Fiscal Year 2011: H-1B VISA OPPORTUNITY

The annual visa limit of 65,000 continues to be open and available. The filing and consequently the count for fiscal year 2011 began on April 1, 2010. On May 21, it has reached only 19,600, so ample slots remain to be claimed. Keep in mind though that because these are for the next fiscal year, the visa applicant must be aware that these H-1Bs will not be usable until October 1, 2011. Nevertheless, one should not delay the application process because the numbers game can change at any time.

May 2005: H-1B VISA CRISIS

H-1B visa crisis began in early 2005 when all the numbers for fiscal year 2006 became unavailable. The filing rush for visa numbers became exacerbated when on the very first filing day of April 1, more than the annual quota of 65,000 petitions was received. To remedy the competition for visa numbers, the CIS announced a lottery based on the total filings received on April 1 or on the first business day in April. It is anticipated that the same rush for available numbers will occur annually, making it imperative not to delay filing.

Extensions of H-1B status and change of employers can be obtained without the need for a new visa number. Likewise, there are numbers available for advanced degree (Master's or higher) positions based on degrees obtained from a U.S. educational institution. These are assigned on a first come, first served basis.

PERM LABOR CERTIFICATION IMPLEMENTED

Another important change in the process is that the employer must pay 100% of the prevailing wage as determined by the DOL. A 95% variance is no longer accepted.

 

In May 2007, a new ruling from DOL further complicates the process; it prohibits payment of attorney fees by the foreign worker. This also means that a financial arrangement between the foreign worker and the employer for reimbursement of fees paid by the employer in unacceptable and will lead to denial of the PERM application.

On June 2, 2008, DOL  demonstrated that it is moving to implement its oversight and enforcement muscle. Specifically, DOL announced that it will audit (for noncompliance) every PERM application of the nation's largest immigration law firm; a short time later it ruled to debar three U.S.  employers from filing PERM applications due to a finding of violations in its practice.  A lawsuit is now pending against DOL to prevent it from, inter alia, interfering with the attorney-client relationship.

 

As is evident, there are many obstacles that must be overcome when processing PERM. Even when it may appear that PERM can be processed relatively quickly, it does take time and effort to correctly identify the job title, duties, minimum educational and experience requirement for the job, prevailing wage for the position, as well as any special requirements. This must be followed by careful planning of the recruitment process, which varies with the level of requirements of the job being certified.

 

September, 2008:  For those who have $500,000 to invest in a CIS approved Regional Center, resident status can be obtained for the spouse and all children under 21,  This is the least painful way to obtain resident status (green card) because it involves minimal participation in the daily operations of the Regional Center.  As a limited partner, the investor’s obligations are met.  There is a myriad of investment opportunities in various parts of the U.S. from which to choose, without the added obligation of having to live in that geographical area.   Moreover, visa numbers are immediately available .  The only delay is the processing time.
 

VIOLENCE AGAINST WOMEN ACT 2005 (VAWA 2005)

 

 Signed into law on January 5, 2006, VAWA 2005 provides additional protection for spouses and children of U.S. citizen and of lawful residents, who were physically or emotionally abused.  The abusing spouse may not provide evidence in the efforts of the abused foreign national in obtaining legal status.  Such status is available to the abused spouse even within two years after divorcing the US citizen or resident spouse.

Many other benefits, too numerous to mention in this summary.

VAWA also protects children who suffer abuse and incest who may apply for legal status until age 25.  The law likewise protects trafficking victims and gives employment authorization

 

EXPERIENCE:

• Named "Super Immigration Lawyer," Los Angeles Magazine for six consecutive years (2004 to 2009).

• Successfully litigated against the immigration service for unreasonably delaying case processing.

• Successfully sued the U.S. Department of Labor for violating labor certification regulations.

• Obtained political asylum for clients from various countries.

• Won motions to reopen based on ineffective prior counsel, resulting in a new removal (deportation) hearing.

• Victories on behalf of clients before the Ninth Circuit Court of Appeals.