Articles Posted in Work Visas

Another sad day for immigration lawyers, employers and workers. USCIS announced it has received a sufficient number of petitions to reach the congressionally mandated H-2B cap for the first half of Fiscal Year 2009.

This is a clear sign the system is not working, we need more visas to jump start our economy and workforce. As of today, employers in the hospitality, construction, retail and more will struggle to keep their business rolling. I call on employers to take a stand and let our government how they are hurting, because the system is broken.

Read the press release here Download file

Sad but true, it seems that H2B visas will run out in the next few days. Here is a recent count update as provided by the American Immigration Lawyers Association.

July 23, 2008 H-2B Count

On July 24, 2008 USCIS updated the count of H-2B petitions received and counted towards the H-2B cap on the USCIS website. As of July 23, 2008, 31,619 petitions have been counted towards the 33,000 cap for the first half of FY 2009.

We process many TN visa cases at our office and through our self help kit guide on the TN Visa Expert Site. The TN visa is available for Canadian and Mexican citizens. The applicant must be coming to work in the United States as one of 65 job titles defined in Chapter 16, Annex 1603, Appendix 1603.d.1.

and possess the required education and/or experience.

Some applicants do not seem to fit the typical job title listed, and our job is to try to stir them in the correct direction. I wanted to bring an example of a recent successful case where we did just that. This applicant held a Bachelor of Commerce with a double Concentration in Organizational Behavior and Marketing from McGill University and a Master’s of Applied Positive Psychology from Ivy League University of Pennsylvania. Original job title was a personal coach. I have looked further into her company and other duties and reralized that Technical Writer could work. This is a good General job title that can be used very effectively when crafting NAFTA TN applications. It worked, and you can read her story below including the cover letter that we used.

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Hi Jacob, I’m in, With a fresh new TN visa in hand!
I brought a book with me, and when I went in the office, I sat down and started to read. When the agent called me, he asked what position I was applying for. I said “Technical Writer” and then laughed and added “I’m a bit of a nerd!”. He then quickly tried to find my degrees to make sure I qualified and after seeing my transcript, he said “You have a 4.0 GPA?” So I replied “Well… I already said I was a bit of a nerd!” So the agent added it all up – she gets here, sits down and reads, applies for Technical Writer and has a 4.0 GPA on her Master degree from UPenn – that’s solid! He then looked at my articles that I had printed as a proof of experience and started to read them quickly – he said he needed to read them for his own benefit, so that confirmed I was qualified!
He didn’t know that Technical Writer was on the TN list, so he had to dig out a document with all the job descriptions, find it, read it and then compare with my letter. He said I had a very nice letter and asked a few questions to validate some of what he had read, but I really didn’t get a hard time at all! I was actually surprised that it went so easy!
Half hour later, he was taking my picture and finger prints! And so here I am, very happy to be in and very grateful you advised me to go for Technical Writer! Thank you, Jacob!
Warmly,
MJ
See her Letter below

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The Department of Labor continues to fight against immigration service providers. First it was the largest Law Firm in America and now a software provider. DOL announced the debarment of an immigration software company, having determined that the company willfully provided false or inaccurate information when applying for permanent labor certifications, and engaged in a pattern or practice of failing to comply with the terms of the application, ETA Form 9089.

“Debarring this company for filing false information demonstrates the department’s

ongoing commitment to safeguard the integrity of the permanent labor certification

A few days ago USCIS updated the count of H-2B petitions received and counted towards the H-2B cap. As of July 1, 2008, 17,305 petitions have been counted towards the 33,000 cap for the first half of fy 2009. For the lawyers filing H2B visas and employers needing them badly, these are bad news.

I expect all H2B visas for the first half of the year (starting October 1) to be gone by mid August, if not earlier. Those that have filed their Labor Certifications already, make sure to work with the local SWA’s and Department of Labor to make sure smooth processing of your files. Also, make sure to have your I-129 packages ready, so that with the LC’s are approved you will be first to file.

The American Immigration Lawyers Association reports that USCIS Service Center Operations has provided the following information to AILA liaison regarding processing cases under the FY2009 H-1B cap:

1. Except for cases that were being reviewed as potential duplicate filings, all receipts have been issued for those cases selected in the random lottery. The CSC and VSC completed data entry on all selected cases on May 23, 2008, and mailing of all receipts was completed on may 24, 2008. So if you have not been issued a receipt by May 24th, your case must have not been selected.

2. Cases that were thought to be duplicate filings are being hand reviewed to determine if they are true duplicates. USCIS has received approximately 500 petitions that are believed to be duplicates. However, some of these were submitted as “protective filings” due to courier delivery confirmation problems or where the petition was sent to an incorrect Service Center. Each will be reviewed and determined on a case-by-case basis. If the second submission was accompanied by an explanation of the reason for the second submission, there is a good chance of acceptance.

More bad news for H1B visa holders. DOJ’s Office of Legal Counsel released a memo on the payment of back wages to doctors hired on H-1B visas by the Department of Veterans Affairs (“VA”), stating “the statute authorizing the H-1B visa program does not waive the federal Government’s sovereign immunity. Therefore, an administrative award of back wages to alien physicians hired by the VA under the program is barred by sovereign immunity.” This is a February 11th, 2008, Memorandum Opinion for the General Counsel, VA and Solicitor, Department of Labor, Payment of Back Wages to Alien Physicians Hired Under H-1B Visa Program.

Read more below.

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ComputerWorld’s Patrick Thibodeau is doing an excellent job covering H1B and the Green Crisis in the past two years. I was happy to be interviewed for his H1B article coverage in early April. His most recent article regarding the need for Green Card Fix is right on the money.

He states: Fixing the permanent residency, or green card employment-based, visa program has been a top legislative goal of high-tech industry proponents, on par with their efforts to raise the H-1B cap.

And Lofgren, who heads the U.S. House Subcommittee on Immigration, is in the position to move legislation to the head of the class. But it remains to be seen whether she can jump over the legislative stalemate created by lawmakers who want comprehensive immigration reform or nothing at all. Rep. Zoe Lofgren (D-Calif.) has introduced three bills in the past few weeks to help foreign nationals already working in the U.S. obtain permanent residency.

We continue our updates on the new TN visa extension rules. USCIS announced today that it is publishing a Notice of Proposed Rulemaking to increase the maximum amount of time a Trade- NAFTA (TN) professional worker from Canada or Mexico can remain in the United States before seeking readmission or obtaining an extension of stay. The proposal will extend the maximum period of admission for TN workers from one year to three years, the same term that USCIS currently may grant to H-1B specialty occupation workers.

The proposed rule will further allow eligible TN nonimmigrants to be granted an extension of stay in increments of up to three years, as opposed to the current maximum of one year. TN nonimmigrants are not subject to a maximum period of stay and thus may seek multiple readmissions or extensions, provided their intended professional activity continues and they remain otherwise eligible. Current regulations require that TN workers seek readmission or apply for an extension of stay each year.

More about TN visas read here

DHS issued an updated OPT filing guide for schools and students.In April, DHS published an Interim Final Rule (IFR) titled Extending Period of Optional Practical Training by 17 Months for F-1 Nonimmigrant Students With STEM Degrees and Expanding Cap-Gap Relief for All F-1 Students With Pending H-1B Petitions. The revised guide follows this rule.

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