Visa Lawyer Blog

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The International Exchange Center issued a practice guide regarding J1 visas for Trainees and Interns.

New final rules became effective Sept. 9, 2010 for J trainee and intern programs 22 C.F.R.§ 62 (2010). With few exceptions, the final rule will produce little change to the way J trainee and intern programs have been administered since the interim-final rule of 2007.

What are the significant changes?

1. Clarification of the required academic background for interns.

2. Elimination of the requirement that sponsors secure a Dun & Bradstreet report on all host companies.

3. Clarification that social work falling under Public Administration and Social Service Professions is allowed; clinical social work is not allowed.

4. Clarification that dental services are not allowed.

5. Elimination of training or internships for counter help positions.

6. Clarification that telephone interviews are appropriate when video conferencing is not available for the purpose of screening English language proficiency.

Who can be an intern under the new rule?

Interns must be either currently enrolled in and pursuing post-secondary academic studies abroad, or have graduated from an overseas post-secondary academic institution no more
than 12 months prior to the start date of his or her exchange visitor program. In the Analysis of Comments to the new rule, the Department of State explains that it expect “currently enrolled” to mean that the potential intern has completed at least two academic semesters’ credit before participating in a J internship program.

An internship must be in the intern’s specific academic field.

Who can be a trainee?

The new rule makes no changes to the definition of a trainee. Trainees are individuals who have either a degree or professional certificate from a postsecondary academic institution abroad and at least one year of related work experience acquired outside the United States, or have five years of related work experience acquired outside the United States. A trainee program must be in the applicant’s specific occupational field.

What about foreign nationals with degrees from the United States?

The new rule does not change that U.S.-based education or degrees cannot be used to
establish eligibility for either J-1 training or intern programs.

Will sponsors screen applicants differently?

Sponsors must interview every J-1 applicant either in-person or by video conference or web camera. The new rule allows sponsors to use a telephone interview if a video or web camera conference is not possible. All third parties involved in the recruitment and selection process must have a written agreement with the sponsor detailing what are the parties’ responsibilities.

Who can be a host organization?

A host organization conducts training or internship programs on behalf of Department of
State designated program sponsors (such as the American Immigration Council). A host
organization must sign a written agreement with the program sponsor. Host organizations that have not successfully participated in the J visa sponsor’s training or internship programs must be visited by a representative of the visa sponsor prior to approval of a DS-2019. Companies with 25 or more employees or with at least three million dollars in annual revenue are exempt from this mandatory visit.

The host organization must have workers’ compensation insurance. Where possible, the
intern or trainee must be covered by the insurance. The host organization must be able to provide an Employer Identification Number (EIN). The requirement found in the interim-final rule that all host organizations have a Dun & Bradstreet Number has been dropped in the new rule.

Host companies must agree to contact the visa sponsor immediately in the event of an emergency involving trainee or interns. The final rule clarifies that social work falling under Public Administration and Social Service Professions is allowed; clinical social work is not allowed.

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Love it or hate it – it works! The people have spoken! President of AILA, David Leopold said it well:

I worry that Rep. Lamar Smith, the expected chair of the House Judiciary Committee, will use his gavel not to fashion an historic overhaul of the broken immigration system, but to thwart any meaningful effort to fix it; that he will take us back to the mean spiritedness that resulted in the passage of the infamous H.R. 4437 which would have criminalized the undocumented. I fear that Rep. Steve King, the likely chair of the House Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law, will use his newfound subpoena power not to design a safe, orderly, and fair immigration policy for America, but to embarrass the Administration by dragging President Obama’s aunt up to Capitol Hill to interrogate her about her asylum status.

I hope I am wrong. I hope the new House majority will seize the opportunity to do the right thing and reach across the aisle for the good of the country.

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It is election day in San Diego and all 1,466 polling locations in San Diego County opened on time today, and no major voting problems have been reported, the Registrar of Voters said. How will this election results affect Immigration will remain to be seen.

The Republican class set to sweep into the House after Tuesday’s midterm elections could include several freshmen who have some experience cracking down on illegal immigration. Take Sen. Jeff Perry, who’s running against Democrat William Keating for an open seat in a Massachusetts district that includes Cape Cod. For the past four years, Perry has introduced a bill that would ban illegal immigrants from accessing social services such as public housing.

If he wins, Perry plans to introduce federal legislation that would stop social services funding, just like the law he tried to get through in Massachusetts, and supports ideas such as a mandatory national verification program that isn’t popular with business groups and Republican House leaders.

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So many times a client will come to the office and ask for an extension to stay longer in the United States. Many times we will determine that the client is already out of status, and an extension can not be filed. When I inform the client of the news, the reaction is often one of shock, how can that be, my visa is good for 5 years???

There is a common misconception that a U.S. visa is the evidence of your lawful status in the United States. Many individuals have difficulty understanding the difference between the visa expiration date and the length of time you have permission to remain in the U.S. These are very different terms.

A visa must be valid at the time a traveler seeks admission to the U.S., but the expiration date of the visa has no relation to the length of time a temporary visitor may be authorized by the Department of Homeland Security to remain in the United States.

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U.K. Prime Minister David Cameron said Monday his government would do everything possible to prevent a planned immigration cap from depriving U.K. companies of skilled workers from overseas. In a speech to the Confederation of British Industry on Monday, Mr. Cameron signaled the government was rethinking how the cap on non-European Union migrants might work. “As we control our borders and bring immigration to a manageable level, we will not impede you from attracting the best talent from around the world,” Mr. Cameron said.

However, a spokeswoman for the prime minister said the government had always said it wanted its new immigration cap to ensure businesses could attract skilled workers. Business Secretary Vince Cable, who has been critical of the immigration cap, said “there’s no change” in policy and that the government had always said it would create a flexible system. “There’s a common view that we have to have a cap on non-European Union immigration.

The government has said it will announce the new cap-and how it will operate-next spring. Businesses have been pressing for the system to be flexibly designed to ensure businesses don’t face obstacles in filling key posts. In a speech that focused on shifting the government’s message from austerity measures to growth and job creation, Mr. Cameron on Monday outlined initiatives to boost enterprise. These included a £200 million ($313.6 million) investment in technology and innovation hubs, and the government’s national infrastructure plan.

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According to a recent USCIS guidance an employer may not hire an H-1B worker prior to USCIS approving the H-1B petition unless the employee (i) is currently in H-1B status, or (ii) is the beneficiary of a timely filed H-1B extension of status petition. If the employee is in another nonimmigrant status, such as F-1 (student) or L-1 (intracompany transfer), the employer must wait until USCIS approves the H-1B petition before hiring the foreign worker.

Under section 214(n) of the Immigration and Nationality Act, a worker who “was previously issued a visa or otherwise provided [H-1B] nonimmigrant status” is authorized to begin working upon the filing of an H-1B petition by his or her new employer. This provision is often referred to as H-1B portability. Congress passed the law to allow employers to hire H-1B workers without having to wait for the government to adjudicate the H-1B petitions, a process that can often take several months.

The issue was raised to the USCIS Verification Division after employers received nonconfirmations from the E-Verify system when they hired H-1B workers under H-1B portability and the workers were not, at the time of hire, in H-1B status, or were not the beneficiaries of H-1B extension petitions. In the exchange, the USCIS Verification Division stated that the agency does not consider those employees to be work authorized. Please contact our office for further information.

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This is an important update for all Religious Workers filing for Permanent Residency. On October 13, 2010, the U.S. Court of Appeals for the Ninth Circuit issued a mandate overturning the permanent injunction ordered by the U.S. District Court for the Western District of Washington allowing special immigrant religious workers to file their Form I-485, Application to Register Permanent Residence or Adjust Status, concurrently with the organizations’ Form I-360.

Effects on Religious Workers

As of November 8, 2010, USCIS will no longer accept any I-485 applications, as well as Applications for Employment Authorization (Form I-765), and/or Applications for Travel Document (Form I-131), filed concurrently with or filed based on pending I-360 petitions from individuals seeking classification as special immigrant religious workers.

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USCIS announced the launch of a redesigned Certificate of Naturalization (Form N-550) with new security features that will reduce fraud—part of USCIS’ ongoing efforts to enhance the integrity of the immigration system. USCIS began using redesigned certificates at all offices last week, and the agency anticipates that over 600,000 new citizens will receive the enhanced certificate over the next year.

I attended my wife’s Naturalization ceremony last week and the new Certificate is really striking. The redesigned certificate features the naturalization candidate’s digitized photo and signature embedded into the document. The background also features a color-shifting ink pattern that is difficult to reproduce. USCIS is now using a more secure printing process that renders the certificate more tamper-proof.

For more info and see the new features click here

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U.S. Citizenship and Immigration Services (USCIS) today announced it has begun issuing a redesigned, more secure Certificate of Naturalization (Form N-550) as part of its ongoing efforts to enhance the integrity of the immigration system. The agency anticipates that over 600,000 new citizens will receive the enhanced certificate over the next year.