Monica Lukoschek: The Immigration Mess!

The Immigration Mess  ie: Immigration 10.142! Turning away great people due to immigration issues is just tragic.  

Today’s Quote:

“The U.S. immigration laws are bad - really, really bad. I'd say treatment of immigrants is one of the greatest injustices done in our government's name.” - Bill Gates

Show highlights:

• The current immigration landscape
• Changes in policy for 2019
• Creative steps to navigate today’s immigration laws

Quick breakdown on the different types of Visa:

• Hirable visa categories
  • E1, E2, - investor visa
  • F 1 Visa- Student visa practical training
  • H1B – Specialty Occupation (Cap vs. non-cap)  65,000, plus 20,000 for US masters/PhD last year 190,000 petitions filed.  Highest in 2017 236,000 filed (historical: annual cap to 115,000 for Fiscal Year 1999; 115,000 in Fiscal Year 2000; and 107,500 in Fiscal Year 2001. The cap would return to 65,000 starting with Fiscal Year 2002.
  • J-1 Visa- exchange visitor can work, receive training, study or do research
  • L-1A/B- Intracompany Transferee (manager, executive, specialized knowledge)
  • O-1 Extraordinary Ability in the arts, science or business.
  • TN Visa- NAFTA
  • R-1 Religious Worker

Immigration policy

April 18, 2017 Executive Order Buy American, Hire American – seeks to create higher wages and employment rates for U.S. workers and protect their economic interests

Allows for rule-making, policy memos and operational changes.  Ensure H-1B visas go to only the highest skilled and highest paid.

• The H1 B Visa Changes
• Focus on wages is a Level I wage a specialty occupation?
• Challenging if a degree is necessary for the job… specific degree required?  Can you prove alternative eligibility requirements?
• Computer Programmer Analyst – March 30, 2017 Rescinded 2000 memo.  Now stating that Bachelor’s not required for job. What other computer-related occupations could this extend to?
• Third party worksite/direct employer/employee relationship.  i.e., even accountants at an accounting firm. February 22, 2018 policy memo supersedes prior memo
• Rescission of guidance allowing USCIS to defer to prior
• *Change in the information required for approval
• Policy changing almost daily and hurts smaller companies most

Just last week, the DHS and the DOL proposed new regulations:

• Electronic Registration for Cap subject petitioners by next April.  Initially Proposed in 2011
  • Only open two weeks?
  • Multiple registrations?
• Elimination of work permits for spouses of H-1B workers waiting more than 6 years for green card (taking more than 10 years for certain countries)
• Hiring challenge- Foreign workers need H-1Bs
  Missing out on A-players

What we need to do to navigate this mine field:

• Consult your attorney before investing too much time
  • What to ask? What to look for?
  • Does the position require a degree and does the applicant have the specific degree?
  • Will the employer be required to seek a work visa?  H-1B employers required to pay for attorney’s fees and filing fees.  Can employer wait until October 1 (or beyond) for the employee to begin working?
  • If transferring from a previous H-1B – how many years on H-1B, do they have an approved immigrant petition (could extend time beyond 6 years).  Premium Processing suspended until at least February. Will employee risk transfer?
  • Will the employment be “off-site”?  Must show proof of right to control the employee and cannot “bench”  Can you provide SOWs, itinerary, etc. See itinerary requirements.
• Creative solutions to still be able to hire the person your company needs!
  • Is the applicant from Chile, Singapore, Northern Mariana Islands, Canada, Mexico, Australia?  May be other alternatives.
  • Is spouse on a visa category which extends work authorization to employee? (E-3, L-1, etc.)
  • STEM OPT extension to 36 months.
  • 3rd party firms as a protective layer?
  • Offshore options - Canada or Mexico?
  • Work remote

As a founding partner at U.S. Immigration Law Group, LLP, Monica Lukoschek’s practice focuses on employment-based immigration law, assisting businesses in hiring and retaining foreign personnel and managing their immigration compliance programs, assisting entrepreneurs and investors in the United States, and providing advice to employers and employees with all aspects of immigration law compliance.