Articles Posted in Work Visas

We previously reported on the temporary freeze on filing H2B visas. H-2B petitions for temporary non-agricultural workers are being adjudicated once again at the Vermont Service Center (VSC).

VSC anticipates completing pending petitions by early May, and have advised that no action is required by petitioners. The suspension of H-2B adjudications was imposed by USCIS on March 22, 2013, in response to a court order vacating part of the DOL’s 2008 wage methodology rule for certain H-2B prevailing wage determinations.

VSC management has confirmed that premium processing refunds for H-2B petitions filed in March have all been processed and the Debt Management Office is handling the review and issuance of the refunds. Some refunds have already been issued and petitioners should expect to see those in the coming weeks.

So the H1B season is over, faster than expected. But what occupations were the most popular this H1B season, how many Computers Programmers, Engineers, Consultants, etc were filed this past few months? The Labor Department provided statistics as to the number of Labor Condition Applications (LCA) filed this season.

LCA stands for Labor Condition Application. Before an employer may file an H1B petition, the employer must first file an LCA with the Department of Labor. In filing an LCA, the employer attests to a number of conditions that must be followed during the term of the LCA. An employer may withdraw and LCA if the employer revokes the H1B petition. If an employer fails to adhere to the representations made, the DOL may bring an action to compel back pay and fines.

72,604 Programmer Analysts H1B LCA’s were filed, the top occupation. New Jersey is the leading state in filing Visas. California is second. Read more below:

Bad news, but it is official. The annual H-1B cap has been reached for this year, according to the U.S. Citizenship and Immigration Services, and at a pace that is several months ahead of last year.

The U.S. issues 85,000 H-1B visas each year under its cap, with 20,000 of that number set aside for advanced degree graduates of U.S. universities.

The USCIS, which begins accepting H-1B petitions on April 1 of each year, announced today that the openings for fiscal 2013 have been filled.

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.