BACC Ohio - US Immigration Innovation Act


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A presentation by the law firm of Brian J Halliday, Inc. on the US Immigration Innovation Act given to the British American Chamber of Commerce Ohio in February 2013.

Reproduced and published by kind permission of the Law Offices of Brian J Halliday, Inc

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  • U.S. immigration law flowchart recently published in the Washington Post showing the complexity of the current law.
  • I- Squared’s provisions impact on EB – IV’s:No limits on certain EB IV’s which we will discuss in some depth.Elimination of per country limitations for EB IV cases (current law limits to 7% of overall IV#s available).Proposed law designed to benefit certain very high-skilled workers.
  • I-Squared seeks to reduce the current delays in green card issuance by exempting the following:Dependents of employment-based immigrant visa applicantsHolders of U.S.-issued advanced degrees in STEM disciplinesExtraordinary Ability FNsFNs who qualify as Outstanding Professors and Researchers
  • Looking at each exemption – the elimination of dependent family members from the IV # count will greatly reduce backlogs by – perhaps – more than 50%.
  • To qualify for IV cap exemption under the advanced STEM degree provisions you must:Hold an advance degreeFrom a U.S. school; In STEM.These are typically EB-2 cases.
  • Also exempt are the following EB-1 preference cases:Extraordinary Ability cases in the sciences, arts, education, business, or athletics through sustained national or international acclaim. Outstanding Researchers/Professors – requiring demonstrated international recognition for outstanding achievements in a particular academic field + 3 years experience in teaching/research + job offerNOT EXEMPT in EB-1 – are Multinational Executives/Managers.
  • This is the monthly Visa Bulletin showing the EB IV # oversubscription backlogs for March 2013. An EB-2 applicant born in Mainland China may apply for a green card on March 1st if s/he had started the EB green immigration process on or before Feb 15, 2008 (the date the process began is called a “priority date”).A similar EB-2 applicant born in India may apply if the priority date is on or before Sept. 1, 2004.Applicants in EB-3 from anywhere in the world not otherwise listed would need a priority date of May 1, 2007 or earlier. And look at EB-3 India: Nov. 22, 2002!
  • If I-Squared is implemented,the per-country limits will be eliminatedFor ChinaIndiaMexico; andThe Philippines - Making a single global pool of applicants. And again, the ones exempted from the IV caps limits would be as follows:Extraordinary Ability and Outstanding Researchers/ProfessorsGraduates of U.S. universities with STEM degrees (mostly EB-2 cases)And of course, family members will be exempt – resulting in a much smaller pool of IV applicants with a homogenized backlog (if any).
  • How might this play out? IV applicants from India and China will no longer be subject to per country backlogs. So, IV cases for Indian applicants will automatically advance substantially; As will cases for applicants from China; butApplicants from the rest of world - since now part of the same homogenized pool – will potentially experience greater delays than they saw before. The group impacted by this most visibly would be applicants in EB-2 (advanced degrees) who currently have little or no wait at all.
  • This slide shows the 3 typical steps to get an EB green card through the PERM labor cert process. First the employer determines the minimum requirements for the position it seeks to fill with the FN. Then, the DOL looks at these requirements and determines whether – by DOL’s standards – the requirements are “normal” to the occupation. And finally, the IV petition is filed with USCIS. If there is an IV # available, then the USCIS may process and issue the FN a green card. The potential problem we see is this middle step.
  • I-Squared’s elimination of U.S. issued advanced STEM degrees from the IV cap will 1) induce FNs to get U.S. issued advanced STEM degrees.2) U.S. employers will then have a richer pool of well-qualified candidates. But…. 3) If I-Squared does nothing to address DOL’s processes (and there is no indication that it will), there is great potential for a bureaucratic bottleneck which will have the effect of nullifying I-Squared’s fixes to this part of the immigration law.
  • It all depends on the definition of “normal.” The DOL finds a large segment of EB-2 advanced degree positions as “normally” requiring at a minimum a Bachelor’s degree and no more than 2 years of experience. Or, alternatively, a Master’s degree and zero experience. Employers who consider minimum requirements as exceeding these education and experience levels will be met with opposition by the DOL in the form of an Audit. In the case of such an audit, the employer must painstakingly prove that their minimum requirements exceeding what the DOL thinks is “normal” are required by business necessity. Successfully proving this for many positions can be very difficult to do. Statistically, 45% of all PERM cases filed with DOL are audited. Of those, perhaps half are denied. So – even if I-Squared reduces or eliminates the EB-2 advanced degree backlog, if the DOL’s processes are not similarly amended to accommodate the influx of this very rich talent pool, a large percentage of this valuable foreign national talent may have great difficulty getting green cards.
  • BACC Ohio - US Immigration Innovation Act

    1. 1. U.S. Immigration Innovation ActImmigrant Visa Implications
    2. 2. WarningDO NOT TRY THIS AT HOME
    3. 3. Immigration Innovation Act• The proposed legislation, if enacted, will provide several options for employment based immigrant visas: No limits on certain immigrant visas Removed per-country limits I² Benefits for certain highly skilled workers
    4. 4. Exempt from Green Card Cap Dependents of employment-based immigrant visa recipients United States S.T.E.M. advance degree holders Foreign nationals of extraordinary ability Outstanding professors and researchers
    5. 5. Exemptions Continued…When a foreignnational is issued animmigrant visa, hisimmediate familymembers are alsoissued immigrantvisas, which if thenew law passes, willnot be countedagainst the GreenCard cap.
    6. 6. Exemptions Continued… Advanced degree U.S. advance From a U.S. d degree College holders in science, In a S.T.E.M. area technolo gy, engineer
    7. 7. Exemptions Continued…First Preference EB-1 Category is divided into three sub-categories: EB-1A – Extraordinary Ability in the sciences, arts, education, business, or athletics through sustained national or international acclaim. EXEMPT EB-1B – Outstanding Professors and Researchers with demonstrated international recognition for outstanding achievements in a particular academic field + 3 years experience in teaching/research + job offer. EXEMPT EB-1C – Multinational Manager or Executive employed outside the U.S. in the 3 years preceding the petition for at least 1 year by a company and must be seeking to enter the U.S. to continue service to that organization. NON-EXEMPT
    8. 8. The Visa Bulletin March 2013Employment- All Chargeability Areas CHINA- INDIA MEXICO PHILIPPINESBased Except Those Listed mainland born1st C C C C C2nd C 15FEB08 01SEP04 C C3rd 01MAY07 22JAN07 22NOV02 01MAY07 01SEP06Other Workers 01MAY07 01JUL03 22NOV02 01MAY07 01SEP064th C C C C CCertainReligious C C C C CWorkers5thTargetedEmployment Areas/ C C C C CRegional Centers andPilot Programs
    9. 9. Proposed Changes Eliminate country limits All Chargeability CHINA-Employment Areas Except Those mainland INDIA MEXICO PHILIPPINES- Based born Listed Eliminate1st C C C C C EB-1A and EB-1B2nd C 15FEB08 01SEP04 C C3rd 01MAY07 22JAN07 22NOV02 01MAY07 01SEP06Other 01MAY07 01JUL03 22NOV02 01MAY07 01SEP06Workers Eliminate U.S.4th C C C C C STEM graduatesCertainReligious C C C C CWorkers5thTargetedEmployment EliminateAreas/ C C C C CRegional Centers family membersand PilotPrograms
    10. 10. Possible ShortcomingsAs waiting times forIndian and Chinesenationals decrease……waiting times for therest of the world willincrease.This will particularly hurt those withadvanced degrees who currently do nothave to wait.
    11. 11. All agencies must work together in order for this process to work… Identify Employer sets job •Employer requirements, educationEmployee and experience DOL decides if PERM Labor •Department requirements are Certification of Labor “normal” for occupation Immigrant •Department Petition & GC of Homeland Security Application Checks visa availability and issues GC
    12. 12. As more FNs get S.T.E.M.advanced degrees in U.S.universities … and U.S. employers attempt to hire better qualified candidates… if DOL chooses to scrutinize these applications further making labor certification very difficult, it will create a bottleneck. For example….
    13. 13. According to DOL the following occupations may onlyrequire a BA+2yrs of experience or MA w/o experience: • Computer System Analysts IT Engineers Specialists • Software Developers • Aerospace Engineers • Chemical Engineers Scientists • Materials Engineers • Mechanical Engineers • Electrical Engineers DOL will not certify unless reqs. • Nuclear Engineers are “normal” or “necessary”
    14. 14. The Immigration Innovation Act of 2013 is a promising initiative, but it will only work if all agencies work together towards the same goal. Thank You