Visa Lawyer Blog

For the first time since 2008, U.S. Citizenship and Immigration Services (USCIS) has reached the statutory H-1B cap of 65,000 for fiscal year (FY) 2014 within the first week of the filing period. USCIS has also received more than 20,000 H-1B petitions filed on behalf of persons exempt from the cap under the advanced degree exemption.

Yesterday, on April 8, 2013, it was announced that USCIS received approximately 124,000 H-1B petitions during the filing period, including petitions filed for the advanced degree exemption.

On April 7, 2013, USCIS used a computer-generated random selection process (commonly known as a “lottery”) to select a sufficient number of petitions needed to meet the caps of 65,000 for the general category and 20,000 under the advanced degree exemption limit. For cap-subject petitions not randomly selected, USCIS will reject and return the petition with filing fees, unless it is found to be a duplicate filing.

The agency conducted the selection process for advanced degree exemption petitions first. All advanced degree petitions not selected were part of the random selection process for the 65,000 limit.

We will keep you posted with more updates.

Just announced by USCIS, no more H1B visas for this year. U.S. Citizenship and Immigration Services (USCIS) announced today that it has received a sufficient number of H-1B petitions to reach the statutory cap for fiscal year (FY) 2014. USCIS has also received more than 20,000 H-1B petitions filed on behalf of persons exempt from the cap under the advanced degree exemption. After today, USCIS will not accept H-1B petitions subject to the FY 2014 cap or the advanced degree exemption.

USCIS will use a computer-generated random selection process (commonly known as the “lottery”) for all FY 2014 cap-subject petitions received through April 5, 2013. The agency will conduct the selection process for advanced degree exemption petitions first. All advanced degree petitions not selected will be part of the random selection process for the 65,000 limit. Due to the high number of petitions received, USCIS is not yet able to announce the exact day of the random selection process.

Also, USCIS is currently not providing the total number of petitions received, as they continue to accept filings today. USCIS will continue to accept and process petitions that are otherwise exempt from the cap.

USCIS will provide more detailed information about the H-1B cap next week. We will also keep our readers posted.

Most attorneys that had H1B Visas to prepare worked most of last weekend to get the files ready. The goal was to file by April 1, 2013, Monday. According to a recent update by the American Immigration Lawyers Association, the 2 Service Centers were not prepared at all for the volumes.

The California Service Center has advised AILA Liaison that it “processed and accepted mail all day” on Monday, April 1, 2013. For deliveries to the VSC, members are reporting that they are receiving confirmation of Tuesday delivery for petitions sent to the VSC (Vermont Service Center) for Monday delivery.

According to information provided by FedEx, both the CSC and the VSC experienced delivery and processing delays during the day on Monday, April 1, 2013 (are we surprised?). AILA Liaison is attempting to get further information from USCIS HQ and the service centers involved.

It is reasonable to believe that the delays are due to volume, that most petitioners requested Monday delivery, and that the service centers are spreading deliveries over the five-day filing window, with the expectation that the cap will be reached sometime during this week.

If the cap is reached within the first five business days of April, all cap-subject petitions filed during those five days will be subject to the lottery. 8 CFR §214.2(h)(8)(ii)(B) reads, in part: “If the final receipt date is any of the first five business days on which petitions subject to the applicable numerical limit may be received (i.e., if the numerical limit is reached on any one of the first five business days that filings can be made), USCIS will randomly apply all of the numbers among the petitions received on any of those five business days, conducting the random selection among the petitions subject to the exemption under section 214(g)(5)(C) of the Act first.”

So we can still get in cases to the service centers during the next few days. Most likely numbers will be used up this week, but maybe not. Best course of action, if your case is ready, just file it.

We will keep you posted with more updates.

There is less than one week left before the first day of H1B filing madness. Our office is super busy with cases to complete before the deadline. One question that comes up often is the H1B exemption for affiliation with or relation to an institution of higher education. Here is an update to an article from the previosu season. Until further guidance is issued, USCIS is temporarily applying interim procedures to H-1B non-profit entity petitions filed with the agency seeking an exemption from the statutory H-1B numerical cap based on an affiliation with or relation to an institution of higher education.

During this interim period USCIS will give deference to prior determinations made since June 6, 2006, that a non-profit entity is related to or affiliated with an institution of higher education – absent any significant change in circumstances or clear error in the prior adjudication – and, therefore, exempt from the H-1B statutory cap. However, the burden remains on the petitioner to show that its organization previously received approvals of its request for H-1B cap exemption as a non-profit entity that is related to or affiliated with an institution of higher education.

Petitioners may satisfy this burden by providing USCIS with evidence such as a copy of the previously approved cap-exempt petition (i.e. Form I-129 and pertinent attachments) and the previously issued applicable I-797 approval notice issued by USCIS since June 6, 2006, and any documentation that was submitted in support of the claimed cap exemption. Furthermore, USCIS suggests that petitioners include a statement attesting that their organization was approved as cap-exempt since June 6, 2006.

USCIS emphasizes that these measures will only remain in place on an interim basis. USCIS will engage the public on any forthcoming guidance.

The USCIS issued guidance in a memo on June 6, 2006 regarding H1B petitions that are eligible for exemptions from the H1B numerical limits (H1B cap).

The Memo addressed the fact that the word "at" is used regarding the exemption, rather than "by," as mentioned above. The USCIS acknowledged that this reflects a congressional intent to exempt foreign nationals who are not employed by exempt institutions, but who, nonetheless, perform employment that directly and predominantly furthers the essential purposes of such qualifying institutions. Third-party employers, therefore, can utilize this exemption if a foreign national is physically working at an exempt institution and has a job that "directly and predominately furthers the normal, primary or essential purpose, mission, objectives or function of the qualifying institution." The third-party employer must show a logical nexus between the work of the beneficiary and the normal work of the qualifying institution.

The USCIS noted that, in many situations, qualifying institutions have contracts with third-party companies for onsite placement of workers. These employees perform jobs that otherwise would be performed by employees of the qualifying institution. Thus, they are doing work that was important to Congress in creating the H1B exemptions.

If you have any questions about H1B exemptions, feel free to email us.

I just saw this notice from USCIS and wanted to share with our readers:

U.S. Citizenship and Immigration Services (USCIS) announced today that it will begin accepting H-1B petitions subject to the Fiscal Year (FY) 2014 cap on Monday, April 1, 2013. Cases will be considered accepted on the date that USCIS receives a properly filed petition for which the correct fee has been submitted; not the date that the petition is postmarked.

The cap (the numerical limitation on H-1B petitions) for FY 2014 is 65,000. In addition, the first 20,000 H-1B petitions filed on behalf of individuals with U.S. master’s degree or higher are exempt from the fiscal year cap of 65,000.

Based on feedback from a number of stakeholders, USCIS anticipates that it may receive more petitions than the H-1B cap between April 1, 2013 and April 5, 2013. USCIS will monitor the number of petitions received and notify the public of the date on which the numerical limit of the H-1B cap has been met. This date is known as the final receipt date. If USCIS receives more petitions than it can accept

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We have predicted this already a few weeks ago, and notified our clients and prospects. Proper preparation of the forms and LCA is important at time to make sure the cases will be ready for filing on time.

For a complete H1B Tips video, click here

We have received an amazing response to our last H1B Self Employment Article and we wanted to follow up with a few more tips as the H1B filing date is just around the corner.

So the bottom line, USCIS regulations require that H-1B classification be accorded a foreign national who will perform services in a specialty occupation. USCIS will not approve an H-1B petition for “speculative employment.” So, to avoid RFEs (Request for Evidence) on these issues for new and smaller company typically formed by a sole investor, it is important to prepare H-1Bs with sufficient financial and other information to show the legitimacy of the company and the need for the H-1B worker. I often include,a copy of the office bank accounts, wire transfers of money deposited in corporate bank accounts, business plans, contracts with U.S. clients, etc.

H1B as the Owner

In most cases, for an owner/beneficiary, the beneficiary will be filling a managerial position for the company. In this situation, it must be proven that the managerial position is a “specialty occupation” requiring the attainment of at least a bachelor’s degree.

Service Center examiners at USCIS may be under the impression that managerial positions do not normally require attainment of a degree. Additionally, general manager positions that could be performed by anyone with managerial experience have been found not to be “professional” because they do not require a specific bachelor’s degree. This is a common recent RFE we have seen a lot in the past 2 H1B filing seasons.

It is therefore critical to the company to describe the duties of the manager in detail to prove the complexity of the duties and/or knowledge required in a specific field to perform the duties. The H-1B is best utilized where the manager has education and experience in either a specific business area such as financial analysis, accounting, etc. or in the subject matter of the product or service provided by the business.

Some officers turn to the Occupational Outlook Handbook to find that a specific degree is not required for the managerial position, again very important to focus the job on a particular area, and not keep it managerial as a general field.

How Big is your Business?

While current H1B regs suggest company size does not matter for the H-1B visa, in reality, often it does. USCIS examiners may question whether the company is large enough and has enough complex activity to support the need for an H-1B worker. A small business with few employees all engaged in work that clearly would not meet the definition of “specialty occupation” may lead a USCIS examiner to conclude that the offered H-1B position is, similarly, not a “specialty occupation,” or that the beneficiary will perform some specialty occupation duties in combination with other non-specialty occupation duties.

Therefore, it is necessary for small businesses to submit substantial evidence about the nature of the business as well as the need for the position, and that it will be filled by a person with a degree. It is important to understand the industry that the H1B worker will be part of, perform the necessary research about similar jobs, and always look for the "hook" to justify the need for the degree.

In reality, we know that USCIS examiners are not consistent. We have filed many similar cases, with similar evidence. Some get immediate approvals, some get RFE's and others get denied. What we can do is present the H1B petitions in a bullet proof format, over prepared is the keyword this filing season.

Most lawyers that are versed in the H1B visa process, are getting busier and busier these days. As we are nearing the April 1, 2013 filing deadline for the H1B visa. Many speculations out there as to when will the Cap be reached this year. The economy is doing OK, but employers are still careful before hiring. Yet, many Immigration experts feel the Cap will be met very early this year, but when is the big question.

With LCA's now taking more than 7 days to process, as well as unreasonable denials, planning early is the key to a successful H1B case this year. But in this post, I want to go back to the basics, the Cap and the legislative background.

Background

On October 21, 1998 Congress passed, and the President signed into law, the much debated American Competitiveness and Workforce Improvement Act of 1998, Pub. L. No. 105-277 (hereinafter ACWIA). This legislation was first introduced by Senator Spencer Abraham (R-MI), the Chairman of the Senate Subcommittee on Immigration, in response to the inadequate numbers of H-1B visas available in any fiscal year. As part of the Immigration Act of 1990, Congress imposed a 65,000 per year cap on these visas. In 1997, the cap was reached prior to the end of the fiscal year. The situation grew to crisis proportions in fiscal year 1998 when all 65,000 visas numbers were taken in May of 1998.

In early March 1998, Senator Abraham introduced a bill entitled, "The American Competitiveness Act." The legislation was introduced on the heels of numerous reports and hearings concerning the high tech worker shortage in the United States. The primary goal of the legislation was to address the looming exhaustion of the H-1B professional or specialty occupation worker visa numbers.

The ACWIA went through many different stages before an agreement could be reached. A complete elimination of the cap had originally been proposed by Senator Abraham. The legislation was then modified to increase the number of H-1B visa numbers available during the government fiscal year; provide additional funds for scholarships in the computer science and mathematics areas; increase enforcement of the Department of Labor component of the H-1B visa process; and provide clarification on the prevailing wage requirements of the process. The legislation also addressed permanent residence by providing for an extension of the H-1B visa should a permanent residence petition be pending, and through restructuring the allocation of the employment-based immigrant visa numbers.

This legislative game between conservative isolationists/liberal protectors of the U.S. workforce and moderate Democrats and Republicans supporting business needs and demands, caused chaos among U.S.-based businesses in need of skilled professional workers. From May 11, 1998 until October 1, 1998 U.S. businesses, research institutions and other organizations were unable to recruit foreign workers as temporary professionals. With the U.S. economy still booming and unemployment rates remaining at an all-time low, businesses, especially in the high tech sector, encountered many problems as a result of the cut-off in H-1B visa availability. These problems included, but were not limited to, taking employees off the U.S. payroll, sending employees back to their home country or to sites outside the U.S. as well as the termination of some critical development projects.

Requirements in the Statute

The ACWIA purportedly balances the need for increased professional visas numbers for foreign workers and the desire to protect the U.S. workforce. The following is a summary of the significant changes made by the legislation.
A. Temporary Increase in the Number of Professional Visas Available

There will be an increase from 65,000 to 115,000 visas for fiscal year 1999 and 2000 (through September 30, 2000). In fiscal year 2001, 107,500 visas will be available. Beginning October 1, 2001 the numbers will revert back to 65,000.
B. Electronic Postings

LCA notices may be posted electronically in situations without a bargaining representative. This provision was effective upon date of enactment.
C. Attestations Required for Employers Dependent Upon Foreign Professionals

U.S. employers of 51 or more employees, whose workforce is comprised of 15% or more foreign nationals in the H-1B category are considered dependent employers and must make certain attestations. Employers will also be considered dependent if they employ 26- 50 full time employees and have more than 12 H-1B employees or if they employ 7 -25 employees and have more than 7 H-1B employees.

The dependent employer must attest that it has not and will not displace a U.S. worker within 90 days before and 90 days after filing the visa application. This attestation carries through to employers who place employees at another worksite. The H-1B dependent employer must also attest that it has taken good faith steps to recruit U.S. workers using industry wide standards and has offered the position to any U.S. worker who is equally or better qualified for the job the foreign worker is sought.

H-1B employees with a Master’s degree or a salary of $60,000 or higher are not included in the attestation requirements and for the first 6 months following the implementation will not be included in the dependent employer calculation.
D. Increased Enforcement and Penalties for Violations

The Department of Labor may fine employers between $1,000-$35,000 per violation and preclude participation in the H-1B program for up to three years.
E. Back Benching H-1B Employees

Employers must pay H-1B nonimmigrants the wage stated on the H-1B petition even if the beneficiary is in nonproductive status. This does not apply to non-productive time due to non work related factors.
F. Benefits

Employers must offer foreign workers benefits and eligibility for insurance, disability, retirement and savings plans, stock options, etc., on the same basis as offerings made to U.S. workers.
G. Additional Fee for Use of H-1B Program

Beginning December 1, 1998, employers are required to pay an additional fee of $500 for an initial H-1B petition and for the first extension. These fees are to be used to support job training programs and scholarships for U.S. workers.
H. Prevailing Wage Computations

For institutions of higher education, related or affiliated non-profit entities or non profit or governmental research organizations, the prevailing wage shall take into account employees at such institutions in the area of employment.
I. Academic Honoraria

Payments of honoraria may now be made to B-1 and B-2 visitors for usual academic activity lasting 9 days at an academic institution or affiliated non-profit entity or a non-profit governmental research organization. No more than 5 honorarium may be received within a six month period.

Employers based in the U.S. now have a temporary reprieve when hiring foreign professionals. However, it is uncertain whether the 65,000 visas for this fiscal year will be adequate to meet the demand for this year and next. Some government officials estimate that visas will be unavailable as early as the end of April 2013 early May. In addition, the proposed I Square Bill and other immigration reform, sure make us optimistic for the future of the H1B visa.

U.S. employers employing foreign nationals in any capacity would be well advised to carefully monitor future proposed legislative and regulatory proposals on the horizon.

All I can say is that if you plan on hiring a foreign worker, you better call an immigration lawyer now!!!

Did you know that forty percent of Fortune 500 companies in the United States were started by immigrants or the children of immigrants. From 1995 to 2005, half of Silicon Valley startups had an immigrant founder and in 2005 alone those businesses did $52 billion in sales creating more than 400,000 jobs. Iconic American companies that built whole new industries like US Steel, Dupont, Google, eBay, Honeywell, and Intel were started by immigrant founders. Chobani Yogurt, founded in 2005 by the immigrant entrepreneur Hamdi Ulukaya in upstate New York, has created 1,500 American jobs.

Just as we find common ground that unites families and protects communities, so too should we ensure that the world's most talented innovators and entrepreneurs who are educated in our great universities are able to stay and contribute, rather than be forced to set up competitor businesses abroad. Many end up leaving because our visa options for self employed founders are limited.

Foreign Start Up founders often struggle with visa options to stay and launch a company in the US. The options are limited, if your country is part of a US Investment treaty, one can apply for the E2 visa and start a small company by investing some money. If you have a million dollars, you could also invest in your business, and could apply for the EB5 Immigrant Visa. But what if you don't have money, and your country is not a member of the E2 treaty? Well until recently you were out of luck.

Now we have more options to offer our clients due to some changes to the H1B work visa. On Aug. 2, 2011, the USCIS announced a number of immigration initiatives to boost the economy by attracting and retaining foreign entrepreneurs. Rather than tackling the nearly impossible task of passing immigration legislation in the Congress, the Administration has decided to re-interpret the current immigration laws in favor of foreign entrepreneurs. It recognizes that it must bring the best and brightest from around the world in order to grow the U.S. economy and create jobs. In general, these new immigration initiatives reduce barriers to foreign entrepreneurs.

H1B Visa Changes to benefit Self Employed Founder and New Business Owners

Under the new initiatives, an entrepreneur with a majority or even 100% stake in his or her own company, including a sole employee, may be able to obtain an H1B visa if he or she can demonstrate that the company has the right to control the entrepreneur’s employment. The USCIS states in that document that it is willing to accept the existence of an H1B employer-employee relationship, even if the prospective H1B employee owns a majority share of the company, as long as it can also be shown that there is some external check on the employee's authority.

The USCIS referenced an independent board of directors as an example. The USCIS Q&A states that, "... if the petitioner provides evidence that there is a separate Board of Directors which has the ability to hire, fire, pay, supervise or otherwise control the beneficiary's employment, the petitioner may be able to establish an employer-employee relationship with the beneficiary."

If the company has a separate Board of Directors that has authority to hire, fire, pay, or supervise the entrepreneur. This is a major step forward by USCIS and can be seen as a reversal of its previous policy announced in a January 2010 memo, which essentially killed any hopes of a self-employed, majority-shareholding entrepreneur to obtain an H1B visa.

The USCIS suggests that, in addition to an independent board of directors, it may be sufficient to show that there are preferred shareholders, investors, or other factors to demonstrate that the company controls the terms and conditions of the entrepreneur's employment. The existence of this proof may be enough to establish a distinction between the entrepreneur's ownership interest in the company and the right to control his/her employment.

Case Examples

Business Development Specialist for a small Recruiting Agency. Our client was a founder of this European agency with a rep office in California. He was the 80% of his Corporation and held a Bachelors Degree in Business.

We divided the case into 2 parts. First, demonstrated that this was in fact a specialty occupation type of position. We had several letters from similar companies, letter from a professional association, complexity of the job evidence and a detailed resume.

The second part of the case addressed the Employee-Employer relationship as per the recent Memo. We had detailed minutes of the Company, Evidence that a board was set up, and other evidence as to the Control of the Company. We won the case because we established a legitimate employer-employee relationship, based on the existence of external controls on the H1B employees' actions, even though the employees in these cases held majority ownership of their companies.

Several other cases with similar fact patterns were approved, for Chinese and Indian national that were not eligible for E2 visas, but could benefit from the recent Changes in the procedure in the H1B visa arena.

Changes in the Green Card filings for Self Employed Owners under EB2 Category

It appears, however, that the new USCIS initiatives may have reduced the restrictions for foreign entrepreneurs with exceptional ability in business to qualify for the EB-2 visa category. For instance, USCIS states that the foreign entrepreneur can make a unique case as to why he or she is exceptional, which can include, providing evidence of his or her successful history in obtaining funding from reputable sources or his or her past participation in quality, selective incubators, lecturing in TED type events or the influence in the internet world for instance.

The new USCIS initiatives also may make it easier for the foreign entrepreneur to qualify for the National Interest Waiver (NIW) exemption of the EB-2 visa category. The NIW exemption waives the EB-2 job offer and labor certification requirements if it is in the U.S.’s national interest. The job offer and labor certification requirements have been significant barriers to foreign entrepreneurs in obtaining permanent residence. Now, under the new initiatives, if an entrepreneur can demonstrate that his or her entrepreneurial efforts will benefit the national interest of the U.S., he or she could potentially qualify for the NIW. For example, we have prepared cases for Business People that formed companies here, and the companies generated jobs, lots of jobs for US workers.

There are some good options with the recent changes. It is important to consult an experienced Immigration lawyer to understand the implications of the self employment H1B, and the risk this process may create when applying for a Green Card in the future.

Email us with any questions or concerns.

New data has been released on cap-subject H-1b petitions. USCIS only allows 65,000 cap-subject petitions each year to be filed with USCIS. From the 65,000 petitions, there are currently 29,000 pending petitions that need a decision.There are 21,968 approved petitions, with 7,078 denied petitions. Taking the approval/denial ratio into consideration, it appears that 3 out of 4 petitions are being approved by USCIS. Notwithstanding any decisions overturned through the appeals process, that 75% rate is still low compared to years back where the approval rate for H-1b cap-subject petitions was closer to 90% approval rate.

Whether these numbers still reflect a concern for petitions based on fraud or whether it is based on any focus on bigger companies versus smaller companies filing the petitions, the fact is that USCIS has increased denials and even more cases were likely delayed approval because of requests for evidence on those cases. Hopefully the rest of the cases that are still pending will be met with more approvals.

The numbers through the third quarter of 2012 for H-1B petitions is in. Through a FOIA request made by the American Immigration Lawyers Association, the number of H-1B petitions that have been submitted, approved, denied, and withdrawn have been released. So far this year, 128,893 petitions have been submitted to USCIS. Of those petitions, 75,706 petitions have been approved, 20,717 have been denied, and 1,820 have been withdrawn.

This means there are still 30,650 petitions that are being decided by USCIS. Looking at the approval and denial rates, it appears that the approval rating is around 80% for H-1B petitions for 2012. While this may seem like a low number for employers to accept, it is a higher approval rate than in prior years. In addition, the denial number is the second lowest for denials since 2008, and taking the amount of petitions filed and still pending into consideration, the ratio for approvals to denials appear better than they were 5 years ago.

It is good to see that petition numbers and approvals have increased when comparing them to 2008-2011, but even despite these numbers, one would think the approval rate should be much higher. With all the political rhetoric going on around finding a way to keep those individuals educated in the U.S. in the STEM fields, the H-1B has always been the visa many of those individuals to utilize for working and staying in the U.S. Whether the denials come from a policy within USCIS or not, if we want to keep those educated in the U.S. from leaving, the H-1B visa needs to be utilized more in order to keep them here longer.

A recent study conducted has shown that there is a high demand for skilled H-1B workers in metropolitan areas. An analysis of the geography of H-1B visa requests — particularly in the metropolitan areas with the highest demand between 2001 and 2011 — reveals that demand for H-1B workers has fluctuated with economic and political cycles over the last decade and reflects a wide range of employers’ needs for high-skilled temporary workers. Employer requests have exceeded the number of visas issued every year except from 2001 to 2003 when the annual cap was temporarily raised from 65,000 to 195,000. Employers requesting the most H-1B visas are large companies subject to the cap specializing in information technology, consulting, and electronics manufacturing. Science, technology, engineering, and mathematics (STEM) occupations account for almost two-thirds of requests for H-1B workers; healthcare, finance, business, and life sciences occupations are also in high demand. Over the last decade the federal government has distributed about $1 billion from H-1B visa fees to fund programs to address skills shortages in the U.S. workforce.

One hundred and six metropolitan areas had at least 250 requests for H-1B workers in the 2010–2011 period, accounting for 91 percent of all requests but only 67 percent of the national workforce. Considerable variation exists among these metro areas in the number of workers requested and the ratio of requests to the size of the total metro workforce. On average, there were 3.3 requests for H-1Bs per 1,000 workers in these 106 metro areas, compared to 2.4 for the nation as a whole.

Continue reading "High Demand for H-1B Workers in Metropolitan Areas " »

More changes coming. The U.S. Department of Labor (DOL) recently published a proposed revision of ETA Form 9035 and its instructions. Form 9035 is more commonly known as the Labor Condition Application (LCA), and is required for all H-1B, H-1B1, and E-3 visa petitions. The proposed revisions would, among other things, limit the maximum number of workers who could be covered on a single LCA to no more than 10, and require that the intended worker(s) be identified by name on the LCA form prior to filing.

These are significant changes. The current rules allow a single LCA to cover hundreds of workers, and there is no requirement that there be any worker-identifying information on the LCA. In addition to the proposed revisions to the ETA 9035, the DOL also released a proposed version of Form WH-4, which is used by the DOL's Wage and Hour unit to collect complaints of possible violations of the H-1B, H-1B1 and E-3 visa programs.

The DOL indicates that the proposed changes in data collection are intended to improve enforcement and investigation of LCA violations. The DOL will accept comments on the proposed form and its changes until September 7, 2012. Expect even more delays in the preparation and filings of LCA, guess it will also affect the timing for getting H1B's filed by the deadline. We will keep you posted.

A memo was released recently through the National Foundation for American Policy which provided a revealing analysis in which data reveals high denial rates for L-1 and H-1b petitions submitted to U.S. Citizenship and Immigration Services (USCIS). Analysis of new data obtained from USCIS reveals the agency has dramatically increased denials of L-1 and H-1B petitions over the past four years, harming the competitiveness of U.S. employers and encouraging companies to keep more jobs and resources outside the United States.

The high denial rates belie the notion adjudications have become more lenient. Employers report the time lost due to the increase in denials and Requests for Evidence are costing them millions of dollars in project delays and contract penalties, while aiding competitors that operate exclusively outside the United States – beyond the reach of U.S. Citizenship and Immigration Services adjudicators and U.S. consular officers. (The data in this report include only petitions at USCIS, not decisions made at consular posts.) Given the resources involved, employers are selective about who they sponsor. The high rate of denials (and Requests for Evidence) is from a pool of applicants selected by employers because they believe the foreign nationals meet the standard for approval, making the increase in denials difficult to defend. Denying employers the ability to transfer in key personnel or gain entry for a skilled professional or researcher harms innovation and job creation in the United States, encouraging employers to keep more resources outside the country to ensure predictability.

Among the findings contained in this NFAP analysis of official U.S. Citizenship and Immigration Services data:

- Denial rates for L-1B petitions filed with USCIS, which are used to transfer employees with “specialized knowledge” into the United States, rose from 7 percent in FY 2007 to 22 percent in FY 2008, despite no change in the law or relevant regulation. The denial rates stayed high for L-1B petitions at 26 percent in FY 2009, 22 percent in FY 2010 and 27 percent in FY 2011.1 In addition, 63 percent of L-1B petitions in FY 2011 were at least temporarily denied or delayed due to a Request for Evidence.

- Denial rates for H-1B petitions increased from 11 percent in FY 2007 to 29 percent in FY 2009, and remained higher than in the past for H-1Bs at 21 percent in FY 2010 and 17 percent in FY 2011.

- Denial rates for L-1A petitions increased from 8 percent in FY 2007 to 14 percent in FY 2011. L-1A visas are used to transfer executives and managers into the United States.

- The denial rates also increased for O-1A petitions, which are used for “individuals with an extraordinary ability in the sciences, education, business, or athletics.”2 Denials for O-1A petitions rose from 4 percent in FY 2008, to 10 percent just one year later in FY 2009, increased again to 11 percent in FY 2010, and stood at 8 percent in FY 2011.

Continue reading "It Is Not Your Imagination...H-1b and L-1 Denials Have Been Going Up!" »

At the American Immigration Lawyers Association Conference today, we heard updates about the increased H1B visa RFE's and rate of denials. As the practice of H1B filings will continue to become more complex, it is important to know how to file and document H1B cases in specific occupations to increase the approval chances.

Attorney Ekaterina Powell from our office has handled numerous H-1B cases and has prepared this article to share her expertise. Now that the H-1B annual cap for fiscal year 2013 has been reached, the individuals who have missed this year’s cap are looking for other options to extend their stay and apply for H-1B next April.

We would like to remind those who wish to use next year’s H-1B Cap to plan in advance and have everything ready long before April 1, 2013. The accelerated speed with which H-1B cap was reached this year may be a sign that the visas will run out even faster next April.

A position for which you are applying is a major consideration in H-1B case. H-1B is only available for positions that can be considered “specialty occupations” as defined by the statute and regulations.

There is no set list of positions that can qualify as specialty occupations. Therefore, each position is analyzed on a case-by-case basis.
Before the next H-1B cap season starts, we are planning to publish series of articles about the USCIS’s interpretations of specialty occupations, USCIS’s approach to certain positions, and the strategies on how to overcome unfavorable determinations of the agency within various industries. Follow our blog for the most up-to-date information and analysis pertaining to H-1B occupations.

Example of a Successful H-1B case for Market Research Analyst

In the fields of business and marketing, it is especially hard to obtain H-1B as many positions within these fields are considered merely administrative for which bachelor’s degrees in specific specialties are not required, and thus are not viewed by USCIS as specialty occupations.

We would like to share with you a success story of a complex H-1B case for Market Research Analyst we handled that was recently approved by USCIS after a motion to reopen the denial decision was submitted.

Established in 2009, ABC is a company with 12 employees that does product development and provides professional engineering services in the industry of medical system devices, consumer electronics, and alternative energy. ABC sought the part-time services of Amy, the beneficiary, as a Market Research Analyst for a period of 3 years.

U.S. Citizenship and Immigration Services (USCIS) issued a Request for Evidence (RFE) in that case asking the employer to submit additional evidence to establish that the position offered qualified as a specialty occupation.

The case was handled by California Service Center. Unfortunately, while USCIS strives to achieve uniformity in adjudication of H-1B petitions, RFEs coming from California Service Center (CSC) differ significantly from those of Vermont Service Center (VSC). While VSC adjudicators are issuing case-specific RFEs clearly identifying the deficiencies they see in the submitted evidence and giving examples of documents they are looking for to approve the case, CSC adjudicators are far off from clarity in their RFEs.

Request for Evidence Analysis

In our Market Research Analyst case for ABC company, like in any other H-1B petition for a position of Market Research Analyst and related occupations where USCIS questions whether the job offered is a “specialty occupation,” CSC issued a very generic RFE template, which requested the following:

1) More detailed job description/Nature of the position – this request asks for the specific job duties, the explanation of what differentiates the proffered position from other related "non-specialty occupation" positions, and why the position is so complex or unique that it exceeds normal industry standards such that a bachelor’s degree in a specific field of study is a realistic prerequisite for the position.

In our case we provided a comprehensive job description with the percentages of time Market Research Analyst will spend on each job duty, and analyzed why the work to be performed required the services of the individual with a college degree in the occupational classification.

In our case, the responsibilities of Market Research Analyst are two-fold at ABC company. ABC assists customers to design, develop, and deliver innovative products. As it is a product development company, it is very important for ABC to understand what types of products people want to determine who will buy the products and at what price and to advise client-companies accordingly. Therefore, it is critical for the company to know consumer preferences in terms of cost effectiveness, product design, concept, packaging, etc.

Therefore, on one hand, Market Research Analyst will assist ABC’s client-companies by researching avenues for products and analyzing consumer preferences on product design, packaging, appeal, etc.

On the other hand, ABC creates and sells products it develops. Market Research Analyst will determine the targeted segments, conduct research on consumer preferences, and will analyze competitor’s business operations.
As documentary examples of the complexity of the job duties, we provided Strategic Marketing Plan prepared by the beneficiary while on OPT, current projects, marketing initiatives of the company, and the company’s profile.
2) Evidence that Market Research Analyst is a common position required by similarly-sized businesses with similar incomes; evidence that petitioner's competitors normally require degrees in a specific specialty for closely related positions to that of a market research analyst.

This request is hard to satisfy because it would require information of hiring practices of the company’s competitors, which might be next to impossible to obtain. In our case, we submitted statements from owners of similar businesses attesting to the degree requirements for their Market Research Analysts.

3) Job listings to establish that a degree requirement is common to the industry in
parallel positions among similar organizations.

In order to satisfy this request, the petitioner needs to provide job announcements from similar organizations clearly specifying the educational background of candidates. Interestingly, USCIS states that they are looking for job announcements that show the petitioner’s size and annual income on the face of the ads. It is hard to imagine that any employer would mention its annual incomes and the number of employees in a job listing.

For this request, we provided numerous job listings for the position of Market Research Analyst from similar technology companies. However, in the initial denial decision for the case, USCIS blankly rejected the evidence stating that “the job listings are not sufficient evidence to prove that it is a common requirement in the industry to require a degree.” It is a rhetorical question why USCIS requests the evidence that they are predetermined to deny.

Despite USCIS’s position toward the required job advertisements, it is still a good idea to submit as much evidence as possible to satisfy all the requests to the extent possible.

4) Evidence of industry-re1ated professional association that has made a bachelor's degree in a specific specialty a requirement for entry into the field.

In our case, we provided information about professional associations that require degrees in specific fields from their members.

5) Letters or affidavits from firms or individuals in the industry that attest that such firms routinely employ and recruit only degreed individuals in a specific specialty.

For this request, we provided affidavits from other business owners from similar businesses confirming their hiring practices and Expert Opinion Letter from university professor who, based on his extensive knowledge of the industry and the hiring practices, attested to the specific degree requirement for Market Research Analyst position. In addition, the professor has provided a detailed analysis of the job duties to be performed by the beneficiary for ABC, the petitioner’s business model, and has provided conclusions that the duties of the position are so complex and unique that a bachelor’s in a specific field is a realistic prerequisite for the position at ABC company.

6) Petitioner's present and past job vacancy announcements for Market Research Analyst Positions.

For this request, we submitted ABC’s past job advertisement for the position of Market Research Analyst noting the degree requirement.

7) Past Employment Practices of hiring persons with a baccalaureate degree, or higher in a specific specialty, to perform the duties of the proffered position.

For this request, the petitioner provided information about the independent contractor that the company used as a Market Research Analyst who possessed a Bachelor’s degree in Marketing.

8) Petitioner's Products or Services/Nature of the Petitioner’s business - This request asks to explain what differentiates the petitioner's products or services from others in the industry and why it requires a baccalaureate level of study to perform the duties of the position.

For this request, we provided a comprehensive analysis of what the petitioner does, and supplemented our explanation with documentary evidence of Company Overview, Marketing and Company Promotion Initiatives, Project Examples, Product Positioning Questionnaire, and Marketing Strategy Analysis.
In addition, in order to alleviate any concerns of USCIS that the beneficiary will be performing duties of other non-specialty occupation positions, we provided documentary evidence showing that ABC employs other individuals for the non-specialty occupation positions, such as accounting, bookkeeping, office administration, etc.

USCIS’s response and its Analysis

Despite all the evidence and information provided in the RFE response, USCIS denied the H-1B petition stating that the petitioner has not provided sufficient evidence to satisfy “specialty occupation” standard.
According to the regulations (8CFR 214.2(h)(4)(iii)(A)), the H-1B position must meet one of the following criteria:
(1) A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;
(2) The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree;
(3) The employer normally requires a degree or its equivalent for the position; or
(4) The nature of the specific duties is so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.

USCIS interprets the term “specialty occupation” very narrowly. In the denial decision, USCIS focused on the first criterion used in determining whether the position qualifies as a specialty occupation. Specifically, USCIS stated that the first prong is not met because “a baccalaureate or higher degree in a specific academic discipline is not required for the position of Market Research Analyst.”

Interestingly, neither the statute nor the regulations require baccalaureate level of education in one specific academic discipline in order to satisfy “specialty occupation” standard.

Flaws in the USCIS’s reasoning are obvious as it is hard to find a position that would satisfy such a stringent requirement. Such interpretation would preclude a finding of “specialty occupation” in any field of endeavor where there is no single degree major that is appropriate to fill the position.

For example, Software Engineer has been continuously recognized by USCIS as a specialty occupation even though the position may be filled by professionals holding degrees in a number of academic fields, such as computer science, software engineering, physics, computer information systems, or mathematics. See e.g. Matter of [name not provided], Case No. WAC 99 140 51643 (Jan. 25, 2001); Matter of [name not provided], Case No. WAC 04 037 53653 (May 20, 2005); Matter of [name not provided], Case No. WAC 07 149 50969 (Oct. 22, 2008); Matter of [name not provided], AAO, Jan. 9, 2004; Charles S. Davis & Assoc. v. Simmons, Civ. No. 88-CV-73002-DT (E.D. Mich. 1988).

In addition, the requirement that the degree must be in a specific academic major has recently been explicitly rejected by a United States District Court. The California Service Center denied an H-1B petition for a Market Research Analyst, finding that the OOH “…does not indicate that the degrees held by such workers must be in a specific specialty that is directly related to market research….” In Re: Residential Finance Corporation, WAC 11 215 55179 (CSC, Nov. 11, 2011).

In reversing the CSC and directing approval of the petition, the court stated: “Defendant’s implicit premise that the title of a field of study controls ignores the realities of the statutory language involved and the obvious intent behind them. The knowledge and not the title of the degree is what is important. Diplomas rarely come bearing occupation-specific majors. What is required is an occupation that requires highly specialized knowledge and a prospective employee who has attained the credentialing indicating possession of that knowledge…” citing Tapis Int’l v. I.N.S., 94 F. Supp. 2d 172, 175-76 (D. Mass. 2000) (rejecting agency interpretation because it would preclude any position from satisfying the “specialty occupation” requirements where a specific degree is not available in that field).

USCIS’s restrictive interpretation of the Occupational Outlook Handbook (OOH)
In determining normal degree requirements for entry into a particular position, USCIS gives a lot of deference to the Occupational Outlook Handbook (OOH), the publication of the Department of Labor. USCIS analyzes each position in accordance with the appropriate section of the OOH. Since it is impossible to describe all the existing position titles, the OOH provides description of the most common and broad categories of occupations.

H-1B employers should keep in mind that even though the title of the position may be Marketing Specialist, Business Development Specialist, Market Analyst or Consultant, or any related occupation, USCIS does not rely on the title, by itself. Each position title has a broader occupational category (SOC occupation title) which it falls under. Thus, most of the marketing occupations fall under Market Research Analysts.

USCIS tends to use overly restrictive interpretations of the OOH and finds that if the OOH indicates that a number of different academic degrees could qualify an individual for the position, then, by definition, the position cannot qualify as a specialty occupation.

However, the agency’s interpretations are hard to agree with. The pertinent section of the OOH, 2012-2013 Edition, Market Research Analysts, states the following in the pertinent part: “Most market research analysts need at least a bachelor’s degree, and top research positions often require a master’s degree. Market research analysts typically need a bachelor’s degree in market research or a related field. Many have degrees in fields such as statistics, math, or computer science. Others have a background in business administration, one of the social sciences, or communications.”

As shown above, the OOH provides a range of specific specialties/courses of study that Market Research Analysts can be trained in. It is impossible to allocate a single degree major that all Market Research Analysts should have. This is because the requirements of a particular job vary depending on the nature of the duties in light of the company’s business.

In its interpretations, the OOH ignores the realities of the current marketplace. Instead of identifying a single academic major, the OOH provides a number of academic field students can train in to acquire the body of knowledge necessary to perform the duties of Market Research Analyst.

OOH states that a bachelor’s degree in a limited number of closely related fields of study is a typical (normal) minimum educational requirement for entry into Market Research Analyst occupation, thus the position should qualify as a specialty occupation.

Preponderance of Evidence Standard of Review

The standard of proof in H-1B case is preponderance of evidence, which means “more likely than not.” Matter of Martinez, 21 I&N Dec. 1035 (BIA 1997); Matter of Patel, 19 I&N Dec. 774 (BIA 1988); Matter of Soo Hoo, 11 I&N Dec. 151 (BIA 1965).
In our case, the evidence presented was more than enough to meet the burden of persuasion and to show that it is more likely than not that a bachelor’s degree in a specific specialty is normally a minimum requirement for entry into the occupation of Market Research Analyst.

Unfortunately, USCIS adjudicators are either not trained in the application of this standard or they refuse to apply it. USCIS’s overly restrictive interpretations of the term “specialty occupation” negatively impact the economic growth and the ability of U.S. companies to hire skilled foreign labor.

Motion to Reopen the Denial Decision

We filed a motion to reopen and a motion to reconsider the wrongful denial decision, where we argued that the petition should not have been denied in the first place as the petitioner had provided sufficient evidence to prove each of the criteria to qualify the position as a “specialty occupation,” and we provided supplementary new evidence to prove the requisite standard.
In the denial decision, USCIS blindly rejected the evidence presented and stated that the affidavits from business owners testifying that the degree requirement is common to the industry, job listings of competitors, evidence of the petitioner’s own hiring practices, and evidence of the complexities of the position were not sufficient to qualify the position as a specialty occupation. USCIS refused to even consider the Expert Letter from the University Professor stating the agency used its discretion to use the opinion letter as merely advisory.
In our experience, USCIS tends to scrutinize the H-1B petitions filed by start-up businesses and small companies. USCIS routinely states that “a business of the petitioner’s size does not require the services of an individual performing the duties of a specialty occupation,” based on nothing else but the adjudicator’s assumptions.
USCIS adjudicators often rely on the Adjudicator’s Field Manual (AFM), Chapter 31.3, section (g)(1), which enumerates a number of factors including the nature of the petitioner’s business in determining whether the position qualifies as a specialty occupation.

Petitioners should be very careful in responding to RFEs and arguing motions and should explain in plain language the need for the position, the petitioner’s capacity to employ the beneficiary to perform specialty occupation duties, and supplement the explanation with supporting documentation of current and future projects to be handled by Market Research Analyst, market research initiatives of the company, strategic plans, company’s profile, organizational structure, etc.

In our motion, we pointed out the deficiencies in the denial decision, emphasized the duties to be performed by Market Research Analyst, availability of specialty occupation work, and provided evidence to show the need for the position.
We were successful in convincing USCIS that the position of Market Research Analyst at ABC company does qualify as a specialty occupation, and the beneficiary was granted the H-1B status.

Dealing with USCIS, particularly in H-1B cases for Market Research Analyst and related occupations in small or start-up companies, can be very challenging and requires a lot of patience and cooperation of the petitioning organization.

Unfortunately, USCIS does not have an efficient complaint process which you could use to reverse clearly erroneous but factually disputable denial decisions. Thus, in case an erroneous denial has been made, the petitioner has to either go through the expense of filing another petition, finding alternative professional worker who could fill the position, or go through the process of filing a motion or an appeal.

Clearly, something has to be changed in USCIS’s adjudication process as a matter of policy, and we really hope that USCIS will increase supervisory review of the RFEs and the denial decisions, and will provide proper training to its adjudicators.

If you are thinking about applying for H-1B next April, we recommend to plan ahead. Our office will be happy to provide you a free initial consultation to discuss H-1B option for you.

A great update from AILA, the pace of filing cap-subject petitions increases as USCIS closes in on reaching the H1B cap. The week of May 7, it was receiving an average of 840 per day . The next week it was 1060, the next week 1280, and the week of May 28 it was 1800 per day.

As of June 1, USCIS reported that 55,600 non-advanced degree cap-subject filings had been received. So, if the most recent week's "burn rate" continued, USCIS would reach 65,000 by early next week.

However, it is not that simple. Each year, USCIS accepts more than the 65,000 before it starts rejecting petitions, since it must account for a certain percentage of withdrawals and denials. However, the agency has stopped publishing what that number (previously known as the target number) is, so the actual number it will receive before the gate comes down is unknown. We will keep you posted.

Pic Source: http://redbus2us.com/

So the race is on, only a few days left for the H1B cap to be reached. USCIS has received approximately 55,600 H-1B petitions subject to regular-cap (for bachelor's degree holders) and 18,700 H-1B petitions subject to master-cap (for U.S. advanced degree holders). Therefore, there are about 9,400 spots available under the regular-cap, and 1,300 spots left under the master-cap.

Hurry Up, you may just make it. Is it an indication that our economy is doing much better?

Pic Source: http://redbus2us.com/

Still time to apply for H1B Visas, but numbers are running fast. U.S. Citizenship and Immigration Services (USCIS) announced that, as of May 18, 2012, it has received approximately 48,400 H-1B petitions counting towards the congressionally-mandated 65,000 limit.

USCIS also confirmed that it has received approximately 17,500 H-1B petitions for employees with advanced degrees from U.S. colleges and universities. The annual limit on H-1B petitions in the advanced degree category is 20,000. Accordingly, USCIS is still accepting H-1B petitions under both the general cap and the advanced degree cap.

USCIS has received approximately 42,000 H-1B petitions subject to regular-cap (for bachelor's degree holders) and 16,000 H-1B petitions subject to master-cap (for U.S. advanced degree holders).

Therefore, there are about 23,000 spots available under the regular-cap, and 4,000 spots left under the master-cap. Hurry and file fast.

The reliability and fairness of our immigration system can be evaluated only if the government’s procedures and activities are transparent. The American Immigration Lawyers Association (AILA), the Legal Action Center, and in cooperation with counsel at Steptoe & Johnson LLP, filed a FOIA lawsuit in July 2010 against Department of Homeland Security (DHS) and United States Citizenship and Immigration Services (USCIS) seeking the public release of records concerning agency policies and procedures related to fraud investigations in the H-1B program. There was significant public interest in these records because USCIS’s H-1B practices have caused confusion and concern among U.S. businesses that legitimately depend on temporary foreign workers with specialized knowledge to operate successfully.

On Friday, May 18, 2012, after protracted litigation, DHS and USCIS released unredacted copies of all of the documents sought by AILA. The history of the litigation went as follows:

The complaint brought by AILA alleged that DHS and USCIS violated FOIA when they wrongfully withheld information responsive to two FOIA requests and failed to timely respond to AILA’s requests. The complaint asked the court to enjoin defendants from continuing to withhold information relevant to the requests, to declare the requested records are not exempt from disclosure, and to award any other relief that the court deems just and equitable.

After the lawsuit was filed, DHS released eight pages of heavily redacted documents and filed a motion for summary judgment. AILA responded with a cross-motion for summary judgment, which prompted defendants to withdraw their motion and request additional time to search for responsive documents. DHS subsequently released additional records, but these records still did not meet the request made by AILA.

In late May 2011, AILA renewed its motion for summary judgment, arguing that DHS continues to improperly withhold responsive documents and have failed to segregate and release portions of previously disclosed and newly identified redacted documents.

In late June 2011, DHS responded to AILA’s motion for summary judgment with a cross-motion for summary judgment and filed an opposition to plaintiff’s statement of material facts not in genuine dispute. AILA replied to DHS cross-motion in late July. DHS responded to AILA’s reply in early August.

In March 2012, Judge Emmet G. Sullivan issued a lengthy opinion in which he denied the government’s cross-motion and partially granted AILA’s motion to the extent that he found the government’s privilege log to be inadequate. He ordered the agency to better explain its claims exemptions in the form of a revised Vaughn index:

The Court notes that the USCIS’s revised Vaughn submissions must be sufficiently detailed such that the Court and plaintiff can conduct their own reviews of the segregability of the non-exempt information, particularly in light of the previously-disclosed information regarding fraud indicators in the BFCA Report (Watkins Decl., Ex. 2) and the Compliance Review Report Instructions produced by defendants in response to plaintiff’s FOIA Requests (Watkins Decl., Ex. 29). The Vaughn submissions should contain a segregability analysis for each document withheld in part or in full, identifying the proportion of exempt and non-exempt information, and specifically explaining why the withheld information cannot be produced.

In a May 16, 2012 letter, USCIS stated that it undertook “its most rigorous comparative review” of the remaining undisclosed documents requested in AILA’s FOIA request and determined that it would disclose the documents in full.

Thanks to the diligence of AILA, LAC and its counsel at Steptoe & Johnson LLP, the FOIA request has been granted in full in order to gain a better understanding of DHS and USCIS policy concerning its H-1b fraud program. Thanks to these documents, employers will have better knowledge of what DHS and USCIS has been focusing on during its fraud investigations for H-1b petitions and what an employer needs to do to ensure that no fraud is going on with the H-1b program.

A lot has been said about this story, and it seems the wrong point keep coming back. The workers is not able to find work because of the H1B visa. This is a myth and a wrong statement.

This is the story to recap. Two days after Obama talked with the wife of the engineer during an online town hall and offered to take a look at her unemployed husband’s resume, the wife said the president has followed through.

The wife told The Associated Press that she got a call from a White House deputy chief of staff, who told her Obama had made a personal point of making sure the matter was taken care of. The deputy said the resume was sent to contacts in the Dallas-Fort Worth area where the couple lives.

The husband Darin has been contacted by several recruiters, and the wife said she’s grateful.

But the wife a republican, said that may not be enough to get her vote unless Obama also improves some of his job policies.

“Just because he’s able to send a resume out, that’s not going to be a vote factor,” the wife said.

“We’re just one American,” she said. “There are thousands of Americans just like my husband with no job.”

The wife wants Obama to look at limiting the number of visas going to high-tech workers from foreign countries, the issue she raised with him in a forum hosted by Google Plus.

It is very easy to blame foreign workers and the H1B visa when times are tough. People often find excuses and reasons for not being able to find work, the H1B program is a convenient target.

In an updated article about this story the engineer is still not employed and the calls from recruiters and employers stopped as the media attention faded. It seems that he had some good offers but refused to relocate for the job. Who is to blame for this, sure the H1B program. How about being too picky to move?

Crystal Williams from AILA leadership Blog had a nice take on this issue:

Sometimes you read an article and think “something doesn’t quite follow here.” An April 7, 2012 article in the Fort Worth Star-Telegram titled “Fort Worth engineer who got Obama’s attention still doesn’t have a job” is one such article.

The article lays out a tale with which one can readily sympathize: an engineer loses his job in the midst of the Great Recession, and remains out of work three years later. He receives expressions of interest from companies and recruiters all over the country, but cannot pursue them because a custody agreement requires he stay in the area where he now lives. It’s an impossibly tough dilemma: wedded by a vitally overarching family commitment to a geographic location where your skills are not in demand, and unable to pursue opportunities in places where demand for your skills does exist.

But the article fills in some more information. The engineer’s job loss was being used by immigration opponents to argue that H-1B specialty occupation professionals should not be allowed into the United States because here is an engineer who needs a job. This was raised with no less than the President of the United States in a video chat.

This chat exchange received considerable publicity, and immediately the engineer was being contacted by potential employers from all over the country. Alas, none of these employers were in the North Texas area. And the engineer couldn’t leave the area. So the calls have stopped and the engineer stays unemployed.

But here’s what doesn’t follow. The article goes on to quote Senator Grassley and the engineer’s wife as saying that the engineer is out of work because of foreign nationals on H-1B visas. The fact that the engineer cannot go where the jobs are does not seem to be considered a factor. Leaping over barrels of facts to a conclusion that doesn’t follow from the facts, the fault is placed at the feet of foreign-born professionals who will go where the jobs are.

In those leapt-over barrels is the acknowledged fact that employers all over the country were beating down this engineer’s door. Why would they do that unless there are jobs available in some fields and employers wanting to fill them with U.S. workers who have the right skills? But these employers cannot pull up entire operations (and lay off their existing workforce) in order to move to the locale of a single person; the person needs to move to the job. If the person cannot move to the job because of a family obligation, that is to be respected.

But no one should blame “the foreigners” for it.

So we suggest to learn the facts about the H1B program before blaming hard working foreign workers.