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L A W L E R & L A W L E R    N E W S L E T T E R [ November 2009 ]

H-1B Visas Still Available

The slow economy has caused few H-1B filings. Over 10,000 H-1B visas are still available. At the current usage rate, they will be available for a number of months.

H-1B Site Visits

USCIS is conducting unannounced site visits to randomly selected companies sponsoring H-1B visas.  USCIS says that some such 40,000 site visits will be conducted.  So, the odds of a visit are high.  I also anticipate in the future that there will be site visits for L-1 and possibly other work visas.  USCIS is using contractors not USCIS officers.
 
Here are some guidelines:

• USCIS has a legitimate interest in verifying that the company exists and the H-1B worker is appropriately employed.  However, USCIS is not allowed to compromise proprietary processes, information and trade secrets by touring the company or taking photographs on the premises.  It is essential that accurate information be provided by a knowledgeable management team member about the H-1B employee's terms of employment including the job duties and salary.  Inadvertent misinformation provided by, for example, a receptionist, may cause complications for the employer and H-1B worker.  It is important to alert reception personnel that a site visit may happen and who will be the only person designated to talk with the inspector.
• Problems might arise by innocent characterizations provided about job duties, the job title, and salary which may seem different from those on the H-1B visa petition.  For example, the H-1B petition may contain the generic job title of "software engineer" but the employer's internal title is "technical staff."  Or the H-1B petition may describe the job in lay terms, but the investigator is given a technical job description he/she does not understand.  Or perhaps the employee provides his net pay instead of gross.  For this reason the management team member and the H-1B employee should be familiar with the H-1B paperwork.
• USCIS guidelines provide that a site visit will be terminated if an employer requests presence of a lawyer.  But I have heard conflicting reports as to whether this is happening in practice.  You should evaluate your situation to decide how you wish to respond to a site visit.  If you are more comfortable with counsel present, get me on the phone and we can discuss it with the inspector together.
• I recommend cooperation with the site inspector so long as safeguards are in place to be sure accurate information is provided.

If you would like to discuss this further, please call me or Hope Frye.  Hope is an expert on worksite enforcement.

EB-5 Investor Visas

This category allows qualifying individuals who invest at least $500,000 in certain businesses and create 10 jobs obtain a green card in about one year. Most invest in limited partnerships called "Regional Centers." The statute for Regional Centers expired on October 30, 2009. Congress has voted to extend the statute for 3 years. This is one of the fastest ways to immigrate to the United States.

Premium Processing For EB-1 and R-1 Cases

For a fee of $1,000, USCIS now allows expedited processing (15 day) of EB-1 extraordinary ability and outstanding researcher cases as well as certain other employment based green card petitions, but not all. Also, after a site visit, R-1 temporary religious worker cases can be expedited.

New Book

The USCIS California Service Center has been issuing Requests for More Evidence (RFEs) (and denials) at a much greater rate than in the past. Many are boilerplate and ask for unnecessary documents or mischaracterize the case. H-1B and L-1 cases thus need many more documents than in the past to prove eligiblity.

Lawler & Lawler Helps Iraq Bound Soldier's Child

We successfully helped, pro bono, the child of a U.S. Army Reserve Iraq bound soldier obtain a U.S. passport.  The family forgot to file papers to remove conditional aspects of the child's green card.  USCIS threatened to deport the child who derived U.S. citizenship.  We helped the family and in a week, a U.S. passport was issued to the child. We wish this soldier safe return. 

Professor Hope M. Frye

Hope M. Frye, Esq., who is of Counsel to our firm and my wife, is again teaching an Immigration Law class at JFK University in Pleasanton, California.
Prompt Interview of Marriage Cases in San Francisco
USCIS's San Francisco District Office is scheduling marriage cases in about 90 days for interview.

Labor Condition Applications for H-1Bs

The new Department of Labor processing system is now in affect.  LCAs are taking about 7 days for certification, but there are many problems with the new system. Often the system does not recognize employer tax identification numbers. In some cases it can take up to 30 days to get an LCA.

Annual Visa Lottery

Entrance into the Annual Visa Lottery Began October 2nd, Goes to Noon, November 30th.
 
The U.S. Department of State set October 2nd as the beginning date for the annual Diversity Visa Lottery Program, known as the Green Card Lottery.  Under the Lottery up to 55,000 applicants will be granted immigrant visas - green cards.  Married individuals who win and qualify will also get visas for their spouse and eligible children. 
 
Applications for the 2011 Diversity Visa (DV-2011) Lottery will be accepted until noon on November 30th.  The visas are made available to persons from countries with low rates of immigration (excluded countries are listed below) to the U.S.  The applicant must also hold either a high school diploma or at least two years of job experience in a job requiring a minimum of two years of training or experience. 
 
A job offer is NOT necessary to be eligible for this program.  Persons who are already registered for an immigrant visa in another category may apply for the diversity visa program.  
 
Natives of Brazil, Canada, China (mainland-born), Colombia, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, India, Jamaica, Mexico, Pakistan, Peru, Philippines, Poland, South Korea, United Kingdom (except Northern Ireland) and its dependent territories and Vietnam are not eligible for the lottery. 
 
The application must be filed electronically during the registration period.  Paper entries and mail-in requests for Diversity Visa Lottery registration are not accepted.  All winners of the Lottery are given the chance to apply for the immigrant visa.
 
If you applied for the U.S. government Green Card Lottery in 2008 and did not receive written confirmation yet that you won, you did not get selected.  We encourage you to apply again now.  Every year we hear from successful applicants and a "win" is usually the fastest way to obtain a green card. 
 
Lawler & Lawler can evaluate your situation, or that of a family member or employee, to determine whether or not you are eligible to apply, and how a lottery application might benefit you even though you have another application in process. 

Please contact me if you have any questions.

Regards, Martin Lawler
Lawler & Lawler