Immigration Concerns and Strategies for Computer Professionals

Leading immigration attorney Carl Shusterman recently hosted our chat on immigration concerns and strategies for computer professionals. If you missed the chat itself, you are in luck: here is the transcript:

Expert Chat for Computer Professionals with Carl Shusterman, Esq.

Jennifer Wipf:    Hi everyone! This is Jennifer Wipf, your Sr. Editor of Cultures, Immigration & Globalization at Born Abroad.

Please join me Please join me Carl Shusterman, Esq. , our expert guest this evening for our chat for computer professionals. He is on the line with me now. I will take read him the questions and then transcribe his answers to you.

At this time let me also remind you that these questions and answers are of a general nature and nothing herein should be construed as legal advice.

OK, let's get started.

Welcome Carl!

Carl Shusterman:  Hello!

Question #1 -   What is the inside scoop on the H-1B over count for FY99?

Carl Shusterman:   The INS has hired the consulting firm of KPMG to audit the count for FY99. The report is due at the end of January. However, Senator Abraham has already criticized the INS methodology in counting H-1B approvals. See:

http://shusterman.com/toc-h1b.html

Jennifer Wipf: Great. I think everyone will be interested in that. Here's another question:

Question #2   - How strict are the qualifications for computer science degrees for a TN visa?

Carl Shusterman:  Under the NAFTA agreement, Computer Systems Analysts are permitted to enter the United States in Trade NAFTA (TN) status as long as they have a Bachelor's degree in computer science or a related subject, or a post secondary diploma or post secondary certificate and three years of computer experience on a professional level. See:

http://shusterman.com/canada.html

Jennifer Wipf:  That should be helpful. Here is another question:

Question #3:   My husband's H-1B petition was sent to INS on December 30th, 1999. Do you think it's possible for it to be processed within this fiscal year?

Carl Shusterman:   Yes, all of the INS offices are processing H-1B petitions within 30 - 60 days. See:

http://shusterman.com/toc-sc.html,

therefore I would expect your husband's petition to be adjudicated before the end of February, 2000.

Question #4:   What are some of the unique H-1B visa problems facing computer professionals?

Jennifer Wipf:  Now there's a simple one.

   :-O

Carl Shusterman:   The bulk of the H-1B category is made up of persons employed in the information technology area. Many mergers and acquisitions are currently taking place in this area.

For example, consider today's announcement that AOL and Time Warner are merging. An H-1B employee who is currently working for one of these two companies would still be able to immigrate based on his approved labor certification and approved visa petition because AOL Time Warner is the "successor in interest" to the two companies. However, sometimes it's not so easy. For example, many Internet start-up companies have gone bankrupt or have been acquired in part by a larger company.

It is not always possible to apply the successor in interest analysis to such situations.

There are also firms in the IT industry which are based in a number of   countries besides the United States, making it easy for them to transfer an H-1B employee whose 6 years are about to elapse to one of their foreign branches for a year and then return them to the United States.

Question #5:   I have been on a L visa for 4 years, does this time apply to the H-1B limit?

Carl Shusterman:   Definitely. Since you were on an L visa for 4 years,you may only remain in the United States on H-1B status for two years.

Question #6: How important do you think it is going to be to have a higher degree instead of just a bachelor's?

Carl Shusterman: Very! So far, the number of H-1Bs have nearly doubled in 1998 and promise to increase again in the year 2000. However, the number of slots available for achieving permanent residence through the Employment Based (EB) categories have not increased at all. In fact, due to bureaucratic glitches, about 500,000 immigrant visas have been lost during the past three years. Because of this and restrictive country quotas that permit less than 10,000 persons to immigrate under the EB categories from one country in a single year,  demand for a green card far exceeds the supply.

Not only that, but each time the H-1B cap is raised, the imbalance becomes that much greater. The best category to be in is EB1, since there are usually many unused visas in this category.

These unused visas initially drop down to the EB2 category which results in shorter backlogs for the EB2 category than for the EB3 category.

I am afraid that unless the law is changed to increase the amount of employment based green cards, it will become impossible to obtain permanent residence as an EB3 during the six years allotted to an H-1B visa holder.

Jennifer Wipf: Well that's worrisome :(

Here is another question:

Question #7:  Does I-485 gets processed as of the day I-140 was cleared or based on the receipt of I-485?

Carl Shusterman:  I-485 processing begins on the day that I-485 is received by the INS.

Question # 8: Hi Carl, My LC was filed in Oct. 1998 in EB2 by non- RIR. May I file my second LC by RIR while keeping my previous one? If yes, how? And can you do it for me?

Carl Shusterman: The Labor Department's current position is that an employer may not file more than one labor certification for one individual simultaneously.

Therefore, if you wish to file a new labor certification, you must first withdraw the initial application. As a matter of strategy our law firm often does the six month recruitment required for RIR labor certifications while the initial labor certification submitted by the company remains pending. If the original labor certification is not approved by the end of the six month period, we withdraw the first labor certification and simultaneously submit the RIR labor certification.

Typically, RIR labor certifications are approved in any where from a few weeks to a few months. See:

http://shusterman.com/labortimes.html

Jennifer Wipf:  OK, I see lots of questions here, but I am really looking for those most related to the computer industry for now. :-)

Question #9:  Could you explain the difference between EB1, EB2 and EB3?

Carl Shusterman:   EB-1 can be subdivided into 3 categories:

1) persons of extraordinary ability

2) outstanding professors and researchers

and

3) multi-national executives and managers

A labor certification is never required for someone who qualifies for EB-1.

EB 2 is divided into two subcategories.

1) Persons of exceptional ability

and

2) persons with advanced degrees.

Persons in the EB2 category are subject to the labor certification requirement unless they qualify for a National Interest Waiver.

Persons in the EB3 category consist of  professionals with Bachelor's degrees, skilled workers, and unskilled workers.

EB3 workers are almost always subject to the labor certification requirement although some workers in shortage occupations like registered nurses and physical therapists are granted blanket  labor certifications.

Computer professionals are not included in the list of shortage occupations but probably should be.

Jennifer Wipf: I am taking as many questions as possible. Please keep them computer-professional related :)

Here's another:

Question #10:  I am computer professional and my Current H1-B visa expires in FEB and I have two more years for 6 year cap - I have EAD, must I renew H1B?

Carl Shusterman: Under INS regulations issued in June 1999, when a person applies for AOS, they must make a choice between remaining in H or L status OR obtaining an Employment Authorization Document (EAD) and Advance Parole.

Since you already have an EAD you have made this choice and do not need to renew your H-1B visa. However, the regulations are a bit unclear as to when the choice is actually made When the EAD is applied for, when the EAD is obtained or when the EAD is used to work for a company other than the petitioning employer?

Hopefully, the INS will clarify this issue when final regulations are published.

See the regulations at:

http://shusterman.com/hcap99regs.html.

Jennifer Wipf:   A good resource. OK, here is another question:

Question #11: I am a computer professional, What are my options if the company terminates the employment after filing I-485 and got a work permit for both myself and spouse?

Carl Shusterman:  The first thing that you should do is to find a new employer who is willing to petition you for permanent residence. Use your EAD to begin working
immediately, have the employer submit an RIR labor certification, a visa petition and an application for Adjustment of Status. If your EAD expires before the second application for adjustment of status is submitted, have your new employer submit an H-1B petition on your behalf.

You can leave the country, obtain a new H-1B visa and return to the US using the new visa. Incidentally, you will be entitled to retain your initial priority date.

Jennifer Wipf:  :)

Carl Shusterman:    I have an Announcement: HOT OFF THE PRESS. Jennifer, during this chat, I just received an e-mail message from someone in Washington, DC obviously working late into the night.

It is related to the latest information on legislation to increase the H-1B cap. I will detail this on my web page in the next few days.

However, I can give you an outline of the new proposal right now:

The Senate judiciary committee staff indicates that Senators Hatch and Abraham plan to move a bill through the judiciary committee in February and prepare for a Senate vote by early spring. The bill would provide 40,000 - 50,000 H1B numbers in addition to the existing 115,000 during this fiscal year and the next.

Also, the bill would exempt the following visas from the cap:

Visas for persons working for higher
education institutions and affiliated research and non-profit organizations. The message also states that the per country limitation would be lifted. Since there is no per country limitation for H-1B visas. I am assuming that this would eliminate the country quotas for EB immigrant visas. This would be a tremendous boon to H-1B visa holders from India and China, the two countries most affected by the per country limitation.

A State Department Official announced several days ago that EB2 and EB3 numbers for India would begin to backlog once again in the beginning in March 1999. This bill would alleviate this problem.

Jennifer Wipf:  Unfortunately, it is time for Mr. Shusterman to say good night. You can feel free to stay in the room with us, perhaps chat with others who may have had the same experiences that you have. :-)

Many thanks are streaming across the screen Carl. Everyone appreciates these chats.

Carl Shusterman:  It's been a pleasure answering your questions and remember we will be having another chat on January 24th relating to the new physician law

Good night : )

Jennifer Wipf:   Goodnight, and see you next time!

Remember to follow-up with these popular and informative links:

High Tech Job Search, compiled by Carl Shusterman, Esq.

The H-1B Page, also courtesy of Carl Shusterman, Esq.

Technical Job Search from Born Abroad guide J. Steven Niznik.

Immigration Articles & Chat Transcripts from the guides to this site, Peter and Jennifer Wipf.

Daily Immigration News compiled by your editors.

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© Peter and Jennifer Wipf 1999-2005.  All rights reserved. No duplication without explicit written permission.