H-1B Visa

February 11, 2010

H-1B Admissions at Newark, NJ Airport

The American Immigration Lawyers Association (AILA) U.S. Customs and Border Protection (CBP) Liaison Committee received reports from AILA members that CBP inspectors at the Newark, New Jersey airport port of entry were apparently assisting in an investigation involving certain H-1B nonimmigrants from India and certain H-1B petitioner companies.

The CBP inspector’s questions focused on (1) who the individuals worked for, (2) how their pay was computed, (3) who paid their salary, (4) their job duties, and (5) what they were paid. According to the reports, some individuals were subjected to expedited removal and visa cancellation.

After inquiring with CBP headquarters about these alleged incidents, the CBP Liaison Committee was advised that many of the cases involved in the allegations involved companies currently under investigation by U.S. Immigration and Customs Enforcement (ICE) and/or U.S. Citizenship and Immigration Services (USCIS) for ongoing fraud. The CBP provided that upon an inadmissibility finding, the determination to either allow the applicant to withdraw his or her application for admission or to subject the applicant to expedited removal was based on “the totality of the circumstances” and was reviewed on a “case-by-case” basis. The CBP also confirmed that they screen ALL employment-based visa holders to determine admissibility and ensure compliance with entry requirements.

February 10, 2010

USCIS Guidance for Recipients of TARP Funding Filing H-1B Petitions

by Kellie N. Lego

Due to the passage of the Employ American Worker Act (EAWA), the USCIS is required to collect Troubled Assets Relief Program (TARP) information on each H-1B petitioning employer. Under the EAWA legislation, any company that has received TARP funding and seeks to hire new H-1B workers is considered an “H-1B dependent employer.” An H-1B dependent employer must make additional statements to the U.S. Department of Labor (DOL) regarding the recruitment and non-displacement of U.S. workers when filing a Labor Condition Application (LCA).

After enactment of EAWA, USCIS revised its Form I-129, Petition for Non-immigrant Worker, to include a question asking whether the employer has received TARP funding.

It has come to the attention of the USCIS that some businesses who have received TARP funds may have repaid their obligations and may not know how to proceed with completing Form I-129 when filing for new H-1B hires.

February 3, 2010

USCIS Director issues a Response to Recommendation 43, Temporary Acceptance of Filed Labor Condition Applications for Certain H-1B Filings

by Kellie N. Lego

The Director of the United States Citizenship and Immigration Service (USCIS), Alejandro Mayorkas has recently issued a response to the recommendations of the Citizenship and Immigration Services Ombudsman regarding the temporary acceptance of Labor Condition Applications (LCAs) for certain H-1B filings.

Until March 9, 2010, the USCIS Service Centers will continue to accept H-1B petitions filed without certified LCAs. However, the only H-1B petitions that will be accepted are those that have been filed at least seven (7) calendar days after the LCAs were filed with the Department of Labor (DOL). The only acceptable proof of the submission of the LCA for certification with the DOL is a copy of the DOL’s email giving notice of receipt of the LCA.

Those that do take advantage of the temporary acceptance of these certain H-1B filings must wait until they receive a Request for Evidence (RFE) before submitting the certified LCA to USCIS. The LCA submitted in response to receiving an RFE must be the same LCA filed with the original petition and it must be submitted within 30 calendar days of receipt of the RFE requesting such documentation.

January 29, 2010

Updated Administrative Appeals Office Processing Times

by Kellie N. Lego

The Administrative Appeals Office (AAO) Processing Times were released on January 28, 2010 with processing dates as of January 4, 2010.

If you filed an appeal, please review the links below to determine the applicable processing time associated with your particular case.

Administrative Appeals Office

January 28, 2010

Filing an H-1B nonimmigrant cap/transfer/extension/amended visa petition after the release of the “MEMO”

by Kellie N. Lego

In support of an H-1B petition, a petitioner must not only establish that the beneficiary is coming to the United States temporarily to work in a specialty occupation but the petitioner must also satisfy the requirement of being a U.S. employer by establishing that a valid employer-employee relationship exists between the U.S. employer and the beneficiary throughout the requested H-1B validity period. The Petitioner must also file an LCA specific to EACH location where the beneficiary will be working.

“United States employer,” is defined at C.F.R. 214.2(h)(4)(ii) as follows:

United States employer means a person, firm, corporation, contractor, or other association, or organization in the United States which:

January 15, 2010

UPDATE on the Federalized Process for Obtaining PWD Requests

by Kellie N. Lego

Effective January 21, 2010, the Department of Labor’s iCERT online system will be updated to allow the submission of electronic prevailing wage determination requests. This electronic process will allow Employers and/or their Designated Representatives to submit and obtain prevailing wage determinations (PWD) for use in the H-1B, H-1B1 (Chile/Singapore), H-1C, H-2B, E-3 (Australia), and permanent labor certification programs through the iCERT portal.

Until January 21, 2010, all prevailing wage determination requests must continue to be submitted by U.S. Mail or comparable physical delivery service to the Washington, D.C. address listed below.

BACKGROUND – On December 19, 2008, the Department published a Final Rule addressing the Labor Certification Process and Enforcement for Temporary Employment in Occupations Other Than Agriculture or Registered Nursing in the United States (H-2B Workers), and Other Technical Changes. The Final Rule implemented a federalized process for obtaining PWD requests for use in the H-2B temporary nonagricultural labor certification program directly from the Employment and Training Administration’s (ETA) appropriate National Processing Center (NPC)–which was designated as the Chicago NPC.

January 8, 2010

FY2011 H-1B CAP preparation & filing SPECIAL

by Kellie N. Lego

MVP Law Group is currently offering the following special for FY2011 Cap Subject H-1B petitions – complete an H-1B questionnaire and send all requested documents to our office by February 28, 2010 and save $150.00.

Our normal legal fees are $1500.00 plus an administrative fee of $150.00 per petition.

Act Now, Don’t Delay! Contact our office today!

January 5, 2010

Updated Administrative Appeals Office Processing Times

by Kellie N. Lego

The Administrative Appeals Office (AAO) Processing Times were released on December 31, 2009 with processing dates as of December 2, 2009

If you filed an appeal, please review the links below to determine the applicable processing time associated with your particular case.

Administrative Appeals Office

December 23, 2009

UPDATED – FY2010 H-1B CAP REACHED

by Kellie N. Lego

The United States Citizenship and Immigration Service (USCIS) has received sufficient H-1B petitions to reach the statutory cap of 65,000 for FY2010.

New H-1B Petitions filed after December 21, 2009 seeking an employment start date in FY2010 will be rejected by USCIS. Furthermore, the Service will apply a computer-generated random selection process to all petitions that were eligible and received on December 21, 2009.

Stay posted for H-1B filing specials for the FY2011 H-1B CAP!

December 18, 2009

LATEST UPDATE: H-1B FY2010 CAP COUNT

by Kellie N. Lego

The United States Citizenship and Immigration Service (USCIS) has updated the count of H-1B petitions received and counted towards the 65,000 cap.

As of December 15, 2009, 64,200 H-1B cap subject non-immigrant visa petitions have been filed with the USCIS.

USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn.