Immigration Visa Lawyer Blog

We try to be proactive in our practice at our Washington DC office as we know employers will be banging on our doors closer to the dreaded April 1 deadline each year, and demanding that we file dozens of H-1b visa petitions for their prospective employees. I truly believe in educating the client because once armed with knowledge, they help me represent their interests and implement the best and most cost effective strategies that would achieve their business goals. When it comes to H-1b visa petitions, I normally go through the program highlights. But once I review the regulatory requirements, I am usually presented with a question that is all too familiar: H-1b or Not to Be? In other words, employers usually ask me: can I exploit another visa category for my employees? Is there another visa type that can be applied for? My answer usually is look at the statistics; in federal fiscal year 2007 for instance, there were 424,369 H visas issued at the various consular posts around the world while there was less than 200,000 other combined employment based non-immigrant visas issued. Said in a different way, the H visa program is utilized more than twice of all of the combined non-immigrant work visa categories that exist. This leads us to believe that the H visa category is of great utility to employers notwithstanding the somewhat cumulative regulatory requirements. Let me first review these regulatory requirements, and then let’s discuss other visa scenarios that I have been able to implement for my clients.

A. Basic requirements for the H-1b Visa Program:

1. Labor Condition Application Attestation: An employer must attest, through the filing of a Labor Condition Application ("LCA") that the H-1b visa employee will receive prevailing wages as those wages exist within the geographical area where the work will be performed. In addition, the employer must also provide certain notice at the worksite that it is about to file LCA and keep certain records showing its compliance with the LCA regulations. If the employer is deemed an H-1b visa dependant (or a willful violator), then the employer must also attest that it has not laid off US workers 90 days before and after the filing of the LCA.

2. Filing of the H-1b visa Petition: The filing of the H-1B visa petition follows the electronic filing and approval of an LCA. In other words, the employer completes the LCA process prior to the filing of the H-1b visa petition with the USCIS. The filing of the H-1b visa petition carries with a couple of requirements: a) the employer has the financial means to pay for the wages of the employee, and b) that the position is a specialty occupation.

3. Filing Fees: The employer must also pay certain filing fees: The H-1b visa program is the only non-immigrant visa type that has its own filing fee. They don’t come by cheap.

4. Numerical Limitations: There only 65,000 visas given annually to H-1b visa holders (1400 visas withheld for Chilean and 5400 visas withheld for Singaporean citizens) as well as 20,000 visas reserved for aliens who have attained a master’s degree from a US institution). Since federal fiscal year 2007, the USCIS has run out of visas on April 1, the first day employers were allowed to file for these visas.

B. Alternatives to the H-1B Visa Program:

Continue reading " H-1b or Not to Be Asks The Employer... " »

Posted by Gus M. Shihab | Permalink | Email This Post

Posted In: H-1B Visa

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People like to speculate. So do I. But I believe my speculation is an educated one. When it comes to increasing the H-1B cap, regrettably I do not foresee this in the near future. I read recently several news sources which predict we will see an increase in the H-1B cap early in an Obama administration. One example is an article in Computerworld entitled Why Obama may back an H-1B increase even in a recession.
I did a search on Obama and H-1B and could not find information that would give me confidence Obama will support an increase in the H-1B cap early in his administration. I do believe, however, that Obama will support an increase once the economy shows signs of recovery.

The issue of job loss was one of the hot topics addressed by Obama when he traveled through several key cities such as Columbus, and Cleveland in the battleground state of Ohio. The current economical/political condition and the various statements made by the President elect supports this view.

At best, Obama is neutral on this issue because he does not believe the H-1B cap increase will result in a positive impact on the bigger problems we are facing in the short term. Obama’s top priorities are the economy, jobs and national security. His priority is to create jobs for American workers, not for foreign workers, reversing the outsourcing trend. He also places priority on bringing about a comprehensive immigration reform as a component of national security concern. Unfortunately a general increase in the H-1B cap now does not directly advance or fit in any of his challenges. An H-1B cap increase at the present time may not even be reconcilable with bringing jobs home and reducing the escalating unemployment rate.

A more likely scenario is that Obama will play a wait and see role. There is some good news in my prediction to the high tech industry. Obama appears to attach high priority on solidifying our world dominance in innovation and engineering advancement. If Obama moves towards supporting an H-1B Cap increase early, we should anticipate it to be tailored to bringing foreign nationals that are highly skilled in engineering and other similar technological related fields.

Posted by Sam Shihab Esq. | Permalink | Email This Post

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My clients in Ohio, Michigan, Washington, DC and all across the nation are always nervous about the visa interview. They have every right to be nervous although, most of the time, they are able to easily obtain their visa stamped after anxieties of much anticipated difficulties at the consular office. The truth is that an alien who truly values life in the US, knows all too well that things at the visa stamping interview may go wrong which can threaten his or her future in the US. Well, if you have an H, L or O visa and you are thinking about getting your passport stamped, you should be aware of several things that could impact the duration of your visa stamping process:

1. Security Clearance Procedure: These processes are instituted to protect the US from the transfer of technology sensitive information and any potentially adverse issue touching national security. They are called Visa MANTIS or DONKEY; the way it works is that following a visa application, the consulate would request various agencies in the US (FBI, CIA, Drug Enforcement Agency, Department of Commerce, Office of Foreign Asset Control, Interpol, the national criminal and law enforcement databases, the DOS Bureau of Non-proliferation, etc.) to check on any issues that might be of a concern. This security process can be as short as a week and can take on several months. It is important to know that citizens of certain countries are likely to experience longer delays than others. The Visa Mantis program is explained on the US Department of State website.

2. Procedure at the Consulate: Prior to making your visa interview, please check these important steps which are explained at a great details. Be precise and deliberate. Follow the instructions as they are very simple. Most if not all of my clients are very intelligent individuals and I truly believe that they can successfully master these simple steps.

3. Petition Information Management Service (PIMS) system: This is a document sharing mechanism that is truly useful which allows the USCIS and the Department of State to make certain documents available to the US Consulates. This system can be used only if your attorney sends a duplicate original petition when requesting consular processing, a change or even an extension of status. The additional duplicate petition is sent by the USCIS to the State Department’s Kentucky Consular Center (KCC) which in turn scans it and places it in the system database that can be viewed by the US Consulates. The US Consulate will then be able to easily check the petition and all of the supporting documentation online through PIMS and will not have to rely on the alien to bring in a certified copy of the filed petition. It is highly advisable to take advantage of this system.

Following these simple steps can make the stamping process so much simpler. Best of luck.

Posted by Gus M. Shihab | Permalink | Email This Post

Posted In: H-1B Visa

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The H-1B reform debate is on again. Most believe that the H-1B visa program needs reform. Some lawmakers in Washington, DC are promising to introduce legislation to address this issue. The United States Citizenship and Immigration Services (USCIS) issued a report concluding that incidence of fraud in H-1B petitions are at an unacceptable rate of 13% and technical violations reaching 7.3%. Sen. Chuck Grassley has publicly released a statement reiterating his commitment to tighten H-1B and L visa program enforcement referencing his proposed H-1B VISA REFORM BILL TO PROTECT AMERICAN WORKERS introduced last year.

This debate will begin at a time of national economical crisis where 10.1 million Americans are currently unemployed according to the Bureau of Labor Statistics, US Department of Labor. Some states and cities, such as Detroit, Michigan and Columbus & Cleveland in Ohio, have not seen such high unemployment rates in years. The timing couldn’t be worse for such an important debate to be truly balanced and helpful. The fear of rising unemployment rate may trump the voice of reason in assuring that America has access to talent unavailable in the US to remain competitive in the world. Some raise the question as to whether USCIS can fully by trusted to issue a report regarding the H-1B program practices when they also have to justify collecting millions of dollars in fraud fees. Should this job be given to an outside agency not profiting from collecting fraud fee? Does USCIS feel pressured to find fraud in the program now that they are collecting a $500.00 fraud fee on each H-1B petition?

Continue reading " What is The Future of the H-1B Program ? " »

Posted by Sam Shihab Esq. | Permalink | Email This Post

Posted In: H-1B Visa

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If you follow H-1b news, you may have read about the increased Department of Labor (DOL) audit of companies that hire H-1b workers. It is clear now that The Department of Labor is conducting one the most extensive H-1b audit programs in recent history. One example is the GlobalCynex, Inc. audit. GlobalCynex Inc. is an information technology company located in Virginia, recently negotiated an agreement to pay almost $1.7 million in back wages to 343 H-1B employees after an investigation by DOL. DOL found that the company did not pay required wages from March 2005 to March 2007. It also found that the company charged H-1B workers training fees ranging from $1,000 to $2,500.

Having represented several clients in such H-1b audits, clearly DOL means business this year. In fact DOL has debarred ten companies from the H-1b program during the first half of this year alone. It has been our observation that the DOL's H1b audits have been very extensive in Michigan, Ohio and Washington DC. The consensus among H-1b dependent companies is that old models of doing business must change. Companies seem to be more interested in exploring methods to reform their practices and learn more about ways to avoid exposure to liability prior to paying the heavy penalties. Such newly revised business model that focuses on compliance and preventative measures as an integral part of managing the business is emerging out of necessity. However, before the transition is complete we expect to see heavier scrutiny by both USCIS and DOL in H-1b processing and enforcement.

Continue reading " Department of Labor H-1B Audits force companies to take second look at its own practices " »

Posted by Sam Shihab Esq. | Permalink | Email This Post

Posted In: H-1B Visa

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