Visa Lawyer Blog

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I previously reported on changes to the H2B visa program. On December 19, 2008, DHS published in the Federal Register a final rule “Changes to Requirements Affecting H-2B Nonimmigrants,” which provides that the Secretary of Homeland Security will publish a list of designated countries whose nationals can be the beneficiaries of an approved H-2B petition and are eligible for H-2B visas. This initial list will be composed of countries that are important for the operation of the H-2B program.

Pursuant to the final rule, this notice designates those countries the Secretary of Homeland Security, with the concurrence of the Secretary of State, has found to be eligible to participate in the H-2B program:

Argentina;

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The Labor Department has released its projections for when it will phase in the new versions of the LCA Form ETA 9035 and the PERM Form ETA 9089.

The Deptartment of Labor indicates that its implementation timing for the new LCA Form ETA-9035 is:

– It will begin receiving the new form for processing on April 15, 2009.

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The The Administrative Review Board found that the employer in that case failed to report termination of the H-1B employee as required and is liable for back wages. It noted that periods of unproductiveness were not due to unwillingness or unavailability of the employee to work, thus are compensable. Administrator, Wage & Hour Div. v. Help Foundation of Omaha, Inc. et al.

Key points in this case are: (1) the ARB found that it was appropriate to award wages beyond the termination of actual employment until the time when employer filed a notification and request with the USCIS to revoke the H1B petition; and (2) the back-wage award was granted against the H1B company, as well as against the company owner, individually.

This problem is avoidable simply by paying workers, as required in the Labor Condition Application (LCA); or, if there is not sufficient work, filing an H1B amendment or terminating the H1B, as needed, in compliance with the DOL regulations.

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There are presently 3-5 full time I-601 adjudicators, and 3 staff who are on duty. There is a backlog of 7000 – 9,000 I-601 applications. They are discussing opening an office in Los Angeles where they will only work on those backlog cases.

I-601 Procedure:

The applicant has to make his I-601 appointment through the Call Center. He can call to make his I-601 appointment as soon as he knows when his IV interview will take place (He just has to make his I-601 appointment for a date after his IV interview).

When an applicant arrives for his or her appointment, a clerk will take the I-601 packet. It is given to an adjudicator who spends approximately 10-15 minutes reviewing it. The adjudicator does not speak with the applicant.

The applicant is then told to pay a fee of (80) pesos at a kiosk inside the facility. This fee pays for the DHL delivery of the preliminary I-601 decision. The next day, the applicant can go to the DHL office (which is close to the Consulate) and pick up the preliminary decision.

He will either be informed that the I-601 was granted, and given instructions on how to obtain the actual immigrant visa, or he will receive a letter telling him that he has 30 days to submit additional information to support his I-601 application.

If his case is not granted right away, he can supplement the I-601 at any time up to the day he receives a decision. New information can be mailed, or sent via e-mail to the USCIS. This is good for people who prepared an I-601 without an attorney. If they hire an attorney later on, the attorney can file the supplemental documents even if it has been more than 30 days since the case was referred to the backlog. They do not need to file a new I-601.

Between 50% and 60% of I-601 waivers are approved upon filing. There is no information on what percentages of referred cases are ultimately approved. The cases in the “backlog” are taking about 13 to 15 months to decide!!
Expedited Processing:

They will consider expediting an I-601 for serious medical issues. This excludes mental/psychological conditions that have come about due to the separation. If you have a physical medical condition, or a pre-existing mental condition, you can request an expedited decision on your waiver via e-mail.

Criminal Issues:

If your client has any arrests or convictions, you must fully document and disclose them even if the charges were never filed or were dropped. They have been asking for police reports and juvenile records too! Even issues that would not make someone inadmissible can be considered for discretion. They want this information up-front from the applicant.

Denials:

If an I-601 is denied, the applicant may appeal the denial. While the appeal is pending, it is possible to request a new I-601 appointment. The applicant should first contact the call center. They are required to submit a new immigrant visa application, new fees, have a new medical, etc. Basically they have to repeat the whole IV process. However, there is no need to file a new I-130 visa petition. After the new IV interview, they can schedule a new I-601 appointment.

The applicant does not have to withdraw a pending I-601 appeal before submitting a new I-601.

Tips for legal cover letter:
• The consulate will follow BIA case law, so citing cases from a Court of Appeals is a waste of time.

• The less legalese the better; if you are going to include any, save it for the end of the letter.

• Start off your letter with a summary of the case. It is helpful to have a bullet point list of the documents you are submitting.

• Do not bother including country condition evidence since the adjudicators live in Mexico!
I-212 Applications:

The government only adjudicates I-212 applications (Application for Permission to Reapply for Admission into the United States after Deportation or Removal) in conjunction with an I-601 waiver application. So if your client does not need an I-601 waiver, CDJ will not accept their I-212 applications. These applications must be filed in the U.S.

They adjudicate the I-601 first. Because the I-601 standard is higher, if the I-601 is granted, approval of your I-212 is pretty much a given.

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Pro-immigrant advocates believe the Obama administration will have a window of opportunity between this September and March 2010 to shepherd a comprehensive immigration package that will provide a path to legalization for an estimated 12 million undocumented residents, strengthen border security and help the ailing economy.

Part of their optimism is attributed to the large Latino vote that broke for Barack Obama by a 2-to-1 ratio in key states like Arizona, Nevada and Colorado.

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Federal contractors and subcontractors will be required to begin using the U.S. Citizenship and Immigration Services’ EVerify system starting May 21, 2009, to verify their employees’ eligibility to legally work in the United States. The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council amended the Federal Acquisition Regulation (FAR) to reflect this change.

The new rule implements Executive Order 12989, as amended by President George W. Bush on June 6, 2008, directing federal agencies to require that federal contractors agree to electronically verify the employment eligibility of their employees.

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It is nice to be recognized by the media from time to time. The American Bar Journal is taking an interest in Immigration law, in the February issue they feature our office and the unique H2A practice we operate.

H-2As are used by seasonal agricultural workers, who must prove that (a) they have residences in other countries they have no intention of abandoning, and that (b) they will be in the United States no longer than eight months. The ABA Journal is read by half of the nation’s 1 million lawyers every month. It covers the trends, people and finances of the legal profession from Wall Street to Main Street to Pennsylvania Avenue. We are honored.

Read the article here

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Most employers know that they can submit H-1B petitions on behalf of foreign born professionals six months before October 1st , the first day of the federal fiscal year. First day of filing, April 1st is always very stressful. So following all of the instructions, day before April 1st, we law firm submit numerous of H-1B petitions for foreign born professionals, knowing that these would reach the government by, April 1st, the government’s official processing start date. If an H-1B petition is approved, foreign professionals can begin working on October 1.

What no one could have guessed was that in the past 2 years the government would receive over 140,000 such petitions, way too many for them all to be approved. In an event that sent shock waves through the immigration community, twice the available quota of H-1B visas was received by the Immigration Service on the very first day (or first 5 days under last year changes) it accepted petitions.

How does the government decide which employers get their workers on October 1st? Guess what, the answer is by a lottery. The first 65,000 foreign professionals to be randomly chosen get to work in the U.S. The rest get their petitions back in the mail and checks returned as well.

Of course, if these professionals are still interested in returning to the U.S., employers can petition for them again in April of 2010. If they don’t make the cut in 2009, they can try again in 2010, and so on year after year.

So how can one beat the lottery for H1B visas?

There are a few things that prospective H-1B employers and H-1B employees can do to improve the likelihood that the H-1B will be accepted by the USCIS. First, be sure that all of the appropriate documentation is contained in the H-1B petition. Second, be sure that the H-1B is submitted to the USCIS in a timely manner. Third, be sure that the H-1B is sent to the proper USCIS Service Center for adjudication.

Most importantly, H-1B petitioners should consider the possibility of utilizing filing multiple H-1B petitions. Be advised that the USCIS issued guidance concerning multiple H-1Bs. Filing a master’s H-1B and bachelor’s H-1B is not considered a multiple H-1B filing. Many organizations have layers and layers of subsidiaries and affiliates (different organizations with different Employer Identification Numbers) and there appears to be nothing yet in the regulations to preclude the use of those organizations as vehicles for additional H-1Bs. With each H-1B submitted, there is a statistically higher chance of one of the H-1Bs being able to “win” the lottery.

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