This week Senator Kerry (D-MA) and Senator Lugar (R-IN) proposed legislation that would increase job creation and U.S. competitiveness worldwide. The proposed act, known as the StartUp Visa Act of 2010, would help foreign entrepreneurs secure a two-year U.S. visa if they can demonstrate that a qualified U.S. investor will dedicate a minimum of $250,000 to the foreign national's startup venture. Over 160 U.S. venture capitalists have endorsed this proposal. For more information about the Act, please visit http://lugar.senate.gov/press/record.cfm?id=322460.
The Employ American Workers Act (EAWA) was enacted to make sure that employers receiving Federal Troubled Asset Relief Program (TARP) funding are not displacing U.S. workers. Among the employers receiving (or that have received) TARP funding are primarily financial institutions, mortgage brokerage firms, and investment firms. The USCIS has issued guidance for these employers with respect to filing H-1B petitions. Under EAWA, any employer receiving TARP funding is considered H-1B dependent, which is a label that subjects the employer to recruitment requirements and attestations regarding displacement. In its guidance, the USCIS instructs these employers regarding how to answer certain questions on the H-1B forms. Specifically, the USCIS states that Question A.1.d. should be “No” if repayment has occurred and documentation of repayment shall be supplied to the USCIS at the time of filing the petition. Please note that EAWA applies only to new-hire H-1B petitions and not to those for change of status or extension of status. If you have any questions regarding EAWA, TARP funding or H-1B petitions, please don't hesitate to contact our office.
It is critical to complete the Form DS-160 and accompanying photograph correctly. The U.S. Embassy in London has provided two examples where visa applicants were turned away due to insufficient completion of these items. This is important to note since an applicant who is turned away due to an incorrect form or photo could be formally refused a visa, which may affect eligibility for the Visa Waiver Program later on.
Example 1: Not selecting the correct visa category on the form
The Embassy has provided the following information for visa applicants with respect to the visa category:
It is important that you select the correct visa category in the "Travel Information Section." If you do not do so, the Embassy will not be able to process your application, and you will be required to complete a new DS-160, which will mean having to reschedule the visa interview. In the "Travel Information Section," you are asked "Are you the principal applicant?" On answering that question, a drop down list will appear under "Purpose of Travel to U.S." It is important that you review the information carefully. If your purpose of travel is not covered in the list, click on "Other." This will offer you a further drop down list of choices.
If you are planning on working in the United States and you are being sponsored for a visa by a U.S. company or if your employer is transferring you to a subsidiary or parent company in the U.S., you should select the appropriate category, which is either "Temporary Employee (H1,H2)," "Trainee (H3)," or "Intracompany Transfer (L)." Do NOT select Business/conference visitor (B1) or Business/Personal Travel (B1, B2) as this does not cover your purpose of travel.
Example 2: Photograph is not correct
The Embassy has provided the following information for visa applicants with respect to the photograph:
There are some important points to note before you attempt to upload the photograph:
1. The photos must be no older than 6 months
2. The photos must measure exactly 2 inches by 2 inches
3. The photo should show a clear, front view, full face of the applicant
4. Unless worn daily for religious reasons, all hats or headgear should be removed for the photo
5. Eyeglasses worn on a daily basis can be worn for the photo. However, there should be no reflections from the eyeglasses that obscure the eyes. Dark glasses or nonprescription glasses with tinted lenses are not acceptable unless you need them for medical reasons
6. Uniforms, clothing that looks like a uniform, and camouflage attire should not be worn in photographs except in the case of religious attire that is worn daily. Otherwise, normal street attire should be worn
7. A parent or guardian may not appear in the photo of a minor child; the child must be the only subject
8. Nothing used to support the minor child, whether by mechanical or human means, should be in the camera's frame
9. Only original photos are acceptable. Photos copied from recent driver licenses or other official documents that are copied or digitally scanned will not be accepted and the photos must not be retouched to alter the applicant's appearance in any way.
The H-1B cap filing period for fiscal year 2011 opens April 1, 2010, which is nearly 30 days away. If you'd like our assistance in preparing your H-1B petition, we advise that you get started now. There are built-in processes that take up time, so it is better not to wait. For example, the Labor Condition Application (LCA), which is submitted to the Department of Labor (DOL) and included in the H-1B petition, is taking a minimum of 7 days to be certified by the DOL. This must occur in order for the H-1B petition to be filed. With nearly 30 days left, this process alone will take at least 1 week. That leaves 3 weeks for the rest of the process to occur by April 1, 2010. We will be filing all H-1B cap petitions on March 31, 2010 for an April 1, 2010 arrival at the USCIS to ensure our clients have the best shot at getting an H-1B number. As you may know, there are 65,000 slots allocated for H-1B's each year, with an additional 20,000 slots for holders of U.S. Master's or higher degrees. It is a first-come, first-serve system and April 1 is the first day to try for a number. Please contact us as soon as possible if you need our assistance.
USCIS has indicated that unused H-1B1 numbers from FY2010, which pertain to Singaporean and Chileans, will roll over to the FY2011 cap. Each year, 6,800 H-1B slots are reserved for individuals from Singapore and Chile. In FY2010, only 129 of those numbers were used. This means that nearly 6600 additional cases of this nature will be accepted for the FY2011 filing period. Please note that although the FY2010 regular cap has closed, the USCIS has indicated that it will continue to accept H-1B1 petitions for nationals of Singapore and Chile since so few numbers have been used. If you need our assistance with this type of petition, please don't hesitate to contact our office.
On 02/16/2010, the U.S. Immigration and Customs Enforcement (ICE) updated its list of approved schools for student visas (F-1) and exchange visitor visas (J-1). If you are searching for a particular school, note that the list is alphabetical and provides the following information: institution name, campus name, city/state and date approved. The list can be found at: http://www.ice.gov/doclib/sevis/pdf/ApprovedSchools.pdf.
The Department of Labor (DOL) has amended its H-2A regulations with respect to the contractual obligations applicable to employers of H-2A workers. The H-2A category is a nonimmigrant status for temporary or seasonal agricultural employees. The new H-2A rule provides for increased enforcement of employers in the H-2A program. The DOL wants to ensure that H-2A workers are appropriately protected when employers do not meet their H-2A obligations. This new rule goes into effect March 15, 2010. For more information, please see the following link to a news release by the Secretary of Labor regarding the new rule: http://www.dol.gov/opa/media/press/eta/eta20100198.htm.
The Immigration Policy Center (IPC) has released a report titled "Many Happy Returns: Remittances and Their Impact" by Kristin Johnson, Ph.D., which discusses remittances (i.e. the transfer of money by foreign nationals back to home countries). In it, Dr. Johnson concludes that remittances can constitute one of the top financial inflows to developing countries. Dr. Johnson states that in some cases these remittances exceed the amount of international aid being given to these countries. Of the countries worldwide, Mexico and the Philippines are the top receiving countries from the U.S., however, these countries are also the largest consumers of U.S. products and other goods. While some individuals argue that remittances damage the U.S. economy, Dr. Johnson states that the latest IPC report shows that these remittances are used to purchase U.S. goods, benefitting both the receiving country and the U.S. With respect to the recent earthquake devastation in Haiti, Dr. Johnson explains that remittances are (or will be) a critical resource for rebuilding the country. To view the entire IPC report, please see this link: http://www.immigrationpolicy.org/special-reports/many-happy-returns-remittances-and-their-impact.
The Department of Homeland Security (DHS) has completed a report regarding unauthorized foreign nationals in the U.S. in 2009. In it, the DHS states that the unauthorized immigrant population decreased from 11.6 million (in January 2008) to 10.8 million (in January 2009). It also states that the unauthorized immigrant population grew 27% overall from 2000 to 2009. In addition, the DHS points out that of all unauthorized immigrants living in the U.S. in 2009, 63% entered before the year 2000 and 62% were from Mexico. To read the entire report, please see this link: http://www.dhs.gov/xlibrary/assets/statistics/publications/ois_ill_pe_2009.pdf.
The new visa bulletin is out at this link: http://travel.state.gov/visa/frvi/bulletin/bulletin_4659.html. Employment-based categories are as follows: EB-1 remains current; EB-2 remains current, except for India and China (China is 06/08/2005 and India is 02/01/2005); EB-3 is at 2001 or 2002 depending on the category; other workers are at 2001; EB-4, religious workers, EB-5, and targeted employment areas and regional centers are all current. Family based petitions are backlogged, with the most recent date at 2006.
On January 14, 2010, New York Attorney General Andrew Cuomo obtained a restraining order against The International Immigrants Foundation, preventing the organization from providing legal assistance on immigration matters. The organization's President, Eduardo Juarez, is not an attorney, but has been advising on immigration matters for over 20 years. He routinely preyed on the immigration community with high fees and a monthly membership fee during pending immigration matters. Attorney General Cuomo is now working to find competent authorized representation for the ongoing immigration cases.
The Immigration Policy Center has issued a paper on the Repairing the Broken Employment-Based Immigration System. The paper emphasizes that if the U.S. is going to compete in an ever-changing global marketplace, policymakers need to assess our future employment-based immigration needs. It is critical that they look at both permanent and temporary work visas and high-skilled and low-skilled workers. They must also address the narrow worldwide quotas that prevent otherwise qualified workers from obtaining legal status in the U.S. The paper also states that the country is rapidly falling behind other countries in terms of available labor and talent due to its strict and outdated immigration laws. U.S. employment-based immigration must be viewed as a strategic resource for improving our struggling economy, while also protecting qualified U.S. workers. It is stresses the importance of U.S. lawmakers to embrace the concept of a global marketplace as many other countries already have and help the U.S. regain its stronghold as an economic and innovative leader. For more information, please see http://immigrationpolicy.org/just-facts/future-flow-repairing-our-broken-immigration-system.