Articles Posted in Work Visas

H-1B Quota is still available for all employers. Employers who have not yet proceeded with new H-1B filing can go ahead now too as per their business requirements. After many years since the Cap of H-1B started, it is still available even after Sept. 30, 2009. As of this writing, there are still H1B cap numbers available, both in the advanced-degree and regular H1B quotas. This means that H1B petitions can still be filed for fiscal year 2010. These filings can continue, as long as the cap numbers are available.

We like to share that H-1B petitions can be filed throughout FY10, until the cap numbers are all depleted. Petition filed under the 2010 Cap after October 1, 2009, the start date of work requested can be immediate. Since October 1, 2009 has already passed, and the H-1B numbers are still available, filings may request an immediate validity date. Like earlier, the start date for H-1B work can be as much as six months in the future, depending upon the needs of an employer. Usually one has to start the H-1B Cap process 6 months in advance of the requested start of employment, employers were all doing so in order to increase their chances of obtaining one of the limited cap numbers. Thus, cases were filed at the beginning of April, requesting an October 1st start date. However, we are now beyond October 1st, and Cap numbers remain available, it is possible to pick a more desirable start date, ranging from immediate to six months in the future.

There is not much progress in cases filed in FY 2010 quota yet. However, there is sharp increase in filings. The regular cap increased by 1600 cases between the end of August and the end of September, for a total of 46,700 as of September 25, 2009. This reflects a higher rate of filings than in the prior few months which may be due to re-filings and fresh filing as per upcoming requirements. We will keep you posted on further developments.

Since the H1B filing season opened up in April 2009, cases were subject to greater scrutiny by USCIS. While we still have H1B visas available, the denial rate of filed cases is on the rise. I would say say that we have a 30% increase in RFE’s received this year. Recently, the USCIS started auditing employers and showing up unannounced at the work sites.

AILA’s Bob White and Mary Pivec, from AILA Verification and Documentation Liaison Committee provided an update on the recent audits.

The U.S. Citizenship and Immigration Services’ (USCIS) Office of Fraud Detection and National Security (FDNS) has recently commenced an assessment of the H-1B program. The following is information that employers (and their immigration counsel) should know about FDNS, FDNS’ current H-1B assessment program, and how to respond if an FDNS Officer visits the employer’s (or its client’s) office as part of this assessment program.

USCIS created the FDNS in 2004 with a mission to detect, deter, and combat immigration benefit fraud and to strengthen USCIS’ efforts ensuring benefits are not granted to persons who threaten national security or public safety. FDNS is USCIS’ primary conduit for information sharing and collaboration with other governmental agencies, including Immigration Customs and Enforcement (ICE). FDNS currently consists of approximately 650 Immigration Officers, Intelligence Research Specialists, and Analysts located in field offices throughout the United States. Additionally, FDNS has contracted with multiple private investigation firms to conduct site visits on behalf of FDNS. FDNS’ budget is derived from the Fraud Fee, which is paid by employers with each initial H-1B or L petition.

FDNS has previously conducted assessments in the L-1, EB-1-3 Multi-National Manager and Executive, and R-1 programs. As part of these assessments programs, FDNS officers collected information during site visits to verify information pertaining to petitions that were both pending and already approved.

So how does the site visit work?

Unlike many of the site visits with the L-1, EB-1-3 and R-1 assessment programs, the H-1B site visits for the most part have been unannounced. The site visits may occur at the H-1B employer’s principal place of business and/or at the H-1B nonimmigrant’s work location, as indicated on the Form I-129 petition (regardless of whether the work location is controlled by the H-1B employer). The employer may request that its immigration attorney be present during the site visit. However, FDNS officers will not typically reschedule a site visit so that an attorney may be present. FDNS has stated that it will allow counsel to be present by phone, if requested.

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Recently the Department of Homeland Security (DHS) released an advance copy of the final rule rescinding the agency’s regulations regarding the legal obligations of employers receiving no-match letters from the Social Security Administration (SSA). The rule rescinds DHS final regulations previously issued on August 15, 2007 and October 28, 2008, entitled “Safe-Harbor Procedures for Employers Who Receive a No-Match Letter.” Publication of the final regulation in the Federal Register is expected within the next several days, and the rule will take effect 30 days after the publication date.

A no-match letter is a letter from SSA notifying an employer that the social security information submitted by the employer for certain employees does not match the information in SSA’s databases. The DHS no-match regulation had expanded the concept of “constructive knowledge” and had provided that employers could be held liable for the knowing employment of unauthorized workers where the employer failed to take sufficient steps to resolve a social security mismatch after receiving a no-match letter from SSA. The regulations also provided employers with a set of “safe-harbor” procedures after receiving a no-match letter. Employers who precisely followed those procedures would not be held liable for the knowing employment of any unauthorized workers based upon the receipt of the no-match letter.

However, as a result of a legal challenge filed by a number of labor and business organizations, DHS had been prohibited from implementing the social security no-match regulation, and SSA has not issued any no-match letters for several years. According to the preamble to the rule, DHS is rescinding its no-match regulations to focus its enforcement efforts on increased compliance through improved verification, including participation in E-Verify, the U.S. Immigration and Customs Enforcement’s Mutual Agreement Between Government and Employers (IMAGE), and other programs.

USCIS has updated the H1B cap count. As of September 25, 2009, the regular Cap count is 46,700. The advanced-degree cap remains at 20,000.

Since neither cap has been reached at the time of this writing, the USCIS will continue to accept FY2010 H1B cases under the advanced-degree and regular caps.

Hence, employers can still apply for H-1B petitions. However, we caution that even if the cap is open still getting an approval is a hard nut to crack. Please make sure following while applying for fresh H-1B Petitions:

The Cap seem to be moving slowly in the past few months, but something is different with the release of the new count this week.

As of September 18, 2009, approximately 46,000 H-1B cap-subject petitions and approximately 20,000 petitions qualifying for the advanced degree cap exemption had been filed. It seems that some employers are hiring again and willing to file for H1B visas for specialty workers. This is a good sign, but this also means that visas may run out sooner than expected.

USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn.

I recently came across a posting by fellow lawyer Chris Musillo, he wrote about an interesting point that is often asked by our clients, the Health Care recruiters and Healthcare providers. The question is do H1B workers that are not yet licensed, need to be paid. Here is Chris’ opinion, and I agree:

First a little background. The National Physical Therapy Exam (NPTE) is not offered overseas. Accordingly, all PTs must enter the US in order to sit for the licensing exam. The USCIS often approves unlicensed PTs for H-1B visa status, and there is ample Guidance to support these decisions.

My client’s approved PTs must then come into the US, sit for the NPTE, and then obtain their state license. Once they obtain the state license, they can begin their PT work.

United States Citizenship and Immigration Services (USCIS) released an updated H-1B cap count of 45,100 as of August 28, 2009. This reflects an increase of 100 cases from the prior count, provided on August 14, 2009. The advanced-degree cap remains at 20,000. The USCIS continues to accept FY2010 H1B cases under the advanced-degree and regular caps.

We suggest to US employers to file H-1B Petitions only if they can able to provide the Client details like Letter from the end-client, Work-orders confirming the placement. If you are having an in-house requirement, provide USCIS with ample proof of your in-house requirements. Considering the flood of H-1B RFEs, we have to be bit cautious in filing works. The standard approach prevailing until last year needs a re-look. Be assured, if you are right on papers and abide the Immigration requirement, you will for sure come with flying colors. We will be happy to help and support you in H-1B and other filings. It is widely believed that the H-1B Cap will be available even after Sept. 30, 2009.

The Council of Graduate Schools (CGS) issued an August 20, 2009 press release, reporting a decline in offers of admission from U.S. graduate schools to prospective foreign students. This is the first decline in the rate of offers to foreign students since 2004.

While these significant reductions affected the overall decline in foreign student enrollment, the number of offers of admission to students from the People’s Republic of China grew at a rate of 13 percent. The CGS press release indicates that this was the fourth year in a row of double-digit growth in the number of students from China offered admission to U.S. graduate schools.

With the up coming biggest education Expo in China (http://www.phdchina.org/english/index.shtml), the US is the country of Honour at this show. This is a clear sign that Chinese students are looking at the US as the main destination for studies and future opportunities.

As attorneys that work with Hospitals and medical professionals, we always get questions from clients about the H1B visa. Can Nurses really get this visa, and if so how?

The H1B visa program, which has a current allocation of 65,000 visas per year (This year visas are still open and up for grabs), allows foreign professionals to work in the U.S. for a limited duration. In this visa category, a U.S. employer offers a job to a foreign professional that requires a bachelor’s or higher degree, or its equivalent as the minimum entry requirement.

Nevertheless, there is a problem for nurses getting H1B visas. The USCIS applies a different rule for nurses. The USCIS (guided by a determination by the U.S. Department of Labor, as published in the Occupational Outlook Handbook) says that there is no industry-wide standard that a nurse needs a baccalaureate degree to perform the duties of a professional registered nurse. In many states, a nurse can obtain a professional registered nursing license after completion of only a two-year program and successful passage of a state licensing examination. Thus, according to the USCIS, foreign nurses are not eligible for H1B in general RN positions.

The days of considering the H1B visa process a purely administrative process are over. In the not so distant past, H1B cases were just about the forms and the evidence submitted in the case. If the USCIS liked the arguments and supporting documents, an approval was issued.

Things are not so simple today. Recently, the USCIS has begun making visits to the U.S. work sites of companies that sponsor H-1B and L-1 visa holders, including some large U.S.-based financial services companies. USCIS agents come with a checklist of questions designed to confirm the identity of the employer who petitioned for the visa and the visa beneficiary and to verify that both are in compliance with the terms and conditions of the visa. The objective of the unannounced on-site visits is clear: to detect fraud and abuses of the visa program.

Here is the problem, USCIS investigation tactics often exceed what is necessary and reasonable to obtain H-1B application verification information. Unlike the Department of Labor, which has the statutory authority to investigate an employer’s compliance with visa obligations but rarely conducts audits unless there are complaints, the USCIS has no statutory or regulatory authority to enter the workplace of H-1B and L-1 visa holders. So if you get audited, first thing to do is contact your immigration lawyer. A qualified attorney could assist you pass the audit and prevent any illegality on the side of the Government.