Description H-1B Season is Upon Us . . . Will This Year’s Economy Bring a Lottery? Probably not, but planning for the H-1B is key to being able to continue your work authorized status in the U.S.

It is that time of year again! We always hear the accountants moan and groan about the approaching April 15th deadline each year but, you have to listen a bit more closely and you will hear (and see) the U.S. business immigration lawyers and attorneys manifesting their distaste for the April 1st filing date for “cap” subject H-1B professional and specialty occupation workers.

Well, here we go again . . .

On April 1st, 2012 marks the first day when prospective H-1B petitioning employers and prospective H-1B employees will be able to apply to the U.S. Department of Labor (”DOL”) for and Labor Condition Application (”LCA”) and Petition to the U.S. Citizenship and Immigration Services (”CIS”) for H-1B visa petitions for employment in the fiscal 2012-2013 year (”FY 2013″). Our advice to our H-1B employer clients continues to be that they need to think about filing H-1B petitions on (or very close to) April 1st for new and existing employees who will be eligible for a first-time H-1B visa to begin their employment on or after October 1st, 2012.

Each Fiscal Year, Congress has mandated an annual cap of 65,000 H-1B visas for “professional and specialty occupation workers” who possess the equivalence of a U.S. Bachelor’s Degree. There are also an additional 20,000 H-1B visas available for individuals who possess the equivalence of a U.S. Master’s Degree or other advanced degrees from U.S. Colleges or Universities. It continues to be the case that H-1B visa petitions filed on behalf of current workers who have been counted previously against the H-1B visa cap are not included in the annual cap established by Congress. Additionally, pursuant to the Chile and Singapore Free Trade Agreement, 6,800 H-1B visas are available exclusively to Chile and Singapore Nationals. This reduces the total allotment of H-1B visas available each fiscal year to 58,200.

For many years, our office assisted students who had to deal with the “cap-gap” issue. We also assist employers with E-Verify applications so that they can offer international students the 17 month STEM extensions.

In 2008 there was a regulation that gave some assistance to international students in the U.S. who applied for H-1B in their OPT period. In 2008, a regulation was promulgated that provided “cap-gap” relief for F-1 students with pending H-1B petitions. For example, F-1 student visa holders who received work authorization in Optional Practical Training (OPT) were permitted to extend the authorized period of stay and work authorization as long as they have received approved H-1B visas prior to the expiration of the OPT. Also, many Science, Technology, Engineering and Mathematics (”STEM”) students continue to use the 19 month extension as a way to have the time they need to petition in the appropriate H-1B cycle. However, to get the STEM extensions, the employer needs to be enrolled in E-Verify.

For the last three (3) fiscal years, the H-1B allotment actually lasted for almost eight to nine months. This past year, the H-1B allocation lasted until November. However, in previous years, the H-1B allotment was actually exhausted within three (3) days of the H-1B visas becoming available. This required the CIS to conduct a “lottery” and only one of three visas submitted was accepted for processing by the CIS. The demand for H-1B visas this fiscal year may be greater than it was for last year. We keep hearing that “economic recovery” is on the way. For this reason, we continue to advise our H-1B employers to consider filing on April 1st, or as soon thereafter as possible.

Employers Feel the VIBE . . . Look Out For A New Validation Instrument for Business Enterprises (”VIBE”).

CIS announced in its several recent stakeholders meetings that it will continue to use a new web-based tool called the Validation Instrument for Business Enterprises (”VIBE”). The VIBE program is purportedly designed to enhance the speed and accuracy for the adjudication of certain employment-based immigrant and nonimmigrant petitions. The VIBE Program uses public information and previously accumulated data by third party provides to validate data about the organizations that file petitions for the temporary and permanent employment of foreign national workers in the U.S.

The VIBE Program allows CIS to electronically “ping” databases. One such database is Dun & Bradstreet (”D&B”). The D&B database contains information about the petitioner organization including, but not limited to:

1. Business activities, such as type of business (North American Industry Classification System code), trade payment information and status (active or inactive);

2. Financial standing including sales volume and credit standing;

3. Number of employees including onsite and globally;

4. Relationships with other entities including foreign affiliates;

5. Status, for example, whether it is a single entity, branch, subsidiary or headquarters;

6. Ownership and legal status, such as LLC, partnership or corporation;

7. Company executives;

8. Date of establishment as a business entity; and

9. Current physical address.

The idea is that a CIS adjudicator will consider the information submitted by the H-1B petitioner and also compare that information to the information that they glean from VIBE. Since the VIBE database is not fully populated it is likely that H-1B petitions will continue to be met with requests for evidence (”RFEs”), when the H-1B petitions are submitted to the CIS. The receipt by an employer of an RFE is likely to cause delays in processing of the H-1B (even when the cases are submitted with premium processing requests.

As an aside, the CIS also announced that they are working on an electronic registration for H-1B employers to attempt to more streamline the process and to avoid the “run on cap-subject H-1Bs” that has occurred in prior years. The CIS announced a proposed rule that would establish a system which will allow an H-1B employer to submit an electronic registration prior to the submission of the H-1B. The idea is behind the registration is that before April 1st, the CIS will be able to predict how many visas are being demanded by cap subject H-1B employers/employees. The implementation of this system is still in its genesis

Other changes in the H-1B arena that employers need to know include: (1) that CIS announced a review of its policy on H-1B cap exemptions for nonprofit entities that are related to or affiliated with an institution of higher education (examples include teaching hospitals that are affiliated with medical schools or organizations affiliated with nonprofit colleges or universities; and (2) that U.S. employers seeking to sponsor foreign nationals on H-1B, H-1B1 (Chile/Singapore), L-1 and O-1A visas must certify to compliance with Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR).

For any additional information about the 2012-2013 “H-1B season”, please feel free to contact our offices at [email removed]

The Nachman Phulwani Zimovcak Law Group P.C. is ready to assist you with any and all of your immigration law needs in the U.S.

Please feel free to contact our offices at 201-670-0006 (x100) for David Nachman, Esq., (x124) for Michael Phulwani, Esq., and (x105) for Ludka Zimovcak, Esq.

We also have Canadian Lawyers on our staff to assist you with transfers to Canada and we have an affiliated office in Mumbai, India.

Read more: http://newyork.ebayclassifieds.com/legal-lawyer/new-york/u-s-immigration-law-h-1b-season-is-upon-us-beware-the-cap-gap/?ad=16799191#ixzz1lWYgIRHI

Validation Instrument for Business Enterprises (VIBE) Program

Introduction

The Web-based Validation Instrument for Business Enterprises (VIBE) is a tool designed to enhance USCIS’s adjudications of certain employment-based immigration petitions. VIBE uses commercially available data to validate basic information about companies or organizations petitioning to employ alien workers. USCIS is beta-testing VIBE, and petitioners may begin seeing VIBE-related Requests for Evidence (RFEs).
Background

Currently, when adjudicating employment-based petitions, USCIS primarily relies on paper documentation supplied by the petitioning company or organization to establish the petitioner’s eligibility for the requested classification. Petitioners often submit large amounts of paperwork as evidence of their current level of business operations. When petitioners’ paperwork does not sufficiently document the evidence required under the law, USCIS issues a Request for Evidence (RFE) for additional documentation, delaying final adjudication of the petition.

VIBE Program

VIBE allows USCIS to electronically receive commercially available information from an independent information provider (IIP) about a petitioning company or organization, including:

* Business activities, such as type of business (North American Industry Classification System code), trade payment information and status (active or inactive)
* Financial standing, including sales volume and credit standing
* Number of employees, including onsite and globally
* Relationships with other entities, including foreign affiliates
* Status, for example whether it is a single entity, branch, subsidiary or headquarters
* Ownership and legal status, such as LLC, partnership or corporation
* Company executives
* Date of establishment as a business entity
* Current physical address

A USCIS officer will review all information received through VIBE along with the evidence submitted by the petitioner. Adjudicators will use the information provided from VIBE to verify the petitioner’s qualifications. For example, if a petitioner is seeking L-1 status for a beneficiary, VIBE will help adjudicators confirm that the petitioner has a foreign affiliate, which is a requirement for granting L-1 status. In cases where petitioners must establish ability to pay, information from VIBE will assist in confirming the petitioners’ financial viability. USCIS will not deny a petition based upon information from VIBE without first giving a petitioner the opportunity to respond to USCIS’s concerns. USCIS will issue an RFE or a Notice of Intent to Deny (NOID) if it is necessary to resolve relevant inconsistencies or other issues that emerge upon review of information supplied by VIBE that are material to the benefit requested. The Immigration Services Officer (ISO) will make a final decision based on the totality of the circumstances.

Immigrant Classifications Included in VIBE

The following I-140 employment-based immigrant classifications will be included in VIBE:

* E12 Outstanding professor or researcher
* E13 Multinational executive or manager
* E21 Member of professions holding an advanced degree or an alien of exceptional ability (with the exception of National Interest Waiver petitions)
* E31 Skilled Worker
* E32 Professional
* EW3 Unskilled/Other Worker

Additionally, the following I-360 employment-based immigrant classifications will be included in VIBE:

* SD1 Minister of Religion
* SR1 Non-minister in a religious occupation or vocation

The following I-129 employment-based nonimmigrant classifications will also be included in VIBE:

* E-1 Treaty Trader
* E-2 Treaty Investor
* E-3 Member of specialty occupation who is a national of the Commonwealth of Australia
* H-1B Specialty occupation worker
* H-1B1 Specialty occupation worker from Chile or Singapore
* H-1B2 Worker performing services related to a Department of Defense (DOD) cooperative
research and development project or co-production project
* H-1B3 Fashion model of distinguished merit and ability
* H-2A Temporary or seasonal agricultural worker
* H-2B Temporary non-agricultural worker
* H-3 Trainee or special education exchange visitor
* L-1A Intra-company transferee in a managerial or executive position
* L-1B Intra-company transferee in a position utilizing specialized knowledge
* LZ Blanket L petition
* Q-1 International cultural exchange visitor
* R-1 Religious worker
* TN NAFTA professional from Canada or Mexico

At this time, the following classifications will not be included in VIBE due to the very unique eligibility requirements for these classifications:

* E11 Individuals of extraordinary ability
* E21 National interest waiver
* EB-5 Immigrant investor
* O Individuals with extraordinary ability or achievement (including essential support personnel)
* P Internationally recognized athletes and entertainment groups, performers under a reciprocal exchange program, and artists or entertainers under a culturally unique program (including essential support personnel)

Goals of VIBE

By enhancing USCIS’s ability to distinguish eligible petitioners more easily from those who may be ineligible, VIBE is expected to increase the efficiency of reviews by USCIS ISOs. In the future, VIBE should reduce the need for petitioners to submit identical paper documentation with each petition to establish their current level of business operations. VIBE should also assist USCIS to reduce the number of RFEs issued to otherwise eligible petitioners.

By providing the same petitioner information to all four USCIS Service Centers, VIBE promotes the consistent review of employment-based immigrant and nonimmigrant petitions. Overall, the information provided by VIBE improves the integrity of employment-based immigrant and nonimmigrant programs and the process for petitioners seeking foreign workers to employ.
Feedback about VIBE

Some petitioners may receive an RFE or NOID referencing information received from the IIP through VIBE. Petitioners are required to respond to these RFEs or NOIDs; failure to respond may result in a denial of the petition. However, USCIS encourages petitioners to bring to our attention any questions related to RFEs or NOIDs involving IIP information USCIS received through VIBE, as well as suggestions for improving the program by contacting us at VIBE-Feedback@dhs.gov.

This page can be found at http://www.uscis.gov/vibe

December 22, 2010

Op-Ed Article

The “Right” DREAM

For years, many well-meaning people from widely diverse backgrounds and organizations have encouraged Congress to pass the Dream Act, branding it a “Pathway to Citizenship”.

As an Immigration attorney, my personal opinion is that the repeated failure of the Dream Act to pass Congress lies in that de facto and demanding phrase. This “Pathway to Citizenship” may be seen by many as a way to pave a future for minors who had no control over their fate in being brought to the United States. Alternatively, this may be perceived by others as simply asking for too much from our Federal Government at a time when it has so many crises to resolve.

I have heard and seen thousands of stories of how brutal life is for undocumented minors and young adults. Doors for military service and higher education remain closed. The opportunity to gain even meager employment remains tenuous or impossible. Doors have never slammed shut on these young people, because the doors were never open. More often than not, these people are borderline illiterate in the language of their birth country, and often they do not even have any memories from their country of birth. The stories of these boys and girls are simply heart wrenching. They are preoccupied about arrest, detention and potential removal to a land they don’t even remember. Depression and anxiety grow annually as tens of thousands of people come to understand they cannot realize their dreams in the United States. I have heard from a few undocumented adolescents that have said they would kill themselves rather than live outside of the United States, the only country they know.

What is preventing the DREAM act from passing? The most progressive lobbyists and politicians, with the best of intentions, have altogether missed the beat of many American people who are against this pathway to citizenship. I have heard both sides of the story for many years as conservatives often tell me their perspective. Are conservatives being heartless or impractical on this topic? I think not. Most conservatives want these productive young people to be able to serve in our military, to pay their way in higher education, to help maintain their stable families and communities, to be employed legally in our workforce and to contribute billions to our tax base. But not at the cost of being placed on the pathway to citizenship. This usually seems to be one of the strongest points of debate.

The “Pathway to Citizenship” has become a point of hostile national gridlock instead of productive national debate and compromise. The following is a proposed solution to this vexing problem that has stymied our Congress for so long. Let’s drop the demand for a “Pathway to Citizenship”. Instead, let’s call it a “Pathway to Compliance” and give undocumented youth the ability to stay in the United States, to work in the United States and to travel in and out of our country, forever being barred from acquiring Permanent Residency, save for an exception for those who earn honorable military discharges.

Once and for all, we could put to rest the angst of conservatives regarding perceived “amnesty” for those who entered the United States without authorization. Would this prohibition against permanent residency, and therefore, ultimately, a prohibition against Citizenship be fair? Probably not. But life is not entirely fair and this compromise could satisfy perspectives from both the left and from the right. Most immigrants who entered the United States as minors, through no choice of their own, and who do not yet have legal status, would be able to live productive lives and come out of the shadows. Certainly, everyone would be subject to criminal background checks and other tests of attributes of good moral character, such as compliance with annual tax filings. The very nature of being in this new temporary and indefinite visa status would give the Federal Government the tools to deal pragmatically with so many young people who are not yet in status, and to monitor more closely many of those people who are here.

The real benefits to the United States, to many frustrated military recruiters, to our reeling national tax base, to our educational institutions, and to the emotional and legal stability of hundreds of thousands of families are within reach. This debate should be re-kindled. Lobbyists and Congressmen should compromise on DREAM in order to realize benefits for all and to avoid a future national nightmare.

Daniel L. Weiss, Esq.
Freehold, New Jersey

*** The contents of the above OP ED are not necessarily the opinions of the Visaserve Team but they are the opinions of Daniel Weiss, Esq., an Immigration Lawyer and a friend of our Law Office.

Why We Need The DREAM Act Now
by Victoria Donoghue

Why We Need The DREAM Act Now For some time now, lawmakers have insisted that immigration reform, if it is to happen, must be comprehensive, dealing with all of the problems with our broken system at once. A piecemeal approach, they say, is not acceptable. Suggestions that certain pressing issues be dealt with separately have been flatly rejected.

However, efforts at so-called Comprehensive Immigration Reform (CIR) have gone nowhere for years. Lobbying efforts in March 2010 by the American Immigration Lawyers Association (AILA) made it clear that CIR is not going to pass anytime soon.

Given this state of affairs, perhaps now is the time to address separately our most pressing immigration issues. And nothing could be more pressing than the one facing many talented young people in our country. In his July 1, 2010 remarks on CIR, President Obama pointed out that many of the 11 million illegal immigrants amongst us came to the US with young children in tow. These children grew up as Americans; they were educated in our schools, speak English fluently, and have embraced American culture as their own. As President Obama stated, many “only discover their illegal status when they apply for college or a job.”

College applications require a social security number, and illegal immigrants do not have one. While a few academic institutions have a policy of accepting illegal immigrants (on the theory that they are not in the business of enforcing U.S. immigration law), most do not. Even if a young illegal alien is lucky enough to obtain a college degree, he or she will face an even more serious problem upon getting an offer of employment. Accepting a job offer leads to the need to complete an I-9 form for the employer, a form that requires an employee to produce documents evidencing authorization to work in the U.S.

In 2009 the DREAM Act (Development, Relief and Education for Alien Minors Act) was introduced as a way to address this problem. If passed, the DREAM Act would make it possible for 1 million young undocumented immigrants to become lawful permanent residents. The bill would permit immigrant students who graduate from US high schools, are of good moral character, arrived in the US as children, and have been in the country continuously for at least five years prior to the bill’s enactment, the opportunity to earn conditional permanent residence. The students would obtain permanent residence for a six year period. Within the six year period, a qualified student must have acquired a degree from an institution of higher education in the US or have completed at least 2 years, in good standing, in a program for a bachelor’s degree or higher degree in the U.S., or have “served in the uniformed services for at least 2 years and, if discharged, have received an honorable discharge.” Members of Congress have introduced several forms of this bill in both the House and Senate over the years, but it has yet to pass.

But the DREAM Act could be considered by the Senate again next week. In a blog entry on September 14, 2010, Senate Majority Leader Harry Reid announced his intention to include the DREAM Act in the major defense bill scheduled for floor action next week.

A real-life story of a young illegal alien that would benefit from the passage of the DREAM Act is the best way to illustrate the realities of what these young people face. What follows is such a story (the name is fictitious):

Maria San Gabriel

Maria San Gabriel was born in Columbia, the daughter of a doctor and flight attendant. Their lives in Columbia were comfortable, but changes in the health care system in that country were making it increasingly difficult for Maria’s father to make a living. Seeing their way of life threatened, Maria’s parents set their sights on the U.S.

When Maria was 7 years old, she and her parents entered the U.S. in tourist status. They moved in with relatives and searched for work. Maria’s father found work as a parking attendant in a garage in New York City, where he still works to this day. Her mother went to work in a factory that manufactures cosmetics. Maria started school in the second grade, struggling to learn English.

As the years passed the family of three settled into their new life. Eventually, Maria’s parents were able purchase a small apartment. Maria not only learned English, she became a star student graduating from high school with straight A’s. Despite this progress, the family was never able to adjust their status; they remained undocumented. Maria’s parents put a great emphasis on education and were determined to see their only daughter go to college. Maria felt this pressure. But without lawful immigration status, it seemed like every avenue was closed. Many colleges were interested in her, but she was undocumented.

While working on her computer one day early in her senior year of high school, Maria typed “undocumented” and “college student” into a google search. The search results included an article by a conservative commentator, critical of colleges and universities that had made a policy decision to accept undocumented students if they were academically qualified. The article identified a school in the Northeast that Maria knew was an outstanding institution. Maria and her parents went to visit the college on a rainy overcast day. Notwithstanding the weather, they fell in love with the school. Maria applied to the college and waited anxiously, checking the mailbox daily. When the thick acceptance letter arrived, she cried tears of joy. When she phoned her parents at work to share the news, their reaction was the same.

Maria is about to start her sophomore year. During her freshman year, she earned top grades. She is studying Education and DREAMs of being a teacher. But her future is not bright. As an undocumented alien she is not work authorized. With a change in the law, she will never be able to work legally in the U.S.

There are countless more stories like Maria’s all across the U.S. Regardless of one’s personal feelings about illegal immigration, there can be no doubt that young people caught in Maria’s circumstances are valuable members of our society who, given the opportunity, will make their own unique contributions. It’s time for Congress to overcome political inertia and provide the children of illegal immigrants who have grown up in America with the opportunity to fully participate in the life of this country. We will all be better off for it.

About The Author

Victoria Donoghue received her J.D. from St. John’s University School of Law in 1992, after having received a Masters of Science in Industrial and Labor Relations from Cornell University in 1989. From 2003-2007 Ms. Donoghue was the Assistant Director of Human Resources at the Research Foundation of the City University of New York, a 5000 employee nonprofit corporation that administers the $360 million in research grants that flow through the City University system each year. In that capacity, she oversaw the Foundation’s immigration program, supervising the processing of nonimmigrant visas and serving as a resource both to the Foundation’s foreign national employees and to outside counsel in petitions for permanent residence. In addition, she regularly delivered presentations to colleges throughout the CUNY system about immigration matters and is a member of the American Immigration Lawyers Association. In 2007 Ms. Donoghue entered private practice as an immigration attorney, becoming Of Counsel to the law firm of Nachman & Associates. Since then she has taught and published widely on a variety of immigration related issues. She is currently an Adjunct Professor in the Immigration Law Program in CUNY’s School of Professional Studies. She has given presentations at the 2008 NAFSA Annual Conference, Fairleigh Dickenson University, Vassar College, Hunter College, City College, New Jersey Institute of Technology, the National Business Institute, and the University of Medicine and Dentistry of New Jersey, among others. Her publications include a chapter in The PERM Book, 2008-2009 Edition and a chapter article entitled “A Program to Promote Scientific Research at the City University of New York” to be published in NAFSA’s International Students: Strengthening a Critical Resource, due out in 2009.

For more information about Business and Family-based immigration law check out our website at http://www.visaserve.com