Articles Posted in Work Visas

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

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.