H1B Visa Lawyer Blog

September 23, 2010

2010 Citizenship Day Naturalization Ceremonies

US Citizenship and Immigration Services (USCIS) has partnered with the National Park Service (NPS) in recognition of Constitution and Citizenship Day on September 17. Over 9,000 candidates will be naturalized; candidates across twenty-two (22) national park sites will be naturalized between September 13 and September 24. Some of the highlights of this event include twenty-five (25) citizens being naturalized under the foot of General Grant’s Tree in Sequoia-Kings Canyon National Park in Three Rivers, California on Sept. 15, a ceremony at the Lincoln memorial on Sept. 22, 5,200 candidates being naturalized at Fenway Park and celebrations at the Grand Canyon.

The USCIS and the National Park Service (NPS) renewed their partnership to enhance the meaning and stature of citizenship ceremonies by holding naturalization ceremonies at NPS sites across the nation. Their agreement aims to introduce new citizens to the National Park System, which includes some of the nation’s most significant natural resources and cultural heritage sites according to the press release issued on September 13, 2010.

September 22, 2010

BALCA Affirms Denial on Ground That Alien Did Not Meet Educational Requirements After Revision of Form 9089

by Kellie N. Lego

The Board of Alien Labor Certification Appeals (BALCA) recently affirmed the final determination of a Certifying Officer (CO) denying labor certification for an alien worker for the position of “Assistant Manager.”

The Employer originally stated on the ETA Form 9098 that the position required a high school education and 24 months of experience in the job but when the alien filed his application he only had a high school education. The application was returned to the Employer by the CO based on the grounds that the Employer failed to indicate the year the education was completed. When the form was returned, it showed the alien did not have any education but on the Form 9098 it still stated that high school completion was a requirement for the job. On the grounds that the alien did not meet the job qualifications of Form 9098 the CO denied the application. A request for reconsideration of the application was submitted; the CO found that the grounds for denial were valid. Since the education level had been changed on the Form 9098, the alien no longer had the required experience for the job.

PERM Regulation 20 C.F.R. § 656. 21 (b)(5) controls and provides that an “employer must demonstrate that the requirements it specifies for the job are its actual minimum requirements and that it has not hired the alien or other workers with less training or experience for jobs similar to the one offered.” When the form was resubmitted showing the alien with no education and the job requiring a high school degree, the CO found that the alien was unqualified for the job. The CO made the decision to deny based on the Form 9098 not based on documents accompanying the form.

September 22, 2010

LATEST UPDATE: H-1B FY2011 CAP COUNT

by Kellie N. Lego

The United States Citizenship and Immigration Service (USCIS) has updated the count of H-1B petitions received and counted towards the 65,000 cap.

As of September 17, 2010, 38,300 H-1B Regular CAP subject non-immigrant visa petitions have been filed with the USCIS towards the 65,000 cap.

As of September 17, 2010, 14,000 H-1B Masters Degree CAP subject non-immigrant visa petitions have been filed with the USCIS towards the 20,000 cap.

September 21, 2010

DREAM Act Could Be Considered by Senate This Week

by Kellie N. Lego

Senate Majority Leader Harry Reid (D-NV) proposed the DREAM Act as an amendment to the Defense Authorization Bill which would allow students living in the US for at least five years before reaching age 16 to obtain a green card after college or service in the military. Senator Reid wrote in a September 14, 2010 blog entry that this amendment will ensure that millions of children who grow up as Americans will be able to get the education they need to contribute to our economy. Senator Reid also proposed the repeal of the Don’t Ask, Don’t Tell rule which would allow those in the armed forces who are gay and lesbian to openly serve. If the Senate passes the DREAM Act amendment to the Defense Authorization Bill it will have to go back to each chamber after conference committee reconciliation for a final vote because the House passed the bill back in May without the DREAM Act provision.

Senator Reid also stated in the final words of his blog entry that he firmly believes that these two amendments deserve strong bipartisan support and will work to ensure that the legislation is passed before the end of this work period.

Each year about 65,000 students graduate from high school with zero prospects for the future. They live in constant fear of being deported from the country they call home. The DREAM Act would change that. It would provide a path to citizenship for thousands of young people who are Americans in all but paperwork — provided they have shown good character and either attend college or serve in the military for two years.

September 21, 2010

by Kellie N. Lego

The Department of State has released its latest Visa Bulletin.

Click here to view the October 2010 Visa Bulletin.

The October 2010 Visa Bulletin still shows employment based third preference (EB-3) visas as oversubscribed while the employment based second preference (EB-2) is current for all areas of chargeability except for China and India.