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Immigration, Uncle Sam & Extortion

by Ken Robinson, Attorney and ImmigRanter at Slowik & Robinson, LLC

When the demand for skilled technical workers increases, many companies look to bring in foreign workers to fill the gap. The main hurdle that an employer has to clear is obtaining a temporary work visa for the out-of-country talent they wish to bring in, which is accomplished by filing an H-1B petition with the federal government. In the past, this was a relatively simple process. As the political and economic landscape has changed, however, bringing in a foreign employee – even on a temporary basis – has become increasingly more difficult.

Why are companies forced to look overseas at all? Let’s face it, as the economic forecast for the country becomes cloudier, politicians are feeling more pressure than ever to ensure that American jobs stay in America and are only given to Americans. The problem, however, is that the United States is still producing too few skilled technicians in the workplace with each passing year. And with the technology sector still clamoring to fill the highly skilled IT positions, the demand for these types of workers simply cannot be satisfied by the domestic workforce – hence the need to bring in outside help under the H-1B visa program (notwithstanding the recent push for the U.S. education system to produce more S.T.E.M. professionals – Science, Technology, Engineering and Mathematics).  Surely, this beats the trend of outsourcing these jobs to China, the Philippines or India.

Also, it should be noted that many of the foreign nationals who obtain H-1B status are hired out of U.S. undergraduate or graduate programs. These foreign students are U.S.-educated (at least in part), and have historically brought with them innovation, diversity, ingenuity, and other tangible benefits to the U.S. workforce. Restating the obvious, U.S. companies recruiting on campuses across the U.S. are primarily looking for one thing and one thing only – – the best qualified candidate, notwithstanding her national origin. It is a fundamental business principle that employing the best human resources available will give one’s business a competitive advantage. When business prospers, growth will occur and additional hiring will take place. While this particular blog entry isn’t meant to be an opinion piece advocating the overall economic benefit of the H-1B visa program (benefits that economists have documented convincingly throughout the years…Stay tuned), it is worth mentioning that the foreign born worker brings a lot with her to the U.S. workplace besides an outstanding skill set.

The politicians on Capitol Hill, however, realize that it doesn’t look very good when foreign workers fill any jobs that might possibly be filled by unemployed U.S. workers having the minimal skills for the job instead of the best skills.  This is why they have been making it progressively harder over the last decade for companies to bring in these types of H-1B workers.

The first thing they did to discourage business from hiring foreign workers was to raise the initial filing fee. In 2000, it cost $100 to file an H-1B petition, but today the basic government filing fee has jumped up to $325 – an increase of over three hundred percent. Congress also added the ACWIA (American Competiveness and Workforce Improvement Act) fee of $1,500 for companies with more than 25 employees (fewer employees require a $750 fee), as well as a $500 fraud fee.  USCIS (immigration services) uses this fee to help combat perceived fraud in the H-1B and L visa programs. Of course we support the government’s reasonable efforts to investigate and punish corporate and individual abusers of the immigration system.

And if you’re a consulting firm that has a high enough percentage of your overall workforce made up of foreign talent, expect to drop another $2,000 in addition to all the other filing costs per H-1B worker.

An H-1B petition that used to cost a company a mere $100 during the IT boom years of the late 1990s until 2000, will now cost nearly $4,500 when it’s all said and done.

Yet, despite these gigantic fee increases, the need for skilled foreign talent has been such that the 65,000 annual quota of H-1B visas still continues to be exhausted each year.

While fees have been only one way to dampen the hiring of foreign workers, the government has used other means as well. As it should, the burden of proof falls on the petitioning (sponsoring) employer to prove they qualify to bring in a foreign worker.  However, the government has made the process vastly more difficult at every stage, from Labor Condition Application filing requirements to supporting evidence to initial paperwork, licensing standards, export controls, policy shifts, etc.  Even the legal definition of an “employer” has changed over the past two years, effectively eliminating many companies from being able to qualify for an H-1B visa for their employees. H-1B extensions used to be nearly “automatic” routine filings to renew the benefit that USCIS (immigration) had previously provided. Now, companies are often required to submit copious amounts of evidence and documentation, all of which demands a significant investment of both time and manpower. And that’s only when the government gets around to processing the paperwork.

Over the past four or five years, companies have seen burdensome requests for evidence demanding paperwork or information already provided in the initial filing, disparate decisions in identical types of cases from different officers, and incorrect legal and factual adjudications resulting in unlawful denials. Of course the government’s job is not an easy one, but I contend that too frequently it is the Regional Service Centers’ poor performance or sometimes inconsistent adjudicating standards of H-1B petitions (and other nonimmigrant employment-based petitions) that has created the current environment of “no first.”

The Rant

The normal processing time for an H-1B petition is anywhere from four to six months – practically a snail’s pace. Certainly, when a business identifies a new employee, a six month period before which that employee might begin her employment is more than inconvenient. However, for the additional cost of $1,225 dollars, the government will guarantee a review of the petition within 15 business days. To some, this feels like legalized extortion. You are paying the government to actually do its job. Now you understand the great lengths that lawmakers have gone to in order to convince their constituents they are doing all they can to keep American jobs reserved for Americans, all while American technology companies continue to move their jobs oversees (or, in Microsoft’s case, just north of the border where immigration rules are more friendly), because it has become prohibitively expensive to bring in foreign talent to supplement the American workforce.

How’s that for irony?

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