Silicon Valley Immigration Lawyer Blog

Your immigrant visa petition was denied because you didn't respond to a Request for Evidence...because you never received the Request for Evidence in the mail? Felt like the local USCIS adjudicator asked inappropriate questions at your marriage-based green card interview? If you've got a complaint, the USCIS Ombudsman wants to hear from you. He's even provided his e-mail address at: cisombudsman.feedback@dhs.gov.

The USCIS Ombudsman just released a report regarding the absence of a tracking system for complaints with the USCIS, and how the USCIS Office of Security and Integrity (OSI) is introducing a complaints tracking initiative to fix the problem. The initiative is supposed to guide the public on how to contact USCIS regarding problems they encounter with the system. The USCIS is hoping to increase overall customer satisfaction by using direct input from customers. The Ombudsman wants USCIS to expand that initiative to 1) establish a better means of informing the public how to submit general complaints; and 2) publish the collected complaint data for public scrutiny.

As an immigration lawyer, I welcome a specific, designated place to send concerns and complaints. What I would like even more is if action is taken on these complaints.

H-1B employers in Silicon Valley will soon be facing yet another burden when applying for nonimmigrant visas for their foreign national employees. They may now have to incur the extra effort and expense of registering with Dun & Bradstreet (D&B), an Independent Information Provider (IIP) company that validates basic information about companies or organizations. D&B maintains a database of over 190 million companies across the globe, and will provide the USCIS with a business profile of any registered company, including company size, a credit profile, and any other public information. The introduction of D&B is spurred by USCIS' new VIBE program, a web-based tool that allows the USCIS to use information provided by an IIP (in this case, D&B) to verify a petitioning employer's qualifications. The VIBE program applies to most nonimmigrant visa categories.

The current trend in immigration law is that employers are receiving Requests For Evidence (RFEs), when the D&B information is either nonexistent for the petitioning company, or inconsistent with the information provided in the employer's petition. Even when petitioner's submit current documentation about their company, the USCIS is allowing the D&B profile to trump the information provided by the petitioner. This means that U.S. companies petitioning for foreign nationals might want to ensure that they are not only registered with D&B, but that their profile is up-to-date.

Though USCIS is stating that registering and updating a D&B profile is free of charge, the likelihood is that employers will be paying at least a couple hundred dollars to validate their company, or update their information. An employer who responds to an RFE about a discrepency with the D&B report could always provide information to show that the D&B report is just wrong. However, for employers filing multiple H-1Bs, it might make the most sense to just pay the fee for D&B in order to stave off these types of RFE's.

March Madness is in the air. While millions of avid sports fans are rushing to finish their NCAA brackets, immigration lawyers across the country are also preparing for a frenzy. To immigration lawyers, "March Madness" is when we traditionally scramble to prepare H-1B petitions to be filed on April 1st. The first day that employers can submit H-1B applications for the 2011-12 fiscal year is April 1st. The fiscal year begins on October 1st, and H-1B applications can be submitted up to six months ahead of time - on April 1st. Congress sets the annual cap for new H-1B visas, and it is currently 65,000 plus an additional 20,000 H-1B visas for employees with a U.S. Master's degree or higher.

Before the 2008-09 FY, the annual cap for non-U.S. Master's degree petitions was often reached within days, and within a few months for other years. FY 2008-2009 saw the cap reached on April 7, 2008, just seven days after the filing period opened, and for FY 2007-08, the cap was reached on April 2, 2007. However, this past year, the cap was not reached until January 26, 2011, a full ten months after the filing window opened. If last year is an accurate prediction of this year, then employers don't have to feel rushed to submit their H-1B petitions by April 1st , as it is unlikely that 65,000 H-1B petitions will be submitted within the first five days of April. However, those employers who are sure about hiring specific workers and have been waiting to file should have their H-1B petitions ready to be filed on April 1st. If the USCIS determines that the volume of applications the first few days of April shows that the cap will be reached, then they will conduct a lottery and include all the applications submitted within the first five days of April 1st.

H-1B visas are a work visa for foreign professionals. To qualify for an H-1B, the worker must, at a minimum: (1) Be coming to work for a U.S. employer; (2) Be coming to work in a specialty occupation position. A specialty occupation ordinarily requires the attainment of a bachelors degree or its equivalent, as a minimum for entry into the occupation; and (3) Have at least the requisite bachelors degree or equivalent.

Continue reading "March Madness Time For H-1B Preparation" »

As if complying with the complexities of U.S. immigration law was not enough, employers must now review export control laws before submitting petitions for H-1B (professional worker), L-1 (intracompany transferee), or O-1 (extraordinary ability) visa petitions. The latest Form I-129, in effect since February 20, 2011, requires employers to complete the following question in Part 6:

With respect to the technology or technical data the petitioner will release or otherwise provide access to the beneficiary, the petitioner certifies that it has reviewed the Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR) and has determined that:

1. A license is not required from either the U.S. Department of Commerce or the U.S. Department of State to release such technology or technical data to the foreign person; or
2. A license is required from the U.S. Department of Commerce and/or the U.S. Department of State to release such technology or technical data to the beneficiary and the petitioner will prevent access to the controlled technology or technical data to the beneficiary until and unless the petitioner has received the required license or other authorization to release it to the beneficiary.

The idea is that when technology is disclosed to a foreign national, it is deemed to be exported to the home country of the foreign national. Some technologies require an export license to be exported to certain countries.

Continue reading "USCIS Now Requiring H-1B, L-1, and O-1 Employers to Review Export Control Law" »