H.R. 3012: "Fairness for High-Skilled Immigrants Act": Bill passes House by a 20 to 1 margin; moves on to Senate

Update: There is no news on H.R. 3012, the High Skilled Immigrants Act, which was put on hold by Senator Charles Grassley (R-IA).  But even without H.R. 3012, the January 2012 Visa Bulletin showed the China and India EB-2 category (for aliens with advanced degrees or equivalent, or in the national interest (NIW) advancing more than 9 months from 3/15/08 to 1/1/2009.  This rapid advancement demonstrates that demand for green cards amongst advanced degree professionals from countries other than India and China is decreasing, so unused green cards are being granted to those seeking immigration from China/India. 

More on H.R. 3012.  On 12/15/11, in order to release his hold, Senator Grassley offered an amendment that would make dramatic changes to the bill including elimination of family per country limit increase and reducing the employment based per country limit to 15%.  The amendment would also eliminate the diversity visa program and add provisions that would increase enforcement and U.S. worker protections to the H-1B and L-1 visa programs.

Senator Grassley's amendment was objected to, therefore THE HOLD ON THE BILL REMAINS.

As reported in the New York Times yesterday the House of Representatives voted to pass H.R. 3012, which stands to reallocate available visas, and speed up the green card process for professional Indian and Chinese foreign nationals. 

THIS BILL IS NOT YET A LAW.  See an old School House Rock video to learn more about how a Bill Becomes a Law.  Further, some colleagues I have spoken with feel the chances of a law which gives more green cards to Indian and Chinese nationals, while at the same time, decreasing the amount given to foreign nationals from, ahem, some of the “whiter” countries, and especially in light continued unemployment issues here in America - are slim.

It is worth noting that H.R. 3012 would not increase the number of available employment based green cards. It would eliminate the per country limit, which should provide historically backlogged countries, such as India and China, with a window of opportunity to apply for or secure their green cards, while  creating backlogs for foreign nationals from other countries, where historically, no backlogs existed.  

From AILA:

H.R. 3012, the Fairness for High-Skilled Immigrants Act was introduced on September 22, 2011 by Rep. Chaffetz (R-UT). The proposed legislation eliminates the employment-based per-country cap entirely by fiscal year 2015 and raises the family-sponsored per-country cap from 7% to 15%.

On October 27, 2011, the House Judiciary Committee held a markup and H.R. 3012 was reported favorably out of committee by a voice vote. An amendment from Rep. Lofgren (D-CA) that would make adjustments to the three year phase-in period was accepted. H.R. 3012 must next be scheduled for House floor debate which may occur in the next few weeks.

On November 29, 2011, the House passed H.R. 3012, the Fairness for High-Skilled Immigrants Act by a vote of 389-15 with no additional amendments. The measure now moves on to the Senate for consideration.

How This Affects You

It is important to plan I-140 and I-485 Adjustment of Status timing and processing for those who may suddenly be impacted by a backlog, or finally allowed to file a green card applications, after years of waiting.  If you have questions about your specific case, you should contact your company’s immigration counsel, or the attorneys at Ryvin Wallace Group.

Comparative analysis of H-1B visa usage from 2007 to 2011: U.S. employers hiring more!

Back on April 27, 2011, shortly after the FY 2012 H-1B Cap opened, I posted that H-1B visa usage statistics going back to 2007 demonstrated that U.S. employers were not hiring as much as some reports would like us to believe.

Looking at the numbers going back to 2007, it was clear that H-1B usage was WAY down, and we estimated - based on usage for the first two weeks - H visas would be available until March 2012. 
 

Well, things picked up quite a bit!  The FY 2012 H-1B Cap was reached on November 22, 2011, approximately seven months after it opened. 

While this year’s demand was nowhere near the level in 2007 or 2008 - when the demand for H-1Bs was more than twice the supply and getting an H-1B meant that had win a lottery - this year we ran out of H-1Bs three months earlier than last year.

In my world, increased H-1B visa usage is the best indicator of an economy moving in the right direction.

After the break, please find a comparative analysis of H-1B visa usage from FY2008 to FY2011.

Three year H-1B visa approved for sole employee-entrepreneur; USCIS makes good on promise to encourage entrepreneurship

In August 2011, we posted a link and some background related to the current administration’s efforts to attract and retain high-skill entrepreneurs.  Specifically, a USCIS press release dated 8/2/2011 confirmed an intention to use current immigration law [including H-1B visas and National Interest Waivers] to fuel the nation’s economy and stimulate investment, by attracting foreign entrepreneurial talent who can create jobs, form start-up companies, and invest in areas of high unemployment. Here is the link to that post:

http://ryvinimmigrationblog.blogspot.com/2011/08/uscis-director-alejandro-mayorkas-blog.html

Today, I am happy to confirm that USCIS approved an H-1B petition for a sole employee-entrepreneur, seeking entry work in the capacity of President for a newly formed company, poised to re-vitalize an economically depressed area.

We made clear that despite his ownership interest, the Beneficiary would be an “employee” of the U.S. company and that he was exactly the type of individual targeted by USCIS in their recent announcement.   

We wish our clients the best of luck and thank USCIS for a job well done! We are currently working on a number of exciting “start-up” cases, where we intend to rely on USCIS’ recent guidance, including H-1Bs and EB-2 I-140 National Interest Waivers (green card) petitions, and hope today’s approval is a sign that USCIS will continue to help stimulate our economy through existing visa categories.

How to Prepare for an Immigration Consultation

Christy Wallace
11/21/11
 
Try to get a referral. Do you have friends or professional colleagues who have had immigration issues?? Chances are they used a lawyer and have an opinion on the quality of their work. 

If you can’t get a referral from reliable person, go a different direction. We suggest using an AILA member ONLY.  AILA stands for American Immigration Lawyers Association, and it’s the world’s largest association of attorneys and law professors who practice and teach in the area of US immigration law.

After you have schedule a consultation, you have to come to the table prepared with facts and information that the lawyer needs, to get the most for your money.

We need five types of information in a consultation:

(1)  Where you are and where you want to go, ie, where are you physically residing in the world? Where do you want to go (to the US)?

What employer do you have, if any? Which one do you want to join and at which location?

(2)  When you want to arrive to the destination – Ideally (fastest) and realistically (slowest, ie when it’s a game-changer). Notably, we normally provide the fast/slow during the consultation if you don’t know.

(3)  Age of the person who wants to relocate.

(4)  Current visa status under the rules of the destination country, if any.

(5)  Dates and outcomes of any official paperwork ever given to the person by the destination country – ie approval notices, receipt notices, visa stamps, refusals.

 
In our office, a consultation with an attorney helps even if you never hire us, because we spend several (free) minutes and usually 20-60 (paid) on the phone asking questions and giving answers - so that you can start shaping an immigration strategy to help you achieve your goals.  If we’re not the ones for the job, we end a call with some advice and send you to a reputable “AILA” firm which matches your needs.
 
If you have a complex case, getting a second opinion is advisable. Take a look at my blog post titled, “Choosing Immigration Counsel” to help you know what to look for when shopping around: http://ryvinimmigrationblog.blogspot.com/2010/09/how-do-i-choose-best-corporate.html.

IMPORTANT TIP: If I were looking for a work-based visa (temp visas like: H-1B, E-1/2/3, TN, L-1, O-1; immigrant visas in most popular employment based [EB] preference categories [EB-1, EB-2, EB-3, EB-5]  - I would start with a consultation process with at least 2 business immigration lawyers recommended (for good work) who have background in small- to mid-sized business immigration, with 8+ years experience to be able to develop a complex strategy covering multiple options, as needed.

 
Ask each lawyer which visa they recommend off the facts discussed in the 30-45 minute session, including possible back-up plans, and ask each for some examples of their recent similar cases (they should provide a 2-minute fact scenario).
 
IMPORTANT TIP: If the lawyer stalls during the conversation because their sub-focus is really in large/easy corporate immigration work (where complex issues are the exception rather than the rule), deportation or another immigration area. Hopefully they will hint at this potential weakness and then you simply ask them to recommend another business immigration lawyer they know and trust.
 
Lots of luck with your ongoing venture!

Q & A: Need to file GC under EB2 - Company norms forcing me to file EB3

Question: I have 4 Yr Bach Deg in Comp Sci Engg and close to 10 yrs Exp in the same company out of which 4.3 Yrs was in India. I was transferred to the US (now on L-1 'A' visa) in Aug '06 to the US through the same Employer and have been here since then. My company is skeptical to file my GC in EB2 stating that 5 yrs experience has to be gained before I was transferred to the US (which is considered my petitioning employer branch).

I want to understand how I can file under EB2? Should I wait until 10 yrs exp since I see this as one of the clauses?? OR
Should I file now and PORT into EB2 after 10 yrs Exp in the same company (counting India + US exp in the company) OR
USE any of MY Client accolades or awards since I manage a very CRITICAL portfolio)

Answer:  
 
Why are you not looking at the EB-1 Multinational Manager or Executive category? The requirements largely mirror those for the L-1A intra-company transfer.

With respect to EB-2, I may be able to clarify your company’s concerns. Notably, your EB-2 case is based on a prospective offer of employment, and experience gained in the job offered may NOT be used to qualify for the job. 

For example, let’s say you were transferred to the US in the position of Engineering Manager in 06, and have held this position since.  Now the company wishes to help you with your green card, and the prospective permanent job offer which is to serve as the basis of your green card case, is the position you have been occupying for the last five years or so, Engineering Manager.   You may NOT use your experience with the company in the job offered, ie, since your transfer to the US. 

This is prohibited, as the purpose of the labor certification process is to protect the American worker.  And so, if the law were set up to allow you to use experience in the job offered, it would give you an unfair advantage over the American worker. 

Now it may be possible to use your experience gained in India, but you have less than 5 years, which means you cannot qualify for a position with minimum requirements of a bachelor’s degree plus five years. 

Your options are to explore the EB-1 (best option, since there are no back logs!); or move into a different EB-2 position, that is substantially (at least 50%) different from the position you have been occupying since your transfer.  Under this second scenario, you could use the experience gained in the US!    

I can help you review your eligibility under the EB-1 category, if you can provide me with a copy of your last L-1A filing.  Please let me know if I may be of further assistance, and good luck! 

Best regards,

Michael Ryvin, Partner
Ryvin Wallace Group
1-415-765-0679
michael@ryvinlaw.com

EFFECTIVE 11/18/2011: U.S. Department of State halts issuance of ALL F, M, J visas at U.S. Embassies and Consulates.

UPDATE:  F, M, J Visa Issuance Has Resumed!

"Effective immediately, in order to ensure maximum data integrity and consistency, DoS has temporarily halted the issuance of ALL F, M and J visas at all U.S. Embassies and Consulates."

"SEVP plans to circulate additional broadcast messages upon receipt of any updates or changes regarding this issue."

Read entire Broadcast Message here [pdf].

This message impacts anyone seeking an F-1 (academic student); M-1 (vocational student); or J-1 (exchange visitor) temporary visa from a U.S. Consulate or Embassy located outside of the United States.

If you are currently an international student, intern or trainee, in the United States, or wish to become one of these; AND you need an F, M, or J U.S. visa stamp in your passport, this message also means - you will not be getting one of these visas from any U.S. Consulate/Embassy around the world, until DOS is ready to start issuing them again.

After the jump please find summary descriptions of the F, M and J visas.

DHS Issues Awaited Guidance on Prioritizing Deportations, Law Enforcement Letter Praises Approach

Via American Immigration Council

November 17, 2011

Washington D.C. - Today, Immigration and Customs Enforcement’s (ICE) Principal Legal Advisor directed all ICE attorneys to begin a systematic review of immigration cases to determine whether pursuing deportation in each case is consistent with the Administration’s enforcement priorities. This directive follows last summer’s announcement that the Department of Homeland Security (DHS) plans to review 300,000 immigration cases to assess whether they fall within the enforcement priorities and suspend those cases which do not.  ICE also provided more detailed guidance to ICE attorneys regarding criteria for determining when it is appropriate to exercise prosecutorial discretion to close or dismiss a case.

These directives are important steps toward reforming the culture of immigration enforcement within the agency and aligning its resources with its enforcement priorities. They empower ICE attorneys to take into account the individual circumstances of each case when deciding whether it is appropriate to pursue removal.  Although DHS needs to refine its overly-broad definitions of criminality, this new guidance, if fully implemented, should mean that the government can focus its resources on deportations of those who pose a real threat to public safety. It should result in fewer deportations of low priority immigrants, such as DREAM Act students or individuals with strong family and community ties and more.  Importantly, prosecutorial discretion does not mean that a person is granted legal status in the United States; rather, a person whose case is dismissed or closed will remain in the status they were in prior to the initiation of deportation proceedings.

The new ICE guidance also brings DHS more in line with traditional law enforcement practices, which emphasize the important role of discretion in carrying out any law enforcement officer’s duties. In fact, members of a DHS Task Force sent a letter today to Congress highlighting the importance of prosecutorial discretion as an immigration enforcement tool. They write:

“there is nothing unusual in our recommendation or in DHS’s current efforts to improve its use of prosecutorial discretion. Such discretion is a normal and essential part of the everyday activities of law enforcement agencies and prosecutors’ offices at the local, state, and federal levels across the nation. Exercising prosecutorial discretion, case by case, in a systematic and professional way, does not amount to administrative amnesty. Instead it helps to make sure that resources are focused in ways that best promote the overall enforcement mission.”

To view the memo and guidance see:

• DHS Guidance to ICE Attorneys (11/17/2011)
• DHS PD Case Review Memo (11/17/2011)

To view the DHS Task Force Letter to Congress see:

·    DHS Task Force Letter to Congress (11/17/2011)