Because H-2B petitions require temporary labor certifications issued by DOL, USCIS has also temporarily suspended adjudication of H-2B petitions. USCIS will continue adjudicating H-2B petitions for non-agricultural temporary workers on Guam if the petitions are accompanied by temporary labor certifications issued by the Guam Department of Labor.
U.S. Citizenship and Immigration Services (USCIS) announced today that, effective May 26, 2015, the Department of Homeland Security (DHS) is extending eligibility for employment authorization to certain H-4 dependent spouses of H-1B nonimmigrants who are seeking employment-based lawful permanent resident (LPR) status. DHS amended the regulations to allow these H-4 dependent spouses to accept employment in the United States.
Eligible individuals include certain H-4 dependent spouses of H-1B nonimmigrants who:
Are the principal beneficiaries of an approved Form I-140, Immigrant Petition for Alien Worker; or
Have been granted H-1B status under sections 106(a) and (b) of the American Competitiveness in the Twenty-first Century Act of 2000 as amended by the 21st Century Department of Justice Appropriations Authorization Act. The Act permits H-1B nonimmigrants seeking lawful permanent residence to work and remain in the United States beyond the six-year limit on their H-1B status.
DHS expects this change will reduce the economic burdens and personal stresses H-1B nonimmigrants and their families may experience during the transition from nonimmigrant to lawful permanent resident status, and facilitate their integration into American society. The change should reduce certain disincentives that lead H-1B nonimmigrants to abandon efforts to remain in the United States while seeking lawful permanent residence, which will minimize disruptions to U.S. businesses employing them. The change should also support the U.S. economy because the contributions H-1B nonimmigrants make to entrepreneurship and science help promote economic growth and job creation. The rule also will bring U.S. immigration policies more in line with those laws of other countries that compete to attract similar highly skilled workers.
Subject: National Visa Center No Longer Collecting Original Civil Documents
1. Summary. The National Visa Center (NVC) will cease collecting original civil documents in support of immigrant visa (IV) applications as of November 12, 2014. Most applicants will be required to submit photocopies of supporting documents (such as birth, marriage, and police certificates) and will be instructed to take their original documents to their interviews for review. This does not include Affidavit of Support forms, which petitioners will still submit to NVC for initial evaluation. End Summary.
New Instructions to Applicants
2. After applicants and petitioners collect the Affidavit of Support form(s), financial evidence,
and supporting civil documents, they are instructed to submit all of the documents to NVC. As of November 12, 2014, applicants at non-electronic processing posts will be instructed to submit photocopies of their civil documents by mail. NVC will review the copies and, when the case is documentarily complete, will place the copies into the file, which will be sent to post, increasing the number of cases that are documentarily qualified. When the appointment is scheduled, NVC will instruct applicants to bring their original documents to the interview for evaluation and final case processing. Original Affidavit of Support forms will still be submitted to NVC for initial evaluation. Applicants at designated electronic processing posts will continue to submit their documents via email.
3. NVC anticipates this change will maintain the integrity of the IV process, reduce customer wait times, and improve the customer experience overall.
When human resources professionals have visions of H-1B visas dancing in their heads, it’s that season again. Yes, it is too early to talk about Christmas, but it is the right time of year to start thinking about H-1B visas for next year. Now is the time to be extending those offers and preparing applications for filing. In the private sector, which is largely subject to the annual 65,000 visa cap on H-1B visas, the filing season will open up again on April 1, 2014 for jobs that can begin on or after October 1, 2014. This strict timeline is courtesy of Congress that imposed annual cap limitations years ago except on institutions of higher learning, nonprofit or government organizations engaged in research, and private companies with qualifying “affiliations” with the foregoing institutions.
The scarcity problem.
Every year since the cap dropped to 65,000 (plus 20,000 for individuals with US masters degrees), it has been reached well before the end of the fiscal year. Every year, employers are stuck with a very narrow timetable in which to file applications. When the economy tanked at its worst in 2008, the cap was still reached, albeit in several months. When the economy was at its best with strong job growth, the 65,000 (+20,000) visas were used up in a day. In Fiscal Year 2013 that began October 1, 2012 and ended September 30, 2013, applications were received starting April 1, 2013 and were used up that day for jobs that began October 1, 2013! Anyone wanting to hire an H-1B employee subject to the cap for jobs that are open now will have to wait to file on April 1, 2014 for jobs that cannot begin until October 1, 2014! Rather than Congress changing the program to a market demand based one, employers have to be ready to file on April 1, and cross their fingers. Why?
One must hope and pray the quota doesn’t close early, that there aren’t mass filings on April 1 creating a lottery situation where employers can only rely on luck. In addition, having to wait to put the person to work on or after October 1, 2014, means employers have to predict their workloads now, or applications will be denied if work cannot be guaranteed. Improperly benching an H-1B worker for lack of work can lead to debarment from the program and payment of back wages despite lack of work. This absurd process makes it difficult for employers on fast product development or contractual timelines. Yet, it’s the only game we have to play at this time with this category, and why employers should advocate for legislative change.
Are you an employer new to H-1Bs?
In my many years of experience filing these cases, I have concluded that there are three types of employers. The first group of employers expects to recoup their costs through the value added by a talented employee and the potential for that employee to create other jobs for US workers, create new inventions or products, or develop new markets for the employer, directly or indirectly.
The second group of employers that I speak with are those without prior experience with H-1Bs, but are open to learning more, and likewise, have not been able to find a qualified US worker. Once the employer understands the process, what is required, confirms the cost to hire is within budget, and the employer determines the foreign national will add value to the company, these employers will test out H-1Bs for one or more employees. If the experience is satisfactory, they may hire additional H-1Bs in the future or limit their use of the program to the occasional situation when they run into a great person who happens to be from another country.
The third group of employers refuses to have anything to do with foreign nationals. Sometimes that is due to ignorance of the law, even if other visa options are available. Sometimes it is pure racial, or nationality bias, in which case, the employer may be bordering on employment or immigration related discrimination or I-9 or E-Verify violations (e.g., using nationality to pre-screen individuals instead of documenting status upon hire). Most of the time, it’s because the employer simply doesn’t want to be involved, can’t afford the process, has found an equally or better qualified US worker, just needs a body to fill a position, even if the US worker is less qualified, or where talent or extensive knowledge isn’t a requirement or concern.
How do I know we need this visa?
At our Cincinnati, Ohio immigration law firm, we analyze every case individually when we first start talking to an employer. We need to know that the application will be successful. We ask questions early so that we are not doing a mad dash at the end of March. We also like to get to know our employer clients’ businesses to see where the job applicant fits into the entire organization. We look at all potential work visa categories as well as any available through a spouse, whereby the employer’s applicant may benefit from a dependent’s work visa. Just because an employer calls and says “we want to get an H-1B visa for this person”, we look at all potential options to determine the best route, including any viable family, lottery or other immigration programs. We also have to determine if the applicant or employment situation is truly subject to the H-1B cap, as there are several exceptions.
The best advice for employers new to H-1Bs is to get more information from a qualified immigration attorney so that all options can be explored for hiring top talent. If you would like a free copy of our 2014 H-1B plan please click here. This will take you to another one of our pages. There is a short form and when we receive the information we will email you the packet.
The DHS Office of Inspector General (OIG) released a report on the L-1 visa program, finding that USCIS guidance regarding specialized knowledge is not applied consistently and that more training at both CBP and USCIS is needed. Download the report here.
L-1A Intracompany Transferee Executive or Manager
The L-1A nonimmigrant classification enables a U.S. employer to transfer an executive or manager from one of its affiliated foreign offices to one of its offices in the United States. This classification also enables a foreign company which does not yet have an affiliated U.S. office to send an executive or manager to the United States with the purpose of establishing one.
The following information describes some of the features and requirements of the L-1 nonimmigrant visa program.
General Qualifications of the Employer and Employee
To qualify for L-1 classification in this category, the employer must:
Have a qualifying relationship with a foreign company (parent company, branch, subsidiary, or affiliate, collectively referred to as qualifying organizations); and
Currently be, or will be, doing business as an employer in the United States and in at least one other country directly or through a qualifying organization for the duration of the beneficiary’s stay in the United States as an L-1. While the business must be viable, there is no requirement that it be engaged in international trade.
Doing business means the regular, systematic, and continuous provision of goods and/or services by a qualifying organization and does not include the mere presence of an agent or office of the qualifying organization in the United States and abroad.
To qualify, the named employee must also:
Generally have been working for a qualifying organization abroad for one continuous year within the three years immediately preceding his or her admission to the United States; and
Be seeking to enter the United States to provide service in an executive or managerial capacity for a branch of the same employer or one of its qualifying organizations.
Executive capacity generally refers to the employee’s ability to make decisions of wide latitude without much oversight.
Managerial capacity generally refers to the ability of the employee to supervise and control the work of professional employees and to manage the organization, or a department, subdivision, function, or component of the organization. It may also refer to the employee’s ability to manage an essential function of the organization at a high level, without direct supervision of others. See section 101(a)(44) of the Immigration and Nationality Act, as amended, and 8 CFR 214.2(l)(1)(ii) for complete definitions.
For foreign employers seeking to send an employee to the United States as an executive or manager to establish a new office, the employer must also show that:
The employer has secured sufficient physical premises to house the new office;
The employee has been employed as an executive or manager for one continuous year in the three years preceding the filing of the petition; and
The intended U.S. office will support an executive or managerial position within one year of the approval of the petition.
Period of Stay
Qualified employees entering the United States to establish a new office will be allowed a maximum initial stay of one year. All other qualified employees will be allowed a maximum initial stay of three years. For all L-1A employees, requests for extension of stay may be granted in increments of up to an additional two years, until the employee has reached the maximum limit of seven years.
Family of L-1 Workers
The transferring employee may be accompanied or followed by his or her spouse and unmarried children who are under 21 years of age. Such family members may seek admission in L-2 nonimmigrant classification and, if approved, generally will be granted the same period of stay as the employee.
Change/Extend Nonimmigrant Status
If these family members are already in the United States and seeking change of status to or extension of stay in L-2 classification, they may apply collectively, with fee, on an Form I-539, Application to Change/Extend Nonimmigrant Status, [http://www.uscis.gov/I-539].
Spouses of L-1 workers may apply for work authorization by filing a Form I-765, Application for Employment Authorization [http://www.uscis.gov/I-765] with fee. If approved, there is no specific restriction as to where the L-2 spouse may work.
Certain organizations may establish the required intracompany relationship in advance of filing individual L-1 petitions by filing a blanket petition. Eligibility for blanket L certification may be established if:
The petitioner and each of the qualifying organizations are engaged in commercial trade or services;
The petitioner has an office in the United States which has been doing business for one year or more;
The petitioner has three or more domestic and foreign branches, subsidiaries, and affiliates; and
The petitioner along with the other qualifying organizations meet one of the following criteria:
Have obtained at least 10 L-1 approvals during the previous 12-month period;
Have U.S. subsidiaries or affiliates with combined annual sales of at least $25 million; or
Have a U.S. work force of at least 1,000 employees.
The approval of a blanket L petition does not guarantee that an employee will be granted L-1A classification. It does, however, provide the employer with the flexibility to transfer eligible employees to the United States quickly and with short notice without having to file an individual petition with USCIS.