Immigrants help drive job growth !

Posted by MikeHammond on December 28, 2011 in US Immigration Policy

In spite of claims by protectionists (read Senator Grassley), the facts support a claim that immigrants contribute in a major way to US job growth. The NFAP released a recent study touting said facts. Now if only my copy to Senator Grassley’s staff would be read instead of being used as litter box filler, maybe we could see some rational pro business, pro job growth immigration bills get  fair  consideration.

US Consulates in Canada join in on the fun !

Posted by MikeHammond on December 14, 2011 in US Immigration Policy,Visas - H-1b, L-1, E, O, TN

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.

EB2 dates leap ahead like Superman !

Posted by MikeHammond on December 13, 2011 in Green Cards,US Immigration Policy

In the January Visa Bulletin released by the DOS, EB2 numbers for India and China moved ahead over nine months making priority dates current for all of 2008 and before.  It is interesting to note the Bulletin’s comments on the relatively few new I-485′s that have been filed in recent months in spite of the rapid forward movement of dates. I bet if they go ask anyone who had a vacation planned but then cancelled in the summer of 2007, they could explain it to them.

Why was the H-1b cap reached so early this year ?

Posted by Cadence Moore on December 7, 2011 in Visas - H-1b, L-1, E, O, TN

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.

Happy Holidays ! New Fees from the DOS !

Posted by MikeHammond on in Government Agency Actions - USCIS, ICE, etc.,Visas - H-1b, L-1, E, O, TN

In what has become a holiday tradition, a government agency has announced a fee increase. This time the DOS has published a new schedule for fees applicable to visa issued at Consular posts.  If only we could be assured that the Post would apply the law, paying increased fees would not be so bad but, alas, that is but wishful thinking on our part and as likely to happen as Santa coming down a chimney delivering presents !

Good news for retrogression :) kinda :(

Posted by MikeHammond on November 30, 2011 in Green Cards,US Immigration Policy

Last night, the U.S. House of Representatives passed H.R. 3012, the Fairness for High-Skilled Immigrants Act by an overwhelming vote of 389-15. This bill would change the way employment-based (EB) green cards are allocated by eliminating the per country quotas. If the bill becomes law, it will equalize the waiting times for employment based permanent residence, which would result in significant advancement in EB green card availability for India and China. Unfortunately, it would also create retrogression for persons from other countries, specifically those in the EB2 category, who now enjoy a “current” status. The seven percent limit per country would be eliminated by 2015. Instead of separate queues for each country in each employment based green card category, there would be eventually be a single queue for each employment-based green card category.

Until 2015, per-country limits on green cards would still exist, but a certain number of immigrant visas would be immediately allocated to India and China and away from other countries. As a result, priority dates for India and China would quickly advance in the EB-2 and EB-3 categories. However, for other countries EB-2 could retrogress and EB-3 could see further retrogression. By 2015, the EB-2 and EB-3 categories would all be backlogged, but there would be a single priority date for all countries in each category.

Although, certainly not a perfect solution, this bill is a step in the right direction and corrects one glaring defect in the employment based green card system. It is hoped that the positive reaction that this bill received in the House would motivate other immigration bills including: special treatment for STEM and Schedule A occupations, an overall increase in the level of employment based immigration, the elimination of counting dependents toward the overall EB quota, a re-capture of unused immigrant visa numbers from prior fiscal years, and/or a market based approach to the H-1b quota.  As this bill is considered by the Senate, it is hoped that further positive amendments could be added.    

The bill will not become law until it passes the Senate and is signed by the President.  We expect the Senate to take up this bill soon however, no time table has been set. We will keep you updated as developments occur.

Now What ?????

Posted by MikeHammond on November 28, 2011 in US Immigration Policy,Visas - H-1b, L-1, E, O, TN

With the H-1b quota exhausted last week, my morning has been filled with stories like;  We promised this person a job and they have already planned on moving ? But, this project depends upon me getting this new candidate on board ? I already promised the client ? All of these questions, can be summed up by “now what?”  For many situations, unfortunately, there may not be any viable alternatives however, each case should be analyzed to determine if there are options available. The following may be viable scenarios: 1. Make sure your candidate is not cap-exempt by virtue of a prior H-1b, maybe even many years ago 2. Consider alternative visa options such as the O or L 3. Consider  whether your candidate can extend their OPT via a STEM extension 4. Consider whether your candidate can return to school and be authorized for employment under a CPT program 5. Consider the spouse of your candidate and whether or not their occupation offers any options for employment eligibility 6. Consider any residency options 7. Consider off-shoring your project until Oct 2012 In addition, make sure you contact your esteemed member of Congress and let him or her know the negative impact the H-1b cap has on your business. They will not listen but, you will feel better by making the effort.   

Also, keep in mind that many H-1b petitions are not subject to the H-1b cap. These include:  1. H-1b extensions for your own employees 2. H-1b transfers i.e. new employees joining you who currently have an H-1b with another company 3. H-1b petitions filed by cap-exempt organizations 4. Persons who have previously been counted under the cap and not yet exhausted a full 6 years in the U.S.  

Filings for Fiscal year 2013 can be mailed in only 124 days !

Change in Blanket L procedure for Indian cos.

Posted by MikeHammond on November 23, 2011 in Visas - H-1b, L-1, E, O, TN

Effective Dec 1, 2011, all Blanket L petitions in India must be filed with the U.S. Consulate in Chennai.

H-1b Cap reached ?????

Posted by MikeHammond on November 22, 2011 in Visas - H-1b, L-1, E, O, TN

The USCIS announced today that as of Fri. Nov 18th, 61,800 H-1b cap subject petitions have been received. In all likelihood, sufficient petitions have already been received to exhaust the remaining 3,200 but, no official announcement has been made.

NFAP Data Should Draw Ire from the Obama Administration

Posted by MikeHammond on November 19, 2011 in US Immigration Policy,Visas - H-1b, L-1, E, O, TN

Recently the NFAP released a report based upon data received from the Department of State that showed visa approvals for multi-national cos. from India had declined in 2011 by almost 30% while during the same time-frame, the approvals for non-Indian based cos. had risen by over 15%.  At a time when the U.S. economy needs job growth and a larger tax base and President Obama is regularly promoting the need for our immigration policies to encourage international commerce and entrepreneurs, it is most unfortunate that the US Consulates in India have chosen to ignore the directives of President Obama and instead apply policies that require Indian owned cos. to go above and beyond the requirements imposed under exisitng law and legal precedent and essentially meet “super-tests” to achieve approvals. One could charge racism and discrimination or the advancement of isolationism but, frankly, I’m of the opinion that the real issue is a culture that is pervasive  at the US Consulates and the USCIS Service Centers which permit officers to modify their roles from adjudicators into policy-makers and as a result, they have elevated their own policies and prejudices over that of the positions of President Obama, USCIS Director Mayorkas, and Sec. of State Clinton, and to anyone who cares about the rule of law, even more importantly, over the laws enacted by Congress and the case precedents established by Federal Courts. Unfortunately, the notion that government agencies should follow the law is a foreign concept today to the detriment of the US economy.