Articles Posted in Work Visas

The U.S. consulate in London has posted a new comprehensive set of procedures for applying for E-1 and E-2 visas on its web site.

The UK produced the largest number of E2 investors in the past several years and we can see the results with huge backlog at the Embassy in London. The US Embassy in London has seen a dramatic increase in the number of applications for E-2 visas in the last decade. One cause of this increase has been the strength of the pound against the dollar; another has been the growth in value of UK real estate. Combined, these factors have resulted in large number of British investors with substantial capital who seek to invest in the United States. The US government welcomes such investment. However, it is important for investors to understand the purpose of the E-1 and E-2 visas so that they do not risk losing time and money in a lengthy visa process which may not result in an approval.

The Treaty Trader and Treaty Investor visas were established to facilitate and enhance economic interaction between the United States and other countries. They were not intended to serve as a means for foreigners to retire or merely reside in the United States. U.S. law (see paragraph 101(a)(15)(E) of the Immigration and Nationality Act) explicitly states that E-1 visa holders must enter “solely to carry on substantial trade” and E-2 holders “solely to develop and direct the operations of an enterprise” in which he or she has invested. Moreover, these visas are non-immigrant visas and thus temporary. Treaty trader/investor visas can be renewed or extended only if the investment or trade continues to meet all applicable requirements of U.S. immigration laws and regulations.

H1B season is coming up, I am already feeling the pressure. Clients, employers and employees are calling and are anxious to start the process. USCIS in anticipation of the filing madness issue some tips for you to follow:
U.S. Citizenship and Immigration Services (USCIS), anticipating that April 1, 2008 will see a repeat of the mass filings from last year, wishes to offer this list of measures the petitioner can take to ensure that their petition is correctly filed.

For Fiscal Year 2009, the first filing date is Tuesday, April 1, 2008. Cap subject petitions received before that date will be rejected. Petitions are filed at Vermont and California Service Centers, depending on jurisdiction. See filing instructions. Both the forms and the instructions can be downloaded from this website. Click on this page’s related link, “Download form I-129: Petition for a Nonimmigrant Worker” or visit the “Immigration Forms” section of our homepage.

Here are some general tips on what to do to make sure that your petition is completed and filed properly.

1. Clearly label all H-1B cap cases in red ink on top margin of Form I-129 petition. Use the following codes:
Reg. Cap (65,000 regular cap cases minus the C/S cap cases received)
C/S Cap (Chile/Singapore H-1B1s)
U.S. Masters (20,000 cap exemption for beneficiaries with U.S. Masters or higher degrees)
Exempt (for petitions filed by certain institutions of higher education; nonprofit organizations; and nonprofit research organizations or governmental research organizations, as defined in USCIS regulations)

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The H1B season is certainly here, USCIS announced that effective January 30, 2008, certain cap exempt H-1B petitions should be filed with the California Service Center, where they will be processed by a dedicated unit. It seems that the government is getting ready for the massive filing attack due on April 1, 2008, so they are taking steps to ease the pressure.

What H1B cases are actually cap exempt?
H-1B “cap exempt” petitions, as referenced here, include petitions filed by:
• Institutions of higher education, as defined in section 101(a) of the Higher Education Act of 1965, 20 U.S.C. 1001(a);
• Nonprofit organizations or entities related to or affiliated with institutions of higher education; and
• Nonprofit research organizations or governmental research organizations, as defined in 8 CFR 214.2(h)(19)(iii)(C). Such institutions and organizations can indicate that their H-1B filing is cap exempt by marking Form I-129 (Petition of Non-Immigrant Worker) with a “yes” answer to questions 1, 2, or 3 in Part C of the H-1B Data Collection and Filing Fee Exemption Supplement (page 10).

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I read an interesting article on Informationweek.com regarding the Tech Skill shortage in the US. The fact is that we do have a shortage of qualified skilled tech workers whether you like it or not. How do I know that for a fact? Well maybe due to the fact that more than 300,000 skilled workers filed for H1B visas last year, competing for a mere 65,000 slots. Or maybe the numerous calls that we and thousands of other Immigration lawyers across the country get from worried employers concerned about what is going to happen this year.

Well last year the H1B quota was filled in the first day applications were received. In fact, so oversubscribed was it that the USCIS had a lottery to decide which of the almost 300,000 applicants will be fortunate enough to receive a Visa.

The unsuccessful applicants got their applications returned, together with their filing fees. We all expected that the visa numbers will be increased, but this never happened. Several large companies such as Microsoft, Apple and Dell have been lobbying hard for such an increase, but that has not produced any results so far.

We just received breaking news from USCIS that the H2B CAP for the second half of 2008 has been reached. USCIS is hereby notifying the public that January 2, 2008 is the “final receipt date” for new H-2B worker petitions requesting employment start dates prior to October 1, 2008.

The news hit us all hard, both lawyers and employers will need to struggle to keep workers on the job and the business going. I urge employers to write to their elected officials to take action and save our economy before it is too late.

Read the press release here Download file

To stress the problems that high–tech workers face getting green cards and work visas like the H1B visa, all members of Congress now have “blue cards.” The Compete America coalition has been distributing the cards to lawmakers during meetings, one of several industry lobbying efforts on competitiveness issues in the last few weeks of the year.

Read more here…

The California Service Center has informed AILA-CSC Liaison that it has changed its policy with respect to certain forms of concurrent H-1B employment.

In the past, the CSC would approve an H-1B petition for concurrent employment that is cap-subject if the alien was the beneficiary of an approved H-1B petition submitted by a cap-exempt employer, applying a literal reading of INA § 214(g)(6).

CSC has advised that they will start denying concurrent H-1B petitions filed by cap-subject petitioners (such employers that didn’t obtain H1B approval this year) notwithstanding the fact that the alien is already working for a cap-exempt institution. The matter is being taken up by out organization AILA and we will update readers of this Blog.

California farmers wait for comprehensive immigration reform and prepare for work in the fields. The Associated Press reported that some Oregon farmers contend the U.S. government’s decision to place National Guard troops along the Mexican border is contributing to a shortage of workers to pick their ripe fruit.

The stepped up efforts to crack down on illegal immigration is having an unwanted effect on American farmers. Some claim recent raids and threats to prosecute companies that hire undocumented workers have resulted in a severe labor shortage that could force some farms out of business and lead to higher food prices.

We are hoping for an immediate reform with respect to the H2A visa system, currently the only guest worker like system to hire farm workers. The system itself is very complicated and I am not surprised why not so many employers are actually trying to comply.

Recently the Department of Labor announced that the permanent foreign labor certification program’s backlog has been eliminated, with nearly 95 percent of cases completed and the rest awaiting responses from employers. The BECs have begun a transition and shutdown phase that will continue through December.

I can say that this is excellent news for many of our applicants that were waiting for so long for the DOL to get the files out with certifications. I am just hoping that we the free time on the DOL’s hands they might just expedite PERM processing and handling to make it really an online experience.

Every year I hear the same complaints from our farmer clients, there are just not enough workers in this country to keep with the demand. What choice do they have but to hire illegal workers.

According to the Department of Labor’s National Agricultural Workers Survey, 53 percent of the hired crop labor force lacked authorization to work in the U.S. in 2004-05. Worker advocates and grower associations agree the actual figure is probably closer to 80 percent.

Three-quarters of the hired farm work force in the U.S. was born in Mexico. And more than 40 percent of crop workers were migrants, meaning they had traveled at least 75 miles in the previous year to get a farm job, the survey showed.

Now a growing immigration raids is making life more difficult for everybody. flurry of immigration raids has some farmers in upstate New York worried about their ability to harvest all of their fruits and vegetables.

The farmers blame a growing immigrant farm labor shortage on a dramatic rise in immigration enforcement at a time when national security restrictions have already sharply curtailed attempts by foreign workers to gain lawful seasonal employment in the United States.

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