With the arrival of 2009, we have successfully navigated one more year of our expedition. It has been your continuous support and trust that has made this journey a memorable one. The year 2008 had been very prolific, though it was tranquil at times and erratic at others. With the beginning of another new year, we at VisaPro promise and will strive hard to introduce exciting services to make your visa processing even more Fast, Easy and Economical! We wish you all a very Happy and Prosperous year ahead.
The H-1B visa category, which has always been in news, is once again the talk of the town. As always seems to be the case, this time too, not for a good reason. It may come as a surprise to you but the rumors that you may have heard that the Labor Condition Application (LCA) processing times are expected to increase are true. Informal indications from US Department of Labor (DOL) have indicated that the processing time for LCAs, which are required as part of H-1B petition filings, might take up to 7 working days. This time frame is likely to be longer if an “other” source is used for a salary determination. Now, unlike in previous years, last minute filings will be a challenge. This is a crucial issue because the LCA filing date and its processing times may in turn influence or impact the larger issue of H-1B quota planning. Thus employers have to make sure that processing delays do not endanger the timely filing of an H-1B visa petition.
The year 2008 was no different from other recent years as in that the H-1B cap was reached within 5 business days after filings began on April 1, 2008. We expect the same for 2009. Employers should remember that March 31, 2009, is the date when they can begin shipping H-1B cases with an employment start date of October 1, 2009, to USCIS. As was the case in 2008, if the USCIS receives too many H-1B visa petitions, it will use a lottery system to select H-1B petitions for adjudication. One can expect the probability for selection in the lottery to be somewhere between 45% to 50% of the filed petitions.
This month also brought some exciting news for those who use the H-2B program for temporary nonagricultural workers. On December 19, 2008, both the USCIS and the US Department of Labor (DOL) published final rules that will change how H-2B petitions are processed in the future and the requirements for employers and beneficiaries. These changes are being made to fulfill the commitment made by President Bush’s Administration in August 2007, with the failure of any comprehensive immigration reform in Congress, to address immigration challenges using existing authorities. These new rules will become effective on January 18, 2009; however certain aspects of the rules will be phased in over the next year.
Key areas of reform covered in the Final Rule include:
- Centralized processing: Re-engineers the application filing and review process by centralizing processing and by enabling employers to conduct pre-filing recruitment of US workers;
- Post-adjudication audits: Enhances the integrity of the H–2B program through the introduction of post-adjudication audits and procedures for penalizing employers who fail to comply with program requirements;
- Flexibility: Reducing from six months to three months the time an H-2B worker who has spent three years in the United States must reside and be physically present outside the United States before he or she is eligible to re-obtain H-2B status;
- Employers’ comfort: Allowing H-2B petitioners to specify only the number of positions sought and not name the individual aliens except where an intended alien beneficiary is already present in the United States; or where an alien is from a country not eligible for participation in the H-2B program;
- Employees’ comfort: Reducing the period of time spent outside the United States that interrupts accrual towards the 3-year maximum period of stay in H-2B status;
- No additional fees: Prohibiting H-2B employers and recruiters from imposing certain fees on prospective H-2B workers as a condition of securing employment;
- Approved Labor Certification: Requiring an approved temporary Labor Certification in connection with all H-2B petitions;
- Employees’ flexibility:
a) Amending the definition of “temporary services or labor” to allow U.S. employers and eligible foreign workers the maximum flexibility to complete projects that could be for a specific one-time need of up to 3 years without demonstrating extraordinary circumstances;
b) Beginning with petitions filed for workers for Fiscal Year 2010, prohibiting H-2B petitioners from requesting an employment start date on the Form I-129, “Petition for a Nonimmigrant Worker,” that is different than the date of need stated on the approved temporary labor certification;
- Ensuring employers’ safety: Requiring employers to notify USCIS when H-2B workers fail to show up for work, complete the work more than 30 days early, are terminated, or abscond from the worksite;
- Petition approval for participating countries: Permitting the approval of H-2B petitions only for nationals of certain countries designated as participating countries by the Secretary of Homeland Security, in consultation with the Secretary of State, and appearing on a list to be published annually in the Federal Register. The initial list of participating countries designated as important to the operation of the program and to be published simultaneously with this Final Rule, includes Mexico, Jamaica, and 26 others. DHS may allow on a case-by-case basis a worker from a country not on the list to be eligible for the H-2B program if such participation is in the U.S. interest;
- Statutory power to DOL: Delegating to the Department of Labor (DOL) the statutory authority to impose certain administrative remedies and/or penalties where a substantial failure to meet any of the conditions of the H-2B petition or a willful misrepresentations of a material fact in such petition is found; and
- Land-border exit system: Establishing a land-border exit system pilot program, which requires H-2B workers admitted through a port of entry participating in the pilot program to also depart through a participating port and to present designated biographic and/or biometric information upon departure.
As we reported in last month’s newsletter, the USCIS announced certain revisions to the special immigrant and nonimmigrant religious worker visa classifications on November 28, 2008. Since the final rule was effective upon publication, the USCIS published materials in the form of Q & As to explain the application of the new rule. Given the USCIS’ history of clarity it is no surprise that they have had to issue additional Q & As so that people can understand and follow the new rule.
In recent times, there has been a significant increase in the level of scrutiny of L-1 filings by the USCIS, resulting in more Requests for Evidence (RFEs) and ultimately, a higher rate of denials. Even L-1 extensions are scrutinized as never before and are resulting in denials. In light of the increased strict scrutiny of L-1 cases, those employers that primarily rely on L-1 visas to bring foreign workers to the US may have no option but to wait for the H-1B quota to open again and file H-1B petitions for those individuals that they would normally seek L-1s for. These employers should plan to make use of the H-1B filing period that opens April 1, to file H-1B cases instead of solely relying on L-1 cases to go through. Thus, with proper planning you can keep yourself and your company’s employment needs intact of the changing immigration policies.
Finally, we would be remiss if we did not turn our attention to one of the major upcoming events of the year – yeah…you got it right…I’m talking about the inauguration ceremony of President-elect Barack Obama. With the swearing-in of President-elect Obama on the agenda, the New Year celebrations have undoubtedly hit the peak. Barack Obama will be sworn in as the 44th President of the United States on January 20, 2009, and people all over the globe are anxiously awaiting the grand event. Mr. Obama will take office in January amid massive unrealizable expectations and facing a daunting list of problems – the wars in Iraq and Afghanistan, the broken healthcare system, the spiraling federal budget, and America’s profligate energy regime – all prominent among them. Eclipsing them all however, as Obama has made clear in recent days, is the challenge of rebuilding the economy and the banking system. These, though, are issues for another day. People believe that Obama is a symbol for happiness, glory and humanity. But what we are more interested in is his views on immigration. Obama, in one of his campaign speeches, promised that he would make immigration his top priority and will definitely initiate ways and means to make it a fair journey. Obama and Vice-President elect Joe Biden will introduce ways to fix the dysfunctional immigration bureaucracy and increase the number of legal immigrants to keep families together and meet the demand from employers for jobs they cannot fill. Obama has stated he would also initiate measures to discourage illegal migration to the United States.
Other Developments in Immigration Law:
USCIS Reaches H-2B Cap for Second Half of Fiscal Year 2009
The USCIS, on January 08, 2009, announced that it has received a sufficient number of petitions to reach the congressionally mandated H-2B cap for the second half of Fiscal Year 2009. The USCIS, however, continues to process the H2B petitions, which are not subjected to the cap like Extension of Stay of a current H-2B worker in the United States; Change the terms of employment for current H-2B workers and extend their stay; or allow current H-2B workers to change or add employers and extend their stay.
Premium Processing Available for Blanket L Petitions
Premium Processing is available to request the Blanket L classification for a Petitioner and its qualifying related entities. A request for premium processing of a Blanket L petition should be made on Form I-129, Petition for Nonimmigrant Worker, not on Form I-129S, Nonimmigrant Petition Based on Blanket L Petition. “LZ” should be entered as the requested nonimmigrant classification in Part 2, Item 1 of Form I-129. Individual employees should not be named in the Form I-129. Section 2 of the L classification supplement to Form I-129 should also be completed when seeking Blanket L approval.
Electronic Travel Authorization required for Visa Waiver Countries
Nationals from the Visa Waiver countries, wishing to enter the US will now need to apply electronically for travel authorization. The rule is effective from 12 January 2009. Visa Waiver Program Applicants are advised to apply for ESTA at least 72 hours before travelling to the US. You should provide biographical data, including name, birth date, and passport information, destination address in the US. You will also need to answer questions regarding communicable diseases, arrests and convictions for certain crimes, and, if relevant, provide details of visa revocation or deportation.
Immigration Articles and Other Fun Stuff:
Now for the regulars – this month’s Immigration Article entitled ‘The Form I-751 – Petition to Remove Conditions on Permanent Residence‘ is a must read if you are granted Conditional Residency in the US through marriage to a US Citizen. The article gives you a comprehensive guide on removing the Conditions on your residency. Also check out our In Focus section for this month, which gives you a detailed insight of both the Immigrant and Nonimmigrant Visas. The articles also helps you differentiate between the two based upon their benefits, characteristics and usage. Read the article to find out more.
Every month we introduce a new and interesting question for our opinion poll. Last month’s poll results indicate that 87.50% of the respondents believe that the US should increase the number of family-based visas to unite U.S. citizen & permanent residents with their family members. We appreciate that people take interest in the opinion question and cast their vote to give us their feedback. Keep it up! And continue to cast your vote to express Your Opinion.
We congratulate Kishor Tiwari for winning last month’s Immigration Quiz. Again, we received a significant number of responses from our readers, who talked about various solutions to support their position, but
Kishor Tiwari gave the correct answer and won a free online consultation to discuss his Immigration issues. So it’s time to get ready for this month’s quiz. If you know the correct answer your name might be featured in next month’s newsletter. All the Best!!!
See you next month with a lot more noise from the Immigration World!