Employment-Sponsored Immigration

Suman’s Surprise – An EB-1 Outstanding Researcher Success

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Suman

I don’t know “Suman” very well, as I have mostly worked with her husband, “Karan.” Suman was born in India, but spent a part of her adult life living in other parts of Asia as she followed Karan’s career around the world. Besides continuing to work full time, Suman was the primary caretaker for the couple’s child. She has been living in the United States for about a year and loves it here!

Karan is an outstanding researcher in the field of Biotechnology. His arduous research at a major US university is helping to improve the environment both in the United States and overseas. He is also helping to develop crops that will not only grow more efficiently, but will taste better to consumers.

As citizens of India, it was quite difficult for Karan, Suman and their daughter to obtain permanent residence in the United States. There is an annual quota for each category of permanent residence. Each country can only use 7% of the quota each year, so certain categories are oversubscribed, and that country’s citizens must wait years to “move to the head of the line” with respect to the quota.

In Karan’s case, there were two ways he could get permanent residence. The easier way would be to prove that his work is in the national interest (we all want a better environment and better tasting crops, I think), that it would have nationwide benefits (ditto) and that his work is exceptional among his peers. However, this particular category is so oversubscribed among citizens of India that the family’s wait for permanent residence would have been close to ten years. During this time, it would have been very difficult, or maybe impossible, for Suman to work legally in the United States. The family would have to survive on one postdoctoral researcher’s income. Sadly, in spite of the importance of Karan’s work, this pay is not enough for a family of three.

So we tried a different category; “outstanding” researcher, or category EB-1. This category has a much higher standard, but it is not oversubscribed. The family could become permanent residents within about 90 days of the immigration officer’s finding that Karan’s work is “outstanding.” Suman would be able to keep working. (She had a temporary work authorization that she would not have been able to renew after the end of August, 2015).

It was getting close to August. The family was facing the loss of Suman’s income, which would have led to very difficult times. So Karan turned to me for help.

I reviewed Karan’s cv with him, and told him that I thought his work was outstanding, but that I was not the one who would decide his case. I could only prepare an application package and submit it to USCIS. I worked intensely with Karan over a six-week period to gather reference letters from his peers, along with about 80 other supporting documents. Karan paid the government an additional $1,225 “premium processing” fee, over and above the normal $2,720 government filing fee, to insure that the government would make a decision about whether or not his work was “outstanding” within 15 days. Quite a gamble when the government’s standard of review is often prohibitive in these cases. Karan, who was aware of the risk, was willing to take it to ensure his family’s future.

Sure enough, within about a week, we received a preliminary approval notice, and I expect the family to become permanent residents before the end of the year.

So why is this blog post called “Suman’s Surprise?” Because Karan decided to surprise Suman with the approval. In fact, he didn’t even tell her he was submitting the preliminary application package. When it was approved, Karan took his family out to Maggiano’s for a great Italian dinner. He first handed his phone to a friend to take a video. Then he told Suman he was giving her an early birthday present, and handed her an envelope with the preliminary approval notice inside. There were several other associated documents, and Suman took a few minutes to leaf through them, trying to understand the significance.

Finally, she “got it.” Watching the video of her face move from confusion to exuberance was one of the most rewarding moments of my career. Suman gradually realized that her family would be able to remain in the United States indefinitely, that she would be able to continue working, and that their child would be a “normal” part of the American fabric. Her smile grew bigger as she figured out each implication of the pieces of paper in her hands. As she got up to hug Karan, he told the camera, “I didn’t tell her.” The couple’s daughter caught the mood and began hugging both parents, running from one side of the table to the other.

I hope that I get to meet Suman, Karan and their daughter one day. They live far from Chicago so they will have to plan a family “road trip.” But whether I ever meet them or not, I am glad that the United States will continue to benefit from their presence here.

Bao’s Brilliant Son – an Immigration Success Story

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“Bao’s” son “Xing” is a brilliant student. As a high school senior, he played violin in the college orchestra. He was captain of his high school’s math team, which won several state championships and then came in second on a national level.

Bao came to the United States with her family when Xing was about three years old. At the time, Bao and her husband were undergrad students. As foreign students, ineligible for FAFSA or in-state benefits, they subsidized the Americans attending their universities. They remained through Bao’s Ph.D. and eventual position as a professor.

Bao and her husband are athletes and her field of expertise is teaching coaches to excel. She ended up training one of the coaches whose team won an Olympic gold medal. The college team that her husband coached won a national championship.

Bao and her husband have always paid taxes. But as Xing approached college age several years ago, he was not eligible for FAFSA or even in-state tuition. The solution was for Bao and her family to become US permanent residents. When I met them, they had started applying for this status years before. Although they were fully qualified, quotas kept them from getting final approval; there were still many thousands “in line” ahead of them.

Bao had applied for permanent residence as a university professor, a category that is virtually guaranteed for approval. However, only 7% are allotted to citizens of any one country each year. Chinese and Indian citizens are severely effected by this quota, simply because of the sheer numbers of applicants.

Time was running out. Xing would be a high school senior within a year, but the family was not likely to have made it to the front of the “quota line.” So Bao contacted me to discuss a way to sidestep the line. She would submit a new application for permanent residence, paying a new set of fees. But this time, she would try a more complex procedure; “outstanding professor,” not just “university professor.” Although there is also a quota for the “outstanding professor” category, it is never over-subscribed.

So Bao and I got to work. We gathered certificates showing her achievements, a list of the many citations to her published papers, letters from her peers discussing how she stood out among them, and evidence that she had trained coaches who had gone on to highly successful careers. Her application package took well over a ream of paper.

It was late October of Xing’s senior year of high school. The deadline for early-decision applications to his first-choice university was drawing near. But he held off on submitting the application, waiting for the day he could check off “permanent resident” in the citizenship category section.

Coincidentally, I had planned a trip to visit Bao and several of my other clients at her university, several hundred miles from my office, in mid November. On about November 5, we received notification that Bao had been approved for permanent residence as an “outstanding professor,” with her husband and son obtaining the status as derivatives. They got their cards in the mail the day before I visited their university.

I had never met Bao before that day; like many of my clients, all of our interactions had been by phone, fax, email and Fed Ex. The day I met them, they were thrilled to show me the cards demonstrating their new status.

Xing ended up at his first choice, nationally-recognized university, where he excelled in his classes. The family is an American success story!

H-1B cap and denials have prevented job creation and wage growth for US-born tech workers

By | Employment-Sponsored Immigration, Politics, Tech Workers, USCIS, Visas | No Comments

it office

The Partnership for a New American Economy’s new report, Closing Economic Windows: How H-1B Visa Denials Cost U.S.-Born Tech Workers Jobs and Wages During the Great Recession, shows how existing H-1B visa lottery caps disproportionately hurt American-born tech workers by slowing job and wage growth in more than 200 metropolitan areas across the United States. H-1B visa denials in 2007 and 2008 caused these areas to miss out on creating as many as 231,224 tech jobs for American-born workers in the years that followed and cost U.S.-born, college-educated workers in computer-related fields as much as $3 billion in aggregate annual earnings.

Key report findings include:

  • The high number of H-1B visa applications that were eliminated in the 2007-2008 visa lotteries represented a major lost opportunity for U.S.-born workers and the American economy overall. The rejection of 178,000 H1-B visa applications in computer related fields in the 2007 and 2008 H-1B visa lotteries caused U.S metropolitan areas to miss out on creating as many as 231,224 often highly-sought after tech jobs for U.S.-born workers in the two years that followed. The total number of U.S.-born workers with computer-related jobs would have exceeded 2 million by 2010 with that additional employment.
  • The U.S. tech industry would have grown substantially faster in the years immediately after the recession if not for the large number of visas that didn’t make it through the 2007 and 2008 H-1B visa lotteries. The number of jobs for U.S.-born workers in computer-related industries would have grown at least 55 percent faster between 2005-2006 and 2009-2010, if not for the applications eliminated in the recent H-1B visa lotteries. Computer firms could have added as many as three times more jobs for U.S.-born workers than they actually did during that period without all the unsuccessful H-1B visa applications.
  • U.S.-born workers without bachelor’s degrees were disproportionately hurt by the H-1B visa lotteries in 2007-2008. Because less-educated tech workers often play valuable roles supporting the work of high-skilled engineers, programmers, and others, they were particularly impacted by recent H-1B trends. By 2009-2010, U.S. metropolitan areas lacked as many as 188,582 computer-related jobs for U.S.-born workers without a college degree as a direct result of the large number of applications that were eliminated in the 2007 and 2008 H-1B visa lotteries. The number of positions missing from the economy for U.S.-born, college-educated tech workers, in contrast, was between 24,280 and 42,642.
  • The H-1B visa lotteries in 2007 and 2008—and the denials resulting from them—greatly slowed wage growth for workers in computer-related industries. In 2009, the 1.1 million U.S.-born, college-educated workers in computer-related fields missed out on as much as $3 billion in aggregate annual earnings as a direct result of the large number of applications that were unsuccessful in the H-1B visa lotteries in the 2007-2008 period. From 2005-2006 to 2009-2010, wages for college-educated, U.S.-born workers with computer-related jobs grew by 1.7 percent. Without the earlier visa lotteries, their wages could have grown by as much as 4.9 percent during that period.
  • For some cities, the H-1B visa lotteries in 2007 and 2008 had a particularly large impact.  In New York City and Northeast New Jersey, the large number of H-1B visas that didn’t make it through the lottery for workers in computer-related fields caused the local economy to miss out on creating as many as 28,005 jobs for native-born workers in those industries by 2009-2010. The Washington, DC metropolitan area, including parts of Virginia and Maryland, lost the opportunity to create as many as 30,222 computer-related jobs for U.S.-born workers during that period; Chicago and Dallas Forth Worth passed up the opportunity to create as many as 27,329 such positions together.

This report was prepared for the Partnership for a New American Economy by Giovanni Peri, University of California, Davis and the National Bureau of Economic Research; Kevin Shih, University of California, Davis; and Chad Sparber, Colgate University.

Department of Labor hurts American workers by disadvantaging American businesses

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American businesses can hire and retain foreign workers permanently by going through the “labor certification” process.  As a part of this process, the American business must go through several highly choreographed recruitment steps designated by Department of Labor regulations.  If a qualified American comes forward, willing and able to take the position at the offered salary, the business may not move forward with the labor certification process.

Assuming no qualified Americans come forward, the employer submits an online Application for Permanent Employment Certification (Form 9089) to the Department of Labor.  This ten page form is quite detailed and complex.  The employer must list all of the position requirements and all of the foreign worker’s qualifications.  A number of pre-printed boxes on the form ask whether the foreign worker has the required education, experience and training, whether an alternate combination of education and experience are acceptable and if so, whether the foreign worker has this alternate combination of education and experience, and so on.  These detailed questions take up about two pages.

But the Department of Labor has recently made it a practice to deny applications that fail to answer a question that is not asked on the form.  That is, many occupations, such as doctors, accountants, and engineers require licenses to practice their profession.  There is a special box on the form (in addition to the two pages indicated above) where the employer indicates that the license is required.  Yet nowhere on the pages of detailed questions does DOL ask if the foreign worker actually has the required license.  DOL has nevertheless taken the position that these applications will be denied if the employer does not indicate on the form that the foreign worker has the required license.  Through an FAQ buried deep in the DOL website, it apprises employers where they must make this disclosure.

Businesses spend thousands of dollars on this application process, between advertising costs and legal fees.  They invest tens of thousands of dollars in training employees.  When DOL denies these applications the businesses have lost this money, or often they must start over and spend it again, keeping them from investing in the business and perhaps adding additional employees.

One would expect that DOL would understand that by disadvantaging American businesses, they are harming the American and foreign workers that those businesses employ.

Proposed USCIS rule will allow some H-4 dependent spouses to work

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On May 12, 2014, USCIS published a proposed rule that would extend employment authorization to certain H-4 dependent spouses. The extension would be limited to H-4 dependent spouses of H-1B nonimmigrants who are either the beneficiaries of an approved Immigrant Petition for Alien Worker (Form I–140) or who have been granted an extension of their authorized period of admission in the United States under the American Competitiveness in the Twenty-first Century Act of 2000 (AC21).

As explained in the Federal Register,

The lack of employment authorization for H–4 dependent spouses often gives rise to personal and economic hardship for the families of H–1B nonimmigrants the longer they remain in the United States. In many cases, for those H–1B nonimmigrants and their families who wish to remain permanently in the United States, the timeframe required for an H–1B nonimmigrant to acquire lawful permanent residence through his or her employment may be many years. As a result, retention of highly educated and highly skilled nonimmigrant workers in the United States can become problematic for employers.

So although not all H-4 dependent spouses will get employment authorization, the proposed rule will still have a positive impact on both immigrants and their U.S. employers. This is especially true considering that many I-140 beneficiaries face huge backlogs in visa availability dates and will therefore be unable to adjust their status for several years.

Here’s the link to the proposed rule: http://www.gpo.gov/fdsys/pkg/FR-2014-05-12/pdf/2014-10734.pdf

Congressional inaction on immigration may jeopardize identity security

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Many people think of immigration reform only in the context of the dispute about undocumented immigrants.  Lost in all the discussions about whether or not the undocumented should be allowed a “path to citizenship” is the discussion about the major changes needed in employment-sponsored immigration.

Each April, high tech companies and other employers needing skilled workers compete in the “H-1B lottery” for a chance to employ foreign workers.  Each year, thousands of employers lose this competition, after gambling thousands of dollars on legal fees and other expenses.  For example, during the first week of April, 2014, US Citizenship and Immigration Services received some 172,000 H-1B visa applications for some 85,000 available H-1B visas.  USCIS accepted 85,000 plus some margin to cover expected denials.  The remaining application packages were rejected and returned to the employers or their attorneys.

I have a theory that the scarcity of H-1B visas has led to some of the recent US credit card data breaches. For example, during the 2013 Christmas shopping season, millions of Target customers learned that their identities had been compromised through their use of credit cards at Target.  This serious scandal has recently led to the resignation of Target’s CEO, Gregg Steinhafel.

My theory that this could have been averted if more H-1B visas were available is based on the fact that most European countries long ago switched to a more secure chip-and-PIN technology, instead of the current magnetic stripe system still used on most US credit cards.  I believe that if more high tech workers had been able to obtain H-1B visas, the US may have used these workers to assist in switching to the more sophisticated technology much sooner.

This firm has prepared H-1B applications for high tech workers, graphic artists, behavioral analysts, convention managers, biotech workers and many others who are badly needed by their employers. The employers are required to pay these employees the “prevailing wage.”  In fact, from time to time we have had to tell employers that the US Department of Labor will require them to pay the foreign employees more than they pay US workers in similar positions!  Clearly, the employers would not go through the costly and time-consuming uncertainty of preparing and submitting an H-1B application, then waiting to see if their application is accepted in the H-1B lottery, if there were sufficient US workers available for these positions.

The H-1B workers do not take jobs from Americans; instead they create jobs.  For example, a factory that can hire H-1B workers as engineers will not only employ American workers to build the products, but also spur the American economy as the workers buy homes, cars and other major purchases, as well as day-to-day needs such as food and clothing.

Congress needs to take action to increase the availability of H-1B visas, so that Americans’ identities can be more secure and so that American businesses can remain competitive in the global marketplace.