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Over the course of her career, Ms. Alice Yardum-Hunter has given many speeches and has published numerous articles to the lay and professional attorney reader alike. The writings and speeches published here and elsewhere are a sampling of her works.
These publications are made available for your personal edification, but are copyrighted and may be used or reprinted only with permission.
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Nonimmigrant Employment Visa Wave, Now a Low Tide
12/15/2003
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by Alice M. Yardum-Hunter
This article appeared in the January 2004 edition of Century City Lawyer, a monthly newsletter of the Century City Bar Association. |
Two nonimmigrant visa categories, the H-1 and the L-1 are currently under attack by Congress and the Executive Branch through the Department of Homeland Security.
The H-1B visa category is used by employers to hire aliens with a minimum of a bachelor’s degree (or equivalent experience) for positions that require a minimum of a bachelor’s degree. This category became the darling of the tech industry in the late 1990s when Congress decided to increase the number of new H-1 entrants annually from 65,000 in yearly increments up to 195,000. That all ended on October 1, 2003 when the numbers reverted back down to 65,000.
The big waves of H-1Bs have turned into a low tide because several rules have changed in addition to the lower numbers. Special rules for H-1B dependent employers, Department of Labor’s wide investigatory authority, and a $1,000.00 filing fee for training U.S. workers and enforcement of the H-1B program have also been eliminated.
Given the tension between the need mainly for highly technical engineers and computer professionals, and relatively high U.S. unemployment, the notion of raising the cap legislatively again soon is daunting. To get around this, the Senate Judiciary Committee, headed by Orrin Hatch (R-Utah) is considering adding to categories of aliens exempt from the H-1 cap. Those currently exempt include most H-1Bs who continue in this status. and initial H-1B who work for institutions of higher learning, certain research and governmental entities. Intel Corporation, in particular is pushing for an exemption for foreign graduates in technical fields, which are the bulk of H-1B visa holders today. Nearly half of all college students in U.S. technical programs are foreign students. To sweeten the deal, there is also discussion of adding back the $1,000.00 fee to train U.S. workers and to enforce the H-1B program that sunsetted on October 1, 2003.
Multinational corporations, hi-tech companies, trade organizations and immigration lawyers argue that without an H-1B program that responds to the needs of our economy, we will lose our competitive edge globally. Despite the obstacles posed by labor unions in the U.S., these groups are attempting to raise the cap to at least 100,000 annually.
There is good reason to again increase the cap early rather than to wait for another crisis like the one that precipitated the progressive raising of the cap from 65,000 up to 195,000. In the late 1990s the tech boom was ballooning, and the need for H-1s far exceeded the numbers available. This left aliens and their prospective U.S. employers in limbo for many months. When the numbers are exhausted for a fiscal year, it is necessary to wait until the following October 1 for visa issuance or status change. As a result, many aliens sat unproductive while their H-1 changes of status. were pending, or they became visitors or foreign students in other educational programs. Those who were abroad had to simply wait before entering the U.S. to work. But as with all lumbering bureaucracies, the U.S. Congress did not act when the need was most acute. They waited and increased the numbers at a point when they were not needed in such great numbers. Now that the economy is picking up, we could easily find ourselves in the same position. Efforts to avoid this happening again should be addressed. The antidote is for Congress to act more quickly this time.
Similar problems are facing the L-1, Intracompany Transfer category too. This category since 1970 has been instrumental in bringing managers, executives and specialized knowledge individuals of foreign entities to the U.S. to operate in new or existing ventures stateside. It results in business investment and job creation by large and small companies alike. Bad media publicity about misuse of the category by a few individual companies earlier this year could lead to the destruction of the chief way that foreign enterprises bring key people to the U.S. or how U.S. multinational companies bring their foreign critical personnel to the states.
Five bills have been introduced to amend the L-1 category this year. Only one of them would strengthen the category without creating more burdens. The restricitionist bills include provisions that: focus on U.S. worker displacement, use the many strict regulatory requirements that currently apply to the H-1 category, but even more so (limiting L-1 entrants to 35,000 annually for only a total of three years in the U.S., payment of prevailing wages, and a prerequisite involving recruitment of U.S. workers). These proposals do not respect the differences between visa categories, and ignore that the L-1 is for individuals who have knowledge and experience with the foreign company’s procedures and products, making irrelevant their ability in a broader U.S. marketplace.
If Congress limits unnecessarily the scope of the L-1 category, it will compress the distinctions between employment based immigration with a focus not on ingenuity and entrepreneurial spirit, but one that with a single focus on the protection of the U.S. worker. Other categories for workers who could adversely affect the U.S. workforce are already in place for this protection. The L-1 is a vital tool for U.S. companies that have an international presence, and international firms looking to expand their offices to the U.S. Both foreign investment in the U.S. and the work of international companies based in the U.S. would be impeded by such actions. All that is good about immigration, bringing the best, brightest and those willing to take risk would be lost in exchange for bland, robotic worker protection. This is not all our country needs.
At the same time as all this, the CIS (Citizenship and Immigration Services, formerly the Immigration or Naturalization Service or INS), part of the Department of Homeland Security, is issuing Requests for Evidence (RFE) in many H-1 and L-1 cases. Requests for Evidence are just that: after filing the case, the government wants more information and documentation on specific issues. Onerous RFEs are more prevalent today as a result of increasing immigration scrutiny since 9/11, though this phenomenon is relatively new, having grown dramatically over the past few months. There is a cloak of preventing terrorism in all immigration filings today.
We are in unsafe immigration waters. Tread very carefully.
*Alice Yardum-Hunter, with her office in Encino has been practicing immigration law exclusively for more than 20 years and a member of the American Immigration Lawyers Association throughout her career and served as a chapter Vic President. She is a former Commissioner to the State Bar of California’s Board of Legal Specialization. Ms. Hunter is a frequent speaker and writer
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