Category: Immigration Reform

Comprehensive Immigration Reform Update: Good ideas, Bad Numbers?

Immigration Reform - Immigration Attorney Chicago 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.

H1B FY2014 Cap

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 – Overview

An 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 limit

Congress 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 Card

It 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 done 

In 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:
  1. 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.
  2. 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.

Immigration reform for H1B? 

President Obama recently made it known that he has a Comprehensive Immigration Bill in case Congress is unable to pass Immigration Reform.  I have read President Obama’s plan, unfortunately it does not address the H1B and Employment Based Green Card issues mentioned above.  Clearly it  cannot be called a comprehensive plan if these important issues are not addressed.  I would urge the President, Senate, and House to take these issues into account.  America is a magnet for skilled workers but we need mechanisms to enable skilled workers to be able to get to the US, stay in the US, and contribute to the US. By Gerald Cipolla – Immigration Attorney *Cipolla Law Group is a full service immigration law firm located in downtown Chicago.  Our Immigration lawyers have over 25 years of combined experience and excellent proven records to help businesses and individuals obtaining their visas and green cards.  If you are looking for an experienced immigration lawyer, please contact us today.

Fairness for High-Skilled Immigrants Act – Let’s Get It Right This Time Around

high skilled immigrants act

Brief History of High-Skilled Immigrants Act

The fairness of High Skilled Immigrants Act was discussed during a February 13, 2013 Senate Hearing.  If you recall, the Bill was introduced to the House in September 2011 and subsequently passed in November 2011 by the U.S. House of Representatives.  It has subsequently been stalled by the Senate.  However, during a Senate Hearing Senator Lee, a Republican from Utah stated he will be introducing the bill in the Senate.

What is the purpose of this Act? 

The purpose of the Fairness of High Skilled Immigrants Act is to “amend the Immigration and Nationality Act to eliminate the per-country numerical limitation for employment-based immigrants, to increase the per-country numerical limitation for family-sponsored immigrants, and for other purposes.”

Who will be affected under this Act?

As many are aware, the per country limitations is a complete disaster.  By a simple review of the Visa Bulletin, you will see that a skilled worker in the Employment Based Green Card category of EB3 from India has over a 10 year wait time.  In other words, an employer will commit to an employee from India who has the equivalent of a U.S. Bachelor’s degree by offering the EB3 worker from India a permanent job offer.  The employer will go through the rigorous process of PERM (Labor Certification) undertake thousands of dollars in advertising costs and attorney fees, obtain an approval, file an I-140 petition to prove the merits of the case, obtain an approval, and then be stalled for 10 years.  The employer is on hold and the employee is on hold and forced to go through H1B renewal after renewal incurring substantial costs.  The green card wait time for other employment based green card categories are not significantly better, an EB2 employee from India has an average of 9 year wait time and someone from China generally has a 5 year wait time in EB2 Preference Category.

Will lifting the per-country cap on employment based green card solve the backlogs?

The reason for this backlog is because of INA Section 201, “Worldwide Level of Immigration”  This section of the Immigration Act limits the amount of Immigrant Visas available worldwide and by country.  In other words, each country is capped at 7% of the worldwide level of available Immigrant Visas.  The Department of State reports that “immigrant visa issuance during fiscal year 2013 are limited by the terms of INA 201 to no more  than 226,000 in the family-sponsored preferences and approximately 154,000 in the employment-based preferences.”    My reading of the Fairness for High Skilled Immigrant Act does not increase the amount of worldwide Immigrant Visas available each year, but rather lifts the per country cap.

Is the pie big enough for all the demands? 

Another suggestion that has been made during this time of Comprehensive Immigration Reform is awarding permanent residence to persons earning a U.S. Master’s Degree or Ph.D from a University in the U.S. in the field of STEM (Science, Technology, Engineering, and Mathematics).  Logically thinking, there will be a frenzy of applicants enrolling in U.S. universities for fields within STEM.  This is a great idea, however if the worldwide limits are not increased for Immigrant Visas, we will still maintain the same backlog.  I am not a Mathmetician, but more demand for the same size pie (i.e. no increase in the amount of worldwide Immigrant Visas) is doomed to create the same long wait times that we are currently experiencing.  I applaud the ideas for reform but as Senator Grassley said in the February 13 Senate Hearing, “I’m going to start with a quote from then chairman, Sen. Simpson of WY made on 1981 as we started down a 6years road of 1986 bill. Just as congress is about to undertake an overhaul of the immigration reform system, his words are relevant today. Since I was elected to the Senate, I have served on this committee. I voted for the 1986 amnesty bill because I believed it was a one-time solution to the problem. I was wrong. I applaud the movement by members to work towards an agreement. I have read the Senate bi-partisan framework.  One line that struck me: “we will ensure that this is a successful permanent reform that will not need to be revisited” that sentence is the most important part of that document. We must learn from our previous mistakes so we don’t have to revisit the problem…” So let’s get this right this time around.  Let’s involve mathematicians and statisticians to estimate the amount of supply and demand needed to eliminate backlogs that make our country less competitive and deter the brightest minds from being able to stay and Immigrate to the U.S. By Attorney Gerald Cipolla *Cipolla Law Group is a full service immigration law firm located in downtown Chicago.  Our Immigration lawyers have over 25 years of combined experience and excellent proven records to help businesses and individuals obtaining their visas and green cards.  If you are looking for an experienced immigration lawyer, please contact us today.