Bill to Protect and Grow American Jobs Will Only Do the Opposite

July 19th, 2016

A bill has been introduced in the House of Representatives to amend the exemption requirements for H-1B dependent employers.  However, legislation, ironically entitled, H.R. 5801, “Protect and Grow American Jobs Act, will only hinder the growth of US companies and the creation of jobs for US workers.  The bill proposes to amend the American Competitiveness and Workforce Improvement Act (ACWIA) of 1998, which created additional requirements for “H-1B dependent employers.”  H-1B dependent employers are those that employ a certain percentage of H-1B workers.  For such employers, they must engage in recruitment and make attestations promising to not displace US workers.  However, they are exempt from such requirements if they can show that the H-1B employee will earn an annual salary of at least $60,000 or that the employee holds at least a master’s degree or greater.

H.R. 5801 Protect and Grow American Jobs Act revises these ACWIA exemptions for H-1B dependent employers by raising the wage exemption from $60,000 to $100,000 and requiring salary increases for inflation every three years.  The bill also proposes to eliminate the exemption for those with a master’s degree.

The H-1B visa has been unfairly denigrated and censured for its robbing of jobs for US workers.  Rather, the H-1B visa allows US employers to hire foreign workers that it cannot find in the US market.  It should be emphasized that this is a high-level visa status for only professional positions requiring at least a bachelor’s degree in a related field and that the beneficiary must hold such a bachelor’s degree, or the US foreign academic equivalent.  In certain fields such as engineering, science and information technology, it can be a daunting task for a US company to find sufficient US workers with such qualifications to grow its business.  By increasing the salary exemption requirements, this will only prevent smaller and start-up companies from hiring the workers it needs to expand or even remain viable.

If we want to truly grow American jobs, then we need to eliminate the additional requirements for H-1B dependent employers and eliminate the H-1B cap, the bane of US companies.  For many years the demand for H-1B visas has far exceeded the supply, preventing US businesses from growing.


USCIS Announces Use of Final Action Dates for the US Department of State Visa Bulletin

July 18th, 2016

USCIS has determined that when filing for legal permanent residency, either based on family or employment sponsorship, the Application Final Action Dates chart in the US Department of State (DOS) Visa Bulletin for August 2016 must be used.  According to the Visa Bulletin for August 2016, for the employment-based filings for India under the EB-2 category the current priority date for the final action date is November 1, 2004,and for the EB-3 category it is November 8, 2004.  For those from mainland China, under the EB-2 and EB-3 categories the current priority date for the final action date is January 1, 2010.  For the worldwide category, the EB-2 current priority date is February 1, 2014 and the EB-3 current priority date is March 15, 2016.

The current priority dates for the final action dates for the worldwide category are clearly unusual with the higher EB-2 category being almost two years behind the EB-3 category.  However, since the movement of priority dates in the Visa Bulletin chart are as capricious as the wind, those applying for legal permanent residency should not despair.


AAO Finds I-140 Petitioner Established Executive Nature of the Position

July 18th, 2016

The AAO found that the Nebraska Service Center (NSC) erred in the denial of an EB-1 Form I-140 Multinational Executive petition, finding that the beneficiary’s duties were primarily executive in nature.  Matter of R-V, ID#16025 (AAO, May 10, 2016).  The AAO set forth the regulatory (8 CFR §204.5(j)(5) and statutory (8 USC §1101(a)(44)(B)) definitions of executive capacity, which places primary importance on the beneficiary’s “elevated position within a complex organization hierarchy.”  The AAO noted that the statute requires that the beneficiary must have the ability to “direct the management” and “establish the goals and policies” of that organization.  It also stated that implicit in the definition is the requirement that there is a subordinate level of managerial employees for the beneficiary to direct.

In analyzing the evidence, the AAO indicated that the petition had submitted copious materials with details of the executive nature of the beneficiary’s position, including an organizational chart noting the beneficiary’s job duties and the percentage of time he would devote to each and the subordinate employees he would direct and their duties; a flow chart of the foreign entity’s supervisory and professional staff; and copies of work contracts between the petitioner and its clients.  The AAO held that there was sufficient evidence that “the beneficiary oversees the Petitioner’s sales and marketing departments, its market analysis and strategic planning, delivery of services, and its finances and accounting functions.”  It noted that the underlying duties associated with key departments are carried out by both US-based staff and foreign employees.  The AAO concluded that the beneficiary’s job duties are “primarily executive in nature, while the day-to-day operational tasks associated with the Petitioner’s daily functions are performed by other staff within the Petitioner’s multinational organization.  Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 2010).

There are two key points supported by this decision.  The first is that the executive duties must only be primarily executive in nature, not wholly executive.  Such an interpretation allows for the multinational executive beneficiary of an EB-1C I-140 petition to conduct some of the actual job duties, not merely direct or oversee them.  Also, this decision acknowledges that the supervision and direction of foreign staff may be taken into account in determining if the organization is sufficiently complex and if the beneficiary will be relieved of conducting most of the actual job duties.