By Ekaterina Powell, Esq.
On July 11, 2014, USCIS released new guidance on adjudication of H-1B petitions for nursing occupations, which superseded the previous USCIS Memorandum of Johnny Williams, INS Office of Field Operations, Guidance on Adjudication of H-1B Petitions filed on Behalf of Nurses, HQISD 70/6.2.8-P (November 27, 2002).
New USCIS guidance has the “Policy” designation, which means that it has to be followed by USCIS adjudicators.
By Ekaterina Powell, Esq.
Since the H-1B season kicked off on April 1, 2014, USCIS has started issuing Requests for Evidence (RFE). This article will address the RFE trends and practice tips.
Below are 4 main points USCIS addresses in the RFEs:
On Tuesday May 6, 2014 the Department of Homeland Security announced the publication of two newly proposed rules designed with the purpose of attracting and retaining highly skilled foreign workers. Both initiatives seek to advance the United States economy and improve competitiveness by recruiting the best and brightest professionals the world has to offer.
Proposal to Extend Employment Authorization to Spouses of Certain H-1B Workers:
The first proposal allows spouses of certain H-1B workers to extend their employment authorization in the United States
By Ekaterina Powell, Esq.
In the recent case Caremax Inc. v. Holder (N.D. Cal., 2014), the court granted the government’s motion for summary judgment and ruled that Public Relations Specialist offered to the beneficiary is not an H-1B caliber position.
The H-1B employer and the employee filed a declaratory relief action asking the District Court to determine whether the position of PR Specialist offered to the beneficiary constitutes a “specialty occupation” under the INA and if so whether the employee meets the qualifications to be employed in the position.
On April 17th, USCIS announced that premium processing for H-1B petitions, subject to the fiscal cap year of 2015, would begin on April 28, including petitions qualifying for the advanced degree exemption. Additionally, USCIS guarantees a processing time of 15 calendar days for such petitions.
By Yingfei Zhou, Esq.
Q: How can I apply for EB-5 visa?
A: There are two requirements on foreign investors seeking a green card. First, you must invest sufficient funds in an approved project of your choice. Second, ten new full-time jobs must be created as a direct result of that investment. The investment must be either in a new business or an existing business and the investment will spur either a 40% increase in net worth or employees of the existing business.
On April 07, 2014, in a much awaited public announcement, U.S. Citizenship and Immigration Services announced that it had already reached the statutory cap of H-1B petitions allotted for the 2015 fiscal year. According to the announcement, on the first five days USCIS began to count H-1B petitions, it was already flooded with more than 65,000 of regular cap H-1B petitions and more than 20,000 H-1B petitions qualifying for the advanced degree exemption.
USCIS began accepting H-1B petitions subject to the 2015 fiscal year cap on April 01, 2014. The H1-B visa program is utilized by U.S. businesses seeking to employ foreign workers in what are known as ‘specialty occupations’. Specialty occupations are those that necessitate highly specialized knowledge, whether theoretical or practical, as stated on the USCIS website. Specialty occupations include but are not limited to scientists, doctors, mathematicians, or engineers.
According to the announcement, USCIS completed initial intakes for all filings received by the filing deadline (April 07, 2014), and will conduct a random computer generated selection process also known as a lottery system of selection. Under this process, USCIS will select the number of petitions necessary to fulfill the 65,000 visa cap limit for the general category, and the 20,000 visa cap limit under the advanced degree exemption. Those whose cap-based petitions are not selected will have their cases rejected and filing fees returned to them. As stated by USCIS, the computer generated selection process will consider the advanced degree exemption first. Advanced degree petitions that are not accepted through the initial lottery system will be subjected to the lottery system for the general category.
Now that the H-1B cases have been filed, we are anxiously waiting to get the news from USCIS on the cap count.
Last year, USCIS announced on April 5 that it received approximately 124,000 H-1B petitions during the five day filing period, including petitions filed for the advanced degree exemption. Then, on April 7, 2013, USCIS used a computer-generated random selection process (commonly known as a “lottery”) to select for processing a sufficient number of petitions needed to meet the caps of 65,000 for the general category and 20,000 under the advanced degree exemption limit.
What to Expect This Year
Our office receives many inquiries from start-up companies that want to hire employees under H-1B visa. As the H-1B season has begun, we would like to provide our readers with the updates and important considerations for this category of H-1B visas.
The following article was prepared by attorney Ekaterina Powell from our office and was featured as the cover article in VOICE, the American Immigration Lawyers Association publication.
It is that time of year where companies and individuals are preparing to send their cases to US Immigration to apply for an H-1B visa. Last year the entire cap was filled in the first week of filing, meaning many people were left out and could not get an H-1b visa. When thinking about how many people could not get jobs through this process, an organization that has studied the affects of H-1b visas on the market came out with a job loss calculator, which estimates the numbers of American jobs lost due to the lack of H-1b visas. Compete America’s calculator estimates that 500,000 new U.S. jobs could have been created this year absent outdated restrictions on H-1B visas. From another perspective, according to Compete America, the 2.37 million new payroll jobs created in 2013 might have been increased by 21 percent under a different H-1B scheme.
So what does this calculator really highlight? Well, the calculator clearly shows the fact that higher-skilled immigrant workers impact the U.S. economy, helping push cutting-edge innovation, which then creates more jobs for everyone. According to a new report by Standard & Poor’s, “Adding Skilled Labor to America’s Melting Pot Would Heat Up U.S. Economic Growth,” which means highly skilled immigrants help create jobs for American workers, not take them away like many who stand opposed to increasing the cap would claim. Higher skilled workers actually complement U.S. workers’ skills instead of competing with them, and are more likely to start a new business than U.S.-born workers, which further increases innovation and productivity, according to S&P. Research from the National Foundation for American Policy suggests the hiring of each H-1B worker actually creates employment for 7.5 workers in small to mid-sized technology companies.
The insufficient number of H-1B visas goes to a deeper problem of having an outdated system that cannot respond to the demands of an ever-changing economy. Absent a few years of temporary increases, the cap on H-1B visas for skilled workers with bachelor’s degrees has been set at 65,000 per year for more than 20 years. Since demand far exceeds supply, the cap runs out every year, which last year’s cap was filled the first week it was open.
Visa Lawyer Blog