Articles Posted in Work Visas

Last week we became members of Global Alliance of Hospitality Attorneys , this will allow us to serve our clients even better and offer solution to the ever changing global workforce that the hospitality industry is facing.

Whether transferring employees between international properties or employing management trainees, immigration is an integral part of the hospitality industry. The top seven visa types utilized by the hospitality industry are the J-1, H-3,H2B, L-1,E2, TN and H-1B. The following is a brief outline of each of these visa types:

E2 Visa

As of May 11, 2010, approximately 18,000 H-1B cap-subject petitions were filed. Additionally, USCIS has received 7,600 H-1B petitions for aliens with advanced degrees. Still fewer visas than expected, sign of the times. We expect filings to pick after the May graduations and into the summer.

So what is this H1B Cap all about?

The current law limits to 65,000 the number of aliens who may be issued a visa or otherwise provided H-1B status each fiscal year (FY). The numerical limitation was temporarily raised to 195,000 in FY2001, FY2002 and FY2003. In addition, excluded from the ceiling are all H-1B non-immigrants who work at (but not necessarily for) universities and non-profit research facilities. This means that contractors working at, but not directly employed by the institution may be exempt from the cap. Free Trade Agreements allow a carve out from the numerical limit of 1,400 for Chilean nationals and 5,400 for Singapore nationals. Laws also exempt up to 20,000 foreign nationals holding a master’s or higher degree from U.S. universities from the cap on H-1B visas.

As of April 15, 2010, approximately 13,600 H-1B cap-subject petitions had been filed. USCIS has approved 5,800 H-1B petitions for aliens with advanced degrees.

Many immigration lawyers are seeing a sharp decline in the interest in the H1B visa this year by potential employers and workers. Some are saying that the downturn in H1B applications this year could be as much as 60%. As a result of this decline, there are predictions that the quota will not be reached within the first few months of this year. Rather, many suspect that the bachelor’s quota won’t be reached until the middle of July, and that the master’s quota won’t be reached until later this June.

We shall see how the number will play out in the next few months.

We are posting the recent list of petitioners who received an approval in FY09 of Form I-129, requesting initial H-1B status for the beneficiary employee. Approximately 3,000 initial H-1B petitions are not accounted for on this list due to missing petitioner tax ID numbers.

While the full official final list of biggest H1B visa employers for FY2010 for the season has not been released, this preliminary list has been released for the Top employers this past US immigration year.

An H1B visa is a temporary working visa for professional positions, which allows foreign nationals to live and work in the U.S. for up to six years. This visa is an important tool for any employer to get the highly qualified technical expertise it needs to operate and grow its business.

The National Foundation for American Policy released a few interesting facts about H1B visa usage. You will be surprised when you read the following:

– Although important for the competitiveness of many U.S. companies, new H-1B visa holders represented only 0.06 percent of the U.S. civilian labor force in 2009, a tiny proportion of the U.S. workforce, making unsupportable claims that such individuals are “destroying” large numbers of U.S. jobs. Moreover, for the past several years no new H-1B visa holder could even be hired by companies in the United States for 4 to 12 months at a time due to quotas being exhausted, making it unlikely that employers would go without filling jobs if a qualified U.S. applicant was available.

– A large variety of businesses and organizations in America, including public school systems, hire H-1B professionals every year. In FY 2009, 27,288 different employers hired at least one individual on a new H- 1B petition, according to USCIS. Contrary to the popular impression, 96 percent of the employers (26,304 of 27,288) hired 10 or fewer individuals on a new H-1B petition. A total of 18,747 employers, or 69 percent, hired only one foreign national on a new H-1B petition.

H1B filings are looking much better than last year. U.S. Citizenship and Immigration Services (USCIS) today announced it continues to accept H-1B nonimmigrant petitions subject to the Fiscal Year 2011 (FY 2011) cap. USCIS will monitor the number of petitions received for both the 65,000 general cap and the 20,000 U.S. master’s degree or higher educational exemption.

USCIS has received approximately 13,500 H-1B petitions counting toward the 65,000 cap. The agency has received approximately 5,600 petitions for individuals with advanced degrees.

There is a lot of uncertainty regarding the cap this year. Unless there is a remarkable change in the economy in the next few months, the filing levels are likely to continue to be low. The USCIS is expected to continue closely scrutinizing H1B filings, and to demand detailed proof of the nature of the job offer and eligibility for H1B approval. We will keep you posted.

This is the latest update as of Tuesday, April 6, 2010, Vermont Service Center, as of close of business on Monday, April 5, 2010, VSC had received a total of 9,525 cap-subject H-1B petitions. Of those petitions, 6,791 were “regular” cap, and 2,734 were advanced degree. All cases received before April 7, 2010, will have an April 7, 2010 receipt date. Those received on April 7, 2010 or later will bear the actual receipt date. For those submitted for Premium Processing, the clock will start on April 7, 2010. We will update once we have the California Service Center Numbers.

With all the scrutiny around H1B visas these days, clients and lawyers are always seeking alternative visas. There are not many, but we will explore the best options in the next few articles.

The Trade NAFTA (TN) category of the North American Free Trade Agreement (NAFTA) North American Free Trade Agreement (NAFTA),retains a strong resemblance to the H-1B category, since both categories contemplate the admission of persons of professional standing who will engage in professional-level activities. Its utility as an alternative to the H-1B category is limited, however, by the simple fact that it is available only to nationals of Canada or Mexico.

The TN category offers Canadian and Mexican professionals four obvious advantages over the H-1B category. First, an applicant for this status need not file, and obtain approval of, a nonimmigrant petition with a service center before entering the United States. A Canadian national may instead present the application at a port of entry or preflight inspection station, where processing generally takes no longer than three hours. If the TN is denied, the applicant can re apply with the necessary corrections in most cases and if no fraud was involved. A Mexican national may file an application for a TN visa directly with a U.S. consulate.

Second, Canadian TN applicants are not required to obtain approval of an LCA from the Department of Labor; this allows employers to avoid the often intrusive salary-posting and record-keeping requirements of the H-1B category. Also LCA’s take forever to obtain these days, making the process even longer.

Third, the TN category, unlike the H-1B category, does not impose a maximum period of stay. Technically, a Canadian or Mexican professional may hold TN status indefinitely, as long as he or she continues to be employed in an appropriate profession.

Fourth, there is no limitation on the number of Canadian or Mexican nationals who may be admitted in the course of a fiscal year.

The TN category of NAFTA requires each state party to admit “a business person seeking to engage in a business activity in a profession set out in Appendix 1603.D.1 [of NAFTA].” This appendix provides a listing of 63 professions with corresponding minimum educational requirements and alternative credentials. Only persons coming to work in one of these listed professions may be accommodated under the TN category; a person coming to work in the United States in an unlisted profession may not enter in TN status, regardless of the fact that his or her job has been recognized as a profession or a specialty occupation by USCIS in another context.

Eligibility for H-1B status does not therefore translate automatically into eligibility for TN status, and the preparation of a TN application requires an approach quite distinct from that involved in the preparation of an H-1B petition. One of the more important distinctions between the TN and H-1B categories, which directly affects the availability of TN status for persons who customarily would seek H-1B status, lies in the differing analysis applied by government officers to determine professional status under each category. For clients contemplating the use of the TN category as an alternative to the H-1B category, these differing analysis must be taken into account in determining whether a position for which an H-1B petition would have been filed is one that can be accommodated under the TN category.

CBP and State Department officers reviewing TN applications must operate deductively, in the sense that they will draw a conclusion from a set of given premises. This analysis, in which form takes precedence over substance, often requires more than a surface screening of an application to ensure that the relevant criteria are met (e.g., all hotel managers with degrees in hotel management are admissible in TN status; this person is a hotel manager and has a degree in hotel management; therefore, he is admissible in TN status).

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As many readers know, H1B status holders in the US, may apply for visa stamp in Canada. This way avoiding a costly trip the country of origin. Such applicants are called Third Country Nationals.

The US Consulate General in Cananda ACCEPTS the following types of NIV applications from Third Country National (TCN) applicants:

Applicants seeking to renew their C1/D, D, E , F, H (except H-2), I, J, L, M, O, P and R visas, regardless of where the original visa was issued. Certain visa applicants may be subject to additional administrative processing.