Immigration Lawyer Peter Messersmith

Peter Messersmith is an attorney located in Orlando, Florida. He has been practicing immigration law since 2002 and has represented thousands of immigrants and US businesses with their immigration needs.

President Obama “Remains Firmly Committed to Immigration Reform”

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On January 28, 2010, President Obama reconfirmed his commitment to comprehensive immigration reform through his spokesperson, Valerie Jarrett.

Jarrett aseguró que la reforma migratoria es parte de la agenda de Obama. “Por eso lo incluyó en su discurso”, subrayó. “Todo lo que estaba incluido en ese discurso va a ser una prioridad”, con independencia del espacio que se le dedicase, comentó.

In his State of the Union speech, Obama has spent little time discussing immigration reform but did state that “we should continue work to fix our broken immigration system, to ensure border security, enforce our laws and make sure every person who meets the rules could help.”  A senior official with the Obama administration later cautioned that any immigration reform would have to be done in a bipartisan manner.

In 2007 when then President Bush proposed sweeping immigration reform, the democrats were mostly supportive and the bill was ultimately defeated by Republicans in the Senate.  If Mr. Obama is waiting for Senate Republicans to join him in supporting immigration reform, it just isn’t going to happen.  We’ll have to wait at least to 2012.

Expediting Biometrics and Advance Parole at the Nebraska Service Center

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Greg Richardson, Acting Director of the Nebraska Service Center (NSC) held a question and answer conference with AILA regarding requests for expediting biometrics and advance parole.

Due to processing guidelines mandated by USCIS Headquarters, the NSC is unable to expedite biometrics and advance parole because the filings that were made to the NSC had to be forwarded to a lockbox facility which takes the cases in, fees the receipt and then forwards the application to the NSC.  Until the lockbox location forwards the file to the NSC, the NSC cannot expedite anything.

In our experience, it is much easier to get an advance parole expedited when efiling the advance parole application and visiting the USCIS local office.

Nanny Visa Options

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There are four options for host families to bring a foreign nanny/domestic worker to assist them in their home.

J1 Visa – Au Pair

The easiest and, by far, most popular option is to bring a nanny as an au pair.  The au pair program utilizes the J1 visa and persons wishes to hire an au pair must do so through an au pair program authorized by the US Department of State.  The prospective au pair are preselected by the program sponsor and the host family must choose the au pair from the offered pool.  Costs are typically between $7,500 to $12,500 which are paid to the au pair program and the host family must also pay the au pair expenses which run between $250 to $450 per week.  The au pairs themselves must undergo training and many types of background checks.  In addition, the au pairs must meet the following requirements:

(1) Are between the ages of 18 and 26;

(2) Are a secondary school graduate, or equivalent;

(3) Are proficient in spoken English;

(4) Are capable of fully participating in the program as evidenced by the satisfactory completion of a physical;

(5) Have been personally interviewed, in English, by an organizational representative who shall prepare a report of the interview which shall be provided to the host family; and

(6) Have successfully passed a background investigation that includes verification of school, three, non-family related personal and employment references, a criminal background check or its recognized equivalent and a personality profile. Such personality profile will be based upon a psychometric test designed to measure differences in characteristics among applicants against those characteristics considered most important to successfully participate in the au pair program.

The au pair may be granted a J1 visa for a duration of 12 months which can later be extended if the host family wishes to continue her services.

H2B Visa – Short Term Help

The H2B visa is generally employed by companies with seasonal or intermittent business such as coastal restaurants, theme parks or other tourist spots.  However, the H2B visa can also be used to bring nannies to the US.  Unlike the au pair program which requires the host family to go through an au pair program, the host family can directly petition for the nanny.  The downside is that the host family must be able to show that there are no available US workers for the job and that the work is temporary in nature.  While the visa may have a three year duration, the work period must be less than 12 months each year.  There are no program fees to be paid but the host family must pay the nanny the prevailing wage as determined by the US Labor Department.

B1 Visa – Accompanying US Travelers

US Citizens, permanent residents and foreign nationals coming to the US for temporary nature may bring domestic help with a B1 visa.  The parties must enter a written employment contract guaranteeing payment of the prevailing wage for an eight hour workday and provide any benefits normally required for US domestic workers in the area of employment.  B1 visa are typically valid for 6 months but may be extended.

PERM Labor Certification – A Permanent Solution

The PERM program offers a permanent solution for the host family that has chosen a nanny who they would like to keep permanently.  Similar to the H2B visa, PERM does not require the host family to go through a sponsoring agency, a prevailing wage must be paid and the host family must be able to show that no US workers are available for the position.  However, the work does not need to be temporary in nature and upon approval of the PERM process, the host family may petition for the nanny to obtain residency so she can enter the country.

In order to qualify as a nanny, the applicant must have two years of experience as a nanny and be offered full time employment as a nanny by the host family.  To qualify as a domestic live-in, the applicant must have one year of experience and the host family must show that the employment is a business necessity.

Final Rule for H2A Visa Program Issued

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February 11, 2010  The US Department of Labor issued the final rule for the H2A visa program.

The new rule ensures that U.S. workers in the same occupation working for the same employer, regardless of date of hire, receive no less than the same wage as foreign workers; provides more transparency by creating a national electronic job registry where job orders will be posted through 50 percent of the contract period; and protects against worker abuses by prohibiting cost-shifting from the employer to the worker for recruitment fees, visa fees, border crossing fees and other U.S. government mandated fees.

The full press release can be found here and the Federal Register entry can be found here.  Reaction to the final rule by the United Farm Workers union has been mostly positive.

“The United Farm Workers applauds Secretary Solis for restoring protections for imported farm workers that had been in effect since the Reagan administration. This is a great victory for all farm workers,” said Arturo S. Rodriguez, UFW president.

USCIS Providing Some Flexibility With LCA Issues in H1B Visa Applications

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On July 1, 2009 the Department of Labor (DOL) mandated that all LCA filings must be filed through the iCert portal and that individual officers would review filings prior to certification.  While estimated processing times were initially 7 days, human error and other systemic problems resulted in filing taking three weeks or longer.  Because USCIS rules require a certified LCA to be filed along with the H1B visa petition, many H1B visa applicants were not able to timely file their applications and were capped out or failed to file a timely extension or transfer.

Now it has been over 6 months and the DOL has still not fixed the issues, most notably the FEIN problem.  Fortunately, the USCIS has recognized these problems and has given applicants to ways to get around these problems, though neither are perfect fixes.

First, the USCIS will allow H1B visa filings without a certified LCA provided that the LCA was filed with the DOL and has been pending for at least 7 days.  However, the pending LCA must be approved at later filed with USCIS.  This really isn’t much of a solution because the main cause of delay in LCA cases are denials due to FEIN issues.

Second, the USCIS will forgive late filings where the delay was out of the control of the petitioner.  This will be extremely helpful though in cases where the petitioner did not request late filing forgiveness, they will have to pay the fees to reopen the application.

FY 2010 H1B Visa Cap Met

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USCIS has just announced that as of December 21, 2009, they have received sufficient H1B visa petitions to meet the 65,000 general cap.  Petitions received on December 21 will be subject to a random drawing and petitions received after December 21 will be rejected.

USCIS will continue to accept non-cap subject H1B petitions for FY 2010 start dates and will begin accepting FY 2011 petitions on April 1, 2010.

Comprehensive Immigration Reform (CIR) Bill Introduced in the US House of Representatives

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Representative Luis V. Gutierrez (D-IL) has introduced a new bill for Comprehensive Immigration Reform in the House on December 15, 2009.   Representative Gutierrez issue the following press release in celebration of the bill

This bill is not complicated.  What we need to do – right now — is not complicated.  Our nation’s immigration policy should be pro-family, pro-jobs and pro-security.

Family, jobs and security.  This bill accomplishes all three.

It keeps families together, but understands we must secure our borders.  It keeps people working, but understands the needs of our economy.  It gives a pathway to citizenship, but understands that immigrants must learn English, pay taxes and contribute to their communities.

It’s pro-family, pro-jobs and pro-security.  And the time to pass it into law is right now.

A summary of the proposed legislation can be found here.  The hot topic of the proposed reform will, of course, be the amnesty provisions entitled “The Earned Legalization Program for the Undocumented.”  This new legislation will provide a six year conditional nonimmigrant or immigrant visa to those who are out of status or entered the US without inspection.  It will waive the bars to legal status under the current law, provide work authorization and travel authorization along with protection from removal.

Requirements for Conditional Nonimmigrant Status: The alien must:

  • Establish presence in the U.S. on the day of introduction, and continuously thereafter
  • At time of registration, attests to contributions to the U.S. through employment, education, military service, or other volunteer/community service (with exemptions for minors, persons with disabilities, the elderly, or other unusual circumstances)
  • Complete criminal and security background checks
  • Pay a $500 fine plus necessary application fees (fine exemption for children and certain immigrants who initially entered the U.S. before the age of 16)
  • The individual shall be ineligible to receive a visa as a result of a serious criminal conviction, persecution of another person or reasonable grounds for believing that the alien committed a particularly serious crime abroad
  • There is a penalty of up to five years’ imprisonment for anyone who willfully falsifies information in an application for conditional nonimmigrant status

Conditional nonimmigrants will also be eligible to apply for permanent residency and later US citizenship.

President Obama has previously indicated that Comprehensive Immigration Reform is number three on his agenda, the first and second being health care reform and the wars in Iraq and Afghanistan.  Unfortunately, he later backed off that pledge and it is unclear what priority he now places on immigration.

Agents May Sponsor O and P Nonimmigrants Under Certain Circumstances

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Under 8 CFR 214.2(o)(2)(i) and 8 CFR 214.2 (p)(2)(i), O and P petitions may only be filed by a U.S. employer, a U.S. agent, or a foreign employer through a U.S agent. Both the O and P regulations provide that if the beneficiary employee will work concurrently for more than one employer within the same time period, each employer must file a separate petition with the Service Center that has jurisdiction over the area where the alien will perform services, unless an “established agent” files the petition. See 8 CFR 214.2(o)(2)(iv)(B) and 8 CFR 214.2(p)(2)(iv)(B). A petition filed by an agent is subject to several conditions. A petition involving multiple employers may be filed by a person or company in business as an agent as the representative of both the employers and the beneficiary, if:

1.  The supporting documentation includes a complete itinerary of the event or events;

2.  The itinerary specifies the dates of each service or engagement, the names and addresses of the actual employers and the names and addresses of establishments, venues, or locations where the services will be performed;

3.  The contracts between the employers and beneficiary are submitted; and

4.  The agent explains the terms and conditions of the employment and provides any required documentation.

PERM Processing Times and Alternatives

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PERM labor certification processing remains abysmally slow at the the Department of Labor.  The DOL recently touted a6% improvement (11% to 17%) in PERM adjudications without 6 months of filing.  This means that the DOL is now able to issue a decision (approval or denial) in 17% of cases within 6 months.  The vast, vast majority are now taking over two years.  The DOL is taking a very hard line and they are second guessing every decision made in the recruitment process.  Because the current unemployment rate is hovering around 10%, the DOL has decided that most job openings should be filled by US workers.  That is having a very negative impact on foreign workers who are applying for permanent residence.  Therefore, we are recommending that all green card hopefuls try to avoid PERM altogether.

There are 11 common paths to US permanent residency (green card) which do not involve PERM labor certification.

1.  EB1 Extraordinary Ability

2.  EB1 Outstanding Researcher

3.  EB1 Executive Transferee

4.  EB2 National Interest Waiver

5.  EB3 Schedule A Worker

6.  EB4 Religious Worker

7.  EB4 Violence Against Women Act

8.  EB5 Immigrant Investor

9.  Marriage Green Card

10.  Political Asylum

11.  DV Lottery

FY 2010 H1B Visa Cap: December 2009 Update

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As of December 12, 2009, USCIS has received 62,900 H-1B Visa petitions and are only 2,100 away from hitting the 65,000 H1B Visa cap for FY2010.  USCIS representatives have confirmed the uptick in applications and have indicated that the cap will be met very soon.  USCIS also confirmed that there is weak demand for visas under the Chile (1,400) and Singapore (5,400) set asides.  If USCIS feels these allocations will go unused, they may return these visas to the general H1B Visa pool.  Regardless, it is unlikely the FY 2010 H1B Visa Cap will last beyond the end of 2009.