welcome to know your rights new jersey i'm your host ronald ponder today we continue our discussion on hot topics and immigration especially given the uncertainty under the present ministration we are going to discuss pacifically c law firms of which they are both principles welcome guys thanks so much for having us well thank you for joining us let's get straight into understanding what h one b visas are give us a little idea of the nomenclature what are they and why are important well the h one b is a nonimmigrant work visa which is really a temporary opportunity for foreign nationals to come to the united states and work in professional positions and really what it comes down to is what is the definition of professional and back in the day which was before they changed the legal standard mean it meant a person with distinguishing merit and ability and that sort of over time has morphed into an individual who is a professional who is serving in a specialty occupation and that's the sort of the area that you get into is is the individual professional and are they serving in a specialty occupation in the u s i how does the system minimum of a bachelor's degree but it's very important that the position itself must require a at least a bachelor's degree so you could have a beneficiary or individual having a p h d on master's degree but it's not sufficient the position itself must be professional and the minimum is a bachelor's degree u s bachelor's degree ok so either one of you or both of you so why is there such great fear in both the business community and amongst immigrations regarding what is happening today was a great question because what i think a lot of people fear is that the each one b nonimmigrant work visa is used to displace s workers and so one of the things that i think that unfortunately the media doesn't fully talk about when they talk about h one b visas in this concept of displacing u s workers is that there's something called an l c a a labor condition application and it's an underlying application that gets submitted to the u s department of labor where the employer has to prove that the individual who's taking the job has to pay the federally mandated prevailing wage and so there is a protection that the individuals who are being brought in will not be displacing u s workers because the employers have to pay those workers a federally mandated prevailing wage ok so that addresses the fear of those who may be impacted or believe they are impacted by the hirings of these employers but why are the business people why is the business community fearful and why are they not u s workers fearful what is that what is happening today well i think that what you're seeing at least in large organizations is that there's people are being brought in on h one visa as contractors and what they're doing is and this is what happened in florida i think it was about a year or two back where individuals  for a large or household named organization which has a which has a great television station as you know what they did is they brought contractors in who were sitting side to side and what happened was the u s workers were training their replacements who were going to be contractors and i think that the media grabbed onto that and made that a really big hype and that's where all of a sudden it took off into over these individuals are displacing u s workers because they were there's a hole so i guess you would say a subculture in business of these contractors who are on each one bees being brought in for huge organizations like you know in again household names in the contracting field now i also understand that the business community is saying that what's happening in the current administration can be harmful to business really harmful to business as for example this year there are lots of about two hundred thousand applications for h one b there are only sixty five thousand eight hundred b c available for each year even though we've seen a decrease because i think of two years ago it was two hundred thirty six thousand bees still it's so less than fifty percent chance of getting it into the lottery so it's very important to get in for april first because that's a deadline for h one b is there anything you'd like to add to that david so essentially what it is is that there's a lot of a lot of difficulty i think both for employers and employees because they just don't know whether they're going to get these each one and so for us we're seeing a lot of folks who we have to actually start to talk to them about backup plans you know if you don't get you to be in the lottery what's your backup plan what are the other alternatives and what are you know is it was going to give us an example of what you might be telling them their backup plans might be y  visa for extraordinary ability individuals so that's a great backup because there is no deadline you can essentially apply and the point that's one that's this one and another one that we often talk to our clients about is the which is for academic institutions if you have an academic institution that's doing h one b s they're not subject to the cap so they can be doing caps sorry they can to be non capped cases year round and then you also have a situation where if individuals are seeking s then those extensions are also exempt from the cap so that's important to know and then there are other types of scenarios like there's you can use maybe even which is for treaty traders  those are for investors where they are coming in to open up their own businesses that might be an option for some people there are also other types of visas like peavey's as for individuals who are doing something that's culturally unique so we as immigration lawyers go through with the individuals who are talking to both the employers and the employees and creating a strategic plan for them and usually it's trying to figure out also how that strategic plan works into the timing name billy namely that we know we have to get those each one b s in on april first but we also know that come you know when we hear whenever that will be and we're probably pretty and processing is going to be taken offline again this year where you can't premium in many many years where they took all of the premium processing so obviously you guys were very close we were both the employers and the employees yeah exactly sometimes we will come into understanding with a needs based upon an employee reaching out for us and saying this is what we need oftentimes it's the employer who says we have identified x number of you know could be one could be several foreign workers who have a specific skill set  one that cannot be found in the us and that's usually what they're reaching out for us you try to use the h one b for that particular skill set now earlier in your answer you mentioned extensions now my was so that's that's interesting because that's sort of a new wide switch it has to do what's called a c twenty one and maybe you can explain how the that how that works and why you'd send all of the employees into a tailspin because they've been relying upon these extensions for years and now all of a sudden there was this pull back and i think it scared everyone you know a job is valid for three years initially with the possibility to extend it for additional three years in total six years and that's it now david mentioned there is a provision in the law called a c twenty one or allows employees to get three or one year extensions beyond the six year if they start the green conferences so this is mostly about these people that had twenty four years could be twelve years fifteen years because they are waiting for a green card so essentially the law gives them an opportunity to exclude extending the trying be until they finally get the green card so this is mostly for indian nationals chinese nationals because these visa green card visa categories are backlogged retrogressed so it takes years it could be ten years twelve years depending on you know how how many people apply for a green card so this would be really you know terrible for them being here for twelve years so what happened so what happens that they don't get the extension i don't really think that it's going to go there  not having the h one b yet because they are in line for the green card so they they that have their place for the green card and i don't really think that the government to take these people offline y recent announcement that they have backed off that and decided you know not to go in that direction however i think what it does is it shows us just how tenuous some of these regulations are and how things can change so quickly so and that's really sort of the general business immigration environment right now where there are so many different things that are going on we have the recent announcement about the terminations of t p s which is temporary they're just announcing that it's going to be offline and it's basically sending everyone into a tailspin and now when you say offline what do you mean offline means that after september ninth of two thousand and nineteen they won't be able to extend the t s status in the u s so a lot of these folks are looking northward a lot of them are looking to canada and a lot of them are trying to figure out whether they have other benefits so we have folks who are coming into our office asking us about  a lot of people asking about asylum claims a lot of people asking about family relationships and what the impact of the family relationships are on their ability to get status in the u s now as you know also the president sent out that message about chain migration and he's not very happy with chain migration he actually i think likened chain migration to family immigration well what it is and well with that i'm going to halt you layer thoughts because now it's time to take a break but we're we want to talk a little bit more about that will blow more extended premium processing it takes about six months with regular processing could be five six months typically we should have a decision by october first because employees will start on may twenty be on april first if the employees here in a valid status let's say they have f one student visa their own no p t or any other volley nonimmigrant status they get change their status get changed into h one b magically on october first so they can work here they can stay here no problem at all however the minute they want to travel what say they need to go home right to their home country of for example india they are not allowed to travel they would have to go to the us consulate in india and to obtain mt multiple entry visa stamp so what's been happening when they do that that's when it would be its administrator give me the terminology i mean destructive processing ok a lot of very a lot of going on right now it's called two to one gene and there are a lot of problems lately why what's happening so basically people are stuck they apply they have to make a formal application at the consulate and apply for h one b they already remember they already have approved b but there isn't so they're just applying for h one b visa the u s consulate will then decide to do a review of the company review of the l c a just review everything to make sure that it's all correct there is a fraud unit as well and this unfortunately could take days executive order that president trump passed back in january of two thousand and seventeen which is by american higher american and there was this discussion in there about extreme vetting and extreme vetting has manifested itself in a variety of different ways in the immigration arena where it's caused tremendous slowdowns of the process for one example at least domestically is that we're noticing that all cases now before it was only family based cases that needed to be interviewed now employment and family based cases are being interviewed so that one slowdown was a little bit about how long does it take to get your interview are it is it immediate or and how long  and those medicals expire in one year so now we're telling our clients not to do medicals and to hold off and to do the medicals later on in the process so it's just everything you slowed down and presented new frustrations for both clients and also for lawyers so does this does this force nine u s workers not to leave the country yes oftentimes they don't want to leave because they're worried nobody can guarantee obviously we as a lawyers cannot guarantee them how long they're going to stay abroad and let's say they have occasion ten days two weeks sometimes they're going to stay three months four months if they're going to be placed in to administrate the processing the government doesn't have a processing time they can take however long they want to and the reason also has has to do with you know the there are various levels of scrutiny when you're doing these checks so for example there's one called the technical alert list where if an individual is doing something in the u s that is related to some sort of technical area that the government has an interest in they have to vet the person to make sure that they're not a threat then there's something called a visa eagle there's something called a visa donkey there's a visa mantis and these are various layers of of potential it actually comes out of a database that the u s department of state has so it's kind of interesting from the standpoint of the way it's designed i mean the process is designed where the u s department of homeland security blesses the case and then when the individual goes to the u s department of state abroad which is the consulate for their visa there's the checks and balances another impediment in the system and that this request for evidence tell us a little bit about what's happening in that with that so request for evidence has always been around obviously they would request process and what is it and obviously you're telling me to slow that down the process certainly use a maid but they're with required documents let's say some documents are missing so they would request documents that are missing for example a copy of a visa i ninety four passport degree but then you have certain things that they come up with and this year and this is the love issue where they have additional questions so it's not even that evidence that they're asking for certain documents it's they have questions and this year as i mentioned i was the wage problem which was a level one so basically the government was saying that if the yeah they were arguing you into a corner and pretty much i would say about fifty percent of cases are local ones received requests for evidence or care on this type of issue and so what does it do to the case is this request for evidence you get about eighty days about three months to respond so it's going to slow down the case the finitely a lot of times it required us to go out and get expert reports because we had to go out and seek wage experts who would testify that the amount that was being paid to the individual was the correct federally mandated prevailing wage in other words that of if a level one wage was chosen by the employer maybe the employer chose that level one wage because the individual for example was a student coming out of school and then going to work although they may have some kind of a specialized skill which you would think intuitively would you know bump that wage up they still were an entry level employee and therefore should be entitled to choose the level one to employ it would require for example five years matches the great pos five years of experience and maybe some type of supervisory skills the level would go up but if they require only a master's degree and the position requires a minimum of a master's degree then it would still be a level one so does that force the employers to do anything to protect this interest well i think what the employers are realizing is that they have to be a lot more careful about the way that they're designating the federally mandated prevailing wage and what we're doing is we're working closely with them to help them to understand i think that in the past it was it was almost taken for granted that they were just going to do level one wages and they the government was not going to question it because it was so nationally they thought you were focusing on the specialty and not the way exactly and some of the our fees actually focus i think probably most of the are fees  seen focus on the specialty occupation they say prove why it's a specialty occupation i think would be a mention of that and so you spend this great deal of time explaining the nuance of that skill set and then all of a sudden you're back into ok so it's such a great skill set and it's so desirable and there are no us workers who can do that then please explain to us why you're choosing a level one so the focus change so these cases stay with one decision maker or who's making these in those service centers so you guys work directly with the service centers yes or no yes and so you're not only e mailing but you're also communicating by phone with well i think i wish we had  don't yeah yeah yeah unfortunately you cannot get anyone on the phone really processing is better but this year we had no premium processing so basically there was no communication whatsoever well i didn't and a waste time with this comment but as you're talking i'm thinking about the people who apply for foreclosure relief here in the u s and this request for evidence would lead me to another question once you provide the documentation the report requests and generally speaking in about sixty days you get a decision yeah but that's not i think that's more of an aberration than it is the norm generally speaking you respond to the requests for evidence and then you'll get a response back from them either yes or no ok so we're nearing the end what is it that you really want your other than all of the fabulous information you've given us so far what would you like to leave the viewer particularly the employers and the foreign workers who are impacted by h one b s with whether that has to do with representation or what they should be doing what do you want them to leave them with i think most one of them certainly one of the most important pieces of this is that if you're going to be doing an h one b you want to seek out competent counsel someone who is familiar with this type of the area it is a nuance within the immigration field as many of the areas of immigration are developing as national tea occupation specialties this is also a specialty but also i think i had mentioned before is that you know we're coming up on april first it's the filing deadline for the lottery mentioned takes about seven days to get approved and we've noticed in the past that actually what ends up happening is that the system gets so jammed up in march the l c s it could actually take more than seven days to turn the l c a around so why wait that long start to