 |
|
 |
 |
 |
|
 |
|
 |
|
 |
|
 |
|
 |
|
 |
|
 |
|
 |
|
 |
|
 |
|
 |
|
 |
|
 |
|
 |
|
 |
|
April 4, 2007 Newsletter Dear Clients and Friends: At this firm, we named Friday, March 30, 2007, as “H-1B Filing Frenzy Day.” We were compelled to file our H1B cap-subject cases under a very unyielding, pressurized deadline precisely so that we could position our clients’ H-1B filings most favorably for approval, given our expectation that the 65,000 H-1B numbers for cap-subject petitions would be used up quite quickly. In reality, our worst fears came to true in that the U.S. Citizenship and Immigration Services (USCIS) announced that the H-1B quota had been met as of April 2, 2007, which was the earliest date on which the Service could process H-1B cap-subject petitions for Fiscal Year (FY) 2008. By the Service’s own count, it has received in excess of 150,000 cap-subject H-1B Petitions, meaning that even timely filed H-1B Petitions are now being put into a lottery for random selection. As a consequence, our firm in one day filed 85 cap-subject H-1B Petitions, requesting immigration/employment authorization for our clients starting October 1, 2007. I surmise that this filing of voluminous H-1B Petitions was repeated by various other law firms throughout the United States, meaning that the H-1B numbers were depleted in very short order. Therefore, employers missing out on this H-1B filing deadline will need to either forego entirely the employment of critically needed foreign professionals or scramble for some type of patchwork solution. My purpose in leading off this Newsletter with this H-1B saga is not merely to broadcast our success in filing a large quantity of new H-1B Petitions in a timely, effective manner, but rather to highlight the single, most overriding reality in employment-based immigration law today: The quantity of available immigrant and nonimmigrant visa numbers is clearly and absurdly deficient to meet the legitimate needs of the United States in retaining and enhancing our competitiveness in a globalized world. In this forthcoming period of time, the Congress will either need to address forthrightly this numerical deficiency as part of a comprehensive or piecemeal approach, or simply choose to ignore this looming immigration crisis to the detriment of our legitimate national welfare. So, let’s take a quick look at some of the major issues that exist today on the immigration horizon. STRIVE ACT: COMPREHENSIVE IMMIGRATION REFORM In light of the widely held view that our immigration system is in need of serious repair, a bi-partisan initiative spearheaded by Rep. Luis Gutierrez (D-IL) and Rep. Jeff Flake (R-AZ) was introduced in the House of Representatives on March 22, 2007. The bill’s official name is The Security Through Regularized Immigration and a Vibrant Economy (STRIVE) Act of 2007 (HR 1645). We expect to see a fairly similar proposal introduced on the Senate side, but thus far the leadership has yet to formulate a legislative proposal. Essentially, the STRIVE Act is an initiative aimed at enacting Comprehensive Immigration Reform, meaning that it addresses the three central pillars of a workable immigration system: 1) border security (keeping out “illegal aliens”); 2) internal enforcement (enhancements in the apprehension and removal of foreign nationals) and 3) benefit reform (reengineering of the temporary and permanent visa system and initiatives to address and clear up our nation’s unauthorized foreign national population). The essential, underlying premise of Comprehensive Immigration Reform is that enlargement and rationalization of our immigration benefits program – in particular, clearing up the increasingly long backlogs – would remove much of the pressure that realistically (although perhaps not justifiably) leads many foreign nationals to illegally enter the United States or to violate the terms of their immigration status. The STRIVE Act contains seven titles addressing the following areas in need of immigration reform: 1. Border enforcement; We will analyze in greater detail in a future Newsletter these provisions, particularly as the respective Congressional subcommittees actively take up this issue. However, the readership of this Newsletter should be informed and, as desired, should make their views known to their Congressional representatives on the issue of Comprehensive Immigration Reform, particularly given the fact that the current state of affairs negatively impacts so many of our business clients. H-1B VISA SITUATION As noted in the introduction to this Newsletter, the H-1B quota was filled on April 2, 2007, which was the first day on which USCIS can accept new H-1B Petitions. Once this quota has been met, new petitions that are subject to the H-1B quota cannot be approved until October 1, 2008, unless the Congress affirmatively acts to increase the H-1B cap. To say the least, this gross inadequacy in the quantity of H1B visa numbers is an absurd, frustrating situation, but absent Congressional action, one that needs to be addressed by the business community. Under current law, there is an additional allotment of 20,000 H-1B visa numbers that are dedicated solely to foreign nationals who hold Master’s Degrees from U.S. universities. But even here, we expect that this Master’s Degree subset will be exhausted well before the end of April. On a generic basis, let me share with you our own analysis in determining how to handle requests for employment-based visas once the H-1B visa cap has been met. First, not all H-1B Petitions are subject to the quota. Therefore, our initial line of inquiry is to determine if a particular case might qualify for an exemption from the H-1B quota. The most common situations for cap-exemption are the following: 1. The employer is an institution of higher education (generally, a university) or a nonprofit entity that is related or affiliated to an institution of higher education; Second, a major and highly frustrating situation occurs when we receive inquiries from H-1B aliens currently working within a university setting who desire to go into the private sector. In such instances, the second H-1B filing from the private sector employer subjects the foreign national to the H-1B cap, since the H-1B alien while working within the university has not been counted against the quota. However, the law contains a slight escape valve in situations of “concurrent employment.” Specifically, if the foreign national continues to work within the university (i.e., cap-exempt) entity, presumably on a part-time basis, the for-profit (i.e., cap-subject) company could then derive cap-exempt benefits through the filing of a concurrent H-1B Petition allowing the alien to work for the balance of the part-time employment. The law does not contain any provision on the minimum number of hours that need to be spent at the cap-exempt entity, other than it needs to be a legitimate job opportunity. This is one way to structure a case, which, although perhaps not optimal, would confer cap-exemption on an otherwise cap-subject company. Third, there are some special nonimmigrant alternatives available for foreign nationals of certain countries, to wit: Canada and Mexico (TN); Australia (E-3); and Chile and Singapore (special H-1B1). Each of these alternatives provides essentially the same benefits as the H-1B – that is, a generally time-efficient pathway to employment-based immigration rights granted for a temporary period of time. We have also become increasingly more assertive in analyzing alternative temporary, nonimmigrant visa classifications for other foreign nationals, such as: the J-1 Exchange Visitor classification for certain business personnel (generally, trainees); the O-1 visa for “aliens of extraordinary ability”; the E-1/E-2 option for certain investors and business personnel conducting extensive bilateral trade; more creative utilization of employment authorization available to students; and L-1 options for qualifying employees of foreign companies seeking to establish or maintain their business presence in the United States. Fourth, in some instances, we would forego entirely the nonimmigrant process and move straight to permanent resident status. In certain situations, particularly for foreign nationals possessing preeminent or outstanding abilities in their professions or working in endeavors that potentially benefit the United States, it is possible to avoid entirely any type of recruitment/advertising effort, and instead to file a request for permanent residence directly to U.S. Citizenship and Immigration Services. In such instances, it may be possible to move a case for permanent residence through the system rather quickly, as well as to provide our clients with employment permission in a highly time-efficient manner. Even in cases requiring Labor Certification Applications, the PERM process is going rather quickly, and in many instances, we have been successful in obtaining employment authorization for permanent resident cases within roughly a 6-9 month timeframe, which, with advanced planning, can serve the needs of our clients. Fifth, ultimately, we begrudgingly acknowledge that there is not a magic panacea for all immigration cases. In some instances, there may not be a suitable strategy responsive to the needs of both the employer and the foreign national. In such instances, we try to explain forthrightly our legal conclusions, which at least will give all parties the planning tools to make alternative arrangements. NATIONAL INTEREST WAIVERS FOR PHYSICIANS Owing to the serious maldistribution patterns of physicians, broad areas of the United States are medically underserved. The Congress sought to address this situation by conferring National Interest Waiver entitlement to physicians who choose to work for five years in designated medically underserved areas. This National Interest Waiver approach provides a streamlined, generally time-efficient pathway to permanent residence, principally by enabling the alien physician (rather than the employer) to serve as the immigration sponsor, and by eliminating any type of further recruitment/advertising obligation. The Congress initially created the National Interest Waiver alternative in 1990, and then enacted special physician-related provisions in 1998. But in the implementation of the statutory directive, the legacy Immigration and Naturalization Service (INS) enacted certain highly restrictive provisions that excluded specialty care physicians from National Interest Waiver entitlement and set up certain additional disincentives for pursuing this National Interest Waiver option. As a result of a judicial decision entitled Schneider v Chertoff, U.S. Citizenship and Immigration Services issued a Memorandum on January 23, 2007, that modified and enlarged the scope of National Interest Waiver eligibility for physicians. In my own opinion, this modification brings Service policy into greater alignment with Congressional intent. The major enlargements resulting from this Memorandum are: 1) availability of National Interest Waivers to physicians practicing in specialty medical disciplines rather than solely primary care positions; 2) recognition by the Service of all periods of a physician’s lawful employment in a medically underserved area as counting toward fulfillment of the mandatory five-year service obligation, rather that adherence to the previous policy of disallowing certain periods of employment services; 3) elimination of an artificial, mandatory six-year limit within which the five-year service obligation needs to be completed; 4) an unequivocal statement accepting the ability to concurrently file an I-485 Adjustment of Status Application even during the three-year J-1 service obligation; and 5) an enlargement of qualifying areas to include not just the Health Professional Shortage Areas (HPSA) and Medically Underserved Areas (MUA), but also to include areas designated as Physician Shortage Areas (PSA). PROCESSING FOR FAMILY-BASED IMMIGRATION Statistically, roughly 80% of immigration to the United States occurs under family sponsorship, and even here, the majority of such cases fall within the “Immediate Relative” classification. The term “Immediate Relative” refers to immigration based upon the sponsorship by a U.S. citizen who is the foreign national’s spouse, grown child, or parent. Such familial relations are considered to be so important that they are not subjected to any type of numeric limitations/quota. Rather, in the interest of family reunification, such foreign nationals are afforded a more immediate pathway to permanent residence. The exemption from quota-based backlogs does not exempt such immigration cases from bureaucratic delays in processing their immigration cases. Many such cases need to be filed to U.S. Citizenship and Immigration Services, which literally can take months in reviewing and adjudicating the sponsorship petition of the U.S. anchor relative. If the foreign national happens to be living abroad, the alien then needs to process for a visa through a U.S. Consulate, generally located in the home country. For years, U.S. Consulates have assumed full jurisdiction for processing Immediate Relative cases, meaning that many U.S. anchor relatives could file their I-130 Immigrant Visa Petitions along with their relative’s own application for an immigrant visa. Many Consular posts were able to process such cases quite quickly, thereby avoiding delays in the reunification of families. This past January, the U.S. Department of State announced that Consulates would no longer process such I-130 Petitions, owing to certain inadequacies in performing the required additional screening of the petitioning relatives as required by a law known as the “Adam Walsh” Act. Rather, such cases would need to revert to a more antiquated, inefficient processing system that would require USCIS clearance of the sponsoring petition, transferal of the file to the U.S. Department of State, and the ultimate adjudication/processing of the beneficiary family member through a U.S. Consulate abroad. On March 17, 2007, the Department of State reinstated Consular processing of I-130 Petitions, although it imposed a requirement that the U.S. anchor relative needs to reside abroad in the Consular district. The standard for meeting this residency requirement is that the U.S. citizen petitioner needs to have resided legally within the Consular district for at least six months. Furthermore, legal residence must be maintained in a non-temporary status, thereby eliminating the ability of students and tourists to sponsor their immediate relatives through Consular processing. EMPLOYMENT-BASED BACKLOGS – THEY KEEP GROWING AND GROWING AND GROWING . . . Three years ago, if you wanted to point the finger and blame someone for why it took so many years to get a green card, you could point to the backlogs at the Department of Labor (DOL). Depending on the state in which the job was located, getting a Labor Certification approved could take from six months to three years or more. Overall, the backlog of Labor Certification cases grew to a staggering 366,000 cases at its worst, and this bottleneck left tens of thousands of available green cards (“immigrant visa numbers”) unclaimed within the USCIS system since employers were spending so much time and effort fulfilling the recruitment and advertising obligations of the DOL. The elimination of the Labor Certification backlog has its ups and downs. On the one hand, this first critical stage of the Permanent Residence process for most foreign workers now is completed faster than ever before. On the other hand, it has resulted in a glut of new cases falling into the jurisdiction of USCIS with the result that the sheer number of new cases has vastly exceeded the 140,000 employment-based immigrant visa numbers allotted by Congress. This number is further reduced by the fact that spouses and children are counted against the 140,000 limit. That means that a worker with a wife and two children requires four green cards (“immigrant visa numbers”), not just one green card. The 140,000 cap is an artificially low amount when considered in light of the fact that more than triple that number of immigrants are allowed into the country based on family sponsorship. The effect those family-based immigrant workers have on the wages of U.S. workers is not viewed as detrimental, but the artificially low cap of 140,000 employment-based green cards is based on the argument that allowing in more foreign workers could harm U.S. worker wages. In its first year, PERM generated over 80,000 approvals, and a similar pace of filings continues this past year and into the future. Adding to that furious pace of Labor Certification approvals, if even half of the 366,000 backlogged RiR and traditional Labor Certifications are approved, that adds up to roughly 250,000 new cases that are passed along for processing to USCIS. The bottom line is that there are not nearly enough green cards available for the number of foreign workers whose employers want them to get green cards. This fiasco is reflected on the monthly Visa Bulletin published by the U.S. Department of State (DOS). A sponsored worker’s place in line (their “priority date”) is determined by the date the Labor Certification Application was filed. Right now, only those workers whose Labor Certification was filed on or before August 1, 2002, are able to file their I-485 Application for Permanent Residence or to have a pending I-485 approved at this time. Perhaps even more troubling is the fact that the cut-off date has remained stuck there for more than four months and shows no signs of moving forward any time soon. In the end, it is clear that if Congress really favors employment-based immigration as a way to keep American companies competitive, it will need to pass legislation such as the STRIVE Act that will greatly increase the number of employment-based green cards, or ideally even remove the cap entirely and allow the market to decide in any given year how many companies should be allowed to have their temporary employees become Permanent Residents. DEVELOPMENTS AT THE FIRM As the spring slowly breaks into the cold Minnesota climate, our firm again readies itself under the guiding leadership and managerial genius of Attorney Elise Brozovich for participation in the Minnesota State Bar Association (MSBA) Softball League. Last year, our team looked resplendent in our softball jerseys, replete with the firm’s logo, although we consistently lost all our games, leaving many an opponent to walk off the filed shaking their heads and exclaiming, “This firm must be comprised of really smart people and great lawyers because they really are quite inept at softball.” Frankly, I have some fears that some of the firm’s new hires and their spouses might be quite athletically adroit, leading to some plausible expectation that we might this year attain softball respectability. I will take the liberty of informing our readership of our wayward progress, but I do want to assure you that any modicum of softball success does not reflect upon any diminution in our legal acumen or jurisprudential excellence. Our attorneys continue to receive indications confirming their prominence in the field of immigration law. Our Senior Associate Attorney, Dinesh Shenoy, recently returned from giving a presentation in Miami to a major professional conference on new, cutting-edge H-1B development, and he will be making a presentation at the Annual Conference of our professional association on Employer Considerations in Hiring Foreign Nationals. Dinesh also continues to serve as a mentor to other immigration attorneys nationwide in various aspects of the law. Piyumi Samaratunga is attaining a position of professional prominence in our community as she somehow balances successfully professional attainment, communal commitment, and family obligations. Elise Brozovich has become an acknowledged expert in the law of Labor Certification practice under the PERM system, and her opinions are recurrently sought in this area of the law. Sarah Stensrud recently made a well-received presentation to the local chapter of our professional association on dealing with the H-1B cap, and the recently published article in which she was lead author entitled “What Does it Mean to be Admitted to the United States” serves as a major contribution in explaining the admissions process. Salima Khakoo currently works in the firm on a part-time basis as she fulfills a three-year commitment to her faith community aimed at creating a pro bono legal and social service network to the American Muslim community. She also recently chaired a daylong seminar program in the Twin Cities on various immigration enforcement issues. This summer, we will welcome two new attorneys to our staff: Michelle Eaton, a former legal assistant at the firm who will graduate with honors from Marquette Law School, and Sandra Perrin, a current law clerk who is graduating with honors from the William Mitchell School of Law. I will again chair the plenary session at this year’s Annual Conference of my professional association on Immigration Developments for Foreign Physicians. I recently completed speaking engagements in Las Vegas and San Diego that enabled me to dialogue with professionals dealing with the changing face of immigration law for physicians. I have been quite active in lobbying for Comprehensive Immigration Reform as the chair of the Public Policy Committee of the Hebrew Immigrant Aid Society (HIAS), and will be leading a delegation to Washington, D.C. to meet with Administration and Congressional leaders on this and related issues. But above all, the salient, indelible memory of this recent period for me will be of our collaborative efforts in the preparation and filing of our cap-subject H-1B Petitions in a time-constrained, pressurized situation. Had you been witness to the event, you would have been struck by the degree of collaboration and dedication that exists among the professionals of this firm. As the Managing Director, I can only give full acknowledgement to the efforts of the professional staff for the attainment of client objectives in a timely, caring, and professional manner. As always, please feel free to contact us with any questions or concerns on any aspect of immigration law. We look forward to hearing from you. Cordially, ROBERT D. ARONSON This memorandum is one of a series of communications prepared as a general public service to our clients and friends. The information herein presented is not intended nor should it be utilized as legal advice on any specific situation. Furthermore, given the rapid pace of change, the veracity of this information is constantly subject to modification and/or reversal. Rather, this piece represents a good faith attempt to orient clients and other interested parties served by Aronson & Associates to current immigration developments. This piece in no manner supercedes the need to seek competent legal advice when engaged in activities carrying possible immigration-related consequences. |
Aronson & Associates, P.A. |