Articles Posted in Work Visas

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At around this time of the year, there is a split among foreign nationals and U.S. companies. Approximately one-third of them are celebrating the fact that their H-1B petitions were selected in the lottery, and the remaining two-thirds are either still anxiously awaiting notice that their petitions have been selected or bemoaning the fact that their petitions were not selected. If your H-1B was not selected in this year’s lottery (or last year or the year before that), do not panic just yet. There may be a multitude of other visa options available to you if you still want to live and work in the United States.stack of paper

Possible H-1B Visa Alternatives:  Other Work Visas

The H-1B visa, while very popular, is by no means the only employment-based visa available to foreign national workers. If the worker has been employed by a foreign company that also has a branch, parent, subsidiary, or affiliate operation in the United States, the worker may qualify for an L-1 visa. There are two types of L-1s:  L-1A visas for executives and managers, and L-1B visas for workers who possess specialized knowledge. The L-1A can also be used by an executive to come to the United States to open a new office for the foreign company.

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Around this time of year, many foreign workers and U.S. companies are faced with a dilemma:  the worker’s H-1B petition was not selected in the lottery.  Since there are only 85,000 H-1Bs awarded each year, and USCIS received more than 236,000 applications this year, it comes as no surprise that thousands of foreign workers and their employers are in this situation.flag

If your H-1B wasn’t selected in the lottery, you may have another option to stay and work in the United States.  Read on to learn more about these options and contact our office today to discuss your case in depth with an experienced immigration attorney.

1.  A different worker visa may be available.

There are many different types of employment visas.  The H-1B happens to be the most popular, but there are hundreds of thousands of foreign workers who are in the U.S. with another visa, such as the O-1 or the L-1.  The O-1 requires the foreign national to be particularly experienced and accomplished in his or her field.  Specifically, the worker’s U.S. employer must show the worker has extraordinary ability.

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Capitol-Senate.JPGFor once, we are very happy to report that our breaking news is good news for a change. Last week, U.S. Citizenship and Immigration Services (USCIS) Director León Rodríguez announced that the Department of Homeland Security will be implementing the needed regulations to extend work authorization eligibility to certain H-4 spouses of H-1B workers. Until now, hundreds of thousands of these spouses had been unable to apply for work authorization on the basis of their H-4 status. This announcement comes as great news for these foreign nationals, and for the many American businesses that will benefit from the ability to hire these workers.

The Journey to H-4 Work Authorization

A number of H-4 spouses have been in the U.S. for several years, and during that time many of them have obtained Master’s degrees, law degrees, and Ph.D. degrees from prestigious U.S. universities. Additionally, these foreign nationals also usually have work experience in critical fields that they gained while living in their home countries. Thus, the skills, knowledge, and experience that many H-4s possess make them a tremendous yet untapped resource for American businesses seeking to hire talented prospective workers.

Many members of Congress and American companies recognized this untapped potential years ago, and the idea of extending work authorization eligibility to H-4s has been discussed in the national arena over the past few years. However, it did not become a reality until President Obama announced his executive orders in November 2014, which included the provisions for the H-4 work authorization.
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964707_capitol_place_2.jpgWith the New Year comes the new Republican-controlled Congress. Many immigrants and immigrant advocacy groups are not optimistic that the new Congress will take steps to safeguard and promote immigrant rights. Instead, these groups are worried that Congress will move in the opposite direction and pass laws to further restrict and complicate America’s already hugely complex immigration system.

However, amid the Republicans’ promises and threats that they will punish the President for his recently announced executive orders, there seem to be very positive discussions that indicate the Republicans are ready to act on at least one piece of pro-immigrant legislation. According to several inside sources on Capitol Hill, the Republicans are collaborating to introduce a single bill that would greatly improve the existing H-1B visa system.

The I-Squared Act

The bill the Republicans are working on is called the I-Squared Act, which is shorthand for the Immigration Innovation Act. The groundwork for its introduction into the House of Representatives has already been laid, since the legislation currently enjoys bipartisan support. With 26 co-sponsors from lawmakers all over the country, the I-Squared bill may be the first piece of immigration-related legislation that is introduced in 2015.
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1416931_untitled.jpgAs explained in previous https://www.immigrantings.com posts and widely discussed in the press and on the Internet, every year only 65,000 foreign workers (and additional 20,000 workers who have earned U.S. Master’s degrees) will receive H-1B visas. This limitation is called the H-1B cap or H-1B quota and is congressionally mandated (though there are a number of foreign workers and institutions that are cap-exempt and therefore are not counted towards the quota).

The H-1B cap presents unique challenges for foreign workers and U.S. employers alike as every year thousands of businesses file H-1B petitions for employees, only to find out that the cases were not selected in the lottery that U.S. Citizenship and Immigration Services (USCIS) conducts every year if USCIS receives more than the allotted amount of H-1B petitions.

Many of these would-be employees are foreign students who have recently graduated from U.S. universities with degrees in the highly sought after fields of Science, Technology, Engineering, or Mathematics (the STEM fields). In 2008, Congress amended the previous rules for foreign students by allowing them to work in the U.S. for up to 29 months pursuant to a program called Optional Practical Training (OPT).
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By now you’ve probably heard Andy Williams harking ad infinitum “It’s the most wonderful time of the year!” on the radio, in department stores, in television commercials, and in the earworm I’ve just planted deep, deep inside your brain (you’re welcome!). We at S&R aren’t talking about wintertime festivities, of course; we’re talking about H-1B season.

That’s right, boys and girls; it’s that time of year again when employers and prospective long-term employees need to begin thinking about H-1Bs. Just as Christmas decorations and promotions for holiday sales seem to creep earlier and earlier each year, we here at S&R see the need for our clients to begin thinking about H-1B sponsorships earlier rather than later.

Ugh. Why?

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2013_Inauguration_Obama_oath.JPGThe issue of immigration in the high-tech sector featured prominently in President Barack Obama’s second inaugural address on Monday, January 21, 2013. Business leaders and immigration advocates have been calling for reforms to work visas, particularly H-1B visas. They cite a demand for highly-skilled workers and the injustice of forcing students, upon graduation with an advanced degree, to return to their home country even if they would prefer to stay–and work–in the U.S. The need for immigration reform is great in many areas, including reuniting families or keeping families together, offering shelter to people fleeing persecution, and simply offering people a chance to achieve the American dream. Meeting the needs of the American business community, particularly the demand for workers with high-tech skills, is a vitally important part of immigration reform.

President Obama on High-Tech Immigration Reform

President Obama has referenced the need to expand immigration for workers with high-tech skills several times recently. In his second inaugural address, he spoke of the need to make further investments in science, technology, education, and mathematics (STEM) education, and to promote immigration for individuals to study and work in those fields. The president also addressed immigration reform during his 2012 State of the Union Address last year, noting that if the thousands of immigrant students who obtain STEM degrees are not allowed to remain in the U.S. after graduation, they will “invent new products and create new jobs somewhere else.”
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by Ken Robinson, Attorney and ImmigRanter at Slowik & Robinson, LLC

S-R HIB RantsCongress, the Department of Homeland Security, United States Citizenship and Immigration Service (USCIS), the U.S. Department of Labor (DoL), and the U.S. Department of State have been making the process for obtaining H-1B visas progressively more difficult over the years, placing annual numerical limitations (the H-1B “cap”) on the number of visas available in that category, adopting adjudication policies with ever higher and often unreasonable standards, and modifying government interpretations as to the definition of employer. The H-1B visa is the workhorse of temporary employment visas in the arsenal of visa classifications. It is often used by foreign students who come to the U.S. to begin their careers here – students who contribute to areas where our workforce is lacking – most notably in the STEM (science, technology, engineering and mathematics) fields.

The cap for H-1B visas is set at 65,000 for “traditional” H-1Bs and another 20,000 for those beneficiaries who have graduated with a U.S. master’s degree or higher. Despite a greater demand than inventory, the cap has not increased in over a decade. The demand for H-1B visa workers has increased significantly after a temporary decline during the most recent recession. An H-1B visa lottery is now held when the number of U.S. employer petitions outnumber the available visas.

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Obama-Immigration-reformWow.  Big news today!  Via a Policy Memorandum, President Obama is taking enormous steps towards addressing illegal immigration in the U.S.  Effective today, hundreds of thousands of young immigrants–up to an expected 800,000–brought to the U.S. illegally as children will be able to obtain work permits and be immune to deportation.

Who qualifies under this new policy?  From the Memo issued by the Secretary of Homeland Security, Janet Napolitano, a person must:  have first come to the U.S. while under the age of sixteen; have continuously resided in the U.S. for a least five years preceding the date of the memorandum and is currently present in the U.S. on the date of the memorandum; is currently in school, has graduated from high school, has obtained a general education development certificate, or is an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; has not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise poses a threat to national security or public safety; and is not above the age of thirty.

Read the Memo below to see more about the President’s new policy.

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by Ken Robinson

hibThe H-1B visa is a visa classification used by some foreign national who will be temporarily employed–full- or part-time–in a specialty occupation by an employer.  A specialty occupation is one which requires a theoretical and practical application of a body of specialized knowledge, along with at least a bachelor’s degree or its equivalent related to the occupation.  For example, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts are all areas in which specialty occupations are routinely found.  But what about, say, fashion designers?  Does someone who designs t-shirt graphics for a multinational company qualify as someone in a specialty occupation?

Restaurant/hospitality managers?  Marketing professionals?  The Service makes employers–and their immigration counsel–jump through hoops in order to demonstrate that the position qualifies as a specialty occupation.  This creates an evidentiary burden for employers which is overly cumbersome, with the net effect of creating obstacles to employment where none ought to be.  We recognize that employers should demonstrate that an employee qualifies for a specialty occupation.  But, cases from just two years ago, where the H-1B was readily granted, are now generating undue inspection from the Service.  That’s problem number one.