Visa Lawyer Blog

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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.

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We are very busy these days trying to beat the H1B rush. While we fell that visas will not run out on April 1, 2010, clients are anxious to get their cases out the door. We promise to deliver.

Here are some tips that may help our last minute filers. The issue today is a degree that has not yet been awarded. In the past, the USCIS has approved H-1B petitions for aliens seeking one of the 20,000 H-1B visas available to aliens who have earned master’s or higher degrees from U.S. institutions of higher education, where the alien has completed all requirements for the degree, and hence, has “earned” the degree, but the degree has not been conferred.

There is no reason to believe that USCIS will not continue that practice, so long as there is evidence that the alien has completed all requirements from an official at the educational institution qualified to provide that information. In the past, satisfactory evidence often was in the form of a letter from an official such as a Dean, Registrar, or department head, stating that all requirements have been satisfied and that the alien is simply waiting for the ceremonial conferral of the degree.

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Many clients call our office for immigration assistance and begin by telling us that they wants to do business in the United States. The most popular visa to reach this goal is the E2 Visa. An E-2 visa is a nonimmigrant visa available to an individual investor from a country that has a joint investment, or commerce and navigation treaty with the United States.

One of the first steps is to determine the best type of legal entity for immigrant investors’s conduct of business in the United States.

This post addresses the basic elements of the following five business entities: sole proprietorship, corporation (C corporation and S corporation), partnership (general and limited), limited liability partnership, and limited liability company. Each entity has its own advantages, disadvantages, and tax implications, and it will be important for you to understand the purposes and objectives of the proposed business prior to determining which type is most appropriate. Choosing the right legal entity can help to minimize the owner’s liability for obligations of the business.

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Immigration reform legislation is “dead” in the Senate this year, Sen. Lindsey Graham (R-S.C.) said. Graham, who’s sought to work with some Democrats on the controversial issues, said that healthcare efforts had “poisoned the well” for bipartisan cooperation going forward.

Graham had partnered with Sen. Chuck Schumer (D-N.Y.) to work on immigration legislation, and the pair had met with President Barack Obama earlier this month on the issue.

But Graham said that winning the support for any legislation was all but impossible in the wake of a divisive healthcare debate that’s wrapped up last week in Congress.

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Consular processing has undergone rapid and systemic changes during the past five years, and the rate and scope of change does not appear to be slowing. Enhanced security checks and inter-agency data sharing—among a massive wave of other changes—makes consular processing a daunting task that ensnare many unsuspecting visa applicants in problems and delays.

While many of the security measures were expected after 9/11, the effects were devastating to many U.S. visa applicants, who routinely encountered completely unpredictable surprises that caused unexpected and lengthy delays in visa issuance. These initial difficulties, delays and the resulting uncertainty for visa applicants and employers adversely impacted critical U.S. economic sectors including trade, tourism, scientific research, academia, and entertainment and business generally.

Newsweek recently published a story about an applicant’s experience with coming to America and the frustrations with this process.

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The U.S. Citizenship and Immigration Services (USCIS) issued a memo dated January 8, 2010 that has great importance for the IT consulting industry and H1B filers in general. This memo specifies how USCIS personnel should determine the existence of the required employer-employee relationship when adjudicating H1B petitions. The memo, issued by Associate Director of Service Center Operations, Donald Neufeld, provides guidance regarding the type of evidence that sufficiently confirms the existence of an employer-employee relationship between an H1B-petitioning employer and the beneficiary. We have posted an article on this issue in the past, click here for more details.

In this post we will focus on H-1B Entrepreneurs/Job Creators. The Neufeld Memo contains additional language that completely undermines a business owner’s ability to be an H-1B beneficiary. This thrust against owner-beneficiaries can foreclose opportunities, not only for the potential new businesses that could be created by H-1B entrepreneurs, but also for the numbers of U.S. workers who would otherwise be employed by those businesses.

No matter how many others are employed by an entrepreneur’s enterprise, the owner of such a business will not be eligible for an H-1B visa even if (1) a viable corporation is established; (2) there is no third-party placement; (3) the corporate petitioner pays the beneficiary; (4) the corporate petitioner claims the beneficiary for tax purposes, and (5) the beneficiary produces goods or services tied directly to the petitioner’s business.

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President Obama said “We pushed back on the undue influence of special interests.” “We didn’t give in to mistrust or to cynicism or to fear. Instead, we proved that we are still a people capable of doing big things.”

The President was talking about the historic health-care overhaul that passed the House 219-212 last night and is now headed to his desk for signature. Let’s hope his statement foreshadows what he will say about immigration reform in the months to come. The health-care battle demonstrated the fight for immigration reform will be tough. But we knew that. Now, at least, we know that an immigration overhaul is possible.

It was symbolic that Sunday’s immigration reform rally in Washington, which according to reports was tens of thousands strong, was overshadowed by the drama that played out in the Congress over the health-care bill. Since the Administration took office in 2009, immigration reform has played second fiddle to the overhaul of the health-care system. But now that health-care reform has become a reality, it is time for the Administration and Congress to get to the hard work of overhauling our badly broken immigration system.

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The House voted Sunday night on the Senate bill for health care reform, passing it 219 to 212. President Obama won a historic victory in the struggle for health care reform Sunday as the House of Representatives passed a sweeping bill overhauling the American medical system. What does this mean for Immigration? Big hope for the future, but a lot of work remains to be done.

Tens of thousands of people turned out on Washington’s National Mall on Sunday to support the Obama administration in its next big battle, a renewed effort to overhaul U.S. immigration laws.

Speaking by video to the crowd, President Obama said he would do “everything in my power” to get a bipartisan deal within the year.

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