Visa Lawyer Blog

This was expected and here is the latest update. The U.S. Department of Labor’s Employment and Training Administration and its Wage and Hour Division today announced the publication of a proposed rule that seeks to improve the H-2B temporary nonagricultural worker program. The proposed rule, to be published in the March 18 edition of the Federal Register, includes changes to several aspects of the program to ensure that U.S. workers receive the same level of protections and benefits as temporary foreign workers recruited under the H-2B program, and to provide better access for employers with legitimate labor needs.

The H-2B nonimmigrant visa program permits employers to hire foreign workers to come to the U.S. and perform temporary nonagricultural work, which may be one-time, seasonal, peak load or intermittent and there are no qualified and willing U.S. workers available for the job. Note that this visa is not available for “temporary” agencies or other work placement agencies.

There is a 66,000 per year limit on the number of foreign workers who may receive H-2B status during each USCIS fiscal year (October through September). The process for obtaining H-2B certification is similar to, but less extensive and time consuming, than permanent certification. You are eligible for the H-2B Visa provided that you have a valid job offer from a US employer to perform temporary or seasonal non-agricultural work and that you intend to return to your home country on expiration of the visa.

As we are gearing up towards H1B filing season, recent update from USCIS. U.S. Citizenship and Immigration Services (USCIS) announced today, in response to recent stakeholder feedback, that it is currently reviewing its policy on H-1B cap exemptions for non-profit entities that are related to or affiliated with an institution of higher education. Until further guidance is issued, USCIS is temporarily applying interim procedures to H-1B non-profit entity petitions filed with the agency seeking an exemption from the statutory H-1B numerical cap based on an affiliation with or relation to an institution of higher education.

Effective immediately, during this interim period USCIS will give deference to prior determinations made since June 6, 2006, that a non-profit entity is related to or affiliated with an institution of higher education – absent any significant change in circumstances or clear error in the prior adjudication – and, therefore, exempt from the H-1B statutory cap. However, the burden remains on the petitioner to show that its organization previously received approvals of its request for H-1B cap exemption as a non-profit entity that is related to or affiliated with an institution of higher education.

Petitioners may satisfy this burden by providing USCIS with evidence such as a copy of the previously approved cap-exempt petition (i.e. Form I-129 and pertinent attachments) and the previously issued applicable I-797 approval notice issued by USCIS since June 6, 2006, and any documentation that was submitted in support of the claimed cap exemption. Furthermore, USCIS suggests that petitioners include a statement attesting that their organization was approved as cap-exempt since June 6, 2006.

According to the LA Times, California reached a milestone late last month when federal immigration officials quietly announced that all 58 counties in the state are now participating in Secure Communities, a controversial program created to track and deport dangerous criminals.

Unveiled in late 2008, Secure Communities is billed as a showpiece of immigration enforcement. Under the Immigration and Customs Enforcement program, state and local police must check the immigration status of people who have been arrested and booked into local jails by matching fingerprints against federal databases for criminal convictions and deportation orders.

But today, Secure Communities is mired in problems. About 60% of the 87,534 immigrants deported under the program had minor or no criminal convictions, according to the U.S. Department of Homeland Security’s statistics, even though the program was aimed at dangerous criminals.

Our office has extensive experience assisting the clients in filing H-1B petitions. We also help the clients consider their options if the case is denied. Below is an example of the H-1B case that got approved even after the denial was issued.

The employer/petitioner was a large luxury hotel. The petitioner sought the services of the beneficiary in the position of a Food Service Manager.

The Immigration Service issued a Request for Evidence (RFE) in that case prompting the employer to submit additional evidence to establish that the position offered qualifies as a specialty occupation.