USCIS to Accept H-1B Petitions for Fiscal Year 2011 Beginning April 1, 2010

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WASHINGTON - U.S. Citizenship and Immigration Services (USCIS) announced today that it will begin accepting H-1B petitions subject to the fiscal year (FY) 2011 cap on April 1, 2010.  Cases will be considered accepted on the date that USCIS takes possession of a properly filed petition with the correct fee; not the date that the petition is postmarked.

The fiscal year cap (numerical limitation on H-1B petitions) for FY 2011 is 65,000.  Additionally, the first 20,000 H-1B petitions filed on behalf of individuals who have earned a U.S. master's degree or higher are exempt from the H-1B cap.

USCIS will monitor the number of petitions received and will notify the public of the date on which USCIS received the necessary number of petitions to meet the H-1B cap.  If needed, USCIS will randomly select the number of petitions required to reach the numerical limit from the petitions received on the final receipt date.  USCIS will reject cap-subject petitions that are not selected, as well as those received after the final receipt date. 

Petitions for new H-1B employment are exempt from the annual cap if the beneficiaries will work at institutions of higher education or related or affiliated nonprofit entities, nonprofit research organizations or governmental research organizations.  Petitions filed on behalf of beneficiaries who will work only in Guam or the Commonwealth of the Northern Marianas Islands are exempt from the cap until Dec. 31, 2014.  Employers may continue to file petitions for these cap-exempt H-1B categories seeking work dates starting in FY 2010 or 2011.

Petitions filed on behalf of current H-1B workers who have been counted previously against the cap also do not count towards the congressionally mandated H-1B cap.  Accordingly, USCIS will continue to process petitions filed to:

• extend the amount of time a current H-1B worker may remain in the United States;
• change the terms of employment for current H-1B workers;
• allow current H-1B workers to change employers; or 
• allow current H-1B workers to work concurrently in a second H-1B position.

H-1B petitioners should follow all statutory and regulatory requirements as they prepare petitions to avoid delays in processing and possible requests for evidence.  USCIS has developed detailed information, including a processing worksheet, to assist in the completion and submission of a FY2011 H-1B petition, which can be found on our website. 

U.S. businesses use the H-1B program to employ foreign workers in specialty occupations that require theoretical or technical expertise in specialized fields, such as scientists, engineers, or computer programmers.

For more information on the H-1B nonimmigrant visa program and current Form I-129 processing times, visit http://www.uscis.gov/ or call the National Customer Service Center at (800) 375-5283.

Alternative Visa Options Once H-1B Cap Is Reached

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IMPACT OF THE EARLY CUT-OFF OF H-1B VISAS

After the H-1B cap is reached, private employers cannot hire new temporary professional workers in H-1B status for the 2011 fiscal year.  For those employers in need of hiring temporary professional foreign workers after the H-1B cap is reached, there may be alternative options available.

WHAT OTHER VISA OPTIONS ARE AVAILABLE?

The L-1 Intracompany Transferee Visa

The L-1 or intra-company transfer visa facilitates the transfer of key employees from a foreign corporation to a U.S. branch, parent, subsidiary, or affiliated entity.  This visa allows a U.S. company to bring in top-level managerial, executive, or specialized knowledge employees for a temporary period.  The employee must have worked for the foreign company for at least one of the past three years or six months for blanket L scenario and must work for the U.S. company in a similar position.  It need not be the same status as overseas (ex: specialized knowledge overseas could be a manager in the United States.  Only needs to be in one of the three classes:  manager, executive, or specialized knowledge).  The foreign entity may pay the employee his or her salary but the U.S. company must control the employee's performance of his or her work.  Authority to engage and terminate the employee is strong evidence of control.  There are no numerical limits on the L visa and the spouse of an L visa holder may apply for work authorization.  The L visa is initially valid for up to three years in the case of an existing business and up to one year where a new business is established in the United States.  There is a five-year limit on L-1B employees with specialized knowledge staying in the United States and a seven-year limit for L-1A managers and executives.

Consular posts generally see an increase in L-1 applications after the H-1B cap is reached.  However, there is no legal reason why aliens eligible for H-1B status cannot legitimately seek out other type of visas, including L visas. 

The Treaty-Trader/Treaty -Investor Visa (E-1/E-2)

E or treaty visas are available to persons or entities engaging in trade between the United States and their home country or persons and entities coming to the United States to develop and direct enterprises in the United States in which they are investing substantial amounts of capital.  The E-2 category includes individual investors and managers, executives, and essential skills employees of business entities that do the investment.  As a threshold issue, in order for a foreign national to qualify for this visa there must be a trader or investor treaty between the U.S. and the applicant's home country.  For treaty traders, the company set up in the United States must be at least 50% owned by a treaty country national but the applicant does not have to be an owner of the business.  There must be a "substantial" flow of trade (either goods or services) between the U.S. business and the treaty national's home country.  The USCIS determines whether the trade is substantial on a case-by-case basis.  Factors that may be considered include the nature of the business, the number of transactions, amount of trade and capital outlay.

With respect to an investment visa, again the business must be at least 50% owned by treaty nationals and there must be a substantial investment, which like the treaty-trader visa is determined on a case-by-case basis.  The investor must have experience in the business and must be actively involved.  The investor cannot simply invest in a company run by someone else. An E visa holder is normally admitted to the U.S. for a two-year period with unlimited two-year renewals.  Spouses of E visa holders may apply for work authorization.

TN Status

Employers may continue to sponsor Canadian and Mexican nationals in TN status under the North American Free Trade Agreement (NAFTA).  This visa is available to Mexican and Canadian nationals who have been offered a temporary position in one of the professions described in schedule 2 of NAFTA.  The applicant must have the degree or credentials required for that profession.  The TN visa is valid for three years and may be renewed indefinitely.  A spouse of an employee in TN status is not eligible for work authorization.

The O Visa

Foreign nationals with extraordinary ability in the arts, sciences, athletics, education or business, may apply for an O visa.  Beneficiaries in the sciences, athletics, education or business field must show that they have risen to the top of their field evidenced by national or international recognition.  Beneficiaries in the arts must show prominence and a record of extraordinary achievement.  Beneficiaries in the motion picture or television industry need to show a high-level of accomplishment, above that ordinarily encountered in the field.  The O visa is usually granted for three years and is renewed in one-year increments.  The O visa may be renewed indefinitely.  A spouse of an O visa holder cannot apply for work authorization.

The J-1 Exchange Visitor Visa

This visa is available to foreign nationals to enter the United States as exchange visitors to participate in government approved exchange programs.  First, the prospective employer must establish an approved exchange program.  Such program may be sponsored by government agencies, private businesses or educational agencies.  The foreign national may then enter the United States for the purpose of doing research, gaining training or studying.  Depending on the foreign national's qualifications and the type of exchange program, the J-1 visa is available anywhere from eighteen months for most trainees to forty two months for professors and research scholars.  Certain foreign nationals may be subject to a two-year home residency requirement at the end of their stay.

USCIS Begins Accepting H-1B Visa Applications on April 1, 2010

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On April 1, 2010, the United States Citizenship and Immigration Service (USCIS) begins accepting H-1B visa applications for the 2011 fiscal year (which starts on October 1, 2010).   In 2008, U.S. Citizenship and Immigration Services (USCIS) received approximately 163,000 petitions during the five-day filing period and conducted a random lottery to select the 65,000 petitions that would be eligible for processing.  In 2007, the USCIS reached its H-1B visa quota in one day.  Last year was the first year where all H-1B visas were not taken in the first week of April 2009.

The H-1B  visa program enables U.S. employers to hire highly educated foreign professional workers for "specialty occupations" - jobs that require at least a bachelor's degree or the equivalent in the field of specialty.  These foreign workers provide needed specialized or unique skills, fill a temporary labor shortage and/or supply global expertise.  Holders of these visas can stay in the United States for up to six years.

Although it is unlikely that the USCIS will reach its H-1B cap for the 2011 fiscal year soon after April 1, 2010, employers seeking H-1B visas should start planning ahead.  Unlike in previous years, obtaining a certified Labor Condition Application (LCA) is no longer immediate upon submission online.  Now employers have to submit the LCA to the Department of Labor and wait up to seven days if not longer to obtain an approved LCA.  The LCA contains several attestations by the employer including an attestation that they will pay the H1-B employee the prevailing wage for the job position.

Many employers have already experienced delays in obtaining an approved LCA where the Department of Labor cannot verify the employer's tax identification number and requires additional documentation before providing an approved LCA. 

Prudent employers need to start considering and planning their H-1B visa needs for the upcoming fiscal year.  It is also advisable for employers to start making contingency plans for bringing temporary professional workers to the United States if the H-1B cap is reached. 

WHY THE EARLY H-1B VISAS CUT-OFF?

H-1B visas are limited to 65,000 per year.  However, certain cases are exempt from the cap.  This numerical limit is further reduced by free trade agreements that specifically allocate 6,800 H-1B visas for nationals of Singapore and Chile making only 58,200 visas available in the standard H-1B pool. 

WHO IS EXEMPT FROM THE H-1B CAP?

The following cases are exempt from the H-1B cap: 1) extensions for current H-1B workers, whether for a new or existing employer in sequential employment situations; 2) concurrent employment in a second H-1B position; 3) amended petitions; 4) H-1B employment for nationals of Chile or Singapore, 5) petitions for new employment at an exempt organization such as a nonprofit research organization, an institution of higher education or an affiliated non-profit entity and 6) 20000 H-1B visas for graduates of U.S. universities who have earned a Master's or higher degree.

MAKING THE H1-B CUT-OFF FOR FY 2011

In order to timely receive an H-1B visa, applications should be filed on April 1, 2011.  The prudent employer will be well-served in starting to consider their employment needs for the upcoming fiscal year.  Because the USCIS generally works on petitions in the order they were received, it may be worthwhile to pay the extra $1,000 premium processing fee to have your H-1B visa applications adjudicated in fifteen days--assuming the USCIS again makes premium processing for H-1B applications an option. 

Unless Congress raises the annual H-1B visa cap, employers will have to file their H-1B petitions as early as possible and make use of other visas available to bring temporary workers to the United States for FY 2011 if the H-1B cap is reached before April 2012.  Readers are encouraged to contact their senators and representatives to push for an increase in the H-1B cap.

US Citizenship Granted to 104 Year Old Oregon Woman

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PORTLAND, Ore. - There is an old saying, "better late than never" and Marion Pringle certainly demonstrated that when she finally received proof she's a U.S. citizen...at the ripe age of 104!

She was born in Canada in 1906 and needed to renew her license to keep her medical records current.  State law in Oregon now requires proof of citizenship for a license.

Pringle didn't have it.

She moved to Portland as a girl but never got the documents the state now requires. Pringle finally proved her citizenship through Census records found by the Oregon Historical Society.

She received a surprise visit from U.S. Citizenship and Immigration Service officials who gave her the papers and administered the oath of citizenship as she celebrated her 104th birthday on Tuesday.

Congratulations, Marion! 

Questions & Answers: Information for Adoptive Parents of Paroled Haitian Orphans

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Introduction:

Under normal circumstances, a child immigrating to the United States from Haiti as the adopted orphan child of a U.S. citizen is adopted before leaving Haiti, and is then admitted to the United States with an immigrant visa for Lawful Permanent Residence (LPR) status. The adopted child then acquires citizenship upon entry as specified in section 320 of the Immigration and Nationality Act (INA).

In light of the devastating earthquakes in Haiti, the Secretary of the Department of Homeland Security authorized Haitian children, who were adopted or were in the process of being adopted by American families prior to the earthquake, to be paroled into the United States. “Category 1” parolees are Haitian orphans who were already legally adopted in Haiti. “Category 2” parolees are certain Haitian orphans whose cases had not yet resulted in final adoptions. You may find more information about the parole policy on USCIS’ Haiti Earthquake Response page at www.USCIS.gov. 

To determine what steps to take next, it is most important to understand where you were in the adoption process in Haiti, regardless of the category you believe your child fell within at the time of parole. The following is provided for informational purposes to U.S. citizen adoptive parents and prospective adoptive parents. 

Q1.  Are there any additional requirements from the Haitian government that I should be aware of during this process?Questions & Answers 

A1.  The U.S. Department of State (DOS) is working closely with the Haitian government regarding the Haitian children, who were identified and matched for adoption by U.S. citizens before the earthquake, and who entered the United States under the special humanitarian parole program for those children. The DOS will inform adoptive parents on the Web page, www.adoption.state.gov, of any requests the Haitian government makes concerning these children and their adoption by U.S. parents.

For example, the DOS understands that the Haitian government may want adoptive parents to complete the Haitian adoption process at some point in the future. In addition, the Haitian government may wish that adoptive parents complete post-adoption reports about their adoptive children. We are seeking details on these and any other requests from the Haitian government. We strongly encourage adoptive parents to fulfill any such requests. Failure to respond appropriately could have an adverse impact on future adoptions from Haiti as well as other countries.

Q2.  What if I had already filed a Form I-600 for my child?

A2.  As indicated in the table above, if you have adopted the child in Haiti, and the child qualifies as an “orphan” as defined in section 101(b)(1)(F) of the INA, the Form I-600 may be approved, even after the parole of the child into the United States. If you have filed Form I-600 for a child who has been adopted in Haiti and it is approved or pending, you may file Form I-485 with USCIS.

However, if you are not able to complete an adoption in Haiti, and you decide to adopt the child in the United States instead, you will still need to file a Form I-130 and Form I-485 in order for the child to immigrate as your adopted child based on your adoption of the child in the United States, provided all of the relevant requirements are met.

Q3.  Why is the age of my adoptive child important?

A3.  For a Form I-130 case, U.S. immigration law requires that the child must be adopted before his or her 16th birthday. For a Form I-600 case, U.S. immigration law provides that the Form I-600 must be filed before the child’s 16th birthday.

The only exception to this is for a child whom you adopted or filed a Form I-600 for after his or her 16th birthday but before his or her 18th birthday, if:

• The child is the birth sibling of another child who you legally adopted, if you adopted or filed a Form I-600 for the birth sibling before his or her 16th birthday, and
• The birth sibling obtained LPR status in the United States based on adoption by you.

Q4.  My adopted Haitian child entered the United States with an immigrant visa. Do I need to do anything else in order for my child to obtain evidence of U.S. citizenship?

A4.  This depends on how your child was admitted to the United States.

• If your adopted child was admitted to the United States with an immigrant visa, he/she became a lawful permanent resident upon admission to the United States.   
• If your child was admitted with an IR-3 immigrant visa, your child should receive a Certificate of Citizenship soon after admission. 
• If your child was admitted with an IR-4 immigrant visa, you must complete the adoption process in the United States and file a Form N-600 if you wish to obtain a Certificate of Citizenship or apply for a U.S. passport for your child. 
• If your adoptive child was admitted with an IR-2 visa (which is extremely rare), you may file a Form N-600 to obtain a Certificate of Citizenship or apply for a U.S. passport for your child.

Q5.  My adoptive child’s period of humanitarian parole will expire before the child acquires LPR status. What do I need to do?

A5.  The expiration date for your child’s parole is shown on the DHS Form I-94, issued upon the child’s arrival in the United States. If your child’s humanitarian parole is going to expire before the child acquires LPR status, you should apply for an extension of your child’s humanitarian parole. Be sure to file the extension application before the period of parole expires. This is important because any lapse in your child’s lawful immigration status could affect future applications.  

To apply for an extension of parole with USCIS you must:

• File an Application for Travel Document, (Form I-131), and on the first page write ‘EXTENSION REQUEST’ in big, bold letters,
• Include the filing fee,
• File an Affidavit of Support (Form I-134),
• Include current supporting documentation, and
• Include a copy of your Form I-94, Arrival/Departure Record, which your child was issued upon parole into the United States.

You must submit requests for extensions of parole to USCIS at the following address:

Department of Homeland Security/USCIS
Attn: Chief, Parole Branch
20 Massachusetts Avenue, NW Suite 3300
Washington, DC 20529-2100

USCIS recommends that you file for an extension of parole at least 30 days (and up to 120 days) before the expiration date on your Form I-94, Arrival/Departure Record.

Q6.  When can my adoptive child travel outside the United States? 

A6.  Your child may travel outside the United States after the Form I-485 or N-600 is approved, and your child has received his or her permanent resident card or Certificate of Citizenship. Once your child is a citizen, he/she may need to obtain a passport to travel abroad and return to the United States.

Before the Form I-485 is approved, your child may travel if you file a form I-131, Application for Travel Document, and your child has received the advance parole document, which may be used as a travel document for return travel to the United States.

Remember to check the CBP Web site, www.cbp.gov to determine what other documents your child will need to return to the United States.

You should also find out what documents any foreign country may require your child to have, such as a passport or visa, to enter and leave that country. 

Q7.  Where can I get the forms mentioned above?

A7.  All USCIS forms are available for free download at http://www.USCIS.gov/forms. Individuals may also call the toll-free USCIS forms hotline, (800) 870-3676. 

Inspiring Immigration Ad from HSBC

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I thought this was a cool ad and wanted to share.  The ad takes place amongst the hustle and bustle of New York City with the Flatiron Building as its backdrop.  It features normal people standing on a "soap box" sharing their perspectives and values as they relate to immigration.  Directly behind each speaker are black and white photos of immigrants, suitcases in hand, fresh off the boat waiting in line at Ellis Island.  This is the essence of the American Dream.

What a great country we live in!

How Do I Come Live & Work in the United States?

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Immigration attorney Karen Pollak explains on a basic level how foreign nationals can come live and work in the United States.

US Citizen | How Do I Bring a Spouse, Parent or Child to the United States?

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Immigration attorney Karen Pollak explains how a U.S. Citizen can bring a family member (spouse, parent or child) to the United States.

US Citizen | How Do I Bring a Family Member (Sibling) to the United States?

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In this video, Immigration attorney Karen Pollak explains how a U.S. Citizen can bring a brother or sister to the United States. 

US Citizen | How Do I Bring My Fiance to the United States?

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This is the first video in a series created to answer frequently asked immigration questions. Thanks for your comments, questions, and suggestions regarding immigration topics.