Meyner and Landis LLP Immigration Law Group
  • 08Oct
    H-1B Visa News, Immigration Reform Comments Off on Innovation Through Immigration – A “Nobel” Pursuit

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

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

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

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

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

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

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

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

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

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

  • 07Oct
    E-Verify System, EB-5 Investor Visas Comments Off on President Obama Signs Stopgap Bill – Four Immigration Programs Extended Through 10/31/09

    Up against a midnight deadline to avoid a government shutdown, the Senate last Wednesday passed legislation that temporarily extended spending on most federal programs at current levels while raising Congress’ budget by 6 percent.  On the same day, President Obama signed a continuing resolution to fund ongoing federal government operations through October 31, 2009. 

    Included in the legislation were provisions to extend the E-Verify, Religious Worker, Conrad 30 and EB-5 programs for an additional 30 days, although these programs are likely to be extended for an additional period of time  once the Senate and House conference the FY10 Homeland Security Appropriations bill (H.R. 2892) in the coming weeks.

  • 25Sep
    H-1B Visa News Comments Off on The H-1B “Brain Drain” — It’s Not Just the Economy, Stupid!

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

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

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

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

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

  • 11Sep
    H-1B Visa News Comments Off on H-1B Workers—Labor on the Cheap or Through a Complex Process Fair to U.S. Workers?

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

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

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

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

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

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

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

    On the other hand, employers who abide by the rules will attest that the H-1B regulations are quite complex and that, with proper enforcement of the existing regulations, the H-1B program provides a viable option for maintaining a competitive workforce.  Indeed, given the above-described built-in safeguards for U.S. workers, taking a strict protectionist position which favors abolishing –- or even weakening — the H-1B program would do nothing but send operations offshore; thus, in effect, cutting off our nose to spite our face.

  • 08Sep
    E-Verify System, Worksite Enforcement Comments Off on E-Verify Is Now Mandatory For Federal Contractors, What Does This Mean For Your Business?

    Effective today, companies that contract/subcontract with the Federal Government must use the E-Verify system to confirm that their employees can work in the U.S. legally. The regulation is not limited to American Recovery and Reinvestment Act of 2009 (“ARRA”) stimulus funds, but to all appropriations contracts with projects [exceeding $100,000 and for subcontractors with projects exceeding $3,000] with the federal government beginning September 8 – with some very limited exceptions. 

    Accordingly, American companies which contract with the federal government for goods or services (including construction contracts) will likely see existing contracts modified to require E-Verify review of (i) all persons hired during the contract term and (ii) all persons assigned by the contractor to perform work on the federal contract.

    Practically speaking, what does this mean for your business?

    Businesses already enrolled in E-Verify for more than 90 days are required to continue to initiate verification of newly hired employees within three business days of their start date, but have 90 days from the effective award date to begin using E-Verify for each employee already on their staff who is performing work upon an existing federal contract. (Any transition to using the system as a federal contractor does not allow you to stop using E-Verify for its new hires on the standard three-day schedule).

    For businesses not yet enrolled, the contractor and any covered subcontractor will be required to enroll in E-Verify within 30 calendar days of the contract or subcontract award date. New enrollees will be provided an additional 90 days — for a sum total of 120 days — to enroll and initiate verification queries for employees already on their staffs assigned to fulfill a federal contract and to begin using the system to verify all newly hired employees.

    Why should employers care about this regulation?

    USCIS is “data mining” E-Verify, resulting in the identification of compliance failures, such as the failure of an employer to E-verify all employees or failure to terminate employees after a final non-confirmation of employment eligibility. Such monitoring will result in referrals to Immigration and Customs Enforcement (“ICE”) for follow-up inspections.

    Accordingly, non-compliant employers (but, more commonly unrepresented businesses) may increase the prospect of an ICE inspection.

    E-Verify scheduled to sunset on September 30, 2009

    Although the District Court recently dismissed the Chambers’ emergent motion seeking to enjoin the mandatory implementation of the E-Verify rule pending appeal, another potential obstacle may lie ahead for the E-Verify rule – it is currently scheduled to expire on September 30 under a sunset provision unless Congress takes action before then. 

    The Senate has already passed an amendment that would permanently reauthorize the program and require federal contractors and subcontractors to use the program in order to verify that all new hires and existing employees directly performing work under the terms of the contract be authorized to work in the United States. The House approved a two-year extension of E-Verify when it passed the Homeland Security Appropriations bill in a 389-37 vote. However, the bills have yet to be reconciled in a conference committee. 

    Should you have any further questions regarding your business’ present obligations with respect to E-Verify, please do not hesitate to contact us.

  • 03Sep
    E-Verify System Comments Off on Appeal May Delay The Implementation Of Mandatory E-Verify For Federal Contractors

    Less than a week after the United States District Court for the District of Maryland granted the Government’s motion for summary judgment, thereby dismissing the Chambers’ lawsuit challenging mandatory E-Verify for federal contractors, the Chambers filed an emergent motion with the District Court seeking an injunction (or stay) pending the appeal of the District Court’s decision to dismiss the Chambers’ lawsuit as a matter of law.

    DHS lawyers are scheduled to decide today whether to delay the implementation of the new rule mandating E-Verify for federal contractors (currently scheduled for September 8) pending the appeal.  

    Should you have any questions regarding your business’ present obligations with respect to E-Verify, or what, if anything, your businesss should be doing to prepare for the September 8 deadline, please do not hesitate to contact us.

    Stay tuned for further updates.

  • 17Aug
    I-9 Compliance, Worksite Enforcement Comments Off on The Obama Administration Warns Of “Another Wave” Of I-9 Audits “In The Near Future”

    Secretary Napolitano recently delivered a speech detailing the Obama Administration’s plans to announce “another wave” of I-9 audits “in the near future.”  Such audits, specifically targeting businesses suspected of hiring illegal immigrants, are a dramatic change from the highly publicized worksite enforcement sweeps of the prior administration.

    In June 2009, the Immigration and Customs Enforcement Division of DHS (“ICE”) implemented its first “wave” of such audits. Specifically, ICE notified several hundred companies of its intent to audit their I-9 forms. Employers selected for such audits received a Notice of Inspection (“NOI”) with instructions to present all original I-9 forms and supporting documents. ICE regulations require the provision of three days notice prior to conducting such an audit.

    According to a July 1 press release, ICE issued administrative NOI’s to 652 businesses nationwide (compared to 503 notices issued for the entire year of 2008). The press release also provided that ICE had identified the 652 employers as those resulting from “leads and information obtained through other investigative means.”

    Apparently, “another wave” of such audits will be coming in the “near future.”   In light of these dramatically heightened investigations, it is important that you assess the effectiveness of your compliance programs and take the appropriate steps to protect your business from potential fines and/or even criminal investigations.

    To inquire about the protections available to your business and its employees, or about the potential ramifications of these changes to you or your organization, please do not hesitate to contact us.

  • 13Aug
    H-1B Visa News Comments Off on H-1B Fraud Fee: Money Well Spent?

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

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

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

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

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

  • 30Jul
    H-1B Visa News Comments Off on H-1B Visa Usage On The Decline: Is It The Economy Or Increased USCIS Scrutiny Or Something More?

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

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

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

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

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

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

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

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

  • 30Jul
    E-Verify System Comments Off on DHS May Implement Mandatory E-Verify On September 8 While Revoking SSA’s No-Match Rule

    On July 8, the Department of Homeland Security (“DHS”) announced the Obama Administration’s intent to “push ahead with full implementation” of the final rule requiring federal contractors to use the E-Verify system to verify employees’ authorization to work in the U.S. The E-Verify rule is expected to apply to federal solicitations and contract awards government-wide effective September 8.

    At the same time, DHS announced its intent to issue a new regulation rescinding the rule establishing procedures for employers to follow up on receipt of a “no-match letter” from the Social Security Administration (“SSA”) or DHS. According to DHS, the E-Verify system will address the data inaccuracies that can result in no-match letters in a more timely manner, and will provide a more effective tool for identifying unauthorized individuals and combating illegal employment than will the SSA’s No-Match program.

    As you may recall, the implementation of the SSA’s No-Match Rule was enjoined by the Federal District Court for the Northern District of California shortly after its issuance and, as such, has never taken effect. The No-Match Rule, if implemented, would have required the SSA to include in the mailing of its no-match letters – which are sent to employers when an employee’s name and Social Security number from their W-2 do not match SSA records – a separate insert letter from DHS explaining how employers are required to resolve such discrepancies, often referred to as safe harbor procedures. It remains to be seen whether the DHS’ E-Verify System will accurately address such inquiries.

    Should you have any questions regarding your business’ present obligations with respect to E-Verify, or what, if anything, your businesss should be doing to prepare for the potential of mandatory E-Verify, please do not hesitate to contact us.

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