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.

FY 2010 H1B Visa Cap

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Current regulations provide for 65,000 H1B Visas to be made available for fiscal year 2010.  Fiscal year 2010 or FY2010 covers the period of October 1, 2009 through September 30, 2010.  There are exceptions such as the 20,000 visas reserved for Master’s degree holders but the majority of applicants will fall under the general 65,000 cap.

FY2010 has been much different than the past several years where a flood of applications were made in the initial filing period and every visa was allocated just weeks into the filing season.  As of this posting, there are still several thousand H1B visas available.  On November 27, 2009, the USCIS announced that 58,900 H1B have been filed, leaving just over 6,000 available.  From October 25 to November 27, 6,100 applications were filed so if filings remain steady, we can expect the H1B cap to be met by the end of the year.

If you intend to file a H1B cap subject application, we recommend filing as soon as possible or you may have to wait until April 1, 2010 to file a FY2011 application.

California Service Center Will Issue Duplicate Approval Notices

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The California Service Center (CSC) will now issue one duplicate approval notice if the request is made within 30 days of the petition’s approval, without additional charge.  This can be beneficial where the the applicant did not list a Consulate for the USCIS to notify of the petition’s approval or where the applicant wishes the USCIS to notify a different Consulate than the one listed in the original petition.

J1 Waiver Options for Physicians

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The vast majority of foreign physicians who come to the United States for graduate medical training are going to be subject to INA Section 212(E) if they obtained such training with a J1 visa.  J1 visa holders subject to INA Section 212(E) are required to return to their home country for a period of two year before they may obtain an H1B visa, L1 visa or green card, unless they receive a waiver of this requirement.  J1 visa physicians who are subject to INA 212(E) have three options to obtain a waiver of the home residency requirement.

IGA Waiver

The first option is through an interested government agency (IGA waiver).  There are a limited number of US government agencies willing to sponsor a foreign physician for a waiver, through each have similar requirements.

Veteran’s Health Administration (VHA)

The VHA will act as an interested government agency for waiver purposes provided that the foreign physician agrees to full time clinical care employment with the VHA for a period of not less than three years.  The VHA prefers that the foreign physician be 100% employed at the VHA but will allow 5/8 employment at the VHA and 3/8 employment at an affiliated University.  The VHA is required to offer the position to non J-1 waiver candidates first and only if they cannot find a qualified candidate, may the VHA sponsor a foreign physician for a J1 waiver.

US Department of Health an Human Services (HHS)

The HHS will sponsor J1 waivers for foreign physicians performing research as well as for those performing clinical care.  In order to be considered for a research related waiver, the foreign physician must show that his or her work within the research program is in the national interest and that his or her efforts are essential for the research to be successful.  In order to be considered for a clinical care related waiver, the foreign physician must sign a contract to provide full time primary care services at a medical facility located in a health care professional shortage area for a period of not less than three years.

Appalachian Regional Commission (ARC)

The ARC will sponsor J1 waivers for foreign physicians if the physician agrees to provide primary care on a full time basis for a medical facility located in a health professional shortage area for a three year period or longer.  The foreign physician must be sponsored by a State located in the Appalachian Region before the ARC will consider sponsorship.  Appalachian Region States include the following: Alabama, Georgia, Kentucky, Maryland, Mississippi, New York, North Carolina, Ohio, Pennsylvania, South Carolina, Tennessee, Virginia & West Virginia.

State Department of Health (Conrad 30)

Though not technically an IGA, each State may sponsor up to 30 foreign physicians for J1 waivers per year.  For employment based waivers, this is generally the only option for foreign physicians other than the VHA.  Each State has different requirement but generally, the foreign physician must agree to work full time for a medical facility located in an underserved area for a period of three years or more.

Fear of Persecution

The second option is based on an application based on fear of persecution.  The USCIS in conjunction with the Department of State may issue a J1 waiver if the foreign physician “would be subject to persecution on account of race, religion or political opinion.”  This option is rarely utilized and application processing times are extremely long because there are many sub departments at the USCIS and DOS that have to approve the application.  Moreover, where an applicant meets the legal requirements for a persecution based J1 waiver, they will also meet the requirements for asylum which allows the application to obtain lawful permanent residence (green card) – no J1 waiver required.

Exceptional Hardship

The third and final J1 waiver option for foreign physicians is a hardship based waiver.  This is the best option for physicians who qualify because there is no three year commitment to work at a facility in a remote location for low pay.  Once a waiver is granted, the physician may apply for an H1B visa to work for any medical facility that will hire him or her.  For those applicants who have borderline cases, it may be in their best interest to apply for an IGA based waiver and a hardship based waiver simultaneously.  Even better, for those applicants who plan ahead of time, a hardship based application may be made first and, if unsuccessful, may then pursue an IGA waiver.

In order to qualify for a hardship based waiver, the foreign physician must show that his or her departure from the US would impose exceptional hardship on US Citizen or Lawful Permanent Resident Spouse or child.  Factors to be considered in hardship cases include medical problems, psychological issues, economic, physical and emotional hardships, loss of employment, educational and health opportunities, hardships to third parties, cultural or religious hardships or disabilities.