Posts Tagged ‘USCIS’
The H-1B Category Remains Wide Open
As of September 3, 2010, the USCIS has received 36,600 (of 65,000) H-1B regular cap petitions and 13,400 (of 20,000) U.S. Master’s cap petitions. The H-1B category is a temporary work category for foreign nationals with at least a Bachelor’s degree (or the equivalent experience) in a specific specialty. An employer must petition for the individual and the job offer must require the specific degree field or a related degree field to that of the foreign national.
Each fiscal year, the H-1B category is subject to the numerical limitations above. There are many slots left for the 2011 fiscal year, which begins October 1, 2010. Please contact our San Francisco immigration law office if you need assistance with an H-1B petition.
Tags: cap, H-1B, quota, USCIS
Posted in Alerts, Nonimmigrant Visas, USCIS | Read More »
USCIS Proposes Fee Waiver Form
For the first time ever, the USCIS has proposed a standardized fee waiver form, Form I-912 (Request for Individual Fee Waiver), that will provide relief to financially disadvantaged visa and green card applicants.
Highlights of the form include: standardizing the fee waiver request process and setting forth clear criteria for eligibility; providing clear evidentiary requirements and guidance on the application types for which a fee waiver can be requested; and allowing applicants to request a fee waiver for both the underlying visa/green card application and the fingerprint fee with just one form.
The USCIS is currently accepting comments on the form, so the form is not available yet. We will keep you posted on the availability of the form at a later date.
Tags: fee waiver, Form I-912, USCIS
Posted in Immigrant Visas, Nonimmigrant Visas, USCIS | Read More »
USCIS Proposes Fee Increases
USCIS announced a proposed fee increase today, designed to address a $200 million budget shortfall for the agency in the coming fiscal year. The proposed increase of approximately 10 percent would affect most petitions, and would leave applications for naturalization unaffected. A 45-day public comment period will follow.
As an attorney in the trenches, I regularly see the incredibly poor level of service that USCIS delivers to its “customers”. For instance, a company petitioning for an H-1B employee must already pay anywhere from $1570 to $2320 in filing fees, and it receives very little value for it.
Increasingly, what we see in the adjudication are burdensome and unnecessary requests for evidence; evidence that is irrelevant and/or already provided in the initial petition. For instance, recently, I received a request asking that I “prove” why a position for a staff scientist at a DNA sequencing start-up company qualifies as a professional occupation worthy of an H-1B. In that case, the scientist in question has a degree in molecular cell biology from a U.S. university and is spending 100% of their time on scientific research.
It’s bad enough that in this era of declining applications, USCIS feels that it must make busy work for its under-employed contractors by encouraging those contractors to waste the petitioners’ time and money with unnecessary requests for more evidence. Now they expect petitioners to have to pay ten percent more for this “service”? Where I come from, they call that serious chutzpah.
Tags: fee increase, filing fee, H-1B, immigration, USCIS
Posted in Alerts | Read More »
USCIS Will Begin Accepting H-1B Applications without Certified LCA
USCIS has recently announced that it will begin to accept H-1B petitions filed with uncertified LCAs for a temporary period, ending on March 4, 2010. As many have experienced including our office, the Dept. of Labor’s new iCert process for certifying LCA’s has resulted in unprecedented delays, and has added a new level of unpredictability to the H-1B process. In response to requests, USCIS will accept petitions with uncertified LCA’s and then issue a Request for Evidence (RFE) for the certified LCA before approving the petition. Normally, only petitions with certified LCA’s are accepted. This “temporary flexibility”, as USCIS called it, is somewhat useful, but what happens at H-1B cap time, either in the coming year, on in subsequent years, when we need to file all of those applications by April 1? How will we be sure that the LCA will be certified in time for filing after March 4th? Also, since filing with an uncertified LCA will essentially guarantee a Request for Evidence, are adjudicators going to use that opportunity to throw more items into the request? As it is, applicants are already beleaguered from overly burdensome, redundant, and nonsensical RFE’s.
Tags: certified LCA, DOL, H-1B, LCA, request for evidence, uncertified LCA, USCIS
Posted in H-1B | Read More »
Alternative Visa Options: H-3 Special Education Training Programs
This is the first in a series of blog posts profiling unusual or lesser known visa categories. Some of these visa categories may be useful to certain foreign nationals who have never heard of them. My hope is that someone who can benefit from these alternative visa categories will learn about them in this blog, and act accordingly.
An H-3 is a visa for a trainee. The visa holder must be participating in a bona fide training program in the U.S. However, not many people know that there are 50 H-3 visas per year allocated specifically for training programs in the field of special education.
The H-3 participant in a special education training program must be coming to the United States to participate in a structured program which provides for practical training and experience in the education of children with physical, mental, or emotional disabilities.
The petition must be filed by an organization which has professionally trained staff and a structured program for providing education to children with disabilities, and for providing training and hands-on experience to participants in the special education exchange visitor program.
Unlike other H-3 visas, it is not a requirement to show that the special education training cannot be obtained in the participant’s home country.
According to USCIS, so far, none of the 50 visas for the current fiscal year have been used to date.
Tags: disability, H-3 visa, special education, training program, USCIS, visa
Posted in Alternative Visa Categories | Read More »
USCIS to Consider Accepting Pending Labor Condition Application for H-1B Filings
The U.S. Citizenship and Immigration Services (USCIS) Ombudsman recently recommended that USCIS begin accepting H-1B applications with pending Labor Condition Applications, or LCA’s. Normally, the LCA, the document initially filed with Dept. of Labor (DOL) prior to submission of the H-1B petition , must be certified first. The certification process used to be instantaneous- as easy as a click of a mouse. But DOL, in its infinite wisdom, decided to scrap this system that worked so efficiently. In July of this year, DOL rolled out a new LCA process, and now each LCA is reviewed manually. Getting an LCA certified has now become a mini-nightmare in most cases, resulting sometimes in delays of several weeks and erroneous denials from DOL. The fact that we’ll now be able to file the H-1B petition without first needing to certify the LCA is somewhat of a positive development, although it does guarantee that USCIS will issue a request for the certified LCA before approving the petition, and they will likely use that as an opportunity to request other additional evidence.
Tags: DOL, H-1B, iCert, Labor Condition Application, LCA, LCA certification, USCIS, USCIS ombudsman
Posted in H-1B, USCIS | Read More »
Poetic Justice
The following is a true “only in America” story. The U.S. Department of Labor (DOL) recently recovered more than $1.4 million in back wages for 237 workers of the U.S. Citizenship and Immigration Services’ Vermont Service Center. Apparently, the workers were misclassified and not paid the prevailing wage as required. Perhaps DOL should seize the momentum and conduct an audit of other government worksites. Maybe some unannounced visits to other service centers are in order. Yes, this one does give me a great big chuckle.
Tags: back wages, Department of Labor, DOL, service center, USCIS
Posted in Politics/Current Events | Read More »
Beware of Unannounced USCIS Site Visits
The United States Citizenship and Immigration Service (USCIS) is currently auditing the H-1B nonimmigrant program for fraud and is sending its Fraud Unit investigators into the “field” to collect data. As part of the audit procedures, these investigators are visiting H-1B employers (small and large) and interviewing authorized officials and human resources personnel. They are also speaking directly with H-1B employees. These site visits typically last 1 hour or less. H-1B employers may request that their immigration attorney be present, although it is in the USCIS’ discretion whether they agree to re-schedule the visit to accommodate this request. As an alternative, employers are permitted to have their immigration attorney present on the phone listening to the questions being asked. We strongly recommend that our clients contact our office immediately upon being visited so that we can ensure the USCIS is not overstepping its bounds in the investigation. Please see below for more tips and recommendations.
The USCIS’ questions for the employers relate to the number of employees overall, the number of H-1B employees, gross income, net income, and type of business, among others. Investigators are also requesting tours of the business premises, during which photographs are taken. Please note that it is the current position of the USCIS that investigators do not need a warrant to enter confidential/private areas in the office or facility. To date, this has not been challenged and thus remains the current practice. Please see below for tips about how to best handle site visits and these types of requests.
H-1B employees are asked different questions pertaining to their job title, job duties, salary, and work location. In some instances, investigators speak to the H-1B employee’s co-workers as well to identify any inconsistencies with the information provided by the employee. Please note that investigators have visited client sites as well as the principal place of business to speak to H-1B employees. We recommend that the H-1B employer inform any end-clients that these types of USCIS visits could occur and instruct them to contact the H-1B employer immediately if visited. The end-client should request that the H-1B employer either be present or be on the phone listening to the questions asked.
Although these site visits sound daunting, there are several things an H-1B employer can do to ensure they go as smoothly as possible:
Inform first-line personnel and staff that a site visit may occur and instruct them to welcome the investigator properly, showing cooperation
Meet with the investigator and ask for his/her name and contact information or his/her business card
Request that the employer’s immigration attorney be present
Consult with immigration counsel before answering any questions that you are unsure about
Take notes on what is being asked
Answer all questions honestly, reserving the right if necessary to answer later any questions that cannot be answered on the spot. Do not feel you have to respond to the questions when you are unsure of the answer. Simply tell the investigator that you need to look into it further before providing information.
On a tour of the facility, feel free to re-direct investigators away from confidential/private areas or, at a minimum, explain that as a standard practice photographs are not permitted in confidential/private areas of the company
Keep company records organized, especially records pertaining to any H-1B employees, so as to be able to show the investigator if asked
Accompany the investigator when he/she speaks to the H-1B employees and co-workers and take notes
In general, maintain a cooperative attitude throughout the process while at the same time asserting your rights
If you have any questions, concerns or comments about these site visits, please don’t hesitate to contact our office.
Tags: fraud unit, H-1B, H-1B employer, ICE, site visit, USCIS
Posted in USCIS | Read More »
USCIS Fee Hike?
The Associated Press just reported today that USCIS is considering raising its fees for immigration-related benefits due to a shortfall in revenue. Head of U.S. Citizenship and Immigration Services, Alejandro Mayorkas was quoted in Los Angeles today saying that a fee hike could happen in the next two years. Is Mr. Mayorkas kidding? Instituting another fee hike would be incredible chutzpah on the agency’s part. It was only in 2007 when the last fee hike went into effect, raising the filing fees on some petitions nearly three-fold. We were told then that the increased revenue would improve “customer service” and speed up processing times. Not only did USCIS not deliver on those promises, but in the last two years, service has become even more abysmal, and the adjudicators appear to be as poorly trained as ever. I have an idea for Mr. Mayorkas: if you’re looking to cut operating costs, consider banning your adjudicators from issuing burdensome and nonsensical Requests for Evidence (RFE’s). More often than not, these RFE’s ask for evidence already submitted in the initial petition; or worse, they invent criteria for adjudication that have absolutely nothing to do with the regulations. These RFE’s are issued with alarming regularity. I’m willing to bet that putting an end to this practice would save the agency millions of dollars.
Tags: Alejandro Mayorkas, fee hike, immigration, request for evidence, RFE, USCIS
Posted in USCIS | Read More »
