Immigration Blog : Immigration Lawyers & Attorneys : Jackson Lewis Law Firm : Labor Certification, Adjustment of Status

Consider the dilemma of the newly drafted NHL hockey player from Canada. After signing his Standard Player Contract, obtaining his P visa, and loading up his gear and heading to the border with his long time girlfriend alongside to begin training camp, both are stopped at the border. The immigration officer inquires of the girlfriend of her intention to travel to the United States to accompany the player just for the duration of the season. She is turned denied entry and turned away.
 

What happened? The girlfriend in the above scenario was denied entry due to a concept called immigrant intent. The officers at the border made a determination that because she was not married to the player or otherwise in the possession of an independent student or work visa, the girlfriend most likely had the “intent” to remain in the United States never to return to Canada. Seem implausible or irrational? It is a frequent real life border situation that can be disruptive to a professional organization that is concerned with the smooth transition of its players (and significant others) to ensure focus on the ice.
 

Recently, in August 2011, the United States Citizenship and Immigration Services issued a revised Policy Memo that appears to provide a possible solution to the above scenario. The August 2011 policy memo stands for the proposition that border officials are now given discretion to grant B visa (tourist) entry to cohabiting partners or household members of nonimmigrant visa holders.
 

Immigration defines cohabiting partners and household members as “an alien who regularly resides in the same dwelling as the principal nonimmigrant and with whom the principal nonimmigrant maintains the type of relationship and care as one normally would expect between nuclear family members.”
While the ultimate approvability of the visa is at the discretion of the reviewing officer, this policy change appears to provide a policy basis to permit the live-in girlfriends of professional foreign athlete to enter the United States to accompany the player for the duration of the season.
 

Members of the Jackson Lewis Global Immigration Group can also assist with the analysis of how this new cohabiting partners policy change can be applied to scenarios outside of professional sports.

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It is H-1B season again. The United States Citizenship and Immigration Services officially announced today that they are accepting H-1B applications for FY2012. U.S. businesses use the H-1B program to employ foreign workers in specialty occupations that require theoretical or technical expertise in specialized fields, such as scientists, engineers, or computer programmers.

Cases will be considered accepted on the date USCIS receives a properly filed petition for which the correct fee has been submitted; not the date that the petition is postmarked. Similar to last year, we do not expect the H-1B quota to be fully utilized until late 2011. However, employers should start looking to initiate cases for employees who might be subject to the quota in order to assure themselves a visa before the cap hits.
 

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At least 12,000 additional numbers will be available for EB-2 (employment-based, second preference) immigrant visa because of a dramatic reduction in the use of EB-1 (employment-based, first preference) immigrant visa, the Chief of Immigrant Visa Control and Reporting Division, U.S. Department of State, Charlie Oppenheim, has announced. He said U.S. Citizenship and Immigration Services “ha[s] seen a decline in filings, and does not expect a change in the number use pattern. Therefore, this decline in EB-1 number use will allow me to begin having those ‘otherwise unused’ numbers drop down and be available for use in the EB-2 category. Based on current indications, that would mean that at least 12,000 additional numbers will be available to the EB-2 category. This situation will allow me to advance the India EB-2 cut-off date for May. The reason being that all ‘otherwise unused’ numbers are provided strictly in priority date order, and the India demand has the largest concentration of early dates.”
According to Mr. Oppenheim, the fall-off in demand for EB-1 numbers began in October 2010. To find out current processing dates, check the visa bulletin website.
 

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USCIS has began accepting the revised version of the Petition for a Nonimmigrant Worker, Form I-129 (dated November 23, 2010). The new version of the form requires employers petitioning for H-1B, H-1B1, L-1 and O-1A nonimmigrants to make specific attestations related to the Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR). The regulations control the export of technology and technical data to foreign countries, which includes the disclosure or transfer to a foreign national. Such disclosures or transfers may be subject to export licensing requirements and other restrictions.

Employers filing an H-1B, H-1B1, L-1 or O-1A petition must certify the following:

With respect to the technology or technical data the petitioner will release or otherwise provide
access to the beneficiary, the petitioner certifies that it has reviewed the Export Administration
Regulations (EAR) and the International Traffic in Arms Regulations (ITAR) and has determined that:

1) A license is not required from either the U.S. Department of Commerce or the U.S.
Department of State to release such technology or technical data to the foreign person;
or

2) A license is required from the U.S. Department of Commerce and/or the U.S. Department of State to release such technology or technical data to the beneficiary and the petitioner will prevent access to the controlled technology or technical data to the beneficiary until and unless the petitioner has received the required license or other authorization to release it to the beneficiary.

The instructions to the new Form I-129 addressing this new requirement can be found at: http://www.uscis.gov/files/form/i-129instr.pdf.
 

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Although the economy has hit all employees hard, Reductions-in-Force (RIFs) have a disproportionate affect on H-1B employees. When an H-1B employee is terminated from employment, that employee must deal with not only the financial difficulties of a layoff, but the additional complexity of losing authorized status in the United States as of the day of the termination. Even if the individual were to find employment subsequent to the termination, there are many issues in switching employers legally. 

Anytime an employer terminates the employment of an H-1B worker, the employer is liable for reasonable costs of return transportation abroad. Moreover, the employer should withdraw immediately its H-1B petition with United States Citizenship and Immigration Service (“USCIS”), to avoid “front” and “back” pay obligations. The petition, however, may be automatically revoked if the employer goes out of business. 

If a new employer wishes to hire an H-1B individual terminated by a previous employer, the new employer should keep in mind that the individual may need to return to his home country to obtain an H-1B visa if employment has ended prior to the filing of the new employer’s application and his beginning new employment. The Immigration regulations do not provide a grace period from the time the individual ceases employment until the new petition has been filed to find a new position and sponsoring company. 

Other major changes in employment, such as location, duties, or level of responsibility, may require the filing of an amended H-1B petition. While a corporate reorganization may not trigger a duty to amend the petition with the USCIS, this must be analyzed on a case-by-case basis. 

Understanding the immigration implications for H-1B workers that may be part of a RIF or other corporate change can make all the difference in mitigating both financial and personal issues for employers, H-1B employees and their dependant family members.

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The USCIS announced that as of November 20, 2009, approximately 56,900 H-1B cap-subject petitions had been filed. USCIS has approved sufficient H-1B petitions for aliens with advanced degrees to meet the exemption of 20,000 from the fiscal year 2010 cap. Any H-1B petitions filed on behalf of an alien with an advanced degree will now count toward the general H-1B cap of 65,000. USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, recognizing that some of these petitions may be denied, revoked, or withdrawn.

Last week, the USCIS used approximately 1300 H-1Bs. Assuming the agency stops accepting applications once they hit 58,200 (65,000 less 6,800 reserved for H-1B1 program), the cap will be open for about one more week. Those needing an H-1B visa should file immediately. If the quota is reached, H-1B visas will be unavailable until October of 2010.

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