Computer World Magazine online has an article explaining why President-elect Obama might increase the H-1B cap and immigrant visa numbers, this despite our economic problems.   

Obama has been a proponent of the H-1B visa program.  Although he supports reform of the program, he has also made it clear that he supports an increase of the H-1B visa cap.  Furthermore, the U.S. should want to encourage foreign students and employees to stay, live and work in the United States.  Studies have shown that a vast number of entrepreneurs are immigrants.  If there is one thing that will help the U.S. recover from this economic crisis, it's entrepreneurism and the entrepreneurial spirit.

We will soon find out what Obama's priorities will be when it comes to immigration.  But we at Bashyam Spiro believe that his first two moves should be to: 1) increase the H-1B cap and 2) make it easier for foreign workers and foreign students with advanced U.S. degrees to get permanent resident status.

To read the entire article in Computer World online, please go to THIS LINK.

As our economy enters a period of slow growth, and maybe even the ‘R’ word, employers may look to cut costs to ride out the economic downturn. These costs could include reductions in workforce, pay, or hours worked by company employees. If a company currently has foreign employees, the decision must look beyond basic company economics and consider possible violations of immigration laws as well. So what potential immigration laws could a company violate under these circumstances?

Under the H-1B and E-3 professional visa programs, employers are required to pay their foreign employees the higher of the actual wage or prevailing wage for the position. The prevailing wage is determined by the Department of Labor (DOL). These obligations are covered under the Labor Condition Application (LCA) that is filed by employers with the DOL prior to obtaining professional work status for foreign employees. The LCA governs what the employer must pay and the hours the employee must work under the H-1B and E-3 programs.

Employers should be mindful that reducing pay or work hours of foreign employees could result in a violation of the employer’s obligations under the LCA. Make sure that the salary does not fall below the actual wage stated in the LCA for the foreign employee. That will result in a violation of the LCA, and could lead to DOL penalties. Reducing an employee’s status from full-time to part-time is possible, but an employer must first do two things: 1) make sure that they are paying the higher of the actual or prevailing wage for that part-time position and 2) file an amended H-1B/E-3 application that contains a new LCA evidencing the part-time status of the employee. Furthermore, the DOL does not recognize ‘nonproductive work status’, also referred to as ‘benching’. Employers will be required to make pro-rata payment of required wages even if a foreign worker is put on nonproductive work status.

What happens if an employer terminates an H-1B or E-3 professional workers? An employer must pay for the reasonable costs of transportation for the employee back to his/her home country for H-1B workers. This means the cost of a plane ticket back home. The obligation covers the H-1B employee and not the employee’s family. The same legal obligation does not exist for workers holding E-3 status.

Some employers will be considered ‘H1B dependent’ if a certain percentage of their workforce consists of H-1B workers. If an employer is H-1B dependent, it must monitor layoffs within its workforce. After an LCA is certified for a position, an employer must make certain that it has not laid off a U.S. worker from an equivalent position within 90 days preceding and 90 days after the filing of an H-1B petition. Employers must be careful to monitor layoffs of U.S. workers under these conditions.

The PERM labor certification application is the first step of most employer-sponsored permanent residency applications filed on behalf of foreign employees. The purpose of PERM is to prevent the displacement of qualified U.S. workers for the foreign employee’s position. Layoffs of U.S. workers in positions similar to the foreign worker, if they occur within the six-month period preceding the filing of a PERM labor certification, will impact an employer’s recruitment obligations and their ability to file the labor certification application. In this situation, employers will be required to consider the U.S. workers who have been laid off for the position specified in the labor certification. Therefore, it is important that employers monitor layoffs not only in the context of workers in H-1B or E-3 status, but for workers who are going through the permanent residency process as well.

Is it a tough economy? Yes. Will tough decisions need to be made? Perhaps. But be careful not to violate immigration laws while implementing cost cutting measures.

The United States Citizenship and Immigration Service (USCIS) has announced that, except for cases being reviewed as potential duplicate filings, all receipts have been issued for cases selected in the random lottery. The California and Vermont Service Centers finished entering data on all selected cases by May 23, 2008, and mailed all receipts by May 24, 2008.

U.S. Citizenship and Immigration Services (USCIS) announced that it would allow F-1 students who are the beneficiaries of selected H-1B petitions for fiscal year (FY) 2009 to request a change of status in lieu of consular notification.

The short-term measure follows an April 8, 2008 interim final rule that, among other actions, automatically extends the F-1 status of qualifying students who are the beneficiaries of approved H-1B petitions to cover the gap between the expiration of a student’s F-1 status and the H-1B employment start date of October 1. To obtain the automatic extension, a student must be the beneficiary of an H-1B petition filed for the next fiscal year (with an October 1 employment start date) and have requested a change of status. For F-1 student beneficiaries of petitions that USCIS subsequently rejects, denies, or revokes, or for those who violate their status, the automatic extension terminates at that time.

Since the rule was published after the filing period had closed for new FY 2009 H-1B petitions, many petitioners of F-1 students did not include a request for a change of status with the H-1B petition. Instead, petitioners requested consular notification based on the assumption that these students would have been required to leave the United States to obtain an H-1B visa at a consular office abroad.

USCIS has determined that it will allow petitioners of F-1 students whose H-1B petitions were randomly selected to receive an H-1B visa number for FY2009 following the closure of the filing period, to now request a change of status on behalf of qualified beneficiaries, if such requests are received within 30 days of the issuance of the receipt notice.

To request a change of status in lieu of consular notification, petitioners (or authorized representatives) must send an email with the request to the USCIS service center where their petition is pending within 30 days of the issuance of the receipt notice. Special email addresses for each service center have been established specifically for this purpose. These addresses are listed below and are posted on the USCIS website. Petitioners should email their requests for change of status in lieu of consular notification upon receipt of the notice so the agency has the request before completing H-1B petition adjudication. The requests should include the receipt number and both the petitioner’s and beneficiary’s name, date of birth, I-94 (Arrival/Departure Record) number, and Student and Exchange Visitor Information System (SEVIS) number.  

Email addresses for requesting change of status can be found at THIS LINK.

As additional information becomes available, we will post it at www.bashyamspiro.com. 

Our office has begun receiving receipt notices and approvals for premium processing 'regular-cap' and 'advanced-degree' H1B cases filed for Fiscal Year 2009.  If you have yet to hear anything or receive a receipt notice from USCIS, one tip would be to check with your bank to see if the check for USCIS filing fees has been cashed.  If it has, that is an indication that USCIS has selected your case for adjudication.

For cases that were filed under the regular H-1B cap, we would like to remind everyone that USCIS has stated that it will issue receipt notices by June 2, 2008.  If you have not received a receipt notice yet, that does not automatically mean that your case has not been selected for review.  We expect that USCIS will begin issuing receipt notices (or rejections) for regular-cap H1B applications throughout the month of May.

As additional information becomes available, we will post it at www.bashyamspiro.com. 

On April 14, 2008, U.S. Citizenship and Immigration Services (USCIS) conducted its computer-generated random selection processes to select which H-1B petitions for fiscal year 2009 (FY 2009) would be adjudicated.  

U.S. Citizenship and Immigration Services (USCIS) announced today a preliminary number of nearly 163,000 H-1B petitions received during the filing period ending on April 7, 2008.  More than 31,200 of those petitions were for the advanced degree category. 

USCIS expects that next week it will conduct the computer-generated random selection process, beginning with the selection of the 20,000 petitions under the advanced degree exemption.  Those petitions not selected under the advanced degree category will join the random selection process for the cap-subject 65,000 limit.   

USCIS will reject, and return filing fees for all cap-subject petitions not randomly selected, unless found to be a duplicate.   

We will provide additional updates at www.bashyamspiro.com when they become available.