Category Archives: Temporary Work Visas

If your business’s gross annual income is less than $10 million, your workforce numbers fewer than 25, and your business has been in operation for fewer than ten years, guess what: You match the “fraud indicators” outlined by U.S. Citizenship and Immigration Services in a recently released document, putting any petitions that your business files to hire H-1B specialty temporary workers under suspicion. They’ve even got a catchy name for it: the “10/25/10″ formula.

Supposedly this formula was developed after analysis of where the largest volume of fraudulent applications was coming from. Small comfort if you’re a small business owner or manager trying to hire someone from another country! The situation isn’t hopeless, but you can expect lots of requests for documents, and quite possibly a site visit.

For more information, see the press release, “LAC Wins Release of H-1B Fraud Documents for AILA” from the American Immigration Council. And if you’re worried about these and other hassles associated with the H-1B visa, check out this recent article by San Francisco attorney Deborah Dyson: “When the H-1Bs Run Out: Alternative Visas and Strategies.”

Despite a slow economy, the demand for new H-1B visas for specialty workers (such as scientists, engineers and computer programmers) is higher than ever. As usual, it is higher than the number of visas Congress has allotted per year in this category (65,000).

According to an announcement from U.S. Citizenship and Immigration Services (USCIS), the 65,000 cap was reached on June 11, 2012. That’s even earlier than the date upon which H-1B visas ran out last year.

Any new H-1B specialty occupation petitions physically received by USCIS after that date, and requesting an employment start date in FY 2013, will be rejected. What is FY 2013? It starts on October 1 2012, and runs through September 30 2013.

This announcement does not mean, however, that everyone who seeks an H-1B visa is out of luck.

Some people may be exempt from the cap under an  “advanced degree” or other exemption. Others may be renewing their current H-1B status or changing employers. USCIS will continue to accept and process such petitions.

For more information, see “Who Is Exempt From the H-1B Cap on Visas.”

As I mentioned in an earlier entry (called “Great News for F-1 and H-1B Visa Holders,”) DHS has announced plans to allow H-4 spouses to work in the U.S., during the time that the H-1B visa holder is awaiting action on an adjustment of status (green card) application, and after a “minimum time spent in the U.S.”.

Thanks to Gary Endelman and Cyrus Mehta, we have a bit more information about that “minimum time.” Their column, “Working: H-4 Spouses Get to Take a Step Forward, But Is It a Giant One?” reveals that the government is requiring that H-1B holders have already received an extension of their stay in order for the spouse to qualify for a work permit (EAD) — in practical terms, that the H-1B holder have already been in the United States for six years.

As happens so often, we can describe the immigration rules, but we can’t explain the logic behind them. As Endelman and Mehta point out, nothing in the underlying immigration laws actually prohibits H-4 spouses from working in the first place. This is all a matter of agency “interpretation” (though I’d prefer the word “overthinking”).

A January 31 press release from Homeland Security (DHS) contains some positive changes for students and H-1B workers — all with the headlined goal of attracting and retaining highly skilled immigrants.

With the caveat that nothing is final until the immigration folks work out regulations and policies (which can take months), here is what we have to look forward to:

• Eligibility for a 17-month extension of optional practical training (OPT) for F-1 international students with a prior degree in Science, Technology, Engineering and Mathematics (STEM). At the moment, F-1 students are limited to 12 months of OPT.  DHS also plans to continually review emerging fields for possible inclusion in the list of eligible STEM degree programs.
• Allow spouses of F-1 students to enroll in part-time study academic classes (currently, they are limited to taking recreational or vocational courses).
• Allow spouses of H-1B holders (H-4 visa holders) who are waiting for USCIS action on an adjustment of status (green card) application to apply for work authorization after meeting a minimum period of H-1B status in the U.S.
• Broaden the scope of types of evidence that outstanding professors and researchers can present in order to prove their academic achievement in support of their employment-based immigrant visa applications.
• Treat E-3 visa holders from Australia and H-1B1 visa holders from Singapore and Chile the same as related work visa holders by allowing them to continue working with their current employer for up to 240 days while their petitions for extension of status are pending, assuming these petitions were filed in a timely manner.
• Launch an initiative called “Entrepreneurs in Residence” at the end of February  2012, which will bring together high-level representatives from the entrepreneurial community, academia, and various federal government agencies to discuss how to maximize current immigration laws’ potential to attract foreign entrepreneurial talent.

All very sensible reforms — why didn’t someone think of them sooner?

I’ve seen an unusual amount of media awareness lately of  how people coming to the U.S. on temporary or permanent work visas can provide both a cultural and an economic boost to this country — and how (no one should be surprised here) tough those visas can be to get.

First, in the program/magazine for “The Wild Bride,” a hot-selling show at Berkeley Rep Theatre, there was a surprisingly long discussion of what it took, visa-wise, to bring the Kneehigh Theatre group “direct from England.”

The theatre’s general manager, Karen Racanelli, “worked several late nights, poring over substantial piles of federal paperwork.” (And that was with a lawyer’s help!)

The article goes on to describe how they applied for a P-1 visa for the on-stage ensemble, meant for internationally recognized entertainers; and a P-1S visa for their directors, designers, and assistants. Any or all of those visas could have been denied if U.S. Citizenship and Immigration Services (USCIS) hadn’t been convinced that the ensemble had received a truly international level of recognition, or that a particular individual was inadmissible. (Even performers of tabloid-level fame aren’t immune from being found inadmissible — see, for example, my article on “International Celebrities Denied U.S. Entry Visas.”)

Look how hard the USCIS regulations make it to qualify for this visa, by saying that the entertainment group must have been: “recognized internationally as being outstanding in the discipline for a sustained and substantial period of time,” and that each person applying for the visa must have “had a sustained and substantial relationship with the group (ordinarily for at least 1 year) and provide[] functions integral to the performance of the group.” Gulp. Even if it’s true, what a bother to prove. (By the way, the regs are at 8 C.F.R. Section 214(p).)

Lucky for us viewers, everyone got their visas — and a good thing, because as Karen also noted, “They need their whole team together to do what they do.”

That wasn’t all for recent media mentions of visas. Angela Woodall of the Oakland Tribune recently ran an article called, “Oakland Eyes Pay-to-Play Visa Program for Ballpark, New Coliseum.” The EB-5 visa is on center stage this time, offering, as it does, an opportunity for international investors to gain a green card through a U.S. business investment of at least $1 million (or $500,000 in an economically troubled area).

Given Oakland’s need for capital, city leaders are actively looking for foreign investment for some of its big projects.

Getting an EB-5 green card is not as easy as laying down the cash, however. As the article notes, the investor receives a “conditional” green card that runs out after the first two years — and can be converted to permanent U.S. residence only if the investor meets various conditions in terms of having actually sunk the money in and created ten new U.S. jobs. A surprising number of investors are denied at this stage, and have to leave their money, and their new U.S. home, behind. For details on this visa, see these articles on “Investment-Based (EB-5) Green Cards.”