Visa Lawyer Blog

Most lawyers that are versed in the H1B visa process, are getting busier and busier these days. As we are nearing the April 1, 2010 filing deadline for the H1B visa. Many speculations out there as to when will the Cap be reached this year. The economy is still in recovery mode, and employers are careful before hiring. Yet, many Immigration experts feel the Cap will be met early this year, but when is the big question.

With drastic changes to the Labor Condition Application process (now taking more than 7 days to process), as well as unreasonable denials, planning early is the key to a successful H1B case this year. But in this post, I want to go back to the basics, the Cap and the legislative background.

Background

On October 21, 1998 Congress passed, and the President signed into law, the much debated American Competitiveness and Workforce Improvement Act of 1998, Pub. L. No. 105-277 (hereinafter ACWIA). This legislation was first introduced by Senator Spencer Abraham (R-MI), the Chairman of the Senate Subcommittee on Immigration, in response to the inadequate numbers of H-1B visas available in any fiscal year. As part of the Immigration Act of 1990, Congress imposed a 65,000 per year cap on these visas. In 1997, the cap was reached prior to the end of the fiscal year. The situation grew to crisis proportions in fiscal year 1998 when all 65,000 visas numbers were taken in May of 1998.

In early March 1998, Senator Abraham introduced a bill entitled, "The American Competitiveness Act." The legislation was introduced on the heels of numerous reports and hearings concerning the high tech worker shortage in the United States. The primary goal of the legislation was to address the looming exhaustion of the H-1B professional or specialty occupation worker visa numbers.

The ACWIA went through many different stages before an agreement could be reached. A complete elimination of the cap had originally been proposed by Senator Abraham. The legislation was then modified to increase the number of H-1B visa numbers available during the government fiscal year; provide additional funds for scholarships in the computer science and mathematics areas; increase enforcement of the Department of Labor component of the H-1B visa process; and provide clarification on the prevailing wage requirements of the process. The legislation also addressed permanent residence by providing for an extension of the H-1B visa should a permanent residence petition be pending, and through restructuring the allocation of the employment-based immigrant visa numbers.

This legislative game between conservative isolationists/liberal protectors of the U.S. workforce and moderate Democrats and Republicans supporting business needs and demands, caused chaos among U.S.-based businesses in need of skilled professional workers. From May 11, 1998 until October 1, 1998 U.S. businesses, research institutions and other organizations were unable to recruit foreign workers as temporary professionals. With the U.S. economy still booming and unemployment rates remaining at an all-time low, businesses, especially in the high tech sector, encountered many problems as a result of the cut-off in H-1B visa availability. These problems included, but were not limited to, taking employees off the U.S. payroll, sending employees back to their home country or to sites outside the U.S. as well as the termination of some critical development projects.

Requirements in the Statute

The ACWIA purportedly balances the need for increased professional visas numbers for foreign workers and the desire to protect the U.S. workforce. The following is a summary of the significant changes made by the legislation.
A. Temporary Increase in the Number of Professional Visas Available

There will be an increase from 65,000 to 115,000 visas for fiscal year 1999 and 2000 (through September 30, 2000). In fiscal year 2001, 107,500 visas will be available. Beginning October 1, 2001 the numbers will revert back to 65,000.
B. Electronic Postings

LCA notices may be posted electronically in situations without a bargaining representative. This provision was effective upon date of enactment.
C. Attestations Required for Employers Dependent Upon Foreign Professionals

U.S. employers of 51 or more employees, whose workforce is comprised of 15% or more foreign nationals in the H-1B category are considered dependent employers and must make certain attestations. Employers will also be considered dependent if they employ 26- 50 full time employees and have more than 12 H-1B employees or if they employ 7 -25 employees and have more than 7 H-1B employees.

The dependent employer must attest that it has not and will not displace a U.S. worker within 90 days before and 90 days after filing the visa application. This attestation carries through to employers who place employees at another worksite. The H-1B dependent employer must also attest that it has taken good faith steps to recruit U.S. workers using industry wide standards and has offered the position to any U.S. worker who is equally or better qualified for the job the foreign worker is sought.

H-1B employees with a Master’s degree or a salary of $60,000 or higher are not included in the attestation requirements and for the first 6 months following the implementation will not be included in the dependent employer calculation.
D. Increased Enforcement and Penalties for Violations

The Department of Labor may fine employers between $1,000-$35,000 per violation and preclude participation in the H-1B program for up to three years.
E. Back Benching H-1B Employees

Employers must pay H-1B nonimmigrants the wage stated on the H-1B petition even if the beneficiary is in nonproductive status. This does not apply to non-productive time due to non work related factors.
F. Benefits

Employers must offer foreign workers benefits and eligibility for insurance, disability, retirement and savings plans, stock options, etc., on the same basis as offerings made to U.S. workers.
G. Additional Fee for Use of H-1B Program

Beginning December 1, 1998, employers are required to pay an additional fee of $500 for an initial H-1B petition and for the first extension. These fees are to be used to support job training programs and scholarships for U.S. workers.
H. Prevailing Wage Computations

For institutions of higher education, related or affiliated non-profit entities or non profit or governmental research organizations, the prevailing wage shall take into account employees at such institutions in the area of employment.
I. Academic Honoraria

Payments of honoraria may now be made to B-1 and B-2 visitors for usual academic activity lasting 9 days at an academic institution or affiliated non-profit entity or a non-profit governmental research organization. No more than 5 honorarium may be received within a six month period.

Employers based in the U.S. now have a temporary reprieve when hiring foreign professionals. However, it is uncertain whether the 65,000 visas for this fiscal year will be adequate to meet the demand for this year and next. Some government officials estimate that visas will be unavailable as early as the beginning of May 2010. In addition, it is still unclear what is on the legislative horizon, reform or not. Pro Immigrants want to come with a proposal to reform legal immigration. U.S. employers employing foreign nationals in any capacity would be well advised to carefully monitor future legislative and regulatory proposals on the horizon. All I can say is that if you plan on hiring a foreign worker, you better call your lawyer now!!!

From time to time we can provide most up to date information from different Consular Posts across the globe. The following update is from the US Embassy in Istanbul Turkey and is provided by our AILA liaison committee. Here are the questions and answers:

What are the scheduling/interview waiting period for NIV appts (Turks)? Scheduling waiting period for NIV appts (Iranians)? Times of year that waiting generally increases?

Current wait time for an NIV appt. is approx. 15 days for Turkish nationals. Ankara is
approx. 30 days. Spring time (March thru early July) normally results in a longer wait for NIV appts due to summer work/travel program applications (very popular in Turkey, which ranks only second to Russia in its SWT volume) and tourist visa issuance.

As is the case for Turks, Iranians are only scheduled up to one month in advance. However, the demand for Iranian visa appointments far outstrips supply. When Iranian appointments open up for the following month, they are taken within a few days. Therefore, call towards the end of a given month, and there may be openings available for the month after the incoming month.

What is the current Farsi speaking staff available for interviews?

There is no assigned Farsi speaking consular officer in Istanbul post, nor has been for many years. Therefore if an Iranian applicant cannot speak English or Turkish, post will attempt to use other consulate staff who may speak Farsi to act as translators. Availability cannot be guaranteed.

What is the Post’s acceptance of third country nationals for NIV processing (Iraqis?)

In addition to Iranians, Istanbul s regularly schedules non-resident third country national (TCN) applicants. Iraqis (for example) are welcome to try to book those slots. There are only approx. 10 non resident TCN slots available per week, but unlike the case for Turkish or Iranian appointment slots, TCN appointments have never become backlogged.

Explain the special considerations for E visa processing. Most common preparation
omission/errors for E visa cases? Outlook of “substantiality” factor for E visas at post? How is post looking at “marginality” at a time of economic crisis?

Istanbul post does not get a significant load of E visa applications as do posts such as London. Therefore there is not a dedicated E visa officer, nor is there company registration because Istanbul sees few repeat applications associated with any particular entity. Most E visa applications in Istanbul are family owned/operated businesses. They tend to be an investment of a couple $100k at most, involving relatively few personnel in areas such as restaurants or marble importers. If the investment is less than $100k, it is no surprise that there will be quite a bit of scrutiny, however there is no firm line given that the industry, how new the business
is, and its locality are all highly relevant.

They reiterate that if there is a COS (Change of Status) to E status in applicant’s possession, it is important to remind applicants that there will still be a full adjudication of the visa status eligibility. One must remember that an approval from USCIS does not guarantee a visa by the Consulate abroad. They will still require a full review and adjudication of the visa, and Istanbul is not an exception to this rule.

Regarding marginality in a time of economic crisis, even if there is poor revenue currently, if there was growth before the crisis, this is a positive factor and will be considered. We suggest clients to submit cases with a strong business plan that has a 5 year projection as well 3 year back performance for acquired businesses.

B visa adjudications for pregnant mothers? What should be provided above and
beyond a standard B visa applicant? B for dependent parents? Domestic Partners?

Istanbul post is not opposed to B visas for a pregnant mother as long as she is otherwise eligible. They would prefer that a pregnant mother disclose this at interview and show that she will not be a public charge. Therefore, as long as this can be overcome, planning to give birth while in lawful B status would not be grounds for denying a B visa. Post rarely sees B visa applications for domestic partners/dependent parents of those in H/L/E, etc status.

I was recently interviewed by the Latin America News Dispatch about the current situation in Mexico and our work with E2 investors fleeing from that country.

One option available to wealthy Mexicans who flee the violence in their country is to apply for an E-2 or Investor’s Visa. Since 1994, Mexico has been a so-called Treaty Country, making its residents eligible for E-2 visas. While the State Department only says that the investment needed must be “substantial,” based on our experience a recommended investment varies between 50,000 to 100,000 dollars.

According to the article, not many of these visas are granted every year. In 2009, the U.S. granted Mexico only 2,499 treaty investor and treaty trader visas. This is a small number compared to the 7,598 student visas and 6,020 exchange visitor visas approved for Mexicans in 2009, according to State Department statistics. Yet we feel that demand for such visas is only increasing. We will continue to provide guidance to our clients in this complex area of Immigration Law.

Read the complete article here

In recent weeks our East Coast H1B and L clients reported problems at the Newark port of entry. Problems were reported by applicants from India coming back from vacation or travel for Business. In 2 cases, workers were sent back home, visa revoked by the officer. What is going on?

The AILA U.S. Customs and Border Protection (“CBP”) Liaison Committee received reports from AILA members that CBP inspectors at the Newark, New Jersey airport port of entry were apparently assisting in an investigation involving certain H-1B nonimmigrants from India and certain H-1B petitioner companies. The inspectors’ questions focused on who the individuals worked for, how their pay was computed, who paid their salary, their job duties, and what they were paid. In some cases, the individuals were subjected to expedited removal and visa cancellation.

After inquiring with CBP headquarters (“HQ”) about these incidents, the CBP Liaison Committee was advised by HQ that several of these cases involved companies under investigation by U.S. Immigration and Customs Enforcement (“ICE”) and/or U.S. Citizenship and Immigration Services (“USCIS”) for ongoing fraud. CBP HQ noted that they use as much advance information as possible to target specific individuals who warrant additional inspection. HQ also noted that recent enforcement cases reviewed ranged from simple documentary deficiency to visa/petition fraud. Upon an inadmissibility finding, the determination to either allow the applicant to withdraw his or her application for admission or to subject the applicant to expedited removal is based on “the totality of the circumstances and reviewed on a case by case basis.”

Individuals with pending I-751 petitions returning to the United States via the Newark airport port of entry, who have a I-751 filing receipt documenting that an I-751 has been properly filed or an ADIT Legal Permanent Resident stamp, will be sent to secondary inspection for further interview to verify the validity of the I-751 Petition. It is unclear if CBP will undertake a substantive review of the I-751 Petition.

Best Advice

Applicants should thoroughly prepare for their trip to the United States and their inspection upon application for admission by reviewing all pertinent documents to their petition and to consider carrying evidence to support the assertions made in the petition filed on their behalf by their employer.

Similarly, employers must be prepared for telephone inquiries from CBP officers at ports of entry to confirm the assertions made in any nonimmigrant petition and supporting documentation. Finally, employers must be advised that the government may review information in any public venues such as websites and other media for consistency with petition content. Thus, keeping such public information accurate and current is essential.

Continue reading "H1B Visa Lawyer - H-1B Admissions problems at Newark, NJ Airport" »

This information is available from our AILA liaison and is an important clarification for those that practice in the H2B area of law.

USCIS’ and DOL’s regulations both allow for the certification of more than one position (DOL) and filing for multiple beneficiaries (USCIS) if all H-2B workers will be performing the same service, for the same period of time, and in the same location. 8 C.F.R. §214.2(h)(2)(ii).

DOL regulation at 20 C.F.R. §655.4 defines the area of intended employment as “the geographic area within normal commuting distance of the place (worksite address) of the intended employment of the job opportunity for which the certification is sought.” It further offers the use of the Metropolitan Statistical Area (MSA) as a reasonable measure in determining the “same area of intended employment.” The CSC uses this definition in establishing the regulatory requirement at 8 C.F.R. §214.2(h)(2)(ii).

We advise on careful planning and preparation of H2b cases, from the first steps when filing the 9041 prevailing wage form, through the 9042 application.

In connection with the recent story about ten Americans charged with trafficking in Haiti but defended their plan to bus 33 children into the Dominican Republic. We remind our readers that moving Children between countries, and exploring adoption options must be still regulated by International law. Any attempts to move children unofficially will be deemed suspicious and subject to greater scrutiny. According to the group, the children did not have any passports. Government approval is needed for any Haitian children to leave the country.

The Department of State is actively involved in addressing the potential for trafficking in persons, particularly children, in post-earthquake Haiti. The disaster in Haiti has displaced many people and separated numerous children from their families, posing great risk and higher vulnerability to human trafficking. The Department has acted swiftly to mobilize coordinated efforts both on the ground in Haiti and in Washington to prevent and combat trafficking in persons as part of the USG’s emergency response and long-term planning for recovery.

Currently, the Department of State and its partners are intensifying efforts on five different fronts, including: support for protection of vulnerable children (led by UNICEF with the government of Haiti, the Red Cross, and other international and non- governmental organizations), such as registration of unaccompanied and separated children, tracing, and family reunification; helping remobilize the Haitian Police’s Child Protection Brigades; preventing the trafficking of displaced Haitians; educating Haitians about the risks of giving away children in times of crisis; and, rebuilding the capacity of Haitian NGOs already working to protect child domestic servants, known in Haiti as restaveks. We will keep monitoring this situation and keep you posted.

Recently USCIS issued a fact sheet on humanitarian parole that includes questions and answers and guidelines on filing.

U.S. Citizenship and Immigration Services (USCIS) provides a number of humanitarian programs and types of protection for individuals in need of shelter and/or aid from disasters, oppression, emergency medical issues and other urgent conditions. Humanitarian parole is one such program.

Humanitarian parole enables an otherwise inadmissible individual to enter the U.S. temporarily
due to a compelling emergency. USCIS may grant humanitarian parole based on urgent,
compelling reasons, or to promote a significant public benefit. This parole does not confer any
permanent immigration status, but does enable a recipient to apply for and receive employment
authorization.

Humanitarian parole is typically granted for the duration of the emergency or compelling situation at issue. Anyone granted humanitarian parole must depart the U.S. prior to its expiration date or risk negative immigration consequences. It is possible, however, to request while in the U.S., a reparoleof a previously accorded humanitarian parole period.

Anyone can file an application for humanitarian parole, including the prospective parolee, a
sponsoring relative, an attorney, or any other interested individual or organization. Requests for
humanitarian parole may only be accepted for individuals who are outside the U.S.; unless such
request pertains to a re-parole of a prior humanitarian parole granted at USCIS headquarters in
Washington, D.C.

Read the complete FAQ here

In his first State of the Union address, President Obama urged Congress to work together to confront the nation's problems. He touched on many domestic issues, but Immigration was not covered much this evening.

He said:

" And we should continue the work of fixing our broken immigration system, to secure our borders, and enforce our laws, and ensure that everyone who plays by the rules can contribute to our economy and enrich our nations. In the end, it's our ideals, our values that built America, values that allowed us to forge a nation made up of immigrants from every corner of the globe, values that drive our citizens still."

Let's hope the President is committed to fix the Broken system, sooner than later.

The Department of Homeland Security now offer Haitian nationals, who were already here when the earthquake struck, Temporary Protected Status (TPS) for 18 months. That status, which would allow them to legally work, will not cover Haitians who leave their country following the devastating quake that resulted in as many as 150,000 deaths. Many Haitians flee the country, thinking they will be accepted in the US at any time and given a right to stay and work. TPS is not a right to enter, rather a relief for those illegals that are already here.

What is TPS?

Congress established a provision for short-term protection known as Temporary Protected Status (TPS). The provision sets forth criteria for the extension of temporary protection to people from certain countries experiencing political or environmental upheaval. For decades, during periods of civil strife, economic upheaval, or natural disaster, the Attorney General--in consultation with other agencies--exercised his or her discretion not to force nationals of countries experiencing these calamities to leave the United States. Individuals who were in the country illegally could present themselves and receive work authorization; those in proceedings had their cases put on hold; while those who already had orders of removal were not returned until the situation had stabilized. The relief was extra-statutory and was called "extended voluntary departure."

It was a pure form of prosecutorial discretion exercised on the part of the authorities.
In later years, the exercise of this prosecutorial discretion was given the designation of "deferred enforced departure." TPS is the latest version of the statutory form of relief. Recent grants of TPS status have been to Liberians during specified periods of the civil war in that country; to nationals of El Salvador following a severe earthquake in 2001; and to nationals of Somalia as a result of its civil war.

There are three bases for TPS under the statute:

(1) existence of an ongoing armed conflict within a particular country that poses a threat to the personal safety of the general population;

(2) a flood, drought, epidemic, earthquake, or other natural disaster that causes a substantial temporary disruption in the living conditions in the country;

3) an extraordinary and temporary condition in a country that prevents its nationals from being able to return safely. In order to qualify for TPS, a person must be physically present in the United States on the date of the designation and meet the requirements set forth in announcements issued by DHS.

One logic behind this move is that Haitian immigrants already in the U.S. will not only be able to make money to support themselves, but also to send money/goods to their suffering families back in Haiti. And they sure do need the help.

On Jan. 12, 2010, Haiti experienced an earthquake of devastating proportions. This set of questions and answers provides information for United States citizens in the process of adopting a child from Haiti.

Questions and Answers

Q. I am in the process of adopting a child from Haiti, what can I do to bring the child to the United States?
A. Department of Homeland Security (DHS) Secretary Janet Napolitano has authorized the use of humanitarian parole for the following categories of orphans in Haiti:
Category 1 Cases

Description: Children being adopted by U.S. citizens prior to Jan. 12, 2010, who have been legally confirmed as orphans available for inter-country adoption by the Government of Haiti (GOH) through an adoption decree or custody grant to suitable U.S. citizen adoptive parents.
Required Criteria:

* Evidence of availability for adoption MUST include at least one of the following:
o Full and final Haitian adoption decree; or
o GOH custody grant to prospective adoptive parents for emigration and adoption; or
o Secondary evidence in place of the above.
* Evidence of suitability MUST include one of the following:
o Approved Form I-600A, Application for Advance Processing of an Orphan Petition; or
o Current FBI fingerprints and security background check; or
o Physical custody in Haiti plus a security background check.

Please note, some of the children in this category will receive immigrant visas and others will receive humanitarian parole, depending on the completeness of the cases. Those who enter with immigrant visas will enter as aliens lawfully admitted for permanent residence. Those who enter with humanitarian parole will need to have their immigration status finalized after arrival through an application for adjustment of status.

Continue reading "San Diego Immigration Adoptions Lawyer - Information for U.S. Citizens in the process of adopting a child from Haiti" »

ComputerWorld reports about a New Jersey judge that has ordered the shutdown of three H-1B opposition Web sites.

Middlesex County Superior Court Judge James Hurley ordered firms that register domains and provide hosting services -- GoDaddy Inc., Network Solutions, Comcast Cable Communications Inc. and DiscountASP.Net, to disable the three sites, ITgrunt.com, Endh1b.com, and Guestworkerfraud.com. Facebook Inc. was also ordered to disable ITgrunt's Facebook page.

The order was made in response to a libel lawsuit filed by IT services and consulting firm Apex Technology Group Inc., based in Edison, N.J. against the three Web sites opposing the H-1B visa program. Such attacks on H1B supporters increased last year as the economic situation was gloomy, and prospects for employment were not looking good. Yet, we all know that the H1B program is not the cause of all evil and in fact is a boosting factor in creation of new jobs and opportunities for American workers. Lets hope that the antis will take it easy in 2010, and focus on the real issues at stake.

As security at International airports tightens, we remind our readers about ESTA. On the one-year anniversary of implementing the Electronic System for Travel Authorization, the Department of Homeland Security’s U.S. Customs and Border Protection reminds U.S.-bound travelers from Visa Waiver Program countries of the ESTA requirement. Beginning January 20, CBP will initiate a 60-day transition to enforced ESTA compliance for air carriers; VWP travelers without an
approved ESTA may not be allowed to board a U.S.-bound plane.

ESTA is an electronic travel authorization that all citizens of VWP countries must obtain prior to boarding a carrier to travel by air or sea to the United States under the VWP. ESTA has been mandatory since Jan. 12, 2009 for all nationals of VWP countries traveling to the U.S under the VWP.

More from the CBP here