Articles Posted in Work Visas

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.

USCIS updated its count of FY2011 cap-subject H-1B petitions and advanced degree cap-exempt petitions receipted. As of 8/20/10, approximately 33,900 H-1B cap-subject petitions were receipted. USCIS has receipted 12,600 H-1B petitions for aliens with advanced degrees. This is a major jump from the last update of August 13, 2010 where only 29,700 filings were reported.

Is this trend likely to continue? We think so, expect visas to run out by the early weeks of December.

In the recent concluded 2010 AILA Annual Meeting, many attorneys shared their experiences which are similar to those experienced by our firm -a surge of H-1B RFEs. The California Service Center (CSC) has been especially tough or “ridiculously tough” in adjudicating H-1B applications, according to some attorneys. However, according to USCIS statistic information, only 17% of H-1B petitions filed at CSC have been issued RFEs, while 20% of H-1B petitions filed at Vermont Service Center (VSC) have been issued RFEs. This number reflects the total opposite situation of what we have experienced.

The new H-1B guidance issued by USCIS on January 8, 2010 has undoubted contributed to the surge of H-1B RFEs. This guideline tries to clarify what kind of standards and documents are used to determine whether an employee-employer relationship exists. However the guideline limits the opportunities of obtaining an H-1B visa for 3rd party off-site work, consulting firm practices, self-employed business owners, and agent-staffing company petitions. In evaluating petitions, USCIS uses key definitions provided by common law principles and Supreme Court decisions. Essentially, in order to qualify as an employer, the right to control when, where, and how a beneficiary does his/her job is key. This is different than actual control. However, in practice, USCIS relies heavily on evidence of actual control to determine the right of control. It is also the reason we have seen an increase of H-1B RFEs in petitions filed for 3rd party off-site work, consulting firm practices, self-employed business owners, and agent-staffing companies.

How do we deal with the surge of H1-B RFEs? Are those 3rd party off-site work, consulting firm work, self-employed, and agent-staffing company jobs totally out of the picture of H-1B visa holders? These are some tips that are helpful:

According to Public Law 111-230, which contains provisions to increase certain H-1B and L-1 petition fees. Public Law 111-230 requires the submission of an additional fee of $2,000 for certain H-1B petitions and $2,250 for certain L-1A and L-1B petitions. The law became effective upon signing and will expire on September 30, 2014.

The additional fees apply to a petitioner that employs 50 or more employees in the United States and has more than 50 percent of its employees in the United States in H-1B or L (including L-1A, L-1B and L-2) nonimmigrant status.

The single additional fee, if applicable, is in addition to the base processing fee, the existing Fraud Prevention and Detection Fee, and any applicable American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) fee needed to file a petition for a Nonimmigrant Worker (Form I-129), as well as any premium processing fees, if applicable.