The “Fairness for ‘High-Skilled’ Immigrants Act of 2019″ (H.R. 1044) Will Destroy Employment-Based Immigration to the United States
The “Fairness for High-Skilled Immigrants Act of 2019” H.R. 1044, S. 386, has unintended consequences that are contrary to the intent of the legislators.
While this bill attempts to make the employment-based green card process fair by treating applicants from all countries equally by removing the annual per-country cap of 7%, the result is:
● An immediate stoppage in green card issuance for an estimated seven years for all other countries that are not India and China.
● Changed incentives that will result in increased labor supply from India and China and decreased labor supply from everywhere else. This is likely to lead to another bottleneck in a few years, because it does not increase the total number of visas available annually.
● Only foreign workers who are eligible for the few categories of “dual intent” nonimmigrant visas will be eligible to work for their U.S. employers on a temporary basis while their applications are pending – which will start at an estimated 7 years on the first day that this bill takes effect (and as set out above, is likely to grow longer). Not all will be get renewals that will cover the wait.
● No H-1B nonimmigrants waiting for their green cards will be able to do three-year extensions past the initial six year maximum time limit.
● Instead, all H-1B nonimmigrants will have to renew their H-1B temporary visas annually after six years, increasing expense, burden and uncertainty for the H-1B workers and their employers, while dramatically increasing the workload of the already overburdened U.S. Citizenship and Immigration Services.
● Increasing costs, burdens and uncertainty for employers may lead employers to rotate out H-1B employees rather than sponsoring anyone for a green card at all.
● S. 386 further: removes EB-5s from the bill, which limits the benefit to Chinese applicants; and the Grassley amendment will completely change H-1B visa processing by adding a new recruitment requirement.
The current system of employment-based (“EB”) immigration has an annual cap on the total number of EB visas issued (“green cards”), as well as a 7% per country cap. In other words, India and China each get the same total number of immigrant visas every year as Andorra, Luxembourg, and the Maldives.
The high number of applications for Indian and Chinese workers, and the practice of counting the applicant’s accompanying spouse and children against the quota for workers (not mandated anywhere in law or regulation), have caused lengthy backlogs. For China and India, the current
backlogs are decades long. As a result, Indian and Chinese H-1B holders become tied for years to their US employers to maintain immigration status while they await EB green cards. The problem is real, and it is serious.
The “Fairness for High-Skilled Immigrants Act of 2019” (H.R. 1044, S. 386):
This bill eliminates the 7% per country cap for employment-based immigrant visas. Because the green card are issued in the order for which they were applied, and hundreds of thousands of Indian and Chinese citizens are already “in line,” they would be processed ahead of any new
applicants for years. “Green cards” would be unavailable for years to anyone else.
Effects of H.R. 1044 on ALL Employment-Based applicants:
● In an attempt to alleviate backlogs for China and India, the bill redistributes the backlog for those two countries, and creates immediate backlogs for all other countries. U.S. employers who require foreign workers to meet the gaps in the US market will have to wait many years for their sponsored employees to receive green cards.
● Employees who are ineligible for dual-intent visas will be forced to wait for years in the home country, US employers can’t utilize them in the meantime.
● Virtually ends extraordinary ability immigration for athletes, including MLB and NBA players, whose entire careers span less than the wait time this bill will create.
● Children accompanying parents on work visas who reach age 21 during the backlogs will become ineligible for a green card as part of the parent’s process. This will add to backlogs in the family-based immigrant visas and other categories, and lead to unnecessary family separations.
Effects of H.R. 1044 on H-1B employers:
● Ends three-year extensions of H-1B nonimmigrants under the American Competitiveness in the 21st Century Act. H-1B’s will need to be extended annually rather than every 3 years after the initial 6 years. The change significantly increases the administrative burden and cost of compliance for all US employers who have already sponsored or want to sponsor any of their foreign workers for green cards.
● Eliminates the employers’ ability to draw employees from non-backlogged countries to meet the shortage of qualified employees in the US market.
● Senator Charles Grassley’s amendment requiring recruitment of U.S. workers for H-1Bs coupled with USCIS’s new “no deference” policy (treating extensions like brand new petitions) will likely lead to many denials for extension of stay even for workers for whom US employers have obtained multiple prior approvals of temporary visas and approval of an immigrant visa petition. This could leave US employers without a means to lawfully
employ nonimmigrant workers to compensate for US labor market shortfalls.
A practical alternative solution
We encourage legislators to consider the proposals offered in the “Believe Act of 2019” (S.2091) introduced by Senator Rand Paul. This bill eliminates the backlog for citizens of India and China without the unintended consequence of creating years-long backlogs for all applicants.
The following immigration attorneys authored this document and are available to provide clarifications and comments:
Ksenia A. Maiorova
Maiorova Law Group, PLLC
6965 Piazza Grande Ave., Suite 207
Orlando, FL 32835
Law Office of Amy Maldonado
333 Albert Ave., Suite 610
East Lansing, MI 48823
Law Offices of Karin Wolman
48 Wall St., 11th Floor
New York, NY 10005
Athlete Green Cards Under EB-1A in Jeopardy: Pending Legislation That Could End the Path to Residency for Athletes
Earlier this week, the House of Representatives passed the “Fairness for High-Skilled Immigrants Act of 2019,” which could effectively end the path to green card applications under EB-1A for professional athletes. The bill, HR 1044, proposes a redistribution of the annual quota for employment-based green cards, including EB-1A green cards for individuals with extraordinary ability in Athletics.
Immediate multi-year backlogs for EB-1A green cards
HR 1044, which is now under review in the Senate Judiciary Committee, attempts to solve the problem of a years-long backlog in the allocation of employment-based green cards to citizens of India and China. This backlog is created by the relationship between an annual numeric cap on the number of employment-based green cards that can be issued each year and the high number of applications for these green cards by citizens of India and China.
However, the proposed solution will have the perhaps inadvertent, but nonetheless immediate, effect of creating a backlog in green card applications made by nationals of all other countries. Some analysts predict that the backlog could be as long as 7 or more years.
Forced O and P applications for those who meet the criteria for EB-1A
The immediate consequence of the new backlog would be that athletes who already meet the criteria for EB-1A green cards would be unable to apply for green cards, without waiting in line for years. Given the need to train and compete in the US in the meantime, athletes would need to obtain a “bridge” status, such as a P-1 or O-1 visa.
Unlike the EB-1A green card, which permits self-petitioning, P-1 and O-1 visas are required to be submitted by an employer or a petitioner. Additionally, these visas restrict the athlete’s authorized employment to specific competitions, games, or events outlined in his or her petition, and do not provide employment authorization for the athlete’s accompanying spouse.
These visas also bind the athlete to the petitioner and changes in petitioner, the terms of the athlete’s employment and other details regarding the athlete’s work in the US often require the submission of an amended or a new petition. Athletes from countries like Brazil, with short-term validity for O-1 and P-1 visas, will either be stuck in the United States or will have to reapply for a visa stamp at a US Consulate abroad virtually every time they travel outside the US.
What was once a one-step process for highly-qualified athletes could turn into a multi-step and multi-year affair, as the EB-1A qualified athlete struggles to maintain interim status while waiting for the green card.
Maximum Periods on O and P may be insufficient
Further complicating the situation of extraordinary ability athletes who would be affected by this legislation, O-1’s and P-1’s are subject to limitations on the maximum admission period, of 3 years and 5 years, respectively. If the EB-1A backlog lasts longer than the validity of the athlete’s O-1 or P-1, extensions will need to be secured to meet the gap. In some cases, multiple extensions of the O-1 or P-1 nonimmigrant visa will be required.
Multi-year backlogs could mean no green card for short athletic careers
Multi-year backlogs can also entirely cut off the possibility of a green card for certain athletes. An EB-1A green card requires that the athlete be coming to the US to “continue work in the field of endeavor.” For athletes, the field of endeavor is narrowly construed as competing in his sport. Unless the EB-1A was approved for coaching, an athlete who retired as a competitive athlete and took up coaching while waiting for the backlog to resolve will be ineligible to receive a green card under that category.
This presents a problem for MLB and NBA players, as well as other sports where the average duration of a professional career is relatively short. Athletes could attain the accolades required for an extraordinary ability green card during their competitive career, only to be retired and ineligible by the time they can apply for adjustment of status.
EB-1A green card eligible athletes should obtain legal advice
The bill includes provisions that may protect athletes who filed their EB-1A applications before the law goes into effect. However, it is unclear whether these protections will be included in the final version of the legislation, if it passes. Athletes whose accomplishments make them eligible for EB-1A should consult with an experienced sports immigration lawyer to develop an individualized legal strategy.
This post was co-authored by our Managing Partner, Ksenia Maiorova, whose sports visa practice is primarily focused on Track & Field, and by Amy Maldonado, whose sports immigration practice focuses on MLB athletes and coaches.
When you schedule a consultation with an immigration attorney, you expect to hear whether the attorney can help resolve your matter, and if so, how he or she will do it, how long it will take, and what the legal fee will be. Below are some very important questions that you may not think to ask during your consultation, but should.
1. How much of your practice is dedicated to immigration?
Immigration & Nationality Law is widely recognized as one of the most complex areas of federal law. A capable immigration practitioner must be familiar with tens of thousands of pages of regulations and statutory language, policy memoranda, and developments in case law. There are important developments in Immigration & Nationality Law on a daily basis. The more time an attorney dedicates to the practice and study of immigration law, the better equipped he or she is to handle your case. The most highly-regarded attorneys in the immigration field generally practice exclusively in the area of Immigration & Nationality Law. An attorney who “dabbles” in immigration is not likely to have the same level of knowledge and expertise as someone who practices immigration law exclusively.
2. How long have you been practicing immigration law?
When you inquire about an attorney’s experience, it is as important to know how long they have been practicing in the area of immigration law as it is to know how long they have been a licensed attorney. Has the attorney handled hundreds of cases or only a handful? It is also important to the attorney about the extent of his or her experience with specific agencies and types of cases and to consider how this experience might be applicable to your case.
3. How much will my case cost?
A clear understanding of the fees involved in your case benefits both you and your attorney. Some attorneys bill on an hourly basis, while others offer flat fees on certain types of matters. If your attorney bills on an hourly basis, have the attorney estimate how many hours he or she expects to spend on your case, and whether there is a cap, or an upper limit, to the hourly fee. In an hourly billing scenario, it will also be prudent to learn the hourly rates of any attorneys or paralegals that may be working on your case. Whether the attorney bills on an hourly or on a flat fee basis, ask when the fee will be due, and consider whether you will be able to make the payments as scheduled.
When discussing attorney’s fees, be sure to ask whether the fees include additional costs (for items like copies, express mail, or travel). Most attorneys will not include USCIS filing fees in their legal fee. For planning purposes, you should also ask the attorney how much you should set aside for filing fees and when you will be expected to pay them.
4. What can I expect in return for my money?
As surprising as this may sound, different attorneys will do different amounts of work for the same type of case. Have the attorney explain in detail what he or she will do for the fee. Will the attorney help you sort through and organize your documentary evidence? Will he or she review and comment on your affidavits or psychological reports, if applicable? Will he or she prepare you for your interview and/or hearing? If your case is called for interview, will there be an extra fee?
Also be sure to ask about what you can expect to pay if there are unexpected contingencies in your case, such as the government asking you to come back for another hearing/interview, requesting additional evidence, or issuing a Notice of Intent to Deny your case.
5. What is your communication policy?
Effective communication with your attorney is among the most important factors affecting your case. Inquire about the attorney’s office hours, the attorney’s preferred method of communication (telephone or email), whether an appointment is necessary to see the attorney, as well how you should submit documents for the preparation of your case (generally, by mail, email or fax).
Unraveling the Mystery of Legal Fees: What You Need To Know About How Immigration Lawyers Charge for Their Work
“What is the legal fee for my case?” This among the most important questions for anyone considering hiring an immigration lawyer. Today, we unravel the mystery of legal fees.
What is the difference between an hourly legal fee and a flat fee?
The vast majority of attorneys charge their clients hourly. This means that an attorney has an hourly rate and you are billed for every minute of time the attorney spends working on your case, including time drafting emails, talking to you on the phone, and doing legal research. Even discussing your case with another attorney or staff member in the office can cause you to receive a bill. Hourly rates can vary, from $100 per hour to thousands (yes, thousands!) of dollars per hour, depending on the attorney’s experience level, practice area, and market. For example, at my first job in a large international law firm in London, my billing rate was over $500 per hour. To put this in perspective, if I spent 5 minutes writing an email or talking to a client on the phone, the client would be charged $41.66.
Although the hourly billing model is still standard practice for most lawyers, clients generally dislike this type of billing, because it makes predicting the final cost of the case very difficult. The flat fee model presents a solution to that problem. Under this model, an attorney will estimate the number of hours it will take to complete a client’s case, and multiply that number by the attorney’s hourly rate, resulting in a fixed fee quote for the client. If the attorney ends up spending more time on the case than he originally estimated for the scope of work you agreed to, the flat fee will not go up.
This model is particularly attractive to more price-sensitive individual consumers who do not want to weigh the importance of a question they may have for their attorney against the cost of placing a phone call to get an answer. Keep in mind, however, that the flat fee model is designed to provide cost predictability; it does not mean that the attorney is giving you a discount or is charging less for his or her time. Immigration attorneys typically charge on a flat fee model, although some immigration attorneys are shifting towards hourly billing, particularly in areas like defense in removal proceedings, waivers, and asylum.
Good attorneys with an established reputation know the value of their time. It is highly unlikely that you will be able to hire an experienced attorney with a proven record of positive results if you are looking for a bargain when it comes to legal fees.
Why do some lawyers charge for initial consultations, while others do not?
As a consumer, you have likely seen many attorney advertisements on television, inviting you to call “right now!” to receive a “FREE” consultation. However, have you also noticed that most of these attorneys are offering services in the areas of law that relate to some type of physical injury, like auto accidents, slip and falls, medical malpractice, or products liability? This is no coincidence. These attorneys offer free consultations because their area of law works on a contingency fee basis, meaning that when you win, they take a percentage of the money awarded to you (usually, at least 30%). Because they only take cases that they expect to result in money awarded, they do not charge for their work up front. After all, they are virtually guaranteed to get paid later. In some personal injury cases, the attorney collects hundreds of thousands of dollars. Almost every other area of law, including immigration, does not work this way.
Why do some lawyers charge more than others for the same type of case?
Free consultations are not the norm in most areas of law. The major exception is the personal injury field, because, as discussed above, these attorneys know they will recover large sums of money for their clients and then take a significant percentage of the recovery, so it is in their best interest to get as many of these clients in the door as possible.
In other areas, where attorneys are not compensated on a contingency fee basis, time spent on consultations is time away from work on cases that are already bringing money to the firm. If the attorney spends a significant amount of time providing free consultations, in addition to not making money from these consultations, he will lose money by not working on the firm’s existing cases. Attorneys prioritize tasks that bring revenue into the business. Most experienced attorneys with established reputations have a steady flow of returning clients and referrals, so they are under no pressure to lose money by offering free consultations. Therefore, in the immigration context, free consultations are offered mostly by new attorneys looking to get new clients, or relatively unknown attorneys who do not have enough clients.
Attorney’s fees vary, based on the quality of an attorney’s education, experience, and results. More experienced lawyers are likely to charge more than their less-experienced counterparts. Experienced attorneys, and those who are highly-regarded experts in a particular area, are generally more expensive. These attorneys are also less likely to offer free consultations, discounts, or payment plans.
Buying a service is not the same as buying goods. While you may be able to find the exact same pair of shoes in two different stores for two different prices, two immigration attorneys may do different amounts of work on the same type of case. For example, we recently had a client who had paid his previous attorney ½ of what our firm charges for an investor visa case. For his money, the attorney submitted 7 supporting documents, totaling less than 100 pages, and a cover letter which included nothing more than a list of the supporting documents.
Although our fee would have been higher than what this attorney charged, our typical investor visa case receives no less than 30 hours of attorney time. We thoroughly review and submit the hundreds of pages of documents required to properly document an investor visa case, and our filings are always accompanied by a detailed cover letter, usually no less than 10 pages, explaining the applicable legal requirements and how the applicant meets those requirements. With this detail-oriented approach, we are far more likely to get a positive result for our clients.
As the above example demonstrates, an attorney who charges lower fees often does less work. Additionally, lower fees could be an indicator of a “conveyor belt” approach to your immigration case, where the lawyer does not spend much time addressing the individual details of your case, but rather uses pre-drafted documents and simply changes the names.
Some immigration practices also involve a heavy reliance on paralegals. This allows the firm to cut costs and increase profits, but this may not be what you are looking for in your legal representation. Therefore, when you are considering hiring an attorney, it is prudent to ask whether the case will be prepared by an attorney or by a paralegal, only to be signed by the attorney at the end. If your initial meeting is with a paralegal, rather than with an attorney, it is a good indication that your case will receive minimal attorney time and review.
Why can’t the lawyer just tell me how much my case will cost, before I sign up for a consultation?
Clients are often frustrated when attorneys will not quote them a fee over the telephone, before conducting a consultation. An explanation by analogy may be helpful. If you call a doctor’s office, complaining of a migraine, and ask how much your treatment will cost, you can expect that the receptionist will tell you that the doctor will need to see you in person, to conduct an examination, learn your complete medical history, and rule out any serious conditions that may require immediate attention. If your migraine turns out to be just a simple headache, he will tell you to take an aspirin, but if he discovers a serious medical condition that may be causing your migraine, your treatment may cost hundreds of thousands of dollars. If the same doctor had told you over the phone that you would be able to treat your problem for $5 (the cost of a bottle of aspirin), but, after seeing you, gave you a treatment plan costing hundreds of thousands of dollars, you would, understandably, be upset.
Why do lawyers cost so much?
Lawyers work very much like doctors when it comes to “diagnosing” your legal problem. Very often, a person might call our office believing they are eligible for a certain type of visa, however, upon meeting with them, we learn facts about their case or immigration history that would make obtaining that visa impossible, or would require additional costly steps, like a waiver, or corporate restructuring. Like every illness, every immigration case is different, and because attorneys generally charge based on the amount of time they expect to spend working on your case, without knowing the details of the case, which affect the amount of work required, it is impossible for the attorney to give you an accurate fee quote.
Clients, even highly-educated ones, are not always capable of identifying the complicating factors in their cases and may believe they have a straight forward case when they do not. A widely-circulated news item about a Ph.D. who prepared his own immigration documents, and due to a small mistake, got placed in removal proceedings, is a good example. Attorneys use their extensive education, training, and experience to “issue spot” for complicating factors and analyze how these factors may affect the strategy, timing, and outcome of the case.
Because an attorney sells services rather than goods, if an attorney quotes, for example, $1,000.00 for your case, it is easy to assume that this entire amount becomes the attorney’s profit. However, that is not the case, due to the high cost of being in business as an attorney. For example, to maintain their license and offer their clients competent representation, attorneys must invest thousands of dollars annually in continuing legal education courses as well as in books and research database subscriptions. They must also maintain costly insurance policies. These expenses, in addition to traditional office overhead costs, like office rental, electricity, etc., are built into the fees that each attorney charges.
There are several factors that contribute to the cost of legal services. First, becoming an attorney is a difficult, long and extremely expensive process. This process involves a minimum of 7 years of post-secondary education, costing over $200,000, on average. Reflecting the time and cost of acquiring the knowledge and skills required to perform complex jobs, in the labor market, highly-skilled workers are compensated at a higher rate than those who have fewer skills. For example, doctors earn more than cashiers, because becoming a doctor requires more education and training. Similarly, because lawyers are highly-trained specialists, their compensation is generally higher than the average service provider.
The outcome of your immigration case will affect the rest of your life.
As you select your attorney, remember that the outcome of your immigration case stands to affect the rest of your life. If you are successful, you will remain in the United States and benefit from the economic opportunities this country offers. According to a recent study, the average US worker earns approximately 1 million dollars over his lifetime. Even if you pick the most expensive immigration attorney, most cases will cost less than the price of a used car. That’s a fairly small investment for a lifetime and 1 million dollars’ worth of opportunity per family member. Bargain shopping for an attorney can lead to poor representation and an undesirable outcome in your immigration case.