USCIS DENIES FEWER H-1B CASES IN 2012 COMPARED WITH 2011

Some good news regarding H-1B statistics data. USCIS recently released statistics on H-1B receipts, approvals, denials and other statuses such as administrative closures for FY2012.
According to the statistic, in Fiscal Year 2012, USCIS received 93,152 application and approved 85,273 H-1B cap cases (the others are transfers or change of employers).
Out of all H-1B cases, USCIS has denied 3,899 cases (versus 5,575 denials the year before on approximately the same number of filings in FY 2011), so this is a good trend that less of these petitions are denied overall. However, no statistic was issued on the number of H-1B RFEs (or requests for additional evidence). This is a significant improvement over FY 2010 where 102,343 H-1B petitions were filed and a whopping 12,120 were denied. This was mainly due to the issuance of the Neufeld memo on the employer-employee relationship and a high rate of denial for IT consulting companies that have been hammered by that memo. Now it is better and approvals are forthcoming even for IT consulting clients.
Overall, there is some good news here with less denials - however the administrative closure and other actions - in 2,163 petitions versus 1,719 in FY2011 may indicate that more petitioners withdrew H-1B petitions versus last year for unknown reasons.

USCIS DIRECTOR ACKNOWLEDGED WEAKNESS OF IMMIGRATION SYSTEM

From ILW.COM:
Speaking at MIT recently, USCIS Director Alejandro Mayorkas acknowledged that our current immigration system is stifling economic prosperity, particularly in the high-tech and start-up fields. To combat this, Mayorkas notes the service is training additional adjudicators to handle petitions like H-1B's and that adjudicators have been advised to be somewhat less critical of petitions coming from start-ups than they were five years ago. Professor Vivek Wadhwa lauded Mayorkas' moves, but also raised the continuing issue of human error that USCIS has not been able to properly address - that the same petition before different adjudicators might yield disparate results. Wadhwa was also critical of the USCIS policies that make movement by entrepreneurs difficult and time consuming, often to a point where those bright people choose not to bother with hassle that accompanies immigrating to the U.S. USCIS deserves some credit for publicizing immigration options for entrepreneurs, like through the new "Entrepreneur Pathways" website, but the service has not yet done the heavy lifting, so to speak - relaxing its draconian policies that Mayorkas publicly admits no longer work in today's global economy and cutting out unnecessary red tape. How else can and should the service tackle this growing problem?

Here are a few ideas of my own:
First, get rid of the Neufeld memo requiring "employer-employee" relationship in the H-1B context. This is ridiculous that an entrepreneur who is a majority shareholder in a business cannot legally work in it under an H-1B visa. It was allowed before and should be allowed now. Other temporary visa types permit this, why is the H-1B different?
Second, limit the RFEs or request for additional evidence in legitimate cases. Open up communications with immigration lawyers who can pinpoint problems in the system and punish/discipline USCIS officers who are abusing the system and creating problems for legitimate applications.
Third, approve National Interest Waiver or NIW petitions for entrepreneurs that have technology inventions or employ a certain number of U.S. citizens.
I have a few more ideas but the top 3 are the most critical right now.

HOUSE PASSES STEM BILL

The STEM Jobs Act (H.R. 6429) has passed the U.S. House of Representatives. This is a bill to allow 55,000 additional immigrant visas to U.S. graduates of STEM (Science, Technology, Engineering and Mathematics) in advanced degree programs.
However, the House bill is not likely to pass the Senate because this is not really an increase of the overall immigrant visa pool, which is what is really needed (both for the advance degree category known as EB-2 and the professionals or skilled workers known as EB-3).
The STEM Jobs Act would end the Diversity Visa (DV) lottery program that awards visas to people from countries with low rates of immigration to the U.S. to increase the diversity of immigrants coming to the U.S. Many Democrats oppose ending that program and President Obama also opposes the STEM bill because he wants it as part of comprehensive immigration reform, which he wants to pass next year.
Comprehensive Immigration Reform is sorely needed but smaller steps would also be very helpful. There are many things the President and USCIS Director Mayorkas could do now to fix without the need to wait for Congress. I am waiting on Director Mayorkas to call me at 770-913-0800 and I will explain (but I will not be holding my breath)...

OBAMA OBJECTING TO STEM BILL - HIGH TECH VISA REFORM

Bad move by President Obama on immigration - the White House just opposed the STEM immigration reform bill backed by many technology companies to allow U.S. educated graduates in science, including computer science, engineering and mathematics to have a faster route to a green card or permanent residence in the U.S.

The White House just announced today that it is objecting to the Republican-backed STEM Jobs Act of 2012, which proposed to add 55,000 immigrant visas available to foreigners who earned a master's or doctoral degree in certain science or technology area from a U.S. university. The STEM bill has been supported by Apple, Microsoft, Adobe, Cisco, IBM, Hewlett-Packard, Oracle, Qualcomm, and the U.S. Chamber of Commerce.

The reason for the White House objection is that the Obama administration wants an overhaul of the immigration system by enacting a Comprehensive Immigration Reform (CIR). 

While it is true that CIR is badly needed for the country, the President should focus on fixing the problem in smaller steps and not object to any measure that would alleviate visa backlogs and hardship to people. Passing smaller measures  like the STEM bill would still help tens of thousands of immigrants achieve permanent status. 

DOCTOR SHORTAGE COULD WORSEN

A recent article by USA today talks about the fact that the U.S. suffers from a significant Doctor shortage and it is about to get much worse.
The Association of American Medical Colleges predicts that by 2020, the shortage will amount to more than 90,000 doctors, including 45,000 patient care physicians. The shortage is expected to worsen as the boom generation is getting older and will require more medical care in the near future and the new healthcare mandate would add more people to the patient pool. To make matters worse, a third of all doctors plan to retire this decade.
Generally, the states with high median incomes tend to have more doctors per capita, while poorer states tend to have substantially fewer because they are less attractive to doctors.
This is why expanding immigration programs for foreign doctors is a key in alleviating this shortage. Expanding the Conrad 30 program (where more than double the spaces are needed in most states), creating more federal programs (such as the USDA had but closed) and increasing the H-1B quota will help make the U.S. more attractive for foreign doctors.
Read the full article at: http://www.usatoday.com/story/money/business/2012/10/20/doctors-shortage-least-most/1644837/

U.S. IMMIGRATION POLICY STIFLES IMMIGRANT ENTREPRENEURSHIP

A new study by the Kauffman Foundation indicates that since 2005, less U.S. companies were founded by immigrants or foreign-born entrepreneurs, with the most significant drop in the state of California within technology firms.
The Kauffman Foundation is right on the money. Our immigration system is more and more unwelcoming to immigrant entrepreneurs. Coupled with a recession and more difficult business environment in the U.S. in the past few years, less immigrant entrepreneurs are finding the U.S. an attractive place.
The Kauffman Foundation report shows that the proportion of companies founded by immigrants nationwide has dropped to 24.3 percent from 25.3 percent in the past five years. In Silicon Valley, the decline was worse: dropping to 43.9 percent from 52.4 percent.
This is alarming for anyone who cares about innovation, job creation or U.S. competitiveness in the global marketplace. This is what we have been telling everyone for years, that we have a broken immigration system that needs to be fixed and welcome entrepreneurs.
The U.S. can reverse the trend of declining immigrant entrepreneurship with changes in policies and opportunities. We really ought to have start-up business visas for these entrepreneurs and expand the number of green cards for skilled foreigners to work in these start-ups in order to make the U.S. more attractive.
USCIS has started taking encouraging steps like their entrepreneurs in residence program, which had little effect so far. What we need is opening doors and our immigration system for entrepreneurs who bring innovation, investments and jobs to the U.S.
Hopefully the new elections will bring a different Congress which will actually do something about the problems in this country, instead of the “do nothing” mode we have endured so far.

MICROSOFT OFFERS BIG MONEY FOR MORE H-1B VISAS

While Congress is not increasing the H-1B visa cap and USCIS undercuts the few visas that are left, the Seattle Times reports that Microsoft Corp. is offering to pay millions of dollars to the U.S. government for the right to hire more foreigners, with the money going for educational training to eventually fill those jobs with Americans.
Microsoft has said over the years routinely that they have thousands of high-tech job openings that it can't fill, and by expanding the H-1B program and by greatly increasing the fees charged for those visas, the country could use that money to train Americans to eventually fill those jobs.
Money paid from H-1B visa fees have already gone to train hundreds of thousands U.S. workers with employers paying from $750 to $1,500 per employee at least twice which goes to a fund to train U.S. workers.
Microsoft is offering the government $10,000 per worker - which is a lot more than many smaller businesses can afford - but I doubt Congress will do anything even with this lucrative incentive. Read more at:
http://seattletimes.com/html/microsoft/2019276648_microsoft28m.html

Aging Baby Boomers Face Losing Care as Immigrant Healthcare Providers Go Home

The United States, which is among the developed countries that rely on Philippine nurses and Indian doctors to hold down costs in the $6.5 trillion global health-care industry face greater competition for talent just as baby boomers in the U.S., Europe and Japan reach the prime age for medical care. Economic growth in emerging economies, despite some signs of recent slowing, is causing foreign doctors and nurses to stay at home or go somewhere else.

There has been a great imbalance that has caused a severe shortage of healthcare workers in developing nations. For example, Japan had 2.2 doctors and 9.5 nurses per 1,000 people in 2009, while the U.S. had 2.4 doctors and 10.8 nurses, according to the OECD. In India it was 0.7 and 0.9 during the same time. It is going to get much, much, worse as baby boomers age and an entire generation of doctors and nurses will retire over the next decade.

The Philippines for example plans to build and rehabilitate more than 2,700 hospitals, clinics and community health centers next year as part of $9.7 billion investment in infrastructure. The nation’s $225 billion economy expanded 6.1 percent in the first half, and the peso is the best performer against the dollar among Asia’s 11 most-traded currencies this year, advancing about 5.5 percent. Better jobs are available for its citizens so some of them choose to stay home.

Save the Children, an organization based out of Westport, Connecticut, said recently that there is a world shortage of more than 3 million healthcare workers, including at least 1 million community nurses and doctors.

In New Zealand, 34 percent of doctors and 21 percent of nurses are from abroad, the highest among developed countries, while in the U.S. 27 percent of doctors and 5 percent of nurses are foreign, the WHO said in its 2006 World Health Report. Philippine and Indian nationals lead the supply, each making up 15 percent of all immigrant nurses and doctors respectively in the 34-member Organization for Co-operation and Development.

The cost of healthcare workers is likely to rise, which is good new for immigrant doctors also. But other countries compete with the U.S. For example, a full-time registered nurse in the U.S. makes about $57,000 a year, while in Australia they earn as much as A$75,000 ($78,000). If the U.S. does not ease its immigration requirements for doctors and nurses, they will stay behind with shortages that are about to get much, much worse. 

USCIS SYSTEMATICALLY UNDERCOUNTING H-1B CAP USAGE

News from Greg Siskind: 

Attorney David Rubman in Chicago, Illinois has just shared with me the answer to a Freedom of Information Act request which definitively shows that USCIS has been undercounting H-1B usage by nearly 15% over the last five years. Approximately 45,000 too few H-1Bs have been approved between fiscal year 2008 and 2012. USCIS is required to approve 65,000 H-1B visas per year. They determine when the H-1B cap is hit each year based on their estimate of how many cases will be denied. They also are supposed to add withdrawn H-1Bs back to the total. USCIS has had wildly inaccurate estimates of their denial rates which has resulted in the undercounting. For example, for the current fiscal year, USCIS stopped accepting applications last January. But their data shows only 55,706 applications were approved and 1,820 cases were withdrawn. That means 11,000 more applications should have been approved.

This is an extremely serious failure on the part of USCIS and the employer community deserves an explanation. Right now, we're in a 13 month blackout with no H-1Bs available. The cap for the coming fiscal year was reached last June. USCIS more than likely has undercounted again and they need to reopen the application process. Furthermore, USCIS needs to add back cap numbers to account for the undercounting.

Here are the numbers for each of you to see. Now let us see how USCIS responds.

(follow this link): http://www.docstoc.com/docs/130551432/H-1B-FOIA

SCHUMER PROPSES 55,000 MORE VISAS FOR STEM GRADS

New York Senator Charles Schumer is releasing information about a bill he plans to introduce before the Senate tomorrow. The bill calls for the creation of a two-year pilot program that would allow 55,000 additional green cards each year for foreign-born graduates with master's degrees or higher from American universities in science, math, technology or engineering (STEM) fields. This would be wonderful.
This bill is substantially similar to the one introduced by Texas Representative Lamar Smith in the House except that Smith's bill would eliminate the Diversity Visa (DV) Lottery altogether.
Schumer's office has reportedly already been reaching out to businesses in the high-tech community to rally support for his measure. Of course, it remains to be seen whether either Mr. Schumer's bill or Mr. Smith's will ever even be voted upon, as there is very limited time remaining in this session of Congress; perhaps both of these bills are just political maneuvers, attempting to cull additional business support before the election without intending to provide any real change.
Good news, let's see the language and whether this gets voted on.

SEATTLE TECH COMMUNITY CALLS FOR H-1B VISA REFORM

Many Seattle-area businesses, most of which are technology giants, immigration reform is a critical issue that may make or break their businesses. Last Friday morning they discussed immigration reform at an event hosted by the Seattle Metropolitan Chamber of Commerce, where USCIS Director, Alejandro Mayorkas, was the keynote speaker.
Technology companies in the Seattle area, such as Microsoft, Amazon and Expedia, use some of the highest numbers of H-1B Visas in the country, most of which are given to computer/tech related occupations and industries. With the low amount of visas that are allowed to be given each year under the Congressional cap, technology companies are struggling to recruit and hire necessary workers.
Mayorkas admitted that his department struggles to understand the business community's needs when it comes to issuing H-1B Visas and other immigration issues. This is an understatement.
Mayorkas said that “The way we interact with the business community needs to change,” that there is no direct way to communicate with the business community, and as of now, the only line of communication between the government and businesses is through lawyers filing requests for evidence. Well, the vast majority of these requests for additional evidence coming from the agency are unnecessary and unduly burdensome. Some of these are outright outrageous asking companies to prove anything and include any document. Opening up to businesses means training officers and going after officers who abuse the system and really limiting the use of the RFE (requests for additional evidence) that ask for specific, relevant and limited information when absolutely necessary, not just to satisfy a whim of an examiner.

IMMIGRANTS FOUNDED 28% OF NEW BUSINESSES IN 2011

A new report issued this week by the Partnership for a New America Economy states that immigrants started 28 percent of all new businesses in the U.S. in 2011, which is a very impressive number considering immigrants are less than 13% of the U.S. population, so immigrants are twice as likely to be entrepreneurs than American born.
The report is based on the Census Bureau data. Business start-up rate among immigrants has jumped 50 percent since 1996 while the start-up rate for native-born Americans, declined by 10 percent during the same period.
The report recommends that if we want the U.S. economy to recoup, pass immigration reform so that more immigrants can start new businesses. This is what we have been telling everyone for years.
The report was authored by Robert Fairlie, an economics professor at the University of California, Santa Cruz. It found that immigrant-founded businesses tended to be smaller than other businesses, but collectively they post more than $775 billion in revenue and employ one out of every 10 workers at privately owned companies.
I agree. Immigration reform is sorely needed and we need an immediate fix to the legal immigration crisis we are facing, shortage of H-1B and immigrant visa numbers and Congress is still doing nothing in the name of protecting the American worker. This just causes outsourcing of these jobs outside the U.S.
The report is available here: http://www.renewoureconomy.org/index.php?q=open-for-business

HIGH DEMAND FOR H-1B WORKERS IN METROPOLITAN AREAS

Another story broke recently in the news reiterating the fact that American businesses cannot fill some jobs fast enough and there are not enough qualified employees out there. Most of these jobs include highly paid positions in science, including computer science, engineering and healthcare.
Most of the demand is in metropolitan areas that are mostly populated, such as the tri-state area around New York, New Jersey and Pennsylvania who have the greatest need for the highly skilled H-1B visa workers.
According to this new report, called 'The Search for Skills: Demanding for H-1B Immigrant Workers in U.S. Metropolitan Areas', by the Brookings Institute, the bulk of the demand for H-1B workers, from the Northeast U.S., accounts for 16.3 percent of all H-1B visas issued. The top four metropolitan areas, each with between 14,000 to 18,000 H-1B visa worker requests, are Los Angeles, San Francisco, San Jose, California, and the greater Washington, D.C., area.
The report recommends key policy changes, such as creating an independent commission that can recommend timely changes to immigration policy to respond more quickly to high-demand job markets (to possibly increase the cap), target H-1B visa fees to geographical areas to upgrade the skills of the existing workforce, especially where needed.
The report is available at: http://www.brookings.edu/research/reports/2012/07/18-h1b-visas-labor-immigration#overview Congress really needs to put its act together and increase the quota. It is really hurting businesses and individuals alike.

DOL PROPOSES FAR-REACHING LCA CHANGES

Long gone are the days when the Labor Condition Application (LCA) certification was done immediately. Three years ago the U.S. Department of Labor (DOL) moved into the iCert portal for LCA filings and each application must be manually reviewed prior to certification by a DOL officer. This change increased the official LCA processing time from a few seconds to 7 business days.
Now DOL is proposing yet additional changes. In its desire to improve the integrity review and ensure accuracy and completeness of the information, the DOL published a Notice in the Federal Register announcing a 60-day comment period (to end on September 7, 2012) on its proposed changes to the form ETA-9035. Changes include requiring more detailed information about the prevailing wage; requiring more detailed information regarding how the employer determined whether it is H-1B dependent and whether the non-immigrant worker is an exempt employee or if not exempt, specifying the employer’s recruitment efforts to recruit U.S. workers; and requiring the employer to list the address where the employee’s public access file is kept.
While the change in regulations is a process that can take several months, the changes must be approved by the federal Office of Management and Budget (OMB) before they can be implemented. Some of the changes are even more significant, including a proposal to identify the intended beneficiaries on the LCA. Currently the LCA does not require any information identifying the intended beneficiaries of the H-1B petition. The new form will collect information on the nonimmigrant(s) including name, date of birth, country of birth, country of citizenship and current visa status. If a PERM labor certification application was filed on behalf of the intended beneficiary, the PERM application number must be listed on the LCA.
In its LCA supporting statement, the DOL states that this new information will allow its Wage Hour Division (WHD), which was created with the enactment of the Fair Labor Standards Act (FLSA) and is responsible for the administration and enforcement of a wide range of laws, to more efficiently gather information during its enforcement activities and to find beneficiaries who may be entitled to back wages after an investigation. The DOL claims that this change will cause little extra burden because employers “generally know who the beneficiaries are before filing the LCA except possibly for the 2.6 percent of employers who file LCA’s for more than 10 employees.” Because iCERT saves much of the information on an LCA which can later be used to fill out other LCAs, the DOL states that it will not be overly burdensome for an employer to complete more than one LCA. The DOL also refers to its “relatively quick turnaround on LCA approval” as another reason why employers do not need to complete one LCA for large numbers of beneficiaries.
While the DOL has some valid points, its rules may violate privacy issues. Since the LCA are available for public inspection, the beneficiaries have rights to privacy and identity information. In addition, employers now may use a certified LCA to file an H-1B petition for a new employee if the existing LCA was not used for someone else or a part of a withdrawn H-1B. This will be more cumbersome for employers who may want to use existing LCAs. Because of the lag time from filing to certifying the LCAs, employers routinely file LCAs in advance of transferring a particular employee over in order to save precious time. If this change is accepted this will not be possible any longer.
As to the requirement to list the PERM application numbers, what happens in a case where the employer is not aware of a prior PERM filing for the same employee by another employer? The new DOL rule proposes to limit the number of workers to 10 per LCA versus the current practice where a single LCA may be filed for up to hundreds of workers. An employer may use a single LCA to request multiple positions where they are in the same visa category and job classification and are either all part-time or all full-time positions. This again will create burdens on larger employers.
The DOL's proposed changes include significant additional detail on the worksite. Currently the LCA form requires to identify the place of intended employment (address and county). However, under the new rules the employer will have to indicate whether the intended worksite is the employer’s business premises; the employer’s private household; the worker’s private residence; or other business premises which type must then be inserted on the form. The employer must state whether the employee placement is at an end client location. If yes, the form then requires the name of the end client.
In its LCA supporting statement, the DOL stated simply that the additional information is needed for “clarification on actual worksite to enable employer to demonstrate regulatory compliance regarding changes in worksite.” This requirement could cause serious problems especially on employees who travel between different worksites or when the final worksite is not known in advance of filing. Currently, the employer has the flexibility to send employees to new worksite locations without filing a new LCA provided the new location is in the same area of intended employment listed on the certified LCA because the LCA wage is valid for the entire area of intended employment (usually the metropolitan area). 
DOL is already targeting and scrutinizing PERM cases involving telecommuting and roving employees are currently being given increased scrutiny by the DOL. DOL adds these requirements to verify the bona fides of the offer of employment. But how does that help? 
So, while USCIS on one hand helps employers' flexibility (for example on March 12, 2012, they issued revised guidance indicating that the failure to obtain an end client letter would not be fatal to an H-1B petition), the DOL is now insisting on exactly that by requiring that the precise worksite be listed on the LCA. We need less regulation rather than more in order for U.S. companies to be able to compete in the global marketplace.

FOREIGN INVENTORS DOMINATE PATENTS AWARDED TO TOP RESEARCH UNIVERSITIES

From the business journal in Washington DC, more proof to what we have been saying all along that the H-1B visa cap needs to be thrown out the windows and additional options for foreign-born entrepreneurs:

More than 76 percent of the patents awarded to the nation’s top 10 research universities last year had a foreign-born scientist listed as an inventor. That’s according to the Partnership for a New American Economy, which analyzed 1,500 patents awarded in 2011 to the top 10 patent-producing universities in the U.S. The organization, which is composed of mayors and business leaders, contends this finding demonstrates the need to reform our immigration policies to allow more of these foreign-born inventors to remain in the United States. Many of these inventors may end up leaving the country under current policies. The study found that 54 percent of the patents studied included foreign-born inventors who were students, post-doctoral researchers or staff researchers who were not professors. These foreign researchers are the “most likely to face major hurdles obtaining the visas needed to settle permanently in the United States,” according to the partnership. University research is important because it helps the U.S. stay ahead in the fields of science, technology, engineering and mathematics (STEM). Universities receive one in six of all patents for molecular biology and microbiology, for example. Academic research institutions own more than one-third of patents in genetics. The partnership contends Congress should help the U.S. keep its research edge by passing legislation to: • Grant permanent residency -- green cards -- to foreign students who earn graduate degrees in STEM fields; • Create a Startup Visa for foreign-born entrepreneurs who want to start companies in the U.S.; and • Remove or at least raise the current cap of 65,000 H-1B visas, which are awarded to highly skilled foreigners who work in the U.S. These recommendations were seconded in a letter sent to the White House and Congress today by more than 80 university presidents. “If U.S. political leaders don’t reform the country’s broken immigration system soon, they risk jeopardizing one of the country’s biggest assets -- our ability to leverage our pre-eminent universities to attract talented foreigners and make them part of the great American success story,” the partnership’s report concludes.

The article is available at: http://www.bizjournals.com/bizjournals/washingtonbureau/2012/06/26/foreign-inventors-dominate-patents.html?ana=e_abd&page=all

The report is available at: http://www.renewoureconomy.org/

DOL INCREASES DENIAL/AUDIT RATES FOR PERMS

Disturbing statistics from the U.S. Department of Labor. The DOL has just released its PERM statistics for government Fiscal Year 2012. Year to date, (Oct. 1, 2011 – May 30, 2012), they have received 43,100 PERM applications and certified only 27,600 out of the overall number. 5,600 applications were denied and 2,100 were withdrawn. The others have been audited. So, basic math will have the approval rate at about 64% which means the denial/audit rates are increasing to 37% even while the majority of the PERMs are filed in the computer/math fields and 90% require a bachelor or a master's degree.

H-1B CAP REACHED FOR FY2013

The government's fiscal year FY 2013 did not start yet but the H-1B visa Cap was reached about 3.5 months before it started. USCIS just today updated its website with the following language: On June 11, 2012, USCIS received a sufficient number of petitions to reach the statutory cap for FY 2013. On June 7, 2012, USCIS also received more than 20,000 H-1B petitions on behalf of persons exempt from the cap under the advanced degree exemption. USCIS will reject petitions subject to the cap for H-1B specialty occupation workers seeking an employment start date in FY 2013 that are received after June 11, 2012. USCIS continues to accept petitions exempted from the cap and DOD cooperative research worker H-1B petitions and Chile/Singapore H-1B1 petitions requesting an employment start date in FY 2013.
New H-1B filings that are not cap-exempt will be accepted for FY2014 starting on October 1, 2014 (and presumably could be filed on April 1, 2014). This is a very long time away. Congress needs to get its act together and increase the quota on a permanent basis.

USCIS MAY BE DRASTICALLY SHORTCHANGING EMPLOYERS TENS OF THOUSANDS OF H-1B APPROVALS

From Greg Siskind, our guest blogger: My friend David Rubman has been quietly pursuing data for months to confirm what he has long suspected - that USCIS is actually issuing far fewer than 85,000 H-1B approvals each year (65,000 for the regular cap and 20,000 for the masters cap). How is this possible? Because USCIS calculates how many H-1B applications it will accept based on estimates of the number of cases it will deny. And they appear to be way off in their estimates. H-1B denial rates have soared over the last few years, but USCIS has not seen fit to take more H-1B applications to account for the shift. And they're also supposed to add withdrawn or revoked H-1Bs back in to the mix. USCIS ought to be reopening the application process when they err in their calculations. This year, the cap is going to be hit 15 months before the end of the fiscal year (September 30, 2013). They will have plenty of time to count and reopen the application process. But under the existing system, when they announce the cap is hit in the next few days, the process will be over until USCIS starts taking applications for the next fiscal year. The White House can't bypass Congress to increase H-1B numbers. But they can make sure that the entire quota is actually exhausted. According to David's calculations, as many as 20,000 H-1Bs per year have been wasted because of USCIS' secretive process for counting H-1B numbers. USCIS likes to throw around the word "fraud" pretty loosely when it comes to how employers use the H-1B program, but wouldn't it be ironic if it turns out that the agency has been misleading Congress and the public regarding how many H-1B approvals it is issuing? It's about time USCIS opens up regarding how it is counting numbers and why they are not reopening the cap when it is found that additional numbers are available.

AILA WARNS TO FILE H-1B PETITIONS BY MONDAY

The American Immigration Lawyers Association just sent an alert as follows: Assuming that the rate of H-1B filings has remained at least constant at 1,800 per day, another 7,200 cap-subject non-master's H-1B petitions will have been filed by the close of business today (June 7, 2012). Add that to the announced 55,600 filed as of June 1, 2012, that means that nearly 63,000 cap-subject H-1B petitions will have been filed by tonight. USCIS sets aside some (approximately 1,500 for Chile/Singapore), and accepts a number in excess of the total cap allocation of 65,000, to take into account denials and withdrawals. Some data suggests that the total number of cap-subject non-master's H-1B petitions taken in is in the neighborhood of 70,000. All of this suggests that for planning purposes, submission of H-1B petitions for delivery to service centers by Monday, June 11, 2012, (which means getting them in the hands of couriers by Saturday for Monday delivery), may be prudent.

USCIS UPDATES H-1B VISA COUNT ON 6/1/2012: AT 55,600

Less than 10,000 H-1B visas are left for FY2013. USCIS just issued another H-1B cap update. As of June 1, 2012, they have accepted approximately 55,600 H-1B petitions subject to the regular H-1B visa cap plus an additional number of 18,700 of petitions of the U.S. advanced degree quota. The limit is being reached quickly, with over 8,000 visas used in a week so there will probably be another week to submit the visas and then they will be gone until October 1, 2013. We are rushing to get everything filed on time for everyone.

DOL PERM DENIAL OR WITHDRAWN RATE CLIMBS TO 33.6%

DOL just released statistics on its PERM processing cases. As of March 2012, the rate of denied and withdrawn PERM cases was 33.6% of all cases adjudicated in March. For the current fiscal year (FY-2012) from 10/1/11-3/26/12, the rate of denied and withdrawn cases was 25%. The statistics are alarming, and this is a significant jump (of over 20%) in the denial rate of labor certifications. This is a significant change and a higher rate of denials than in the past. From FY-2008 to FY-2010, DOL approved 81.67% of labor certification applications filed according to its statistics. While the job outlook situation in the nation is still not bright, it did improve significantly from the recession and DOL will most likely be light years late to catch the trend.

USCIS UPDATES H-1B VISA COUNT ON 5/25/2012: AT 48,400

USCIS just issued another H-1B cap update. As of May 25, 2012, they have accepted approximately 48,400 H-1B petitions subject to the regular H-1B visa cap plus an additional number of 17,500 of petitions of the U.S. advanced degree quota. The limit is being reached quickly, still at a pace of about 6,000 petitions per week but anticipated to increase as the visas are about to reach their limit. There are probably a couple of weeks left before the quota is reached and then no more visas until October 1, 2013.
Congress really needs to get its act together and increase the quota altogether. 

LAC WINS RELEASE OF H-1B FRAUD DOCUMENTS FROM USCIS

Some good news - earlier this week USCIS released in full the remaining contested documents in a FOIA lawsuit brought by the American Immigration Council’s Legal Action Center on behalf of AILA (the American Immigration Lawyers Association). AILA v. DHS, filed in July 2010, sought the public release of records concerning USCIS fraud investigations in the H-1B program. The agency's H-1B visa review and processing procedures have caused confusion and concern among U.S. businesses that legitimately depend on temporary foreign workers with specialized knowledge to operate successfully. Since 2008, USCIS has implemented new, more stringent procedures and have dramatically increased the frequency of unannounced worksite inspections, yet has kept the rules and guidelines related to the review process secret. In its initial response to the suit, USCIS released only a few heavily redacted documents. Later, in response to AILA’s motion for summary judgment, USCIS released additional records, but continued to withhold unredacted versions of critical records. Finally, in response to the district court’s grant of partial summary judgment to AILA in March 2012, which found USCIS’s explanations for withholding the records insufficient, USCIS released in unredacted form the remaining contested documents: 1) an October 31, 2008 USCIS memorandum on H-1B Anti-Fraud Initiatives, 2) an H-1B Petition Fraud Referral Sheet , and 3) a Compliance Review Report. A more detailed review from AILA will be forthcoming shortly but this is good news in trying to keep the agency more transparent and help us know what to anticipate.

USCIS UPDATES H-1B VISA COUNT ON 5/18/2012: AT 42,000

USCIS just issued another H-1B cap update. As of May 18, 2012, they have accepted approximately 42,000 H-1B petitions subject to the regular H-1B visa cap plus an additional number of 16,000 of petitions of the U.S. advanced degree quota. The limit is being reached quickly, at a pace of about 6,000 petitions per week but anticipated to increase as the visas are about to reach their limit. There are probably a couple of weeks left before the quota is reached.

USCIS UPDATES H-1B VISA COUNT ON 5/11/2012: AT 36,700

USCIS just published an H-1B visa cap count update. As of May 11, 2012, they have received approximately 36,700 H-1B petitions subject to the regular cap plus an additional 14,800 petitions subject to the master's degree quota. Filings are increasing in pace from week to week, with over 4,000 visa petitions that are receipted per week. The visa usage has passed the halfway mark and filings are expected to increase on a weekly basis until the cap is exhausted. I expect the H-1B visas will be completely gone by early June 2012. And then no more visas until October 2013. This is pretty bad and Congress need to get its act together and increase the quota (nothing will happen in the current sad state of affairs in Washington D.C. but maybe something will happen after the election). People should hurry up and file now if they need to get a visa this year.

USCIS UPDATES H-1B CAP COUNT FOR FY2013 AS OF 5/7/2012

USCIS just issued another H-1B cap update. As of May 4, 2012, USCIS received approximately 32,500 H-1B cap-subject petitions. Additionally, USCIS has received 13,700 H-1B petitions for individuals with advanced degrees from U.S. universities. More than 50% of both the regular cap and the advanced degree cap petitions are gone. Companies need to get their act together and file soon otherwise the visas will be gone again.

USCIS Continues To Harm H-1B Workers and Their Employers By Restrictive Adjudication

USCIS is preventing many professional workers from obtaining H-1B visas designed for professional workers and preventing growth in U.S. companies that want to employ them because of restrictive interpretations of phrases in the Immigration and Nationality Act. The H-1B visa is commonly known as the professional workers’ visa, for people coming to work in “specialty occupations” which are occupations that normally would require a bachelor’s degree as the minimum entry level into that occupation. The immigration regulations list the types of evidence that an employer must present in order to demonstrate that a position is a “specialty occupation” and USCIS in the past followed them. However, in the last few years, without any change in regulation, oversight and notice to the public, USCIS added its own requirements to the regulations. This is really improper because it circumvents the rule-making process without authorization. In the last few years, the USCIS Administrative Appeals Office (AAO) has also reinterpreted the phrases “body of highly specialized knowledge” and “degree in the specific specialty” in such a way that limits the professional occupations to those that require only a single specific degree in a discrete academic major. This goes against past AAO decisions and against the reality where the individual’s suitable and sufficient knowledge to perform the duties of an occupation could be acquired through studies in a variety of academic areas, the position would still qualify for the “specialty occupation” definition because it required “highly specialized knowledge” related to the occupation. For example, many occupations require studies in more than one academic discipline while some academic degrees and university graduates do not come with an occupation-specific major. USCIS’ new interpretation gives the field of study of each individual control whether this individual would be deemed qualified and ignores the realities of the statutory language and real world realities. For example, a CFO could have an accounting or finance degree or a general business administration degree. A computer programmer may have a computer science degree or an engineering degree or math degree, all of give the individual unique tools to perform these highly complex duties of the occupation. The U.S. Department of Labor (DOL) has public resources and publications, including occupational information. However, USCIS dismisses the DOL classifications on one hand when an employer wants to prove a certain occupation requires a degree (such as marketing manager), and on the other hand uses the same classifications when they want to deny a case because of small variations in the language used by the DOL. For example, USCIS may accept DOL’s definition that “most employers require a bachelor degree to enter into this occupation” but may not accept language such as “many employers require a bachelor’s degree”, which is in essence the same thing. In order to fulfill the statutory requirements imposed on it, USCIS should go back immediately to implement the law and the regulations in the way they were intended, and not in this new way that has no support in the law or regulations. The American Immigration Lawyers Association wrote a very educated brief on this matter requesting USCIS to go to the proper adjudication of these petitions and I hope that USCIS will follow it.

USCIS UPDATE H-1B VISA COUNT ON 4/27/2012 AT 29,500

USCIS just published an H-1B visa cap count update. As of April 27, 2012, they have received approximately 29,500 H-1B petitions subject to the regular cap plus an additional 12,300 petitions subject to the master's degree quota.
Filings are increasing in pace from week to week, with a jump of 4,500 regular petitions and 2,400 advanced degree petitions in a week. Over 50% of the visas will be used up by next week so probably the cap will be hit earlier in the summer than expected. People should hurry up and file if they need to get a visa this year.

USCIS UPDATES H-1B CAP COUNT FOR 4/20/2012 AT 25,000

USCIS just issued another H-1B cap update for FY 2013. As of April 20, 2012, they have received approximately 25,000 H-1B cases subject to the regular cap plus approximately 10,900 subject to the advanced degree cap. As of that date, the advanced degree quota is over 50% used.

USCIS ISSUES H-1B VISA UPDATE - AS OF 4/13/2012

USCIS just updated its count of FY2013 cap-subject H-1B petitions.

As of April 13, 2012, USCIS has received approximately 20,600 H-1B cap-subject petitions under the regular H-1B cap (out of a total of 65,000) and an additional 9,700 H-1B petitions for people with advanced degrees.

The H-1B master's degree quota is almost half gone (it will probably be more than 50% gone by the same time next week). The regular quota is still available, but not for long. Probably will be gone by the summer based on my predictions.

USCIS UPDATES H-1B FAQS FOR CAP-GAP F-1 STUDENT CASES

USCIS updates H-1B cap gap FAQs for students who are in the U.S. in valid F-1 student status and working under OPT or Optional Practical Training. It is not a new guidance but rather an expansion on their policy that basically these students can remain in the U.S. and continue to work (their OPTs are automatically extended) as long as the H-1B visa remains pending and a timely change of status petition is filed from F-1 to H-1B with a start date of October 1, 2012.
The student should go to their Designated School Official (DSO) with evidence of a timely filed H-1B petition (indicating a request for change of status rather than for consular processing), such as a copy of the petition and receipt notice (Form I-797, Notice of Action). The student’s DSO will issue a new cap-gap I-20 indicating the continued extension of F-1 status.
If USCIS denies, rejects, or revokes an H-1B petition filed on behalf of an F-1 student covered by the automatic cap-gap extension of status, the student will have the standard 60-day grace period (from the date of the notification of the denial, rejection, or revocation of the petition) before he or she is required to depart the United States, except if the revocation was due to fraud, material misrepresentation or due to the student's own violation of status.
The updated FAQs are at: http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=1d175ffaae4b7210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD

USCIS UPDATES 2013 H-1B COUNT ON 4/9/2012: AT 17,400

USCIS just announced on Friday that it has received approximately 17,400 H-1B petitions counting toward the 65,000 cap, and approximately 8,200 petitions toward the 20,000 cap exemption for individuals with advanced degrees, for a total of more than 25,600 in the first week of filing, more than a quarter than the available numbers for the entire year.
USCIS will continue to accept petitions until the quota is exhausted.
With these numbers going strong this year, I do not expect the numbers to last until the summer.

USCIS TO ACCEPT H-1B PETITIONS FOR FY2013 ON APRIL 2, 2012

USCIS just issued a press release stating that they will Accept H-1B Petitions for Fiscal Year 2013 Beginning April 2, 2012 (well that is because April 1 is a Saturday).

As always, cases will be considered accepted on the date that USCIS takes possession of a properly filed petition with the correct fee. USCIS will not rely upon the date that the petition is postmarked.
The numerical limitation on H-1B petitions for FY 2013 is still at 65,000 (or a bit lower because of Chilean and Singapore trade agreement quotas). Additionally, the first 20,000 H-1B petitions filed on behalf of individuals who have earned a U.S. master’s degree or higher are exempt from the fiscal year cap.
USCIS will monitor the number of petitions received and will notify the public of the date on which USCIS received the necessary number of petitions to meet the H-1B cap. If the number of applications received exceeds the numerical cap, USCIS will randomly select the number of petitions required to reach the numerical limit from the pool of petitions received on the final receipt date. USCIS will reject cap-subject petitions that are not selected, as well as those received after the final receipt date.
We'll keep you posted...

ADDITIONAL THOUGHTS ON H-1B EMPLOYER-EMPLOYEE RELATIONSHIPS

Q5: Am I required to submit a letter or other documentation from the end-client that identifies the beneficiary to demonstrate that a valid employer-employee relationship will exist between the petitioner and beneficiary if the beneficiary will perform services at an end-client/third-party location?
A5: No. While documents from the end-client may help USCIS determine whether a valid employer-employee relationship will exist, this type of documentation is not required. You may submit a combination of any documents to establish, by a preponderance of the evidence, that the required relationship will exist. The types of evidence listed in the memorandum are not exhaustive. Adjudicators will review and weigh all the evidence submitted to determine whether you have met your burden in establishing that a qualifying employer-employee relationship will exist.
Q13: The memorandum provides an example of when a computer consulting company had not established a valid employer-employee relationship. Are there any situations in which a consulting company or a staffing company would be able to establish a valid employer-employee relationship?
A13: Yes. A consulting company or staffing company may be able to establish that a valid employer-employee relationship will exist, including where the beneficiary will be working at a third-party worksite, if the petitioning consulting or staffing company can demonstrate by a preponderance of the evidence that it has the right to control the work of the beneficiary. Relevant factors include, but are not limited to, whether the petitioner will pay the beneficiary’s salary; whether the petitioner will determine the beneficiary’s location and relocation assignments (i.e. where the beneficiary is to report to work); and whether the petitioner will perform supervisory duties such as conducting performance reviews, training, and counseling for the beneficiary. The memorandum provides a non-exhaustive list of types of evidence that could demonstrate an employer-employee relationship.
It is good to know that the failure to submit direct document from the end client will not be fatal now to an H-1B petition (in the past USCIS denied cases because of that). It is often times very difficult to obtain such a letter from the end client, especially when there are multi-party arrangements between the end client and company. Moreover, the end client may not want to be involved in any way in the visa petitioning process. The revised Q & A states that the petitioner “may submit a combination of any documents to establish, by a preponderance of the evidence, that the required [employer-employee] relationship will exist.”
In the answer to Question 13, USCIS states that a consulting or staffing company can still demonstrate through the preponderance of the evidence that it has the right to control the work of the beneficiary, even though they may be working at a third party client site. Examples of such control include conducting performance reviews, training and counseling for the beneficiary. It is a bit encouraging that this guidance provides a few examples that are indicative of “the right to control.” So as long as the ultimate supervision of the beneficiary is at the hands of the H-1B petitioner, the absence of day-to-day review will not be fatal.

USCIS REVISES FAQ ON H-1B EMPLOYER EMPLOYEE RELATIONSHIP

Earlier this week USCIS issued revised guidance in the FAQs online on employer-employee relationship in the H-1B context.
Nothing new, the Neufeld memo is unfortunately still the controlling document in this sad state of affairs from USCIS.
The biggest change was Q13:
Q13: The memorandum provides an example of when a computer consulting company had not established a valid employer-employee relationship. Are there any situations in which a consulting company or a staffing company would be able to establish a valid employer-employee relationship?
A13: Yes. A consulting company or staffing company may be able to establish that a valid employer-employee relationship will exist, including where the beneficiary will be working at a third-party worksite, if the petitioning consulting or staffing company can demonstrate by a preponderance of the evidence that it has the right to control the work of the beneficiary. Relevant factors include, but are not limited to, whether the petitioner will pay the beneficiary’s salary; whether the petitioner will determine the beneficiary’s location and relocation assignments (i.e. where the beneficiary is to report to work); and whether the petitioner will perform supervisory duties such as conducting performance reviews, training, and counseling for the beneficiary. The memorandum provides a non-exhaustive list of types of evidence that could demonstrate an employer-employee relationship.


The FAQ is available at:
http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=3d015869c9326210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD

NFAP POLICY BRIEF FINDS HIGH DENIAL RATES FOR L-1 AND H-1B PETITIONS BY USCIS

The National Foundation for American Policy (NFAP) just issued a policy brief analyzing the government’s data which reveals that USCIS, our immigration agency, dramatically increased the denial rate of L-1 and H-1B petitions over the past four years, harming the competitiveness of U.S. employers and encouraging companies to keep more jobs and resources outside the United States.
This report is alarming and confirms what us immigration law practitioners have experienced in the past few years. It proves that USCIS adjudicators have artificially and arbitrarily increased the number of denials and time-consuming requests for additional evidence from employers, keeping more highly skilled professional workers outside the United States despite no change in law or regulations.
The visa that received the most scrutiny by USCIS is the L-1B visa used by international companies to bring their specialized knowledge workers. In FY 2011 63 percent of all L-1B petitions received a Request for Evidence and 27 percent were issued a denial, which means USCIS denied or delayed between 63 percent to 90 percent of all L-1B petitions during that time. Compared with only a 7 percent denial rate in FY2007, and only a 2 percent cases where USCIS requested additional evidence in FY2004, combined with the fact that employers now are much more selective about who they sponsor for this visa, this is a deliberate effort of USCIS to limit the use of this visa and it directly hurts international businesses because it is costing them millions in project delays and penalties.
The report stated that denial rates for H-1B petitions increased from 11 percent in FY 2007 to 29 percent in FY 2009, and remained higher than in the past for H-1Bs at 21 percent in FY 2010 and 17 percent in FY 2011. For H-1B petitions, the Request for Evidence rate rose from 4 percent in FY 2004, to 18 percent by FY 2007, to a high of 35 percent in FY 2009. In FY 2011, the rate for request for additional evidence for H-1B petitions was 26 percent.
It is alarming that almost a third of the H-1B visa cases are significantly delayed or denied by USCIS and employers are burdened with significant costs to respond to them and delay their projects. There is no logical reason why companies that are now more selective in hiring professional workers should face such advanced scrutiny where there is now more than twice the chance the application will be denied compared to prior years.
The L-1A visa is used by international companies to transfer managers and executives into the United States. Denial rates for L-1A petitions increased from 8 percent in FY 2007 to 14 percent in FY 2011. The Request for Evidence rate for L-1A petitions increased from 4 percent in FY 2004, to 24 percent in FY 2007, up to 51 percent in FY 2011.
The fact that during the most recent fiscal year, USCIS arbitrarily increased the denial rate or delay rate to half of the cases filed in this category of international managers or executives is outrageous. These are people we want to welcome to this country because they work for multinational corporations that make significant investments in the United States. They will not continue to do that if they will not be able to transfer their managers or executives from abroad to oversee expansion and similar projects.
The denial rates also increased for O-1A petitions, which are used for people with an extraordinary ability, who are in the top of their fields in the sciences, education, business, or athletics. Denials for O-1A petitions rose from 4 percent in FY 2008, to 10 percent just one year later in FY 2009, increased again to 11 percent in FY 2010, and stood at 8 percent in FY 2011. For O-1A petitions, the Request for Evidence rate increased from 1 percent in FY 2004, to 13 percent in FY 2007, and then more than doubled to 28 percent in FY 2009, 30 percent in FY 2010, and 27 percent in FY 2011.
This deliberate effort of USCIS to create additional hurdles on the O-1 visa applicants, who are the best and brightest in the world in what they do, is more than just bad for business. It is even worse for extraordinary researchers and scientists who are supposed to help us find cure to diseases or find the next new technology out there to solve many of our problems. These are the people the United States needs to attract and welcome with less hurdles, not more. Instead, the immigration agency is creating additional barriers to their entering the country by artificially increasing the heightened scrutiny and denial rates.
The best thing the immigration service can do is to make the process easier for all these professionals and companies because they are the kind of people we want to attract here and they represent the interests of billions of dollars in investments in this country. If USCIS wants to help create jobs, it needs to remove barriers to entry of the best and brightest, not create additional obstacles as it currently does. I think more employers now are willing to sue the government in order to protect their rights. We have helped a number of them do that successfully so there are options but they are more costly and difficult.

To read the NFAP report, go to: http://www.nfap.com/pdf/NFAP_Policy_Brief.USCIS_and_Denial_Rates_of_L1_and_H%201B_Petitions.February2012.pdf  

H-1B VISAS FOR FY2013

H-1B season is here again with new petitions for FY2013 (based on the government's fiscal year of 10/1/2012-9/30/2013). Employers who wish to file for their employees now prepare petitions for cap-subject applicants to start on 10/1/2012. USCIS will start accepting these applications on April 2, 2012 (because April 1st falls on a Saturday).
Even though the petitions can be filed in April, the actual start date cannot be sooner than October 1, 2012, the beginning of fiscal year 2013, unless certain conditions are met (For example a student in valid OPT status can continue to work throughout 10/1/2012 when a change of status request is approved).
USCIS changed its mind and decided not to go forward with the proposed advance registration rule of employers prior to filing H-1B petitions (See "Registration Requirement for Petitioners Seeking to File H-1B petitions on Behalf of Aliens Subject to the Numerical Limitations," Federal Register, Volume 76, No. 42, March 3, 2011). The proposed rule was opposed by many in the public comment stage including the Small Business Administration Office of Advocacy and is really unnecessary in these years where the cap did not get exhausted immediately.
Because the economy is improving, I project that H-1B visas will be reached much earlier in the fiscal year than last year (when it was exhausted late November).
Any employer that is contemplating filing an H-1B visa petition in the next year should do so sooner rather than later.

MARCH 2012 VISA BULLETIN ADVANCES IN SOME EMPLOYMENT CATEGORIES

The U.S. Department of State just issued the March 2012 visa bulletin.
Employment 1st – still current in all categories.
Employment 2nd – World numbers, Mexico, and Philippines still current, China and India jumped four months ahead to 01 May 10.
Employment 3rd – World numbers, Mexico, and Philippines advanced three weeks to 15 March 06; China jumped one month to 01 January 05; India moved one week to 22 Aug 02.
Employment 3rd Other Workers – World numbers, Mexico, and Philippines advanced three weeks to 15 March 06; China remains stalled at 22 April 03; one week advance for India to 22 August 02.
Employment 4th – still current in all categories.
Employment 5th – still current in all categories.
Sluggish advancement for those waiting for green cards.

WOULD LIBERALIZING H-1B RULES BRING IPHONE MANUFACTURING BACK TO THE US?

If you didn't read last weekend's really interesting New York Times article on Apple and why the iPhone is made in China rather than the United States, you really ought to read it. One area the reporters discuss is how US immigration policy has factored in to Apple's decision. The article looks at labor costs and while there are some savings with making the iPhone in China, that is not the primary driver in why the phone is not made in America.
But such calculations are, in many respects, meaningless because building the iPhone in the United States would demand much more than hiring Americans — it would require transforming the national and global economies. Apple executives believe there simply aren’t enough American workers with the skills the company needs or factories with sufficient speed and flexibility. Other companies that work with Apple, like Corning, also say they must go abroad.
One interesting part of the article is discussed at the very end. Steve Jobs hosted a dinner for President Obama and which was attended by leading Silicon Valley executives. A few ideas were discussed on ways to encourage companies to bring manufacturing back home.
At dinner, for instance, the executives had suggested that the government should reform visa programs to help companies hire foreign engineers. Some had urged the president to give companies a “tax holiday” so they could bring back overseas profits which, they argued, would be used to create work. Mr. Jobs even suggested it might be possible, someday, to locate some of Apple’s skilled manufacturing in the United States if the government helped train more American engineers.
Economists debate the usefulness of those and other efforts, and note that a struggling economy is sometimes transformed by unexpected developments. The last time analysts wrung their hands about prolonged American unemployment, for instance, in the early 1980s, the Internet hardly existed. Few at the time would have guessed that a degree in graphic design was rapidly becoming a smart bet, while studying telephone repair a dead end.
This is a point I've raised many times in this column. Immigration is not a zero sum game where hiring a foreign worker means a loss of a job for an American. In the Apple case, tens of thousands of manufacturing jobs could be created in the US to make iPhones if perhaps a few hundred or thousand highly skilled immigrants were readily available to fill positions where there are too few qualified Americans.
That's why I am encouraged to see Newt Gingrich promoting completely eliminating the H-1B visa cap. Our current H-1B cap was created in 1990, before there was an Internet. We are essentially handcuffed by rules set three decades ago for a very different American economy. And we are paying dearly for Congress' unwillingness to modernize our immigration policy.
Here's a link to the article: http://www.nytimes.com/2012/01/22/business/apple-america-and-a-squeezed-middle-class.html?_r=1

TRAVEL FIRMS PRESS FOR SPEEDIER U.S. VISA PROCESSING

From the New York Times: "Travel groups and convention planners are among the groups pressing the United States to change some of its more onerous visa requirements, arguing that the current rules are keeping out many international business travelers and that a faster, more efficient process would help American companies compete in the global marketplace." Duh. We all know this.
"The waiting time to obtain a visa in some countries can be up to 100 days, according to the trade group U.S. Travel Association, and travelers who do not live in or near a city where an American consulate is located may have to spend hundreds of dollars in travel expenses for mandatory face-to-face interviews." And they are right. Absolutely nothing, about a 100-day wait time to make us any more secure. The low staffing levels and low level of training at some U.S. consulates and embassies not only does not improve our national security but actually hinders it. Requiring personal interview from just about everybody also hurts.
According to the article, global long-haul travel grew by 40 percent from 2000 to 2010, but the United States’ share fell to 12.4 percent from 17 percent. The association calculated that by failing to keep pace, the United States lost 78 million potential visitors who would have generated $606 billion in spending.
The immigration laws in this country needs to change. When a consular officer's focus in each interview is to determine whether someone is a potential immigrant or not without set standards the security factor dwindles and this hurts our economy even further.
http://www.nytimes.com/2012/01/17/business/thwarted-travelers.html?_r=2&partner=rss&emc=rss