Learn more about I-9 and H-1B compliance.

New Chapter Published:
Streamline Immigration & Increase ROI White Paper
Discover the 10 best practices that challenge the traditions and myths surrounding immigration law/legal services, which will streamline your current immigration process: 

• Chapter 1: Pick the right provider and manage the relationship for success
• Chapter 2: Use the right technology in structuring an efficient immigration process
• Chapter 3: Lower and control your cost
• Chapter 4: Define and frequently review your corporate immigration policy
• Chapter 5: Map the immigration process steps to educate stakeholders

Taking a deeper look into the immigration process, Chapter 5 will help you map the phases of the general immigration process and build process maps for your most frequently filed visas to gain a better understanding of responsibility, dependencies and timing involved. A fundamental understanding of the process will help you converse more effectively with involved stakeholders (sponsorship candidate/foreign national, hiring manager, recruiters, etc.) and appropriately manage their expectations

Download the white paper now.

Return to top

U.S. Immigration News

800 Slots Remain for FY2010 H-1B Cap
As of December 15, 2009, the U.S. Citizenship and Immigration Services (USCIS) has received 64,200 cap-subject H-1B petitions towards the fiscal year 2010 cap. After many months with flat demand, H-1B visa filings have recently spiked since October. Also, the FY2010 H-1B1 cap remains open and an option for Chilean and Singaporeans citizens who may miss the regular H-1B cap.

If the demand keeps trending, the H-1B cap for the 2010 fiscal year will be met soon! Thus, employers should plan accordingly to file H-1B petitions for their cap-subject foreign national employees as quickly as possible. Contact your immigration services provider ASAP to see if this is an option for you or your foreign national, before the cap is met.

USCIS indicated that there was an increase in H-1B petitions received recently, including approximately 2,000 petitions received in the days before Thanksgiving. While the advanced degree (Master’s) cap has been filed, there are approximately 800 slots remaining in the “regular” H-1B quota. The USCIS will continue to accept petitions filed on behalf of foreign nationals who previously have not held H-1B status, and any H-1B applicants with an advanced degree will continue to be counted toward the general 65,000 H-1B cap.

Further, the H-1B1 is available for nationals of Chile and Singapore. The statutory limit of 6,800 has not been reached for FY2010, and is not expected to be reached, so it remains an alternative option for Chileans and Singaporeans who miss the regular H-1B cap.

Return to top

DOS Announces Worldwide Deployment of Form DS-160
Most foreign nationals entering or re-entering the United States in valid nonimmigrant status (H-1B, L-1B, L-2/H-4, B-1, B-2, F-1 etc.) are required to possess a valid nonimmigrant visa stamp in the passport to facilitate entry or re-entry into the U.S. To obtain a valid nonimmigrant visa passport stamp, foreign nationals must apply for the stamp at United States consulates abroad. This process requires an in-person appointment at the consulate prior to visa issuance, and additional visa application forms that vary depending on the type of visa being requested. The new DS-160 (Nonimmigrant Visa Electronic Application Form) combines and replaces multiple forms that used to be in place. Worldwide deployment of the new DS-160 form has begun, and the Department of State’s (DOS) goal is to replace current nonimmigrant application forms with the new DS-160 by April 30, 2010.

While DS-160 was meant to streamline consular processing, the online form is even longer than its predecessors and the online interface is not entirely intuitive. If your foreign nationals submit their own consular processing forms, contact your immigration services provider to inquire about consular processing services to ensure a smooth transition if required to use the new Form DS-160.

On April 29, 2008, the Department of State’s Bureau of Consular Affairs (BCA) published a final rule, establishing the new Form DS-160, Nonimmigrant Visa Electronic Application Form, a fully integrated online application form that will be used to collect the necessary application information from persons seeking a nonimmigrant visa. The purpose of Form DS-160 is to improve visa processing by combining several of the current DS application forms such as DS-156, DS-157, DS-158, etc., into one form that can be submitted electronically. Consular Officers will use the information entered on the Form DS-160 to process the visa application and, combined with a personal interview, will determine an applicant’s eligibility for a nonimmigrant visa. The new form contains all of the options for visa applications in one form, which eliminates confusion when deciding which forms are necessary. The form will allow Consular Officers to review nonimmigrant visa application data before the applicant physically appears for interview, thus making the application process more efficient. It is important to note, however, that the new application does not minimize the requirement to provide proof of all economic and social ties outside the United States.

The new DS-160, Nonimmigrant Visa Electronic Application, is currently being used at the following U.S. Embassy/Consulate locations:

• Australia; Melbourne, Perth, and Sydney

• Bermuda; Hamilton

• Canada; Montreal and Vancouver

• Hong Kong

• Ireland; Dublin

• Libya; Tripoli

• Mexico; Ciudad Juarez, Hermosillo, Matamoros, Monterrey, Nogales, Nuevo Laredo, and Tijuana

• Montenegro; Podgorica

• Russia; Moscow, St. Petersburg, Vladivostok

Return to top

January 2010 Visa Bulletin & Priority Date Explanation
Priority dates will finally begin to move forward again as we head into the second quarter of Fiscal Year 2010. Even more significantly, the U.S. Department of State (DOS) offered detailed insight into recent Visa Bulletin trends, and provided projections for the movement of priority dates for the rest of the fiscal year.

The January Visa Bulletin shows forward movement for virtually all employment preference categories:

• The priority date for Chinese nationals in the EB second category moved from April 1, 2005, to May 1, 2005.
• For the fourth visa bulletin in a row, the priority date for Indian nationals in the EB second category remained at January 22, 2005, while the priority date for the EB third (skilled workers, professionals, and other workers) category moved forward, this time by almost two months to June 22, 2001.
• Priority dates for all other nationals in the EB third category except Mexicans moved two months ahead, from June 1, 2002, to August 1, 2002. The cut-off date for Mexican nationals moved ahead one month, to July 1, 2002.
• The priority date for Indian nationals in the EB third category (other workers) also moved to June 1, 2001, which is a return to the same cut-off date as other countries.

While it was encouraging to finally see the healthy progress of this month’s priority dates, even more important was the DOS’ explanation regarding how projections are made for the selection of priority dates, and its predictions of employment-based immigrant visa number usage for the remainder of FY2010.

The mechanism of determining priority dates is generally already known. If the number of visa numbers available in a given preference category exceed the number of “documentarily qualified applicants,” that category is considered “current.” However, where the number of applicants exceeds the availability of visa numbers in a certain month, a cut-off priority date must be established in order to ensure that only those with the oldest priority dates are processed.

For example, the DOS explains, if the monthly visa number target for the EB third category is 3,000, but there are 8,000 “documentarily qualified applicants,” then a cut-off date must be set. That cut-off date is equivalent to the priority date of the 3,001st applicant.

The DOS does not fully explain what a “documentarily qualified applicant” is, but does confirm that the reason demand fluctuates is because not every applicant with a priority date earlier than the established cut-off is ready for “final visa action.” Also, each passing month brings new immigrant visa applicants at both the consular posts and the U.S. Citizenship and Immigration Services (“CIS”). Because of these and “other variables,” the number of qualified total applicants can change each month.

The DOS also goes on to explain how it allots the per-country quotas for the 226,000 family-based immigrant visas and the 140,000 employment-based immigrant visas available each fiscal year. The limit is statutorily set at 7% of the total of 366,000, i.e., 25,620 per country. The number of visas issued to any single country cannot exceed this figure; this helps to avoid monopolization of visa numbers by applicants from only a few countries.

The DOS explained that priority dates progressed slowly in the Visa Bulletins for October and November 2009 because of excessive demand after so many categories were “unavailable” for a number of months towards the end of FY 2009. However, the DOS noted that the CIS has begun to process cases to completion more efficiently, which contributed to the forward momentum seen in this month’s Visa Bulletin.

Because of this momentum, the DOS has predicted that the EB first preference category will not have cutoff dates assigned anytime this fiscal year. There had been some discussion of the possibility that increased demand by Chinese and Indian nationals might cause retrogression.

The DOS further confirmed that the status quo would remain in place for the EB second category. Demand by China and India may still cause the category to become unavailable if the limit is reached before the end of the fiscal year, as happened last fiscal year. However, the DOS confirms that it has and will apply a special provision of the Immigration and Nationality Act (section 202(a)(5)) that would allow unused numbers in other employment-based visa categories to be used for Chinese and Indian applicants in the EB second preference category. Whenever this happens, the priority dates for all countries should theoretically be the same, since immigrant visa numbers must be assigned strictly in order of priority date. In other words, an Indian or Chinese national should not receive a green card under section 202(a)(5) before another foreign national whose application is ready for final action, so long as the other foreign national’s priority date is earlier.

Finally, the DOS gave its final predictions for FY 2010, which are “best case scenarios” that are “based on current indications of demand:”
 
EB Second

• China: July to October 2005 (5 months’ progress from the January 2010 Visa Bulletin)
• India: February to early March 2005 (+1.5 months)

(If section 202(a)(5) were to apply, both categories might move to somewhere between October through December 2005 (+7 months for China; +10 months for India)

EB Third

• Worldwide: April through August 2005 (+3 years)
• China: June through September 2003 (+1 year)
• India: January through February 2002 (+8 months)
• Mexico: January through June 2004 (+2 years)
• Philippines: April through August 2005 (+3 years)

The DOS of course does not guarantee that the priority dates will actually progress to these points by the end of the fiscal year, as progress is always subject to fluctuations in demand. It is always possible for the per-country and overall visa number limits to be reached before the end of year. However, the DOS’ insights are exceptionally useful, especially for those foreign nationals who know that they must wait many years to finally receive their green cards.

Employment-Based Visa Bulletin for January 2010

Legend

• C = current as there is no waiting period necessary to file the I-485
• U = unavailable as visa supply has been exhausted for the remainder of fiscal year, or legislation creating the category has expired
• Date indicated = cut-off date that indicates a backlog; if the priority date (date the labor certification or I-140 was filed, depending on the type of case) is BEFORE date listed, the I-485 can be filed

Employment-based Preferences

• First: Priority Workers
• Second: Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability
• Third: Skilled Workers, Professionals, and Other Workers
• Fourth: Certain Special Immigrants
• Fifth: Employment Creation

Return to top

International Immigration News
 

Common Misconceptions: U.S. Citizens & Global Immigration
There are many misconceptions about global immigration when employing U.S. citizens abroad. Many of these misconceptions arise from not having a clear understanding of rules and regulations. For example, we are often asked if U.S. citizens are able to legally work in other countries as long as its under 90 days or if U.S. citizens need a work permit for Canada.

You should be aware of these common misconceptions, and we suggest conducting a self-evaluation of your current processes to ensure immigration compliance. Consult your immigration services provider for additional guidance.

Top global immigration misconceptions include:

US citizens can work anywhere in the world without a work permit (or at least up to 90 days)
While many countries allow U.S. citizens to travel to a country without a visa for up to 90 days, this does not mean they can work. If U.S. citizen is going to be working in a foreign country, the must secure the proper work authorization.

U.S. citizens do not need a work permit for Canada
The North America Free Trade Agreement (NAFTA) does allow for U.S. citizens a shortened immigration process. Under the normal Canadian Immigration process, an employer would have to submit a labor market opinion (LMO) to the Human Resources and Social Development Canada office. Under NAFTA, U.S. citizens still require a work permit to work in Canada, however they are allowed to bypass the LMO process. U.S. citizens who qualify under NAFTA are those traveling for business visit, professionals, intra-company transferees, and traders and investors.

U.S. citizens can work without work permit in countries the U.S. has visa waiver agreements with by leaving every 90 days and re-entering
Visa waivers are set up with certain conditions, but do not allow U.S. citizens to work without proper work permits.

U.S. citizens working on a short trip (i.e. a week) only need a business visa and not a work permit
U.S. citizens can travel on business to most countries, but regardless of duration U.S. citizens need a work permit to conduct work.

U.S. citizens with a previous work permit only need a business visa to re-enter the same country
Unless a previously granted work permit is still valid, a U.S. citizen will need a new work permit upon re-entering the same country.
 

Return to top

Three Balkan Countries Added to EU’s Schengen Visa
As of December 19, citizens with biometric passports from the former Yugoslav Republic of Macedonia, Montenegro and Serbia will be able to travel throughout the EU’s “Schengen Area. Tourist or business visitor travel will be visa-exempt within the now 28 Schengen countries for a maximum stay of up to 90 cumulative days over a six-month period. However, if these Balkan citizens will be working within the Schengen Area, they will still need to apply for work permits under the particular host country’s national immigration laws.

These changes are important to note for any of your Balkan foreign nationals, as they will no longer need business visas within the Schengen countries, but will still require work permits. Contact your immigration services provider with any Schengen Visa inquiries.

Return to top