Visa Lawyer Blog

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A great program on KPBS this morning covered the case of Ruben Flores-Villar. Flores-Villar, 35, was born in Tijuana, Mexico, but grew up in the San Diego area, in the care of his father and grandmother.

When he sought U.S. citizenship in 2006 — to fend off criminal charges of being in the country illegally — U.S. immigration authorities turned him down. For people born before 1986, their U.S. citizen fathers had to have lived in the U.S. for 10 years, at least five of them after the age of 14. Flores-Villar’s father could not meet the second part of that requirement because he was only 16 when his son was born. American mothers need only have lived in the U.S. continuously for a year before the birth of a child.

Later this year, the Supreme Court will enter a curious corner of U.S. immigration law that applies only to children born outside the U.S. to one parent who is an American and one who is not. The law makes it easier for children whose mother is a citizen to become citizens themselves. Even after reform legislation in 1986, children of American fathers face higher hurdles claiming citizenship for themselves.

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The National Foundation for American Policy released a few interesting facts about H1B visa usage. You will be surprised when you read the following:

– Although important for the competitiveness of many U.S. companies, new H-1B visa holders represented only 0.06 percent of the U.S. civilian labor force in 2009, a tiny proportion of the U.S. workforce, making unsupportable claims that such individuals are “destroying” large numbers of U.S. jobs. Moreover, for the past several years no new H-1B visa holder could even be hired by companies in the United States for 4 to 12 months at a time due to quotas being exhausted, making it unlikely that employers would go without filling jobs if a qualified U.S. applicant was available.

– A large variety of businesses and organizations in America, including public school systems, hire H-1B professionals every year. In FY 2009, 27,288 different employers hired at least one individual on a new H- 1B petition, according to USCIS. Contrary to the popular impression, 96 percent of the employers (26,304 of 27,288) hired 10 or fewer individuals on a new H-1B petition. A total of 18,747 employers, or 69 percent, hired only one foreign national on a new H-1B petition.

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H1B filings are looking much better than last year. U.S. Citizenship and Immigration Services (USCIS) today announced it continues to accept H-1B nonimmigrant petitions subject to the Fiscal Year 2011 (FY 2011) cap. USCIS will monitor the number of petitions received for both the 65,000 general cap and the 20,000 U.S. master’s degree or higher educational exemption.

USCIS has received approximately 13,500 H-1B petitions counting toward the 65,000 cap. The agency has received approximately 5,600 petitions for individuals with advanced degrees.

There is a lot of uncertainty regarding the cap this year. Unless there is a remarkable change in the economy in the next few months, the filing levels are likely to continue to be low. The USCIS is expected to continue closely scrutinizing H1B filings, and to demand detailed proof of the nature of the job offer and eligibility for H1B approval. We will keep you posted.

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This is the latest update as of Tuesday, April 6, 2010, Vermont Service Center, as of close of business on Monday, April 5, 2010, VSC had received a total of 9,525 cap-subject H-1B petitions. Of those petitions, 6,791 were “regular” cap, and 2,734 were advanced degree. All cases received before April 7, 2010, will have an April 7, 2010 receipt date. Those received on April 7, 2010 or later will bear the actual receipt date. For those submitted for Premium Processing, the clock will start on April 7, 2010. We will update once we have the California Service Center Numbers.

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With all the scrutiny around H1B visas these days, clients and lawyers are always seeking alternative visas. There are not many, but we will explore the best options in the next few articles.

The Trade NAFTA (TN) category of the North American Free Trade Agreement (NAFTA) North American Free Trade Agreement (NAFTA),retains a strong resemblance to the H-1B category, since both categories contemplate the admission of persons of professional standing who will engage in professional-level activities. Its utility as an alternative to the H-1B category is limited, however, by the simple fact that it is available only to nationals of Canada or Mexico.

The TN category offers Canadian and Mexican professionals four obvious advantages over the H-1B category. First, an applicant for this status need not file, and obtain approval of, a nonimmigrant petition with a service center before entering the United States. A Canadian national may instead present the application at a port of entry or preflight inspection station, where processing generally takes no longer than three hours. If the TN is denied, the applicant can re apply with the necessary corrections in most cases and if no fraud was involved. A Mexican national may file an application for a TN visa directly with a U.S. consulate.

Second, Canadian TN applicants are not required to obtain approval of an LCA from the Department of Labor; this allows employers to avoid the often intrusive salary-posting and record-keeping requirements of the H-1B category. Also LCA’s take forever to obtain these days, making the process even longer.

Third, the TN category, unlike the H-1B category, does not impose a maximum period of stay. Technically, a Canadian or Mexican professional may hold TN status indefinitely, as long as he or she continues to be employed in an appropriate profession.

Fourth, there is no limitation on the number of Canadian or Mexican nationals who may be admitted in the course of a fiscal year.

The TN category of NAFTA requires each state party to admit “a business person seeking to engage in a business activity in a profession set out in Appendix 1603.D.1 [of NAFTA].” This appendix provides a listing of 63 professions with corresponding minimum educational requirements and alternative credentials. Only persons coming to work in one of these listed professions may be accommodated under the TN category; a person coming to work in the United States in an unlisted profession may not enter in TN status, regardless of the fact that his or her job has been recognized as a profession or a specialty occupation by USCIS in another context.

Eligibility for H-1B status does not therefore translate automatically into eligibility for TN status, and the preparation of a TN application requires an approach quite distinct from that involved in the preparation of an H-1B petition. One of the more important distinctions between the TN and H-1B categories, which directly affects the availability of TN status for persons who customarily would seek H-1B status, lies in the differing analysis applied by government officers to determine professional status under each category. For clients contemplating the use of the TN category as an alternative to the H-1B category, these differing analysis must be taken into account in determining whether a position for which an H-1B petition would have been filed is one that can be accommodated under the TN category.

CBP and State Department officers reviewing TN applications must operate deductively, in the sense that they will draw a conclusion from a set of given premises. This analysis, in which form takes precedence over substance, often requires more than a surface screening of an application to ensure that the relevant criteria are met (e.g., all hotel managers with degrees in hotel management are admissible in TN status; this person is a hotel manager and has a degree in hotel management; therefore, he is admissible in TN status).

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The Congressional Research Service (CRS) issued report on legislative developments in visa policy over the past 20 years and analysis of statistical trends in visa issuances and grounds for exclusion.

The conventional wisdom is that the terrorist attacks on September 11, 2001, prompted a substantive change in U.S. immigration policy on visa issuances and the grounds for excluding foreign nationals from the United States. A series of laws enacted in the 1990s, however, may have done as much or more to set current U.S. visa policy and the legal grounds for exclusion.

Foreign nationals not already legally residing in the United States who wish to come to the United States generally must obtain a visa to be admitted. Those admitted on a permanent basis are known as immigrants or legal permanent residents (LPRs), while those admitted on a temporary basis are known as nonimmigrants (such as tourists, foreign students, diplomats,temporary agricultural workers, and exchange visitors). They must first meet a set of criteria specified in the Immigration and Nationality Act (INA) that determine whether they are eligible for admission.

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As many readers know, H1B status holders in the US, may apply for visa stamp in Canada. This way avoiding a costly trip the country of origin. Such applicants are called Third Country Nationals.

The US Consulate General in Cananda ACCEPTS the following types of NIV applications from Third Country National (TCN) applicants:

Applicants seeking to renew their C1/D, D, E , F, H (except H-2), I, J, L, M, O, P and R visas, regardless of where the original visa was issued. Certain visa applicants may be subject to additional administrative processing.

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Today is the first day that employers may file H1B petitions for FY 2011. We certainly released our cases on time yesterday, and are still open to new cases as long as the H1B cap will remain open.

Under current law, an alien can be in H-1B status for a maximum period of six years at a time. After that time an alien must remain outside the United States for one year before another H-1B petition can be approved. Certain aliens working on Defense Department projects may remain in H-1B status for 10 years. In addition, certain aliens may obtain an extension of H-1B status beyond the 6-year maximum period.

The current law limits the cap of H1Bs to 65,000 as the number of aliens who may be issued an H1B visa or otherwise provided H-1B status. In addition, all H-1B non-immigrants who work at (but not necessarily for) universities and non-profit research facilities are excluded from the numerical cap. This means that contractors working at, but not directly employed by the institution may be exempt from the cap.

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The Department of State just released the new visa bulletin for April 2010 on March 12, 2010.

EB-1 category is current for the month of April 2010. For mainland Chinese nationals, the cut-off date progressed from July 8, 2005 to August 22, 2005 in the EB-2 category. For Indian nationals, the cut-off date in the EB-2 category remains unchanged from March (February 1, 2005). In the EB-3 category, dates progressed for mainland Chinese nationals from December 15, 2002 to February 1, 2003 and for Indian nationals from July 1, 2001 to September 8, 2001.

In the month of March, the EB-1 category remained current from February. In the EB-2 category, cutoff dates for Chinese and Indian nationals both moved forward. For mainland Chinese nationals, dates progressed 47 days from May 22, 2005 to July 8, 2005. For Indian nationals, dates progressed 10 days from January 22, 2005 to February 1, 2005. In the EB-3 category, dates progressed for mainland Chinese nationals from September 22, 2002 to December 15, 2002 and for Indian nationals from June 22, 2001 to July 1, 2001.

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USCIS has not extended its temporary accommodation for delays in the labor condition application (LCA) process. Earlier, USCIS agreed to accept H-1B petitions without a certified LCA, in certain situations, for a limited time. This exception was available from November 5, 2009 to March 9, 2010. The USCIS has declined to extend this exception. Accordingly, all H-1B petitions must be filed with the certified LCA otherwise USCIS will deny the H-1B petition or extension.

Hence, it again is necessary to have an Approved LCA in place for the proper location at the time of the H-1B filing. The reason the exception was not extended is that the DOL assured USCIS that LCAs are being processed within the required seven-day processing time. The DOL, in fact, stated that LCAs are being processed within four to five days which is in fact true as well. It is our suggestion to plan accordingly.