Visa Lawyer Blog

Articles Posted in Work Visas

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Last week I attended the Annual Immigration Lawyers conference in Las Vegas. During the conference, government officials spent some time to update the attendees of the most recent information and upcoming changes.

It seems that the collection of the $500 fraud fee for new H1B or L-1 petitions is being used to invest in hiring more investigators. One recent trend is that business practices that were standard and went unchallenged previously, now are being viewed as “fraud.” Many companies must revise their practices to meet current standards. This does not mean that these practices of employers or businesses are necessarily fraudulent.

The biggest frustration for lawyers dealing with H1B’s are the unreasonable RFE’s being issued by the service since the April 1 filing. USCIS is making requests for photos of the premises, copies of contracts between all involved parties, and evidence of doing business including leases, licenses, and other proof. These requests are onerous for employers, as well as disruptive and harmful to both the employer and the employee when the H1B petition is often denied without valid justification.

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The Department of Labor published a final rule, effective on June 29, 2009, that suspends the H-2A final rule published on December 18, 2009. DOL is republishing and reinstating regulations in place on January 16, 2009, for 9 months, after which the Department will either have engaged in further rulemaking or lift the suspension.

The Department of Labor released FAQs regarding the May 29, 2009, suspension of a December 18, 2009, final rule on H-2As. Read more below

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As of May 29, 2009, approximately 45,800 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to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn.

Since it is probable that there will still be H-1B numbers available after June 30, U.S. employers should submit H-1B petitions for potential workers as soon as possible.

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BusinessWeek featured an excellent story about O1 visas, often known as the Genius visas. While the spotlight is now on H1B visas or the debate on Immigration Reform, it is important to cover this important and often overlooked visa.

O1 visas are awarded to immigrants with extraordinary abilities in the arts, sciences, education, business, or athletics. The program, for what are officially called O-1 visas, began in 1990 as lawmakers sought to separate these applicants from the pool of those seeking H-1B visas, the visa program for skilled immigrants used by many technology companies. While H-1B applicants must hold at least a bachelor’s degree and possess some specialized skill, O-1 visas are allotted to a more elite crowd: those who can prove to U.S. immigration officials that they are the very top in their fields.

According to the U.S. State Dept.—which makes the grants to successful applicants—9,014 O-1s were awarded in 2008, up 40% from 2004. Among current O-1 visa holders are Dallas Mavericks forward Dirk Nowitzki, Canadian author Jennifer Gould Keil, Israeli concert pianist Inon Barnatan, and members of the New York dance companies Merce Cunningham and Bill T. Jones/Arnie Zane.

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Truly sign of the times. According to USCIS As of May 11, 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.

In this pace, there will be plenty of H1B visas to carry us through September.

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The American Immigration Policy Center issued an excellent Fact Sheet about H2A farm orkers and the need for reform.

The Agricultural Job Opportunities, Benefits, and Security (AgJOBS) Act has long served as a blueprint for comprehensive immigration reform. AgJOBS, which combines an earned legalization program for farmworkers with a reform of the H-2A temporary foreign agricultural worker program demonstrates a successful model for compromise where workers and employers have come together to resolve their differences. The dysfunctional U.S. immigration system is currently standing in the way of addressing deeper structural problems that impact U.S. workers and U.S. competitiveness in a globalized market. As Congress proceeds, here are a few facts about the current challenges at the intersection of immigration policy and agriculture, and why addressing these issues is critical to the nation’s economy.

Here is an interesting fact :Most farmworkers are not authorized to work legally in the U.S.

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The H-2B visa program is vital to America’s small businesses and thus to America’s economic recovery. The H-2B program is capped at 66,000 visas per year. This is the same arbitrary number set by Congress in 1990. The visa allotment is split equally between the winter and summer seasons. Small business owners rely on the H-2B program because it is the only way they can legally hire workers for temporary and seasonal positions when they cannot find Americans to hire.

Small and seasonal businesses hire American workers and they do hire every qualified

American who applies for a seasonal or temporary short-term position. Nevertheless, even in this economy, positions remain unfilled, leaving these businesses desperately in need of workers. This is not surprising since these jobs typically involve low-skilled and semi-skilled labor, involve work at remote locations, and are only short-term in duration.

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U.S. Citizenship and Immigration Services (USCIS) today announced information on the number of filings for H-1B petitions for the fiscal year 2010 program.

USCIS has received approximately 45,000 H-1B petitions counting toward the Congressionally-mandated 65,000 cap. The agency continues to accept petitions subject to the general cap. Additionally, the agency has received approximately 20,000 petitions for aliens with advanced degrees; however, they continue to accept advanced degree petitions since experience has shown that not all petitions received are approvable. Congress mandated that the first 20,000 of these types of petitions are exempt from any fiscal year cap on available H-1B visas.

At this rate, there will be H-1Bs available until sometime in August. Today there are 20,000 H-1B slots that are up for grabs. Last year, employers submitted so many H-1B petitions that an individual’s chance of obtaining H-1B status was only about 40%. The same thing could happen next year leaving many students with no visas.

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Hotel News Now, a leading Global Hospitality publication, ran a two-part series about staffing challenges facing the U.S. hotel industry. I was honored to be interviewed by the publication and share my insights on the problems facing hospitality employer in these challenging times.

With the level of unemployment about 8.5 percent, why do hotels still need foreign workers? There are various reasons, from location to the attitudes of American workers. And changes in schedules and lifestyle have affected one of the former staples of summer work—students.

The situation is bad for staffing professionals in the industry, said Jacob Sapochnick, a San Diego, California-based lawyer whose practice is devoted to immigration law.

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Since my last Blog article on E2 visas, I have been getting numerous emails about this hot topic from across the globe. Investors are anxious to come, but need the most up to date information about the E2 visa as a way to relocate and start a business in America.

In this article I will discuss alternative financial transactions as investments. In addition to cash, payments in the form of leases or rents for property or equipment may be calculated toward the investment in an amount limited to the funds devoted to that item in any one month, since the remaining payments will presumably be paid out of earnings from the treaty business. However, more than one month of payments may be counted if they are made in advance. For example, if the treaty investor prepays his or her equipment lease for one year, the entire year’s worth of payments may be counted as part of the qualifying investment.

The amount spent for the purchase of equipment and for inventory already in the possession of the treaty investor may be counted as part of the qualifying investment. The value of goods or equipment transferred to the United States may be considered part of the qualifying investment, if it can be demonstrated that the goods or machinery will be put to use in an ongoing commercial enterprise. The treaty investor must establish that the purchased goods or equipment are for business, not personal purposes. While a company car may not meet this burden because it may also be used for personal purposes, inventory or industrial equipment certainly will.

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