Immigration Visa Attorney Blog

Now that we have filed our H-1B visa petitions, we are awaiting the dreaded lengthy Requests for Evidence (RFE) from USCIS. We will enjoy a relative peace for a short time until the H-1B visa RFE's are mailed to us containing lengthy boilerplate inquiries and additional extensive document requests. Any employer or attorney who has filed more than a handful of H-1b visa petitions has seen these RFE's. One of my Columbus, Ohio clients complained to me that he finds the RFE's irritating not only because they are lengthy, but because they are intrusive and ask questions that are not relevant most of the time. For me they are irritating because they ask the same question from the same employer over and over. Going back few years the number of RFE's issued were substantially less. Now, we see them more often. My advice is to get organized. From my experience, the H-1B visa RFE's usually inquire about four broad categories.

1. Information pertaining to the employer.
2. Information pertaining to the employee
3. Information pertaining to the relationship between the employer and the employee
4. Information pertaining the job opportunity.

First of all, you should be aware that there is considerable overlap and interplay between the categories. For example if the RFE is requesting whether the job is a specialty occupation, you know the inquiry is related to the "job opportunity." But also be aware that the nature of the employment arrangement is also in question as well. In outsourcing situations, for example, evidence pertaining to the specialty occupation will not be satisfactory if it comes form the employer/petitioner. USCIS expects that such evidence to come form the end client where the employee will be located. Also matters related to the length of the assignment become relevant. Does the end client have work for the H-1B employee for the duration of the H-1b visa? This has to be addressed within the context of the specialty occupation inquiry.

We will address each of the four categories in more detail with examples in the upcoming blogs.

It is difficult not to join in on this debate...This month the administration would like to lunch the debate on Comprehensive Immigration Reform...Last month Congress enacted the Employ American Workers Act, (EAWA), which is part of the American Recovery and Reinvestment Act. Basically EAWA places restrictions on hiring H-1B workers by companies receiving funds from the Troubled Asset Relief Program (TARP). The debate, some say, which way are we heading?

Our history teaches us that restrictions on immigration have almost always accompanied our economic downturn. It is difficult to make a good faith argument advocating that there is a sound nexus between restrictions placed on the H-1B program on one hand and helping troubled companies recover on the other. Many express concern as to whether it is wise to place limitations on troubled companies from hiring the most talented to fill critical posts as they struggle to recover. As we begin debating the Comprehensive Immigration Reform, the bigger question, however, is whether EAWA is the beginning of a trend or simply an isolated legislation.

Continue reading "Comprehensive Immigration Reform or Protectionist Immigration Laws ?" »

In the mad rush up to the April first filing deadline for the H-1B cap season, most employers experience an anxiety stemming from concern over whether or not USCIS will select their petitions in its lottery-like cap for the 65,000 available visas. In the storm of activity this period inspires in employers and employees, many forget to ask themselves fundamental questions about the whole process. Many companies or petitioning organizations who are hiring foreign workers should ask themselves, however, is if they are even subject to the cap at all. Organizations that are not subject to the H-1B visa cap are called "cap-exempt." Such organizations include governmental research organizations, non-profit research organizations, and institutes of higher education. Although many types of cap-exempt organizations are easily identifiable, many employers may be surprised to realize that their organization is also cap-exempt, or that legal arguments may be made that can convince USCIS of their cap-exempt status.

For example, the law specifically states that an employee of an "institution of higher education" is exempt from the H-1B visa cap. Immigration law references the definition of an institution of higher education found in the Higher Education Act of 1965. This means any public or private university or college that admits students with the equivalent of a high school diploma to at least a two year degree program is a cap-exempt employer.

Continue reading "Avoiding the H1B Visa Cap Through Cap Exempt Employers" »

The US Senate has passed an amendment to the legislation allowing the federal government to provide Troubled Assets Relief Program (TARP) funds to financial institutions which may restrict or eliminate their ability to sponsor foreign workers under the H1b visa program. The aforementioned amendment would automatically cause a financial institution which may receive TARP funds to become an "H1b Dependent Employer" whether or not they possessed 15% H1b visa employees on their payroll. Such a notion will force these financial institutions to make certain promises if they wished to hire an employee on H1B visa. These promises include, inter alia, that it had not displaced a US worker 90 days before and after the filling of a Labor Condition Application (LCA) within the same occupational classification filled by the H1b alien. This amendment may very well cause these financial institutions from abandoning hiring H1b visas as many of them have experienced layoffs. I predict that such legislation while appearing to have a "protective" facade of the welfare of the US worker, it in fact will not limit the hiring of H1b workers generally and will as a matter of fact cost these financial institutions more in locating competent staff during some of the most challenging economic times.

Unfortunately, this is a political statement by the US Senate which has little to do with restoring confidence in the market place or to solve the growing unemployment rate currently experienced by the US labor force. This amendment is nothing but a political statement by the US Senate to appease special interest groups who are opposed to the H1b visa program. The general populous has a mistaken belief that H1b visa workers are the cause of the high unemployment rate experienced by the US. The truth of the matter is that H1b visa workers do not receive less wages; to the contrary they cost the employer a great deal of resources, both monetarily and otherwise to secure their employment. First employers wishing to employ foreign workers on H-1b visas must first pay prevailing wages; such employers must also pay legal fees as well as exorbitant governmental processing fees ( which could be as $2,320 for each H1b worker) to process their cases; in addition, employers hiring H1b workers also incur into other soft costs associated with record keeping requirements. Since it actually costs more to hire workers under the H1b program, it follows that employers will actually only do so when they are unable to find competent US workers to fill these positions.

Continue reading "Tougher H1B Restrictions on Companies Receiving TARP Funds Means Improved Business Prospect for Small Consulting Companies" »

Despite recent news, the US continues as a fertile grounds for foreign investors. Unemployment rates are relatively low in many US Cities including Columbus, Ohio and Washington, DC, where our firm maintains offices. There are several available visa alternatives for foreign investors seeking temporary employment in the United States. This article focuses on three viable investor options including Intracompany Transferee (L-1), Treaty Trader (E-1) and Treaty Investor (E-2).

The L-1 visa category is a temporary visa for Intracompany Transferees. It allows companies abroad to establish a presence in the United States by transferring a worker with a qualifying employment position, i.e., an "executive" or "manager" (an L-1A) or a worker with "specialized skill" (an L-1B), to a qualifying business such as a U.S. affiliate, parent, or subsidiary entity on a temporary work basis. The employee must have worked for the foreign company for one continuous year out of the preceding three years. Larger multi-national corporations who frequently transfer employees may seek a "Blanket L-1" which allows it to transfer executives rather quickly. Finally, executives and mangers may seek permanent residency (a "green card") under requirements which mirror those under L-1.

The qualifying employment positions necessary for the L-1 visa are narrowly defined terms under Federal law that must be rigidly followed when applying for this category. Generally, "mangers" and "executives" are higher-level employees who have significant managerial, supervisory and policy making authority. A person with "specialized knowledge" is a vital employee with unique knowledge of the company product or service that does not meet the definition of an executive or manager. It is not necessary for the employee to have held the same position abroad as the intended job in the U.S., as long as the employee was a manger, executive or worker with specialized knowledge and continues to be one of those qualifying positions in the U.S. company. L-1B workers can remain in the U.S. up to five years, while L-1A executives and managers are allowed to stay for up to seven years.

It is also necessary to prove there is a "qualifying business relationship" between the foreign and U.S. companies which means that the relationship is either one of parent/subsidiary or affiliate. Key corporate documents will therefore be necessary components of the application. Federal Regulations allow a new parent, subsidiary, branch or affiliate office in the U.S. to employ a manager or executive under a "new office" petition which will only be approved for one year. Thereafter it may be extended upon proof that the business is active and operating and requires an executive or manager.

Continue reading "Nonimmigrant Visa Solutions for Foreign Investors" »

As an H1B attorney, I have observed a recent alarming increase in the frequency of Requests for Evidence (RFE) issued against H1b petitions filed by smaller Information Technology firms. There is no geographical pattern for the location of such IT consultants as I observed this flurry of record RFEs coming against our clients based in Columbus, Ohio, Washington, DC, or anywhere for that matter. The RFEs are extremely lengthy and require the submission of voluminous documentation, some of which has nothing with the regulatory requirements for Specialty Occupation (H1B). For instance, some of the RFEs demand the submission of zoning permits, floor plans of the premises occupied by the company, tax records, a list of all H visas submitted, and more; but the most concerning request usually proof that the petitioner is an employer, not an "agent."

Although an "agent" technically may petition for an H-1B worker, once the Service believes that the employer is acting as an agent, it imposes extremely taxing documentary requirements on the petitioner that go above and beyond the normal kinds of paperwork that evidence most employment relationships. Once USCIS believes the employer is acting as an agent, its demands for evidence can become impossible to fulfill and may trap the employer in an impossible spiral in which all of its petitions become suspect in the eyes of the Service. Once an employer has fallen into such a trap, it may prove nearly impossible to get out of and result in disastrous consequences for the employer's business.

In essence the petitioner is placed on the defensive to invoke the IRS of whether there exists and employer employee relationship since the H1B employees may work at a "worksite" other than the petitioner's offices. USCIS charges such petitioners as a "staffing agencies" and requires a detailed itinerary of activities of the H1b beneficiary.

Continue reading "USCIS Increasing RFEs Against H1b Petitions Filed by Small IT Companies" »

As immigration lawyer, I am presented with these questions frequently: what are the circumstances that would justify extending an H-1b visa beyond the maximum period allowed by statute? Or how can I extend my H1b visa beyond six years?

Congress dealt with this issue by passing legislation in 2000. The USCIS subsequently published several "guidance memoranda" in which it created criteria for extending H-1B visas beyond 6 years. In order to understand these criteria, I have created all the scenarios which will cause USCIS to either approve or deny an extension beyond the 6 year limit.

• Brief History

Prior to the enactment of The American Competitiveness in the Twenty First Century Act of 2000 (AC21) foreign nationals present in the US on H-1B visas, and who could not reach the point of I-485 in the permanent residence process, simply had to pack their bags and go home at the conclusion of the six (6) year term. The labor certification process (which forms the basis for the majority of permanent residence applications) had been riddled with protracted and overlapping administrative processes that took years. Such delays often caused aliens on H-1b visas to reach the maximum six (6) year limit and depart the United States prior to completing their permanent residence process. For those lucky ones whose employers were willing to continue the permanent residence process despite their departure, they were able to return back to the US after an interruption caused by the aforementioned six (6) year limitation.

The departure of these H-1B visa holders after six years of service working in their field in the US, created in my opinion, a lost opportunities for the foreign nationals, the employers and for the US at large. Many employers forfeited the services of highly trained and skilled employees as well as their investment in visa sponsorship, extensions and in applying for the permanent residence processes.

Congress realized this problem and in 2000 it introduced AC21 which sought to allow H-1B employees to extend their status beyond the maximum allowable six (6) year limit, if they reached certain stages in their permanent residence application processes.

• Permanent Residence Process

The most popular method of applying for employment based permanent residence is through labor certification, now called PERM. A PERM application is filed electronically before the US Department of Labor (USDOL) and it is intended to assure that the permanent employment of a foreign national does not displace equally qualified US workers. Once this process is complete, the employer must then file an immigrant petition for alien worker (I-140). Currently, employees are able to concurrently file an application for permanent residence (i-485) along with the I-140 petition. The I-485 application is the last step in the permanent residence process and its approval results in the issuance of permanent residence, also known as green card, to the foreign national.

Congress also created a quota system which assures that America continues to be a cross section of people from all nationalities. Hence, it instituted a "per country" limitation system to assure that nationals from one country do not become proportionally more populous in the US than others. This per country quota system favors foreign nationals who have higher academic or professional achievements coming from the same country. For instance, currently nationals of India have a significant backlog in the permanent residence process due to the proportionally higher number of Indian nationals who have applied for immigration when compared with other nationals. Within that specific Indian per country limitation system, those whose permanent employment requires the attainment of higher educational or professional achievements will receive their permanent residence status sooner. This is what is referred to as the employment based immigration preference system also known as EB-1, EB-2, and EB-3.

The Visa Bulletin, issued monthly by the US Department of State, publishes the dates that allow certain applicants to move forward with their permanent residence process based on the start date of their immigration process, also known as the priority date.

• H-1B Visa Time Recapture:

One of the most common ways to extend H visa beyond what might seem as a six year limitation is to recapture time the foreign national spent outside the US. So long as absence was not for brief vacations, the law allows the foreign national to precisely spend six (6) years in the US on H-1B visa. Hence, if an alien took a leave of absence for an extended period of time, he or she could request that such time be "recaptured" and the alien could request that his H-1b visa status be extended for those missed days. Another manner in which the alien could recapture lost time is through applying for an extension of the H visa to recover time between the initial issuance of the H-1b visa while the alien was outside the US, and the time that he or she enters the US on H status. For instance, if the H-1b visa approval was issued for a start date of October 1, 2003, but the alien, due to visa processing or other reasons, first enters the US on February 1, 2004, the alien is entitled to request a 4 month extension to be tacked on beyond September 30, 2009.

• Extension Beyond Six (6) Years When Labor Certification is Filed

1. PERM Application Pending For More Than One Year: If an alien has a pending PERM application which had been filed by his employer 365 days or more prior to the alien reaching 6 years on H-1B visa, then the alien is entitled to successive one year extensions. This is true even if the employer who filed the original PERM application is not the same employer who now seeks to extend the H-1B visa beyond six years.

a. Example: Employer "A" files a PERM application for Joe Alien who at the time of the application has already been in H-1B status for 4 years and 9 months. Six months after the filing of the PERM application, Joe Alien transfers his H-1B visa to Employer "B." One passes after the filing of the PERM application and it remains pending. Employer "B" now uses the fact that there is still a pending PERM application which Employer "A" filed for Joe Alien to request extension of Joe Alien's H-1B visa status for another year to continue to work for Employer "B." Under this scenario, the USCIS will approve this extension beyond six years even though It was Employer "A" who originally filed the labor application and Employer "B" filed the extension.

Continue reading "H1B Attorney Untangles the Convoluted Rules of H-1B Extensions Beyond Six Years (7th Year H1B Extensions): " »

One of the most concerning moments in my practice as an immigration attorney, or as some call me: H1b lawyer, is when my client falls out of compliance without even knowing it. Because employment in general is a fluid matter, I mean by that employees come and go continuously; a company which employs foreign nationals could become an H-1b Dependent Employer and not even know it. Failing to comply with the regulations if an employer becomes H1b dependent could could be cost the payment of penalties if the US Department of Labor ever audits the employer.

Our firm services employers nationwide, however, they usually meet with me in one of my offices located in Columbus, Ohio, Cleveland, Ohio, and Southfield, Michigan or in the nation's capital, Washington, DC. I am on a constant communication with my clients to assure that they continue in compliance with the regulatory directives when it comes to the employment of foreign workers. It is important for an employer who regularly employs foreign nationals to keep open communication channels with a competent immigration lawyer. This communications relative to the hiring, terminating and the resignation of the foreign national on H-1b visas.

The immigration attorney could predict when an employer becomes H1B dependent which then requires him to undertake additional measures to protect the employer. For instance, the regulations at 8 CFR §214.2(h)(11)(i) require the employer to "immediately notify the Service of any changes in the terms and conditions of employment of an H-1B employee." such changtes include when an H-1b visa employee resigns or is otherwise terminated. By having such an open relationship with an H1b lawyer, the attorney should be keeping a running tally of the number of H1b workers present on the employer's payroll at any given time. Why is this important? It is because the ratio of an employer's H1b employees can cause to unwittingly take on additional legal obligations.

• How Does An Employer Become H-1B Dependent?

Most of the time, the determination is rather simple and arithmetic:

- 25 or fewer full-time equivalent (FTE) employees, including 8 or more H-1Bs;

- 26-50 FTE employees, including 13 or more H-1Bs; and

- 51 or more FTE employees, including at least 15% H-1Bs.

Continue reading "H1B Dependent Employers Must Maintain Relationship with Immigration Lawyer " »

As an immigration attorney, I view my job as a partnership arrangement with my clients. Each non-immigrant visa that I process, be it an H-1B visa or otherwise, or a green card for that purpose, is truly a joint venture between myself and my client that I am servicing. Since we are coming up on the 2009 H-1B visa cap season, I believe that I should focus on describing the best possible partnership I, or any H-1B lawyer in our firm, could have with the employer and the employee; a partnership that would yield the best result for all parties concerned. In our Columbus, Ohio office, (the same goes for our Cleveland, Ohio, Washington, D.C, or Michigan offices) our clients utilize our online immigration case management system that we designed called, VisaTurbo to inform us about new H-1B visa cases. In other words, employers do not have to call our office to let us know that they need to process a dozen new H-1B visas, rather, they go into their secured accounts and add all of the necessary information about the identity of the prospective international employees that they would like join their company on H-1B visas.

From that point, the partnership begins. VisaTurbo sends the immigration attorney in our office an automated e-mail letting him/her know that a dozen of employees have been added for H-1B visa processing. The H-1B attorney assigned to the particular employer immediately contacts the prospective employees to provide them with their passwords to enter VisaTurbo and input all of the information that the H-1B visa attorney needs to get the H-1B Visa processed as quickly and as efficiently as possible. Here are the steps that the employee must carefully undertake in order for the H-1B visa attorney obtains the desired result:

1. Input Information in the "Profile": The prospective employee is asked to populate the fields in the several tabs including: personal, contacts, visa stamping history, I-94, entry/exit dates, passport, education and employment biographic information. Please bear in mind the partnership approach our office deals with these types of visas: be precise, be complete, be efficient, and include as much information as possible. I always tell my clients "give me more information; don't give me less." Also please remember that the USCIS is interested in learning about your background and how you qualify for the H-1b position. Hence, this is the time for you to be as detailed as possible and provide as much descriptive profile as possible.

There is another reason why you should be as detailed about your background, if you had held H-1b visa or status within the last 6 years, you may not need to apply towards the 2009 H-1B visa cap and you could qualify for H-1B visa portability. Another example: if you had obtained your Master's Degree from the US, you are eligible for the 20,000 visas set aside and hence will have higher chances to be selected in the 2010 H-1B visa quota. There are countless reasons as to why you should be descriptive, deliberate, accurate and informative. Now you can begin to see what I mean by partnership: I need your information to put together the best case for you, you need me to represent you before the US Department of Labor and US Citizenship and Immigration Service.

Continue reading "How Do I Help My H1B Attorney Get Me the Best Result?" »

Dear President-Elect Obama,

We hope you had a Merry Christmas. As immigration lawyers and immigration attorneys we would like to extend our season's greetings to you and your family. We know you had a great year in 2008 and you earned it. But many Americans had a jobless Christmas this year. From the nation capital, Washington, DC, to the heartland of Cleveland and Columbus, Ohio to the motor city, Detroit, Michigan we know that Job creation will be your biggest challenge. So let me explain why the H-1B visa cap increase has no negative effect on US Job creation.

Job Creation

One major concern of opponents of an increase in H-1B visas is that holders of these visas are taking jobs away from U.S. workers. However, this argument is based on a misconception of the process involved in issuing H-1B visas and the reasons why an increase is needed. H-1Bs are issued to holders of a bachelor or higher degree in specialty occupations where there are no available U.S. workers. In general, companies that hire H-1B temporary workers do so in order to grow, not to replace U.S. workers. Those companies are creating jobs.

There are checks against using the H-1B program to displace U.S. workers. The H-1B application process involves filing a Labor Condition Application (LCA) with the Department of Labor in which the employer certifies that the wages to be paid to the temporary worker will equal or exceed the prevailing average for the occupation, and that the working conditions will not have an adverse effect on similarly situated U.S. workers, among other things. Also the H-1B program requires companies to confirm that the H-1B workers are not replacing American workers. If some companies are slipping through the cracks and using the H-1B program to take jobs from U.S. workers, that would be a reason for procedural reform, and not a reason to make fewer H-1Bs available.

Continue reading "The H-1B Visa Cap Should be Increased, An Open Message to President-Elect Obama, Part Two" »

Dear President-Elect Obama,

As you take office, the many problems this country is facing are probably dominating every second of your day. It may seem, given our present economic situation, and the need to focus resources on other pressing issues and long legislative agenda in Washington, DC. that immigration reform should take the back seat for now. However, some aspects of immigration reform, such as an increase in the annual H-1B cap, would actually contribute to, and not hurt, an attempt to remedy the economy. Many Cities like Detroit, Michigan, Cleveland, Ohio and Columbus, Ohio to name a few can certainly benefit from a pro H-1B policy.

The purpose of this message is to outline the reasons why the H-1B cap should be increased and to address the concerns of opponents to an increase to the H-1B cap.

The H-1B visa, or at least the concept behind it, is a historically important part of our country's immigration law. This visa has been a driving force for innovation and a vehicle by which to attract the top talent and skills from across the globe. The H-1B visa allows foreign nationals with a Bachelor's or more advanced degree (or the equivalent of those degrees through experience) to work temporarily in the United

Continue reading "The H-1B Cap Should be Increased. An Open Message to President-Elect Barack Obama, Part One" »

Dear President-Elect Obama,

As you take office, the many problems this country is facing are probably dominating every second of your day. It may seem, given our present economic situation, and the need to focus resources on other pressing issues and long legislative agenda in Washington, DC. that immigration reform should take the back seat for now. However, some aspects of immigration reform, such as an increase in the annual H-1B cap, would actually contribute to, and not hurt, an attempt to remedy the economy. Many Cities like Detroit, Michigan, Cleveland, Ohio and Columbus, Ohio to name a few can certainly benefit from a pro H-1B policy.

The purpose of this message is to outline the reasons why the H-1B cap should be increased and to address the concerns of opponents to an increase to the H-1B cap.

The H-1B visa, or at least the concept behind it, is a historically important part of our country's immigration law. This visa has been a driving force for innovation and a vehicle by which to attract the top talent and skills from across the globe. The H-1B visa allows foreign nationals with a Bachelor's or more advanced degree (or the equivalent of those degrees through experience) to work temporarily in the United

Continue reading "The H-1B Cap Should be Increased. An Open Message to President-Elect Barack Obama, Part One" »

As the H-1b filing deadline approaches, a frequent question I get is what the definition of Specialty occupation is. A typical question is: I have open positions in Columbus and Cleveland, Ohio, they will assist an engineer, is an Assistant Engineer job a "specialty occupation? and can we file an H-1b visa petition for this person ?"

Nothing is more elusive than what is actually meant by that term. Some occupations, such as professors, accountants, or engineers, fall easily into the meaning of specialty occupation, but others are not so clear. For such occupations, many factors must be considered in determining whether specialty occupation work is involved.

"Specialty occupation," as defined by the Immigration and Nationality Act, means an occupation that requires "a theoretical and practical application of a body of highly specialized knowledge," and that the "attainment of a bachelor's degree or higher" is usually a prerequisite to entry into the profession. It is not always clear that a particular position meets these two requirements. However, federal regulations give further guidance.

An employer can show that a given occupation is in fact a specialty occupation by showing one of the following:

(1) a bachelor degree or its equivalent is normally the minimum requirement for entry into the particular position;

This is per se evidence that the position requires "a theoretical and practical application of a body of highly specialized knowledge."

(2) such a degree is commonly required in the industry in similar positions and in similar organizations, or the position in question is so complex or unique that it can be performed only by an individual with a degree;

The employer can search job-posting websites and provide copies of advertisements for similar positions in other organizations requiring a bachelor's degree.

(3) the employer normally requires a degree or its equivalent for the position; or

The employer can provide past advertisements for the position or similar positions, and evidence that current employees in those positions meet the degree requirements.

(4) the nature of the specific duties are so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor's or higher degree.

A good resource to consult when considering the nature of the duties of a given position, as well as whether a bachelor's degree is the normal minimum requirement for entry into the position, is the Occupational Outlook Handbook (OOH). The book is compiled by the U.S. Bureau of Labor Statistics and is considered authoritative for H-1B purposes; it is revised every two years.

Employers should note that a position will not necessarily be held to be a specialty occupation merely because the position's title is one of an established specialty occupation or because the employer shows that it always requires a bachelor's degree for the position. A description of the duties related to the position must be submitted with the evidence and the reviewing immigration officer will probably find the corresponding occupation in the OOH, without regard to the title.

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..." »