Record Number of H-1Bs

Posted on April 14, 2015 by Arjun Mishra

And We Broke a Record

USCIS announced that it has received a record number of H-1B applications for Fiscal Year 2016. Over 233,000 applications were filed by employers petitioning for prospective foreign national employees. Some of those prospective employees are actually already in the employ of their companies, but they need the H-1B to continue their work authorization. There is a 65,000 cap on H-1B visas, plus an additional 20,000 visas that are reserved for individuals with Master’s degrees from a United States institution of higher learning. For example, an engineer with a Master’s degree from Carnegie Mellon University would be placed in the Master’s lottery first, whereas an engineer with a Bachelor’s degree from the University of Pittsburgh would be subject to the 65,000 cap.

USCIS conducted the lottery yesterday. This means that nearly 150,000 visa applicants will be rejected without consideration.

The H-1B visa is a critical aspect of our immigration employment system. To obtain a visa, the occupation in question must be a specialty occupation, and it must require a college degree or the equivalent thereof to perform the duties of the occupation. It also requires an employer to be the petitioner and pay fees that the employer would not have to pay for an American worker. They are highly sought out because they afford up to six years of status, as well as an opportunity for a Green Card.

H-1B applications are filed in the first week of April in anticipation of the beginning of the Fiscal Year in October. Employers and prospective H-1B employees nervously wait for whether they are selected in the lottery for about a month, as notices will begin going out in the middle of May.

There is a 36% of being selected for the lottery. Technology and immigration groups clamor year after year for improvements to the H-1B visa, especially in terms of raising the cap. Their champions in Congress push for bills like Innovation Squared, but they rarely make it out of committee. H-1B opposition emanates from the fear that foreign nationals are snatching American jobs from American citizens and permanent residents. The rebuttal often cited by H-1B proponents is that the economy is dynamic and H-1B jobs are “job-creating.”

USCIS will continue to accept H-1B applications for the following purposes:

Extend the amount of time for an H-1B worker (6 years is generally max, except for I-140 filed or pending)
Change the terms of employment for current H-1B workers (transferring areas)
Allows current H-1B workers to change employers
Allows current H-1B workers to work concurrently in a second H-1B position
Statutorily cap-exempt employers (universities, university-affiliated)

Motion of Stay for DAPA, DACA

Posted on March 12, 2015 by Arjun Mishra

The United States Department of Justice filed an emergency motion to stay a preliminary injunction against a series of executive orders issued by President Obama in November. Fourteen states plus the District of Colombia filed an amicus curiae to support the Justice Department’s stay. The stay is filed with the US Court of Appeals for the Fifth Circuit.

We have closely been following the developments of Texas v. United States, in which Texas and other states are suing against President Obama’s Expanded DACA and DAPA programs. Expanded DACA would grant deferred action status for three years to individuals who have been here since 2010 without status and are low priority for removal (plus other criteria). DAPA would grant deferred action to parents of US citizens and permanent residents who have been here since 2010 without status and are low priority for removal (plus other criteria).

DACA & DAPA Ruling

In mid-February, a federal judge in Texas ruled in favor of Texas on the grounds that the executive branch did not follow the normal rules of Notice and Comment in issuing the DACA and DAPA programs. Work authorization for certain H-4 dependents will be allowed starting May 26. That was part of the executive order program in November, but it had already undergone the Notice and Comment process.

Beware Immigration Scams – ICE Alert!

Posted on March 10, 2015 by Arjun Mishra

ICE Issues Alert on Scam Targeting Noncitizens

U.S. Immigration and Customs Enforcement (ICE) is spreading a message that it received information of a scam targeting non-citizens. Individuals who claim to work for ICE’s Detention Reporting and Information line (DRIL) have been contacting non-citizens, scaring them that there are issues with their immigration status and only sending them money will save their status.

ICE wants it known that DRIL does not make outbound calls or request money from individuals. This seems to be a scheme used to prey on noncitizens who are made nervous by the threats and false information of the impostors.

ICE is the government agency tasked with the internal enforcement of US immigration laws. If you notice any suspicious activity, ICE asks that you contact the Joint Intake Center at (866) 347 – 2433 or submit an online form.

(Inter)National Basketball

Posted on March 10, 2015 by Arjun Mishra

The National Basketball Association (NBA) is paying homage to its Latin players and fans with its ninth annual Latin Nights program. The celebration is a league-wide event, best displayed by certain teams that change their jerseys into semi-Spanish. For example, Los Lakers, Los Spurs, Los Suns, El Heart, Los Bulls (though you wonder why they are not Los Toros and the Suns are not Los Soles). Special uniforms are made for the games in which those jerseys are used and they are popular sellers. The teams are specifically chosen for cities with large Spanish-speaking populations, such as Houston, San Antonio, Los Angeles, Washington DC, Miami, and Phoenix.

Cultivation of A Tradition

This is a tremendous tradition that the NBA has cultivated and a true acknowledgment to basketball’s global power and the NBA’s attraction to immigrant players. At the beginning of the 2014-2015 season, the league boasted a record 101 international players from 37 different countries. The NBA Champion San Antonio Spurs have nine international players by themselves and have embodied the spirit of teamwork that basketball promotes through their unselfish play. There were only 45 international players just fifteen years ago in 2000 and 21 in 1990.

Two reasons for the increase in international players is the fall of Communism in Eastern Europe and the success of the USA Men’s “Dream Team” in 1992 as American Ambassadors. Soccer may be the global game, but basketball is not far behind it, as the NBA is available to watch all over the world and international players have increased the attention that international fans pay to the game. Even in the United States, the fact that the NBA visibly celebrates its Latino fans with jerseys and some Spanish through special Latin Nights is a testament to the NBA’s loyal immigrant fan-base and Latin heritage.

H-1B Season News

Posted on February 27, 2015 by Arjun Mishra

H-1B Decision Overturned in Favor of Applicant

It can be notoriously tricky to define what a “specialty occupation” is, and it is necessary to show that an occupation is a “specialty occupation” for the purposes of an H-1B visa. That is the predicate of an H-1B visa; an employer is seeking an employee in a specialty occupation, according to INA 101(a)(15)(H) and 8 CFR § 214.2(h)(4)(ii).

H-1B visa issues do not often reach the federal courts, so it is noteworthy when one does. It is punctuated by the unexpected result – courts give tremendous deference to agencies in interpreting their own rules. A strong body of case law supports that, so when a federal court overturns an agency’s interpretation, it is newsworthy. As the court wrote in its opinion, “While judicial review of agency decisions is highly deferential, it is not without teeth.”

In Raj and Company v. USCIS, an employer petitioned for a potential employee as a Market Research Analyst in 2012. The potential employee had a Bachelor’s Degree from a United States college. The H-1B visa requires a college degree equivalent to the US college degree USCIS requested more information to demonstrate that the position corresponded with a specialty occupation. There are four criteria used in determining whether an occupation is “specialty.” The employer responded with an abundance of documents to argue the point of specialty occupation, but USCIS responded with a denial. The appeal was taken to the Western District Federal Court of Washington. The court determined that the employer and beneficiary of the proposed H-1B were correct; a Bachelors’ degree is required to perform the position of “Market Research Analyst.” The federal court overturned USCIS’ denial.

H-4 Work Authorization

Another piece of important news for H-1B visa holders and their dependent spouses (H-4) was released this week. USCIS announced that effective May 26, 2015, certain H-4 visa holders will be able to obtain work authorization (regulations). They can concurrently file I-765 (Work Authorization) applications with their I-539 (Change or Extension of Status) applications. Their H-1B principals must have an approved I-140 (Employment-Based Green Card application) or have an H-1B extension subject to AC-21. An AC-21 extension means that someone is in H-1B status beyond the normally allowed six years (two three-year terms). H-1B holders sometimes end up being in H-1B status for upward of 16 years – two three-year terms of H-1B plus ten years of extended H-1B while waiting for the permanent residence date to become current. Long waiting periods are endemic with some EB-2 and EB-3 Green Card applications. The limited work authorization for H-4 visa holders is a smart move by DHS, recognizing that families of H-1B visa holders are economically injured in their years of waiting and sometimes have to abandon their Green Cards as a result. Please note this does not apply for H-4 minor children.