Visa Lawyer Blog

Articles Posted in Work Visas

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The Nursing Relief Act of 2009 has been introduced into the House of Representatives as bill HR 1001. The bill is a very good one for nurses and US patients. Unfortunately, we are a little skeptical that such a bill can survive the legislation process because of the economic crisis and other factors. Unlike the 2007 Bill, we hope that the current members of the House will see the urgent need to pass this now. Nevertheless, we are encouraged by activity and we applaud the sponsors and co-cosponsors of the bill and the underlying facilities that pushed for the bill.

The purpose of this Act is to create a new nonimmigrant visa category for registered nurses and establish admission requirements for such nonimmigrants.

The Congress finds the following:

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AILA and the U.S. Chamber of Commerce sent a letter to all Senators urging them to oppose Sen. Sanders’ H-1B amendment to the stimulus bill (H.R. 1), which would prevent U.S. employers who using TARP funds from accessing highly skilled, professional foreign talent that would allow them to stay competitive in the global marketplace.

U.S. Sens. Bernie Sanders (I-Vt.) and Chuck Grassley (R-Iowa) had proposed legislation last week to prohibit any firm that received money under the Troubled Assets Relief Program (TARP) from hiring foreign workers. The amendment passed last week, part of the stimulus plan being debated in the Senate,set a series of strict standards on H-1B hiring.

The Senate’s amendment would require companies receiving TARP funds, mostly financial services firms, to comply with hiring rules set for “H-1B dependent” firms — those with more than 15% of their workers on H-1B visas. Any firm receiving TARP funds will be automatically considered H-1B dependent, regardless of the percentage of H-1B workers on the payroll.

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I previously reported on changes to the H2B visa program. On December 19, 2008, DHS published in the Federal Register a final rule “Changes to Requirements Affecting H-2B Nonimmigrants,” which provides that the Secretary of Homeland Security will publish a list of designated countries whose nationals can be the beneficiaries of an approved H-2B petition and are eligible for H-2B visas. This initial list will be composed of countries that are important for the operation of the H-2B program.

Pursuant to the final rule, this notice designates those countries the Secretary of Homeland Security, with the concurrence of the Secretary of State, has found to be eligible to participate in the H-2B program:

Argentina;

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The Labor Department has released its projections for when it will phase in the new versions of the LCA Form ETA 9035 and the PERM Form ETA 9089.

The Deptartment of Labor indicates that its implementation timing for the new LCA Form ETA-9035 is:

– It will begin receiving the new form for processing on April 15, 2009.

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The The Administrative Review Board found that the employer in that case failed to report termination of the H-1B employee as required and is liable for back wages. It noted that periods of unproductiveness were not due to unwillingness or unavailability of the employee to work, thus are compensable. Administrator, Wage & Hour Div. v. Help Foundation of Omaha, Inc. et al.

Key points in this case are: (1) the ARB found that it was appropriate to award wages beyond the termination of actual employment until the time when employer filed a notification and request with the USCIS to revoke the H1B petition; and (2) the back-wage award was granted against the H1B company, as well as against the company owner, individually.

This problem is avoidable simply by paying workers, as required in the Labor Condition Application (LCA); or, if there is not sufficient work, filing an H1B amendment or terminating the H1B, as needed, in compliance with the DOL regulations.

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Federal contractors and subcontractors will be required to begin using the U.S. Citizenship and Immigration Services’ EVerify system starting May 21, 2009, to verify their employees’ eligibility to legally work in the United States. The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council amended the Federal Acquisition Regulation (FAR) to reflect this change.

The new rule implements Executive Order 12989, as amended by President George W. Bush on June 6, 2008, directing federal agencies to require that federal contractors agree to electronically verify the employment eligibility of their employees.

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It is nice to be recognized by the media from time to time. The American Bar Journal is taking an interest in Immigration law, in the February issue they feature our office and the unique H2A practice we operate.

H-2As are used by seasonal agricultural workers, who must prove that (a) they have residences in other countries they have no intention of abandoning, and that (b) they will be in the United States no longer than eight months. The ABA Journal is read by half of the nation’s 1 million lawyers every month. It covers the trends, people and finances of the legal profession from Wall Street to Main Street to Pennsylvania Avenue. We are honored.

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Most employers know that they can submit H-1B petitions on behalf of foreign born professionals six months before October 1st , the first day of the federal fiscal year. First day of filing, April 1st is always very stressful. So following all of the instructions, day before April 1st, we law firm submit numerous of H-1B petitions for foreign born professionals, knowing that these would reach the government by, April 1st, the government’s official processing start date. If an H-1B petition is approved, foreign professionals can begin working on October 1.

What no one could have guessed was that in the past 2 years the government would receive over 140,000 such petitions, way too many for them all to be approved. In an event that sent shock waves through the immigration community, twice the available quota of H-1B visas was received by the Immigration Service on the very first day (or first 5 days under last year changes) it accepted petitions.

How does the government decide which employers get their workers on October 1st? Guess what, the answer is by a lottery. The first 65,000 foreign professionals to be randomly chosen get to work in the U.S. The rest get their petitions back in the mail and checks returned as well.

Of course, if these professionals are still interested in returning to the U.S., employers can petition for them again in April of 2010. If they don’t make the cut in 2009, they can try again in 2010, and so on year after year.

So how can one beat the lottery for H1B visas?

There are a few things that prospective H-1B employers and H-1B employees can do to improve the likelihood that the H-1B will be accepted by the USCIS. First, be sure that all of the appropriate documentation is contained in the H-1B petition. Second, be sure that the H-1B is submitted to the USCIS in a timely manner. Third, be sure that the H-1B is sent to the proper USCIS Service Center for adjudication.

Most importantly, H-1B petitioners should consider the possibility of utilizing filing multiple H-1B petitions. Be advised that the USCIS issued guidance concerning multiple H-1Bs. Filing a master’s H-1B and bachelor’s H-1B is not considered a multiple H-1B filing. Many organizations have layers and layers of subsidiaries and affiliates (different organizations with different Employer Identification Numbers) and there appears to be nothing yet in the regulations to preclude the use of those organizations as vehicles for additional H-1Bs. With each H-1B submitted, there is a statistically higher chance of one of the H-1Bs being able to “win” the lottery.

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