Articles Posted in Work Visas

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.

The immigration system mirrors the economy, now we know it. H1B visas are still available with more than 15,000 are up for grabs. The numbers are pretty much unchanged since late May.

As of August 14, 2009, approximately 45,000 H-1B cap-subject petitions and approximately 20,000 petitions qualifying for the advanced degree cap exemption had been filed. 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. We will keep you posted with any changes in this area.

The H1B visa program is unlikely to reach its cap of 65,000 before the start of the 2010 fiscal with nearly 20,000 vacancies amid the economic downturn. This has happened for the first time in several years that the demand for the visas, which is mostly availed by Indian professionals, has slowed down.

Also due to a large number of rejections of H-1B petitions, this figure of 20,000 vacancies has remained almost the same for the past two months. Past figures indicate that Indian IT professionals have been a major beneficiary of H1B visas. An additional 20,000 H1B can also be issued to those foreign professionals, who have masters or higher degree from the U.S. Though the U.S. Citizenship and Immigration Services (USCIS) received 20,000 petitions, it continues to accept applications in this category.

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The U.S. Department of State (DOS) is transitioning to a fully web-based nonimmigrant visa form. This form, DS-160, eventually will replace the forms currently used to apply for nonimmigrant visas at the U.S. consulates. The new form is currently being used at twelve consular posts around the world. The new form is being implemented gradually. It is used at the following consulates: Australia (Melbourne, Perth, Sydney); Bermuda (Hamilton); Canada (Montreal, Vancouver); Hong Kong; Ireland (Dublin); Libya (Tripoli); Mexico (Ciudad Juarez, Hermosillo, Matamoros, Monterrey, Nogales, and Nuevo Laredo), and Montenegro (Podgorica). The new form will be available worldwide by the end of the 2009 calendar year. The expansion is currently limited, in part, due to server capacity.

The applicant will know on how to save the application and how to file as a family group. The DOS intends to add access to information in advance of the interview. This includes checking existing data bases, including the Petition Information Management Service, Student and Exchange Visitor Information System, and fraud-detection systems.

For the first time in several years the H1B visa system, is unlikely to reach its cap of 65,000 before the start of the 2010 fiscal with nearly 18,000 slots lying vacant thanks to the US economy. As of August 8, 2009, approximately 44,900 H-1B cap-subject petitions had been received by USCIS and counted towards the H-1B cap. 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.

This is in contrast to the previous years when the USCIS had to resort to computerised draw of lots as it received petitions outnumbering several times more than the Congressional mandated cap of 65,000 within the first few days after it started receiving H-1B applications. Here is some quick H1B visa history for you:

In 2007 and 2008 the caps were reached in the first few days itself – April 2 and April 1-5 respectively.

There is not a dull moment this summer for us immigration lawyers, all thanks to good old USCIS. On 8/6/09 USCIS announced that it has reopened the fiscal year 2009 H-2B petition filing period and will immediately accept petitions. This is after closing the cap in January this year.

How could this happen? The Department of State received far fewer than expected requests for H-2B visas and as a result, has issued only 40,640 H-2B visas for fiscal year 2009 to date. This means that there are approximately 25,000 visas that may go unused, as they have not been granted. Because of the low visa issuance rate, USCIS is reopening the filing period to allow employers to file additional petitions for qualified H-2B temporary foreign nonagricultural workers.

But the catch is that filing and processing must be done by September 30, 2009. So those eligible must use the premium processing to do so. Also, employers must submit the Form I-129 Petition for a Nonimmigrant Worker to USCIS with all required documents, including an approved Alien Employment Certification from the U.S. Department of Labor that is valid for the entire employment period stated on the petition. The petitioner must also indicate an employment start date before Oct. 1, 2009. Otherwise the case will be considered for fiscal year 2010.

These are fun and hot summer days for us Immigration lawyers filing H1B cases. As employers are starting to hire again, we are faced with the challenges of the new Labor Condition Application System, iCert.

The Labor Condition Application is a document which must be certified by the US Department of Labour and it an integral part in the H-1B applications. This document details the terms and conditions of employment, details of the employer, the work profile, rate of salary, prevailing salary (it means the lowest salary that can be paid to a h-1b visa holder) and the location where the h-1b holder will work. As of July 1, 2009 all LCA applications must be done via the icert system

In the past week or so many LCA cases came back with denial notices. The notices had the following language: