US Businesses hurting for more EB green card numbers

US Businesses hurting for more EB green card numbers

 

As the Senate is poised to begin full debate on the Gang of 8’s proposed reform bill, it is important to realize just how many problems our current system causes American businesses. 

 

The H-1B visa, which is the standard work visa for professionals with a 4 year BS/BA degree,  is limited to 65,000 per year (with an additional 20,000 set aside for employees who have advanced degrees from US universities).  Many of these H-1B employees are sponsored for green cards, but for those with only a BS or BA degree, the green card category is backlogged to early 2009 (and to early 2003 for Indian nationals, and late 2006 for Filipino nationals).   Although H-1B status can be good for up to 6 years, employers do not want to make the green card decision until the employee has been sufficiently evaluated by all concerned.  Sometimes the employee needs to work in more than one position for everyone to decide it is a good fit.   Where that takes more than 3 years, problems with continuing work permission can arise.   The same is true if an employee is hired after he has been in the US in H-1B status with one or more other employers and does not start work for the new employer until after the 5^th year in H-1B status.

 

For instance, if the employer files the PERM case  at the very beginning of the employee’s 5^th year with the company, and if DOL issues an Audit, the case can drag on beyond the end of the employee’s sixth and final year in H-1B status.   The employer then has to begin using very creative strategies, such as filing for additional time in H-1B status, based on all of the days that the employee has been outside the US during his six years in H-1B status.   This can result in the employee “recapturing” H-1B time and therefore being able to remain in the US longer than six calendar years, but it may not give him enough time for other extension rules to kick in and give him a 7^th or 8^th year in H-1B status. 

 

If the employer is lucky enough to have an employee who worked for a foreign affiliate, it sometimes is possible to move the employee into a new work visa status (L-1) altogether.   However, this option is not very common, and even if it exists, the only time it really can benefit the parties is where the employee can be moved into a managerial position with the US employer.  Even then, the benefit is not for long, since L-1A employees are entitled to a total of 7 years of authorized stay, and there are no extension rules beyond that end date, as there are for H-1B employees.   

 

Where this is the case, the employee can be given a 7^th year, and if the PERM case is approved before the end of that 7^th year, the employer then can petition for the employee to move back into H-1B status and be given additional periods of stay in H-1B status, one year at a time.

 

As noted above, sometimes  these options are not available, as where the employer hires the employee too late and cannot show that the PERM case has been pending for a full year (the one year mark activates the rule that allows the employer to file for  a 1 year H-1B extension).  In that situation, the employee and his or her family may have to leave the US for a period of weeks or months, causing the employer and the employee significant disruption and career delay.    In the worst case scenario, the employee may return home for good.  This is happening more and more, as India and China, as well as many countries in Europe and South America compete for the highly skilled H-1B workers who have been trained here (and many times educated here) for years.   Canada also is taking bold steps to recruit these talented and very frustrated workers. 

 

The pending Senate reform bill, S. 744, contains good provisions for increased numbers of green cards in the employment based system.  If these provisions are passed into law, they should reduce the current green card backlogs, which should help many employers and employees avoid the type of turmoil and non-productive job changes that are required today under our antiquated system.

 

At the same time, Congress should consider allowing H-1B employees to file for additional 1 year extensions of stay as long as a PERM case is filed at any time prior to the end of the sixth year in H-1B status.   The same should be true for anyone in L-1A or L-1B status, because frequently these workers have to use the same, badly backlogged green card categories.  

 

H-1B and L-1A/B workers are the backbone of our STEM occupations in myriad industries in the US.  We lose them at our peril, and the losses become more frequent every day that Congress delays.

 

Best

 

Gerry Chapman

Landmark ruling for those with TPS status who seek to Adjust Status without leaving the US

On June 4, 2013, the Sixth Circuit Federal Court of Appeals issued a landmark ruling in Fonshea Flores v. USCIS (No. 12-3549). 

 

At issue in the case was a long-standing argument over whether a person with Temporary Protected Status (“TPS”) could start and finish a family based green card case in the US.   Many of these cases now have generated a “yes” answer, but only where the TPS beneficiary first travels outside the US on a travel permit known as “Advance Parole” and then returns to the US on that document.    Here the twist in the case was that the beneficiary had not traveled outside the US on advance parole, and simply filed for Adjustment of Status, based on an approved Immigrant Visa Petition filed by his US citizen wife.  

 

The government argued that the Court should dismiss the suit, based on a long line of USCIS interpretive memos.  As authority for its position, DHS cited  a case that gives the nod to the agency interpretation where the statute is vague or subject to differing readings.    The plaintiffs argued that the statute was not vague or subject to multiple readings, and that it clearly gave the Honduran applicant the right to adjust status, based on the plain  language of the statute that creates TPS status.  The Court rejected DHS’ argument that its interpretation should prevail.

 

The Court sided with plaintiffs, and held that, since the plain language of the statute gave the applicant proper status for purposes of seeking Adjustment of Status, there was no reason to give any deference to what was clearly a line of incorrect agency interpretations.  

 

If DHS appeals or asks for a rehearing by the Circuit Court of Appeals, the ruling can be stayed.  However, other courts outside the Sixth Circuit (such as the Fourth Circuit, which includes Virginia, West Virginia, North and South Carolina) can follow the decision, and arguably USCIS offices outside the Sixth Circuit can do so, too.  If this ruling ultimately stands, it will change the lives of literally thousands of people with TPS status who are married to US citizens and who otherwise are admissible to the US.  Many of them fear leaving the US, or cannot wait long enough to for USICS to process an Advance Parole application.  Under Fonshea Flores, they no longer will have to wait, and instead can file for adjustment of status once their US  citizen spouses are ready to sponsor them for the green card.

 

Regards,

 

Gerry Chapman

Congress poised to pass reform legislation

June 1, 2013

Friends and colleagues:

 

During a conference call last week with a nationally respected and well-connected immigration lawyer who has met with Senator Reid and Speaker John Boehner, we received further confirmation of several very significant pieces of information:

 

1.      The Senate Bill ( S. 744) should be up for a vote by the full Senate within 2 weeks.   This is a much more rapid schedule than we had anticipated, but seems to be a solid prediction.

2.      Speaker Boehner has confirmed that the House bill will be moving swiftly as well.

3.      He also has confirmed that one of the most conservative members of the House has drafted a bill that is quite similar to S. 744, and that this is the bill that he is likely to support and move to a vote in the House.    (This does not displace the possibility that the House “Gang of 8” bill may be the one to move first; that bill also appears to be similar to S. 744.)

4.      Obama sees this bill as a defining part of his legacy, so he is very supportive of the Senate and House efforts to bring a final bill to a vote soon.

5.      Reid believes he has at least 60 votes for passage, and may gain as many as 70 votes.   Either way, the momentum of S. 744 will be significant when it reaches the House.

6.      The core of the Republican Party has realized that this bill has to pass for the Party to be able to compete for Hispanic votes on a national level going forward.   If the immigration issue is not removed from the debate, the GOP will continue to see defeats such as Romney’s happen over and over.

7.      The 1986 IRCA legislation that legalized 3 million people was a short range success but a long range failure because it lacked a temporary work visa for manual laborers in year round jobs.   IRCA created an annual national limit of 5000 green cards for such workers (in the “Other Worker” category), but that number was unrealistically low, and has been useless almost from the start because the demand for those workers always has been much higher than the supply of green card numbers in that category.

8.      In 2004-07, several bills were introduced in both houses of Congress, but they never made it to a full vote, and many never made it out of committee.  

9.      The reason was simple:  the anti-immigrant forces were vocal and well organized, and members of Congress received their messages daily and in great numbers.  Some members reported as many as 100 anti messages to each 1 message in support of those bills!

 

WHAT CAN YOU DO?

 

You need to send emails to Senator Hagan and to Senator Burr NOW!   This vote will happen soon, and the discussions over what position to take are solidifying right now.

 

Tell them that it is time for reform, and that S. 744 represents a good compromise on many, many issues that is long overdue.

 

www.hagan.senate.gov

www.burr.senate.gov

 

DO NOT DELAY.  THIS IS A HISTORIC MOMENT THAT WE WILL NOT SEE AGAIN FOR YEARS, IF EVER.

 

WE MUST BE HEARD NOW, BECAUSE THE TIME IS NOW, AND WE ARE ON THE RIGHT SIDE OF HISTORY!!!!

 

Thank you for your prompt action.

 

Regards,

 

Gerry Chapman

 

 

 

Gerard M. Chapman

Chapman Law Firm

P. O. Box 1477

Greensboro, NC 27402

403-A North Elm Street

Greensboro, NC 27401

Phone: (336) 334-0034

Fax: (336) 334-0036

E-mail: gerrychapman@chapman-immig.com

Website: www.chapman-immig.com

2013 H-1B Cap reached this week

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.

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:

 

Just the Facts on the Current Green Card System

 

Summary of the Immigration Innovation Act of 2013 (I-Squared)

 

Why the U.S. Needs Lesser-skilled Visa Reform

 

Chamber's Immigration Reform Principles

 

Reform of E-Verify and the Employment Verification System

 

Why the Current Immigration System Does Not Work for the Business Community

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