B-1 IN LIEU OF H-1B VISA IN JEOPARDY: DON'T THROW THE BABY OUT WITH THE BATHWATER

By Cyrus D. Mehta and Myriam Jaidi

The “B-1 in lieu of H-1B” visa has been an important and legitimate source of flexibility facilitating the needs of global businesses and business travelers, with significant benefit to the United States economy. The April 14, 2011 letter from Senator Charles E. Grassley to Secretary of State Hilary Clinton and Secretary of Homeland Security Janet Napolitano in light of the lawsuit against Infosys, may threaten the existence of this important category. We write to clarify its utility for American businesses in a globalized world, and strongly urge that the “B-1 in lieu of the H-1B” not be eliminated as this will undermine US competitiveness.

As we noted in a recent article on the B-1 category, the B-1 business visa remains one of the “most ill-defined” visas but plays a very important role in providing flexibility to business travelers. While the B-1 visa is associated with visiting the US to participate in meetings and negotiate contracts, the “B-1 in lieu of H-1B” was created to facilitate travel to the US of individuals who would otherwise qualify for an H-1B visa, but only needed to come to the United States for a limited period of time. In the current controversy over the US of the B-1, scant attention has been paid to the “B-1 in lieu of the H-1B,” which permits broader activities than the regular B-1 visa, albeit for a short period of time. Indeed, many of the activities that have been alleged to be outside the scope of the B-1 may be permissible under the “B-1 in lieu of the H-1B.” Hence, what has been alleged to be fraud may not really be the case if viewed under activities permissible under the “B-1 in lieu of the H-1B.”

The “B-1 in lieu of the H-1B,”, which is in 9 Foreign Affairs Manual § 41.31 Note 8, and available on the US Consulate, Mumbai, website is tightly regulated and involves strict requirements. First, qualified individuals must otherwise qualify for an H-1B visa, meaning they must be working in a specialty occupation and qualify for the position by means of a bachelor degree in a specific field required for the occupation. In addition, they must show nonimmigrant intent (established by showing significant ties to their home country, including establishing that they have a residence abroad that they have no intent to abandon), must be regularly employed abroad and their salary must be paid by their employer abroad. They may perform work in the United States only for a limited time and only if they continue to be paid abroad, and not by the United States entity for which they are performing services. These are not simple showings to make, especially to consular officers trained to spot applicants who may wish to stay beyond the term of their B-1 visa status.

One issue raised in the controversy concerning the “B-1 in lieu of H-1B” is the absence of the prevailing wage obligation by the employer. The H-1B visa is one of the few visa categories that requires that nonimmigrants in this status be paid at least the “prevailing wage” (the average rate of wages paid to workers similarly employed in the geographical area of intended employment) and to have a labor condition application (LCA) certified before the petition may proceed. Prevailing wage data is available from many sources, including the Department of Labor’s Foreign Labor Certification Data Center, available here: http://www.flcdatacenter.com/. Other temporary nonimmigrant work visa categories such as the O-1, TN, L, E, P and others do not require an LCA or a promise to pay the prevailing wage in order to be approved. Thus, contrary to Senator Grassley’s assertions, the fact that an LCA is not required for the “B1 in lieu of H-1B” is not so unusual within the US nonimmigrant visa system, and if properly applied, should not be viewed as an attempt to skirt the rules, nor should it be mischaracterized as a loophole.

The category plays an important role in filling a gap in the available visa categories for short-term, professional workers. Moreover, it can only be used by a multinational business that has the ability to regularly employ the individual at an overseas entity while he or she is in B-1 status. There are other companion “in lieu of” B-1 categories such as the “B-1 in lieu of the H-3” and the “B-1 in lieu of the J-1.” These B-1 categories allow for short term training assignments in the US without the need for a US employer to file a lengthy petition or obtain authorization through a J sponsor. All of these are extremely useful and legitimate short term B-1 uses that allow a US business to remain competitive and responsive to spontaneous short-term needs in a globalized economy. We urge that the baby not be thrown out with the bathwater just because of ex-parte allegations by a plaintiff in one law suit against an IT consulting company, which has led to further investigations by the US authorities.

The Department of State’s (DOS) response to Senator Grassley’s missive is troubling in that it conveys that the “B-1 in lieu of H-1B” may be at risk. In a letter by Joseph Macmanus, Acting Assistant Secretary for Legislative Affairs, he says that DOS is “working with the Department of Homeland Security (DHS) to consider removing or substantially amending the FAM note” allowing the B-1 in lieu of H-1B category. However, all hope is not lost as Mr. Macmanus points out that problems with the B-1 category usually result from misrepresentation in the visa application, not from a misapplication of visa law. In addition, Mr. Macmanus’s letter makes clear that consular officers are carefully trained to determine whether issuing a B-1 visa or a “B-1 in lieu of H-1B” is appropriate. These categories are not taken lightly and have strict requirements, carefully enforced, with fewer than 1000 “B-1 in lieu of H-1B” visas issued each year worldwide. This restrictive view of the category is sometimes too carefully enforced to the detriment of companies that need individuals from their foreign entities to come to the United States entity for training that is unavailable at the foreign entity, and that is crucial to the global operations of the company as a whole.

We hope that the DOS and DHS continue to recognize and defend the importance of the “B-1 in lieu of H-1B” and other companion “lieu of” categories to international commerce and the benefits that accrue to the United States economy, rather than eliminate it or read it out of existence as a knee jerk reaction to a Senator’s objections, especially one who has generally been opposed to the existence of the H-1B and L visa programs.

IMMIGRATION LESSONS FROM THE FALL OF STRAUSS-KAHN

By Cyrus D. Mehta

From an immigration lawyer’s perspective, the fall of Dominique Strauss-Kahn, the former head of the International Monetary Fund, who has been charged with attempted rape and other serious sex offenses against an immigrant hotel worker from Guinea in a posh New York hotel, resonates with important immigration themes.

Most important, the word of an immigrant worker who was subject to attempted rape, imprisonment and other charges has been taken extremely seriously against one of the world’s most powerful men. So seriously was her word taken that the NYPD actually arrested Strauss-Kahn while his Air France plane was about to take off from JFK airport last Saturday.

It is difficult for any victim of a sex crime to come forward, given that the defense will seek to turn the tables against her and undermine her credibility. It is even more difficult for an immigrant who has been a victim of a sex crime to come forward since this person’s immigration status, or lack thereof, will also be put under the microscope.

While media reports indicate that Strauss-Kahn’s accuser was granted asylum, and as a result, is in a lawful status, there are many survivors (rather than victims) of domestic abuse and sex crimes who may not even be in a lawful status. Despite all the flaws in the US immigration system, one shining spot is that survivors of domestic violence and sex crimes do have recourse. The battered spouse of a US citizen or lawful permanent resident, and in some cases of a nonimmigrant, can apply on their own for status without the help of the abuser. Those who are the victims of sex crimes, even though the perpetrator may not be a spouse, can apply for U or T visas if they are helpful to the investigation or prosecution. Once the application is approved, many of the grounds of ineligibility that would apply to other prospective immigrants either do not apply to this group of vulnerable immigrants or can be more easily waived.

Another lesson can also be drawn from the sordid Strauss-Kahn saga. Even the alleged perpetrator, Strauss-Kahn, is not a citizen of the US and has been on a nonimmigrant visa, presumably a G-4 visa for officers of international organizations, while he was with the IMF. I have observed that many nonimmigrants, who are accused of crimes, even non-violent white collar crimes, have a harder time to get bail after they have been arrested. In many situations, the nonimmigrant visa status is linked to the employment in the US, which more often than not disappears after the defendant is accused of the crime. The prosecutor seizes upon this to argue that the defendant is more of a flight risk than a defendant who is a US citizen. While Strauss-Kahn is in a different league from a regular nonimmigrant who is charged with a crime, and poses additional flight risk considerations, the fact of the matter is that one who is on a temporary visa in the US has a harder time to get bailed out. Still, Strauss-Kahn has done better than most other criminal defendants on a nonimmigrant visa because he just got bail.

EXPANSION OF STEM FIELDS AS AN EXAMPLE OF ADMINISTRATIVE FIXES FOR A BROKEN IMMIGRATION SYSTEM

By Cyrus D. Mehta

I was pleased to see the announcement below. Immigration and Customs Enforcement, (ICE) of all agencies, expands immigration benefits to students who have graduated in science, technology, engineering and math degree programs (STEM) fields. ICE, which has been deporting non-citizens in high numbers in recent times, ironically acknowledges that this is a "continued commitment to fixing our broken immigration system and expanding access to the nation's pool of talented high skilled graduates in science and technology fields."

The 17 month extension of Optional Practical Training for STEM graduates is a good example of how the Administration can fix problems within our broken immigration system in the face of Congressional inaction. The 17-month extension was in response to the crisis caused by the H-1B cap in previous years. Even if presently, under the FY2012 H-1B cap, there are still plenty of H-1B visas, the quota is likely to get filled prior to the end of FY 2012. The expansion of STEM fields will benefit both employers and foreign students when they are next confronted with the filling of the H-1B cap. The 17-month STEM OPT extension rule was promulgated in the absence of any Congressional action. The rule also withstood a court challenge by the Programmers Guild in the Third Circuit on the ground that Congress acquiesced by never objecting to the concept of practical training whenever it previously legislated on immigration. See Programmers Guild, Inc. v. Chertoff, 338 Fed. Appx. 239 (3rd Cir. 2009).

In The Tyranny of Priority Dates by Gary Endelman and Cyrus D. Mehta, we have forcefully argued that the Administration has the power to creatively fix our immigration system administratively, and used the STEM OPT extension as an example. What is intriguing about this ICE announcement that it comes closely on the heels of President Obama's speech on immigration in El Paso on May 10. While many think that Obama's recent meetings on immigration and his El Paso speech do not amount to much, the fact that his administration expanded STEM fields after the speech reveals that he may still have a nuanced plan to change the game on immigration. Expanding STEM fields is a baby step, and he can do a lot more administratively such as halting deportations for DREAM students. The President can justify such administrative fixes as our immigration system no longer works and is not what Congress intended when it enacted the preference system in 1965, which was expanded in 1990., but is unable to cope with present day realities. By taking bold administrative steps now, he can force Congress to bless them later either through acquiescence (by taking no action) or by affirming through legislation.

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ICE announces expanded list of science, technology, engineering, and math degree programs

Qualifies eligible graduates to extend their post-graduate training

WASHINGTON - U.S. Immigration and Customs Enforcement (ICE) today published an expanded list of science, technology, engineering, and math (STEM) degree programs that qualify eligible graduates on student visas for an Optional Practical Training (OPT) extension-an important step forward in the Obama administration's continued commitment to fixing our broken immigration system and expanding access to the nation's pool of talented high skilled graduates in the science and technology fields.

The announcement follows President Obama's recent remarks in El Paso, Texas, where he reiterated his strong support for new policies that embrace talented students from other countries, who enrich the nation by working in science and technology jobs and fueling innovation in their chosen fields here in the United States, as a part of comprehensive reform.

By expanding the list of STEM degrees to include such fields as Neuroscience, Medical Informatics, Pharmaceutics and Drug Design, Mathematics and Computer Science, the Obama administration is helping to address shortages in certain high tech sectors of talented scientists and technology experts-permitting highly skilled foreign graduates who wish to work in their field of study upon graduation and extend their post-graduate training in the United States.

Under the OPT program, foreign students who graduate from U.S. colleges and universities are able to remain in the U.S. and receive training through work experience for up to 12 months. Students who graduate with one of the newly-expanded STEM degrees can remain for an additional 17 months on an OPT STEM extension.

REFLECTING ON OUR IMMIGRATION POLICY AFTER OSAMA BIN LADEN'S DEATH

One cannot help reflect on how Osama bin Laden so radically changed immigration policy for the worse After the 9/11 attacks, masterminded by bin Laden, everything concerning immigration was viewed through the prism of national security. Even a garden variety bona fide marriage case between a US citizen and foreign national spouse will only be approved after every aspect of the spouse's information is extensively checked against humongous and error-prone national data bases.

While Bin Laden may have had his footprints on terrorist attacks even before 9/11, the paradigm shift occurred only after that day when planes spectacularly and tragically crashed into the twin towers, the Pentagon and in a field in Pennsylvania while on its way to a more sinister mission. Just a few days before, on September 6, 2001, a compromise was reached between the Senate and the House (the Senate had earlier passed its version) to extend the Section 245(i) provision to April 30, 2002, which would have allowed those unlawfully in the US to adjust status, albeit under more limited terms. After the Bin Laden inspired terrorist attacks of September 11, the Section 245(i) extension never saw the light of day. To come to think of it, we may have had Comprehensive Immigration Reform a long time ago if Bin Laden never inspired the attacks on 9/11 .

Instead, the Executive under Attorney General Ashcroft tweaked the rules to make it easier to detain immigrants. The expanded regulation, which took effect on September 20, 2001, authorized the then INS to hold any non-citizen in custody for 48 hours or an unspecified “additional reasonable time” before charging the person with an offense. In the post 9/11 sweep, immigrants from mainly Muslim countries were detained and deported in secret. Although they were detained because of immigration violations, it was under the pretext of investigating them for suspected links to terrorism. In the end, the 1000+ immigrants who were detained and deported in secret were not charged or convicted of terrorism.

The Bush Administration then implemented Special Registration, which applied to males from 26 countries, 25 of which had significant Islamic populations. Dutifully, 85,000 people lined up to register, thinking that they should cooperate with the government. 13,000 men who were found to have immigration violations, many of whom may have been on the path to getting green cards, were placed in deportation proceedings. Those who failed to register during the filing window continue to be affected even today, and may be unable to apply for an immigration benefit even through marriage to a US citizen.

The INS was dismantled and folded into the Department of Homeland Security bureaucracy. A new agency within DHS, Immigration and Customs Enforcement (ICE) came into being, which continues to expand and deport immigrants with even greater zeal under the Obama administration, disregarding its inherent power to favorably exercise discretion (which it had no compunctions in exercising unfavorably to arrest and deport immigrants after 9/11). Several efforts to achieve CIR in Congress have failed. The last effort to pass the DREAM Act in December 2010 also failed. Even business immigration, which can spur growth and more jobs, has gotten bogged down because of national security concerns. An entrepreneur finds it next to impossible to obtain a visa for the purpose of establishing a branch of his foreign business in the US. This branch can potentially create more employment for US workers, but national security concerns trump job creation when we most need it. Various states are competing with each other to pass laws that will punish suspected immigrants who are not in lawful status.

There are admittedly other forces also at work. The sluggish economy, along with joblessness, can also serve as a disincentive for immigration reform, along with nativist backlash. But the main bogeyman has been national security, largely as a result of the trauma caused by the 9/11 attacks. Surely, the danger is not over. New members of Al Qaida can rise and retaliate against the US. But there is no one with the same mythical status as Osama bin Laden, who was able to perpetuae it by evading capture or death. His death, if it makes the world more safe, should lessen the trauma in the days, months and years to come.

Can we hope for more sensible bi-partisan immigration reform, that will lead to economic growth and more prosperity as Michael Bloomberg suggested in the Wall Street Journal on May 1, 2011? Can we revert to our old values of not being fearful and embrace immigrants because of all the wonderful benefits they bring to the US? Can we restore due process because the erosion of the rights of immigrants ultimately result in the loss of rights for all? Can we overcome the fearmongering of rabidly nativist anti-immigration organizations through a more postive message that believes in the dignity of all persons including the immigrant?

There may be a sliver of a chance for all this to happen especially since Osama bin Laden is no more.