Articles Posted in Non-Immigrant Visa

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On May 6, 2014, the U.S. Department of Homeland Security (DHS) announced a proposed rule to amend existing regulations to allow H-4 dependent spouses of certain H-1B workers to request employment authorization. Under current regulations, DHS does not extend employment authorization to H-1B dependents.

The new rule provides for requests for employment authorization from H-4 spouses of H-1B workers who:

• Have an approved Form I-140, Immigrant Petition for Alien Worker; or

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This year’s H-1B cap was reached in a mere 5 days, a rate rapid enough to aggravate members of the Silicon Valley tech industry. The speed at which the cap was met indicates the great need for skilled foreign workers, especially software engineers and the like in Silicon Valley. Tech companies well as companies in numerous other industries readily use H-1B visas and are frustrated that the number given out is capped at 85,000 (including the 20,000 reserved for applicants with a U.S. Master’s degree). USCIS has stated that it received a total of 172,500 H-1B petitions this year.

Industry representatives have for years pushed Congress to increase the quota. A bill already passed by the Senate, though waiting on a vote from the House of Representatives, would increase the number of visas to somewhere between 115,000 and 180,000 per year. However, immigration reform has been met with strong resistance by lawmakers, especially in the Republican-controlled House.

Critics of raising the quota believe an increase would undermine the U.S. workforce. They argue that work visas such as the H-1B allow U.S. employers to hire foreign workers and pay them less than what they would pay U.S. workers. Additionally, the tech industry has been further criticized for its support of “stand-alone” legislation, which would increase the H-1B quota without addressing other issues embedded in immigration reform.

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On January 29, 2014, the Administrative Review Board (the “Board”) decided Administrator, Wage and Hour Div. v. Greater Missouri Medical Pro-Care Providers, Inc., in which it addressed two issues related to the scope of an H-1B investigation by the DOL Wage and Hour Administrator (ARB Case No. 12-015, ALJ Case No. 2008-LCA-26 (2014)). The Board upheld the ALJ’s finding that the Administrator has authority on the basis of a single aggrieved party complaint to investigate potential INA violations of H-1B workers of the same employer who have not filed an H-1B complaint. However, Board reversed the ALJ’s finding that the INA allows the Administrator to investigate H-1B violations that occurred more than twelve months prior to the filing of the compliant that serves as the basis of the investigation.

Investigation of employees not party to the complaint

The Board held that the Administrator can conduct an investigation of all H-1B employees based on a single aggrieved party complaint against the employer. Alena Gay Arat, an H-1B employee of Greater Missouri Medical Pro-Care Providers filed a single aggrieved party complaint alleging that Greater Missouri had (1) failed to pay her the wages required under her LCA, (2) illegally made deductions from her wages, and (3) required her to pay an illegal penalty for ceasing employment prior to the previously agreed upon date.

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If you tried to retrieve your I-94 from the cbp.gov online system at:

https://i94.cbp.dhs.gov/I94/request.html

and you receive a response that your I-94 is “Not Found,” please review the following checklist to help you check for mistakes and try to enter the information again:

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House Republicans released a draft of principles on immigration reform as House GOP members gathered for their retreat to discuss their position on a range of issues.

Here is a synopsis of the draft on Immigration Reform:

Reforms to Employment-Based Immigration

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U.S. Citizenship and Immigration Services (USCIS) announced today that it has received a sufficient number of H-1B petitions to reach the statutory cap for fiscal year (FY) 2014. USCIS has also received more than 20,000 H-1B petitions filed on behalf of persons exempt from the cap under the advanced degree exemption. After today, USCIS will not accept H-1B petitions subject to the FY 2014 cap or the advanced degree exemption.

USCIS will use a computer-generated random selection process (commonly known as the “lottery”) for all FY 2014 cap-subject petitions received through April 5, 2013. 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. Due to the high number of petitions received, USCIS is not yet able to announce the exact day of the random selection process. Also, USCIS is currently not providing the total number of petitions received, as we continue to accept filings today. USCIS will continue to accept and process petitions that are otherwise exempt from the cap. USCIS will provide more detailed information about the H-1B cap next week.

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Immigration Innovation Act of 2013

A bi-partisan bill has been introduced the Senate titled the “Immigration Innovation Act of 2013.” The new bill would increase the annual H-1B cap to 115,000 H-1B visas and make available more green cards for the highly skilled and highly educated. Here is a summary of the proposals.

Employment-Based Nonimmigrant H-1B Visas

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USCIS has been experiencing substantial delays in the adjudication of H-1B cap petitions. Concern that delays will adversely affect employers who are relying on the ability to employ these prospective H-1B workers beginning October 1, 2012 has prompted USCIS to make the processing of these cases by October 1st a top priority. USCIS states that it is doing its best to process these cases as soon as possible and will add additional resources as available.

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On June 11, 2012, USCIS announced that it has received a sufficient number of H-1B petitions to reach the FY2013 H-1B cap. On June 7, 2012, USCIS also received enough H-1B petitions to meet the additional 20,000 cap for individuals with U.S. Master’s degrees. Any FY2013 cap petitions received after June 11, 2012 will therefore be rejected and returned with the filing fee.

USCIS will continue to accept H-1B petitions that are cap-exempt, including beneficiaries employed at institutions of higher education or related or affiliated nonprofit entities, nonprofit research organizations or governmental research organizations. Additionally, USCIS will continue to accept H-1B cases that are not subject to the numerical cap, including the following petitions:

• H-1B extension of status.;

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As of June 1, 2012, USCIS has received approximately 55,600 H-1B petitions towards the 65,000 cap and approximately 18,700 petitions towards the 20,000 cap for applicants with U.S. advanced degrees. Based on the current rate of H-1B cap filings, it is anticipated that the FY2013 cap may be reached any day now. We advise that H-1B cap cases be submitted immediately in order to secure an H-1B number.

For assistance in filing an H-1B petition, please contact our office.

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