Business Immigration Monthly – April 2011

Volume 7, Issue 4, April 2011

Business Immigration Monthly

FEATURED ARTICLE: AVOIDING EMPLOYMENT PITFALLS by Sherry Neal

Pitfall #1: The H1-b Cap

The H1-B temporary visa is for occupations where the minimum requirement is at least a baccalaureate degree. There is currently a limit of 65,000 H1-B‘s per fiscal year plus an additional 20,000 for graduates with a U.S. Masters Degree or higher. The H1-B cap results in a delay in hiring foreign nationals.

There are several things that companies can do to avoid a delay or interruption in employment. First, companies should audit its current workforce of foreign students on optional practical training and plan on filing a change of status to H1-B before the H1-B cap is reached even if the foreign student still has several months remaining on the optional practical training. Second, companies should plan ahead for future hires. The immigration laws allow a company to file an H1-B petition up to six months before the start date for the H1-B worker (but note that the employer needs to have work available rather than “speculative employment”). Third, companies should consider foreign workers who have previously been granted H1-B status. An individual who already received an H1-B within the last six years is not be subject to the cap.

Pitfall #2: Limits on Temporary Status

Most nonimmigrant classifications have a limit on the period of time that a foreign national can work in the U.S. For example, the H1-B category has a six year limit, the L-1B category for Intra-Company Transferees with specialized knowledge has a five year limit and the L1-A category for Intra-Company Transferees in a management or executive capacity has a seven year period. Once the foreign national has reached the maximum time in a temporary status, the foreign national has to return to his or her home country for one year before being eligible for another full term on the temporary status.

While most foreign nationals are aware of the limits of the non- immigrant status, if it is advisable for companies to also monitor the limit on non-immigrant status in order to avoid a disruption or termination in the services of the employee. Companies and foreign nationals should seek legal advice more than a year before the limit on the nonimmigrant status to allow time for alternative strategies. For example, a foreign national in H1-B status can extend beyond the six year limit if a green card application was filed at least a year before reaching the six year limit.

Pitfall #3: Delays At The U.S. Consulate

Foreign nationals are more likely than U.S. workers to travel internationally. Foreign nationals, except Canadian citizens, need a visa, to re-enter the U.S. and a visa can be obtained only from the U.S. Consulate outside the U.S. Immigration procedures require foreign nationals to appear in person for the visa. Some consulate have waiting periods of only a few days to obtain an interview for an appointment; however, some consulates having a waiting period ranging from a few weeks to a month. The waiting period fluctuates based upon demand.

Consult the Department of State website (www.travel.state.gov) to view the processing delays at the consulate where the foreign national will apply. Make sure the foreign national schedules the interview before leaving the U.S. and coordinates travel plans in concert with the scheduled interview. Also, the individual may face delays in getting the visa (even after appearing for the interview) as the consulate may require additional evidence and put the case through “administrative processing”. That can create a delay of several months.

Pitfall #4: Quotas on Immigration Visas:

Foreign nationals who are currently in the green card process based upon employment are often reluctant to leave their current employment until they have received the green card or until they are eligible for portability under the green card process. However, there may be alternative options that would allow a foreign national to file the I-485 Adjustment of Status application and take advantage of the portability provisions 180 days thereafter. For example, a foreign national can use a priority date from a previously filed application. Alternatively, a foreign national can use the country of birth for the spouse and fall within the quota for that country.

The employment of foreign nationals has some pitfalls that can delay or interrupt employment. However, with proactive planning there can be a solution to the pitfalls.

WHAT’S NEW

MAY VISA BULLETIN

May Visa Bulletin has been released and forward movement is seen in the India EB2 category for the first time since Aug 2010. Other categories once again show steady but, slow movement. Link to the Bulletin HERE.

H-1B CAP UPDATE

H-1b cap filings in the 1st week were substantially lower than in prior years. Link to our blog HERE.

DON NEUFELD TESTIFIES

Don Neufeld, Associate Director, Service Center Operations Directorate, U.S. Citizenship And Immigration Services, testifies before Congress on H-1b visas. Link to the article HERE.

IT HIRING ON THE RISE

IT hiring is expected to continue to increase according to a report by Spiceworks. Link to the report HERE.

SCHOOL FINED FOR H-1B VIOLATIONS

DOL fines school district almost $6 million dollars for H-1b violations. Link to press release HERE.

IMMIGRATION POLICY REPORT

Immigration Policy Center released its Second Annual Report on the DHS. Link to the report HERE.

ACCEPTABLE I-9 DOCUMENTS

Department of Homeland Security releases Final Rule on acceptable I-9 documents. Link to ruling HERE.

DEPARTMENT OF STATE REVISES FAM

Department of State revises FAM to address erroneous practice by the US Consulate in Manila denying B visas for physical therapists seeking to enter the US to take the NPTE. Link to our blog HERE.

HEALTHCARE CLIENTS…

Save the Date…October 21, 2011.

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