Immigration Visa Lawyer Blog

I have heard many of my clients who frequent our offices in Ohio, Michigan and Washington, D.C. and who sponsor H-1b workers attesting to the valuable contributions introduced by the employment of foreign labor. It is a myth that companies who employ foreign nationals do so to exploit cheaper labor. The truth is, employers who seek skilled foreign labor normally do so only after exhausting the available US labor pool and only in seeking scarce highly skilled workers. It has been documented that H-1b workers foster growth in the US economy by projecting new products and services into the market place.

With so many documented benefits, and as the national unemployment rate increases during the current downturn in the economy, the US Department of Labor (“US DOL”) Wage and Hour Division will be more apt to stepping up investigations of companies who regularly employ foreign nationals relative to H-1b violations. Yet with so many audits coming down the pike, few are able to find what my clients call a "competent Department of Labor audit lawyer."

The main mission of the Labor Department is to protect the interests of the US workforce and to assure that the employment of foreign nationals does not adversely affect the working condition of US citizens. If the reader of this article has never had experience with a Labor Department audit process also known as the LCA compliance investigation, LCA audit, or H-1b audit, he or she cannot begin to comprehend the nightmarish impact and disruption such process has on a business. It is a very difficult process for an employer to endure both financially and psychologically. The penalties and back wages are often six digits.

The thrust of the US DOL audit (H1b audit) is to discover employer violations of any of the regulatory directives implicit in the LCA attestations. Employers who sponsor H-1b workers know that these requirements are several. For instance, H-1b sponsoring employers must maintain a “public access file” containing certain records; the employer must also maintain updated approved LCAs when the “worksite” of the H-1b employee changes and must pay “prevailing wages.” The employer may not “bench” H-1b employees and is considered in violation of the regulations.

Continue reading " Effective Legal Representation is Key to Defending LCA Department of Labor Investigations (H-1b Audit or LCA Audit) " »

Posted by Gus M. Shihab | Permalink | Email This Post

Posted In: H-1B Visa

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Dear President-Elect Obama,

We hope you had a Merry Christmas. As immigration lawyers and immigration attorneys we would like to extend our season’s greetings to you and your family. We know you had a great year in 2008 and you earned it. But many Americans had a jobless Christmas this year. From the nation capital, Washington, DC, to the heartland of Cleveland and Columbus, Ohio to the motor city, Detroit, Michigan we know that Job creation will be your biggest challenge. So let me explain why the H-1B visa cap increase has no negative effect on US Job creation.

Job Creation

One major concern of opponents of an increase in H-1B visas is that holders of these visas are taking jobs away from U.S. workers. However, this argument is based on a misconception of the process involved in issuing H-1B visas and the reasons why an increase is needed. H-1Bs are issued to holders of a bachelor or higher degree in specialty occupations where there are no available U.S. workers. In general, companies that hire H-1B temporary workers do so in order to grow, not to replace U.S. workers. Those companies are creating jobs.

There are checks against using the H-1B program to displace U.S. workers. The H-1B application process involves filing a Labor Condition Application (LCA) with the Department of Labor in which the employer certifies that the wages to be paid to the temporary worker will equal or exceed the prevailing average for the occupation, and that the working conditions will not have an adverse effect on similarly situated U.S. workers, among other things. Also the H-1B program requires companies to confirm that the H-1B workers are not replacing American workers. If some companies are slipping through the cracks and using the H-1B program to take jobs from U.S. workers, that would be a reason for procedural reform, and not a reason to make fewer H-1Bs available.

Continue reading " The H-1B Visa Cap Should be Increased, An Open Message to President-Elect Obama, Part Two " »

Posted by Sam Shihab Esq. | Permalink | Email This Post

Posted In: H-1B Visa

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The deadline to submit H-1b petitions subject to the annual cap for federal fiscal 2010 is April 1, 2009. Many employers are playing a game of "wait and see" as news of high unemployment rates and "gloom and doom" on the economic front are on the front page headlines. But when one looks at the facts, some cities have much better outlook economically than others. Shihab & Associates, Co., LPA has offices in two of such "more fortunate" cities: namely Washington, D.C. and Columbus, Ohio. But because of the economic conditions of these cities, our firm has instituted a system to handle a large volume of H-1b visa filing for the April 1, 2009 H-1b visa filing.

MarketWatch online magazine has ranked all major US Cities in terms of business opportunities. Minneapolis-St. Paul was ranked first. Among the top cities for business opportunities, the following cities appear: Boston, Ma., Denver, Co., Washington, D.C., Richmond, Va., Charlotte, N.C., Columbus, Ohio, Nashville, Tn. tied with Dallas, Tx., and San Fransisco, Ca.

There is another good reason to believe that H-1b petition filing and hence employment of foreign nationals will remain strong in these cities. Unemployment rates issued by by the Bureau of Labor Statistics for these cities remain well below the national average. It is a known fact that unemployment figures for high tech positions are at least half of the national averages. For instance, the unemployment rate for Washington D.C in October 2008 is 4.1%. Based on the aforementioned ad hoc formula, the unemployment rate for high tech positions in Washington, D.C. is about 2%. It is therefore expected that these cities will offer high employment opportunities for US citizens and foreign workers alike. With such low unemployment figures for these more fortunate cities, it is very likely that H-1B visa petition filings for employers coming out of these cities will remain unchanged.

Continue reading " H-1B Petition Filing Predicted Unchanged for Washington D.C. and Columbus, Ohio Among Certain Other US Cities " »

Posted by Gus M. Shihab | Permalink | Email This Post

Posted In: H-1B Visa

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Dear President-Elect Obama,

As you take office, the many problems this country is facing are probably dominating every second of your day. It may seem, given our present economic situation, and the need to focus resources on other pressing issues and long legislative agenda in Washington, DC. that immigration reform should take the back seat for now. However, some aspects of immigration reform, such as an increase in the annual H-1B cap, would actually contribute to, and not hurt, an attempt to remedy the economy. Many Cities like Detroit, Michigan, Cleveland, Ohio and Columbus, Ohio to name a few can certainly benefit from a pro H-1B policy.

The purpose of this message is to outline the reasons why the H-1B cap should be increased and to address the concerns of opponents to an increase to the H-1B cap.

The H-1B visa, or at least the concept behind it, is a historically important part of our country's immigration law. This visa has been a driving force for innovation and a vehicle by which to attract the top talent and skills from across the globe. The H-1B visa allows foreign nationals with a Bachelor's or more advanced degree (or the equivalent of those degrees through experience) to work temporarily in the United

Continue reading " The H-1B Cap Should be Increased. An Open Message to President-Elect Barack Obama, Part One " »

Posted by Sam Shihab Esq. | Permalink | Email This Post

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Notwithstanding the downturn in the economy, many companies and research institutions in cities such as Columbus and Cleveland in Ohio or even Detroit, Michigan continue to aggressively recruit engineers and scientists from all over the world. There is much demand for at least a temporary increase in the number of H-1B visas available. Legislation has been introduced, but rejected several times in recent years. Until Congress in Washington DC does something to alleviate the demand for more H-1B visas, employers seeking to hire temporary workers on H-1B status face much frustration over getting applications filed before the H-1b cap is reached. If you want to have a chance to file an H-1b petition this year, you will need to engage an immigration attorney by January and file your case before April 1, 2009. Students on Optional Practical Training should not wait until their status is close to expiration.

There are currently 65,000 H-1B visas available each year. In addition, there are 20,000 H-1Bs available for persons holding U.S. advanced degrees (e.g., master’s). Once the 20,000 visa cap is met for advanced degrees, persons holding advanced degrees can still obtain H-1B visas, but those visas will then be taken from the 65,000 cap.

Both H-1B caps described above have been reached quickly in recent years, usually a considerable amount of time before the fiscal year even begins and frequently within mere days after the beginning of the filing season. For example, for fiscal year 2008, the cap was met within two days of the start of filing, and approximately 6 months before the beginning of the fiscal year. Thus, timing is essential.

Timing the filing of applications is frustrating because in order to file one, a Labor Condition Application (LCA) must be submitted to the Department of Labor (DOL). An LCA certified by DOL or proof of filing the LCA must be submitted with the H-1B application. Per the LCA, the employer makes certain attestations regarding the position, its pay, and the working conditions of others similarly employed.

The problem is that both the LCA and the H-1B application must be submitted no earlier than six months before the intended date of employment. But since the cap has been reached so rapidly in recent years, employers, or their attorneys, have found the need to coordinate both the LCA and the H-1B filing substantially earlier to ensure that the H-1B application will be able to be filed before the cap has been met.

Failure to meet the deadline means that the application will be rejected and the employer will have to wait until the following year. For applications received by United States Citizenship and Immigration Services (USCIS) on the day on which the cap is met, a lottery system functions to randomly select from the pool of applications received that day a number equal to what is needed to meet the cap. All other applications received that day and after that day are rejected.

Employers should be aware that an interim rule was published by USCIS on March 24, 2008, prohibiting the filing of multiple petitions for the same beneficiary in an attempt to increase the chances of receiving an H-1B visa. In the case that more than one petition is discovered, all the petitions for the particular beneficiary will be denied and filing fees will not be refunded.

Posted by Shihab & Associates | Permalink | Email This Post

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As the H-1b filing deadline approaches, a frequent question I get is what the definition of Specialty occupation is. A typical question is: I have open positions in Columbus and Cleveland, Ohio, they will assist an engineer, is an Assistant Engineer job a ”specialty occupation? and can we file an H-1b visa petition for this person ?”

Nothing is more elusive than what is actually meant by that term. Some occupations, such as professors, accountants, or engineers, fall easily into the meaning of specialty occupation, but others are not so clear. For such occupations, many factors must be considered in determining whether specialty occupation work is involved.

“Specialty occupation,” as defined by the Immigration and Nationality Act, means an occupation that requires “a theoretical and practical application of a body of highly specialized knowledge,” and that the “attainment of a bachelor’s degree or higher” is usually a prerequisite to entry into the profession. It is not always clear that a particular position meets these two requirements. However, federal regulations give further guidance.

An employer can show that a given occupation is in fact a specialty occupation by showing one of the following:

(1) a bachelor degree or its equivalent is normally the minimum requirement for entry into the particular position;

This is per se evidence that the position requires “a theoretical and practical application of a body of highly specialized knowledge.”

(2) such a degree is commonly required in the industry in similar positions and in similar organizations, or the position in question is so complex or unique that it can be performed only by an individual with a degree;

The employer can search job-posting websites and provide copies of advertisements for similar positions in other organizations requiring a bachelor’s degree.

(3) the employer normally requires a degree or its equivalent for the position; or

The employer can provide past advertisements for the position or similar positions, and evidence that current employees in those positions meet the degree requirements.

(4) the nature of the specific duties are so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree.

A good resource to consult when considering the nature of the duties of a given position, as well as whether a bachelor’s degree is the normal minimum requirement for entry into the position, is the Occupational Outlook Handbook (OOH). The book is compiled by the U.S. Bureau of Labor Statistics and is considered authoritative for H-1B purposes; it is revised every two years.

Employers should note that a position will not necessarily be held to be a specialty occupation merely because the position’s title is one of an established specialty occupation or because the employer shows that it always requires a bachelor’s degree for the position. A description of the duties related to the position must be submitted with the evidence and the reviewing immigration officer will probably find the corresponding occupation in the OOH, without regard to the title.

Posted by Sam Shihab Esq. | Permalink | Email This Post

Posted In: H-1B Visa

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I received a phone call recently from one of my clients in Columbus Ohio who was exited about Obama’s choice for DHS Secretary. Its true President-Elect Barack Obama’s choice for Secretary of the Department of Homeland Security, Arizona Governor Janet Napolitano, is a strong advocate of increasing the number of H-1B visas available. Although she cannot raise the H-1B cap herself, Ms. Napolitano’s appointment to the post would give her some ability to streamline the H-1B process through changes in regulations and would give her position on H-1Bs significantly more weight. Obama’s decision to nominate Ms. Napolitano demonstrates his understanding that current H-1B policies—and immigration policies in general—are inadequate and reform is needed.

Ms. Napolitano sent a letter in September of 2007, along with 11 other governors, to congressional leaders urging an increase in the H-1B cap. The letter stated that the nation is facing a “critical shortage of highly skilled professionals in math and science to fill current needs.” It then warned that “until we are able to address this workforce shortage, we must recognize that foreign talent has a role to play in our ability to keep companies located in our state and country; and therefore need to ensure the increased availability of temporary H1-B visas, and permanent resident visas (green cards).” Opponents of increases in H-1B visas claim that such a change is unnecessary and even hurtful to U.S. workers. They say IT companies only use the H-1B visa as a way to hire cheaper and younger labor. I disagree.

Currently, the base cap set by congress on H-1B visas is 65,000. There are exemptions from the cap for certain people, such as those who are renewing their visas, those who work at universities and some research institutions, and up to 20,000 of those holding a master’s or higher degree from U.S. universities. Legislation introduced in the U.S. Senate in April of 2008 would have increased the cap from 65,000 to 115,000 for fiscal years 2009 through 2011, and increased the exemption for possessors of U.S. master’s degrees and higher to from 20,000 to 30,000. It remains to be seen how the new Administration and Congress will work together to effect long-awaited change in immigration policies.

Posted by Sam Shihab Esq. | Permalink | Email This Post

Posted In: H-1B Visa

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