The H-1B Visa Blog by Siliato and Malyk

Ready or Not, Here Come the H-1B Site Visits

As many of our clients have experienced first-hand, unannounced H-1B site visits are well under way through USCIS' Office of Fraud Detection and National Security ("FDNS"). Such site visits may occur at the H-1B employer's principal place of business and/or at the H-1B nonimmigrant's work location, as indicated on the filed Form I-129 petition (regardless of whether the work location is controlled by the H-1B employer).

While one may question the legitimacy of such an intrusion on the workplace without warning, FDNS has indicated that it does not require a subpoena to conduct such an unannounced site visit. This assertion is based on USCIS' interpretation of the regulations governing the filing of H-1B nonimmigrant petitions.  More specifically, USCIS has determined that it is permitted to make such unannounced inspections based on the language contained in the instructions to the Form I-129 Nonimmigrant Petition (now on page 23) which, by executing the document, the petitioner and beneficiary consent to allow USCIS to verify the information contained therein.  Specifically, the instructions provide for "unannounced physical site inspections of residences and places of employment and interviews".

So what is an employer to do when confronted with such a surprise visit?  Importantly, the employer may request that immigration counsel be present during the site visit. Thus far, such a request has been met with a varying response from FDNS. While some officers (who, by and large, are contractors hired by USCIS) are willing to accommodate such request, other FDNS officers have refused to reschedule the site visit to allow for counsel to be physically present. It has been our experience, however, that FDNS officers have had no objection to counsel being present by telephone if requested by the employer.

How may an employer be proactive in anticipation of such an unannounced visit?  Of course, the best advice is to be fully compliant with the requirements of the H-1B program. During a typical H-1B site visit, the FDNS officer will likely seek to verify the information contained in a specific employee’s H-1B nonimmigrant petition, regardless of the number of H-1B petitions filed by the employer. The FDNS officer will normally have a copy of the petition and will likely request to speak with the employer's representative who signed the Form I-129 or, if such representative is unavailable, with someone in the Human Resources Department (or, in the case of a small business, someone with knowledge of the company’s filings).  Typical questions or document requests may include: specifics about the company (i.e. business locations, number of employees); the most recent quarterly wage report; confirmation that the signature on the Form I-129 petition is genuine; detailed information about the specific H-1B nonimmigrant's title, job duties, work location, and salary; a copy of the H-1B nonimmigrant's most recent paystub and last Form W-2; information about the number of H-1B petitions that the employer has previously filed; information about the employer's immigration counsel; and/or the opportunity to review the H-1B Public Access file.

It has been our experience that the FDNS officer will also request an interview with the H-1B beneficiary. (In addition to counsel being present, it is our advice that a company representative witnesses the interview of the beneficiary).  During this interview, the officer may ask the beneficiary about his/her job title, job duties, responsibilities, employment dates, position location, requirements for the position, his/her academic background and previous employment experience, his/her current address, and information about dependents, if any.  For more details on what to expect during such a site visit, please click here to review a related article from our Immigration Law Group’s September 2009 e-newsletter.

In sum, those employers who abide by the rules of the H-1B program, and are diligent in maintaining proper records (including a Public Access File), should not fret over the possibility of an unannounced intrusion by FDNS.  Thankfully, our clients who have been subjected to such visits were found to be in full compliance with the program.  And while one may question the wisdom of the substantial resources being expended for random audits, the reality is that the unannounced visits by DHS and DOL are a sign of the times -- a by-product of some recent abuses of the H-1B program amid the climate of increased worksite enforcement by the current administration. Perhaps all of this is an indicator that a comprehensive immigration reform bill is just around the corner.  We can only hope!

 

For additional information and frequent updates on a variety of employment-based immigration law issues, please click here to navigate to Meyner and Landis LLP's "Corporate Immigration Law News" Blog.

Post Authored By: Anthony F. Siliato, Esq. and Scott R. Malyk, Esq. of Meyner and Landis LLP

The H-1B Quota -- Has the Time Come for its Demise?

There is no doubt that the H-1B program has been the subject of intense scrutiny and contentious debate over the last several years. Indeed, there have been many recent (both successful and unsuccessful) attempts to restrict the use of H1-B visas through legislation.

Despite the prevalent backlash, the largest users of H-1B workers continue to defend their H-1B policies, with a call for the elimination of a yearly quota or cap.  Under current law, USCIS can approve up to 85,000 new H-1B petitions, with 20,000 set aside for advanced degree graduates of universities in the United States. This year, for the first time in years (due in part to the economic woes facing us all and in part to other reasons), the quota was not reached in the first days of its availability.  In fact, as of September 25, 2009, there are still approximately 18,300 H-1B visa numbers available for the 2010 fiscal year.  Given the real impact of the economy on H-1B usage, therefore, is there any justification to place an arbitrary limit on the number of H-1B visas available in any given year?

Consider the case of Microsoft Corp.  This tech giant, which utilizes more H1-B guest-worker visas than any other U.S. company, relates much of the company’s success to the contributions made by H-1B visa holders.  Citing that H1-B employees have always accounted for less than 15 percent of its U.S. workforce, Microsoft observes that H-1B workers, nevertheless, have long made crucial contributions to Microsoft's innovation successes and to its ability to create additional jobs in this country. 

Despite its recent layoff of 5,000 workers (which affected its U.S. and H-1B workers proportionately), Microsoft has stated that it is confident that its successes and ability to create jobs will only continue with the help of foreign national workers. Admittedly, Microsoft’s posture alone cannot be the impetus behind the call for maintaining a viable H-1B program.  On the other hand, a driving force for Microsoft’s success is quite telling, as the substantial majority of H-1B petitions filed by Microsoft are for core technology positions.  According to the company, technology and engineering positions account for about 90 percent of its H-1B workforce.

Microsoft said it focuses its recruiting for core technology jobs at U.S. universities, which continue to be among the best in the world for computer science and engineering graduates. However, as one study found, in 2005 temporary residents earned more than 40 percent of the engineering and computer science degrees at U.S. higher education institutions.  For doctoral degrees, that number was even higher, as temporary residents accounted for 59 percent of the degrees awarded in these fields that year. Without a viable H-1B program, a vast majority of these graduates will have little or no choice but to depart the U.S. and allow other countries and economies to reap the benefits of their advanced U.S. studies.

It is important to emphasize that rigorous compliance with the requirements of the H-1B program is essential and employers who make fraudulent use of the H-1B visa category should be punished. Indeed, any H-1B reform efforts should ensure that users of the program follow both the spirit and the letter of the law.  Such reform efforts, however, should also recognize that placing an arbitrary limit on the number of H-1B visas available in any given year does nothing more than serve as a temporary, shortsighted victory for critics of the H-1B program—resulting in our failure to both attract and retain some of the best and brightest from around the world.

For additional information and frequent updates on a variety of employment-based immigration law issues, please click here to navigate to Meyner and Landis LLP's "Corporate Immigration Law News" Blog.

Post Authored By: Anthony F. Siliato, Esq. and Scott R. Malyk, Esq. of Meyner and Landis LLP

Innovation Through Immigration - A "Nobel" Pursuit

At a time of historically high unemployment rates, when it becomes convenient, even “fashionable” to highlight the frailties and abuses of the H-1B program, it is refreshing to take note of the “feel good” story of certain immigrants who have come to this country and achieved greatness and are living the “American Dream.”  Indeed, the recent Nobel Prizes awarded this week to the first six (6) Nobel Laureates were to U.S. citizens—four of whom were born outside the United States.  Perhaps we should take a closer look at the current popular theme of closing our borders to protect U.S. workers.

The recent resurgence of xenophobia is not only shameful but it obscures reality.  However one may feel about Silicon Valley’s employment of large numbers of H-1B workers, overseas brainpower helps to drive the research needed to power our economic growth.

No doubt there are “bad apple” employer sponsors that take advantage of the H-1B program and exploit foreign national workers. Such abusers need to be brought to justice swiftly. However, those abusers should not overshadow the overall benefits of the H-1B program or the bigger picture of U.S. immigration.

Indeed, there is no question that without a visa category which allows the United States to attract some of the world’s best and brightest, our economy will not renew or prosper to its fullest extent. This is especially so given the marked decline in the output of U.S. born scientists and researchers from our colleges and universities. According to statistics from the National Science Foundation released in February, foreign-born science and engineering students in 2003 earned one-third of all Ph.D’s awarded in the United States.

So let’s take a break from the criticism and scrutiny of the H-1B program (and U.S. immigration in general) and celebrate the achievements of U.S. citizen/Australian-born Dr. Elizabeth Blackburn, professor at the University of California-San Francisco, and recipient of the Nobel Prize for Medicine.  Dr. Blackburn’s discovery of a “Jekyll and Hyde” enzyme present in our cells could have a universal benefit in helping extend healthy lifestyle and prevent cancer.  In the words of Ms. Blackburn, “the flow of intellectual ideas is crucial," and "to have borders for it seems counterproductive."

We should likewise celebrate the achievements of U.S. citizen Charles Kuen Kao, born in Shanghai, and U.S. citizen William Boyle, of Bell Laboratories, born in Nova Scotia, who were joint recipients of the Nobel Prize for Physics for laying the foundations of modern communications through fiber optics; as well as that of U.S. citizen Jack Szostak, of Harvard Medical School, joint recipient of the Nobel Prize in Medicine, who was born in London.

These individuals immigrated to the United States in search of opportunity, the “American Dream”, and they have certainly all succeeded in finding it.  Such “opportunity” benefits us all.  However, in a bad economy, the natural reaction becomes a shortsighted one -- to turn one’s back on U.S. immigration by touting its abuses and shortcomings rather than offering comprehensive solutions to fix its problems. 

The truth is, we should all be thankful that such accomplished individuals chose not to remain in their home countries, or to seek opportunity elsewhere. The innovation and excellence upon which our country is built remains today as dependent on the tremendous contributions of those born abroad as on the day of its founding.  Let us not allow the abusers of the H-1B program to foster false patriotic manifestations and cloud the fact that the H-1B temporary worker program is essential to continued innovation and a vibrant U.S. economy.

New York Times columnist, Thomas Friedman, summed it up best when he wrote:

“Dear America, please remember how you got to be the wealthiest country in history. It wasn’t through protectionism, or state-owned banks or fearing free trade. No, the formula was very simple: build this really flexible, really open economy, tolerate creative destruction so dead capital is quickly redeployed to better ideas and companies, pour into it the most diverse, smart and energetic immigrants from every corner of the world and then stir and repeat, stir and repeat, stir and repeat, stir and repeat.”

For additional information and frequent updates on a variety of employment-based immigration law issues, please click here to navigate to Meyner and Landis LLP's Corporate Immigration Law News Blog.

Post Authored By: Anthony F. Siliato, Esq. and Scott R. Malyk, Esq. of Meyner and Landis LLP

The H-1B “Brain Drain”-- It’s NOT JUST the Economy, Stupid

Further to one of our more recent posts, it isn’t just the economy driving the “brain drain” associated with the ever-increasing numbers of talented workers opting to leave the U.S. Rather, the unrealistic immigrant visa quotas for employment-based green cards are also to blame as a formidable obstacle contributing to this recent trend.

The much-anticipated October visa bulletin issued by the Department of State did little to give new hope to the long line of skilled workers waiting for available immigrant visa numbers.  Indeed, with quotas backlogged more than 7 years in the skilled worker category, countless thousands of talented H-1B workers are not only captive to their existing employers (with the hope that they will remain employed by their employer by the time they are permitted to file the final step of the green card process and achieve employment portability, if they wish), but are also constrained from seeking or accepting any significant promotions for fear of having to restart the green card process all over again.

A maximum of 140,000 green cards are issued to employment-based visa holders each year, and that quota is then divided into categories for classes of workers and set a percentage for each country.  As such, because there are presently higher volumes of skilled workers immigrating from India and China, those individuals are required to wait even longer than foreign nationals from other countries.  This rigid system is not based on skill, merit or industry need, but simply because we have an antiquated, per country quota.

It should come as no surprise then that potential and existing U.S. H-1B workers are pursuing other options abroad—which not only avail such workers of more rapid career advancement, but an opportunity to obtain permanent residence in a far more efficient manner than the U.S. process currently offers.  One need not look farther than just north of our border for an accelerated system of obtaining permanent residence for skilled workers. For example, the Province of Alberta Canada has a program which allows U.S. H-1B workers to gain permanent residency in Canada under a fast track (12 month) program. The program does NOT require the H-1B holder to have a job, employer or sponsor. The H-1B worker can apply independently.  Alberta’s fast track program only requires that the applicant be working and have a minimum of one year of work experience in the United States pursuant to one of the temporary skilled worker visa categories (H-1B, H1-B1, H-1C, E-3) and that the applicant’s occupation be included in the “Regional Operations Under Pressure List” For Alberta.

So, while “It’s The Economy, Stupid” has been (and continues to be) a popular refrain since the time of the Clinton Administration, perhaps we need to ask why the United States continues to perpetuate a closed-minded, isolationist approach to immigration quotas that achieves nothing but drive out some of our hardest working, most talented foreign national workers – many of whom might otherwise help the U.S. return to a healthy and vibrant global economy. 

For additional information and frequent updates on a variety of employment-based immigration law issues, please click here to navigate to Meyner and Landis LLP's Corporate Immigration Law News Blog.

Post Authored By: Anthony F. Siliato, Esq. and Scott R. Malyk, Esq. of Meyner and Landis LLP

H-1B Workers—Labor on the Cheap or Through a Complex Process Fair to U.S. Workers?

The H-1B program is designed to allow employers to hire foreign nationals to fill specialty occupations; that is, those positions that require a theoretical and practical application of highly specialized knowledge through the attainment of at least a bachelor’s degree (or an equivalent combination of education and/or experience) in a specific discipline. 

Critics of the H-1B program claim that the program must be modified to combat what they refer to as "legal discrimination" and “displacement of U.S. workers”.  Indeed, U.S. Sens. Chuck Grassley (R-Iowa) and Dick Durbin (D-Ill.) have recently introduced legislation which, among other things, would require employers to certify that no U.S. workers were available to fill the proffered position before an H-1B petition may be filed on behalf of a qualified foreign national.  Proponents of the H-1B program counter such allegations by pointing to the safeguards for U.S. workers already built in to the H-1B program.  Additionally, what the media fails to point out is that the H-1B program is not specifically tailored to the IT industry.  Rather, it fills necessary positions in a broad array of disciplines, such as architecture, accounting, marketing, management and operations research, with some of the brightest, most capable individuals available worldwide.

Such talent comes at a substantial cost to employers -- compliance with the H-1B program is complicated and burdensome.  Prior to sponsoring a foreign national for an H-1B petition, employers must (a) obtain a prevailing wage assessment from the U.S. DOL or an acceptable alternative survey source for the geographic area in which the foreign national will work, (b) agree to pay the H-1B worker the higher of (i) such prevailing wage or (ii) the actual wage it pays to other employees in similar roles, (c) prepare a memorandum describing the factors (e.g, experience, qualifications, education, job responsibilities) that it considered in determining the foreign national’s wage, (d) post a public notice of the H-1B employee's job title and salary in two locations for ten days at the foreign national’s place of employment, and (e) maintain a “public access file” containing evidence of each of the foregoing, which must be updated regularly and made available to the public at any time.

In addition, in the event of an audit by DOL or USCIS, the employer must be prepared to produce additional information, including payroll records showing the wage rates for the position, any data used to establish the actual wage for the position, and a copy of documents given to employees describing employee benefits.

In addition to developing the appropriate regulatory compliance program associated with hiring H-1B workers, H-1B employers must also expend resources to hire experienced HR and legal personnel to insure that the employer remains compliant with the regulatory scheme.  HR, with advice of counsel, is typically charged with the responsibility of updating the public access files when appropriate and budgeting and timing visa extensions as well as developing other, longer-term immigration strategies for their most valued foreign national employees. Additional expenses associated with the H-1B program include counsel fees and the rather excessive filing fees required by USCIS, most of which go toward educating and training U.S. workers and uncovering fraud within the H-1B program. (see our prior post entitled, “H-1B Fraud Fee, Money Well Spent?) 

When one considers the sum of such resources expended -- the only logical conclusion one can derive is that H-1B workers are clearly not “cheap labor” as some would have you think. Rather, the H-1B program involves a significant process and expense for employers to attract some of the best and brightest from all over the world.

No doubt there are employers who blatantly ignore the H-1B rules and take advantage of H-1B workers.  In this vein, the U.S. government is aggressively pursuing indictments against alleged fraudulent use of the H-1B program. (see also our previous post entitled, “H-1B Audits On The Rise”).

On the other hand, employers who abide by the rules will attest that the H-1B regulations are quite complex and that, with proper enforcement of the existing regulations, the H-1B program provides a viable option for maintaining a competitive workforce.  Indeed, given the above-described built-in safeguards for U.S. workers, taking a strict protectionist position which favors abolishing –- or even weakening -- the H-1B program would do nothing but send operations offshore; thus, in effect, cutting off our nose to spite our face. (see our prior post entitled,"H-1B Visa Usage On The Decline: Is It The Economy Or Increased USCIS Scrutiny Or Something More?”)

For additional information and frequent updates on a variety of employment-based immigration law issues, please click here to navigate to Meyner and Landis LLP's Corporate Immigration Law News Blog.

Post Authored By: Anthony F. Siliato, Esq. and Scott R. Malyk, Esq. of Meyner and Landis LLP

 

A Partial Solution To The Plight Of H-1B Workers In A Struggling Economy - A Grace Period?

While some may find it a slight to the “big picture” to discuss the plight of a laid-off H-1B worker (given the relatively small percentage of such workers when compared with the unemployment rate of all U.S. workers), it’s worth taking a glimpse at the unique circumstances confronting such an H-1B worker and his/her family upon receiving notice of termination from employment.  Especially since this dilemma, unlike most others, has a simple fix—a regulatory grace period.

The underlying problem is that employers rarely give ample notice in circumstances involving a reduction in force.  Instead, a two week “severance” is commonly offered to the worker, with the actual termination effective immediately.  This presents problems to H-1B workers which are far greater than the typical issues we all face from a loss of employment.  Indeed, since the H-B visa classification is “employer specific,” an H-1B worker is entirely dependent on his employer not only for livelihood, but for the ability to remain in legal status in the United States.  The H-1B regulations are rigid and antiquated.  DHS considers an H-1B worker to be “out of status” as of the date of termination—regardless of the duration or amount of severance. In other words, in addition to the initial shock of losing one’s employ, the H-1B worker and his/her entire family are immediately considered “out of status” and subject to removal from the United States. 

Under current law, DHS does not provide a grace period once a foreign national who is employed pursuant to an H-1B is terminated. Under a strict interpretation of the law, for such a foreign national to remain in an authorized period of stay, an application for an extension of stay in H-1B status (assuming new employment is found) or a change of status to another non-immigrant classification (e.g., B-2 visitor for pleasure) must have been filed prior to or contemporaneous with the termination of employment.  This is true for not only the worker, but also for his/her family. A failure to do so will likely render the entire family “out of status” – making a distressing situation exponentially more stressful for the terminated H-1B worker and his/her family.  Moreover, a late filing for a change of status or for an extension of stay in H-1B status could result in a denial of such application.  A denial, in turn, would require a trip back to the family’s country of last residence to obtain visas and re-legalize their status.  Needless to say, such personal disruption and expense is no small matter.

Of course, lay-offs are a fact of life, especially so in today’s economic environment.  What’s more, an H-1B worker will never be immune from the “at-will” aspect of an employment-based category.  So, what’s the solution?  To ameliorate the harsh effects of a lay-off, DHS could provide a reasonable grace period under the law (45 days) before the foreign national and his/her family would be deemed “out of status.”  Such a simple solution would at least provide the “disenfranchised” family an opportunity to seek proper counsel to remain in the United States in legal status while considering its options—whether filing a change of status application, filing a new H-1B petition or returning to their last country of residence.

Perhaps comprehensive immigration reform, if and when it is enacted, will provide for such a grace period and make other legislative adjustments in recognition of the contributions made by foreign national workers who are filling specialty occupations—rather than applying an archaic zero tolerance policy that does little to serve anyone’s interests.

For additional information and frequent updates on a variety of employment-based immigration law issues, please click here to navigate to Meyner and Landis LLP's Corporate Immigration Law News Blog.

Post Authored By: Anthony F. Siliato, Esq. and Scott R. Malyk, Esq. of Meyner and Landis LLP

H-1B Fraud Fee: Money Well Spent?

A study done last year by the U.S. Citizenship and Immigration Service ("USCIS") found as many as one-in-five H-1B applications were affected by either fraud or "technical violations," of the H-1B program. This may be the impetus behind USCIS’ increased anti-fraud enforcement efforts.  

Whatever the reason behind such stepped-up efforts, there is no doubt that the USCIS has begun making more and more "surprise visits" to the U.S. work sites of companies that sponsor H-1B visa holders.
 
The Office of Fraud Detection and National Security ("FDNS"), a division housed within USCIS National Security and Records Verification Directorate, was created in 2004 to enhance the quality, integrity and security of the U.S. legal immigration system. According to USCIS, FDNS’ primary mission is to detect, deter, and combat immigration benefit fraud and to strengthen USCIS’ efforts aimed at ensuring benefits are not granted to persons who threaten national security or public safety. FDNS is USCIS’ primary conduit to the law enforcement and intelligence communities.

USCIS has confirmed that the agency has begun conducting random on-site inspections as part of the expansion of its Administrative Site Visit and Verification Program, launched at the beginning of this fiscal year. This new program involves the hiring of private contractors to send "investigators" out to conduct site visits to H-1B employers to verify if the H-1B employee is working at the employer and performing the work as outlined in the H-1B petition. Such investigators come with a checklist of questions designed to confirm the identity of the employer who petitioned for the visa and the visa beneficiary and to verify that both are in compliance with the terms and conditions of the visa.

The objective of the unannounced on-site visits is clear: to detect fraud and abuses of the visa program. According to USCIS, the offenses range from technical violations to outright fraud, with the most common violation being the non- payment of a prevailing wage to the H-1B beneficiary. Arguments can certainly be made that the use of minimally trained contractors to conduct such audits is not an efficient use of the $500 Fraud Fee paid by H-1B petitioners.

The foregoing notwithstanding, it behooves all H-1B petitioners (whether they be small IT companies or Fortune 500 companies), to make sure that their houses (i.e., their Public Access files (“PAF”)) are in order. Aside from the ability to produce evidence of payment of the proper wage, H-1B employers must maintain in the PAF the original LCA (with dates of posting), a wage memorandum outlining how the wage was determined and a copy of the relevant prevailing wage data.  Moreover, evidence of timely notification to USCIS of the termination (whether voluntary or not) of H-1B workers must be available.  Finally, with respect to each H-1B worker who was involuntarily terminated prior to his/her authorized period of stay, there should be evidence of an offer of return transportation to the H-1B worker’s last country of residence.

For additional information and frequent updates on a variety of employment-based immigration law issues, please click here to navigate to Meyner and Landis LLP's Corporate Immigration Law News Blog.

Post Authored By: Anthony F. Siliato, Esq. of Meyner and Landis LLP

H-1B Visa Usage On The Decline: Is It The Economy Or Increased USCIS Scrutiny Or Something More?

For the first time in recent memory, USCIS has been reporting an actual decline in the H-1B count from previous weeks. For example, as of July 10, 2009, USCIS reported a total count of 44,900 against the 65,000 cap limit, 900 less than the cap count of 45,800 at the end of May. At first blush, this may be seen as nothing more than a computational error on the part of USICS.  But this is not the case. According to USCIS, the number of withdrawals of H-1B petitions, combined with denials and revocations, has actually exceeded the number of new H-1B filings in recent weeks.  Is this development just a function of the economy or is it more on account of the recent “Just say NO” climate becoming more and more pervasive with USCIS Service Centers, ostensibly to protect U.S. workers? Perhaps it is a little of both—in addition to something else which is just as troubling.

Given the rash of RFEs being issued by the USCIS adjudicators regarding H-1Bs for IT consultants (see our last H-1B Visa Blog post immediately below), it comes as no surprise that H-1B employers are withdrawing petitions already pending.  And with unemployment across the country fast approaching double digits, it is also not surprising that H-1B usage in general is down.  But what is perhaps the most troubling factor in the declining number of H-1B petitions filed under the cap is the recent trend of large IT companies shifting more jobs to low-cost destinations such as India, China and Mexico, a factor which may be attributed at least in part to the Service’s over-scrutinizing of the limited temporary work visa programs like the H-1B.  In other words, the U.S. government’s efforts to “protect U.S. jobs” apparently has backfired by the systematic relocation of business from the United States to locations abroad.

As reported in a recent article in Hindu Business Line, Tata Consultancy Services (TCS) did not file a single H-1B petition for the current USCIS fiscal year starting October 1, 2009.  TCS, which already has around 18,000 employees with valid H1B visas, has instead chosen to relocate over 1,000 employees from the United States (and other locations) to India last quarter to increase offshore revenues. According to TCS, returning U.S. based employees to India is beneficial for TCS, its clients and its employees. By shifting the work offshore, TCS claims that it is better suited to deliver a reduction in the customer’s overall costs while achieving higher profit margins for the company. 

As a result of the H-1B “crackdown”, a recent Computer World article predicts that more and more Indian IT firms will look to alternate locations to the United States, including Mexico, which are more immigration friendly and less costly.

Hence the query: Is this downward trend of H-1B usage an aberration or will we see this trend continue?  Most assuredly, a confluence of factors have contributed to the recent trend—a struggling economy, compounded by the current naysayer attitude of USCIS and the fact that the United States is becoming less and less attractive to an immigrant workforce that has historically helped to stimulate our economy.  While there is little doubt that we can expect some increase in H-1B usage as our economy recovers, there is no doubt that the United States has lost some of its glitter to the best and brightest of the world.  Now prospects are becoming dimmer for highly skilled professional immigrants under the H-1B program.

Regardless of the empirical data upon which one relies, it is undisputed that the shifting of nonimmigrant personnel offshore is a damaging blow to our overall economic recovery and to the United States’ dominance in the areas of medicine, science, engineering and technology.  One such set of data is set forth in a recent position paper published by the Harvard Business School which finds that invention increases with higher H-1B admission levels. In finding that the H-1B visa program for temporary workers has played an important role in U.S. innovation patterns and technological commercialization over the last 15 years, the authors conclude that the H-1B program is a matter of significant policy importance and that  “total invention increases with higher admission levels primarily through the direct contributions of immigrant inventors”.  It naturally follows that, as invention and innovation are on the rise, so are employment opportunities for U.S. workers.  This begs the question that if we cede to certain isolationist sentiments and ideas in the name of “protecting U.S. workers,” are we simply cutting off our nose to spite our face?

The U.S. scientific, engineering, and technology industries cannot expect to maintain their present position of international leadership if we continue to create legislative and administrative obstacles that discourage the hiring and retention of highly educated foreign talent. We also cannot hope to grow our economy and create more jobs if we are ceding leadership in innovation to other nations.  Indeed, Google, one of the most innovative companies in the world, has said that it could not develop its innovations in the United States without the assistance of the H-1B workers program. In a hearing last year before the House Judiciary Immigration Subcommittee Laszlo Block, Vice President for People Operations at Google, testified, “If U.S. employers are unable to hire those who are graduating from our universities, foreign competitors will.”

Comprehensive immigration reform is clearly necessary with a realization by Congress that current restrictions on high skill immigration are counterproductive.  Otherwise, not only will some of the best graduates of our universities, and highly qualified scientists and researchers of the world, have no choice to live and work elsewhere, but more and more U.S. companies may follow the lead of IT consulting companies and vacate the United States to set up facilities offshore—all of which, of course, does not bode well for the health of our national economy.

For additional information and frequent updates on a variety of employment-based immigration law issues, please click here to navigate to Meyner and Landis LLP's Corporate Immigration Law News Blog.

Post Authored By: Anthony F. Siliato, Esq. and Scott R. Malyk, Esq. of Meyner and Landis LLP

 

More H-1B Hurdles for IT Consulting Companies

Consistent with the current culture of USCIS adjudications, H-1B employers who provide IT consulting and staffing services are faced with yet one more obstacle to navigate.  In accordance with H-1B regulations (8 CFR §214.2(h)(2)(i)(B)), a petition that requires services to be performed in more than one location must include an itinerary with the dates and locations of the services. USCIS has now seized upon this regulatory requirement and has taken it many steps further.

Almost without exception, if not submitted with the original petition, a letter must be secured from the entity or entities with which Petitioner contracts, describing in some detail a description and nature of the contracted employment.  Specifically, USCIS is not only requesting an itinerary with dates and locations and the name of each work site where the beneficiary’s services will be delivered, but also the name of the project(s) to which the beneficiary is assigned and whether the work site has the ability to assign the beneficiary to a different employer.  Each letter must provide the address and telephone number where a contact can be reached and include the title and duties of the beneficiary’s position, the minimum education requirement for the contracted position, and the name and title of the person who primarily supervises or will supervise the beneficiary at the work site.  According to a typical RFE issued by USCIS for such a case, “such information is necessary to determine whether the actual duties to be performed under contract for an end client are duties associated with the specialty occupation sought”.

For each of the beneficiary’s work assignments, USCIS is also requesting evidence of any contracts and related work orders, identifying the succession of consulting or staffing businesses involved in the assignment of the beneficiary to each ultimate work location. Such contracts and related work orders must provide the address and telephone number where a contact can be reached and all contracts must be executed.

As a result of USCIS’ position, to avoid an almost certain RFE, it is incumbent to supply the requested information with the filing of the original H-1B petition. As such, companies that regularly utilize H-1B contract workers are faced with a choice: whether to provide the requested letter and copy of relevant contracts and work orders to the H-1B employer or potentially lose the benefit of the contract workers’ services.

For additional information and frequent updates on a variety of employment-based immigration law issues, please click here to navigate to Meyner and Landis LLP's Corporate Immigration Law News Blog.

Post Authored By: Anthony F. Siliato, Esq. of Meyner and Landis LLP

Secretary Clinton On The “Pro” Side Of The Debate Over The H-1B Program?

U.S. Secretary of State Hillary Clinton’s recent speech before the U.S.-India Business Council appeared to come out in favor of the H-1B program, but was it a ringing endorsement? Perhaps not. Speaking before an audience that included representatives from offshore outsourcing companies, as reported in Computerworld, Clinton appeared to lend indirect support to arguments raised by India's IT outsourcers that visa restrictions are a form of protectionism.  She did not, however, address the merits of the “lost jobs/falling wages” argument so often put forth by critics of the H-1B program—critics who favor such legislation as that introduced by U.S. Sens. Chuck Grassley (R-Iowa) and Dick Durbin (D-Ill.) that would, among other things, set tougher prevailing wage standards, as well as impose limits on the number of visa workers that a company may employ.

What is needed is recognition not only by Secretary Clinton but, more importantly, by members of Congress that the reason the H-1B cap has not yet been reached is a direct result of market conditions -- and that an artificial quota or “cap” makes no sense as the market clearly dictates the need for H-1B specialty workers. Indeed, empirical data only supports the proposition that H-1B workers create complementary jobs rather than result in a substitution of a foreign-based labor pool for U.S. workers. 

For additional information and frequent updates on a variety of employment-based immigration law issues, please click here to navigate to Meyner and Landis LLP's Corporate Immigration Law News Blog.

Post Authored By: Anthony F. Siliato, Esq. of Meyner and Landis LLP