Update: Foreign Worker Slots Remaining for FY 2012.

U.S. Citizenship and Immigration Services (“USCIS”) still has slots available in fiscal year 2012 for foreign workers in specialty occupations under the H-1B program.

Thus, employers who seek an employment start date on or after October 1, 2011 (the start of the 2012 fiscal year) for foreign workers in specialty occupations can still file visa petitions on behalf of those workers. By rule, the specialty occupations include, but are not limited to: scientists, engineers and computer programmers.

Petitions should be filed as soon as possible in order to avoid being shut down by the annual cap limitation for the H-1B program (cap amount of 65,000 for FY 2012).

Some petitions will be exempt from the cap if they are made on behalf of certain individuals who have obtained an advanced U.S.degree, but USCIS grants the exemption only to the first 20,000 applications.

The current H-1B counts for petitions filed to date are as follows through July 1, 2011:

• H-1B Regular Cap: 18,400 cap-eligible petitions

• H-1B Advanced Degree Exemption: 11,900 petitions

Up to 6,800 visas may also be set aside for workers from Chile and Singapore, pursuant to the H-1B1 program arising out of the U.S.-Chile and U.S.-Singapore Free Trade Agreements.

H-1B petitions, in order to be properly filed, must be complete and accurate. Necessary documents include, but are not limited to the following:

• A Form I-129 petition with appropriate supplements;

• Labor condition applications on Form ETA 9035;

• Required evidence of a beneficiary’s educational background;

• Duplicate copies of certain documents; and

• Consulate-specific forms required by the Department of State where appropriate.

If you are in need of more information about business immigration, please check the pertinent section of our Website at www.visaserve.com or call our offices at (201) 670-0006.

J Waivers – J Waivers of Section 212(e) of the Immigration and Nationality Act Types of J Waivers.

There are five statutory bases for a waiver of the two-year foreign residence requirement:

1. a no objection statement from the home government,
2. a request from an interested U.S. Government agency on the alien’s behalf,
3. a claim that the alien will be persecuted if he or she returns to his or her country of residence,
4. a claim of exceptional hardship to a U.S. citizen or permanent resident spouse or child if the alien is required to return to his or her home country, and
5. a request from a state public health department, or its equivalent, on the alien’s behalf (this only applies to foreign medical graduates who obtained J-1 status for graduate medical training or education).

No Objection Statements

• The consular section of the alien’s embassy in Washington, D.C., can forward a “no objection” statement to the Department of State on the alien’s behalf. The Embassy forwards the “no objection” statement directly to the Waiver Review Division at the Department of State.
• Foreign medical graduates sponsored by the Educational Commission for Foreign Medical Graduates (ECFMG) to do their clinical training cannot apply for a waiver based on a “no objection” statement.
• It is the policy of the Waiver Review Division not to reconsider “no objection” statement applications once a final determination has been made. The alien may, however, reapply using another statutory basis for waiver should another one apply to the alien’s situation.
Interested U.S. Government Agencies
• A waiver may also be based on an Interested U.S. Government agency (IGA) application.
• A letter from a U.S. Federal Government agency, signed by the head of that agency or a designated official, explaining why granting such a waiver is in the public interest of the U.S. and why it would be detrimental to the agency if the exchange visitor returns home to fulfill the two-year requirement. The IGA request letter is sent directly by the agency to the Waiver Review Division.
• An exchange visitor physician, who plans to provide medical service in an underserved area in the U.S. on behalf of an interested U.S. Government Agency, may obtain a waiver based on an interested U.S. Government agency application for a physician. This is different waiver basis than the Conrad program, which allows individual states to nominate up to 30 foreign medical graduate J-1 physicians for a waiver.
• The Interested U.S. Government Agency is responsible for gathering and sending to the Waiver Review Division the documents for the application package.
• The Department of Veterans Affairs requests on behalf of J-1 physicians to serve in VA hospitals: VA hospitals do not have to be in an underserved area and the VA applications must include a signed memorandum of agreement between a physician and a hospital in lieu of a three-year contract.
• The following U.S. Government agencies may apply for the waiver on behalf of foreign medical graduates to practice medicine: Appalachian and Delta Regional Commissions, Department of Health and Human Services, Department of Veterans Affairs and Department of Interior for Indian Reservations. J-1 foreign medical graduates may also apply through an individual state’s department of health Conrad program.

Persecution

J waivers based on persecution must be filed with both U.S. Citizenship and Immigration Services and the Department of State. The Department of States J waiver application is submitted prior to the filing of the U.S. Citizenship and Immigration Services form I-612. U.S. Citizenship and Immigration Services then makes a determination of probable persecution and sends it to the Waiver Review Division.

• Persecution claims should not be mixed with claims of exceptional hardship.
• Requests to reopen persecution applications are made through the U.S. Citizenship and Immigration Services.
Exceptional Hardship
A waiver may be based on exceptional hardship to an alien’s American citizen or permanent resident spouse or child.
• The exceptional hardship J waiver must be filed with both U.S. Citizenship and Immigration Services and the Department of State.
• The application to the Department of State should be filed prior to submitting the I-612 to U.S. Citizenship and Immigration Services or after U.S. Citizenship and Immigration Services has acted favorably on an I-612.
• Requests to reopen an exceptional hardship application are made through the U.S. Citizenship and Immigration Services.
State Department of Public Health, CONRAD Waivers
A waiver based on a request from a state department of public health may be requested.
• The state public health department, if it has agreed to sponsor the exchange visitor for a waiver, must send directly to the Waiver Review Division the documents required for the waiver.
J-2s
• The J-2 spouse and/or child of a J-1 who is subject to the two-year home residence requirement is subject to the same requirements as a J-1.
• If the J-1 receives a favorable recommendation from the Department of State, which is forwarded to U.S. Citizenship and Immigration Services, and U.S. Citizenship and Immigration Services grants the waiver, then the J-2s will also benefit from the waiver.
• J-2 cannot independently apply for a waiver. However, in cases of death or divorce from the J-1, or when a J-2 child reaches age 21, the Waiver Review Division may consider requests for waivers on behalf of the J-2 on a limited case-by-case basis. If the J-2 feels that his or her case merits special consideration by the Waiver Review Division, he or she should submit the appropriate statements of reason. The Division will also need the J-1’s DS-2019/IAP-66 forms and divorce decree or death certificate, whichever is applicable. For a dependent J-2 son or daughter who has turned 21 the Division will also need a copy of his/her birth certificate.
Exchange Visitors who do not return to their home but move to another country.
• The country which was the alien’s country of legal permanent residence at the time he or she received his or her J-1 status is the country to which he or she must return to fulfill the two-year foreign residence requirement.
• The Waiver Review Division considers the J waiver application complete and ready for review when all the required documents have been received, which usually includes completed DS-3035, payment of the processing fee, required documents from third parties such as a No Objection Statement, Request from an Interested Government Agency Waiver (IGA), a request from a state department of public health, or U.S. Citizenship and Immigration Services findings of exceptional hardship or persecution on I-613, and copies of all DS-2019/IAP-66 forms. And, if there has been U.S. Government funding, input from the U.S. Government funding source.

Recommendations

• When a favorable recommendation for a waiver is made and transmitted by the Waiver Review Division to the U. S. Citizenship and Immigration Services, U.S Citizenship and Immigration Services will make the final decision regarding the waiver and will contact the exchange visitor directly. The most common reason J waiver applications are denied is because the reasons given for requesting the waiver do not outweigh the program and foreign policy considerations of the exchange visitor program. For this reason waiver applications from exchange visitors who received U.S. Government funding are generally denied.
• There is no appeal process for denials/unfavorable recommendations for a waiver by the Waiver Review Division. However, the alien subject to Section 212 (e) may be eligible to reapply for a waiver under another basis.
• If a J waiver applicant has new information that may affect his or her eligibility for a waiver recommendation the following applies: If the applicant has already received an unfavorable recommendation from the Waiver Review Division, that decision cannot be appealed. However, in exceptional hardship and persecution cases, if the J waiver applicant believes he or she has new relevant information which may result in a different finding, he or she may consider applying again to U.S. Citizenship and Immigration Services, but needs to start the process anew. If the J waiver applicant’s application is still pending with the Waiver Review Division and the J waiver applicant has new relevant information, he or she may forward that information on to the Waiver Review Division.

Advisory Opinions

• An advisory opinion is a request for the Waiver Review Division’s opinion on whether the Exchange Visitor is subject to the INA 212(e) two-year foreign residence requirement.
• Advisory opinions should be sought when it is unclear whether an exchange visitor is subject to the INA 212(e) two-year foreign residence requirement.

Skills List Questions

• The exchange visitor’s skills list is a list of fields of specialized knowledge and skills that are needed in the exchange visitor’s home country for its development.
• The current skills list is published in the Federal Register, Volume 62, No. 11, January 16, 1997 (pages 2448 to 2516). The 1972 skills list appeared in Vol. 37, No. 80, April 25, 1972, 8099-8117. The 1984 skills list appeared in Vol. 49, No. 114, June 12, 1984, 24194-24249. Amendments to the skills lists were published in the following Federal Registers: Vol. 43, No. 29, February 10, 1978, 5910-5912; Vol. 51, No. 189, September 30, 1986, 34701; Volume 52, No. 24, February 5, 1987, 37444; Volume 52, No. 53, March 19, 1987, 8700; Volume 53, No. 242, December 16, 1988, 50619; Volume 58, No. 143, July 28, 1993, 40466.
• The skills list from the country of the exchange visitor’s last permanent residence at the time he or she obtained J status will apply. If both are the same, then the skills list from his or her country of nationality would apply. Some countries do not have a skills list.
• The exchange visitor should consult with the responsible program officer for the J program for assistance in making a determination of whether or not government funding was received.
• Funding provided by an international organization makes an exchange visitor subject to the two-year home residence requirement.
• The period of time a former exchange visitor spends in the U.S. or a third country may count towards fulfillment of the two-year home residence requirement if the person is employed by his or her government in its military service or career foreign service and that person is serving in a country other than the home country at the behest of his or her government. Before the Department can determine that the individual has satisfied the foreign residence requirement, it requires a written statement from an official of the home government (through the home-country’s embassy in Washington, D.C.) that the individual was or will be serving in the U.S. or third country in the service of his or her home country and at that government’s request.

Let us assist you with your waiver questions. E-mail to us at info@visaserve.com.

Released April 8, 2011

WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) today announced it continues to accept H-1B nonimmigrant petitions that are subject to the fiscal year (FY) 2012 cap. The agency began accepting these petitions on April 1, 2011.
USCIS is monitoring the number of petitions received that count toward the congressionally mandated annual H-1B cap of 65,000 and the 20,000 U.S. master’s degree or higher cap exemption.

USCIS has received approximately 5,900 H-1B petitions counting toward the 65,000 cap, and approximately 4,500 petitions toward the 20,000 cap exemption for individuals with advanced degrees.

U.S. businesses use the H-1B program to employ foreign workers in specialty occupations that require theoretical or technical expertise. Such workers include scientists, engineers and computer programmers, among others.

USCIS will provide regular updates on the processing of FY 2012 H-1B petitions. These updates and helpful filing information can be found at USCIS’s website highlighting the H-1B program. Should USCIS receive the number of petitions needed to meet the cap, it will issue an update advising the public that the FY 2012 H-1B cap has been met as of a certain date, known as the “final receipt date.”

The date USCIS informs the public that the cap has been reached may differ from the actual final receipt date.

To ensure a fair system, USCIS may, on the final receipt date, randomly select the number of petitions that will be considered for final inclusion within the cap. The agency will reject petitions subject to the cap that are not selected, as well as those received after the final receipt date. Whether a petition is received by the final receipt date will be based on the date USCIS physically receives the petition, not the date that the petition has been postmarked.

Cases for premium processing (faster processing of certain employment-based petitions and applications) of H-1B petitions filed during an initial five-day filing window are undergoing a 15-day processing period that began April 7. For all other H-1B petitions filed for premium processing, the processing period begins on the date that the petition is physically received at the correct USCIS Service Center.

Meanwhile, petitions filed by employers who are exempt from the cap, as well as petitions filed on behalf of current H-1B workers who have been counted previously against the cap within the past six years, will not count toward the cap.

For more information on USCIS and its programs, please visit www.uscis.gov or follow us on Twitter (@uscis), YouTube (/uscis) and the USCIS blog The Beacon.

Last updated:04/08/2011

H-1B E-Guidance from the USDOL:

The U.S. Department of Labor has promulgated a helpful guide for employers about the H-1B nonimmigrant visa process.

Check it out at:

http://www.dol.gov/elaws/h1b.htm

H-1B Site Visits Soon To Become a Routine Protocol:

For the past few months, the U.S. Department of Homeland Security,
Citizenship and Immigration Services (”CIS”) has conducted an
investigation program aimed at visiting H-1B petitioner worksites
throughout the U.S. These site visits began as part of the CIS’ goal to
decrease the number of H-1B violations and instances of fraud reported by the H-1B Benefit Fraud & Compliance Assessment from CIS’ Office of Fraud Detection and National Security (”FDNS”), published this past September. According to the FDNS’ findings, as many as one in five H-1B applications were affected by either fraud or “technical violations” of the H-1B program.

Why should employers care? Any employer who sponsored a foreign national worker for an H-1B visa can be subject to an unannounced site visit. What this means is that an investigator can randomly show up at a worksite and demand to see a copy of the H-1B petition, interview the person who represented the company in connection with the H-1B as well as the H-1B employee or other employees presently on site. Any inconsistencies found can mean big trouble for employers.

FDNS has indicated that it does not need a subpoena in order to complete
the site visit because USCIS regulations governing the filing of
immigration petitions allow the government to take testimony and conduct broad investigations relating to the petitions. However other sources say that employers are not required to give in to the investigators’ demands without a subpoena. What to do? Our office recommends that you always comply as much as possible with any investigative agency that shows up at your door. CIS has indicated that attorneys can be present during an inspection, but the investigator is not likely going to come back another day if the attorney is not available on the day of the unscheduled visit. Attorneys may be present via telephone in these circumstances.

Some common questions that have been raised by employers include: “how are companies selected to be investigated,” “if I am visited, should I be concerned,” “what type of violations are the investigators looking for,”
and “how can I prepare for a site visit from a CIS/FDNS investigator?” To
address these issues in order, firstly any employer who has filed an H-1B
petition can be subject to a site visit. While CIS claims the employers
are chosen at random, close to 40,000 employers’ names have been selected for site visits. Some factors that may have been taken into consideration when selecting these 40,000 employers include: companies with less than 15 employees; companies with less than $10 million in sales; companies less than 10 years old; accounting, HR, business analyst, sales and advertising positions; and petitions where the beneficiary merely had a bachelor’s degree, not an advanced degree.

If your company is visited and your records are in order, you have nothing to worry about. Generally speaking employers are aware of inconsistencies before any investigative agency may catch wind of it. That being said, if the investigators uncover any inconsistencies or instances of fraud, the case may be referred to U.S. Immigration and Customs Enforcement (ICE), or the Department of Labor (DOL) for further investigation depending on the offense. This could mean there will be monetary, and if egregious offenses, possible criminal penalties for the employer.

The objective of the unannounced on-site visits is clear: to detect fraud
and abuses of the visa program. According to USCIS, the offenses range
from technical violations to outright fraud, with the most common
violation being the non- payment of a prevailing wage to the H-1B
beneficiary. More specifically, the investigators may be looking for the
following types of violations: job location not listed on the H-1B
petition and/or LCA; H-1B worker not receiving the required wage;
fraudulent H-1B documents or H-1B worker credentials; non-existent
business or office location; job duties significantly different from those
listed on H-1B petition/LCA; misrepresentation of H-1B status by the H-1B
worker (e.g., had been terminated from previous H-1B position prior to new employer H-1B being filed); and H-1B worker paid the $1500 ACWIA fee.

How can you prepare yourself and your company for a possible site visit?
Step one is to ensure that you have Public Access Files (PAF) for each
H-1B worker, and that the PAF documents are accurate and up to date. In
general, it is a good idea to review and audit your H-1B/LCA records to
make sure everything is in order and all information is readily available.
Designate a specific individual at each H-1B worker location to meet the
investigator should he/she arrive. Prepare a quick list of facts about the
company and also a listing of H-1B workers, work locations, title and
salary information so you don’t need to search frantically for this
information while the investigator is there. If you are not sure what a
PAF is, or if you’d like to have your documents reviewed by legal counsel,
you may contact our office at the number or e-mail below.

Learn more About Nachman & Associates, P.C. When traditional immigration  approaches do not work, our skilled legal team offers many visa options to meet your immigration goals. Please feel free to contact us at any of our office locations, and speak to an associate in one of our 12
languages spoken, including: Spanish, French, Japanese, Korean, Slovak,
Czech, Polish, Tagalog, Italian, Russian, Chinese, and German.

To meet a growing demand for Canadian immigration from the United States, in 2005 Nachman & Associates formed a Canadian Division, managed by licensed Canadian legal staff. With offices in Montreal, and Toronto, Canada (as well as in New York and New Jersey in the U.S.) our Canadian Division attorneys are in the unique position to assist with cross-border issues. If you, or any member of your staff, are interested in receiving more information about U.S. and/or Canadian Immigration options, please contact our offices at 201-670-0006 (x100) or e-mail to us at info@visaserve.com.

Website: http://www.visaserve.com
Nachman & Associates, P.C.
David H. Nachman, Managing Attorney
email: david_nachman@visaserve.com

phone: 201-670-0006 ext. 100

Article Source: http://EzineArticles.com/?expert=David_Nachman

THE NEUFELD MEMO CAN CHANGE THE WHOLE H-1B PROFESSIONAL AND SPECIALTY OCCUPATION VISA
LANDSCAPE IN THE UNITED STATES.

By David H. Nachman, Esq., Managing Attorney – Nachman & Associates, P.C.
(Ridgewood, New Jersey, New York City and Canada), Business and family Immigration Lawyers and Attorneys.

As we have recently reported, H-1B “season” for the 2010-2011 Fiscal Year will begin on April 1st 2010. This means that H-1B employers will be able to submit H-1B nonimmigrant professional and specialty occupation worker visa petitions requesting an October 1st 2010 start date. Our offices continue to remain poised to assist U.S.
employers to prepare and submit these petitions.

Recently, the U.S. Department of Homeland Security, Citizenship and Immigration Service (”CIS”) implemented several important changes to the H-1B “professional and
specialty occupation” work visa program in the U.S. The changes have alarmed many H-1B employers. Some of the changes included redefining the employer-employee relationship for third-party worksite placements.

The new guidelines were set forth a January Memorandum from the Associate Director of Service Center Operations, Donald Neufeld (the “Neufeld Memo”). While it may be
the case that the Neufeld Memo targets consulting companies that place H-1B visaholders at third-party sites, it appears that the document may have a significant impact on U.S.
employers who use H-1B nonimmigrant contract consultants to supplement their full-time workforce. The use of contract consultants (such as H-1B nonimmigrants), especially in an economic downturn or recession, continues to be critical to many organizations.

For example, information technologies projects are of a limited nature and duration. Organizations find it to be economically feasible to engage the services of temporary consultants as opposed to creating a full-time position.

If inappropriately applied, the guidelines set forth in the Neufeld Memo can result in (1) denials of H-1B amendments and extensions; and (2) denials of entry to the U.S. of H-1B
nonimmigrants who have traveled internationally; and (3) increased propensity by CIS for H-1B site visits and H-1B enforcement actions.
The issues raised in the Neufeld Memo are of great concern for H-1B employers as well as H-1B nonimmigrants.

The ripple effects of the Neufeld Memo are still spreading. We will continue to monitor any new developments as they surface. For more information
about the H-1B nonimmigrant visa or the Neufeld Memo, please feel free to contact our offices at 201-670-0006 (X100) or e-mail to us at info@visaserve.com.