Articles Posted in Work Visas

Some updates on H2A and H2B visas. DHS issued a notice on the identification of 39 countries whose nationals are eligible to participate in the H–2A and H–2B programs for the coming year. This notice is effective 1/18/10 and shall be without effect at the end of one year after 1/18/10.

Under Department of Homeland Security (DHS) regulations, U.S. Citizenship and Immigration Services (USCIS) may only approve petitions for H-2A and H-2B nonimmigrant status for nationals of countries that the Secretary of Homeland Security, has designated by notice published in the Federal Register.

A new development to report, 11 additional countries are now joining to the list of countries whose nationals are eligible to participate in the H-2A and H-2B programs. In consideration of all of the above, this notice designates for the first time Croatia, Ecuador, Ethiopia, Ireland, Lithuania, The Netherlands, Nicaragua, Norway, Serbia, Slovakia, and Uruguay as countries whose nationals are eligible to participate in the H-2A and H-2B programs.

After a tough December with H1B RFE’s and the Cap, on January 8th USCIS issued new requirements for H1B cases. An employer who seeks to sponsor a temporary worker in an H-1B specialty occupation, as of April 2010, will be required to establish, through documentary evidence, a valid employer-employee relationship throughout the petition validity period. The sweeping and controversial new guidance will change the way employers prepare, and USCIS adjudicates, most H-1B petitions.

Employer-Employee Relationship

H-1B regulations currently require that a United States employer establish that it has an employer-employee relationship with the beneficiary of the petition. The memorandum states that the lack of guidance on this issue has made it difficult for USCIS adjudicators to determine whether such a relationship exists, especially when petitions involve independent contractors, self-employed beneficiaries, and beneficiaries placed at third-party worksites.

When determining whether an employer-employee relationship exists, USCIS will evaluate whether the petitioner has the “right to control” the beneficiary’s employment, such as when, where and how the beneficiary performs the job. USCIS will consider the following, with no one factor being decisive:
* Does the petitioner supervise and is such supervision off-site or on-site?
* If the supervision is off-site, how does the petitioner maintain such supervision?
* Does the petitioner have the right to control the work of the beneficiary on a day-to-day basis if such control is required?
* Does the petitioner provide the tools or instrumentalities needed for the beneficiary to perform the duties of employment?
* Does the petitioner hire, pay, and have the ability to fire the beneficiary?
* Does the petitioner evaluate the work-product of the beneficiary?
* Does the petitioner claim the beneficiary for tax purposes?
* Does the petitioner provide the beneficiary any type of employee benefits?
* Does the beneficiary use proprietary information of the petitioner in order to perform the duties of employment?
* Does the beneficiary produce an end-product that is directly linked to the petitioner’s line of business?
* Does the petitioner have the ability to control the manner and means in which the work product of the beneficiary is accomplished?
According to the memorandum, the petitioner will have met the test if, in the totality of the circumstances, a petitioner is able to present evidence to establish its right to control the beneficiary’s employment. The petitioner must also be able to establish that the right to control the beneficiary’s work will continue to exist throughout the duration of the beneficiary’s employment term with the petitioner.

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Recently the Congressional Reserch Service issued a new report titled: “The Effects on U.S. Farm Workers of an Agricultural Guest Worker Program.” Linda Levine the author writes:

Guest worker programs are meant to assure employers (e.g., fruit, vegetable, and horticultural specialty growers) of an adequate supply of labor when and where it is needed while not adding permanent residents to the U.S. population. They include mechanisms such as the H-2A program’s labor certification process to avoid adversely affecting the wages and working conditions of comparable U.S. workers. If changes to the H-2A program or creation of a new agricultural guest worker program led growers to employ many more aliens, the effects of the Bracero program might be instructive: although the 1942-1964 Bracero program succeeded in expanding the farm labor supply, studies estimate that it also harmed domestic farm workers through reduced wages and employment. The magnitudes of these adverse effects might differ today depending upon how much the U.S. farm labor and product markets have changed over time, but their direction likely would be the same.

The report further states, Despite increases in H-2A worker certifications issued by the U.S. Department of Labor in recent years, the number of H-2A workers remains quite small compared to the nearly 1 million hired farm and agricultural service workers employed in 2008.5 Thus, even if the labor certification process has not operated as intended—to protect similarly employed U.S. workers—the H-2A program’s low utilization suggests that its overall impact on the domestic farm labor force has been minimal.

DOL announced late last year about the changes to the Prevailing Wage Determination procedures, these changes became effective today. So what cases are affected? As described in the Department’s December 4, 2009 Federal Register Notice, the National Prevailing Wage and Help desk Center (NPWHC) will process Prevailing Wage Determination (PWD) requests for H­1B, H­1B1(Chile/Singapore), H­1C (if reauthorized by Congress), H­2B, E­3 (Australia) programs, and the permanent labor certification program (PERM).

Now employers will need to plan at least 60 days in advance when filing any of the above referenced applications, we anticipate serious delays in the early stages of this program. Especially since only hard copy mail ins are accepted at this time.

Click here for the DOL complete rule.

As we predicted last night the Cap was met today. As of December 21, 2009, USCIS has received sufficient petitions to reach the statutory cap for FY2010. USCIS has also received more than 20,000 H-1B petitions on behalf of persons exempt from the cap under the advanced degree exemption. USCIS will reject cap-subject petitions for new H-1B specialty occupation workers seeking an employment start date in FY2010 that are received after December 21, 2009 USCIS will apply a computer-generated random selection process to all petitions that are subject to the cap and were received on December 21, 2009.

Applicants will soon be getting ready for April 1, 2010 filings. Our advice is to start early, with DOL delays we have to start planning differently. More updates to come.

So what do you think, will the cap be reached today, or maybe tomorrow, surely by Friday. With the snow storms hitting the east coast, delivery of H1B packages and processing at the Vermont service center have been delayed. As of December 15, 2009, approximately 64,200 H-1B cap-subject petitions had been filed. We are still waiting for the most current numbers, but it seems that the gate on new filings is soon to be shut. I will keep you posted as we earn of new info.

We like to share that the H1B cap is extremely close to being reached. The count as of December 15, 2009 is 64,200. This is 1300 cases more than the count from December 11th. This count is very close to the total cap of 65,000 which is actually somewhat reduced by numbers allocated under trade agreements. We continue to watch this very closely, and will provide updates until the FY 2010 cap is reached.

We suggest to act quickly to avoid last minute embarrassment as H-1B Cap may soon be cease to exist.

USCIS has just released the latest H-1B visa information on December 15, 2009. As of December 11, 2009, USCIS reported that 62,900 cap-subject petitions had been filed.

From December 10 to December 11, 400 more applications were filed. As mentioned in all other previous H-1B updates, spots for advanced degree holders have been satisfactorily met; all other advanced degree holders approved will be counted towards the general cap. Remember, those who receive a job offer from a governmental or non-profit organization will not count towards the general H-1B cap.

Because 6,800 out of the 65,000 regular spots are kept for citizens of Singapore and Chile, this only leaves 58,200 spots for other nationals. Bear in mind that USCIS takes into account the fact that some of these applications may be revoked, withdrawn by applicants, or denied. As such, USCIS will continue to accept both cap-subject petitions and advanced degree petitions until they specify otherwise.

USCIS has just released the latest H-1B visa information on December 11, 2009. As of December 10, 2009, USCIS reported that 62,500 cap-subject petitions had been filed.

On December 8, 2009, USCIS reported that 61,500 cap-subject petitions had been filed. From December 8 to December 10, 1,000 more applications have been filed. As mentioned in previous H-1B updates, spots for advanced degree holders have been satisfactorily met; all other advanced degree holders approved will be counted towards the general cap. Remember, those who receive a job offer from a governmental or non-profit organization will not count towards the general H-1B cap.

Because 6,800 out of the 65,000 regular spots are kept for citizens of Singapore and Chile, this only leaves 58,200 spots for other nationals. Bear in mind that USCIS takes into account the fact that some of these applications may be revoked, withdrawn by applicants, or denied. As such, USCIS will continue to accept both cap-subject petitions and advanced degree petitions until they specify otherwise.

USCIS has just released the latest H-1B visa information on December 9, 2009. As of December 8, 2009, USCIS reported that 61,500 cap-subject petitions had been filed.

On December 4, 2009, USCIS reported that 61,100 cap-subject petitions had been filed. From December 4 to December 8, 400 more applications have been filed. As mentioned in previous H-1B updates, spots for advanced degree holders have been satisfactorily met; all other advanced degree holders approved will be counted towards the general cap. Remember, those who receive a job offer from a governmental or non-profit organization will not count towards the general H-1B cap.

Because 6,800 out of the 65,000 regular spots are kept for citizens of Singapore and Chile, this only leaves 58,200 spots for other nationals. Bear in mind that USCIS takes into account the fact that some of these applications may be revoked, withdrawn by applicants, or denied. As such, USCIS will continue to accept both cap-subject petitions and advanced degree petitions until they specify otherwise.