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Exclusive Q&A on Immigration Law with Anu Gupta

Posted: 24th June 2015 13:02
Have there been any recent regulatory changes or interesting developments in your jurisdiction?
There have been several in the past year, most of them detrimental to attracting a foreign work force. To use Massachusetts as an example, the new Governer, Charlie Baker has been trying to balance the $768 million budget deficit he inherited when he took office. One of his cuts is to the GER Program introduced by former Gov. Deval Patrick in 2014.
GER is the Global Entrepreneur in Residence Program. Former Mayer Patrick had proposed legislation which could bolster the number of H-1B visas the state is allotted as a means of attracting and retaining highly-skilled international students in Massachusetts post-graduation. The originally allotted $3 million was scaled down to $1 million due to budget constraints, then the new mayor, in early 2015 nixed the $1 million for the one-year pilot program. Instead he requested and received $100,000 in his FY16 budget. I havent seen the specifics of how the 100k will be used yet to attract foreign workers into Massachusetts.
What skilled occupations are most in demand in your jurisdiction?

Technology and health care seems to be leading the ranks across the board when we talk about job growth and sustenance in Massachusetts and the US at large. Workers with higher education and upper level skills have seen more growth than their lesser trained counterparts for the past decade and this trend seems to continue. At present, it is expected that 83% of all new non farm jobs will be in the health care and professional/technical sectors in Massachusetts. Similar trends are noticeable nationwide.

Health care workers, specially registered nurses, and software developers lead the group. Due to an increasing elderly population that is living longer, is monied, demands access to good health care, and a dearth of students wanting to work in the health care field, health care workers are in dire need. Technology, similary has expanded exponentially in the past few decades with computer programming entering all arenas of life from cell phones and tvs to kitchen appliances, railroads and infrastructures building, and the building of large national databases of pretty much everything. Not only is it entering all areas, the technologies themsevles are getting increasingly complex and sophisticated. This has lead to an increasing demand for qualified technology workers across diverse industries.

I expect that these two areas will increase the fastest and generate the most new jobs nationwide in the next decade.
Does working with expatriates from different nationalities create any unique challenges?
As an immigration attorney, let me set aside the cultural and linguistic expectations and respond by addressing the immigration challenges when hiring foreign born workers. One of the complaints in hiring foreign born workers is the complexity, uncertainty and delays in the US immigration process. 
US imports increasing numbers of scientists, technology and health care, and other highly educated workers. Irrespective of their education level or the immediacy of the employers need,  the first issue occurs when the employer makes the decision to hire from abroad. The employer expects that the visa process will add to his recruitment cost, but does not understand the challenges inherent in the visa process itself.
Choosing the right type of visa, timing of when the visa must be filed, any foreign travel during this time, all bear into the immigration timeline. For example an employer, or his worker may qualify for a H-1, H-2, L-1, J-1, B-1 or another visa type. Each of the visas has different timelines, fees and processes. The right type of visa must be chosen and the requirements met. 
I will use H-1B as an example since it is the most common work visa for workers with Bachelors or higher degrees. For this visa, employers must finalize their new hires before April 1st, for workers to be able to start in October. There is an annual cap of 65,000 for H-1B visas. In April 2015, when the quota opened for the next year (October 2015-September 2016), USCIS received almost  225,000 petitions in the first week.  If the employer is lucky and managed to get the case accepted through the USCIS’s random lottery, and later approved, the visa is only valid for 3 years and must be extended on time. In the meanwhile, if the employee travels, he/she will need to get it issued by the US Consulate overseas, which sometimes takes additional, unanticipated amounts of time.
How has the use of technology assisted with delivery of efficiencies in immigration services and information?

Technology has been a boon to an attorney’s office as well as with government’s handling matters. The USCIS, the primary agency issuing visas and work permits in the US has been attempting to digitize more of its tasks to streamline processes and increase efficiency. The Department of Labor in the earlier part of the last decade started accepting ETA 9089s (Labor Condition Application) online. This is a certification that is required prior to submitting a H-1b work visa to the USCIS. Previously it would take us several months to get the LCA approved, causing severe delays to filing of the work visa. Now, with the new DoL portal, we file online, a process that takes 15 minutes, and get an approval in 5 business days. Similarly, the USCIS has automated and now accepts several forms online. Supplemental documentation may be mailed in within 7 days. This works extremely well when the client has a visa that is expiring and filing date is critical to ensure continuity of legal stay.
The CIS has also automated and centralized their call centers. Any one who calls in is routed through the same system. Every officer, no matter which CIS office, has access to the same notes on the files. This makes getting responses better. They also have a case tracker on their website, which, though not always updated, does provide most of the recent information. Similarly CIS recently started allowing users to create accounts on their system. Anytime a case is worked upon, an email is sent to the user. Certainly makes for happier clients!
There are a myriad of technology enhancements that the Service has initiated in the past decade. Most are working well, providing faster updates, more accurate information, reducing the stress and uncertainty in the process.
What are the main challenges facing clients who are trying to move employees into your jurisdiction?
Post 9/11 laws seems to have been more restrictionist and repressive on the face of it. At the same time, the US is attracting increasing amounts of capital investments from foreign sources, especially from China and the far east.   During the Bush era, small and medium sized business with multi national presence still made viable profits. With stricter enforcement of international accounting and reporting laws (a US example is the FACTA, the IRS reporting-of-overseas-assets law and its start date in 2014), there is no noticeable increase in the number of existing businesses trying to enter the US market.
Procedurally, when a client tries to move its overseas employees into the US, the first issue is obtaining a visa authorizing them to work. We generally use H1 or L1 visas for international transfers, unless the employee has a Ph.D or is at a level that qualifies for a national interest waiver. L1A are only for qualified managers. L1B, used for other transferees, has come under a lot of scrutiny recently, with denials at a record high. H1 have an annual cap with the visa being needed to be filed in the first week of April. Even with timely filing, less than one third of the submissions were accepted this year.  (These are for new transfers only). As a direct repercussion of the attacks on 9/11, such already narrow laws are further constrained by the policy based memoranda and operational manuals that the Service publishes very routinely to advice its officers on how to adjudicate these visas. As an attorney, I try to hold “timeline meetings” with clients at least once every year to prepare them for the procedure before they finalize their annual international hires for the upcoming year. Visas are still issued, just need to be carefully planned and the timeline managed, so the process is seamless.
Also, the US has attracted record number of investments in the past decade. While the dollar remained weaker in comparison to other currencies for some of the time, investments in the US increased manifold. The EB5, the investor visa now attracts foreign investments from China and other countries. These investors buy US businesses, invest a certain amount, over 1 million USD and obtain a green card. The investment is tied into the business for a certain number of years. They generally transfer their family members or employees to oversee the funds.
In an ideal world what would you like to see implemented or changed?
Interesting question for an immigration attorney!  As an American I would like to see comprehensive immigration reform. My version is where we let market conditions dictate our immigration policies. Why should someone from Haiti or Cuba be so desperate that they sit astride a little wooden raft and set sail on a wide ocean to reach us? Or a Brazilian or Mexican mother pays everything she owns and hands over her 8 year old to the goodwill of smugglers to bring the child to the US. Starting with Arizona’s recent statutues, we have made the arriving poor into criminals in our country. Not an ideal policy for a country that was carved out by people escaping political and religious persecution only a few centuries ago.
In a perfect world, the needs of the market should dictate who enters our borders and how long they are permitted to stay. Leaving aside the humanitarian issues, we are a nation build on capitalism. If there is an urgent need for nurses (there always has been for the past 10 years), and Philippines has a great supply, I suggest the US hospital be allowed to get the sponsored worker now. In our current system of quotas, in the many years it takes for the petition to be approved, the hospital’s needs change, rendering the whole process a costly waste. Eventually when the higher pay leads to more graduates from our own nursing programs, the demand for overseas hires will cease by itself. Removal of quotas or creating separate catgories for other workers - technology workers, entrepreneurs, scientists, doctors- would make the process more equitable and support our industries better leading to more economic growth.
Canada and Australia have a point system. While not perfect, the countries have decided what values, groups, age, education level, they hold in higher esteem than others and have formulated a system based on these values. A doctor with 5 years of experience and a college educated spouse gets in faster than an unskilled single worker.
In an ideal world, I suggest the US immigration system be re-written to mirror market realities, instead of us trying piecemeal legislations that solve one issue and create others.

Anu Gupta founded Immigration Desk in 1999 after moving to Silicon Valley from New York. She focused her efforts solely on immigration services. Her practice grew with her immensely popular immigration advice column in India Post, one of the largest read Indian newspapers in the United States. She wrote the legal column as a free community service for people with immigration questions.  When time permitted, she also wrote similar guest columns for several other publications. She then collaborated with (ThinkIndia), one of India’s largest search engine/portal, to design its immigration channel. Her popular immigration Q&A section on Rediff’s immigration channel received well over 100,000 hits each week.


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