The H1B visa holder’s spouse and dependent children are eligible for H4 visas. Spouses and dependent children can legally reside the in the U.S. Under current regulations, H4 holders can attend school, but are not authorized to work. As of May 2014, the Department of State announced a new rule that proposes the extension of work authorization the spouses of H1B visa holders. There are two proposed requirements for work authorization. The H4 visa holder must have an approved I-140 petition to get permanent residence, or have been granted an extension of authorized stay under the AC21 Act. This could potentially authorize 97,000 H4 visa holders for immediate work approval, benefiting the dependency of the H4, as well as H1B visa holders. Unfortunately, the proposed rules must still be further developed and then made into law.
AC21), special provisions are made for H1B workers to change jobs. This portability allows employees already on H1B status to move jobs without losing status. The new employer must file an H1B on behalf of the employee, and the H1B visa holder must retain their valid status and employment until the new petition is filed and approved. This same AC21 Act allows H1B holders to extend their status past 6 years, without having to leave the country. In order to qualify, the H1B worker must have applied for permanent residence status and meet some specific requirements outside the scope of this article. These AC21 benefits are applied for through the regular H1B extension application, and are meant to help H1B workers avoid elongated processing waits that put status at risk.
During the H1B visa holder’s 6 year stay, he or she is eligible to apply for legal permanent residence through their employer from within the United States. Permanent residence is commonly known as a “green card“. The beneficiary’s immigration status will go from non-immigrant H1B visa holder, to immigrant status or permanent resident. If the H1B visa holder is not eligible to adjust status in the US, or has past visa violations, consular processing may be the best path to green card status. Consular processing is applying for the immigration visa at the overseas US Consulate. The primary advantage of H1B visas is they allow for dual intent, meaning a green card application may be filed in the US while in H1B status and avoid having to apply at an overseas US Consulate. Another issue that comes up with H1B visas is the 65,000 per year cap. When the cap is met, applicants must wait until the next fiscal year for a visa number to become available. Since 2005, there have been an additional 20,000 visa numbers made available to graduates of U.S. master’s programs or degrees of higher learning. Beside this exception, a few other H1B applicant groups are exempt from the cap, including applicants filing through institutions of higher learning, non-profit research organizations, government research organizations, and physicians taking jobs on specific government waivers. Unfortunately, the primary drawback for H1B visas are there are too few of them. For example, for the 65,000 H1B visas and 20,000 US Master’s Cap H1B visas there were 172,000 petitions received in April 2014 for employment beginning October 1, 2014. Consequently, in years where there are too many petitions for the limited available H1B visas, USCIS conducts a random lottery. Unfortunately, not all petitions are accepted in the lottery and not adjudicated. Another disadvantage because of the limited amount of H1B visas is, practically speaking, cap subject petitions must be filed during the first 5 business days of April to have a chance at being selected in the lottery. Ultimately, employment plans must be timed according to the H1B lottery in April and the beginning employment date in October.
The USCIS is extremely cautious when it comes to evaluating fraud in H1B visa applicants, and because of this a petitioner must be vigilant in providing documentation. It is the responsibility of the employer to petition for the entry of the foreign worker. Beyond responsibility for filing the H1B, the employer must also submit a Labor Condition Application (LCA) to the U.S. Department of Labor and must satisfy four attestations. First the employer must prove that they will pay the prevailing wage for that particular field. A prevailing wage is determined by the National Prevailing Wage Center (NPWC) according to job title, description of the position, educational and work experience requirements, job location, as well as type of employer. This wage is defined as the average of wages paid to professionals similarly employed in the same field. Secondly, working conditions for the prospective employee will be afforded on the same basis, and according to the same criteria as U.S. workers. Adversely, the foreign employee will not affect the working conditions or opportunities of U.S. workers. The third attestation requires the employer to prove that at the time of filing, there is no current labor dispute in the future place of employment. The fourth and final attestations provides that the employer will notify workers employed in the field correlating with the position of the non-immigrant worker of the LCA filing. The actual LCA must be submitted with the H1B application, along with detailed documentation that proves educational history. These elements must all help to prove 3 things; that the employer has a legitimate needs for a “specialty occupation” worker, that the position offered is indeed a specialty occupation, and finally that the prospective employee is qualified for the position. A filing fee in H1B petitions goes towards fraud investigations. USCIS has examiners that will conduct site investigations to make sure the employer and employee are performing in a manner that was described in the H1B petition.
H1B visas are the most sought after visa category for immigrants with a Bachelor’s degree, and have very specific requirements. A specialty occupation must fulfill two main qualifications; first it must require a “theoretical and practical application of a body of highly specialized knowledge,” and second it must require a specific academic background, or specialized body of knowledge for baseline entry into a field. In most cases, this means the minimum attainment of a U.S. Bachelor’s degree or its equivalent. Often times the difference between “specialty” and “professional” must be examined. Although all specialty occupations are professional, not all professionals have specialty training. If a professional with a broad scope degree is applying for a specialty occupation H1B visa, the petitioner must be able to prove the beneficiary has an impressive background of work experience that could qualify as specialized knowledge.
- Engineers Graphic Designers
- Hotel Management
- Human Resource Management
- Social Workers
- Software Developers
- Systems Analysts
The H1B work visa is one of the most popular employment based temporary visas. This non-immigrant visa allows foreign workers of a “specialty” occupation to work and reside in the United States for up to six years, in addition to their spouse and dependent children. In an H1B petition, the employer is the petitioner, while the employee is the beneficiary. It is the sole responsibility of the employer to file the H1B petition with USCIS, meaning foreign individuals cannot petition themselves for H1B status. Beneficiaries must be able to prove that they have an offer of gainful employment by a U.S. business, and that the job requires specific, sophisticated knowledge. In addition, a U.S. employer must satisfy several requirements such as verification that they will pay the prevailing wage or higher, and that the employment of a foreign worker will not harm conditions for U.S. workers. The cap for H1B visas is set at 65,000 per year, however, there is a special provision that allows an additional 20,000 visas for graduates of U.S. masters programs, or higher. Once an HIB petition is approved, H4 visa status will be granted to the beneficiary’s spouse and dependent children.
The Department of Labor published statistics for cases filed in 2014, year to date. The statistics can be found at this link: http://www.
foreignlaborcert.doleta.gov/ pdf/PERM_Selected_Statistics_ FY2014_Q3TD.pdf.
Some interesting observations are PERM applications are down 7% from 2013 year to date. The decrease in PERM numbers can either be attributed to the backlog or retrogression seen for China and India. Its unlikely that a decrease in jobs is the reason as it appears that the department of labor jobs numbers have indicated a creation of jobs. As an Immigration lawyer we get to hear a lot of feedback from Employers. Unless there is a reason to extend the H1B numbers beyond 6 years, there is not as much motivation to file PERM Applications for Indian and China born Beneficiary’s.
Another interesting statistic is that India accounted for 21,447 or 55% of all applications. China only accounted for 7% of the PERM applications. Clearly, Indian PERM applications are the majority of the filings. Its an interesting observation that China accounts for approximately 80% of all EB5 applications. India seems to be the PERM market which is reflected in the Visa Bulletin numbers while China appears to be the EB5 market which may also be reflected in the Visa bulletin Numbers. The Department of State has indicated that China EB5 numbers will retrogress later this summer.
A very interesting statistic is that Advanced degree PERM Applications (ie. a Master’s Degree or Professional Degree) account for 55% of all applications while Bachelor’s Degree filings only account for 38%. Clearly, the labor force is becoming more educated and having an advanced degree is no longer an advantage for PERM filings. While I am not hearing any more news about Immigration Reform for 2014, a properly drafted bill should hopefully take into account that the labor force is becoming more educated. The allocation of more Immigrant Visas for advanced degree holders should be accounted for.
Comprehensive immigration reform in its current incarnation as The Border Security, Economic Opportunity, and Immigration Modernization Act, referred here as S. 744, is making its way from the Senate Judiciary Committee for a full debate and vote on the Senate Floor . A recent Washington Post article finds that most Americans, 58 percent, support the most controversial aspects of the bill, the 13 year path to eventual citizenship . While not capturing headlines, this bill will have a dramatic impact on the functionality of the H-1B temporary worker program. New requirements by employers seeking a qualified candidate could stymy the intent of the H-1B program—to bring highly qualified, specialized in-demand professionals into a thriving and competitive US economy.
Will the Senate’s version of the Comprehensive Immigration Reform Bill cap out the future H1B visa?S. 744 provides for an overall increase of the annual H-1B cap. The cap would increase from a minimum of 110,000 with the potential to reach up to 180,000. According to the bill, a market based calculation premised on the number of H-1B visa petitions in excess of the cap and the average number of unemployed persons in the “management, professional and related occupations” categories based on Bureau of Labor Statistics employment reports will be used annually to determine the actual cap number for that fiscal year. While the increase in H-1B visas is applauded, the complicated computation is further confused by the stipulation that despite the market based calculations, the variance in the number of available visas in the next fiscal year cannot be greater or less than 10,000 visas from the prior year.
H1B visa cap increaseIn addition, S. 744 increases the Master’s Cap from 20,000 to 25,000. Again, while the cap increase is good news, the new Master’s Cap would only apply to those who attained a Master’s degree or higher from a U.S. university and limited to those students with a STEM degree- that is degrees in the sciences, technology, engineering or math based on the department of education’s classifications system.
H1B Visa for EmployersThe Senate bill also puts into place new burdens on employers by requiring them to implement advertising and recruitment measures by placing comprehensive and detailed job advertisement on the Secretary of Labor web site. H1B Employers would also have to conduct what Senator Hatch’s Amendment 12 states as a “good faith recruitment of United States workers in accordance with industry standards”  H1B Employers will need to establish that an American worker was not displaced by the foreign-born nonimmigrant worker within 90 days prior and after the date of filing the H-1B petition. The displacement period is increased to 180 days for H-1B dependent employers. The bill does, however, carve out an exception for this non-displacement attestation if a non-H-1B dependent employer maintains the same number of US workers in the same job category from the previous year.  Non-dependent H1B employers will also be subject to the non-displacement attestations, which until now have only been applicable to dependent employers or willful violators. S.744 requires that a dependent employer take further additional measures in order to ensure they did not displace an American worker with similar qualifications. S.744 discourages the use of employer outplacement positions by prohibiting H-1B dependent employers from outsourcing or contracting out the services of an H-1B employer. A non-H-1B dependent may do so but must pay an additional $500 fee. Third-party contracting positions are often typical business models for many IT and other consulting firms and these measures will undoubtedly alter the consulting industry. It is imperative to prevent abuse of the H-1B program by employers. However, investigations and audits of employers utilizing the H-1B program should be targeted and narrow. S. 744 looks to broaden the scope of inquiry by increasing the length of inquiry into an H-1B complaint from 12 months to 24 months. The bill would also allow Homeland Security in initiate its own inquiries and authorizes annual H-1B compliance audits for any employer with more than 100 employees if more than 15% are in H-1B status. These measures and additional amendments are quite ambiguous and could cause far reaching regulatory interpretations resulting in the likely increase in time from H-1B filing to approval. In a fast paced, global economy, US firms need the ability to acquire highly skilled professionals in a streamlined and timely manner and have the detrimental effect of discouraging US companies from sponsoring a talent pool that is otherwise not available in the US economy. While it makes more sense for Congress to make these requirements for immigrant employment based visas, these requirements create such an onerous burden on employers seeking temporary non-immigrant visas that US businesses may stop utilizing the program. This would have the end result of the US businesses loosing out on much of the best-qualified talent and reduce American competitiveness. 1 The Full Senate bill as initially introduced can be found at http://www.judiciary.senate.gov/legislation/immigration/EAS13500.pdf2 The Washington Post article can be found here. 4 Occupational job zone categories are based on the Department of Labor’s Occupational Information Network Database (O*NET).
Comprehensive Immigration Reform is potentially here. We have news that on Tuesday April 16, the Senate Gang of Eight will unveil their Immigration Bill. There is also talk that the House of Representatives have a comprehensive immigration reform bill that they would like to propose. President Obama also proposed a plan. We really don’t know the details of each plan other than leaks to media.
Immigration Reform: What are the numbers?My greatest concern is not learning from the past. As repeated in numerous articles in the past, one of the main contributors to the current immigration problem were arbitrary caps and inadequate visa categories. Arbitrary caps on green cards (preference family members), H1B visas, and Employment Based Green Cards has caused a complete mess in the system. For instance, the H1B filing season for Fiscal Year 2014 just began on April 1 and the arbitrary cap numbers were filled on April 5. There were 124,000 petitions received in the first 5 days of April for the available 65,000 Bachelor’s Cap and 20,000 US Master’s Cap visas allotted by Congress each year. What does this mean? It means if an employer wanted to hire an overseas worker, they had a 5 day window to submit a labor intense application and had to spend thousands of dollars to file this application with an approximately 50% chance of the case even being selected for adjudication. Even if the case is accepted for adjudication there is no guarantee it will be approved. If the case is not selected in the H1B lottery, the options are find another visa category (this can be extremely challenging) or wait until next year (or should we say wait until October 1 2014 to begin employment i.e.. 18 months from now). This does not include the employers and employees that agree to a relationship after April 1 and find out too late about the H1B process. The system is chaotic and caused by arbitrary H1B visas allotted each year. The illegal immigration problem in my opinion is caused by the lack of available visas and the long visa backlog time to bring relatives. For instance, if someone from Mexico wants to enter the US for a manufacturing job where they will very likely be hired, there really are not any visa categories available for them. If they are living in poverty in their home country, their choice is cross the border illegally where there is a job likely waiting for them or stay in poverty. From the employer’s standpoint, they are often put in a position to break the law and hire someone without employment authorization, or just choose not to inquire about their employment authorization.
Immigration Reform: Good ideas ruined by Bad numbers?The leaks about the Senate Bill intrigues me because it almost seems like a merit based system similar to the Canadian Immigration System. This article is to not speculate on the terms of the Senate Bill (we’ll find out in a couple of days) or the terms of the House proposal, but rather to express my views that Congress not ruin potentially good ideas with bad numbers. In other words, the comprehensive immigration reform they may propose may have the right approach (i.e.. a path to citizenship for the 11 million undocumented persons in the US, opportunities for skilled and unskilled workers to migrate to the US, reduce the family backlogs for spouses of permanent residents), but please don’t ruin the laws by imposing arbitrary caps where in 5 years the numbers will make no sense. Like now, many of our immigration laws probably make sense (I want to emphasize the word many as there are also many that make no sense at all), but the numbers have just created backlogs where the laws no longer make sense. For Comprehensive Immigration Reform to make sense, it truly needs to comprehensive, numbers in all. By Attorney Gerald Cipolla Cipolla Law Group is a full service immigration law firm based in downtown Chicago, Illinois. With over 25 years of combined legal experience, we have extensive experience and excellent track record in helping immigrants within and outside the U.S. to fulfill their immigration dreams. If you are seeking an experienced immigration lawyer in Chicago, please feel free to contact us for a consultation.
It is H1B season right now and in the midst of the Comprehensive Immigration Reform Bill there has not been much talk for reforming the H1B Cap and some of the detailed rules revolving around H1B extensions and H1B Transfers.
H1B 2014 – OverviewAn H1B visa allows U.S. employers to employ foreign Professionals with the equivalent of a U.S. Bachelor’s Degree or higher to work in a position related to the educational background. For example, someone with a Master’s Degree in Engineering could work in a field related to engineering, however if the same candidate were to apply for a job as an accountant, it likely would not be approved for an H1B as the academic background is not related to the job.
H1B Cap 2014 and H1B visa 6 year limitCongress allots 65,000 U.S. Bachelor’s cap and 20,000 U.S. Master Degree holders each year for H1B employment beginning on October 1. Once someone has been counted against the Cap mentioned above, they can work on H1B for up to 6 years in total. The first H1B is usually granted for a 3 year term and it may be extended for a second 3 year term with the same employer, called an H1B Extension. The H1B rules allow for someone to transfer their H1B to a different employer within the 6 year period, called an H1B Transfer.
H1B Visa to Green CardIt is very common for an Employer to sponsor an employee on an H1B visa or H1B status for an Employment Based Green Card. Most Employment Based Green Cards in the second preference (EB2) and all of the Employment Based Green Cards in the third preference (EB3) require Labor Certification or PERM. Generally the filing of the PERM before the Employee’s 6th year allows for an H1B extension beyond 6 years under the American Competitiveness Act of the 21st Century (AC21). Due to retrogression (backlog in Employment Based Green Cards), the rules for extending H1B status beyond 6 years become very convoluted and detailed causing much confusion for Employers, Employees, and some inexperienced Immigration Lawyers as the rules are constantly evolving.
The H1B problem and what needs to be doneIn my opinion, the rules surrounding an Employment Based green card and H1B visa are very fair. However, the arbitrary caps placed by Congress are the source of the problem. The main problems are:
- In a normal economy, too much demand for too few H1B visas – there is a frenzy on April 1 to file for Cap subject H1B visas for employment beginning on October 1. For example, in 2007 USCIS received 150,000 petitions in the first couple of days of April for the precious few available 65,000 Regular H1B visas and 20,000 Master’s Cap H1B visas. For essentially 85,000 available H1B visas, almost an equal amount of employers and employees will be turned away. What do these employers and employees do? Unless there is a special visa category that will apply to their situation, the general answer is either school on F1 status or wait until next year. My suggestion is eliminate the arbitrary caps and let the free market determine the amount of H1B visas each year. For example, in a terrible job market such as 2009/2010 in the midst of the sub-prime banking collapse, it took until December 2009 (over 8 months) for the H1B visa cap to be exhausted. In other words, what is the point of having an H1B cap when the market can regulate itself. If an employer is willing to incur the costs of hiring an overseas worker and are willing to pay them above the prevailing wage, why arbitrarily impose a cap. The market is the best determinant of how many available H1B visas are needed.
- Eliminate arbitrary caps on Employment Based Green Cards – As mentioned in previous articles, the wait time for an EB3 Green Card from India is currently 11 years and EB2 category is approximately 9 years. For China an EB3 wait time is currently 6 years and 5 years for an EB2. This is called retrogression If most people currently in retrogression are on H1B, then most need to deal with the extremely complicated and stressful AC21 rules. There are simple solutions such as eliminating the arbitrary cap. If Congress is concerned about too many permanent residents at one time, perhaps place a requirement where someone must be on H1B for a period of 3 years before applying for permanent residence. This is just one simple suggestion, I am sure there are more elaborate concrete ideas.