Empty Tank for U.S. Immigration Reform?
- July 29, 2009
- Category: Immigration
Washington, D.C. On June 25, 2009 the President, Vice President, and key cabinet members met with a bipartisan group of Senate and House leaders representing the spectrum of opinion on immigration. Since this time, we have had very little input on this issue from The White House. The official White House web site for immigration lists these two items as the new developments in immigration: The President signed the Children’s Health Insurance Program Reauthorization Act, which provides quality health care to 11 million kids – 4 million who were previously uninsured — and removes barriers preventing legal immigrant children from being covered. The American Recovery and Reinvestment Act provides over $400 million in funds to strengthen security and infrastructure for ports of entry on the Southwest border. I was interested as to why the White House put these two items as the opening items on the web page in the “Progress” section. Are these new items or developments? For the Children’s Health Insurance Program Reauthorization Act, when clicking through the various links, I saw that President Obama had signed this bill on February 4, 2009. This is hardly current news. The American Recovery and Reinvestment Act of 2009 appears to have gone into law on January 6, 2009. The DHS web link has a Policy and Guidance Memo dated May 15, 2009. The Recovery Act has its own web site as well. I see nothing of note on this site for immigration purposes. Why would the White House list these two items under the Progress section of their immigration web site? This information is both stale and dated by this point. The White House seems to want to convey a message that we are making progress on the immigration issue. However, since the June 25, 2009 meeting with Senate and House leaders I cannot find any new information on White House progress in this arena. At the risk of sounding negative, I do not see how the Obama Administration would make any progress on immigration. The Administration has commenced the Economic Stimulus Plan. This plan requires a huge financial commitment from U.S. taxpayers. President Obama recently has geared up for an all-out battle on U.S. health care reform. If health care reform were to pass (Democratic leaders in the U.S. House of Representatives reached a deal on Wednesday July 29, 2009), this would also require another huge financial commitment from U.S. taxpayers. The U.S. still has heavy military commitments in both Iraq and Afghanistan. Will the Administration have anything left in the tank for immigration? At this point, I would not bet on it. The current business immigration system has considerable flaws. We are not retaining some of the best and brightest foreign talent in our labor market. Making changes will take a broad consensus of support in both the House and Senate. After tackling the recession and health care, would the White House have enough support to make changes in the immigration system?
NOTICE TO EMPLOYERS: H-1B VISAS ARE STILL AVAILABLE
- July 1, 2009
- Category: Non immigrant visa, US Employers
As of June 26, 2009, approximately 44,800 H-1B cap-subject petitions and approximately 20,000 petitions qualifying for the advanced degree cap exemption had been filed. USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn.
President Obama Leads Immigration Reform Debate
- July 1, 2009
- Category: Immigration
Washington, D.C. On June 25, 2009 the President, Vice President, and key cabinet members met with a bipartisan group of Senate and House leaders representing the spectrum of opinion on immigration. The White House characterized the meeting as the “launch” of a policy conversation and “an honest discussion about the issues…identifying areas of agreement and areas where we still have work to do, with the hope of beginning the debate in earnest later this year.” “But what I’m encouraged by is that after all the overheated rhetoric and the occasional demagoguery on all sides around this issue, we’ve got a responsible set of leaders sitting around the table who want to actively get something done and not put it off until a year, two years, three years, five years from now, but to start working on this thing right now,” said President Obama. COMMENTARY Here is a link to the video, if you would like to view and listen to President Obama’s comments. President Obama, in this meeting stated that the immigration system is “broken” and needs “fixing.” He identified four target areas: Tighten the nation’s borders Crack down on employers taking advantage of immigrant workers Legalize status of undocumented workers Creation of a more efficient legal system I will address each of these target areas. 1. Tighten Borders: President Obama did not elaborate on how we would tighten the nation’s borders. The U.S. Customs and Border patrol has typically received the lion’s share of the budget allocation to our immigration system. Increasing this budget will likely create shortages on the benefits side of the immigration system, which has been the pattern in the past. 2. Employer Crackdowns: No elaboration from President Obama on this. My prediction is that employers who petition for an employee can expect a significantly higher percentage of audits in the future. A lot of immigration attorneys and their corporate clients are already experiencing this situation. USCIS will generate these audits for both Non-immigrant and Immigrant petitions. This is a win-win policy for the government. Cracking down on abusive employers is an honorable objective, and that pleases the voting public. Beefing up the USCIS fraud/audit division is also an employment creation system for the federal government. They have to hire more employees to generate these audits. More U.S. workers with full time jobs generally translates into successful re-election campaigns for their respective congressmen. 3. Legalize Status of Undocumented Workers: President Obama indicated that this project will take some “Heavy Lifting.” This is the true hot-button issue here. I see this as boiling down to two basic questions: Will the government create another amnesty, leading to a pathway to citizenship for the estimated 12 million undocumented workers? Will the government create a “guest worker” program? I see no way for the government to pass Amnesty. This is simply not an immigrant friendly period. We are in a recession and many U.S. workers are losing their jobs every week. Most congressmen coming up for re-election are primarily concerned with preserving U.S. jobs. Any congressman backing amnesty could face a serious backlash among his constituency. I do not see enough votes to pass this issue. Former President George W. Bush backed a similar guest worker program. The government could propose a system giving undocumented workers a temporary visa status that would grant them a work permit. With a temporary benefits program, the voting public may not feel as threatened as say a program that creates a pathway to citizenship. This program could also boost state and federal revenues on the assumption that such a guest worker might be more inclined to file income taxes. Many undocumented workers, however, already file taxes. I see some form of this program as potentially passing both houses. 4. Creation of a More Efficient Legal System: President Obama made the following announcement: “Today I’m pleased to announce a new collaboration between my Chief Information Officer, my Chief Performance Officer, my Chief Technologies Officer and the U.S. Citizenship and Immigration Services Office to make the agency much more efficient, much more transparent, much more user-friendly than it has been in the past. In the next 90 days, USCIS will launch a vastly improved Web site that will, for the first time ever, allow applicants to get updates on their status of their applications via e-mail and text message and online.” Given that I practice on the benefits side of the immigration system, I certainly support a more customer friendly U.S. Citizenship and Immigration Services. I do not see how the Administration will manage to both increase the budget for border security and also to make USCIS a more customer friendly experience. By the way, applicants have been able to get online updates on their status of their applications for several years. Perhaps it did not come in the form of receiving an email or text, but the service has existed. Applicants have been able to go to a USCIS web site and enter their case # for quite a while. It would be nice if USCIS could give more frequent updates on the case…
Immigration Changes From The White House
- May 29, 2009
- Category: Immigration, Non immigrant visa
President Obama has indicated a desire to act on comprehensive immigration reform this year, and is expected to address the issue publicly very soon. Two questions arise with regard to a comprehensive immigration reform bill from President Obama: 1. Will the White House propose a path to citizenship for the 12 million undocumented workers in the U.S.? 2. Will the White House reform or change H-1B or L-1 business visas? COMMENTARY The White House has not given clues or indications in advance on what reforms it will propose. We have the following statement to go on from the White House. “President Obama believes that our broken immigration system can only be fixed by putting politics aside and offering a complete solution that secures our border, enforces our laws, and reaffirms our heritage as a nation of immigrants. He believes our immigration policy should be driven by our best judgment of what is in the economic interest of the United States and what is in the best interest of the American worker. President Obama recognizes that an orderly, controlled border and an immigration system designed to meet our economic needs are important pillars of a healthy and robust economy.” Presidential Candidate Obama apparently had a plan outlined in February 2008: To read his plan on immigration: I tried to click this link. It is a dead end link. Therefore, all we can do is speculate at this point. AMNESTY: Amnesty to the estimated 12 million undocumented workers is an issue that is really beyond the scope of this newsletter. Many arguments exist both pro and con for a law creating a path to citizenship or some other immigration benefit for this class of people. BUSINESS VISAS: For business visas, the recession has created multiple challenges for foreign professionals. First, the shrinking economy means that foreign professional have fewer job opportunities. The shrinking economy has also created a politically charged environment that works against the foreign professional. Many senators and representatives state publicly that the creation and/or preservation of U.S. jobs is a top priority for them and the country. The debate on the economic impact of immigrants intensifies during a recession. H-1B and L-1 visa holders are a specialized category of immigrants. Only 85,000 new H-1Bs are granted to private industry each year. The numbers, compared to the U.S. work force are small, but this class of immigrants does make important contributions to the United States. Positive Effects of the H-1B: This article focuses on the brain drain effect of losing out on skilled foreign workers. In a quote, “America’s running some of its best talent out of town on a rail: Foreign-born employees with temporary work visas. So says Vivek Wadhwa, a Duke University professor and Harvard University researcher. The trend spotlights a reverse brain drain that could hurt U.S. business in years to come, hindering innovation and the launch of new companies.” Also, see the following research: This new research dispels findings of some other studies that assert H-1B and other foreign workers are paid less than American IT professionals. A class of workers with higher salaries will, in aggregate, benefit the United States. This benefit often takes the shape of higher tax revenues for the local and federal government and more spending in the local economies. What Should the White House propose? Here are my suggestions: 1. L-1 Visas: I do not see any pressing needs to change this category. 2. H-1B Visas: I would abandon the visa cap (65,000 visas and 20,000 new H-1B visas for foreign workers with a Master’s or higher level degree from a U.S. academic institution). What purpose does it serve to have such a cap? If our economy is growing, why limit this category? H-1B visa holders benefit the economy. The economy will recover and start growing. If it is growing, we are hurt in aggregate by having this cap. For example, if the economy needs 100,000 of these workers, what happens to the 15,000 or more who cannot work here? They go work for the competition: Canada, the European Union, China, etc… Some violations did occur with visa holders. I do not have a problem with USCIS sending out Requests for Evidence verifying the companies’ finances and checking the applications thoroughly. The Administration should strive to protect, and not to harm, these important business visa categories.
H-1B, L-1 Visas In Danger
- May 1, 2009
- Category: Immigration, Non immigrant visa, US Employers
Responding to growing concerns about immigrants displacing U.S. workers, assistant Senate Majority Leader Dick Durbin (D-Ill.) and Sen. Chuck Grassley (R-Iowa) have introduced the H-1B and L-1 Visa Reform Act, designed to preserve the controversial H-1B program that allows U.S. companies to hire foreign workers, but to limit its abuse. The Durbin-Grassley bill would require that before an employer may submit an H-1B application, the employer must first advertise the job opening for 30 days on a Department of Labor (DOL) website. DOL would also be required to post summaries of all H-1B applications on its website. The Durbin-Grassley bill would give DOL authority to review employers’ H-1B applications for “clear indicators of fraud or misrepresentation of material fact.” Currently, the H-1B and L-1 visa programs are criticized for making it possible for companies to hire foreign workers at lower wages and with fewer rights than Americans, in turn creating incentives for companies to avoid hiring Americans. The Durbin-Grassley bill would require H-1B and L-1 employers to pay employees the prevailing wage to ensure employers are not undercutting American workers by paying substandard wages to foreign workers. The Durbin-Grassley bill would limit issuance of L-1 visas for employees of a “new facility” to an initial period of 12 months, which can be extended after the employer demonstrates that the new facility is legitimate. The Durbin-Grassley bill would establish a process for DOL to investigate, audit and penalize L-1 employers. COMMENTARY I will address different provisions of this proposed bill. 1. INTENT OF THE H-1B PROGRAM: “Congress created the H-1B visa program so an employer could hire a foreign guest-worker when a qualified American worker could not be found,” said Durbin in a statement released today (Washington Independent: By Daphne Eviatar 04/23/09). COMMENT: I have looked through legislative history. I personally have not seen this statement in the legislative notes for H-1Bs. When Congress enacted the Immigration and Nationality Act of 1952, the H-1 nonimmigrants were described as aliens of “distinguished merit and ability” who were filling positions that were temporary. The Immigration Act of 1990 (P.L. 101-649) established the main features of H-1B visa as it is known today. Foremost, §205 of P.L. 101-649 replaced “distinguished merit and ability” with the “specialty occupation” definition. The purpose of the H-1B visa, as I read it, was to allow highly skilled workers, many of whom received U.S. educations to contribute their specialized skills to the U.S. economy. 2. PREVAILING WAGE ISSUE: “The Durbin-Grassley bill would require H-1B and L-1 employers to pay employees the prevailing wage to ensure employers are not undercutting American workers by paying substandard wages to foreign workers.” COMMENT: for H-1Bs, this is already the law. The employer must pay the H-1B employee the “required wage,” which is defined as: the greater of the actual wage level paid by the employer to all other individuals with similar experience and qualifications for the specific employment at the place of employment or the prevailing wage for the occupation in the area of employment based on the best information available. Do the senators know this? As to an L-1 visa holder, this would be an impossible standard to meet. The L-1 visa holder must be employed continuously abroad for 1 of the past 3 years by parent, branch, affiliate or subsidiary of U.S. company preceding his application for admission. Such an employee transfers over to the United States and typically makes what he made at the parent company in the country of origin with a bump-up for relocations fees, etc… Are the Senators proposing that the salary made by the prospective L-1 visa holder in the country of origin conform to prevailing wage in the United States? I do not see how legislation could require a foreign executive working outside the United States to make the prevailing wage for an equivalent position inside the United States. 3. NEW BUSINESSES: The Durbin-Grassley bill would limit issuance of L-1 visas for employees of a “new facility” to an initial period of 12 months, which can be extended after the employer demonstrates that the new facility is legitimate. COMMENT: This already is the law. Do the Senators know this? If a new office, USCIS can only approve an L-1 Visa for one year, 8 C.F.R. §214.2(l)(7)(i)(A)(3), and thereafter petitioner must show compliance with managerial/ executive standards. The Senators have not done their homework with this bill. In my opinion, they are seeking to eliminate the L and H visa categories, and not to improve upon them. I concede that the H-1B visa program has had its problems. The large software contractors have abused the system. Many, although asserting on the forms that they would pay prevailing wage, would not pay that level once the employee was here on the H-1B. The visa holders were often in weak positions with regard to their employers. One also has to consider the number of people affected by this measure. The numerical limitation on H-1B petitions for fiscal year 2010 is a maximum of 85,000. 85,000 workers is a very small percentage of our economy. This legislation would affect very few employees in the United States. However, those affected have specialized knowledge in their individual fields and make important contributions to the American economy. Can the United States afford to lose out on these valuable employees? The United States in aggregate could face a significant brain drain if bills such as these become law in the United States.
H-1B Visas In Danger?
- April 15, 2009
- Category: Non immigrant visa, US Employers
WASHINGTON – U.S. Citizenship and Immigration Services (USCIS) has announced additional requirements for employers, who receive funds through the Troubled Asset Relief Program or under section 13 of the Federal Reserve Act (covered funding), before they may hire a foreign national to work in the H-1B specialty occupation category. The new “Employ American Workers Act,” (EAWA), signed into law by President Obama as part of the American Recovery and Reinvestment Act on Feb. 17, 2009, was enacted to ensure that companies receiving covered funding do not displace U.S. workers. Under this legislation any company that has received covered funding and seeks to hire new H-1B workers is considered an “H-1B dependent employer.” All H-1B dependent employers must make additional attestations to the U.S. Department of Labor (DOL) when filing the Labor Condition Application. Commentary: Will this have a chilling effect on immigration in the United States? I will give a basic definition of what it means to be an “H-1B dependent employer”: Companies deemed to be “dependent employers” or “willful violators” have special attestation requirements including that they have made good faith efforts to recruit U.S. workers. Many H-1B employers face pressing demands, both for their time and on their budgets, for filling vacancies. One of the advantages to the H-1B program was that an employer that needs to rapidly fill a position, would not have to recruit U.S. workers, assuming the company is not an H-1B dependent employer. If H-1B visa numbers were available, the company could then fill the position rapidly with a trained foreign professional. This was good both for the company and for the economy in aggregate. A company receiving TARP funding may not have the resources to recruit U.S. workers. Given that H-1B potential applicants have specialized knowledge in their fields, it may be very difficult or much more expensive to find U.S. workers with these skills. The Los Angeles Times on April 1, 2009, posted an article related to this subject. The article references a hospital administrator in the Imperial Valley. This administrator stated that while he was waiting for more visas for nurses, he had to hire nurses from other states. These nurses were commanding twice the pay of foreign hires. H-1B visa holders, as a reminder, must make the prevailing wage for their positions. The U.S. workers in this situation, were commanding wages significantly higher than what the government sets as prevailing wage for the position. One also has to consider the number of people affected by this measure. The numerical limitation on H-1B petitions for fiscal year 2010 is a maximum of 85,000. 85,000 workers is a very small percentage of our economy. This legislation affects very few employees in the United States. However, those affected have specialized knowledge in their individual fields and make important contributions to the American economy. Can the United States afford to lose out on these valuable employees?