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Categories Immigration and Customs Enforcement News & Updates

Business Immigration: Has America Outgrown Its Talent Pool?

As a law firm with a team of highly experienced immigration attorneys specializing in business immigration, we are fully aware of the need for so many industries across the country to bring in new talent from wherever they can find it. In some industries, like the tech industry, the best companies in the business would not be nearly as successful without immigrants.

A recent post published on the Harvard Business School (HBS) website discusses pretty much the same topic but floats the following suggestion: America has outgrown its talent pool. It is an interesting supposition in light of annual immigration statistics and what we know about the current labor rate.

Not Enough Job Candidates

In a tight labor market, there simply aren’t enough qualified candidates for all the open jobs. According to HBS contributor James Heskett, there are approximately 4 million unfilled jobs in the U.S. at this time. Meanwhile, the unemployment rate in October 2022 was 3.7%.

No doubt unemployment has been worse at times. It was much worse at the height of the COVID pandemic. So 3.7% is nothing to get worked up about. But here’s the thing: the 3.7% of U.S. workers who are employable but can’t get a job find themselves in the unenviable position of wanting to work but not having the skills or experience to land one of the available positions.

The numbers alone suggest that Heskett’s point of the U.S. outgrowing its talent pool is at least plausible. And that being the case, where should a company short on talent go to fill out its payroll? Business immigration.

Immigration Is a Mess

Heskett also points out in his piece that current U.S. immigration policy is a mess. He suggests there are times when it’s hard to know what the policy actually is. Southern border issues aside, any one of our immigration attorneys can testify to how difficult it is to get immigrants to this country so they can actually start working.

Whether a worker needs an H-1B visa or something else entirely, there is a ton of paperwork that needs to be done. There are deadlines to be met. There are hoops to jump through and no guarantee that a visa will be issued.

It can be frustrating because it sometimes seems like the deck is stacked against foreign-born workers committed to coming to this country only after following every rule in the book.

Businesses Need Immigration

A central theme of Heskett’s piece is that American businesses need immigration. He likened the current situation to circumstances that existed right around the turn of the 20th century. Industrializing America was in desperate need of workers, yet our own population could not supply the demand. Thank goodness for waves of immigrants who came here and brought their skills and willingness to work with them.

It is hard to deny that U.S. immigration policy is in need of reform. It’s hard to deny that there are plenty of people who enter the country illegally. It is even hard to argue against the fact that immigration has become a political hot button. But from a business owner’s standpoint, foreign-born workers represent a section of the labor pool that is not being tapped to its fullest potential.

Has America outgrown its talent pool? It looks like we could be heading that direction. If we are to keep our economy strong enough to be able to compete with the rest of the world, we need to have people to fill all those vacant positions. Finding a way to reform business immigration may be the best solution.

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Categories News & Updates

USCIS Decisions Can Take a While – What to Do in the Interim

The wheels of immigration can move pretty slowly here in the United States. Part of the problem is that our immigration law is more complicated than it needs to be. And of course, bureaucracy can reduce the speed of even the fastest process to a crawl. So what is one to do while waiting for the U.S. Citizenship and Immigration Services (USCIS) to render a decision?

Immigrants and non-immigrants awaiting USCIS decisions have options. However, there are things to consider:

  • An immigrant’s or non-immigrant’s current legal status;
  • The type of visa being applied for;
  • Whether or not there are sponsors involved; and 
  • The amount of time the individual has already been waiting.

There is no black-and-white answer to the question. However, we would say that retaining the services of an immigration law firm should be the first step for any immigrant or potential employer who hasn’t already done so. The reason for this is there is industry knowhow that adds a lot of value to people seeking immigration benefits, particularly considering the complexity of U.S. immigration. 

Wait Patiently for a Decision

As long as everything is in order and you’ve only been waiting a short amount of time, the most reasonable option is to sit tight and wait patiently for a decision. Nearly every type of immigration application filed with the USCIS is under time constraints. This is not to say that the law requires the USCIS to adjudicate each case within a certain amount of time. However, USCIS does publish current case processing times. If a case processing time goes beyond the published processing time, action can be taken in the form of a service request. 

If the government has 180 days to reach a decision in your case and it has only been 90 days, you have a way to go. There is not much else you can do but be patient and wait.

Work on Other Arrangements

It is not uncommon for a business immigration attorney to tell clients to start working on other arrangements while waiting for a USCIS decision. For example, an immigrant worker will need a place to stay. There may be other arrangements that have to be made with the individual’s employer. The time spent waiting on USCIS might just as well be put to use working on those arrangements. However, we highly recommend consulting an immigration attorney to ensure stable U.S. status. If a case is pending and the outcome affects the applicant’s ability to remain in the United States, then it would be prudent to wait for the decision before taking other binding action, such as signing a long-term lease. 

Be Thinking About Long-term Immigration Goals, Such As Citizenship

We, as immigration attorneys, see lots of instances in which non-immigrants who plan to only live and work in the U.S. for a limited time change their minds and decide they want to stay longer. They typically want to at least become lawful permanent residents (green card), and in many cases decide to go all the way and become citizens. If there is any chance that you might want U.S. citizenship, it is never too early to make that a clear part of the plan.

Look into what it takes to become a citizen. Learn about the paperwork. Do some research into the immigration exam and then start studying. If you are planning to become a citizen and you don’t start working on it, your timeline can get pushed back significantly because there are many timing issues that come with applying for citizenship.

Consider Legal Action

The other side of the adjudication coin is having legal recourse when the USCIS doesn’t reach a decision in a timely manner. Let’s go back to the example of 180 days. If you’ve reached day 181 and still haven’t heard from the USCIS, you and your attorney can file a service request. But if the processing time goes way beyond 180 days, you may decide you wish to push harder to get your case pushed through. The first step toward legal action is often contacting a local congressperson’s office. Many congressional offices have government liaisons who can help get a case pushed through faster. This is particularly true if you have the support of your company.

There are some cases in which the USCIS has not yet reached its time limit for making a decision, yet still appears to be slow-walking an application with the intent to sit on it for as long as they can. Outreach to a congressional might be a viable option in such a scenario.

Unfortunately, U.S. immigration often moves at the speed of molasses. Between bureaucracy, short staffing problems, and no shortage of potential immigrants, decisions take a long time. It’s just the way things are. But there are actions you can take with your attorney to improve the processing time of your case if it drifts past standard processing times. 

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Categories News & Updates

4 Categories for Employment-Based Permanent Residency

U.S. immigration law allows American employers to bring foreign-born workers to the United States by way of temporary work visas. In many cases, permanent residency is the logical finish line of an individual’s immigration process. Obtaining permanent residency based on employment allows foreign-born workers to continue living and working in the U.S. indefinitely.

Due to language in U.S. immigration law, the government does not issue an unlimited number of permanent resident visas. The visas are limited to a certain number annually. Furthermore, not all foreign-born workers seeking permanent residence are afforded equal opportunity to do so.

Workers are divided into four preference categories based on the work they do and the skills they possess. The categories are designated as EB1, EB2, EB3, and EB4.

EB1 – Priority Workers

The first category comprises what are known as ‘priority workers’. This particular category is eligible for almost 29% of the annual allotment of permanent residency visas. Workers in this category are divided into a number of subcategories:

Workers with extraordinary ability in their respective fields. They are typically involved in business, education, arts, sciences, or athletics.

Professors and researchers are considered outstanding in their fields. These workers must have a minimum of three years’ experience and be internationally recognized for their work.

Executives and managers with at least one year of verifiable employment (within the last three years) with an overseas affiliate of the American employer. Such workers must be coming to the U.S. to work in an executive or managerial position.

All workers in the first preference category must be the direct beneficiaries of their respective I-140 forms.

EB2 – Workers and Shortage Occupations

The second preference category involves workers employed in jobs considered shortage occupations by the DOL’s Labor Market Information Pilot Program. There are two subcategories within this group:

Advanced degree professionals with at least five years of professional experience.

Workers with exceptional abilities – defined as being significantly above the norm in their respective fields – in the arts, sciences, or business.

In order to qualify under the EB2 preference category, a legitimate job offer must be in place and the American employer must have filed a petition on behalf of the worker.

EB3 – Skilled and Degreed Workers

Continuing down the list, the third category of preference goes to skilled workers and professionals with a bachelor’s degree, at minimum. All workers in this category must be employed in jobs considered shortage occupations by the DOL. They must also have an approved Form I-140 filed on behalf by their employers.

EB4 – Special Immigrants

The fourth and final preference category includes a broad range of workers who qualify for permanent residency based on a special category. Examples include physicians, religious workers and former United States government employees.

Trickle-Down Visa Opportunities

As experts in immigration law, we can tell you that there are far more applicants each year than there are available visas. The best immigration attorneys can do is provide advice and assistance in making sure documents are filled out correctly. Ultimately, though, a lottery system decides who gets the visas.

On a positive note, the permanent resident approval system works on a trickle-down principle. If all available first preference visas are not issued in a given year, the unused visas are passed on to second preference workers. Likewise for second preference visas. Any left unused after the annual lottery are passed on to the third preference category.

If all of this sounds complicated, it is because it is. Furthermore, it illustrates why the services of an experienced business immigration attorney are invaluable.

Please contact us with any questions at; (408) 715-7067.

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Categories News & Updates

Two Recent Immigration Cases Led to Big Policy Changes

As immigration attorneys, part of our responsibility toward clients is paying attention to court cases that may affect their residency. Two such cases were decided earlier this year in such a way that led to big policy changes at the USCIS. The changes relate to the 3- and 10-year inadmissibility bans previously applied to foreign nationals seeking permanent re-entry.

In short, the established 3- and 10-year inadmissibility periods that apply to foreign nationals living unlawfully in the U.S. begin as soon as an affected person either departs or is deported, and is dependent on the length of the unauthorized stay, whether more than 6 months or more than 12 months. Both periods run uninterrupted until they expire, regardless of where the person in question resides during that time.

Separate from U.S. Residency

One of the two cases that led to the policy change involved a Japanese woman who had overstayed her immigration status for over 12 months prior to being deported. Because her unauthorized stay was more than 12 months, her deportation meant a 10-year ban on re-entry to the United States. She left the country but subsequently returned after marrying an American citizen, which required a waiver of the 10-year ban. 

Some 18 years later, she applied for permanent residency status but was denied based on an interpretation of immigration law that disqualified her 18 years of marriage, thereby indicating she could not apply for admission until her 10-year ban expired.

The woman and her immigration attorneys filed a lawsuit which was eventually heard by a federal court in California. The court ruled that federal immigration law does not provide for interruption of either the 3- or 10-year admissibility bans based on subject residency. In other words, the plaintiff’s 10-year ban continued uninterrupted even though she resided in the United States.

A Change in Policy, Not Law

In response to the two cases, the USCIS issued a new policy over the summer, a policy that essentially recognizes the federal court’s ruling and the department’s willingness to abide by it. However, federal law does not directly address the issue one way or the other. Furthermore, the court’s decision is not binding.

The court did not make the law here. It also did not interpret existing law. Unfortunately, the federal laws that would apply in both cases are so vague as to not answer the central question. So the court decisions apply only to their respective cases.

As long as USCIS maintains the recently changed policy issued over the summer, their administrative decisions will be based on the concept that 3- and 10-year bans on readmission run interrupted from the moment they are put in place. However, this is not to say that the department cannot reverse the policy in the absence of any further court rulings.

You Need Experienced Immigration Attorneys

If nothing else, the court cases and subsequent policy change illustrate why experienced immigration attorneys are so important. In both cases, it was the hard work of the immigration attorneys that resulted in favorable rulings for the plaintiffs. In the aftermath, the same attorneys will be keeping an eye on things.

We will be keeping watch as well. Our role as immigration attorneys requires that we pay attention to government policies, court cases, and anything else that might affect our clients. We make it our business to know the law so that we can offer our clients the best possible representation.

If you have any questions about how the recent policy change may affect the status of your case, do not hesitate to reach out to our law offices. A member of our experienced immigration law team will answer your questions and help you understand how, if at all, the policy change affects you. Know that we are here for you.

Please contact us at; (408) 715-7067.

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Categories News & Updates

Why You Should Only Trust a Licensed Immigration Attorney

Immigrants looking to travel to the U.S. legally often rely on what they believe are reputable legal services here in the United States. But not every organization representing itself as being able to offer legal advice should be trusted. Both individuals and companies should only trust a licensed immigration attorney.

A recently resolved case in San Francisco illustrates the dangers of utilizing the services of self-proclaimed immigration specialists without checking to see if they are licensed attorneys. The case actually dates back to 2017, when the city ordered a local notary to stop providing legal services. Non-licensed individuals sometimes pass themselves off as specialists in the field and offer what they describe as a savings from not using a licensed attorney. These individuals often add costs as they go, such that the savings they claim to be providing disappears quickly. Worse than that, they can jeopardize a person’s immigration status by not providing the right level of legal knowhow. 

Immigration Attorneys Are Specialists

Here in the U.S., immigration attorneys are specialists. We are licensed attorneys that specialize in immigration law. This is what makes us the most qualified to offer services relating to business immigration, H-1B visas, etc.

In the San Francisco case, you have an individual who was licensed as a notary but not an attorney. He is also an immigrant himself. In the customer’s native country, an immigration attorney is actually just a notary with additional knowledge pertaining to immigration law.

Immigrants looking to come to the United States may not be able to draw such distinctions. They may not know the difference between immigration attorneys in their home country as compared to those here. So they are more susceptible to bad actors posing as immigration attorneys without actually being licensed practitioners.

Ordered to Stop Practicing

Getting back to the case in San Francisco, the defendant was ordered to stop providing legal services back in 2017. He chose to violate that order. He was again cited, and his case began winding its way through the courts. The most recent decision came from a San Francisco Superior Court who deemed the defendant’s services “fraudulent immigration services.”

That is a strong language, as it should be. An immigration consultant is not an attorney unless they also possess a law degree and a state license. A notary with no license to practice law is certainly not an immigration attorney.

Why It Matters

If you are an immigrant hoping to come to the States to work, you may not be clear as to why any of this matters. It matters for many reasons, the most important being the fact that U.S. immigration law is complicated. 

For example, we mentioned H-1B visas earlier. The H-1B is one of the more common visas for workers entering the U.S. But it is not the only one. There are many, many others a worker can apply for depending on industry, skill sets, and the type of work being performed.

The U.S. also issues green cards to a certain number of immigrant workers every year. Obtaining a green card is an entirely different process with its own set of rules. Applying for a green card when you really need an H-B1 visa would lead you down a long road to nowhere.

Attorneys Know the Law

What this really boils down to is the fact that licensed immigration attorneys know the law. They know exactly what it takes to legally enter the U.S., work here, and stay for as long as possible. And throughout the application process, a licensed immigration attorney provides accurate and invaluable legal advice.

We recommend only working with licensed immigration attorneys. Skip the consultants and notaries. They have neither the knowledge nor the experience to deal with the complexities of immigration law. At best, they might be able to offer some minimal help in obtaining visa application documents. But any serious attempt to legally immigrate requires a lot more.

Please contact us with any questions at; (408) 715-7067.