Visa Lawyer Blog

As leaders in NAFTA visa processing we like to update our readers on different visa categories and updates. This article is provided by our TN Visa Lawyer, Attorney Andrew Desposito.

For many who come to the U.S. seeking work, there are only so many visas through which they may legally work. It is because of this issue that U.S. lawmakers have been strict on immigration enforcement of illegal immigrants trying to work in the U.S., in particular those coming from Mexico.

For Mexicans and Canadians, the nonimmigrant NAFTA professional (TN) visa allows citizens of Mexico and Canada, as NAFTA professionals, to work in the U.S. in a prearranged business activity for a U.S. or foreign employer.

This is a great article by our Attorney Ekaterina Powell, Esq., she has been very involved in H1B DOL audits in the past few months as we defend our employer clients.

The number of Labor Condition Application compliance investigations of the H-1B employers by the Department of Labor (DOL) is on the rise. When violations are found, the Administrator of the Wage and Hour Division may assess civil money penalties ranging from $1,000 to $35,000 per violation, depending on the type and severity of the violation. The Administrator may also impose other remedies on the H-1B employers, including payment of back wages, and debarment from the H-1B program for a certain number of years.

Therefore, it is critical for all companies that employ foreign workers under H-1B program to keep themselves up-to-date with the compliance measures and strictly follow the record keeping requirements.

Another blow to the H1B program. According to Computer World, the cables being released by WikiLeaks are shedding some light on fraud in the H-1B visa application process in countries that don’t get much attention for it — Mexico, Libya and Iceland.

The reports so far are a collection of anecdotes explaining attempts to dupe U.S. officials into granting visas to people not eligible for them. That collection may grow as more cables are released.

The cables offer insight into the types of issues that embassy officials in such countries can encounter when processing work visas.

The H1B cap count was always an indication how our economy is doing. While we see recovery, it is a slow one. Same goes for H1B numbers usage.

As of April 15, 2011, approximately 7,100 H-1B cap-subject petitions were receipted. Additionally, USCIS has receipted 5,100 H-1B petitions for aliens with advanced degrees. If the numbers continue in this slow movement, we are looking to have H1B numbers open all through the summer and beyond.

Of course this could change at any time, so if you have an H1B employee in mind, file sooner than later.

American Immigration Council (AIC) and the American Immigration Lawyers Association (AILA) argued recently in an amicus brief—the government may not arrest H-1B employees for whom timely-filed extension applications remain pending.

The decision in El Badrawi v. United States, by U.S. District Judge Janet C. Hall, correctly recognized that a federal regulation allows H-1B employees to continue working for 240 days pending the adjudication of their extension applications, and that “work authorization is part and parcel of their authorization to be in the country, not a separate matter.” Permitting the initiation of removal proceedings during this period would thus be unfair to employees and employers alike, according to the decision.

The plaintiff, a Lebanese national, was gainfully employed as a medical researcher when his employer requested an H-1B extension in early 2004, more than a month before his H-1B status expired. Though his employer paid a $1,000 fee for premium processing of the application, the government never adjudicated it and refused to respond to requests for information. Nearly seven months after the request was filed, immigration agents arrested the plaintiff for allegedly “overstaying” his initial period of admission. He was placed in removal proceedings and detained for nearly two months.