Articles Posted in Free Trade (TN, E-3)

It’s H-1B season and the business immigration attorneys at Romben Law, APC are busy once again fielding phone calls and inquiries regarding employment-based visas, including those of L-1 and new company visas. In the past few years, the USCIS and US Department of Labor have suspected newer and small companies of fraud, especially within the immigration system. New procedures and increased scrutiny of employment-based cases have made H-1B petitions and H-1B visas especially more difficult to attain.

Today’s Wall Street Journal ran a story about the very disturbing trend revealed by the Securities and Exchange Commission that small private companies are merging with public shell (dormant) companies instead of going through more rigorous methods of becoming public, avoiding initial public offerings. SEC Commissioner, Luis Aguilar announced that since January 2007, 600 of such “backdoor registrations” occurred and most notably, more than 150 of these occurred in and around China.

It’s no secret that the USCIS, as part of the US Department of Homeland Security (USDHS) is engaged in “national security, fraud detection and prevention.” The DHS now has an unit attached to it which investigates corporations suspected of defrauding the government specifically through the H-1B program and other visa categories. This has made adjudications of all H-1B applications much more difficult and I believe we will see strict review of all H-1B and work related applications. —ecf

So the H-1B cap for FY 2011 was finally reached on January 26, 2011. Petitions delivered to a USCIS service center on the 26th, will undergo the H-1B lottery, and if you “win” a slot for the coveted last day to submit an H-1B for FY 2011, your case will go on towards adjudication. Petitions that do not get “chosen” through the lottery, will be returned, along with filing fee checks and all documentation.

For the rest of you reading who are still looking for a job, or perhaps using your time on OPT which may expire in the next few months, the obvious question is “what next?” Aside from getting your petition ready for an April 1, 2011 filing (allowing an October 1, 2011 start date), the options care woefully limited.

F-1 students with degrees in the so-called “STEM” majors (science, technology, engineering and medicine) can apply for an extended OPT period. Others may be out of luck if they can’t find a job offer that is H-1B eligible. Other than extending F-1 status by pursuing another degree or perhaps some type of certificate program in your major, some people will opt for a J-1 internship which allows professional graduates to work for up to 18 months in an internship program that is certified by USCIS through a J-1 sponsoring organization. Other options might be an O-1 if you are of extraordinary ability or perhaps you might be eligible for an investors visa if you are the entrepreneurial type. For more information on what your options might be, visit our website at www.jfonglaw.com and fill out an intake form so we can help you decide your next move. –ecf

I’ve been fielding a lot of calls for PERM lately. I’m not sure if it’s related to the fact that indications for the private sector and employment numbers are on the rise or if it’s the beginning of a new year and everyone wants to start their permanent residency applications, or just what.

Either way, I wanted to summarize just what it takes to start and submit a successful PERM application. PERM, which is the formal name for the Department of Labor’s (DOL) foreign labor certification application, Form ETA 9089 – is a complicated process. Before an applicant even deals with the USCIS, an applicant’s employer must conduct a formal recruitment campaign, setting out advertisements for the employment opportunity and only after weeks of advertising plus a 30-day quiet period, can a PERM application be submitted. A useful overview of the entire process can be found at our website: www.jfonglaw.com
In the meanwhile, a lot of things must be achieved during this time: DOL’s independent verification of the company’s existence, a prevailing wage determination also by DOL, and of course, meticulous documentation of the advertisings and recruitment results. If all goes well, a PERM applicant may see their application lodged with the DOL some 2-4 months after starting the process. Current processing times once a labor certification has been submitted are surprisingly short right now. Our office recently received a labor certification approval within 2.5 weeks of submission. And while I can’t ensure that this trend continues, it is a welcome surprise. I will explain the second and third stages to a PERM application in the next blog, so please check back in a couple of days. —ecf

Yet another update to the H-1B quota, also known as the Fiscal Year (FY) 2011 H-1B cap.

Approximately 34,900 cases have been receipted by USCIS for the regular Bachelor’s degree H-1B quota.

Approximately 13,000 cases have been receipted by USCIS for the advanced degree H-1B quota open to applicants who have earned Master’s or higher degrees from US colleges and universities.