Articles Posted in Work Visas

In recent months, the L-1A visa has been under attack by Immigration. More Requests for Evidence and more denials have been forthcoming on L-1 visas than have been issued in the past. Such issues that have arisen recently include the adequacy of the employer’s office space, the nature of the business itself, and even ownership concerns. What is more vexing is when Immigration sends a Request for Evidence asking for more evidence, providing the evidence asked for, and then receiving a rejection notice on a totally unrelated issue that was never raised in the Request for Evidence. Andrew Despositio, Esq. from our office with our team won an amazing motion to re open on a difficult L1A case denial.

Recently, our office submitted an L-1 petition on behalf of a company with a newly founded subsidiary in the U.S. The subsidiary is in the business of marketing the hearing and eye protection that is manufactured and distributed by the parent company in the foreign country. The subsidiary established that it had a legitimate need for an employee from the parent company to act as an executive/manager under the L-1A visa.

Once the case was submitted, a Request for Evidence came back asking to substantiate the business premises, the parent company’s premises, a feasibility study of the subsidiary’s business made by the parent company, insurance statements from the subsidiary, bank statements from the subsidiary, and a lease agreement from the subsidiary. All of these documents were provided to immigration to fulfill each request it made. In the end the case was still denied.

USCIS open forum, designed to encourage open communication between USCIS representatives and AILA practitioners, was held at AILA (American Immigration Lawyers Association) Annual Conference on June 17, 2011. USCIS Director, Alejandro Mayorkas, was present to answer the questions of immigration practitioners regarding the current issues in USCIS adjudication procedures. Attorney Kate Powel who attended this session, prepared the following points for our readers:

The Open Forum concentrated on the issues of aliens with extraordinary abilities category and the Kazarian guidance, VIBE program and its deficiencies, the increased number of standard RFEs, and other problem areas.

During the open forum, AILA members pronounced their concerns regarding the unpredictability in adjudications and stricter adjudication standards, especially as applied to small businesses, that are contributing to an environment that is discouraging foreign companies from coming here.

USCIS released the latest H-1B visa information on June 6, 2011. As of June 1, 2011, USCIS reported that 13,600 cap petitions had been filed and 9,300 spots for U.S. advanced degree holders have been filled.

On May 26, 2011, USCIS reported that 13,100 cap petitions had been filed and 9,000 spots for U.S. advanced degree holders have been filled. In Summary, from May 26 to June 1, about 500 cap petitions and 300 petitions for U.S. advanced degree holders have been filed.

We will be happy to assist you in your H-1B filing needs.

Critical update to all of you H1B job changers. Under the H-1B portability provisions, an applicant for H-1B status may begin working for the sponsoring employer immediately upon the filing of the Form I-129 Petition for Alien Worker, provided that the applicant is a “nonimmigrant” and “was previously issued a visa or otherwise provided nonimmigrant status [under the H-1B regulations].” The latter phrase has been subject to varying interpretations within the legal community. The situation arises when a foreign national enters the U.S. in H-1B status, subsequently changes his or her status to another status, and then again seeks H-1B status at a later date. In the past, some attorneys have argued that the H-1B portability provisions should allow a foreign national in this situation to begin employment with the petitioning employer upon the filing of the H-1B petition.

U.S. Citizenship and Immigration Services (USCIS) has recently intimated that it will construe the H-1B portability provisions to apply only to those non-immigrants holding H-1B status at the time of filing the subsequent H-1B petition. This development stems from the return of tentative and final non-confirmations from the E-Verify system related to those foreign nationals who are currently in a non-immigrant status other than H-1B and who have filed an H-1B petition utilizing the portability provision.

In response to the reports of erroneous non-confirmations from the E-Verify system, AILA’s Verification Committee addressed E-Verify officials on this issue. AILA was informed that the non-confirmations issued in the situation of foreign nationals filing H-1B petitions while in a valid, non-immigrant status other than H-1B are final, and have been issued based on internal guidance from the USCIS Chief Counsel’s office. This guidance has not been released to the public and USCIS does not believe that this is a new interpretation of the H-1B portability provisions. USCIS is said to be working on AC21 regulations to clarify this issue.

At a recent meeting with U.S. Customs and Border Protection (“CBP”) and AILA reps the following questions came up:

The regulations at 8 C.F.R. § 214.2(e)(19)(i) state that E visa holders may be admitted for an initial period of not more than two (2) years. It has been our understanding that E visa holders with valid E visas and passports valid for more than 2 years should be admitted for two years upon each entry, regardless of the expiration of validity of the visa. However, some CBP officers are admitting E visa holders only until the expiration of validity of their E visas.

Please confirm that, assuming no other adverse factors, E visa holders should be admitted for two years on every admission, and not be limited to the length of their visas.

TN Visa Seminar Details

Start Working in the U.S. within 30 Days

This tele-seminar will provide you with the information you need to start working in the U.S. It for Canadians and Mexicans who wish to work in the U.S. It’s free and informative. This will be a live web presentation and seating is limited so register quickly.

Attorney Habib Hasbini from our TN department just came back from the border with a client, he put in writing his most recent impressions and frustrations.

Heading to the U.S./Mexican border in San Diego, arriving at the immigration, U.S. port of entry, Tijuana, depending on when you arrive, you witness a long trail of people, possibly and easily topping two or three hundreds, again depending on the hour you arrive, attempting to enter the U.S. soil.

Along the trail, you witness the Mexican officers as they oversee, standing by, the free and smooth operation of the steps into U.S. territory.

Much has been said about the Management Consultant TN category, some classify it as the most difficult to obtain. In this installment of the TN Visa coverage, Attorney Andrew Despositio we will go over what it takes to be a Management Consultant for a company.

The Management Consultant is a great way to work with almost any company, since companies are constantly seeking consultations on how to best manage their business. The Management Consultant is perfect for the professional who has a lot of experience working for different types of businesses or just one business. It is a great position for a person who wants to help a fledgling company increase their revenue, or for a well-established company seeking new ways to generate more revenue. If you have a background in Physics, you can be a Management Consultant. If you have a background in Engineering, you can be a Management Consultant. If you have a background in Internet Marketing, Public Relations, or Social Media even, you can be a Management Consultant. The Management Consultant is the most versatile TN position available. However, there are a few parts of the Management Consultant TN visa that must be addressed before applying as one.

What it means to be a Management Consultant

Expect more states to follow this trend. Virginia has joined the list of states requiring certain companies contracting with the state to enroll in and use the E-Verify program. SB 1049, recently approved by Governor McDonnell, adds a new section 2.2-4308.2 to the Code of Virginia.

A spokesperson for the Governor’s office stated that the acceleration of the E-Verify requirement was due in part to recent upgrades in the E-Verify system, including the launch of the E-Verify Self-Check tool, which went live March 21. Provided by the Department of Homeland Security, this new web tool is available to workers for the purposes of checking the accuracy of their information in the relevant databases (Social Security Administration and DHS). The initial release is available only to individuals with addresses in Arizona, Colorado, Idaho, Mississippi, Virginia and the District of Columbia. The Self-Check tool asks certain questions aimed to verify the identity of the individual. Once verified, the individual can then confirm whether or not the relevant databases accurately reflect his or her appropriate work authorization status.

The new provision will apply to employers that have more than an average of 50 employees for the previous 12 months and that are entering into a contract to perform work for, or provide services to, any agency of the Commonwealth if the value of the work or services is in excess of $50,000. Affected employers must enroll in and utilize the Department of Homeland Security E-Verify program to verify the employment eligibility of new hires performing work pursuant to those contracts.

As leaders in NAFTA visa processing we like to update our readers on different visa categories and updates. This article is provided by our TN Visa Lawyer, Attorney Andrew Desposito.

For many who come to the U.S. seeking work, there are only so many visas through which they may legally work. It is because of this issue that U.S. lawmakers have been strict on immigration enforcement of illegal immigrants trying to work in the U.S., in particular those coming from Mexico.

For Mexicans and Canadians, the nonimmigrant NAFTA professional (TN) visa allows citizens of Mexico and Canada, as NAFTA professionals, to work in the U.S. in a prearranged business activity for a U.S. or foreign employer.