Visa Lawyer Blog

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The Department of State has just released the new visa bulletin for January 2010 on December 10, 2009.

Last month, the EB-2 category for both mainland Chinese and Indian nationals remained unchanged from the November visa bulletin. In addition, the EB-1 category stayed current for worldwide applicants. Cut-off dates in the EB-3 category moved forward nine days from April 22, 2001 to May 1, 2001 for Indian nationals and did not change for mainland Chinese nationals.

Based on the January 2010 visa bulletin, USCIS reports that the EB-1 category is still current in all countries. In the EB-2 category, cutoff dates for mainland Chinese nationals progressed one month from April 1, 2005 to May 1, 2005, but remained the same for Indian nationals. In the EB-3 category, the cutoff dates for mainland Chinese nationals progressed 2 months from June 1, 2002 to August 1, 2002 and progressed 53 days for Indian nationals from May 1, 2001 to June 22, 2001.

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USCIS has just released the latest H-1B visa information on December 9, 2009. As of December 8, 2009, USCIS reported that 61,500 cap-subject petitions had been filed.

On December 4, 2009, USCIS reported that 61,100 cap-subject petitions had been filed. From December 4 to December 8, 400 more applications have been filed. As mentioned in previous H-1B updates, spots for advanced degree holders have been satisfactorily met; all other advanced degree holders approved will be counted towards the general cap. Remember, those who receive a job offer from a governmental or non-profit organization will not count towards the general H-1B cap.

Because 6,800 out of the 65,000 regular spots are kept for citizens of Singapore and Chile, this only leaves 58,200 spots for other nationals. Bear in mind that USCIS takes into account the fact that some of these applications may be revoked, withdrawn by applicants, or denied. As such, USCIS will continue to accept both cap-subject petitions and advanced degree petitions until they specify otherwise.

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Effective December 21, 2009, the Nursing Relief for Disadvantaged Areas Reauthorization Act will sunset. The Nursing Relief for Disadvantage Areas Act (NRDAA) established the H-1C Program in 1999 to reduce the shortage of qualified nurses in health professional shortage areas. The Program was reauthorized until December 20, 2009 under the Nursing Relief for Disadvantage Areas Reauthorization Act of 2005 which became effective in December 20, 2006.

Under the H-1C Program, eligible hospitals filed attestations with the Department of Labor’s, Employment and Training Administration (ETA) to support nonimmigrant worker petitions filed with the Department of Homeland Security’s U.S. Citizenship and Immigration Services. Absent further legislative action, Congress has not elected to reinstate the H-1C Program and will no longer accept H-1C Attestations on Form ETA 9081 for foreign nurse positions effective December 21, 2009. The hospitals utilizing the H-1C Program may continue to file applications with the Department of Labor through its other programs including the H-1B Program and the PERM Program, as appropriate.

Please note that nurses still have other visa options, like the H1B visa as well as Permanent Residency.

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Update from our local AILA office. This morning Christopher D. Matson was sworn as the new port director for the San Ysidro and Otay Mesa Ports of Entry. Mr. Matson most recently served for the past two years as the Port Director at Miami International Airport Mr. Matson succeeds Interim Port Director David Murphy, who filled the position for the past six weeks while a replacement was found for former Port Director Oscar Preciado.

Mr. Preciado recently assumed the position of liaison to the U.S. Government Services Administration during the port’s upcoming $577 million reconstruction project.ÿ For additional information, please see CBP’s press release: Here

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Great story from the ABA Journal about this not so covered visa option for victims of crime.

This is the story of Sud.

Sud was trapped—literally and figuratively. Hers was an arranged marriage. She had immigrated to the United States after her marriage in 2005 on an H4 visa. The visa made her ineligible to work, unable to get a Social Securi­ty number and completely dependent on her abusive husband.

Sud thought she had little choice but to endure the domestic violence if she wanted to stay in the United States. But she learned that she was eligible for a little-known visa available to otherwise undocumented immigrant crime victims called a U visa. The visa blocks the deportation of people like Sud if they cooperate with law enforcement.

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With predictions that the H1B cap will be reached any day now, employers and employees are rushing to beat the cap. United States Citizenship and Immigration Services (USCIS) announced that, as of December 4th, it had received approximately 61,100 H-1B petitions counting toward the congressionally-mandated 65,000 limit. Additionally, USCIS has approved sufficient H-1B petitions for foreign nationals with advanced degrees to meet the exemption of 20,000 from the fiscal year 2010 cap. Any H-1B petition filed on behalf of a foreign national with an advanced degree will now count toward the general H-1B cap of 65,000.

So why are they still accepting cases? Well not all filed H1B petitions will be approved so the final count will not be known until USCIS will clear all denials. We will keep you posted.

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Excellent article from Businessweek, instead of encouraging the first brain drain in U.S. history, the country should create a program to welcome funded startup entrepreneurs.

Vivek Wadhwa argues that

It’s time to bring the immigration question squarely into the debate over jobs. A change to immigration policy could help create jobs and rev up economic growth. It’s a change that wouldn’t be hard to bring about. I’m talking about the establishment of a Startup Founders Visa program.

The program would make it easier for those with great ideas and the desire to start a company to live and work in the U.S. The idea is simple, yet powerful. By letting in company founders, the U.S. would bring in risk-takers who want to create jobs and potentially build the next Google (GOOG), Cisco Systems (CSCO), or Microsoft (MSFT). This is an excellent idea, as such founders will create jobs for Americans. Currently, only the E2 non immigrant visa and EB5 Immigrant visa allow self starters to create compnaies by investing funds. While the E2 and EB5 are good options, they are not addressing the need for a specific visa for brainy individuals that have great ideas, but are lacking funds. We still need them to fuel the next big discovery that will lead to that start up creation.

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So we thought the new ntroduction of ICERT was bad, listen to this upcoming change. In accordance with its PERM labor certification regulations, the Department of Labor (DOL) has provided notice that the Office of Foreign Labor Certification (OFLC) National Prevailing Wage and Helpdesk Center (NPWHC) will receive and process prevailing wage determination (PWD) requests for use in the H-1B (specialty occupations), H-1B1 (Chile/Singapore nationals), H-1C (registered nurses), H-2B (temporary and seasonal workers), E-3 (Australian nationals), and permanent labor certification programs starting January 1, 2010.

Under the new centralized process, PWD requests will be filed using Form ETA-9141 and submitted by mail or courier to the NPWHC in Washington, D.C. State Workforce Agencies will continue to process any PWD requests (as well as subsequent prevailing wage challenges) received in their offices through December 31, 2009.

Now for those of you familiar with the H2B process, form 9141 is already being used to obtain the PWD. My experience with H2B processing since the new change is nt positive. Sometimes we have to wait for 30 days to get the PWD. Imagine same story with future H1B cases, nightmare!!! The federal prevailing wage process is likely to result in delayed issuance of wage determinations. Most State Workforce Agencies (SWAs) currently accept and issue PWD requests electronically within 7 business days.

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This update is provided by AILA and we are happy to share. At the New York CLE on December 1, 2009, USCIS representatives discussed H-1B usage. Without revealing the exact number of H-1B petitions have been received, nor providing an estimate of the number of H-1B visas remaining, USCIS indicated that there has been an “uptick” in receipts in the last two weeks, including approximately 2000 received in the days before Thanksgiving.

USCIS also confirmed that demand for visas under the Chile and Singapore provisions has been very small this year. USCIS has, for several years, estimated the demand for Chile/Singapore visas, and has set aside that estimated number. The remaining number of visas that are set aside for Chile and Singapore (from maximums of 1,400 for nationals of Chile and 5,400 for nationals of Singapore) are returned to the “general” H-1B pool, and USCIS accepts petitions up to a number that includes an estimate of the number of Chile and Singapore visas that will go unused.

Thus, though the Chile/Singapore set aside reduces initially the H-1B cap from 65,000 to 58,200, in reality, some number of thousand unused Chile/Singapore visas are added back in, bringing the number of H-1B visas generally available well above 58,200. That is why, according to the latest H-1B cap count, the number, 58,900, exceeds 58,200. Nevertheless, because of the apparent increase in demand, applicants should not delay preparing and filing H-1B petitions and should be aware that the cap could be reached at any moment if the increase in demand continues. We will keep you posted.

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Vice President Joe Biden said that Obama administration’s new surge-and-exit troop strategy in Afghanistan is aimed more at wringing reforms from President Hamid Karzai than mollifying a war-weary American public. Appearing on network news shows a day after President Barack Obama announced his plan to send in 30,000 more U.S. forces, Biden said the principal aim of the new policy is to protect the United States from further terrorist attack while also keeping the Taliban from overrunning the country.

Biden also added when asked about doubts he was said to have had about escalating the war. Biden said “I’ve never publicly said what my position is because I reserve that for the president,” he replied. “But I was skeptical of taking our eye off the ball. The ball is al-Qaida. That’s the reason we’re there. They are in Pakistan, the Taliban leadership is in Pakistan. And I wanted to make sure the focus stayed on those two elements of our concern and didn’t sort of morph into a nation-building exercise that would tie us down for 10 years and in fact not be of any assistance in meeting what is the real threat to the U.S. – that is al-Qaida and the most extreme forces that are in Pakistan and wanting to topple Pakistan.”

Democrats complained about Obama’s escalation of the 8-year-old war, however. And Republicans are unhappy with his promise to withdraw troops in 18 months. But Congress appears nevertheless willing to approve the buildup’s $30 billion price tag. Many Democrats said they weren’t convinced that sending more troops would hasten an end to the war. They also question whether the money used for troop deployments will drain resources from other domestic priorities, like health care and job creation.

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