Generally, a new job should be in the same job classification as the job for which the approved immigrant petition was filed.  For example, an adjustment applicant working as Computer Analyst, where the PERM/I-140 were filed for Computer Systems Analysts (SOC code 15-1051.00) classification should be able to switch to a new job which fell under the same classification – 15-1051.00.

In a recent teleconference, the Nebraska Service Center (NSC) provided some unofficial but helpful guidance on their reasoning and practice when adjudicating AC21-related cases.   NSC was asked to provide some guidance as to their criteria in adjudicating the “same or similar” job standard.  In response, NSC confirmed that the “same or similar” has not been a significant issue because NSC has been applying a “common sense” approach – NSC has confirmed that most petitions invoking AC21 portability based on similar occupations are indeed usually similar, i.e. accountant doing another accounting position, IT consultant working in the IT field.    On the other hand, IT worker making “slurpees at the 7-Eleven” would not be considered to qualify under AC21.

While this conference call and the information about the “common sense” approach NSC takes with respect to AC21 review does not state the official USCIS position, it nonetheless provides a helpful insight into the operations and standards at NSC.  Also, it should serve to provide some relief and flexibility to the thousands of I-485 adjustment applicants who are seeking to switch jobs but when the new proposed jobs are not exactly similar to the jobs for which they were initially sponsored.

O-1 or P-1 Extraordinary Ability Visas

O-1 and P-1 visas are generally reserved for individuals who have extraordinary ability in the sciences, arts (including the television and motion picture industry), education, business, or athletics.  By definition, not many individuals qualify for one or both of these visa types, but where possible, an application for O-1 and/or P-1 should be prepared in lieu of H-1B.   In addition to being able to obtain work authorization pursuant to these visa types, an O-1 and/or P-1 approval may establish the basis for the subsequent application for an EB-1 category permanent residency.  Please contact us if you would like our help in evaluating your O-1 and/or P-1 visa case.

L-1 Intracompany Transferree

The L-1 visa type allows multinational companies who have presence abroad to transfer their employees from their overseas offices to their U.S. office (or to establish a new U.S. office).  This visa type is a good option for foreign employers seeking to establish or boost their U.S. presence and for foreign nationals currently employed abroad.   Foreign nationals who are currently in the U.S. generally will not qualify for L-1 visa.  An added benefit to the L-1 visa is that family members are entitled to a work authorization pursuant to L-2 status.

E-1/E-2 Treaty Trader or Investor

The E-1/E-2 visas allow nationals of countries with which the U.S. has trade treaties to invest an amount in the U.S. and receive an E-1 (treaty trader) or E-2 (treaty investor) visa.  See a list of treaty countries.

The E-1 treaty trader visa is suitable if the foreign national has a multinational employer who is willing to transfer them, and the company has significant trade between the foreign country and the U.S.  The employee must also have skills which are essential to the operation of the company trade.   Dependents of E-1 visa holder are eligible for work in the U.S.

The E-2 treaty investor allows foreign nationals to invest (preferably) a substantial amount in the U.S. and obtain an E-2 visa to be able to manage and direct their investment.  The amount required for investment generally varies depending on the industry (the so called, proportionality test) with more capital-intensive industries requiring more significant investment for E-2 application.   Dependents of E-2 visa holders are eligible to apply for work authorization.

H-1B Program Changes by Congress Unlikely

While we do not expect Congress to raise the H-1B cap for FY2010, it is nonetheless possible.  There are a number of proposals currently circulating in Congress, some of which aim to increase the H-1B cap.  However,  the chance of such proposals becoming law outside of a comprehensive immigration reform (which is barely starting to gain ground) is small.

Wait and File on April 1, 2010 for the FY2011 Cap

For some of our clients, waiting until April 1, 2010 to file a new cap-subject H-1B petition may be the best option.  The H-1B visa type, although subject to some requirements, is a fairly common visa type for which many qualified employees are eligible.    As of now, the FY2011 H-1B cap is expected to be the same as it was for the FY2010 fiscal year – 65,000 H-1B visas.  However, as the economy starts to improve and employers increase hiring, we do not expect that next year’s H-1B numbers will remain available for as much as 8 months, as they did in 2009.   Accordingly, we urge employees and employers to prepare and file most or all of their H-1B petitions on or about April 1, 2010, to ensure that their petition has the greatest chance to be included in the quota.

U.S. Masters Degrees Quota Reached

USCIS has received sufficient number of petitions for aliens with advanced degrees and as a result, USCIS has announced that the master’s cap for FY2010 has been met.  As of October 25, 2009, all FY2010 H-1B petitions for holders of U.S. advanced degrees will be counted towards the general cap of 65,000.

H-1B Quota Trends

The numbers, as reported over the past few weeks indicate that there was a notable increase in the H-1B filings.  As we previously reported, there has been an increase of about 900-1,300 H-1B visas for each of the past five weeks, in addition to this week’s increase of 2,000 H-1B visas.  Based on our tracking of the H-1B numbers, this increase shows a notable weekly increase in the numbers of H-1B filings.  As a result, if the current trend remains, we estimate that the H-1B quota will be reached within a 3-5 weeks.

If you are considering filing a cap-subject H-1B petition as part of the FY2010 quota, please contact us as soon as possible.

As our clients and readers know, the H-1B nonimmmigrant work visa is one of the most commonly used work visas for sponsoring foreign workers.   The H-1B visa requires that the H-1B beneficiary be employed as an “employee” (as opposed to a “consultant”) with all the benefits and rights afforded to the company’s other employees.   All wages earned by H-1B employees must be reported on Form W-2 and subject to withholding of income tax (and often employment tax) in the same way as U.S. citizens and residents.  Additionally, the IRS can examine expenses paid for or reimbursed to the employee which payments could represent compensation or a taxable employee benefit. 

Our firm often receives inquiries from corporate and individual clients as to whether there is a specific requirement that the H-1B employee be considered a “W-2 employee” versus a “1099 contractor.”  The IRS statement and the upcoming audits of H-1B employers make it very important that any H-1B employee be considered as an “empoyee” and a Form W-2 prepared along with the proper withholdings.

The guidance sheet is helpful in not only describing in more detail what happens when an OPT F-1 holder is a beneficiary of an H-1B petition.  Normally, when USCIS receives an H-1B petition it enters the information into its mainframe called CLAIMS.  This update automatically updates the SEVIS system and which automatically should reflect the cap-gap extension for the F-1 holder.    If this process does not work (due to time constraints, mainly), SEVIS allows the Designated School Official (“DSO”) to enter manually that the student is in valid status pursuant to cap-gap into SEVIS.

This functionality also allows DSOs to enter gap-cap information in cases where the H-1B application has been filed but it has not yet been processed by USCIS.  The guidance notes, however, that the “manual” update of cap-gap status by the DSO should not be done unless in cases where the student’s OPT may expire before USCIS can receipt the H-1B petition (and therefore enter the H-1B petition in CLAIMS).

Generally, the Velarde memorandum provides two kinds of guidance, one for beneficiaries with a license and one for beneficiaries who do not.  We will review each in turn.

Beneficiaries Who Have a License

According to the memorandum, when the USCIS adjudicator reviews H-1B application where the beneficiary has provided documentary evidence of his or her valid license to practice a health care occupation in the state in which the beneficiary will be employed, the adjudicator should not look beyond the license and should accept its validity on its face.

If the beneficiary has an unrestricted license the adjudicator should approve the petition for up to three years (or the maximum permissible depending on the LCA validity period and other circumstances).  The fact that a license has to be renewed periodically, for example, every year, should not prevent the adjudicator from issuing a 3-year H-1B visa.

On the other hand, if the beneficiary has restricted license, the adjudicator should approve the petition for one year only or the duration of the restricted license, whichever is longer.

Beneficiaries Who Do Not Have a License

Generally, in order to perform a health care occupation, the beneficiary must obtain a license from the state in which the beneficiary will be employed.  If the H-1B petition claims that the beneficiary cannot obtain a license due to the fact that the beneficiary needs to obtain a social security (SSN) card or a valid work authorization document, then the adjudicator is asked to determine the requirements for obtaining license and whether the beneficiary is qualified to perform the specialty occupation.  Additionally, the beneficiary will have to show that he or she (1) has filed an application for license and (2) cannot obtain a full unrestricted license due to the requriements of possessing a SSN card or valid immigration document in the form of a letter from the State Board.

Assuming the H-1B petition is approvable in accordance with the standards set forth in the memorandum, the validity period should be one year.   Subsequent requests for extension must include evidence that the beneficiary has been granted a valid unrestricted license to practice the health care occupation.  Failure to provide such evidence will result in the denial of the H-1B extension  petition.

The restrictions apply to any Labor Condition Application (LCA) and/or H-1B petition filed on or after Feb. 17, 2009, involving any employment by a new employer, including concurrent employment and regardless of whether the beneficiary is already in H-1B status. The EAWA also applies to new hires based on a petition approved before Feb. 17, 2009, if the H-1B employee had not actually commenced employment before that date.

However, one of the main questions after the Stimulus Bill passed was whether the new rule would apply for existing H-1B holders at TARP companies.  The USCIS memorandum makes it clear that  the restrictions do not apply to H-1B petitions seeking to change the status of a beneficiary already working for the employer in another work-authorized category. It also does not apply to H-1B petitions seeking an extension of stay for a current employee with the same employer.

We do not have good estimates that the H-1B demand will be less than the 65,000 (plus additional 20,000)  and as a result there will not be a lottery to distribute the available visa.  However, we do agree wholeheartedly with the article that the H-1B demand this April is likely to be the weakest it has been in many years.

Some of our H-1B clients ask whether the recession will impact the H-1B processing and we understand that despite the slowdown in the economy, there is an expectation that there will be more than 65,000 H-1B visas which would result in there being a lottery to distribute the available H-1B numbers.

We would be happy to help you or your company with preparing and filing an H-1B cap-subject visa application this April.  If you need our help and services, please contact us at your earliest convenience.

Final Text of the Stimulus Bill Imposing the H-1B Limitations

Section 1611 of the American Recovery and Reinvestment Act of 2009 (“ARRA”)  reads:

SEC. 1611. HIRING AMERICAN WORKERS IN COMPANIES RECEIVING TARP FUNDING.

(a) SHORT TITLE.—This section may be cited as the ‘‘Employ American Workers Act’’.

(b) PROHIBITION.—

(1) IN GENERAL.—Notwithstanding any other provision of law, it shall be unlawful for any recipient of funding under title I of the Emergency Economic Stabilization Act of 2008 (Public Law 110–343) or section 13 of the Federal Reserve Act (12 U.S.C. 342 et seq.) to hire any nonimmigrant described in section 101(a)(15)(h)(i)(b) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(h)(i)(b)) unless the recipient is in compliance with the requirements for an H–1B dependent employer (as defined in section 212(n)(3) of such Act (8 U.S.C. 1182(n)(3))), except that the second sentence of section 212(n)(1)(E)(ii) of such Act shall not apply.

(2) DEFINED TERM.—In this subsection, the term ‘‘hire’’ means to permit a new employee to commence a period of employment.

(c) SUNSET PROVISION.—This section shall be effective during the 2-year period beginning on the date of the enactment of this Act.

What Exactly Are the H-1B Restrictions?

Covered companies are not allowed to “hire” an H-1B worker unless the company has complied with additional LCA attestations which are generally imposed on H-1B dependent employers.  These additional attestations are:

(1) that the employer has, prior to filing the H-1B petition, taken good-faith steps to recruit U.S. workers for the position for which the H-1B worker is sought, offering a wage that is at least as high as that required under law to be offered to the H-1B worker. The employer must also attest that, in connection with this recruitment, it has offered the job to any U.S. worker who applies and is equally or better qualified for the position; and

(2) that the employer has not laid off, and will not lay off, any U.S. worker in a job that is essentially equivalent to the H-1B position in the area of intended employment of the H-1B worker within the period beginning 90 days prior to the filing of the H-1B petition and ending 90 days after its filing.

Which Employers Are Covered Under the H-1B Restriction?

A company which receives funding under title I of the Emergency Economic Stabilization Act of 2008 (Public Law 110-343, the “TARP Bill”) or that receives funding under Section 13 of the Federal Reserve Act (12 U.S.C. § 342 et seq., authorizing the Federal Reserve’s “Discount Window” for short-term, secured loans to financial institutions and other companies) is covered under the H-1B restriction.   USA Today has a chart with names of the TARP companies and the U.S. Treasury has a list of transaction reports under the TARP program.

Note that companies recipients of funds pursuant to the ARRA stimulus bill, but not under the TARP Bill, are not subject to the H-1B restriction.

Are There Exemptions?

Generally, employers who are H-1B dependent can claim one of two exemptions – having salary higher than $60,000 or having a master’s degree – and avoid having to provide the additional attestations.  However, these two exemptions have been made explicitly unavailable to TARP companies.

What Happens to H-1B Workers at Existing TARP Companies?

The statute is drafted to prohibit any “new hires” between February 17, 2009 and February 16, 2011.  “Hire” is defined as permitting “a new employee to commence a period of employment.” As a result, it seems that the H-1B restrictions do not apply to H-1B workers who are already employeed at the TARP companies.  However, neither USCIS nor DOL have issued implementation guidance or regulations yet, so it is not completely certain that they will take the same view.

Work Allowed While H-1B Transfer Pending Even if There is a Gap in Employment

Just this week, VSC’s AILA Liaison provides some clarifications which, in these difficult economic times, provide a fair amount of relief to terminated H-1B workers.    Our article, and the previous guidance from VSC, indicated that in order to be eligible to “port” to a new H-1B employer, the new H-1B petition must be filed before termination or before the old petition is revoked or withdrawn by the old employer.

However, if the H-1B portability criteria are met, then the foreign national would be eligible to work pursuant to H-1B portability upon filing the H-1B transfer application even if s/he was not eligible for an extension or change of status. The H-1B portability criteria are: (1) the foreign national was lawfully admitted; (2) the new H-1B petition is “nonfrivolous;” (3) the new H-1B petition was filed before the date of expiration of period of authorized stay (as described on the I-94 card); and (4) subsequent to lawful admission, the foreign national has not been employed without authorization.  (INA § 214(n))

For example, if an H-1B employee is terminated on February 1, and her employer requests revocation of her H-1B on February 1, then the H-1B status is automatically revoked pursuant to 8 C.F.R. § 214.2(h)(11)(ii).  However, the foreign national remains in the U.S. and finds a job on March 1 and the new employer files a new, non-frivolous H-1B petition on her behalf.  Since the foreign national was lawfully admitted, the petition is non-frivolous, the I-94 was not expired, and she has not worked without authorization between February 1 and March 1, then the foreign national is eligible to start work under INA § 214(n).

Scenarios Upon Approval of Pending H-1B Transfer Application

The foreign national is eligible to work until the petition is adjudicated.  Once the H-1B petition is approved, this “interim” authorization to work ceases, and one of two things can happen.  One, USCIS will use its discretion and approve an extension of status and the employee will continue to be able to work for the new sponsoring employer.  Or, two, USCIS will deny the extension of status request and the employee will have to depart the U.S., and either obtain an H-1B visa at a U.S. consulate, or, if she already has a valid H-1B visa from her former employer, she will simply need to depart the U.S. and, upon re-entry, present her old visa with the new I-797 and continue working.

Conclusion

The guidance from VSC makes it easy for employees to understand their options in the event their H-1B employment is terminated. Working for the new H-1B employer while the application is pending allows an employee to continue to receive income especially when there is a period of unemployment between the old H-1B employment and the new one.  However, it should be noted that it is possible that USCIS may decline to “forgive” the period of unemployment between the two H-1B jobs and as a result the foreign national will have to travel outside of the U.S.

The H-1B visa is one of the most commonly used U.S. work visas for highly skilled foreign born workers in fields such as information technology, engineering, research, academia, and others.  The H-1B visa is both highly desirable and, unfortunately, in short supply.

The H-1B visa category was created in 1990 through the Nationality and Immigration Act of 1990 (INA).  An H-1B job must require a bachelor’s degree or equivalent and the foreign national must have a bachelor’s degree or equivalent in a field of study that is related to the job.   Upon the creation of the H-1B visa type,  INA imposed a numerical limitation (“cap”) on the number of H-1Bs that could be issued in each fiscal year.  This “cap” (or quota) has varied over the past years but is set to 65,000 per year for the 2010 Fiscal Year starting on October 1, 2009.  As part of the Visa Reform Act which went into effect as of May 5, 2005, an extra 20,000 H-1B visas were made available to foreign nationals graduating with a US Master’s or higher degree from a US institution. These 20,000 are counted in addition to the annual cap of 65,000 visas.

Who is Counted Towards the Cap?

Most H-1B applications are subject to the annual cap.   Generally, all H-1B petitions which are filed for a new employment of an H-1B beneficiary (whether the foreign national is current outside of the U.S. or in the U.S. on a different visa type) and where the beneficiary has never held an H-1B visa in the past six years are subject to the cap.

However, some H-1B petitions are cap-exempt. Petitions filed by institutions of higher education or their affiliates or by non-profit or government research organizations are not subject to the H-1B cap (see our Guide to H-1B Cap-Exempt Employers)  Additionally, H-1B petitions where the beneficiary has had H-1B visa approved within the last six years are also exempt – in many cases such cases are H-1B employer transfers or changes in terms of employment.

What is H-1B Season?

All H-1B petitions which are subject to the cap must be filed on April 1 with a starting date of not earlier than October 1.  The demand for H-1B visas over the past several years has far exceeded the available 85,000 H-1B visas and as a result the government has instituted a lottery which randomly determines which H-1B applications submitted on or shortly after April 1 are to be considered.  Because of this limited window of opportunity, H-1B petitions which are subject to the cap must be filed on April 1 or a day or two afterwards.  Petitions filed late are automatically rejected.  As a result, the months of February and March are generally referred to as the “H-1B Cap Season” because this is the only time of the year when H-1B cap cases can be prepared and filed.

Deadline is April 1

The H-1B Season is underway.  We are already receiving many new H-1B cap inquiries and we are starting to get very busy with new H-1B cap applications.  Because cap-subject H-1B applications have only one opportunity to be filed per year, it is very important that each application be properly prepared and timely filed and we take extra effort to do so.  We still accept new cases so please contact us for a free initial consultation and evaluation on your case.  We would be happy to evaluate whether your H-1B petition is subject to the cap and if so, guide you through the process.

The relevant section of the Stimulus Bill is Sec. 1610:

Sec. 1610. Hiring American workers in companies receiving TARP funding.

(a) Short Title- This section may be cited as the `Employ American Workers Act’.

(b) Prohibition-

 (1) IN GENERAL- Notwithstanding any other provision of law, it shall be unlawful for any recipient of funding under title I of the Emergency Economic Stabilization Act of 2008 (Public Law 110-343) or section 13 of the Federal Reserve Act (12 U.S.C. 342 et seq.) to hire any nonimmigrant described in section 101(a)(15)(h)(i)(b) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(h)(i)(b)) unless the recipient is in compliance with the requirements for an H-1B dependent employer (as defined in section 212(n)(3) of such Act (8 U.S.C. 1182(n)(3))), except that the second sentence of section 212(n)(1)(E)(ii) of such Act shall not apply.

 (2) DEFINED TERM- In this subsection, the term `hire’ means to permit a new employee to commence a period of employment.

(c) Sunset Provision- This section shall be effective during the 2-year period beginning on the date of the enactment of this Act.

What is Going to Happen?

The Senate version of the Stimulus Bill, including the language above, is expected to be approved by the Senate today.  However, the House version of the Stimulus Bill does not have such language and both versions will have to be reconciled so that both the Senate and the House approve the same text.  Only then the Stimulus Bill would become law after it is signed by the President.

This means that the language restricting H-1Bs at TARP recipients may not end up in the final law.  However, given the pressure to pass the legislation quickly, it is very possible that the House would adopt the proposed Senate language and ultimately impose the H-1B restrictions.

What Does the Prohibition Mean?

The text, as currently drafted, would impose some limits on the ability of companies recipients of TARP funds to hire new foreign workers on H-1B visas.  By making such employers “H-1B dependent”, the law would require any TARP recipient willing to sponsor an H-1B for the next two years to, among other things, (1) provide certain “displacement attestations” that no U.S. workers have been or will  be displaced as a result of the H-1B employee; (2) provide recruitment attestations about the nature of the recruitment process; (3) remain liable for displacement of U.S. workers as a reuslt of placement of H-1B employee with another employer.

However, the requirements on an H-1B dependent employer do not apply for “exempt H-1B nonimmigrants” which include (1)  those holding a master’s or higher degree or its equivalent in a specialty related to the intended employment, or (2) who earn wages (including cash bonuses and similar compensation) at an annual rate of at least $60,000.   This exemption is not likely to cover all, but is likely to cover many of the intended foreign national beneficiaries of H-1B visas from TARP recipient companies.

Finally, the definition of “hire” is drafted in a way that includes only new employment.  This should mean that H-1B extensions for H-1B holders already employed at TARP recipient companies should not be subject to the additional requirements.

Who are TARP Recipients?

The list of companies recipients of TARP funds is very long, so we will not publish it at length.  Please find the full and recently updated list here.

Conclusion

While the Stimulus Bill draft may be a source for alarm for some, the reality is that (1) until the law is approved by both the Senate and the House, the text is not final and (2) there are some exceptions which would allow TARP companies to hire H-1B workers either by complying with the H-1B dependent employer requirements or by claiming the applicable exemptions.

Update (14:57 pm):  the Senate approved the Stimulus Bill by 61-47 votes.

There are some interesting numbers.  Unfortunately, the news is not good for PERM applicants.  As of December 31, 2008, there were 53,200 active PERM cases pending at DOL.  This is significantly higher than the 40,200 cases which were pending as of September 30, 2008.  This means that for the past three months, the backlog at DOL’s PERM processing centers has increased by 13,000 cases, or by 32%.   For the same period, between October 1 and December 31, 2008, DOL received 20,752 new PERM applications but it completed only 4,571 cases.

These  numbers confirm our observations that PERM applications are backlogging significantly and the processing time is likely to skyrocket over the next 6-12 months.  According to (fairly reliable) information compiled by our friends at trackitt.com, the PERM processing times have been steadily increasing from somewhere around 70 days in late 2007 and early 2008 to 200-200 days in mid 2008.   Based on DOL’s statistics, we expect the PERM processing times to incrase more.

We will continue monitoring the PERM timelines and attempt to draw some conclusions which would help our clients plan their immigration strategy.  Please subscribe to our newsletter to receive regular updates on this topic.

We have been receiving numerous inquiries from individuals who wish to “port” their green card process to a “same or similar job” with different employer.  In addition to the question whether the new job is “same or similar”, the answer to which is beyond the scope of this post, the second most often question we receive is “When Should I Invoke AC21?”

Should I File AC21 Notification with USCIS?

Invoking AC21 is automatic.  In other words, by meeting the AC21 requirements (e.g. switching to a different employer and by working in a “same or similar job”) the individual has  successfully taken advantage of green card portability provisions of AC21.  However, USCIS does not know that the individual has changed job.  As a result, it is best to notify USCIS of the job change and to inform USCIS that AC21’s requirements have been met. Filing a Ac21 notification with USCIS helps avoid problems in the future.

If a USCIS adjudicator has no knowledge of an individual using AC21 portability, and there is something wrong with the Form I-140 (revoked, for example), the adjudicator is required to issue a Notice of Intent to Deny (NOID) the pending I-485.  There have been cases when applicants responded to NOID with necessary documents to prove their eligibility for AC21, and their cases were still denied.  Although it is not difficult to reopen such a case with further explanation, it can be a real hassle and waste of time.

Another reason for filing AC21 notice is the opportunity to change the attorney of record on the I-485 case.  Often the I-485 is filed by an attorney of the former employer and after the employee departs, the former employer’s attorney may not be motivated to share with the employee any correspondence from USCIS, including time-sensitive RFE/NOIDs.

If I Decide to File AC21 Notification, When Is the Best Time To Do So?

Generally, there are two opportunities to file AC21 notification.  One is shortly after the individual starts his or her employment with the new employer.  The second one is if there is an RFE or NOID issued by USCIS.   Recognizing that there may not be an RFE or NOID issued at all, the question becomes whether it is worth spending the time (and money) to prepare and file AC21 shortly after starting the new job.

From our practice, there are certain distinct advantages to filing AC21 upon starting a new job, as opposed to doing so after receipt of a RFE/NOID:

• You will control the timing of preparing and filing the AC21 documents — you will have time and be able to carefully prepare the documents required by the employee and your employer will have time to prepare a good employment verification letter.  On the other hand, if you wait for RFE/NOID, you will most likely be under a 30-day filing window to prepare and file the RFE/NOID response and rushing the preparation and filing of the documents will affect their quality and ultimately your case will not be presented as well as it could have been.
• Your employee/employer relationship is likely to be very good – your employer is not likely to object to providing an employment verification letter soon after you start work.  On the other hand, if you wait for an RFE/NOID and the employer has grown unhappy, there is a strain on the employer/employee relationship or if the employer’s business is not doing well, it may be more difficult to ask for and obtain an employment verification letter.
• You can change the attorney of record on your I-485 — if your former employer’s attorney is the attorney on record for the I-485, it is good idea to change the attorney of record as early as possible.  As indicated above, your former employer’s attorney may not be motivated or willing to share with you promptly time-sensitive correspondence from USCIS, including RFE/NOIDs.  Having your own attorney receive and address such correspondence as early as possible is important.

We Can Help You Analyze The Best Course of Action for AC21

We have helped many individuals change employers and invoke AC21 while preserving their green card process.  If done properly, such AC21 porting should not raise problems with USCIS and should allow you to take full advantage of your skills and education.  Please contact us and we would be happy to review your AC21 case and advise you on the best course of action.

VSC has indicated that it intends to adjudicate all such cases by April 1, 2009.

New Filing Must Occur Before Termination

VSC has confirmed that if the employee ports to a new employer (or files a different application to change or extend status) prior to the revocation of the H-1B petition filed by his or her former employer or prior to the termination of employment, then the employee will be in an “authorized period of stay” while the newly filed petition is pending (under INA 214(n)).

No Grace Period

As a result of this guidance and interpretation of the relevant USCIS laws and regulations, it is important to understand the implications of timing of filing of an H-1B transfer application.  Currently, the laws and regulations do not provide any grace period from the time the employee ceases employment until the time a new petition is filed on his or her behalf.  However, USCIS has indicated that it may, in its discretion, excuse a late filed petition when extraordinary circumstances exist pursuant to 8 C.F.R. 214.1(c)(4) which reads:

(4) Timely filing and maintenance of status. An extension of stay may not be approved for an applicant who failed to maintain the previously accorded status or where such status expired before the application or petition was filed, except that failure to file before the period of previously authorized status expired may be excused in the discretion of the Service and without separate application, with any extension granted from the date the previously authorized stay expired, where it is demonstrated at the time of filing that:

(i) The delay was due to extraordinary circumstances beyond the control of the applicant or petitioner, and the Service finds the delay commensurate with the circumstances;

(ii) The alien has not otherwise violated his or her nonimmigrant status;

(iii) The alien remains a bona fide nonimmigrant; and

(iv) The alien is not the subject of deportation proceedings under section 242 of the Act (prior to April 1, 1997) or removal proceedings under section 240 of the Act.

As a result, H-1B employees who are terminated or have had their H-1B revoked must act immediately to secure a different H-1B sponsor who would file an H-1B transfer application or to switch to a different nonimmigrant status in order to be able to ask for USCIS’ discretion in approving such application.

We have been receiving an increasing number of calls from foreign workers who have been or are about to be laid-off from their jobs and we have been advising them on the best options for preserving their visas or immigration process.  Many other immigration attorneys report similar uptick in such inquiries. Newspapers write more and more stories about immigrants losing their jobs and facing difficult challenges to their immigration status in the U.S.

In our experience, the key for foreign nationals employed in the U.S. to being able to survive a layoff is early preparation.  Many visas are restricted to a specific employer but allow for transfer from within the U.S. if the transfer is filed early enough.  Many green card applications can be preserved upon layoff by finding a substitute employer and preparing job transfer documentation.  There are also alternative types of visas which would allow laid-off workers to remain in the U.S. with their families and wait for better employment markets.

If you are concerned about your job or have already been laid-off, please contact us.  Many are afraid to call an immigration attorney until it is too late because they are concerned about cost.  This is why we offer a free initial consultation so that we can hear your case, determine and present your options.

In a July 14, 2008, Memorandum, Donald Neufeld seeks to explain the applicability of these exemptions and provide details and clarifications on the applicability of the exemptions and the adjudication procedures.

What is the Exemption.   The bars to admission which are inapplicable are as follows: for a period of 180 days since the petitioner’s last lawful admission in the U.S. your status, (1) failed to maintain your status, (2) engaged in unauthorized employment, and (3) otherwise violated the terms of his/her status or admission.

Who is Exempt.  The exemptions are applicable to employment-based adjustment of status applications in EB-1, EB-2, EB-3, or EB-4 categories.  The alien must be present in the U.S. pursuant to a lawful admission.  The exemptions are available to derivative petitioners as well.

Analysis.  Although this is not a new rule, the July 14, 2008, Neufield Memo seeks to provide clear guidance and explanation on the applicability of the 180-day exemptions.  It is important to understand that the three exemptions are only for employment-based adjustment of status petitions, and not for family-based.  Also, it is important to understand that the 180-day period is cumulative and includes all days, weekend and holidays.  Finally, the 180-day period counts the dates since the last lawful admission – leaving the U.S. and entering legally “clears” the count.

This is excellent news for applicants in the EB-2 India category.  Stay tuned as we wil update this post with more information as the official State Department Visa Bulletin is distributed.

Under the current regulations, TN visa holders must seek extensions or readmission every year. While in many circumstances such extension or readmission is without issues, TN visa holders often complain of the cumbersome yearly readmission requirements to which H-1B or L-1 visa holders are not subject. The new rule seeks to address these concerns and provide more certainty and uniformity among skilled professional visa categories.

The NPRM, once implemented as a final rule, will provide a number of benefits to all stakeholders. TN visa holders will not have to travel outside of the U.S. or seek extension every year thus saving money and time. U.S. employers will have greater certainty that TN beneficiaries will be allowed longer terms. Finally, the USCIS will have a reduced work load due to the decreased number of TN visa extensions.

Update: an advance copy of the proposed rule can be found here.

About the TN Visa. Canadian and Mexican citizens seeking temporary entry to the United States as professionals may come into the country as TN nonimmigrants under the North American Free Trade Agreement (NAFTA). TN status is available to Canadian and Mexican citizens with a minimum of a bachelor’s degree, or appropriate professional credentials, who work in professions listed in Appendix 1603.D.1 to Annex 1603 of the NAFTA and under DHS regulations at 8 CFR 214.6(c). Eligible TN professions include, but are not limited to, accountants, engineers, attorneys, pharmacists, scientists, and teachers.

The DOJ found that between May 9, 2006, and June 4, 2006, the company placed 30 job ads for computer programmers that expressly favored H-1B holders to the exclusion of U.S. citizens or green card holders.  Some of the ads contained text identical or similar to, “Only H-1s apply, and should be willing to transfer H-1B.”

Such discrimination is prohibited under the U.S. Immigration and Nationality Act.   “We are committed to protecting the right of all authorized workers in the United States against citizenship status discrimination,” said Grace Chung Becker, Acting Assistant Attorney General for Justice Department’s Civil Rights Division.

While we are uncertain of the motives of the company to place such ads, the civil fine settlement comes as a result of a complaint by the Programmers Guild (PG) in 2006.  According to PG, iGate Mastech is just one of at least several companies engaged in the practice of discriminating against U.S. workers “in favor of cheap H-1B workers.”  If these are the motives, DOJ’s actions should serve to the great benefit of the labor immigrants.  It has been one of the main arguments of the H-1B program critics that the program undercuts the salaries of U.S. professionals.  By eliminating companies who intentionally seek foreign talent at a cheap rate, DOJ helps to ensure that the H-1B program’s critics have less of an argument against it.

Here is DOJ’s press release.

The U.S. Employers
The H-1B program was designed to help U.S. companies obtain temporary skilled foreign workers to assist in projects for which there is a shortage of U.S. workers.  During the dot-com boom, most of these H-1B visas were used by software companies attracting talented software engineers from India, China, or eastern Europe.  Today, many of these H-1B visas are used by a more diverse group of U.S. employers, but software engineers are still among the highest in demand.

Based on the number of applications for this year’s H-1B season, 163,000, compared to last year’s number of 140,000, the demand for skilled foreign labor is strong and getting stronger. According to the Post article, companies, “offer the same salaries and perks whether you’re from Baltimore or Bangladesh . . . but [they] simply cannot find enough qualified U.S.-born staff to fuel [their] growth.”

The Foreign Talent
Foreign skilled workers’ stake in the H-1B visa program is often distorted.  The Post article highlights how many of these skilled workers come to the U.S. on H-1B visa and use the H-1B visa’s “dual intent” status to start a procedure of obtaining a permanent residency.  This, after all, is how this great country was built, and such influx of talent should not only be temporary, for the duration of the H-1B visa of six years, but should be made permanent to that the U.S. economy, as a whole, benefits.

The Critics
There are critics of the H-1B program, of course, and the Post article outlines their position.  Some critics consider the H-1B program a “cheap labor” allowing U.S. businesses to hire and sometimes exploit foreign workers who come to the U.S. and often have little or no bargaining power.  While such comments are justified in certain occasions and based on past cases by some employers, such cases seem to be limited to few individual employers and the Department of Labor is tasked with ensuring that no wage discrimination and workplace abuse takes place.

Conclusion
The debate about the benefits and disadvantages of the H-1B program will continue for as long as the program exists.  In economic slowdown, it is easy to point the finger to foreign workers as taking away jobs from qualified American workers.  But we should not lose sight of the greater benefit to the economy caused by the constant influx of educated foreigners who allow U.S. companies to stay competitive in a global economy.

During the Period, there were 44,090 PERM applications received, there were 12,600 cases certified and, as of March 23, 2008, there were 28,000 cases pending.

Among the highlights provided by DOL are that 66% of the certified PERM cases were H-1B workers.  The top five states of intended employment were California, New York, New Jersey, Texas, and Florida.  Among the countries, India was top, followed by China, South Korea, Philippines, Mexico, Canada, and the U.K.

Before running the random selection process, USCIS will complete initial data entry for all filings received during the filing period ending on April 7, 2008.   Due to the high number of petitions, USCIS is not yet able to announce the precise day on which it will conduct the random selection process.

The agency will conduct the selection process for “advanced degree” exemption petitions first.    All “advanced degree” petitions not selected will be part of the random selection process for the 65,000 limit.

We have obtained an advance copy of the DHS rule and we are providing a PDF of the rule as well as detailed analysis below.

Summary and Analysis of the New OPT Rule

29 Month OPT for STEM Students.  The 12 month limit on F-1 OPT is extended by 17 months for a total of 29 months  for holders of degrees in certain Science, Technology, Engineering and Mathematics (STEM) areas.  Eligible degrees are:

• Actuarial Science. NCES CIP Code 52.1304
• Computer Science: NCES CIP Codes 1 1 .xxxx (except Data Entry/Microcomputer Applications, NCES CIP Codes 11.06xx)
• Engineering: NCES CIP Codes 14.xxxx
• Engineering Technologies: NCES CIP Codes 15.xxxx
• Biological and Biomedical Sciences: NCES CIP Codes 26.xxxx
• Mathematics and Statistics: NCES CIP Codes 2 7 . m
• Military Technologies: NCES CIP Codes 29.xxxx
• Physical Sciences: NCES CIP Codes 4 0 . m
• Science Technologies: NCES CIP Codes 41 .xxxx
• Medical Scientist (MS, PhD): NCES CIP Code 51.1401

Additional Requirements.

• Student must be currently participating in a 12-month OPT and must be working for a U.S. employer in a job directly related to the student’s major area of study (which, of course, must be one of the areas listed above)
• Student must have successfully completed a bachelor’s, masters, or doctoral degree from a SEVIS-certified educational institution.
• The student has not previously received a 17-month OPT extension.
• The Designated School Official (DSO) must recommend the 17-month OPT extension after verifying that the student otherwise qualifies for the extension.
• Employer must be E-Verify registered.
• Employer must agree to report the termination/departure of the student to the DSO.

Application.  Students who qualify and wish to extend their OPT by 17 months must file form I-765 and attach the applicable fee.  Students who timely file their OPT extension application will be allowed to continue employment until the final decision of the I-765 form or 180 days, whichever comes first.  Under the new rule, students can file his or her I-765 up to 90 days prior to his or her program end date, and up to 60 days after the program’s end date.

Non-STEM Students

There is substantial relief for non-STEM degree students whose OPT are set to expire.  Under the new rule, duration of status and work authorization will be extended for a student on OPT who is the beneficiary of a timely-filed H-1B petition requesting an employment with starting date of October 1.  This applies to all students, not just STEM students.  This renewal terminates automatically upon the rejection, denial, or revocation of the H-1B petition.

On March 31, 2008, the U.S. Immigration and Customs Enforcement submitted to the Office of Management and Budget (OMB) for review an interim final rule entitled “Extending Period for Optional Practical Training for 17 Months for Qualified F-1 Students.”

Details on the proposed rule are scarce at this point and we will provide updates as we receive them, but the important point is that the government is listening to the concerns of U.S. businesses and foreign students who find themselves in a difficult position when they are unable to apply for H-1B visa post-graduation in May (because the H-1B visas are already used by May) and out of OPT status during the following year and before being able to transfer to H-1B visa.

As a matter of procedure, OMB has up to 90 days to review the proposed rule and either approve it for publication in the Federal Register, at which point it becomes active, or send the rule back for revision.

Please stay tuned on more details on this important rule.

Update 1 (Apr 3; 4:50 pm): Some readers have inquired about the conflicting reports of 29-month time period for OPT instead of 17. In our opinion, this is due to accumulating the possible time on OPT. Currently, OPT can be used once, for 12 months, after obtaining a Bachelor’s degree and subsequently one more time, for 12 months, after obtaining a Master’s degree. We think that the proposed rule will extend only one of these OPT windows to 17 months while the second OPT will be limited to 12. This rationale would explain the 29-month OPT reports. Note that this is not an official rule or interpretation of it, it is just a speculation at this point.

Update 2 (Apr 6; 11:30 am): the rule is expected to go into effect during the week of April 7, 2008. Here are the details of the rule.

As many of our readers know, the H-1B visas enable U.S. companies to hire skilled foreign workers for jobs which are difficult to fill with domestic workers.  Last year, the U.S. Citizen and Immigration Services (USCIS) received  124,000 applications for H-1B visas, nearly double the yearly cap of 65,000 set by Congress.  Because the number of applications exceeded the available number of visas, the USCIS used a random lottery to determine which applications will be approved.

Because the filing window opens on April 1st, for a starting date as early as October 1st, the applicants have only one shot at applying for, and getting a visa.  If the visa petition is received by the government a week late, or if the paperwork is not properly prepared, the company and its potential employee are out of luck because they do not have a chance to amend and re-file.

Many companies and applicants who are participating in the H-1B application season are hoping that the slowdown in the economy will drive down the applicants’ numbers this April.  However, as the Wall Street Journal reports, many softening sectors in the economy’s foreign worker needs are offset by  very strong demand in other areas, such as technology.  Also, just because the filing window is so small, many employers will try to make their hiring decisions early, and apply for their foreign nationals’ work visas in April.

What this year’s H-1B filing season will bring remains a mystery, but anecdotal evidence from our colleagues at other law firms suggests that demand for the H-1B visa is still very strong  and almost certainly there will be a lottery to distribute the excess H-1B visa applications.

The new rule prohibits employers from filing multiple petitions on behalf of the same employee. This rule is intended to ensure that all companies who file a petition for a foreign worker have an equal chance to obtain approval. According to the rule, USCIS will deny or revoke multiple petitions filed by an employer for the same H-1B worker and will not refund the filing fees submitted with multiple or duplicate petitions. However, the rule does not prevent related employers (e.g. parent company and its subsidiary) from filing petitions on behalf of the same employee for different positions, based on a legitimate business need.

The rule also outlines the method of counting the cap-exempt U.S. advanced degree H-1B petitions. As many of our clients know, for Fiscal Year (FY) 2009, Congress has set a limit of 65,000 for most H-1B visas. The first 20,000 H-1B workers who have a U.S. master’s degree or higher are exempt from the cap. Once USCIS receives 20,000 advanced degree petitions, all subsequent cap-exempt cases are counted towards the cap.

The rule also expands the window for receipt of H-1B petitions which will be included in the lottery in case the H-1B cap is met within the first five business days after April 1. The new window is five business days after April 1.

Finally, the rule makes it clear that USCIS will deny petitions that incorrectly claim a cap exemption and the filing fees will not be returned.

Among the other findings of the report was the fact that the shortage of H-1B visas has resulted in a significant increase in demand of skilled labor.  Because of the relatively complicated and long procedure for obtaining labor-based U.S. permanent residency, the H-1B program has been crucial avenue for U.S. companies to attracting skilled labor.  The unavailability of H-1B numbers over the past years makes recruiting foreign talent increasingly difficult.

Another finding was that in 2005, foreign nationals received 55% of electrical engineering master’s degrees and 42% of computer science master’s degrees.  Because of this substantial proportion and numbers of skilled foreign nationals, companies are facing difficulties in hiring them due to visa number unavailability.  Even though USCIS instituted a separate number of U.S. advanced degree holders for the purposes of H-1B visas, the 20,000 additional advanced degree H-1B visa numbers are quickly exhausted at the beginning of each fiscal year.

The NFAP study helps highlight some important issues which not only affect immigrants but a large number of U.S. businesses who are in desperate need of qualified talent.  Even though there is a wide demand of skilled professionals, the slow and inadequate number of labor visas make it increasingly difficult for foreign nationals to obtain work in the U.S.

As many of our readers are well-aware, the H-1B visa program has an annual cap which was exhausted on the first day during April 2007 and is expected to be exhausted during the first day of the filing season in April of 2008.  Because of this very limited window for filing, many foreign nationals who graduate from U.S. colleges or universities every year in May find themselves unable to obtain H-1B visa shortly after graduation and while many are able to use OPT work authorization for up to one year, they still may face a gap in their employment authorization in the following H-1B filing season.

Many foreign nationals, however, are not aware that a qualified institution of higher education or research non-profit organization is exempt from the H-1B cap and can sponsor a H-1B visa at any time of the year and at a lower filing cost.  This memo aims to clarify which institutions qualify for the cap-exempt status.

June 6, 2006, USCIS Memo

The guidance on which institutions qualify for cap-exempt status comes from American Competitiveness in the Twenty-First Century Act of 2000 (AC21) and from a June 6, 2006, USCIS Memorandum (the “USCIS Memo”) by Michael Aytes, then Director of Domestic Operations at USCIS.

AC21 and the USCIS Memo spell out the three categories of employers who are cap-exempt.  They are 1) an institution of higher education, 2) related or affiliated to a higher education institution nonprofit entity, and 3) nonprofit research organization or a governmental research organization.

Institutions of Higher Education

The definition of “institution of higher education” comes from the Higher Education Act of 1965.  Under the definition, an institution of higher education is one which:

• admits students who have completed secondary education;
• is licensed to provide education beyond secondary school;
• provides educational programs for which the institutions award bachelors’ degrees or provide programs of not less than 2 years that are acceptable for full credit toward bachelors’ degrees;
• is a public or nonprofit institution; and
• is accredited or has been granted pre-accreditation status by a recognized accrediting agency.

It should be noted that all of the criteria above must be met in order for an institution to qualify for a cap-exempt status for H-1B purposes.  Therefore, the definition eliminates elementary or secondary schools, such as public or private schools, charter schools, etc.

Affiliated or Related Nonprofit Entity

The USCIS Memo states that it is sufficient that the nonprofit entity is connected to the institution of higher education through shared ownership, control or be somehow attached to the higher education institution as a member, branch or subsidiary.

Nonprofit Research Organization or a Governmental Research Organization

A nonprofit research organization is an organization that is primarily engaged in basic research and/or applied research. A governmental research organization is a United States Government entity whose primary mission is the performance or promotion of basic research and/or applied research. Basic research is general research to gain more comprehensive knowledge or understanding of the subject under study, without specific applications in mind. Basic research is also research that advances scientific knowledge, but does not have specific immediate commercial objectives although it may be in fields of present or potential commercial interest. It may include research and investigation in the sciences, social sciences, or humanities. Applied research is research to gain knowledge or understanding to determine the means by which a specific, recognized need may be met. Applied research includes investigations oriented to discovering new scientific knowledge that has specific commercial objectives with respect to products, processes, or services. It may include research and investigation in the sciences, social sciences, or humanities.

Conclusion

An employer or a foreign  national who wishes to seek a cap-exempt H-1B petition should verify whether the employer qualifies for a H-1B cap exempt employer given the three categories above.  In many cases such analysis will be fairly quick (e.g. recognized universities) but in some cases, especially with nonprofit organizations, the analysis may be more complicated and nuanced.

The answer is that it depends on the type of unpaid volunteer work you are seeking to perform.  The regulations state in broad terms that unauthorized work is prohibited.  But to distinguish whether volunteer work is unauthorized, it is helpful to understand the government’s motives in setting up this regime.  The USCIS’ goal is to prevent foreign nationals who have employment restrictions in engaging in work which could give them an advantage over U.S. citizens or which could drive down Americans’ wages or benefits.

Therefore, it is not permitted to volunteer for a productive position which is usually paid.  The rationale is that if you are offering to work without a pay in a job which would otherwise be filled by an American who would be paid, then you are subverting the employment authorization system’s goals and undercutting Americans’ job prospects and wages.

However, if the volunteer work you are seeking is for a true volunteer position, for example working for a non-for-profit organization such as a museum, a fire-station, a school or a church where there is no general expectation of compensation,  then volunteering and working without pay would be legal. One should look at whether Americans would perform the same job without pay and under similar circumstances and if the answer is “yes,” then a foreign national in an employment-restricted  status can volunteer and work without pay.

Unfortunately, the USCIS does not consider the future income which will start coming from the non-working spouse as soon as the spouse receives a derivative employment authorization document (EAD) and starts working.  USCIS states clearly that if the sponsor’s income is not sufficient to meet the requirement for the household size, then the applicant immigrant will not be eligible for immigrant visa or adjustment of status.

Thus the options for meeting the income requirement are as follows:

•  Include income from relatives or dependents living in the sponsor’s household or dependents listed in the sponsor’s most recent Federal tax return.  Such relatives and dependents must sign form I-864A.
• Include income from the applicant immigrant, if that income will continue coming from the same source.  In the case of H-1B/H-4 couple, this would not be applicable because the H-4 spouse is not eligible to work.
• Include the value of assets of the sponsor or any household member who is willing to sign I-864A Form.
• Include a joint sponsor whose income and/or assets equal at least125 percent of the Federal Poverty Guidelines.

The goal of the I-864 Form is not to eliminate low-income immigrants but to ensure that such immigrants, once admitted to the U.S., do not become a burden to the social services system.  The options outlined above provide, in our opinion, sufficient opportunities for applicants to satisfy the income requirement.  Finally, the USCIS scrutinizes I-864 Forms for insufficient income and any false information may be cause for denial of benefits.

As many of our readers know, there is an annual limit of 65,000  H-1B visas.  The limit is per fiscal year (FY) which starts in October 1 and the USCIS starts accepting new H-1B applications for the FY starting in October on April 1st.  We are anticipating that due to the extremely heavy demand of H-1B visas, the entire cap of 65,000 will be exhausted on the first day of filing.

Cap Exempt Categories

There are several categories of petitions which are not subject to the cap.  These cap exempt  categories have become increasingly attractive as foreign nationals are often frustrated by missing the single April 1 filing day.  Cap exempt petitions are petitions filed by:

• Institutions of higher education, as defined in Section 101(a) of the Higher Education Act of 1965, 20 U.S.C. 1001(a);
• Nonprofit organizations or entities related to or affiliated with institutions of higher education; and
• Nonprofit research organizations or governmental research organization, as defined in 8 CFR 214.2(h)(19)(iii)(C).

Employers who fall in any of the categories above can file a cap exempt H-1B petition at any time during the year.

New Mailing Address

Qualifying cap exempt H-1B filings should be now addressed to the following addresses:

Direct mail:

U.S. Citizenship and Immigration Services
California Service Center
ATTN: CAP EXEMPT H-1B PROCESSING UNIT
P.O. BOX 30040
Laguna Niguel, CA 92607-3004

For non-USPS deliveries (e.g. FedEx/UPS):

U.S. Citizenship and Immigration Services
California Service Center
ATTN: CAP EXEMPT H-1B PROCESSING UNIT
24000 Avila Road, Room 2312
Laguna Niguel, CA 92667

If a cap exempt petition is received at another service center, it will be expeditiously forwarded to the California Service Center.  Additionally, USCIS is expected to modify the filing instructions to require all cap exempt filings to be made at the California location.  Thus, it is important to use the new address to avoid any delays in your application.

While there may be other ways in which a foreign national on H-1B visa can legally have a company and receive income from it, an H-1B visa holder should be careful not to engage in any unlawful employment because this may jeopardize his or her status.

Generally, a foreign national on H-1B visa may work only for the sponsoring employer.  This, unfortunately, precludes most types of activities that an H-1B individual may wish to engage – consulting, running small business, or even assisting a company for non-monetary gain.  While the Citizen and Immigration Services (USCIS) are unlikely to be going after an H-1B holder who spent a couple of hours helping his neighbor’s home based business by setting up a computer network in exchange for a dinner or a small gift card, anything that formally resembles like active employment for monetary gain is likely to be considered unauthorized employment.

One of the most obvious ideas is for the H-1B foreign national to start her own company and possibly have the new company issue a second H-1B visa for the owner.  However, this strategy may not work because running a company is not an occupation which requires a bachelor’s degree and therefore an H-1B visa approval is unlikely.

What is possible then? Anything that does not involve active participation by the H-1B holder is permissible.  For example, forming own company and hiring somebody else (who is legally authorized to work) to run it is fine even when the company makes profit and the H-1B individual receives it.  This is no different than investing $1,000 into stock of Microsoft which is considered passive investment.  The legal line is crossed, however, when the H-1B owner gets involved in the operation of the company.

Another option is to form a foreign (presumably in the home country) company and, after meeting all requirement, creating a US subsidiary of the foreign company and applying for an L-1 visa.

As always, a consultation by an immigration lawyer is extremely helpful especially considering the dangers of engaging in unauthorized employment and putting the H-1B status in danger.

As the chart illustrates, the number of visa applications following the July 2007 visa fees increased dramatically. This is ironic since the goal behind this July 2007 visa fee increase was to eliminate the processing backlog that plagued many visa applications. According to Gonzales, however, the USCIS did not anticipate the extremely high volume of applications, mainly resulting from the forward movement in many visa priority dates in the July 2007 Visa Bulletin. As a result of this forward movement in the employment-based visa numbers, the USCIS received in the summer months of 2007 approximately 300,000 adjustment of status applications, along with work authorization and travel (advance parole) documents, making a total of approximately 800,000 applications. From June through August 2007 the USCIS received over 3 million applications and petitions of all types (compared with 1.8 million for the same period in 2006).

In Fiscal Year 2007, the agency received almost 1.4 million citizenship applications which is almost twice the number received during the previous fiscal year. Gonzalez stated that his agency has responded to this surge in applications by increasing work hours, adding shifts and hiring contract workers to help meet the demand. However, the backlog remains and is not likely to decrease in the near future. The unfortunate news from Gonzalez is that, “[t]his surge will have a serious impact on application processing times for the next couple of years. As a result, based on our response plan, most customers will wait much longer to have their applications completed.”

The average processing times of citizenship applications are expected to increase from seven to 18 months and adjustment of status applications for family-based immigration applications would increase from six to 12 months. Although the increase in waiting times are expected to be temporary, this is expected to create a number of difficulties and challenges to foreign nationals. Gonzalez said that he expects a return to current processing times (which according to many are too long anyway) is expected in the second half of Fiscal Year 2010). He also said that his agency has taken tremendous efforts to be able to process employment authorization applications within the statutory period of 90 days in light of the large applications backlog.

The answer, outlined by a CIS memo, is that there is no grace period and, at least in theory, a foreign national is not in status the day after they are laid off.  This does not mean that a foreign employee who is laid off has to pack and leave the country within 24 hours or less after they are laid off.  However, this means that an H-1B employee who is laid off must take immediate action, for example file a change of status, to avoid being out of status and jeopardize further immigration benefits.

California Service Center
- I-130 Forms            8/30/2007 (all subsequent forwarded to Chicago for data entry)
- All Other Forms      Current

Nebraska Service Center
- All Forms                Current

Texas Service Center
- All Forms                Current

Vermont Service Center
- I-130                          7/29/2007 (all subsequent sent to Chicago for data entry)
- All Other Forms        Current

Chicago Lockbox (as of 1/14/08)
- I-130 Forms             10/25/2007
- All Other Forms        Current

Los Angeles Lockbox
- All Forms                    Current

This visa “unavailability” was anticipated as a result of the surge in demand in this visa category. Many foreign workers who had previously applied as EB3 (employment-based third preference) were caught in the labor certification backlog which lasted, for some, people several years. Many of these employees were able to refile their applications under the more attractive EB3 category due to experience they gained while waiting for labor certification approval. As a result, the number of EB3 petitions rose sharply over the past months and quickly exhausted the number of available EB3 visas.

The October 2008 Visa Bulletin, due to be released in September 2008 should “open” again EB3 visas for Indian nationals. Note that EB2 visa numbers are “current” for all other nationalities except China which is as of January 1, 2003.

H-2B Visa Background.  The H-2B visa is not as popular as its sibling, the H-1B, but it provides an avenue for many foreigners to come to the United States and engage in a seasonal non-agricultural employment.  Service industries such as hospitality, landscaping, construction and food processing are using this visa the most to assure their businesses are staffed appropriately during peak seasons.  By closing H-2B processing for 10 months, USCIS has shown that the demand for temporary workers is enormous and that inability of employers to sponsor legal workers will put them in a difficult position as to whether to hire illegal workers and risk fines or imprisonment or scale down business operations until at least October.