When should I start my case?

Immigration Solutions accepts H-1B cap-subject cases well in advance to avoid the rush that normally occurs when employers become aware of cap deadlines and when foreign workers obtain job offers that require cap subject visa numbers.  Bottom line, cap-subject cases should be started ASAP.

How long does it take to prepare an H-1B Case?

We do not recommend waiting until the last minute because of the various government agencies that are involved in the process.  With good front-end case strategy, our attorneys’ depth of experience and a streamlined case process, the many steps involved in preparing an H-1B, requiring the cooperation of all parties, can go very smooth and an approvable petition can be filed with all necessary documents.  An approval requires that a case be prepared correctly from the start.  It is often not possible to reverse strategy after the case is filed. Planning ahead is crucial to flush out any issues that need to be overcome.

In summary, the demand for H-1B visas, although not as high in this economy, have tougher documentation standards and Department of Labor delays with new LCA software.  By understanding the issues involved in the H-1B process, Immigration Solutions takes a proactive approach to assure that the needs of their clients are addressed early.

If you are not a client of our firm and would like to discuss H-1Bs as well as any other immigration matters, we invite you to contact us.  My email address is leslie@immigrationsolution.net, telephone is 562 612.3996.  If you’d prefer to request a consultation, you can do so here

The Job Description and Degree Requirement

The job offer and the job description must be for a specialty occupation that requires a minimum of a bachelor’s degree or its foreign equivalent.

What is the definition of a specialty occupation?  A specialty occupation requires the theoretical and practical application of a body of specialized knowledge along with at least a bachelor’s degree or its equivalent. For example, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts are specialty occupations.

Small to medium-size companies are being asked to justify why the position requires someone with a bachelor’s degree and to explain, through various types of evidence including organizational charts, why their business is more unique than other similar businesses in their industry that they would require a candidate with a bachelor’s degree in a particular position.

Bachelor’s Degree equivalency can be attained through a single-source foreign degree that meets US standards, a combination of a degree and work experience, or a work experience alone equivalency that meets the “3 for 1” rule; namely, that 3 years of work experience is equivalent to 1 year of university level education (this requires an expert credential evaluation by a service that is authorized to evaluate work experience).  Note: Bear in mind that if you have a skilled immigration professional that has a strategy in place for your green-card sponsorship (permanent residency), it is essential that your degree and its equivalency be carefully reviewed so that it will be compatible with the classification under which you will be filing.

USCIS now requires very detailed job descriptions that contain the position summary, duties and responsibilities, as well as the percentage of time spent on each job duty.  It is hard to imagine that a job description with a 15-bullet point list of duties and a full page in length is insufficient, but when you work with a skilled immigration practitioner, this can be successfully argued against the O*NET and the OOH which is the primary source of job information for USCIS and the Department of Labor.

In summary: Employers need to be prepared with complete job descriptions for their H-1B prospective employees and document the need for a degreed professional thoroughly in their casework.

If you are not a client of Immigration Solutions, we are available to discuss your H-1B filing needs.  Feel free to contact us.

In a Federal Register Notice last week, the Department of State (DOS) announced an increase in their fee structure for non-immigrant and immigrant visa case processing at US Consulates and Embassies.

The fee being proposed for Immigrant Visas for both family and employment-based cases would be based on a new 4-tier fee structure.  Presently, both pay $355 plus an MRV (machine readable visa) fee of $45 (total $400).  They are proposing a lower fee for family-based immigrant visas ($330 + $45) and a much higher fee for employment-based immigrant visas $720 + $45.  There will be another fee tier for self-petitioned cases and humanitarian cases.

The Affidavit of Support review fee is proposed to go from $70 to $88 for family-based cases.

There appears to not be a fee increase at this time for non-immigrant visa applications which are currently $131 USD.

The filing period for new H-1B visas under the cap opens soon, on April 1st.    So, now is the time for you to organize and plan to get the most from the new filing period.  You might wish to access a recent audio conference we had on the topic where we also address the tougher standards and document requirements and the new regulations around the employer-employee relationship.  Below is a brief review of what the employer needs to do to prepare:

1)  Plan and identify the workers subject to the cap:  The applicants that fall into this category are applicants for new H-1B visas that will most likely be either: (a) new hires or current employees with non-immigrant status that will NOT permit them to work continuously through October 1, 2010.  These would be F-1 students on OPT, J-1 exchange visitors and H-3 trainees; (b) candidates who are outside the USA and have not been counted against the cap; (c) Employees you wish to maintain on a permanent basis who might require a change of status as a necessary means to your long-term business strategy of sponsoring them for their green-cards (L-1Bs, L-1A managers who do not qualify for EB-1C multinational manager green-cards and TNs).

2)  Delays due to LCA Issues:  Utilizing the new iCERT system that still has many quirks, can delay filings up to 7-14 days, with erroneous and improper denials based upon their inability to verify the employer’s EIN#.  Given that LCA’s can be processed up to 6 months in advance for a cap case with a start date of 10/1/2010, with proper planning – these delays can be avoided.

On October 1st of every year, 85,000 new H-1B visas become available, with 20,000 of them set aside for advanced degree graduates of colleges and universities in the USA.  The “cap” quota only applies to filings for new employment.  H-1B extensions and transfers to a new US employer are not subject to the annual cap.

Employees of institutions of higher education and certain non-profit or government research organizations are exempt from the cap.  Please remember to discuss this category with your immigration attorney because it can be tricky.

Please do not hesitate to contact Immigration Solutions with any questions or concerns you might have.  We are available to handle your casework or, if you process your own H-1B cases, to consult with you and review your casework for approvable USCIS filing.

Customs and Border Protection (CBP) last week provided AILA (the American Immigration Lawyers Association) with information regarding enforcement issues at Newark Airport.  The CBP have been assisting ICE with an investigation of certain H-1B non-immigrants and particular employers who hire H-1B workers.  This created events where H-1B visa holders were detained as a result of  employers being under investigation by ICE.

This incident has been a strong reminder that non-immigrants in work-related status such as H-1B, L-1, E and O-1 classification should be prepared for the potential of additional scrutiny when entering the United States after travel abroad.  CBP will question arriving non-immigrants about their employer, and may request documentation to prove that the nonimmigrant is still employed according to the petition that was filed on their behalf.

The above-mentioned incident where CBP engaged in more extensive questioning, has caused many H-1B visa holders and their employers to have concern about documentation that their employees will need to re-enter the USA following foreign travel.

CBP does have the authority to inquire about these issues, however, recent events indicate that their line of questioning may become more extensive and may result in more situations where arriving employees will be put in secondary inspection.  Secondary Inspection is where CBP officers wish to question the alien concerning their intent in the USA and conduct a more thorough interview and review any additional documentation that the individual may have brought with them, as well as information on electronic devices (cellphones and laptops).  They may even conduct Internet searches on the individual and the employer.  Therefore, employees entering the USA in H-1B classification or other employment based visas should be prepared for the possibility of additional scrutiny, and for the possibility of secondary inspection, regardless of where and when they enter – be it an airport or a land border.

We highly recommend that entering non-immigrants bring the following additional information with them in the event they are asked to produce evidence of their employment:

1)      Copies of 2 recent paycheck vouchers

2)      A copy of the USCIS petition that their status is based upon

3)      Current/Original I-797 approval notice

4)      A current letter of employment verification from a company officer or HR professional confirming job title and dates of employment  on business letterhead – is an excellent idea, as well.

We have heard recent reports that employers may also be contacted by CBP to confirm information related to the employment relationship and job duties.

We will provide updates to you on this issue and intend to monitor it very closely.  If you or your employees have encountered any additional scrutiny and would like to relay your experiences, please contact Immigration Solutions.

Yes – it’s the season to start preparing H-1B “cap” filings again for Fiscal Year 2011.

The USCIS FY starts on October 1st each year. Thus, fiscal year 2011 starts on October 1, 2010 and runs through September 30, 2011.  Regulations permit cap subject filings 6 months in advance of the October start date for cases to be received at USCIS on April 1, 2010.

The following are suggestions to help you for the upcoming cap season.  Our suggestions are based on existing law, as well as USCIS guidance and our experience from prior years.

USCIS frequently issues updated guidance with slight procedural variations for each fiscal year. For example, the LCA process changed in July – note it is taking sometimes up to 7 days to obtain an approval.  In case of a denial such as problems with verifying an employer’s EIN# which is quite common unfortunately, obtaining an LCA may take even longer.

Immigration Solutions is accepting H-1B cases for FY2011 at this time.  We have a team of experienced attorneys, case managers and paralegals in our business unit who are currently working on new H-1B cap-subject cases.  The cases will be prepared in advance and will be transmitted for delivery on March 31, 2010, for USCIS filing on April 1^st.  In order to file, it is necessary to have an appropriate job offer from a U.S. employer who is willing to sponsor the H-1B case.

The USCIS has increased scrutiny on all H-1B cases and imposed tougher standards, particularly those filed in the IT consulting industry and for software companies. These new standards also affect healthcare staffing agencies that place workers at 3^rd party jobsites.   The standards for approval have become more stringent. It is necessary to recognize this trend when preparing new H-1B cap cases for filing.  For this reason, we recommend that you work with an experienced law firm that specializes in employment-based immigration. Click here to contact us for your new H-1B case now.

NOTE:  Immigration Solutions is sponsoring a free teleconference on February 10^th that will address the tougher standards in the H-1B category.  For more on this and to RSVP, we link to our blog

Here is a list published by ComputerWorld of the employers who received approval from the U.S. Citizenship and Immigration Services (USCIS) for new H-1B visas in federal fiscal year 2009.

Any comments?

Details

When: Wednesday, February 10, 2010
Time: 11:00 a.m. – 12 noon PST
Click Here to view time conversion for your area

RSVP: info@immigrationsolution.net

Reserve your space now | This will be a most informative teleconference that you will not want to miss.

Our Agenda will be as follows:

• How to prepare for H-1B quota issues
• Tougher standards (difficult RFEs)
• We will review the new 19-page USCIS Memo regarding employer-employee relationships
• Critical new information for Healthcare and IT staffing agencies
• New Documentation Requirements
• Comprehensive Immigration Reform and expectations for 2010
• Open Q&A

In this conference, we will convey critical and comprehensive information to our clients and readership which we are making public and are offering at no charge.

In the last year, signs have been in place concerning greater enforcement and over-burdensome Requests For Evidence (RFE’s) by USCIS, including site visits by 4 federal agencies (USCIS, DHS, FDNS and DOL).  Higher standards are being imposed with each filing season for all employers who file H-1B petitions for degreed professionals.

We are seeing that this is not just taking place with H-1B initial filings, but with extensions, L visas and we have even heard of site visits to employers who filed O-1 petitions.

Our Featured Speaker: Thomas Joy, Supervising Attorney | Immigration Solutions

Immigration Solutions’ supervising attorney, Thomas Joy, will moderate this conference.  Mr. Joy has over 25 years’ practicing immigration law with some of the leading firms in the nation.  Mr. Joy has been interviewed on television regarding current immigration issues, has published articles on various current immigration concerns, and has conducted seminars for corporations, law firms and professional organizations, both in and outside of the USA. He travels throughout the USA and the world representing clients at USCIS offices and US embassies and consulates. In addition, he advises and accompanies employers and recruiters on international recruitment drives who seek the top candidates in the IT and healthcare industries.

About Us

Immigration Solutions continues to be at the cutting edge of developments in business immigration. We are dedicated to providing our clients with the solutions required today to circumvent the complexities of immigration law. We understand the challenges that you deal with on a daily basis and design practical and strategic business models to answer your needs. This focused approach produces win-win results for everyone!

If you are not yet a client of Immigration Solutions, we would be pleased to speak further with you concerning your needs, our services & solutions, and our newly developed corporate rates.

3rd in a Series: Nurse Practitioners

While working on this series, USCIS notified that the H-1B cap was met on December 21, 2009 for fiscal year 2010.  USCIS will reject cap-subject petitions for new H-1B specialty occupation workers seeking an employment start date in FY 2010 that arrive after Dec. 21, 2009.

USCIS will apply a computer-generated random selection process to all petitions that are subject to the cap and were received on Dec. 21, 2009 and will use this process to select petitions needed to meet the cap.  USCIS will reject, and return the fee, for all cap-subject petitions not randomly selected.

Petitions filed on behalf of current H-1B workers who have been counted previously against the cap will not be counted towards the congressionally mandated FY 2010 H-1B cap. Therefore, USCIS will continue to process petitions filed for:

1)     Extensions of H-1B’s for the same employer

2)     Changes of employer from one H-1B employer to another

3)     Petitions amending a material change in employment (such as a change in jobsite location)

4)     H-1B employer petitions seeking concurrent H-1B employment; and

5)     Petitions filed by exempt employers. Exempt employers are non-profit organizations that are affiliated with institutions of higher education, nonprofit  research organizations or governmental research organizations.

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What Nurse Positions Qualify and meet the Requisite Requirements for H-1Bs?

Category 1:  The first category of nurses who generally will be approved is the certified advanced practice registered nurse (APRN) category that includes:

·        Clinical nurse specialists (CNS’)
·        Certified registered nurse anesthetist (CRNAs)
·        Certified nurse-midwives (CNMs)
·        Certified nurse practitioners (Nurse Practitioners fall within this   category

Category 2: The second category of nurses who may qualify for the H-1B are those in administrative positions requiring graduate degrees in fields such as nursing or health administration.

Category 3: A final, more subjective group that may receive H-1B approval includes those who have a nursing specialty such as critical care and peri-operative nurses, or who have passed examinations based on clinical experience in school health, occupational health, rehabilitation nursing, emergency room nursing, critical care, operating room, oncology, and pediatrics, ICU, dialysis and cardiology.

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At an American Academy of Nursing news briefing earlier this year on nurse-managed care and health solutions for our ailing healthcare system, former Health and Human Services Secretary Donna Shalala and others sent a coherent message:

Nurse practitioners (NPs) have developed an infrastructure of health centers and convenient care clinics (such as Minute Clinics) that can help our nation reform a health care delivery system that is currently unable to meet the primary health care needs of its people.  Shalala noted,“NPs are going to be key to health care reform and must be at the health care reform tables. Nurses are part of the solution.  It’s a solution in plain sight.”

Nurse Practitioners (NPs) have provided health-care services to patients for more than 40 years. The nurse practitioner role had its inception in the mid-1960s at the same time that Medicare was introduced, which dramatically increased the need for primary-care providers. In addition to providing many of the same services less expensively such as primary and some acute care, they are qualified to meet the majority of patients’ health-care needs. They promote a comprehensive approach to health care and emphasize the overall health and wellness of their patients.

NPs offer something else that makes them darlings to health reformers: a focus on patient-centered care and preventive medicine. “We seem to be health care’s best-kept secret,” says Jan Towers, health-policy director for the Academy of Nurse Practitioners. Nurse practitioners may have less medical education than full-fledged doctors, but they have far more training in less measurable skills like bedside manner and counseling.

NPs are registered nurses (RNs) who are prepared, through advanced education and clinical training and are granted either a certificate or a master’s degree that is most common today –  this is why they qualify for H-1Bs.

NPs work independently and collaboratively on the health-care team.  Some healthcare analysts and experts see nurse practitioners and Physician Assistants (PAs) as the answer to the growing physician shortage, particularly in primary care.

A TIME Magazine article published this year concerning nurse practitioners indicated that they would perform a key role in healthcare reform:  “Even without reform, experts on the health-care labor force estimate there is currently a 30% shortage in the ranks of primary-care physicians. Fewer than 10% of the 2008 graduating class of medical students opted for a career in primary care, with the rest choosing more lucrative specialties.  That could pose problems if a national health-care bill is enacted.”

After Massachusetts enacted mandates for universal health insurance in 2006, those with new coverage quickly overwhelmed the state’s supply of primary-care doctors, driving up the time patients must wait to get routine appointments. It stands to reason that primary-care doctors could be similarly overwhelmed on a national scale.

Depending on the state in which they practice, nurse practitioners, with advanced training can often treat patients and diagnose ailments as well as prescribe medication. And they can do these things at a lower cost than doctors.  Medicare, for example, reimburses nurse practitioners 85% of what is paid to doctors for the same services.

The new HHS Secretary Kathleen Sebelius recently said that “to make health reform a reality, we need nurses at the forefront of the effort.” Let us continue to hope that the Obama administration take the abundant opportunities that already exist to make such statements more than just rhetoric.

The Library of Congress’ Thomas database has a hyperlinked version of the new CIR SAP Bill that is better to use if you’re just trying to focus on any one section.  The important sections for Healthcare Immigration are Chapter I, Title III.

Sec. 301 – Recaptures past unused visa numbers
Sec. 302 – Exempts LPR dependents from the IV quotas.
Sec. 303 – Slightly increases the per country quotas.
Sec. 320 – Provides IV cap exemptions for certain STEM and shortage occupations
Sec. 321 – Allows those with pending IVs to file Adjustment of Status even if their priority date is not current.

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For your future reference here is a link to the O*NET for nurse positions that would quality for H-1Bs.  The O*NET is the Occupation Information Network sponsored by the Department of Labor and was released to replace the Dictionary of Occupational Titles.

If you missed our first 2 articles in this series, you can view them here:

Advanced Practice Nurses

Clinical Nurse Specialists

Again, remember — for citizens of Canada and Mexico, the TN classification is available under NAFTA as an alternative to the H-1B visa for RNs and other professions listed on the NAFTA List of Occupations.

Read more:

Time Magazine:  “If Healthcare Reform Passes, Nurse Practitioners Could be Key”

NurseZone:  Spotlight on Nurse Practitioners

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What can Immigration Solutions do for you?

We can consult with you to determine that the nature of the position and the beneficiary’s background are appropriate for an H-1B or any other nonimmigrant visa classification, and suggest alternatives if the initial proposal is not a viable option. We can advise both the employer and prospective employee regarding documentation requirements and legal issues – and successfully file your case with USCIS.  You can contact our office by email – or phone 562 612.3996.