Articles Posted in Work Visas

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:

After several years of investigations and further scrutiny, the R1 visa is back in the Premium Processing category under certain strict conditions. Only those petitioners who have successfully passed an on-site inspection are eligible to use Premium Processing Service.

Premium Processing Service is only available for R-1 nonimmigrant religious worker petitions at

this time. Such requests are made by religious organizations by filing the Form I-129, Petition for

U.S. Department of Labor has implemented a new integrated online system – known as the iCert Portal – through which employers can submit applications for permanent labor certification, labor condition applications (LCAs) and other applications for immigration-related DOL programs. In addition, the agency will introduce new editions of Form ETA-9089, the PERM labor certification application, and have already introduced Form ETA-9035, the labor condition application. iCert has already replaced the method of LCA filing for H-1B. The new iCert system begins to accept LCAs as of July 1, 2009. Employer and attorneys as the case may be, can still use the old LCA account but cannot submit new LCA. New LCA has to be filed from iCert.

Following are the new changes which has taken place:
– The new LCA requires writing the SOC (ONET/OES) code and the occupation title for the job.

– The new LCA has a section for basis for the visa classification supported by the application. There are the following categories:
a. New employment;
b. Continuation of previously approved employment without change with the same employer;
c. Change in previously approved employment;
d. New concurrent employment;
e. Change of employer;
f. Amended petition.

– One has to indicate the total number of H-1B/H-1B1 non-immigrant workers.

– The new LCA also requires, in the employer information section, to indicate the Trade name/doing business as (DBA), if applicable, the old LCA does not have this requirement.

– In the new LCA, one is required to write NAICS code.

– There is a new section in the new LCA – Employer point of contact information, which requires to indicate the following: full contact’s name; contact’s job; contact’s address; contact’s telephone number; contact’s e-mail address.

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The recent steps taken by Obama Administration to zero in on employers with I-9 gross violation, I would like to suggest the employers few measures which I’ve gleaned from assisting employers survive such audits over the years:
– Employers has to make sure that each new hire completes Section 1 of the I-9 form on the first day of employment to avoid paying fines in case the employee’s information is incomplete.

– Need to complete Section 2 of the form by the employee’s third day of employment. Employee can show from the list of documents mentioned at the back of the form List A document/ List B document., and one from List C (Employment Authorization) document. Do not request specific documents or additional documents.

– I-9 forms to be kept separate from employee personnel files.

– Advising employees who check the box in Section 1 to update the I-9 well in advance of the termination of their work permits.

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USCIS has announced that the H1B cap count continues to inch forward, with an approximate count of 45,000 as of July 3, 2009. This is a slight increase over the last count. As of this writing, both the advanced-degree and regular caps remain open for FY2010.

We will continue to provide updated H-1B cap count information, as and when it is made available.

Employers can still file fresh H-1B petitions considering that H-1 cap is still there.

Employers are receiving ample H-1B RFE in FY 2009-10. This is a major concern for the IT consulting and staffing companies. The problem of the unanswerable RFE generally stems from an H1B petition that was filed without awareness of the current USCIS expectations and adjudication standards. Petitioner has to submit various proofs relating to the beneficiary intended employment. A common problem is the work location/s of the H1B employee/s. It is obvious for a consulting company to file H1B petitions that provide their headquarters office/principal place of business as the work location. This generally is done because they do not know where the individual will really be working on the start date requested in the H1B petition. A project assignment would be located and matched with the employee sometime after the H1B has been filed.

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