One of the biggest recipients of H-1B visas in the past few years have been major outsourcing companies from India. Of the five biggest users of the program from 2007 to 2009, four are from India namely Infosys, Wipro, Mahindra Satyam, and Tata. Microsoft was the only US company in the top five. These data have been critical in American business owners in support of the H-1B visa, as hearings with the House Committee have recently indicated.

A lot of American companies are thus requesting an increase in the annual national limit of 65,000 H-1B visas issues per year, stating that this is too low and inflexible to meet their needs for scientists and engineers. The need is so imminent that business owners are even urging the availability of green cards (permanent residence) rather than simply H-1Bs. Bruce Morrison of the Institute of Electrical and Electronics Engineers, testifying before the House Subcommittee for Immigration Policy and Enforcement, urged them to even consider green cards for foreign students with advanced degrees in science and mathematics from American universities. Many foreign students who get advanced degrees in the U.S. could not remain because work visas are not available.

Fraud has also declined with the H-1B program. Donald Neufeld, a CIS official, testified that auditors have found a decrease in H-1B fraud from 21% in 2008 to only 7% today. This counters the possible argument of those against the H-1B visa that most employers are simply using this to take advantage of foreign workers and displace US workers in their respective fields, resorting to fraud at times to hire foreign workers.

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Not all registered nurses are eligible for H-1B visas. In order for an H-1B for a registered nurse to be approved, the petition should prove that the offered nursing position is a “specialty occupation” which requires at least a bachelor’s or higher degree. It has been hard to meet this standard because the minimum requirement to be licensed as a registered nurse is a two-year associate’s degree in nursing, instead of a four-year degree. Thus, the CIS applies a restrictive standard for registered nurses, as they base their assessment on the Department of Labor’s guidelines which has determined that there is no industry-wide standard that a nurse needs a bachelor’s degree to perform the job of a professional registered nurse. 

There are several specialized positions though in the field of nursing, positions that in and of itself require at least a bachelor’s degree. 

• Advanced Practice Registered Nurse (APRN): These nurses have more specialized skills on specific fields of nursing, obtained not only from experience and training, but also from obtaining the requisite education for such field, a specific bachelor’s degree. Clinical nurse specialists (CNS), certified nurse-midwives (CNM), certified nurse practitioners (NP), certified registered nurse anesthetist (CRNA) fall within this category, and could be petitioned for H-1Bs.  
• Nurses in administrative positions such as nurse managers.  
• Specialized nursing positions such as operating room or critical care nurses wherein the petitioner could show that such positions are so specialized and complex that one would normally expect the person to have attained a bachelor’s degree or higher.  

If the registered nurse will perform duties identical to those in the previously mentioned categories, with extensive documentation, a thorough employment letter, and a clear brief in support of the H-1B petition, it is certainly possible to obtain an H-1B for certain types of registered nurses.

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Introduction

People who could not afford to pay the filing fees for certain immigration paperwork can file a fee waiver request. The USCIS developed the new Form I-912, Request for Fee Waiver, in an effort to facilitate the fee-waiver request process. The form has been available to the public since November 23, 2010. Since the use of this form is not mandated by regulations, and was only implemented to actually help potential applicants, the USCIS will continue to consider applicant-generated fee-waiver requests.

Fee-waiver requests are reviewed by considering whether the applicant is receiving a mean-tested benefit, whether the applicant’s household income level renders him or her unable to pay, or whether recent financial hardship otherwise renders him or her unable to pay.

Specific Forms and Conditions

The USCIS may waive fees for the following more popular forms based on an inability to pay

• Biometrics services fee
• I-90, Application to Replace Permanent Resident Card
• I-751, Petition to Remove Conditions on Residence
• I-765, Application for Employment Authorization
• I-821, Application for Temporary Protected Status
• N-400, Application for Naturalization

For I-485 Adjustment of Status applications, the USCIS may waive a fee based on an inability to pay and subject to the conditions specified:

• An Afghan and Iraqi interpreter who has received a Special Immigrant Visa
• A “Registry” applicant filing under section 249 of the INA who has maintained continuous residence in the United States since before January 1, 1972; or
• An applicant who is exempt from the public charge grounds of inadmissibility under section 212(a)(4) of the INA, including but not limited to
  • Applications filed by asylees under section 209(b) of the INA;
  • Applications for Special Immigrant Juveniles
  • Applications under the Cuban Adjustment Act, the Haitian Refugee Immigration Fairness Act (HRIFA), and the Nicaraguan Adjustment and Central American Relief Act (NACARA), or similar provisions; and
  • Applications filed by Lautenberg Parolees

For I-601 Applications for Waiver of Grounds of Inadmissibility for an applicant who is exempt from the public charge grounds of inadmissibility of section 212(a)(4) of the INA.

Based on an inability to pay, the USCIS may waive any fees associated with the filing of any benefit requested by a VAWA self-petitioner or T-Visa applicant, U visa applicant, battered spouses of an A, G, E-3, or H non-immigrant, battered spouse or child of an LPR or USC, and TPS applicants. This would include filings not otherwise eligible for a fee waiver or eligible only for conditional fee waivers such as Forms I-212, I-485, I539, and I-601.

Steps and Criteria

1. Whether the request is submitted on Form I-912 or in the form of a written statement, the applicant may submit additional documentation to provide proof of his or her inability to pay
2. Is the individual receiving a means-tested benefit? A means tested benefit is a benefit where a person’s eligibility for the benefit, or the amount of the benefit, or both, are determined on the basis of the person’s income and resources, including those that may lawfully be deemed available to the person by the benefit-granting agency. The applicant should provide proof in the form of a letter, notice, or other official document containing the name of the agency granting the benefit.
3. Is the individual’s household income at or below 150% of the Federal Poverty Guidelines at the time of filing? Evidence of current employment , W-2 forms, income tax returns, and other documents evidencing income may be submitted.
4. Is the individual under financial hardship, due to extraordinary expenses or other circumstances that renders the individual unable to pay the fee? Unexpected medical bills is an example of this option.

Decision

After review of the fee-waiver request and supporting documentation, the fee-waiver approval or denial would be recorded in the receipt block of the underlying form for which the applicant is requesting a fee waiver. If it is denied, the applicant receives Form G-1054.

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The U.S. District Court for the District of Columbia dismissed Broadgate v. USCIS on August 13. The case challenged the January 8, 2010 Neufeld memo regarding the employer-employee relationship and third-party placement issues in H-1B petitions. This memo has made it tougher for consulting companies in the IT fields to get H-1B petitions approved. Other business and accounting consultancy practices have also been affected. The Court found that the Memorandum does not constitute a final agency action subject to judicial review. The Court concluded though that this memo only establishes interpretative guidelines for the law and does not bind the CIS officers in their H-1B determinations.

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The USCIS has slowly transitioned the filing of petitions and applications from service centers to lockbox facilities. Centralizing the filings they said would allow them to provide more efficient and effective initial application, petition, and free processing.

An I-140 filed by itself or together with and I-485 should now be filed at either the Dallas Lockbox facility, or at the Nebraska, or Texas Service Centers, depending on the classification. Skilled worker I-140s and I-140s accompanied by an I-907 premium processing request should be filed at either the Nebraska or Texas Service Centers. All other I-140 petitions should be filed at the Dallas Lockbox facility.

If Service Centers receive an I-140 that should’ve gone to Dallas, they will forward the form to Dallas for 45 days until Sept. 17, 2010. After September 17, 2010, they will be returned to the petitioner as improperly filed.

The USCIS Dallas Lockbox Address are as follows:

For U.S. Postal Service:

USCIS
PO Box 660867
Dallas, TX 75266

For Express Mail and Courier Deliveries (e.g. Fedex):

USCIS
Attn: AOS
2501 S. State Highway 121 Business
Suite 400
Lewisville, TX 75067

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Recent decision from the BIA – Matter of Alania. Respondent is from Peru. He entered the U.S. in 96 on a temporary visa, overstayed, and engaged in unauthorized employment. A labor certification was filed for him before April 30, 2001 and was approved. An I-140 Petition was then filed for him which was also approved on December 21, 2006. Section 245i allows him to adjust status based on an employment petition despite his overstay and unauthorized employment because he is the beneficiary of a labor certification filed on or before April 30, 2001 and he was physically present in the U.S. on December 21, 2000. However, the Immigration Judge denied his application for adjustment of status because he engaged in unauthorized employment. On appeal, the Board of Immigration Appeals held that a respondent who is otherwise eligible to adjust status under INA section 245(i) is not subject to the unauthorized employment restrictions of sections 245(c). The provisions of section 245(k) regarding unauthorized employment are not applicable to section 245(i) adjustment applications.  The alien is thus eligible to adjust the permanent resident status. The case was remanded to the Immigration Judge for the continuation of proceedings consistent with the Board’s decision.

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