What is an H-1B Visa?

Much like when in OPT (Optional Practical Training), an H-1B visa allows you to be employed by the company sponsoring the visa for up to six years (sometimes longer) in what United States Citizenship and Immigration Services (“USCIS”) calls “specialty occupations.” The regulations define a “specialty occupation” as requiring theoretical and practical application of a body of highly specialized knowledge in a field of human endeavor, and requiring the attainment of a bachelor’s degree or its equivalent as a minimum. Although the possibilities are endless, examples of common H-1B eligible positions are accountants, computer programmers, database administrators, general managers, marketing research analysts, medical technologists, software engineers, and teachers.

Is an H-1B Visa Only Used for Full-Time Employment?

No! The H-1B visa can be utilized for both full-time and part-time employment. Although there are wage issues to be considered, “part-time H-1B visas” may be a life saver for both employers under financial restraints and potential employees who are scared the troubled economy will keep them from finding an employer to sponsor their visa. It is also possible to have two companies sponsor an individual for two separate part-time H-1B visas.

When Should You File for Your H-1B Visa?

To be on the safe side, April 1st! Each year, employers begin filing H-1B visas on April 1st of each year for employees who will begin their employment with the company on October 1 of the same year (beginning of the new federal fiscal year). Currently, U.S. law limits the number of H-1B visas to 65,000 per fiscal year (with some exceptions). This limit is called the “H-1B Cap.” Over the past few years (apart from last year) the H-1B Cap was met by petitions filed on the first possible day of filing (April 1). Last year, due to the poor economy and restrictions on employers who received TARP funding, the H-1B Cap was not met until after the beginning of the federal fiscal year. This year is anyone’s guess.

For more information on H-1B visas or any other business, employment, or immigration issues, please contact our offices.

The H-2A nonimmigrant visa program (“H-2A program”) allows foreign nationals to enter into the U.S. to perform agricultural labor or services of a temporary or seasonal nature. In order to employ foreign nationals under the H-2A program, employers must prove that no qualified U.S. workers are available at the time and place needed and that use of foreign workers will not create an adverse effect on the wages or working conditions of similarly employed US workers. The employer must also provide housing (if employee cannot reasonably commute from home), three meals a day, and transportation.

Although similar to the H-2A program, the H-2B nonimmigrant visa program (“H-2B program”) allows foreign nationals to enter into the U.S. temporarily and engage in nonagricultural employment which is seasonal, intermittent, a peak load need, or a one-time occurrence. H-2B workers are frequently used to fill labor needs in occupational areas such as construction, health care, landscaping, lumber, manufacturing, food service/processing, and resort/hospitality services. Like the H-2A program, employers must prove that no qualified U.S. workers are available at the time and place needed. Up to 66,000 H-2B visas are granted each year with half reserved for jobs with start dates in the first half of the government fiscal year and the remainder reserved for the second half. The employer must pay the employee’s transportation costs home if the employee is terminated early. Unlike the H-2A program, H-2B program employers are NOT required to provide housing or meals for their H-2B workers.

For more information about the H-2A or H-2B programs, please contact our offices.

In the January 15, 2010 statement released by Secretary Napolitano, she stated:

“This is a disaster of historic proportions and this designation will allow eligible Haitian nationals in the United States to continue living and working in our country for the next 18 months. Providing a temporary refuge for Haitian nationals who are currently in the United States and whose personal safety would be endangered by returning to Haiti is part of this Administration’s continuing efforts to support Haiti’s recovery.”

For more information, please see our previous post on TPS.

For the time being, the answer is “no.” On Wednesday, Homeland Security Secretary Janet Napolitano temporarily halted the removal (deportations) of Haitians with standing removal orders. Those who do not have removal orders, but are detained in detention centers, will remain jailed.

Since the earthquake on Tuesday, President Obama has been receiving increasing pressure from members of Congress and other special interest groups to grant Temporary Protected Status (“TPS”) those Haitians who are in the U.S. unlawfully. This status is sometimes granted to countries when conditions in the country that temporarily prevent the country’s nationals from returning safely, or in certain circumstances, where the country is unable to handle the return of its nationals adequately.

In plain language, TPS allows eligible nationals who are in the U.S. unlawfully to remain and work in the U.S. until such a time as that their home country reaches a point that DHS determines will allow for a safe return. Currently, El Salvador, Honduras, Nicaragua, Somalia, and Sudan are designated by the Department of Homeland Security for TPS.

Many of us at Sands Anderson have made personal donations to help the earthquake victims. We encourage everyone to consider doing the same, but please be careful who gets your money. It is unfortunate, but many people will try to make a buck off this disaster. Don’t be a victim of a scam.

Here are some tips from the Better Business Bureau on how to vet charities asking for Haiti donations:

• Rely on expert opinion when it comes to evaluating a charity; not every blogger or web site has researched its recommendations.
• Be wary of claims that 100 percent of donations will assist relief victims.
• Be cautious when giving online, particularly if you receive an email asking for donations.
• Find out if the charity has an on-the-ground presence in the impacted areas.
• Find out if the charity is providing direct aid or raising money for other groups; it may make your dollars go further if you avoid the middleman.
• In-kind drives for food and clothing&emdash;while well intentioned&emdash; may not necessarily be the quickest way to help those in need – unless the organization has the staff and infrastructure to be able to properly distribute such aid.

In addition, be very careful in donating by text message. Before texting, go online and verify the number.

Section 287 (g) was added to the Immigration and Nationality Act by the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) in 1996. 287(g) authorizes the secretary of the U.S. Department of Homeland Security (DHS) to enter into agreements with state and local law enforcement agencies, permitting designated officers to perform immigration law enforcement functions, provided that the local law enforcement officers receive appropriate training and function under the supervision of sworn U.S. Immigration and Customs Enforcement (ICE) officers.

Since its beginning, the 287(g) has been surrounded by a whirlwind of controversy with accusations of the program encouraging racial profiling. Although many support the program, it has come under intense criticism more recently, with over 500 organizations, including the ACLU and the Congressional Hispanic Caucus, calling on the government to end the program.

So, what will happen with 287(g)? Only time will tell. It will at least have to wait until Immigration Reform hits Congress’ front burner.

Employers may resume filing H-1B petitions on April 1, 2010 for year 2011 (employment beginning on or after October 1, 2010).

For more information on the H-1B cap, please see our previous blog posts.

The H-1B visa is among the most coveted by U.S. employers because it allows foreign workers in speciality occupations with only a bachelor’s degree to be employed by the company. For many years, the H-1B has been a vital component for many company’s staffing needs.

Currently, U.S. law limits the number of H-1B visas to 65,000 per fiscal year (excluding H-1B non-immigrants who work at universities and non-profit research facilities). Laws also exempt up to 20,000 foreign nationals holding a master’s or higher degree from U.S. universities from the cap on H-1B visas.

In recent years, the H-1B non-masters cap has been met on April 1, the first possible day to file such petitions. However, this has been an unusual year with the cap having not been met as of December 14 (yesterday). This drastic change is most likely attributed to two things: (1) current economic conditions affecting company growth and staffing needs and (2) the tightened rules on filing H-1B petitions for companies who have received TARP funding.

If your company wishes to hire an H-1B employee, it is imperative that the petition be filed as soon as possible. Once the cap has been met, employers will have to submit H-1B petitions starting April 1, 2010 for employment beginning October 1, 2010.

For more information on H-1B visa, please see our previous blog posts. If your company is interested in hiring an H-1B worker, please contact our offices as soon as possible.

What Documents Should be in a H-1B Public Access File?

To avoid potential costly fines, payment of back wages and/or disbarment from participation in key immigration programs, it is our recommendation that employers keep the following documents within each H-1B applicant’s separate public access file:

• A copy of the relevant certified Labor Condition Application (LCA) including all pages and cover sheet;
• Documentation which provides the wage rate to be paid to the non-immigrant (updated when/if wage rate increases/decreases);
• A clear explanation of the system use by the employer to set the “actual wage” the employer has paid or will pay workers in the occupation;
• Documentation which the employer used to establish the “prevailing wage” for the occupation sought;
• A copy of the notice of posting including dates of posting, and a statement identifying the two posting locations;
• A statement confirming that a copy of the approved LCA was provided to the H-1B worker;

We work closely with H-1B employers to ensure that their H-1B Public Access Files are created and maintained correctly to avoid liability. If you have questions about H-1B Public Access Files, or any other immigration or employment related issue, please contact our offices.

1. Risk Assessment Fraud Study &endash; Part of a joint program between USCIS and Immigration and Customs Enforemcent (ICE), this study will be applicable to all family and employment-based petitions. Post-approval Applications/petitions will be chosen at random. The purpose of the study is to assist USCIS in designing profiles of potential fraud. No advance notice is required to be given to either the employer or counsel.
2. Targeted Site Visits &endash; When fraud by an employer is expected, the targeted site visits are being utilized to ask questions of the employer. Advance notice to both the employer and counsel is supposed to be provided.
3. Administrative Site Visits &endash; These site visits are conducted by contractors (usually with no knowledge of immigration law) who ask a set of specific questions provided by USCIS. The questions should be aimed at ascertaining whether the employment exists, the employer is aware that the petition/application exists, whether the employee is performing the job indicated at the salary specified on the application/petition. No advance notice is required to be given to either the employer or counsel.

So, how can employers be prepared for a visit from USCIS? In light of these latest efforts by USCIS/DHS, in addition to escalated I-9 employment eligibility enforcement measures being taken by ICE, it is imperative that employers seek adequate immigration counsel. Many of the requirements for both immigration applications/petitions and I-9 compliance are highly technical and carry tremendous liability for both employers and HR executives and staff.
For more information, please contact our offices.

A ban on travel and immigration to the U.S. by individuals with HIV, the virus that causes AIDS, was first established by the Reagan-era U.S. Public Health Service and then given further support when Sen. Jesse Helms (R-N.C.) added HIV to the travel-exclusion list in a move that was ultimately passed unanimously by the Senate in 1987.

At an October 30, 2009 press conference, President Obama had the following to say about lifting the ban:

“A couple of years ago Michelle and I were in Africa and we tried to combat the stigma when we were in Kenya by taking a public HIV/AIDS test. And I’m proud to announce today we’re about to take another step towards ending that stigma.

Twenty-two years ago, in a decision rooted in fear rather than fact, the United States instituted a travel ban on entry into the country for people living with HIV/AIDS. Now, we talk about reducing the stigma of this disease — yet we’ve treated a visitor living with it as a threat. We lead the world when it comes to helping stem the AIDS pandemic — yet we are one of only a dozen countries that still bar people from HIV from entering our own country. If we want to be the global leader in combating HIV/AIDS, we need to act like it. “

For those who are unaware, “naturalization” is the process by which individuals born outside the United States become U.S. Citizens. In order to be eligible for naturalization, applicants must be a Lawful Permanent Resident (also know as a “green card” holder) for five years prior to application (only 3 years in certain cases).

In addition to other various procedural and eligibility requirements, applicants for naturalization must be of good moral character and pass the naturalization test, which tests the applicants’ grasp of the English language and civics. Certain exceptions to the mandatory testing requirement exist for older applicants in special circumstances.

According to United States Citizenship and Immigration Services (USCIS), the redesigned naturalization test is intended to ensure that citizenship applicants have uniform, consistent testing experiences nationwide and that the civics portion can effectively assess whether applicants have a meaningful understanding of U.S. government and history.

On October 6, 2009, Sgt. Wesly Farris and Stephen Schneider pleaded guilty to marriage fraud in federal court in Greenville, North Carolina. The two men, while soldiers at Fort Bragg military base in Fayetteville, North Carolina, married Russian women in 2005 and 2006, respectively, after meeting them through brothers Alexander “Sasha” Manin and Pavel “Pasha” Manin.

The marriages took place in civil ceremonies on the same day that the men met the women. After which, the women returned to New York while the men filed both the immigration paperwork necessary for the women to remain in the U.S. and the paperwork with the army to secure higher living allowances and off-post housing.

Svetlana Kaloshina, wife of Farris, pleaded guilty in August to making a false statement on an immigration application and is out on bond awaiting sentencing. Tatyana Urazova, wife of Schneider, pleaded guilty Monday to conspiracy to commit marriage fraud. She remains in jail and will likely be removed (deported) after sentencing.

A third woman charged in the case, Anya Ivanova, was in a fraudulent marriage with a third Fort Bragg soldier, Jason Hawk, who was convicted at court-martial in February. Jason Hawk was demoted from sergeant to private, paid a fine of $20,000 and served a fourth month sentence on post. He was then discharged. Ms. Ivanova is currently a fugitive, and authorities believe she is in Canada.

Will further mechanisms to prevent marriage fraud be a big part of the inevitable immigration reform?

For years, foreign nationals who wanted to become U.S. permanent residents (green card holders), paid Ms. Camarillo as much as $12,000 to arrange marriages between them and U.S. Citizens. The foreign nationals then used their marriage to a U.S. citizen as basis for obtaining U.S. permanent residency and often citizenship.

Ms. Camarillo recruited her children, grandchildren, nieces, and nephews (all U.S. citizens) into the conspiracy. Each was paid a portion of Camarillo’s $12,000 fee for agreeing to marry foreign nationals.

In order to qualify for the DV Program, the foreign national must:

1. Be from an eligible country (low admission foreign state). A country can be designated as a low-admission state if immigration from that country was lower than 50,000 over the preceding five years. Low admission states are allowed to participate in the DV program, whereas high admission regions are not. The list of countries participating in the DV program changes every year.
2. Meet an education or training requirement. The education requirement can be met by obtaining a high school diploma or successfully completing a 12 year course of elementary and secondary education. The training requirement can be met by obtaining at least two years of work experience within the past five years in an occupation requiring at least two years of training or experience to perform. The U.S. Department of Labor’s online database (ONet) is used to determine qualifying work experience.

If you believe you are eligible for the DV program, your application must be submitted during the relevant registration period. This year’s registration period (for DV year 2011) lasts for 60 days, beginning October 2, 2009 and ending on November 30, 2009.

For more information on the Diversity Visa Lottery Program, please contact our offices.

The new rule is applicable to Federal contractors and subcontractors who are awarded a contract, on or after September 8, 2009, which contains the Federal Acquisition Regulation (FAR) E-verify clause. These employers must enroll and begin using the E-verify program within 30 days of the contract award date.

Although there has been controversy surrounding the E-Verify program, the program is voluntarily used by many employers in an attempt to minimize liability. As of July 2009, USCIS reports that more than 148,000 employers used E-Verify to electronically verify their workers’ employment eligibility.

For more information on the E-Verify program, please contact our offices.

L-1 nonimmigrant visas are utilized by U.S. corporations to temporarily employ (up to 5 or 7 years depending on type) certain foreign workers employed by the company’s foreign parent, affiliate, subsidiary or branch office. The L-1 visa is broken into two eligibility categories: (1) international managers and executives, and (2) specialized knowledge employees.

How is an L-1A visa utilized by entrepreneurs?

The “new office” L-1A visa is utilized by foreign companies opening U.S. affiliate, subsidiary, or branch offices to transfer key executives to run the new U.S. offices. This L-1A visa was perfect for this purpose because it required less of an initial investment than would be required for a treaty investor’s visa (E-2).

Why might the L-1A no longer be the “entrepreneur’s best friend?”

Generally, to be eligible for an L-1A visa, the U.S. operation must have been in operation for at least one year. The “new office” exception exists to this general rule so that the L-1A can be utilized for the opening of new U.S operations. At the end of this first year of operation, the company must prove that the U.S. operations are “active and operating.”

Proving that the U.S. operations are “active and operating” to the satisfaction of USCIS is now more difficult than ever. This is generally proven by evidence of extensive clientele, growth in income, hiring additional employees, etc. And, here is where the issue lies. Over the past year, considering the financial difficulties being faced by small companies nation-wide, very few companies could prove growth in clientele, income, or employees.

Are the “new office” L-1 visas still useful?

The L-1 visas are incredibly advantageous to the U.S. because they are used by foreign corporations to open and operate business in the U.S. This generally leads to tax revenue, employment, and increased profits for related industries.

The “new office” L-1 visa is still advantageous to the entrepreneur, even if meeting USCIS’ stringent requirements for extension is difficult. As the economy improves, the “new office” L-1 will likely be the entrepreneurs best friend again!

For more information on this or any other type of nonimmigrant visa, please conact our office.

What is an H-1B nonimmigrant visa?

H-1B nonimmigrant visas allow U.S. employers to temporarily (up to six years) employ foreign workers in what USCIS calls “specialty occupations.” The regulations define a “specialty occupation” as requiring theoretical and practical application of a body of highly specialized knowledge in a field of human endeavor and requiring the attainment of a bachelor’s degree or its equivalent as a minimum. Examples of common H-1B eligible positions are accountants, computer programmers, database administrators, general managers, marketing research analysts, medical technologists, and software engineers.

What is the H-1B nonimmigrant visa cap?

Currently, U.S. law limits the number of H-1B visas to 65,000 per fiscal year. In addition, excluded from the cap are all H-1B non-immigrants who work at universities and non-profit research facilities. Laws also exempt up to 20,000 foreign nationals holding a master’s or higher degree from U.S. universities from the cap on H-1B visas. Visa extensions do not count towards the annual limits.

Why is 2009 the year of the “un-cappable” H-1B visas?

In recent years, the H-1B non-masters cap has been met on April 1, the first possible day to file such petitions. As of today, the H-1B cap still has not been met. This drastic change is most likely attributed to two things: (1) current economic conditions affecting company growth and staffing needs and (2) the tightened rules on filing H-1B petitions for companies who have received TARP funding.

How does this benefit your company?

The H-1B visa is among the most coveted by U.S. employers because it allows foreign workers with only a bachelor’s degree to be employed by the company. Most visa types require certain years of foreign employment with an international branch of the employer or far more stringent eligibility requirements. For many years, the H-1B has been a vital component for many company’s staffing needs.

If your company is considering hiring an H-1B foreign worker, please contact our offices as soon as possible.

According to the company’s website, Shipley supplies baking materials and provides logistical support to retail stores, and to 120 franchises in Texas, Alabama, Arkansas, Louisiana, Mississippi and Tennessee. Trouble for Shipley arose from a criminal investigation initiated by ICE in January of 2008 which included interviews with former employees and a thorough review of Shipley’s I-9 records and SSA No-Match letters. In April of 2008, an enforcement action was taken by ICE agents that resulted in the administrative arrest of 27 unlawful workers employed by the company.

The I-9 system of employment verification, created by the Immigration Reform and Control Act of 1986, is the nation’s sole mandatory employment eligibility verification program. All U.S. employers are responsible for the completion and retention of Form I-9 for each individual hired for employment in the United States, including citizens and non-citizens. The penalties, both civilly and criminally, are becoming too severe to ignore. Civil fines for employers can range from $3200 (per violation) for a first offense to $16,000 (per violation) for a third or subsequent offense. All company representatives verifying employment eligibility of employees are potentially liable, both criminally and civilly, for errors in completing I-9 Forms.

In light of this case and ICE’s issuance of over 650 audit requests last month, it is imperative now, more than ever, that employers heed the warning. You may be asking, “what can my company do to avoid criminal and civil penalties related to I-9 compliance?” Employers must implement I-9 Compliance Programs that include proper training, internal audits, and third-party audits. The voluntary E-Verify, an online system operated jointly by the Department of Homeland Security and the Social Security Administration (SSA), also provides employers with a “safer harbor” within which to operate.

For more information on effective I-9 compliance programs, see my post entitled “Employers: How not to lose your shirt (and everything else)” or contact me at obranch@sandsanderson.com.

Over the past several years, there have reports of insufficient medical care and poor treatment of foreign nationals held by ICE. Earlier this year, the NY Times published an article about a computer engineer from China who died from a lack of proper medical care while he was detained in a contracted detention center in Rhode Island.

So, what will the new overhaul include? According to John Morton, Assistant Secretary of ICE, the next three to five years will bring facilities located and operated solely for immigration detention purposes. These facilities will be run by ICE and, according to Assistant Secretary Morton, will address many of the issues regarding oversight and medical care.

What will the cost be? Will it cost more or less than contracting with public and private facilities? The data isn’t in or at least it hasn’t been yet.

The alleged conspiracy involved the somewhat controversial H-2B visa program, which allows foreign nationals to enter into the U.S. temporarily and engage in nonagricultural employment which is seasonal, intermittent, a peak load need, or a one-time occurrence. In order to qualify for the H-2B program, the foreign national must either already be in the U.S. in legal status or have lived outside the U.S. for at least six months before filing. The indictment claims the defendants instructed employers to have their employees, who were working illegally, to go back to Mexico and not tell U.S. consular personnel who interviewed them that they had been in the United States unlawfully.

This is likely a situation that the American Immigration Lawyer’s Association (“AILA”), of which I am a member, would argue is the exception, not the rule. But, it isn’t that hard to see how these type of situations happen. As an immigration attorney, I have been approached by companies who depend heavily on unlawful workers and are seeking a way to “legalize” these employees. Unfortunately, until some sort of an amnesty program is created, there are very few options in these circumstances. Until then, I am guessing immigration attorneys will be far more careful when advising clients in similar situations.