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Are H-1B’s gone yet?

Posted on December 14, 2009 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I have a Masters Degree in Business Administration and want to obtain an H-1B. Are they all used up yet?

Answer: The U.S. Citizenship and Immigration Services (USCIS) announced on May 24, 2005, that it has received approximately 6,400 H-1B petitions that will count against the Congressionally-mandated 20,000 cap exemption for fiscal year 2005 established by the H-1B Visa Reform Act of 2004. This would be for people with advanced degrees (not the normal type of H-1B.) The USCIS published an interim final rule on May 5, 2004, implementing the new H-1B cap exemption for foreign nationals holding U.S.-earned advanced degrees, pursuant to the H-1B Visa Reform Act of 2004. The Act exempts 20,000 H-1B visa numbers from the overall H-1B cap for foreign nationals holding masters or higher degrees from U.S. universities. Petitions seeking Fiscal Year 2005 H-1B visa numbers under the exemption received on or after May 12, 2005, will be accepted for filing.

The new regulations, which took effect on May 5, 2005, changed the H-1B filing procedures for FY 2005 and for future fiscal years. The regulations make available 20,000 new H-1B visas, only for foreign workers with a minimum master’s level degree from a U.S. academic institution, in addition to the Congressionally-mandated annual cap of 65,000 H-1B visas.

Question: About how many more remain this year for the advanced degree holders?

Answer: About 13,600 slots remain available for fiscal year 2005 (which ends on September 30, 2005). Only foreign nationals holding masters or higher degrees from U.S. universities are eligible for one of these numbers. Because the 65,000 cap has already been reached, H-1B employers seeking the services of foreign nationals who do not hold such degrees are restricted to filing petitions for a FY 2006 number (i.e., for employment commencing on or after October 1, 2005) unless a different cap exemption is applicable (e.g., the employer is an institution of higher education). Note that a new 20,000 cap exemption will apply for FY 2006. The USCIS will exempt the first 20,000 petitions for H-1B workers who have a master’s degree or higher from a U.S. institution of higher learning. After those 20,000 slots are filled, the USCIS will apply petitions for H-1B workers with a master’s degree or higher against the annual cap of 65,000. As a result, once the 20,000 numbers are used, an initial petition for an advanced-degree worker will be approved only if a number is available within the general 65,000 cap or the case is not subject to the cap under a different exemption (i.e., the employer is an institution of higher education).

Question: My friend has had an H-1B for almost 6 years and has had a Labor Certification pending for over 1 year. I heard you can only have an H-1B for 6 years maximum. What is he to do?

Answer: Post-Sixth Year H-1B Extensions Based on Long-Pending Permanent Residence Papers under what is known as AC-21 § 106(a)) allows for an extension if a labor certification or employment-based petition has been filed on behalf of the alien and remains pending for 365 days. Note the following issues clarified by the 2005 memo. Combined standard and post-sixth year H-1B extensions permitted. To obtain a post-sixth year H-1B extension, there is no need for the foreign national to first request an extension of time through the completion of his or her initial six years and then request an additional extension of time beyond the six-year limit. The petitioner can request an extension that combines the remaining time in the initial six-year H-1B period and post-sixth year time. Post-sixth year time can only be granted in one-year increments, and the total period of extension cannot exceed three years.

Question: When should the extension be filed?

Answer: The post-sixth year extension request can be filed prior to the passage of 365 days from the filing of a qualifying labor certification or I-140 petition, as long as the qualifying labor certification or I-140 petition has or will have been pending for 365 days prior to the foreign national’s requested extension start date. However, the extension will not be granted if the foreign national will not be in H-1B status at the time that the 365 days have elapsed, i.e., where there is a gap in status.

Filed under: H-1B, Immigration Law, USCIS, Visa, Work Visa | Tagged: , | Leave a comment »

PERM: Can I bring in my babysitter?

Posted on December 10, 2009 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I understand that PERM applications are greatly expediting the Labor Certification process. Could you let me know if I can bring my babysitter and domestic helper into the United States under the PERM program?

Answer: Yes, it is possible under PERM. It does require a significant amount of detailed documentation to be successfully file a PERM application for a domestic helper. Employers filing applications on behalf of live-in household domestic service workers must provide the following documentation:

First, a statement describing the household living accommodations which must include the following: (i) Whether the residence is a house or apartment; (ii) The number of rooms in the residence;(iii) The number of adults and children, and ages of the children residing in the household; and (iv) That free board and a private room not shared with any other person will be provided to the alien.

Next, thee should be two copies of the employment contract, each signed and dated prior to the filing of the application by both the employer and the alien (not by their attorneys or agents). The contract must clearly state: (i) The wages to be paid on an hourly and weekly basis; (ii) Total hours of employment per week, and exact hours of daily employment; (iii) That the alien is free to leave the employer’s premises during all non-work hours except the alien may work overtime if paid for the overtime at no less than the legally required hourly rate; (iv) That the alien will reside on the employer’s premises; (v) Complete details of the duties to be performed by the alien; (vi) The total amount of any money to be advanced by the employer with details of specific items, and the terms of repayment by the alien of any such advance by the employer; (vii) That in no event may the alien be required to give more than two weeks’ notice of intent to leave the employment contracted for and the employer must give the alien at least two weeks’ notice before terminating employment; (viii) That a duplicate contract has been furnished to the alien; (ix) That a private room and board will be provided at no cost to the worker; and (x) Any other agreement or conditions not specified on the Application for Permanent Employment Certification form.

Question: Does my domestic employee have to have past experience?

Answer: Yes. There should be documentation of the alien’s paid experience in the form of statements from past or present employers setting forth the dates (month and year) employment started and ended, hours of work per day, number of days worked per week, place where the alien worked, detailed statement of duties performed on the job, equipment and appliances used, and the amount of wages paid per week or month. The total paid experience must be equal to one full year’s employment on a full-time basis.

Question: Once the PERM would be certified and approved, can I then proceed to do the final processing for my domestic helper?

Answer: Unfortunately, the answer is no. Very recently, the visa priority charts from the Department of State made the ‘other worker’ category (which includes unskilled labor) backlogged for every country around the world. The typical wait looks like it will be around three years for the visa number to become current. Thus, you could not begin final processing until that time. However, to be able to file PERM application for a household worker is a great improvement over past practices. Thus, while it is not perfect, it is a great deal better than in the past.

Filed under: Immigration Law, Nonimmigrant Visa, PERM, USCIS, Work Visa | Tagged: , | 1 Comment »

H-1B’s and a Holiday Greeting!

Posted on December 9, 2009 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I have heard that there are some new H-1B laws that have come out. Can you discuss what these changes are?

Answer: Changes in Certain USCIS Fees as a result of the approval of the FY05 Omnibus Appropriations Act The H-1B and L non-immigrant provisions of the Omnibus appropriations Act reinstate the American Competitiveness and Workforce Improvement Act (ACWIA) fees first put in place after the approval of the ACWIA in 1998. The requirements under the original ACWIA sunset on October 1, 2003. This was where the employer had to pay $1,000 fee for every H-1B petition filed.

For H-1B petitioners, the new fee for petitioners who employ 25 or more Full Time Equivalent employees is $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. The new $1,500 and $750 fees apply to any non-exempt petitions filed with USCIS after December 8, 2004. Certain types of petitions that were previously exempt from the fees remain exempt from the new $1,500 and $750 fees.

Question: I heard there was some type of fraud fee as well. Is that true?

Answer: Yes. 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. The only petitions exempt from paying this fee are those that seek to amend or extend the stay of the beneficiary. This new $500 fee applies to petitions filed with the 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.

Question: Are there any more H-1B’s available?

Answer: Yes. For persons with a Masters degree or higher, there is now an additional 20,000 H-1B visas.

I would personally like to extend my wishes to all the readers and their families for a Merry Christmas and a Happy New Year and a Happy Holiday Season.

As an immigration attorney, I do see families of immigrants being torn apart because of unfair and ruthless immigration laws. I will continue to fight for all of the immigrants and their families so that they can be reunited and together once more.

Filed under: H-1B, Immigration Law, Nonimmigrant Visa, USCIS, Work Visa | Tagged: , | Leave a comment »

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