Month: March 2009

April 1 is the first day of filing of H1B or professional working visa petitions by US employers. This date is very crucial because it is the day that the numerical cap of 65,000 visas is usually reached. Thousands of US employers seeking professional workers for the H1B visa rush to file their petitions on this day. They fear that they will lose opportunity of obtaining visas in view of the limit on the number of visas that are accepted within the next few days from the date of filing.

Josephine, a physical therapist, was in the United States last year to take the board examinations for her licensure. She passed the board examination and had an offer for a job at a health care institution in Florida. Last year, her employer filed for a petition for her working visa. This petition was filed on April 1, 2008.

After a few weeks, Josephine’s employer received the petition back and was informed that the H1B petition was rejected as it was not randomly selected by the immigration service. She was told that the quota has been reached and that her petition was not accepted for processing after the random selection of petitions. To avoid incurring unlawful status in the US, Josephine returned to Manila last year and was told that her employer is going to re-file the petition on her behalf on April 1, 2009. Josephine is again taking her chances of working in the US. She is hoping that her petition will be randomly selected this time for processing and that she will be afforded the opportunity to work in the US.

The H1B Quota

The H1B visa program permits US employers to hire foreign specialty workers on a temporary basis.  Specialty occupation includes jobs in the information technology fields and jobs in other industries that include teachers, engineers, architects, scientists and researchers, and other management, scientific and technical consulting services.

The number of H1B visas that may be issued is governed by Immigration and Nationality Act Section 214(g)
(1) (A) which limits the number of visas to a 65,000 annually.

For the last five fiscal years, there are more visa petitions filed than the number of visas allocated for this nonimmigrant category. As a result of the numerous filing, the US Citizenship and Immigration Service devised a procedure for randomly selecting petitions received.

The Lottery Process

The USCIS will begin accepting petitions for H1B workers on April 1, 2009. Even if the petitions are accepted on this date, the start up date of employment will not begin until October 1, 2009. The reason the validity dates of the H1Bs begins on October 1 is that the fiscal year for 2010 starts on this date as well.  April 1 is the date designated by USCIS to allow for advance filing and processing of the H1B visas.

Lottery will be conducted on petitions that are received within the next five days from April 1 if USCIS determines that they have received a sufficient number of cases.  All petitions that were received between April 1, 2009 and April 7, 2009 will have the same receipt dates.

After lottery is conducted, the USCIS with issue receipts for those which are selected and those not selected the petitions will be returned.

Rejected Petitions

Those that were not selected were returned by the USCIS. Last year, more than 150,000 petitions were received and that only 65,000 were accepted for processing. For those that were accepted, there are still petitions that were also rejected because of multiple filings.

To increase the chances of being selected, a significant number of petitioners filed multiple petitions on behalf of same beneficiaries or professional workers. The USCIS came out with the guidance last year that multiple filings for the same beneficiary will be rejected or denied. Unlike those that were rejected because they were not randomly selected, petitions that were rejected last year because of multiple filings were returned without their filing fees.

Exempt from the Cap

Not all the petitions for professional working visas are subject to the cap. There are some exceptions available for qualified professionals to get H1B visas which are not covered by the 65,000 cap. The following professionals are not subject to the cap: those employed (1) by institutions of higher education; (2) by a related or affiliated nonprofit; (3) a non profit research organization; or (4) governmental research organization.  It also does not apply to H1B extensions of status with the same company, a petition for second H1B, and transfer from one H1B cap subject employer to another H1B employer or to H1Bs for those who have a Conrad waiver.

No Certainty of the Future

In the practice of immigration law, we always ensure and increase the chances of approval of the petition filed with the USCIS by carefully drafting the petition and by supporting it with relevant and extensive documents as required by regulation. Unfortunately, in H1B petitions, even if one has a willing US employer and an approvable case, the chances of it being granted is still dependent on “luck” that the petition is going to win the lottery. This uncertainty creates unnecessary hardship not just to the prospective employee but also to the US employer who is in actual need of the services of the professional worker. While there is a prediction that fewer petitions are to be filed this H1B cap season, there is still urgency on the part of the Obama administration to fix the H1B system. The US businesses should have enough access to H1Bs to keep the US economy competitive in the world market and to keep the jobs in America.

(Tancinco may be reached at law@tancinco.com or at 887 7177)

As we rush to the Capitol Hill today to lobby for the passage of the Comprehensive Immigration Reform Act, we face the reality of the times. Every visit we made to each legislative office was met with a question asking us advocates to explain the effect of immigration reform on the economic crisis,

Mario, a long time bank executive in Northern California was terminated from his job. He expressed his frustration and said that his loss of employment and the resulting hardship humbled him in ways he never anticipated. When he hears news of efforts to have a comprehensive immigration reform pass and legalize the undocumented aliens in the US, he just raises his voice and questions the appropriateness of granting visas to foreign workers when 10% of US citizens are unemployed. To him it did not make sense that the undocumented aliens are going to be legalized or that more visas are to be granted to foreign workers on H1B visas while the unemployment rate is increasing each day. Are foreign workers stealing US jobs?

Broken Immigration System

Even before this recession, the number of undocumented aliens in the US was already around 12 million. The immigration system is established in a way that does not provide a legal path for undocumented aliens to obtain their visas and legalize their stay.

Even for legal immigration, the system is already broken. The fact that the siblings of US citizens from the Philippines will have to wait for 24 years before the visas are actually issued is a very lengthy process indicative of a broken system. Permanent residents’ petition for their spouses takes seven years before they are actually interviewed for a visa. Families are separated for a long time because of these unreasonable and unnecessary backlogs.

Unfortunately when families are separated for many years, there is a tendency for family members to enter the US by different means and remain in the country unlawfully

There is an urgent need to fix the immigration system by passing the immigration reform bill. Contrary to the anti immigrant argument, keeping families together by enactment of legislation that increases the number of visas allotted and giving immediate visas to spouses and minor children will foster economic growth. When a family is together and stable, there is a tendency to pool their resources to start businesses, purchase homes and send family members to college. It will actually stimulate the economy in a lot of ways.

Economics of Immigration

Immigration did not cause the economic crisis.  Real immigration reform will help promote economic recovery.

At the moment, 12 million undocumented workers are already in the US and are contributing to the system. There are billions of dollars that are unaccounted in the Social Security system because the social security numbers used by the undocumented do not match their names. This is expected because these undocumented are still in the underground economy. If immigration reform is passed, these workers will become legal taxpayers and contribute significant tax revenues. This revenue will help the economy regain strength and vitality.

The other alternative to dealing with the undocumented is to deport all 12 million. This destructionist view is definitely not realistic neither is it pragmatic. This deportation proposal will be costly and will disrupt the economy further.

Visas for Foreign Skilled Workers

In just a few weeks or beginning April 1, 2009, the Petitions for Nonimmigrant Working Visas or H1Bs will be accepted for filing by the US Citizenship and Immigration Services. These visas are given to professionals or those who require a bachelors degree to perform the job. The anti immigrant groups are very vocal about attacking the need for the H1B visas and are against the cap being raised to accommodate the demand for highly skilled jobs.

Foreign skilled workers do not steal jobs from US workers. The way the H1B visa regulations are implemented is to ensure that these workers “do not displace or adversely affect wages or working conditions of US workers.” There are protections that are put in place by the regulations to protect the US workers.  Before the H1B visa petition is approved, the US Department of Labor requires a filing of the Labor Condition Application (LCA) in which the employer “the employer must attest that the firm will pay the nonimmigrant the greater of the actual compensation paid other employees in the same job or the prevailing compensation for that occupation; the firm will provide working conditions for the nonimmigrant that do not cause the working conditions of the other employees to be adversely affected; and that there is no applicable strike or lockout.”

Foreign Workers Easiest to Blame

The accusation that immigrants are stealing jobs of US workers is more of a visceral than a rational reaction. We may raise positive information about the benefits of immigrants to the US but when one is experiencing a corresponding hardship as a result of termination from employment, the immigrants become the easy target even if they are not actually responsible for the crisis. After all, it is easiest to blame innocent, hardworking immigrants than identify the in depth sequence of events that resulted in this economic downturn and layoffs.

(Tancinco may be reached at law@tancinco.com or at 887 7177)

As if the misery of losing a loved one is not enough grief for an immigrant spouse married to a US citizen, additional penalty awaits the widow. There is a real possibility of deportation if the petition filed is still pending upon death of the US citizen spouse. This is currently the harsh and controversial rule of the US Immigration Service relating to spouses who have been married for less than two years at the time the US citizen dies.

Carmelita was separated from her high school sweetheart for a long time. After separation, she never heard from Peter and she never got married. Using her tourist visa, she visited her relatives in San Jose CA last summer. During one of the gatherings in a private home, she was surprised to see Peter. At that time Peter was still married to Martha. When Carmelita and Peter met again after more than thirty years, the old flame was ignited and they fell in love again.

Peter filed a divorce to dissolve his marriage to Martha. In the meantime, Peter and Carmelita started living together and after about a year, the divorce was finalized. Peter married Carmelita in a simple church ceremony in January 2008. Thereafter, Peter filed a petition for Carmelita with the Immigration Service so that Carmelita may become a greencard holder. In December 2008, Peter died of a tragic car accident.

Carmelita?s petition was still pending at the time of Peter?s death. When Carmelita was called for an interview in February 2009, she was told that her petition will be denied because of the death of the petitioner. She was told that she could not self-petition herself because their marriage was less than two years old. Two weeks after her interview, Carmelita received a Notice of Hearing for her deportation back to Manila.

Still grieving from the loss of her husband, Carmelita is now faced with deportation.

The Two Year Rule

Generally, to obtain a green card, self petitioning by US widow(er) is allowed if the marriage was more than two years at the time of the death of the US citizen spouse. If the marriage was less than two years, then the self-petition may not be filed. Also, if the petition is pending at the time of the death of the petitioner, the petition will be denied.

In the case of Freeman v. Gonzales (9th Circuit 2006), the court ruled that if the US citizen spouse died while the petition was pending, the petition could still be approved after the US citizen?s death. Because of this ruling, many widows filed for reconsideration of their previously denied petitions.

USCIS Guidance Restrictive

Although the US Court of Appeals for the Ninth District ruled in favor of the widows, the US Citizenship and Immigration Service released a guidance instructing immigration officers on how to deal with the widow petitions. Additional requirements were imposed. The guidance states that the widow petitions may only be approved if there is a ?qualified sponsor? who will execute an affidavit of support on behalf of the widows. The substitute sponsor may be the spouse, parent, mother-in-law, father-in-law, sibling, child (at last 18 years of age), son, daughter, son-in-law, daughter-in-law, sister-in-law, brother-in-law, grandparent, or grandchild of a sponsored alien or a legal guardian of a sponsored alien.

Aside from imposing the requirement of a qualified sponsor, the USCIS also required a showing of ?humanitarian reasons? to reinstate the denied petition, as well as requiring that there must already be an adjustment application with the Immigration Service that is on file. This effectively prevents the filing of applications by widows who are outside the US.

With the restrictive guidance from the USCIS, a group called the Surviving Spouses Against Deportation was formed in the US advocating for the rights of the widow to obtain legal status in the US and to stop the widow penalty. Several cases were filed against the US Department of Homeland Security in US courts questioning the validity and harshness of this restrictive guidance.

Petition Should Not Die With the Petitioner

In California and other states of the Ninth Circuit District, the affected widows filed a lawsuit with the US District Court demanding an end to the ?widow penalty?. The case filed is the Hootkins v. Chertoff and is still pending. This week the court has authorized that this lawsuit be filed as a class action to affect those who are similarly situated in the Ninth Circuit. The Ninth Circuit only covers residents of Alaska, Arizona, California Guam, Hawaii, Idaho, Montana, Nevada, Northern Mariana Islands, Oregon and Washington. The hearing on this case is set for April 20, 2009. This only refers to the case of Hootkins but there are other cases that are filed outside of the Ninth Circuit that also questions the widow penalty.

The loss of a love one should not be exacerbated with an order of deportation. Most of the widows feel that they are being punished for the death of their spouses. If the immigration law is interpreted favorably without the restrictive provisions of the USCIS, death of the petitioner should not automatically cause the spouse to lose resident status. Their status as immediate relative of a US citizen should remain the same especially if the US citizen spouse is able to file all the necessary forms. Fairness dictates that the fate of the widow should not be buried with the deceased spouse.

(Tancinco may be reached at law@tancinco.com or at 887 7177).