Monday, August 29, 2011

USDC UPHOLDS DOL PENALTIES IN PHYSICIAN H-1B BENCHING CASE

The U.S. District Court for the Eastern District of Tennessee in Knoxville upheld the judgment against a medical clinic owner for allegedly violating the INA by cutting the wages of H-1B physicians (benching). Petitioner reduced the wages in part by requiring the doctors to pay J-1 waiver and H-1B fees and costs. Case is Kutty v. DOL No. 3:05-CV-510. The DOL also assessed back wages totaling $1,044,940 and civil monetary penalties in the amount of $108,800.

Friday, August 19, 2011

MAJOR ORGANIZATIONS CALL ON OBAMA TO IMPROVE EMPLOYMENT IMMIGRATION

Two new reports released by the National Foundation for American Policy (NFAP), an Arlington, Va.-based policy research group say that the Obama Administration should follow through on its promise to provide regulatory relief on employment-based immigration. The report for employment cases is titled “Reforming America’s Regulations and Policies on Employment-Based Immigration”. Authors of the recommendations come from organizations that include the U.S. Chamber of Commerce, the American Council on International Personnel, the American Immigration Lawyers Association, Immigration Works, and others.
Recognizing that legislative solutions are difficult in this political gridlock environment in Congress, the reports suggest administrative and regulatory relief to make sure U.S. companies are able to bring in and keep key employees.
The NFAP report states that “Over the past several months, despite the rhetoric of reviewing regulatory policies, employers have faced the reality of agency actions that delay vital projects, force companies to go without valuable employees and push
work outside the United States”.
What we all know from reality is that business visa adjudicators at USCIS issue now more frequent, burdensome and time-consuming request for additional evidence. The adjudication process is adversarial and USCIS officers are looking for every excuse to deny visa applications these days.
Multiple site visits from USCIS officials, delays and visa refusals at U.S. consulates abroad is also a key problematic area.
Among the recommendations are:
Sharply curtail requests for evidence by USCIS and adjudicate cases faster.
Stop wasting public and private resources by subjecting employers to redundant audits
rather than engaging in focused enforcement.
Allow skilled professionals to file early for adjustment of status prior to when a visa number is available.
Relieve long-time employer sponsors with good track records of certain burdensome
application procedures.
Adjudicate consistent standards for the highest-skilled immigrants in the employment-based 1st and 2nd preferences.
To foster startups, USCIS should rescind the January 2010 Neufeld memo.
The reports can be found on the NFAP website at www.nfap.com.

Wednesday, August 17, 2011

USCIS UPDATES 2012 H-1B COUNT ON 8/12/2011: AT 25,300

USCIS just issued an H-1B cap update. As of August 12, 2011, they have received approximately 25,300 H-1B visas subject to the FY2012 cap year starting October 1, 2011. USCIS also received approximately 14,700 H-1B petitions subject to the advanced degree cap.
Still plenty of visas to go, although it is inching up.

Monday, August 8, 2011

TECH LEADERS SAY PROGRESS ON IMMIGRATION KEY TO REVIVING JOBS

The President’s Council on Jobs and Competitiveness met last week on ways to boost the nation’s struggling economy. The council met at cloud-services provider VM Ware’s headquarters in Palo Alto, California, to solicit ideas on how to jump-start the economy and create more jobs. Council member and AOL co-founder Steve Case was joined by council members John Doerr, a partner with the high-profile Silicon Valley venture-capital firm Kleiner, Perkins, Caufield & Byers; and Sheryl Sandberg, Facebook's chief operating officer. Also present were two nonmembers--Aneesh Chopra, the federal chief technology officer, and Reed Hastings, Netflix's CEO.
A key focus of that meeting was immigration reform. Sandberg and others stated the need for immigration reforms making it easier for companies to recruit talented foreigners in the U.S.
Sandberg said if Facebook had been unable to get an H-1B visa for a Facebook engineer from Spain who was leading a key project after graduating from Stanford, the company would have moved him and his project offshore. She added that other companies such as Google have been forced to do just that because of the problems they have faced in getting work visas and green cards for high-skilled foreigners.
Lawmakers need to push visa and green cards reforms for high-skilled foreigners apart from the broader debate over comprehensive immigration reform.

Thursday, August 4, 2011

USCIS UPDATES H-1B FAQS FOR COMPANY OWNERS

DHS Secretary Napolitano and USCIS Director Mayorkas have announced a series of policy, operational, and outreach efforts, which are aimed at fueling the nation's economy and stimulating investment. They have sent some FAQ's on EB-2 for people with advanced degrees or exceptional ability (and explained the criteria for National Interest Waiver).
More importantly, they have updated the FAQ's regarding the H-1B visa's Neufeld memorandum from January 2010 as it relates to employee/employer relationship. While they have not changed this memo, the new FAQ's are more lenient than the memo, stating, in part, that an owner of a company may still qualify for H-1B status as long as he or she shows that someone else has the right to control them (such as a board of directors or shareholders). The exact Q&A reads as follows:

Q: The memorandum provides an example of when a beneficiary, who is the sole owner of the petitioner, would not establish a valid employer-employee relationship. Are there any examples of when a beneficiary, who is the sole owner of the petitioner, may be able to establish a valid employer-employee relationship?

A. Yes. In footnotes 9 and 10 of the memorandum, USCIS indicates that while a corporation may be a separate legal entity from its stockholders or sole owner, it may be difficult for that corporation to establish the requisite employer-employee relationship for purposes of an H-1B petition. However, if the facts show that there is a right to control by the petitioner over the employment of the beneficiary, then a valid employer-employee relationship may be established. For example, if the petitioner provides evidence that there is a separate Board of Directors which has the ability to hire, fire, pay, supervise or otherwise control the beneficiary, the petitioner may be able to establish an employer-employee relationship with the beneficiary.

You can read the FAQ's at:
http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=3d015869c9326210VgnVCM100000082ca60aRCRD&vgnextchannel=6abe6d26d17df110VgnVCM1000004718190aRCRD

USCIS UPDATES 2012 H-1B COUNT ON 7/29/2011: AT 22,700

USCIS has just issued another H-1B cap update. As of July 29, 2011, USCIS has received approximately 22,700 H-1B cap-subject petitions towards the FY2012 cap. USCIS has also received approximately 13,800 H-1B petitions for people with advanced degrees.
At an increase of 1,100 visas from the previous week, the pace is picking up a bit by 10%; let's wait and see if the uptick continues next week, plenty of visas still left.