2013 H-1B cap reached
USCIS announced today that the cap for all "standard" and all advanced degree H-1B cases has been reached. USCIS will continue to accept cap-subject cases through the end of today, April 5, but will reject all cap-subject cases that it receives after today.
To determine which H-1B cases are processed and approved, USCIS will conduct two lotteries. The first will be conducted to pick the 20,000 cases for beneficiaries with advanced degrees issued by US universities. Any of those cases not selected for the 20,000 set aside will then be entered into the second lottery for the 65,000 numbers available for all other H-1B petitions.
USCIS has not determined when it will conduct the lotteries due to the large number of cases received to date, and it has not yet announced the total number of cases received, due to its receipt of cases through the end of today.
Reports are that the soon to be released Senate 2013 Immigration Reform proposal (and perhaps the House version) will contain provisions that will create as many as 65,000 additional H-1B numbers, but that proposal has not been introduced. In addition, it will be subject to debate in the Senate, debate in the House, revision in a Conference Committee, and then further debate before both Houses.
The current situation is not acceptable by any means, and the present demand for these numbers is clear evidence of that fact.
Friday, April 5, 2013
Thursday, April 4, 2013
US Chamber of Commerce Immgiration Reform Website
Immigration Reform Website
As Congress moves forward, slowly as usual, the US Chamber of Commerce has posted several position papers on its website that explain why the business community needs major, significant legislative action now.
The Chamber has rolled out an immigration website to promote
immigration reform: The American
Opportunity: Making Immigration Work. Check there to see
the Chamber’s positions and related news. Some of its policy documents
include:
Outline of House version of 2013 Immigration Reform Act
04/04/2013
Outline of House version of 2013 Immigration Reform Act
Today the New York Times reports that the House version of
the 2013 Immigration Reform Act may be introduced before the Senate version
being drafted by the Gang of 8.
More importantly, the House version has some very important
provisions that the Senate bill apparently does not. Only a
few details were included in the story, but enough information has been
reported to show major differences in the two bills, some good, some not so
good.
For example:
1.
The House version provides three separate ways
for undocumented people to obtain legal status
2.
The first way is for DREAMERS, the children who
were brought here by their parents or otherwise came to the US through no fault
of their own.
a. They
will have a pathway to citizenship (and presumably to Legal Permanent Resident
(LPR) status – i.e., the green card -- first.
3.
The second group to have a path to LPR status
includes immigrants who have a family member or an employer who will sponsor them
for LPR status. (This appears to be a
resurrection of prior Section 245i, which expired on April 30, 2001, and had
several specific requirements for a person who wanted to benefit from its use. One of the main benefits was to relieve the
person from the duty to consular process.)
a. For
people who will qualify here, it appears that the bill unfortunately will
require them to consular process for their green cards.
b. Before
doing so, the person will have to
i.
pay a fine (as with 245i),
ii.
pay back taxes for some period of time, and
iii.
learn basic English.
c. However,
a person who has been here for more than a year without permission and who then
leaves the US, is subject to a 10 year bar (or a 3 year bar if here without
permission for more than 180 days but less than one year). In addition, many of the undocumented
population are subject to a 10 year bar without provision for any waiver under
current law. (This is commonly referred
to as the “permanent” bar, even though it actually is not permanent all the
time.)
d. This
bill will waive or relax these bars, a step that is long overdue: the purpose of the bars was to keep people
out of the US; all they have done is to keep people here.
e. See
below, however, for serious concerns about requiring this group to consular process.
4.
The last group is everyone else; they will have
to
a. Take
responsibility for and admit to breaking the law when they entered without
being inspected or overstayed their visas.
b. Pay
a fine
c. Pay
back taxes for some period of time
d. Learn
basic English
Once this group has processed for
temporary legal status, they would have the right to file for the green card
through regular, existing channels after having legal status for 10 years, and
then apply for citizenship after 5 more years.
(This new category is quite similar to the H-5 visa proposed by Senators
McCain and Kennedy in 2004-05.)
5.
There is no guest worker provision in the bill,
such as the W visa included in the Senate bill. That provision is designed to address future
labor needs beginning in 2015.
Unresolved issues include whether government benefits will be
available to the third group, and whether certain border security goals would
have to be met before the third group (and perhaps the second group) could file
for the green card. This “move the goal posts back” strategy has been used over
and over again by the anti-immigrant forces in Congress and elsewhere, and has
prevented any rational debate, and in effect has crushed honest hopes of a
final compromise over and over again.
If this provision is included in the draft that is introduced, it may
doom the effort at reasonable reform.
Another serious problem with the “new 245i” law is that it will
require millions of essential workers to leave the US and file cases at US
embassies in various countries, but mainly in Mexico because Mexican citizens
make up the largest percentage of our undocumented population. There are two critical aspects to this
problem:
1.
There is no way to gauge the harm that this will
cause our economy, but it could be devastating, especially if the new legal status
rules include a time limit within which to file and process a case (this was
the case with 245i – during its last period of incarnation, it was possible to
file between December 21, 2000 and April 30, 2001).
2.
The US Embassy in Ciudad Juarez (CDJ), which
processes all green cards for applicants in that country, will be overrun and its
operations probably will come to a grinding halt. If Congress is going to relax or rescind the
3/10/permanent bars, there is no reason to require new beneficiaries to make a
meaningless trip to CDJ to finish the case.
Finally, the lack of a visa like the Senate bill’s W visa is
very troubling. Without that kind of
visa in our system, we are almost guaranteed to end up in the same mess that we
are in today. The primary reason that
we have so many undocumented people in the US today is due to the lack of a
temporary visa for workers in year round jobs who do not have or need to have a
college degree; i.e., manual labor. The
US had that visa from 1942-64 – the so-called Bracero Program. Congress deleted it when it re-did the
entire system in 1965. For some years
that made sense, but with current demands for essential workers continuing to
climb, it makes no sense to repeat the same mistakes over and over.
We hope that the bills will be reconciled in a productive
Conference Committee, and that we will see a smart bill in the final analysis.
Gerry Chapman
The new "W" visa for essential workers under the 2013 Immigration Reform Act
April 4,
2013
This past
weekend saw a breakthrough in negotiations between the US Chamber of Commerce
and several national unions, over the creation of and
(primarily) the number of new “W” visas that will be created by the highly
anticipated reform legislation that has been negotiated by the so-called “Gang
of Eight” in the US Senate. This W
visa will be available for essential workers who will fill year round
jobs that do not require a college level education (construction,
manufacturing, service industries, etc.).
The W visa appears to be
a compliment to the part of the reform bill that will allow millions of
undocumented workers now in the US to apply for legal status. The
majority of those essential, undocumented workers
would register for temporary legal status, with the possibility of obtaining
permanent resident status some ten years later, and then ultimately citizenship
after 3 years as a permanent resident. These workers so far do not
have a name for their future legal status,
but whatever it is, they will continue to fill millions of jobs that US workers
are not willing or available or able
to do.
The W will be a complimentary visa, because it is
designed to address future labor needs (“future flow”) that employers will
need, after the registration process is complete and the current undocumented
population is entered into the system. Under the Senate proposal, the W
program will not be activated until April 1, 2015. The Gang of Eight appear to want to let the labor
market settle down in the next two years, and then let the new W visa system
accommodate the future demand that employers will have going forward.
The proposed “W” visa contained in the Senate bill has some important aspects:
1.
The number of these visas will start at 20,000
the first fiscal year, with 35,000 the next year, then 55,000 the next and
75,000 in the fourth. Beginning in the fifth fiscal year, the number will vary depending on a
statistical formula.
2.
The total of such W visas cannot exceed 200,000, and can never be less than 20,000, in a given year.
3.
A separate provision will allow a qualified employer to hire an appropriate W
worker, if the annual cap has been reached, upon paying a special fee. No
comment yet on whether anything else would have to be proven to make such a
hire.
4.
Employers of such W workers will have to pay the
employee the prevailing wage or the actual wage the employer agrees to pay,
whichever is higher.
5.
The bill will create a new bureau within USCIS
to implement the formula and determine the number of W visas available each
year.
6.
The bureau also will publish a labor shortage
list, and shortage occupations will have priority for the available W visas.
7.
However, it appears that no more than 15,000
visas will be available for the construction industry in a given year, regardless of the extent of a shortage for that
industry.
8.
W employees would be able to accept a job offer
from another employer that is certified as
eligible to use the W program, and once the W worker left the first job, he or
she would have 60 days to find another
qualified employer.
9.
Employers who have laid off workers within 90
days, or who have a strike or lockout in process, are not eligible.
10.
The employer must pay all filing and other fees
under the program and cannot pass them on to the employees.
11.
The W employee will have a way to move to permanent resident status, and
eventually to citizenship.
This program has some strong similarities
to the current H-1B program. Both are limited in number (H-1Bs are limited to 65,000 per year, although we understand
that this bill will increase the number of H-1Bs as well). Both will have filing dates of April 1. Both
require the employer to pay at least the prevailing wage as determined by
DOL. Although the prevailing wage requirement is criticized by both
labor and business, when it is followed, it does serve a valid purpose.
The same is true regarding the provision that will allow the W employee to
“port” to another qualified employer, just as an
H-1B worker can move. Like H-1B’s, these W visa holders will have some
method to move to LPR status.
One troubling aspect of the W program is the 15,000 yearly
limit on construction jobs. This is government interference in market economics at its worst, without any
recognition of the fluctuating needs of what
is arguably the most important engine in our national economy. With the
coming debate, the construction industry should exercise
every opportunity to have this provision removed or modified
significantly,, allowing the market to determine
which industries and which employers can exercise their rights to sponsor
workers for the W visa .
In short, the new W visa represents a mixture of government
regulation and allowance for free market activity by the employer and the
employee. It is not a perfect model, but it is a workable start in
an area that has needed attention for some 50 years.
The final format of the visa is almost sure to change during the coming debate
and perhaps after experience shows that the original model needs
modification.
Stay tuned.
Gerry Chapman
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