On April 10, 2008, legislation (Senate Bill 2839)– the proposed Global Competiveness Act of 2008– was introduced to the U.S Senate and referred to that body’s Judiciary Committee. Over all, S. 2839 proposes to ease restrictions on the number of visas available to skilled employees while at the same time raising filing fees for some categories of employers and imposing more restrictions on the manner in which H-1B workers can be employed in the U.S.  At the outset, S. 2839 raises for fiscal years 2009-2011 the H-1B visa quota from the current 65,000 visas to 115,000 visas. With respect to foreign graduates of  American MA and PH.d programs, the visa quota would be raised from the current 20,000 to 30,000. At the same time, the Bill proposes substantially to raise filing fees: For employers with 25 workers or more the current filing fee is $1,500; this corporate filing fee  would be raised to $2,250. The Bill also  purports to eliminate the ability of U.S. employers to outsource their H-1B employees to third-party employers. As provided by the proposed Bill, U.S. employers would be prohibited from allowing H-1B workers to be employed at the worksites of third-party employers unless the H-1B is performing a service or providing a product on behalf of the petitioner-employer. The objective of the Bill in this respect is to preclude U.S. employers from outsourcing their H-1B employee for purposes of providing labor to non-petitioning employers.  The bill would also preclude employers (who are not H-1B dependant) from advertising their job positions in a manner that would discourage U.S. applicants by representing that the positions are only available to H-1B nonimmigrants or that H-1B non-immigrants would be given priority. The Bill would also double the sanctions that could be imposed on employers for violating  H-1B regulations.

On its face, C-G’s view is that the Bill does not adequately address the H-1B visa quota crisis while imposing on employers higher filing fees and yet more strictions on how they can recruit and employ H-1B workers.  Since, in 2008, 130,000 employers filed petitions, applying for under 65,000 visas, the 115,000 quota cap proposed by S.2839 is clearly inadequate to address anticipated demand. It would also appear that the 115,000 visa quota would persist only through 2011, leaving open the possibility that the quota could again be reduced. Finally, the proposed substantial hike in the H-1B corporation filing fee is likely to make it even more difficult for midsized businesses to participate in the H-1B program. On the positive side, it would appear that the Bill does not raise filing fees for small-gage employers (employing less than 25 workers).

C-G provides below a file containing Questions and Answers recently issued by United States Citizenship and Immigration Services. The Q&A touches not only on the extension of OPT for STEM degree holders, but on the F-1 automatic extension afforded to F-1 visa holders with approved H-1B’s. USCIS also addresses, among other matters, practical questions concerning what to do if one’s OPT has expired while a change of status is pending and gives advice to employers concerning the I-9 processing of students with applications for extensions of OPT pending: 

USCIC Q&A on Extension of Optional Practical Training and F-1 Extensions

The American Immigration Law Foundation (AILF) is designated by the U.S. Department of State as an authorized J-1 sponsor. In light of the recent H-1B lottery and recommendations by practioners that employers may want to consider developing J-1 programs as an H-1B alternative, a review of the basic requirements and qualifications articulated by AILF regarding its own program is instructive:

(1) Every sponsor has a subject matter focus for its program. In the case of AILF, its J-1 sponsorship focuses on Public Administration and Law, Information Media and Communication, Management Business Commerce and Finance, and Science Engineering Architecture Mathematics and Industrial Occupations. Other J-1 Sponsors focus on agriculture, hubandry, medicine, etc.

(2) The employer must establish a training or internship program that is approved by the sponsoring organization.

(3) J-1 training programs can last from 3 weeks to 18 months. Internships can last up to 12 months.

(4) Generally, J-1 visas are granted to persons at least 21 years of age as of the commencement of their programs. Participants are expected to return to their nations of origin following the completion of their programs. Whether a candidate is required to return to her home country to meet the two-year residency requirement is in part based on a skill list developed for each nation by the State Department in consultation with the diplomatic organs of the J-1 home nation. This skill list can be found on the U.S. State Department’s website [See C-G Links Page].

(5) Participants who complete a J-1 program are precluded from entering into another J-1 program for 2 years under a recently issued rule.

(6) Persons on B-1 and B-2 visas may apply to the sponsoring organization while in the U.S., but must return to their countries of origin in order to apply to the U.S. consulate for the J-1 visa.

(7) J-1 trainees are generally precluded under the terms of their programs from changing status to another non-immigrant category. As J-1 visa holders are precluded from harboring an intention to immigrate to the United States they are precluded from adjusting status while in the U.S.

(8) According to a Q&A provided by AILF, the organization states that individuals who have applied for H-1B status would not be eligible to obtain J-1 status under its program because, by definition, trainees and interns are individuals intent on learning skills that H-1B’s supposedly already possess. AILF’s policy in this regard reflects the policies of other sponsors with whom C-G has consulted with respect to H-1B applicants whose petitions were not selected for adjudication this past H-1B cycle.

(9) Among other requirements businesses qualified to participate in AILF’s program must be in operation for at least 2 years.

For more information on the AILF J-1 visa program and what a business needs to do to have its program qualify for sponsorship see www.AILF.org. 

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U.S. Customs and Border Patrol (CBP) has recently published a guide to its new pilot program–”Global Entry.” The program is  voluntary and allows participants supposedly quick and easy re-entry into the U.S. without the need to go through Passport Control. Participants would show up at a Global Entry Kiosk, have their passports electronically read, their fingerprints confirmed and a picture taken as preconditions to entry. To participate in the pilot program, one needs to apply via the Global On-line Enrollment System, which can be found at the CBP website–www.cbp.gov. Once the electronic application is approved, the applicant will be scheduled for an interview, to take place at a Global Entry Enrollment Center. Currently, only selected U.S. Airports (including Kennedy Airport in NY) would participate in the program, which is restricted to U.S. Citizens and Lawful Permanent Residents.

Although the objective of the program is to facilitate the entry of qualified travelers into the U.S., it remains to be seen whether members of the public will ultimately see it to their advantage to provide the U.S. Government yet more information concerning their personal lives. Although the use of the biometric data and background information obtained from applicants is only supposed to facilitate Global Entry, this security aspect of the program may well prove a discouraging factor. Moreover, the program will only make sense if it benefits travelers by making the entry process a more efficient one. Again, on this point, the jury is out. Only time will tell whether the biometric technology that Global Entry will be relying on, will prove to be reliable.             ¼/p>

The following report was posted on the the Recent Postings Section of the website for the American Immigration Lawyers’ Association”  

“Cite as `AILA InfoNet Doc. No. 08051661 (posted May. 16, 2008)’:

On 05-15-08, the Senate Appropriations Committee held a mark-up session for the emergency war supplemental bill. Among the various amendments added to the bill were several immigration-related measures which passed, including:

- A scaled back version of AgJobs, introduced by Senators Craig (R-ID) and Feinstein (D-CA);

- A 3-year returning worker extension for the H-2B program, introduced by Senator Mikulski (D-MD);

- A recapture of employment based immigrant visas, and early adjustment filing, introduced by Senators Gregg (R-NH) and Murray (D-WA);

- A reauthorization of the EB-5 program introduced by Senator Leahy (D-VT); and

- A border security grant funding program, introduced by Senator Hutchison (R-TX).

Ultimately, the prospect of these measures surviving debate on the Senate Floor is very slim because they will all likely be subject to points of order on grounds of germaneness, which are extremely difficult to overcome for a variety of reasons.”