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USCIS to allow bundled filings for L-1 petitions

USCIS has, in a communication to stakeholders, informed that if petitioners bundle multiple L-1B petitions related to the same project, where the location and the specialized knowledge duties of the beneficiaries are the same, USCIS will consider them together. It will also consider petitions for L-1A managers included with the bundle if such persons will be managing the L-1B beneficiaries who will be working on the project. Additionally, it will consider Forms I-539, Application to Extend/Change Nonimmigrant Status, filed for a beneficiary’s qualifying dependents included in the bundle.

For the purpose of bundling L-1 petitions, USCIS has informed that petitions from the same petitioner; filed on behalf of beneficiaries employed at the same foreign entity, and who will be working on the same project at the same location, performing the same specialized knowledge duties; filed under the same service (either all premium processing or non-premium processing); filed on behalf of L-1A managers, if they will be managing the L-1B beneficiaries who will be working on the project; could be included in the bundle. However, each petition must be packaged separately with its own fees and supporting evidence.

Petitioners can also submit more than one bundle of L-1 petitions if there is more than one specialized knowledge occupation related to a project. If filing more than one bundle of petitions for beneficiaries who will be performing different specialized knowledge duties for the same project, petitioners may number each bundle for ease of processing.

USCIS has also reminded that while petitions may be submitted as a bundle, each petition must be individually supported by the required evidence. All required evidence, as well as Form G-28, Form I-907 for Premium Processing, must be included with each petition within the bundle.

Chennai Consulate to be the Sole Blanket L Visa Processing Center in India

The US Embassy in New Delhi has announced that starting December 1, 2011, the US Consulate General in Chennai will be the sole Blanket L category visa acceptance and processing center in India. Companies throughout India will be requested to send Blanket L applicants exclusively to Chennai for visa interviews. The Embassy has announced that this change is in order to streamline the Blanket L visa issuance process, and is part of the US Government's ongoing effort to provide efficient visa services throughout India.

This change, however, does not affect the spouses and children of L1 visa holders. They and individual L1A and L1B visa applicants may still be processed at any US Consulate in India. Also, this centralization affects only the location for processing of L1 Blanket visas. It does not change the law or policy for visa processing.

ALJ approves Settlement Agreement in Prince George’s County H-1B Teachers case

On September 20, 2011, the Office of the Administrative Law Judges (ALJ) of the U.S. Department of Labor, Washington, DC, issued a Decision and Order approving a Settlement Agreement between the Administrator of the Wage and Hour Division, and Board of Education of Prince George’s County in the matter of violations related to teachers in H-1B nonimmigrant status. A determination by the Administrator of the Wage and Hour Division had been issued on April 4, 2011 after an investigation that stated that the Board of Education of Prince George’s County had committed numerous violations of the Immigration and Nationality Act, specifically:

willful failure to pay wages as required,
failure to pay wages as required, and
failure to maintain documentation as required.

The violations listed were related to 1,044 H-1B workers employed by the St. George’s County Public Schools, most of which were most likely teachers on H-1B

The terms of the approved settlement include:

payment of over $4.2 million in back wages to the 1,044 workers identified in the Administrator’s determination;
agreement to a two-year debarment period in which
1. petitions filed to the Department of Homeland Security under Sections 204 (employment-based immigrant petitions) and 214(c) (employment-based non-immigrant petitions including H’s and L’s) will not be approved and
2. the Employment and Training Administration of the Dept. of Labor will invalidate the Board’s Labor Condition Applications for H-1B, E-3 and H-1B1 workers and will not accept for filing any application or attestation submitted to the Board for permanent labor certification or under the H-non-immigrant classification (including H-1B, H-1A, H-2A and H-2B);
payment of a civil penalty in the amount of $100,000 conditioned on the two-year debarment, which was reduced from over $1.7 million (if the Board does submit an application, they will be liable for the full penalty).

In addition to the Board, six individual H-1B workers in the Prince George’s County public schools had objected to the Administrator’s determination and requested hearings. Five of the six individual prosecuting parties raised only the issue of debarment, arguing that being unable to extend their H-1Bs and continue or start the permanent residency process through the Board was unfair and contractually disallowed. A sixth individual additionally objected to the Administrator’s determination for failing to address his claims of retaliation or discrimination from the Board after he raised concerns regarding the H-1B program. While the September 20, 2011 Order approved the Settlement Agreement, a subsequent Order by the ALJ dated October 5, 2011 dismissed all the cases objecting to the debarment but allowed the case regarding the possible discrimination from the Board to go forward. .

DOL postpones the effective date for final rule concerning H-2B wage methodology

The Department of Labor (DOL) has announced a 60-day postponement of the effective date for the final rule concerning the wage methodology for the Temporary Non-Agricultural Employment H-2B program, postponing the effective date from September 30, 2011 to November 30, 2011. The Wage Rule revises the methodology for calculating the prevailing wages to be paid to H–2B workers and U.S. workers recruited in connection with a temporary labor certification for use in petitioning the DHS to employ a nonimmigrant worker in the H–2B status.

DOL had published the Wage Rule on January 19, 2011 and had originally set the effective date for January 1, 2012. However, on June 16, 2011, a court issued a ruling that invalidated the January 1, 2012 effective date of the Wage Rule and ordered the DOL to announce a new effective date for the rule. Subsequently, DOL published the Final Rule on August 1, 2011, which set the new effective date for the Wage Rule at September 30, 2011, without altering the substance of the Wage Rule. In September 2011, suits was filed reliefs to bar the DOL from implementing the Wage Rule, in the US District Court for the Western District of Louisiana, Alexandria Division and the US District Court for the Northern District of Florida, Pensacola Division.

DOL has now informed that in consideration of the two pending challenges to the Wage Rule and its new effective date, it is postponing the effective date of the rule from September 30, 2011, until November 30, 2011.

OFLC issues Q&As regarding delays in issuing PWD and H1B LCAs

On September 12, 2011, the Office of Foreign labor Certification (OFLC) issued Questions and Answers regarding the delays in issuing Prevailing Wage Determinations (PWD) and H-1B Labor Condition Applications (LCA). Reminding employers that they can obtain a prevailing wage on their own without the assistance of the National Prevailing Wage Center (NPWC), OFLC observed that DOL’s regulations provide the employer with the following alternative sources for obtaining a prevailing wage in support of an H-1B application:

A wage rate set forth in a collective bargaining agreement (CBA);
A wage rate for the occupation and area of intended employment under either the Davis-Bacon Act (DBA) or the McNamara-O'Hara Service Contract Act (SCA), which are available at http://www.wdol.gov;
A wage rate produced by a survey conducted by an independent authoritative source that meets the requirements set forth in Departmental regulations; or
A wage rate produced by another legitimate source of information, including the Bureau of Labor Statistics Occupational Employment Statistics Survey (OES) data, which is available at http://www.flcdatacenter.com.

OFLC mentioned that as long as the employer provides a prevailing wage in support of its H-1B application, whether through obtaining a PWD from the NPWC or through the other sources listed above, there should not be any consequences to the foreign worker on whose behalf the H-1B application was filed.

OFLC however cautioned that if the H-1B employer selects an incorrect prevailing wage, then the employer is responsible for that wage attestation in the event of an investigation or enforcement action. The Department’s regulations state that when an employer obtains a prevailing wage determination from the NPWC, the Department of Labor will accept that wage as correct and will not question its validity, i.e. the employer is granted “safe harbor”. However, the Department cannot grant this same "safe harbor" to employers who obtain their own prevailing wages under the regulations.

USCIS publishes Final Rule establishing Transitional Worker Classification for workers in CNMI

USCIS has recently published a final rule that establishes a Transitional Worker (CW) classification for workers in the Commonwealth of the Northern Mariana Islands (CNMI). The CW classification allows employers in the CNMI to hire nonimmigrant workers who are otherwise ineligible to work. A limited number of CW visas are available each fiscal year and the numerical limitation for FY 2011 is 22,417 and for FY 2012 will be 22,416. The final rule also provides for the grant of derivative CW status to spouses and minor children of CW workers.

As per the rule, an employer may be eligible to petition for a CW worker if the employer:

Is conducting a legitimate business;
Has considered all available U.S. workers for the position;
Offers terms and conditions of employment consistent with the nature of the employer’s business in the CNMI;
Is complying with federal and CNMI employment requirements;
Files a Form I-129CW, Petition for CNMI-Only Nonimmigrant Transitional Worker, and a CW-1 Classification Supplement with USCIS; and
Submits the appropriate filing fees.

And, as per the rule, a foreign worker may be eligible for CW status if he or she is:

Ineligible for a nonimmigrant or immigrant classification under the Immigration and Nationality Act;
Entering or staying in the CNMI to work as a needed foreign national worker to supplement the resident workforce;
The beneficiary of a petition filed by a legitimate employer who is doing business in the CNMI;
Not present in the United States, other than the CNMI;
Lawfully present in the CNMI or, if not present, intending to enter the CNMI with a visa; and
Admissible to the United States or is granted any necessary waiver of a ground of inadmissibility.

USCIS has clarified that the CW visa classification is valid only in the CNMI and provides no basis for travel or work in any other part of the United States, except for nationals of the Philippines who may travel between the Philippines and the CNMI through the Guam airport.

USCIS updates FAQs on Establishing the ‘Employer-Employee’ Relationship in H-1B Petitions

Under the recently announced USCIS’ initiatives to promote startup enterprises and spur job creation, USCIS has clarified that entrepreneurs with an ownership stake in their own companies, including sole employees, may be able to establish the necessary employer-employee relationship to obtain an H1-B visa, if they can demonstrate that the company has the independent right to control their employment. To clarify this issue, USCIS has updated the existing FAQs on establishing the ‘employer-employee’ relationship in H-1B Petitions. A few relevant extracts from the updated USCIS Q&As are as below:

The memorandum provides an example of when a beneficiary, who is the sole owner of the petitioner, would not establish a valid employer-employee relationship. Are there any examples of when a beneficiary, who is the sole owner of the petitioner, may be able to establish a valid employer-employee relationship?

Yes. USCIS indicates that while a corporation may be a separate legal entity from its stockholders or sole owner, it may be difficult for that corporation to establish the requisite employer-employee relationship for purposes of an H-1B petition. However, if the facts show that there is a right to control by the petitioner over the employment of the beneficiary, then a valid employer-employee relationship may be established. For example, if the petitioner provides evidence that there is a separate Board of Directors which has the ability to hire, fire, pay, supervise or otherwise control the beneficiary, the petitioner may be able to establish an employer-employee relationship with the beneficiary.

What happens if I do not submit evidence of the employer-employee relationship with my initial petition?

If you do not initially provide sufficient evidence of an employer-employee relationship for the duration of the requested validity period, you will be given an opportunity to correct the deficiency in response to a request for evidence (RFE). However, failure to provide this information with the initial submission will delay processing of your petition.

The H1B Visa and EB-2 Green Card for Entrepreneurs and Start-up Companies

On August 2, 2011, the Obama Administration and USCIS outlined a series of initiatives to continue to promote start-up enterprises and spur job creation in the U.S. Under these initiatives, which are aimed at stimulating investment in the U.S., qualified entrepreneurs, including sole employees, can now utilize the H1B visa to establish and run a business in the U.S. temporarily. Further, qualified entrepreneurs can also seek permanent resident status through the EB-2 category, either through the labor certification process or through the National Interest Waiver (NIW) category.

These initiatives significantly enhance the visa options that would be available to an alien entrepreneur desirous of setting up an enterprise in the U.S. and running it, both temporarily and as a permanent resident. While categories like the E-1/E-2 Treaty/Trader visa, L-1A visa and the EB-5 Investment Green Card continue to be a good option for many investors and entrepreneurs, these categories remain elusive for nationals of certain countries, those who do not necessarily have business or companies abroad, and those who have money to invest but cannot meet the high threshold set out for the EB-5 program. For the benefit of our readers, we present a synopsis of these initiatives, focusing on the H1B visa and EB-2 Green Card options, as they apply to an alien entrepreneur.

H1B Visas for Entrepreneurs

Under the new initiatives, USCIS has clarified its policies on the important aspect of ‘employer-employee relationship’ for H1B purposes for individuals with an ownership interest in their own companies. These individuals, even if they are the sole employee may be able to establish the necessary employer-employee relationship to obtain an H1B visa if they can demonstrate that the company has the independent right to control their employment. Thus, USCIS cannot deny a petition solely because the beneficiary of the petition is the only employee or because he or she has an ownership in the company.

USCIS has clarified that a corporation is a separate legal entity from its stockholders or sole owner, and a corporation may petition for, and hire, their principal stockholders as H1B temporary employees. The facts must show that there is an independent right to control by the petitioner over the employment of the beneficiary. Only then can a valid employer-employee relationship be established. For example, if the petitioner provides evidence that there is a separate Board of Directors which has the ability to hire, fire, pay, supervise or otherwise control the beneficiary, the petitioner may be able to establish an employer-employee relationship with the beneficiary.

While many practitioners have argued for many years that this approach should be allowed under the regulations, it is anticipated that with this new initiative, some restrictions that had limited the ability of entrepreneurs to qualify for H1B visa have been relaxed.

To know more about the impact of these initiatives on the H1B visa, please read the Q&As here.
EB-2 Green Card for Entrepreneurs

Under the new initiatives, USCIS has also explained how entrepreneurs may obtain an Employment-Based Second Preference (EB-2) Immigrant Visa if they satisfy the existing requirements within the current confines of the immigrant visa categories. The EB-2 visa classification includes foreign workers with Advanced Degrees and individuals of Exceptional Ability in the arts, sciences, or business.

An entrepreneur can qualify as a member of a profession holding an Advanced Degree if:
- He or she will be working for a U.S. employer who files a petition on his or her behalf;
- He or she is a member of the profession holding an advanced degree or foreign equivalent degree;
- The underlying position requires, at a minimum, a professional holding an advanced degree or the equivalent;
- The petitioning employer has received a certified labor certification from the Department of Labor; and
- He or she meets all the specific job requirements listed on the individual labor certification.
Note: Not every individual with an Advanced Degree will qualify. It must be demonstrated that the occupation is a ‘profession’. Regulations define ‘profession’ as any occupation for which a U.S. baccalaureate degree or its foreign equivalent is the minimum requirement for entry into the occupation. Occupations include but are not limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, colleges, academics, or seminaries.

An entrepreneur can qualify as an individual of Exceptional Ability in the sciences, arts, or business if:
- He or she will be working for a U.S. employer who files a petition on his or her behalf;
- He or she has exceptional ability in the sciences, arts, or business;
- He or she will be working in the field of exceptional ability;
- He or she will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States;
- The petitioning employer has received an individual labor certification from the Department of Labor; and
- He or she meets all the specific job requirements listed on the individual labor certification.
Note: Regulations define Exceptional Ability as degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.

It is still unclear if and how the Department of Labor will relax its own regulations regarding the sole ownership/shareholder issue.

To know more about the EB-2 Green Card for entrepreneurs, please read the Q&As here.
EB-2 Green Card National Interest Waiver (NIW) for Entrepreneurs

Generally, an EB-2 visa petition, as above, requires a job offer and a Department of Labor certification. One or both of these requirements can be waived under existing law if the petitioner demonstrates that approval of the EB-2 visa petition would be in the national interest of the United States. A National Interest Waiver (NIW) under the EB-2 category exempts the petitioner from the normal requirement of a job offer, and thus from obtaining a labor certification from the U.S. Department of Labor.

Under the new initiatives of USCIS, entrepreneurs may qualify for a National Interest Waiver (NIW) under the EB-2 immigrant visa category if they can demonstrate that their business endeavors will be in the interest of the United States, that their activities will substantially benefit the national economy, cultural or education interests or welfare of the United States.

Further, under the NIW category, an entrepreneur may be able to self-petition as an advanced degree professional or exceptional ability foreign national without the need for a job offer or labor certification. However, to file for a NIW, the entrepreneur must first demonstrate that he or she is either a member of the profession holding an advanced degree or an individual of exceptional ability.

USCIS has further clarified that for a National Interest Waiver under the EB-2 category:
- The entrepreneur must seek employment in an area that has substantial intrinsic merit. It is important for the entrepreneur to focus on the proposed employment rather than the entrepreneur’s qualifications.
- The entrepreneur must demonstrate that the proposed benefit to be provided will be national in scope. The entrepreneur might be able to demonstrate that the jobs his or her business enterprise will create in a discrete locality will also create (or “spin off”) related jobs in other parts of the nation. Or, the entrepreneur might be able to establish that the jobs created locally will have a positive national impact.
- The entrepreneur must present a significant benefit to the field of endeavor and must document how the entrepreneurial enterprise will benefit that field.
An entrepreneur who demonstrates that his or her business enterprise will create jobs for U.S. workers or otherwise enhance the welfare of the United States may qualify for an NIW. USCIS has explained that while the requirements of the NIW visa category have not necessarily been relaxed, it hopes that the new initiative opens the door to new immigration options for entrepreneurs.

To know more about the EB-2 National Interest Waiver for entrepreneurs, please read the Q&As here.

Conclusion

As mentioned above, these initiatives will be extremely helpful for individuals who cannot qualify for the E-1 or E-2 visas because their countries are not a “treaty” country and for individuals who do not have companies abroad to qualify for the L-1 visa. Also, entrepreneurs do not necessarily have to secure $500,000 to $1,000,000 in order to qualify for the EB-5 immigrant visa.

Foreign entrepreneurs who want to start a company in the U.S. may now become eligible for an H1B visa or an EB-2 Green Card as entrepreneurs, if otherwise qualified.

VisaPro, a leader in employment-based U.S. immigration and nationality law can help you navigate these exciting new opportunities. VisaPro has specialized expertise in guiding companies and individuals who want to establish and grow their business in the U.S. VisaPro has the tools you need to not only navigate the immigration maze, but also to assist you in actually establishing your business. We have assisted individuals from all over the world establish businesses and invest all throughout the U.S.

Contact VisaPro to set up a consultation with an experienced immigration attorney if you have any questions regarding the H1B Visa, EB-2 Green Card, EB-2 NIW,EB-5 Green Card and the entrepreneur initiative. We will be happy to guide you through the process.

We cover the latest happenings on Start-up visas in Immigration Monitor, our monthly newsletter. Click here to subscribe to Immigration Monitor.

Senate Approves Strict Rules on Hiring H1-B Workers

The U.S. Senate agreed on Friday to set restrictions on the hiring of H-1B workers by financial services firms that receive federal bailout funds, but it didn't bar the hiring of foreign workers as proponents had sought.

U.S. Sens. Bernie Sanders (I-Vt.) and Chuck Grassley (R-Iowa) had proposed legislation this week to prohibit any firm that received money under the Troubled Assets Relief Program (TARP) from hiring foreign workers.

The amendment, part of the stimulus plan being debated in the Senate, didn't include a blanket restriction on H-1B use and instead set a series of strict standards on H-1B hiring.

The Senate's amendment would require companies receiving TARP funds, mostly financial services firms with a lot of bad mortgages, to comply with hiring rules set for "H-1B dependent" firms -- those with more than 15% of their workers on H-1B visas.

Any firm receiving TARP funds will be automatically considered H-1B dependent, regardless of the percentage of H-1B workers on the payroll.

The H-1B dependent designation subjects employers to a number of provisions, including a good faith effort to hire U.S. workers first.

Sen. Grassley said in a statement late Friday that the modified bill means companies receiving TARP funds would still be able to hire H-1B visa holders, but would have to comply with the "H-1B dependent"-employer rules "which include attesting to actively recruiting American workers; not displacing American workers with H-1B visa holders; and not replacing laid off American workers with foreign workers."

"Hiring American workers for limited available jobs should be a top priority for businesses taking taxpayer money through the TARP bailout program," Sen. Grassley said.

"With the unemployment rate at 7.6 percent, there is no need for companies to hire foreign guest workers through the H1-B program when there are plenty of qualified Americans looking for jobs," Sen. Grassley said.

Both Sen. Grassley and Sen. Sanders argue that U.S. firms have a moral obligation to protect U.S. workers' jobs.

This amendment may be tougher than the existing law. There are now exceptions to the H-1B dependency rule for foreign workers who are paid at least $60,000 in base wages or who have advanced degrees -- but those exceptions don't appear in the amendment. It is thus believed that the companies affected by this proposed law would be unlikely to hire H-1B workers.

The fate of this H-1B amendment rests on the fate of the stimulus bill before the Senate today, and if that's approved it will head to a conference where other changes are possible.

Important Changes and Clarifications for the H1B Application Process

U.S. Citizenship and Immigration Services (USCIS) has issued clarifying regulations today, explaining how exactly the H-1B application process will be handled this year. Some important changes have been announced to the process, including the benefit of having five business days to file the petition even if the cap runs out on the first day, prohibition on filing of multiple petitions by the same employer for the same employee, explanation of the Master's cap and a clarification on the Premium Processing rules.

USCIS issued an interim final rule today that prohibits employers from filing more than one petition for an H-1B visa for a single employee in a fiscal year. The change is intended to promote a fair and systematic process for H-1B petitioners. This rule ensures that companies filing H-1B petitions that are subject to numerical limits will have an equal chance to receive consideration for an H-1B worker.

The interim final rule will become effective upon publication in the Federal Register and may be accessed via USCIS' website at www.uscis.gov.

Background

U.S. businesses utilize the H-1B program to employ foreign workers in fields that require theoretical and practical expertise in specialized occupations requiring a bachelor's degree or higher (or its equivalent), such as scientists, engineers, or computer programmers. By law, USCIS cannot grant more than 65,000 new H-1B visas per fiscal year, subject to certain limited exceptions. The first 20,000 H-1B petitions filed on behalf of aliens with U.S.-earned masters' or higher degrees are exempt from the H-1B numerical limitation of 65,000. USCIS administers a separate "20,000 cap" for such exempt petitions.

USCIS will use a random selection process for all the master's degree or higher cap-exempt cases received on the first five business days available for filing H-1B petitions for a given fiscal year, if necessary. In the event that the U.S. master's exemption limit is reached on the first five business days, USCIS will first conduct the random selection process for such petitions before it begins random selection for petitions to be counted toward the 65,000 cap. Petitions eligible for the U.S. master's degree or higher exemption that are not selected to receive an H-1B visa number from the 20,000 cap will be considered with the other H-1B petitions in the random selection for the 65,000 cap filed on the first five business days.

Cap-Exempt Petition

USCIS also notes that petitions for new H-1B employment are exempt from the cap if the aliens will work at the defined institutions of higher education or a related or affiliated nonprofit entities, or at nonprofit research organizations or governmental research organizations. Thus, employers may continue to file petitions for these exempt H-1B categories regardless of H-1B visa number availability.

Cap Procedures

USCIS will use the following process for handling H-1B petitions subject to the FY 2009 cap:

April 1, 2008 is the first day petitions may be received for an October 1, 2008 start date. When it is determined that the numerical limitations have been reached, USCIS employs a random selection process to choose among the petitions received on the "final receipt date." If the "final receipt date" falls within any one of the first five business days, the random selection will be run using all the cap-subject petitions received on those five days.

USCIS will reject and return the filing fee(s) for all cap-subject H-1B petitions that are not selected in the process described above. The new rule clarifies that this provision only applies to petitions that indicate they are cap-subject. If a petitioner claims to be exempt from the cap and is later found to be subject to the cap, USCIS will not refund or return fees and that petition will be denied if no cap numbers are available.

Petitions for the FY 2009 cap received before April 1, 2008 will be rejected. A petition is considered received when USCIS takes possession of and stamps the petition as received, not by the date the petition is postmarked.

In order to fully utilize its data entry and initial processing capacity, USCIS may choose to distribute filings received at one service center to other service centers for data entry. In the event that USCIS exercises this option, petitioners may receive receipt notices or other correspondence from a service center other than the one to which their H-1B petition was mailed.

Premium Processing

Cap-subject petitions requesting premium processing that are received on the "final receipt date," or during the initial five business day period mentioned above, cannot be processed until after the random selection has been completed. The premium processing 15-day adjudication period (processing deadline) will not begin until such time as USCIS has completed the random selection process.

The number of master's exemption cases received cannot be determined until all the petitions have been sorted and counted. The same holds true for the master's exemption premium processing cases. In accordance with established guidelines, USCIS will refund premium processing fees for any filings for which it cannot meet processing deadlines. Even if USCIS issues a refund of the premium processing fee, it will continue to provide premium processing for these filings until completion.

Current H-1b Workers

Petitions filed on behalf of current H-1B workers (who have already been counted towards the cap) do not count towards the congressionally mandated H-1B cap. Accordingly, this rule does not affect USCIS processing of 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 from one cap-subject position to a different cap-subject position with a different employer; or

Allow current H-1B workers to work concurrently in a second H-1B position.

USCIS Offers Helpful Hints for Filing a FY 2009 H1B Cap Case

U.S. Citizenship and Immigration Services (USCIS), anticipates that April 1, 2008 will see a repeat of the mass filings from last year. With this expectation USCIS has published this list of measures the petitioner can take to ensure that their petition is correctly filed.

For Fiscal Year 2009, the first filing date is Tuesday, April 1, 2008. Cap-subject petitions filed prior to that date will be rejected. Petitions should be filed at Vermont and California Service Centers, depending on petitioner’s location. To download the forms and the instructions click here.

Here are some general tips on making sure that your petition is completed and filed properly.

Clearly label all H-1B cap cases in red ink on top margin of Form I-129 petition. Use the following

codes:
- Reg. Cap (65,000 regular cap cases minus the C/S cap cases received)
- C/S Cap (Chile/Singapore H-1B1s)
- U.S. Masters (20,000 cap exemption for beneficiaries with U.S. Masters or higher degrees)
- Exempt (for petitions filed by certain institutions of higher education; nonprofit organizations; and nonprofit research organizations or governmental research organizations, as defined in USCIS regulations)
Fill out Form I-129 and supplements correctly, consistently and completely.
- Form I-129 petition
- H classification supplement
- H-1B Data Collection and Filing Fee Exemption Supplement
- Original signatures are required. Tip: blue ink makes it easy to confirm an original.
Employer must submit the correct fees as seen on form instructions (Tip: separate checks for each are best).

Base filing fee	$320
American Competitiveness and Workforce Improvement Act of 1998 (ACWIA fee)	$750 For employers with 1 to 25 full time equivalent employees unless exempt $1,500 For employers with 26 or more full time equivalent employees unless exempt (see H-1B Data Collection and Filing Fee Exemption Supplement, Part B)
Fraud fee	$500 To be submitted with the initial H-1B petition filed on behalf of each beneficiary by a petitioner. (Not for Chile/Singapore H-1B1 cases)
Premium Processing fee	$1,000 For employers seeking Premium Processing Service

Please send only one petition per envelope. (These may then be mailed together in one mailing package.)

Regular Cap
U.S. Master’s Cap
Regular Cap Premium Processing
U.S. Master’s Cap Premium Processing
H-1B1 Chile/Singapore

Please note that incorrectly completed or filed petitions may result in rejection or denial of the petition. VisaPro highly encourages petitioners to consult an attorney before filing an H-1B case. At a time when the H-1B quota does not allow for re-filing of a petition after its return due to mistakes, ensuring a proper initial filing is crucial.

Common H1B Errors Leading to Rejections and Denials

U.S. Citizenship and Immigration Services (USCIS) released a statement showing the common errors leading to petition rejections or denials. This is a list of the most frequently seen and easily cured mistakes.

Incorrect Fees

Frequently, petitioners miscalculate the amount of money needed for each filing. If you submit the fees in one check and the amount is wrong, USCIS rejects the petition. USCIS suggest you submit the fees in separate checks, because this lessens the likelihood of unintentional math errors when calculating the total fees due in connection with the filing of an H-1B petition.

Inconsistent and Incorrect Answers on Form I-129 and Supplements:

Please double check the petition to make sure you have answered all the questions and that the answers are consistent and correct throughout the entire package, including the petition and all accompanying documentation. USCIS cannot make assumptions about what a petitioner really intended, if that is not clear on the face of the documents submitted.
For example, if you check "yes" to the question of whether the beneficiary has a U.S. Master's degree in Part A, #5 of the supplement, then Part C, #7 should also be checked "yes."
Another common mistake is where the petitioner indicates on one part of the Form I-129 that the beneficiary is not subject to the cap, but on top of the petition they may write "Regular Cap." This can also delay processing of a case or even cause it to be rejected.

If your worker is or has ever been a J-1 please note:

Part C, #4 of the supplement does not refer to all J-1s who have been granted waivers of the 212(e) 2-year foreign residency requirement. Check "Yes" only if your worker is a doctor or a medical researcher who has been granted a Conrad 30 waiver under INA section 214(I)(1)(B) to work in a medically underserved area, or a waiver under INA section 214(I)(1)(C) based on a request by an Interested Government Agency (IGA).

For Fiscal Year 2009, the first filing date is Tuesday, April 1, 2008. USCIS wants to be sure to accept all qualifying petitions for inclusion in the random selection. If you file a petition correctly, you increase your chances of obtaining an H-1B cap number. USCIS reports that it is working on making the process as smooth as possible both this coming April and in the future.

Petitions are filed at Vermont and California Service Centers, depending on jurisdiction over the petitioner’s location. To download Both forms and the instructions click here.

USCIS to Issue Regulation on Multiple H1B Filings

The U.S. Citizenship and Immigration Services (USCIS) will soon issue an interim final regulation that will prohibit employers from filing more than one H-1B petition on behalf of a single foreign national. The regulation is now being reviewed by federal authorities and is expected to be made public in time for the start of the Fiscal Year 2009 filing season on April 1.

The exact breadth and scope of the prohibition is not yet known, and it is unclear whether the rule will permit the filing of multiple petitions in the event that more than one distinct bona fide job opportunity exists for an individual foreign national. At a meeting with the American Council for International Personnel (ACIP) last week, USCIS officials indicated that the agency is grappling with whether to permit two filings for foreign professionals who are eligible for the pool of 20,000 H-1B numbers set aside for U.S. advanced degree graduates - one under the standard H-1B cap and a second under the advanced-degree quota.

Premium Processing Service suspended for R1 applications

U.S. Citizenship and Immigration Services (USCIS) has temporarily suspended Premium Processing Service for I-129 petitions seeking R-1 nonimmigrant visa classification filed with the USCIS. Premium Processing Service guarantees that within 15 calendar days of receipt of a petition, USCIS will issue either an approval notice, a notice of intent to deny, a request for evidence or open an investigation for fraud or misrepresentation.

Reason of suspension

In August 2005, U.S. Citizenship and Immigration Services (USCIS) Office of Fraud Detection and National Security completed a Benefit Fraud Assessment (BFA) for religious worker petitions. The BFA revealed significant issues and potential vulnerabilities. As a result of this assessment and to ensure the integrity of the religious worker program, additional adjudication procedures are necessary.

As per the notification issues by the USCIS, due to the complexities of the USCIS adjudication processes at this time, the Agency can not reasonably ensure this level of processing service for the R-1 petitions within 15 calendar days. Therefore, USCIS is temporarily suspending Premium Processing Service for Aliens in a Religious Occupation which is filed on Form I-129, along with the Q-1 and R-1 Classifications Supplement.

How long will this suspension last?

This suspension will last six months beginning on November 28, 2006. During this timeframe, USCIS will determine whether it is able to process these cases within 15 calendar days of receipt. If so, Form I-129 requesting R-1 nonimmigrant visa classification once again will be available for Premium Processing Service. Otherwise, USCIS may prescribe additional conditions of availability on Premium Processing Service for religious worker petitions, or may publish a Federal Register Notice permanently removing the R-1 nonimmigrant visa classification from eligibility for Premium Processing Service.

President signs Omnibus Appropriations Act; USCIS to implement the new law

New law changes aspects of the temporary work program

U.S. Citizenship and Immigration Services (USCIS) has announced that President Bush has signed the Omnibus Appropriations Act for FY 2005, which contains provisions affecting the H-1B and L nonimmigrant visa categories. Both the H-1B and L programs allow U.S. employers to sponsor temporary foreign workers.

H-1B VISA

New Fees

Before October 1, 2003, employers who used the H-1B program were required to pay an additional $1,000 fee imposed by the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA). In part, that $1,000 fee paid for U.S citizens, lawful permanent residents and other U.S. workers to attend job training and receive low-income scholarships or grants for mathematics, engineering or science enrichment courses administered by the National Science Foundation and the Department of Labor. Those ACWIA fee requirements sunset on October 1, 2003.

The H-1B provisions of the Omnibus Appropriations Act reinstitutes the ACWIA fee and raises it to $1,500. Petitioners who employ no more than 25 full-time equivalent employees, including any affiliate or subsidiary, may submit a reduced fee of $750. Certain types of petitions, that were previously exempt from the $1,000 fee, are still exempt from the new $1,500 and $750 fee. The new $1,500 and $750 fee applies to any non-exempt petitions filed with USCIS after December 8, 2004.

In addition, the Act creates a new Fraud Prevention and Detection Fee of $500 which must be paid by petitioners seeking a beneficiary’s initial grant of H-1B or L nonimmigrant classification or those petitioners seeking to change a beneficiary’s employer within those classifications. Other than petitions to amend or extend stay filed by an existing H-1B or L employer, there are no exemptions from the $500 fee. The new $500 fee applies to petitions filed with USCIS on or after March 8, 2005.

Each of these fees is in addition to the base processing fee of $185 to file a Petition for a Nonimmigrant Worker (Form I-129) and any premium processing fees, if applicable. H-1B Cap This Act, and Public Law 108-441 (Dec. 3, 2004), provides new exemptions from the congressionally mandated annual

H-1B cap

The first 20,000 H-1B beneficiaries who have earned a master’s degree or higher from a U.S. institution of higher education are not subject to the annual congressionally mandated H-1B visa cap of 65,000. After those 20,000 slots are filled, USCIS is required to count those cases against the cap for the remainder of the fiscal year.
For FY 2005, the new provision will allow USCIS to accept new petitions on behalf of up to 20,000 beneficiaries meeting these criteria. Petitions under this provision cannot be filed at this time, as the provision is not effective until March 8, 2005. USCIS will provide additional guidance on eligibility and process at a later date.
Public Law 108-441 extended the “Conrad 30” J-1 program covering certain medical graduates. Nonimmigrants currently in the United States on a J-1 (exchange) visa who receive a waiver of the two-year residency requirement if requested by either a federal or state agency are now exempt from the H-1B cap. Qualifying employers of these beneficiaries may submit H-1B petitions, notwithstanding the fact that the H-1B cap was already met for FY 2005, after December 8, 2004.

Petitioners must separately evaluate whether an H-1B petitioner is exempt from certain fees and whether the petition is exempt from the H-1B cap, because the rules applicable to each type of exemption are not the same. For example, a petition by an otherwise non-exempt employer to extend the H-1B stay of a beneficiary for the first time would be exempt from the H-1B cap, but not from either the $1,500 or $750 fee.

L-1 VISA

The L-1 Reform Act amends previous legislation by addressing the issue of “outsourcing.” L-1B temporary workers can no longer work primarily at a worksite other than their petitioning employer if the work will be controlled and supervised by a different employer or if the offsite arrangement is essentially to provide labor for hire, rather than service related to the specialized knowledge of the petitioning employer. This limitation will apply to all L-1B petitions filed with USCIS on or after June 6, 2005. This includes extensions and amendments involving individuals currently in L-1 status.

The act also requires that all L-1 temporary workers must have worked for a period of no less than one year outside the United States for an employer with a qualifying relationship to the petitioning employer. Previously, participants in the “blanket L-1” program could participate after as little as six months of qualifying employment. This change applies to petitions for initial L-1 classification filed with USCIS on or after June 6, 2005. USCIS will be publishing guidance and regulations on these changes at a later date.

In addition, the Act creates a new Fraud Prevention and Detection Fee of $500 which must be paid by petitioners seeking a beneficiary’s initial grant of H-1B or L nonimmigrant classification or those petitioners seeking to change a beneficiary’s employer within those classifications. Other than petitions to amend or extend stay filed by an existing H-1B or L employer, there are no exemptions from the $500 fee.

The new $500 fee applies to petitions filed with USCIS on or after March 8, 2005. The new $500 fee is in addition to the base processing fee of $185 to file a Petition for a Nonimmigrant Worker (Form I-129) and any premium processing fees, if applicable.

USCIS notifies H1B processing procedure

The U.S. Citizenship and Immigration Services (USCIS) has published a notice explaining how it will process H-1B petitions for new employment for Fiscal Year (FY) 2005 now that it is clear that the demand for H-1B workers will exceed the statutory numerical limit (the cap) for H-1B nonimmigrant aliens for FY 2005. This notice has been published so that the public will understand the procedure for processing H-1B petitions now that the cap is reached, as this procedure may affect the hiring decisions of some prospective H-1B petitioners. These procedures are intended to minimize confusion and the burden on employers who use the H-1B program.

Following the adjustment for the Chile and Singapore H-1B1 program, and taking into account any other cases that can be counted against the FY 2004 cap, there now appears to be a sufficient number of H-1B petitions with employment start dates prior to October 1, 2005 pending at the USCIS Service Centers to reach the adjusted cap for FY 2005. Therefore, as of October 2, 2004, and until April 1, 2005, USCIS will return any petitions (along with the filing fee and, if applicable, the premium processing fee) requesting an employment start date prior to October 1, 2005.

What Is the Effect of This Notice?

This notice explains the USCIS procedure for processing H-1B petitions for new employment, which are subject to the H-1B cap, and filed by employers seeking to employ H-1B aliens on or before September 30, 2005.

What Is the USCIS Procedure for Processing H-1B Petitions for New Employment During the Remainder of FY 2005?

This notice informs the public that there appears to be a sufficient number of H-1B petitions pending at USCIS Service Centers to reach the adjusted cap of 58,200 for FY 2005. As of October 2, 2004, USCIS will not accept for adjudication any H-1B petition for new employment containing a request for a work start date prior to October 1, 2005. Petitions filed on or after October 2, 2004 will be returned (along with the filing fee and, if applicable, the premium processing fee) to the petitioner according to 8 CFR 214.2(h)(8)(ii)(E). In accordance with existing regulations, such petitioners may refile those petitions after April 1, 2005, with a new starting date of October 1, 2005, or later.

USCIS has established how many H-1B petitions are pending and will likely count towards the FY 2005 statutory limit. USCIS will adjudicate all petitions filed prior to October 2, 2004 in the order in which they are received. USCIS is not suspending premium processing and normal rules applicable to those cases filed on or before October 1, 2004 still apply.

How Will USCIS Treat H-1B Petitions That Are Revoked for Any Reason Other Than Fraud or Willful Misrepresentation?

For purposes of the annual numerical limitation, if an H-1B petition was approved in a prior fiscal year (e.g. FY 2001, 2002, 2003, 2004) but revoked in FY 2005, that revocation will have no effect on the FY 2005 cap and the number will not be restored to the total number of H-1B new petition approvals available for the remainder of FY 2005.

However, if an H-1B petition was approved in FY 2005 (and the approval was counted against the FY 2005 cap), and the H-1B petition subsequently is revoked during FY 2005 for any reason other than fraud or willful misrepresentation (e.g. the petitioner goes out of business), that number will be restored to the total number of H-1B petition approvals available for the remainder of FY 2005. If the same H-1B petition is revoked for any reason other than fraud or willful misrepresentation after the end of FY 2005, USCIS will not restore the number to the FY 2005 cap.

How Will USCIS Process H-1B Petitions That Are Revoked for Fraud or Willful Misrepresentation?

Section 108 of the American Competitiveness in the Twenty-first Century Act of 2000, Public Law 106-313 (``AC21''), sets forth the procedure when an H-1B petition is revoked on the basis of fraud or willful misrepresentation. Under AC21, one number for each petition that is revoked on the basis of fraud or misrepresentation shall be restored to the total number of H-1B petition approvals available for the fiscal year during which an H-1B petition is revoked, regardless of the fiscal year in which the petition was approved.

How Will USCIS Process H-1B Petitions That Were Originally Denied But Subsequently Ordered Approved by the Administrative Appeals Office or by a Federal Court?

USCIS has considered cases currently on appeal in its determination of cases that could count towards the statutory cap. USCIS will process approved petitions in the order that they were originally filed with USCIS or the former Immigration and Naturalization Service.

Will USCIS Refund a Filing Fee if a Petition Is Withdrawn or Revoked?

No, USCIS will not refund the $185 filing fee when a petition is revoked or withdrawn. The provisions contained in 8 CFR 103.2(a)(1) preclude the refunding of filing fees on Form I-129 petitions in these situations. USCIS will refund a filing fee only if the refund request is based on USCIS error or if the petition is filed subsequent to October 1, 2004. It should be noted that H-1B cap cases filed under the premium processing program are subject to the conditions contained in this notice.

DOL notifies interim final rule on H1B1 Labor Condition Applications

The Department of Labor (Department or DOL) is amending its regulations related to the temporary employment of foreign professionals to implement procedural requirements applicable to a new visa category--the H-1B1 visa. The H-1B1 visa permits the temporary entry and employment in the United States of professionals in specialty occupations from countries with which the United States has entered into agreements identified in section 214(g)(8)(A) of the Immigration and Nationality Act (INA).

Congress created the new visa category as part of its approval of the United States-Chile Free Trade Agreement and the United States-Singapore Free Trade Agreement. By statute, the new H-1B1 visa is available only to nationals of Chile and Singapore. Under the implementing legislation, DOL's responsibilities regarding H-1B1 visas are to be implemented in a manner similar to the existing H-1B program for temporary employment of nonimmigrant aliens in specialty occupations and as fashion models.

Thus, employers in the United States seeking to temporarily employ foreign professionals in specialty occupations through H-1B1 visas must file a labor attestation with the Department of Labor making the same attestations regarding payment of prevailing wages, working conditions, absence of strikes or lockouts, and notice to other employees that employers currently make when seeking entry of a foreign worker under the H-1B program.

This interim final rule is effective on November 23, 2004. Interested persons are invited to submit written comments on this interim final rule. To ensure consideration, comments must be received on or before January 24, 2005.

For complete notice published in the Federal Register click here.

Congress passes L1 and H1B Reform Law

The Fiscal Year 2005 Omnibus Appropriations Bill was approved by both the House and Senate on November 20, 2004. The Bill introduces many changes in the existing provisions relating to work visas, such as: restoration of One-Year experience requirement for L-1 Blanket entrants; re-institution of H-1B Fee and H-1B Dependent attestations, Introduction of a new Anti-Fraud Fee on L-1s and H-1Bs; and opening up more H-1Bs for certain applicants.

The Bill will become law only when it is signed into law by the President. Therefore, none of the provisions of the bill will apply until it becomes law. Further, most of the H-1B related provisions will be effective 90 days after the Bill is signed into law, except certain provisions (related to fees) that will be effective immediately. The L-1 provisions will not be implemented until 180 days after the signing of the Bill into law. The key highlights of the Omnibus Appropriations Bill containing the H-1B and L-1 Visa Reform are discussed below.

Changes in H-1B Visa Program

New H-1B exemption

The Bill throws up an additional 20,000 of the coveted H-1B visas. This news generated a lot of excitement and our office has been flooded with calls enquiring whether the FY 2005 H-1B cap has been raised. In fact, various newspapers and journals, particularly in India, carried news reports that the H-1B cap has been raised by 20,000. While it is true that the legislation has opened up more H-1B visas, the caveat lies in the fact that these visas will be available only to certain qualifying applicants, and then, they won’t be available until three months after the Bill is signed by the President into law. These 20,000 new visas will be reserved for foreign students who have earned Master’s or higher degree from American universities or institutes of higher education. The annual cap will remain at 65,000. The proposed 20,000 H-1B visas will be treated as an exemption from the cap.

Additional H-1B Fees

Though the bill provides for relief to certain H-1B applicants from the H-1B cap, this relief comes with an expensive price tag in the shape of reinstatement and increase of the worker ‘retraining’ fee and the introduction of a new anti-fraud fee.

Education and Training Fee: The Bill reinstates and increases the Education and Training Fee. The employer-funded fee increases to $1500 (previously $1000), is separate from, and in addition to the regular USCIS filing fee and the optional $1000 premium processing fee. Employers with fewer than 25 full-time equivalent employees will only be required to pay half of the fee, i.e., $750.

New Anti-Fraud Fee: The Bill also introduces a new $500 anti-fraud fee to be paid by the employer at the time of initial H-1B or L-1 petitions.

Prevailing Wage Changes

The Bill also modifies Section 212(p) of the Immigration and Nationality Act to require employers to pay 100 per cent of the prevailing wage. Previously the provisions permitted 5% variance from the prevailing wage determinations for H-1B cases and in the labor certification process. However, the good news is that the Bill also mandates that where a governmental survey to determine prevailing wage (such as the Online Wage Survey) is made available to employers by the Department of Labor, such survey shall provide 4 levels of wages commensurate with experience, education and the level of supervision. Alternatively, a formula will be provided to calculate the 2 additional intermediate levels.

DOL Investigative Authority

The Omnibus bill also contains provisions expanding the Department of Labor’s investigative authority to conduct an investigation if it receives credible information providing reasonable cause that the employer has committed a willful failure to meet a condition.

Changes in L-1 Visa Program

No subcontracting of employees

The Bill modifies the provisions to prevent an L-1B holder from being primarily stationed at another employer’s worksite in the case where:

The L-1B visa holder will be under the control and supervision of an unaffiliated
employer;
The L-1B visa holder will be providing labor for the third party rather than
providing a product or service involving specialized knowledge specific to the
petitioning employer.

These changes will apply to initial, extended or amended petitions filed on or after the effective date, i.e., 180 days after the President signs the Bill into law.

L-1 Blanket – one year work requirement

The Bill also strikes out the provision permitting the six-month requirement of continuous employment abroad to receive L-1 status under an L-1 Blanket petition. All visa applicants under the L-1 Blanket must once again meet the one year requirement applicable to all other L-1 applicants.

$500 Anti-Fraud Fee

The Bill also introduces a new $500 anti-fraud fee to be paid by the employer at the time of initial L-1 petition or a change of status application, in addition to the regular USCIS filing fees. The fee will be imposed only on principal alien. Visa applicants under an L-1 Blanket will also be required to pay the fee at the U.S. Consulate.

USCIS announces FY 2005 H2B Processing

Numbers reflect cases received as of November 1, 2004

U.S. Citizenship and Immigration Services (USCIS) announced today that it has received H-2B petitions for 33,153 beneficiaries counting against the statutory visa cap for fiscal year 2005 (October 1, 2004 through September 30, 2005). The fiscal year 2005 statutory visa cap is 66,000.

Based on past experience, USCIS needs to approve approximately 100,000 beneficiaries to fully utilize the 66,000 H-2B visa cap during a fiscal year. As the 100,000 beneficiary target is approached, USCIS will use more exacting counts to determine if it needs to stop accepting H-2B petitions during fiscal year 2005.

On March 9, 2004, USCIS stopped accepting H-2B petitions that counted against the fiscal year 2004 statutory cap. USCIS continued to process petitions for current H-2B workers that did not count against the cap throughout fiscal year 2004. Those petitions were filed to:

Extend the stay of a current H-2B worker in the United States.
Change the terms of employment for current H-2B workers.
Allow current H-2B workers to change or add employers.

USCIS anticipates imposing a similar cut-off with similar exceptions during fiscal year 2005.

The H-2B visa category allows U.S. employers in industries with peak load, seasonal or intermittent needs to augment the existing labor force with temporary workers. Typically, H-2B workers fill labor needs in occupational areas such as education, construction, health care, landscaping, lumber, manufacturing, food service/processing, and resort/hospitality services.

Actuaries and Plant Pathologists included under NAFTA

DEPARTMENT OF HOMELAND SECURITY

Adding Actuaries and Plant Pathologists to Appendix 1603.D.1 of the North American Free Trade Agreement

AGENCY: U.S. Citizenship and Immigration Services, DHS.

ACTION: Final rule.

SUMMARY: This final rule adopts without substantive change a proposed rule that was published in the Federal Register by the former Immigration and Naturalization Service (Service). This final rule amends the Department of Homeland Security's (Department's) regulations by adding Actuaries and Plant Pathologists to Appendix 1603.D.1 of the North American Free Trade Agreement (NAFTA) and by modifying the licensure requirements for Canadian citizens seeking admission to the United States as "trade NAFTA" (TN) nonimmigrant aliens. These amendments reflect the agreements made among the three parties to the NAFTA and will facilitate travel to and business in the United States.
On March 1, 2003, the Service transferred from the Department of Justice to the Department, pursuant to the Homeland Security Act of 2002 (Pub. L. 107-296). Accordingly, the Service's adjudication function transferred to the U.S. Citizenship and Immigration Services (USCIS) of the Department.

DATES: This final rule is effective November 12, 2004.

FOR FURTHER INFORMATION CONTACT: Craig Howie, Staff Officer, Business and Trade Services Branch, Program and Regulations Development, U.S. Citizenship and Immigration Services, Department of Homeland Security, 425 I Street, NW., ULLICO Building, 3rd Floor, Washington, DC 20536, telephone (202) 514-3228.

SUPPLEMENTARY INFORMATION:

What Is NAFTA?

On December 17, 1992, the United States, Canada and Mexico signed NAFTA. NAFTA entered into force on January 1, 1994, creating one of the largest trading areas in the world. Besides trade, NAFTA allows for the temporary entry of qualified business persons from each of the parties to the agreement. NAFTA is comprised of 22 chapters. Chapter 16 of NAFTA is entitled "Temporary Entry of Business Persons," and in addition to reflecting the preferential trading relationship between the parties to the agreement, it reflects the member nations' desire to facilitate temporary entry on a reciprocal basis. It also establishes procedures for temporary entry, addresses the need to ensure border security and seeks to protect the domestic labor force in the member nations.

Who Is a TN Nonimmigrant Alien?

A TN nonimmigrant alien is a citizen of Canada or Mexico who seeks admission to the United States, under the provisions of Section D of Annex 1603 of NAFTA, to engage in business activities at a professional level as provided for in the Annex. NAFTA parties have agreed that 63 occupations qualify as professions. These occupations are listed in the Appendix 1603.D.1 to Annex 1603 to the NAFTA found in 8 CFR 214.6(c). Canadian and Mexican citizens seeking to engage in occupations not included in Appendix 1603.D.1 to Annex 1603 are not eligible for classification as TN nonimmigrants.

What Changes Were Proposed in the Proposed Rule?

In the proposed rule published on December 19, 2000 at 65 FR 79320, the former Service proposed to add the occupation of actuary to the list of professions in Appendix 1603.D.1. In addition, the rule proposed to include plant pathologist to the Appendix 1603.D.1 as a footnote to the occupation of biologist. The former Service also proposed to change the licensure requirements for Canadian TN aliens applying for admission to the United States described at 8 CFR 214.6(e)(3)(ii)(F). The rule further proposed to remove 8 CFR 214.6(l), which relates to the transition period for Canadian citizens who were admitted to the United States under the United States-Canada Free Trade Agreement that existed before the effective date of NAFTA. The former

Service also proposed to change all references to the Northern Service Center to the Nebraska Service Center to reflect the center's current name. Finally, the former Service proposed to remove the term "diplomas, or certificates" from 8 CFR 214.6(d)(2)(ii) and at 8 CFR 214.6(e)(3)(ii) since these regulatory cites are inconsistent with the footnotes to the Appendix.

Did the Former Service Receive Any Comments in Response to the Proposed Rule?

Yes, the former Service received 12 comments on the proposed rule. Seven of the comments dealt with the proposal that would add actuaries and plant pathologists to NAFTA and five comments related to the proposal to modify the licensure requirements for Canadian TN nonimmigrants. One of the comments addressing the proposed licensure requirements for Canadian TN nonimmigrants was actually a number of questions relating to the process that the former Service (now Department) uses to determine whether an alien has an appropriate license to practice in his or her occupation or profession. Since the questions posed in this comment letter do not directly relate to the proposed rule, this comment will not be discussed.

None of the comments addressed the technical changes that the former Service noted in the proposed rule. These technical changes include the removal from the regulations of the discussion of the transition period for Canadian citizens who were admitted to the United States under the former United States-Canada Free Trade Agreement, changing references to the "Northern Service Center" to "Nebraska Service Center," and removal of the term "diplomas, or certificates" from 8 CFR 214.6(d)(2)(ii) and 8 CFR 214.6(e)(3)(ii) since these regulatory cites are inconsistent with the footnotes to the appendix.

The Department published an interim final rule on March 10, 2004 (69 FR 11287) which implemented changes to the TN application process resulting from the sunset of some NAFTA requirements imposed on Mexican TN's. The changes in that interim final rule resolved the technical issues referenced above, and this rule finalizes the technical changes noted in the proposed rule.

Why Did the Former Service Propose To Change the Licensure Requirements for Canadian TN Nonimmigrants?

To ensure that the former Service's regulations implementing Chapter 16 are in conformity with the obligations of the United States under the Agreement, the former Service proposed to remove 8 CFR 214.6(e)(3)(ii)(F). This provision requires the presentation of a license by a Canadian citizen as an entry requirement under the NAFTA.

For detailed Notice published in the Federal Register, please click here.

The show is over; USCIS reaches H1B Cap

U.S. Citizenship and Immigration Services (USCIS) announced today that it has received enough H-1B petitions to meet the congressionally-mandated cap for fiscal year 2005. Congress has set an annual H-1B cap of 65,000 of which 6,800 are set aside for the H-1B1 program under terms of the U.S.-Chile and U.S.-Singapore Free Trade Agreements. The total H-1B cap number available for FY 2005 is therefore 58,200.

USCIS has factored into its count of petitions subject to the FY05 cap the number of Chile/Singapore set-asides that were unused in FY2004 and any other cases that can be counted against the previous fiscal year’s H-1B cap rather than the FY 2005 cap. USCIS has received enough petitions to reach the limit for FY 2005.

After today, USCIS will not accept any new H-1B petitions that are subject to the FY 2005 annual cap. For the remainder of FY 2005, USCIS will follow the procedures set forth in the notice published on February 25, 2004 in the Federal Register at 69 FR 8675 to address the cap reached during FY 2004. Those procedures include:

•	USCIS will process all petitions filed for first-time employment received by the end of business today.
•	USCIS will return all petitions for first-time employment subject to the annual cap received after the end of business today.
•	Returned petitions will be accompanied by the filing fee.
•	Petitioners may re-submit their petitions when H-1B visas become available for FY 2006.
•	The earliest date a petitioner may file a petition requesting FY 2006 H-1B employment with an employment start date of October 1, 2005, would be April 1, 2005.

USCIS plans to provide further details on these procedures in a new notice that will be published in the Federal Register shortly.

Petitions for current H-1B workers 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
•	Allow current H-1B workers to work concurrently in a second H-1B position

USCIS also notes that petitions for new H-1B employment are not subject to the annual cap if the alien will be employed at an institution of higher education or a related or affiliated nonprofit entity, or at a nonprofit research organization or a governmental research organization.

DOL issues guidance on H2B visas

Supplemental Guidance for Labor Certification Process for Temporary Employment of Nonimmigrant Workers in the United States (H-2B Workers); Fiscal Year (FY) 2005

AGENCY: Employment and Training Administration (ETA), Department of Labor (DOL).

ACTION: Notice.

SUMMARY: On March 10, 2004, the United States Citizenship and Immigration Services (CIS) announced receiving sufficient H-2B petitions to reach the FY 2004 Congressionally mandated cap of 66,000.

In light of CIS' announcement, ETA published a Federal Register notice on May 13, 2004 to provide guidance to the public regarding ETA's processing of H-2B applications that will count against the FY 2005 cap. ETA is publishing this notice to provide additional guidance due to the number of inquiries and questions that have arisen. This notice is intended to minimize confusion and burden to employers who use the H-2B program.

DATES: This notice is effective October 1, 2004.

FOR FURTHER INFORMATION CONTACT: William Carlson, Chief, Division of Foreign Labor Certification, U.S. Department of Labor, Room C-4312, 200 Constitution Avenue, NW., Washington, DC 20210. Telephone: 202-693-3010 (this is not a toll-free number).

SUPPLEMENTARY INFORMATION: DOL has continued to process alien labor certification applications since March 10, 2004, and many employers are in possession of a valid labor certification that has not been accepted by CIS for processing. CIS has advised that their practice has been to accept the H-2B labor certifications with periods of employment that cross fiscal years so long as some portion of the employment period remains. Employers with a valid H-2B labor certification with a date of need prior to October 1, 2004, but that includes periods of planned employment after October 1, 2004, are encouraged to file H-2B labor certifications with CIS if some portion of the employment period remains.

ETA will continue to process new H-2B applications with dates of need within FY 2005 (that is, starting October 1, 2004 or later). For these new applications, employers must continue to follow existing filing rules, including regarding the timing of filing with the State Workforce Agency (SWA). Thus, employers must file a new H-2B application with the appropriate SWA no earlier than 120 days before the date of need and at least 60 days before the date of need.

The procedures described in this notice relate only to H-2B applications for nonimmigrant workers subject to the numerical limitation (cap) for FY 2005 and who will be engaged in temporary work to commence on or after October 1, 2004.

USCIS announces FY 2005 H1B Petition filing Status

Numbers Reflect Cases Received As Of August 18th

Washington, D.C.– U.S. Citizenship and Immigration Services (USCIS) announced today that it has received 45,900 H-1B petitions that will count against the Congressionally-mandated cap for fiscal year 2005 (October 1, 2004 through September 30, 2005). The limit in fiscal year 2005 is 65,000.

Established by the Immigration Act of 1990, the H-1B visa category allows U.S. employers to augment the existing labor force with highly skilled temporary workers. H-1B workers are admitted to the United States for an initial period of three years, which may be extended for an additional three years. Typical H-1B occupations include architects, engineers, computer programmers, accountants, doctors and college professors.

The Congressionally-mandated cap limits the number of requests for initial employment that USCIS may approve each year. Petitions seeking extensions or modifications to current H-1B employment are not counted against the cap. In addition, persons working for employers statutorily exempt from the cap (such as institutions of higher education, or nonprofit research organizations) are not counted against the cap.