Immigration Visa Attorney Blog

We try to be proactive in our practice at our Washington DC office as we know employers will be banging on our doors closer to the dreaded April 1 deadline each year, and demanding that we file dozens of H-1b visa petitions for their prospective employees. I truly believe in educating the client because once armed with knowledge, they help me represent their interests and implement the best and most cost effective strategies that would achieve their business goals. When it comes to H-1b visa petitions, I normally go through the program highlights. But once I review the regulatory requirements, I am usually presented with a question that is all too familiar: H-1b or Not to Be? In other words, employers usually ask me: can I exploit another visa category for my employees? Is there another visa type that can be applied for? My answer usually is look at the statistics; in federal fiscal year 2007 for instance, there were 424,369 H visas issued at the various consular posts around the world while there was less than 200,000 other combined employment based non-immigrant visas issued. Said in a different way, the H visa program is utilized more than twice of all of the combined non-immigrant work visa categories that exist. This leads us to believe that the H visa category is of great utility to employers notwithstanding the somewhat cumulative regulatory requirements. Let me first review these regulatory requirements, and then let's discuss other visa scenarios that I have been able to implement for my clients.

A. Basic requirements for the H-1b Visa Program:

1. Labor Condition Application Attestation: An employer must attest, through the filing of a Labor Condition Application ("LCA") that the H-1b visa employee will receive prevailing wages as those wages exist within the geographical area where the work will be performed. In addition, the employer must also provide certain notice at the worksite that it is about to file LCA and keep certain records showing its compliance with the LCA regulations. If the employer is deemed an H-1b visa dependant (or a willful violator), then the employer must also attest that it has not laid off US workers 90 days before and after the filing of the LCA.

2. Filing of the H-1b visa Petition: The filing of the H-1B visa petition follows the electronic filing and approval of an LCA. In other words, the employer completes the LCA process prior to the filing of the H-1b visa petition with the USCIS. The filing of the H-1b visa petition carries with a couple of requirements: a) the employer has the financial means to pay for the wages of the employee, and b) that the position is a specialty occupation.

3. Filing Fees: The employer must also pay certain filing fees: The H-1b visa program is the only non-immigrant visa type that has its own filing fee. They don't come by cheap.

4. Numerical Limitations: There only 65,000 visas given annually to H-1b visa holders (1400 visas withheld for Chilean and 5400 visas withheld for Singaporean citizens) as well as 20,000 visas reserved for aliens who have attained a master's degree from a US institution). Since federal fiscal year 2007, the USCIS has run out of visas on April 1, the first day employers were allowed to file for these visas.

B. Alternatives to the H-1B Visa Program:

Continue reading "H-1b or Not to Be Asks The Employer..." »

My clients in Ohio, Michigan, Washington, DC and all across the nation are always nervous about the visa interview. They have every right to be nervous although, most of the time, they are able to easily obtain their visa stamped after anxieties of much anticipated difficulties at the consular office. The truth is that an alien who truly values life in the US, knows all too well that things at the visa stamping interview may go wrong which can threaten his or her future in the US. Well, if you have an H, L or O visa and you are thinking about getting your passport stamped, you should be aware of several things that could impact the duration of your visa stamping process:

1. Security Clearance Procedure: These processes are instituted to protect the US from the transfer of technology sensitive information and any potentially adverse issue touching national security. They are called Visa MANTIS or DONKEY; the way it works is that following a visa application, the consulate would request various agencies in the US (FBI, CIA, Drug Enforcement Agency, Department of Commerce, Office of Foreign Asset Control, Interpol, the national criminal and law enforcement databases, the DOS Bureau of Non-proliferation, etc.) to check on any issues that might be of a concern. This security process can be as short as a week and can take on several months. It is important to know that citizens of certain countries are likely to experience longer delays than others. The Visa Mantis program is explained on the US Department of State website.

2. Procedure at the Consulate: Prior to making your visa interview, please check these important steps which are explained at a great details. Be precise and deliberate. Follow the instructions as they are very simple. Most if not all of my clients are very intelligent individuals and I truly believe that they can successfully master these simple steps.

3. Petition Information Management Service (PIMS) system: This is a document sharing mechanism that is truly useful which allows the USCIS and the Department of State to make certain documents available to the US Consulates. This system can be used only if your attorney sends a duplicate original petition when requesting consular processing, a change or even an extension of status. The additional duplicate petition is sent by the USCIS to the State Department's Kentucky Consular Center (KCC) which in turn scans it and places it in the system database that can be viewed by the US Consulates. The US Consulate will then be able to easily check the petition and all of the supporting documentation online through PIMS and will not have to rely on the alien to bring in a certified copy of the filed petition. It is highly advisable to take advantage of this system.

Following these simple steps can make the stamping process so much simpler. Best of luck.

If you follow H-1b news, you may have read about the increased Department of Labor (DOL) audit of companies that hire H-1b workers. It is clear now that The Department of Labor is conducting one the most extensive H-1b audit programs in recent history. One example is the GlobalCynex, Inc. audit. GlobalCynex Inc. is an information technology company located in Virginia, recently negotiated an agreement to pay almost $1.7 million in back wages to 343 H-1B employees after an investigation by DOL. DOL found that the company did not pay required wages from March 2005 to March 2007. It also found that the company charged H-1B workers training fees ranging from $1,000 to $2,500.

Having represented several clients in such H-1b audits, clearly DOL means business this year. In fact DOL has debarred ten companies from the H-1b program during the first half of this year alone. It has been our observation that the DOL's H1b audits have been very extensive in Michigan, Ohio and Washington DC. The consensus among H-1b dependent companies is that old models of doing business must change. Companies seem to be more interested in exploring methods to reform their practices and learn more about ways to avoid exposure to liability prior to paying the heavy penalties. Such newly revised business model that focuses on compliance and preventative measures as an integral part of managing the business is emerging out of necessity. However, before the transition is complete we expect to see heavier scrutiny by both USCIS and DOL in H-1b processing and enforcement.

Continue reading "Department of Labor H-1B Audits force companies to take second look at its own practices" »