H1B Visa Lawyer Blog

June 9, 2008

USCIS TRIES TO INCREASE EFFICIENCY IN PROCESSING NATURALIZATION APPLICATIONS

In July of 2007, the U.S. Citizenship and Immigration Services (USCIS) received a record 460,000 applications for naturalization. Moreover, for 2007, the USCIS received 1.4 million naturalization applications. This is double the normal annual volume. As a result of the record volume of applications, the USCIS announced in April
of this year that depending on the region that an applicant’s citizenship application was filed, it was taking the USCIS at least five to fourteen months. As a result, over the past few months, the USCIS has increased the number of officers adjudicating naturalization applications. Moreover, USCIS just announced that it will centralize the initial naturalization processing. Hopefully, these changes speed up the process for the thousands of individuals who are waiting to become citizens.

June 5, 2008

Changes To Visa Waiver Program – DHS Announces Pre-Travel Authorization Program for U.S.-Bound Travelers from Visa Waiver Countries

by Kellie N. Lego

The U.S. Department of Homeland Security (DHS) announced on June 3, 2008 the Interim Final Rule for the Electronic System for Travel Authorization (ESTA), a new online system that is part of the Visa Waiver Program (VWP) and is required by the Implementing Recommendations of the 9/11 Commission Act of 2007.

“Rather than relying on paper-based procedures, this system will leverage 21st century electronic means to obtain basic information about who is traveling to the U.S. without a visa,” said Homeland Security Secretary Michael Chertoff.

Once ESTA is mandatory, all nationals or citizens of VWP countries who plan to travel to the United States under the VWP will need to receive an electronic travel authorization prior to boarding a U.S.-bound airplane or cruise ship. The requirement will go into effect January 2009.

June 5, 2008

PERM Business Necessity Audits

by Kellie N. Lego

The employment based permanent residency or “green card” process is a three step process. The first step in this process is called Labor Certification. As of March 28, 2005 all Labor Certification applications are filed through the online PERM process. The Since April of 2007, immigration attorneys have reported a significant increase in the number of PERM audit notifications issued by the US Department of Labor (DOL).

PERM audits are either randomly issued or are triggered by mechanisms installed in the PERM program by the DOL. In order for an employer to file a successful labor certification application, a U.S. employer must establish that no U.S. workers (either U.S. citizens or permanent residents) were available for the position. The DOL requires U.S. employers to conduct a recruitment campaign prior to filing a PERM based labor certification application. If the DOL deems the U.S. employer’s job requirements to be excessively restrictive to U.S. workers, an audit request is issued. In most instances, an audit will be triggered if an employer’s job requirements do not comply with the Department of Labor’s specific vocational preparation (SVP) guidelines as set forth in the O*NET. For example, if the DOL has set a SVP of “7< 8" for the software engineer position. According to the DOL's SVP guidelines, the maximum vocational preparation for this position is 4 years. The DOL equates a bachelor's degree to 2 years of vocational preparation and a master's degree to 4 years of vocational preparation. Therefore, if an employer's requirements for a software engineer exceed either a bachelors degree in the field and 2 years of experience or a masters degree in the field an 0 years of experience, the requirements would be considered excessive by the DOL.

The majority of the recent PERM audits are a direct result of employer's exceeding the DOL's SVP requirements. Most of these audits require employers to establish "business necessity" for the job requirements exceeding the SVP. In accordance with Matter of Information Industries, 88-INA-92 (BALCA Feb. 9, 1989) and 20 CFR § 656.17(h), "To establish a business necessity, an employer must demonstrate the duties and requirements bear a reasonable relationship to the occupation in the context of the employer's business and are essential to perform the job in a reasonable manner." Therefore, when responding to business necessity related audit requests, the employer must provide the DOL with evidence that proves that the employer's requirements bear a reasonable relationship to the occupation and are essential to perform the job in a reasonable manner. The employer could include evidence of its past hiring practices and describe its operations in detail to justify that the requirements are needed to perform the duties of the position to fulfill the employer's business needs.

June 4, 2008

FY2009 H1B Cap Filing Update

by Kellie N. Lego

U.S. Citizenship and Immigration Services (USCIS) announced on April 10, 2008 nearly 163,000 H-1B petitions received during the filing period on April 1 to April 7, 2008. More than 31,200 of those petitions were for the advanced degree exemption. On April 14, 2008 USCIS conducted the computer-generated random selection processes on H-1B petitions to select which H-1B petitions for fiscal year 2009 (FY 2009) would continue to full adjudication.

USCIS conducted random selections, first on petitions qualifying for the 20,000 “U.S. master’s or higher degree” (advanced degree) exemption, and second on the remaining advance degree petitions together with the general H-1B pool of petitions, for the 65,000 cap. Petitioners whose properly filed petitions have been selected should receive a receipt notice dated no later than June 2, 2008. USCIS will return unselected petitions with the fee(s) to petitioners or their authorized representatives, unless found to be a duplicate. The total adjudication process is expected to take approximately eight to ten weeks.

USCIS has “wait-listed” some H-1B petitions, they may possibly replace petitions chosen to receive an FY-2009 cap number, but that subsequently are denied, withdrawn, or otherwise found ineligible. USCIS will retain these petitions until a decision is made whether they will replace a previously selected petition. USCIS will send a letter to the wait list petitioners to inform them of their status.

May 31, 2008

Alternatives to the H-1B Visa for individuals who did not make the H-1B Quota

by Kellie N. Lego

Now that the H-1B lottery has been held and all of the new H-1B visas for the 2008 fiscal year have been allocated, what options do employers who are looking to hire foreign national professionals have? Here are some creative solutions to this problem:

H-3 Visa

The H-3 Visa is not an alternate visa option for anyone who would be eligible for an H-1B visa. However, it is an alternative option for individuals who would benefit from a training program. This category does not apply to physicians.

May 30, 2008

H-1B Petitions: When Should You as the Employer Amend or Terminate Them?

by Kellie N. Lego

H-1B petitions filed on behalf of employees are generally filed for a specific job that has specific job duties. When there is a material change in the terms of an H-1B beneficiary’s employment, the petitioning employer is legally required to file a new H-1B petition or amend the original petition.

What is a material change?

A material change is a change to the H-1B beneficiary’s job that substantially changes the terms and conditions of the H-1B employee’s job. The following are examples of material changes to a job for H-1B purposes:

May 29, 2008

H-1B Visa: An Option for Owners and Managers of U.S. Businesses

by Kellie N. Lego

Although the H-1B Visa is not usually thought of as an option for an investor/entrepreneur, it may be utilized by some of these foreign business entrepreneurs. Foreign investment in U.S. businesses creates economic benefits beyond merely a visa benefit for the foreign investor. The Small Business Administration (SBA) estimates that 99 percent of the firms in the United States are small businesses, and small firms have generated 60 to 80 percent of the net new jobs annually over the past decade. It is estimated that these small businesses employ 41 percent of the United States’ high-tech work force. These days, immigrants have an ever increasing role in the creation of these small businesses. For instance, in the 1990’s, Immigrant-operated companies accounted for $19.5 billion in sales and 72,839. Twenty-nine percent of these companies were in the technology sector.

Prohibition on Self-petitioning

For H-1B purposes, the United States Citizenship and Immigrations Service’s (USCIS) regulations define a U.S. employer as a “person, firm, corporation, contractor, or other association, or organization in the United States which: