Wall Street Journal Calls Immigration Reform a Stimulus

April 29th, 2009

In an April 27th editorial, the Wall Street Journal (WJS) supports immigration reform as the quintessential economic stimulus.  It states, “Immigrants are a smaller proportion of the U.S. population than in periods such as the late 1890s and 1910s, when immigrants gave the economy a jolt of growth.”  It then goes on to praise immigrants as the ultimate sources of job creation in the US: “Immigrants have had a disproportionate role in innovation and technology. Companies founded by immigrants include Yahoo, eBay and Google. Half of Silicon Valley start-ups were founded by immigrants, up from 25% a decade ago. Some 40% of patents in the U.S. are awarded to immigrants. A recent study by the Kauffman Foundation found that immigrants are 50% likelier to start businesses than natives. Immigrant-founded technology firms employ 450,000 workers in the U.S. And according to the National Venture Capital Association, immigrants have started one quarter of all U.S. venture-backed firms.”

What’s more, the WSJ states that other countries are actively recruiting foreign workers when the US Congress is simultaneously trying to restrict the flow of highly skilled and needed foreign workers into the US.  WSJ quotes Intel Chairman Craig Barrett as suggesting that instead of sending the half million higher-education students from overseas home when they graduate, we should “staple a green card to their diplomas.” 

It is time that Congress smartens up, stops it scapegoating of immigrants and finally allows the US to effectively compete in globalization. 

USCIS Announces H-1B Count as of April 27th

April 28th, 2009

On April 27, 2009, USCIS announced that it had received approximately 45,000 H-1B petitions toward the H-1B bachelor’s cap and 20,000 towards the advanced degree cap for fiscal year 2010.  USCIS continues to accept H-1B petitions for the bachelor’s and advanced degree cap.  For petitions subject to the cap, there are 65,000 H-1B visa numbers available under the bachelor’s cap and 20,000 numbers available under the advanced degree cap.

To check on the latest H-1B count, please go to www.uscis.gov/h-1b_count.

BALCA Holds that Certification Can be Granted Despite Lack of Kellogg Language

April 22nd, 2009

In Matter of Kpit Infosystems, Inc., 2009-PER-00075 (2/25/09), BALCA held that a PERM labor certification application cannot be denied because it lacked the magic language of Kellogg on the Form ETA 9089.   It stated that since there was no particular place on the form to indicate such language, the petitioner could not be penalized for failing to include it.  This case will not have any relevance for PERM cases filed after the new portal and form are in place starting this September, since the new online Form ETA 9089 specifically requests whether Kellogg applies.

USCIS Updates H-1B Count as of April 20th

April 22nd, 2009

USCIS has updated its H-1B cap count as of April 20, 2009.  As of this date, USCIS has received approximately 44,000 H-1B petitions counted against the bachelor’s cap (of 65,000) and approximately 20,000 petitions applied to the advanced degree or master’s cap (of 20,000).  Since USCIS predicts that some of the advanced degree cap petitions are not approvable, it is still accepting petitions to be counted against this cap.  If this cap is reached, then the advanced degree petitions can still get a number from the bachelor’s cap.

USCIS Updates H-1B Count as of April 13th

April 21st, 2009

USCIS has issued a notice announcing the total number of H-1B petitions to be counted against the cap received as of April 13, 2009.  According to USCIS, approximately 43,000 H-1B cap-subject petitions and approximately 20,000 petitions qualifying for the advanced degree cap exemption had been filed.

DOL Announces New ICert Portal System for Temporary and Permanent Labor Certifications

April 15th, 2009

The DOL has announced that it will implement its new portal system called iCERT for the Labor Condition Application (LCA), which is part of the H-1B petition, and PERM filings.  Like the current system, employers or attorneys will need to create a user account before filing the LCA and PERM applications online.  The iCERT portal will become available April 15, 2009, for LCAs and September 1, 2009, for PERM applications.  DOL will allow the current system to be used until May 15, 2009, for LCAs and until October 1, 2009, for PERM applications.  Then, on these dates, only the new iCERT portal may be used to file cases online.

Also, on the May and September deadlines, DOL will deactivate the current electronic version of the LCA and PERM application and no data will be transferred to the new system. Therefore, it is wise to copy any information for a pending case on the current system into the new system before the deactivation date.

DOL cautions users to expect an increase in processing times for an LCA to up to seven business days, since DOL will perform an official review before certifying each LCA submitted.

Major US Labor Unions Bolster President Obama’s Immigration Initiative

April 15th, 2009

President Obama’s recent pronouncement of his desire to move forward on comprehensive immigration reform within the next few months is being met by a growing chorus of support from a diverse array of groups.  The most recent bedfellows are two of the nation’s major labor groups – the A.F.L. – C.I.O. and Change to Win federation.  When Congress proposed comprehensive immigration legislation in 1997, these two groups could not agree on a common apprach and the legislation failed.

The accord between the A.F.L. – C.I.O. and Change to Win endorses legalization of the undocumented workers in the US but rejects any broad program for temporary nonimmigrant workers (guest worker program).  The business community will certainly oppose any legislation that does not include expansion of a temporary worker program, according to Randel Johnson, the Chamber of Commerce’s Vice President of Labor, Immigration and Employee Benefits.  Rather, the unions have endorsed the idea of a national commission to determine how many permanent and temporary foreign workers should be admitted each year to work based on the US labor market demand.  Tamar Jacoby, president of ImmigrationWorks USA, a group that organizes business to support comprehensive immigration reform, questions whether the commission will be effective in determining the supply and demand of workers.

Also, the unions face strong opposition from anti-immigration restrictionists who believe that undocumented workers are taking jobs from American workers.  However, the growing body of data shows just the opposite – that legalization of the estimated 12 million undocumented workers is the quintessential stimulus plan for our weakened economy.  More legal workers will mean an expanded tax base and the creation of new businesses and jobs for more Americans.  Furthermore, the A.F.L. – C.I.O. and Change to Win agree that legalizing the status of the workers would be the best way to protect labor standards for all workers.

In May 2009, EB-3 Category Freezes for 5 Months

April 9th, 2009

The US Department of State’s May 2009 Visa Bulletin shows that immigrant visas in the EB-3 category will be unavailable for the next 5 months.  Previously, the wait was approximately six years, which now seems attractive compared to the 5-month freeze.  The implications of this suspension is pervasive and dire.

An immigrant visa number must be made available in order for a foreign worker to apply for legal permanent residency.  Also, for most employment-based immigrants, they are sponsored by their employers and their employers must demonstrate their ability to pay the wage proffered on the labor certification or immigrant visa petition (if there was no labor certification) from the time the labor certification or immigrant visa petition was filed and up until the application for legal permanent residency is approved.  If the employer has a bad year, or several bad years, then this could jeopardize the green card case.

While they are waiting for an immigrant visa number, foreign workers must maintain their nonimmigrant visa status.  For those on the H-1B petition, if they start the green card process early enough then they can extend their H-1B status until an immigrant visa number becomes available.  However, for other nonimmigrants, they will simply lose their status during the ostensibly interminable wait.

Many foreign workers, some of whom are our most prized possessions (Ph.D.s and master’s degree holders in the sciences, technology, engineering or math), may decide that their patience has worn too thin and go to Europe or Asia instead.  We must reverse this deleterious visa situation and grant foreign workers a reasonable path to green card status.

USCIS Announces Number of H-1B Cap Petitions Received

April 9th, 2009

Today, April 9, 2009, USCIS announced it received approximately 42,000 H-1B petitions subject to the bachelor’s cap (65,000) and approximately 20,000 petitions for the master’s cap.  USCIS stated that it will continue to accept advanced degree petitions since in the past not all petitions received were approvable. USCIS also stated that on the day that it receives sufficient petitions, pursuant to 8 CFR section 214.2(h)(8)(ii), it will conduct a random selection lottery from among petitions from those received on that day.

For cases filed for premium processing during the initial five-day filing window, the 15-day premium processing period began April 7. For cases filed for premium processing after April 7th, the premium processing period begins on the date USCIS takes physical possession of the petition.

USCIS Announces the H-1B Cap Not Yet Reached

April 8th, 2009

On 4/8/09, USCIS announced that it has received almost half of the petitions counted under the H-1B bachelor’s cap and almost all petitions counted under the H-1B master’s cap.  This means that all petitions received so far will be granted a number.  Once the cap is reached, then all petitions received that day will be subject to a randomized computer lottery.  It should be noted that even if the master’s cap is reached, individuals with a related qualifying bachelor’s degree can still apply under the bachelor’s cap.