe's Avatar
    You ROWers would have complained even if the transition limits were lower. And don't give me that BS that you would have supported 'better reform' in the form of visa recapture, not counting dependents, etc. You wouldn't have, because with EB2ROW you have been current all along. So you have no incentive. And that won't have passed anyway because no politician is going to vote for a bill that raises immigration visas at a time like this.

    So please stop with the BS about how this has created a rift in the immigration community and how you would have helped IC were the bill not so divisive.
  19. Sa's Avatar
    "

    You ROWers would have complained even if the transition limits were lower. And don't give me that BS that you would have supported 'better reform' in the form of visa recapture, not counting dependents, etc. You wouldn't have, because with EB2ROW you have been current all along. So you have no incentive. And that won't have passed anyway because no politician is going to vote for a bill that raises immigration visas at a time like this.

    So please stop with the BS about how this has created a rift in the immigration community and how you would have helped IC were the bill not so divisive.
    "

    They are like Congressional republicans who want all the marbles. If the transition periods are better , they would have asked for grandfathering under old rules.
  20. venky321's Avatar
    Yes, now that they think that they might lose, the Rowers are suddenly all about compromise. The past few months they have been all about keeping the status quo and not giving even a single extra visa to EB India although EB3 I faced the possibility of a staggering and hopeless wait of 20 years or longer. Now they want 50-50 so that they might not have to wait ....gasp....another 5 years.

    Another point about their hypocrisy; they were always bashing Indians about fraud and visa abuse, now they are all about protecting the H1B visa from Grassley.

    I actually do think that 50-50 is reasonable and would have supported it in the beginning. But now it leaves a bad taste with all the hypocrisy from the other side.
Page 1 of 8 123 ... LastLast
Put Free Immigration Law Headlines On Your Website

Immigration Daily: the news source for legal professionals. Free! Join 35000+ readers Enter your email address here: