E-Verify & Comprehensive Immigration Reform

Another new component to immigration reform Senate Bill 744, “The Border Security, Economic Opportunity, and Immigration Modernization Act”, is coming out of the woodwork. The new legislation calls for an extended, nationwide computer network of driver’s license photographs and biographic information of US citizens, run by DHS’s USCIS.

Seven percent of US employers use a similar network, the DHS-run system E-Verify, which helps USCIS to validate identity and legal status of new hires. The broadened network comes from the need to further prevent fraud during the hiring process, by allowing employers to re-verify any photographic or biographic identification presented by new workers. The system would ultimately make it more difficult for illegal immigrants to secure jobs in the US.

E-Verify isn’t mandatory in all states: those US employers who utilize the system, do so voluntarily. If the new immigration bill passes, then E-Verify will have to undergo significant expansions, obligating all employers to send new employee — both foreigners and citizens — information to the system, in order to prove work eligibility.

Many fear that a nationwide computer network will be akin to a national ID system, allowing the government to keep tabs on its citizens. Another fear is that an expanded system would be available to other federal agencies, such as TSA or FBI, which would mainly use it to find suspects.

The federal government assures us that E-Verify doesn’t maintain its own information — it instead taps into other systems to establish information; the information vanishes once the task is accomplished. However, privacy guidelines released by DHS affirm that E-Verify can, depending on the situation, “give law enforcement agencies extracts of information on potential fraud, discrimination or other illegal activities, which points to information gathering at some level and analysis of identity data.”

If passed, the Senate bill will present grants to the states that give DHS access to their driver’s license photo records, clarifying that such access wouldn’t breach federal privacy law. Mississippi is the only state that has given DHS admission to its motor vehicle database, but only for biographic information and not photographs.

The Senate bill does not directly forbid DHS, or any other government agency, from using the information for anything other than work authorization, unlike the law that administers the census.

The Takeaway

E-verify is very likely to become mandatory for all employers, as it is supported by The Chamber of Commerce and employers. The issue of misuse of sensitive and private  information has been enhanced by the leaks of NSA surveillance methods; clearly these dangers need to be balanced with the needs for a workplace security.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
Lowenbaum Partnership, LLC
St. Louis, Missouri

The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Tara Mahadevan

Copyright 2013. All rights reserved.

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Facts About Immigrants in Missouri

In 1990, the percentage of foreign-born in Missouri was only 1.6%; since then, Missouri’s cultural makeup has changed drastically to include large amounts of Latinos, Asians and other immigrant populations. Missouri’s current foreign-born population is 4%; 41.6% of “New Americans” in Missouri have become naturalized citizens who can vote. About 5% of Missouri’s ‘New Americans’ are either Latino or Asian.

These New Americans also contribute economically to Missouri as business owners, workers, professionals, tax-payers and consumers. Together, Latinos and Asians possess $9.8 billion in consumer purchasing power — their businesses make $5.1 billion and employ 34,000 people. Foreign students also enrich the community: Missouri’s total of 16,061 foreign students contribute $417.9 million to the state’s economy.

A little bit of food for thought: if Missouri’s unauthorized immigrants — which total 1.3% of our workforce — were deported from the state, we would lose $2.3 billion in economic activity and roughly 13,859 jobs.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
Lowenbaum Partnership, LLC
St. Louis, Missouri

The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Tara Mahadevan

Copyright 2013. All rights reserved.

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A Second Look at Comprehensive Immigration Reform

In February, I wrote about why comprehensive immigration reform has a chance to pass this year; now, it’s time to discuss how immigration reform can strengthen the US as a whole.

Immigration reform has heavy bipartisan support, spearheaded by President Obama and Republican Sen. Marco Rubio (FL). Sen. Rubio is a member of the “Gang of Eight”, the four Democrat and four Republican Senators who have introduced new immigration legislation to Congress — Rubio has also assumed the role of spokesperson for the pending bill in the Senate. The House is also sponsoring several other bills on immigration.

There are security and economic reasons for the US to reform its immigration policy, both of which will have a major impact on the US economy.

The Security Side and the Impact on Employers

Immigration reform is not going to happen without enhanced border security and metrics to measure the levels of security reached. Another measure of security to guarantee a legal workforce is to make both E-verify and Form I-9 compliance mandatory for all employers.  Senate has already earmarked $110 million dollars to these programs — employers should see new compliance regulations soon after a new immigration bill has passed.

In addition, electronic checking of departures by CBP will ensure that non-immigrants depart on the date their authorized stay expires, according to their Form I-94 record. Departures are currently recorded with a paper I-94, which is surrendered upon exiting the US. The new electronic I-94 will record departures from passenger manifests issued by airlines. Entries are currently recorded, but exits from the US are not recorded uniformly at all ports. In addition, the new bill will mandate that all passports be electronically read, which would reduce human error.

It is a misconception that highly skilled visa holders somehow depress US wages. On the contrary, where certain technical skills are in short supply, employers pay top dollar wages for visa holders and high fees to the federal government, as well as jump through legal hurdles to employ these workers. The cost of employing a foreign worker is more expensive than a domestic worker.

The Economic Side

Granting legal status to more immigrants will relieve our labor shortages in both high-skill and low-skill arenas. The educational background of native-born Americans typically includes high school and college education — few are without high school diplomas, and hardly any have Ph.D.s in science, technology, engineering or mathematics (STEM). The educational background of immigrants, on the other hand, is quite different: while many lack high school education, others hold Ph.D.s in STEM fields.

Most of the debate on immigration reform has focused on giving legal status to undocumented immigrants, upon the condition that they pay fees and back taxes. This will certainly have positive effects on our economy; however, we have more to gain from immigrants, both young and old, who, after gaining legal status, decide to further their careers in the US. Once these immigrants feel reassured about their future in the US, they will be more willing to invest in their careers.

One of our current problems is that many skill workers have trouble gaining a foothold onto the path to citizenship. Foreign entrepreneurs and technologists who study in the US are often denied works visas and return to their home country to find success. This issue is both stunting economic growth and causing a brain drain in America.

The number of available temporary visas is rarely revised and is still dependent upon caps and quotas. Our economic conditions have not been taken into consideration. Increasing visas both for high skilled workers, and lower skilled entrants in agriculture and forestry, could have a positive effect on wages and reduce the number of illegal entrants and overstays.

Immigrants also bolster our productivity growth. According to the Wall Street Journal, foreign scientists and engineers, who came to the US with an H1B visa, contributed 10-20% of the yearly productivity growth in the US from 1990-2010. Attracting innovators to our country will undoubtedly create more jobs, as more innovation means more labs, universities and companies doing research. Yet, the US’s H1B visa program only creates 65,000 visas per year for highly skilled workers. That amount has proved to be insufficient, as H1B visas quotas fill very quickly as in the last cap.

There are clear economic and security needs for streamlined and comprehensive immigration reform, and lawmakers and politicians must take action. Congress is set to vote on immigration reform before the July 4 congressional recess.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
Lowenbaum Partnership, LLC
St. Louis, Missouri

The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Tara Mahadevan

Copyright 2013. All rights reserved.

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The New and Improved I-9 Form

On March 8, 2013, USCIS published a new Form I-9 for employers to use for new hires, which is for immediate use. USCIS received over 6,000 comments on the form and has tried to incorporate some of the suggestions. To ensure that the correct form is being used, look for the form’s date in the lower right-hand corner of the form.

When Should Employers Use the New I-9

The new form is to be used for all new hires. The 3 day rule remains, which is to fill Section 1 within 3 days of starting work. The form can also be filled in advance, as long as an offer of employment has been made and accepted. If the old form was used and the employee has not started work, a new form should be used in lieu of the old form.

The new form should be used for both US citizens and non-citizens, if they are working within the geographical boundaries of the United States of America. If a new office or an employee is hired in Mexico or Canada, there is no obligation to maintain a Form I-9 for the new hire. Employers should use the new Forms I-9 from 8 March, 2013 onwards. Older forms dated 02/02/2009 and 08/07/2009 can be used until May 7th, 2013.

The Spanish version can be filled out by new hires only in Puerto Rico. On the mainland, the Spanish version can be utilized as a translation tool for Spanish speaking new hires, but only an English language version Form I-9 can be filled out by both the employer and employee and retained by the employer.

The New Form

The new form is 7 pages of instruction and two pages of form to be filled. Section 1 occupies its own page, with expanded areas for the employee to fill personal identifying information. The expanded area allows work-authorized non-citizens to complete their information.

Page 2 of the form is divided between Section 2 and 3. Section 2 is renamed to include authorized representative review and Section 3 is now called “Reverification and Rehires”, instead of “Updating and Reverification”. Section 3 is to be used for employees who return to work after an absence of time. Once the initial I-9 is filled out by the employee, the employer cannot ask legal permanent residents or US citizens to present new documents to complete reverification for work authorization.

The Takeaway

The form is more detailed and thus, may have more pitfalls. Print the new form on both sides of the paper to keep both pages together. The 67 page book of “Instructions” is now called “Guidance”. The important step is to start using the new form and to cease using the old form. Section 1 cannot be populated by electronic programs used to ‘onboard’ new hires. Employer liability, audits and monetary fines remain the same under the old and new forms.

We are available to discuss the new form or needs for training and assistance.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
Lowenbaum Partnership, LLC
St. Louis, Missouri

The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Tara Mahadevan

Copyright 2013. All rights reserved.

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The New “Hardship” Filing Rule in Immigration Law

Earlier in January, Secretary of Homeland Security Janet Napolitano announced that on 4 March 2013, USCIS‘s new family unity waiver process will go into effect. The new process will decrease the amount of time US citizens are apart from their immediate relatives — spouse, children and parents — who are in the process of acquiring visas for lawful permanent residency in the US. Particular individuals can fill out a form, called a provisional unlawful presence waiver, before leaving the US and interviewing in their home country.

Final Rule

“This final rule facilitates the legal immigration process and reduces the amount of time that US citizens are separated from their immediate relatives who are in the process of obtaining an immigrant visa,” said Secretary Napolitano.

Current Law

Current law is much different. According to current law, a US citizen’s immediate relatives, who cannot adjust their status to become US lawful permanent residents, must depart the US and acquire an immigrant visa in their country of origin. Those who have unlawfully been in the US for more than six months must obtain a waiver that overlooks their unlawful status and overstay before the can return to the US after going to their home country to appear at  US Embassy or Consulate to be approved for an immigrant visa.  This has  meant that if the waiver was denied by the Consulate abroad, the relative was not allowed to re-enter the United States to be re-united with their family.  A great many people were therefore understandably reluctant to avail themselves of this benefit without a decent chance of a favorable outcome.

Qualifying for a Waiver

In order to qualify for a provisional unlawful presence waiver, the applicant must be an immediate relative of a US citizen, inadmissible only on account of unlawful presence and show that a rejected waiver will end in “hardship” for the applicant’s US citizen relative.  The grounds of waiver remain the same.  The wait time is reduced because the waiver is adjudicated by USICS in the United States and therefore the wait time outside the US is reduced.

The New Process

The new process will have a new form, Form I-601A, Application for a Provisional Unlawful Presence Waiver. Individuals who apply under the new waiver must inform the DOS’s National Visa Center before filing.

The Takeaway

The new waiver process will allow eligible applicants to remain in the US while anticipating the outcome of their application. No more waiting in Ciudad Juarez, where local dangers await the unwary; where being found inadmissible means that families have to make the choice to leave the US, and cannot re-unite with a spouse or parent.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
Lowenbaum Partnership, LLC
St. Louis, Missouri

The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Tara Mahadevan

Copyright 2013. All rights reserved.

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Mandatory E-Verify Bill

Senator Chuck Grassley (R-Iowa) has proposed a new bill to the Senate, The Accountability Through Electronic Verification Act of 2013, that would obligate US employers to utilize E-Verify within 12 months of the bill’s passing. Sen. Grassley is the Ranking Member of the Senate Judiciary Committee, which supervises the Senate’s immigration policy, and is also a member of the Subcommittee on Immigration, Refugees and Border Security. Grassley’s bill was cosponsored by 10 other Republican Senators.

Details of the Proposed Bill

In addition to requiring E-Verify for all American employers, Sen. Grassley’s legislation would:

  • Increases penalties for employers who don’t use the system or illegally hire undocumented workers;
  • Reduces the liability that employers face if they participate in E-Verify when it involves the wrongful termination of an individual;
  • Allows employers to use E-Verify before a person is hired, if the applicant consents;
  • Requires employers to check the status of existing employees within 3 years;
  • Requires employers to re-verify a person’s status if their employment authorization is due to expire;
  • Requires employers to terminate the employment of those found unauthorized to work due to a check through E-Verify; and
  • Helps ensure that the Social Security Administration catches multiple use of Social Security numbers by requiring them to develop algorithms to detect anomalies.

For Employers

In addition to the various labor and employment laws mandated by the States and the Federal Government, mandatory E-verify would impose a larger burden on companies. Perhaps we should address what causes employers to use workers who are not authorized to work, and why these undocumented individuals exist in the workforce despite efforts to root them out!

The Takeaway

Let us emulate Canada, which imports low skilled workers every year — who return to their home countries every winter season. The US needs to increase the number of work visas for both the low skilled, agricultural, hospitality and construction workers. Most of them would like to work legally (less stress) and return. This will reduce ‘coyote’ activity at the border: why would a person risk crossing illegally when they can enter through the border, and return to their homes without the fear of being caught and living in the shadows.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
Lowenbaum Partnership, LLC
St. Louis, Missouri

The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Tara Mahadevan

Copyright 2013. All rights reserved.

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Why Comprehensive Immigration Reform Has a Chance to Pass This Year

Since President Obama was inaugurated for his second term, he has made Comprehensive Immigration Reform (CIR) a key policy initiative for his administration. Interest groups from the left and right, and even some Republicans, such as Florida Sen. Marco Rubio, are also in support of a comprehensive overhaul of US immigration laws.

Condoleezza Rice (former Secretary of State in the Bush Administration), Henry Cisneros (former Housing and Urban Development Secretary) and Haley Barbour (former Mississippi Governor) are three of 4 leaders spearheading a high profile group by the Bipartisan Policy Center in Washington D.C. The group’s aim is to act as a sounding board, and to assist and shepherd the initiative into law by the summer of 2013.

Bipartisan support continues, as Senators from both parties have also offered Obama a framework of principles that they hope will be included in CIR. This bipartisan group consists of eight senators, four Democrats and four Republicans: Sens. Charles Schumer (D-N.Y.), John McCain (R-Ariz.), Richard Durbin (D-Ill.), Lindsey Graham (R-S.C.), Robert Menendez (D-N.J.), Marco Rubio (R-Fla.), Michael Bennet (D-Colo.), and Jeff Flake (R-Ariz.).

A Round Up of Ideas Offered by Proponents

The draft of the Senators’ proposed bill, entitled the “Immigration Innovation Act”, increases available H1B visas from 65,000 to 115,000 visas every year. It will create a market-based H1B escalator, which will allow for additional visas if the cap is hit early during the filing season, with a ceiling of 300,000 visas. The visas will be adjusted based on market demands.

The 20,000 H1B visa cap for US Masters and PhD students will also be abolished, allowing the US employer to employ foreign students of US universities with advanced degrees without limit.

This bill will provide the ‘plug and play’ workers needed by all sectors of industry, whether it be healthcare or hospitality; workers who are ready to hit the ground running, and keep services for the American consumer consistently available.

In addition, there is a proposal to allow dependents of H1B visas to work on their H4 visas.  Of course, there will be an increase in the filing fee, dedicated to worker re-training at the state level in technical fields.

The senators’ framework stipulates that, before illegal US immigrants can attain “probationary legal status”, they must pass a background check, as well as pay fines and back taxes. Illegal immigrants with serious criminal backgrounds will not be eligible for legal status. Additionally, the framework states that illegal immigrants will not be granted work authorization until the government increases enforcement, such as expanded border surveillance, to protect and secure the nation’s borders.

The President’s Plan Is Not So Differrent

Obama’s proposal for immigration reform comes in four parts:

  1. Strengthen our borders;
  2. crack down on companies that hire undocumented workers;
  3. hold undocumented immigrants accountable before they can earn their citizenship; and
  4. streamline the legal immigration system for families, workers and employers.

Earned Citizenship

Almost 11 million undocumented immigrants live in the US. Obama proposes to give undocumented immigrants the legal means necessary to earn citizenship, which will also persuade them to come out from hiding and pay their taxes and adhere to the rules. Illegal immigrants will be held accountable: before they can obtain citizenship, they must pass national security and criminal background checks, pay back taxes and penalties, learn English, and go to the back of the line. Young people will also have the chance to gain citizenship faster if they seek higher education or serve in the military.

Mandatory E-verify

Sen. Chuck Grassley of Iowa has introduced a mandatory E-Verify bill, which will require all employers to verify the authorized work status of their US workers. Today, the E-Verify system is voluntary; however, Sen. Grassley’s bill requires all employers to comply within 1 year of enactment. The bill will reduce employer’s liability for wrongful termination, and use E-verify to screen an applicant with his/her consent. The bill also imposes a mandate on the Social Security Administration to develop algorithms to detect multiple users of single Social Security numbers.

How will CIR help our economy?

Our economy demands legal immigration that is simple and adept, so that it encourages the best and the brightest to remain in the USA. A shorter wait for permanent resident status for the highly educated immigrants will boost the economy — if it is easier for STEM graduates to stay in the US, they will bolster and create industries, therefore creating jobs.

University education in the US will get a boost from the revenues generated by foreign students and their families; estimates put the revenue generated by foreign students at about $20 to $40 billion dollars every year. Often, American universities spend several hundreds of thousands of dollars educating these students, only to lose them to Canada, Australia, UK and Europe, or the students’ home countries. A chance for these students to remain in the US and pursue their academic and entrepreneurial dreams will add to the economy.

The taxes collected from the highly educated will help ensure that our Social Security and Medicare budgets are met. This revenue stream will be enhanced by offering a chance for a legalized workforce to pay employment-based taxes. These taxes will reduce the strain on American social systems, such as hospitals and schools. A legal workforce will be paid the mandated prevailing wage. Without a Social Security Number, a worker cannot open a bank account, buy car insurance, obtain a driver’s license, or attend school or college. Hence, a legalized workforce will provide a boost to the insurance, banking and finance industries, and increase wages for all, as employers will now pay the legal minimum wage.

The proposals all call for supplemental visas so that foreign entrepreneurs wanting to begin startups, and foreign graduate students with STEM degrees, will either come to the US to work or remain in the US post-graduation. We want, and need, the best and brightest minds for the US to flourish.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
Lowenbaum Partnership, LLC
St. Louis, Missouri

The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Tara Mahadevan

Copyright 2013. All rights reserved.

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Recent I-9 Fines Reduced by OCAHO

Recently, the Office of the Chief Administrative Hearing Officer (OCAHO) has shown a trend of leniency towards companies that are found to be noncompliant with ICE‘s Form I-9 rules and regulations. ICE, on the other hand, isn’t always as forgiving as OCAHO, which can be expressly seen in ICE’s cases against March Construction, Inc., Forsch Polymer Corp., BKR Restaurants (DBA Burger King) and Barnett Taylor (DBA Burger King).

In order to determine a baseline fine for companies, ICE surveys five factors:

  1. The size of the employer‘s business,
  2. The employer’s good faith,
  3. The severity of the violation(s),
  4. Whether individuals involved were unauthorized aliens, and
  5. A history of former violations by the employer.

March Construction, Inc.

The construction company, March Construction, was found liable for a total of 103 violations after assessments made by both ICE and OCAHO. For March Construction, ICE determined a baseline fine of $770, but increased the baseline by 15% due to March Construction’s supposed lack of good faith, severity of violations and employment of undocumented workers. ICE requested $885.50 per violation for a total of $86,933.

OCAHO agreed with ICE on the severity of the violations, however found that ICE had no evidence that March Construction was actually employing undocumented workers. Also, the company’s ability to pay the fines is a major factor. OCAHO ultimately asked for a reduced sum of $17,120.

Forsch Polymer, Corp.

In June 2010, ICE issued a Notice of Inspection (NOI) to Forsch Polymer, asking for Forms 1-9 for all employees from the past year. The company sent ICE only 12 completed I-9s, and was consequently charged with 11 violations of the Immigration Reform and Control Act (IRCA), among the violations were failing to properly complete an entire Form I-9 and certain sections of Form I-9. ICE requested a fine of $11,827.75.

However, OCAHO found ICE in error: OCAHO discovered that three of Forsch’s employees did not complete an I-9 within three days of being hired. OCAHO determined that this was the fault of ICE — ICE should have issued a notice and provided ample time for Forsch Polymer to correct these mistakes. OCAHO dismissed the allegations of the company’s failure to complete Forms I-9, but found ICE correct in finding fault with the employer for backdating several Forms I-9.

ICE sought a baseline fine of $935 per violation, aggravating the baseline penalties 5-15% for each violation due to the severity of violations, lack of good faith and employment of four unauthorized aliens. OCAHO ultimately asked for a reduced sum of $4,600.

Burger King

BKR Restaurants and Barnett Taylor both do business as Burger King restaurants, and were both issued NOIs on the same day in December 2007. BKR Restaurants was found liable for a total of 87 violations of IRCA for not having Forms I-9 ready for 22 employees, and improperly completing Forms I-9 for 65 employees. Barnett Taylor was issued similar charges for not having Forms I-9 ready for 74 employees, and improperly completing Forms I-9 for nine employees.

Both BKR Restaurants and Barnett Taylor gave reasons for their failure in properly completing and retaining Forms I-9 for their employees; however, neither restaurant had convincing evidence bolstering their claims. Although OCAHO has supported a trend of reducing penalty amounts, OCAHO still requires companies to provide adequate evidence  against ICE’s allegations. None of the companies’ explanations created a defense of impossibility, which can only be established if the Forms I-9 has been completed but then lost or destroyed in a burglary or fire.

No final penalties were brought upon either restaurant; instead, OCAHO gave both restaurants 30 days to make additional filings — allowing the companies to right their wrongs.

Lesson Learnt

Initiating, processing, maintaining and auditing procedures for companies and employers are absolutely vital to the health of a company. Such procedures will assist in minimizing and quantifying employer liability, and more importantly will assist and enable the counsel for the employer to craft a defense in the event of audit.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
Lowenbaum Partnership, LLC
St. Louis, Missouri

The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Tara Mahadevan

Copyright 2013. All rights reserved.

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The Struggle Over STEM Immigration

Science, technology, engineering and mathematics (STEM) graduates are foreign-born students who have obtained graduate degrees from American universities in one of these four fields. Many of these students are vying for a green card to stay in the US; but the demand for green cards far outstripped supply. The result is that the best and the brightest are leaving the US for greener immigration pastures: either going back home, or to other more ‘immigrant’ friendly countries, like Canada.

In a previous blog post, I discussed how STEM graduates will help the US come out of its recession. We are currently experiencing a brain drain; and in order to remain a global force, we must reform our immigration policies. Multiple bills suggesting an increase in green cards for STEM graduates have been proposed to Congress, but none have yet to pass.

STEM Jobs Act

On Friday, November 30, the House passed the STEM Jobs Act, which reallocates 55,000 green cards per year to students with STEM degrees; the new act also seeks to remove the lottery green card program. Green cards are first made available to STEM graduates with PhDs — remaining green cards are then given to STEM graduates with Masters.

Dueling Bills

We must applaud both political parties for their sensitivity to the issue of STEM jobs, but there is a very obvious political divide. While the Republican initiative moves to abolish the 55,000 diversity visas, the Democrats want to preserve these visas for persons from under-represented countries.

This uncertainty is keeping employers from hiring qualified candidates, and keeping qualified US graduates from the US. Keep in mind, by most accounts, the education industry is a $27 billion industry with a multiplier effect on local economies.

What can we do?

Employers must lobby their Senate and House Representatives about the issue. The inaction is holding our economy hostage.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
Lowenbaum Partnership, LLC
St. Louis, Missouri

The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Tara Mahadevan

Copyright 2012. All rights reserved.

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Planning for The New Year — H1B 2014

I was attending a Christmas party last week when a friend, who works for a prominent local employer, asked me, “What’s the latest in the immigration world?”

His question got me thinking: I am always taking urgent conference calls from employers who have visa issues, and filing visas at the very last moment. I think with 20-20 foresight (sic), now may be the best time to get employers to think about planning for the new hiring cycle and for new US visas, especially as the dreaded H1B visa season starts in a few months.

In 2012, H1B visas were over by June 15th, much faster than 2011 when the visas quota was finished only in mid-December. This H1B season, I expect H1B visas to be exhausted much earlier. We need to plan.

Immigration Strategy

Typical attorney consultations are discussions about which visa is appropriate for an employee — not much of the discussion focuses on which visa can be used for future employees. However it is important for companies to also look to the future, and to begin thinking about their employees’ immigration needs while planning product lines and office locations. Company strategy on immigration should involve the highest echelons who can make decisions about US and global requirements.

Global Companies

Our clients’ employees crisscross the world, going from USA to China to India, or from India to Brazil to Switzerland and beyond. Their visa journeys need to be mapped and matched to product roll-out dates; manufacturing skill requirements; economic marketing cycles; and changing individual country visa regulations. Most nations are seeking to protect native workers’ rights; hence, foreign workers have to pass more rigorous tests to obtain work permits.

US Employers

A company with several US business units, and with a rolling roster of demanding clients whose software products need to be completed timely and early, need to identify employees early to meet their goals. Our economic climate certainly dictates a live or die mentality.

Often companies think of the visa puzzle piece too late in the game: either when there is insufficient time to file, or when the need for a visa is urgent due to product rollout; however, at this point, visa quotas are often exhausted early in the year.

So how can an employer plan?

For US employment, the first step is to identify employees who are potential candidates for a new H1B visa. Either these persons are overseas or they are in the US, changing status from a non-immigrant visa to a new H1B, and are cap subject.

Employers must obtain their employees’ complete immigration history. History serves a dual purpose: both to identify potential workers who have no immigration violations, and to ascertain the nature and duration of other visa statuses that may reduce the amount of time an employee can validly spend on H1B visa status in the US.

Secondly, companies should determine a project’s actual start date in the US, so that visa dates can be tailored. If the employee is cap subject, they cannot start work until October 1.

What is the employee’s history?

While collecting an employee’s immigration history, also collect details of the employee’s experience in his/her industry, and educational qualifications for the position for which the future employee is being considered. This is to qualify the worker for an H1B visa in a specialty occupation, which requires a “theoretical and practical application of a body of highly specialized knowledge.”

Global Employees

Today, employers have global operations and often like to use their specialists in both the US and other countries. Most nations have a ‘work visa’ process, or an ‘intra-company transfer employee’ visa. Qualifying for this visa requires detailed employer information; as well as employee education, experience and travel document details. Even in the information age where exchange is instantaneous, filing for visas requires preparation and extra processing time if filing in a foreign system with foreign government requirements that do not match US processes. Natural disasters can also play a role: Hurricane Sandy took a heavy toll on Washington DC-based foreign visa processing units.

The Takeaway

Plan, Plan, Plan. Start the immigration strategy process when the project is in the drawing board stage. Work with an immigration attorney to assist you in identifying visa requirements and timelines in the filing process. The result could be less costly and stressful, and you may actually enjoy the holidays this year.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
Lowenbaum Partnership, LLC
St. Louis, Missouri

The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Tara Mahadevan

Copyright 2012. All rights reserved.

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