Don’t Forget Skilled Workers Who May Have to Wait For A Few Centuries Before Getting the Green Card

Hillary Clinton’s acceptance speech was so warm and embracing of immigrants when compared to Donald Trump’s acceptance speech a week earlier. These were some of her key remarks on immigration:

We will not build a wall. Instead, we will build an economy where everyone who wants a good-paying job can get one. And we’ll build a path to citizenship for millions of immigrants who are already contributing to our economy. We will not ban a religion. We will work with all Americans and our allies to fight terrorism.

I believe that when we have millions of hardworking immigrants contributing to our economy, it would be self-defeating and inhumane to kick them out.

Comprehensive immigration reform will grow our economy and keep families together – and it’s the right thing to do.

Compare these words to Trump’s speech when he only spoke about how immigrants would bring doom and gloom, and thundered that “nearly 180,000 people with criminal records ordered deported from our country are tonight roaming free to threaten peaceful citizens.”

All this is so refreshing and noble when Clinton speaks about building a path to citizenship for millions of immigrants, enacting comprehensive immigration reform and not profiling a group of immigrants solely because of their religion. However, not a word was said about skilled immigrants who are already in the pipeline for a green card, but for the fact that their priority dates have not yet become current. Most of these skilled immigrants were born in India and China who are caught in endless backlogs because of a limited supply of green cards each year set by Congress in 1990, and further stymied by annual caps for each country. We hope that Clinton also would include these immigrants in her forthcoming speeches referencing immigration, who have always been legal and are employed in good paying jobs, as part of comprehensive immigration reform.

David Bier at the Cato Institute has emerged as a fresh and new scholarly voice on immigration. It has always been known that an individual who got sponsored by an employer today in the India employment-based third preference (EB-3) would need to wait for about 60 years before he or she got the green card. In Bier’s new report, No One Knows How Long Legal Immigrants Will Have To Wait, he calculates that there are “somewhere between 230,000 and 2 million workers in the India EB-2 and EB-3 backlogs, so they’ll be waiting somewhere between half a century and three and a half centuries. It is entirely possible that many of these workers will be dead before they receive their green cards.” Ironically, if these workers, by some stroke of luck were able to file I-485 applications in the past, such as the class of 2007 adjustment applicants, their children whose age was artificially frozen below 21 under the Child Status Protection Act will be mature adults before they can immigrate with their parents as “derivative children”. On the other hand, if a child’s age could not be frozen through the filing of an adjustment of status application in past years when the priority date may have become current, they will not be able to remain “derivative children” under the CSPA in the unlikely event that their parents may qualify for green cards in their life time and if the children are still alive.

It is readily obvious that Congress needs to infuse a greater supply of green cards each year in the EB categories, and even lift the country limits, as countries like India and China get more adversely impacted than Lithuania or Finland. While it is desirable that Congress fix this problem immediately, we know that Congress is mostly paralyzed at present. However, one should at least be giving these unfortunate skilled workers top priority in any comprehensive immigration deal if Clinton becomes president and can achieve her stated goal to implement reform within the first 100 days of her presidency. Trump, on the other hand, with his America first policy may be more inclined to curb legal immigration rather than fix it, leave alone expanding it.

While different groups of immigrants justly advocate for expanded immigration benefits, it is important that they all remain united. It may be tempting for skilled legal workers to only seek immigration reform for their group as they have been legal while undocumented immigrants broke the law. However, it is not that undocumented people choose to remain undocumented. They too want to become legal but the current immigration system does not provide adequate pathways for different categories of immigrants to become legal and get onto a pathway to permanent residence. And for those who are here legally and on the pathway to permanent residence, they have to wait impossibly for decades, and now Bier shockingly speculates that it may be centuries. Legal skilled workers, many of whom are on H-1B visas, should not be jettisoned because it has become fashionable to think that they away jobs from US workers. They compliment the US workforce, and most have gone through the labor certification process that required their employers to first test the US labor market before proceeding with their green card applications. Once they get green cards, there will be a surge of entrepreneurial talent in the nation’s economic blood stream.  Finally, immigrants already in the US should not pull up the drawbridge behind them and block new H-1B workers. It is important for fresh and talented immigrants to come to the US to achieve their dreams. All we need is an immigration system that has many more pathways to America and is consistent with the needs of the nation in the 21st century.

The present immigration system is broken and can be likened to a terminally ill patient who is suffering from multiple organ failure. The goal for treating such a patient is not just to repair one organ, such as the heart, and leave the other organs in a state of disrepair. This approach will certainly not nurse the patient back to health. All the vital organs in the patient must be revived at the same time. The same holds true for our immigration system, which is like a terminally ill patient. All its components, like body organs, must be repaired. This includes but is not limited to more visas for skilled immigrants and entrepreneurs, faster pathways for loved ones to unite with their family in the US, more opportunities for investors and essential workers, and also a path for the 11 million undocumented to legalize their status. We must also not forget to reform the system for those seeking refuge in America from persecution and other kinds of crimes such as trafficking and sexual violence, and provide more waivers for those who would otherwise be deportable if they have ties with the US or can demonstrate rehabilitation. While Clinton’s message for immigrants is positive and upbeat, she must remember to include all affected immigrant groups, especially legal skilled workers who have been hopelessly waiting for their green cards.

Deconstructing the Myth of the Criminal Immigrant

Donald Trump began his presidential campaign last year by accusing Mexican immigrants who cross the border as being criminals and rapists, and ended with the same sentiment in his acceptance speech of the Republican nomination by thundering that “nearly 180,000 people with criminal records ordered deported from our country are tonight roaming free to threaten peaceful citizens.”

While every prior Republican nominee in recent times has spoken in glowing terms about immigrants being an asset to America, Trump emphasized only on the dark aspects, and hyped up fears of immigrants being a threat to the American people. This is despite the fact that studies have proved that newcomers are less likely to commit crimes than the native population.

Still, even if immigrants commit crimes in lesser proportion to native born Americans, as long as they have not become citizens, they pay a greater penalty than US citizens when they commit the same crime. While both may be punished under the criminal justice system, the immigrant after serving his or her sentence is likely to face deportation.  It would seem fair that once a person has been punished and reformed, there should be no further penalty. Unfortunately, that is not the case with the non-citizen. Even a long term legal immigrant with a green card can get deported from the United States after serving a sentence.  The sentence may be relatively minor or inconsequential under the criminal justice system, but can be consequential for the immigrant. For instance, an immigrant who is convicted of a misdemeanor theft but received a one year sentence that was suspended would still be considered to have been convicted of an aggravated felony. When an immigrant is convicted of an aggravated felony, there are fewer opportunities for defending oneself against removal proceedings,  and often times one is also not eligible for waivers.

So when Trump spoke about immigrants roaming free with criminal backgrounds, he sought to stereotype and dehumanizes all immigrants. Some of these immigrants may have committed minor crimes from years ago, such as driving without a license, and may be the subject of prosecutorial discretion because they have family members who are US citizens. A significant percentage of their so called crimes involve civil immigration violations and nonviolent offenses, and thus it was patently false to suggest that they “threaten peaceful citizens.” Even the U.S.  Supreme Court has recognized that a non-citizen with a removal order cannot be indefinitely detained. In Zadvydas v. Davis, for example, the U.S. Supreme Court held that it was unconstitutional to indefinitely detain a non-citizen who has been ordered removed beyond a six month period.  Some persons in the group that Trump demonized may have orders of removal that are under judicial review, and ICE has decided  that it doesn’t make sense for them to be locked up indefinitely while the petition for review is pending. Another possibility is that in some cases the “criminal record” is a single nonviolent misdemeanor which does not render the person a removal priority. Trump might also have been counting people whom an IJ has ordered removed, but who have an appeal pending with the Board of Immigration Appeals, and who are out on bond.

When we as a nation accept immigrants, and America’s greatness is because it is a nation of immigrants, it is inevitable that a small group within the immigration population will commit crimes, both major and innocuous. A college student who is an immigrant may be convicted of possession of marijuana joint (outside Colorado of course), and when she travels and returns, she may be found inadmissible and put into removal proceedings. It would be unfair to demonize her by branding her as a “criminal alien” and being a threat to “peaceful citizens.” Immigrants should face the same penalty as a U.S. citizen when they are convicted of crimes. If the purpose of punishment is deterrence or reformation, and that is sufficient for the citizen, there is no need to subject the non-citizen immigrant to the additional draconian penalty of deportation, which can potentially result in the permanent banishment of that individual from America.

Finally, Trump in true demagogic fashion only focused on the anxieties and fears caused by immigrants. There was scant mention of their achievements and how they have benefited America in every sphere. Where was the sunny optimism about America being a welcoming country to people who can only benefit it?  Or America even being kind and forgiving – especially to the immigrant who may have committed a crime, but has long ties and family here, and has completely rehabilitated after serving his sentence?  If Trump may have been successfully in stoking fears in a few people, he also succeeded in galvanizing many more people to vote to throw him out so that America can continue to be this sunny, optimistic and welcoming country.




No Longer So Fast! An Examination of EB-1 Retrogression For Indian And Chinese Born Foreign Nationals

By Cyrus D. Mehta and *Anand G. Sinha

One does not need a degree in public policy or law to understand the basic premise behind the concept that the United States ought to make the attraction of the best and brightest individuals a paramount immigration policy. By enabling the most talented and gifted individuals in the world to come to and work in the United States, the positive impact on society both economically and culturally ought to seem self-evident.  However, on July 11, 2016, the Department of State (DOS) issued a visa bulletin which bodes poorly for many of those Indian and Chinese born foreign nationals the country should be actively recruiting.

The Employment-Based First Preference Category (EB-1), the visa category encompassing “priority workers” pursuant to section 203(b)(1) of the Immigration and Nationality Act, has retrogressed for the first time in nine years. The EB-1 category includes foreign nationals of extraordinary ability, outstanding professors or researchers, and multinational executives and managers.  Retrogression refers to the backward movement of the “cut off” or “priority date” used by the DOS to determine when an immigrant visa will be made available to the alien.

Prior to the issuance of the August 2016 Visa Bulletin by the DOS, the priority date for Indian and Chinese nationals in the EB-1 category had remained “current” since October, 2007. In essence, this meant that foreign nationals who qualified under the EB-1 category, as will be detailed below, could immediately apply for an immigrant visa and adjust their status.  However, in this Visa Bulletin, the application final action dates (the dates that are generally used for determining whether a green card can be issued, and also more recently for determining whether an adjustment of status application can even be filed), retrogressed to January 01, 2010 for nationals of India and China.  In the last 25 years, the EB-1 priority date has only retrogressed three and six times for India and China, respectively.  This new retrogression means that as of August 01, 2016, if a foreign national did not submit their EB-1 immigrant petitions before January 01, 2010, then USCIS will not accept their adjustment of status applications until the backlog is cleared.

In addition to the priority date retrogression, the DOS and USCIS have created another layer of confusion to the unwary reader of the Visa Bulletin. In the October 2015 Visa Bulletin, two separate charts were provided regarding the filing dates for employment-based visa petitions. The relevant dates are the “Application Final Action Dates” and the “Filing Dates.”  Simply put, the pertinent idea relative to this blog was that early-filings of Form I-485, Applications for Adjustment of Status based on an employment-based category may have been possible under the Filing Date even if the actual green card could not be issued. However, the implementation of this program has been confusing.  As the USCIS guidance demonstrates, the definitive ruling on which of the two dates is to be relied on for purposes of filing an adjustment of status application, can theoretically change on a monthly basis, and therefore has created both tremendous confusion and uncertainty regarding the adjustment process for many foreign nationals. Thus, even if the Filing Date for EB-1 is current for all countries, including India and China, the USCIS has indicated that only the Final Action Dates can be used for purposes of filing an adjustment of status application.

One may ask, what are the practical implications for those Indian and Chinese born nationals who wish to adjust their status on the basis of an EB-1 petition? For starters, if the adjustment of status application is received at USCIS before the end of July 2016, the category will technically be current and the application will be accepted for processing.  Although not much time remains, for qualified foreign nationals, a strategic filing before the end of July 2016 (note that July 30 and 31 fall on a Saturday and Sunday, and so it would be best if the application is received on Friday, July 29) could help save time waiting on the imminent backlog and would allow the applicant to take advantage of all the benefits that an applicant for adjustment of status is entitled to, such as work authorization, travel permission and job portability.  That being said, one should always take precautionary steps prior to filing an adjustment of status application.  For instance, the idea of arriving in the United States on a visitor’s visa and quickly applying for adjustment of status is highly unadvisable as it is important for the holder of a visitor’s visa to demonstrate nonimmigrant intent.  On the other hand, if one possesses a dual intent visa, such as an H-1B or L-1 visa, then it might be a good idea to enter the United States and apply for adjustment of status.  Also, if there is a child aging out, it would make sense to also file the adjustment application prior to August 1, 2016 so as to freeze the age of a child under the Child Status Protection Act. If the child is based outside the US, and adjustment of status is not possible, one can also argue that the Filing Date, although not applicable for filing an adjustment of status application, can still be utilized for purposes of freezing the age of a child under CSPA by initiating and filing an application through the National Visa Center, as explained in this blog. Finally, if an Indian or Chinese born applicant can cross charge to the spouse’s or parent’s country, other than India or China, then the EB-1 is still current for all of the other countries of the world.

The silver lining is that India and China born foreign nationals can look forward to October 1, 2016, when the new yearly allotment of green cards under the EB-1 category will be issued and the August 2016 Visa Bulletin has announced that the categories will again become current.  In summation, the EB-1 retrogression for Indian and Chinese nationals may foreshadow an alarming trend, although in the past the EB-1 moved to current quite rapidly after it had retrogressed.  The visa category which was dubbed the “fast-track” to an employment-based green card, may be slowing down. The EB-2 and EB-3 for India and China in recent years have been hopelessly backlogged, and the EB-1 provided a pathway to quick lawful permanent residence, provided one qualified. Let us hope that the EB-1 for India and China reverts to current and stays current from October 1, 2016 onwards. Otherwise, we will fast be going downhill in a broken immigration system!

(This blog is for informational purposes only and should not be viewed as a substitute for legal advice).

*Anand G. Sinha has recently joined Cyrus D. Mehta & Partners PLLC as an Associate.

Avoid The Confusion: Complying With The Simeio Decision One Year Later

Employers of roving H-1B employees have scratched their heads in confusion over the Administrative Appeals Office’s April 9, 2015 decision, Matter of Simeio Solutions, LLC, 26 I&N Dec. 542 (AAO 2015), discussed in detail in this blog here, here and here.  This is because while the decision lays out the requirements for filing an amendment when an H-1B worker’s worksite changes, but is mute on a variety of other situations that employers may face.

Briefly, the Simeio decision, formalized in a USCIS final guidance on July 14, 2016, requires H-1B employers to file an amended petition when there is a change in the H-1B employee’s place of employment requiring a new LCA to be certified, with the following exceptions:

  • When it is a move within the same “area of intended employment”
  • When the move is a short term placement pursuant to 20 CFR 655.735
  • When the move is to a non-worksite location, such as in cases where:
    • The H-1B employee is going to a location merely to participate in developmental activity, such as attending conferences or seminars;
    • The H-1B employee spends little time at any one location; or
    • The job is “peripatetic in nature” per 20 CFR 655.715.

The same final guidance from USCIS provided for a safe harbor period for employers to comply with the decision’s rules so that for any moves made prior to the Simeio decision or that took place after April 9, 2015 but before August 19, 2015, employers would be able to file an amendment by January 15, 2016.  But for any moves that take place after August 19, 2015 the employer must first file an amendment before the H-1B employee starts at the new worksite.

Now that it has been more than 1 year since the decision and at least six months since the safe harbor due date in January 2016, it would be helpful to assess compliance in various situations including those where it may not be entirely clear whether an amendment pursuant to Simeio is required.  To that end, here are some fact patterns where some H-1B employers may wonder whether precisely an amendment is warranted.

Fact Pattern #1: Employee Edgar has been at worksite A since January 2015. Worksite A is in New York City.  His employer ABC Company now wishes to assign him to a project for a new client located at worksite B, in Piscataway, NJ.  Must ABC Company file an amendment?

Here, the analysis turns on whether Piscataway, NJ and New York City are in the same “area of intended employment.” According to the National Bureau of Statistics (BLS)’s definitions of Metropolitan Statistical Areas (MSAs) as designated by the Office of Management and Budget, Piscataway and New York City are indeed within the same MSA.  But does this mean that they are within the same area of intended employment?  It is not very clear.  The Final Guidance provides as an example a change in worksite within the New York City metropolitan area as one that does not require an amendment.  According to 20 CFR 655.1300, an area of intended employment is defined, within the regulations for an H-2A filing as:

the geographic area within normal commuting distance of the place (worksite address) of the job opportunity for which certification is sought. There is no rigid measure of distance which constitutes a normal commuting distance or normal commuting area, because there may be widely varying factual circumstances among different areas (e.g., average commuting times, barriers to reaching the worksite, quality of the regional transportation network, etc.). If the place of intended employment is within a Metropolitan Statistical Area (MSA), including a multistate MSA, any place within the MSA is deemed to be within normal commuting distance of the place of intended employment. The borders of MSAs are not controlling in the identification of the normal commuting area; a location outside of an MSA may be within normal commuting distance of a location that is inside (e.g., near the border of) the MSA.

Based on the definition above, Piscataway and New York City would arguably be in the same area of intended employment as they are within the same multistate MSA. Here, the employer could reasonably decide not to file an amendment, though it would have to post the LCA at the new worksite for the required ten days.

Fact Pattern #2: Employee Edgar has been at worksite A since January 2015. Worksite A is in New York City.  His employer ABC Company now wishes to assign him to a project for a new client located at worksite B, in Chicago, IL.  However, he will only be there for about 24 days and then he will return to work at worksite A.  Must ABC Company file an amendment?

Since the new worksite is not within the same area of intended employment, ABC Company could file an amendment here. However, since Edgar would only be at the new client’s site for 24 days, ABC Company could avail itself of the short-term placement option.  Pursuant to 20 CFR 655.735, an employer may place an employee for up to 30 days at a worksite on a short-term placement (and in some cases 60 days where the employee is still based at the “home” worksite”).  During the time spent at this worksite, the employee must be treated as a per diem employee, and the employer must pay all expenses such as housing and travel.  If ABC Company decides to use the short-term placement option for Edgar, then it would not have to file an amendment.  If it chooses not to use the short-term placement option, then ABC Company should file an amendment before Edgar travels to Chicago.  Since it already is aware that after this short assignment Edgar will return to New York City, ABC Company ought to place both New York City and Chicago on the LCA and provide an itinerary in the H-1B petition.

Fact Pattern #3: In the original petition, employee Edgar’s place of employment was listed as ABC Company’s headquarters located in New York City, a home office. Edgar’s position is peripatetic in nature and he must travel to various client sites constantly.  When he is not traveling, he may telecommute to employer ABC Company’s headquarters from his home located in San Antonio, Texas.  Must ABC Company file an amendment now?

Here, it is not entirely clear whether an amendment is required. Edgar’s position is peripatetic in nature and may fall into one of the exceptions under the Simeio rule.  Moreover, when he is not traveling, he is telecommuting to ABC Company’s headquarters.  However, the LCA did not list his home office as his place of employment. Simeio is silent on telecommuting and instead only discusses actual changes in the work location.  Here, ABC Company could file an amendment in an abundance of caution, providing a certified LCA listing both New York City and Edgar’s home as work locations, and explain that the ambiguity in the Simeio rules with regard to telecommuting warrants the favorable exercise of USCIS’s discretion.

Fact Pattern #4: Employee Edgar is on a TN and his coworker Emily is on an E-3. They both work for ABC Company in New York City on the same project.  ABC Company now needs them to transfer to a new project located in San Francisco, CA.  Would ABC Company need to file an amendment?

Neither Edgar nor Emily are in H-1B status. Simeio only touches upon changes in worksite location for H-1B workers, and it does not discuss whether the rule extends to similar nonimmigrant temporary employment visas such as the TN and E-3.  Furthermore, there would be nowhere that ABC Company could file an amendment since TNs and E-3s are applied for by the nonimmigrant at either port of entries or consular posts abroad.  There is therefore no petition with USCIS that ABC Company could amend.  Furthermore, in the case of a TN, no LCA is filed with the Department of Labor, and so the crux of the decision in Simeio, that a change in worksite location requiring a new certified LCA is a material change, has no bearing on a TN.  Theoretically, however, if ABC Company had filed an extension of status for Emily through USCIS by filing the Form I-129, and then a change in worksite occurred, then ABC Company could choose to, in an abundance of caution, file an amendment in the spirit of the Simeio guidance.

 Fact Pattern #5: Emily is on an H-1B and working for ABC Company. She is at a client site in Atlanta, Georgia and her employer’s headquarters is in New York City.  The LCA for the H-1B petition contained both Atlanta and New York City as places of employment.  ABC Company wishes to move her from Atlanta to work from their headquarters.  Must ABC Company file an amendment?

Here, both New York and Atlanta are on the original LCA. Even if there is a change in employment location from Atlanta to New York City, there would not be an amendment required under Simeio because no change warranted a new certified LCA and thus no material change occurred that requires an amended petition.

Fact Pattern #6: Esther is on an H-1B, and was working at a client site in Minneapolis from November 2014 until May 2015 when she was transferred to a client site in Jacksonville, Florida. Prior to that transfer, her employer obtained a new LCA for Jacksonville, but did not file an amendment.  Her employer now wishes to move her to a worksite in Philadelphia.  Must ABC Company file an amendment?

Yes! ABC Company should have filed an amendment when Esther’s worksite changed from Minneapolis to Jacksonville.  This change occurred after the Simeio decision and therefore, ABC Company should have filed an amendment by January 15, 2016.  Since it did not, it is not in compliance with the Simeio decision and may face fines and other sanctions for violating the new rule.  ABC Company may investigate whether Esther’s employment is peripatetic in nature or whether she was telecommuting in which case they may not have been required to file an amendment.  With the new planned change in worksite to Philadelphia, ABC Company very likely will need to file an amendment before Esther moves to the new worksite.  ABC Company should try to explain in its amended petition the reasons why an amendment had not been filed prior to Esther’s move to Jacksonville, discuss any extraordinary circumstances that may have led to the failure of filing the amendment, and seek favorable discretion from the USCIS pursuant to 8 CFR 214.1(c)(4).  If the extension of status is denied because Company ABC failed to file the amendment timely, then Esther could still leave the U.S. and undergo consular processing for her H-1B visa.

With regard to whether Esther may have accrued unlawful presence, we would argue that she did not since unlawful presence during a period of authorized stay only is triggered once the USCIS makes an adverse finding regarding her status. In this case, if USCIS were to deny the extension of status and make an adverse finding, the unlawful presence would only trigger from the adverse finding and not retroactively.

The above are just a few examples of scenarios that H-1B employers face that require them to analyze the best ways to comply with the Simeio decision.  Because of the complex ways in which companies conduct business in the modern world, it is imperative that H-1B employers remain up-to-date on the latest rules with regard to compliance with H-1B employment, particularly for roving employees.  It has been one year since the Simeio decision and the safe harbor period has expired.  If employers anticipate that H-1B workers will need to change worksites in the future, it is helpful to perform due diligence and plan accordingly for the H-1B amendments that it will need to file.  Some employers prepare certified LCAs for various worksites in advance, so that when changes in worksites occur, the H-1B amendment can be filed quickly without waiting the usual 7 days for the LCA to be certified.  If an LCA is prepared in advance, the employer must still comply with the attestation requirements relating to the anticipated worksite(s), including posting the LCA for 10 days at each worksite listed on the LCA.  Employers should also be ready with the required documents to demonstrate its right to control the H-1B employee’s employment (i.e. contracts, work orders, end client letters, etc.) and that there is sufficient H-1B work to be performed at the new site.  Some employers may opt to plan an itinerary and appropriate LCA if it anticipates that a single H-1B employee may move several times within the H-1B validity period so that it would not have to file multiple amendments for the same employee.  Lastly, employers that anticipate worksite changes lasting 60 days or less should examine whether it could opt for a short-term placement and budget accordingly for it.

Since the surprise decision was issued last year, it has been a costly and burdensome process for many H-1B employers who suddenly needed to file multiple amendments for their employees when before the decision new certified LCAs would suffice. It particularly hurts employers in the tech sector who rely on H-1Bs for employees who work on various projects throughout the year for different clients.  The ruling also ignores the realities of business today – which is that, often, tech employers must provide consultants for projects very quickly or else risk losing the contract with the customer.  Filing amendment after amendment cuts into companies’ bottom line, ignores the modern methods of business in IT consulting, and overall has a negative effect on this bustling field of American technology.  One sliver of a silver lining has been that employers who are subject to the super fee under Public Law 114-113 (employers who have 50 or more employees, 50% or more of whom are in H-1B or L-1 status; see our blog about this fee here) need not pay the $4000 super fee for amendments as the fee is only required for initial H-1Bs and H-1B transfer petitions.  Still, it has indeed been a year of adjustments.  Because it has indeed only been one year, no official statistics have been released about how USCIS has dealt with non-compliance with the Simeio decision.  It remains unclear whether the USCIS or DOL will issue penalties or fees against employers who have failed to comply with Simeio, whether H-1B petitions will be revoked, and exactly how much discretion USCIS will wield when there had been a good faith effort to file the amendment but it was not done timely.

(This blog is for informational purposes only and should not be considered as a substitute for legal advice.)


Brexit and Xenophobia vs. Immigration and Innovation

In the backlash against globalization, as seen in the vote in favor of Brexit, there is an even more insidious backlash against immigration. The world has prospered because of the expansion of trade and technology, and also due to the free movement of capital and people. Millions of the world’s poor people have been lifted from poverty as a result of globalization. In turn, people in richer countries have been able to buy products and services at lower cost. Businesses have also been able to sell goods and services outside beyond national boundaries, thereby becoming more profitable and hiring more people.

Politicians like Donald Trump do not see it this way, who wish to tear up trade deals such as the North American Free Trade Agreement. So does Bernie Sanders, who while speaking with a softer voice, appears to be in harmony with Trump in his critic of globalization and trade deals. While Hillary Clinton is probably in favor of trade deals, she back tracked on the Trans-Pacific Partnership, after being attacked by Sanders during the primaries. It is true that globalization does not always have winners. Those who get displaced need to land on a safety net so that they can re-train and develop new skills. The safety nets, unfortunately, are not keeping up with the enormous changes in technology that increase productivity through innovative technologies, which include rapid strides in robotics and artificial intelligence. During this transition that promises a better future for all in the long run,  politicians exploit this shortcoming to lash out against immigrants in their countries and foreign-based workers outside who are paid less, when the true disrupter is technology and innovation.

As Fareed Zakaria so succinctly puts it:

“Manufacturing as a share of all U.S. jobs has been declining for 70 years, as part of a transition experienced by every advanced industrial economy. All other developed countries from Australia to Britain to Germany — which is often seen as a manufacturing powerhouse — have seen similar declines over the past several decades. Even South Korea, which has tried many kinds of protectionism, has experienced a drop in manufacturing as it has become a more advanced economy. This shift is partly a result of free trade, but serious studies show that the much larger cause is technology. One steelworker today makes five times as much steel per hour as he or she did in 1980.”

Immigration lawyers know first- hand how free trade and immigration has been beneficial for America. It is due to NAFTA that Canadians and Mexicans can enter the United States on TN visas to work for US employers who seek them out even while the H-1B visa, the main workhorse nonimmigrant visa, has hit the annual numerical cap. Singaporeans and Chileans can enter the United States on H-1B1 visas that ensue from trade deals and so can Australians on an E-3 visa. Nationals of many countries that have treaties with the United States can come here on E-1 and E-2 visas as investors and traders. While the L-1 visa does not ensue from a treaty, it too is premised on the needs of multinational corporations, big and small, in a globalized world. Intra-company transferee managers, executives and specialized workers can work for a US branch, subsidiary, parent or affiliate of a foreign company on L-1 visas. Despite there not being H-1B visas, the fact that other visas are still available, allow US companies to remain globally competitive by tapping into skilled and professional foreign workers. If it were not for these visas, the entry of skilled workers into America would be at a standstill.

We need to embrace immigrants, and view them as an asset, rather than as people who steal jobs and work cheaply. Immigration not only provides a complimentary workforce, but also generates innovation that will create the next generation of jobs that require new skills. If we have a robust and welcoming immigration system that would not shackle the worker to one employer, but would allow mobility and a quick pathway to permanent residency, then there would be no suppression of wages. Everyone would be on a level playing field, and market forces would ensure that wages remain competitive. Indeed, by encouraging more movement of people to America and other richer countries, it would have the effect of wages increasing worldwide and potentially a convergence in wages for highly skilled people. With the advent of technology that has increased productivity manifold times, manufacturing would be based in places not where the wages are lower, but where there is an abundant supply of skilled workers, technology and innovation.  If the free movement of people is restricted, employers will be forced to move operations to other countries, thus perpetuating wage disparity.

This brings us to the H-1B visa program that has a mere 65,000 visas, plus an additional 20,000 for those who have graduated with advance degrees. Due to the well publicized layoffs of US workers at companies like Disney by H-1B workers, there appears to be no appetite by Congress to increase H-1B visa numbers even though there is a dire need to do so. By continuing to limit and stifle the H-1B program, US employers will remain less competitive and will not be able to pass on the benefits to consumers. We need more H-1B visa numbers rather than less. We also need to respect H-1B workers rather than deride them, even if they work at IT consulting company, as they too wish to abide by the law and to pursue their dreams in America.  The best way to reform the H-1B program is to provide more mobility to H-1B visa workers. By providing more mobility, which includes being able to obtain a green card quickly,  H-1B workers will not be stuck with the employer who brought them on the H-1B visa, and this can also result in rising wages within the occupation as a whole. Mobile foreign workers will also be incentivized to start their own innovative companies in America, which in turn will result in more jobs. This is the best way to reform the H-1B visa program, rather than to further shackle it with stifling laws and regulations, labor attestations and quotas. Market forces can better control the H-1B program from abuses and distortions than labor attestations!

As we meditate over yet another July 4th weekend celebrating America’s independence, we should note that the world faces a stark choice today. Should countries be more open or less open? The ideological line between left and right is blurring as another more distinct line is being drawn between open and closed nations. America was founded on principles of openness and its ability to embrace people from all over the word, but that may change if the proponents for a closed and isolated world have their way.  If America becomes closed, just like Britain will likely be after Brexit, there will be fewer opportunities for businesses to sell outside national borders, and they will be further stymied and unable to grow if they cannot gain access to the best talent. Moreover, innovation will get stifled if the best people from around the world cannot cluster together to develop new products and change paradigms. Immigration is what fuels these advances, which in turn promises more growth and prosperity. Do we want to revive the industries of the past to bring back those illusory jobs, such as steel manufacturing or coal mining,  after technology has already marched on, or do we want to imagine about autonomous vehicles (notwithstanding the recent Tesla car setback), nanotechnology that will automatically repair our cells and space travel through a wormhole?  Brexit and xenophobia go hand in hand. Will America buck this trend in favor of immigration and innovation when it goes to the polls in November 2016?