USCIS
Reaches H-1B Cap for Fiscal 2005
USCIS announced, at approximately 8:00 pm on October 1,
2004, the first day of fiscal year 2005, that it has enough
H-1Bs in the pipeline to meet the fy 2005 cap. All cap-subject
cases received after the end of the business day October
1 will be returned.
UPDATE ON H1B 7TH YEAR EXTENSION REQUIREMENTS
The US Citizenship and Immigration Services (“USCIS”)
has advised that a request for an H1B extension beyond
the 6th year must be filed no less than 365 days AFTER
the date that the labor certification application or employed-based
(“EB”) immigrant petition was filed. If the H1B extension
is filed before the labor certification has been pending
for at least 365 days, then the H1B extension is subject
to denial, even if the extension would not take effect
until after the 365 days.
CIS
Reports on Total H-1B Usage for FY 2003
An October 22, 2003 CIS Fact Sheet reports on total
H-1B usage for FY 2003, including the number of petitions
filed, as well as the number of petitions approved for
both continuing and initial employment.
News
on H-1B Visa Senate Hearings
At a Senate hearing, officials from two companies said
a planned reduction in the number of H-1B visas that can
be issued to foreign workers could make it harder to fill
IT jobs. But the president-elect of the IEEE's U.S. chapter
called for longer-term solutions to the lack of qualified
workers. (Sep. 22, 2003)
In other news from the Senate Hearing, Officials from
Intel and Ingersoll-Rand say more H-1B visas are needed
to fill technical positions when the companies can't find
qualified U.S. candidates. (Sep. 17, 2003)
BCIS
Announces Latest H1-B Petition
OVERVIEW OF H-1B TEMPORARY WORK VISA
The H-1B categories apply to aliens coming temporarily
to perform services in a specialty occupation, or as a
fashion model of distinguished merit and ability. The
FY2001, 2002, and 2003 cap on H1-B admissions was 195,000
workers. Currently, the annual Congressional cap for H-1B
visas is 65,000 workers.
Labor
Condition Application
The first step to hiring most H-1B workers from outside
the U.S. is for the employer to file a labor condition
application (LCA) with the Department of Labor (DOL).
Then the employer is required to file the LCA approval
notice with the Petition for Alien Worker.
Some terms and conditions of the H-1B classification:
Work authorization for H-1B foreign specialty workers
is employer-specific (i.e. limited to employment with
the approved employer/petitioner);
A change of employer requires a new H-1B petition; under
some circumstances, a nonimmigrant who was previously
issued an H1-B visa or provided H1-B nonimmigrant status
may begin working for a new H1-B employer as soon as the
new employer files a "nonfrivolous" H1-B petition for
the nonimmigrant;
Multiple employers require multiple H-1B petitions;
The employer is responsible for return transportation
costs for an employee terminated prior to the end of the
approved period of employment;
H-1B foreign specialty workers are not required to maintain
foreign residence and may seek permanent residence in
the U.S.
Dependents
Dependents (spouses and unmarried children under 21 years
of age) of H-1B workers are entitled to H-4 status with
the same restrictions as the principal. Dependents may
not be employed under the H-4 classification;
Including more than one worker in a petition: Each petition
may only include one worker.
H-1B1
Specialty Occupations
The H-1B1 category applies to an alien coming temporarily
to perform services in a specialty occupation which requires
the theoretical and practical application of highly specialized
knowledge requiring completion of a specific course of
higher education.
Document
Requirements for H-1B Classification Petition
The petition should be filed by the U.S. employer with:
- A certified labor condition application from the Department
of Labor;
- Copies of evidence that the proposed employment qualifies
as a specialty occupation;
- Evidence the alien has the required degree
- Copies of evidence of education and experience which
is equivalent to the required U.S. degree;
- A copy of any required license or other official permission
to practice the occupation in the state of intended employment;
and
- A copy of any written contract between the employer
and the alien or a summary of the terms of the oral agreement
under which the alien will be employed.
H-1B2
Research and Development Project
The H-1B2 category applies to an alien coming temporarily
to perform services of an exceptional nature relating
to a cooperative research and development project administered
by the Department of Defense.
Petition
Document Requirements
The Petition for Alien Worker must be filed by the U.S.
employer and must be filed with:
- A description of the proposed employment and evidence
the services and project meet the above conditions; and
- A statement listing the names of all aliens who are
not permanent residents who have been employed on the
project within the past year, along with their dates of
employment.
H-1B3
Fashion Model
The H-1B3 category applies to a fashion model who is nationally
or internationally recognized for achievements, to be
employed in a position requiring someone of distinguished
merit and ability.
Petition
Document Requirements
The Petition for Alien Worker should be filed by the U.S.
employer with:
- A certified labor condition application from the Department
of Labor;
- Copies of evidence establishing that the alien is nationally
or internationally recognized in the field of fashion
modeling. The evidence must include at least two of the
following types of documentation which show that the person:
- Has achieved national or international recognition in
his or her field as evidenced by major newspaper, trade
journals, magazines or other published material;
- Has performed and will perform services as fashion model
for employers with a distinguished reputation;
- Has received recognition for significant achievements
from organizations, critics, fashion houses, modeling
agencies or other recognized experts in the field; and
- Commands a high salary or other substantial remuneration
for services, as shown by contracts or other reliable
evidence.
Copies of evidence establishing that the services to be
performed require a fashion model of distinguished merit
and ability and either:
- Involve an event or production which has a distinguished
reputation; or
- The services are as participant for an organization
or establishment that has a distinguished reputation or
record of employing persons of distinguished merit and
ability.
Hiring
of Foreign Workers
Overview
An
immigrant is a foreign national who has been authorized
to live and work permanently in the United States. If
you want to become an immigrant based on the fact that
you have a permanent employment opportunity in the United
States, or if you are an employer that wants to sponsor
someone for lawful permanent residency based on permanent
employment in the United States, you must go through a
multi-step process.
First,
foreign nationals and employers must determine if the
foreign national is eligible for lawful permanent residency
under one of USCIS' paths to lawful permanent residency.
Second,
most employment categories require that the U.S. employer
complete a labor certification request (Form ETA 750)
for the applicant, and submit it to the Department of
Labor's Employment and Training Administration. Labor
must either grant or deny the certification request. Qualified
alien physicians who will practice medicine in an area
of the United States which has been certified as underserved
by the U.S. Department of Health and Human Services are
relieved from this requirement. You may wish to read more
about this program.
Third,
USCIS must approve an immigrant visa petition, Form I-140,
Petition for Alien Worker, for the person wishing to immigrate
to the United States. The employer wishing to bring the
applicant to the United States to work permanently files
this petition. However, if a Department of Labor certification
is needed the application can only be filed after the
certification is granted. The employer acts as the sponsor
(or petitioner) for the applicant (or beneficiary) who
wants to live and work on a permanent basis in the United
States.
Fourth,
the State Department must give the applicant an immigrant
visa number, even if the applicant is already in the United
States. When the applicant receives an immigrant visa
number, it means that an immigrant visa has been assigned
to the applicant. You can check the status of a visa number
in the Department of State's Visa Bulletin.
Fifth,
if the applicant is already in the United States, he or
she must apply to adjust to permanent resident status
after a visa number becomes available. You may wish to
read about application procedures on becoming a permanent
resident while in the United States. If the applicant
is outside the United States when an immigrant visa number
becomes available, he or she will be notified and must
complete the process at his or her local U.S. consulate
office.
Eligibility
There
are five categories for granting permanent residence to
foreign nationals based on employment skills. If you are
an employer and are unsure which employment category applies
to the foreign national you wish to sponsor, or if you
are a foreign national and want more information on which
category matches your particular situation, click one
of the employment categories:
EB-1
Priority Workers
-
Foreign nationals of extraordinary ability in the sciences,
arts, education, business or athletics
- Foreign national that are outstanding professors or
researchers
- Foreign nationals that are managers and executives subject
to international transfer to the United States
EB-2
Professionals with Advanced Degrees or Persons with Exceptional
Ability
-
Foreign nationals of exceptional ability in the sciences,
arts or business
- Foreign nationals that are advanced degree professionals
- Qualified alien physicians who will practice medicine
in an area of the U.S. which is underserved. Read more
about this particular program.
EB-3
Skilled or Professional Workers
-
Foreign national professionals with bachelor's degrees
(not qualifying for a higher preference category)
- Foreign national skilled workers (minimum two years
training and experience)
- Foreign national unskilled workers
EB-4
Special Immigrants
-
Foreign national religious workers
- Employees and former employees of the U.S. Government
abroad
EB-5
Immigrant Investors See section on "Immigrant Investors"
available one this web site.
EXCEPTIONAL
ABILITY
The
EB-2 classification includes: aliens who are "members
of the professions holding advanced degrees or their equivalent"
and aliens "who because of their exceptional ability
in the sciences, arts, or business will substantially
benefit the national economy, cultural, or educational
interests or welfare of the United States."
A
petition for a foreign professional holding an advanced
degree may be filed when the job requires an advanced
degree (beyond the baccalaureate) and the alien possesses
such a degree or the equivalent. The petition must include
documentation, such as an official academic record showing
that the alien has a U.S. advanced degree or a foreign
equivalent degree, or an official academic record showing
that the alien has a U.S. baccalaureate degree or a foreign
equivalent degree and letters from current or former employers
showing that the alien has at least 5 years of progressive
post-baccalaureate experience in the specialty.
Qualified
alien physicians who will be practicing medicine in an
area of the United States certified by the Department
of Health and Human Services as underserved may also qualify
for this classification. Read more about this program.
In
order to be classified as having exceptional ability in
the sciences, arts, or business, the individual must provide
documentation of three of the following:
-
An official academic record showing the alien has a degree,
diploma, certificate or similar award from a college,
university, school or other institution of learning relating
to the area of exceptional ability;
-
Letters documenting at least ten years of full-time experience
in the occupation being sought;
-
A license to practice the profession or certification
for a particular profession or occupation;
-
Evidence that the alien has commanded a salary or other
remuneration for services which demonstrates exceptional
ability;
-
Membership in professional associations;
Recognition
for achievements and significant contributions to the
industry or field by peers, government entities, professional
or business organizations. If the above standards do not
apply to the petitioner's occupation, other comparable
evidence of eligibility is also acceptable.
EB-2
petitions must generally be accompanied by an approved,
individual labor certification from the Department of
Labor on Form ETA-750. Please see our section entitled
"Labor Certification" for more information.
If
you are a worker with exceptional ability in the sciences,
arts, or business, you may apply to waive the requirement
that you have a job offer if such a waiver would be in
the national interest. To apply for a national interest
waiver, you must submit Department of Labor Form ETA-750B.
Please contact the Law Office of Paul B. Christensen,
P.A. for additional information.
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