Visa Lawyer Blog

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A December 11, 2008 USCIS Update announces that the agency has finalized changes to H-2A regulations. This final rule will facilitate the H-2A process for employers by removing certain limitations.

U.S. employers may file an H-2A petition with USCIS if they have a shortage of available U.S. workers to fill temporary or seasonal agricultural jobs. Once the petition is approved, the employers can hire foreign workers to fill those jobs for a limited period of time. There is no cap limitation on H2A visas unlike the sister program H2B.

Key areas of reform addressed in the final rule include:

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According to the SF Chronicle with unemployment rising, foreign workers are less welcome, say immigration restrictionists, who have vowed to oppose offering legal status to the nation’s estimated 12 million undocumented immigrants.

Until a comprehensive bill is introduced in Congress, Obama’s pick to head the Department of Homeland Security, Arizona Gov. Janet Napolitano, will play a key role in refocusing the way the government handles immigration.

Problems in the legal immigration system have festered for years. The agency granting permanent legal residence (the green card is the token) and citizenship has long been plagued by epic backlogs and dysfunctional computer networks. Major policy debates over appropriate levels of immigration and whether to prioritize family ties or economic contributions – and high- or low-skilled workers – remain unresolved after “comprehensive” immigration bills died in Congress in 2006 and 2007.

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Defense Secretary Robert Gates has authorized the Army, Navy, Air Force and Marine Corps to recruit certain legal residents whose critical medical and language skills are “vital to the national interest,” officials said, using for the first time a law passed three years ago.

Gates’ action enables the services to start a one-year pilot program to find up to 1,000 foreigners who have lived in the states legally for at least two years. The new recruits into the armed forces would get accelerated treatment in the process toward becoming U.S. citizens in return for military service in the United States or abroad.

This program could benefit large number of foreign born medical professionals, like Nurses, PT’s and dermatologists currently in the US waiting in line to become residents and Citizens. The government expects that among those who will be interested in the new effort are doctors with work visas who are employed at hospitals around the country.

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In November, the U.S. economy shed jobs at the fastest rate in 34 years – and experts say December could be even worse. The number of jobs lost in the current recession, which began in December 2007, surpasses the 1.6 million jobs lost in the 2001 recession.

As a result, job losses were spread across a wide variety of industries: manufacturing, leisure and hospitality, construction and even, in the midst of the holiday shopping season, retail. Also seeing sharp declines were professional and business services, a category seen by some economists as a proxy for overall economic activity, and financial services, at the heart of the current crisis.

In November the number of people with a higher degree who were out of work rose to 1.413 million from 1.411 million in the previous month, according to the Bureau of Labor Statistics.

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The Name Check that are holding thousands of Citizenship and regular adjustment cases, are of major concern to many of our Blog readers and clients. Clients call me almost every day asking why there is no N400 interview scheduled, why after passing the interview they are still pending for months and months. I often tell them that the security clearance issue must be looked at on a case by case basis.

Earlier this year USCIS announced that by December, 2008, the FBI will process all name checks that have been pending more than one year. This is true in many cases, yet there are still numerous files that are pending.

By February, 2009, the FBI will process all name checks that have been pending more than 180 days. Finally, by June, 2009, the FBI plans on processing 98% of all name checks within 30 days and the remaining 2% in 90 days. This could be great news, but I doubt they will reach this goal.

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For employers that rely on the H2B Visa to staff workers, 2009 may be the worst year ever. On December 3, 2008, USCIS updated the count of H-2B petitions received and counted towards the H-2B cap on the USCIS website. As of December 1, 2008, 12,371 petitions have been counted towards the 33,000 cap for the second half of FY 2009.

This means that by early January the 33,000 visas reserved for the second part of year will be gone. Employers like Hotels, Constructions Companies, retail season businesses will be affected the most. We urge the government to pass legislation to increase the H2B cap allowing employers to recruit seasonal workers when needed.

The H2B visa is available to employers of foreign workers not working in the agricultural field. This visa is only available for work that is temporary in nature. For H2B purposes, that means:

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As the H1B season is coming up, I wanted to cover another category of this visa based on the Free Trade agreements with Singapore and Chile.

Although Chilean and Singaporan nationals still have available to them the B and L visa categories, the new H-1B1 category is available to “professionals” from these countries under the new FTAs. For purposes of the two trade agreements, a “professional” is defined as “a national of [Chile or Singapore] who is engaged in a specialty occupation requiring (a) theoretical and practical application of a body of specialized knowledge; and (b) attainment of a post-secondary degree in the specialty requiring four or more years of study (or the equivalent of such a degree) as a minimum for entry into the occupation.”
In addition, the H-1B1 nonimmigrant classification is available to certain otherwise admissible businesspersons who do not possess a post-secondary degree or its equivalent, but who will engage in the professions of: (1) in the case of Chilean nationals only, Agricultural Managers and Physical Therapists; and (2) in the case of both Chilean and Singaporan nationals–Disaster Relief Claims Adjusters.

Further, in the case of nationals of both countries, certain management consultants who hold a degree in other than their specialty area will be able to seek admission in H-1B1 classification by presenting alternative documentation reflecting experience in the specialty area.

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It seems that in the near future Airline staff will function as semi immigration officers, examining travelers’ visas even before arrival to the US. U.S. Customs and Border Protection announced that 15,000 airline personnel have now been trained through its Carrier Liaison Program, with 5,665 carrier personnel trained in fiscal year 2008 alone.

CBP has developed a training program specifically for the air carriers which includes a detailed workbook and sample travel document which allows participants to examine dozens of common security features. Benefits include reduced numbers of improperly documented individuals boarding aircraft destined for the U.S., as well as assisting carriers to reduce costs and penalties associated with boarding impostors or improperly documented passengers.

I am curious to see what they will do when a visa fraud case is detected, will they be forced to report CBP and thus create a negative record for the individual. We will keep monitoring this process and report further.

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If you were planning to apply for the Green Card Lottery, but have not taken the time to do so, you had better move fast real fast. The DV-2010 lottery application period expires at noon, Eastern Standard Time, December 1st, that is actually today. You can still apply online without having to pay an attorney by clicking here

The DV-2010 program apportions visa issuance among six geographic regions (Africa, Asia, Europe, North America (other than Mexico ), Oceania, and South America (including Mexico , Central America and the Caribbean ). The world is divided up into high and low admission regions and each of the six regions is divided into high and low admission states. A greater portion of the visas goes to the low admission regions than to high admissions regions. High admission states are entirely excluded from the lottery (those states are listed above)

and low admission states compete equally with other low admission states in the same region. No single state may receive more than 7% (3,500) of the 50,000 allotted visas.

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The recent drug and illegal alien busts show how the new x-ray machine helps screen for contraband coming from Mexico. Customs and Border Protection officials say its the first machine of its kind at the border.

The xray machine sits at the entrance to San Ysidro’s secondary inspection. That’s where agents send vehicles for extra screening. Agents in secondary, in some cases, would tear cars apart in a sort of Easter Egg hunt for illicit items. Customs agents say they’ve seized more than 3000 pounds of drugs since they began using the machine. More….