Articles Posted in Work Visas

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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USCIS has updated the H-1B Cap Count recently:

H-1B Cap Count

Cap Type – H-1B Regular Cap

Our clients, participants of J-1 exchange visitor programs, are often confused as to the nature of this rule and its applicability. Below is a summary on what this rule means and when it applies.

Certain J-1 exchange visitors are subject to two-year foreign residence requirement, also known as a “two-year rule” (see Section 212(e) of the Immigration and Nationality Act). Exchange visitors who are subject to the two-year rule cannot change their status to that of H, L, K, or immigrant lawful permanent resident until they have returned to their home countries for at least two-years or received a waiver of that requirement. Please note that you do not have to reside in your home country for uninterrupted two years. If you reside in your home country for ten months and then depart, you are still subject to the rule. When you come back to your home country, you will need to reside there for fourteen more months to satisfy the requirement.

The exchange visitor is subject to the two-year home country physical presence requirement if the following conditions exist:

Many readers of the Blog and our clients often want to know how can they qualify for the H1B visa even without a degree. Attorney Kate Powell from our office prepared an excellent article on the topic and it is featured below.

H-1B is a nonimmigrant work visa category, which applies to people who wish to come to the U.S. to perform services in a specialty occupation. Some think that they are not qualified for this visa category merely because they do not hold a baccalaureate level of education. In actuality, there are ways to overcome the Bachelor’s degree requirement if you have enough qualifying work experience. Below is the summary of the current regulations and guidelines that can help you determine whether you can qualify for H-1B.

Pursuant to Title 8, Code of Federal Regulations (8 C.F.R.), part 214.2 (h) (4) (iii) (C), you can qualify for a specialty occupation based on education, specialized training, and/or progressively responsible experience that is equivalent to completion of a United States baccalaureate or higher degree in the specialty occupation, and you have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty.

This is another update on the H2B wage issue. On August 30, 2010, the U.S. District Court for the Eastern District of Pennsylvania in Comitè de Apoyo los Trabajadores Agricolas (CATA) v. Solis, et al., Civil No. 2:09-cv-240-LP, 2010 WL 3431761 (E.D. Pa.) invalidated the Department’s use of skill levels in establishing prevailing wages and the Department’s reliance upon Occupational Employment Statistics (OES) data in lieu of Davis Bacon Act and Service Contract Act rates. The court order requires the Department to complete a new rulemaking regarding the calculation of prevailing wage rates in the H-2B program within 120 days.

The Department has been issuing prevailing wage determinations with a validity period ending on June 30, 2011, since the OES data is updated annually each June. Given that the Department has been ordered to promulgate a new regulation in approximately 3 months, which may result in changes to the calculation of the prevailing wage rates, the Department, beginning on September 30, 2010, will issue H-2B prevailing wage determinations with validity periods of three months, in accordance with §655.10(d). This change does not affect the validity periods of existing prevailing wage determinations. It also does not affect any new requests for prevailing wage determinations that will be used in connection with PERM, H-1B, H-1B1 or E-3 applications. We will keep you posted as new information becomes available.