Visa Lawyer Blog

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As attorneys that work with Hospitals and medical professionals, we always get questions from clients about the H1B visa. Can Nurses really get this visa, and if so how?

The H1B visa program, which has a current allocation of 65,000 visas per year (This year visas are still open and up for grabs), allows foreign professionals to work in the U.S. for a limited duration. In this visa category, a U.S. employer offers a job to a foreign professional that requires a bachelor’s or higher degree, or its equivalent as the minimum entry requirement.

Nevertheless, there is a problem for nurses getting H1B visas. The USCIS applies a different rule for nurses. The USCIS (guided by a determination by the U.S. Department of Labor, as published in the Occupational Outlook Handbook) says that there is no industry-wide standard that a nurse needs a baccalaureate degree to perform the duties of a professional registered nurse. In many states, a nurse can obtain a professional registered nursing license after completion of only a two-year program and successful passage of a state licensing examination. Thus, according to the USCIS, foreign nurses are not eligible for H1B in general RN positions.

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San Diego Immigration lawyer informed that the Department of Homeland Security, USCIS has submitted the information collection request to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995. The information collection was previously published in the Federal Register on June 9, 2009, at 74 FR 27339, allowing for a 60-day public comment period. USCIS did not receive any comments for this information collection. The purpose of this notice is to allow an additional 30 days for public comments. Comments are encouraged and will be accepted until October 2, 2009. This process is conducted in accordance with 5 CFR 1320.10.

Written comments and suggestions especially regarding the estimated public burden and associated response time, should be directed to the Department of Homeland Security (DHS), and to the Office of Management and Budget (OMB) USCIS Desk Officer. Comments may be submitted to: USCIS, Chief, Regulatory Products Division, Clearance Office, 111 Massachusetts Avenue, Washington, DC 20529-2210. Comments may also be submitted to DHS via facsimile to 202-272-8352 or via e-mail at rfs.regs@dhs.gov, and OMB USCIS Desk Officer via facsimile at 202-395-5806 or via oira_ submission@omb.eop.gov.

We suggest when submitting comments by e-mail please make sure to add OMB Control Number 1615-0035 in the subject box. Written comments and suggestions from the public and affected agencies should address one or more of the following four points:

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The current medical exam Form I-693 has expired on August 31, 2009. The USCIS will continue to accept this form despite its expiration date until a revised form is published. The revised form is currently in progress and not yet available. Please submit the completed Form I-693, sealed in an envelope from the physician, with your Form I-485 package, to the Service Center or District Office where you are filing your adjustment of status application.

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U.S. District Court for the District of Maryland, Southern Division on August 25, 2009, denied the U.S. Chamber of Commerce’s challenge to an amendment to the Federal Appropriation Regulation (FAR) that makes E-Verify mandatory for federal contractors. As a result, as of September 8, 2009, the FAR requires participating vendors and flow-down subcontractors to initiate E-Verify for all active and new employees. Hence, U.S. Citizenship and Immigration Services has reminded Federal contractors and subcontractors to use the E-Verify system to verify their employees’ eligibility to work in the United States effective Sept. 8, 2009. Janet Napolitano, Department of Homeland Security Secretary recently stressed on the need for employment eligibility verification by announcing the Administration’s support for the regulation that will award federal contracts only to employers who use E-Verify to check employee work authorization. Companies awarded a contract with the E-Verify clause after Sept. 8 will be required to enroll in E-Verify within 30 days of the contract award date.

E-Verify will be used to confirm that all new hires, whether employed on a federal contract or not, and existing employees directly working on these contracts are legally authorized to work in the United States. The Federal Acquisition Rule; Case 2007-013; Employment Eligibility Verification extends use of the E-Verify system to covered federal contractors and subcontractors, including those who receive American Recovery and Reinvestment Act funds.

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Previously we reported about the new procedures affecting surviving spouses of US petitioners that passed away. Now the Vermont Service Center issued some guidance on the procedure for making a request for humanitarian reinstatement of I-130 petitions that have been revoked based on the death of the petitioner.

The process for requesting humanitarian reinstatement consideration begins with the
notification to either the Service Center or the National Visa Center of the death of the
petitioner. If the death certificate is accompanied by a letter indicating that the beneficiary wishes to be considered for humanitarian reinstatement, the Service Center will respond with a letter confirming that the petition has been automatically revoked (8 CFR 205.1(a)(3)(C)). The letter then provides a list of requirements that must be met to have the petition considered for humanitarian reinstatement under 8 CFR 205.1(a)(3)(C)(2).

In order for the reinstatement to be considered, the following documents must be provided:

The request for reinstatement must be in writing by the beneficiary of the original petition or
substitute sponsor if the beneficiary is a minor child.

– Provide as much available documentation to identify and document the humanitarian reason for reinstatement. Such documentation may include, but is not limited to:
a. Evidence of a long-time residence and any equity in the U.S.

b. Evidence of relationship to other family members with evidence of their immigration status in the U.S.

c. Evidence of health-related factors that would establish the need for the reinstatement of the petition.

d. Evidence of current political or religious conditions in the beneficiary’s country of origin that would indicate that the beneficiary would suffer if not permitted to immigrate to the U.S.

Please note: Economic depression, as is found in many regions of the world, is not considered to be an example of a harsh result contrary to the goal of family reunification unless it is of such an extreme nature as to possibly cause physical harm to the beneficiary.

– The new sponsor is required to submit an original Form I-864, Affidavit of Support, to show that he or she has adequate means of financial support and that the beneficiary of the petition is not likely to become a public charge.

a. The substitute sponsor must complete the Form I-864, Affidavit of Support.

b. The Form I-864 must contain an original signature of the sponsor.

c. The new sponsor must be an immediate family member or a legal guardian of the
beneficiary, such as a spouse, parent, mother-in-law, father-in-law, sibling, child, son, daughter, son-in-law, daughter-in-law, sister-in-law, brother-in-law, grandparent, or grandchild child at least 18 years of age.

d. Submit evidence that will establish the new sponsor’s immigration status or U.S. citizenship.

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The days of considering the H1B visa process a purely administrative process are over. In the not so distant past, H1B cases were just about the forms and the evidence submitted in the case. If the USCIS liked the arguments and supporting documents, an approval was issued.

Things are not so simple today. Recently, the USCIS has begun making visits to the U.S. work sites of companies that sponsor H-1B and L-1 visa holders, including some large U.S.-based financial services companies. USCIS agents come with a checklist of questions designed to confirm the identity of the employer who petitioned for the visa and the visa beneficiary and to verify that both are in compliance with the terms and conditions of the visa. The objective of the unannounced on-site visits is clear: to detect fraud and abuses of the visa program.

Here is the problem, USCIS investigation tactics often exceed what is necessary and reasonable to obtain H-1B application verification information. Unlike the Department of Labor, which has the statutory authority to investigate an employer’s compliance with visa obligations but rarely conducts audits unless there are complaints, the USCIS has no statutory or regulatory authority to enter the workplace of H-1B and L-1 visa holders. So if you get audited, first thing to do is contact your immigration lawyer. A qualified attorney could assist you pass the audit and prevent any illegality on the side of the Government.

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Finally some good news coming from USCIS. The Immigration Service today issued guidance on requesting deferred action for surviving spouses of U.S. citizens who died before the second anniversary of their marriage. Surviving spouses qualify for this temporary program if they were married to, but not legally separated from, their U.S. citizen spouse at the time of that spouse’s death; did not remarry; and are currently residing in the United States. Until this Memo there has been a lot of confusion in this area of law.

Until there is a legislative solution to remedy the situation commonly referred to as the “widow penalty,” USCIS is providing interim administrative relief in the form of deferred action to surviving spouses whose U.S. citizen spouses died before the second anniversary of their marriage. The “widow penalty” prevents widow(er)s of deceased U.S. citizens, who were married less than two years at the time of the U.S. citizen’s death, from becoming permanent residents based on the marriage. Under this action USCIS also will consider favorably requests for humanitarian reinstatement where previously approved petitions for widow(er)s had been revoked because of the law.

Surviving spouses qualify for deferred action regardless of whether the U.S. citizen spouse filed a Form I- 130 petition for them. Surviving spouses may ask to have their qualifying children included in their deferred action request. To be considered a “qualifying child” of a surviving spouse, the child must be younger than age 21 or otherwise qualify as a child when the deferred action request is submitted; currently reside in the United States; and be unmarried. Surviving spouses who apply for deferred action will need to file Form I-360 with supporting documentation and the $375 filing fee with the Vermont Service Center. Work authorization will be available to surviving spouses and qualifying children who are granted deferred action and who can establish economic necessity.

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Attorney General Andrew M. Cuomo announced on August 20 that his Office has shut down three New York companies providing unauthorized and fraudulent legal services to immigrant communities, in the latest stages of his ongoing investigation into immigration fraud. Under the terms of the agreements secured by Cuomo’s Office, Immigration Solutions and Systems, Inc. of New York, Alisandra Multiservices, Inc. of Brentwood, Long Island, and All Immigration Services of Great Neck, Long Island are permanently barred from operating a business that provides immigration-related services and must collectively pay approximately $118,000 in penalties.

Cuomo also announced separate lawsuits filed today in New York State Supreme Court against three additional companies providing legal services to immigrants which they were neither authorized nor accredited to provide. According to the lawsuits filed today in New York State Supreme Court, Immigration Community Service Corporation of Manhattan, and Professional Solutions Consultants (doing business as Reliable Clerical Services and Reliable Immigration Services), and Centro Santa Ana, both located in Queens, offered legal counsel to immigrants without being licensed attorneys or having the proper accreditation. In thousands of cases across New York City and Long Island, these companies unlawfully filed immigration petitions with United States Citizenship and Immigration Services (USCIS) on behalf of immigrants and their families, jeopardizing efforts to obtain legal status.

“The consequences of bad legal advice can be absolutely devastating,” said Attorney General Cuomo. “Fraudulent legal services can haunt individuals and their families for a lifetime. Companies and individuals that represent someone in a legal proceeding without having the authority to do so must be stopped, and my office will hold them accountable.”

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U.S. Immigration and Customs Enforcement (ICE), under the Department of Homeland Security is conducting massive I-9 Audits to trap the employers. As part of an I-9 audit, ICE agents review I-9 forms, company payroll records, W-2 reports, and other documents. They seek to determine whether the employer has properly checked the new employee’s identity and work authorization, and re-verified authorization, as needed for temporary authorizations. They also ascertain whether any counterfeit documents were used as proof of identity and/or employment authorization. John T. Morton, the new Assistant Secretary of U.S. Immigration and Customs Enforcement (ICE), under the Department of Homeland Security, recently stated that ICE intends to increase its attention to auditing I-9, employment eligibility verification forms. We all are aware that I-9 forms must be completed and retained by U.S. employers under specific requirements.

I-9 audits have dramatically increased in recent months. The audits stand at 652 Notices of Inspection (NOIs) for July 2009, alone. Many more employers will be notified by ICE in the coming months that their I-9s and company records will be audited. Fines for I-9 violations range from $110 for one single, minor or technical violation, up to $3,200 per violation for serious first offenses. A third offense can lead to a fine of up to $16,000, per offense. Employers should take compliance with Form I-9 requirements seriously, as there are multiple possible violations per form.

An I-9 audit may lead ICE agents to evidence that criminal law violations have occurred. ICE may accuse employers of knowingly hiring, retaining, or even harboring workers who are not authorized for employment in the U.S. The first immigration enforcement action by the Obama Administration came to a partial conclusion on August 18, 2009 in Washington state. ICE issued a press release on August 18, 2009 announcing that two corporate directors of a family-owned business in Bellingham, Washington had pled guilty to felony immigration violations. These two directors, siblings, each pled guilty to one federal felony count of aiding and abetting The said company itself has been charged with encouraging and inducing illegal aliens to reside in the U.S. and may face stiff fines for its actions.

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Employers and potential employees (and some immigration lawyers) are very confused when it comes to H1B visa numbers this year. The major reduction in the number of filings for H1B petitions has risen questions from employers regarding whether there is a set closing date for filing H1B cap petitions for fiscal year 2010, starting October 1, 2009. The answer to this is NO. Cap-subject H1B petitions can be filed for the full FY 2010 season, or until the numbers are all used up. As of 8-27-2009, cap numbers remain available and overall usage remains insignificant. Approximately 45,000 H1B visa numbers had been used toward the regular FY2010 H1B cap.

Also playing into the availability of H1B numbers is the increased scrutiny of H1B petitions, particularly those filed by software consulting companies. This has resulted in higher rates of denials and a general crippling effect on those companies that might otherwise file additional H1B petitions. If the U.S. Citizenship and Immigration Services (USCIS) does not receive enough approvable H1B petitions to exhaust the regular H1B cap for 2010, it will continue to accept H1B petitions against this cap until the end of 2010 which will be September 30, 2010.

If the numbers of visas out until October 1st, then employers will be able to request immediate start dates for employees. This may result in some additional filings, as it is more in keeping with the actual needs of employers. I predict an increase in H1B filings as of October 1, hoping the economy will rebound at that time as well.