The Department of State (DOS) has recently revised the Foreign Affairs Manual (FAM), in particular 9 FAM 41.53 N4.1, the section regarding general licensure requirements for H-1B visas. The revision helps those applicants for tourist visas who seek to enter the United States to take the National Physical Therapy Examination (NPTE).

FAM is a reference guide for consular officers as they adjudicate visa applications for foreigners wishing to enter the United States on certain visas. The FAM is constantly updated in response to new policies, misinterpretations of current language, and to foster a clearer application of the law for consular officers. The issuance of tourist and H-1B visas by consular officers are guided in part by FAM.

When someone applies for a tourist visa, there should not be any immigrant intent, and the applicant should meet his burden of showing that he plans to go back to his home country after the temporary visit to the U.S. Prior to this revision by the DOS, consular officers, especially in the Philippines, have denied B-2 visa applications for those seeking to enter the U.S. to take that NPTE exam, even though the applicants intend to come back to their home countries after the NPTE exam, and then reapply at home for their H-1B visas. The revision corrects this misinterpretation by most consular officers.

The language is revised as follows for 9 FAM 41.53 N4.1 General Licensure Requirement for H Nonimmigrant: “The requirements for classification as an H-1B nonimmigrant professional may or may not include a license because States have different rules in this area. If a State permits aliens to enter the United States as a visitor to take a licensing exam, then USCIS will generally require a license before they will approve the H-1B petition. However, some States do not permit aliens to take licensing exams until they enter the United States in H-1B status and obtain a social security number. Therefore, a visa should not be denied based solely on the fact that the applicant does not already hold a license to practice in the United States.”

This revision helps those foreigners seeking to enter the U.S. to take a certain state or national exam in order for them to eventually by eligible for H-1B petitioning. Applicants and attorneys for these applicants are advised to include this new revision in application packets for the B-2 visas. Those who were denied previously may also reapply. Still take note though that other factors for the B-2 visa applications such as non-immigrant intent have to be met in order to get approved.

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Below is a summary of new issues the CIS addressed on its latest question and answer post on the H-1B Cap Gap.

The typical school year in college ends in May, thus most Optional Practical Training (OPT) cards of F1 international students end between May to July of the following year. Those who are lucky to have an employer petition them for an H-1B can start in April 1 for the employment start date of October 1. Thus, between the expiration of the OPT (May to June typically) up to the start date of the H-1B (October 1), there is a gap of a few months for international students.

The H-1B Cap-Gap resolved this issue by allowing foreigners in these situations to extend their F-1 status and OPT card until the start date of their H-1B employment, provided the H-1B Petition was filed by their employer prior to the expiration of their OPT cards or the 60-day grace period after. If the H-1B is filed before the OPT expires, then the OPT is extended and the beneficiary can work until the H-1B date of October 1 kicks in. If the H-1B though is filed after the OPT expiration but before the 60 day grace period, F-1 status continues but the beneficiary is not authorized to work.

A student who obtains the benefit of the cap-gap can obtain proof of this by going to their Designated School Official (DSO) with a copy of the H-1B receipt notice. The DSO would then issue a new I-20 evidencing continued F-1 status for the beneficiary. This I-20 though, unlike those issued while one is a full-time student, could not be used to reenter the United States during the cap-gap period. One who travels abroad while on cap-gap could not reenter as an F-1 student, but instead needs to apply for an H-1B visa at the US Consulate abroad before returning.

For international students who have received science, technology, engineering, and mathematics (STEM) degrees and are working for employers enrolled in E-Verify, and who have received an initial OPT card, they can apply for a 17-month extension. Those who would benefit from STEM, who are in the middle of the cap-gap period, can still apply for a 17-month extension of their OPT.

If the beneficiary is working on an extended OPT due to the cap-gap for the H-1B petitioning employer, and that employer lays off the beneficiary and withdraws the H-1B Petition while the extended OPT is still valid, the student must show the DSO a copy of the CIS acknowledgement of the withdrawal, who will then ask SEVIS to provide a data fix. The international student can continue to work while the data fix is ongoing. But if the CIS does not receive the withdrawal prior to the H-1B effective date, then the student must file an F-1 reinstatement and wait for approval before resuming employment.  Same thing goes  in a scenario where the withdrawal occurs after October 1, the student will need to apply for reinstatement and wait until this is approved before continuing to work.

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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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On March 17, 2011, the BIA in the interim decision Matter of Sesay, 25 I&N Dec. 431 (BIA 2011), addressed the issue of whether an alien who entered the United States on a non-immigrant K-1 fiance visa and met the condition of timely marrying the petitioning spouse remains eligible to adjust status even when the marriage has ended. The Board held that a fiancé visa holder may be granted adjustment of status under sections 245(a) and (d) of the act, even if the marriage to the fiancé visa petitioner does not exist at the time the adjustment of status is adjudicated, if the applicant can demonstrate that he or she entered into a bona fide marriage within the 90-day period to the fiancé visa petitioner.

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Recently, our office has been contacted by numerous people inquiring about H-1B visa petitions for fiscal year 2012.  As you may know, April 1, 2012 is the first date for filing H-1Bs and that day is around the corner. It is very important to note that the H-1B program has an annual cap of 65,000, so it is important to file your H-1B visa on April 1, 2011 promptly or soon after.  The start date for the H-1B fiscal year 2012 is October 1, 2011.

Introduction – What is H-1B Visa?

The H-1B program is used by U.S. businesses to employ foreign workers in specialty occupations that require theoretical or technical expertise in specialized fields, such as scientists, engineers, or computer programmers.  The USCIS uses information provided in Part C of the H-1B Data Collection and Filing Fee Exemption Supplement (Form I-129, pages 14 through 15) to determine whether a petition is subject to the 65,000 H-1B numerical limitation (the “cap”).  Some petitions are exempt from the cap under the advanced degree exemption provided to the first 20,000 petitions filed for a beneficiary who has obtained a U.S. master’s degree or higher (Master-Cap).

The current annual cap on the H-1B category is 65,000. Not all H-1B nonimmigrants are subject to this annual cap. Please note that up to 6,800 visas may be set aside from the cap of 65,000 during each fiscal year for the H-1B1 program under the terms of the legislation implementing the U.S.-Chile and U.S.-Singapore Free Trade Agreements. Unused numbers in this pool are made available for H-1B use for the next fiscal year. The cap eligible petitions are the number of petitions that USCIS has accepted for this particular type of cap.  It includes cases that have been approved or are still pending.  It does not include petitions that have been denied.

Pre-requisite – You need the following for H-1B visa petitions

In order to file your H-1B visa petition, you need to consult your employer first to find out whether they will petition on your behalf.  Immigration law mandates that the employer files the H-1B visa petitions for the foreign employee. Thus, self-petitions for H-1Bs are not available.  Moreover, your employer must pay equal to or more than the determined prevailing wage for your occupation.  Lastly, your employer needs to pay the filing fee for the visa petition which ranges from $1575 to $3550 (assuming premium processing services + more than 25 employees).  Legal fees for lawyers are separate.

Once your employer decides to file the H-1B visa petition, the Labor Condition Application (LCA) should be filed to the Department of Labor. Without the certified LCA, you cannot file the H-1B visa petition. The LCA normally takes 10 to 14 business days for approval, so you need to give yourself two weeks before you file the H-1B.

What kind of documents do you and your employer need to provide?

Good supporting documentation is key for successful H-1B visa petitions.  The following list of may vary depending on the beneficiary’s job, his credentials and the type of business the employer is in.

INFORMATION REGARDING EMPLOYER/PETITIONER

• Employer’s tax info/record
• Company website printout
• Any information regarding the employer/petitioner

EVIDENCE PERTAINING TO THE BENEFICIARY’S EDUCATION AND QUALIFICATIONS

• Copy of Beneficiary’s Degree
• Copy of membership card if you are affiliated with any professional associations
• Any certificate which demonstrates that you are qualified for this “specialty occupation.”

EVIDENCE PERTAINING TO THE PROFERRED POSITION

• Detailed employment letter that explains that the proffered position is a “specialty occupation.”

Special Notes

If you currently hold a J-1 Visa in the United States, subject to the two-year foreign residency requirement, and want to change your status to H-1B, you need to get a waiver before you file your H-1B visa.  If you have a question with regard to J-1 waiver, please read our other blog articles for that topic.

If you are currently working for an employer under the OPT program, and that employer wants to file the H-1B visa petition for you, you do not have to leave the United States even if your OPT expires before October 1, 2011.  Under the “Cap-Gap” rule, your OPT can be extended until September 30, 2011 as long as your OPT does not expire before April 1, 2011.

Our firm has vast experience in H-1B cases, and we have obtained approvals for positions ranging from attorneys, computer systems analysts, sales managers, web graphic designers, physicians etc. Feel free to contact us at 1.800.898.7180 or email us at jp@sarmientoimmigration.com for questions.

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On August 13, 2010, President Obama signed Public Law 111-230, which requires the submission of an additional fee of $2,000 for certain H-1B petitions and $2,250 for certain L-1A and L-1B petitions. The additional fee applies to H-1B or L-1 petitioners that employ 50 or more employees in the United States with more than 50 percent of their employees in the United States in H-1B, L-1A or L-1B nonimmigrant status. The fee increase applies to covered petitions with a postmark date of August 14, 2010 or later.  For petitions sent via courier services, the fee applies to filing packets picked up by the courier on August 14, 2010 or later.

Until the Petition for Nonimmigrant Worker (Form I-129) and the Nonimmigrant Petition Based on Blanket L Petition (Form I-129S) are revised, USCIS recommends that all H-1B, L-1A, and L-1B petitioners include, as part of the filing packet, the new fee or a statement or other evidence outlining why this new fee does not apply. USCIS requests that petitioners include a notation indicating whether or not the fee is required in bold capital letters at the top of the cover letter.  The fee, statement, notation, or other evidence should be provided with each petition submitted.  Where the fee or documentation is not submitted with the filing, or where questions remain, USCIS may issue a Request for Evidence to determine whether the additional fee applies to the petition. Because an RFE will be issued for the fee, rather than a rejection for the omission of the fee, USCIS will maintain the original filing date as the receipt date.  Petitioners should wait to respond to the RFE before sending in the additional fee or an explanation of why the new fee does not apply.  Once the revised Form I-129 and Form 1-129S are in place, USCIS will reject covered petitions submitted without the new fee.

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The US Citizenship and Immigration Services (USCIS) announced on September 23, 2010 the final rule adjusting fees for immigration applications and petitions. The final rule will increase overall fees by a weighted average of about 10 percent but will not increase the fee for the naturalization applications. The rule will also reduce fees for six individual applications and petitions and will expand the availability of fee waivers to new categories. The adjusted fees will go into effect on November 23, 2010.

Below are the increased fee schedule for some commonly used immigration applications and petitions:

• I-130 Petition for Alien Relative: $355 to $420
• I-485 Applicant to Register Permanent Residence or Adjust Status: $930 to $985 (Biometrics fee not included). The current I-485 filing fee $1,010 amount includes $930 and biometrics fee $80. The adjusted filing fee will be $985 plus $85 biometrics fee which becomes $1,070.
• I-140 Immigration Petition for Alien Worker: $475 to $580
• I-907 premium processing service: $1000 to $1225
• I-129 Petition for a Non-Immigrant Worker: $320 to $325
• I-765 Application for Employment Authorization: $340 to $380

USCIS also reduced filing fees for six individual applications and petitions, including:

• I-129F Petition for Alien Fiance: $455 to $340
• I-539 Application to Extend/Change Nonimmigrant Status: $300 to $290 and
• I-698 Application to Adjust Status from Temporary to Permanent Resident: $ $1,370 to $1,020.

The adjusted fees will go into effect on November 23, 2010. Applications or petitions mailed, postmarked, or otherwise filed on or after November 23, 2010 must include the new fee. Applications filed with inappropriate filing on and after such date will not be considered properly filed and may be rejected.

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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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