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.

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.

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.

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.

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.

Allegedly, Mr. Kulla was blackmailing foreign national females with the threat of removal (deportation) if they did not have sex with him. Although Mr. Kulla appears to have a history of such behavior, this arrest was related to a specific chain of incidents regarding one female foreign national.

According to WTVD, Mr. Kulla had initiated contact with the victim via email. Their first meeting was at the Streets at Southpoint, a shopping center in Durham, where he flashed his badge and made threats of removal. On their next meeting at Brier Creek Commons, a shopping center in Raleigh, Federal authorities sent the victim with surveillance equipment.

From my research, this story didn’t make it onto any of the major national news broadcasts.

According to USCIS, it will accept Premium Processing Requests for petitions involving EB-1 Aliens with Extraordinary Ability, EB-1 Outstanding Professors and Researchers, EB-2 Members of Professions with Advanced Degrees or Exceptional Ability not seeking a National Interest Waiver, EB-3 Professionals, EB-3 Skilled Workers, and EB-3 Workers other than Skilled Workers and Professionals.

Premium Processing Service is still not available for Form I-140, Immigrant Petition for Alien Worker, involving EB-1 Multinational Executives and Managers and EB-2 Members of Professions with Advanced Degrees or Exceptional Ability seeking a National Interest Waiver.

For example, current law allows opposite-sex spouses of nonimmigrant visa holders (such as an H-1B or L-1A) to accompany their spouses to the U.S. This same right is not extended to same-sex couples. However, the State Department regulations permit a cohabiting partner of a nonimmigrant visa holder to apply for a visitor’s visa in order to accompany the principal nonimmigrant to the US. Same-sex partners could also qualify under this policy provided they can document the long-term nature of the relationship. Unlike a dependent visa granted to a spouse whose duration is for the length of the principal visa holder’s stay, the visitor visa granted to a same-sex partner generally has a one-year duration and must be renewed every six months. Moreover, unlike L-2 visa holders (spouses of L-1A visa holders), cohabiting partners are also ineligible to work while in the US.

Same-sex marriage, Civil Unions, or Domestic Partnerships are now recognized, at least to some extent, by the States of California, Connecticut, Iowa, Massachusetts, Maine, New Hampshire, Nevada, New Jersey, New York, Oregon, Vermont, and Washington. Croatia, Denmark, Finland, France, Germany, Iceland, Israel, New Zealand, Norway, Portugal, Slovenia, Switzerland, Sweden and the United Kingdom all have nationwide laws that grant same-sex partners a range of important rights, protections and obligations.

On the same day that Vermont’s House and Senate voted to override GOP Gov. Jim Douglas’ veto of a bill legalizing same-sex marriage in the state, the Washington (D.C.) City Council voted 12-0 Tuesday in favor of allowing same-sex marriages performed in other states to be recognized in the nation’s capital. According to CNN, President Obama will sign a memorandum on June 17, 2009 granting some benefits to same-sex partners of federal employees.

It is clear that we may see sooner than later a re-examination of the federally mandated Defense of Marriage Act, which, as stated earlier, forbids the Federal government from recognizing same-sex marriages

As of September 2008, 31,000 employers have voluntarily enrolled in the program. On June 6, 2008, President Bush issued Executive Order 13465 “Economy and Efficiency in Government Procurement through Compliance with Certain Immigration and Nationality Act Provisions and the Use of an Electronic Employment Eligibility Verification System,” This Executive order provides that “executive departments and agencies that enter into contracts shall require, as a condition of each contract, that the contractor agree to use an electronic employment eligibility verification system designated by the Secretary of Homeland Security to verify the employment of: (i) all persons hired during the contract term by the contractor to perform employment duties within the United States; and (ii) all persons assigned by the contractor to perform work within the United States on the federal contract.”

The final rule was to be effective as of January 15, 2009. However, as mentioned above, the effective date of the new rule has been delayed several times and will now be effective September 8, 2009.

All employers, whether Federal Contractors or not, may enroll for E-Verify online at www.dhs.gov/E-Verify.

As of April 2009, 117,000 employers have voluntarily enrolled in the program, up from 9,300 in June 2006, according to US Citizenship and Immigration Services (USCIS). Despite its growth in popularity, E-Verify remains controversial. Many Security experts worry that E-Verify provides no greater security, business groups see it as costly, and labor and immigration advocates are concerned about negative effects on legal workers and the industries that employ them.

NEVA was born out of the E-Verify controversy and attempts to address some of E-Verify’s shortcomings. Under NEVA, employers would be able to confirm the work eligibility of U.S. citizens and non-citizens in more specific database-targeted ways. For U.S. citizens, employers would use the Social Security Administration database. For non-citizens, employers would use the U.S. Department of Homeland Security (DHS) database. Another interesting aspect of NEVA would be that employers could choose to utilize a biometrics option during the verification process.

With pressure for Immigration reform from the current administration and the ongoing E-Verify controversy, NEVA (or another new program) could replace E-Verify in the coming years. So, what do you all think? Should E-Verify live on?

The H-1B nonimmigrant visa allows U.S. employers to temporarily employ foreign workers in 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. Current U.S. law limits the number of aliens who may be issued an H-1B visa to 65,000. 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. In recent years, the H-1B cap has been met on April 1, 2009, the first possible day to file such petitions. This drastic change is most likely attributed to two things: (1) current economic conditions affecting company growth and staffing and (2) the tightened rules on filing H-1B petitions for companies who have received TARP funding. It appears that our economy is assisting in immigration reform!

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

With a few exceptions, the new form is nearly identical to the previous edition. Most notable among the changes to the form is that employees will no longer be able to present expired documents. Previously, employees were allowed to present expired driver’s licenses or U.S. passports. There is also an additional status box in the emloyee attestation in Section 1 of the form. The new I-9 form can be found on the United States Citizenship and Immigration Services’ (USCIS) website.

As I have written in earlier posts, Form I-9 Compliance can be far more complicated than one might assume. With the increased liability of companies for failure to comply with employment eligibility requirements, proper training is imperative.

Previously, various documents, such as U.S. Passports, were acceptable for I-9 purposes, even if expired. The general belief has been that these documents were impossible to fraudulently duplicate and therefore evidence of citizenship, whether expired or unexpired. According to CNN’s Mike Ahlers, this belief has been proven false by a congressional investigation.

According to Mr. Ahlers’ news report, An investigator with the Government Accountablity Office (“GAO”), Congress’ investigative arm, used a false identification to obtain a U.S. passport and then used the passport to get an airline boarding pass and go through an airport security checkpoint. In fact, the investigator was able to receive four different passports using the identities of a man who died 1965 and a five year old child.

Regardless of varying feelings about employment eligibility and undocumented workers, this investigation raises a much more drastic picture of problems with our national security. It has been over eight years since September 11. Does it grind your gears that we are still having these types of national security issues?