U.S. Citizenship and Immigration Services announced that it has received a sufficient number of H-1B petitions to reach the statutory cap for fiscal year (FY) 2011.  USCIS is notifying the public that Jan. 26, 2011, is the final receipt date for new H-1B specialty occupation petitions requesting an employment start date in FY2011.

The final receipt date is the date on which USCIS determines that it has received enough cap-subject petitions to reach the limit of 65,000

USCIS will apply a computer-generated random selection process to all petitions that are subject to the cap and were received on Jan. 26, 2011. USCIS will use this process to select petitions needed to meet the cap.  USCIS will reject all remaining cap-subject petitions not randomly selected and will return the accompanying fee.

On Dec. 22, 2010, USCIS had also received more than 20,000 H-1B petitions filed on behalf of persons exempt from the cap under the ‘advanced degree’ exemption.

USCIS will continue to accept and process petitions that are otherwise exempt from the cap.  Pursuant to the Immigration and Nationality Act, petitions filed on behalf of current H-1B workers who have been counted previously against the cap will not be counted towards the congressionally-mandated FY2011 H-1B cap. 

Accordingly, USCIS will continue to accept and process petitions filed to:

• extend the amount of time a current H-1B worker may remain in the U.S.;
• change the terms of employment for current H-1B workers;
• allow current H-1B workers to change employers; and
• allow current H-1B workers to work concurrently in a second H-1B position.
• allow H-1b visas for employees of higher education or companies affiliated with higher education.

The first date an H-1b can be filed for the 2012 fiscal year which begins October 1, 2011, is April 1, 2011.

Other options for those with college degrees in professional jobs are as follows:

TN Visa for Canadian and Mexican professionals in more than 30 occupations.

E-3 professional visa for Australians

H-1b for Chile and Singapore citizens

L-1 A management and executive level transferees for companies with affiliated or subsidiary branches in US and at least one other nation.

L-1B specialized employee transfers for companies with affiliated or subsidiary branches in US and at least one other nation.

O-1 Extraordinary Ability employees in business, arts, athletics, science and education,

H-3 Training visa for up to 2 years

J-1 Training or Intern visa. Up to 18 months. Some are subject to 2 year home residency requirement for certain countries and certain professions.

E-2 Treaty Investor visa. Permits investor and essential employees from countries with treaties with United States to establish companies in US.

E-1 Treaty Trader visa. Permits establishment of trading companies with treaties with US.

Despite a recessed economy, US companies that require hiring from a global talent pool to compete have been hamstringed by an arbitrary numerical cap for professional workers. Until Congress passes legislation that increases the H-1B quota to meet the realities of our global economy, U.S. employers must seek other alternatives. The strategies discussed are only a few of many options available to employers. Now more than ever, it is critical for employers to start planning early with their immigration counsel to explore options specific to their needs and to ensure that the H-1B cap does not hinder their hiring goals and ability to supplement their workforce with professional foreign workers.

Feel free to contact me if you would like to explore your options.

Illegal Immigration is a problem but Arizona’s law is the wrong answer

Hello America!

Welcome to Immigration Magazine, a commentary on issues involving US immigration. This is the innaugural publication. Please subscribe below and we will e-mail it to you or check back here as we will be udating regularly.

Our mission at Immigration Mag is to highlight the positive aspects of people coming to America to make our great country their home and bring their cultures, traditions and spirit to add to the most diverse social fabric in the world. As someone that assists people from all over the world come to every state in our country, I have recognized a few common themes: America still offers opportunity to build a great life and that those that choose to leave their homes, family and friends behind, to come here, have a true appreciation for our country and desire to make it their home.

Yet, despite our history as a nation of immigrants and the appreciation of the many aspects of different cultures we have all come to love, such as ethnic restaurants, music and entertainment, the continued problem of illegal immigration and numerous jobs that do not provide legal visa opportunities, has motivated some to take bizarre actions.

As a result, reactionary legislation was signed into law in the form of Arizona’s HB 1070. The law essentially directs police officers to target all Hispanics, some who may be illegal but also many who legally own businesses or have been here for generations. The law has triggered protests which will likely fuel further racial issues, because stereotyping every one in one ethnicity or national origin as being illegal or potentially illegal undermines the prinicples in which this great country was founded.

With over ten million working, not paying taxes and living in fear in the United States illegally, isn’t a better solution, not to humiliate people who want to simply make a decent living, strip them of their civil rights and fill our jails, but to reform immigration laws and adequately fund and staff USCIS to permit all US companies who want to hire international workers the ability to do so legally in an expedient manner?

Why isn’t the common thought to pass laws that permit US companies to hire the actual number of international work force needed for the US to compete, not arbitrary numerical caps and processing times that make an international hire impratical, instead of passing punitive laws that criminalize people for merely attempting to live and work in America?

The purpose of Arizona’s bill is to cut down on illegal immigration in a border state. That is understandable, but the solution does not create more jobs for Americans or create legal solutions for American companies to employ legal workforces. Arizona is reacting to the Federal Government’s failure to adequately address the elephant in the room. The next move is President Obama’s. Will Comprehensive Immigration Reform be passed into law. Stay tuned.

Call for Questions and other random thoughts

Green Card is green again

How is the people moving industry doing today? I would like to extend a request for questions from our readers. Best questions will get their answers published in upcoming issues of Immigration Magazine and we will try to answer all of them. Please use the ask a question form on the site.

In a similar note, please feel free to offer suggestions for issues you would like to see more about. With our search component and post tags you will be able to go back and find nuggets of information that may help. If not, send us an e-mail and we will be glad to help.

On interesting news, the Green Card will now be green again. It doesn’t quite fix all the problems in Immigration but at least the name makes sense.

As we head into the heat of the summer, H-1b visas are still available. As of May 21, 2009 19,600 cap-eligible visas have been received and 8,200 Master’s Cap exemption visas have been received out of 30,000.

USCIS has announced “big changes to E-verify on June 13th.” The revamped site will enhance usability, security, accuracy and efficiency. Existing user id and passwords are still valid with new how to videos including “How to create a case” and “How to respond to a tentative nonconfirmation (TNC).” As a TNC survivor I am looking forward to see these new changes and tips. Tell us what you think.

Good News for H-1b seekers

The dog days of summer are here, the recession seems to be lagging, but one piece of good news for some of you is that H-1b visas are still available. As of August 6, 2010, 28,500 regular cap visas were available out of the 65,000 allotted and 11,900 out of 20,000 are available for the those with US Master’s degrees.

These numbers are promising to US companies that wish to employ professionals from a world-wide workforce, including internationals who obtained degrees in the United States. On August 7, 2009, approximately 45,000 H-1b visas had been filed about 9,000 ahead of this years pace. Almost 20,000 Master’s degree H-1b had been filed last year at this time, nearly capping the category and also about 9,000 more than this year.

Last year’s regular H-1b cap was reached by December 21, 2009.

H-1b visas are available to US companies to hire internationals with the equivalent of a US bachelor’s degree or higher in a position that requires that particular degree. Equivalency can be obtained by utilizing work experience in place of university schooling in a three to one ratio. Three years of work equate to one year of university. For example, someone who received a two year associates degree in the field of the position plus six years of work experience in the field could qualify as an equivalent to someone with a US university degree. It requires an evaluation from an entity or expert on the issue.

Immigration practictioner’s are still experiencing delays in obtaining the necessary prevailing wage requests and scrutiny is strict on the requirement of the job to be professional. A method we employ at Velie Law Firm is providing complementary strategy and spending sufficient time with the employer to understand the job, then detailing each component of the position explaining how each of the component relates to the potential employee’s degree or combined work and educational experience in a comprehensive employment letter. The empolyment letters are designed to address the issues typically raised by USCIS in its requests for evidence. This proactive approach often results in faster decisions by Immigration.

So if you are thinking about hiring an international professional or you are an international professional, it is the best time in years to go for the H-1b. But watch out for the potholes and trapdoors they are still out there.

The Immigration paths for entrepreneurs and investors to start businesses in the United States

There are some options for companies and people that desire to move to the United States through US immigration laws. The following are examples of the relevant laws and how they may apply to you:

Creating a US branch office of an International Company: The L-1 visa is a temporary visa, extendable up to seven years, which is for an intra-company transferee. Under this visa, a company outside the US can transfer its owners, executives, managers and specialized employees to a US branch office. A requirement is that the employee must have worked for the international company for one full year within the last three years.

It is also permissible under this visa to come to the United States for the purpose of establishing a branch office of the international company. It can also be used to transfer personnel to a company that has merged or been acquired by a US Company.

If the US office has existed for more than one year, owners, executive or management level personnel can petition for permanent residency in the United States (“Greencard”) under the EB-1 Multinational Executive and Managers. Permanent Residency is also granted to spouses and children under the age of 21.

These visas are excellent for company owners that desire to do business in America. It also works well for the business owner to buy an interest in a US Company or sell an interest to a US company. The jointly owned companies become an international business and can transfer employees between them. This permits the Indian company to provide wholesale goods or services produced in India to be retailed or provided directly to the US market through the US office.

Investing in a US Company: The EB-5 Investor Visa provides an investor, his spouse and any children under 21 permanent residency in the United States if the investment is of $500,000.00 in rural or high unemployment areas or $1 million for other areas. The investment must create ten full time jobs for US or permanent resident workers over a two year period.

The EB-5 can be used for a business owner to establish a company in the US, invest in a US company or through a designated regional center. The regional center program is a designation given to an area that is creating direct and indirect jobs in an area through the infusion of investment capital, usually for a large project or series of projects.

Another option for certain nationals are the E-1 and E-2 visas for traders and investors from countries with treaties with the United States. These visas permit investors to establish companies. Investment must be suitable for the type of project, ie the amount to create a consulting company is less than opening a hotel. There are thresholds that Immigration will look at such as business plans with 5 years of projections, a facility instead of a home office, employees and depending on whether it is a consulate or USCIS determination between a minimum of $50,000 to $100,000 invested.

There is contemplation of an EB-6 visa, a Permanent Residency visa requiring 5 full-time jobs and $250,000.00 in investment.

Sports and Immigration in the American Desert

I have sports immigration on my mind as I return from an incredible adventure to Phoenix, Arizona for the Sports Law Association’s Annual Conference.

Kudos to SLA Conference Chair and good friend Robert “Bobby” Hacker for putting on an incredible event. A big thank you to Diamondbacks owner, Dale Jensen, who treated me to an excellent ball game, Dbacks 8 Giants 7, and great conversation. Many thanks to my co-panelist Jessica Berman, Associate Counsel for the National Hockey League, who orchestrated the sports immigration session and is as kind and smart as she is diligent.

SLA is an amazing compilation of professionals involved in the vast expanse of issues surrounding sports. As a former athlete, coach and avid fan I love sports, I am into the games, the athleticism, the stadiums, the front and back office maneuvers, the contracts, the marketing and the process.

I soaked in all sorts of topics from performance enhancing drugs to jockeying for position in the upcoming labor debates facing three major sports.

But what resonated is that people in sports people are generally cool people and I really met a lot of great ones. Team officials and lawyers, league officials and lawyers, agents, law students, professors, those interested in breaking in. People from all over the country and the world, keen on being involved with the world’s best professional sports nation.

My piece was surreal, I was the sole immigration attorney getting to speak on immigration in the front line of Arizona during one of the hottest debates on immigration in recent memory.

Jessica Berman did an increbible job of utilizing our panel to address the Arizona law, as we were tasked with the subject, which could not be ignored. She handled it perfectly, laying out what the Arizona law says, what some of the positions teams have taken, players have taken, lawsuits that have been filed in a manner that was extremely professional. She took no position and did not attempt to incite, but provide information. She opened the floor for questions and comments. The audience responded with well thought words. I learned a lot.

I return home having seen to the cultural war up close. I remember the words of Michael Bidwell, President of the Arizona Cardinals describing the emptying of Phoenix’s Hispanic neighborhoods and closing of stores with a bigger exodus to occur when school ends for the summer. His insight about the loss of this fan base and that the loss of consumers will have on the local econmony.

I noticed the angst of the hometown teams as their fanbase divides on this issue, the gestures of support by the Suns by weaing Los Suns on their jerseys on Cinco de Mayo and the shock of Latino professional baseball players who despite multi-million dollar salaries are humbled by a law that mandates police to inquire into their status.

I saw the position that teams like the Diamondbacks and its Hispanic players are placed, when they are the subject of protest when they leave Arizona.

We are in interesting times,  it has been a long while since teams or athletes made social statements.  Muhammad Ali, Tommy Smith, Arthur Ashe, James Brown and Bill Russell were of a different era. Today’s players and teams simply do not take stands, they have too much to lose.

But what makes sports great is that teams unite communities. Sombreros off to you Los Suns, way to send a positive message to part of your fan base when they need it. And way to remind all of us of one of the best tenants of our nation, one our founding fathers shouted when fighting for our independance, united we stand, divided we fall.