US Companies Lose the Immigration Game!

Employer seeks quality candidate; employer finds their match.  But problem!  Candidate is not a US citizen and hence needs a visa.  There is only a 36% chance that the employer will be able to employ the chosen candidate and there is a 100% chance that the employee will be unable to start until October 1, unless the employer is a nonprofit institution!

This year USCIS (United States Citizenship and Immigration Service) received 233,000 visa applications for 85,000 spots! So there was a 1 in 3 chance that a Bachelor’s degree holder would be able to obtain a slot in the visa Lottery.

US companies open offices overseas because that is where the sales are.  Factories, back offices, retail, affiliates, branches, subsidiaries.  But product is researched, developed and nurtured in the US.  The customers are overseas, but the development is here.  Which is why US companies are demanding more visas for employees.  Companies need more technical talent here, so that they can sell more overseas and enrich the bottom line for US stakeholders.  Legal employees contribute to taxes, consumer spending, real estate, banking, insurance and social security!

US Industry loses

US universities spend roughly $250,000 per student in a PhD program (stipend, tuition, grants and other benefits).  When a US Masters or PhD applicant cannot obtain a visa, he or she either returns to their own country or finds greener pastures in Canada, UK and other European countries and Australia, who are not shy about accepting them.

The ‘cap’ of 65000 for Bachelor degree H1B visas is artificial.  Industry is self-regulating.  If there is no demand for H1B jobs, there will be fewer visas issued.  For example, in 2008 and 2009, the cap was filled in the first week.  But in 2011 and 2012, the cap was reached only in December, and January of the following year.  In 2013, the US economy was in recovery and the cap was reached in the first week.  The average pay of H1B workers is $70,000 (according to USCIS H1B Handbook for 2011, 2012 available at http://1.usa.gov/Q8qXAp).  In general, these are not workers who are short changed or paid lower wages.  Employers also have to factor in cost of ‘onboarding’ these employees in addition to wages and other benefits paid to US workers.

The public are focused on just computer programmers and other IT employees.  But the truth is that there are other professions that also use the H1B program such as occupations in Architecture, Engineering and Surveying, Administrative Specializations, Education, Medicine and Health, Managers, Mathematics and Physical Sciences, Life Sciences, Other Professional, Technical, and Managerial Occupations, Social Sciences, Art, Law and Jurisprudence, Writing, Entertainment and Recreation, Sales, and Museum, Library, and Archival Sciences, which are 40% of the cap based applications.

Companies such as Microsoft have started opening offices over the border in Canada, which has a ‘friendlier’ immigration system which accommodates guest workers easily without fuss.

The solution

Expand the number of visas for US Master degree holders.  This would boost the US University ‘industry’ and reverse brain drain of US trained foreign students leaving with their US gained knowledge to enrich ‘home’ countries, that increases competition for US companies!

Expand and create an H1B visa quota for entrepreneurs, because these start-ups will eventually employ local US workers.  Tie these visas to local incubators who can become sponsors for talent.  This will encourage industry in economically depressed areas, much like the Conrad program does for rural health and EB 5 visas does for ‘Targeted Employment Areas’.  Today the capital threshold required for a startup has dramatically shifted from the millions to a few thousand dollars, which means that it is easier to start a company.  The financial requirements to not become a’ public charge’ and the ‘ability to pay employees’ can be kept the same.

The takeaway

Our economy needs jobs that pay a living wage.  Our population is aging.  The majority of H1B applicants were in the 25 to 39 age range, workers with long employable lives who can pay into our economy.

 

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EAD – Renew Early

U.S. Citizenship and Immigration Services (USCIS)  is reminding recipients of Deferred Action for Childhood Arrivals (DACA) that their current period of DACA and employment authorization could expire if they wait too long to request renewal.

Please apply for a renewal at least 150 to 120 days before your current period of DACA and employment authorization will expire. Timely filing will help ensure USCIS has sufficient time to consider your request.  On March 27, 2015, USCIS began mailing renewal reminder notices to DACA recipients 180 days prior to the expiration date of their current period of DACA. Previously, these reminder notices were mailed 100 days in advance.

USCIS is accepting initial and renewal requests for two-year grants of DACA under the guidelines established in 2012. A federal district court order issued on February 16, 2015, enjoining USCIS from implementing the expanded DACA guidelines did not impact USCIS’ ability to continue processing DACA requests under the 2012 guidelines.

Applicants can request renewal of DACA if the initial DACA guidelines are met and the applicant:

  • Did not depart the United States on or after August 15, 2012, without advance parole;
  • Has continuously resided in the United States since submitting the most recent, approved DACA request, up to the present time; and
  • Has not been convicted of a felony, a significant misdemeanor, or three or more misdemeanors, and does not otherwise pose a threat to national security or public safety.

Call or email Mahadevan Law Office at 314 74 8784 or nsm@mlolaw.us

Nalini S Mahadevan, JD, MBA

Attorney at Law.

Not meant as legal advice!

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The Elephant in the Room

Discrimination in Immigration!  You’re are kidding, right?

I have been reading about double digit denial rates for L1B visa applications from India.  The denial rate for L1B ‘specialized knowledge’ workers out of India is 56% while for Mexico and China it is 22% and 21%.  L1B visas are issued for intracompany transfers from an affiliate or branch to the US Company.  ‘Specialized Knowledge’ requires a worker to have specialized skills about his company’s product. For an Indian applicant who is usually a software engineer that seems to be an insurmountable hurdle for more than half the applicants!   The current standard of adjudication has been drifting upwards.  Now a company needs a ‘star’ employee with astronomical specialized knowledge to be approved.

Many top Fortune 500 companies outsource their technology needs to other companies.  These other companies have operations which run in a 24 hour cycle.  While the US sleeps the work is carried on in China and India.  Now the company wants to bring some of its overseas employees from China and India for some face to face time to promote synergy between the overseas team and the US team, run a ‘SCRUM’ operation, and improve US business profits.  These workers have specialized knowledge of the company customized software built on a platform that is universally available in the US, but these employees are not ‘stars’. The same application has a 50% chance of denial by either USCIS or the US consulate in India and a 21% chance of denial for China.  The only losers are US businesses!

What can we do?

  • File applications for employees who are more senior in the company and have more specialized knowledge about the company’s process, technology or other matter.
  • Document, document, document! the application with every training at every international branch, leadership position in the company, and knowledge based expertize.
  • Then Pray!

Nalini S Mahadevan Esq

nsm@mlolaw.us

314 374 8784

Not meant as legal advice!

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Trafficked Men Awarded $14 Million

I always thought that it was women who had to be wary of being lured into unsavory and inhumane working conditions.  But men should also beware of an offer too good to be true.  They were promised green cards and entered the US on H2B visas that do not lead to a green card.  500 Indian workers were lured by Sachin Dewan, an India based recruiter to work in a ship repair yard in Louisiana after Hurricane Katrina.  They were represented by a US lawyer.

They lived in labor camps under inhumane conditions, 24 to a trailer, where according to reports the company prayed that there would no federal government inspections.  To top it off, each paid $1050 per month to live there and were not allowed to live off campus! Each paid $10,000 to $20,000 to the recruiter, so the men were in debt up to their eyeballs!

ACLU and several law firms contributed their services pro bono. 5 men were awarded $14 million in damages.  Of course the company Signal International has appealed the award.  Cases for about 200 have been filed.

Nalini Mahadevan

nsm@mlolaw.us

Caveat:  Not intended as legal advice!

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EADs for H4 visa holders

The U.S. Citizenship and Immigration Services (USCIS) Director León Rodríguez announced today that, effective May 26, 2015, USCIS will issue employment authorization to certain H-4 dependent spouses of H-1B non-immigrants who are seeking employment-based lawful permanent resident (LPR) status. The regulations were amended to allow these H-4 dependent spouses to accept employment in the United States.

Nalini S Mahadevan, JD, MBA

Attorney at Law

nsm@mlolaw.us

Not intended as legal advice!

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How to Employ A Foreign Student

Last year I gave a presentation at a local University to employers about the advantages of employing students from foreign countries, here in student visa status.  The Director of the Career Center told me that local employers were afraid of the process involved in hiring them!

To this I say Pshaw!!!  Look at the untapped potential for a wonderful talented employee, who is willing and wanting to learn and be part of the employing company.  Imagine that student has already passed several hurdles such as qualifying to enter a prestigious University, probably has a revealed a superior understanding of her subject and has demonstrated to University admission officers and professors at their college that she can match the best of any local talent!  These students have probably passed several more exams in an effort to enter an American University!  Does that not show grit and hard work – truly American as apple pie! Like the old E.F. Hutton ad said, “they earned it”.

How to hire a student on an F-1 visa?

  • Do they have an OPT (Optional Practical Training) granted at the end of a course of academic education. If yes, Non STEM students can work up to 12 months and STEM (Science, Technology, Engineering and Math) students can work for up to 29 months for an employer.
  • STEM students have 2 bites at the H1B apple. STEM students can apply twice for an H1B visa while in OPT status and can stay employed for at least 6 more years with the employer, so the training is not wasted!
  • The student should be in valid F-1 status
  • Proposed employment should relate to the student’s academic work
  • New Obama executive orders will expand and extend the use of OPT
  • CPT – Curricular Practical Training A student can work either part time or full time for an employer during the course of their study as either an employee, an intern (paid or unpaid), in a cooperative (co-op) educational experience, or as a practicum participation in the field of their major.
  • Full time CPT will reduce entitlement to OPT.

This is a great way to test the waters.  There are many foreign students with experience who are at University in a Master’s program or even a second Bachelor’s degree.

Caveat! Employ a student from an accredited University, please.

Nalini S Mahadevan, JD, MBA

Contact: nsm@mlolaw.us

This blog is not intended as legal advice nor is it to be construed as creating a attorney client relationship!

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Expand your Business to the United States

I often get asked this question from callers anxious to start a new business in the United States,“ I have a thriving business in ….., (fill in the name of the country) a large part of my business is in the US.  I want to start a new office in the America to focus on my contracts there.   How do I do start a new office?”  Here’s how:

  • Have a US connection

The new U.S. office must have a corporate relationship with your foreign entity abroad where you have been employed either as a manager, executive, or worker with specialized knowledge.

  • Demonstrate a relationship between the foreign and US offices
  • Demonstrate foreign employment as a Manager, Executive or Specialized Knowledge worker
  • The new office must be operating within one year

The “new office” L-1 visa is meant to facilitate a “ramp up” period for a new U.S. office of a foreign entity. This period is limited to one year.

  • The new office must be able to support a full time Manager or Executive
  • The Takeaway

New office L visas are usually granted for 1 year to qualified applicants. If you are from India, be aware that the denial rate in India is generally about 25%, which is higher than other countries.  There is a general belief is that the incidence of fraud is very high in India, due to the falsification of evidence and supporting documents.

Nalini S Mahadevan, JD, MBA

Attorney at Law

nsm@mlolaw.us

This blog is not meant to create an attorney-client relationship or meant as legal advice.

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Indian PIO cards are no longer valid

The Government of India issued new regulations on 9th January, 2015 that existing PIO (Persons of Indian Origin), were no longer valid.  Instead PIO holders would be considered (deemed) OCI (Overseas Citizens of India) holders.

Foreign Spouses of current or prior Indian citizens can obtain OCI status after two years of marriage.

Nalini S. Mahadevan, JD, MBA

Attorney at Law

Contact us for new visa filings at nsm@mlolaw.us.

This blog is not intended to create an attorney-client relationship. The information contained is strictly for informational purposes only.

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Afraid you won’t make the H-1B cap?

  • Prepare now.  If you are a student, on F-1 visa, enroll in college for initial or subsequent Degree programs
  • If you are from a Treaty Trader/Treaty Investor Country, start a business to become eligible for an E-1 or E-2 visa
  • If you are a citizen of Canada or Mexico, change status to a TN visa
  • If you are a spouse of an employee, you may be eligible for a work permit, under current regulations and when regulations under Obama’s executive order are issued.
  • There are H-3, J-1, B-1 in lieu of H-3 visas available for persons who qualify
  • If you have outstanding achievements in the science, arts, education, business or athletics, you could be eligible for an O-1 visa.

Contact us for your new visa filings at nsm@mlolaw.us.  We are a full service immigration law firm.

This blog is not intended to create an attorney-client relationship. The information contained is strictly for information purposes only.

Nalini S. Mahadevan, JD, MBA

Attorney at Law

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2015 H1B Filings

There are several changes in the way in which H1Bs are being scrutinized when filed with USCIS.  For starters, USCIS has become more vigilant about enforcing the validity of US Masters degrees awarded to applicants filing their cap based H1B visas under this category.

There is a separate quota for recipients of US Masters Degrees, (20,000 visas) which is defined in the law as a US Master’s degree awarded by a U.S. institution of higher education which is a public or other non-profit institution accredited by a “nationally recognized accrediting agency or association” or “granted a pre-accreditation status”. If degrees are received from institutions which do not fit this definition, even if the institution is located in the U.S., and even if the institution  awards advanced degrees; those degrees will not qualify an H-1B petition to be filed under the 20,000 US Masters Degrees cap. USCIS is enforcing this requirement very strictly by issuing requests for evidence, notice of intent to deny and outright denials to companies and beneficiaries.

There is also a new I-129 form dated October 23, 2014 which is to be used for H1B visas.  Older editions will be rejected by USCIS on or after May 1, 2015.

Contact us for your new visa filings at nsm@mlolaw.us.  We are a full service immigration law firm.

This blog is not intended to create an attorney-client relationship. The information contained is strictly for information purposes only.

Nalini S. Mahadevan, JD, MBA

Attorney at Law

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