American Competitiveness in the Twenty-First Century Act of 2000 ("ACTA")

November 6, 2000

President Clinton signed a major immigration bill into law last month, which changed several important features of the framework of the popular H-1B visa for professional guest workers. The law, called "the American Competitiveness in the Twenty-First Century Act of 2000 ("ACTA"), came into effect immediately with the October 17 signing, but some important aspects are delayed for a few months. Major highlights are listed below :

Increase in H1B Quota and Fees

The new law increases the total number of visas that can be issued in 2001, 2002, and 2003 to 195,000 for each fiscal year. This is a substantial increase from the current visa limit, and reduce the amount of time during the year that H-1B visas are not available. In addition, the new law frees certain types of employers and workers from the limit altogether, such as workers who will work at a university or government research organization, and certain types of H-1B beneficiaries who are changing from J-visa status.

The new law also increases the H-1B fee by $500, so that now the total fee paid to the INS will be $1110. The new fee will come into effect on or after December 17, 2000.

H1B Can Start Working Upon Filing of H1B

Another important feature of the new law makes the H-1B status "portable." This means that someone who is already in H-1B status, in most cases, may accept new employment and start working immediately upon filing the new H1B petition. (Of course, if the new petition is denied, then the person can no longer work.) This rule applies not just to new H-1B petitions, but to all H-1B petitions that were filed before, on, or after the date of the enactment of the law.

H1B Extensions Beyond Six (6) Years Allowed

One part of the new law deals with H-1B workers who are trying to change to green card status through their employment. Normally, H-1B workers have a maximum of six years in that status. The new law states that if labor certification or an employment-based immigration petition was filed at least one year ago AND the person still has the petition or a green card application pending, then the H-1B six year cap shall not apply against the person. Instead, the INS will approve an H1B petition extension in one-year increments until a final decision is been made on the person's permanent resident status. h5y>

General Improvement of the Immigration System

Another key aspect of the new law tries to improve the immigration system, primarily by finding ways to eliminate backlogs and process all immigration applications within one year, as well as to provide for regular congressional oversight of the INS in eliminating backlogs and processing delays.

Congress believes that all immigration applications should be completed no later than 180 days after the initial filing of the application. Exceptions would be a non-immigrant visa for those applying for H, L, O and P status, which should be processed by the INS no later than 30 days after the date of filing the petition.5y>

Conclusion

The new law has been seen as a great victory for activists fighting for immigration rights and fairness. The fact that the law was passed with such an overwhelming majority shows the importance of immigration to the U.S. economy.

FOR MORE INFORMATION:

Contact John Byrley at tel: 410-719-1501.

The L-1 Visa for Executives, Managers, and Specialists

May 15, 2000

In my previous article, I wrote about H-1B visas, an extremely popular visa used to import professional guest workers to work in specialty fields on a short-term basis.

Although many types of professionals qualify for the H-1B visa, in certain circumstances another type of visa would be preferable. One alternative to which many companies turn is the L-1 visa.

The L-1 visa is a non-immigrant visa targeted to intra-company transferees - employees being transferred from a foreign firm to a related firm in the United States. It is a very good choice for qualified employees who eventually intend to immigrate, because it provides a "fast-track" to a green card that many other nonimmigrant visas do not have.

Requirements

The first requirement of this visa is that the employee have been continuously employed abroad for at least one year of the last three years with a firm that is related (e.g., as a parent, affiliate, or subsidiary) to the U.S. firm to which the applicant is being transferred.

The second requirement is that foreign firm and the U.S. firm have a "qualifying relationship." This means that the two firms are sufficiently connected for the transfer to actually be considered "intra-company." In general, this requirement is satisfied where the U.S. and the foreign firm have common majority ownership or control.

Third, the employee must be coming to work as a "manager," "executive," or "specialized knowledge employee."

A "manager" is someone who directs the organization, a department, or a function of the organization (but is not someone who is merely overseeing the frontline production or service duties of the organization). A good rule of thumb is that a "manager" is someone who is at least two levels up from those who have no management duties.

An "executive" is someone who directs the organization or a major sub-part thereof. Examples include presidents, vice-presidents, chief officers, division directors, and controllers. An "executive" should be someone who has a supervisory function, either over people or functions, and therefore cannot be someone who provides frontline production or service duties.

A "specialized knowledge employee" is an employee who has special knowledge of the employer's products, services, processes, or procedures.

Both "managers" and "executives" may stay in the U.S. for up to seven years. "Specialized knowledge employees" have up to five years.

Frequently, the L-1 visa category will be used by an employee to come to the U.S. to open a new office here (i.e., when the foreign firm does not already have a U.S. presence). In such situations, there are special requirements that must be met. The application must show proof that the new office will actually be a functioning business enterprise, and not merely a formality to gain visa benefits. For example, successful applications will show that a viable business plan has been developed, that office space has been acquired, that bank accounts have been established, that the employee has appropriate experience with the company, that a sufficient amount of capital has been or will be invested, etc. The INS will only grant a visa for one year, after which the employee may extend only by showing that the plans for the new office have been fulfilled.

Procedure

The first step in applying will be for the firm to send an application to one of the four Regional INS Service Centers that has jurisdiction over the location where the employee will be situated. After the INS Service Center approves the application, the employee may apply at a U.S. Consulate for the visa.

Some firms frequently need to send a large number of employees back and forth. The INS has created a procedure for such cases, allowing for blanket approval of a large number of employees at one time. To qualify for the blanket approval, however, the firm must meet certain tests that show that it is fairly large, and has had a certain amount of L-1 visa usage in the past.

Once a manager or executive obtains the L-1 visa, he or she may also be able to apply for a green card and obtain it with not much more difficulty. This is because the proof needed to obtain the green card is almost identical to that required to obtain the manager/executive L-1. The only additional requirement for the green card is that the U.S. firm be in existence one year. (Unfortunately, "specialized knowledge workers" do not benefit from this.)

The L-1 visa is an excellent choice where the employee meets all the criteria. The requirements may be a bit tougher than for other visas such as the H-1B. However, the benefits to the right employee looking for an avenue to immigrate make this visa a far better option.

FOR MORE INFORMATION:

Contact us at 410-719-1501.

Meeting Staffing Needs with the "Guest Worker Visa"

April 20, 2000

We have all read about the 18 year-old programmers earning six-figures. The tight labor market for high-tech talent has been one of the most publicized human resources phenomena in recent memory, which some experts predict will continue until at least 2015. Until then, firms will have to struggle to meet their staffing needs.

One solution to which many have turned is the H-1B visa. This is a temporary visa category that allows employers to import high-tech talent from abroad to work for up to six years in "specialty occupations" requiring a bachelor's degree or higher.

Popular due to its relatively easy procedure, the category does, however, have certain requirements.

First, the position must be for a "specialty occupation" -- a professional position requiring at least a bachelor's degree. Generally, high-tech positions easily qualify, as well as, for example, architects, lawyers, physicians, professors, and some managerial positions.

Second, the foreign professional must be a "specialty occupation worker" -- he or she must actually have the appropriate bachelor's degree (or equivalent training and experience) plus any license required for the position.

Third, the annual H-1B visa cap must not have yet been reached. This cap or limit, which is currently set at only 115,000 visas per year, can present the biggest hurdle to employers wishing to hire otherwise-qualified foreign professionals. In recent years, the cap's effect has been to create a window of only seven to nine months (starting October 1) during which petitions could be filed. (This has been an extremely controversial issue in Congress, and proposed legislation to increase the cap should go to the Senate floor in early April.)

The employer begins the process by determining what is the position's "prevailing wage" -- the industry-standard wage for that position in the employer's geographic area. This information may be obtained from a private wage survey or a state Employment Security Agency (for example, Maryland's Department of Labor, Licensing, and Regulation).

The next step is to file a "Labor Condition Application" (DOL Form ETA 9035) with the U.S. Department of Labor. With this form, the employer attests that (1) the foreign professional will be paid at least 95% of the higher of the prevailing wage and the actual wage (the wage actually paid by that employer for others in that position); (2) the employer has notified its other employees of the intention to employ the H‑1B professional; (3) there is no strike or lockout at the place of employment; (4) the H‑1B professional will not adversely affect the working conditions of U.S. employees; and (5) the employer will keep on file certain documents related to the Labor Condition Application, and make them available for inspection by government officials.

Employers that are considered "H-1B Dependent" are required to make additional attestations to the effect that they have made good faith efforts to recruit U.S. workers, and that hiring the foreign professional will not displace U.S. workers. (H-1B Dependent employers are those whose staff includes a certain percentage of H-1B workers, the percentage depending upon total staff size.)

Failure to comply with these attestations can lead to hefty penalties.

Once received, the Department of Labor reviews the Labor Condition Application for completeness or technical errors, then returns a certified copy to the employer. The employer then submits it, along with a petition (INS Form I-129 with H Supplement) to the Immigration and Naturalization Service. By this petition, the employer must prove that (1) the employer has a need for a "specialty occupation worker," (2) the position offered is a "speciality occupation," and (3) the foreign professional is qualified for the position. Although making this proof is often relatively easy, the INS may request more evidence, or deny the petition if the position or foreign professional is not considered eligible. INS denials may be appealed.

For most employers, the visa fee totals $610 (comprising two separate fees of $110 and $500). By law, the employer cannot require the H-1B professional to pay or reimburse the $500 portion of that amount.

The foreign professional may begin work upon INS approval. However, he or she may not work for a different employer, or even necessarily switch positions at the same employer. If the terms of employment change, the professional may be required to obtain the approval of a new Labor Condition Application and amended petition, or even approval of a completely new petition, depending on the nature of the change.

The H-1B visa has proven to be an effective staffing tool in today's tight labor market. If Congress decides wisely, this tool will be improved, and will remain in employers' staffing toolbox for a long time to come. (I urge you to contact your legislators to voice your opinion).

FOR MORE INFORMATION:

Contact us at 410-719-1501.

U Visa Status

September 20, 2007

USCIS has recently issued regulations regarding the U visa. This visa provides for temporary immigration benefits to certain crime victims who are willing to assist law enforcement with criminal investigations.

The "U" nonimmigrant visa classification was originally created in October 2000 under the Victims of Trafficking and Violence Protection Act (VTVPA). However, until the issuance of the recent regulations, U visa classification has been unavailable due to the lack of concrete guidance as to how to administer the program. Pending the passage of these regulations, the USCIS had granted "U interim relief" to aliens who would otherwise have been eligible for U visa classification.

U Visa Classification Now Available.

USCIS announced, on September 5, 2007 that it would start granting U visa benefits to certain victims of crimes who assist government officials in investigating or prosecuting the criminal activity.

The interim final rule creates procedures for U visa status applicants and will take effect 30 days after publication in the Federal Register.

Eligibility Criteria

Under the statute, there are four eligibility requirements:

The individual must have suffered substantial physical or mental abuse as a result of having been a victim of a qualifying criminal activity (see below).
He/She has information concerning that criminal activity.
He/She has been helpful, is being helpful, or is likely to be helpful in the investigation or prosecution of the crime, and
The criminal activity must have violated the laws of the United States or occurred in the U.S.

Qualifying Criminal Activity

Under the statute, "qualifying criminal activity" means an activity involving one or more of a long and non-exclusive list of activities that violate Federal, State, or local criminal law; for example, murder, rape, torture, sexual exploitation, extortion, witness tampering, obstruction of justice, false imprisonment, etc.

Application Procedure

Those who believe they are eligible for U visa classification must file a Petition for U Nonimmigrant Status on Form I-918. The form requests information regarding the petitioner's eligibility for such status, as well as admissibility to the US. USCIS has designated the Vermont Service Center as the centralized location to receive all such petitions.

The Form I-918 should be submitted with evidence proving eligibility. The I-918 instructions list the following required evidence/documentation:

Form I-918 Supplement B, U Nonimmigrant Status Certification signed by appropriate law enforcement official, prosecutor, judge, or similar personnel.

Evidence the Petitioner is the victim of qualifying criminal activity (for example, , trial transcripts, court documents, protective orders, orders of protection and related legal documents, , news articles, etc.)

Evidence the Petitioner has suffered substantial physical or mental abuse (for example, reports and/or affidavits from officials, medical personnel, and/or witnesses; protective orders; photos of injuries, etc.)

Evidence the Petitioner possesses information concerning the qualifying criminal activity.
Evidence that the Petitioner is being helpful for the investigation or prosecution (for example, trial trial transcripts, court documents, police reports, news articles, affidavits, etc.)
Evidence the criminal activity is qualifying and violated US law or occurred in the US
Personal Statement describing the crime, and including the following information: the nature of the criminal activity; when the criminal activity occurred; who was responsible; the events surrounding the criminal activity; how the criminal activity came to be investigated or prosecuted; and what substantial physical and/or mental abuse the Petitioner suffered as a result of having been the victim of the criminal activity.

Eligibility for permanent resident status

Once the U visa status holder has been physically present in the US for a continuous period of at least three years since the date of admission as a U nonimmigrant, he/she may apply for permanent residence. If the USCIS determines that the individual's continued presence in the country is justified on humanitarian grounds to ensure continuation of a cohesive family, or is otherwise in the best interest of the public, permanent residence will be granted.

Duration of U status

U nonimmigrant status cannot be longer four years; however, extensions are allowed upon certification by a certifying agency that the individual's presence in the US is required to assist in the investigation or prosecution of a qualifying criminal activity.

Spouses and children

To avoid extreme hardship, the VTVPA allows derivative U status for applicants' spouses, children and parents of those U visa applicants under the age of 21.

FOR MORE INFORMATION:

Contact us at 410-719-1501.