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The American Immigration Council (AIC), a nonprofit immigration advocacy group, notes that other countries stand ready to embrace highly skilled foreign workers’ contributions, if the U.S. increases obstacles which prevent highly skilled workers from applying for and receiving U.S. work authorization.  While the current U.S. administration plans a major overhaul of the H-1B process, which will decrease the number of highly skilled foreign workers admitted to the U.S., other countries such as Canada are embracing highly skilled foreign workers.  The Canadian Government’s “Global Skills Strategy” program has promised a two week turn around on work permits for skilled foreign workers.

Talent is highly mobile and immigration contributes to “talent clusters.”  According to Harvard Business School professor William Kerr, the author of The Gift of Global Talent, talent clusters are areas where talented individuals tend to congregate, and these clusters form innovative places such as the Silicon Valley.

As the author indicates, immigrants contribute to the growth of these clusters.  For example, immigrants are responsible for one-quarter of all U.S. patents filed, and more than half of all U.S. workers with doctorates in science and engineering fields are immigrants.  As the U.S. restricts immigration, highly skilled foreign workers will likely find more welcoming talent clusters in other countries.

US Citizenship and Immigration Services has adopted new policy guidelines for adjudicating Function Manager visa petitions based upon a recent case ruling from the Administrative Appeals Office (AAO). The Immigration and Nationality Act (INA) provides both temporary (L-1A) and permanent (EB-1C) visa categories for multinational executives or managers. The INA recognizes two different types of managers that qualify in both categories: personnel managers, who supervise and control the work of personnel, and function managers, who manage an organizational function. The AAO clarified that, in order to establish that a beneficiary will be employed in a managerial capacity as a “function manager,” the petitioner must demonstrate that: 1) the function is a clearly defined activity; 2) the function is “essential,” i.e., core to the organization; 3) the beneficiary will primarily manage, as opposed to perform, the function; 4) the beneficiary will act at a senior level within the organizational hierarchy or with respect to the function managed; and 5) the beneficiary will exercise discretion over the function’s day-to-day operations. Persons interested in applying under this category should keep in mind they will need to furnish supporting evidence addressing these eligibility factors, such as organizational charts and letters from other company managers or executives detailing the “essential function,” including the impact that function has on the company and the authority the beneficiary has over that function.

Please contact us if you have any questions or need additional information.

The Justice Department cautioned employers filing H-1B petitions not to discriminate against U.S. workers. The warning came as the federal government began accepting employers’ H-1B visa petitions for the next fiscal year. The H-1B visa program allows companies in the United States to temporarily employ foreign workers in specialty occupations such as science and information technology. The antidiscrimination provision of the Immigration and Nationality Act (INA) generally prohibits employers from discriminating against U.S. workers because of their citizenship or national origin in hiring, firing and recruiting. Employers violate the INA if they have a discriminatory hiring preference that favors H-1B visa holders over U.S. workers. “U.S. workers should not be placed in a disfavored status, and the department is wholeheartedly committed to investigating and vigorously prosecuting these claims” said Acting Assistant Attorney General Tom Wheeler of the Civil Rights Division. Applicants or employees who believe they have been discriminated against based on their national origin, citizenship or immigration status can contact the Immigrant and Employee Rights Section. The IER can be reached via email at IER.usdoj.gov and via phone at 1-800-255-8155.

For further information: http://www.aila.org/infonet/doj-cautions-employers-seeking-h-1b-visas

As of May 5, 2014, USCIS will accept only the revised version of Form N-400 (Rev. 9/13/13), Application for Naturalization. USCIS will reject and return previous versions of the Form received after this date. Issued on February 4, 2014, the new version does not change the eligibility requirements. According to USCIS, the revisions are designed to allow the Service to more efficiently make eligibility determinations.

The revised Form N-400 includes:

(1) Additional questions surrounding good moral character and issues relating to U.S. security. These questions were formulated for compliance with the Intelligence Reform and Terrorism Prevention Act (2004) and Child Soldier Prevention Act (2008).

As of August 26, 2011, the USCIS has received approximately 32,200 Bachelor’s degree petitions and 16,700 U.S. Master’s degree petitions. The USCIS will continue to accept H-1B petitions for FY2012 until the quota of 65,000 Bachelor’s degree petitions and 20,000 U.S. Master’s degree petitions is met.

The Department of State has announced that the visa numbers for employment based green card applications have been exhausted for Fiscal Year 2011. The INA allocates at least 140,000 visa numbers for employment-based preference categories (i.e. EB-1. EB-2, EB-3, etc.) Each month the Department of States publishes a visa bulletin that provides a summary of the immigrant visa numbers available per month. The October visa bulletin can be found here: http://www.travel.state.gov/visa/bulletin/bulletin_5560.html. For each category that is oversubscribed, the Department of States establishes a cut-off date that is determined by the priority date of the first applicant who could not be allocated a visa number. Applicants who have a priority date earlier than the cut-off date are eligible to receive an immigrant visa number for that month. Applicants with priority dates later than the cut-off dates must continue to wait until his or her priority date becomes current. Because visa numbers have been exhausted for Fiscal Year 2011, employment based applicants with priority dates that meet the cut-off dates under the September visa bulletin will need to wait until the visa numbers under Fiscal Year 2012 are available on October 1, 2011. Thus, the USCIS and Department of State will be holding employment based green card cases that meet the cut-off dates based on the September 2011 visa bulletin and will resume issuing green card approvals or immigrant visas on October 1, 2011 when the Fiscal Year 2012 visa numbers are available. Please note that the USCIS will continue to accept adjustment of status applications for those individuals who meet the cut-off dates in September.

The new visa bulletin is out at this link: http://www.travel.state.gov/visa/bulletin/bulletin_5092.html. Employment-based categories are as follows: EB-1 remains current; EB-2 remains current, except for India and China which are at 2006; EB-3 is at 2004 for all countries, except for India (2002), China (2003), and EB-3 Mexico is currently unavailable; EB-3 other workers are at 2002; EB-4, religious workers, EB-5, and targeted employment areas and regional centers are all current. Family based petitions are backlogged, with the most recent date at 2009.

The Department of Homeland Security (DHS) has completed a report regarding unauthorized foreign nationals in the U.S. in 2009. In it, the DHS states that the unauthorized immigrant population decreased from 11.6 million (in January 2008) to 10.8 million (in January 2009). It also states that the unauthorized immigrant population grew 27% overall from 2000 to 2009. In addition, the DHS points out that of all unauthorized immigrants living in the U.S. in 2009, 63% entered before the year 2000 and 62% were from Mexico. To read the entire report, please see this link: http://www.dhs.gov/xlibrary/assets/statistics/publications/ois_ill_pe_2009.pdf.

On January 14, 2010, New York Attorney General Andrew Cuomo obtained a restraining order against The International Immigrants Foundation, preventing the organization from providing legal assistance on immigration matters. The organization’s President, Eduardo Juarez, is not an attorney, but has been advising on immigration matters for over 20 years. He routinely preyed on the immigration community with high fees and a monthly membership fee during pending immigration matters. Attorney General Cuomo is now working to find competent authorized representation for the ongoing immigration cases.

USCIS has launched an official blog titled, The Beacon, which is found at http://www.uscis.gov/blog. It provides information about various issues of interest and concern to the USCIS.