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Despite H-1B Cap, Form Changes and Registration Requirements, Immigration Practitioners Remain Optimists

Immigration practitioners probably rank as the most optimistic of all legal professionals.  [Perhaps bankruptcy and personal injury attorneys outrank us because they may or may not ever get paid.]  For the most part, our optimism may stem from our sheer need to survive rather than the desire for a glass-half-full outlook.  The universe [aka the government] consistently bashes us against the head with RFEs, denials, runarounds, and visa quotas.  Yet, we “keep calm and carry on.” The idea of self-determination in the practice of immigration law is all but an illusion sometimes, yet we manage to trudge along each day believing outcomes will be different.  [Isn’t this how insanity is defined?]  Our optimism is so ingrained in our behavior that even Donnie Brasco would chime, “Fuhghittaboutett!” Not convinced?

1. H-1B Cap Exhausted in Five Days

USCIS announced last week that the H-1B cap was exhausted in five days. This is insane. The idea that practitioners in business immigration must gear up in the early months of the year to prepare thousands of petitions to file with the government in hopes they will be “picked” for a limited number of H-1B visas is insane!

What happens to employers who don’t get selected for the H-1B lottery?  What are their alternatives to the H-1B visa?  Even faced with the reality of not getting selected for an H-1B visa, Attorneys remain optimistic. Davis Bae, Partner at Jackson Lewis, LLP writes, “The demand for H-1B visas is generally a strong indicator of the health of the U.S. economy.”  This is great news for the economy, but for immigration practitioners and their employer clients, it’s no consolation.  “Employers with rejected petitions will be scrambling for other options for their employees and candidates, many of whom are working under a different but expiring visa category.” One of the many options offered by Mr. Bae, as an alternative to an H-1B visa, were E-3, L-1, O-1, and P-1 visas.

Additionally, for employers who are enrolled in E-Verify, they can take advantage of STEM extensions. Greg Wald, Principal at Squires Sanders concurs.  He writes in greater detail: Graduating foreign national students are eligible for Optional Practical Training (OPT) work authorization which can last from 1 year to 29 months for “STEM” graduates of U.S. institutions whom are hired by employers enrolled in E-Verify.  These students may be eligible to change to an H-1B next year. [See, there’s that optimism I’m talking about!]

Other alternatives include H-1B1s, E-1/E-2, and TNs for certain foreign nationals. For a full list of H-1B alternatives, you can read more from attorneys Mark Newman and Aimee Clark Todd of Troutman Sanders.  Also, don’t forget to visit our guest post by Josie Gonzalez yesterday on H-1B alternatives.

2. Mandatory EOIR Registration for Attorneys and BIA Representatives

No matter what the government throws at us, we remain resilient.  For example, the Executive Office for Immigration Review (EOIR) recently issued a final rule in the Federal Register on April 1, 2013 that would require immigration attorneys and Board of Immigration Appeals (BIA) accredited representatives to first register “as a condition of practicing before immigration judges and the BIA.” There will be registration procedures implemented, including electronic registration, as well as other administrative requirements and non-compliance sanctions, including suspension from legal practice!  The rule becomes effective May 31, 2013.  Comments are being considered now until the end of May 31, 2013.

3. Ever-changing forms, including the new Form G-28

At the heart of the practice of immigration law are the mountains of forms by which we live and die [figuratively speaking].  The use of the wrong version of a form can get us in trouble, or worst, can get our clients in trouble.  No complaints; just compliance. This year, USCIS has been eager to revamp its multitude of forms, including the ubiquitous Form G-28, now a two-page document, which must be used beginning May 26, 2013.

4. Comprehensive Immigration Reform

The ultimate symbol of our eternal optimism is encapsulated in comprehensive immigration reform.  Will CIR make our lives as practitioners easier or harder?   Will we remain optimists or will it be the catalyst for new careers?  What are your thoughts?  Are we by nature an optimist lot?  Send us your comments.

Human Resources Today