Visa Lawyer Blog

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Crazy times with the H1B visa these days. As we are nearing the end of 2009, with H1B visa numbers open from April, it seems that the end is near. Recent cap update indicates that 1300 visas were approved last week. So far 56,900 visas were filed, leaving us with 8,100 to fight for. But remember that 6,800 out of the 8100 is reserved for Chile-Singapore nationals coming to the United States to work temporarily. So we are essentially left with 1,300 visas. If this continues by December 8th or so we will reach the cap.

What to do? If you have a job offer, print this post and show it to your employer. Maybe that will get them moving. Remember LCA processing will take more than a week, and with recent Memo from USCIS once can file even without an approved LCA.

So Happy Thanksgiving to all of you, and looking forward to an exciting December!!!

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USCIS recently released an excellent FAQ about the visa wait times, and the reasons why it takes so long to immigrate under the preference system. I still think that with time, things will get even worse. In order to keep families from being apart for years, Immigration reform must address the visa backlog as well.

A visa must be available before a person can obtain an employment-based green card. Because more people want a green card than there are visas available, not everyone who wants a green card can get one immediately. Therefore, some people have to wait in line until a visa is available.

The U.S. Department of State (DOS) gives out 140,000 employment-based visas each year. About 85% of those visas go to people seeking a green card in the United States, while about 15% go to people seeking to immigrate from abroad. Currently, about 234,000 people have employment-based adjustment of status (green card) applications pending in the United States and are waiting to get a visa. How long you wait for a visa depends on the supply and demand for your particular preference category, your priority date, and the country your visa will be charged to, usually your country of birth.

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Immigration activists say they are hopeful that Gov. Deval L. Patrick will support proposals in an advisory report calling for more English classes for the state’s immigrants and in-state tuition for undocumented college students. Patrick released the report containing 131 recommendations, which he called a “values” statement, at a luncheon for immigrant advocates.

Since July 2008, resident immigrants and activists have crowded meetings around the state pressing for those programs and others, including allowing immigrants to get state drivers licenses.

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Not an easy time to a US employer these days. Between ICE raids and USCIS H1B site visits, the stress level is on the rise. Here is the latest update – U.S. Immigration and Customs Enforcement (ICE) announced the issuance of Notice of Inspections (NOIs) to 1,000 employers across the country associated with critical infrastructure. This follows an earlier initiative on July 1, 2009 when ICE issued 652 NOIs to businesses nationwide. The notices alert business owners that ICE will be inspecting their hiring records to determine whether or not they are complying with employment eligibility verification laws and regulations. Inspections are one of the most powerful tools the federal government has to enforce employment and immigration laws. This is part of a new initiative illustrating ICE’s increased focus on holding employers accountable for their hiring practices and efforts to ensure a legal workforce.

“ICE is focused on finding and penalizing employers who believe they can unfairly get ahead by cultivating illegal workplaces,” said ICE Assistant Secretary John Morton. “We are increasing criminal and civil enforcement of immigration-related employment laws and imposing smart, tough employer sanctions to even the playing field for employers who play by the rules.”
Audits involve a comprehensive review of Form I-9s, which employers are required to complete and retain for each individual hired in the United States. Employers are required to complete and retain a Form I-9 for each individual they hire for employment in the United States. This form requires employers to review and record the individual’s identity document(s) and determine whether the document(s) reasonably appear to be genuine and related to the individual.

Protecting employment opportunities for the nation’s lawful workforce and targeting employers who knowingly employ an illegal workforce are major ICE priorities, for which ICE employs all available civil and administrative tools, including audits. Audits may result in civil penalties and lay the groundwork for criminal prosecution of employers who knowingly violate the law.

At the same time USCIS continues with enforcement efforts. As part of the Department of Homeland Security’s stepped-up enforcement efforts that include increased audits of businesses to detect immigration and labor law violations, employers are reporting random, unannounced visits by the Fraud Detection and National Security Division (FDNS) of USCIS. The FDNS division has engaged outside contractors and private investigators to conduct approximately 25,000 site visits to petitioners. In addition to verifying the validity of information contained in H-1B petitions, FDNS investigators are apparently using information collected during worksite visits to assist USCIS with developing a fraud detection database. FDNS investigators collect information to develop profiles of the types of organizations that have records of good faith use of immigration programs and records of immigration compliance, and also to identify factors that could be a sign of fraud. Many of these random, unannounced site visits are expected to occur after approval of the H-1B petition or extension. In fact, employers in all industries have reported such worksite visits in recent weeks.

How to prepare? Employers must develop and implement strong compliance policies, audit their I-9s and H-1B public access files regularly, and plan in advance how to respond when immigration agents visit the company. HR personnel must be prepared and know what to say and what not to say when USCIS agents visit. Contact your experienced Immigration Attorney immediately.

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Lou Dobbs said on Thursday he is considering career options including possible runs for the White House or U.S. Senate. Dobbs has drawn fire from Latino leaders and civil rights groups for frequent on-air remarks about U.S. border control and immigration that critics saw as demonizing illegal immigrants. I personally feel that even considering him for public office will be an insult to the American Public. Let’s hope that his plans will remain a far away fiction.

Read the Reuters article here….

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As our economy is heading towards recovery, we must recognize the role of small businesses and Entrepreneurs in taking the lead and keeping us optimistic. Investments in small businesses are especially significant to the national interest of the United States. The Small Business Administration (SBA) estimates that 99 percent of the firms in the United States are small businesses, and small firms have generated 60 to 80 percent of the net new jobs annually over the past decade.

Perry Marshall, the SEO expert, released an excellent article today about the value of Entrepreneurs in our society. Very inspiring:

Have you ever….

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The most recent update from the USCIS is showing again a steady approval rate. The jump we saw in October was just due to a more current update of the approval, nit an increase in filing according to the USCIS. If this pace will continue we will see visas all through early 2010, but I may be wrong here…

Ao here is is the update from USCIS:

As of November 6, 2009, approximately 54,700 H-1B cap-subject petitions had been filed. USCIS has approved sufficient H1-B petitions for aliens with advanced degrees to meet the exemption of 20,000 from the fiscal year 2010 cap. Any H1-B petitions filed on behalf of an alien with an advanced degree will now count toward the general H1-B cap of 65,000. USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn.

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As we move closer to an Immigration reform, even government officials agree that such major change is very necessary. Here are some remarks by Secretary Napolitano on Immigration Reform at the Center for American Progress:

Over the past year, as this Administration has pursued more effective strategies within the current laws, the picture of how exactly those laws need to be changed has become clearer than ever before. In the past ten months, we have made tough choices, and implemented significant reforms within the current legal framework—but they are not enough to create the system that we want or that we need. If we are truly going to fix a broken system, Congress will have to act.

When it comes to immigration, I took an oath as Secretary of Homeland Security to secure the nation by enforcing the law and managing legal flows across the border. Let me be clear: to do this job as effectively as possible, DHS needs immigration reform.

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In response to the major delays with Labor Condition Applications (LCA’s), the USCIS announced a temporary policy and procedural change regarding H1B petition filings. Effective November 5, 2009, H1B cases can be filed prior to the certification of the required Labor Condition Application (LCA). This change was necessitated by delays in LCA processing through the Department of Labor (DOL).

Here is how the new process will work. USCIS will begin to accept H-1B petitions filed with uncertified LCAs for a 120-day period, commencing November 5, 2009 and through March 4, 2010. However, USCIS will only accept such H-1B petitions if they are filed at least 7 calendar days after the LCAs were filed with DOL and include evidence of these filings. The only acceptable evidence of filing is a copy of DOL’s email giving notice of receipt of the LCA.

Petitioners who seek to take advantage of this temporary flexibility in the normal filing procedures for H-1B petitions must wait until they receive a request for evidence (RFE) before they submit the DOL-certified LCA to USCIS in support of the H-1B petition. USCIS will give petitioners a period of 30 calendar days within which they must send in a DOL certified LCA in response to the RFE. We welcome this new procedure and hope that it will expedite current H1B processing.

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So you all heard by now about Lou Dobb’s dramatic departure from CNN. He said on air:

Over the past six months, it’s become increasingly clear that strong winds of change have begun buffeting this country and affecting all of us. And some leaders in media, politics and business have been urging me to go beyond the role here at CNN and to engage in constructive problem-solving, as well as to contribute positively to a better understanding of the great issues of our day. And to continue to do so in the most honest and direct language possible.

Whether he felt that the Immigration reform debate will become a major topic in the next year, and his attempts to stop it will fail, or the rise in the pro immigration movement. Whatever it was, we are happy to see him go. Let the voices for Immigration reform take charge and make 2010 the year such change will happen. Good bye Lou!