Articles Posted in Work Visas

A recent article on Ars Technica has shed some light on an important issue going on in the U.S., the ability to get work visas. Some of the Silicon Valley’s most important companies, including Intel, Google, and Yahoo, were cofounded by immigrants. Yet America’s ponderous immigration system makes it difficult for talented young people born outside of the U.S. to come to the Bay Area. There have been various proposals to make it easier for immigrant entrepreneurs to come to the United States, but that has not made much progress in Congress.

A new company called Blueseed is seeking to bypass the political process and solve the problem directly. Blueseed plans to buy a ship and turn it into a floating incubator anchored in international waters off the coast of California.

An interview by Ars Technica talked to Blueseed founder Max Marty. He acknowledged that it would be better for America to reform immigration laws and thereby make his company unnecessary. But in the meantime, Marty and his team are hard at work tackling the practical obstacles to making their vision of a floating, year-round hack-a-thon a reality. Within the next year, they’re hoping to raise a venture capital round large enough to lease or buy a ship with space for around a thousand passengers. If Blueseed’s audacious hack of the immigration system is successful, it will not only open up Silicon Valley to a broader range of entrepreneurs, it will also shine a spotlight on the barriers American law places in the way of immigrants seeking to start businesses in the United States.

Blueseed is trying to overcome the limitations of American immigration law, but its business model also depends in critical part on the goodwill of American immigration officials. That is because a key part of the Blueseed sales pitch is that residents will be able to make regular trips to the mainland.

Immigration law makes it difficult for many would-be immigrants to get permission to work in the United States. For example, there’s an annual cap on the number of H1-B visas available for American employers to hire skilled immigrant workers, a cap that was recently met. However, permission to travel to the United States for business or tourism is much easier to get.

Marty pointed to the B-1 business visa as a key part of his company’s strategy. With a B-1 visa, visitors can freely travel to the United States for meetings, conferences, and even training seminars. B-1 visas are relatively easier to get, and can be valid for as long as 10 years.

Blueseed plans to provide regular ferry service between the ship to the United States. While Blueseed residents would need to do their actual work—such as writing code—on the ship, Marty envisions them making regular trips to Silicon Valley to meet with clients, investors, and business partners.

With the ship only 12 miles offshore, it should be practical to make a day trip to the mainland and return in the evening. A B-1 visa also permits overnight stays, making it useful for extended business related visits.

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OK so game is over for 2011, next filing is April 2012. U.S. Citizenship and Immigration Services (USCIS) announced that as of Tuesday, November 22, the 65,000 H-1B cap for fiscal year 2012 has been exhausted. USCIS previously confirmed that it had exhausted the 20,000 cap for employees with advanced degrees from U.S. colleges and universities. As such, the next available H-1Bs will be available for filing on April 1, 2012 with a start date of October 1, 2012.

The American Immigration Lawyers Association (AILA) commented on Wednesday’s announcement from the United States Citizenship and Immigration Services (USCIS) that it has received a sufficient number of H-1B petitions to reach the statutory cap of 65,000 visas for fiscal year 2012 since the filing window opened on April 1st this year.

“During a time when job creation is the nation’s number one priority, why are we still fiddling around with an outmoded quota system that ignores the importance of immigrants to the economic engine?” said AILA President Eleanor Pelta.

OK so the cap will be met by next week, we are certain now. U.S. Citizenship and Immigration Services (USCIS) announced that, as of November 18, 2011, it has received approximately 61,800 H-1B petitions counting towards the congressionally-mandated 65,000 limit. USCIS previously confirmed that it has received 20,000 H-1B petitions for employees with advanced degrees from U.S. colleges and universities, thus reaching the annual limit on H-1B petitions in the advanced degree category. Accordingly, additional H-1B petitions in this category will be adjudicated under the 65,000 general cap.

USCIS has historically accepted a greater number of H-1B petitions than the number available for approval under the cap based on the assumption that some petitions will be denied, rejected or withdrawn. USCIS will once again use actual data on approval and denials for this fiscal year to determine how many petitions should be accepted for filing and when to end the filing period for cap-subject petitions.

Hurry and file your cases now.

So why are we so stressed out in the past week or so, H1B time is on us. U.S. Citizenship and Immigration Services (USCIS) announced that, as of November 14, 2011, it has received approximately 56,800 H-1B petitions counting towards the congressionally-mandated 65,000 limit. USCIS also confirmed that it has received approximately 20,000 H-1B petitions for employees with advanced degrees from U.S. colleges and universities. The annual limit on H-1B petitions in the advanced degree category is 20,000. However, USCIS is still accepting H-1B petitions under the general cap for employees with advanced degrees from U.S. colleges and universities.

So looks like the economy is doing better, just look at H1B numbers from last year. In mid-November 2010, USCIS had received approximately 46,800 H-1B petitions counting towards the mandated 65,000 limit and approximately 17,200 H-1B petitions for employees with advanced degrees from U.S. colleges and universities. We expect even less visas to last next year.

So bottom line, call your Lawyers and let the filing begin!!

To qualify for an H-1B visa foreign nationals must have the a U.S. Bachelor’s Degree or its equivalent in their specialty and, in fields that require licensing, such as teaching or pharmacy, a full unrestricted license to practice in the U.S. You must also have a U.S. employer to sponsor you; you cannot be self-employed or self-petitioned.

Thus, if you wish to come to the U.S. on an H-1B specialty occupation visa, and all your degrees are foreign degrees, you will need your educational credentials evaluated and submit that evaluation with the H-1B petition.

At a recent meeting between AILA and USCIS officials, the following issue came up: We request that Service Center Operations Director advise on how the Service treats foreign degrees, for equivalency purposes, if the programs were structured differently at the time

We have been reporting on the increase in unjust H1B denials for weeks. In many cases applicants and their lawyers are left with the option to appeal or refile. But when the media gets involved, USCIS are forced to change course.

Earlier this week “World News” shared the story of Amit Aharoni, an Israeli national and a graduate of Stanford Business School, who secured $1.65 million in venture capital funding with two cofounders to launch CruiseWise.com, an online cruise booking company. The company hired nine Americans in just one year.

But Aharoni hit rough waters after he received a letter on Oct. 4 from U.S. Citizenship and Immigration Services denying his request for a visa and notifying him that he needed to leave the country immediately. Aharoni moved to Canada, where he was forced to run his company via Skype from a friend’s living room. While “World News’ viewers voiced their disappointment, this morning, Aharoni received an email from USCIS. He was told that his petition had been reconsidered and approved. He is once again able to work in the U.S.

So the race for H1b Visas is on. As of October 28, 2011, USCIS received approximately 49,200 H-1B petitions counting towards the congressionally mandated 65,000 limit. USCIS also confirmed that it has received approximately 20,000 H-1B petitions for employees with advanced degrees from U.S. colleges and universities.

The annual limit on H-1B petitions in the advanced degree category is 20,000. Accordingly, USCIS is still accepting H-1B petitions under the general cap. Employees with advanced degrees from U.S. colleges and universities may still apply under the general cap.

The H-1B numbers are being used at a faster rate this year than they were last year. In October 2010, USCIS had received approximately 45,600 H-1B petitions counting towards the congressionally mandated 65,000 limit and approximately 16,700 H-1B petitions for employees with advanced degrees from U.S. colleges and universities.

Can you own your company as an H1B Holder? Attorney Ekaterina Powell from our office has prepared the summary of the updates regarding establishing employer-employee relationship for H-1B purposes in cases where the beneficiary owns 100% of the petitioning company.

Since the issuance of Neufeld Memorandum “Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Placements” in January 2010, USCIS has issued Requests for Evidence (RFEs) for many companies where the beneficiary is also a stockholder of the petitioning company. Often times, the RFEs are issued even if the beneficiary owns a minimal percentage of shares in the petitioning company.

In the situations where the beneficiary has an ownership interest in the petitioning company, it has to be established that the petitioner can be classified as the employer pursuant to 8 C.F.R. § 214.2(h) (4) (ii) (2). In other words, it has to be established that there will be an “employer-employee relationship”, as indicated by the fact that the petitioner may hire, pay, fire, supervise, or otherwise exercise the right to control over any such employee.

As lawyers specializing in the H2B visa process, we wanted to share the following update. The Department of Labor (DOL) is now issuing two prevailing wage determinations (PWD) for H-2B cases. Since last week we have received new PWDs with the following message attached:

On January 19, 2011, the Department published a Final Rule that revised the methodology by which the Department calculates prevailing wages under the H-2B program. On August 1, 2011 the Department amended that rule to make wage rates established under this new methodology effective for wages paid to H–2B workers and U.S. workers recruited in connection with an H–2B labor certification for all work performed on or after September 30, 2011. However, on September 28, 2011, the Department announced in the Federal Register a 60-day postponement of the effective date of the Wage Final Rule to November 30, 2011. This delay will permit the various courts involved in litigation relating to the Wage Final Rule to determine the appropriate venue to resolve all claims and to allow the Department to avoid the possibility of administering the H-2B program under potentially conflicting court orders.

As a result of the pending court actions and the delay imposed by the Department, you are now receiving two Prevailing Wage Determinations; attached please find the second of two. The wage listed on this Form ETA 9141 is for work performed until November 29, 2011. The National Prevailing Wage Center has already issued to you an ETA Form 9141 that is based upon the Wage Final Rule, which will, by virtue of that delay in the effective date, apply to work that is to be performed on or after November 30, 2011, unless a new effective date is established in connection with the pending court actions.

In the past several months we have received numerous lengthy Requests for Evidence regarding L1B visa cases. We are not alone, many lawyers across the country report similar requests in L1B cases.

The L1B visa is designed for individuals from foreign countries who plan to come to the United States to work. These individuals possess specialized knowledge, skills and experience regarding the procedures, systems, services or products of a firm, corporation, company or other entity. The area of specialized knowledge for the individual includes highly developed technical expertise or professional knowledge. It also relates to a person’s private, exclusive understanding relating to a company’s products, services, methods of production, organizational make up, marketing strategies or other information that’s connected to the successful functioning of the entity in the United States.

Immigration attorneys continue to be concerned about USCIS’s L-1B adjudications and the failure to apply current binding USCIS guidance to these adjudications. Instead, adjudicators are relying on pre IMMACT 90 case law, as well as adjudicatory standards enunciated in a line of non-precedent AAO decisions.