DHS Voices Concern Over L Visa Abuse

The Department of Homeland Security (DHS) has officially noted that the 65,000 cap on H-1B visa issuances will soon be reached. Many in the industry believe that, after this cap is reached, applicants may seek other, similar visa classifications, particularly the L-1 visa. In the wake of concerns over the abuse of the L visa, the DHS has issued a cable related to this issue.

DHS notes that in 2003, nearly 60,000 L visas were issued; of these roughly 18,000 were issued to Indian nationals (who received the highest number of H-1B and L visas in that year). After India, the highest number of L visas was received by (in order): the United Kingdom, Japan, Germany, Mexico, France, Brazil, Australia, Venezuela and China.

One major concern related to L visa issuances is abuse related to “job shops”. DHS is concerned that employment companies will use the L visa classification to transfer low wage personnel to U.S. companies. To receive an L visa, the employer must show a direct employer-employee relationship. This means that the employer must prove that the employer directly controls and orders the employee in the performance of their work. An employee working in the U.S. for a foreign company must be directly supervised by that company’s U.S. office. Furthermore, the employee must receive economic remuneration from the same employer to be considered an intracompany transferee.

Another concern of abuse is related to the “specialized knowledge” component of L visa regulations. According to DHS, “specialized knowledge” refers to “special knowledge possessed by an individual of the petitioning organization’s product, service, research, equipment, techniques, management, or other interests and its application in international markets, or an advanced level of knowledge or expertise in the organization’s processes and procedures.” This specifically means that the applicant should have this specialized knowledge prior to entering the U.S., and should not need to be trained in the U.S. prior to performing the main duties of the job. In addition, if the employee will be working for a company not associated with the petitioner, the employee should be performing services directly related to the petitioner’s produce, e.g. installing software designed by the petitioner.

DHS suggests that consular posts concerned about abuses in L-1 visa applications should submit these cases for advisory opinion. DHS also notes that posts that issue high numbers of L-1 visas should plan to engage in public outreach related to the proper use of the L visa and the criteria required to apply for the visa.

USCIS Announces New H-1B Procedures – Reaches Cap

Washington, D.C.– U.S. Citizenship and Immigration Services (USCIS) announced today that it has received enough H-1B petitions to meet this year’s congressionally mandated cap of 65,000 new workers. After today, USCIS will not accept any new H-1B petitions for first-time employment subject to the FY 2004 annual cap.

USCIS has implemented the following procedure for the remainder of FY 2004:

· USCIS will process all petitions filed for first-time employment received by the end of business today.
· USCIS will return all petitions for first-time employment subject to the annual cap received after the end of business today.
· Returned petitions will be accompanied by the filing fee
· Petitioners may re-submit their petitions when H-1B visas become available for FY 2005
· The earliest date a petitioner may file a petition requesting FY 2005 H-1B employment with an employment start date of October 1, 2004, would be April 1, 2004

Petitions for current H-1B workers do not count towards the congressionally mandated H-1B cap. Accordingly, USCIS will continue to process petitions filed to:

· Extend the amount of time a current H-1B worker may remain in the United States
· Change the terms of employment for current H-1B workers
· Allow current H-1B workers to change employers
· Allow current H-1B workers to work concurrently in a second H-1B position

USCIS also notes that petitions for new H-1B employment are not subject to the annual cap if the alien will be employed at an institution of higher education or a related or affiliated nonprofit entity, or at a nonprofit research organization or a governmental research organization. USCIS will also continue to process H-1B petitions for workers from Singapore and Chile consistent with Public Laws 108-77 and 108-78.

On March 1, 2003, U.S Citizenship and Immigration Services became one of three legacy INS components to join the U.S. Department of Homeland Security. USCIS is charged with fundamentally transforming and improving the delivery of immigration and citizenship services, while enhancing our nation’s security.

Press Office
U.S. Department of Homeland Security

DOS Updates NAFTA TN Process For Canadian And Mexican Citizens

The Department of State has issued a cable to update the processes for entry into the U.S. under TN status. The TN Visa was enabled by the North American Free Trade Agreement (NAFTA), signed into law by President Clinton in late 1993. A portion of NAFTA was designed specifically to enable “temporary entry for business consistency persons.” Because NAFTA affected the investment, trade and professional services interplay between the U.S., Canada and Mexico, the agreement directly affected a range of visas, including the B-1, E, L and TN visas as they pertain to these North American nations.

Professionals from Canada and Mexico who are members of professions listed in NAFTA are eligible to apply for TN visas. These aliens must meet a range of requirements, however, for legal admission to the United States. The overwhelming majority of these professions require that the alien have, minimally, an undergraduate degree. In these cases where an undergraduate degree is required, experience may not be substituted for that degree. In many of the professions listed under TN standards, additional experience and criteria are also required.

Employment Required: Aliens wishing to enter the U.S. under a TN classification must engage in prearranged business activity for either a U.S. or foreign employer, and evidence of this engagement must be provided in advance of entry. Self-employment is not an applicable category for the TN visa; individuals from Canada and Mexico interested in engaging in self-employment in the U.S. should pursue either a Treaty Trader or Investment visa.

Entry Documentation: Canadian citizens are not required to have a nonimmigrant visa in hand to enter the U.S. (with the exception of the E and K categories). Mexican citizens wishing to enter the U.S. under TN status, however, are required to obtain a visa prior to entry, and should seek this visa at a consular office.

Required Documentation: The following documentation is required for the TN visa:
1. Proof of citizenship;
2. Evidence of an offer of employment;
3. Proof that the alien meets the minimum education/work experience requirements of the professional category; and
4. Proof that the alien intends to temporarily stay in the United States.

In some cases, aliens may be further required to provide evidence of licensure to practice a given profession in the United States.

Fees: There is a processing fee of $50 to classify Canadian citizens as TN professionals. No fee is required of Mexican citizens.

Length of Stay: TN professionals and their derivatives may stay in the U.S. for up to one year under this classification.

Part-time employment: Part-time employment is acceptable under the TN classification. Changing or Adding Employers: Aliens under the TN classification may change or add employers while in the U.S. Aliens should file form I-129 with the Nebraska Service Center of the USCIS and provide new documentation and the $120 processing fee. Canadians may leave the U.S. and apply for readmission at a port of entry, using new documentation and a $50 fee.

Spouses and dependents: Spouses and dependents may accompany or follow a TN visa holder under the derivative TD status. Dependents may not work while in the U.S., but may attend school full-time. There is no processing fees for dependents.

Summation of Homeland Security’s Final VisaScreen Requirement

The VisaScreen requirement, which was established in 1996 in the Illegal Immigration Reform and Immigration Responsibility Act, requires all foreign nationals seeking to enter the U.S. primarily to work in certain healthcare fields to present certification from authorized credentialing organizations. This certificate, known as the VisaScreen certificate, should establish that the foreign national’s education, training, experience and license compare to similar qualifications in American healthcare workers. The certificate should also establish that the foreign national meets all legal requirements for entry into the U.S. under their proposed visa classification, and that the national is competent in the English language. If the foreign national is a nurse, the certificate will also establish that the nurse has passed either the CGFNS or the NCLEX exam.

The VisaScreen requirement applies to foreign nationals seeking to enter the U.S. to work in the following vocations:

1. Licensed practical nurses, licensed vocational nurses, and registered nurses;

2. Occupational therapists;

3. Physical therapists;

4. Speech language pathologists and audiologists;

5. Medical technologists (clinical laboratory scientists);

6. Physician assistants; and

7. Medical technicians (clinical laboratory technicians).

This requirement only applies to the above stated occupations. It does not apply to physicians, medical teachers, researchers and facility managers.

The VisaScreen certificate is valid for up to five years after its issue date. After this five-year period, foreign nationals must obtain new certificates to fulfill this requirement. However, if used once during the initial five-year period, the certificate may be valid for a longer period of time. This certificate must be presented to a consular officer at the time of visa issuance, and again to the Homeland Security officer at the point of entry.

This final rule of the VisaScreen requirement will take effect July 26, 2004. Prior to this date, foreign nationals in the above stated occupations may be issued admission for a period of no more than one year. The foreign national will be required to obtain a VisaScreen certificate within one year of the date of their admission, extension or change of status.

USCIS Proposes To Increase Fees For Immigration Applications And Petitions

US Immigration and Citizenship Services (USCIS) is proposing to raise fees of the Immigration Examinations Fee Account (IEFA) for immigration applications and petitions. The USCIS also proposes to increase the fee for capturing biometric information for applicants applying for certain applications and petitions from $50 to $70.

The fees collected from applicants are collected in the IEFA and utilized to fund the cost of providing adjudication and naturalization services, along with similar services for asylum/refugee applicants and other immigrant applicants at no fee. These fees may also be utilized to cover administrative costs. The current fees are based on 1997 adjustments made based on cost of living increases.

However, since July 2002, the cost of providing these adjudications/services has increased, especially due to heightened processes to ensure national security. In an attempt to economically recover these increased processing costs, the USCIS proposes the raises in fees, as shown in the table below.

This proposed rule intends to cover the estimated $141 million per year that added security enhancements have cost the Bureau. In addition the fee raises will assist in supporting program enhancements, new activities and administrative support costs, along with responding to a cost of living increase since 1997.

Form Description Proposed fee ($) Current Fee ($)
I-90 Application to replace permanent resident card 185 130
I-102 Application for replacement/initial nonimmigrant arrival/departure record 155 100
I-129 Petition for a nonimmigrant worker 185 130
I-129F Petition for alien fiancé 165 110
I-130 Petition for alien relative 185 130
I-131 Application for travel document 165 110
I-140 Immigrant petition for alien worker 190 135
I-191 Application for petition to return to an unrelinquished domicile 250 195
I-192 Application for advance petition to enter as a nonimmigrant 250 195
I-193 Application for waiver of passport and/or visa 250 195
I-212 Application for permission to reapply for admission into the U.S. after deportation or removal 250 195
I-360 Petition for Amerasian, widow(er) or special immigrant 185 130
I-485 Application to register permanent residence or to adjust status 315 255
I-526 Immigrant petition by alien entrepreneur 465 400
I-539 Application to extend/change nonimmigrant status 195 140
I-600/600A Petition to classify orphan as an immediate relative/application for advance processing or orphan petitions 525 460
I-601 Application for waiver on grounds of excludability 250 195
I-612 Application for waiver of the foreign residence requirement 250 195
I-687 For filing application for status as a temporary resident 240 185
I-690 Application for waiver of excludability 90 35
I-694 Notice of appeal of decision 105 50
I-695 Application for replacement employment authorization or temporary residence card 65 15
I-698 Application to adjust status from temporary to permanent resident 175 120
I-751 Petition to remove the conditions on residence 200 145
I-765 Application for employment authorization 175 120
I-817 Application for family unity benefits 195 140
I-824 Application for action on an approved application or petition 195 140
I-829 Petition by entrepreneur to remove conditions 455 395
I-881 NACARA – Suspension of deportation or application for special rule cancellation of removal 275 215
I-914 Application for T nonimmigrant status 255 200
N-300 Application to file declaration of intention 115 60
N-336 Request for hearing on a decision in naturalization procedures 250 195
N-400 Application for naturalization 320 260
N-470 Application to preserve residence for naturalization purposes 150 95
N-565 Application for replacement naturalization citizenship documents 210 155
N-600 Application for certification of citizenship 240 185
N-600K Application for citizenship and issuance of certification under Section 322 240 185