The American Immigration Council filed suit on behalf of a company that provides amenity services to seniors, their families, and their senior communities to challenge USCIS’s “not a specialty occupation” denial of an H-1B petition.
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The Vermont Service Center (VSC) Liaison Committee alerts members to heightened scrutiny for speech language pathology related occupations and suggests that H petitioners should carefully delineate the job duties of positions within this career field.
Law Offices of Brian D. Lerner, APC
Filed under: Vermont Service Center (VSC) | Tagged: H Petitioner, Immigration, Immigration Attorney, Immigration Lawyer, Specialty Occupation, Vermont Service Center (VSC), VSC, VSC Processing Time | Leave a comment »
Question: Help! I need an H-1B Immigration Attorney to help me. I know there is a deadline approaching to get the H-1B’s filed and I am not sure if I qualify and what the requirements are. Can you help?
Answer: Yes, you should have an H-1B Immigration Attorney help you as there are numerous requirements and if not done properly, the case will either be rejected or denied. The H-1B category is limited to alien workers filling positions in “specialty occupations” for which the alien workers have the necessary credentials. A “specialty occupation” is defined by the INA as an occupation that requires: theoretical and practical application of a body of highly specialized knowledge; and attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States. Many times an H-1B Immigration Attorney will be able to do the research to determine if in fact the position is a “specialty occupation”, and if not, the H-1B Immigration Lawyer will be able to work with the employer and employee to determine what position is best for the H-1B.
Question: While I understand that an H-1B Immigration Attorney can do the necessary research to find the best position, are there some generalities as to what types of positions are best for H-1B’s?
Answer: With the elimination of entertainers, artists, and athletes from the H-1B category, over 50 percent of the previous users of the category have been removed from its coverage. According to the latest USCIS statistics and research from various H-1B Immigration Attorneys about 43% of petitions approved were for workers in computer-related occupations. Occupations in architecture, engineering, surveying, education, and administrative specializations constituted another 33% of the total H-1B petitions approved. As to the detailed occupation groups, more than one-third of the approved petitions (37.8%) were for aliens working as systems analysts or programmers. The second largest category (at 8.1%) was occupations in colleges and university education (i.e., university professors and teachers). Accountants, auditors and related occupations constituted another 4.6% of the total, electrical/electronics engineering occupations comprised 3.8% of the total, and other computer-related occupations comprised 3.5% of the total H-1B petitions approved. The latest statistics also reveal that 45% of petitions approved in were for workers with a bachelor’s degree. 37% of petitions approved in FY 2005 were for workers with a master’s degree, 5% had a doctorate, and 12% were for workers with a professional degree (such as a medical or law degree). However, keep in mind that even if you do not have a B.S. Degree, that an H-1B Immigration Attorney can follow the necessary procedures to submit to USCIS an equivalency for the B.S. and/or Master’s degree based on various factors such as an evaluation report, and/or a combination of work, experience and prior education.
Question: What are the numerical limitations for H-1B’s?
Answer: The 1990 Act imposed an annual limit on the number of new admissions in the H-1B category. An H-1B number must be available at the time a new petition is adjudicated. The Service will not approve an H-1B petition once the cap has been reached during a fiscal year if the petition has a date for commencement of employment that falls within that fiscal year. This is the primary reason you want to get an H-1B Immigration Attorney to get the petition prepared as soon as possible and to be submitted when the doors open again on April 1. The Service counts petitions for initial H-1B employment in determining compliance with the annual cap. Petitions for sequential H-1B employment, concurrent H-1B employment, extensions of stay, and amended petitions are not counted against the cap. The annual H-1B cap is set at 65,000. However, overall H-1B numbers are reduced by the U.S.-Chile and U.S.-Singapore Free Trade Agreements (FTAs), which set aside 6800 H-1B numbers for professionals from those two countries each fiscal year. In practical terms, therefore, just 58,200 H-1B numbers are available in the standard H-1B pool, though some unused FTA visas from a prior fiscal year may be recaptured and made available in the first six weeks of the following fiscal year. Legislation enacted in 2004 created an exemption from the cap for 20,000 advanced degree graduates of U.S. universities. 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. Thus, the H-1B Immigration Attorney will attempt to get you under an H-1B requiring a Master’s or higher degree as there may be more available when the normal H-1B’s run out.
Apart from the 20,000 exemption for advanced degree professionals, several types of H-1B cases are exempt from the cap without regard to the number of such cases that are filed. These include: (1) petitions for employment at an exempt organization, such as an institution of higher education or a related or affiliated nonprofit entity, nonprofit research organization, and governmental research organizations (note, however, that if an H-1B professional moves from an exempt nonprofit organization to a for-profit company, he or she would then be subject to the cap); (2) petitions for an individual who has already been counted against the cap during the previous six years, unless the H-1B applicant would be eligible for a full six years of authorized admission at the time the petition is filed; (3) petitions for J-1 nonimmigrants who are changing status to H-1B and who obtained waivers through the Conrad 30 Program or other federal government programs. Make certain you inform the H-1B Immigration Attorney if you fall under one of these provisions.
The addition of 20,000 H-1B numbers for advanced-degree professionals did not prevent the cap from being reached in subsequent years. In fiscal year 2006, the 65,000 standard cap was exhausted before the start of the fiscal year and the 20,000 advanced degree limit was reached just after the start of the fiscal year. In fiscal year 2007, both the regular and advanced-degree caps were reached before the start of the fiscal year on October 1, 2006 (although the advanced-degree limit was reached at a slightly slower pace). For fiscal year 2008, the 65,000 limit was reached on April 2, 2007, the first day that cases could be filed for new H-1B employment commencing on October 1, 2007, and the advanced-degree limit was reached on April 30, 2007. For FY 2009, H-1B numbers under the standard cap were exhausted within days of the start of the filing season. On April 8, 2008, USCIS announced that, between April 1 and April 7, it had received more than enough H-1B petitions to meet the standard cap and the pool of 20,000 numbers for holders of U.S. advanced degrees for FY 2009. As a result, the agency utilized the new lottery system under a March 2008 rule to select which FY 2009 H-1B petitions would be eligible for adjudication.
Even though last year fiscal year, the H-1B’s lasted longer than normal due to the economic downturn, you should contact your H-1B Immigration Attorney as soon as possible to ensure you get in the next allotment starting on April 1.
H-1B work visa for specialty occupation visa
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H-1B Visa Important Information to know before Filing the H-1B
Question: I know that the doors for the H-1B Visas will open up on April 1, 2010. I’ve heard so much about the H-1B Visa Petition, but I just don’t know exactly what is the H-1B Visa. Can you let me know?
Answer: The H-1B category is limited to alien workers filling positions in “specialty occupations” for which the alien workers have the necessary education and credentials. A “specialty occupation” is defined as the theoretical and practical application of a body of highly specialized knowledge; and a minimum of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States. It is possible to get an H-1B Visa without an actual bachelor’s degree, but there must be an equivalent of a bachelor’s degree for the H-1B Visa through either work, experience and/or a combination of education and work.
Question: What are the major requirements for the H-1B Visa Petition?
Answer: Foreign Nationals seeking to perform services in an H-1B specialty occupation must show that they have the necessary qualifications to undertake the services required for that H-1B specialty occupation. At a minimum, the foreign national in a specialty occupation must document that he or she has full state licensure to practice in the occupation, if such licensure is required to practice. This licensure must be shown at the beginning of the petition or the submission of the H-1B Petition, not at a later point. The foreign national must also establish that he or she has completed the degree required as the minimum standard for entry into the occupation in the United States, or has experience in the specialty equivalent to the completion of such degree and recognition of expertise in the specialty through progressively responsible positions in the occupation.
Question: Is there a limit on the number of H-1B visas available?
Answer: The 1990 Immigration and Nationality Act imposed an annual limit on the number of new admissions in the H-1B category. An H-1B number must be available at the time a new petition is adjudicated. Immigration will not approve an H-1B petition once the cap has been reached during a fiscal year if the petition has a date for commencement of employment that falls within that fiscal year. The Service counts petitions for initial H-1B employment in determining compliance with the annual cap. Petitions for sequential H-1B employment, concurrent H-1B employment, extensions of stay, and amended petitions are not counted against the cap.
The annual H-1B cap is set at 65,000. However, overall H-1B numbers are reduced by the U.S.-Chile and U.S.-Singapore Free Trade Agreements (FTAs), which set aside 6800 H-1B numbers for professionals from those two countries each fiscal year. In practical terms, therefore, just 58,200 H-1B numbers are available in the standard H-1B pool, though some unused FTA visas from a prior fiscal year may be recaptured and made available in the first six weeks of the following fiscal year. While the economy was in recession last year and the H-1B’s actually lasted much longer than in previous years, the H-1B Petition should be submitted as soon after April 1 as possible in case they are used up quickly.
Question: Should I hire an Immigration Attorney or an H-1B Immigration Attorney to help?
Answer: There are many different parts to a successful H-1B. It would be in your benefit to hire an Immigration Attorney who has done a lot of H-1B Visa Petitions and has a track record of success.
H-1B work visa for specialty occupation
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If you have a college education and a sponsor in the United States, you may qualify for this visa. American Immigration permits this type of specialty occupation work visas. It can be approved in as fast as two to three months. This visa is usually issued for a period of three years. Should you decide to stay longer, it can be extended for another 3 years. There are a limited number of these visas per year, and therefore, if you have a sponsor, you should get started right away. As a sponsor, you must pay the prevailing wage to the employee. The prevailing wage is the wage that prevails generally and is the normal wage for that type of position. When the H-1B is being prepared, the government will let us know what is the prevailing wage.
If you later decide you want a green card, you can apply for ‘Labor Certification’ while you have your Specialty Occupation Visa. Your spouse and children can come to the U.S. once you are approved. Additionally, your children can go to school without any problem.
If you have a college education and a sponsor in the United States, you may qualify for this visa. American Immigration permits this type of specialty occupation work visas. It can be approved in as fast as two to three months. This visa is usually issued for a period of three years. Should you decide to stay longer, it can be extended for another 3 years. There are a limited number of these visas per year, and therefore, if you have a sponsor, you should get started right away. As a sponsor, you must pay the prevailing wage to the employee. The prevailing wage is the wage that prevails generally and is the normal wage for that type of position. When the H-1B is being prepared, the government will let us know what is the prevailing wage.
If you later decide you want a green card, you can apply for ‘Labor Certification’ while you have your Specialty Occupation Visa. Your spouse and children can come to the U.S. once you are approved. Additionally, your children can go to school without any problem.
H-1B work visa for specialty occupation visa
Filed under: H-1B | Tagged: H-1B, h-1b cap, h-1b immigration attorney, H-1B Specialty Visa, H-1B Visa, H-1B Visa Attorney, H-1B's, Specialty Occupation | Leave a comment »
Question: I entered the United States a couple of months ago as a visitor and would now like to work in the United States. I have a degree in Business with an emphasis in accounting and have a couple of firms interested in hiring me. Do I qualify for a work permit, and if so, what must I do?
Answer: First, based upon your degree, you qualify for what is known as a Specialty Occupation Work Visa. This is also known as the H-1B. It is meant for positions which require specialized knowledge and where a college degree is the norm for the industry. Therefore, your position would qualify. You would need to be hired as an accountant.
Question: How do you know that an accountant is a specialty occupation?
Answer: There are many sources that can be viewed from the Department of Labor. These sources are either on the internet, or in printed publication. It basically states what the normal duties for the particular position are and what are the normal educational requirements needed to successfully perform the job.
Question: What type of company must sponsor me?
Answer: As an accountant, any company can sponsor you. Every company can use an accountant. If you had said that you had a degree in biology, your sponsoring companies would have to be much narrower. They would specifically have to deal with biology. The H-1B can be full-time or part-time.
Question: Do I have to leave the U.S. to get the visa?
Answer: Yes, you would have to leave the U.S. to get the visa. However, should you want to stay in the U.S., you can get a change of status from B2 (Visitor), to H-1B (Specialty Occupation Work Visa) Then, you would not have to leave the United States in order to start working for the company. However, if you did leave the United States, you would have to get the Visa in order to return to the United States. It is always possible to get the Visa approved at INS, but to get it denied at the Consulate. You would want to take this into consideration if you decided to leave after successfully getting your status changed to H-1B.
Question: How long does it take to get the answer from INS on whether they will approve the H-1B Petition?
Answer: Now it is taking from 6 to 9 months depending where you live. Should you want it much faster than that, you can put it through INS via Premium Processing. This is exactly what it implies. It goes to the top of the stack and is processed by INS within 15 days of receipt. All you need to do is pay INS $1,000.00 for them to process it as a Premium Process case. If they do not get the answer back to you within 15 days, then you get your $1,000.00 back.
Thus, the H-1B is a very good visa for someone with a college education to have. If you can get a sponsor related to your college degree, then you can see if the H-1B can be done. Usually, it is issued initially for 3 years and can be extended for another 3 years. In cases whereby the person has applied for Labor Certification and has waited for a considerable period of time, they can now apply for an even further extension of the H-1B. It is one of the nicest and most popular work visas available.
Filed under: H-1B, Immigration Law, immigration provisions, Specialty Occupation, Work Visa | Tagged: Specialty Occupation, Work Permit | Leave a comment »
Question: I have heard a great deal about the new REAL ID Act. Can you summarize its provisions.
Answer: On May 11, 2005, President Bush signed Public Law 109-13, which included provisions of the REAL ID Act of 2005. This new measure provides for significant changes to existing immigration laws.
Sec. 101: Tightens evidentiary standards and burdens of proof for applicants for asylum and for relief or protection from removal. Removes entirely the annual limitations of 10,000 adjustments of asylees to lawful permanent resident status and of 1,000 grants of asylum or refugee status to persons resisting coercive population control methods. Clarifies that judicial review limitation in section 242(a)(2)(B) of the INA is applicable to USCIS discretionary decisions not necessarily arising from removal proceedings (this change appears in sec. 101 but is more closely related to the subject matter of sec. 106).
Sec. 103: Significantly amends and expands the terrorism-based grounds of inadmissibility in section 212(a)(3)(B) of the Immigration and Nationality Act, particularly with respect to membership, representation, endorsement or espousal, military-type training, material support, solicitation, and the definition of a terrorist organization.
Sec. 104: Provides a discretionary exception to inadmissibility for certain aliens who have endorsed or espoused, materially supported, or been a representative of a terrorist organization, and to the definition of certain groups as terrorist organizations, to be exercised by DHS or DOS in consultation with each other and DOJ.
Sec. 105: Significantly expands the terrorism-based ground of deportability in section 237(a)(4)(B) of the Immigration and Nationality Act to cover any alien described in the terrorism-based grounds of inadmissibility at section 212(a)(3)(B).
Sec. 106: Limits judicial review of removable orders, especially review in the district courts arising out of habeas corpus claims.
Secs. 201-07: Requirements that States must meet for their drivers’ licenses to be accepted for Federal purposes (such as boarding commercial aircraft or entering Federal buildings) will phase in and fully apply in three years. These requirements include verification of the citizenship or lawful immigration status of drivers’ license applicants (through the SAVE system in the case of aliens), the issuance of temporary drivers’ licenses valid only during the period of lawful stay in the United States to certain categories of aliens, and marking of nonconforming licenses to be recognizable as unacceptable for Federal purposes.
Secs. 301-03: Studies, pilot programs and communications integration with respect to border security.
Secs. 401-07: The “Save Our Small and Seasonal Businesses Act of 2005” contains a number of provisions intended to provide additional temporary or seasonal workers under the H-2B nonimmigrant category and otherwise to modify the H-2B program. These provisions include: A new exception for fiscal years 2005 and 2006 from the H-2B limitation of 66,000 per fiscal year for “returning workers” who have already been counted toward that limitation in any one of the previous three fiscal years, a new fraud prevention and detection fee of $150 for H-2B petitions for fiscal year 2006 and after, with the receipts to divided between the Departments of State, Labor and Homeland Security for antifraud activities; civil penalty and petition debarment authority for misrepresentations in H-2B petitions; a new division of the 66,000 H-2B limitation into semiannual limitations of 33,000 in order to provide H-2B workers for employers petitioning for the second half of the year; reporting requirements; and a discretionary exemption from certain statutory procedural requirements in order to ensure quick implementation (the “returning worker” provisions and the new fee are to implemented within 14 days of enactment).
Sec. 501: Provides up to 10,000 “specialty occupation” nonimmigrant admissions in new E-3 classification for nationals of Australia (similar to provisions previously enacted in free trade agreement implementing legislation relating to H-1B workers from Singapore and Chile).
Sec. 502: Provides for up to 50,000 employment-based immigrant visas authorized but unused in fiscal years 2001-04 to be available to employment-based immigrants described in the Department of Labor’s “Schedule A” (primarily, but not exclusively, nurses), and their accompanying family members.
Filed under: Immigration Law, immigration provisions, REAL ID Act, Specialty Occupation, USCIS | Tagged: READ ID Act, Specialty Occupation | Leave a comment »
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