Visa Lawyer Blog

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The H1B visa program is unlikely to reach its cap of 65,000 before the start of the 2010 fiscal with nearly 20,000 vacancies amid the economic downturn. This has happened for the first time in several years that the demand for the visas, which is mostly availed by Indian professionals, has slowed down.

Also due to a large number of rejections of H-1B petitions, this figure of 20,000 vacancies has remained almost the same for the past two months. Past figures indicate that Indian IT professionals have been a major beneficiary of H1B visas. An additional 20,000 H1B can also be issued to those foreign professionals, who have masters or higher degree from the U.S. Though the U.S. Citizenship and Immigration Services (USCIS) received 20,000 petitions, it continues to accept applications in this category.

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The Center for Trade Policy Studies, published a recent report about the economics of a possible Immigration reform.

By the latest estimates, 8.3 million workers in the United States are illegal immigrants. Proposed policy responses range from more restrictive border and workplace enforcement to legalization of workers who are already here and the admission of new workers through a temporary visa program. Policy choices made by Congress and the president could have a major economic impact on the welfare of U.S. households. This study uses the U.S. Applied General Equilibrium model that has been developed for the U.S. International Trade Commission and other U.S. government agencies to estimate the welfare impact of seven different scenarios, which include increased enforcement at the border and in the workplace, and several different legalization options, including a visa program that allows more low-skilled workers to enter the U.S. workforce legally.

Read the report here…

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As the prospects for Immigration reform are becoming more of a reality, so does the debate about illegal Immigration is more real than ever. A story just came in from CNN an Arizona man caught leaving water bottles in the desert for illegal immigrants has been sentenced to 300 hours of community service and a year of probation.

Walt Staton, a member of the group No More Deaths, left full water bottles in December in Buenos Aires National Wildlife Refuge for the illegal immigrants who routinely pass through the 18,000-acre refuge. Read more here

As the Immigration debate heats up this summer, expect more stories like this one.

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The U.S. Department of State (DOS) is transitioning to a fully web-based nonimmigrant visa form. This form, DS-160, eventually will replace the forms currently used to apply for nonimmigrant visas at the U.S. consulates. The new form is currently being used at twelve consular posts around the world. The new form is being implemented gradually. It is used at the following consulates: Australia (Melbourne, Perth, Sydney); Bermuda (Hamilton); Canada (Montreal, Vancouver); Hong Kong; Ireland (Dublin); Libya (Tripoli); Mexico (Ciudad Juarez, Hermosillo, Matamoros, Monterrey, Nogales, and Nuevo Laredo), and Montenegro (Podgorica). The new form will be available worldwide by the end of the 2009 calendar year. The expansion is currently limited, in part, due to server capacity.

The applicant will know on how to save the application and how to file as a family group. The DOS intends to add access to information in advance of the interview. This includes checking existing data bases, including the Petition Information Management Service, Student and Exchange Visitor Information System, and fraud-detection systems.

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New proposed Immigration Legislation which is currently pending in the United States Senate may cause India-based IT companies to step up their operations in Mexico. The bill, by Senators Dick Durbin and Chuck Grassley, would impose a new limit on the proportion of foreign workers who would be allowed to work in the United States under the H1B and L-1 visa programs. The proposed legislation said says for 50-50 rule, which means no more than half of a firm’s U.S.-based employees could be H1B or L-1 beneficiaries. This measure may create uncertainty in Indian IT firms, because their U.S. operations typically have a very high percentage of foreign employees, often far exceeding the proposed 50 percent limits.

Indian IT companies may need to expand their presence in Mexico, because Mexican employees could be sent to the United States under TN visas, available only to Mexican and Canadian nationals, pursuant to the North American Free Trade Agreement (NAFTA). Mexican employees whose education, work experience, and job category qualify them for TN visas, would be able to work in the United States without counting against the Indian company’s 50 percent cap on employees with H1B and L-1 visas.

The TN category is special category created under NAFTA (North American Free Trade Agreement) for qualifying professionals who are nationals of Canada or Mexico. Aliens qualified to enter the U.S. under this category may work for a company located in the U.S. for a temporary period. Moreover, they may also work for a Canadian or Mexican company in the U.S. when those companies are engaged in projects with U.S. based companies. The initial time limit for a TN professional to work in the U.S. is one year. However, this period may be renewed indefinitely, at year to year increments.

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For the first time in several years the H1B visa system, is unlikely to reach its cap of 65,000 before the start of the 2010 fiscal with nearly 18,000 slots lying vacant thanks to the US economy. As of August 8, 2009, approximately 44,900 H-1B cap-subject petitions had been received by USCIS and counted towards the H-1B cap. 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.

This is in contrast to the previous years when the USCIS had to resort to computerised draw of lots as it received petitions outnumbering several times more than the Congressional mandated cap of 65,000 within the first few days after it started receiving H-1B applications. Here is some quick H1B visa history for you:

In 2007 and 2008 the caps were reached in the first few days itself – April 2 and April 1-5 respectively.

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Recently AILA shared some information about a “new” benefit fraud assessment program in which USCIS is beginning to use the millions of dollars it has received over the last decade from the “fraud fee” in the H-1B program. This new program involves the hiring of a private contractor to send “investigators” out to conduct 25,0000 site visits to H-1B employers to verify if the H-1B employee is working at the employer and performing the work as outlined in the H-1B petition.

The representative will indicate that he/she is a contractor hired to conduct these investigations (this is similar to the investigators that conduct the background investigations for government clearances) wearing badge with a picture. Questions can be asked in the following way:
1. Basic questions about the company, what you do, how many employees you had, work hours, office locations, etc.

2. How many employees one has on H1Bs, how many of them been sponsored for permanent residency and how many of them are legal permanent residents. Approximate numbers will be fine.

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U. S. Citizenship and Immigration Services (USCIS) has issued instructions on making inquiries with the agency’s four Service Centers. Customers, community-based organizations and liaison groups should follow this guidance when inquiring about case related issues. This new process standardizes customer service and streamlines processing of customer inquiries at USCIS Service Centers. The step-by-step instructions are as follows:
Step 1: National Customer Service Center (NCSC) can be contacted at 1-800-375-5283. The NCSC can assist customers, community-based organizations and liaison groups with case related inquiries. Please get your Receipt No. the NCSC please have available your receipt number, alien registration number, type of application filed and date filed. We recommend you note down:
-The name and/or id number of the NCSC representative
– The date and time of the call
– Any service request referral number, if a service referral on a pending case is taken.

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There is not a dull moment this summer for us immigration lawyers, all thanks to good old USCIS. On 8/6/09 USCIS announced that it has reopened the fiscal year 2009 H-2B petition filing period and will immediately accept petitions. This is after closing the cap in January this year.

How could this happen? The Department of State received far fewer than expected requests for H-2B visas and as a result, has issued only 40,640 H-2B visas for fiscal year 2009 to date. This means that there are approximately 25,000 visas that may go unused, as they have not been granted. Because of the low visa issuance rate, USCIS is reopening the filing period to allow employers to file additional petitions for qualified H-2B temporary foreign nonagricultural workers.

But the catch is that filing and processing must be done by September 30, 2009. So those eligible must use the premium processing to do so. Also, employers must submit the Form I-129 Petition for a Nonimmigrant Worker to USCIS with all required documents, including an approved Alien Employment Certification from the U.S. Department of Labor that is valid for the entire employment period stated on the petition. The petitioner must also indicate an employment start date before Oct. 1, 2009. Otherwise the case will be considered for fiscal year 2010.

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President Obama promised during the election campaign that Immigration reform will be high on his list once elected president. Speaking to Hispanic reporters at the White House, Obama said last week he hopes a bill for comprehensive immigration reform will be drafted by the end of this year.

Obama tapped Homeland Security Secretary Janet Napolitano on June 25 to work with Congress to speed up immigration reform as senators warned another failed effort could doom chances for a generation. Obama said he asked Napolitano to meet regularly with lawmakers to systematically work through a number of controversial issues, such as how to handle the 12 million illegal immigrants already in the United States and how to prevent future illegal immigration.

The president has been criticized for not following through on a campaign pledge to tackle the issue this year. He has urged the Democratic-controlled Congress to start pushing now to pass legislation.

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