A recent report issued by the Institute for the Study of Labor in Bonn, Germany compared H-1b employees to native workers in regards to age, salary, and education level.  This study, called H-1bs: How do they stack up to US Born Workers, noted that the H-1b visa system is often criticized for harming opportunities for native workers and allowing employers to take advantage of H-1b employees.  However, the study found that H-1b workers on average are younger and more highly educated than U.S. born workers. In addition, they earn a salary that is comparable, if not higher, than the amount earned by native workers.  To reach these conclusions, the authors obtained data on individuals from USCIS for 2000 to 2010 through a Freedom of Information Act request.  This data was compared to the information provided about U.S. born workers in the American Community Survey: 2009.  The report confirms that H-1b workers come to the United States with an advanced level of education, earn high incomes, and participate meaningfully in the U.S. workforce.

The DOS recently published a final rule changing the way it would determine the validity dates it would issue for an L-1 visa. L visas will now be issued with validity periods based on the visa reciprocity schedule. The prior  rule limited L visas to the petition validity period, as shown on the I-797 approval notice issued by the USCIS.

Don’t believe the rhetoric that is coming from USCIS officers and the corn fields of Iowa claiming that immigration officials are being too lenient and being pressured into issuing unwarranted approvals. The truth lies in the numbers. A recent report from the NFAP,  provides facts (those are statements that are true and not inventions of one’s mind) about the denial and RFE rates experienced by employers trying to petiton for H-1b, L, and O workers over the past few years.  While the White House advocates for an immigration policy that attracts and retains highly skilled professionals and entrepreneurs and the DHS issues press releases touting its efforts consistent with that policy, the rank and file USCIS officers are beating to a different drummer.  The facts don’t lie, even if they don’t play well in the heartland.

Several HLG attorneys attended the DHS Ombudsman open forum on L-1b petitions.  At some point in the future, an official summary will be posted on the Ombudsman web-site. Until then, below are some items of interest. The DHS acknowledged that there has been a tremendous narrowing of the interpretation of the definition of “specialized knowledge” without any statutory or regulatory changes. The denial rates for L-1b petitions have now risen to 27% whereas, it had never exceeded 7%  prior to 2008. The rate of denials is much higher for IT petitions. The RFE rate has now reached over 66%. The DHS also acknowledged inconsistent treatment of petitions between the 2 service centers with the California Service Center having higher denial rates.  It was speculated that the standard being used by the service centers stems from a 2008 AAO case, GST which many scholarly experts have posited is possibly the most legally defective decision to ever be issued by an administrative law judge. The essential point of the GST opinion was that “if everyone is specialized, no one is specialized” Although, the merits of this policy remain without legal support, the reality is that this is the current policy being applied by the USCIS.   The Ombudsman office acknowledged that new training materials were provided to the USCIS in Oct of 2011 however, to date, the USCIS has refused to release those materials. The Ombudsman office re-affirmed that new L-1b guidance was being developed by USCIS headquarters however, no timetable was provided for the release of such guidance. Overall, it was an excellent session and it was heartening to have a DHS official listen and accept input from stakeholders. We applaud the efforts of the Ombudsman’s office and look forward to closer scrutiny of the USCIS service centers treatment of  L-1b petitions.

On January 23, 2012, the United States Court of Appeals for the Third Circuit issued a decision in Edwards v. Geisinger Clinic.   In this case, Dr. Philip Edwards, a licensed physician from the United Kingdom, argued that the at-will employment clause in his employment agreement with Geisinger Clinic was not valid.  Instead, he stated that this contract guaranteed that he would remain employed by the Geisinger Clinic for at least three years because this was the time requested by the Geisinger Clinic when it petitioned for his H-1b.  The Third Circuit rejected this argument.  It noted that “sponsorship of an H-1b visa alone does not imply that the employer-sponsor has guaranteed employment for the visa’s duration.”  Thus, an organization that sponsors an employee for an H-1b does not have a duty to employ the beneficiary throughout the duration of the H-1b validity period. Dr. Edwards other arguments also failed and the Third Circuit dismissed this appeal.  The immigration effects of having an at-will employment agreement versus an express employment agreement can be crucial.  The Hammond Law Group is always happy to help explore this topic.

On December 20, 2011, the Administrative Review Board (“ARB”) of the Department of Labor decided In Matter of University of Miami . In this case, the University of Miami submitted a petition for a H-1b worker who would perform as a clinical anesthesiologist. When the doctor arrived in the United States, the University of Miami told her that she must obtain a social security card before beginning employment. The doctor received the social security card and informed the University that she was ready to begin working. Due to issues regarding the offered position, the doctor’s employment was terminated. However, U.S. Citizenship & Immigration Services (“USCIS”) was not notified for more than four months. The ARB determined that the time that the doctor spent trying to obtain a social security card was involuntary non-productive time. Consequently, the University was ordered to pay backpay for this period. In addition, the ARB stated that the doctor’s termination only became effective on the date that USCIS was notified. Thus, the University was also liable for backpay from the date of actual termination until the date that USCIS received notification. This case should remind all employers that they risk being held liable for backpay if they create requirements that an H-1b worker must fulfill before starting work and if they fail to alert USCIS to a H-1b worker’s termination. If you have any questions regarding these types of issues, please contact the Hammond Law Group.

The CBP released a statement on its procedures for handling L petitions under NAFTA.  Our experience is that CBP officers have a far greater grasp of the L regulatory standards and far less of a political agenda  than their US Consulate brethren and that well-prepared L petitions are met with routine approval at the border.

On Jan 12th, Mike Hammond will be one of the speakers for a webinar event being sponsored by TechServe Alliance . The topic will be  ”Utilizing H-1Bs within Your Contingent Workforce: Understanding the Changing Landscape” The webinar is offered to TechServe members only.

We knew it couldn’t last and we are sad to report that the US Consulates in Canada have now joined their brethren from Posts in India and Manila in determining that it is their duty as red-blooded Americans to re-adjudicate every issue in an H-1b petition before issuing a visa. The US Consulates are re-adjudicating issues relating to itinerary requirements, Labor Condition Applications, short-term placement rules, employer-employee relationship,  the rule of control and supervision created by the Neufeld policy memo, and the validity of employment contracts to name their favorite topics. Attached is the latest emailbeing sent by the US Consulate in Ottawa to end clients (or at least who it perceives to be end clients). The practice of re-adjudication of petitions previously approved by the USCIS is not supported by the regulations but, is being done under the guise of fraud prevention. Errors in interpretation and/or mis-application of DOL and USCIS regulations and case precedent go unchallenged since US Consulates enjoy the protection provided by the doctrine of non-reviewability. It is time for Congress to re-examine this doctrine and allow employers and foreign nationals who are wrongfully denied a visa to go into a Federal Court and obtain redress. Only with the threat of  an impartial judge reviewing their actions will the US Consulates stop the witch hunts and follow well-established law and procedure.

Many people are wondering what caused the H-1b cap to be reached so much more quickly this year. Information that the cap would be met in November, two and a half months earlier than past years, caused many employers to scramble to submit petitions. At the Hammond Law Group, we believe that there are several reasons why the cap was reached at an earlier date. Perhaps most obviously, IT industry groups, such as TechServe Alliance, have noted consistent increases in hiring throughout this year. As a result, many IT organizations submitted an increased number of H-1b petitions this year for foreign workers who they hoped would fill these positions. In addition, the U.S. Consulates in India are denying a large amount of the L-1 visas. By decreasing the amount of L-1 visas available to Indian personnel, many organizations have resorted to using the H-1b visa to ensure that their personnel are able to enter the United States and work. Finally, Department of Homeland Security Secretary Napolitano and U.S. Citizenship and Immigration Services Director Mayorkas announced on August 2, 2011 that foreign entrepreneurs could use non-immigrant and immigrant visas to obtain status in the United States. It is possible that a number of H-1b visas were absorbed by foreign entrepreneurs. While all of these reasons likely contributed to the quick rate at which the H-1b visas were used up, we believe that the high rate of denials of the L-1 visa at U.S. Consulates in India and the increased hiring occurring in the IT industry caused the cap to be reached at an earlier date.