#1: 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, information technology, 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, classified ads for the position, and educational information pertaining to existing or previous employees in the same position, 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 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 your PERM labor certification and green-card case.

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 and work with an immigration attorney that is well versed in handling H-1Bs as well as PERM labor certifications.

#2:  Plan Ahead and File Early

When should I start my case? Immigration Solutions accepts H-1B cap-subject cases well in advance of April 1st 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.  We advise employers to assess their hiring needs for FY 2012 and contact their immigration attorney to discuss timing issues.

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, consulting with an attorney that has a depth of experience with H-1Bs with 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 supporting documentation.  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, particularly when working with IT and healthcare consultants and staffing agencies that have 3^rd party jobsite issues.

In summary, the demand for H-1B visas, although not as high in this economy, have tougher documentation standards and Department of Labor delays sometimes for several weeks with employer EIN# verification issues. By understanding the issues involved in the H-1B process, one can take a proactive approach to assure that the needs of all parties are addressed early.

#3:  When the Occupation Requires a License

USCIS’ approval of an H-1B petition that requires a license, is not authorization for the employee to practice his or her profession without the required license. This is particularly prevalent when processing H-1Bs for teachers and healthcare professionals.  USCIS regulation provides that if an occupation requires a state or local license to fully perform the duties of the occupation, the foreign worker must have the license prior to the approval of the petition.

This can be a Catch 22….Some states will not issue a state license unless the individual worker presents evidence to the State Board that they are legally authorized to be employed in the USA. Some State Boards require the worker to establish to the State Board that they have been granted H-1B status as a prerequisite to issuing the license. For example, certain State Boards of Pharmacy will not issue a pharmacist license until the worker presents evidence of work authorization. Teachers and registered nurses have been unable to obtain licensure until they obtain social security numbers which cannot be achieved until one is authorized to work in the USA.

With the above being said, USCIS adjudicators have been instructed to approve H-1B petitions for a one-year period if a State or local license to engage in the profession is required, and the appropriate licensing authority will not provide such license to the worker without evidence that that they have been granted H-1B status. At the end of the one-year period, the employer is required to file another petition with a request for extension and also present evidence at that time that state licensure has been obtained.

As a condition to approving petitions involving state or local licensure, the worker must demonstrate that they have filed an application for the license according to the State or local rules and procedures, provide evidence that they are qualified to receive the license, and that all educational, training experience and other requirements are met, including healthcare certification, at the time of filing the petition. For instance, Physical Therapists must provide a letter or statement signed by an authorized state physical therapy licensing official in the state of intended employment, indicating that the PT is qualified to take the state’s written licensing examination for physical therapists and thereafter obtain state licensure.

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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 at info@immigrationsolution.net | telephone 562 612.3996 to set up a consutation.

At the American Immigration Lawyers Association (AILA) 09/2010 Stakeholder Conference, the Vermont Service Center (VSC) advised that if compliance issues arose during the previous H-1B approval period, VSC could request evidence of all work performed during the previous H-1B approval period on requests for extension cases. VSC also confirmed that they are issuing one-year approvals where third-party work assignment is documented for less than one-year.

In light of the increase in RFEs focused on the employer-employee relationship, right to control, and availability of “qualifying employment” at third-party worksites, it is suggested that the following practice pointers be utilized in order to maximize the likelihood of securing a three-year H-1B extension for petitions involving placement at third-party worksites:

1. Submit a certified labor condition application (LCA) that lists multiple work locations, including the Petitioner’s home office address, as well as the third-party worksite location(s);
2. Document “qualifying employment” for the Beneficiary at the third-party worksite through End-Client letters confirming a project duration of longer than a year, preferably for the entire three years if the requested validity is three years;
3. End-Client letters should specify the job duties for the Beneficiary at the worksite, duration of the project, supervisor’s name, and supervisor’s telephone number. It is critical to establish that the Beneficiary is an employee of the Petitioner and that the Petitioner retains the ultimate “right to control” the Beneficiary;
4. Provide evidence of “qualifying employment,” such as: contracts, statement of work, work order between Petitioner and End-Client (if there are intermediate vendors involved, offer the entire chain of contracts between the Petitioner and End-Client); and
5. Submit Employee Handbooks as evidence of “Employer-Employee relationship” and “right to control.” Petitioner’s Employee Handbook should include issues such as salary, benefits, payroll procedures, performance evaluations, project progress review procedures, supervision of beneficiary’s work, right to hire/fire, etc. All of the previous stated items for the Petitioner’s Employee Handbook are requirements identified in the January 8, 2010, Neufeld Memo (AILA Doc. No. 10011363).

Immigration Solutions is available to assist you with with your H-1B case filings. Please contact us here

In a November 18th Press Release the Ambassador announced a more convenient visa application processes, effective immediately, and that the  U.S. Embassy in New Delhi and Consulates General in Mumbai, Chennai, Kolkata and Hyderabad will now accept visa applications from across India at all visa facilities, regardless of the applicant’s home address or city of residence. This is part of
Mission India’s ongoing effort to facilitate legitimate travel to the United States.

Following the opening of Consulate General Hyderabad in 2008, the U.S. Mission has looked for ways to best capture
the dynamism of India’s growth across the nation.  As a result, they have  redesigned the consular districts, as follows:

Embassy Delhi: Bihar, Delhi, Haryana, Himachal Pradesh, Jammu and Kashmir, Punjab, Rajasthan, Uttarakhand, Uttar Pradesh, Bhutan;

Consulate Mumbai: Goa, Gujarat, Madhya Pradesh, Maharashtra, Diu and Daman, and Dadra and Nagar Haveli;

Consulate Hyderabad: Andhra Pradesh, Orissa;

Consulate Chennai: Karnataka, Kerala, Puducherry, Lakshadweep, Tamil Nadu, Andaman and Nicobar Islands;

Consulate Kolkata: Arunachal Pradesh, Assam, Chhattisgarh, Jharkhand, Manipur, Meghalaya, Mizoram, Nagaland,
Sikkim, Tripura, West Bengal

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Senate Dems Robert Menendez (NJ) and Patrick Leahy (VT) introduced the CIR Act of 2010 that proposes major  overhaul to the immigration system, making changes in employment and family-based programs with enhancements to I-9 (employment eligibility verification) employer obligations.  Most feel that this will not be the avenue by which CIR is accomplished, but that many of its ideas, including those int the CIR ASAP Bill that was introduced by Luis Gutierrez (D/IL) and the REPAIR proposal introduced by Senators Schumer (D-NY) and Lindsey Graham (R-SC) earlier this year, will all be considered when Congress decides to get serious about tackling immigration reform and actually start debating the issues.

The Bill does propose the creation of an Immigration Commission that would have authority to recommend yearly NIV and IV numerical limits.

The Bill proposes changes to the H-1B program by requiring employers to post the job opening on a new DOL website.  Employer with 50 or more employees would be prohibited from petitioning for additional H-1B workers if their workforce was comprised of more than 50% H-1B and L-1 workers, excluding those who are the beneficiaries of a pending or approved labor certification or employer-based immigrant petition.  Additionally, employers would be prohibited from placing H-1B workers at a 3rd party site, unless the worker was primarily supervised and controlled by the petitioner/employer.

DOL would be charged with additional authority to review LCA’s for fraud or misrepresentation and would have up to 14 days to certify an LCA (makes one wonder if we’d ever get a case out the door!)  with additional authority to investigate complaints against H-1B employers and to conduct employer H-1B compliance audits.  This is yet another reminder to employers to make sure that their Public Access Files are in order and that they are working with immigration attorneys who provide them with PAF files and overall compliance guidance and training.

Proposed changes to the L-1 Program would include requiring employers to offer L-1 employees insurance and other benefits on the same basis as that offered to US workers.  Increasing restrictions would be imposed on “new office” L-1 petitions and would require DHS to submit a report to Congress on L-1Blanket use.  On the positive side, the bill wold provide some relief for small employers seeking L-1A status for foreign nationals.  It would forbid adjudicators from using the small size of an L-1 employer as a negative factor in executive or managerial eligibility for L-1A status, but would increase DHS authority to investigate complaints against L-1 employers and impose new penalties upon employers who violate L-1 regs.

*** (Relief for Registered Nurses) *** — The Bill proposes to create a new H-2C temporary, nonimmigrant visa for occupations for which there is a shortage of American labor.  The initial H-2C visa would be valid for three years and renewed for three more years. With some exceptions, an H-2C visa could be revoked if the visa holder has been unemployed for more than 60 days.  After 4 years, an H-2C non-immigrant may file an application for adjustment of status, provided that he/she has been continuously employed, establishes progress toward civics and English proficiency, meets all criminal and other background checks and pays additional fines and fees.

There is a proposal to include a new H-1C program for lesser-skilled workers with job offers from US employers, and the creation of a premium processing program for administrative appeals of employment-based immigrant petition denials.

Relief for Undocumented Immigrants: Creates a provisional legal status, Lawful Prospective Immigrant (LPI), for undocumented immigrants who are present in the U.S. as of September 30, 2010, register with the government, have never committed a serious crime, and are otherwise admissible to the United States.  LPI status will be initially valid for four years, with the possibility of extensions.  LPI status confers work and travel authorization.  After six years in LPI/LPID status, an applicant may apply to become a lawful permanent resident, provided he or she continues to meet all eligibility requirements, including renewed biometrics and background and security checks, and also establishes basic citizenship and English skills, payment of all taxes, and compliance with Selective Service registration.

Employment-based Immigrant Petitions: The bill would recapture unused employment and family-based visa numbers from 1992 to 2007, and implement for future years  that unusued immigrant visa numbers roll over each fiscal year including the base amount of 140,000 –  plus numbers from 1992-2007 – and any unusued numbers from the previous year.  Those with approved visa petitions who are subject to wait times would be eligible to apply for AOS upon payment of an additional $500 filing fee and would be entitled to 3-year EADs and travel documents.  Those with pending immigrant visa petitions would be eligible to apply for AOS at the discretion of DHS.

We link to a complete summary of the CIR Reform Act from Immigration Policy Center.

Immigration Solutions will continue to update and report on any and all CIR issues as they arise.

The day following President Obama signing Public Law 111-230, the fee increase on H-1B and L-1 visas became effective (August 14, 2010) through September 30, 2014.

What exactly is this law and what does it stipulate? It requires the submission of an additional fee of $2,000 for certain H-1B petitions and $2,250 for certain L-1A and L-1B petitions postmarked on or after August 14, 2010.  We were surprised that this announcement  which our office just saw posted today, is retroactive and being implemented before USCIS revises the I-129 Petition.  The fees apply to initial H-1B or L-1 employment – change of status and change of employer cases, in the same instances that require the Fraud Prevention Fee.  It is not required if an employer is filing to extend an H-1B or L-1 employee’s status.

What employers are subject to the new fee increase? The fee increase apply to employers who employ 50 or more employees in the USA with more than 50% of its employees in the USAS in H-1B or L (including L-1A, L-1B and L-2) nonimmigrant status. Petitioners meeting these criteria must submit the fee with an H-1B or L-1 petition filed.  It is noted that L-2 dependents of L-1 employees, are eligible for employment authorization documetns (EADs).  The USCIS recognized the difficulty for employers in adding such individuals into the count, but concluded that it is required under the law.  We are interpreting that this means that an employer who hires an L-2 dependent that has work authorization will be required to pay an additional fee of $2,250 to continue to employ them where an EAD is required for authorized employment.

USCIS will issue RFE’s: According to the August 19, 2010 public teleconference that USCIS held, cases filed without the new fee will not be rejected.  USCIS will issue Requests for Evidence (RFEs) on the cases that the new fee appears to be required.  Where USCIS does not any notation or attached evidence with the initial filing, it may issue an RFE to determine whether the petition is covered by the  Public Law. An RFE may be required even if such evidence is submitted, they advise, if questions arise.

Recommendations: USCIS encourages employers to include the additional fee as a separate check rather than adding this amount to the other filing fee checks, making it easy to simply return a check rather than reject an entire case filing for an incorrect filing fee.  Until such time as the form is revised, it has been recommended that the petitioner include a notation of whether the fee is required in bold capital letters at the top of the cover letter and, if it is required, pertinent documentation.

Issues: There are questions pertaining to L-1 petitions under the L-1 blanket program and how to work this out abroad at the US Consulates.  We will continue to keep you informed on this issue.

An interesting sidebar that came to light yesterday on the fee increase had to do with the fact that since it is common knowledge that the law targets Indian staffing agencies and consulting companies as well as medium to large IT employers, that it is probably a violation of the General Agreement on Trade and Services, an agreement that is vital to ensuring US companies are able to employ many of the 6,000,000 Americans working around the world.

Further, reported by Computerworld, the Department of State revealed this week that the U.S. is reviewing whether a law that increases some visa fees is compliant with World Trade Organization (WTO) rules and are also talking to Indian officials about the law and its implications.  India’s Commerce Secretary Rahul Khullar told reporters in Delhi on Tuesday that the visa fee hike is incompatible with the WTO.

We encourage you to sign up to receive our free information and join our worldwide readership.

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Immigration Solutions provides US and global visa services to individuals and employers throughout the USA and abroad.  We specialize in business immigration and have a depth of experience in the IT, healthcare, arts, entertainment, and sports industries, amongst others.  Our services include complex business visas for investors, multinational managers, skilled professionals and outstanding individuals in science, business, education, athletics and entertainment.  We additionally provide employer compliance consulting services on proper I-9 (Employment Eligibility Verification) auditing, training, and work with our clients to develop compliant immigration policies and procedures.  We offer these services, as well, to government contractors and advise on FAR E-Verify enrollment and compliance issues.

As reported by the Legal Action Center (AILA).  Broadgate et al. v. USCIS et al., No. 1:10cv00941 (D.C.D. filed June 8, 2010)

Three employers (software developers and IT services firms) and two not-for-profit trade associations are challenging the Neufeld memo in federal district court. The plaintiffs allege that USCIS issued the memo in violation of the Administrative Procedure Act’s notice and comment requirements; that USCIS failed to perform a Regulatory Flexibility Act analysis; that the memo is inconsistent with existing regulations addressing the employee-employer relationship and the term “contractor” and conflicts with the plain language of the INA; and that it is arbitrary and capricious. Plaintiffs ask the court to preliminarily and permanently enjoin USCIS from implementing the memo.

AILA sent a detailed letter to USCIS Chief Council, Roxana Bacon, in which it expressed concern about the substance of the January 8, 2010 H-1B memo and noted that its issuance was in violation of the Administrative Procedures Act’s notice and comment requirements. The letter primarily focuses on recent USCIS decisions that unlawfully find that individuals with controlling or substantial interests in a petitioning U.S. company or its foreign parent company cannot — in most cases — be a beneficiary of a nonimmigrant or immigrant employment-based petition.

We will continue to keep you posted on this topic.

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USCIS Proposes Fee Increase

USCIS has published a Proposed Rule in the Federal Register to increase immigration fees.  The cost of applying for a green card will increase from $930 to $985.  The application fee for a family petition (I-130) will be $420, up from $355.  The cost of an I-140 employment-based petition will rise over $100 and premium processing fees will increase by 22.5%.  The application for employment authorization would increase to $380 from $340. A separate fee for fingerprints and other biometrics with many applications would increase to $85 from $80.  Among several new fees, officials said, will be a $6,230 charge for foreigners proposing to invest $500,000 or more in businesses to create jobs in the United States.

The NY Times reports that Alejandro Mayorkas, director of  USCIS, said the fee increase was necessary because declining applications for documents in the past two years had lowered revenues and left his agency — which is 90% financed by fees — with a budget shortfall of about $200 million for the coming fiscal year.

The increases come as Congress has put off immigration legislation and an Arizona law that makes it a state crime to be in the country illegally goes into effect July 29.

The timing makes Clarissa Martinez wonder what message the fee increases sends to immigrants trying to take a legal path into the country.  “It begs the question of Congress: If we want these people to take these steps, we have to make sure that we’re not pricing them out of their reach,” said Martinez, director of immigration and national campaigns for the National Council of La Raza, a Hispanic civil rights group.

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