Articles Posted in Work Visas

H-1B Cap Count for FY 2011 as on Dec. 17, 2010

Cap Type – H-1B Regular Cap

Cap Amount – 65,000

As many readers may know for I-129 that is used for H, L and O Petition has been revised. On December 20, 2010, USCIS informed stakeholders that it will accept previous editions of Form I-129 that are postmarked on or before December 22, 2010. Petitions postmarked on or after December 23, 2010, must include the new Form-129 with a November 23, 2010, revision date or else they will be rejected. This contradicts earlier guidance stating that the last day USCIS could accept previous editions of the form was December 22, 2010.

We hope that this update clarifies some of the confusion regarding the last date the old form can still be used.

A couple of years ago BusinessWeek published an article about Visas and the Challenges of graduates facing the job market. This post is a quick summary for our readers.

For foreign MBAs, PHD’s and other students in the US, most commonly heard immigration term on school campuses these days is H-1B, as in H1-B visa, for graduates who want to continue to work in the U.S. after finishing school. It refers to the visa that applies to a non-U.S. citizen who will be temporarily employed in a specialty occupation, according to the U.S. Citizenship & Immigration Services (USCIS). There used to be shortage of these visas, which is why international MBA students often start asking about these visas midway through their programs. Now, as a result of the recession, the problem is finding work and not always the shortage of the visas.

But the H-1B is only the beginning of the alphabet soup of forms and work visas that a business-school student can encounter. Indeed, a non-U.S. student needs to acquire a whole new vocabulary that most Americans do not speak. Here is a starter glossary:

Here is the latest on H1B visa numbers, they now passed the 50K mark. U.S. Citizenship and Immigration Services (USCIS) announced that it has now received approximately 48,977 H-1B petitions counting toward the congressionally-mandated 65,000 limit. USCIS also confirmed that it has received approximately 17,836 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 both the general cap and the advanced degree cap. We also continue to process H1B cases, but time is running out so in order to secure visas for this season employers must act now.

Here is a quick update from the California Service Center regarding this new fee. The additional filing fees of $2,000 for certain H-1B petitions and $2,250 for certain L- 1A and L-1B petitions is applicable to petitioning employers who employ 50 or more employees in the United States and 50% of the petitioner’s employees are in H-1B, L-1A or L-1B status. The PL 111-230 fees do not apply to petitions requesting an extension of H-1B, L-1A or L-1B status with the same employer (only for initial filings for a new beneficiary).

When the fee is not required, it is critical that the petitioner explicitly acknowledge this and explain why it is not required in the I-129 filing. If this is not done, USCIS will likely issue a Request for Evidence asking for a statement from the petitioner, causing unnecessary delays in processing.

The Service Center previously stated:

The H-2B program is critically important for many businesses that have difficulty finding U.S. workers to fill temporary jobs. This is particularly true in seasonal industries. Comments from H-2B employers attest to the need for foreign workers in physically demanding seasonal jobs, often in remote locations, that many U.S. workers will not take.

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.

In order to learn more about employers’ perceptions of the H-2B program, ImmigrationWorks USA and the U.S. Chamber of Commerce conducted a survey: five short questions distributed among H-2B employers in July and August 2010. The survey asked how many H-2B workers the company had hired in the last three years and what types of jobs those workers held. It included two open-ended questions about the benefits of using the program and asked what if any problems employers had experienced.

There are certain employers, agents and even Attorney who engage in illegal and unethical practices. The government is working actively to punish such parties by excluding them from filing under the seasonal and permanent Labor Certification programs.

The Office of Foreign Labor Certification maintains the list below of employers, attorneys, and/or agents from the Permanent Labor Certification Program debarred under 20 CFR 656.31(f), the debarment provision, of the regulations governing the labor certification process. For more information on debarments under the Permanent Labor Certification Program, see 20 CFR 656.31(f).

For the complete list click here Download file

The International Exchange Center issued a practice guide regarding J1 visas for Trainees and Interns.

New final rules became effective Sept. 9, 2010 for J trainee and intern programs 22 C.F.R.§ 62 (2010). With few exceptions, the final rule will produce little change to the way J trainee and intern programs have been administered since the interim-final rule of 2007.

What are the significant changes?

1. Clarification of the required academic background for interns.

2. Elimination of the requirement that sponsors secure a Dun & Bradstreet report on all host companies.

3. Clarification that social work falling under Public Administration and Social Service Professions is allowed; clinical social work is not allowed.

4. Clarification that dental services are not allowed.

5. Elimination of training or internships for counter help positions.

6. Clarification that telephone interviews are appropriate when video conferencing is not available for the purpose of screening English language proficiency.

Who can be an intern under the new rule?

Interns must be either currently enrolled in and pursuing post-secondary academic studies abroad, or have graduated from an overseas post-secondary academic institution no more
than 12 months prior to the start date of his or her exchange visitor program. In the Analysis of Comments to the new rule, the Department of State explains that it expect “currently enrolled” to mean that the potential intern has completed at least two academic semesters’ credit before participating in a J internship program.

An internship must be in the intern’s specific academic field.

Who can be a trainee?

The new rule makes no changes to the definition of a trainee. Trainees are individuals who have either a degree or professional certificate from a postsecondary academic institution abroad and at least one year of related work experience acquired outside the United States, or have five years of related work experience acquired outside the United States. A trainee program must be in the applicant’s specific occupational field.

What about foreign nationals with degrees from the United States?

The new rule does not change that U.S.-based education or degrees cannot be used to
establish eligibility for either J-1 training or intern programs.

Will sponsors screen applicants differently?

Sponsors must interview every J-1 applicant either in-person or by video conference or web camera. The new rule allows sponsors to use a telephone interview if a video or web camera conference is not possible. All third parties involved in the recruitment and selection process must have a written agreement with the sponsor detailing what are the parties’ responsibilities.

Who can be a host organization?

A host organization conducts training or internship programs on behalf of Department of
State designated program sponsors (such as the American Immigration Council). A host
organization must sign a written agreement with the program sponsor. Host organizations that have not successfully participated in the J visa sponsor’s training or internship programs must be visited by a representative of the visa sponsor prior to approval of a DS-2019. Companies with 25 or more employees or with at least three million dollars in annual revenue are exempt from this mandatory visit.

The host organization must have workers’ compensation insurance. Where possible, the
intern or trainee must be covered by the insurance. The host organization must be able to provide an Employer Identification Number (EIN). The requirement found in the interim-final rule that all host organizations have a Dun & Bradstreet Number has been dropped in the new rule.

Host companies must agree to contact the visa sponsor immediately in the event of an emergency involving trainee or interns. The final rule clarifies that social work falling under Public Administration and Social Service Professions is allowed; clinical social work is not allowed.

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So many times a client will come to the office and ask for an extension to stay longer in the United States. Many times we will determine that the client is already out of status, and an extension can not be filed. When I inform the client of the news, the reaction is often one of shock, how can that be, my visa is good for 5 years???

There is a common misconception that a U.S. visa is the evidence of your lawful status in the United States. Many individuals have difficulty understanding the difference between the visa expiration date and the length of time you have permission to remain in the U.S. These are very different terms.

A visa must be valid at the time a traveler seeks admission to the U.S., but the expiration date of the visa has no relation to the length of time a temporary visitor may be authorized by the Department of Homeland Security to remain in the United States.

According to a recent USCIS guidance an employer may not hire an H-1B worker prior to USCIS approving the H-1B petition unless the employee (i) is currently in H-1B status, or (ii) is the beneficiary of a timely filed H-1B extension of status petition. If the employee is in another nonimmigrant status, such as F-1 (student) or L-1 (intracompany transfer), the employer must wait until USCIS approves the H-1B petition before hiring the foreign worker.

Under section 214(n) of the Immigration and Nationality Act, a worker who “was previously issued a visa or otherwise provided [H-1B] nonimmigrant status” is authorized to begin working upon the filing of an H-1B petition by his or her new employer. This provision is often referred to as H-1B portability. Congress passed the law to allow employers to hire H-1B workers without having to wait for the government to adjudicate the H-1B petitions, a process that can often take several months.

The issue was raised to the USCIS Verification Division after employers received nonconfirmations from the E-Verify system when they hired H-1B workers under H-1B portability and the workers were not, at the time of hire, in H-1B status, or were not the beneficiaries of H-1B extension petitions. In the exchange, the USCIS Verification Division stated that the agency does not consider those employees to be work authorized. Please contact our office for further information.

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