Visa Lawyer Blog

Articles Posted in Nonimmigrant Visas

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Presently, the Employment and Training Administration’s (ETA) Office of Foreign Labor Certification (OFLC) is experiencing significant delays in processing employer H-2B certification applications.  These delays are owed to various factors. The most important includes a mandatory 17-day certification pause that took place at the Chicago National Processing Center, for the purpose of implementing revisions of the H-2B prevailing wage and other standards required by law. Additionally, the OFLC announced that the amount of H-2B certification applications received has doubled in comparison to the previous year. Lastly, the electronic filing system iCERT, experienced significant technical problems, slowing the certification process down significantly for employers of H-2B workers. Unfortunately, these delays have diminished an employer’s ability to hire foreign workers during a time of need, and have had an adverse affect on small businesses who depend on these temporary and seasonal workers to perform work that cannot be readily filled by American workers.

To alleviate the certification backlogs, the Chicago National Processing Center has announced that employers may file an emergency request for expeditious handling of their applications under 20 CFR 655.17.

Expeditious Requests for Emergency Procedures under 20 CFR 655.17:

  • Based on the factors causing the backlogs, the OFLC has determined that employers are entitled to request expeditious emergency procedures for their currently pending applications for certification, under 20 CFR 655.17, on the basis of good and substantial cause. Emergency requests are warranted given that the backlogs caused by the delays in the application process are considered outside of the employers’ control, that employers have suffered unforeseen changes in market conditions because of the delays, amid a climate of uncertainty.

Employers with pending H-2B applications for certification must submit their expedite requests for emergency procedure, by email to the Chicago NPC at ER.H2B.Chicago@dol.gov beginning Monday February 22, 2016 (12:01 AM) through Friday April 1, 2016 (at 12:00 midnight). Requests may also be made by fax (312) 886-1688 or by US mail to:

ATTN: H-2B Request for Emergency Handling

U.S. Department of Labor ETA OFLC

Chicago NPC

11 West Quincy Court

Chicago, IL 60604-2105

The NPC may extend this emergency request period beyond April 1, however at this time no such extension has been announced.  Filing a new H-2B application is not necessary for an expedite request.

Employers filing for emergency treatment under 20 CFR 655.17 must request that the pending application for certification and proposed job order be “incorporated by reference” into the request made under 20 CFR 655.17, and state the withdrawal of the prior application. The procedure for submitting an expedite requested will be listed below.

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Beginning February 19, 2016 certain nonimmigrant Caribbean residents seeking admission to the United States as H-2A agricultural workers, will be required to obtain a valid passport and valid H-2B visa in order to be admitted. Spouses and children traveling with an H-2A agricultural worker will also be required to present a valid passport and H-2A visa. The H-2A nonimmigrant visa exception for Caribbean residents was first introduced during World War II in an effort to address labor shortages in the American workforce. The change, comes as part of the revised 2016 Omnibus Appropriations Bill, which eliminates the nonimmigrant visa exception for these individuals, along with other provisions that impact the H-2B nonagricultural visa program. The new rule will apply to nationals of the United Kingdom, France, the Netherlands and nationals of Barbados, Grenada, Jamaica, Trinidad and Tobago, who either maintain a residence in a territory governed by England, France, or the Netherlands located in the adjacent islands of the Caribbean, or maintain a residence in Barbados, Grenada, Jamaica, or Trinidad and Tobago. The change was validated in yesterday’s Federal Register by the Department of State and Homeland Security respectively. Removal of this visa exemption will allow the Department of State to properly screen individuals prior to their arrival in the United States, and further protect agricultural workers from employment violations and work related abuse. To learn more about the H-2A visa program click here.

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For this month’s staff spotlight, we invite you to learn more about Legal Assistant, Reagan Volkman.

Ms. Volkman was born and raised in San Diego, California. She pursued her studies at Cuyamaca and Grossmont College graduating in December 2014 with degrees in History, the German language, and Paralegal Studies. She is fluent in German and has knowledge of American Sign Language. At the office, she assists attorneys with drafting, compiling, and filing family-based immigration petitions including applications for adjustment of status, I-130 consular processing, removal of conditions, naturalization, fiance visas, change of status petitions, and much more.

“The best part of my job is meeting and working with such a diverse group of people. It is very rewarding to be able to make a difference in the lives of others.”

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On January 21, 2016 the Department of Homeland Security confirmed that the Visa Waiver Program Improvement and Terrorist Travel Prevention Act would begin to be implemented. As a result of the recent terrorist attacks in San Bernardino county and abroad, Congress passed the Act in an effort to protect Americans from potential attacks and to secure the border. The Act increases travel restrictions for certain nationals seeking admission to the United States via the Visa Waiver Program.

Presently, the Visa Waiver Program allows nationals from 38 designated countries to travel and seek admission to the United States without a visa, for a maximum duration of 90 days. Visa Waiver Program travelers must have an approved Electronic System for Travel Authorization (ESTA) before travel.

As of January 21, nationals of visa waiver participating countries who have traveled to or been present in Iran, Iraq, Sudan, or Syria on or after March 1, 2011 will no longer be eligible to travel or seek admission to the United States under the visa waiver program.  Nationals from visa waiver participating countries who maintain dual nationality with any of the aforementioned countries, are also excluded from traveling or seeking admission to the United States under the visa waiver program. Instead, these individuals must apply for a tourist visa at a United States Consulate or Embassy abroad before seeking admission to the United States. Part of this process will require a nonimmigrant interview to be conducted, before issuance of a tourist visa. DHS expects that this new legislation will not adversely impact visa waiver program travelers, since the Act does not ban these individuals from traveling to the United States, rather it removes the privilege of traveling under the visa waiver program, and requires these individuals to apply for a tourist visa.

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Beginning December 18, 2015, H-1B and L-1 filing fees will increase for H-1B/L-1 dependent employers, employing 50 or more employees, with more than 50% of those employees in H-1B or L nonimmigrant status. This increase in fees comes with the passage of the Consolidated Appropriations Act, 2016 recently signed into law by President Obama, to be enforced until September 30, 2025. The new fee will apply to initial and change of employment H-1B and L petitions filed on or after December 18, 2015. The additional fee will be $4,000 for H-1B petitions and $4,500 for L petitions. USCIS will be revising Form I-129 and I-129S to reflect the new law and the additional fee. Petitioner’s are advised to accurately complete Item Numbers 1d. and 1d1. of Section 1 of the H-1B Data Collection Supplement and Item Numbers 4a. and 4b. of the L Supplement. Failure to complete this information accurately and include the appropriate fee where necessary may result in the rejection of your petition beginning February 11, 2016. CIS reserves the right to issue a request for evidence to determine if the additional fee will apply. In these cases, the original filing date will be maintained as the date of receipt of the petition.

Other fees that may be included in the H-1B petition are as follows:

  • I-129 processing fee $325;
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mayaFor this month’s staff spotlight, we invite you to learn more about Paralegal, Maya Elkain.

Ms. Elkain began her journey with the Law Offices of Jacob J. Sapochnick in 2014 as an intern. She quickly learned the ins and outs of employment based immigration law and was offered a position. Today, she assists attorneys with the preparation of H-1B applications, E-2 investor visas, L-1A visas, O visas, National Interest waivers, provisional waivers of unlawful presence, and much more. Ms. Elkain specializes in employment-based immigration and investor petitions. With her assistance, our law office has been able to receive affirmative decisions in numerous cases.

“The best part of my job is having the opportunity to make a difference and actually help our clients succeed in their immigration process. It is the most rewarding feeling.”

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What is the H-1B Visa? The H-1B visa is a work visa that is awarded on a lottery basis. The H-1B visa program allows American companies and/or qualifying organizations to employ foreign workers to fill specialty occupations temporarily. The foreign worker must posses a combination of education, specialized training, and/or experience that is equivalent to training acquired by the attainment of a U.S. bachelor’s or higher. The H-1B program was first enacted by Congress with the intention of helping American employers seek out distinguished foreign workers, possessing the skills and abilities necessary to perform the duties of the specialty occupation. The H-1B program has remained popular because it has allowed American employers to remain competitive and provides highly skilled foreign workers a path to permanent residence.

The provisions of the H-1B visa program allow qualified foreign workers to attain temporary employment having met specific requirements. H-1B visa recipients typically work in the STEM fields as scientists, engineers, computer programmers, software developers, business analysts, etc. although fashion models are also classified under the H-1B category.

USCIS will begin to accept H-1B cap-subject petitions for fiscal year 2017 beginning April 1, 2016. April 7, 2016 is the absolute deadline to file an H-1B cap-subject petition. Please note: employers cannot file an H-1B petition for an employee more than 6 months before the employee’s intended start date. If accepted, H-1B visa workers can begin employment by October 1st. The H-1B visa is issued for up to three years but may be extended for another three years.

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On Thursday, December 31, 2015 the Department of Homeland Security published a new proposed rule affecting highly skilled immigrant and non-immigrant workers alike. The proposed rule, introduced in last week’s federal register, aims to improve the ability of American employers to hire and retain highly skilled workers waiting to receive their employment-based lawful permanent residence in the visa bulletin backlogs. Additionally, the proposed rule aims to enhance opportunities for such workers allowing them to be more easily promoted, to accept lateral positions with their current employers, change employers, and pursue other employment. While the proposed rule is not groundbreaking, it does address important challenges employers and their highly skilled workers have faced as the law stands today and makes recommendations for such relief. The proposed rule will be open for comment until February 29, 2016.

You may remember that on November 20, 2014 the President highlighted, as part of his executive actions on immigration, that the employment-based immigration system needed to be amended to modernize, improve, and clarify immigrant and nonimmigrant visa programs in order to create more jobs, foster innovation at home, retain a highly skilled workforce that would allow the United States to compete with other countries, and to stimulate the American economy overall.  In order to modernize the employment based immigration system, USCIS would be required to work with the Department of State to modernize and simplify the immigrant visa allocation process. Part of this process would require the Department of State to make reasoned projections of employment-based immigrant visa availability on the visa bulletin, that could be relied upon by employers and their highly skilled workers.

Presently, immigrant workers from India and China are experiencing extraordinary delays in the employment-based queue for permanent residence, while other highly skilled workers are forced to wait over a five-year period to receive company sponsorship and lawful permanent residence. Furthermore, such workers are forced to remain on temporary employment-sponsored visas in the United States while waiting for an immigrant visa to become available to them. This puts the immigrant worker in a predicament giving the employer the upper hand, while restricting the employee from seeking advancement and discouraging new employment, since this would require the employer to file a new petition and incur the expensive fees required for filing. Highly skilled works facing extortionate delays in the visa backlogs have experienced hindered employer/employee career advancement and job mobility. The new rules will provide limited relief in this area.

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As previously reported, the STEM Optional Practical Training (OPT) rule that had been in place since 2008, was invalidated following a court order requesting the Department of Homeland Security to issue a new replacement rule. The court gave the DHS until February 12, 2016 to come up with a replacement rule in order for the STEM OPT program to continue. In order for a new replacement rule to be put in place, DHS was required to publish the final rule 60 days before its effective date, according to procedural rules established by the Administrative Procedures Act. In order to meet such a deadline, DHS needed to have published the final rule by December 14, 2015 in order for it to be enforced by the February deadline. Luckily, the government filed a motion to extend the stay of the court order—to May 10, 2016, thus requesting an additional 90 days for the government to implement a final rule. In order for the motion to be successful the government must establish that exceptional circumstances warrant such relief to be given. The government has argued that there is an unprecedented amount of comments that cannot be reviewed and analyzed by the February deadline. During the comment period, DHS received over 50,000 comments that it must review, revise, and finally publish a final rule. The court is not expected to rule on the motion until early 2016. Meanwhile the plaintiffs of the original suit have filed an appeal before the DC Circuit Court arguing that the OPT program is not within the authority of the DHS.

If the motion is unsuccessful, the government may file a motion at the district court level or request a stay of the court’s injunction at the circuit court level. In any case, those affected should be aware that the government still has several avenues through which relief may be granted: (1) the Judge may grant the government its requested 90-day delay on the present motion; (2) the Judge may later grant a complete stay pending appeal of the injunction; or (3) the DC Circuit may stay the Judge’s injunction while it considers the merits of her rulings in the underlying case.  CIS has not yet released official correspondence explaining whether students affected will be granted a STEM extension after the February deadline.

For more information please contact us.

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Do’s and Don’ts

If you are considering applying for a temporary visitor visa to travel to the United States for purposes of leisure or to receive temporary medical treatment, there are several things you should be aware of. First, you should understand what you can do while on a temporary visitor visa and what you cannot do. You may travel to the United States on a visitor visa if your visit will be temporary. The proposed visit must be either for recreational purposes such as to visit your friends and relatives in the United States, receive medical treatment, attend a short course of study related to the nature of your trip, or to engage in activities of a fraternal, social, or service nature. You may not enroll in a course of study that exceeds your authorized duration of stay of is unrelated to the nature of your trip, and you may not seek employment during your stay. If approved, a visitor visa is generally authorized for a 6-month period which may be extended for an additional 6 months by filing Form I-539 Application to Extend/Change Nonimmigrant Status.

Does your country participate in the visa waiver program?

Before applying for a visitor visa , you should verify whether you are a citizen of a country that participates in the visa waiver program. Presently 38 countries participate in the visa waiver program, as shown below.

Andorra Hungary Norway
Australia Iceland Portugal
Austria Ireland San Marino
Belgium Italy Singapore
Brunei Japan Slovakia
Chile Latvia Slovenia
Czech Republic Liechtenstein South Korea
Denmark Lithuania Spain
Estonia Luxembourg Sweden
Finland Malta Switzerland
France Monaco Taiwan
Germany the Netherlands United Kingdom
Greece New Zealand

If your country of citizenship participates in the visa waiver program, you may not need to apply for a tourist visa at a US Consulate or Embassy abroad. If you have been previously denied a United States visa, the Electronic System for Travel Authorization (ESTA) will automatically deny your ESTA submission and you will not be eligible to travel under the VWP even if your country participates in the program. Note: The House of Representatives and the Senate is presently in talks to approve a bill that will block individuals who have traveled to Syria, Iraq, Iran, or Sudan during the last 5 years from using the visa waiver program.

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