Nearly all immigration-based employment begins with a temporary visa. The most common, and most publicized, temporary visa is the H-1B. This type of visa is reserved for jobs that require a bachelors degree or higher. Annually, there are 65,000 H-1B’s available. When the economy is good, these visas can be used up within a week. In the most recent years, the visas have lasted through December and even into the new year.

Hiring an H-1B is a simple process. The most common scenario involves hiring a new employee who is already in the U.S. on an H-1B. In this case, the employer simply needs to transfer the H-1B visa from the old employer. This can be accomplished within two weeks, which coordinates well with the typical two-week notice. To transfer the visa, an employer needs to file a Labor Condition Application (LCA) with the Department of Labor (DOL) asking the DOL to certify the position being offered as proper for an H-1B employee. Once filed, the LCA takes five to seven business days to certify. Once certified, the LCA gets filed with the H-1B petition and other forms. The moment the full packet of documents gets placed in a mailbox or is picked up by an overnight carrier, the employee can begin working for the new employer. United States Citizenship and Immigration Services (USCIS) is currently taking about four months to review these applications, but, the employee can start with the new employer upon mailing and does not have to wait for USCIS to finish reviewing the H-1B packet.
The only difference between transferring an H-1B and hiring a new H-1B is in the timing. When an employee is beginning their first H-1B, they must wait until USCIS approves the H-1B petition. However, there is a way to significantly reduce the time USCIS takes to do this. A process called “Premium Processing” is available for an additional fee. When an employer files a petition requesting Premium Processing, USCIS is required to adjudicate the petition within fifteen calendar days. Therefore, , a new employee can obtain an H-1B within two to four weeks.

The cost of the H-1B process is a reasonable one. An employer seeking to hire an H-1B employee can transfer or get a new H-1B visa issued for under $5,000, unless there are extenuating circumstances, which includes attorney’s fees. The costs go up slightly for Premium Processing. Importantly, the employer is required to bear the entire cost of the visa. Moreover, the cost paid to obtain the visa cannot be used to reduce the employee’s salary.

The H-1B is available to employees for a total of six years. Therefore, if an employer hires someone who has been in the U.S. on an H-1B for four years, the employer needs to be aware that the employee only has two years of H-1B status left.  The employer can extend the six-years of H-1B status by sponsoring the employee for a green card. The employee is permitted to stay on an H-1B visa beyond the six year period while the green card is in progress, which can take anywhere from one to twelve years.

Hiring a foreign national can be a stress-free process. Because the H-1B is a temporary visa, USCIS generally does not give petitions the level of scrutiny that they give applications for permanent visas. The costs are bearable for almost any employer and the time frame for hiring an H-1B employee is short. When the “right” candidate requires sponsorship, hiring them should not pose a burden on employers.

From the US government’s Department of Homeland Security the latest figures show that 1,062,040 people obtained their ‘green cards’ popularly known as lawful permanent residence in the USA last year, 2011.

Of these, 90,712 came from Europe. 13,443 came from the UK with a further 1,533 coming from the Republic of Ireland. The UK was the European country with the most new green card holders. Twice as many came from the UK than from Germany, which came second out of the European Countries.

32,728 Australians and 12,495 New Zealanders as well as 19,506 Canadians also gained permanent residence status. 438,580 Asian citizens also gained US permanent resident status in 2011. Of these, 66,331 came from India. More Indians gained green cards than citizens of any other Asian country apart from China.

California was the most popular state for those who gained green cards. About 210,000 of the new permanent residents reside there. 150,000 live in New York and around 110,000 in Florida. 95,000 are settled in Texas.

Nearly 700,000 of the new permanent residents qualified as family members of US citizens while 140,000 (about 13%) qualified based on employment based immigration.

Into five categories these can be broken down
1. First are the priority workers 25,251 in number
2. Advanced degrees or exceptional ability professionals with 66,831 workers
3. Third are skilled workers, professionals and unskilled workers 37,216 in number
4. 6,701 as’ Special immigrants’
5. Like EB-5 Employment creation investors 3,340 in number

There were also 55,000 who were granted permanent residency through the Green Card Lottery. The rest were largely refugees and asylum seekers.

With regards to US visas, according to the statistics recently released by United States Department of Homeland Security, a remarkable story of the rise of India as a business power in the US and in the world at large is evident. It shows Indian citizens gaining more visas in certain categories than the citizens of any other nation on earth. Only seven years ago, the story was rather different.

665,202 Indians were granted visas to visit the US in 2005. Of these, 376,156 visited on B1/B2 visas. B1 visas are granted for business travelers while B2 visas are granted for the purpose of tourism. B1 visa holders are entitled to take part in business meetings but not to undertake paid work. It is usual practice for US consulates to grant a combined B1/B2 visa valid for both business and pleasure. They are generally valid for six months though they can be extended.

According to US Department of Homeland Security as of 2005 US had granted to Indian citizens 376,156 B1/B2 and 194,611 temporary worker visas and it totals to 665,202. Comparatively in 2011, 762,575 B1/B2 and 318,955 temporary worker visas, total of 1,222,902 visas were issued.

In addition, in 2005, 61,408 Indian students were granted visas to study in US educational institutions. Almost all of the temporary visas were either H-1B ‘specialty occupation’ visas or L1 intra company transfer visas. In 2011, 96,828 Indian students went to US educational establishments.

147,920 Indians were granted H-1B visas in 2011. H-1B visas are granted to foreign graduates working in specialty occupations’ that require specialized knowledge. H-1B visas normally last, initially for three years.

There is a cap on the number of H-1B visas granted annually of about 65,000. However, H-1B visa holders can also bring their immediate families with them. This explains why the number of visas granted exceeds the cap. The citizens of no other country in the world were granted so many H-1B visas. Canada came in second place with 88,000. Chinese citizens received only 23,700 and UK citizens only 19,300.

Indian citizens also received more L1 intra- company transfer visas than any other nation’s citizens. It received 64,482 in 2011 compared to Mexicans who received 62,000 and the 45,400 granted to Japanese citizens.

L1 visas allow firms with offices both in the US and elsewhere to bring senior managers (with an L1-A visa) or staff with ‘specialized knowledge’ (L1-B visa) to work in the US.

However, this success has come at a price. Last year, figures show, Indian citizens also now suffer the highest visa refusal rates. Last year, 26.8% of applications from Indian citizens for B category visas were refused. There have also been a growing number of refusals for Indians applying in other, temporary work visa categories.

Asaf Darash is exactly the type of entrepreneur we should be trying to recruit. Instead, the United States is kicking him out.

AILA reports that 17,000 cap-subject H-1B petitions filed between April and mid-June with the California Service Center and the Vermont Service Center remain unadjudicated. This represents nearly 20% of the petitions filed by U.S. employers for foreign high-skilled employees, thousands of whom have been left in limbo for up to 5 months.

 AILA also reports that requests to speed up processing of the backlog of H-1B petitions have been refused, with USCIS stating that faster results will only be given to businesses that request Premium Processing, a service that costs an additional $1225.

Given that many of the businesses that sponsor employees through H-1B visas are small businesses, not only does USCIS’s sluggishness impose a financial burden – by seemingly forcing employers to pay for Premium Processing – it also hinders their ability to develop and grow.  And how long before the would-be beneficiaries take their talents to a country that is more eager to accept them? 

That didn’t mean, though, that interest in raising the H-1B cap went away for everyone.

New York City Mayor Bloomberg, for instance, last year called the limits on both temporary and permanent employment-based immigration a “form of national suicide.”

Microsoft has long advocated for more work visas. But the company’s advocacy was quieted during the recession as well, as it announced in 2009 a layoff of 5,000 workers.

Circumstances at Microsoft have since changed for the better.

Microsoft said Thursday that it has some 6,000 open positions in the U.S., and is creating new jobs faster than it can fill them. The company is now using its own workforce needs to make a case for a new type of H-1B visa as well as a permanent employment visa.

In prepared remarks delivered at the Brookings Institution here yesterday, Brad Smith, Microsoft’s general counsel and executive vice president, presented a plan to add 20,000 H-1B visas and an equal number of STEM visa green cards to help companies get qualified workers.

What may make this plan novel is a proposal to require that companies pay the government $10,000 for H-1B visas in a new “supplemental category,” and $15,000 for STEM green card visas.

Microsoft is recommending that Congress invest the money paid for the visas — estimated at up to $500 million year — in Science, Technology, Engineering and Math, or STEM, education programs.

The company presented a paper with recommendations on improving STEM training.

Microsoft says the 6,000 open jobs it has in the U.S is an increase of 15% over the number open last year, and that over 3,400 of those jobs are for researchers, developers and engineers.

“Our nation faces the paradox of a crisis in unemployment at the same time that many companies cannot fill the jobs they have to offer,” Smith said.

He warned that if the positions can’t be filled locally “we risk these jobs migrating from the U.S., creating even bigger challenges for our long-term competitiveness and economic growth.”

Smith said Microsoft spends 83% of its R&D budget in the U.S. today.

It isn’t clear whether Microsoft’s proposed $10,000 fee will replace any existing charges applied to an H-1B visa.

The visa already has a variety of fees, including a $325 base filing fee, plus a $1,500 fee for employers with 26 or more full-time employees. There is a $500 fraud detection fee, and a $1,225 premium processing fee for expedited processing.

In 2010, Congress added a $2,000 fee on top of these charges for any company that has more than half of its workforce on H-1B or L-1 visas. This fee was aimed at offshore outsourcing firms.

The H-1B visa cap is currently at 85,000, which includes 20,000 visas set aside for advanced degree graduates of U.S. universities.

The U.S. begins accepting H-1B petitions on April 1 for the next fiscal year.

In April of 2008, still months before the collapse of Lehman Brothers in September that year, the U.S. exhausted the visas within one week. But after the recession, demand slowed. In 2011, it took 10 months to use up the visas. But for fiscal year 2013, which begins Oct. 1, the visa cap was reached in one month.

Microsoft is introducing the visa plan by itself, and will likely get support from some groups that advocate on skills immigration issue. But whether it goes anywhere with lawmakers that may be left until next year.

There is a lot of support in Congress to expand the green card program for foreign students that earn advanced degrees.

Microsoft is the leading U.S. employer of workers on H-1B visas, and the company says it’s having trouble finding qualified workers to fill open jobs as researchers, engineers, and developers, with more than 6,000 unfilled positions.  The company hopes that the promise of an additional $200 million in potential education funding per year generated by $10,000 per-visa fees will motivate Congress to look past partisan squabbles over immigration reform and pass a bill that targets the highly skilled workers that are in demand by U.S. companies.

 

It is clear that we need to re-frame the debate on this issue and remind ourselves of our collective history that was built on the “backs and brains” of immigrants who were passionate about contributing to the success of this country.  What has made us uniquely American is our history of embracing people from other nations who have something to contribute to making this country successful.  Without a return to a culture that understands the need for great talent regardless of a person’s country of origin, we will continue to send some of the best and brightest home to compete against us.

 

Applicants for temporary employment of foreign professionals may qualify for other visa categories too including TN visa category. Since these categories offer more flexibility in the type of job that can be performed as well as Green Card sponsorship for the foreign national employers may want to consider these. Workers who either don’t qualify for TN visas since they are not Canadian or Mexican citizens or their professional is not on the NAFTA list can opt for alternate visa categories. E-1, E-2, H-1B, L-1A, L-1B, and O-1 are the other visa categories appropriate for professional workers.

1. E-1: Citizens of a country with which the U.S. has a treaty of friendship, commerce, or navigation, and who is coming to the U.S. to engage in substantial trade between the U.S. and the foreign national’s country of nationality, can make use of this work visa type. When the trading activities with the U.S. comprise more than 50% of total business volume in the U.S. and that there is a continued course of international trade it means there is substantial trade. The U.S. consulate website provides information about the qualifying countries.
2. E-2: Citizens of a country with which the U.S. has a bilateral investment treaty or agreement, who is coming to the U.S. to direct and develop the operations of an enterprise in which he or she has invested or is in the process of investing substantially, can make use of the E-2 work visa type. The one in which personal funds or assets are put at risk in a real operating enterprise, which generates services or goods qualifies for a substantial investment. The U.S. consulate website provides information about the qualifying countries.
3. H-1B: Qualified specialty foreign nationals coming to the U.S. to work in specialty occupations can use H-1B work visa. Job requiring a bachelor’s degree or equivalent is a specialty occupation. Prevailing wage rates in the market must be paid by H-1B employers for the job after getting approved by the Department of Labor before an H-1B peti­tion can be filed using INS forms with the USCIS. Being a more general visa category for professional workers it has historically been in high demand, with visa numbers, annual limit being 65,000, running out long before the end of the year.
4. L-1A and L-1B: TheL-1 visa for intra-company Transferees can be used by overseas companies that have or wish to establish U.S. offices that may need to transfer executive, mana­gerial, or specialized personnel to the U.S and enable these key employees to be posted temporarily at the U.S. parent, subsidiary, affiliate, or branch office. The foreign professional must have worked for the company , within the three years prior to coming to the U.S, for at least one (1) year in an executive or managerial position, or a position requiring specialized knowledge and continue in one of the three positions in U.S. A parent/subsidiary like qualifying relationship must exist between the U.S. and foreign in order to qualify to sponsor an intra-company employee in this category.
5. O-1: The extraordinary ability in the education, sciences, arts, business, or athletics field possessed by foreign nationals and who are coming temporarily to the U.S. to continue work in their area of extraordinary ability can make use of the O-1 work visa.  A high level of expertise achieved by the foreign national such that he or she is one of a small percentage at the top of his or her field qualifies for this visa. Substantially above the normal degree of skill and recognition is expected from artists and entertainers. Evidence of sustained national or international acclaim must be demonstrated by an O-1 applicant.

The workers with E-1, E-2, H-1B, L-1A, L-1B, and O-1 work visas can be sponsored through employer for green card and so they can further file for adjustment of status when the visa becomes available.

The US is still the destination of choice for many of the world’s brightest, hardest working, most creative and entrepreneurial individuals.  Our universities continue to recruit and educate the leaders and job creators of tomorrow.  And America’s economy is still the friendliest in the world to start a new business or launch a new product.  In the global war for talent, the US has every advantage except one: its immigration laws.

 

To avoid this reputational harm Fersht says CIOs should push outsourcers to ensure that workers brought into the office are on the correct visa.  “They’ve got every right to validate the immigration status of every employee sitting in their office.”

One of the most contentious issues in the skilled-immigrant debate is the H-1B visa, which allows qualified immigrants to work for U.S. tech companies on a temporary basis. Proponents of raising the H-1B visa cap say the nation faces a dire shortage of engineering talent and needs more of these visas to stay competitive. Detractors insist that there is no engineer shortage and that America should close its doors to foreigners because they take jobs away from citizens. Battles break out in Capitol Hill over the number of visas allocated because there are no hard data to back either side.

A July 18 report by The Brookings Institution, titled “The Search for Skills,” provides these data.

The report analyzes the demand for H-1B workers at the metropolitan level, region by region. It finds there is no national shortage or glut of skilled workers and that supply and demand vary by region. The report determines that demand for H-1B’s is highest in tech centers such as New York, Silicon Valley (San Francisco and San Jose), Los Angeles, Washington, D.C., Virginia, Chicago, and Boston. Not coincidentally, these places are among those with the lowest unemployment rates for bachelor’s-degree holders. It’s the same in regions that house America’s research centers. Places such as Columbus, Ind., where engine manufacturer Cummins is based, and Rochester, Minn., home of medical giant Mayo Clinic, are among the regions with the highest demand for H-1Bs and lowest unemployment rates for bachelor’s degree holders (3 percent in Columbus and 1.5 percent in Rochester for 2010). In other words, where there is demand for skilled workers, there is also the most innovation economic growth, whether they come from the U.S. or abroad.

Report authors, Neil Ruiz, Jill Wilson, and Shyamali Choudhury, concluded that the government could be stifling innovation by limiting H-1B visas and not taking into account local demand for highly-skilled workers. Demand for these visas has far exceeded supply nearly every year for the last decade. Additionally, the government has been indirectly taxing U.S. R&D and innovation by imposing hefty visa fees, which range from $1,575 to $4,325 depending on employer size — plus $1,225 for expedited (read: timely) processing, according to the report.

The visa fees are meant to fund training for American workers and for science, technology, engineering and mathematics education. But, according to Brookings, that’s not how the majority of this money is spent. The metro areas most in need of skilled workers receive the least funding. The average funding per working-age person in high demand areas is a little over $3. But Wichita, Kan., for example, receives nearly $23 per worker. Portland, Maine gets roughly $21, and El Paso, Tex. about $15. These are hardly booming tech centers with severe shortages of engineering talent. And research centers fare even worse: Columbus and Rochester both receive no funds from the H1-B grant program.

One would expect that such conclusive data would put the debate to rest. But this isn’t the case, as was evidenced by the heated discussion that ensued between Vice President Joe Biden’s former economic advisor Jared Bernstein and me. Brookings requested we review the report and comment on it at a public event on July 18. You can watch the video of our H-1B conversation here.

Bernstein, who is now a senior fellow at the Center on Budget and Policy Priorities, agreed that high-skilled immigration is important for the economy. He was right in stating that the H-1B program is flawed because it ties the employee to the employer. There is a massive backlog for permanent-resident visas and the wait times, for most workers, stretch beyond a decade. While they wait, these immigrants cannot change jobs without losing their turn in line and, if they get laid off for any reason, they are required to leave the country immediately. So, these workers are trapped in limbo—their careers stagnate, they usually make less than what they would if they were allowed to shop around for better jobs, and they can’t become entrepreneurs.

But, like many people outside the research and tech centers, Bernstein showed a lack of understanding of the innovation process and global competitiveness. He questioned the need for employers to hire foreign workers in the first place. He said that we should “not confuse H-1B demand with labor demand,” because “the H-1B is kind of scratching an itch that isn’t even there.”

And he went on, likening visas to “subsidies” for industry, and argued that these were just a way of lowering industry salaries, therefore the government needed to step in. “It’s a horrifying thought,” Bernstein said, “but wages should go up. Wages should adjust upward when there is a demand, a shortage. “The idea would be to have a real labor market test,” Bernstein continued later, “and to have some mechanism to avoid this downward pressure on wages.”

But if Bernstein spent any time talking to Silicon Valley executives or reading tech blogs like TechCrunch, he would learn that wages are indeed going up and that there is, in fact, a war for talent. These are already some of the highest paying jobs in the country—with salaries commonly in the six figures. Our immigration policies are strangling the innovation sector.

During the event, I explained these difficulties, outlining that money was not an issue for companies such as Google and Facebook. Instead, competitiveness, speed-to-market and getting the best and the brightest were at the core of the problem. Additionally, the bluest of American companies, such as Cummins are getting the majority of their revenue from abroad. They need to hire a diverse set of workers that understand global markets. America, today, graduates only 4 percent of the world’s undergraduate engineering pool. Forcing American companies to hire only from this pool would greatly restrict their competitiveness.

Compare it to limiting the NFL’s recruitment to one state.

I explained that the tech world thrives on competition, which is why America leads the world in innovation. Indeed, 52 percent of Silicon Valley startups are founded by immigrants. Protectionism will weaken the tech industry.

But Bernstein repeatedly mentioned the need for a “labor market test” and advocated a government commission to regulate how many skilled immigrants American companies could hire, saying, “The problem is there is not a standard — a work test … and I think there should be.”

His prescriptions were flawed. Even the moderator, NPR Ombudsman Edward Schumacher-Matos stepped in to say, “There are so many studies that it’s probably impossible to develop a good standard, particularly one that’s timely.” He floated the idea that, perhaps, the government commission Bernstein advocated for could be considered “un-American,” going on to say, “It sort of … smacks of central planning.”

I likened it to Cuba.

The dark side of the debate also surfaced with a tirade against Indian companies such as TCS, Infosys, and Wipro, and, of course, outsourcing. These companies use 12 percent of the H-1B visa pool for their operations in the U.S., but are the focus of the anti-H-1B debate as if they were the sole recipients.

Like our political leaders do in election years, Bernstein tried to steer the debate into protectionist banter. “I think that there have been some linkages made between that,” said Bernstein of companies based in India that apply for H-1B visas while outsourcing jobs, “and then offshoring back to the home country. And I think that that is a matter of concern.”

This is the sad state of our competitiveness debate: anger, protectionism, and emotion are trumping logic, data, and common sense.

Vivek Wadhwa is a fellow at the Rock Center for Corporate Governance at Stanford University and is affiliated with several other universities. Read more about Vivek Wadhwa’s affiliations.

This story originally appeared on WashingtonPost.com.

P-D:

More high-skilled immigrants could boost St. Louis’ economy

(snip)

For some folks, the response is “So what? Hire an American!”

That’s not so simple. The H-1B program is designed for skilled occupations where workers are in short supply, such as computer scientists, biologists and engineers. The U.S. unemployment rate for all workers with college degrees is just 4.1 percent, and it’s much lower in scientific fields.

Hint:  A native born white American with a degree in STEM but making a living delivering pizzas is counted as “employed.”

Moreover, Paral says, the type of worker who arrives on an H-1B visa comes with a large multiplier effect. A top researcher might need a half-dozen assistants, and none of those jobs get created if the scientist stays in his or her home country.

The same multiplier effect happens if you hire a NBWA or an H-1B.

This discrimination is economically senseless and unjust, and Congress has finally realized it.  Unfortunately, Sen. Grassley, who had placed a “hold” on the bill, decided to allow it to move forward not for noble reasons, but rather because Sen. Schumer, Chairman of the Immigration Subcommittee, signed on to an “agreement to include provisions that give greater authority to program overseers to investigate visa fraud and abuse.”  This would expand the Department of Labor’s (DOL) powers to harass businesses that employ highly skilled immigrants.

 

If it happens in Kansas City, then it’s happening in a lot of other major metropolitan areas.

Yet, according to the Brookings Institute, there aren’t enough H-1Bs.

This article says something that I didn’t know, that academic institutions aren’t subject to H-1B caps, which means they can sponsor as many H-1Bs as they want.  Native born white Americans can forget about the tenure track, I guess.

This study aims to provide state and metropolitan leaders in government, business, education, and workforce development with the information they need to respond to regional skills deficits.  In turn, these leaders will be better equipped to work with the federal government to address changes to immigration and education policy so that the United States and its metro areas can build and maintain a globally competitive skills base.

English: ‘USCIS To Issue Redesigned Green Card’ (Photo credit: Wikipedia)

QUESTION: I am a Canadian citizen who is in the U.S. in TN nonimmigrant status. My wife and oldest daughter are here in TD nonimmigrant status as my dependants. My wife and I recently had another daughter, who was born here in the U.S. and is a U.S. citizen. Can my family and I get green cards based upon the fact that we have a U.S. citizen child?

THE IMMIGRATION ANSWER MAN- ARI SAUER: No. A U.S. citizen can petition for their parents to become Permanent Residents (green card holder), but they must be 21 years old to do so. A U.S. citizen must be 18 years old to petition for a sibling. So you cannot receive a green card by virtue of having a U.S. citizen child who is a minor. If you become ineligible to maintain your TN status, and are unable to change or adjust to another status, you and your family will have to return to Canada. While your U.S. citizen daughter has the right to live in the U.S., that does not automatically grant you that right as her parents.

In certain circumstances, the parent of a U.S. citizen will be eligible for relief from removal (deportation) by the government, called Cancellation of Removal, based upon meeting several criteria, one of which can be met by having a U.S. citizen child. However, that will be the topic of another posting.

If you wish to live in the U.S., I suggest that you speak with your company and an immigration lawyer about switching to an H-1B visa, which is a dual intent visa (which means you can have it even if you have shown an intent to live in the U.S. permanently), and having your company start the process of sponsoring you for a green card.

If you would like assistance with this process or you would like to discuss this or other issues further, you can schedule a consultation with me by calling 1-800-343-4890 or 901-682-6455 or by clicking here to

schedule a consulation appointment with an immigration lawyer.

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* This is an advertisement. Ari Sauer is an attorney with the Siskind Susser law firm. www.visalaw.com/ari.html. On this blog we answer questions as a service to our readers, but we cannot assume any liability related to reliance on anything herein, and responses to questions are not intended to establish an attorney-client relationship. Immigration laws and regulations are constantly changing and the rules stated may not apply to your situation. Readers are cautioned to schedule a consultation with an immigration lawyer before acting on anything stated in this blog. This blog is not intended to substitute for a consultation with a qualified immigration law attorney. Ari Sauer is licensed to practice law through the states of New York and New Jersey. Certification as an Immigration Specialist is not currently available in Tennessee, New York or New Jersey. Siskind Susser limits its practice strictly to immigration law, a Federal practice area, and we do not claim expertise in the laws of states other than where our attorneys are licensed.

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• Can I apply for citizenship based on 3 years of marriage to a US citizen if I got my green card through my employer? (immigrationanswerman.wordpress.com)

Here’s a puzzle: High-tech U.S. businesses say they have 300,000 job vacancies but can’t find science-savvy American workers to fill them.  They asked Congress to raise the ceiling on H-1B visas for special-skills workers so that 200,000 well-educated aliens can arrive each year.

 

PAIDI v. MILLS  in the UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT.

       This case involves a state regulatory scheme that seeks to prohibit some legally admitted aliens from doing the very thing the federal government indicated they could do when they came to the United States—work.  Plaintiffs-Appellees are a group of nonimmigrant aliens who have been authorized by the federal government to reside and work as pharmacists in the United States. All currently reside in New York and are licensed pharmacists there.  Plaintiffs obtained pharmacist’s licenses from New York pursuant to a statutory waiver to New York Education Law § 6805(1)(6)’s requirement that only U.S. Citizens or Legal Permanent Residents (“LPRs”) are eligible to obtain a pharmacist’s license in New York….

                                                          *             *             *

        On appeal, New York asks us to abrogate the Supreme Court’s general rule that state statutes that discriminate based on alienage are subject to strict scrutiny review.  The state argues that the statute at issue here, which discriminates against nonimmigrant aliens should be reviewed only to determine if there is a rational basis that supports it.  In our view, however, a state statute that discriminates against aliens who have been lawfully admitted to reside and work in the United States should be viewed in the same light under the Equal Protection Clause as one which discriminates against aliens who enjoy the right to reside here permanently.  Applying strict scrutiny, therefore, and finding, as the state concedes, that there are no compelling reasons for the statute’s discrimination based on alienage, we hold the New York statute to be unconstitutional.  We affirm the district court’s grant of summary judgment for plaintiffs.

 

Due to these limitations, the best and brightest consistently struggle to stay in the U.S., slowing research and depriving the U.S. of innovation and a competitive global edge.

 “Rejection rates are way up,” says Scott Staples, president of MindTree’s U.S. operation. “It’s so much harder to get visas approved.”

                                 *                     *                    *

With the unemployment rate high, the pressure on visas is “inevitable,” says MindTree’s Staples, who predicts a decline in the company’s use of work visas.