Understanding and Navigating the Business Immigration Process—The H-1B Visa

Employer demand for qualified, highly skilled employees far exceeds supply. In past years, American employers—including architecture and engineering firms—could draw upon a supply of foreign nationals with STEM experience and expertise. But that process has become more and more difficult since the present administration took office. The laws haven’t changed, but implementation policy has—dramatically.

Employers simply can’t expect what they did two years--or a month--ago to work today. The inconsistencies in adjudication are tremendous.

February’s Roundtable focused on the H-1B visa, a non-immigrant visa that allows US companies to employ foreign workers in “specialty occupations”— positions that require at least a specific bachelor’s or higher degree for entry into the occupation. Engineering and architecture positions have that specific degree requirement. Many applicants are international students trying to transition from F-1 student status to H-1B work visas.

Presenters Giselle Carson, and Alan Goldfarb are recognized U.S. immigration and compliance attorneys.

Here are highlights and take-aways from their presentation, as well as additional resources. The content represents the considered recommendations of the presenters, rather than Coleman & Erickson. Note that this is not a comprehensive summary of the law. Legal counsel should be consulted for questions on how these points apply to specific situations.

Resources

Book
Beyond the H-1B: A Guide to Work Visa Options, by Giselle Carson, Esq. Available by contacting Giselle and through Amazon.

Articles
Bench&Bar MN, Nov. 2018 “Administration’s ‘Culture of No’ undermines immigrant workers, employers”

Forbes, Jan. 2, 2019 “Recent Changes To The H1B Visa Program And What Is Coming In 2019” by Andy J. Semotiuk

Key Points and Take-Aways

The situation: the quota is set at 65,000 H1-B visas per year, with an additional 20,000 set aside for foreign nationals who have a U.S. masters degree or higher. This total is too low to meet employer demand. Yes, there have been abuses of the H1-B visa by some employers, but the current situation is harming all employers.

The laws: Legislation hasn’t changed. But current policy pushes adjudicators toward denial of petitions. Immigration laws are being enforced in a highly discretionary, and, at times, unlawful manner. The petitioner’s ability to challenge a negative decision is becoming more limited.

The visa: the H-1B visa is good for 3-6 years, but can be extended. The H1-B is one of an alphabet soup of visas. There may be other options, which should be carefully explored with counsel. It is possible to apply for a green card instead of an H1-B visa.

Deadline: petitions must be filed by April 1 — six months before the end of the fiscal year.

Emotional toll: The employer’s business is at stake. So is the employee’s life. Acknowledge the emotion. Celebrate every win. Grow and learn from the challenges.

Expect the unexpected: Deference to prior approvals has been eliminated. So a foreign national who has been approved several times before is subject to the same scrutiny as a first-timer.

Requests for Evidence: These may seem absurd. You may think, “But I sent the evidence!” or “Are they kidding? They’ve never heard of the PGA?” But realize you wouldn’t receive the RFE if the petition was clearly incomplete or obviously deniable. It’s your chance to get approval.

Time: Double your estimate of the time required for preparing a petition. Processing and adjudication also take longer.

Company policy: It’s good to have an in-house policy about when you apply for renewal or green card. That way you can’t be accused of favoring a particular employee.

If you believe your petition was denied unfairly, you can:

1. File an appeal in federal court. Some of the cases are so obviously bad decisions that they don’t get to trial.
2. Wait a strategic time and then resubmit with additional and reworked evidence. With a different adjudicator, the same petition may be approved.

But if you do nothing, the employer loses a valuable foreign national employee who now can also be deported.

Moving forward: be persistent, thorough, proactive and strategic. This may be a transition period toward needed comprehensive immigration reform.

Giselle Carson
GCarson@marksgray.com
904-398-0900
1200 Riverplace Boulevard Suite 800
Jacksonville FL 32207
http://www.marksgray.com<http://www.marksgray.com/>

Giselle Carson is a recognized U.S. business immigration and compliance attorney. She partners with growing and innovative organizations to hire and retain global talent to keep America great. She has been practicing law for over 15 years and has dedicated her practice to business immigration law.

Giselle uses her personal and legal experience, energy, determination and passion to help clients achieve their business immigration goals

Alan Goldfarb
alan@dgvisalaw.com
612-630-2244
Davis and Goldfarb, PLLC
1201 Harmon Place, Suite 303
Minneapolis, MN 55403
http://www.dgvisalaw.com<http://www.dgvisalaw.com/>

Alan has practiced immigration law exclusively since 1997 and manages a practice that involves working with corporations, institutions, and individuals across industries and occupations in preparing temporary work visa petitions, labor certification applications, extraordinary ability, outstanding researcher, and related employment-based cases, and he also handles investor, physician, asylum, naturalization, family, and religious worker cases.