USCIS has updated the cap count and it’s very close to being met with approximately 1300 cap numbers remaining.

The latest count shows 56,900 cap cases have been filed.  Out of the 65,000 available cap numbers, 6,800 are set aside under trade agreements, and only 1,300 numbers remain as of this count.  The advanced degree category has been met.  USCIS continues to accept cases at this time until the cap is reached.

As a reminder – Here are the types of employees that may qualify for an H-1B visa:

1. International students working on an EAD card under an OPT or CPT program following the  attendance    of a US school
2. International employees working on a TN that may need to change their status to H-1B in order to pursue a green-card case
3. International employees in other visa classifications (H-4, L-2, F-1, J-1)
4. Possible international employees presently living abroad

We link to the recent announcement

[Courtesy of Tracker Corp]    On November 19, 2009, DHS announced issuance of 1,000 additional I-9 Audit notices to employers across the country, focusing in particular on those providing critical infrastructure and other key resources. This is on top of the 654 I-9 audit notices issued earlier this year. Speaking at a workforce symposium in Washington, DC, Assistant Secretary John Morton (of Immigration and Customs Enforcement [ICE]) reiterated the agency’s commitment to creating a culture of voluntary compliance through aggressive investigations and outreach programs. Assistant Secretary Morton also provided recent statistics, showing the increased level of investigations and fines:

DHS also released statistics from the 654 notices sent in July 2009. The ICE agents identified roughly 14,000 suspect documents, assessed over $2 million in fines, and issued warnings to 326 employers.

We link to the press release announcing these findings.  We link to more details on the locations of the 1,000 companies in the latest round of audits

Cite as “AILA InfoNet Doc. No. 09112060 (posted Nov. 20, 2009)”

As the clock is ticking on the H-1B quota, USCIS informed there are more than 9,000 H-1B numbers still available, but remember that 6,800 of these numbers are reserved for citizens of Chile and Singapore under the Free Trade Agreements that the USA has with these countries. The real amount of remaining H-1B numbers is only about 2,600. The H-1B cap could be reached early in December.

Our phone has been ringing off the hook with last minute questions and requests for expedited handling. Our healthcare clients who are eternally waiting for nurses in the retrogression pipeline want to file H-1B cases for desperately needed nurses. They ask, “Why does it seem so complicated – most of our foreign nurses who are onboard, and those we want to hire, already have BSN degrees?”

Registered Nurses are generally not eligible for H-1B visas because all states permit nurses to be licensed with less than a 4 year bachelor’s degree. However, in certain instances, it may be possible to obtain an H-1B visa for a nurse where the petitioning employer can prove the following:

1. A bachelor’s degree or higher degree or its equivalent is normally the minimum requirement for entry into the position;
2. The degree requirement is common to the industry for parallel nursing positions;
3. The employer normally requires a degree or its equivalent for the position; or the nature of the position’s duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s degree or its equivalent.

What Positions Qualify and will meet the Requisite Requirements?

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 (CNSs)
· Certified registered nurse anesthetist (CRNAs)
· Certified nurse-midwives (CNMs)
· Certified nurse practitioners (NPs) fall within this category.

If an APRN position requires the employee to be certified in that practice, the nurse must possess an RN, at least a Bachelor of Science in Nursing, and some additional, graduate-level education. CNSs include Acute Care, Adult, Critical Care, Gerontological, Family, Hospice, Palliative Care, Neonatal, Pediatric, Psychiatric and Mental Health-Adult, Psychiatric and Mental Health-Child, and Women’s Health nurses. NPs include Acute Care, Adult, Family, Gerontological, Pediatric, Psychiatric & Mental Health, Neonatal, and Women’s Health nurses.

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, cardiology – but who are not APRNs.

In the above instances, the employer must show that the nature of the particular position is so specialized and complex that one would normally expect the person performing the duties to have attained a bachelor’s (or higher) degree, or its equivalent.

What is Required of the Employer?

1. The employer must offer a position as a Clinical Nurse Specialist (CNS), Certified Registered Nurse Anesthetist (CRNA), Certified Nurse-Midwife (CNM), or a Certified Nurse Practitioner (APRN-certified) Critical Care and the nurse holds the certification

2. The employer must offer a position working in an administrative position ordinarily associated with a Bachelors Degree, such as Charge Nurse or Nurse Manager or the more subjective group mentioned above in Category 3.

:::::::::::::::::::::::::::::

Remember, for citizens of Canada and Mexico, the TN visa or classification is available under the North American Free Trade Agreement (NAFTA) as an alternative to the H-1B visa for registered nurses and other professions listed in NAFTA.

In all good humor, this is absolutely hysterical, followed by a pretty good interview in re why he left CNN, thoughts on health care reform and more.

Dobbs –who recently left CNN citing a change in “tone” since Obama’s election — revealed his most explicit description yet of the discussions with network execs that led to his exit.

“Jon Klein, president of CNN, told me point blank the network was going to move away from the advocacy journalism that I practice into something that he called middle-of-the-road-journalism,” he said.

Stewart shot back: “He really said ‘we’re moving toward middle of the road journalism,’ a flavorless gruel of journalism?”

Have a listen….

Here’s the story and the video

Reported in Computerworld

USCIS officials are taking H-1B enforcement from the desk to the field with a plan to conduct 25,000 on-site inspections of companies hiring foreign workers over this fiscal year.

The move marks a nearly five-fold increase in inspections over last fiscal year, when the agency conducted 5,191 site visits under a new site inspection program. The new federal fiscal year began Oct. 1.

Tougher enforcement from U.S. Citizenship and Immigration Services comes in response to a study conducted by the agency last year that found fraud and other violations in one-in-five H-1B applications.

In a letter to U.S. Sen. Charles Grassley (R-Iowa), Alejandro Mayorkas, director of the Citizenship and Immigration Services, said the agency began a site visit and verification program in July to check on the validity of H-1B applications. Mayorkas’ letter was released on Tuesday by Grassley.

“The inspection program determines] whether the location of employment actually exists and if a beneficiary is employed at the location specified, performing the duties as described, and paid the salary as identified in the petition,” said Mayorkas in his letter to Grassley.

…As part of its enforcement effort, Mayorkas said the Citizenship and Immigration Services has hired Dunn and Bradstreet Inc., which provides credit reports among other services, to act as “an independent information provider” and help verify information submitted by companies hiring H-1B workers.

Links to other related articles:

ICE Asst. Secretary Announces 1,000 New Workplace Audits

Anger up, Visas Down

Tech workers take H-1B case to supreme court

Share your thoughts with us on this.

As reported by the American Immigration Council, Janet Napolitano delivered her first detailed speech today on immigration reform.  She indicated that the security and enforcement measures that have been undertaken have revealed that “the more work we do, the more it becomes clear that the laws themselves need to be reformed.”

She further commented, “DHS is ready to implement reform”, according to the Secretary who noted,  “We’ve ended a year-long backlog for background checks on applicants for green-cards and naturalization.  We’ve expanded the opportunity for a widow to gain legal status here, despite the untimely death of her US citizen spouse.  We’ve launched a new interactive website that allows people to receive information about the status of their immigration cases by email or text message, and we have reduced the time it takes to process those cases.”

Another positive message she conveyed was: “Businesses must be able to find the workers they need here in America, rather than having to move overseas.  Immigrants need to be able to plan their lives – they need to now that once we reform the laws, we’re going to have a system that works, and that the contours of our immigration laws will last.  And they need to know that they will have as many responsibilities as they do rights…This Administration does not shy away from taking on the big challenges of the 21 Century, challenges that have been ignored too long and hurt our families and businesses.”

An interesting comment by Ben Johnson, Executive Director of the American Immigration Council who attended the speech today noted, “Napolitano’s speech today evidenced a real understanding by the Administration of the comprehensive policy prescriptions necessary to reform a broken system…..Her clear statement on the value of immigrants to our society and economy, and the important role that immigration reform can play in building a foundation for growth and prosperity is a welcome response to the angry, misinformed rhetoric that has otherwise clouded the debate on immigration.”

We link to the video of Secretary Napolitano’s speech

Senators Bernard Sanders (I-VT) and Charles Grassley (R-IA) announced that they will introduce a bill to restrict the ability of employers to hire non-immigrant workers if the employer conducts “mass layoffs” under the Worker Adjustment and Retraining Notification (WARN) Act. The new bill, titled the Employ America Act (EAA), will be introduced in the U.S. Senate soon.

EAA would require employers filing temporary worker petitions to attest that they have not had a “mass layoff” in the 12 months immediately preceding the foreign worker’s proposed hire date and that they do not intend to have a mass layoff in the future. In addition, if an employer does conduct a mass layoff, all existing visas approved in the 12 months before the employer issued a “WARN Notice” would expire 60 days after the notice. Affected foreign nationals would be required to leave the United States within the 60-day period.  We link to the Senate Press Release

The Warn Act defines a massive lay off as:  A reduction in force that will result in employment loss at a single employment site during any 30-day period of (1) at least 500 employees, not including part-time employees; or (2) 50 to 499 employees, excluding part-time employees, if the laid-off employees constitute at least 33% of the employees at the site, also not including part-time employees. For purposes of WARN, an employment loss is (1) an employment termination, other than a discharge for cause, a voluntary departure or retirement; (2) a layoff that exceeds six months; or (3) a reduction in an employee’s work hours of more than 50% in each month of any six-month period. However, certain transfers to other employment sites are not considered to be employment losses.  An employer is not required to issue a WARN Notice if a mass layoff is the result of the completion of a particular project or undertaking, if the workers were hired with the understanding that their employment would be of a temporary duration.

The good news is – with comprehensive immigration reform (CIR) on hold until next year, it is doubtful that this will pass although it still could be introduced in another piece or legislation.

Lou Dobbs stepped down today from the controversial role as an advocacy anchor at CNN at the end of his show, announcing plans to seek a more activist role.

In an e-mail to CNN staff members, Jonathan Klein (CNN President) described the parting as “extremely amicable,” and said Dobbs’ replacement would be announced soon.

Dobbs cited the growth of the middle class, the creation of jobs, health care, immigration policy, the environment, climate change and the U.S. military involvement in Iraq and Afghanistan as “the major issues of our time.”  But, he said, “Each of those issues is, in my opinion, informed by our capacity to demonstrate strong resilience of our now weakened capitalist economy and demonstrate the political will to overcome the lack of true representation in Washington, D.C. I believe these to be profoundly, critically important issues and I will continue to strive to deal honestly and straightforwardly with those issues in the future.”

His no-holds-barred, sometimes acerbic style brought him a loyal following, but also attracted controversy both to him and to the network, especially over the subject of illegal immigrants.

Dobbs will continue as anchor of The Lou Dobbs Show, a daily radio show that began in March 2008 and is distributed to more than 160 stations nationwide by United Stations Radio Networks Inc.

We link to the CNN website post and a video of Dobbs goodbye segment.

This is an extremely informative Q&A session between AILA and  USCIS that addresses the following major  topics:

1)  Excessive documentation requests for L-1 RFEs including L-1Bs involving placements at 3rd party sites

2)  H-1B Cap Exempt employers

3)  Right of Counsel for H-1B Site Visits…..and more

To highlight a few USCIS responses:

1) AILA provided examples to USCIS of explaining its RFE requests by providing examples (rather than endless lists of mandatory documents) of how to respond

2)  Re Counting periods of time abroad for L-1 Eligibility:  USCIS stated,  “Contrary to the AFM, precedent decisions and long practice, USCIS now states that only time in the US in L status, rather than any ‘authorized periods of stay in the US for the foreign employer’, does not interrupt the prior year of employment.

3)  Right to Counsel during the course of audits and site visits & training for Investigative Officers:

a.  “USCIS is in the process of amending several forms (Form I-129 instructions) and receipt notices to advise that USCIS may conduct compliance site inspections at any time pre or post adjusication.  There are currently no plans to provide advance notice of a site inspection conducted under the ASVVP”.

b.  Advance notice is provided by FDNS officers when conducting site visits/administrative inquiries on cases containing elements of suspeced fraud unless the officer believes that advance notice would jeopardize or hamper the site visit.  FDNS officers also provide notice to attorneys of record when conducting site visits under the Benefit Fraud Assessment and Compliance Program.

c.  Are petitioners/beneficiaries informed of their right to call their attorney and have the attorney present before questioning commences?  “Participation in an ASVVP compliance site inspection/any USCIS site visit, is volunary”.

d.  “A petitioner/beneficiary/other persons will be allowed to contact their counsel if they are immediately available (in person or by phone), however, such contact should not unduly delay the process or entail unusual accommodations in which case the site inspection or site visit may be terminated”.

e.  Site visits will not be rescheduled if an attorney cannot be present.  If the employer’s attorney is not available, the Inspector will note this in their report.  The report will be reviewed for follow-up action, if appropriate.

4)  Site Visit Officer Training:  “Training is provided to site inspectors and immigration officers during their basic training after their entry on duty.  The inspectors collect and report information which is then analyzed by immigration officers who do have appropriate immigration law training.”

Other topics in this report covered termination of empoyment authorization documents, I-130 denials that are appealed, Civil Surgeons training and monitoring, etc.   Well worth the read through.

We link to the Q&A document