Under these new STEM rules, STEM graduates must receive a wage similar to U.S. workers doing similar work, must be employed by a U.S. employer who participates in the USCIS E-Verify program, and must be employed under an employer designed training program for the benefit of the student. The training program must have goals and objectives, a means to measure student progress, and a supervision structure to oversee student activities. The employer must certify that the student is not replacing a part time or full time U.S. worker.
The post New F-1 Optional Practical Training STEM Rules Go Into Effect on May 10, 2106 first appeared on SEONewsWire.net.]]>The H-1B program permits a U.S. employer to file for a foreign national to temporarily fill a position in the United States provided the position requires at minimum a bachelor’s degree, and the United states Citizenship and Immigration Service (“USCIS”) deems the position to be professional. There are other requirements, too, including an employer representation certified by the Department of Labor that the employer will pay prevailing or actual wages to the foreign worker as it does to U.S. workers in the area of intended employment, or to its other, similarly situated workers.
The statute caps H-1B visa numbers at 65,000 each fiscal year, and provides an additional 20,000 visas solely for U.S. earned masters or higher degree holders. In recent years, the statutory allotment of H-1B visas has proven to be inadequate. Last year, U.S. employers submitted ~224,000 H-1B petitions for the 85,000 visa numbers which became available on October 1, 2015. Employers can file 6 months in advance of the upcoming fiscal year. By the end of the first week in April, 2015, the earliest time when employers could file, all H-1B visa numbers for the following fiscal year were accounted for. USCIS conducted a “lottery” to randomly select which petitions were the ones chosen to fill the quota.
As the economy continues to improve, FY 2017 may result in even greater number of H-1B visa petitions for the number of H-1B visas available.
Many employers, especially in the high tech sector, use the H-1B program to employ STEM graduates to address marketplace shortages of U.S. workers in this and other areas. One study done in 2012 in partnership with the U.S. Chamber of Commerce, found that every foreign national U.S. university graduate who remains in the U.S. employed in a STEM field generates on average of 2.62 U.S. worker jobs. Principal sectors of the economy which benefit from the H-1B program include manufacturing and healthcare.
Employers today have to evaluate the chances of their H-1B petition being chosen and the costs of preparing the application against the value that the foreign national represents in skill and talent, and the paucity of similarly skilled and available U.S. workers. No U.S. employer should be handicapped and made to rely on a lottery to fill key staffing needs.
The post Senate Holds Hearing on High Skilled H-1B Workers as FY 2017 H-1B Season Begins first appeared on SEONewsWire.net.]]>As background, foreign students are admitted to the United States as nonimmigrants for the purpose of pursuing their studies at United States educational institutions. Students pursuing higher education are admitted in F-1 status and students pursuing vocational studies are admitted in M-1 status.
The Department of State has an Exchange Visitor program, which is multi-faceted and provides opportunities for nonimmigrant foreign nationals in diverse areas through programs for university students, professors and researchers, physicians, short term scholars, teachers and many others. Exchange visitor program participants are admitted to the United States in J-1 status.
The Student and Exchange Visitor Information System (SEVIS) maintains information about all F-1, M-1 and J-1 nonimmigrants in the United States and the report draws its data from SEVIS.
The following are highlights of the report:
The review lists several trends. Compared to October, 2013, (a) overall, the number academic, vocational and exchange international students is up by 9%, (b) the number of all academic and vocational students enrolled in secondary school programs is up by 14% and those enrolled in U.S. masters degree programs is up 16%; (c) the number of academic and vocational students from India is up 28%; and interestingly (d) data on the number of academic and vocational students studying in Vermont show it to be up 21%, and those studying in Washington, Delaware and Arizona is up 18%.
The top five approved approved institutions with the largest academic international students populations are: (1) University of Southern California, with 12,332 international students; (2) New York University, with 10,825 international students; (3) Columbia University, with 10,744 international students; (4) Purdue University, with 10,545 international students; and (5) University of Illinois, with 10,510 international students.
Finally, 12% of all academic and vocational students, or a total of 134,292, are from India. 65% of all academic and vocational students from India study engineering and computer and information sciences and support services programs.
Rabinowitz & Rabinowitz, PC. is an immigration law firm in Dallas Texas representing individuals and family members in lawful permanent resident and U.S. Citizenship cases. To learn more visit http://www.rabinowitzrabinowitz.com.
The post International Students in America: October, 2014 Numbers and Trends first appeared on SEONewsWire.net.]]>And now, the U.S. defense industry is adapting to a national military strategy more reliant on technological superiority than on amassed hardware or troops. As defense professionals at the Pentagon and beyond revise their military plans, they are seeing an increasingly acute need for these talented STEM workers.
The importance of keeping foreign-born, graduating STEM students in this country cannot be overestimated.
Part of the need for foreign-born STEM workers is driven by a simple principle of supply-and-demand economics. The number of available H-1B visas is limited, and many of these STEM workers need the visas to immigrate to the United States. Currently, only 85,000 visas are granted each year. Many foreign-born, would-be STEM professionals come to the United States to study on student visas, but when they graduate, those who cannot obtain an H-1B visa must return to their respective home countries.
The recent budget-driven sequester cut spending in all federal departments, and those cuts have impacted the outlook for future defense strategy. The Obama administration has already reduced military outlays in Iraq and Afghanistan. Now, it seeks ways to cut back troop levels and jettison unnecessary, expensive weapons systems in order to maintain an efficiently lean, economical military.
As part of that strategy, the Defense Department has placed a premium on technological advances. But restrictive policies on immigration limit the number of H-1B visas to a total that does not meet the existing demand. The shortage of visas may crimp the Pentagon’s objectives.
Immigration policy troubles the Pentagon, but it is not their only quandary. Competition also affects requiting: many foreign-born STEM graduate students primarily seek a career in Silicon Valley or Austin, Texas. Employment with the defense establishment is often less tempting and, even more often, less lucrative.
A bill that would grant U.S. citizenship to immigrants with advanced STEM degrees passed the U.S. Senate last year, but it has sputtered in the House. Meanwhile, Defense Department officials have publicly emphasized the need for new technologies.
“We must maintain our technological edge over potential adversaries,” said Defense Secretary Chuck Hagel.
A. Banerjee is a Houston immigration attorney in Texas. Before selecting an lawyer, contact the Law Offices of Annie Banerjee by visiting their website at http://www.visatous.com.
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The Obama administration hopes to make the Senate measure the heart of its immigration reform proposals. As such, the White House has been trying to make the case that the legislation would prove beneficial to work-related immigrants in the United States, particularly to those from India.
When he met with President Obama in September, Indian Prime Minister Manmohan Singh signaled his nation’s concern that Congress might restrict immigration from India, particularly that of Indian businesspeople and their capital. With India among the top 10 origins of immigrant entrepreneurs to the United States, it is not difficult to see why the prime minister brought up the issue.
But in throwing his weight behind the Senate-crafted immigration measure, Obama referenced the issue Singh raised (albeit without directly addressing the latter’s constituent concerns).
“The Senate bill would create new pathways for immigrant entrepreneurs and investors and make key improvements to the H-1B program,” reads a White House fact sheet.
Petitioners from India constitute a hefty 64 percent of all workers who come to the United States on H-1B visas, so the White House has also pointed out that the new Senate legislation would increase the number of available H-1B visas from 65,000 to 115,000 each year.
The White House has also emphasized that much-in-demand science, technology, engineering and mathematics doctoral and master’s degree graduates would be exempt from the annual 140,000 visa cap. This exemption for STEM graduates could prove significant to Indian students, as Indian immigrants constitute 56 percent of all immigrant students pursuing a master’s degree in computer science and engineering in the United States.
In addition, the White House has stressed the expanded business opportunities it foresees for foreign investors as a result of the Senate measure, which would bump the number of EB-5 visas up from 10,000 to 14,000 per year.
However, resistance to some of the Senate’s key proposals from domestic labor groups (among other interests) block any guarantee that the upper chamber’s measure will survive through the next session, much less emerge unchanged from the House of Representatives.
Still, the language from 1600 Pennsylvania Avenue remains supportive of the Senate measure.
“The Senate bill would eliminate the existing backlogs for employment-based green cards, exempt certain employment-based categories from the annual cap and remove annual country limitations altogether,” the White House said.
A. Banerjee is a Houston immigration lawyer in Texas. Before selecting an attorney, contact the Law Offices of Annie Banerjee by visiting their information filled web site at http://www.visatous.com.
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On the nonimmigrant visa side, S.744 both provides for additional nonimmigrant visa categories and additional H-1B visa numbers. It also includes additional restrictions on H-1B and L-1 visa classifications further burdening employers who need foreign talent with additional fees and additional requirements to thwart fraud. As of this writing, the Senate has had 3 days of mark up on S.744.
In this article, we shall examine a summary of the starting point of S. 744 affecting nonimmigrant visa classifications.
A. F-1 Students:
* Dual intent recognized for F-1 students in bachelor’s or graduate degree programs.
B. New E Specialty Workers:
* Permits citizens of countries with whom the U.S. has Bi-Lateral Investment Treaties or Friendship, Commerce and Navigation Treaties to enter the U.S. as specialty occupation workers to work for a U.S. employer offering specialty occupation employment.
* Requires the employer to file and obtain a certified a Labor Condition Application (“LCA”) from the U.S. Dept. of Labor.
* Also provides this benefit specifically to citizens of South Korea.
* Limit is 5,000 visas per year per country.
C. E-3 Visas for citizens of Ireland:
* Irish citizens who seek E-3 status to perform services as an employee must have at least a high school education or its equivalent, or has, within 5 years, at least 2 years of work experience in an occupation which requires at least 2 years of training or experience.
D. Nonimmigrant Visa Portability:
* Both H-1B status holders and now O-1 status holders can begin work with a new H-1B or O-1 employer upon the filing of a new, respective H-1B or O-1 petition provided the new petition is non-frivolous, the H-1B or O-1 status holder has not worked without authorization, and such person has been lawfully admitted.
E. Deference to Previously Approved H-1B and L-1 Petitions:
* If the prior petition does not have material error, a substantial change in circumstances, or adverse newly discovered information, USCIS to defer to the prior petition in exercising its discretion.
F. Nonimmigrant Visa Revalidation Within the U.S:
* Dept. of State to allow visa revalidation in the U.S. for A, E, G, H, I, L, N, O, P, R, or W for otherwise eligible and qualifying applicants.
G. Nonimmigrant Stay and Employment Authorization Extensions:
* Nonimmigrants in employment authorized A, E, G, H I, J, L, O P, Q, R and TN whose employers have filed a timely extension maintain status and employment authorization until the extension is adjudicated.
H. H-1B Specialty Occupation Workers:
* Range of H-1B visa numbers between 110,000 and 180,00 using a High Skilled Demand Index to vary the number. Cap limited to changes of 10,000 visas per year.
* The exemption for foreign nationals with U.S. earned Masters Degree or higher increases to 25,000 but it is limited to STEM occupations, including biological and biomedical sciences.
* Spouses of H-1B will have employment authorization eligibility.
* H-1Bs have a 60 days grace period after termination of employment to depart the U.S. During that period the H-1B considered in status for purposes of filing to extend, change, or adjust status.
* Change to the DOL wage determinations from 4 wage levels to 3. Level 1 = mean of the lowest 2/3 of all surveyed wages in an MSA. Level 2 = mean of all wages. Level 3 = mean of the highest 2/3 of all wages. Employer must pay 100% of prevailing wage.
* 4 level DOL wage determinations remain for nonprofit higher education institutions.
* Employers must recruit for H-Bs by posting notice on a to-be-created DOL H-1B web site for 30 days before filing an LCA. Employer must offer position to a U.S. worker equally or better qualified.
* H-1B employers must attest that they have not and will not displace a U.S. worker for 90 days after the date of filing an LCA. Exempts employers whose number of employees in the same job classification has not changed in the past year. For H-1B dependent employers, the non-displacement period forward and back is 180 days.
* H-1B employers who outsource, lease otherwise contract for placement of services must pay a $500.00 fee. Prohibition on outsourcing for H-1B dependent employers.
* New H-1B or L-1 Fee: In addition to existing H-1B fees, DHS is to collect a new fee from an employer using the H-1B or L-1 program. The fee is $1,250.00 per H-1B petition provided the employer has not more than 25 full time or full time equivalent employees. For employers with 26 or more employees, the fee is $2,500 for an H-1B or L-1 petition. Nonprofit research institutions and nonprofit educational institutions are exempt from these fees.
* Nonprofit institution of higher education, nonprofit research organization, and employers engaged in healthcare who file for a nurse, physician, physical therapist or similar position care not H-1B dependent notwithstanding the number of H-1B workers.
* New definition of “intending immigrant:” A foreign national who intends to live and work in the U.S. for whom a labor certification for 1 year or a filed employment based immigrant visa petition. An intending immigrant is not counted as an employee in H-1B or L status in calculations required under the bill.
* DOL to conduct annual compliance audits of employers who have more than 100 employees if more than 15% of such workforce is in H-1B status.
* H-1B employers to provide H-1B foreign nationals with a copy of the entire H-1B petition within 30 days of filing the LCA. Employer can redact proprietary or financial information.
* USCIS or DOL to provide H-1B or L-1 foreign national with information on employee rights, employer obligations, and government agency contact information.
* H-1B Dependent Employer Fees Increase:
1. In fiscal years 2014-2024, a $5,000 fee for an employer who employs 50 or more employees if more than 30 percent and less than 50 percent of the applicant’s employees are H–1B nonimmigrants or L nonimmigrants.
2. In fiscal years 2015-2017, a fee of $10,000 for an employer who employs 50 or more employees if more than 50 percent and less than 75 percent of the applicant’s employees are H–1B nonimmigrants or L nonimmigrants.
* Nonprofit institutions of higher education are exempt from these fees and intending immigrants do not count as H-1B or L-1 employees.
* Increases penalties for LCA violations to $2,000. Exposes employers to liability for any employee harmed by the violation as to lost wages and benefits.
* In determining prevailing wage level for an employee of an institution of higher education, or a related or affiliated nonprofit entity or a nonprofit research organization or a governmental research organization, the prevailing wage level only takes into account employees at such institutions and organizations in the area of employment.
* H-1B employers cannot
1. Advertise any as only available to F-1 OPTs or H-1B nonimigrants;
2. Advertise that F-1 OPT or H-1B will receive preference in the hiring process;
3. Solely recruit individuals who are or who will be F-1 OPT or H–1B
* Limitation on total H-1B and L-1 nonimmigrants for a specific employer: Employers with 50 or more employees must sum the number of H-1B and L-1 employees.
1. For FY 2015, that sum cannot exceed 75% of the total number of employees;
2. For FY 2016, that sum cannot exceed 65%;
3. After FY2016, that sum cannot exceed 50% of the total number of employees;
* DOL standard of review for LCA to include “completeness and evidence of fraud or misrepresentation.”
1. DOL has 14 days to certify LCA instead of 7;
2. Employer can file H-1B petition without LCA, but USCIS cannot approve petition until DOL certifies LCA;
3. DOL can investigate if DOL finds evidence of fraud or misrepresentation.
* H-1B or L visa or status holder to receive a brochure of employer’s obligations and employee’s rights, and federal agency contact information which can provide additional information. If visa issued abroad, DOS to provide; if change done in the U.S. by USCIS, USCIS to provide.
I. L-1 Intra-company Transferees
* Employer cannot place, outsource, lease or otherwise contract an L-1′s services unless L-1 would not be supervised by outplaced entity, the placement is not essential labor for hire, and other employer attests that it has not displaced and will not displace a United States worker during the period beginning 90 days prior to and 90 days after the date the employer files L petition.
* New Office L-1s: Petition can be approved for up to 12 months if:
1. Nonimmigrant has not been the beneficiary of 2 or more petitions during the immediately preceding 2 years;
2. The employer operating the new office has an adequate business plan, sufficient physical premises to carry out the proposed business activities; and
3. The financial ability to start doing business immediately upon the approval of the petition.
* Extension approval requires:
1. A statement summarizing the original petition; evidence that the employer has complied with the business plan;
2. Evidence of the truthfulness of statements in the original new office petition;
3. Evidence that the employer has been doing business at the new office through regular, systematic, and continuous provision of goods and services;
4. Statement of the duties the nonimmigrant has performed at the new office during the new office approval period;
5. Duties the nonimmigrant will perform at the new office during the extension period;
6. Statement describing the staffing at the new office, including the number of employees and the types of positions held by such employees;
7. Evidence of wages paid to employees;
8. Evidence of the financial status of the new office;
* Limitation on total H-1B and L-1 nonimmigrants for a specific employer: Employers with 50 or more employees must sum the number of H-1B and L-1 employees.
1. For FY 2015, that sum cannot exceed 75% of the total number of employees;
2. For FY 2016, that sum cannot exceed 65%;
3. After FY2016, that sum cannot exceed 50% of the total number of employees;
* In FY 2014, employers with 50 or more U.S. based employees must pay an L-1 filing fee of $5,000 if more than 30% and less than 50% of the employer’s employees are in H–1B or L-1 status.
* For each FY 2014-2017, employers with 50 or more U.S. employees must pay an L-1 filing fee of $10,000 if more than 50% and less than 75% the employer’s employees are in H–1B or L-1 status.
* DHS can investigate L-1 employers for violations of L-1 requirements based on specific, credible information. DHS can withhold identity of complaining witness. 24 month window. Employer may request a hearing if DHS finds a reasonable basis for employer’s failure to comply and DHS must make a finding within 120 days after hearing.
1. No federal court review of finding permitted.
* DHS may conduct voluntary surveys regarding employer compliance.
* DHS to conduct annual compliance audits of employers with more than 100 U.S. employees if more than 15% such employees are in L-1 status.
* DHS penalties up to $2,000 fine, debarment of 1 year for misrepresentation or failure to comply; up to $10,000 and 2 year debarment for willful failure.
* Employer can be liable to employees for lost wages and benefits harmed by each violation.
Rabinowitz & Rabinowitz, PC. is a business immigration firm representing businesses and foreign nationals in employment-based visa cases. To learn more or to contact a Dallas immigration attorney, visit http://www.rabinowitzrabinowitz.com.
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