Articles Posted in Work Visas

As Lawyers specializing in Investment visas we often get questions from clients about the amount of investment needed for an E2 visa and what money can be used to invest. The source of the funds is a key determination for any successful E2 case.

The E2 visa is a special non-immigrant visa available to nationals of treaty countries entering the US to do the following:

a.) Develop and direct the operations of an enterprise in which they have invested, or are actively in the process of investing a substantial amount of capital;

We recently learned that USCIS is planning to publish proposed rule to establish a mandatory, Internet-based, electronic registration process for U.S. employers seeking to file H-1B petitions for workers that are subject to either the 65,000 or 20,000 annual numerical limitations.

This rule proposes an electronic registration program for petitions subject to numerical limitations contained in the Immigration and Nationality Act. Initially, the program would be for the H-1B nonimmigrant classification; however, other nonimmigrant classifications will be added as needed.

This action is necessary because the demand for H-1B specialty occupation workers by U.S. companies generally exceeds the numerical limitation. This rule is intended to allow USCIS to more efficiently manage the intake and lottery process for these H-1B petitions. We are concerned that large H1B filers may find a way to abuse the registration system, leaving smaller employers at a risk of loosing visas.

In light of the increase in RFEs focused on the employer-employee relationship, right to control, and availability of “qualifying employment” at third-party worksites, here are some suggestions in order to maximize the likelihood of securing a three-year H-1B extension for petitions involving placement at third-party worksites:

1. Submit a certified labor condition application (LCA) that lists multiple work locations, including the Petitioner’s home office address, as well as the third-party worksite location(s);

2. Document “qualifying employment” for the Beneficiary at the third-party worksite through End-Client letters confirming a project duration of longer than a year, preferably for the entire three years if the requested validity is three years;

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