H-1B Update

The End of An Era?

It became a ritual over the last few years. Beginning in February and ending on March 31, immigration lawyers and clients worked against the clock to prepare, package, and file H-1B visa applications. Since 2007, April 1 was (for immigration lawyers and clients) the equivalent of April 15 for CPAs. But unlike CPAs and federal tax-filers across the U.S., immigration lawyers and their clients faced weeks of uncertainty after their filing. When you file your taxes you know you are due a refund or owe for underpayment. For H-1B filers, however, once USCIS received all applications they conducted a lottery to determine whose application would be considered…and whose would be returned to sender.

Apparently that process (and the glut of H-1B filings each April) is no longer. Yesterday, USCIS announced they only received approximately 42,000 applications for the 65,000 visas for the 2009-10 fiscal year. So after submitting our applications for delivery on April 1, and in light of this recent news, here are a few thoughts and observations:

-H-1B applications in the lottery era peaked in 2007, with nearly 200,000 applications filed for 65,000 visas;

-In light of the H-1B lottery, lawyers and clients have used more and more creativity to meet the demand for foreign workers; and

-The recent steep downturn in our economy (combined with the uncertainty of the H-1B lottery system) certainly had a noticeable impact on H-1B applications, cutting filings by 75% from the 2007 peak.

There is a Catch-22 at work here. Just as the Obama administration announced this week that comprehensive immigration reform remained on its agenda, we now see the impact of the economy, which suggests a reduced need for temporary work visas. But do not be misled. The problems with our immigration system primarily derive from the lack of flexibility inherent in our cap-based system. Fixed caps create artificial ceilings that, in most cases, do not reflect current needs. So in 2009, the ceiling may be reached, but the demand changed dramatically from 2007 and 2008. And while we all hope the economy will rebound and recover soon, what does that mean for 2010? The last thing a rebounding business needs in 2010 is increased demand for temporary work visas that returns us to 2007 and 2008. Perhaps a flexible cap tied to national unemployment figures? Or a bifurcated filing season, much like H-2B seasonal visas? There may not be a perfect solution, but our current system needs a healthy dose of realism and pragmatism to avoid past crises.

The Coles Firm Hosts In-House Counsel Panel Discussion for DAYL

Last Friday, March 27th, we hosted a panel discussion for the Dallas Association of Young Lawyers at the Dallas Bar Association's BELO Mansion. The panel included Camille Corbin of American Airlines, Zach Garsek of Zale Corp., Clayton E. Greenberg of Title Resources Guaranty Company, Michael Li of Ryan and Company, and Kenya S. Woodruff of Parkland Health & Hospital System. Mike Coles of our firm moderated the panel discussion.

The discussion was designed to provide young lawyers with insight and information about how to establish and improve relationships with in-house lawyers. Topics included business development, billing practices and pet peeves, and client service. As a cautionary note for young lawyers, the panelists noted that while extravagant gifts and tickets to sporting events were certainly nice, most in-house counsel recognize these items lead to unnecessarily high billing rates. Certainly something important to keep in mind!

DREAM, An Economic Stimulus?

With all the finger pointing on Capitol Hill these days about AIG, bailouts, and our economic turmoil, Congress’ DREAM might actually be a viable long-term solution. On March 27 the DREAM [Development, Relief, and Education for Alien Minors] Act was reintroduced in Congress. First introduced in 2001, the Act allows undocumented hardworking young people the opportunity for citizenship eligibility in exchange for a mandatory two years in college or military service.

Sure, providing citizenship to undocumented, educated children sounds nice, but how can DREAM stimulate the economy? Well according to a recent study by the Immigration Policy Center immigration provides tremendous revenue to our economy. A link to the report is provided, but here are a few highlights:

• An estimated $66 billion in new revenue over 10 years would have been generated if the 2006 immigration reform bill had passed.
• New legal immigrants would provide a net benefit of $407 billion to the Social Security Administration over 50 years.
• Immigration as a whole increases the U.S. GDP approximately $37 billion each year.

While I understand both sides of the immigration reform debate, the economic benefit of DREAM seems beneficial to all. DREAM provides these children who complete at least two years of college or military service the opportunity to provide to our economy and boost the nation as a whole.

Disturbing News From the Department of Labor

Just when you think the economy is the only bad news out there, a new report from the Government Accountability Office offers some unsettling insight into one of our most important government agencies. The New York Times recently published a story about problems in the Labor Department's Wage and Hour Division. This week, Brian Ross, an investigative reporter with ABC News, reported on the same GAO report on Good Morning America.

Whether you are an employee or an employer this report should concern you. I know everyone will agree that our employees should be treated with respect and paid an honest wage for an honest day's work. At The Coles Firm we say "employees are the backbone of any successful organization." While most employers would agree, still there remain those employers whose actions dictate the need for the Wage and Hour Division. When that agency fails employees, everyone suffers.

Besides the obvious moral and ethical concerns involved with protecting all our country's workers, why does this new report matter to employers? There could be far-reaching implications for businesses everywhere. With mismanagement and inaction within the Wage and Hour Division, more and more workers might immediately turn to private litigation against employers for minimum wage and overtime payment violations.

Small claims, mistaken claims, or even frivolous claims that should otherwise be resolved by the Wage and Hour Division at a minimal cost to an employer might instantly become costly litigation. Employers could find themselves spending thousands of dollars defending these lawsuits. To make matters worse, on those occasions where an employer is in violation of wage and hour laws, the Department of Labor's penalties might only consist of back pay to employees while private litigation could result in back pay, liquidated damages (double the back pay award), attorney's fees, and costs of court.

This lax enforcement by the Wage and Hour Division also could result in increased sentiment to strengthen penalties against violating employers. As the New York Times article pointed out, George Miller (a Democratic Congressman from California and the Chairman of the House Education and Labor Committee) said "he would push to enact tougher penalties for wage violations and laws that made it easier for workers to join class-action lawsuits." Wage and hour collective actions already have become one of the fastest growing areas of employment litigation. Suddenly, wage and hour matters could become even more costly. Scary thoughts indeed!

Newly-installed Department of Labor Secretary Hilda Solis has proposed to add 250 more investigators to the Wage and Hour Division in an effort to solve some of the agency's problems. Although we applaud these efforts, we feel more needs to be done with the current Wage and Hour Division workforce. These workers need more training, more oversight, and more motivation. As I said earlier, employees are the backbone of any successful organization.

Welcome to the Coles Firm Blog

The Coles Firm traces its origin back to March 2004. That's when Firm founder, Mike Coles, left Winstead Sechrest & Minick in pursuit of success as a small law firm. Five years later, we now launch the Coles Firm Blog. "We" means The Coles Firm as a whole. That includes Mike Coles, Dustin Paschal, and Paul Simon as Attorneys and Keitha Berringer and Erica Wills as Legal Assistants. As we blog during the next few weeks you will learn more about us as individual lawyers and as a law firm. And hopefully you will learn a bit about the law we practice.

Two main questions immediately come to mind when starting a blog for our law firm. First, what topics do we plan to include in our blog (also known as "Why should I read this?") and why start a blog now (also known as "What took you so long to get here?").

To answer the first question, we plan to blog about our practice. Readers should expect to see employment- and immigration-related posts. We also will include information on upcoming events, including speeches and seminars. Also, expect to find key updates, including legislative and administrative changes as well as important court cases that impact our clients. In addition, we have vowed to post one Coles Corner Winning Wines entry each month where we highlight a recent wine find by The Coles Firm. Fair warning: we are neither sommeliers nor wine snobs. We just know what we like and we hope you will agree.

To answer the second question, March 2009 is a great time to start a blog because late March and early April seem to be an important time at The Coles Firm. Maybe it's the Spring air, maybe it's the feeling of rejuvenation, but whatever the reason, early Spring is a great time to start a new project or a new venture. Over our history the following events have occurred from March 15 - April 15:

2004 - Mike leaves his prior law firm to start his own
2006 - Dustin joins The Coles Firm

2007 - The Coles Firm Immigration Practice expands to meet record demand for H-1B visas

2008 - Paul joins The Coles Firm
2008 - The Coles Firm moves to its current location
2009 - The Coles Firm launches its blog

When I (Mike) left the large firm life and embarked on this journey a smart lawyer told me the critical date is 5 years. The first 5 years can be full of ups and downs. But if you can make it 5 years you can make it forever. I hope he was right. Actually, at least as far as this law firm is concerned, I'm almost certain he was.