Articles Posted in Work Visas

This is a great article by our Attorney Ekaterina Powell, Esq., she has been very involved in H1B DOL audits in the past few months as we defend our employer clients.

The number of Labor Condition Application compliance investigations of the H-1B employers by the Department of Labor (DOL) is on the rise. When violations are found, the Administrator of the Wage and Hour Division may assess civil money penalties ranging from $1,000 to $35,000 per violation, depending on the type and severity of the violation. The Administrator may also impose other remedies on the H-1B employers, including payment of back wages, and debarment from the H-1B program for a certain number of years.

Therefore, it is critical for all companies that employ foreign workers under H-1B program to keep themselves up-to-date with the compliance measures and strictly follow the record keeping requirements.

Another blow to the H1B program. According to Computer World, the cables being released by WikiLeaks are shedding some light on fraud in the H-1B visa application process in countries that don’t get much attention for it — Mexico, Libya and Iceland.

The reports so far are a collection of anecdotes explaining attempts to dupe U.S. officials into granting visas to people not eligible for them. That collection may grow as more cables are released.

The cables offer insight into the types of issues that embassy officials in such countries can encounter when processing work visas.

The H1B cap count was always an indication how our economy is doing. While we see recovery, it is a slow one. Same goes for H1B numbers usage.

As of April 15, 2011, approximately 7,100 H-1B cap-subject petitions were receipted. Additionally, USCIS has receipted 5,100 H-1B petitions for aliens with advanced degrees. If the numbers continue in this slow movement, we are looking to have H1B numbers open all through the summer and beyond.

Of course this could change at any time, so if you have an H1B employee in mind, file sooner than later.

American Immigration Council (AIC) and the American Immigration Lawyers Association (AILA) argued recently in an amicus brief—the government may not arrest H-1B employees for whom timely-filed extension applications remain pending.

The decision in El Badrawi v. United States, by U.S. District Judge Janet C. Hall, correctly recognized that a federal regulation allows H-1B employees to continue working for 240 days pending the adjudication of their extension applications, and that “work authorization is part and parcel of their authorization to be in the country, not a separate matter.” Permitting the initiation of removal proceedings during this period would thus be unfair to employees and employers alike, according to the decision.

The plaintiff, a Lebanese national, was gainfully employed as a medical researcher when his employer requested an H-1B extension in early 2004, more than a month before his H-1B status expired. Though his employer paid a $1,000 fee for premium processing of the application, the government never adjudicated it and refused to respond to requests for information. Nearly seven months after the request was filed, immigration agents arrested the plaintiff for allegedly “overstaying” his initial period of admission. He was placed in removal proceedings and detained for nearly two months.

Whenever you hear about H-1B visa, you hear the term “specialty occupation”.

So, what does “specialty occupation” mean? Why is it important to prove that the proposed position is a “specialty occupation” in order to qualify for the H-1B? What role does the Occupational Outlook Handbook (OOH) published by the Department of Labor play in USCIS’ interpretation of “specialty occupation”?

This article will address these questions and other common issues that H-1B candidates and practicing immigration attorneys face in context of H-1B filings.

In an effort to fight fraud and abuse in the L1 and H1B programs, U.S. Citizenship and Immigration Services (USCIS) is implementing a program known as Validation Instrument for Business Enterprises (VIBE). VIBE is a web-based tool that will allow the USCIS to corroborate certain basic information about a company during adjudication of employment-based visa petitions. Use of this program is becoming evident in the content of requests for evidence (RFEs). See example below from one of our cases.

USCIS procedures allow for the employer to explain or clarify any concerns regarding information contained in VIBE. If information collected through the VIBE program reveals inconsistencies with the employer’s petition, or raises other concerns regarding the case, the USCIS should issue an RFE or notice of intent to deny (NOID) to allow for a response, rather than directly denying the case. The RFE or NOID will clearly note that that the VIBE program has found missing or contradictory information and provide a description of this information. The petitioning employer will then have the ability to address these issues.

It has been 5 days now since the H1B season started and there is no indication whether the H1B Cap was reached on the first day or not. The stakes are higher this year as the economy rebounds.

According to computer world, some law makers think that the cap should be increased to certain industries and keep other out of the game.

A top Republican lawmaker, U.S. Rep. Lamar Smith (R-Texas), chairman of the House Judiciary Committee, Thursday said the H-1B visa plays a “vital role” in the economy and thus its cap should be increased.

As the H1B filing deadline approaches, lawyers and employers are scrambling to get the cases ready for filing on April 1. Our office sure is in a state of war as stacks of H1B files are moving between the copy machines into organized FEDEX envelopes.

This is a last minute tip from the USCIS Vermont Service Center (VSC) that will be receiving cases along with the California Service Center.

Officials from VSC confirmed that the “in process” screen shot from the Department of Labor (DOL) website indicating that a PERM application remains pending still is the best evidence to document eligibility for H-1B extensions under AC21 §106(a). If an application is under appeal or reconsideration and the status has not been updated on the DOL website, VSC has and will continue to accept copies of e-mail correspondence or affidavits from counsel or the employer attesting that a request for review/reconsideration or appeal of a denied labor certification has been filed with DOL. For correspondence sent by courier, it also is helpful to include the tracking report evidencing delivery to DOL.

This was expected and here is the latest update. The U.S. Department of Labor’s Employment and Training Administration and its Wage and Hour Division today announced the publication of a proposed rule that seeks to improve the H-2B temporary nonagricultural worker program. The proposed rule, to be published in the March 18 edition of the Federal Register, includes changes to several aspects of the program to ensure that U.S. workers receive the same level of protections and benefits as temporary foreign workers recruited under the H-2B program, and to provide better access for employers with legitimate labor needs.

The H-2B nonimmigrant visa program permits employers to hire foreign workers to come to the U.S. and perform temporary nonagricultural work, which may be one-time, seasonal, peak load or intermittent and there are no qualified and willing U.S. workers available for the job. Note that this visa is not available for “temporary” agencies or other work placement agencies.

There is a 66,000 per year limit on the number of foreign workers who may receive H-2B status during each USCIS fiscal year (October through September). The process for obtaining H-2B certification is similar to, but less extensive and time consuming, than permanent certification. You are eligible for the H-2B Visa provided that you have a valid job offer from a US employer to perform temporary or seasonal non-agricultural work and that you intend to return to your home country on expiration of the visa.

As we are gearing up towards H1B filing season, recent update from USCIS. U.S. Citizenship and Immigration Services (USCIS) announced today, in response to recent stakeholder feedback, that it is currently reviewing its policy on H-1B cap exemptions for non-profit entities that are related to or affiliated with an institution of higher education. Until further guidance is issued, USCIS is temporarily applying interim procedures to H-1B non-profit entity petitions filed with the agency seeking an exemption from the statutory H-1B numerical cap based on an affiliation with or relation to an institution of higher education.

Effective immediately, during this interim period USCIS will give deference to prior determinations made since June 6, 2006, that a non-profit entity is related to or affiliated with an institution of higher education – absent any significant change in circumstances or clear error in the prior adjudication – and, therefore, exempt from the H-1B statutory cap. However, the burden remains on the petitioner to show that its organization previously received approvals of its request for H-1B cap exemption as a non-profit entity that is related to or affiliated with an institution of higher education.

Petitioners may satisfy this burden by providing USCIS with evidence such as a copy of the previously approved cap-exempt petition (i.e. Form I-129 and pertinent attachments) and the previously issued applicable I-797 approval notice issued by USCIS since June 6, 2006, and any documentation that was submitted in support of the claimed cap exemption. Furthermore, USCIS suggests that petitioners include a statement attesting that their organization was approved as cap-exempt since June 6, 2006.