Visas for Illegal Immigrant Crime Victims Debated

Two little-known types of immigrant visas are the T and the U visas. The T visa is for people innocently involved in human trafficking, and the U visa is for victims of crime. The U visa's basic purpose is to make it easier for police to prosecute those who commit violence.

Both types of visas were discussed in a recent Dallas Morning News article. Here are excerpts from the article, beginning with a discussion of the U visa:

The visas began flowing only 18 months ago and the majority have gone to domestic violence victims, say officials from U.S. Citizenship and Immigration Services.

Under the Victims of Trafficking and Violence Protection Act, up to 10,000 such visas are authorized annually. Illegal immigrants may receive such visas if they've suffered "substantial" physical or mental abuse from criminal activity and, among other things, a law enforcement agency certifies they have information on criminal activity. The visa can lead to permanent legal residency status.

The issuing of U visas comes at a tense time in the national immigration debate, amid a polarizing crackdown and potentially broader policing powers against immigrants in Arizona. And it illuminates a prickly point of justice: Should the federal government give illegal immigrants special treatment for a societal good such as fighting violent crime?

The Victims of Trafficking and Violence Protection Act created both the U visa and the T visa. They're near the end of a complex network of visas, A through V.

T visas, for those involved in human trafficking, began flowing in 2002, but the flow of U visas was delayed as regulations on issuance were hammered out. In the last three full fiscal years, only about 250 to 300 T visas have been approved of the maximum annual allotment of 5,000.

In the last fiscal year, ending in September 2009, the federal government authorized 5,825 U visas. In the first five months of this fiscal year, nearly 5,000 such visas were given. There are about 6,600 visa applications pending, and the 10,000 allotment is expected to be reached as early as next month, said Maria Elena Garcia Upson, a spokeswoman for the immigration agency.

Extended or Not?

U Visas: extended until February 1, 2010.
 
U.S. Citizenship and Immigration Services (USCIS) extended the filing deadline for temporary benefits of the U Non-immigrant Interim Relief Program. The temporary benefits program was set to expire December 31, 2009 but has been recently extended until February 1, 2010.
 
H-1C Visas: expired December 21, 2009
 
USCIS accepted H-1C non-immigrant temporary workers petitions expired December 21, 2009. The H-1C classification authorized up to 500 nurses annually to work in eligible health care facilities. Although the visa classification expired, nurses currently in H-1C status will not be affected.
 
For new updates or changes, please visit the USCIS Web site.

Apply for Advance Permission to Enter U.S. As a Non-Immigrant if Inadmissible

Individuals who apply for a non-immigrant visa must be admissible to enter the United States. Inadmissible grounds to deny entry into the U.S. include, but not limited to the following:
 

  • Communicable disease;
  • Criminal record involving crimes of moral turpitude;
  • Possession of or trafficking in a controlled substance;
  • Trafficking persons;
  • Involved in money laundering;
  • Previously removed (deported) or previously overstayed a period of admission to the U.S.

 
If a non-immigrant visa holder subsequently becomes inadmissible and thus ineligible to enter the United States, depending on the inadmissibility ground, the visa holder may apply in advance of travel for a temporary waiver of inadmissibility. The waiver application is applied directly to U.S. Customs and Border Protection (CBP) prior to travel. Along with the signed Form I-192, Application for Advance Permission to Enter as Nonimmigrant, the applicant must submit the filing fee of $545, an official police record from country of nationality, proof of citizenship, and supporting documentation regarding the inadmissibility showing rehabilitation and character reformation. For questions concerning eligibility of the temporary waiver application, or any other area of immigration, call Kraft & Associates at 214-999-9999.

Pilot Program for Travelers on Flight 6

On November 12, 2009, U.S. Customs and Border Protection (CBP) launched a 30 day pilot program to test the entry process for travelers under the Visa Waiver Program (VWP) from Auckland, New Zealand to Los Angeles International Airport. The program automates the arrival/departure of travelers with an approved Electronic System for Travel Authorization (ESTA) for travelers on Air New Zealand Flight 6. Travelers on this flight will not need to fill out the paper I-94W.
 
The VWP allows nationals from VWP countries to fill out an ESTA application prior to traveling to the United States to determine the traveler’s eligibility and whether such travel poses a security risk. The ESTA application provides basic biographical, travel, and eligibility information and must be submitted online prior to traveling. There are currently 35 countries eligible to travel to the United States under the VWP. Travelers under this program may enter the U.S. for either business or tourism for up to 90 days without obtaining a visa.
 
To view the list of VWP countries please visit the CBP website at www.cbp.gov.

H-3 Trainee Visa Category

The H-3 trainee visa is a non-immigrant visa option for foreign nationals seeking training in any field of endeavor, including, but not limited to, commerce, communications, finance, government, transportation, agriculture, or the professions (except physicians).
 
Specifically, the H-3 is utilized by a foreign national seeking to pursue a career outside the United States, and training in the U.S. is necessary because the foreign national's home country does not have the type of training program available. Once the training program in the U.S. has concluded, the trainee must return to his or her home country to use the skills gained in the training program. In order to qualify, the U.S. employer must show that the foreign national's home country does not offer or does not prepare the trainee for the type of work that is available in the country, therefore training in the U.S. is necessary. When submitting H-3 visa petitions to U.S. Citizenship and Immigration Services (USCIS), employers must establish that the training program includes the following:
 

  • Detailed description of the type of training and supervision to be given;
  • The training program structure;
  • Amount of time that will be devoted to productive employment (which must be kept at a minimum since this visa is for training and not for productive employment).
  • Number of hours the foreign national will spend in classroom instruction and on-the-job training;
  • Detail the career abroad for which the foreign national is training;
  • Explanation as to why the training cannot be obtained in the country abroad and the reason the training in the U.S. is necessary;
  • Source of remuneration.

 
The H-3 trainee visa is a valuable non-immigrant visa option for training in a variety of industries. For more information regarding H-3 visas or any other immigration related matters, please call Kraft & Associates at 214-999-9999.

Revised Form I-601 to Waive Inadmissible Grounds Under the Immigration and Nationality Act

Certain foreign nationals who seek to be admitted into the United States or adjust their status in the United States are unable to do so if acts, convictions, or medical conditions make them inadmissible.  There are several grounds listed in the Immigration and Nationality Act (INA) that make a foreign national inadmissible to the United States. The following are grounds for inadmissibility:       

  • health-related grounds
  • certain criminal and related grounds
  • Immigrant Membership in a Totalitarian Party
  • Immigration fraud or misrepresentation
  • Smugglers
  • Being Subject to Civil Penalty
  • Unlawful presence in the U.S. for more than 180 days, beginning on or after April 1, 1997, followed by departure if the U.S. - three or ten year bar
  • Aliens previously removed and unlawfully present after previous immigration violation (only for NACARA or HRIFA adjustment application)
  • unlawfully present after previous immigration violations for VAWA self-petitioners

 
In order to waive these inadmissibility grounds, the foreign national must file Form I-601 Application for Waiver of Grounds of Inadmissibility. Beginning November 21, 2009, waiver applicants must file revised Form I-601 as U.S. Citizenship and Immigration Services (USCIS) will not accept the prior version beginning on that day.

The revised form will be marked with Revision Date 04/06/09N, OMB Expiration Date 04/30/11. The revised form makes it easier for waiver applicants to select from a list of grounds of inadmissibility. In addition to the list of grounds, there is a section that allows applicants to describe in their own words why they believe they are inadmissible. For additional information on waivers, grounds of inadmissibility or any other aspect of immigration law please call Kraft & Associates at 214-999-9999. Additional information is also available at www.uscis.gov.

L-1 Visas for Foreign Employees Seeking Intra-Company Transfers to the U.S.

Generally, foreign nationals who are employed with a company abroad and who wish to enter the United States to continue working for the same employer, subsidiary, branch office, or affiliate may enter the United States via the L-1 Nonimmigrant Visa for Intracompany Transfer. There must be a relationship between the U.S. company and the foreign company abroad in order to transfer the foreign employee to the United States. Documentation to show the relationship may include:
 

  • common ownership documents;
  • similar name of the two companies;
  • 50% common ownership, although there may be situations where there is less than 50% ownership but the evidence shows that the parent company controls them.

 
In order for the foreign national to obtain an L-1 visa, certain requirements must be met. The requirements include:
 

  • the foreign national must have worked continuously abroad for one of the past three years by the parent, subsidiary, branch office, or affiliate of the U.S. company;
  • there’s a qualifying relationship between the company abroad and the U.S. company;
  • the foreign national will continue working in a managerial capacity or executive capacity or a capacity requiring a specialized knowledge.

 
Examples of employees being employed in an “executive capacity” include:
 

  • president,
  • vice president,
  • CFO
  • CEO.

 
Employees in a “managerial capacity” are those who:
 

  • manage the organization, department, subdivision, or function;
  • supervise the work of other professional employees.

 
Foreign nationals with “specialized knowledge” include individuals with an advanced knowledge of the company’s product, business, service, research, equipment, techniques, management, or other activity that is not readily available in the U.S. labor market.
 
Once it’s established that the foreign employee may be transferred to the U.S. company, obtaining L-1 nonimmigrant status requires the U.S. employer to file a Form I-129 Petition for Nonimmigrant Worker with the U.S. Citizenship and Immigration Services (USCIS). It takes USCIS approximately three months to render a decision. Upon approval, the employee must apply for an L-1 visa at the U.S. consulate abroad. Depending on the employee’s position, the foreign national will be issued either an L-1A visa if working in an executive or managerial capacity or an L-1B visa for those continuing to work in the capacity requiring a specialized knowledge.
 
For more information on L Visas Intracompany Transfer visas or any other area of immigration law, please contact us at 214-999-9999.
 

Don't Try To Use A B-1/B-2 Tourist Visa If You Plan To Become A Student

Attorney Eugenia Ponce recently had a telephonic consultation with a client who wanted to enter the United States on a B-1/B-2 tourist visa to visit various universities throughout the United States and to attend admissions interviews. He wanted to know what the student visa requirements were and whether he would face any challenges if he tried to obtain his student visa while in the United States on a tourist visa.
 

Ms. Ponce explained that foreign nationals seeking to enter the United States for the purpose of studying in the United States will need to apply for an F-1 study visa in their home country. The fact that he wanted to enter the United States to visit schools (for tourism) rather than to study, should be disclosed to the consular officer so that the officer could note “prospective student” on his I-94 card when admitted into the United States.
 

Ms. Ponce continued by explaining that the sole purpose of the tourist visa is to visit for a short period of time, and that is all. The tourist visa cannot be used if the person has the intention to work or to study. There is a specific visa for individuals seeking to enter the United States to pursue a full-time course of study. That is an F-1 student visa. Since B-1/B-2 visitors are not allowed to pursue a course of study, any change of status applications could be denied if it is found that the foreign national intended to enter the United States to study, and this preconceived intent was not previously disclosed.
 

Once accepted to a study program, it is recommended that the foreign national return to his or her home country to obtain an F-1 visa stamp. The F-1 visa is issued no earlier than four months prior to the study program’s start date.
 

Once the F-1 visa is issued, the international student will enter the United States and will be admitted for as long as the F-1 student continues the study program requirements. Essentially, an F-1 student will be admitted for "duration of status” or “D/S” and this will be reflected on the I-94 card.
 

For more information on the F-1 student visa process please call Kraft & Associates at 214-999-9999.

Important Reminder for Diversity Visa Lottery (DV-2011) Applicants

The Diversity Visa lottery (DV) for the fiscal year 2011 must be submitted electronically between noon, October 2, 2009, and noon November 30, 2009. The entry form (E-DV) must be submitted online during the registration period available at www.dvlottery.state.gov.
 
The DV program is a random lottery selection with 55,000 diversity visas issued each fiscal year to applicants of countries with low rates of immigration. Natives of the following countries are not allowed to participate in the DV-2011 because the countries sent a total of more than 50,000 immigrants to the U.S. in the previous five years: Brazil, Canada, China (mainland-born), Colombia, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, India, Jamaica, Mexico, Pakistan, Peru, Philippines, Poland, South Korea, United Kingdom (except Northern Ireland) and its dependant territories, and Vietnam. Individuals born in Hong Kong SAR, Macau SAR, and Taiwan are eligible. Detailed information regarding DV lottery requirements is available at www.dvlottery.state.gov.

One Path to Permanent Residence in the United States - The Diversity Visa Lottery Program

Foreign nationals who do not have employment sponsorship or family ties in the United States have another avenue to immigrate to the United States with the Diversity Visa Lottery Program (DV program). Thus, a foreign national does not need to have a U.S sponsor to obtain permanent residence. Rather, the foreign national will register for the Diversity Visa lottery that is available on the U.S. Department of State Web site.
 
Before applying for the DV program, the foreign national must first make sure he or she is eligible to participate in the program. To qualify for the DV program, the foreign national must meet the following:
 

  • be a native of a country that is a low admission foreign state;
  • have at least a high school education or its equivalent or, within the five years before applying for a visa, have two years of work experience in an occupation requiring at least two years training or experience.

 
A country can be designated as a low-admission state if immigration from that country was lower than 50,000 over the preceding five years. Low admission states are allowed to participate in the DV program, whereas high admission regions are not. The list of countries participating in the DV program changes every year.
 
Once the foreign national determines he or she is eligible to participate in the DV program, the next process will be to prepare the application, which is filed electronically with the Department of State. The application is available at www.dvlottery.state.gov. The registration period lasts for 60 days and begins October 2, 2009, and ends on November 30, 2009, for DV-2011.

It is vital that to be considered a DV applicant, the application period for the DV-2011 program must be submitted during this acceptable period. Once the form is submitted, the random selection begins within each region. A selected applicant will be a DV-lottery winner and the Kentucky Consular Center will send a notification letter providing instructions for the visa application.
 
Kraft & Associates will answer your questions regarding the DV program and the process toward permanent residence. Call us at 214-999-9999. For more information on the DV program, visit the Department of State Web site at www.travel.state.gov.

Non-Immigrant Visa Suspension in Honduras

Effective today, August 26, 2009, the U.S. Department of State has temporarily suspended non-emergency, non-immigrant visas services in the consular section in Honduras due to the continued political unrest.

DS-160 Non-immigrant Online Application Form

Before starting the application process for permanent immigration, foreign nationals who enter the United States on non-immigrant visas (NIV) are considered to be here temporarily. The law presumes NIV holders intend to return to their home countries at the end of their stay in the United States. There are many NIV categories — student visas, business visas, visas for tourism, and investor treaty visas to name a few. While NIV applicants must have the intent to return to their home country, there are a few non-immigrant categories that allow a person to have dual intent, that is, to intend to be here temporarily now but eventually to immigrate. Prior to permanently immigrating to the United States, a foreign national will generally enter on a non-immigrant visa (dual intent NIV).
 
All NIV applicants are required to fill out an application form to the appropriate consular post and submit the DS forms according to the NIV category they are applying. The current forms available are DS-156, 157, 158, 156K, 3032). Currently, twelve consular posts are required to use Form DS-160, a Web-based NIV application form that incorporates all of the current NIV forms into one format via the Web site. When an NIV applicant fills out the form, the applicant has the option of uploading a digital photo. Once the form is submitted online, the NIV applicant will receive a confirmation page. The new DS-160 form is required in twelve posts (including Mexican and Canadian posts, Dublin, Hamilton, Hong Kong, and Tripoli), and the DS-160 form advances the NIV process since it is submitted in advance of the interview.
 
NIV applicants should make sure to utilize the appropriate DS form according to the consular post requirements currently in place.
 
Please call us at 214-999-9999 and we will answer your non-immigrant visa questions.

Question: I Was Given a 10 Year Visa, Can I Stay in the U.S. the Entire 10 Years?

Answer: NO. Most individuals are not aware that a visa that is placed in a person’s passport does not determine the length of authorized stay in the United States. When a foreign national is admitted into the U.S., he or she is issued Form I-94 Arrival/Departure record. Form I-94 shows the nonimmigrant category and indicates how long the foreign national is allowed to stay in the United States.

Non-Immigrants Leaving the U.S. - Don't Forget to Return Form I-94

Foreign nationals who enter the United States with a non-immigrant visa are issued Form I-94 card at the port of entry. Form I-94 is a white piece of paper issued by the Customs and Border Protection (CBP) which shows the Department of Homeland Security (DHS)/CBP a record of your arrival and departure date from the United States. If you returned to your home country with Form I-94 in your passport, then your departure from the United States was not properly recorded. It is vital that you close out your earlier record of arrival to the U.S. Otherwise DHS will have in their records that you remained in the U.S. beyond the time you were authorized to stay.
 
If you are now in your home country with Form I-94 (or if you lost Form I-94), then you must validate your departure from the United States with DHS/CBP. The following are ways to validate departure with DHS/CBP:
 
·        original boarding passes used to depart the United States;
·        departure stamps in your passport indicating entry and exist from the United States;
·        pay check stubs or letter from employer indicating that you worked in another country after you departed the United States;
·        bank records illustrating transactions made showing you were in another country after you left the United States;
·        school records showing attendance at a school outside the U.S. indicating you were in another country after you left the United States;
·        Receipts showing your name and date illustrating you made purchases outside the U.S., after leaving the United States.
 
Send the appropriate documentation to the following address ONLY:
 
DHS-CBP ACS Inc.
1084 South Laurel Road
London, KY 40744 USA
 
This is the only location where they will make the necessary changes to the DHS/CBP record. Do not forget to make copies of the materials you mail to DHS!

Eight Tips for Proper Filing of Immigration Forms

Certain immigration forms are used to petition U.S. Citizenship and Immigration Services (USCIS) to classify a foreign national for an immigrant or a non-immigrant visa based on either employment or family. Prior to submitting the forms to USCIS, there are 8 simple tips to follow for proper filing. They are:
 

  1. Use the most current edition of the form available on the USCIS Website;
  2. Follow instructions on the form to see who qualifies;
  3. If a question does not apply to you, make sure you write “NONE” or “N/A”;
  4. Type the information. If typing is not feasible, then print legibly;
  5. Don’t forget the appropriate filing fee. Make the check or money order payable to U.S. Department of Homeland Security. Do not send cash;
  6. Make sure the Petitioner or Beneficiary signs and dates where appropriate;
  7. Do not forget the supporting documentation to support the petition or application;
  8. Send the petition to the correct mailing address. If the petition is sent to the wrong mailing address, the petition can be rejected for improper filing.

 
You can avoid a petition being rejected or a final decision being delayed by USCIS by following these eight simple tips.

USCIS Reminds Applicants for Adjustment of Status, Asylum, Legalization, and TPS Beneficiaries to Obtain Advance Parole Before Traveling Abroad

U.S. Citizenship and Immigration Services (USCIS) reminds individuals that they must obtain Advance Parole from USCIS before traveling abroad if they have:

    •    been granted Temporary Protected Status (TPS);

    •    a pending application for adjustment of status to lawful permanent resident;

    •    a pending application for relief under section 203 of the Nicaraguan Adjustment and Central American Relief Act (NACARA 203);

    •    a pending asylum application; or

    •    a pending application for legalization.

Advance Parole is legal permission to reenter the United States after traveling abroad. Advance Parole is a rare and extraordinary measure used to allow an otherwise inadmissible individual to enter the United States due to compelling circumstances. Individuals requiring Advance Parole may not be allowed to enter the U.S. and may have their pending applications denied or administratively closed if they attempt to enter without Advance Parole. To obtain Advance Parole, individuals must file Form I-131 (Application for Travel Document), which is available on the USCIS website. Applicants should receive their travel document within 90 days of applying.

Please note that, under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, even if an alien who has been unlawfully present for certain periods of time obtains Advance Parole and then departs the U.S., he or she can be barred from admission to lawful permanent resident status. Further, those who are refugees or lawful permanent residents who were first refugees do not need to obtain Advance Parole. Such individuals should apply for a Refugee Travel Document using Form I-131 and comply with all USCIS requirements. However, asylum applicants, asylees, and lawful permanent residents who obtained that status based on their asylum status are subject to special rules regarding travel outside the United States. These individuals are strongly encouraged to review USCIS Fact Sheet regarding asylum and travel.

The USCIS also recommends that all individuals with pending applications for adjustment of status, NACARA 203, or asylum, consult an immigration attorney, an assistance organization accredited by the Board of Immigration Appeals, or call USCIS Customer Service Center at 1-800-375-5283 before making any travel plans.

For more information, please visit: http://www.uscis.gov.

New Procedures in Ciudad Juarez for Non-Immigrant Visa Applicants

As of April 6, 2009, all applicants for non-immigrant visas at the U.S. consulate in Ciudad Juarez, Mexico, must now enroll at the Applicant Service Center (ASC) fingerprint appointment before attending the interview appointment. ASC employees take applicants’ pictures and fingerprints and provide that data to the consulate. Non-immigrant visas are issued to foreign nationals seeking to enter the United States on a temporary basis. More information is available at:
www.ciudadjuarez.usconsulate.gov/non-immigrant_visas.html

Pre-Screening for Visa Waiver Country Visitors

Citizens of one of the 35 countries listed in the Visa Waiver Program (VWP) who seek to visit the United States for less than 90 days for either business or pleasure must now be pre-screened before boarding their flights. The Electronic System Travel Authorization (ESTA) is an application system that requires travelers from these 35 VWP countries to apply for travel authorization 72 hours prior to boarding. The application is available online at: http://www.esta.us/travel_authorization.html The travel authorization is valid for two years.

Currently, the 35 countries participating in the VWP are: Andorra, Australia, Austria, Belgium, Brunei, Czech Republic, Denmark, Estonia, Finland, France,Germany, Hungary, Iceland, Ireland, Italy, Japan, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Monaco, The Netherlands, New Zealand, Norway,Portugal, San Marino, Singapore, Slovakia, Slovenia, South Korea, Spain, Sweden, Switzerland, United Kingdom.

Nationals of countries that are not part of the 35 countries listed above should apply for a B-1 Business Visitor or B-2 Tourist visa. Foreign nationals seeking to enter the United States for a short period of time must show the following:

·         Limited duration of time to stay in the U.S.

·         Intent to depart the U.S.

·         Maintenance of a foreign residence

·         Adequate financial arrangements

·         Reason for trip to the U.S.

Please call us at 214-999-9999 for more information.

U.S. Military Will Offer Path to Citizenship for Temporary Immigrants

The New York Times is reporting that the U.S. military is changing its position on immigrants in the armed services, and will now allow even temporary immigrants to join. The reason of course is that the military has a serious shortage of service men and women with knowledge of the languages and cultures of Afghanistan and Iraq. As an enticement to joining the military, the U.S. government will offer the possibility of naturalization in as little as six months. Here are excerpts from the story: 

Stretched thin in Afghanistan and Iraq, the American military will begin recruiting skilled immigrants who are living in this country with temporary visas, offering them the chance to become United States citizens in as little as six months.

Immigrants who are permanent residents, with documents commonly known as green cards, have long been eligible to enlist. But the new effort, for the first time since the Vietnam War, will open the armed forces to temporary immigrants if they have lived in the United States for a minimum of two years, according to military officials familiar with the plan.

The program will begin small — limited to 1,000 enlistees nationwide in its first year, most for the Army and some for other branches. If the pilot program succeeds as Pentagon officials anticipate, it will expand for all branches of the military. For the Army, it could eventually provide as many as 14,000 volunteers a year, or about one in six recruits.

About 8,000 permanent immigrants with green cards join the armed forces annually, the Pentagon reports, and about 29,000 foreign-born people currently serving are not American citizens.

The military does not allow illegal immigrants to enlist, and that policy would not change, officers said. Recruiting officials pointed out that volunteers with temporary visas would have already passed a security screening and would have shown that they had no criminal record.

In recent years, as American forces faced combat in two wars and recruiters struggled to meet their goals for the all-volunteer military, thousands of legal immigrants with temporary visas who tried to enlist were turned away because they lacked permanent green cards, recruiting officers said.

Military officials want to attract immigrants who have native knowledge of languages and cultures that the Pentagon considers strategically vital. The program will also be open to students and refugees.

Pentagon officials expect that the lure of accelerated citizenship will be powerful. Under a statute invoked in 2002 by the Bush administration, immigrants who serve in the military can apply to become citizens on the first day of active service, and they can take the oath in as little as six months.

For foreigners who come to work or study in the United States on temporary visas, the path to citizenship is uncertain and at best agonizingly long, often lasting more than a decade. The military also waives naturalization fees, which are at least $675.

To enlist, temporary immigrants will have to prove that they have lived in the United States for two years and have not been out of the country for longer than 90 days during that time. They will have to pass an English test.

Language experts will have to serve four years of active duty, and health care professionals will serve three years of active duty or six years in the Reserves. If the immigrants do not complete their service honorably, they could lose their citizenship.

Non-Minister Special Immigrant Religious Worker Expiring 03/06/2009


On March 6, 2009, the category covering non-minister special immigrant religious workers will expire. The non-minister religious worker category includes professional or non-professional capacities within a religious vocation or occupation. Therefore, individuals under the non-minister category must adjust their status to permanent residence or be admitted before March 6, 2009. Unless there is a Congressional extension of the expiration date, U.S. Citizenship and Immigration Services (USCIS) will suspend further processing of any pending applications under the non-minister category. The expiring category does not affect individuals applying under the minister category of the program. If the program is extended beyond March 6, 2009, get updates through our Web site or the USCIS website, www.uscis.gov.

Approval Notice of Form I-539 Left Blank - Correction On the Way

A foreign national in the United States on a non-immigrant visa requesting either to extend status or change from one non-immigrant status to another must file Form I-539. If you filed Form I-539 and received an blank approval notice from the Vermont Service Center (VSC), the VSC has corrected the error, and will send your correction notice shortly. Approximately 200 faulty approval notices will be corrected.

New Visa Waiver Program for Guam and Commonwealth of Northern Mariana Islands

Effective June 1, 2009, citizens of certain countries are allowed to seek admission to Guam and the Commonwealth of Northern Mariana Islands (CNMI) without a visa, pursuant to the Guam-CNMI Visa Waiver Program. To participate in the program, travelers must posses a valid passport; present a valid and completed form I-94 and Form I-736; must not have previously violated any prior admission to the U.S.; and must be citizens from the following countries: Australia, Brunei, Japan, Malaysia, Nauru, New Zealand, Papua New Guinea, Republic of Korea, Signapore, Taiwan, and the United Kingdom including Hong Kong. Those seeking admission under the Guam-CNMI Visa Waiver program are authorized for a 45 day period.

New Requirements For Travelers From All Visa Waiver Program Countries

There are 35 countries that are authorized to participate in the Visa Waiver Program (VWP). The VWP allows citizens or nationals of the authorized countries to travel to the U.S for business or tourism for stays of 90 days or less, without first obtaining a visa.
 
Effective January 12, 2009, the U.S. Department of Homeland Security (DHS) requires travelers from all VWP countries to obtain approval through the Electronic System for Travel Authorization (ESTA) prior to traveling to the United States. ESTA determines whether a foreign national is eligible to travel under the VWP prior to boarding. If you are traveling under the VWP, it is vital to obtain an approved travel authorization via ESTA. Failure to do so may result in being denied boarding, or denied admission into the United States. Apply for travel authorization at the ESTA Web site to comply with the DHS requirements.

Citizens or nationals of the following countries are currently eligible to travel to the United States under the VWP: Andorra, Austria, Australia, Belgium, Brunei, Denmark, Finland, France, Germany, Iceland, Ireland, Italy, Japan, Liechtenstein, Luxembourg, Monaco, The Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovenia, Spain, Sweden, Switzerland, and the United Kingdom.

New Form DS-160 Submitted Online - Ciudad Juarez, Mexico

Non-immigrant visas are for foreign nationals seeking to enter the United States for a temporary period of time. The type of visa a foreign national will apply for will depend on the purpose of the trip. Non-immigrant visas can be for study, tourism, or business, to name a few. Individuals who applied for a non-immigrant visa in Ciudad Juarez, Mexico, and are scheduled for an interview after January 20, 2009, must now use the electronic form DS-160 which is available online at ceac.state.gov/genniv.
 
This recent change requires all applicants, regardless of the type of visa applied for, to submit the form online prior to their appointment at the Consulate General. Once the form is submitted online, the applicant is required to print the confirmation page and take the confirmation page to their appointment.
 
Please visit the U.S. Consulate in Ciudad Juarez’s Web site for more information:  http://ciudadjuarez.usconsulate.gov/non-immigrant_visas.html.

B-1 Visas For Domestic Workers

U.S. citizens residing abroad may qualify their personal servants or domestic workers for B-1 status during a temporary trip to the United States. Temporary trip usually means six months or less. Since the foreign domestic worker will engage in employment in the United States, he or she will apply for work authorization once admitted in the United States. One of the requirements for this visa category is that the domestic worker must have worked with the U.S. citizen prior to the U.S. visit. Additionally, there must be an employment contract providing the domestic worker with free private room and board, and guarantee the “prevailing wage” for the area of intended employment.
 
Are you a U.S. citizen residing abroad and have a temporary trip to the United States? If you want your personal or domestic worker to enter the United States with you on this temporary trip, please call our office and we will provide you with all the requisite information.

B-2 Extension of Status Application Filed Months Ago...still waiting for decision?

Did you enter the United States on a B-2 tourist visa, file an extension of status in the U.S., and a decision on the extension of status application is still pending? U.S. Citizenship and Immigration Services (USCIS) is currently taking eight to twelve months to adjudicate a B-2 extension of status application. Individuals with pending extension of status applications should be very cautious when leaving the United States. Customs and Border Protection (CBP) will not admit individuals back to the United States if they left more than six months after the application for extension was filed. There are serious consequences and appropriate measures should be taken.
 
Please contact us if you have questions about B-2 visas or any other aspect of immigration law.

C Visas For Foreign Nationals In Transit

Foreign nationals passing in immediate and continuous transit through the U.S. may apply for the C-1 General Transit visa.  In order to satisfy the C-1 requirements, the foreign national must show the following:
 
1. He or she is in possession of a ticket or other assurance of transportation to a third country;

2. Has sufficient funds to complete the trip;

3. Has permission to enter the third country;
 
The period of authorized stay is fixed by the admitting officer but will not exceed 29 days.  Foreign nationals in transit cannot change their status to another nonimmigrant visa, are ineligible for extensions of stay, and cannot accept employment. Although the foreign national in transit is ineligible to change his or her status to another nonimmigrant visa, the foreign national is eligible to adjust his or her status and receive a permanent resident card in the United States. For example, if a foreign national in transit (C-1 visa holder) marries a U.S. citizen, the foreign national is eligible to file for adjustment of status for the permanent resident card.
 
Although C-1 visas are for foreign nationals in transit, there are times that crewmen enter on C-1 visas. Crewmen are individuals serving in good faith in any capacity required for normal operating and service on board a vessel. A foreign national in transit (C-1) entering to join a vessel is treated as a crewman. If a crewman enters on a C-1 visa to join a vessel, then the C-1 crewmember is ineligible to adjust his/her status.
 
For more information on C visas and adjustment of status please call 214-999-9999.
 

June Visa Bulletin

The June Visa Bulletin has been released by the State Department. Here are the details:

Visa Bulletin

Number 119
Volume VIII
Washington, D.C.

VISA BULLETIN FOR JUNE 2008

A.  STATUTORY NUMBERS

1.  This bulletin summarizes the availability of immigrant numbers during June. Consular officers are required to report to the Department of State documentarily qualified applicants for numerically limited visas; the Bureau of Citizenship and Immigration Services in the Department of Homeland Security reports applicants for adjustment of status.  Allocations were made, to the extent possible under the numerical limitations, for the demand received by May 8th in the chronological order of the reported priority dates. If the demand could not be satisfied within the statutory or regulatory limits, the category or foreign state in which demand was excessive was deemed oversubscribed.  The cut-off date for an oversubscribed category is the priority date of the first applicant who could not be reached within the numerical limits.  Only applicants who have a priority date earlier than the cut-off date may be allotted a number.  Immediately that it becomes necessary during the monthly allocation process to retrogress a cut-off date, supplemental requests for numbers will be honored only if the priority date falls within the new cut-off date.


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Errors On I-94 Cards

Have you been issued an I-94 card with 9 or 10 digits? Then a replacement card is needed. An I-94 card should have eleven digits. If you are a foreign national with an error on your I-94 card -- including a misspelled name, incorrect date of birth, incorrect visa classification, incorrect authorized period of stay -- please report in person to the nearest Customs and Border Protection (CBP) deferred inspection office or port of entry, regardless of where the original I-94 was issued. A CBP officer will correct the error on the I-94 card at the deferred inspection or port of entry. 

Proposed Changes For TN Visa Professional Workers

Foreign nationals of Canada and Mexico seeking a temporary entry into the
U.S. as professionals may enter as TN non-immigrants under the North
American Free Trade Agreement (NAFTA). Under the TN visa, Canadian or
Mexican citizens must enter as professionals who have a minimum of a
bachelor's degree or appropriate professional credentials.


Currently, TN visa holders from Canada or Mexico are allowed to stay in the
U.S. for a maximum of one year, with an unlimited amount of extensions of
stay. U.S. Citizenship and Immigration Services (USCIS) recently published
a proposed rule to increase the maximum amount of time a TN professional
worker can stay - from one year to three years. In addition, the proposed
rule will allow TN visa holders seeking an extension of stay in increments
of up to three years.


For more information on TN visas, please call us at 214-999-9999.

Positive Changes For F-1 Students With "STEM" Degrees

An optional practical training (OPT) authorizes F-1 students to receive up to 12 months of practical training either before or after completion of their studies. On April 8, 2008, an interim final rule was issued stating that certain F-1 students will be eligible to receive a 17-month extension following the completion of their OPT. Under the new rule, F-1 students with a degree in Science, Technology, Engineering, or Mathematics (STEM), who are employed by employers enrolled in E-Verify, and who have received an initial OPT related to such a degree may apply for a 17-month extension of the OPT.

The student will file for the 17-month STEM extension on Form I-765 Application for Employment Authorization, and include a copy of the STEM degree, and Form I-20 endorsed by the Designated School Official.

F-1 students with STEM degrees may benefit from this final rule if they are the beneficiaries of an approved H-1B petition by automatically extending their F-1 status. This allows the student to remain in the U.S. and continue working until October 1, the start date of the H-1B petition.

For more information please contact us at 214-999-9999.

Visa Bulletin Contains Some Good News

The government has released the May 2008 Visa Bulletin, and there are some bits of good news in it.

EB2 categories for Mexico and for the Philippines are still current (we always worry about backsliding). India's cutoff date advanced a month, as did the date for China, to January 1, 2004. All things considered, the bulletin was a good one this time.

H-1B Applicants Face Less Than 50% Chance Of Approval

According to figures released today by USCIS, there were 163,000 applications filed for the 65,000 available H-1B visas. So if most of the applicants are actually qualified, each applicant has less than a 50-50 chance of being chosen in the lottery drawing. Pitiful. The United States has such a great need for qualified workers, but we continue to use an artificial cap to deprive ourselves of this productivity. Here is the USCIS press release:

USCIS Releases Preliminary Number Of FY 2009 H-1B Cap Filings

WASHINGTON – U.S. Citizenship and Immigration Services (USCIS) today announced a preliminary number of nearly 163,000 H-1B petitions received during the filing period ending on April 7, 2008. More than 31,200 of those petitions were for the advanced degree category.

USCIS expects next week it will conduct the computer-generated random selection process, beginning with the selection of the 20,000 petitions under the advanced degree exemption. Those petitions not selected under the advanced degree category will join the random selection process for the cap-subject 65,000 limit.

USCIS will reject, and return filing fees for all cap-subject petitions not randomly selected, unless found to be a duplicate. USCIS will handle duplicate filings in accordance with the interim final rule published on March 24, 2008 in the Federal Register.

USCIS will provide regular updates as the processing of FY 2009 H-1B cap cases continues.

Wall Street Journal Says Eliminate H-1B Visa Cap

The Wall Street Journal published an interesting editorial a few days ago about the need for increasing the number of H-1B visas allowable each year. Here are excerpts:

Bill Gates appeared before Congress again last week to make a simple point to simpler pols: The ridiculously low annual cap on H-1B visas for foreign professionals is undermining the ability of U.S. companies to compete in a global marketplace.


"Congress's failure to pass high-skill immigration reform has exacerbated an already grave situation," said the Microsoft chairman. "The current base cap of 65,000 H-1B visas is arbitrarily set and bears no relation to the U.S. economy's demand for skilled workers."

The Labor Department projects that by 2014 there will be more than two million job openings in science, technology, engineering and math fields. But the number of Americans graduating with degrees in those disciplines is falling. Meanwhile, visa quotas make it increasingly difficult for U.S. companies to hire foreign-born graduates of our own universities. Last year, as in prior years, the supply of H-1B visas was exhausted on the first day petitions could be filed.

Mr. Gates said his software company exemplifies this phenomenon. "Microsoft has found that for every H-1B hire we make, we add on average four additional employees to support them in various capacities," he told lawmakers. "If we increase the number of H-1B visas that are available to U.S. companies, employment of U.S. nationals would likely grow as well."

The preponderance of evidence continues to show that businesses are having difficulty filling skilled positions in the U.S. By blocking their access to foreign talent, Congress isn't protecting U.S. jobs but is providing incentives to outsource. If lawmakers can't bring themselves to eliminate the H-1B visa cap, they might at least raise it to a level that doesn't handicap U.S. companies.

O Visa - Extraordinary Abilities In Sciences, Arts, Education, Business, Or Athletics

The O visa is a temporary visa designed for foreign nationals with extraordinary ability in the sciences, arts, education, business, athletics, or motion picture or television production, which has been demonstrated by sustained national and international achievements. The O visa allows these individuals to come to the United States to work for a U.S. employer in their areas of expertise.

To qualify for an O visa in "science, education, business or athletics," the foreign national must be one of the small percentage who have risen to the top of his or her field. Documentation may include three of the following:

  • receipts of national or international awards in their field such as the Nobel Prize or other distinguished award;
  • membership in organizations that require outstanding achievement;
  • published materials about the foreign national;
  • original scientific work of major significance in foreign national's field;
  • evidence that the foreign national has been employed in a critical or essential capacity at an organization that has a distinguished reputation;
  • evidence that the foreign national has commanded or will command a high salary
  • letters of recommendation from experts in the field.

The U.S. employer will file a petition with the Citizenship & Immigration Services along with evidence illustrating the foreign national's extraordinary ability. Once the petition is approved, the foreign national may obtain the O visa at the U.S. consulate or embassy in their country of residence. Spouses and unmarried minor children may accompany the O visa holder but are unable to work in the United States. Since the O visa is temporary, it is issued initially for three years and may be extended in one year increments. The O visa allows the individual to apply for permanent residency.

If you meet the extraordinary ability requirements outlined above, please contact us at 214-999-9999.

Foreign Farm Workers May Get Pay Cut

As reported in the Houston Chronicle yesterday, a proposed regulation from the Labor Department could have the effect of reducing wages paid to legal immigrant farm workers. Here are excerpts from the story:

The Labor Department planned Wednesday to propose changes to the foreign agriculture worker program, among them how the base wages for H2-A visa holders are determined. Streamlining the hiring process for H2-A visa holders could help turn employers away from hiring illegal workers, officials said.

Right now, the base pay for H2-A agriculture workers is set by the Agriculture Department's Farm Labor Survey and varies by state. Within a state, the pay is the same regardless of what job a worker performs.

However, the Labor Department wants to use the Bureau of Labor Statistics' Occupational Employment Survey, which would allow officials to consider what workers do and their skill levels. It also would allow officials to divide the country into more than 530 areas and to pay wages appropriate to each area.

Under the H-2A program, farmers may apply to bring in foreign workers if they can show the supply of U.S. workers is inadequate. The new regulations, which were to be proposed by the Labor and Homeland Security departments, would be the first changes to the H-2A visa system in 20 years.

More than half of U.S. farm workers admit on Labor Department surveys that they are not legally authorized to work. Some groups believe it's actually about 70 percent.

Employers consider the H2-A program burdensome and many hire undocumented workers rather than use it. Critics say employers don't like the program's wage, housing and other requirements. Labor officials plan to make the application process easier for employers wanting foreign farm workers.

The H-2A system requires that above-average wages -- called the adverse effect wage rate -- be paid to those workers.

In 2007, the highest adverse effect wage rate was $10.32 in Hawaii and the lowest was $8.27 in Arizona. In North Carolina, where the largest number of H-2A visas are issued, the adverse effect wage rate was $9.02.

Go Home To Foreign Country For Two Years Or Apply for A Waiver And Stay In The United States?

The Immigration and Nationality Act of 1952, as amended (INA), stipulates that physicians who have entered the United States to undertake a J-1 graduate medical training or education program are uniformly subject to the obligation to return to their home country or country of last residence for a period of two years. INA §212(e). J-1 visa holders are eligible for waiver of the two-year home residence requirement based upon exceptional hardship to a U.S. citizen or permanent resident spouse or child. INA §212(e). There are three other bases for filing a waiver to the two-year foreign residency requirement, but this discussion will be on the exceptional hardship waiver.

In determining a hardship waiver, exceptional hardship must be shown with respect to the U.S. citizen spouse or child in the event they remain in the United States and the foreign spouse returns to the home country. The applicant must also show hardship if the spouse or child accompany the foreign national abroad for two years.

Factors considered to form the basis of exceptional hardship include where the U.S. citizen spouse would be required to interrupt a professional career, suffer unemployment and separation of family.The country conditions to which the exchange visitor and the U.S. citizen or resident spouse would return must also be considered, particularly where they are shown to impact psychological and physical health. Other factors are considered to form the basis of a finding of exceptional hardship as well.

For example, where it is shown that the citizen spouse would suffer adverse consequences to their medical studies by the departure of their J-1 spouse, and that their career would be set back if he or she were either to interrupt their education or attempt to continue their studies in the spouse's country. Similarly, the threat of disruption of the education of an exchange visitor's spouse would constitute sufficient hardship to justify granting the waiver. In evaluating a claim of exceptional hardship, evidence of the disruption of the career or of the education of the U.S. citizen or resident spouse will be considered, along with other relevant factors mentioned above.

To learn more about waivers to the two-year foreign residency requirement, please call us at 214-999-9999.

Emergency Travel - Get An Advance Parole

Foreign nationals who do not have a valid immigrant visa and wish to travel multiple times outside the United States will need permission to re-enter the United States. An individual who filed an adjustment of status (AOS) application will need a travel document (advance parole) to re-enter the United States. If the AOS application is pending, the foreign national should submit form I-131 Travel Document Application prior to departure. Otherwise, if the foreign national leaves the United States while the AOS application is pending, the application will be deemed abandoned and the AOS application will eventually be denied.

Be aware travelers, in order to avoid the termination of a pending AOS application, it is imperative to apply for Advance Parole prior to leaving the United States. An advance parole is approved within 90 days and is valid for multiple trips throughout one year. Of course, once the foreign national receives his or her green card, an advance parole is no longer needed.

Please note there are certain foreign nationals who may not apply for advance parole. An advance parole document is not available for individuals in the United States illegally, under removal proceedings, or who are exchange foreign nationals subject to the residency requirement.

Please contact us to learn more about Advance Parole and the information needed to apply for an Advance Parole.

H-2A Visas - Doing It The Right Way

U.S. companies wanting to bring foreign nationals into the United States to perform agricultural labor or services of a temporary or seasonal nature may do so by demonstrating that no U.S. worker is willing, able, qualified, and readily available to perform such service or labor. Under the H-2A program, a U.S. employer must conduct serious recruitment, such as placing a job opening with the State Workforce Agency, and advertising in a newspaper of general circulation in the area of employment. After the recruitment period establishes that there are no U.S. workers capable of performing such agricultural service, and that the employment of the foreign nationals will not adversely affect the wages and working conditions of similarly employed U.S. workers, the employer will file a labor certification with the Department of Labor (DOL).

Once the DOL grants the labor certification, a petition for the foreign national to perform the agricultural labor/services of a temporary or seasonal nature is filed with the U.S. Citizenship and Immigration Services. An approved petition is then forwarded to the U.S. Consulate where the worker applied for the visa.

An H-2A visa is granted for up to a year and may be extended once for two years, for a maximum of three years. If you need more information regarding H-2A visas, please contact us at 214-999-9999.

Business Visitors -- The B-1 Visa

A foreign national who wishes to enter the United States "on business" must first obtain a B-1 visa from the U.S. Consulate or Embassy in his or her home country. The B-1 visa allows the foreign national to enter the United States temporarily for business. However, the business visitor is not authorized employment in the United States.

For example, if the purpose of the foreign national's planned travel is to meet with business associates, travel for a business convention or conference on specific dates, or settle or negotiate a contract, then a B-1 visa would be necessary. Since the purpose of the trip and visa is temporary in nature, the foreign national needs to establish there is no intention of abandoning his or her home country. Documentation must be presented to the consul establishing intent to return to the home country. An individuals should therefore provide sufficient ties to the home country -- such as an employment letter, financial connections, bank accounts, close family ties, copies of recent tax returns, copies of recent paycheck stubs, copies of mortgage, lease, or other documents demonstrating residence.

Please contact us to learn more about the B-1 visa.

TN Visas - For Mexican And Canadian Professionals

Citizens of Mexico or Canada may opt for a TN visa instead of being subject to the annual cap of the H-1B visa. The TN visas are similar to the H-1B visas in that the visa is designed for professionals that have attained the requisite education and experience. Examples include accountants, architects, hotel managers, dentists, librarians, engineers, doctors (who are in teaching and research positions), animal breeders, animal scientists, and management consultants. The pertinent occupations are listed in the regulations, and the North American Free Trade Agreement (NAFTA), whereas the experience and education levels are specified in the regulations. There are a few cases where a degree is not required such as management consultants.

Although a TN visa is valid for one year, it may be renewed every year. It is vital to note that TN visas have a temporary intent requirement and the individual must have intent to return to his/her home country of Mexico or Canada. The process of submitting TN applications are different for Canadians and Mexicans. A Canadian citizen will present all documents and apply for TN status at any port of entry such as the airport. No visa is issued only an I-94 card. On the other hand, a Mexican citizen will apply for TN status at the U.S. Consulate.

If you are a citizen of Mexico or Canada and want more information on the Professional Nonimmigrant visa, please call us at 214-999-9999.

The U Visa -- For Victims Of Criminal Activity

The Victims of Trafficking and Violence Protection Act was passed in 2000 creating the "U" nonimmigrant classification. The U visa is available for undocumented immigrants who have suffered substantial physical or mental abuse as a result of having been a victim of a criminal activity. The individual must demonstrate the following: he or she has information concerning the criminal activity; the law enforcement officials, prosecutors, judges, or other investigating authorities provided a certification indicating that the individual has been helpful, is being helpful or is likely to be helpful; the criminal activity must have violated the laws of the United States, or have occurred in the United States.

The victim of the criminal activity must file Form I-918, Petition for U Nonimmigrant Status, at the Vermont Service Center. To determine what qualifies as a violation of a criminal activity, guidance is provided by statute that the activity is in violation of a Federal, State or local criminal law. Examples include but are not limited to rape, torture, sexual exploitation, trafficking, incest, domestic violence, sexual assault, abusive sexual contact, prostitution, involuntary servitude, kidnapping, abduction, false imprisonment, murder, blackmail, and obstruction of justice. Along with the petition, the individual must provide evidence that he or she suffered direct and proximate harm as a result of the criminal activity. The evidence may include trial transcripts, court documents, police reports, news articles, affidavits, or orders of protection.

Until the final regulations are issued, individuals who demonstrate eligibility for U visas are granted interim relief. Following the grant of interim relief, the individual may apply for work authorization. After three years of being present in the United States, and for humanitarian grounds, the U visa holder may adjust his or her status.

To learn more about the U visa and its process, please contact us at 214-999-9999.

Apply Early For H-1B Visas!

H-1B visas are work visas that allow foreign nationals to temporarily work in the United States for a U.S. employer.  A U.S. employer may petition a foreign national under the H-1B classification that specifically applies to individuals in a "specialty occupation." A specialty occupation has three requirements. First, an individual must have a bachelor's degree or higher degree or its equivalent for the particular position. Second, the degree is common in the industry among similar organizations. Third, the employer normally requires a degree or equivalent; or the nature of the specific duties is so specialized and complex that knowledge required to perform the duties is usually associated with attainment of the degree. 

Individuals with H-1B visas are allowed to work in the United States for up to six years, but visas are granted in three year increments. In some cases, the H-1B visas may be extended for more than six years. If the individual is in the United States, a change of status to an H-1B is filed in the United States. If the individual is outside the United States, upon approval of the petition, the individual must apply for an H-1B visa at the U.S. consulate. There are only 65,000 H-1B visas issued per year. The fiscal year for 2008 reached its cap on the very first day cases were accepted for filing (April 1, 2007).

The beginning of the fiscal year for 2009 is October 1, 2008.  Employers may begin filing their petitions six months prior to the start date of employment but the individuals can not start their job until October 1.   

It is vital for those individuals wishing to work in the United States to begin preparing their H-1B paperwork before the cap is reached. Please call us at 214-999-9999 if you would like more information on beginning the H-1B process.

USCIS Reaches H-2B Cap For Second Half Of Fiscal Year 2008

Unfortunately for those employers who can't find U.S. citizen workers for non-agricultural temporary employment, the government has announced that the quota has already been reached for H-2B workers for the second half of fiscal year 2008. This means that no one else will be allowed to apply for jobs in the United States if the starting date of employment is before October 1, 2008.

This is further evidence that the artificial caps for H-1B and H-2B visas are long overdue for increases. The caps haven't changed in many years, despite the growth in the U.S. economy. Any employers hoping for worker visas for jobs beginning after October 1, 2008, better get ready to start the process.

Here is the announcement from USCIS:

--U.S. Citizenship and Immigration Services (USCIS) announced today that it has received a sufficient number of petitions to reach the congressionally mandated H-2B cap for the second half of Fiscal Year 2008 (FY2008). USCIS is hereby notifying the public that January 2, 2008 is the "final receipt date" for new H-2B worker petitions requesting employment start dates prior to October 1, 2008. The "final receipt date" is the date on which USCIS determines that it has received enough cap-subject petitions to reach the limit of 33,000 H-2B workers for the second half of FY2008.

The cap was reached with existing totals for that day. USCIS will reject petitions for new H-2B workers seeking employment start dates prior to October 1, 2008 that arrive after January 2, 2008. USCIS will apply a computer-generated random selection process to all petitions which are subject to the cap and were received on January 2, 2008. USCIS will use this process to select the number of petitions needed to meet the cap. USCIS will reject, and return the fee, for all cap-subject petitions not randomly selected. Petitions for workers who are currently in H-2B status do not count towards the congressionally mandated bi-annual H-2B cap. USCIS will continue to process petitions filed to:

  1. Extend the stay of a current H-2B worker in the United States;
  2. Change the terms of employment for current H-2B workers and extend their stay; or
  3. Allow current H-2B workers to change or add employers and extend their stay.

Religious Workers - R Visa

A religious organization in the United States may sponsor an individual from another country who has been a member of a religious denomination for two years immediately preceding the filing of the application. If the appropriate Petition and supporting documentation are submitted, the individual may qualify for a nonimmigrant R visa. If the individual is the United States, the religious organization must file Form I-129 Petition for a Nonimmigrant Worker, along with the R Classification Supplement in the United States. If the individual's spouse and children are accompanying or following to join him or her, then Form I-539 should be filed with the I-129 Petition.

The petition must be supported with documentation establishing that the individual seeks to enter the United States solely for the purpose to:
   1) carry on the vocation of a minister of that religious organization; or
   2) work in a professional capacity for that religious organization at the request of the organization; or
   3) work at the request of the organization in a religious vocation or occupation for the organization (or its § 501(c)(3) affiliate).

The petitioner (religious organization) must show that it is a bona fide, non-profit, tax exempt religious organization under § 501(c)(3) of the Internal Revenue Code. This can be shown by submitting copies of the organization's articles of incorporation, bylaws, financial statements, and letters from the Internal Revenue Service showing that the religious organization is nonprofit and exempt from taxation.

Furthermore, a letter from an authorized official should indicate that the individual has been a member of the religious organization and that the foreign and U.S religious organizations belong to the same religious denomination. The religious organization should provide a sworn statement by an authorized official outlining the hours the individual will work, the duties and responsibilities the individual will perform and the remuneration the individual will receive. Once the R-1 visa is approved, the religious worker, spouse, and children (under 21 years) are granted admission for three years which may be extended for an additional two years.

The R visa allows the individual to apply for permanent residency. If an individual has been in R status for at least two years, a Special Immigrant Petition I-360 may be filed by either the Religious worker or the employer. The Special Immigrant Petition is a step towards obtaining permanent residency. Please contact us if you have any questions regarding Religious Worker visas.

Bush Administration Backing Down From Announced Plan To Punish Employers

The New York Times is reporting that the Bush administration is backing down from the announced policy of punishing employers who hire illegal immigrants. The proposed rule was to enforce so-called "no match" letters from the Social Security Administration by prosecuting employers who did not fire employees whose Social Security numbers did not match the database of the Social Security Administration. Here are excerpts from the New York Times article:

Instead, the administration plans to revise the rule to try to meet concerns raised by a federal judge and issue it again by late March, hoping to pass court scrutiny on the second try. The rule would have forced employers to fire workers within 90 days if their Social Security information could not be verified.

The government's proposal was a response to an indefinite delay to the rule ordered Oct. 10 by the judge, Charles R. Breyer of Federal District Court in San Francisco. Judge Breyer found that the government had failed to follow proper procedures in issuing the rule and that it should have completed a survey of its impact on small business.

He also found that the Social Security database the government would use to verify workers' status was full of errors, so the rule could lead to the dismissal of many thousands of workers who were American citizens or legal immigrants.

In a four-page motion filed Friday, the government, without acknowledging any flaws in the original rule, asked Judge Breyer to suspend the case so the Department of Homeland Security could rewrite the rule and conduct the small-business survey, which it expects to do by March 24. The government said that it wanted to "prevent the waste of judicial resources" and that it was confident the amended rule would "fully address the court's concerns."

The rule laid out procedures for employers to follow after receiving a notice from the Social Security Administration, known as a no-match letter, advising that an employee's identity information did not match the agency's records.

The employer would have had to fire an employee who could not provide verifiable information within 90 days, or face the risk of prosecution for knowingly hiring illegal immigrants. Those immigrants often present fake Social Security numbers when applying for jobs.

Judge Breyer also stopped Social Security from sending out about 141,000 no-match letters, covering more than eight million workers, which contained instructions from Homeland Security about the rule. Social Security sends the letters to clarify workers' information so it can correctly credit taxes deducted from their wages.

Some businesses welcomed the rule because it clarified what they had to do to avoid immigration raids. But the labor unions cited a report from the inspector general of the Social Security Administration finding that 12.7 million of the records of United States citizens in the agency's database contained errors that could lead to them being fired.

Tech Industry Seeks Visa Reform

The Dallas Morning News had an interesting article yesterday about the tech industry lobbying to raise the cap on H-1B visas. Here are a few excerpts:

High-tech workers here on federal permits are speaking out - many for the first time - over rules that leave them for years in personal and professional limbo.

After Congress failed to reform immigration laws for the second year in a row, hundreds of the largely India- and China-born workers protested this summer in Silicon Valley and Washington, D.C. They were frustrated that the divisive debate over illegal immigration had overwhelmed efforts at comprehensive immigration reform.

Legal immigrants who feel squeezed by limits on the number of green cards issued each year are trying to separate their complaints from the protests by illegal immigrants. And high-tech companies that say they can't fill jobs because of a cap on skilled-worker visas have stepped up their long-standing plea for the cap to be raised.

The green card application system is akin to "indentured servitude," said Kim Berry, president of the Programmers' Guild, a group that opposes current work visa laws. "It takes years for the green card sponsorship to happen, and they can't leave, can't ask for a raise unless they want to lose their place in line."

Applications for work-related green cards - limited to 140,000 each year, about 9,800 per sending country - are backlogged so deep that many immigrants must plod along for years, uncertain about their future in the United States and unable to change jobs while they wait for permanent residence.

And immigration officials resorted to a lottery for H1-B work visas this summer when businesses filed - on just the first day the government was accepting applications - double the number that could be considered the whole year. Three years ago, it took 10 months for businesses to fill the annual quota.

More than 1 million foreign nationals were in line for permanent residency in 2006. More than 500,000 came into the U.S. on H1-Bs, and the rest through family connections.

Microsoft Corp. was the third-largest sponsor of H1-B visas in the last federal fiscal year. But it still didn't get all the foreign workers it wanted into the country. The company's government affairs director said this was one motivation for Microsoft to open a new software development center in Canada.

"We currently do 85 percent of our development work in the U.S., and we'd like to continue doing that," said Jack Krumholtz. "But if we can't hire the developers we need ... we're going to have to look to other options to get the work done."

About 8 percent of Mountain View-based Google Inc.'s employees currently work under H1-B visas. This year, the company posted 70 new foreign hires overseas when they couldn't get visas. They'll try again next year.

Smaller companies, which may need only one foreign worker, argue they suffer most under the visa cap because they don't have the flexibility of the giants in the field.

Immigration From Iraq Or Afghanistan

At Kraft & Associates, we recently had an inquiry from a soldier who had just returned from Iraq. He had promised his Iraqi translator that he would try to help the translator gain entry into the United States.

We had to tell this good-hearted military man that the United States has been embarrassingly slow to admit any Iraqi citizens into our country, including those who risked their lives by helping our military. This year alone, Switzerland has accepted thousands of Iraqi refugees, while the United States has accepted only a few hundred, almost all of those in the past two months.

However, there may be something that can be done for these people. Depending on the exact situations and the eligibilities, they may be able to enter the U.S. as Special Immigrants. Translators for the U.S. Armed Forces may be eligible to enter the United States, and are protected under the National Defense Authorization Act.  To benefit from this act they must demonstrate the following:

  • National of Iraq or Afghanistan;
  • worked directly with U.S. Armed Forces as a translator for a period of at least 12 months;
  • obtained a favorable written recommendation from a general or flag officer in the chain of command;
  • cleared a background check and screening as determined by the general or flag officer before filing the petition; and
  • they are otherwise admissible except for 212(a)(4) (public charge)

They must file their petitions on form I-360.  The biggest hurdle to overcome is that there are only 50 visas available per year. Spouse and children may accompany or follow to join if the principal applicant is approved.

Columnist: Economy Hurt By Lack Of Immigrant Workers

If authorities continue to crack down on illegal workers, the full Congress will learn the need for comprehensive immigration reform.

The raids and arrests that have occurred so far have already had an economic impact on the nation's agriculture industry.

Other segments of the economy can expect a sharp downturn as employers lose access to a valuable illegal immigrant workforce.

Unless Congress acts quickly to overhaul the nation's dysfunctional immigration system, Americans can expect to experience a significant jump in prices at the grocery store.

The hit on American pocketbooks will not be limited to price hikes and shortages at the supermarket. Across the economy, many services will decline while direct costs will rise.

Evidently, not enough members of Congress play chess. Even beginning chess players know they must think several moves ahead to have any chance at winning.

Congress' enforcement-only camp succeeded in shooting down a comprehensive immigration reform bill supported by President Bush and a bipartisan assemblage of Democrats and Republicans.

The legislation would have provided a method to legally match foreign workers with American employers.

In another example of being careful about what you ask for, immigration authorities have stepped up enforcement of long-ignored laws that make it illegal for U.S. employers to hire illegal immigrant workers.

Additionally, Homeland Security Secretary Michael Chertoff announced a new policy that requires employers to follow up on "no-match" letters from the Social Security Administration.

These letters will inform employers when the nine-digit sequence of numbers provided by their workers does not to match the Social Security database.

For years now, employers have known that nothing would happen to them when they wadded up and tossed these no-match letters into the nearest trash can.

Now, employers have been told that if they do not clear up mismatched Social Security numbers, then the identified workers must be fired or the employers will face fines up to $10,000, as well as possible criminal charges.

It's been unlawful to hire illegal workers for decades. About the only time the immigration law has made news has been when a presidential nominee was discovered to have hired an illegal nanny.

Breaking the immigration law has been enough to disqualify a nominee from a plum government appointment, but not enough to motivate immigration authorities to enforce the law on employers across the nation.

Full enforcement of the new no-match requirement will only disrupt a fraction of illegal workers who can buy, borrow or steal valid Social Security numbers.

Also, the letters will only be sent to employers with at least 10 workers with mismatched Social Security numbers, and where those workers make up at least 0.5 percent of their workforce.

An estimated 75 percent of day laborers are illegal and undocumented. As a rule, no documents are requested and none are given. Many of these workers endure wage theft from unscrupulous employers.

Still, the recent baby steps that have been taken to enforce long-standing immigration laws have caused serious disruptions in the operations of many American businesses as word of the crackdowns has spread.

Early reports indicate that many farmers will produce only 50 percent of their normal crops due to the growing labor shortage.

In some cases, farmers have chosen to not plant due to the difficulty in finding workers to harvest the crops.

It is estimated that at least two-thirds of the workers in construction and agriculture are working illegally.

The enforcement-only critics who killed comprehensive immigration reform should have easily predicted this outcome. But they didn't.

Rowland Nethaway writes for the Waco Tribune-Herald.

Microsoft Moves Jobs To Canada Because Of U.S. Immigration Caps

An editorial this week in the Los Angeles Times details one of the reasons Microsoft has elected to build its new research center in Canada rather than in the United States. Excerpts from the editorial:

Microsoft [is] hiring several hundred software wizards to help develop new products. Instead of landing at the Redmond, Wash., mother ship, however, the new workers will toil in Vancouver, British Columbia. Here's why, according to the company's news release (emphasis added): "The Vancouver area is a global gateway with a diverse population, is close to Microsoft's corporate offices in Redmond and allows the company to recruit and retain highly skilled people affected by immigration issues in the U.S."

Consider it just the latest in a series of monuments to the United States' botched immigration policy, as well as a reminder of the Senate's recent failure to pass a comprehensive fix despite bipartisan support. High-tech companies are so frustrated by the limits on visas for skilled labor that they're not just opening offices in India and China to recruit local talent. They're also putting facilities in places like Vancouver for prized recruits from around the world -- many of them trained at U.S. universities -- who cannot work here.

The demand for H-1B visas for high-skilled immigrants has become so much greater than the supply that almost twice as many applications arrived in a single day as there were slots available for the year -- 65,000, plus 20,000 for those with advanced degrees from U.S. schools. Other countries, by contrast, are starting to make it easier for skilled workers to immigrate. That's because they're focusing on the benefits those employees can bring to their economies, not the competition they present to native labor.

Many of these immigrants become the innovators and entrepreneurs who create companies, employ more people and create wealth. Just look at the U.S. experience -- about 25% of all venture-capital-backed start-ups here were launched or co-founded by foreign nationals, including Yahoo, Google and EBay. The same benefits come from talented U.S. workers too, but not enough of them are pursuing science, math and engineering careers to fill the voracious demand at Microsoft and other high-tech powerhouses. A comprehensive fix to U.S. immigration policy is overdue, but failing that, Congress should at least adopt a more sensible approach to H-1B visas.

New York Times Article On Visa Bulletin Scandal

The scandal/confusion regarding the latest Visa Bulletin has found its way into the New York Times today. Here are excerpts from the article:

Immigration lawyers raised unusually irate protests yesterday after the State Department and the immigration service abruptly withdrew tens of thousands of job-based visas they had offered last month to foreign professionals hoping to become permanent residents in the United States.

The outcry was provoked by a terse announcement on Monday in which the State Department said it would not grant any more visas for the 2007 fiscal year to foreigners applying to become permanent residents based on their job skills. That notice reversed one the department had issued on June 13 announcing a two-month window starting July 2 for aspiring, high-skilled immigrants from around the world to present applications for visas known as green cards.

The State Department said the 60,000 visas it had expected to offer would no longer be available because of "sudden backlog reduction efforts" by Citizenship and Immigration Services, the federal agency that processes applications for the visas offered by the department.

In a statement yesterday, the American Immigration Lawyers Association accused the two agencies of perpetrating a "hoax" and a "bait and switch" against hopeful legal immigrants who played by the book.

To apply, immigrants must undergo medical examinations and assemble documents to prove their job skills and show that a United States employer has sponsored them. Foreigners must be in the United States when they present their applications, which are processed on a first-come, first-served basis.

Because of backlogs for employment-based visas, foreigners have had to wait many years just to be allowed to file their applications.

Thousands of medical and technology professionals, including many working here on temporary visas, scrambled for weeks to get their documents together, in some cases canceling travel plans, in order to file their applications on Monday, the first day of the window. The State Department and the immigration agency closed the window without accepting a single application.

"I am concerned that such action may violate the law and could threaten the integrity of our immigration system," Representative Zoe Lofgren, Democrat of California who is chairwoman of the House Judiciary subcommittee on immigration, wrote in letters yesterday to Michael Chertoff, the secretary of homeland security, and Condoleezza Rice, the secretary of state. Ms. Lofgren warned that the federal government could face costly litigation because of its change of course.

The State Department said it would begin accepting applications on Oct. 1 for 2008 visas. On July 30, the immigration agency will raise its processing fees by an average of 66 percent.

Updating Your Address With Immigration Services

We've written about the subject of updating addresses before, but we get this question asked so many times we're going to revisit the situation.

On January 12, 2007, U.S. Citizenship and Immigration Services announced a new program that allows U.S. immigrants to update their addresses online. Currently, all non-citizens in the U.S. are required to keep Immigration Services updated as to their most current addresses. Immigration Services must be notified within ten days of any change in address. Previously, this was done either by calling USCIS or completing a change of address card (Form AR-11), which was mailed to USCIS.

USCIS now accepts change of address information online. This new service reduced processing times, since Immigration Services typically receives over one million change of address requests each year. Additionally, this new service is convenient and easy to use.

It is vital that you continually notify Immigration Services of any change in address. This is particularly important when you have filed an application or petition for a benefit under the Immigration and Nationality Act and expect notification of a decision on that application. In addition, the USCIS may need to contact you to provide other issued documents or return original copies of evidence you submitted.

You should include the following information in your change of address request:

* For the change of address Form AR-11, complete the information requested on the form, including present address, last address (most recent only), alien or registration number, country of citizenship, date of birth, and your signature.

* You do not need to include temporary addresses as long as you maintain your present address as your permanent residence and continue to receive mail there.

* When sending a change of address, you do not need to include numerous last addresses; only the most recent last address is needed.

* Be sure to also indicate in the appropriate block on the AR-11 your current employment and school, where applicable.

You can find and print the change of address form online at this USCIS page. If you would prefer to update your address automatically through the USCIS Eeb site, please visit this change of address page.

Playing By The Rules: A Guide for U.S. Employers

The current immigration debate isn't just about undocumented persons in the United States, it's also about U.S. employers hiring foreign workers. In many situations, companies hire foreign nationals who are already in the United States or who are interested in coming to this country to work. The following are guidelines that all employers should keep in mind:


1. Carefully audit the company's I-9 compliance, take corrective action, and be prepared for sudden employer-sanctions enforcement.

Every employer is required to have an I-9 form completed for each employee hired since Nov. 6, 1986, and potentially faces up to $1,000 fines per worker (alien or not) for failure to file the technical requirements. In the last year, Immigration and Customs Enforcement has filed criminal charges against employers who commonly employ undocumented workers.

Ensure that employees present original documents to establish their identity and employment eligibility within three business days of the date employment begins. (If they cannot produce the required documents by then, employees must produce receipts showing they have applied for the documents; they then must present the document within 90 days of hire.)


2. Maintain all I-9s and take stock of your I-9 compliance.

It's a good practice to have all new hires complete and sign Section 1 of the I-9 on their first day of work, but never before you extend a job offer to the applicant. Make sure you carefully review each employee's documents to make sure they are on the I-9 list of acceptable documents. Review the documents to see if they appear to be genuine.

Employers should always remember the following practices when obtaining employee information for I-9s:

* Don't ask for any particular documents or for more documents than the I-9 requires.

* Don't consider the expiration date of any of the I-9 documents.

* Do keep I-9s and copies of document for three years after the employee's date of hire or one year after the date of termination, whichever comes later.

* Do keep I-9 documentation separate from the employee's personnel file to protect yourself from a discrimination claim.


3. Keep all workers in legal status.

All employers should make sure that aliens are in valid immigration status or have a valid, unexpired employment authorization document. If a worker requires an extension of status, make sure to apply for one several months in advance. The short "overstay" results in automatic cancellation of the alien's visa, which can only be replaced at a U.S. consulate in the alien's home country. Technical violations of U.S. immigration status that persist for more than 180 days might lead to a three-year or ten-year bar of the worker from the United States.


4. A U.S. employer cannot engage in discrimination on the basis of citizenship status.

Employers are prohibited from discriminating against persons in hiring, discharging, and recruiting and referring for a fee because of their citizenship status. Permanent and temporary residents, refugees, asylees, and U.S. citizens are all protected. Fines are up to $1,000 per person for violations where the employer requests more or different documents than are required, or refuses to honor documents that reasonably appear to be genuine. Other types of discrimination carry fines of up to $2,000 per person for the first offense, $5,000 for the second offense, and $10,000 for the third and subsequent offenses. In addition to fines, employers can be ordered to pay lost wages for applicants not hired or employees discharged in violation of discrimination provisions. Employers can be ordered to hire applicants or reinstate discharged employees if discrimination is found.


5. Immigration law is complex and rapidly changing.

Immigration law is complex and is derived from federal statutes, federal court cases, and federal rules. It involves the Department of Labor, the Department of Homeland Security and the Department of State. A tremendous backlog of cases and processing delays has resulted from the involvement of several different agencies in the immigration process.

The status of employees in the U.S. is something that should be in the forefront of every employer's mind. An employer should attempt to stay informed of all developments in this important area of the law. An attorney who is experienced in immigration law can help you with all of your questions today.

The Difference Between Visa And Status

Over the last several years many foreign nationals who are in the United States legally have often used the words "visa" and "status" interchangeably. In too many cases this has led to disastrous results for those people.

Anyone who wants to enter the United States will have to go through an inspection by an immigration officer at the border prior to entry. The officer will normally issue an I-94 card that allows the foreign national to enter the U.S. for a specific purpose and for a specific duration of time. The above falls into the concept of "status." For example, a British citizen who flies to the U.S. for a vacation will go through an inspection at the airport and an I-94 card will be placed in his passport. The I-94 card is usually valid for six months and allows the British citizen to hold the status of a tourist for six months while in the United States.

A person admitted in one status may seek a change of status into a new classification (such as from F-1 to H-1B). Also, the duration of a person's stay may be extended by Immigration Services.

A "visa" on the other hand, is a document that allows a person to come to a port of entry and apply for admission into the United States. A visa allows for a person to apply to enter the U.S.; it does not provide a person with "status." A person applies for a visa at a U.S. consulate in his or her home country. However, issuance of a visa does not guarantee a person's admission into the United States.

If a citizen of India wishes to visit family members in the U.S. she will apply for a tourist visa at a U.S. Consulate in India. If the application is approved, the U.S. Consulate will usually issue a tourist visa that is valid for ten years. Therefore, the Indian citizen now possesses a visa. However, at the port of entry she will go through inspection and will be issued an I-94 card that is usually valid for six months. This means that although this person has a valid ten-year tourist visa, she is only authorized to have status as a tourist for six months.

As shown above, a visa is only for the purpose of admission into the United States, not for the purpose of remaining in the United States. To remain in the United States, a person must have status, which is evidenced by the validity dates of the I-94 card. If a person remains in the U.S. past the expiration date of the I-94 card they no longer have legal status in the U.S. even if their visa has not yet expired.

Finally, a non-immigrant visa holder violates his or her status in the United States if the person:

remains beyond the expiration date of the status granted;

engages in employment without specific authorization; or

engages in an activity that is not consistent with the status in which the person was admitted.

A person in this situation must immediately attempt to regain status to avoid removal from the U.S. and to prevent other serious immigration consequences.

H-2B Visas: The Other H Cap

Many individuals and employers in the United States are unaware of the existence of the H-2B visa. Although it is not as common as the H-1B visa, it is still an attractive option to individuals wanting to live and work in the U.S.

The H-2B visa is similar to the H-1B visa since the H-2B nonimmigrant work visa also provides a method for U.S. employers to obtain the services of foreign nationals to fill temporary needs of the business or corporation. The H-2B visa, however, has many stringent requirements that must be met prior to filing, which is the main reason for its underuse.

One of the most significant restrictions on the H-2B category is the requirement that the need for the foreign worker be temporary. There are four situations in which there is a temporary need for workers: recurring seasonal need, intermittent need, peak-load need, and need based on a one-time occurrence. It is this requirement that makes this visa category so rarely used. Not only must the employer promise to employ the worker for a limited period of time, the employer must attest that its need for the worker is temporary.

Another cumbersome requirement of the H-2B visa is the requirement that a labor certification be approved prior to filing the visa petition. The Department of Labor must determine that there are no unemployed, qualified U.S. workers available for the position in the area of the proposed employment, and that employment of the foreign national will not adversely affect the wages or working conditions of U.S. workers. The employer must also conduct a recruitment campaign to prove that there are no qualified willing and able U.S. workers for the position.

Although the process to obtain an H-2B visa can be lengthy, there are many benefits in having an H-2B visa. A person can enter the U.S. for temporary work and enjoy all employee benefits. H-2B visa holders can bring dependents to the U.S., travel freely in and out of the U.S., and a new petition can be approved if there is a need to change jobs.

The H-2B work visa was created to allow people to come to the United States temporarily, mainly for non-agricultural jobs, for which the U.S. workers are in short supply. Up to 66,000 H-2B visas are issued every year. Although the quota has been reached for the 2007 year, it is never too early to begin thinking of applying for this visa next year, which actually begins on October 1, 2007. If you are interested in obtaining more information on this visa, please contact us.

Department Of Labor Issues New Rules For Labor Certifications

On May 17, 2007, the Department of Labor (DOL) amended its administrative regulations as they relate to labor certifications. The new rules will go into effect on July 16, 2007. Cases already pending with the DOL will not be affected by the new provisions.

Many foreign employees in the U.S. would like for their employers to sponsor them for their green cards, or permanent residency. The first step in this process is obtaining a labor certification that has been approved by the DOL. A labor certification attests that there are not sufficient workers able, willing, qualified and available to perform the work, and that the employment of the foreign workers will not adversely affect the wages and working conditions of U.S. workers in similar positions. Once these certifications are made, the DOL will approve a labor certification.

The new rules issued by the DOL, however, drastically change the way labor certifications are handled. For example, current rules allow for substitution, where employers can replace one foreign worker in a labor certification for another without losing the employer's place in the processing line. The final regulation eliminates this practice, making it difficult for an employer to make a substitution should a worker be terminated or voluntarily leave the company.

The DOL will now also ban an employer from recouping the costs associated with the labor certification process from the foreign employee, including legal costs. From now on, any costs associated with preparing, submitting, and obtaining a permanent labor certification must be paid by the sponsoring employer and not paid by the employee. Many small to mid-sized companies ask their employees to pay legal costs associated with the employee's labor certification; the new rules do away with this, which may put a financial strain on employers.

The final rule also provides a 180-day validity period for approved labor certifications; employers will have 180 calendar days within which to file with Immigration Services an approved permanent labor certification in support of a Form I-140 Immigrant Petition for Alien Worker. The rule also prohibits the sale, barter, or purchase of permanent labor certifications and applications.

Dallas Morning News Speaks Out In Favor Of Proposed Immigration Bill

Today's Dallas Morning News editorializes in favor of the proposed compromise immigration bill. Here is the editorial:

Good Starting Point

But immigration plan will need some work

The fact that the Senate will return to immigration this week is a political miracle of sorts. Sharply divergent points of view - and we mean really sharp - have stalled the debate for an entire year.

Thanks, however, to brutal negotiations involving the White House and dedicated senators from both parties, the Senate will start with a bipartisan bill. Deserving of Texans' thanks for renewing the debate are President Bush, who has kept the issue alive in speeches, and lead Senate negotiators Ted Kennedy and Jon Kyl.

As an editorial board that has pushed hard for immigration reform, we think this bill is a good place to begin - but with the understanding that major work is still to be done:

The selling points

Border security: The plan doesn't wink at ratcheting up border security. The addition of 18,000 border agents and 70 new radar towers will help take the lawlessness out of the southern border. So will the resources to detain 27,500 aliens a day.

We have never been wild about a border fence, but the 370 miles of fencing and 200 miles of road barriers should satisfy those who think a wall will reduce the flow of illegal immigrants. In fact, border hawks should like that many security measures must be in place before a new temporary worker program starts.

Enforcing the worksite: One of the best parts is the new electronic identification system. Employers will know if they are hiring legal workers. There's too much uncertainty today when it comes to worker IDs. The situation in Cactus, Texas, proved that.

Unlike the current system, all workers must prove they are here legally. Under the new system, employers would run their info through a new national verification database. If those on the job aren't legal, the employers are fined and the workers are fired.

Pathway to citizenship: Mr. Kyl, a Republican, has reversed course and acknowledged that there's no way to correct our immigration problems without giving the estimated 12 million illegal immigrants living here a chance to earn citizenship. More power to the man for stepping forward, knowing many will scream amnesty.

It's not.

Illegal immigrants seeking citizenship must pay a $5,000 fine, possess a job, undergo a background check and wait eight to 13 years before becoming a citizen. They don't jump to the head of any line. In fact, they can't earn citizenship until all current applications are approved or rejected.

They can eventually earn citizenship, though, and that's crucial to getting immigrants to come out of the shadows.

What needs work

Temporary workers: 400,000 foreign workers could qualify for employment visas annually. That essentially matches the number of foreign workers who come here illegally each year.

There's a catch, though, that could make the provision unworkable. Temporary workers could earn three two-year work visas. In between each two-year stint, they would have to return home for one year.

The risk with the return-home requirement is that some workers may go underground and stay here. We would prefer that senators amend the bill to match the House plan, which has no return-home provision for temporary workers.

At the least, senators should amend it so more exceptions can be granted to workers in high-demand industries. That would minimize the temptation for some workers to go underground.

Green cards: Fortunately, temporary workers could earn a green card after their work stints end. But that could become a mirage if the Senate doesn't include enough cards that let workers stay here legally. (Green cards allow for legal permanent residency, not citizenship.)

The Senate would be foolish to ignore reality. Temporary workers with good jobs probably will stay here, even if they can't get a green card. So it's important to have enough cards to go around in order to know who is actually here.

This proposal represents an improvement over the status quo, but it's not the endgame. We urge Texas Sens. Kay Bailey Hutchison and John Cornyn to address these shortfalls this week.

The next few months will be like crawling through broken glass, as Frank Sharry of the National Immigration Forum aptly put it Friday. But Washington must grit its teeth and work through the pain if the nation is to finally fix our broken immigration system.STILL NOT SOLD? Why border hawks should like the Senate plan:

* 18,000 new border agents

* Ends "catch and release" of illegal immigrants

* 70 new radar towers

* Resources to detain 27,500 illegal immigrants a day

* An electronic verification system for all employees

* Illegal workers lose their jobs

* Employers face big fines

Delays Continue For H-1B Visas

U.S. Citizenship and Immigration Services has previously announced that the H-1B visa cap was reached within the first day of filing. In fact, so many visa petitions had been filed that a lottery system was set in place to randomly select the petitions that would be considered for an H-1B visa. The lottery took place on April 12, 2007.

Many individuals and employers are still waiting for any indication from Immigration Services about whether their H-1B petition was randomly selected for processing. USCIS admitted today that they were experiencing delays in issuing receipt notices for cases accepted for consideration for an H-1B visa.

For those who have been anxiously awaiting any news regarding the status of your case, there is still a chance that your H-1B visa petition has been selected and you simply have not received notification of this.

In fact, the backlog at immigration service centers is so great that other individuals or employers who have filed non-H-1B visa petitions are also experiencing delays in obtaining receipt notices for their cases.

Click for more information regarding the ongoing issuance of H-1B receipt notices.

For more information about immigration news, immigration laws, immigration policies, proposed immigration laws, border enforcement, green cards, citizenship, employment visas, family visas, naturalization, and other immigration subjects, please visit Immigration Law Answers and DFW Immigration Law Blog.

H-1B Master's Visas Still Available

USCIS has just announced that there are still visas available for those interested in obtaining an H-1B visa as long as they have at least a Master's degree or higher from a U.S. university.

USCIS announced last week that it had received enough H-1B petitions to meet the regular H-1B cap for fiscal year 2008. Each year, however, an additional 20,000 visas are made available to those persons having at least a Master's degree. It is this cap which has not yet been reached.

Our office has been receiving many questions regarding when the Master's quota for H-1B visas will be reached. There really is no possible way to answer this question. USCIS stated in its announcement that it had received 12, 989 cases on behalf of aliens holding a master's degree or higher from a U.S. university. It is extremely difficult to provide an estimate of when the remaining spots will be taken.

If you are interested in obtaining an H-1B visa, and you have at least a Master's degree or higher from a U.S. university, you must begin the visa petition process immediately. The remaining visas may be taken by other foreign nationals any day. We strongly recommend that people who wish to obtain an H-1B visa file the petition at the earliest opportunity to avoid a significant delay in employment authorization.

Please do not hesitate to contact us as soon as possible to begin your H-1B case today!

USCIS Announces H-1B Cap Reached

Immigration Services announced this afternoon that the H-1B cap has been reached for this year. USCIS began accepting H-1B visa petitions on April 2, 2007, and has stated that they have already received over 150,000 petitions.

Each year, the U.S. government makes 65,000 H-1B visas available to qualified individuals on a first-come basis. The cap has been reached every year for the last several years, although the cap has never been reached on the first day of filing.

USCIS must now perform data entry on all of the visa petitions received on April 2. Once this is completed, the petitions will be subjected to a computer-generated random selection process to determine which petitions will be counted towards the cap. Petitions which are rejected will be returned.

The lottery itself, and the results of the lottery, will not be disclosed to the public for some time because of the high number of filings. The announcement from USCIS does not come as a complete surprise. Immigration attorneys have been predicting for some time that the H-1B cap would be reached on the first day of filing.

H-1B visas are a relatively swift path to work in the U.S. for foreigners with bachelor's degrees and with U.S. companies to sponsor them. Immigrants, along with the U.S. technology industry lobby, have been advocating for an increase in the H-1B quota to reform the visa program. A current bill under review proposed raising the H-1B visa cap from 65,000 to 115,000.

If you would like more information regarding the H-1B visa cap, please read the announcement issued by USCIS.

Could H-1B Cap Be Passed On The First Day?

There is great concern among immigration lawyers that U.S. Citizenship and Immigration Services (USCIS) may have reached the cap on H-1B visas even before the end of the first day of filing, which was April 2, 2007. Reports are surfacing that USCIS received a huge number of envelopes and packages that day, far more than the 65,000 number of H-1B visas available.

This is all unconfirmed at this time, but if true, could be devastating news to those who did all their paperwork properly, filed on the first possible date, and now may have their application denied.

A previous announcement from USCIS explains that if this situation should occur, all the applications received that date would be sorted in a random manner, by computer, and that will be the order in which the applications are accepted.

What a terrible situation -- to have the future of your immigration status come down to the random "whim" of a USCIS computer.

Here is the text of the USCIS announcement, with the applicable portion bolded:

U.S. Citizenship and Immigration Services (USCIS) will, on April 2, 2007, begin accepting H-1B petitions subject to the fiscal year 2008 (FY08) H-1B cap. Because March 31 and April 1 are non-business days, USCIS will not take possession of mail delivered during the weekend until Monday, April 2, which is the first business day of the FY08 H-1B filing period. USCIS will not reject cases delivered during the weekend. Instead those petitions will be treated as if they arrived on April 2. The deciding factor for USCIS is not when the petition is postmarked, but when USCIS takes possession of and stamps the petitions as received.

USCIS will monitor the number of petitions received and will notify the public of the date USCIS has received the necessary number of petitions to meet the H-1B cap, known as the final receipt date.

The date USCIS publishes information that the cap has been reached does not control the final receipt date. USCIS Announces Direct Filing Instructions for Forms I-129 and I-539 Under the Bi-Specialization Initiative posted on the USCIS website. The filing charts are also available on the USCIS website. For filing updates and additional information or call USCIS customer service at (800) 375-5283.

To ensure a fair and impartial system, USCIS will, if needed, randomly select the number of petitions required to reach the numerical limit from the petitions received on the final receipt date. This selection is computer-generated. USCIS will reject petitions not selected and petitions received after the final receipt date that are subject to the cap.

If the final receipt date is the same as the first date that petitions may be filed, USCIS will randomly apply all of the numbers among the petitions filed on the final receipt date and the following day. This means that, should the cap be reached on April 2, the first day filings can be received, USCIS will perform a random selection of petitions filed on April 2 and April 3 in accordance with the regulations at 8 C.F.R. 214.2(h)(8)(ii).

For questions on the proper filing location please refer to the March 5 update:

H-1B petitioners should insure they follow all regulatory requirements as they prepare petitions to avoid delays in processing and possible requests for evidence.

8 CFR 214.2(h)(2)(B) requires that petitioners provide a detailed itinerary of the dates and places where work will be performed if those services will be provided in more than one location. For example, a labor contractor or consultant who hires H-1B workers to work at client sites must provide, in advance, an itinerary with dates and places where the worker will perform that work.

In addition, 8 CFR 214.1(c)(4) requires that an applicant for extension of status have maintained his or her nonimmigrant status. In situations where an H-1B worker is changing to an employer other than the one for which the initial H-1B petition was approved, USCIS will require that the worker changing employers demonstrate that he or she actually did perform meaningful work for the original petitioning employer under circumstances not reflective of fraudulent intent in the original petition. In situations where the H-1B worker is processing abroad, USCIS will work closely with the Department of State to ensure that this same level of integrity is applied to consular processed H-1Bs.

Please note: Recent materials posted by USCIS indicated that an original copy of a certified labor condition application is required with Form I-129 and should be signed in blue ink. This statement is in error.

A copy of the LCA may be submitted with the I-129 as is current practice. USCIS did not intend to change the current practices regarding filing of the LCA with the petition. For filing updates and additional information or call USCIS customer service at (800) 375-5283.

The Little Known H-1C Visa For Nurses

The United States currently has a severe shortage of licensed nurses, and this is expected to intensify as baby boomers age and the need for health care grows. To address this concern, the U.S. implemented a visa category allowing nurses to obtain permanent residency. The problem with this, however, is that nurses who are eligible to obtain their green card must wait several years before their visas become available. The H-1C visa is an option for nurses who want to work in the U.S. prior to their permanent residency approval.

In 1999, the U.S. Congress passed the Nursing Relief for Disadvantaged Areas Act. This law created the H-1C visa category that allowed foreign registered nurses to work in the United States for up to three years in certain health professional shortage areas. The law allows for up to 500 nurses per year, with each state limited to only 25 H-1C nurses. This category is open to general RN positions.

The H-1C visa program expired on June 13, 2005. However, effective December 20, 2006, it has been "reauthorized" (meaning it is open again) for another three years until December 20, 2009.

To qualify for H1C status, the beneficiary must:

* Have an unrestricted nurse's license in his/her home country, or have received nursing education in the United States;

* Have passed the CGFNS or have a full and unrestricted license to practice as a registered nurse in the state of intended employment; and

* Be fully qualified and eligible under all state laws and regulations to practice as a registered nurse in the state of intended employment immediately upon admission to the United States.

The H-1C visa allows registered nurses to work in the United States on a temporary basis. This visa also allows nurses to work in the U.S. while their immigrant visa applications are pending with Immigration Services.

The H-1C visa category is based on the former H-1A visa category for nurses, which expired on September 30, 1997. The H-1C classification is more restrictive, due to its numerical cap on the number of visas issued annually and its application only to underserved areas.

If you have questions about the H-1C visa or any other immigration matter, please contact our office.

For more information about immigration news, immigration laws, immigration policies, proposed immigration laws, border enforcement, green cards, citizenship, employment visas, family visas, naturalization, and other immigration subjects, please visit Immigration Law Answers and DFW Immigration Law Blog.

It's Not Too Late - Begin The H-1B Process Now!

Each year 65,000 H-1B visas are made available so that foreign nationals can work in the United States on a temporary basis.  The H-1B category is designed to attract skilled professionals in specialty occupations to work in the U.S. on a temporary basis. A person must possess at least a bachelor's degree or its equivalent (through a combination of education and work experience) to obtain an H-1B visa.

The H-1B is suitable for occupations such as professors, researchers, engineers, computer specialists and software programmers - just to name a few. The H-1B visa is valid for a period of up to six years. 

The H-1B visa begins on October 1, 2007. This is the first day a person will be allowed to work on an H-1B visa. However, a company may begin the process on behalf of an individual much earlier than this. In fact, Immigration Services begins accepting H-1B visa petitions on April 1, 2007, which is just around the corner.

The H-1B visa cap is expected to be reached on the very first day that Immigration Services begins to accept the visa petition - April 1st!

If you are an employer wishing to hire a foreign national to begin working for your company, you must begin the visa petition process immediately. If you are an individual wanting to work in the U.S. on an H-1B visa next year, you need to discuss this option with your future employer as soon as possible.

If you are a foreign student graduating in May - then you need to begin thinking of the H-1B visa now so that you can apply for this and make arrangements to maintain immigration status until the October 1 start date.

Should you need any assistance in applying for H-1B status or any questions related to this matter, please do not hesitate to contact us. Kraft & Associates is available to help you with all your H-1B related concerns.

Employment Authorization Document -- What Is It?

What is an Employment Authorization Document?
Employment Authorization Document (EAD) is a document that authorizes an foreign national to work in the U.S. for a period of time, usually one year. It is also called a work permit. 

How do I apply for Employment Authorization?
You must file a Form I-765 (Application for Employment Authorization) by mail with the USCIS Service Center or District Office that serves the area where you live. You must also submit other supporting documents, photos, and fee.

Do I need an EAD Card?
Maybe. Some types of visas allow a person to work in the U.S. without first obtaining an employment authorization card. If you are in the U.S. on an H-1B visa, for example, you do not need to obtain an EAD card since you are in the U.S. on a work visa.

How long should I wait for the EAD?
It usually takes three to six months to process the EAD application. Processing times, however, are always changing, so it may take more or less depending on how backlogged Immigration Services is.

What should I do if my EAD application is denied?
If your application for an EAD is denied, you will receive a letter that will tell you why the application was denied. You will not be allowed to appeal a negative decision, but you may submit a motion to reopen or a motion to reconsider with the office that denied your application. If that is denied, you will either have to reapply or forego employment authorization in the United States.

What should I do if my EAD card gets lost or stolen?
You may apply for a replacement EAD card. Contact USCIS Customer Service at 1-800-375-5283 and an Immigration Services Customer Representative will be able to help you.

For more information about immigration news, immigration laws, immigration policies, proposed immigration laws, border enforcement, green cards, citizenship, employment visas, family visas, naturalization, and other immigration subjects, please visit Immigration Law Answers and DFW Immigration Law Blog.

Gates To Senate: "Guaranteed Jobs" For Tech Professionals; 300,000 H-1B Visas Wanted

According to the Washington Alliance of Technology Workers, Microsoft Chairman Bill Gates today told U.S. Senators that the country is facing an "acute crisis" in its shortage of engineering professionals and those professionals with the right skills will be guaranteed a good paying job. Excerpts from the article:

Gates declared, "The demand worldwide will guarantee them all jobs. Anyone in the United States, not only will they have a high paying job; they will create many around them. We are increasing our employment."

Gates' rare appearance before the Senate Health Education Labor and Pension Committee today urged passage of a bill titled "Strengthening American Competitiveness for the 21st Century." The committee only heard testimony from the Microsoft Chairman.

According to Gates, this worker "shortage" is hurting America's ability to compete in the global economy and the solutions primarily involve reforming the H-1B visa program and the U.S. education system to improve math and science curriculum.

The H-1B visa program allows skilled foreign guest workers to enter the country for up to six years to fill spot labor shortages in high skilled areas. Under current law, the program allows for 65,000 new H-1B visa guest workers a year, with some exemptions that can raise that number to 120,000. The program is highly controversial and is one of the biggest divides between labor and management in the technology sector. Labor groups argue that expanding the program creates a labor market where too many workers are competing for too few jobs which will have the effect of depressing salaries for professionals in the field.

From Gate's perspective, the majority of engineering professionals at Microsoft earn six figures a year or more, and he believes this is also true for guest worker employees under the H-1B visa program. For Gates, a $100,000 a year salary for a guest worker computer professional means "we should welcome as many as we can get."

One Senator asked Gates about what is a good number above 65,000 that the Senate should consider. "300,000 would be a fantastic improvement," was his reply.

Despite all of the outsourcing of high-tech jobs overseas the U.S. will still have a strong IT industry said Gates. Sen. Bernie Sanders (I-VT) cited a figure of 600,000 jobs lost in the high-tech sector.

President Bush Encourages Guest Worker Program

Last night, President Bush delivered the annual State of the Union Address. One notable portion of the speech specifically mentioned immigration in the United States and possible immigration reform. President Bush stated that:

"Extending hope and opportunity in our country requires an immigration system worthy of America - with laws that are fair and borders that are secure. When laws and borders are routinely violated, this harms the interests of our country... Yet...we cannot fully secure the border unless we take pressure off the border - and that requires a temporary worker program."

The President noted that his Administration is doubling the size of the Border Patrol and funding the use of new technology to prevent illegal immigration.

The President also outlined other immigration related goals such as:

- Creation of a temporary guest worker program is needed so that people no longer have to sneak across the border. The Border Patrol should focus on finding and capturing drug smugglers and terrorists, rather than preventing illegal border crossing.

-Immigration laws must be enforced at the work place and employers must be given the tools to verify the status of workers so there is no excuse left for violating the law.

- The United States has a tradition of welcoming immigrants and this process must continue.

- The status of illegal immigrants already in country must be resolved without animosity and without amnesty.

- Congress must engage in serious, civil and conclusive debate so the President can sign comprehensive immigration reform into law.

The United States As A Safe Haven For Refugees

Every year thousands of foreign nationals enter the United States fleeing persecution they are facing in their home countries. For those who meet the legal criteria, the U.S. offers a form of protection -- asylum. Those who are eligible for asylum are allowed to remain in the United States, and eventually are eligible to apply for permanent residency.

An applicant must be a refugee in order to be eligible for asylum. The definition of a refugee requires that the applicant be:

  • unable or unwilling to return to or avail himself or herself of the protection of the country of his or her nationality or, if stateless, the country where he or she last habitually resided
  • because of persecution or a well-founded fear of persecution
  • on account of race, religion, nationality, membership in a particular social group, or political opinion.

Any person who is in the United States may apply for asylum. This holds true even if that person is here without any valid immigration status. There are two ways in which a person may apply for asylum -- by either affirmative filing or applying for asylum during removal proceedings.

Affirmative filing involves a person preparing an application for asylum and submitting this to Immigration Services. Applicants will then be scheduled to be interviewed by an asylum officer. The purpose of this interview is to determine if the applicant meets the definition of a refugee and to ensure that the applicant does not face any bars to asylum. A person will usually not receive a decision at the interview but should receive a decision in a few weeks.

The second way a person can apply for asylum is if they have been placed in removal proceedings in Immigration Court. The applicant will then apply for asylum and the immigration judge will make the final determination as to whether the applicant meets the definition of a refugee.

There are several legal bars that will prevent a person from obtaining asylum in the United States. A person will be denied asylum if that person is found to have ever committed an act of terrorism, been involved in the persecution of others, committed a particularly serious crime in the U.S. or is considered to be a danger to U.S. security. Other bars to asylum include the possibility of safely residing in a third country or the circumstances materially affecting the applicant's eligibility for asylum.

A person who is granted asylum takes on the legal status of Asylee. This allows him or her to reside in the United States as long as the threat of persecution in his or her home country continues. The Asylee can also have his or her spouse and unmarried children under age 21 enter the United States, if not already in the country. Additionally, an Asylee can receive a travel document to travel in an out of the U.S. as well as employment authorization. Finally, a year after an Asylee has been granted asylum, he or she becomes eligible to apply for permanent residency.

For more information on asylum or to determine if you may be eligible for asylum in the United States, please contact us.

For more information about immigration news, immigration laws, immigration policies, proposed immigration laws, border enforcement, green cards, citizenship, employment visas, family visas, naturalization, and other immigration subjects, please visit Immigration Law Answers and DFW Immigration Law Blog.

Religious Workers In The United States

Leaders of religious organizations and institutes are often unaware that they have the ability to hire and sponsor foreign nationals to work in the United States. The R-1 religious worker visa is a nonimmigrant visa that allows foreign nationals in religious occupations to enter into the United States and perform the duties of a religious worker.

Persons seeking R-1 status must plan to enter the United States solely to:

* Carry on the vocation of a minister of the religious denomination; or

* Work in a professional capacity in a religious vocation or occupation or organization within the denomination; or

* Work in a religious vocation or occupation for an organization within the denomination, or for a bona fide organization, that is affiliated with the religious denomination. Bona fide religious organizations in the United States must have tax-exempt status as an organization as described in section 501(c)(3) of the Internal Revenue Code of 1986.

The initial admission period for religious workers entering the United States in R-1 status is limited to three years. Extensions of the R-1 status may be granted, but the total period for a person residing in the United States on R-1 status may not exceed a total of five years.

The R-1 visa also allows for a foreign national to engage in studies, travel freely in and out of the U.S., receive payment for services, and apply for permanent residency (green card). Additionally, the spouse and any children under the age of 21 years of an R-1 holder may also live in the U.S. If a religious worker is interested in obtaining permanent residency, his or her spouse and children under the age of 21 are also included in the immigrant visa petition, so that they are eligible to apply for permanent residence once the petition is approved. In addition, family members in the United States are eligible for work authorization while the applications for permanent residence are pending.

The processing time for an R-1 visa petition is normally around three months, but a decision can be reached in 15 days for an additional fee. Once the petition is approved, consular processing normally takes three to four months.

The law firm of Kraft & Associates can help you determine if you are eligible to sponsor a person for a religious worker visa. We will help you file all the necessary petitions and see the process through to conclusion. Should you have any questions regarding religious visas, please do not hesitate to contact us.

For more information about immigration news, immigration laws, immigration policies, proposed immigration laws, border enforcement, green cards, citizenship, employment visas, family visas, naturalization, and other immigration subjects, please visit Immigration Law Answers and DFW Immigration Law Blog.

Filing H-1B Visa Petitions in 2007

The H-1B visa will allow persons to begin working in the United States on October 1, 2007. Immigration Services will begin accepting H-1B visa petitions beginning April 1, 2007. In anticipation of this event, foreign nationals who are in the United States, or who are wanting to work in the U.S., should begin planning now in order to make sure their visa petition is filed on time.

The H-1B visa is often used as the "next step" after one graduates from a university after completion of an F-1 program. H-1B holders are allowed to remain in the United States for a total of six years. The H-1B visa is reserved for those who will work in a "speciality" occupation. This means that a company requires the services of a professional who holds at least a bachelor's degree or its equivalent. Generally, most H-1B applicants are doctors, engineers, professors, accountants, lawyers, physical therapists, and computer professionals.

If you plan to work in the U.S. on a temporary basis it is important that you and your employer begin the visa petition process as soon as possible. Every year, Congress makes 65,000 H-1B visas available. Last year, Immigration Services announced that May 26, 2006, was the last day that visa petitions would be accepted. Those who did not file before this date would not be able to begin working on an H-1B visa.

Because of the complex issues involved with an H-1B visa, it is not recommended that a foreign national or a sponsoring employer prepare and submit an H-1B petition on their own. Improperly preparing a H-1B petition can result in a foreign national losing their immigration status and becoming removable from the U.S. It may also result in an employer hiring a worker who doesn't have work authorization and thus subjecting itself to possible fines and penalties.

At the law firm of Kraft & Associates, we will work to make sure that your petition is filed correctly and in advance of the cap being reached. Please contact us if you have questions about H-1B visas, and we will give you a free phone consultation.

For more information about immigration news, immigration laws, immigration policies, proposed immigration laws, border enforcement, green cards, citizenship, employment visas, family visas, naturalization, and other immigration subjects, please visit Immigration Law Answers and DFW Immigration Law Blog.

Visa Policies Rob U.S. Of Valuable Labor Source

The Education columnist of the Dallas Morning News had an excellent explanation today as to why the U.S. Visa policy is depriving our country of much-needed computer professionals.

Columnist James M. O'Neill used an imaginary scenario in which a Dallas employer brought down a Seattle resident, trained him to develop skills vital to the success of the employer, but after a year of employment told the worker he had to go back home to Seattle. Once in Seattle, the employee uses his new skills to work for a competitor of the Dallas employer.

The point is that this is exactly what the U.S. does with foreign college students -- brings them to the U.S., trains them, gives them one year of employment, then sends them home to work for competitors of U.S. companies.

The column goes on to explain why we should encourage these newly trained high-tech employees to stay in the United States, and also explains why they would not be taking jobs from American citizens. It's well worth reading.