Articles Posted in Work Visas

In a previous blog, the immigration attorneys at Lubiner, Schmidt and Palumbo in New Jersey discussed that the petitions for H-1B visas far outnumber the amount of H-1B visas that are actually issued. Petitions for this year totaled 172,000 and the cap is 65,000.

The lottery has been filled and now the waiting game begins. Who will get the coveted visas and who will not? What we can say for certain is that a majority of foreign nationals who applied for H-1B visas will not get them.

So, what are your alternatives if you are one of the many whose names did not come up as a lottery winner?

U.S. Citizenship and Immigration Services (USCIS) announced on April 7 that the fiscal year (FY) 2015 statutory cap for H-1B visa petitions (65,000) has already been reached. The limit of 20,000 H-1B petitions filed under the U.S. advanced degree exemption has also been exceeded.

All files received during the filing period, which was concluded on April 7, will be processed for initial intake. The USCIS does not yet know when the random selection process will be conducted due to the high number of petitions.

A computer will run the random selection process for all H-1B visas in the general category in addition to those under the advanced degree exemption. Rejected petitioners will have their filing fees refunded, but not for duplicate petitions.

Senators Alexander (R-TN) and Coons (D-DE) introduced a bill concerning the immigration of foreign students studying the fields of Science, Technology, Engineering, and Math (STEM).

The Sustaining our Most Advanced Researchers and Technology Jobs of 2012 or the “Smart Jobs Act” would allow students pursuing masters or doctorate degrees in the STEM fields in the U.S. to enter the U.S. on a new non-immigrant F-4 visa. After securing full time employment in a STEM field, the graduates can apply to have their status adjusted to permanent residents.

The senators are part of a larger group of Congress members who are turning to immigration reform to combat “brain drain” — the flow of highly-educated individuals out of the country to be educated. An overwhelming percentage of STEM students in American universities are immigrants on student-visas, and these people with much-needed skills in America are only allowed to stay after graduation if their employers certify that they are “uniquely qualified for the job.” Furthermore, these individuals often cannot obtain permanent residency because of caps on the number of green cards per year.

There are generally two ways of getting U.S. permanent residency. The first method is through a petition by a relative. The second is through a sponsorship by a U.S. employer. When an employer wishes to “sponsor” a foreign national for permanent residence in the United States, the first step is to file an application with the Department of Labor (DOL) for a permanent employment certification or labor certification. This certification means that there are no United States workers who are able, willing, and qualified for the position being offered to the foreign national.

The labor certification process was overhauled in 2005 and is now called the Program Electronic Review Management System or PERM. The purpose and goal of the labor certification process remains the same but the method by which to test the labor market and to prove compliance has been changed.

The employer must prove to the DOL that it has made a good faith effort to recruit U.S. workers, but that there are no U.S. workers available or willing to take the job. This is generally accomplished by advertising in newspapers in general circulation in the area of intended employment, by a job posting with the State, and by other means that are normal for the occupation.

Should Employers Use E-verify?

E-Verify is an internet-based system operated by the US Citizenship and Immigration Services (USCIS) in partnership with the Social Security Administration (SSA). E-Verify provides an automated link to federal databases to help employers determine employment eligibility of new hires and the validity of their Social Security numbers.

E-Verify gives companies peace of mind in ensuring that employees are legal US workers. According to USCIS, E-Verify’s most impressive features are its speed and accuracy. This is because it verifies the employees data against millions of government records and provides results within seconds.

E-Verify is not mandatory for all employers. There are some states that do require employers to use E-Verify. There are also visa programs that require the employer to be registered before being eligible to sponsor a foreign worker. For instance, an F-1 visa holder seeking a 17-month extension of his Optional Practical Training (OPT) can only do so if he is to be employed by an E-Verify registered employer.