Visa Lawyer Blog

Articles Posted in Work Visas

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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.

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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.

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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.

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Great Video that gives a glimpse into the life of a foreign job seeker trying to make it America.

At this rate of mechanical efficiency, supported by technology, it will be extremely difficult to create jobs for the entire world population (not that I’m arguing these companies SHOULD create jobs for the entire population). Again, assuming that I attended school at the of this revolution, I have therefore not worked in a professional capacity with digital marketing. However, I have been able to learn on my own and at school, albeit not at the same pace with which technology has evolved. For formal education to keep pace with changing industries, changes will need to be made in the current academic institution mind-set/process, such as: a refresh of curriculum at schools; dynamic teaching processes to prepare students and professors for the future, focuses on unlearning outdated material and learning new technologies and new material (this is not to say that all old learnings should be forgotten, but rather to say that they should be refreshed at a more rapid pace); and, more classes emphasizing how technology is rapidly being employed to change the face of the world. For example, I can count on one hand the number of classes at my MBA program that even mention technology, much less emphasize it. In a job market where only people who understand technology are in high-demand, academia cannot afford to neglect incorporating more technology-focused courses and learnings into its curricula.

This gap is extending and unless checked there will be a huge void between the required skill sets demanded by employers. I would go so far as to say that this gap might hamper and curtail the progress of the digital infrastructure. I wonder if we can somehow make use of the same technologies and support passionate people who are taking the leap of faith to ensure they remain educated, and at the same time needed in the workforce (for example, corporate outreach in the form of technology course sponsorship, etc)? Unless this happens the unemployment rate will, at best, stagnate, at worse increase to a level never before seen in the past 50 years.

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The B1 visa is still a hot and controversial option for business visitors. At the AILA Rome District Chapter conference held in London, representatives of the DOS in London indicated that Consular Officers may no longer be printing endorsements on B-1 visas indicating the basis for issuance of the visa (e.g., B in lieu of H or BILOH endorsements). Instead, Consular Officers will enter information relating to the basis for issuance of the B-1 visa in an online database accessible to CBP officers at POEs (in order to defer such adjudications to CBP):

The following questions were discussed and we are sharing with our readers:

a) Has CBP in Dublin engaged in discussions with DOS relating to this change in DOS

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There are thousands of employment opportunities all over the United States. But the simple fact is that finding a good job with an employer willing to go through the visa petitioning process can be quite difficult, time-consuming and expensive. Most employers are simply not interested in sponsoring immigrants for visas.

One of the most frequent and difficult questions that international workers ask is “When and how should I tell a prospective employer that I am a foreign worker?” There is certainly no easy or correct answer to this question. Watch our video and hope that you can get some answers here!
https://www.youtube.com/watch?v=nw4CDlpmjpw

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Today, U.S. Citizenship and Immigration Services (USCIS) posted a job announcement and began accepting applications from business experts to serve on the USCIS Entrepreneurs in Residence tactical team. The purpose of the tactical team is to bring business experts in-house to work alongside USCIS staff to ensure that current immigration laws’ potential to attract foreign entrepreneurial talent is fully realized. The tactical team will help develop policy guidance and training tools that support their decision-makers. The Entrepreneurs in Residence initiative provides USCIS a unique opportunity to gain knowledge on how specific industries operate and to use that knowledge to inform USCIS’s policies and practices. Together this will ensure that immigration pathways for foreign entrepreneurs are clear, consistent, and better reflect today’s industry realities.

The Entrepreneurs in Residence initiative is the perfect complement to the changes made to the National Interest Waiver. The new regulations regarding the National Interest Waiver allows an entrepreneur to petition himself because the entrepreneurship is in the national interest and will have such an impact. With business experts working alongside USCIS to provide better guidance in the decision-making process, there is a better chance that a good National Interest Waiver for an entrepreneur will be approved. This is a step in the right direction for bringing more entrepreneurs and foreign investors to the U.S. who want to bring business here that will have a meaningful impact on the economy. Once the initiative commences, we will provide an update on how much it impacts entrepreneurs and their opportunities to bring business to the U.S.

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Now the J1 Visa is on the spot, and for a reason. Secretary of State Hillary Rodham Clinton has ordered an “extensive and thorough review” of a foreign exchange program that has been used by U.S. businesses as a source of cheap labor and exploited by criminals to import women to work in the sex industry.

The J1 Work & Travel Program offers overseas university exchange students a challenging opportunity to intimately experience life and culture in the U.S. during their summer holiday period.

Work & Travel J1 provides international university students the chance to work at entry-level, seasonal jobs in the United States for up to 4 months on a J-1 Visa. Participants are entitled to work, earn money and travel at the end of the work assignment.

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Another victory for our office appealing a tough H1B denial, consistency pays eventually. This article was prepared by attorney Ekaterina Powell from our office.

H-1B is a “specialty occupation” work visa. Traditionally, occupations in law, medicine, sciences and engineering are considered specialty occupations. However, the statute and the regulations contain provisions that allow other professions to be considered specialty occupations if certain conditions are met. For example, if a baccalaureate in a specific specialty (or its equivalent) is normally the minimum requirement for entry into the particular position, then the position should be viewed as a specialty occupation.

USCIS uses the Occupational Outlook Handbook (OOH), a publication of the Department of Labor in its analysis on whether a particular position can be classified as a specialty occupation. Unfortunately, USCIS continues to use its overly restrictive interpretations of the H-1B regulations when it comes to the occupations in marketing, public relations, or management and business related professions.

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A few updates for our Italian Investor clients, Effective December 1, 2011, all E visas applications will be processed in Rome. Therefore, all new E1 Visa and E2 visa applications submitted after December 1, 2011 should be sent to the E Visa Section in Rome following the directions on the web. (http://italy.usembassy.gov./visa/vis/vis-6-en.html) All cases will be processed in the order received. All pending cases sent to Milan prior to December 1, 2011, will be processed to conclusion in Milan, in the order they were received.

In a Small Business Administration (“SBA”) study, the report found that, “Immigrants are nearly 30 percent more likely to start a business than are nonimmigrants, and they represent 16.7 percent of all new business owners in the United States.” This SBA report also found that nearly 30 percent of all new business owners per month in New York, Florida, and Texas, are immigrants. In addition, business owners from Europe constituted a growing share of immigrant business owners.

The E Visa for those unfamiliar with the opportunity, provides nonimmigrant visa status for a national of any of the countries with which the United States maintains an appropriate treaty of commerce and navigation, who is coming to the United States to carry on substantial trade, including trade in services or technology, principally between the United States and the treaty country, or to develop and direct the operations of an enterprise in which the national has invested, or is actively in the process of investing substantial amount of capital.

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