by Cyrus D. Mehta, ABIL Lawyer
The Insightful Immigration Blog

The H-1B visa program is in trouble. It has become everyone’s favorite whipping boy. Critics rail against the H-1B for bringing in so called cheap labor to the US, but ignoring the fact that an employer is required to pay the prevailing wage set by the Department of Labor. Some of the wages mandated by the DOL at www.flcdatacenter.com are unusually high. Take for example the position of Marketing Managers in New York City. A Marketing Manager on an H-1B visa would need to be paid an entry level wage of $108,493 year. The level two wage is $144, 123 per year, the level three is $179, 774 per year and level four is at a whopping $215, 405 per year. This is hardly cheap labor. The employer on top of these wages must also pay costs towards the H-1B visa including lawyer fees and excessively high filing fees in excess of $6,000. If the employer is dependent on H-1B or L workers, it has to additionally pay a super fee of $4,000. Only an employer who wishes to employ a highly skilled foreign worker will go through all the expenses, as well as all the regulatory procedures, under the H-1B visa.

The H-1B visa serves as the main entry point for a skilled foreign worker to aspire to work and immigrate to the United States. There already exists a shortage of H-1B visas with a meager annual cap of 65,000 plus another 20,000 for those with advanced degrees from US universities. If the H-1B visa is further restricted, there will be no entry point whatsoever. Foreign students graduating from top US universities will not get a chance to work and remain in the United States. The immigration system is already broken because of restricted pathways for non-citizens to acquire permanent residency, resulting in backlogs lasting decades. If the entry point through the H-1B visa is cut off, then we will truly have an unworkable immigration system that will no longer attract talent to the United States.

To rub further salt in the wound, Senator Grassley on February 26, 2016 wrote an angry missive to USCIS Director Leon Rodriguez protesting the use of the H-1B visa by entrepreneurs, which he likens to one who tries to “hack” the H-1B program. This is in direct contradiction to the USCIS’s well intentioned Entrepreneur Pathways portal that provides guidance on legitimate ways a founder can apply for a nonimmigrant visa through his or her own startup. According to Grassley, this is abusive and illegal, but he is wrong. Note that there is no independent startup visa in our immigration system, although America has spectacularly succeeded off the success of entrepreneurial ventures, many of which have been founded by people who were not born in the United States. Sergey Brin of Google is a prime example. Startups have to compete with more established companies within the immigration system, and where there is already a bias against the small business. A startup may be even more rudimentary than an established small business and thus more susceptible to being viewed as a fraudulent artifice. Startups may not yet be generating a revenue stream as they are developing new technologies that may lead to products and services later on. Many have received financing through venture capital, angel investors or through “Series A and B” rounds of shares. Startups may also operate in more informal spaces, such as the residences of the founders (with regular meetings at Starbucks) instead of a commercial premise. Some are also operating in “stealth mode” so as not to attract the attention of competitors and may not display the usual bells and whistles such as a website or other marketing material. Startups may also not have payroll records since founders may be compensated in stock options. Still, such startups are legitimate companies that should be able to support H-1B, L, O or other visa statuses. While, in the past, USCIS has often been accused by critics of harboring a systemic bias against small business, the Entrepreneur Pathways portal provides guidance for USCIS offices to adjudicate such H-1B petitions more favorably.

Grassley has now thrown the wrench into the works of such an entrepreneur trying to “hack” an H-1B visa. My esteemed colleague Tahmina Watson clarifies in a news article that Grassley misinterprets “hack”, which in the tech world “is a word of respect in which one finds a solution to a complicated problem.” Grassley even has the chutzpah to accuse established universities of colluding with entrepreneurs. Unfortunately, his letter is not backed up by the black letter INA provisions which support these sorts of collaborations between universities and entrepreneurs under the H-1B visa.

Under INA 214(g)(6), it is permissible for an entrepreneur to be employed by a cap-exempt employer such as a university on a part-time basis and then be able to obtain an H-1B, without being counted under the annual H-1B cap, through his or her own startup. Under INA 214(g)(5), an H-1B worker who is sponsored through a startup entity is not counted under the H-1B cap lottery if he or she is employed “at” a cap-exempt institution of higher education or is employed “at” a non-profit affiliated to an institution of higher education. While it is true that 8 CFR § 214.2(h)(4)(ii) requires the existence of an employer-employee relationship for the H-1B visa through a startup, this includes indicia such as the employer’s ability to “hire, pay, fire, supervise, or otherwise control the work of such employee.” It is the Neufeld Memo that elevates the right of control over all the other factors set forth in the regulation. Still, it is possible to invoke old decisions that recognize the separate existence of the corporate entity. It is well established that a corporation is a separate and distinct legal entity from its owners and stockholders. See Matter of M, 8 I&N Dec. 24, 50 (BIA 1958, AG 1958); Matter of Aphrodite Investments Limited, 17 I&N Dec. 530 (Comm.1980); and Matter of Tessel, 17 I&N Dec. 631 (Act. Assoc. Comm. 1980).  As such, a corporation, even if it is owned and operated by a single person, may hire that person, and the parties will be in an employer-employee relationship. This point needs to be brought out when advancing an H-1B for an entrepreneur. Still, we acknowledge that the H-1B petition may have more success when there is another investor or shareholder, and the beneficiary is not the sole owner of the entity. That person may be able to exercise control over the H-1B beneficiary, even if he or she has a minority interest. It may not be necessary to show that the other individual or entity has the power to discipline the beneficiary, but only that this person can exercise negative control over the beneficiary’s decisions. There is nothing preventing the other individual from being a family member, and the shareholder or director also need not be residing in the US.

Difficult as it already is to gain an H-1B through a startup, Senator Grassley is needlessly thwarting the intent of Congress under the H-1B visa program to attract entrepreneurs who will only benefit the country. And this is being done when we have such a paltry number of visas. With respect to H-1B filings under the FY2017 H-1B cap, some are of the opinion that there will be fewer H-1B filings because of the increase in the super fee from $2,000 to $4,000 and also since the F-1 Optional Practical Training program is vulnerable to attack in litigation. I completely disagree. The increase in the fee to $4000 will not deter certain employers dependent on H-1B or L employees from filing H-1B cases as there still continues to be a lack of skills in the US workforce,  and the need to execute and manage transformative IT projects with a skilled foreign IT workforce. Most of corporate America relies on the very employers who depend on skilled H-1B workers and have been unfairly penalized with the $4,000+ fee to keep their business and operations humming, which in turn benefit the American consumer. An increase in the fee thus will not be daunting whatsoever as the stakes are truly high for both IT consulting firms and most of corporate America.

Also, the prospects of the STEM or regular OPT being held invalid by a court create further uncertainty for the foreign entrepreneur. Fortunately, the likelihood of the court invalidating F-1 OPT is slim since the DHS has now allayed the court’s concern by proposing regulations for notice and comment under the Administrative Procedures Act. If at all there is any uncertainty with respect to OPT, entrepreneurs will be more concerned and will want to file H-1B petitions sooner than later while OPT is still in effect in order to ensure that there vital foreign worker can still be employed. This will create additional pressure on the H-1B cap, unless they are doing so in collaboration with universities and are seeking H-1B cap exemption.

All this demonstrates the need for more H-1B numbers rather than less as H-1B workers, including entrepreneurs, are essential for our economic growth and prosperity. The H-1B visa provides the entry point for someone to work in the United States, and in the absence of a special startup visa, the H-1B visa also serves an additional important purpose. Many universities have created programs to attract entrepreneurs and collaborate with them, so that they can legitimately take advantage of gaining H-1B cap exemption through INA 214(g)(5) and 214(g)(6). Senator Grassley’s letter may discourage USCIS adjudicators from granting H-1B visas filed by entrepreneurs, despite favorable policy guidance through Entrepreneur Pathways and provisions in the INA that provide cap exemption. Still, the USCIS should be assured that there is a sufficient legal basis to approve such H-1B petitions, and there is also undoubtedly a great policy argument, which Grassley overlooks, to allow entry of promising foreign entrepreneurs into the US in the hope that their startups will succeed, which in turn will create jobs and benefit the US economy.

by Myriam Jaidi, Associate with ABIL member, Cyrus D. Mehta
The Insightful Immigration Blog

An individual seeking to transfer to the United States as a manager or executive (specialized knowledge employees will not be addressed in this blog) comes to you for help.  She may be interested in opening a new office, or may be transferred to an existing company that has been operating for more than one year.  In either event, the business involved is a small one and your client may be the only employee or one of few employees.

In light of the August 2013 report from the Department of Homeland Security (“DHS”), Office of Inspector General (“OIG”) (OIG-13-107), you know you face an uphill battle, but one that may be winnable.  We note that the 2006 OIG report on the L nonimmigrant category was mandated by law (section 415 of the Consolidated Appropriations Act of 2005, Pub. L. 108-447), but the 2013 report was issued at the request of Senator Grassley, specifically to examine the potential for fraud or abuse in the L-1 category. Senator Grassley has been a well known critic of immigration and is more likely than not to suspect fraud as he done with other categories, such as the H-1B and B visas, among others.  Despite the potentially negative driving force behind the impetus for the report, it provides valuable insights and guidance on the L category, and some very important nuggets for practitioners filing for small businesses.

One important take-away of the OIG report, that we as practitioners have doubtless noticed, is that adjudication of L petitions has been inconsistent across various fields. “We reviewed L-1 petitions ranging from the restaurant industry to the information technology field, and concluded that adjudicators reach different decisions despite similar fact patterns.”  It is some comfort for practitioners, who sometimes stand amazed at the different outcomes for similar petitions, that the OIG has identified this reality and raised it as a problem.

The OIG conducted domestic and international field work, interviewing USCIS and CBP personnel, as well as consular officials, as well as managers within both the DHS and the Department of State, and found vulnerabilities in various areas, and here we focus on their critique of new office Ls and extensions.  The OIG states that new office petitions (and to some extent, extensions thereof) “are inherently susceptible to abuse because much of the information in the initial petition is forward-looking and speculative.”  Specific problems the OIG identified in its file reviews of new office petitions included the following:

• Lack of a realistic business plan or a plan that is so vague, the petitioner cannot present a viable path to meeting L-1 definitions at the end of the 1-year period;
• Initial staffing structures that raise questions about the future need for an L-1A manager or executive. Common examples we reviewed included gas stations or convenience stores that list several “managers,” with few workers involved in the day-to-day functions of the business;
• Managers who perform nonqualifying work as a central part of their job; and
• Inconsistencies or vagueness in how the beneficiary’s managerial or executive job is described.

The report concludes that given the integrity risks and uncertainty at issue in new office petitions, they are “sometimes” approved erroneously.  As practitioners we know that such petitions are sometimes denied erroneously as well.  It is unclear how often erroneous approval occurs, or how widespread the problem is.  The way the OIG report frames the issue, emphasizing improper approvals without further information on actual numbers, may result in a backlash against approval of new office L-1As, even strong cases.  (The fact that the approval numbers declined drastically after the 2006 OIG report was issued (57,218 in 2007 to 33,301 in 2011) does raise the possibility that companies may face more difficulty in getting new office petitions approved after this particular report sinks in.)

In light of this bias, practitioners will need to use the information in the OIG report to strengthen new office petitions, as well as extensions, especially for small businesses. Initially, we should address what makes a business a “small” business.  The H-1B fraud indicators (less than 25 employees, less than $10 million in gross income, less than 10 years in existence) are not helpful in the L context because if they were applied, most small businesses would not be able to pass muster.  The L statute and regulations are structured such that a single person may open a new office in the United States pursuant to valid L-1 status.  However, as the excerpt from the OIG report above demonstrates, the smaller the company in terms of number of employees, and funding, the more suspect the application.  This is because the smaller the operation, the logic goes, the less likely the individual will be performing primarily qualifying duties, and the less likely the organization can support someone in a managerial or executive position. The statutory definitions specifically indicate that size may be taken into account in “determining whether an individual is acting in a managerial or executive capacity”, however, where this is done, the government must “take into account the reasonable needs of the organization, component, or function in light of the overall purpose and stage of development of the organization, component, or function.”  INA 101(a)(44)(C).

If the company will initially have only one or a small number of employees, it is important to present clearly what the beneficiary will be doing during the start-up or initial phases, and how his or her duties may change over time as the business develops.  Presenting a clear road map of development and duties will help you avoid the label of a fatally vague business plan.  Demonstrate that the beneficiary may initially set up the business, rent office space, hire subordinates and/or contract for services such as accounting, payroll, even marketing and public relations, but once these decisions are made and implemented and she has assured administrative and operational support, she will focus on managerial or executive duties. Explain what her duties will be and why, support that explanation with the relevant facts and figures from a detailed business plan, and present a reasonable projection of what her future duties will be based on the type of organization, its expected needs at the one-year mark (and beyond), and the position she is slated to fill.  Explain any non-qualifying duties to further distinguish the time spent on qualifying duties.  In addition, if the beneficiary receives support from abroad, explain how that support ensures the development and continuing operation of the company, and how it supports the argument that the beneficiary is serving in a managerial or executive role.  Finally, if during a first year some event beyond the petitioner’s or beneficiary’s control has significantly negatively impacted the petitioner’s business and therefore its business plan, such as a natural disaster like Hurricane Sandy, such an occurrence should be explained in an extension petition.  Under such circumstances, where the business has been negatively impacted, the petitioner may suggest to USCIS that if it is not inclined to approve the extension for two years under the circumstances, it could approve the petition for one year and have the petitioner make a stronger showing once it has regrouped after the event, at the next extension.

In some instances, such as in cases where the beneficiary will be serving as a “functional manager,” it may be arguable that hiring workers is crucial to managing the essential function. For example, where the beneficiary manages the sales function, an important part of doing so would be to ensure a sales team is in place to carry out the actual sales.  Though the OIG specifically lists hiring workers are a nonqualifying duties (see page 19), practitioners may still be able to demonstrate that in fact such a duty is a part and parcel of managing a specific function, and ensuring that the manager is not engaging in the function managed.  Of course, it is important, given the guidance, to ensure that the individual is not primarily hiring employees, but the fact of hiring employees need not be dismissed out of hand as nonqualifying.

In providing an overview of the qualifying duties, and in order to dispel the presumption of “nonqualifying work as a central part” of the position, it is recommended to provide an estimate of the percentage of time the beneficiary will spend on each duty.  Of course, this can be a painful exercise, particularly because a beneficiary’s broader duties may not be easily dissected into meaningful minute-by-minute tasks.  While attempting to trying to break up the duties, you may want to emphasize that these percentages are only an approximation as in the real world, especially involving a manager or executive with high level duties, it is often difficult to pinpoint the exact percentage of time devoted to each duty by the very nature of the high level position. Unlike a worker in a non-managerial clerical or factory job, where the employer assigns the duties in a precise manner, a top level manager who performs at the highest level within an organization must multi-task, and many of the duties may overlap. A successful manager or executive is also required to adapt to challenges and a changing business environment, in order to maximize growth for the organization. Given the discretionary role of a high level manager or executive, it would at times undermine that role if a strict percentage of time was assigned to each and every duty as it would prevent the manager or executive from innovating, adapting or taking risks. Risk-taking is vital for growth, innovation and job creation, which requires the qualities of flexibility, adaptability and the ability to change in the face of new business trends.  Nevertheless, it is important to elicit and sift through the beneficiary’s duties.  Have them assist you in developing as specifically as possible what tasks she does and the time she tends to allocate to each.  This will allow the beneficiary to present the clearest picture of the beneficiary’s work and credibly demonstrate that she spends the majority of her time on qualifying duties.  As an aside, it is not clear what percentage of managerial or executive duties meets the “primarily” threshold, though a general guideline, echoed in USCIS statements (specifically, R. Divine, “Comments on OIG Draft Report: A review of Vulnerabilities and Potential Abuses of the L-1 Visa Program,” (Jan. 10, 2006) (included as Exhibit E to the 2006 OIG report)), is that primarily means a “majority of the time.”  Use this as a guide, but keep in mind that the more qualifying duties the better, and the stronger the argument that each duty is a qualifying duty, the better.

In its list of suspect cases included above, the OIG specifically singled out “gas stations or convenience stores” as examples of cases where “initial staffing structures . . . raise questions about the future need for an L-1A manager or executive.”  There is nothing in the law that precludes the ability of Petitioners that run gas stations, convenience stores, or similar small businesses, to obtain approval for L-1 transferees.  This may not be possible for the average mom-and-pop gas station or single convenience store owner, but where the petitioner starts with one operation, such as a gas station or convenience store as an anchor investment, and demonstrates that it is expanding or intends to expand to further investments under the guidance of a function manager who is responsible for the essential function of business development, a sufficiently strong case can be made.  Under INA § 101(a)(44)(A)(ii) and (iii), a function manager does not need to be supervising other managerial or professional employees in order to qualify for L-1A visa classification.  Crucial in these cases is showing that the function manager is relieved from performing non-qualifying duties by subordinate staff, whether they are professional or not.  Moreover, the petition would have to demonstrate that additional investments are being planned and pursued by the beneficiary pursuant to his or her mandate of strategic management, growth and investment.  Again, specifics are very important – show the steps the beneficiary is taking to pursue investments (emails, letters of intent, etc.), the financing involved in such investments, explain why such action is properly taken by a function manager, someone with high level authority to commit the petitioner to a course of action or expenditure of funds.

A variety of types of small businesses can successfully petition for a transferring manager or executive (or specialized knowledge) employee.  Successful cases may involve varying amounts of capitalization, salaries, numbers and types of employees, and various levels of interaction and support by the foreign entity, whether administrative, operational, or financial.  The key appears to be the level of detail provided, the fact that such detail is borne out in a well diversified set of supporting documents illustrating each point made the petition, and that all issues, including elements of a position that may be nonqualifying, are clearly explained.  Such detail can help to overcome the suspicion the OIG has with regard to smaller companies, or companies that are family owned and operated.  In the case of family businesses, the petitioner should explain the family relationships involved and make clear the role each family member will play in the business, and their qualifications for such roles.  The OIG has indicated that family based operations have been a vehicle for fraud, so a cautious practitioner will need to disabuse them of this presumption by hitting the issue head on and demonstrating the validity of the managerial or executive employment.

Practitioners and petitioners should also be aware that beginning in the first quarter of 2014, USCIS’s Fraud Detection and National Security Directorate (FDNS) expects to conduct post-adjudication domestic L-1 compliance site visits.  The OIG recommended that “USCIS make a site visit a requirement before extending 1-year new office petitions.”  The USCIS concurred and plans to being doing such site visits prior to granting an extension in a new office. Beneficiaries should be advised of the potential for a site visit to ensure that if an FDNS representative comes by, that everyone at the business knows who the beneficiary is and direct the FDNS officer to the person who will answer questions about the petition most accurately.

That the OIG report demonstrates that the government may view petitions filed by small businesses unfavorably is helpful to petitioners in illustrating how they need to improve petitions they file, and where they need to provide explanations and documentation to further demonstrate the credibility of a petition.  Petitioners should also highlight that small businesses are a recognized engine of a recovering economy, as borne out by reports published by organizations like the November 2009 report by the Ewing Marion Kauffman Foundation, and articles by Thomas Friedman, and other reputable writers addressing economic issues.  The statutes and regulations governing the L category themselves recognize the importance of new and small businesses, despite the government suspicion of them.  As discussed on numerous occasions on this blog, USCIS has also recognized the importance of entrepreneurs and small business in the context of its “Entrepreneurs in Residence” initiative.  In addition to presenting a strong, well-documented petition, practitioners can balance the negatives presented by the OIG against the positives presented by the USCIS in the context of its support of entrepreneurs, and include a short discussion of the significance of small businesses, even family businesses, in the context of economic recovery and growth.

The OIG reports from 2013 and 2006, along with the USCIS memoranda responding to each report, are required reading for practitioners representing petitioners filing new office Ls and extensions thereof.  In addition to the regulations, these documents provide essential guidance on how to strengthen cases for new and/or small businesses.

by Myriam Jaidi, Associate with ABIL member, Cyrus D. Mehta
The Insightful Immigration Blog

As Cyrus Mehta noted in his December 7, 2011 blogpost regarding H.R. 3012, “How Fair is the Fairness for High-Skilled Immigrants Act?”, although not a perfect bill, H.R. 3012 passed the House in November 2011 by a landslide. The bill, as passed by the House, would eliminate the employment-based per country cap entirely by 2015 and raise the family-sponsored per-country cap from 7% to 15%. The passage of this bill by a margin of 389-15 signaled the strong bipartisan concern with the significant inequities in the immigrant visa system with regard to individuals from certain countries, especially individuals from India and China sponsored for employment-based immigrant visas. Although the country limits addressed by H.R. 3012 were originally enacted for all countries, these limits have resulted in mind-boggling wait times for people from India and China. For example, for Indians in the employment-based third preference (EB-3) category, some have estimated the wait times could be up to 70 years!

The landslide, bi-partisan passage of H.R. 3012 in the House was also proof positive that Congress, despite the gridlock and often seething partisanship, is in fact deeply concerned with repairing our country’s dysfunctional and unfair immigration system, especially in at a time when economic and global realities require the United States to reform the system to facilitate our ability to compete more effectively in the global economy. Both our “home-grown” and imported talent will mutually benefit from more reasonable access to visas for highly-skilled immigrant (and nonimmigrant) workers, as many U.S. business leaders such as Bill Gates have attested (see pages 12 to 14 of his testimony). Further proof of that fact is the strong support of entrepreneurs, both foreign and domestic, by the Obama Administration, as demonstrated by the Start-Up America and Entrepreneurs in Residence initiatives.

Then along came Senator Grassley’s hold on the bill in December 2011. After extensive negotiations, on July 11, 2012, Senator Grassley lifted his hold. To remove the hold, senators in favor of the original bill reached what may well be a sort of “Faustian bargain” with Senator Grassley. In order to agree to lift the hold on the bill, Senator Grassley demanded provisions that could severely hamper the already difficult H-1B nonimmigrant visa process and, in tandem with that, hamper U.S. businesses and their ability to compete in the global economy.

So, what’s the big deal? This is what Senator Grassley had to say about the amendment he proposed:

Sounds fine, right? Protect American workers, combat fraud, what’s wrong with that? There is of course nothing wrong with protecting American workers and preventing fraud. Supporters of the amendment seem to frame their support in the same way that people who criticize the Constitutional protections against unreasonable searches and seizures and self-incrimination frame those criticisms: if companies are not doing anything wrong, they have nothing to fear, right, from a search, seizure or questioning?

Senator Grassley’s description of his proposed amendment is something of a gross oversimplification. First of all, the amendment covers issues already addressed by existing law so query whether the amendment will serve any constructive purpose. The Immigration and Nationality Act (“INA”) and implementing regulations, as well as the related rules promulgated by the Department of Labor (“DOL”) addressing the process of obtaining approval of a labor condition application (“LCA”), the necessary first step of the H-1B sponsorship process, already include extensive protections for American workers and provisions to search out and punish fraud, if it does occur. Just to name a few examples, the existing rules require notice to “U.S. workers” (which, pursuant to the DOL regulations at 20 C.F.R. § 655.715, include citizens or nationals of the United States as well as green card holders, refugees, asylees, or “an immigrant otherwise authorized (by the INA or by DHS) to be employed in the United States” – it is unclear who Senator Grassley’s term “American workers” includes), provide minimums for offered salaries to ensure that such salaries do not undercut the salaries of U.S. workers, and where employers are “H-1B dependent”, the rules require, if such employers offer a salary of less than $60,000 per year, that they attest, and when called upon to do so, demonstrate, that they have made good faith efforts to recruit U.S. workers for the offered position (see 20 C.F.R. § 655.738-655.739)). Penalties for violations of the rules are already included in the statute and governing regulations (see INA § 212(n)(2)(C)).

So what does Senator Grassley’s amendment do? The amendment changes, but does not clarify, the trigger for DOL review of an application from “only for completeness and obvious inaccuracies” to “for completeness, clear indicators of fraud or misrepresentation of material fact.” The amendment does not define what might constitute “clear indicators of fraud or misrepresentation of material fact,” although these may be similar to the ones some authors have observed that USCIS followed (and may still) as indicators of fraud in H-1B cases: companies grossing under $10 million per year, companies with less than 25 employees, companies established less than 10 years ago, etc. Grassley’s amendment to the bill also changes the investigation process by removing the need for “reasonable cause” to conduct an investigation based upon a complaint, which continues to be the basis on which an investigation may be commenced. Thus, any complaint, reasonable or not, received by the DOL about an employer could serve as the basis for an investigation.

What does this mean for the process? It could bring the process of getting an LCA approved to a standstill and therefore limit or even prove fatal to an employer’s ability to hire a highly skilled foreign worker on an H-1B nonimmigrant visa. First, let us consider cap-subject cases. Each fiscal year, only 65,000 H-1B visas are available and time is usually of the essence because the H-1B cap “opens” on April 1, for an October 1 start date for cases subject to the cap, and in many years, the cap was often reached on or soon after that April 1 date, so there is great competition for these visas and having them ready to file on time is crucial. Currently, the process of getting an LCA approved takes about 7 business days. During this period, the DOL checks for obvious inaccuracies, checks the existence of the employer, salary details, and whether the employer has made the appropriate attestations, among other details. This 7-day period is a built-in delay of the process. Under the current laws, an investigation may be conducted for a period of up to 60 days (see INA § 212(n)(2)(G)(viii)). Under the proposed amendment, there appears to be no time limitation on the length of time an investigation may continue.

Without any sense of how long an investigation may take, and given the uncertainty of the trigger, an employer who is certain it wants to hire an individual for an October 1 start date, cannot build in more than 6 months of precautionary time for what could amount to a random investigation, because the current process does not allow an LCA to be prepared and submitted to the DOL for processing more than 6 months prior to the intended start date of the H-1B visa. For cases that are not cap subject, such as a company hiring an individual who already holds H-1B status, the risk is losing a highly-skilled prospective employee who may be desperately needed because of uncertain delay in the very first step of the process. The portability process created by the American Competitiveness in the 21st Century Act (“AC21”), which allows a change to a new employer immediately after that employer files an H-1B petition, cannot do anything for an employer looking to transfer someone’s H-1B to their company if they cannot get the H-1B petition filed because the LCA process is held up by investigation. Viewed in this light, this amendment to a well-meaning bill would obstruct the flexibility promoted by AC21, the intent of which was to promote the United States’ ability to compete in the 21st Century!

Senator Grassley’s amendment also allows the DOL to conduct “surveys of the degree to which employers comply” with Grassley’s new LCA regime. Exactly how such surveys would be conducted, who would be involved, and how long they might take is unstated. Under Senator Grassley’s amendment, the DOL may also conduct annual compliance audits of any H-1B employer. Of course, compliance audits are already a part of the existing rules. However, the new twist is that the DOL must conduct such annual compliance audits of “each employer with more than 100 full-time equivalent employees who are employed in the United States if more than 15 percent of the number of such full-time employees are H-1B nonimmigrants . . . .” Although there is a four-year period between allowed compliance audits for employers who pass muster, the amendment also provides for publication of the DOL’s findings. Given the current anti-immigrant climate and the tendency of many people to blame foreign workers for the lack of available jobs, publishing results even of companies who are completely in compliance could lead to backlash against the companies, or could lead companies to avoid hiring foreign workers in the United States, and perhaps moving operations overseas or to Blueseed to avoid exposure.

Removing per-country limits on employment-based immigrant visas and increasing the limits on family-based immigrant visas are obviously laudable goals, but query what risks Senator Grassley’s amendment poses. The reality appears to be that the amendment will not serve its stated ends but rather will serve to obstruct access to highly-skilled foreign workers and undermine U.S. businesses and their ability to compete in the global economy. Perhaps it would be best if H.R. 3012 were passed – without Senator Grassley’s amendment.