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  • bitzbytz
    07-13 02:24 PM
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  • Blog Feeds
    02-10 08:50 PM
    Most lawyers that are versed in the H1B visa process, are getting busier and busier these days. As we are nearing the April 1, 2010 filing deadline for the H1B visa. Many speculations out there as to when will the Cap be reached this year. The economy is still in recovery mode, and employers are careful before hiring. Yet, many Immigration experts feel the Cap will be met early this year, but when is the big question.

    With drastic changes to the Labor Condition Application (http://www.visalawyerblog.com/2009/07/icert_portal_for_lca_filing.html)process (now taking more than 7 days to process), as well as unreasonable denials (http://www.visalawyerblog.com/2009/08/h1b_visa_lawyer_about_icert_wo.html), planning early is the key to a successful H1B case this year. But in this post, I want to go back to the basics, the Cap and the legislative background.

    Background

    On October 21, 1998 Congress passed, and the President signed into law, the much debated American Competitiveness and Workforce Improvement Act of 1998, Pub. L. No. 105-277 (hereinafter ACWIA). This legislation was first introduced by Senator Spencer Abraham (R-MI), the Chairman of the Senate Subcommittee on Immigration, in response to the inadequate numbers of H-1B visas available in any fiscal year. As part of the Immigration Act of 1990, Congress imposed a 65,000 per year cap on these visas. In 1997, the cap was reached prior to the end of the fiscal year. The situation grew to crisis proportions in fiscal year 1998 when all 65,000 visas numbers were taken in May of 1998.

    In early March 1998, Senator Abraham introduced a bill entitled, "The American Competitiveness Act." The legislation was introduced on the heels of numerous reports and hearings concerning the high tech worker shortage in the United States. The primary goal of the legislation was to address the looming exhaustion of the H-1B professional or specialty occupation worker visa numbers. (http://www.h1b.biz/lawyer-attorney-1137085.html)

    The ACWIA went through many different stages before an agreement could be reached. A complete elimination of the cap had originally been proposed by Senator Abraham. The legislation was then modified to increase the number of H-1B visa numbers available during the government fiscal year; provide additional funds for scholarships in the computer science and mathematics areas; increase enforcement of the Department of Labor component of the H-1B visa process; and provide clarification on the prevailing wage requirements of the process. The legislation also addressed permanent residence by providing for an extension of the H-1B visa should a permanent residence petition be pending, and through restructuring the allocation of the employment-based immigrant visa numbers.

    This legislative game between conservative isolationists/liberal protectors of the U.S. workforce and moderate Democrats and Republicans supporting business needs and demands, caused chaos among U.S.-based businesses in need of skilled professional workers. From May 11, 1998 until October 1, 1998 U.S. businesses, research institutions and other organizations were unable to recruit foreign workers as temporary professionals. With the U.S. economy still booming and unemployment rates remaining at an all-time low, businesses, especially in the high tech sector, encountered many problems as a result of the cut-off in H-1B visa availability. These problems included, but were not limited to, taking employees off the U.S. payroll, sending employees back to their home country or to sites outside the U.S. as well as the termination of some critical development projects.

    Requirements in the Statute

    The ACWIA purportedly balances the need for increased professional visas numbers for foreign workers and the desire to protect the U.S. workforce. The following is a summary of the significant changes made by the legislation.
    A. Temporary Increase in the Number of Professional Visas Available

    There will be an increase from 65,000 to 115,000 visas for fiscal year 1999 and 2000 (through September 30, 2000). In fiscal year 2001, 107,500 visas will be available. Beginning October 1, 2001 the numbers will revert back to 65,000.
    B. Electronic Postings

    LCA notices may be posted electronically in situations without a bargaining representative. This provision was effective upon date of enactment.
    C. Attestations Required for Employers Dependent Upon Foreign Professionals

    U.S. employers of 51 or more employees, whose workforce is comprised of 15% or more foreign nationals in the H-1B category are considered dependent employers and must make certain attestations. Employers will also be considered dependent if they employ 26- 50 full time employees and have more than 12 H-1B employees or if they employ 7 -25 employees and have more than 7 H-1B employees.

    The dependent employer must attest that it has not and will not displace a U.S. worker within 90 days before and 90 days after filing the visa application. This attestation carries through to employers who place employees at another worksite. The H-1B dependent employer must also attest that it has taken good faith steps to recruit U.S. workers using industry wide standards and has offered the position to any U.S. worker who is equally or better qualified for the job the foreign worker is sought.

    H-1B employees with a Master�s degree or a salary of $60,000 or higher are not included in the attestation requirements and for the first 6 months following the implementation will not be included in the dependent employer calculation.
    D. Increased Enforcement and Penalties for Violations

    The Department of Labor may fine employers between $1,000-$35,000 per violation and preclude participation in the H-1B program for up to three years.
    E. Back Benching H-1B Employees

    Employers must pay H-1B nonimmigrants the wage stated on the H-1B petition even if the beneficiary is in nonproductive status. This does not apply to non-productive time due to non work related factors.
    F. Benefits

    Employers must offer foreign workers benefits and eligibility for insurance, disability, retirement and savings plans, stock options, etc., on the same basis as offerings made to U.S. workers.
    G. Additional Fee for Use of H-1B Program

    Beginning December 1, 1998, employers are required to pay an additional fee of $500 for an initial H-1B petition and for the first extension. These fees are to be used to support job training programs and scholarships for U.S. workers.
    H. Prevailing Wage Computations

    For institutions of higher education, related or affiliated non-profit entities or non profit or governmental research organizations, the prevailing wage shall take into account employees at such institutions in the area of employment.
    I. Academic Honoraria

    Payments of honoraria may now be made to B-1 and B-2 visitors for usual academic activity lasting 9 days at an academic institution or affiliated non-profit entity or a non-profit governmental research organization. No more than 5 honorarium may be received within a six month period.

    Employers based in the U.S. now have a temporary reprieve when hiring foreign professionals. However, it is uncertain whether the 65,000 visas for this fiscal year will be adequate to meet the demand for this year and next. Some government officials estimate that visas will be unavailable as early as the beginning of May 2010. In addition, it is still unclear what is on the legislative horizon, reform or not. Pro Immigrants want to come with a proposal to reform legal immigration. U.S. employers employing foreign nationals in any capacity would be well advised to carefully monitor future legislative and regulatory proposals on the horizon. All I can say is that if you plan on hiring a foreign worker, you better call your lawyer now!!!




    More... (http://www.visalawyerblog.com/2010/02/h1b_visa_lawyer_the_filing_sea.html)





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  • karthikdurai
    02-01 09:00 PM
    Hi Everyone,

    My AP is valid until JUNE 27 2011, (Here is the line from the I-512L, Presentation of the Original Document prior to June 27 2011 allows a customs and border protection inspector at a port-of-entry to parole the named bearer) I'm travelling to India during May / June and will be entering LAX back on June25. Will this be an issue as my AP is expiring in next couple of days.

    Experts please let me know your thoughts on my situation whether it is safe to travel and getting in back will not be of an issue.

    Thanks if you can help me out

    Regards
    Karthik





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  • fittan
    03-16 03:12 PM
    HumHongeKamiyab,
    Since your I-140 is approved, your chance of I-485 RFE is very low. I think you should be ok since the key is that on the day your I-485 is approved, you must have a job offer per your labor.

    Fittan



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  • bp333
    07-17 08:06 PM
    Great job folks. Justice Prevails!





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  • mena
    11-26 11:36 AM
    Hi,

    I received an RFE on my AP and it's says Proof of that I have complied with NSEERS. Now how do I proof this as looks like nobody have got such an RFE.

    Thanks



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  • Chris Rock
    08-12 01:27 AM
    IV core,

    Thanks very much for your tireless work.

    I have some serious questions to you. Hope you will answer them. I fully understand that you are all volunteers. I am not demanding anything; rather this is a request...

    1) Does IV working on any temprory EB visa fix for people waiting for 8 years? Or IV is waiting for CIR to happen?

    2) A simple one line amendment (that is easily acceptable by the lawmakers) in a must pass bill will fix the problems of long time sufferers. Does IV have anything in its agenda?

    3) Does IV beleive in bringing releif to IV members in steps or do you want to solve all members problem in one shot? If the second case is true, is it possible in this economy?

    4) Recently many immigration related amendments are debated in congress; not for one bill but during two bills. There was no single amendment that helps the heavily retrogated categories. Why IV is not successful in requesting the lawmakers to bring up an amendment? Is there a single soul (lawmaker) sympathetic to our cause? If money is the only issue, I will donate first and persuade my friends to do the same.

    We (me and many of my friends) were once active members right from the early days of IV. We contributed and involved in every IV initiative before. Now we are in the sidelines. I strongly beleive, members like me will be active again once we see any hope. Right now there is none.





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  • snhn
    12-13 09:13 AM
    From Austin. In for whatever. Let me know How can I be helpful



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  • sledge_hammer
    05-21 04:55 PM
    Thanks kalinga_sena, StuckInTheMuck, and nashim!





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  • forgerator
    08-20 02:34 PM
    The only thing I can think of is to get hold of some relative or friend in Canada, send them $150, have them get the Scotia Bank receipts, and fedex them over to me.



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  • meridiani.planum
    07-10 09:23 PM
    Ask him to request I-140 premium processing; I think he is eligible. He will get the approval/denial in 15 days.

    http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=bc6755fe4a37a110VgnVCM1000004718190aRCR D&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1 RCRD
    since he can get H1 extension based on PD >356 days I dont think he is eligible (per that doc PP is only being opened up for people whose PD <365 days and approved-I-140 is the only way to get an extension)





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  • zilmax007
    12-02 03:53 PM
    Same here.
    Mine & my wife's 485s were wrongfully denied last year.
    We gave USCIS a chance to fix their mistake on the file. They fixed it.
    If they shouldn't have fixed it , I would be a mini millionaire by now :)
    But, my online status still shows as denied. Last month we got our
    EADs and APs renewed without any issues. So, I don't care about the
    online status.



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  • cherupally
    09-11 10:41 AM
    Hi Chirupally,

    I had similar RFE where USCIS wanted doctor's original signature.
    Doctor's filled out a new form (latest version) with all the information from the old form.No test were done again.But they signed the new form with OLD date.
    Did your doctor sign the form with new date?
    Also,are you including the old original form that you received in sealed envelope with RFE?I am include the ONLY the new sealed envelope that has latest form as the doctor discarded the old form.

    I did not receive old form. I just received the gold color form and the letter stating whats RFE about. I guess since only partial information is missing, they did not send me back the old form. I have not received the new forms from doctor yet. I will get it today. I guess he is going to sign with today's date only. Hope this answers your questions.





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  • MetteBB
    05-11 11:58 AM
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  • eilsoe
    05-12 04:31 AM
    I like 'em :)

    The dont is quite hard to make out on some of 'em, but overall I think they're great =) And I'm not just saying that because you're danish :lol:





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  • Earned_GC
    08-03 06:35 AM
    This is an interesting question and I would like to see the answer on this.

    What happens to these people who can not file AOS in the current time, and change there job based on I-140.



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  • ssterian01
    07-05 01:33 PM
    Thanks a lot, prem_goel.
    I will probably have to change emplyers based on EAD and lose my H1B status and she will lose her H4. Before that, I intend to put her into ESL(English as a Second Language) school to get her an F1 visa so she can stay inside US until I get my I485 approved

    I read eveywhere and talked briefly to my lawyer about it and he had no objections and didn't raise any red flags so I assumed it would be fine to proceed with F1 plan.
    Now I have to give a second thought I guess. I will go to my lawyer and try to get all the answers.

    I understand the risks involved with me getting the I485 denied. I heard there are very low. Also, I read that adding F1 to I485 app is allowed and usual procedure, are you sure it might be rejected ? (my wife entered as H4 in the country, then will go on F1). I know there is always a chance to get denied.

    How big would the combined risks be to get screwed here (wither 485 denied or F1 spouse not added on I485)? Like very low, low, medium or likely ? :)

    Thanks a bunch





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  • dpp
    12-30 09:31 AM
    What you are saying may be logically correct, but USCIS needs the proof on paper. USCIS needs I-140 approval notice to give you 3-year H1B extension. You can try without that, but not gauranteed anything. Same with I-140 applying also, they need original copy of labour approval to file I-140. USCIS has proper application rejection procedures for all this. May be they are not having proper Approval procedures, but they do have proper Rejection procedures depending on documents required to file something.

    So finally, you have to get I-140 approval notice, otherwise they won't grant 3-year H1B extension.

    I do not see any reason why uscis cannot give 3 year extension with ONLY 485 receipt and I-140 case number printout. With these, USCIS should be able to determine the priority dates and whether the person is retrogressed or not.
    An actual case would be helpful.





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  • meridiani.planum
    07-11 04:05 AM
    In case his I-140 was approved then there are no problems for this scenario right?

    yes if I-140 is approved it makes a world of difference:
    - keeps his GC process alive even if he changes employers since he is past the 180 day mark of 485 filing.
    - he gets a 3 year H1 extension/transfer if his PD is not current.
    thats the reason I advise him to hang on until the I-140 comes through; esp since he has a 2004 PD and its an utter waste of four-five years if that goes.
    Even if employer is not treating you well, hang in there and smile; your turn to get even-steven will come soon enough.





    cheg
    08-21 03:15 PM
    I think you're okay. Hopefully USCIS made a note in their system when your application was first sent and you just needed to correct something. Did you ask your lawyer what he thinks will happen?

    Gurus,
    I need help please!

    My employer applied for my H1B renewal very close to the expiration of my first H1B and I was told today that they got back the application becuase they made a mistake on the check. unfortunalty, they got back the application after my first H1B expired. They sent back the application with the right check and we have not heard anything yet. Am I ok or am I in a big trouble? Please, help! Thank you all.





    srkamath
    08-06 04:52 PM
    Friends, I Received the magic email today!

    Yes - I cant believe my eyes, my I-485 has been approved today and card production ordered.

    I do have a question: I could not file for my wife's i-485 in July/2007. So, we filed for my wife's application on Aug/01/2008 (Did a overnight express mail on July-31st) as my PD is current as of Aug-1st. So far her application check has not been deposited.

    What will happen now? Is she out of status? I am getting really concerned. Gurus help me out?

    Thanks in advance.

    A green dot guaranteed for the response :)

    Some details:
    I-485 Receipt Date: July/2/2007
    I-140 Approval Date: July/3/2006
    PD: 02/02/2006

    There is a follow to join provision, i'm not very sure about the details but, i believe that you can apply for her 485 before you get your's approved.
    You might want to research this. Good luck.



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