Articles Posted in Work Visas

As many of our readers know, Chapter 16 of NAFTA (Temporary Entry of Business Persons) provides for the simplified and expeditious temporary entry of businesspersons who are citizens of one country to go into the territory of another. It contains the reciprocal commitments of the United States, Mexico, and Canada to facilitate the temporary entry of businesspersons from one of the three countries. It grants temporary entry to four categories of businesspersons: (1) business visitors (admitted as B-1s); (2) traders and investors (admitted as E-1s and E-2s); (3) intracompany transferees (admitted as L-1s); and (4) professionals (admitted as TNs).

It is important to note that although businesspersons who are citizens of Mexico are entitled to the benefits of NAFTA, they do not have the ease of access to the United States as do citizens of Canada. Canadians can apply for the TN work visa directly at the port of entry from Canada to the USA. Many Canadians are not aware that they can apply for the TN visa on at any Mexican-American port of entry as well.

So how does it work, key requirements?

Many attorneys and clients who filed H1B cases in April 2010 are still waiting for decisions on their cases. This process has become very frustrating for employers waiting for employees to start working, as well other related issues. Why is this happening? We have no clear answer. But the American Immigration Lawyers Association was able to get some clarifications today.

USCIS has advised AILA that the Vermont Service Center and the California Service Center will begin prioritizing the adjudication of pending cap-subject H-1B petitions in an attempt to bring their processing times within 60 days as soon as possible. Cases will continue to be adjudicated in the order received.

USCIS has informally advised AILA that it will prioritize the adjudication of H-1B change of status cases for F-1 cap-gap students who are otherwise prohibited from continuing employment after September 30. AILA Liaison has been coordinating with USCIS to help achieve this outcome. While AILA has been collecting lists of these cases, AILA have been advised that USCIS has the means to independently verify them.

On September 24, 2010 the House Judiciary Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law held a hearing titled “Protecting America’s Harvest” at 9:30 a.m. in room 2141 of the Rayburn House Office Building.

Here is what Arturo S. Rodriguez President, United Farm Workers of America had to say:

Our society places all the risks and costs associated with a seasonal industry–featuring millions of short-term jobs–on the backs of the workers. For example, if there is a freeze, as occurred last year in Florida and thousands of workers are left without work, there is no unemployment assistance even though emergency aid is promptly extended to agricultural employers.

This is an important update from AILA for our readers.The following is guidance regarding I-9 and immigration-related discrimination issues in response to the invalidation of pre-July 1, 2010 Puerto Rico birth certificates.

Q: Why is there a new law on Puerto Rico birth certificates?

A: The U.S. Department of State’s Bureau of Diplomatic Security, which investigates U.S. passport fraud, has long had concerns about the prevalence of fraud in passports based on Puerto Rico birth certificates. The State Department reports that about 40% of all passport fraud investigations involve Puerto Rico birth records. In part, the problem was a result of the prevalent use of birth certificates in Puerto Rico for all sorts of unofficial and official transactions and the retention of original true copy birth records by diverse organizations across all sectors of society, including schools, churches, sports teams, and government voter and driver registration offices. Often these birth certificates were not stored in secure environments and, as a result, many were stolen and sold.

USCIS has recently updated the H-1B Cap Count for FY 2011:

Cap Type – H-1B Regular Cap

Cap Amount – 65,000

O-1 Status is a non-immigrant status category for aliens of extraordinary ability in the sciences, arts (including the television and motion picture industry), education, business, or athletics. The O-1 visa is also available to those in motion pictures and television, and related visas are available to those who support the O-1 visa holder for their events and activities. The O-1 visa is a great way for foreign artists and entertainers to bring their talents to the United States. This is an employment related status that allows qualified aliens to live and work in the United States.

O-1 visas are valid for up to three (3) years. They may be extended in one-year increments for ongoing projects, and in some cases open the door to lawful permanent residency for the foreign national. Applicants for O-1 visas must demonstrate that they possess extraordinary ability in the arts, sciences, business, education, athletics, or the motion picture or television industry. The applicant must show that s/he has achieved sustained or international acclaim and an extraordinary record of achievement. The applicant must demonstrate that s/he is coming to the United States to perform temporary services for an event or series of events.In some cases the O-1 petition must be filed by multiple future employers;and it can be filed by a foreign employer through a US agent. O-1 applicants may not self-petition.

Evidence for O-1 Visa Petitions:

Here are the recent updates from USCIS on current H1B Cap Count for FY 2011:

Regular Cap Limit: 65,000

Regular Cap Cases Filed: approx. 36,600

What a shameful story. DOJ announcement on the indictment of six individuals for engaging in a conspiracy to commit forced labor and document servitude. The charges arise from the defendants’ alleged scheme to coerce the labor and services of approximately 400 Thai nationals to work on U.S. farms.

The Justice Department announced that a federal grand jury in Honolulu

indicted Mordechai Orian, an Israeli national; Pranee Tubchumpol, Shane Germann and Sam

We all know by now that Requests for Evidence in O1, H1, L1 and P cases have almost doubled in the past 12 months. It has now become a matter of practice at my firm, to let clients know that a Request for Evidence will most likely happen in their case. This is frustrating to us lawyers, and creating extreme hardship to clients.

The situation is so bad with denials coming from the California Service Center that the LA Times covered this issue in a recent story:

The nation’s immigration chief has launched a effort to quell the outcry from Hollywood and the performing arts community about a spike in visa denials, processing delays and requests for evidence to support their petitions to bring in leading foreign artists for U.S. performances.