H-1B visas

Court-Ordered Sanctions Against USCIS Could Affect H-1B Visas

By Peek & Toland on September 11, 2019

A pending lawsuit in the U.S. District Court of Guam concerns USCIS processing of H-2B visa petitions but carries implications for H-1B visa petitions, as well. Guam suffers from a shortage of skilled laborers due to its remote location. Traditionally, the approval rate for H-2B visa petitions was close to 100%. This meant that thousands of foreign workers arrived in Guam to work in the hotel, health care, and construction industries. In 2012, however, USCIS began denying most H-2B visa petitions, dropping the approval rate for these visa petitions to almost 0%. USCIS started to take the position that the jobs were not “temporary,” since Guam has become so reliant on the foreign workers in these industries. The approval rate has remained at about 0% every year since 2012.

Court-Ordered Sanctions Against USCIS Could Affect H-1B Visas

As a result, the Guam Contractors Association and several businesses filed a lawsuit arguing that the USCIS had changed the eligibility rules without notice and in violation of the Administrative Procedure Act (APA). The plaintiffs sought and received an injunction preventing USCIS from continuing to deny H-2V visa petitions exclusively based on temporary need. However, USCIS has continued its recent practice of denying almost all H-2B visa petitions.

Due to alleged injunction violations, the plaintiffs now have filed a motion for contempt and sought sanctions against USCIS. A U.S. Magistrate handling the case has recommended that the court granted the motion and order sanctions. Federal courts rarely find the federal government agencies in contempt of court and imposing sanctions is even rarer.

The decision to impose sanctions, in this case, could have wider ramifications, as it deals with USCIS changing its standard of adjudication. Businesses and immigration lawyers have criticized USCIS for abruptly denying or delaying H-1B visa petitions to request more information at a suddenly high rate as compared to the rate of past denials. This trend has caused the approval rate of H-1B visa petitions to drop precipitously in the last two years. At Peek & Toland, we care about helping you through your immigration problems. We will focus our efforts on advocating on your behalf and representing your interests throughout the immigration process. Our knowledgeable immigration lawyers know the best strategies for gathering documentation to support your goals. Allow us to handle your immigration case by sitting down with us today and discussing your situation.

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Businesses Continue to Feel Impact of Crackdown on Approval of Foreign Worker Visas

By Peek & Toland on August 21, 2019

Two years following the signing of President Trump’s “Buy American, Hire American” executive order, U.S. businesses increasingly are feeling its impact. Companies traditionally have used the H-1B visa program to hire skilled foreign workers for three years. Now, however, this visa has become much more difficult to obtain for U.S. businesses. In 2017, the rejection rate for these visas was 13%. In 2019, the rejection rate now has risen to 32%. Likewise, the rejection rate for applications to extend the visas for an additional three years has increased from three percent to 18%.

One successful immigrant business owner has decided to quit seeking workers using the H-1B visa program. Previously, he recruited two people per year to work for his company under H-1B visas. Receiving several requests for evidence (RFE) in response to his applications has discouraged him from using the program at all.

Businesses Continue to Feel Impact of Crackdown on Approval of Foreign Worker Visas

U.S. Citizenship and Immigration Services (USCIS) also has increasingly revoked H-1B visa applications often on the grounds of alleged fraud. For instance, when a healthcare staffing company tried to obtain H-1B visas on behalf of various clients, it took six months. By that time, the client already had moved on, unwilling to wait that long for foreign workers whose presence was not guaranteed. Once USCIS learned of the change, it accused the company of lying on its H-1B visa petitions and revoked them. Although there is no publicly available data on how often H-1B visas are revoked, it appears to some that revocations are becoming almost as universal as denials of these visas. The rising rate of revocation also discourages U.S. companies from seeking foreign workers using the H-1B visa.

Whatever your situation may be, you will need skilled legal assistance to work toward a resolution of your immigration matter. The Texas immigration attorneys of Peek & Toland know how to help you navigate through the maze of immigration forms, regulations, and policies, and get the relief that you need. Take the first step today and secure the future of your family in the U.S. Contact our office today at and set up an evaluation with one of our highly skilled Texas immigration lawyers.

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H-1B Visa Revocations Increase

By Peek & Toland on July 29, 2019

According to a recent Bloomberg Law article, revocation of H-1B visas and denial of visa extensions that used to be automatic have increased dramatically in recent months. Competition for these visas is fierce. As of April, employers had submitted over 201,000 H-1B petitions for the 85,000 H-1B visas that will be available beginning in October.

These actions appear to be part of a larger effort by U.S. Citizenship and Immigration Services (USCIS) to crack down on the H-1B visas that employers use to hire foreign workers in specialty occupations. One of the primary users of the H-1B visa is the tech industry. Tech companies, as well as companies in other industries, often use staffing agencies to hire these workers. Some of the recent policy changes seem to focus on cracking down on staffing and consulting companies for alleged fraud in completing the visa petition process for these highly skilled workers.

H-1B Visa Revocations Increase

Denial of H-1B petitions increased from 7.4% in fiscal year 2017 to 15.5% in fiscal year 2018. Advocates state that revocation of H-1B visas have become nearly as common as denials. Scrutiny of all H-1B visa petitions has increased, which has translated into longer waiting times and far fewer approved petitions than before.

In response, USCIS claims that it has made no policy changes in the H-1B visa processing program, but that it has the authority to revoke these visas under Department of Homeland Security (DHS) regulations. Potential reasons for revoking visas may include fraud, misrepresentations, violation of the terms of the approved petition, or that approving the visa violated regulations or was in error.

Revocations can place employers and foreign workers in a difficult position. Generally, the workers must leave the country within 30 days or face sanctions for remaining in the country illegally. Instead of being able to secure an extension of the visa as planned, the company will have to go through the lengthy H-1B visa lottery all over again. An experienced Texas immigration attorney can help you with all aspects of immigration law. We are here to evaluate the facts surrounding your case, present your options, and help you make the decisions that will be most beneficial to you, based on your circumstances. Contact Peek & Toland at (512) 474-4445 today and see how we can help.

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Most Popular RFEs for H-1B Visa Applications

By Peek & Toland on June 22, 2019

U.S. Citizenship and Immigration Services (USCIS) has released a listing of its top ten reasons for issuing Requests for Evidence, or RFEs, to H-1B visa applicants. The number of RFEs that USCIS has issued over the past year has grown exponentially. In the first quarter of FY 2019 alone, USCIS issued RFEs to 60% of H-1B visa applicants, as compared to less than 30% in the same quarter of the previous fiscal year.

According to USCIS, the most common reason for issuing an RFE in response to a H-1B visa application was the failure of the employer to establish that the position for which the visa is sought qualifies as a specialty occupation. The employer must provide evidence that the job not only requires highly specialized knowledge, but also at least a bachelor’s degree, or its equivalent. Employers normally should provide USCIS with a detailed job description containing job duties and responsibilities, as well as the educational requirements. There must be a clear link between the job duties and the education necessary to carry out those job duties.

Most Popular RFEs for H-1B Visa Applications

Furthermore, USCIS often will issue an RFE to employers who fail to provide adequate evidence that they have a valid employer-employee relationship with the visa beneficiary, or the foreign worker. If the employee will be placed at a third-party worksite, the employer must demonstrate that it will retain authority over the employee and the job duties that he or she is performing through the entirety of the work period. Typically, employers should have a signed employment contract that delineates the rights and responsibilities of all parties involved.

Another common reason for USCIS to issue an RFE to a H-1B visa applicant is an alleged failure to establish that the H-1B visa beneficiary who is to work at a third-party worksite will perform specific duties related to the specialty occupation during the requested period of employment. In other words, the employee must have specific assignments and contracts in place prior beginning work, not simply expect that the employee will perform work as it arises. These are just a few of the common justifications for USCIS issuing RFEs in response to H-1B visa petitions. At Peek & Toland, we care about helping you obtain through your immigration problems. We will focus our efforts on advocating on your behalf and representing your interests throughout the immigration process. Our knowledgeable immigration lawyers know the best strategies for gathering documentation to support your goals. Allow us to handle your immigration law case by sitting down with us today and discussing your situation.

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H-4 and H-1B Visa Holders Remain in Limbo

By Jeanine Stone on June 19, 2019

Under an Obama administration-era rule, spouses of H-1B visa holders who are applying for legal permanent residence, or a green card, gained work authorization that generally was renewable from one year to the next. This rule allowed these spouses, present on H-4 visas, to get a job and further their own careers while in the United States. The ability to obtain work authorization also has been a selling point to recruit workers to come to the U.S. on H-1B visas; not only can H-1B visa holders bring their spouses and minor children with them to the U.S., but the spouses also can work. As a testament to the success of the program, there have been over 91,000 approved applications for work authorizations for H-4 visa holders.

H-4 and H-1B Visa Holders Remain in Limbo

The Trump administration announced its intention to revoke the work authorization for spouses of H-1B visa holders long ago. In February, however, as promised, the Department of Homeland Security (DHS) submitted a proposed regulation to the Office of Management and Budget (OMB) that would remove work authorization from H-1B visa holder spouses. Until the rulemaking process is complete, the work authorizations for these spouses remain in place, but both H-1B visa holders and their spouses remain in limbo indefinitely, waiting to find out whether a final rule will go into place.

For some couples, the inability of the H-1B visa holder’s spouse to work is a deal breaker. In other words, some couple state that they would not have come to the U.S. if they knew that one of them would not be able to work. Many individuals also feel like the U.S. government has unfairly changed the rules in the middle of the game. These couples are awaiting their green cards and doing everything that they are supposed to, and now, one of the spouses suddenly cannot work to support the family or pursue a career. For the many couples that live in large cities that are known for the high number of tech jobs, the cost of living is high, and may be unreasonable if both spouses cannot work and contribute to household expenses. Our Texas immigration lawyers are here to offer you the experienced legal representation and advice that you need in order to resolve your immigration law matter. We can act as your guide through the complicated immigration process to obtain the relief that you are seeking. Call our office today and learn about the type of assistance we can offer you.

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U.S. Government Reveals Reasons for Delays in Processing H-1B Visa Applications

By Peek & Toland on April 29, 2019

U.S. Citizenship and Immigration Services (USCIS) recently released data showing the most common reasons for the high rates of delays in the processing and denials of H-1B visa applications. These visas are designed to allow highly-skilled foreign nationals to work for companies in the U.S.

Overall, the rate of H-1B visa approvals dropped from 96% in 2015 to 85% in 2018. Similarly, delays in the processing of these visas rose by 60%, due to the federal government’s “requests for evidence” to prove the legitimacy of the visa applications. Furthermore, delays in processing made it much more likely that USCIS ultimately would deny an H-1B visa request. The approval rate for delayed applications fell to 60% by 2018, as compared to 80% in 2015.

U.S. Government Reveals Reasons for Delays in Processing H-1B Visa Applications

The top reason given by USCIS for issuing requests for evidence from visa applicants is a failure of the petitioners to establish that the positions qualify as specialty occupations. Although the technology industry has heavily relied on H-1B visas to hire foreign nationals with special skills, the visa program has come under attack as being abused by outsourcing companies and used to replace American workers with cheaper foreign labor.

Other common reasons for USCIS issuing requests for evidence, thus slowing the processing of H-1B visa applications, include a failure of the applicant to prove the existence of a valid employer-employee relationship with the foreign national or qualifying off-site work for the foreign national in a specialty occupation for the entire duration of the visa requested. Another common reason for delays in processing was the failure of an employer to prove that the foreign national was qualified to perform the services in a specialty occupation.

At Peek & Toland, we care about helping you obtain through your immigration problems. We will focus our efforts on advocating on your behalf and representing your interests throughout the immigration process. Our knowledgeable immigration lawyers know the best strategies for gathering documentation to support your goals. Allow us to handle your immigration law case by sitting down with us today and discussing your situation.

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DHS Publishes Final Rule for H-1B Visa Process

By Peek & Toland on April 19, 2019

The Department of Homeland Security (DHS) has published the final rule that makes significant changes to how it will choose which H-1B visa applications it will grant that are subject to an annual cap. H-1B visas historically have allowed U.S. employers to hire highly specialized foreign national employees in industries like biotechnology, but the number of visas available each year is limited to 65,000, plus an additional 20,000 spots for foreign nationals with advanced degree from U.S. colleges and universities. Changes to the rule became effective on April 1, 2019 and are designed to prioritize those foreign nationals with American advanced degrees, reduce the overall costs of the H-1B visa program, and further protect the jobs of U.S. workers.

Before the changes to the rule, the 20,000 slots designated for advanced degree-holders were filled first, followed by the remaining 65,000 visas. Now, the randomized selection process will be used to first fill the general 65,000 visas, followed by the 20,000 designated slots. DHS officials forecast that the rule changes could result in up to 5,340 additional postgraduate degree-holders from American educational institutions filling these spots than before.

DHS Publishes Final Rule for H-1B Visa Process

This is only one of several changes that DHS intends to implement by the end of the 2019 to ensure that H-1B visas are granted only to the most highly specialized foreign workers. For example, DHS also intends to launch an online portal for employers to participate in the H-1B visa process, including the completion of an extensive questionnaire. By 2020, employers also must file a separate petition for each foreign national whom they intend to hire, as opposed to the current practice. No matter the type of immigration issue you are facing, the skilled and knowledgeable immigration lawyers of Peek & Toland are here to assist you. We handle many different types of immigration cases every day and have the kind of strategic experience and skills that are necessary to reach the desired outcome. By calling our office as quickly as possible after your legal issue arises, we will have the best opportunity to successfully resolve your immigration law case.

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House Judiciary Committee Moves to Clamp Down on H-1B Visas

By Peek & Toland on February 25, 2018

The Trump administration vowed to review H-1B visas in 2017. Despite the tough rhetoric, few new restrictions were imposed.

However, in November 2017, the House Judiciary Committee took a step toward tightening up the rules for these visas that bring skilled workers to the United States from other countries.

An article in Fortune.com noted the Protect and Grow American Jobs Act would add more hurdles when “H-1B dependent” companies seek to obtain work permits.

The legislation was introduced in January 2017 by Republican California Rep. Darrell Issa. In November, it passed the House Judiciary Committee.

Restrictions on H-1B visas

House committee plans restrictions on H-1B Visas

Forbes noted this is just the first of a series of steps of many to make it to onto the statue books. The next stages include a vote by the House. The legislation would then be sent to the Senate Judiciary Committee, and would finally end up before the full upper chamber if it passes in committee.

Many companies, particularly those in the IT sector, hire graduate workers from abroad who hold a bachelor’s degree or higher in areas that require a highly specialized body of knowledge.

Under the legislation, a company is considered H-1B dependent if at least 15 percent of its workforce holds this visa.

The new legislation wants to change that threshold to 20 percent of the workforce.

Other important changes call for a minimum salary raise for H-1B holders from $60,000 to $90,000. The change is intended to prevent companies using cheaper foreign workers to undercut local wages.

Under the legislation, U.S. Companies would be required to send reports to the Department of Labor about their efforts to recruit American workers.

Employers dependent on H-1B visas would face as many as five random investigations a year by the Department of Labor. The bill would stop H-1B dependent employers from replacing American workers with H-1B visa-holding employees.

Issa’s bill is the first attempt to change the H-1B visa system through legislation. President Donald Trump has also issued an executive order to shake up the system and warned of other potential restrictions to the visas.

U.S. Citizenship and Immigration services warns employers who abuse the H-1B visa system can negatively impact U.S. workers, reducing wages and opportunities as they import more foreign workers.

Issa said he’s concerned a handful of companies are abusing the system. He said:

“Unfortunately, the loopholes left open in H-1B have allowed a small handful of companies to game the system…”

Employers face major hurdles in applying for H-1B visas and it’s getting more difficult all the time. As experienced Austin business immigration lawyers we can help you. Call us at (512) 474-4445.

 

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Tech Companies Tread Warily on H-1B Visa Reform

By Peek & Toland on February 23, 2018

The big tech companies rely on skilled overseas workers. They have criticized a range of government decisions such as the ending of the DACA program. However, on the issue of H-1B visa reform these companies have adopted a lighter touch.

The Verge reported how Microsoft issued a strongly worded statement defending DACA after the Trump administration announced it would be rescinded.

DACA is an Obama-era program that permits immigrants who arrived in the U.S. as children to remain if they meet certain requirements.

The Trump administration is considering ending the program. The president has asked Congress to move on the issue.

H-1B visa reform

Tech companies are wary of H-1B visa reform

The Verge article points out tech companies were also highly vocal in the condemnation of Trump’s executive order banning travel to the U.S. from seven Muslim-majority countries in 2017.

Leading executives from companies including Google, Apple, Microsoft, and Facebook were critical of the executive order.

Some employees staged large protests at their worksites. Sergey Brin, a Google co-founder who escaped from Russia to the U.S. as a child, joined protestors at San Francisco Airport.

Arguably, Trump’s executive order on H-1B visas has more impact on tech companies that rely on a steady stream of IT workers from the Indian subcontinent.

The H-1B visa program allows these companies to bring highly skilled workers from overseas. The tech industry relies on H-1B visas more than any other. The order could shake up the system.

Every year, tens of thousands of people are brought into the United States to work for the likes of Google, IBM, Microsoft, Facebook, and Apple as well as other companies.

For the tech companies, the visa program is a much larger source of workers than the DACA program.

The Verge reported that while Apple is working to protect about 250 DACA workers, in 2016 the company submitted more than 23,000 petitions for H-1B visa workers.

The H-1B visa application process involves a lottery and is controversial. Applications exceed granted visas.

Some American labor groups believe it’s a means of outsourcing jobs and replacing older American employees with cheaper foreign labor that receives fewer protections and benefits. The Verge article speculated that tech companies are not as vocal in the defense of the program as over other issues because they have more to lose.

The article pointed to the inextricable link between the wider immigration agenda and the issue of H-1B visas.

For instance, in early 2017 when a federal judge in Seattle blocked the original travel ban he made reference to a motion from Microsoft that pointed out Washington State’s heavy reliance on H-1B visas to bring workers to the tech industry.

Other companies headquartered in Washington including Expedia, Amazon, and Starbucks, employ thousands of H-1B visa holders.

The judge suggested the loss of highly skilled workers associated with the travel highly skilled workers puts Washington companies at a competitive disadvantage with its global competitors.

If you are seeking H-1B visas for overseas workers, our experienced Austin immigration lawyers can help you. Please call us at (512) 474-4445.

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Trump Backs Sweeping Senate Bill on Immigration

By Peek & Toland on August 8, 2017

Trump Backs Sweeping Senate Bill on Immigration

A new Senate bill on immigration endorsed by President Donald Trump would see the biggest shake-up of the immigration system for five decades.

Trump made an appearance with Republican Sens. Tom Cotton (Ark.) and David Perdue (Ga.) in early August to unveil a modified version of a bill the senators first unveiled in February. The bill would slash legal immigration levels by half and bring in a “merit-based” system that would switch the emphasis away from family ties to job skills when awarding green cards. The bill would also significantly cut the number of visas allocated every year. It would reduce the annual distribution of green cards awarding permanent legal residence to lawful arrivals to just over 500,000 from more than 1 million.

The legislation is in line with Trump’s “America First” initiative which has already seen the president proposing radical changes to the H-1B visa system.

Trump met Cotton and Perdue on two previous occasions at the White House to discuss their legislation titled the Reforming American Immigration for Strong Employment (Raise) Act. The bill claims the present immigration system is flawed and floods the United States with millions of new arrivals who lack skills. It states:

“For over a quarter century, the United States has accepted an average of 1 million immigrants annually — the equivalent of adding the entire state of Montana each year. But when only 1 out of every 15 immigrants arrives in the United States on a skills-based visa, the majority of the remaining immigrants are either low-skill or unskilled.”

The legislation claims this perceived influx of low-skilled labor has undercut the wages of “working immigrants.” It claims wages for Americans who hold high school diplomas only fell by 2 percent since the late 1970s. The salaries of those who never completed school fell by nearly 20 percent over the same period. This collapse in wages threatens to create a “near permanent underclass for whom the American Dream is always just out of reach.”

What the New Senate Bill on Immigration Proposes

The new Senate bill on immigration proposes a number of ways of cutting legal immigration:

1. Target “Chain Migration” to the United States

The RAISE Act would retain immigration preferences for spouses and minor children of U.S. citizens and legal permanent immigrants but eliminate preferences for adult family members and     extended family members of U.S. citizens. These include adult parents of citizens and married adult children of citizens.

2.  A Grading System for New Immigrants

The proposal would set up a grading system for new immigrants to the United States. Prospective green card holders would be judged on their median salary, ability to speak English, advanced degrees, their skills and whether they are able to afford their own health care.

3.  The Elimination of the Diversity Lottery

The bill says the Diversity Lottery is plagued with fraud, has no economic or humanitarian interest, and fails to delivery diversity. The Diversity Lottery is aimed at counties with low rates of immigration to the United States. The RAISE Act would cut the 50,000 visas arbitrarily allocated to this lottery.

4.  Limit the Number of Refugees

The RAISE Act would cut refugees offered permanent residency in the United States to 50,000 per year, in line with a 13-year average.

Trump had met twice previously at the White House with Cotton and Perdue to discuss the details of their legislation, which is titled the Reforming American Immigration for Strong Employment (Raise) Act. Their proposal calls for reductions to family-based immigration programs, cutting off avenues for the siblings and adult children of U.S. citizens and legal permanent residents to apply for green cards. Minor children and spouses would still be able to apply.

According to a June Gallup poll, 35 percent said immigration should be decreased while a similar 38 percent said it should remain at current levels and 24 percent said it should be increased.The President’s endorsement of the bill marks a watershed moment for many groups that have been pushing these proposals for years. However, it faces an uphill battle in the Senate, reports The Hill.

If you are seeking help or advise on an immigration matter please call Peek & Toland at (512) 474-4445.

 

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