The H-1B visa category is one of the most used visa classifications by US employers and is available to professionals that will work in a specialty occupation that generally requires a minimum of a bachelor’s degree or its equivalent.

Last year, the number of H-1B visa petitions filed in the first 5 days exceeded the entire H-1B visa allotment.  Hundreds of employers were unable to hire all the foreign-based professional talent that they required, and their petitions went into a lottery pool, left to chance and uncertainty.

Given that we are seeing improvements in the economy, it is anticipated that this filing season will be the most competitive one in many years.  Just to review…There is a limit of 85,000 H-1B visas available each fiscal year, 20,000 of which are reserved for individuals who have graduated with an advanced degree (a master’s or higher degree) from a US college or university that is  accredited by a nationally recognized accrediting agency or association. Pre-accreditation status is also acceptable. Secondly, the school must be a public or other nonprofit institution. If these requirements are not met, the candidate will not qualify for the master’s degree exemption. It is also to be noted that employers stand a stronger chance obtaining advanced degree petition approvals, even if the position being offered only requires a bachelor’s degree or its equivalent.

Our position is that it’s just not too early to start assessing where you’d like to add personnel and to start working with your immigration provider on such important matters as:

1)  Credential evaluations for prospective employees with foreign degrees

2)  Thorough job descriptions indicating the percentage of time spent on core areas of the position

3)  Needed updates to your corporate stats and profile information

4)  Updating intake questionnaires for H-1B employees

5)  For new employers who have previously not filed H-1Bs and are not in the databases accessed by government agencies, be prepared for a request to submit to the Department of Labor iCERT system for Labor Condition Applications (LCA) a copy of your IRS letter confirming your EIN number.  It is also not unusual for them to request your corporate formation documents before they will certify your LCA.  H-1B petitions will be denied if not accompanied by a certified Labor Condition Application.  It might be advisable to file your LCA’s in late January or February even though this will shorten a few months from the 3-year initial approval.

If the prospective employee is a national of Canada, Mexico, Australia, Singapore or Chile you have other options to consider.  Canadian and Mexican professionals qualify for TN status (pursuant to Trade NAFTA).  You can file anytime of the year under this classification; there are no quotas, applicants can apply right at the border, and the 3-year period of stay can be extended indefinitely.  Here is a link to the list of occupations that qualify for TN classification.

Australian nationals are eligible for E-3 status in 2-year increments and can consular process their applications, with unlimited extensions available.  A Labor Condition Application is required for these cases.  Nationals from Singapore and Chile qualify according to Free Trade Agreements for the H-1B1 classification.  There is a quota for this category that has never been reached.

If you are contemplating the hire of a professional who currently holds H-1B status with another employer, they are exempt from the quota and can start working for you immediately even though the petition is pending approval.

We encourage employers to call us with any questions that you might have or if you’d like to retain our firm to handle your H-1B filings.  Our email: info@immigrationcompliancegroup.com or by phone 562 612.3996.

If CBP issued an electronic Form I-94 to one of your employees upon their admission to the United States at an airport or seaport, they should be able to access it from the CBP website at http://cbp.gov/xp/cgov/travel/id_visa/i-94_instructions/.

If they are unable to access their I-94 information from the CBP website, they should call or go to a CBP deferred inspection location to correct the problem. For more information about Deferred Inspection Sites refer to the link. In the alternative, they may file Form I-102 with USCIS and request their Form I-94; however, there is a filing fee and this process may take weeks.

Also remember, that the name as it exactly appears on the passport should be entered into the system. We find that many problems retrieving the I-94 are due to incorrect name entries.

April 29, 2013 Update:  We link to a recently released Demonstration Video that walks you through the required information to access your I-94 record and provides information how to maneuver through the fields of the online template.

Yesterday our firm participated in a CBP Stakeholder teleconference on this topic and we were surprised how much progress they have made since the last call which left us very nervous about how the automation process of the I-94 would play overall and particularly for I-9 purposes.

I have to say, after yesterday’s call, we really didn’t have any complaints. We share some of the pertinent points with you below:

1)       The website to access I-94 arrival-departure cards is www.CBP.gov/I94 .  It will be “live” the end of April as they phase in automation at air and sea ports commencing April 30, 2013.   The website will provide access to I-94 records going back two years.

2)      Electronic I-94’s will be available on the website for printing immediately upon entry (that was very good news).  So, there should be no lag time with a new employee’s ability to produce an I-94 record  when required for I-9 purposes or for social security cards, DMV, etc.

3)      When an employee changes their status inside the USA, changes employers or extends their stay, (such as an H-1B visa holder), USCIS will continue to print the I-94 records at the bottom right of the USCIS I-797 approval notices.

4)      CBP will post on their website a sample electronic I-94 for viewing.

5)      Whereas one will no longer be able to immediately check to see that the  information stamped on the I-94 matches up with their visas and I-797 approval notice, it was clear that applicants will need to be more proactive in verbally clarifying this with the CBP officers, particularly in situations when an H-1B visa holder is traveling on a still valid visa annotated with the name and validity date of a previous employer petition, but now  has a new employer USCIS I-797 approval notice with a different validity period.

6)      More on #5, it was stated that one could immediately check their I-94 on a mobile device and if there was an error, could get it corrected by getting back in line at the airport.

7)      CBP plans to provide nonimmigrants with a brochure or a list of instructions in 12 different languages upon entry concerning how to obtain their I-94’s online.

8)      The paper version of the I-94’s can still be turned in at the airport upon departure; however, they will collect departure information electronically through the departure manifest when leaving the USA.

9)      DMV was represented on the call and indicated that they were having problems with incorrect name entries and FNU’s being entered.  It was stated that the name on the electronic record will either match the name as it appears on the visa or the passport.  When accessing the record online, the name, passport number, date of birth and date of admission will be required information to access the electronic I-94 record.

If you have any questions, please feel free to call our office at 562 612.3996 or email info@immigrationcompliancegroup.com.

The Department of Homeland Security issued an update today that the Department of Homeland Security (DHS) is working to resolve this issue and will have a fix on September 14, 2012.

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Without any advance notice, the CBP has made changes that affect the I-9 form by no longer issuing paper I-94 cards and no longer stamping I-20 forms for F and M student visas, or form DS-2019 Certificate of Eligibility for Exchange Visitors and Foreign Students, affecting both J and F visa holders.

Customs and Border Protection is in the process of automating traveler arrival records (I-94 cards) to streamline passenger processing. The current processing time for entering foreign visitors’ travel information into the I-94 database is 30 days or more. This does not affect the majority of foreign travelers visiting for business or leisure and will not affect any visitor’s record of departure.  But it will greatly influence how you document Section 2 of the I-9 form for the nonimmigrant employee that produces a List A foreign passport with an I-94 entry card.

PLEASE NOTE: With the newly proposed 2-page I-9 form, no guidance has as yet been provided regarding the I-94 card as an acceptable List A document in concert with a foreign passport. We will keep you posted concerning these changes as soon as we receive new guidance. In the meantime, we recommend that you print out this information and attach it to any new employee’s I-9 form who would normally produce an I-94 record (but doesn’t have one and is waiting to access an electronic version) along with a foreign passport as a List A document.

CBP has suggested the following:  Nomiggrants may need to prove their legal-visitor status within the first 30-45 days of their U.S. stay to:

Employers;
Motor vehicle registration or drivers’ licensing agencies;
The Social Security Administration;
U.S. Citizenship and Immigration Services; or
Universities and schools.

If during this timeframe, visitors need to provide evidence of legal status they should include the following:

Unexpired foreign passport; and
Country of Citizenship
CBP Arrival/Departure Record, Form I-94 (if issued)

Contact CBP for more information or with questions.

Tel: (877) CBP-5511
TTD: (866) 880-6582

If a state benefit granting agency rejects an unstamped Form I-20/DS-2019, applicants may make an appointment with USCIS online through InfoPass and take their Form I-20/DS-2019 to their local USCIS office to be stamped. ( InfoPass ) This transitional step will end on Nov. 21, 2012.

International students and scholars who encounter issues with their state or federal benefit applications should continue to contact the Immigration and Customs Enforcement Student and Exchange Visitor Program (SEVP) at (703) 603-3400 or SEVP@dhs.gov.

Please feel free to contact our office should you have questions concerning these changes, 562 612.3996 or email info@immigrationcompliancegroup.com

It was announced that the very successful Global Entry Pilot Program designed for expedited  immigration and customs processing for pre-approved, low risk frequent international travelers in some 20 US international airports, as well as pre-flight inspection stations at selected Canadian airports, will now be a permanent CBP program as of March 7, 2012.  CBP will also expand the program to include children under the age of 14, who were previously ineligible to participate.

US citizens who are members of the CBP Global Entry, NEXUS, and SENTRI Trusted Traveler programs are eligible to participate in TSA’s program, as well as legal permanent residents, Mexican citizens, and Dutch citizens who are members of Privium, the Netherlands’ trusted traveler program. Expansion to other countries is anticipated as a part of President Obama’s recent executive order aimed at spurring U.S. tourism.

At airports, program participants proceed to Global Entry kiosks, present their machine-readable passport or U.S. permanent resident card, place their fingertips on the scanner for fingerprint verification, and make a customs declaration. The kiosk issues the traveler a transaction receipt and directs the traveler to baggage claim and the exit.

Benefits of signing up:

• No processing lines
• No paperwork
• Access to expedited entry benefits in other countries
• Available at major U.S. airports
• Reduced wait times

Should you have any questions or wish assistance with the application process please contact our office.

The Global Entry program has been extremely successful and enables expedited processing of pre-approved, low-risk, frequent travelers arriving in the USA through some 131 kiosks set up at 20 airports. The Kiosks have been used 1.7 million times, saving CBP officers over 36,450 inspection hours—staff hours that CBP has then re-allocated to expedite regular passenger queues.

The program will now expand to 4 more airports:  Minneapolis, Charlotte, Denver and Phoenix, making the Global Entry program and expedited clearance available in airports that service approximately 97% of international travelers.  For more , and here, too

During this holiday season when travel increases, it’s important to remember what the process is for international travelers when you’re inspected at the airport or on land by Customs and Border Protection(CBP) officers.  They have posted a very informative list of FAQ’s which we link to.

The most important thing to remember if you are a non-citizen is the CBP Officer must determine why you are coming to the United States, what documents you may require, if you have those documents, and how long you should be allowed to initially stay in the United States. These determinations usually take less than one minute to make. If you are allowed to proceed, the officer will stamp your passport and customs declaration form and issue a completed Form I-94 to you. A completed form I-94 will show what immigration classification you were given and how long you are allowed to stay.

Note that completion of the paper Form I-94W remains a requirement at the port of entry for Visa Waiver Travelers even if a travel authorization has been obtained via the Electronic System for Travel Authorization.  For more information on ESTA visit the Electronic System for Travel Authorization page.

Should you have any questions about business or tourist visas, please contact our office.

1) Prevailing Wage Determinations:   The Department of Labor (DOL) advised today that a prevailing wage determination (PWD) obtained for an H-1B case can be used for a PERM case (and vice versa) if it is still valid and for the same job opportunity.  The announcement was made in the AILA/DOL Stakeholder Telephone Conference of 6/22/10 that can be viewed on the AILA website.  This will be extremely useful and will eliminate the long wait time in obtaining a PWD for DOL National for a PERM case when all information in re the job and its requirements remain identical.

2)  Current H-1B Cap Count as of 6/18/2010:  22,900 cases have been received under the general H-1B cap.  9,700 cases have been received against the advanced US degree cap of 20,000.

3)  CBP Releases Port of Entry Contact information:   http://www.cbp.gov/xp/cgov/toolbox/contacts/ports/

4)  iCERT now posts PERM Processing Times: http://icert.doleta.gov/#fragment-2

5)  Life Along the Mexico-US Border Photo Essay:  http://www.washingtonpost.com/wp-srv/world/interactives/mexicoborder/

6)  DHS Releases Fact Sheet on  Southwest Border “Next Steps”

7)  E-Verify no longer voluntary for Utah Employers:

We will cover these topics and many more in greater detail in our free July newsletter.  If you haven’t signed up to receive it, you can do so here

In a Press Release today, DHS Secretary Janet Napolitano, announced the elimination of the paper arrival/departure form (Form I-94W) for authorized travelers from nations participating in the Visa Waiver Program (VWP).

The elimination of the paper I-94W form enables travelers to provide basic biographical, travel and eligibility information automatically through ESTA prior to departure for the United States —reducing redundancy and enhancing the security of sensitive personal information, as CBP stores and protects all VWP data electronically on secure servers.

CBP recommends that travelers submit ESTA applications as soon as an applicant begins making travel plans. ESTA applications may be submitted at any time prior to travel, and once approved, will be valid for two years or until the applicant’s passport expires. To date, CBP has received more than 19 million ESTA applications from citizens of VWP countries—applications that will now automatically cover I-94W submission.

For more information about ESTA, please visit www.cbp.gov

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.