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Published in U.S. 1 Newspaper on May 31, 2000. All rights
INS and the Talent Hunt
In the Information Revolution, the new Ellis Island may be a
law firm skilled in immigration law
If you think you could just start hiring foreigners
to fill the shortage of computer programmers, you will find it is
not that easy.
Immigration law has the reputation of being the federal government’s
second most complicated regulatory system, second only to the IRS.
Lawyers work with the companies that need workers and with the aliens
who want to pursue the American dream. They must deal with the
Immigration and Naturalization Service, which is swamped with
exponentially-increasing applications, hamstrung by lack of funding
support from Congress, and besieged by desperate pressure from
But they keep at it. "Immigration is one of those rare aspects
of the law where you are really helping someone and affecting
life," says Ryan Marrone of Hill Wallack. "When someone has
skills to benefit the employer, it is good to help the employer and
help the alien as well."
Fifteen years ago lawyers could fill out a small form and the visa
would come through, but now keeping up with all the regulations is
a full-time job. Many restrict themselves to specialties within
law: asylum and deportation cases, or family-based visas, or
visas. Here, we are talking about temporary work visas for high tech
professionals, particular some uses of the H-1B visas and the J-1
Getting technically qualified workers is difficult indeed, says Sidney
Rosenblatt, executive vice president and CFO of Universal Display
Corporation (UDL) on Phillips Boulevard (www.universaldisplay.com).
"The problems that people have in getting visas and work permits
could impact our technological base in the U.S.," says Rosenblatt.
"We are really concerned that if the U.S. immigration law becomes
an obstacle and we are not going to be able to bring talented
in, it will have an impact on our business and U.S. business as a
Take his company as an example. A public company, UDL has $8 million
in the bank and a burn rate of $5 million a year. It needs scientists
to implement its unusual technology — multicolor displays for
deluxe cell phones — and meet a demanding schedule that calls
for commercial prototypes by the end of this year and products in
the marketplace by the end of next year. Incubated at Princeton
it now has 26 workers at Phillips Boulevard in Ewing, and among its
14 scientist it has organic chemists with experience in inventing
new chemicals for organic light emitting diodes, and electrical
with a background in thin film organic materials.
All the money in the world can’t hire a scientist if you can’t find
the scientist, and the field is very thin. "Everybody experienced
in this field, we know," says Rosenblatt. "We meet people
at conferences, and we read papers by people. We just don’t go out
and look for them." The chemistry people come from University
of Southern California, and the electrical engineers from the east
coast, England, Hong Kong, mainland China.
When you do find the right person, you need a work visa. UDL used
the services of Matthew Hirsch, a Philadelphia-based attorney who
is of counsel to Miller & Miller in New Brunswick, to get visas for
two scientists. "It took longer than we thought, four or five
months," says Rosenblatt, "but now they represent 14 percent
of our technical team.
Not all the overseas hiring is done by computer and electronic
PharmaNet, a large clinical research organization at 504 and 506
Center, needs several H-1B visas per year. Its attorney is A. Robert
Degen (SUNY Maritime College, Class of 1968, and American University
School of Law) from the Philadelphia office of Fox Rothschild O’Brien
& Frankel. PharmaNet hires managers, statisticians, and medical
sometimes from Germany, more often from India.
High tech workers most often go for visas for temporary
work in a specialty occupation. These H-1B visas are good for up to
three years to start, and can be extended for a total of six years.
(Meanwhile you can be applying for permanent residency, a "green
card," but these take much longer, because the hiring company
has to go through a cumbersome process of proving to the U.S.
of Labor that no other qualified U.S. citizen or green card holder
is available for that job.)
The going rate for attorney fees to prepare an H-1B visa application
is around $2,000, plus or minus $500 according to the location. The
applicant for an H-1B must have at least a bachelor’s degree or the
equivalent in the field of specialty, and the hiring company must
certify it will offer the prevailing wage for that geographical
as verified by the state and federal departments of labor.
Until a couple of years ago, if you were qualified for an H-1B visa,
you could be pretty sure of getting one, and you could be from India,
China, France, or Sri Lanka, because H-1Bs have no national quotas.
(That turns out to be a double edge sword, however, since there are
quotas for permanent work-based green cards — about 10,000
per country per year. India and China, which account for a large
of H-1B visas, have huge backlogs of people trying to get permanent
But restrictions on H-1B visas have been building up a head of steam.
In 1991 Congress began capping the number of H-1B visas that could
be issued in any one year. The original cap on H-1B visas was 65,000,
and at first that seemed more than enough but every year applications
increased. But in 1997 the INS ran out of H-1B visas on September
1, one month before the fiscal year ended. In 1999 these visas ran
out in June and the cap was raised to 115,000 and that still was not
enough. The cap was reached in 2000 in just six months.
"The demand far exceeds the supply," says Marta Gold, a
College and School of Law graduate who has a practice at Princeton
Professional Park on Ewing Street (609-924-8500, E-mail:
She does H-1B work for manufacturing firms in north Jersey and New
York. "The fiscal year starts October 1, and last year I got an
application in at the beginning of January and I was lucky to get
the application approved."
First-time filers who filed for H1-B visas after March 21 of this
year will have to wait until October to have their visa processed,
says Vinaya Saijawani, who has a home office in Princeton Junction
(609-588-5258, E-mail: firstname.lastname@example.org). An English major at
the University of Bombay, Class of 1971, she went to law school at
Rutgers Newark and emphasizes immigration, family law, and real
She does business visas for small computer companies as well as asylum
cases, mostly for immigrants from India, Pakistan, and Bangladesh.
The INS, being helpful, allows students to change their student visas
to tourist visas to remain legal, says Saijawani, and the INS is even
letting them accept signing bonuses in anticipation of getting an
H1-B temporary work visa. "So they have some money in their pocket
to tide them over until they go on the payroll."
If the visitor’s visa extension expires, he may have to go back home
and have the H-1B processed by the consulate, says Saijawani. "But
that is a risky venture." She thinks it is much easier to work
with the INS (which is under the Justice Department) than with a local
consulate (which is under the State Department), because consulates
are more intransigent, she says. "If you have a problem with the
INS, you can appeal it, and they can rectify your problem. But if
a consul says no, he doesn’t have to give you a reason why."
She had a client who was a jeweler, and when he answered a question
from the consul about diamonds, he gave what the consul considered
to be a wrong answer. "He got flummoxed, and he was denied,"
Carol Chandler, who frequently deals with consulates, takes a more
optimistic view. Chandler majored in political theory and
government at Radcliffe, went to law school at Rutgers, and handles
clients in New York and the Washington Metro area as well
She does H-1B and other temporary visas, family and employment based
green cards, asylum and deportation litigation, and she travels to
such places as Moscow, Islamabad, and Manila to help clients with
"If you don’t mind working on the phone at 3 o’clock in the
you call the consular officers to ask what the problem is, and they
are generally quite cheerful and very well informed."
Chandler likes the challenge of taking clients who have been turned
down once or twice or those who have missed a deadline. "All is
not lost," says Chandler. "There are always options. Maybe
you can change them into a student visa or maybe they are an expert
in their field, or you can change them into some other kind of visa
to `park’ them for now, and then file to get in line for October
One alternative suitable to highly trained professionals is the J-1
visa, used to a significant degree by Princeton Plasma Physics Lab
(PPPL). With 400 workers at the Forrestal Center, PPPL does magnetic
fusion research and plasma science and technology development funded
by the U.S. Department of Energy (www.pppl.gov). PPPL hires physicists
from such countries as Japan, Israel, Russia, or South Korea on J-1
visas. The typical waiting period for the visa to come through is
six to eight weeks, says Anthony DeMeo, a PPPL spokesman.
The J-1 visa is an exchange visitor program for a wide variety of
categories, such as foreign medical trainees, professors, graduate
students, camp counselors, and au pairs.
After the visa expires, many J-1 visa holders must return home and
stay for minimum of two years before applying to return. Though most
holders of J-1 visas who want to stay find their wishes stymied, but
there are exceptions on a case by case basis. "They don’t need
a lawyer to get into a J visa, they need to get a lawyer to get out
of one," says Chandler.
Another strategy is to bypass the temporary visa and
go straight for the permanent one, known as the green card. This is
usually Sarnoff’s choice, says Edwin R. Rubin of Rubin & Dornbaum
in Newark (973-623-4444). He has been handling the Sarnoff
immigration law needs for 20 years. A science major at Penn State,
Class of 1965, he went to law school at Villanova and is past
of the American Immigration Lawyers Association. "Sarnoff is not
a particularly high user of temporary visas for foreign graduate
says Rubin. "I might do several permanent visas a year for
They generally hire from American universities, but occasionally they
need someone with a particular high tech skill."
Priority categories for employment-based green cards begin with
recognized "outstanding researchers," and for those with truly
extraordinary ability, the so-called "Einstein" visas. The
second level of permanent visas includes people of exceptional ability
or with advanced degrees. If the company hoping to hire permanently
with a green card can establish that the candidate’s presence would
be in the national interest, then the company can bypass the sometime
long and cumbersome process of a labor certification that shows that
there are no qualified and available American workers to fill the
Rubin has obtained one or two "national interest" waivers
for Sarnoff but says they are hard to get now. The approval rate went
from more than 50 percent to a denial rate of close to 90 percent.
For the other categories of high tech workers who have only a
degree or a minimum of two years experience in the occupation, a labor
certification is required.
To obtain this labor certification attorneys must work not only with
the INS but also with two labor departments, federal and state.
certifications are an unwieldy and cumbersome process," says James
E. Mullaly, of Mullaly Diefenbach on South Main Street in Pennington
(609-737-1800). An alumnus of William & Mary, Class of ’74, and New
York University, he has an immigration practice involving both
matters and court proceedings in Newark and Philadelphia, including
applications for asylum and related relief and criminal alien
"New Jersey has about the longest backlog for any of the
Most certifications involve running an ad in a daily newspaper.
can spot an immigration ad a mile away," says Mullaly. The exact
salary is often stated, down to the dollars and cents paid-per-week,
and applicants are directed to send resumes to a state office. If
the hiring company turns down applications from eligible American
workers, the labor department may question those applicants as to
whether they were given only peremptory interviews
Stephen A. Traylor does a handful of H-1Bs per month, but his focus
now is helping families with businesses in Colombia set up United
States-based branches to qualify for special kinds of visas.
The son of law school professors, Traylor went to Hanover College
in Indiana, Class of 1968, and Seton Hall Law School. He served in
the Peace Corps in Ethiopia, lived in Argentina in turbulent times
with his former wife, and in the 1980s was involved with Princeton’s
Sanctuary movement, protecting those from Guatemala and El Salvador
from deportation. He taught and did administrative work at Middlesex
County College before opening a Princeton office, Traylor & Traylor,
now at 20 Nassau Street (609-924-8338).
Owners of businesses that already have a foothold in the United
perhaps an import/export firm, can get an E visa and try to build
up the business to continue to qualify for this "treaty
investor" visa. Holders of these visas cannot qualify for a green
card. Half of them come from Japan and 25 percent from England, says
Traylor. "This fits the situation of those who don’t like it here
and who dream about going back. It also fits the situation of those
who are well off."
Some families can take advantage of the L visas allocated for
transfers and eventually qualify for a green card. "You get one
year to get your company going," says Traylor. "If you can
show the INS the company is up and running, you can extend for a total
of six years. If the business continues to expand, you can apply for
a green card based on being an international business person, but
you must show you are doing a substantial amount of commerce."
The INS could use twice as many people, says Traylor. The short
shows up most dramatically in New Jersey, which has some of the
backlogs and longest lines. Some tasks clients must do themselves
— apply for permission to leave the country for reasons of
or death in the family, for instance. But Traylor says that if clients
need to do any business with the Newark district office, they have
to get in line at 4:30 in the morning and there is no guarantee they
will get a successful answer.
Because Congress is always toying with the system, immigration law
is a moving target; three or four changes are published in the Federal
Register every month. "Nothing changes more often than immigration
law," says Traylor. "I tell people, if you don’t have anything
going for you now, wait till next year, it will be different.
"Because immigration law is constantly changing and quotas are
also changing, this work draws on your legal experience, but there
is also a lot of research and strategy involved," says Ryan
of Hill Wallack at the Carnegie Center (609-924-0808,
An alumnus of Seton Hill, Class of 1994, and law school at Widener,
he and Mark M. Roselli have founded the firm’s immigration law
to do H-1B and employment-based permanent residency petitions, along
with family-sponsored permanent residency petitions.
One change that almost everyone involved in immigration hopes will
take place: that Congress will pass a law increasing the number of
visas available. "At present Congress continues to struggle with
the competing interests of protecting domestic employment while at
the same time making the labor resources available to fuel the economy
in the 21st century. Before Congress is a bill designed to increase
the availability of visas for professional workers with highly
skills," says Hirsch, the UDL attorney, referring to the Lofgren
bill, HR 3983. An alumnus of Penn State, Class of 1981, he teaches
immigration law at his alma mater, Widener University’s law school.
Rubin, the past chairman of the lawyers’ association, also supports
the Lofgren bill (HR 3983) and opposes the Lamar Smith bill (HR 4227),
which he terms a "smokescreen that fits in with Smith’s
Says Rubin: "Companies spend millions of dollars a year to hire
and train any qualified American and still can’t fill their
There is a 50 percent gap between computer science graduates and
science job openings over the next several years."
"The White House is interested in helping," says Hirsch,
also the AFL-CIO, in a real change of attitude, has noted there is
a real shortage of workers and has pulled back from its usual
to any bill that creates opportunities for foreign workers." Even
Alan Greenspan has testified that the shortage of domestic labor could
have a deleterious effect on the growth of the economy.
What will happen if restrictions are not relaxed? Expect U.S.-based
companies to expand to Canada and would-be immigrants to settle in
Canada. When these immigrants obtain Canadian citizenship, they can
— under the NAFTA agreement — obtain a letter from a
U.S. employer, do their visa work at the border, and at last come
to work at least temporarily in the United States.
— Barbara Fox
The County Prosecutors Association of New Jersey
a non-profit, is accepting applications for the following
The Oscar W. Rittenhouse Memorial Scholarship is a one-year, $2,500
grant open to any New Jersey resident who has been admitted to an
accredited law school and has a special interest in law enforcement.
The Andrew K. Ruotolo Jr. Memorial Scholarship, also $2,500 paid
is open to former award recipients and to state residents who have
been accepted by an accredited law school or graduate school.
The Harris Y. Cotton Scholarship is also a one-year, $2,500 award
paid to residents who have been accepted to law school and exhibit
an interest in law enforcement with an emphasis on domestic violence
or hate crimes prosecution. Applications must be in by Thursday, June
15. Call 609-984-0051.
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