According to Michael Barone’s Examiner column today about immigration brings to mind interesting points. Michael concludes:
My prediction is that we won’t ever again see the heavy Latin immigration we saw between 1983 and 2007, which averaged 300,000 legal immigrants and perhaps as many illegals annually.
Mexican and other Latin birth rates fell more than two decades ago. And Mexico, the source of 60 percent of Latin immigrants, is now a majority-middle-class country.
This is the latest update regarding the H1B cap numbers. As of April 13, 2012, approximately 20,600 H-1B cap-subject petitions were receipted. Additionally, USCIS has receipted 9,700 H-1B petitions for aliens with US advanced degrees.
With respect to the H1B Cap, most people only need to be counted against the H1B cap once. The rule regarding the cap references being counted within the six years prior to the petition. However, even those requesting extensions beyond six years do not need to be counted against the H1B cap, if they have previously been counted. This general rule holds true even if one changes to a different no-nimmigrant status in the interim.
The numbers are running fast, so our advice is to apply as soon as possible. Email us with any questions.
With a few days left before the April 2, 2012 deadline, we learned that poor filing decisions make risk your case delivery and as a result miss the H1B cap.
USCIS stated that cases are considered “accepted on the date that USCIS takes possession of a properly filed petition with the correct fee,” and that it does not rely on the date the petition is postmarked or the date the petition is delivered to a P.O. Box or USPS address.
Employers are advised that petitions that are sent to USCIS via U.S. Postal Service Express Mail, even those that are addressed to the physical address of the service center, are not actually delivered to the service center, but are instead delivered to a U.S. post office. When received at the U.S. post office, such petitions may even be “signed for” as received by a USCIS official.
A recent USCIS Q&As, updated on March 12, 2012, provide information on establishing an H-1B employer-employee relationship. New questions include information on end-client documentation and establishing an employer-employee relationship in the consulting or staffing company context.
The U.S. Citizenship and Immigration Services (USCIS) issued a memorandum ( dated January 8, 2010 that had great significance for the IT consulting industry. This memo specified how USCIS personnel should determine the existence of the required employer-employee relationship when adjudicating H1B petitions. The memo, issued by Associate Director of Service Center Operations, Donald Neufeld, provided guidance regarding the type of evidence that sufficiently confirms the existence of an employer-employee relationship between an H1B-petitioning employer and the beneficiary when the employee’s work is performed off site.
The update from today added the following clarifications:
A final rule has gone into effect allowing the U.S. Department of State (DOS) to issue L visas based on the visa reciprocity schedule. Under current regulations, L visa issuance is limited to the petition validity period, which is determined by the Department of Homeland Security and cannot exceed three years.
The DOS has changed the regulation to allow a visa to be issued for the same period as determined in the reciprocity schedule, which reflects the reciprocal treatment the foreign national applicant’s country accords U.S. nationals.
Nationals from countries for which the reciprocity schedule prescribes visa validity for a longer period of time that the initial validity period indicated in the petition that was approved by the Department of Homeland Security and who have extended their stay in the U.S. would benefit from the pending rule. They would not need to re-apply for an L visa at a U.S. Embassy or Consulate overseas if they travel outside the U.S. during the period specified in the relevant reciprocity schedule, the number of visa applications that a foreign national will need to make will be reduced.
The Department of Labor (the Department) is amending its regulations governing the certification of the employment of nonimmigrant workers in temporary or seasonal non-agricultural employment and the enforcement of the obligations applicable to employers of such nonimmigrant workers. This Final Rule revises the process by which employers obtain a temporary labor certification from the Department for use in petitioning the Department of Homeland Security (DHS) to employ a nonimmigrant worker in H-2B status. Theses are major changes, so please review the chart below to compare with the 2009 changes.
For more than a century, agriculture has been an entry point into the labor market for immigrants in the United States. Presently, close to three-fourths of all U.S. hired farm workers are immigrants, most of them unauthorized. Their unauthorized legal status, low wages, and an inconsistent work schedule contribute to a precarious economic state.
In a move that reflects the growing agricultural labor shortage across the country, Kansas Agriculture Secretary Dale Rodman has decided to seek a federal waiver that would allow Kansas dairies and feedlots desperate for workers to hire undocumented immigrants.
The proposal is likely to stir controversy in the Kansas Legislature and divide the Republican majority, some of whose members are pursuing proposals to crack down on illegal immigration. Representatives of the business coalition, which includes agriculture groups and the Kansas Chamber of Commerce, provided a draft copy of their proposed legislation to The Associated Press ahead of its formal introduction in the House and Senate.
In a previous Blog post we have updated the period of Admission for Canadian Applicants, this post will provide the latest update for Mexican Professional Applicants under NAFTA.
Prior to Mexico’s accession to the U.S./Canada agreement. IMMACT90 made U.S. immigration laws more restrictive. When Congress later approved the favored relationship–NAFTA–citizens of Mexico were given the benefit of the then-current U.S. immigration law. Benefits granted to Canadian citizens of the CFTA prior to IMMACT90, therefore, were not granted to citizens of Mexico. Unlike Mexicans, Canadians are not required to have visas except in the E and K categories, although they must meet all the requirements of a visa category to be eligible for admission to the United States.
In contrast, citizens of Mexico without border crossing cards (BCCs) must have visas, and therefore, they are not eligible for the port-of-entry adjudication afforded Canadian citizens by NAFTA. Although U.S. immigration laws have become increasingly restrictive, NAFTA citizens of Canada and Mexico are favored more than businesspersons from any other country.
This is an important decision for all employers with current H1B employees. The Department of Labor’s Administrative Review Board (ARB) found that the time period it took for the employee to obtain a social security card, which the employee’s employer required for their payroll system, was “nonproductive status.” The employer was therefore required to pay wages for the two-week period that it took for the employee to obtain the social security card.
However, the ARB found that the employer did not owe back wages to the H-1B worker for the period between her arrival in the U.S. and the date she contacted her employer to inform them that she was in the U.S. The ARB also found that the employer was not required to pay wages to the H-1B worker for the time period in which she was unavailable for work as a result of personal matters such as opening a bank account, obtaining a car lease, securing a driver’s license, and securing schooling and day care for her children. These were periods in which the H-1B worker was in voluntary nonproductive status.
The DOL has a regulation that states that an employer who files an H1B petition must begin to pay the sponsored worker the required LCA wage when the worker enters into employment. The DOL defines this as when the worker makes himself or herself available for employment or when the worker comes under the control of the employer.
The following article covers CBP standards for accepting L-1 petitions for Canadians under NAFTA. The standards discuss the burden of proof, package completeness, review of the petition, and submission to USCIS by CBP.
With the institution of the North American Free Trade Agreement (NAFTA), the use of L-1 visas has been supplemented by the use of E-1 and E-2 visas. However, the L-1 can be easier to apply for because it requires less documentation and can be immediately obtained at the border and other Ports of Entry. The L-1 visa, therefore, continues to be a useful immigration tool for companies that do not qualify for E status.
1. The burden of proof for establishing eligibility rests with both the petitioner who is filing the petition; and the beneficiary, who is applying for admission.
Visa Lawyer Blog