Visa Lawyer Blog

We all know by now that Requests for Evidence in O1, H1, L1 and P cases have almost doubled in the past 12 months. It has now become a matter of practice at my firm, to let clients know that a Request for Evidence will most likely happen in their case. This is frustrating to us lawyers, and creating extreme hardship to clients.

The situation is so bad with denials coming from the California Service Center that the LA Times covered this issue in a recent story:

The nation's immigration chief has launched a effort to quell the outcry from Hollywood and the performing arts community about a spike in visa denials, processing delays and requests for evidence to support their petitions to bring in leading foreign artists for U.S. performances.

In the last year, immigration attorneys across the nation have loudly complained about mounting roadblocks for performance visas from the California service center, which processes petitions for so-called O and P visas for artists and researchers of extraordinary ability.

The Skirball Cultural Center in Los Angeles had to cancel scheduled performances last year of an Argentine music group because California immigration officials challenged whether its fusion of Jewish klezmer music and tango met the requirement to be "culturally unique."

What could be a reason for this war declaration coming from the California Service Center? According to Greg Siskind it is a mere job security issue:"

The U.S. Citizenship & Immigration Service says no crackdown is afoot. 'We haven't changed the way that we do our business over the course of the past few years,' says agency spokesman Christopher Bentley.

Of course, the statistics show otherwise. One very senior former USCIS confided in me that he believes this is less about an anti-immigrant mood at USCIS and more about simple job security. The overall number of applications being filed at the agency is down dramatically due to the recession and issuing requests for evidence is one for examiners to keep themselves busy.

I have no doubt that this is happening. The evidence requests are themselves the best evidence of what should be considered gross malfeasance on the part of USCIS examiners. Applicants routinely get request for documents that were provided already or are clearly irrelevant. In premium processing cases, evidence requests often come on the last day USCIS has to adjudicate the case. Enticing people to pay an extra $1000 to get speedy processing and then deliberately delaying their cases is a form of fraud - perhaps theft - in my opinion. USCIS should be regularly auditing evidence requests and also soliciting feedback from the applicant community so it can crackdown on such illegal behavior.

The California service center's denial rates for O visas, which apply to individuals, increased from 9.6% in the 2008 fiscal year to 19.6% this year. Denial rates for P visas, which apply to groups, jumped from 11.1% in 2008 to 26.8% this year. Requests for evidence also grew, from 16.2% of cases in 2008 to 37.5% for individual visas and from 21% to 44.3 % for group visas during that same period. The number for H1B visa RFE's and denials is even higher.

As attorneys we now have to adjust to the way we prepare petitions. Instead of preparing cases with the best supporting documents possible, we now have to anticipate the open door for denials even when the candidate is very qualified and meets the standard of thew law. If the trend will continue, expect more qualified workers and excellent artists to stop coming to our country, our loss.

USCIS updated its count of FY2011 cap-subject H-1B petitions and advanced degree cap-exempt petitions receipted. As of 8/20/10, approximately 33,900 H-1B cap-subject petitions were receipted. USCIS has receipted 12,600 H-1B petitions for aliens with advanced degrees. This is a major jump from the last update of August 13, 2010 where only 29,700 filings were reported.

Is this trend likely to continue? We think so, expect visas to run out by the early weeks of December.

In the recent concluded 2010 AILA Annual Meeting, many attorneys shared their experiences which are similar to those experienced by our firm -a surge of H-1B RFEs. The California Service Center (CSC) has been especially tough or “ridiculously tough” in adjudicating H-1B applications, according to some attorneys. However, according to USCIS statistic information, only 17% of H-1B petitions filed at CSC have been issued RFEs, while 20% of H-1B petitions filed at Vermont Service Center (VSC) have been issued RFEs. This number reflects the total opposite situation of what we have experienced.

The new H-1B guidance issued by USCIS on January 8, 2010 has undoubted contributed to the surge of H-1B RFEs. This guideline tries to clarify what kind of standards and documents are used to determine whether an employee-employer relationship exists. However the guideline limits the opportunities of obtaining an H-1B visa for 3rd party off-site work, consulting firm practices, self-employed business owners, and agent-staffing company petitions. In evaluating petitions, USCIS uses key definitions provided by common law principles and Supreme Court decisions. Essentially, in order to qualify as an employer, the right to control when, where, and how a beneficiary does his/her job is key. This is different than actual control. However, in practice, USCIS relies heavily on evidence of actual control to determine the right of control. It is also the reason we have seen an increase of H-1B RFEs in petitions filed for 3rd party off-site work, consulting firm practices, self-employed business owners, and agent-staffing companies.

How do we deal with the surge of H1-B RFEs? Are those 3rd party off-site work, consulting firm work, self-employed, and agent-staffing company jobs totally out of the picture of H-1B visa holders? These are some tips that are helpful:

1. Complete the chain of documents starting from the actual Petitioner till the end-client;
2. Things get more complicated when there is one or two layer between you and end-client. Need to get letter from each mid-vendor;
3. Prepare the employment contract at the beginning of the process and be sure to clearly show the employer’s control;
4. In order to prove the control, please focus on the control of pay, day-to-day management, providing equipment and tools, and direct review of the employee;
5. If there is “consulting” involved, the following documents are needed: an employment contract, a contract with clients, a clients’ letter proving that the employer has the control of the employee, the employer’s handbook showing who is reviewing the employee’s work, and pay stubs;
6. Prepare initial H-1B filing the way you respond to the RFE—try to answer all possible RFE questions in the initial filing;

According to Public Law 111-230, which contains provisions to increase certain H-1B and L-1 petition fees. Public Law 111-230 requires the submission of an additional fee of $2,000 for certain H-1B petitions and $2,250 for certain L-1A and L-1B petitions. The law became effective upon signing and will expire on September 30, 2014.

The additional fees apply to a petitioner that employs 50 or more employees in the United States and has more than 50 percent of its employees in the United States in H-1B or L (including L-1A, L-1B and L-2) nonimmigrant status.

The single additional fee, if applicable, is in addition to the base processing fee, the existing Fraud Prevention and Detection Fee, and any applicable American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) fee needed to file a petition for a Nonimmigrant Worker (Form I-129), as well as any premium processing fees, if applicable.

U.S. Citizenship and Immigration Services (USCIS) clarified yesterday several key issues regarding the new fees, including the following:

* USCIS will require the new fees for any petition postmarked on or after Aug. 14, 2010.
* USCIS recommends that all H-1B, L-1A and L-1B petitioners, as part of the filing packet, include the new fee or a statement outlining why this new fee does not apply. USCIS requests that petitioners include a notation of whether the fee is required in bold capital letters at the top of the cover letter. Payment should be made with a separate check.
* Any petition that is postmarked on or after August 14, 2010, that does not include the new fee or a statement outlining why the new fee does not apply may receive a Request for Evidence (RFE). This means that the agency may issue RFEs for H and L petitions that were filed within the past week where the employer has more than 50 employees.
* Petitioners meeting these criteria must submit the fee with an H-1B or L-1 petition filed:
o Initially to grant an alien nonimmigrant status described in subparagraph (H)(i)(b) or (L) of section 101(a)(15), or
o To obtain authorization for an alien having such status to change employers.
* In calculating how many employees are in H-1B or L status, an employer must count any employee in L-2 status who is working pursuant to an Employment Authorization Document (EAD). L-2 petitions, however, are not themselves subject to the new fee.
* The calculation of how many employees are in H-1B or L status must be made at time of each filing. H-1B and L visa holders who are part-time employees as well as those visa holders working in the United States but not on U.S. payroll are to be included in the calculation.
* In determining who the "employer" is when a petitioner is part of a broader corporate structure, the agency will look to the regulation at 8 C.F.R. § 214.2(h)(4)(ii). This leaves many unanswered questions, and a company should consult with counsel if this determination may affect whether the employer is subject to the new fees.
* USCIS is in the process of revising the Form I-129 (Petition for a Nonimmigrant Worker) and related instructions.
* The Department of State (DOS) has not issued guidance on how it will implement the fees for blanket L petitions, and USCIS refused to comment on that point or its discussions with DOS. Because USCIS made references to the new fees being tied to the existing fraud fee, which does apply to L-1 blanket petitions, we anticipate that DOS will impose the new fee on L-1 blanket petitions along lines similar to those imposed by USCIS.

We will provide more updates soon.

According to KPBS, A bill to strengthen the U.S.-Mexico border could be a mixed blessing for San Diego. That's because paying for more for border security will require a hike in H1B visas.

The H-1B is a non-immigrant visa in the United States under the Immigration and Nationality Act, section 101(a)(15)(H). It allows U.S. employers to temporarily employ foreign workers in specialty occupations. If a foreign worker in H-1B status quits or is dismissed from the sponsoring employer, the worker can apply for a change of status to another non-immigrant status, find another employer (subject to application for adjustment of status and/or change of visa), or must leave the US.

The regulations define a “specialty occupation” as requiring theoretical and practical application of a body of highly specialized knowledge in a field of human endeavor including, but not limited to, architecture, engineering, mathematics, physical sciences, social sciences, biotechnology, medicine and health, education, law, accounting, business specialties, theology, and the arts, and requiring the attainment of a bachelor’s degree or its equivalent as a minimum (with the exception of fashion models, who must be "of distinguished merit and ability".) Likewise, the foreign worker must possess at least a bachelor’s degree or its equivalent and state licensure, if required to practice in that field.

Duane Roth, CEO of the biotech support group Connect, said that could make it more difficult for San Diego businesses to hire qualified workers. He said higher costs for H1B visas may also encourage more companies to outsource.

"A company may consider whether it's better to open a facility in a foreign country and hire the workers that are already there, versus the ability to bring some here to fill the opening jobs," said Roth.

He said the U.S. education system is not producing enough scientists and engineers to staff high-tech companies in San Diego.

I feel that another H1B fee hike will be a death blow to the possibility of retaining talented workers in the US and for small US companies to expand business.

Read the KPBS article here

The U.S. House of Representatives has passed a bill to steeply hike U.S. visa fees for skilled workers to raise $600 million in emergency funding to help secure the U.S.-Mexico border.

Senators passed a similar plan last week. But since the House version passed in a voice vote on Tuesday is slightly different it will go back to the Senate for final congressional approval before being signed into law by President Barack Obama. The measure proposes to raise the fees on H-1B visas for companies who have more than 50 per cent of their employees on such visas for highly skilled professionals from $320 to $2,320. Similarly the fee on L visas given to multi-national transferees from $320 to $2,570.

The additional fees from the popular H-1B and L visas programmes would be used to build operating bases and deploy unmanned surveillance drones to better secure the U.S.-Mexico border, one of the rare issues both Democrats and Republicans have agreed on. The legislation targets companies that lawmakers say "exploit" U.S. visa programmes. A summary of the Senate version listed Wipro, Tata, Infosys and Satyam as such firms, saying that they fly thousands of employees to the U.S. to work at as technicians and engineers for their clients.

H-1B Cap Count as on August 6, 2010:

Cap Type - H-1B Regular Cap
Cap Amount - 65,000
Cap Eligible Petitions - 28,500
Date of Last Count - 8/6/2010

Cap Type - H-1B Master's Exemption
Cap Amount - 20,000
Cap Eligible Petitions - 11,900
Date of Last Count - 8/6/2010

According to the San Diego Union Tribune, San Diego’s small businesses are heading to bankruptcy court at a higher rate than last year, and the city is among the Top 10 metropolitan areas in the country based on the number of filings.

The number of small businesses filing for bankruptcy in the San Diego-Carlsbad-San Marcos region was 387 in the first quarter of 2010, giving it the sixth-highest number of bankruptcies.

In the San Diego metropolitan area, the number of small businesses that filed for bankruptcy was up 12 percent, compared with the same period last year.

At the same time our office noticed an increase in E2 visa filings for foreign investors seeking to start a business in San Diego County.

The E-2 treaty investor visa is a nonimmigrant visa that allows foreign entrepreneurs from treaty nations to enter into the U.S. and carry out investment and trade activities. Investment activities include purchase of a new business. The investment must be significantly proportional to the total investment, that is, usually more than half the total value of the enterprise or, if a new business, an amount normally considered necessary to establish the business.

Aliens from Treaty countries who have made a substantial investment in the United States may qualify for E-2 Treaty Investor status. There is no set minimum level of investment, which may qualify for E-2 status, but the lower the investment the less likely one is to qualify. Therefore, the level of investment must be such that it is sufficient to justify presence of the treaty national in the United States.

Immigrants have an ever-increasing role in the creation of small businesses. Immigrant entrepreneurship is widely recognized as having a significant impact on traditional industries such as retail, ethnic restaurants and markets, and garment manufacturing. Our clients n the past few months formed restaurants, service businesses as well as technology companies. All the new companies hired American workers immediately and so far all are doing very well.

Our suggestion for any suffering business, before closing the doors, try to reach out to an E2 potential investor, there is always someone looking for opportunities in the US. Email me and I will be happy to connect you with a willing and able investor.

Here is the current H-1B Cap count of FY 2011:

Cap Type - H-1B Regular Cap
Cap Amount - 65,000
Cap Eligible Petitions - 24,800
Date of Last Count - 7/9/2010

Cap Type - H-1B Master's Exemption
Cap Amount - 20,000
Cap Eligible Petitions - 10,600
Date of Last Count - 7/9/2010

We will keep you posted on further development on this.

U.S. Department of State has released the new visa bulletin for August 2010 on July 12, 2010.

Here is the crux:
EB-1 category is current for both Chinese and Indian nationals.
EB-2 category, cut-off dates moved forward more than three months for Chinese nationals (from November 22, 2005 to March 1, 2006), and moved forward five months for Indian nationals from October 1, 2005 to March 1, 2006.
EB-3 category, dates moved forward from August 15, 2003 to September 22, 2203 and from November 22, 2001 to January 1, 2002 for Chinese and Indian nationals respectively

In 2008, 2,060 PERM applications were submitted to the Atlanta processing center in 2008 while the number of applicants decreased to 1,322 in 2009. Cut-off dates, for the most part, have continued to move forward. For Chinese and Indian recipients of EB-2s, the cut-off date this month moved up considerably. We hope to see the same trend in following months too.

The U.S. Department of Labor launched an online registry allowing the public to retrieve information about temporary agricultural jobs that fall under the H-2A program. The new tool was developed in compliance with regulations implemented by the department on March 15.

The H-2A job registry provides a single, easily searched point of entry for the public to retrieve information about agricultural jobs filed under the H-2A program. It offers a range of customizable searches and gives users the ability to view, print or download information about agricultural jobs easily and without the need to file a request under the Freedom of Information Act. The tool will display all active agricultural jobs until 50 percent of the period of employment has elapsed, and it will offer an archive of certified agricultural jobs for up to five years.

The Labor Department estimates that more than 700 H-2A applications — for more than 13,000 workers — have been received since March 15. As this system goes live today, nearly 450 active H-2A job orders become available to the public.

To access the H-2A job registry, click here .

USCIS has updated following on July 2, 2010 about the H-1B Cap Count

Cap Type - H-1B Regular Cap
Cap Amount - 65,000
Cap Eligible Petitions - 24,200
Date of Last Count - 7/2/2010

Cap Type - H-1B Master's Exemption
Cap Amount - 20,000
Cap Eligible Petitions - 10,400
Date of Last Count - 7/2/2010

As am Immigration Attorney that processed many H2A farm worker visas, I am happy to present the Take our Jobs initiative.

There are two issues facing our nation--high unemployment and undocumented people in the workforce--that many Americans believe are related.

Missing from the debate on both issues is an honest recognition that the food we all eat - at home, in restaurants and workplace cafeterias (including those in the Capitol) - comes to us from the labor of undocumented farm workers.

Agriculture in the United States is dependent on an immigrant workforce. Three-quarters of all crop workers working in American agriculture were born outside the United States. According to government statistics, since the late 1990s, at least 50% of the crop workers have not been authorized to work legally in the United States.

We are a nation in denial about our food supply. As a result the UFW has initiated the "Take Our Jobs" campaign. Farm workers are ready to welcome citizens and legal residents who wish to replace them in the field, we will use our knowledge and staff to help connect the unemployed with farm employers.

So fill out the form on this site and continue on to the request for job application. If you need a visa, just email me.......Farmers need you now!!!

The American Competitiveness and Workforce Improvement Act (ACWIA), imposes annual reporting requirements on U.S. Citizenship and Immigration Services (USCIS) concerning the countries of origin and occupations of, educational levels attained by, and compensation paid to, aliens who were issued visas or otherwise provided nonimmigrant status under H1B Visas during the previous fiscal year.

Here are some highlights from the report submitted by USCIS earlier this year:

• The number of H-l B petitions filed decreased 15 percent from 288,764 in Fiscal Year
2008 to 246,647 in Fiscal Year 2009.

• The number of H1B petitions approved decreased 22 percent from 276,252 in Fiscal
Year 2008 to 214,271 in Fiscal Year 2009.

• Approximately 48 percent of all H1B petitions approved in Fiscal Year 2009 were for
workers born in India.

• Two-thirds of H1B petitions approved in Fiscal Year 2009 were for workers between the
ages of25 and 34.

• Forty-one percent of H1B petitions approved in Fiscal Year 2009 were for workers with
a bachelor's degree, 40 percent had a master's degree, 13 percent had a doctorate, and 6
percent were for workers with a professional degree.

• About 41 percent of H1B petitions approved in Fiscal Year 2009 were for workers in
computer-related occupations.

• The median salary of beneficiaries of approved petitions increased to $64,000 in Fiscal
Year 2009, $4,000 more than in Fiscal Year 2008.

Pretty interesting information, we hope that things will improve as our economy continues to recover.

Seems like Nebraska is following in the steps of Arizona. Voters in eastern Nebraska will decide today whether to ban hiring or renting property to illegal immigrants. The vote will be the culmination of a two-year fight that saw proponents collect enough signatures to put the question to a public vote. If the ordinance is approved, the community of 25,000 people could face a long and costly court battle. Either way, the emotions stirred up won't settle quickly.The vote will be the culmination of a two-year fight that saw proponents collect enough signatures to put the question to a public vote. If the ordinance is approved, the community of 25,000 people could face a long and costly court battle. Either way, the emotions stirred up won't settle quickly.

From about 165 Hispanics — both legal and illegal — living in Fremont in 1990, the total surged to 1,085 in 2000, according to census expert David Drozd at the University of Nebraska at Omaha. He said an estimated 2,060 Hispanics lived there last year. In May, Fremont recorded just 4.9 percent unemployment, in line with the statewide rate and significantly lower than the national average of 9.7 percent.

If approved, the measure will require potential renters to apply for a license to rent. The application process will force Fremont officials to check if the renters are in the country legally. If they are found to be illegal, they will not be issued a license allowing them to rent.

What do you think of this story, read more on NPR

A great tip from AILA to share with our readers regarding the H1B visa. It seems that H-1B petitions for Speech Language Pathologists (SLP) and similar related occupations are being closely monitored to ensure that accurate job duties are being identified to confirm CGFNS (Commission on Graduates of Foreign Nursing Schools) certification requirements.

There are multiple progressive occupations within the Speech Language Pathology career field including, Teachers of Speech and Hearing Handicapped (TSHH), Teachers of Speech and Language Disabilities (TSSLC), Speech Language Pathologist Assistants (SLPA) and Clinical Fellows (CFY), and Speech Language Pathologists (SLP).

While all of these positions require a state license, only SLPs who are certified by the American Speech-Language-Hearing Association (ASHA) may provide direct patient care without supervision, and thus, only certified SLPs require CGFNS certification.

According to CGFNS, the other related occupations (TSHH, TSSLC, SLPA, and CFY, all of which require a minimum of a bachelor's degree, a license, and direct supervision by a licensed SLP) do not provide independent patient care and must be supervised by a licensed SLP and, therefore, are not eligible for CGFNS certification.

USCIS officers ask that H petitioners carefully delineate the job duties of positions within this career field so that officers can determine whether the position is one of the SLP related occupations that do not require CGFNS certification.

As PERM processing becomes faster in recent months, icert problems continue though. DOL has reported that the incorrect error message that pops up upon entering a date for the prevailing wage source is the result of recent system edit. The glitch will not affect useability, i.e., users can bypass the error message and submit LCAs for processing. In addition, a fix is in development and will likely be in place today or tomorrow. Common recent problem is receiving an inappropriate system warning when entering the Prevailing Wage source. We hope these problem will be fixed soon as the PERM process becoming rather annoying. We will keep our readers posted.

As the Hospitality business was booming in the US, more and more Hospitality professionals in Europe came to the US and started their own businesses via the E2 visa investment. The same happened to Dean and Laura Franks, a British couple who opened the restaurant in 2000 in the state of Maine.

They used the E2 visa, the nonimmigrant investor visa. It is a temporary category that is granted in two-year to five year increments with no limits on the number of extensions. Now they found that after nine years of running their business, they could not renew their visa, forcing them to shutter the restaurant and leave the country. They are not alone. In the past few months we have seen numerous, E2 and L1A visas get denied for no valid reason. Is the US government turning investors away, are they denying cases intentionally? If so why now?

In denying the Franks’ renewal application last year, immigration officials said their restaurant had become a marginal business. The government sets no specific dollar amount, but it defines a marginal enterprise as one that “does not have the present or future capacity to generate more than enough income to provide a minimal living” for the visa holder and his family.

The Franks were surprised and confused to learn last year that they were deemed marginal. Their tax returns show that their gross annual income in 2008 was $64,000, in addition to rental income of $16,800. Their gross profit for the year was $38,800, which was down from their gross profit in 2007 of $50,700 because of the recession, which hit most businesses. They said they barely needed more than enough to provide for minimal living because that is how they live — minimally.

This is a very subjective test, and we are concerned that many Immigration officers are now applying it more freely.

Immigrants have an ever-increasing role in the creation of small businesses. Immigrant entrepreneurship is widely recognized as having a significant impact on traditional industries such as retail, ethnic restaurants and markets, and garment manufacturing. But new industries in the technology sectors are playing an increasingly important role in the domestic economy and in creating professional links with the international markets in their countries of origin. We hope that the Immigration Service and State Department will stop denying extensions to small businesses that sustain our economy and create jobs to US Citizens.

Here is the latest on the H1B visa numbers. May 21, 2010 H-2B Cap Count

As of 05/21/10, USCIS receipted 26,422 H-2B petitions, towards the 47,000 beneficiaries target for the second half of the fiscal year.* This count includes 25,178 approved and 1,244 pending petitions.

With all the hype, hysteria and hot air generated around the H1-B visa program issue during the past several years, one fundamental truism remains: the current annual level of H-1B visas being utilized in the United States is about the same level as in 1990.

This is pretty amazing when one considers two facts: 1) the U.S. GDP has risen by 64 percent during the past 19 years (from from $8.5 trillion to $14 trillion) and 2) and during the same time frame, the U.S. technology industry - by far the largest group to take advantage of H1-B visas and arguably its largest beneficiary grown by a considerably larger margin on an annual percentage basis.

Our government is making it increasingly difficult for U.S. companies to hire the "best and brightest." The irony here is that we have never had a greater sense of urgency when it comes to fostering new thinking and technology development in the areas of biotech, clean tech, healthcare, and IT and in driving innovation across all geographies.

As the H1B season still in full force, we would like to share this great tip from AILA. This post discuss where to file H-1B extensions for beneficiaries working for petitioners, which are not cap exempt, but who are "employed at" cap exempt facilities.

The VSC (Vermont Service Center) refers to the September 10, 2009, USCIS Guidance regarding the direct filing address for I-129 petitions, noting that H-1B employers filing petitions which are cap exempt must file such petitions exclusively with the California Service Center.

VSC notes that in this instance, the term "cap exempt" refers only to those petitioners who are exempt from the numerical limitations identified in 8 CFR 214.2 (h)(8)(i)(A). "Cap exempt" petitioners are those described in 8 CFR 214.2(h)(19)(iii), and include:

* Institutions of higher education as defined in section 101(a) of the Higher Education Act of 1965, 20 U.S.C. 1001(a);
* Nonprofit organizations or entities connected or associated with institutions of higher education, as described in 8 CFR 214.2(h)(19)(iii)(B);
* Nonprofit research organizations or governmental research organizations as defined in 8 CFR 214.2(h)(19)(iii)(C); and
* Petitioners who otherwise would not be "cap exempt," but will be employing the beneficiary to perform job duties at a qualifying cap exempt institution, provided that the beneficiary's duties will directly or predominantly further the normal, primary, or essential purpose, mission, objectives or function of the qualifying cap exempt institution.

All petitions for individuals "employed at" cap exempt facilities will be rejected by the VSC, even if the beneficiary is working for a petitioner which is not cap exempt. So this is a major point to keep in mind.