Articles Posted in Work Visas

A December 11, 2008 USCIS Update announces that the agency has finalized changes to H-2A regulations. This final rule will facilitate the H-2A process for employers by removing certain limitations.

U.S. employers may file an H-2A petition with USCIS if they have a shortage of available U.S. workers to fill temporary or seasonal agricultural jobs. Once the petition is approved, the employers can hire foreign workers to fill those jobs for a limited period of time. There is no cap limitation on H2A visas unlike the sister program H2B.

Key areas of reform addressed in the final rule include:

According to the SF Chronicle with unemployment rising, foreign workers are less welcome, say immigration restrictionists, who have vowed to oppose offering legal status to the nation’s estimated 12 million undocumented immigrants.

Until a comprehensive bill is introduced in Congress, Obama’s pick to head the Department of Homeland Security, Arizona Gov. Janet Napolitano, will play a key role in refocusing the way the government handles immigration.

Problems in the legal immigration system have festered for years. The agency granting permanent legal residence (the green card is the token) and citizenship has long been plagued by epic backlogs and dysfunctional computer networks. Major policy debates over appropriate levels of immigration and whether to prioritize family ties or economic contributions – and high- or low-skilled workers – remain unresolved after “comprehensive” immigration bills died in Congress in 2006 and 2007.

In November, the U.S. economy shed jobs at the fastest rate in 34 years – and experts say December could be even worse. The number of jobs lost in the current recession, which began in December 2007, surpasses the 1.6 million jobs lost in the 2001 recession.

As a result, job losses were spread across a wide variety of industries: manufacturing, leisure and hospitality, construction and even, in the midst of the holiday shopping season, retail. Also seeing sharp declines were professional and business services, a category seen by some economists as a proxy for overall economic activity, and financial services, at the heart of the current crisis.

In November the number of people with a higher degree who were out of work rose to 1.413 million from 1.411 million in the previous month, according to the Bureau of Labor Statistics.

For employers that rely on the H2B Visa to staff workers, 2009 may be the worst year ever. On December 3, 2008, USCIS updated the count of H-2B petitions received and counted towards the H-2B cap on the USCIS website. As of December 1, 2008, 12,371 petitions have been counted towards the 33,000 cap for the second half of FY 2009.

This means that by early January the 33,000 visas reserved for the second part of year will be gone. Employers like Hotels, Constructions Companies, retail season businesses will be affected the most. We urge the government to pass legislation to increase the H2B cap allowing employers to recruit seasonal workers when needed.

The H2B visa is available to employers of foreign workers not working in the agricultural field. This visa is only available for work that is temporary in nature. For H2B purposes, that means:

As the H1B season is coming up, I wanted to cover another category of this visa based on the Free Trade agreements with Singapore and Chile.

Although Chilean and Singaporan nationals still have available to them the B and L visa categories, the new H-1B1 category is available to “professionals” from these countries under the new FTAs. For purposes of the two trade agreements, a “professional” is defined as “a national of [Chile or Singapore] who is engaged in a specialty occupation requiring (a) theoretical and practical application of a body of specialized knowledge; and (b) attainment of a post-secondary degree in the specialty requiring four or more years of study (or the equivalent of such a degree) as a minimum for entry into the occupation.”
In addition, the H-1B1 nonimmigrant classification is available to certain otherwise admissible businesspersons who do not possess a post-secondary degree or its equivalent, but who will engage in the professions of: (1) in the case of Chilean nationals only, Agricultural Managers and Physical Therapists; and (2) in the case of both Chilean and Singaporan nationals–Disaster Relief Claims Adjusters.

Further, in the case of nationals of both countries, certain management consultants who hold a degree in other than their specialty area will be able to seek admission in H-1B1 classification by presenting alternative documentation reflecting experience in the specialty area.

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According to a recent BusinessWeek article, A new U.S. government report confirms that companies are using the visas to hire illegally. I am shocked, really, I thought all employers are following the law and abiding by the visa rules.

U.S. Citizenship & Immigration Services (USCIS) found that 13% of the requests for H-1B visas were fraudulent and 7% contained technical violations. In one case, when a company requested a visa for a “business development analyst,” USCIS found the person would be working in a laundromat, doing laundry and maintaining washing machines.

Bill Wright, a spokesman for USCIS, says the agency is already weighing adjustments based on the report’s findings. It’s developing a new risk-assessment program that, among other things, would closely examine requests from companies with 25 or fewer employees, since that category was found to have a higher rate of violations.

So now it is official TN visas can issued for 3 years and not just 1 as before. So many applicants were calling in the past year asking when will the rule become law, well not it is official.

U.S. Citizenship and Immigration Services (USCIS) has increased the maximum period of time a Trade-NAFTA (TN) professional worker from Canada or Mexico may remain in the United States before seeking readmission or obtaining an extension of stay. This final rule changes the initial period of admission for TN workers from one to three years, making it equal to the initial period of admission given to H-1B professional workers. Eligible TN nonimmigrants may now be allowed to receive extensions of stay in increments of up to three years instead of the prior maximum period of stay of one year.

Read the press release here Download file

To ensure that the mailroom does not erroneously reject your non-subject H-1B, make sure the cover letter emphasizes in Bold, 14 point font, colors, etc., that the petition is NOT subject to the cap. Make clear why the petition is not subject to the cap, and state it as simply as possible. In addition, double check that the correct H-1B petition type is indicated on the certified LCA and all accompanying documentation (be consistent!).

Also, remember that when filing H-1B extensions for the same employer, the $500 fraud prevention fee does not need to be paid. Make sure to highlight this in your cover letter to avoid rejections. Provide proof of the prior H-1B petition approved on the beneficiary’s behalf by the same petitioner, highlight the petitioner and beneficiaries’ names, highlight the instructions to the form I-129, indicating that such fee is not required, and provide a statement (in bold) stating why the $500 fee does not apply. Taking such steps will definitely minimize the chances of such filing being rejected.

Employers that violate the H1B program requirements, may be barred by the government from filing future cases. The Department of Labor published a recent list of such employers for the public to be informed. Click here for the complete list of debarred employers