Articles Posted in Work Visas

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.

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.