Friday, February 27, 2009

Profits drop by 50% at Fragomen immigration law firm

The American Bar Association Journal published an article today confirming that Fragomen, Del Rey, Bernsen & Loewy (Fragomen), the world's largest immigration law firm, saw its profits drop by 50% in 2008. Austin Fragomen is quoted in the article:

A Labor Department audit of the firm’s advice on labor certifications—a probe that was later dropped—made business development “a difficult chore,” Fragomen told Am Law. Then the downturn in the financial services market led to a drop in overseas hiring and visa applications.

The ABA article refers to a more detailed AmLaw Daily article which explains the revenue drop thus:

In November, 2007, the Labor Department announced it was auditing the firm on suspicions that it had been improperly advising clients about labor certification applications. In September, the Labor Department abruptly dropped the investigation. Fragomen says the investigation didn't make a huge impact on the firm’s bottom line, but that it “made business development a difficult chore.”

Just as soon as the Fragomen firm escaped from that dark cloud, the bottom fell out of the financial services market and work from its big institutional clients slowed. Fragomen says he expects the trend to continue. He says he expects work doing H1-B visas, for example, to be off by half in 2009. (The economic stimulus bill that Congress recently approved requires banks and other institutions receiving federal bailout money to give hiring priority to American workers. Also, Fragomen says, clients will simply be doing less overseas hiring. Fees from processing these types of visas accounts for about 10 percent of firm revenue).

Also, there were no real fee increases in 2008, Fragomen says. Toward the end of the year, clients were asking for discounts

However, it was not all bad news for Fragomen:

Despite all the bad news, revenue was slightly up in 2008, about four percent, to $257 million.
P.S. Full disclosure - Fragomen was my employer until September 2008.

Thursday, February 26, 2009

Travel Warning for Mexico issued by State Department

The US Department of Stated issued an updated Travel Alert for Mexico on February 23, 2009. The Alert warns of dangers, especially along the US-Mexico border. The Alert says:
The situation in Ciudad Juarez is of special concern. Mexican authorities report that more than 1,800 people have been killed in the city since January 2008. Additionally, this city of 1.6 million people experienced more than 17,000 car thefts and 1,650 carjackings in 2008. U.S. citizens should pay close attention to their surroundings while traveling in Ciudad Juarez, avoid isolated locations during late night and early morning hours, and remain alert to news reports. A recent series of muggings near the U.S. Consulate General in Ciudad Juarez targeted applicants for U.S. visas. Visa and other service seekers visiting the Consulate are encouraged to make arrangements to pay for those services using a non-cash method.
U.S. citizens are urged to be alert to safety and security concerns when visiting the border region. Criminals are armed with a wide array of sophisticated weapons. In some cases, assailants have worn full or partial police or military uniforms and have used vehicles that resemble police vehicles. While most crime victims are Mexican citizens, the uncertain security situation poses serious risks for U.S. citizens as well. U.S. citizen victims of crime in Mexico are urged to contact the consular section of the nearest U.S. consulate or Embassy for advice and assistance.
For more information, including links to other DOS resources and contact information for US consulates and consular agencies in Mexico, see the Press Release here:

Wednesday, February 25, 2009

CIS expands Premium Processing for I-140s

USCIS announced yesterday that, starting on 3/2/09, it will allow Premium Processing (PP) for I-140s where the beneficiary (foreign national employee) has already reached the end of her H-1B 6-year maximum stay. Premium Processing for I-140s is now allowed where the beneficiary is currently in H-1B status and about to reach the end of their 6 years. The new provision will expand PP to beneficiaries who have already passed the end of their 6 years.


Immigration law permits applicants to extend their stay in H-1B nonimmigrant status past 6 years in two situations:

1) they can extend in increments of up to three years, provided they are the beneficiary of an approved Form I-140 and an immigrant visa is not immediately available; or

2) they can extend in increments of up to one year, provided the Form I-140 petition or underlying labor certification has been pending for at least 365 days.

Premium Processing for I-140s helps foreign nationals who cannot extend their H-1B under 2) above because the I-140 or labor certification is not pending for the required 365 days. These foreign nationals may be able to extend H-1B status if they have an approved I-140 AND their priority date is backlogged.

For a copy of yesterday's Press Release about this new provision, see here:

Consequences of layoffs on H-1B workers - Part 2

(continued from yesterday)

6. What happens to my green card process if I am laid off?

If you have reached the final step of the permanent residence process, and have filed your Adjustment of Status (AOS), you may be able to remain in the US while the AOS is pending. Just having the AOS filed does not, however, allow you to work in the US or return from international travel once your H-1B ends. You must have specific work authorization (an EAD) to allow you to work and Advance Parole to allow you return from overseas.

A foreign national is permitted change employers and keep the AOS filing if the AOS has been on file for 180 days or more, and the new occupation is in the “same or similar occupational classification” as the one that formed the basis of the permanent residence filing. This means that e H-1B worker who was a Software Engineer for Employer A and then got a job as a Software Engineer for Company B would qualify. However a Software Engineer who went to work as a French teacher could not use this “portability” provision.

If you have not reached the final step of the permanent residence process, unfortunately you cannot complete the existing permanent residence process.

Link to Consequences of layoffs for H-1B Workers, Part 1

Monday, February 23, 2009

Consequences of layoffs on H-1B workers - Part 1

A common question that I am asked, especially in the current economy, is what happens to a foreign national's immigration status and her pending cases when she is laid off. In this 2-part article, I will address the consequences for H-1B workers. Today, I will cover the effect of a job loss on H-1B status. Tomorrow, I'll discuss the effect on the foreign national's permanent residence process.

1. How long can I stay in the US after my H-1B job ends?
A person in H-1B status is legally authorized to remain in the US only as long as they are employed with the H-1B petitioner (“sponsor”).
If the employee is laid off, the H-1B worker and dependents in H-4 status immediately lose their status. In reality, most people need at least a few weeks to pack up and sell their residence, take children out of school, etc. While staying in the US to finalize arrangements for leaving is not strictly “legal”, it is very common for foreign nationals to do this.

Laid-off H-1B employees could file to change to visitor status to allow them remain in the US to make repatriation arrangement.
As long as the application is filed while the worker remains in status, s/he will remain in status for up to 120 days while the change of status application is pending. The worker will also have to file a new non-immigrant application if s/he stays in the US and finds a new position.

2. Can I stay in the US to look for another job?
The US Citizenship and Immigration Service (CIS) will commonly approve a new H-1B petition as an automatic change of employer if the H-1B holder can provide a paystub less than 30 days (and sometimes even 60 days) old.
This means that CIS may approve the change of employer even if the employee has not worked for the former employer for a month or more.

The gap between when a laid-off H-1B worker ends their job and when they file the new H-1B petition is not strictly a period when they are in status.
However, as mentioned. CIS will usually overlook this gap in approving a change of employer.

If a new employer files a new H-1B petition and CIS does not approve an automatic change of employer, CIS might still approve the H-1B as a “notify.”
This means the worker must leave the US, get a new H-1B visa at a consulate if the existing visa has expired, and return in the new H status to “effect” the new employer’s H-1B.

If the H-1B worker manages to find a new employer before leaving the old job, or very soon afterwards, s/he might be eligible for H-1B “portability.”
This allows a H-1B worker to start working for a new employer as soon as the new H-1B petition is filed, rather than wait for it to be approved. Another piece of good news is that the H-1B worker should not be subject to the H-1B cap since s/he was already counted.

3. What are my employer’s obligations if I am laid off?
The H-1B regulations require an employer to pay “the reasonable costs of return transportation of the alien abroad” if the H-1B worker is dismissed before the H-1B period ends.

4. Can I collect unemployment or other benefits while unemployed?

When a nonimmigrant remains in the US in a visa category that prohibits employment (e.g. B-2), or while an employment-based visa is pending, the person is generally not eligible to collect unemployment compensation under most states' laws.
This is because unemployment statutes usually require that an individual must be available to work and authorized to accept work to be eligible for benefits. This means that these nonimmigrants cannot claim benefits even though they paid unemployment taxes while they were employed.

5. Can I change to another status to stay in the US?

As mentioned above, you can request a change to visitor (B-2) status.
If you are able to find a new employer, you may be able to use one of the other work-authorized statuses if the H-1B is not appropriate. For example, if you are Canadian or Mexican you might be eligible for a TN status if you are working on one of the TN occupations. If you enroll in school you could get F-1 status.

The categories for which you are eligible are very case-specific, so it is critical to get formal legal advice about your exact situation.

Link to Consequences of layoffs for H-1B Workers, Part 2