US H-1Bs are still available. It looks as if not all visas will be used for the current fiscal year. There are currently about 14,000 visas left for the regular H-1B visa and about 5,000 visas left under the H-1B masters exemption. In past years all visas have been used up in a single day. You can also start work as soon as your visa is approved. In the past because of lack of availability of visas many people had to wait for many months before being able to start work.

Source: http://www.workpermit.com/news/2010-10-12/us/us-h-1b-visas-still-available-october-2010.htm

Congressman Jared Polis proposed the new visa, with the aim to make it easier for entrepreneur immigrants. Without immigration companies such as Yahoo and Google would not exist. The idea will be part of a proposed overhaul of the U.S. immigration system.

“Every day the American economy is losing ground, not to mention high-tech jobs and technologies, to India and China because foreign-born entrepreneurs cannot secure a visa to stay in the US,” he stated.

If implemented, the new start-up visa proposal would mean that many more Immigrants will qualify for America’s EB-5 visa scheme. Introduced in 1990 to help attract foreign capital, the EB-5 visa allows 10,000 foreign entrepreneurs to come to the U.S. However, applicants must invest at least $1 million and create at least 10 full-time jobs.

Polis hopes to add a new class to the EB-5 visa that would allow entrepreneurs to attain a visa if they can attract $250,000 from a U.S. venture capital firm or $100,000 from an angel investor. The new company would have to show that it could generate $1 million in revenue and create at least 5 to 10 jobs.

A 2007 study, America’s New Immigrant Entrepreneurs, undertaken by Duke University and University of California at Berkley found that 25 percent of engineering and technology companies started in the United States between 1995 and 2005 had at least one founder who immigrated to the country.

According to the study, these companies generated $52 billion in sales in 2005 and employ nearly 450,000 U.S. workers.

Source: http://www.workpermit.com/news/2010-01-05/us/possible-new-entrepreneuer-visa-for-us.htm

As of September 10, 2010, USCIS has received approximately 37,400 H-1B cap subject petitions and approximately 13,700 petitions qualifying for the advanced degree cap exemption.

FY 2011 H-1B Cap Count

USCIS has informed that it will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits.

Contact VisaPro immediately to assist you with the H-1B filing using the fast, easy and economical online visa processing.

Source: http://www.visapro.com/Immigration-News/?a=1491&z=21

AGENCY: Employment and Training Administration (ETA), Department of Labor (DOL).

ACTION: Notice.

SUMMARY: On March 10, 2004, the United States Citizenship and Immigration Services (CIS) announced receiving sufficient H-2B petitions to reach the FY 2004 Congressionally mandated cap of 66,000.

In light of CIS’ announcement, ETA published a Federal Register notice on May 13, 2004 to provide guidance to the public regarding ETA’s processing of H-2B applications that will count against the FY 2005 cap. ETA is publishing this notice to provide additional guidance due to the number of inquiries and questions that have arisen. This notice is intended to minimize confusion and burden to employers who use the H-2B program.

DATES: This notice is effective October 1, 2004.

FOR FURTHER INFORMATION CONTACT: William Carlson, Chief, Division of Foreign Labor Certification, U.S. Department of Labor, Room C-4312, 200 Constitution Avenue, NW., Washington, DC 20210. Telephone: 202-693-3010 (this is not a toll-free number).

SUPPLEMENTARY INFORMATION: DOL has continued to process alien labor certification applications since March 10, 2004, and many employers are in possession of a valid labor certification that has not been accepted by CIS for processing. CIS has advised that their practice has been to accept the H-2B labor certifications with periods of employment that cross fiscal years so long as some portion of the employment period remains. Employers with a valid H-2B labor certification with a date of need prior to October 1, 2004, but that includes periods of planned employment after October 1, 2004, are encouraged to file H-2B labor certifications with CIS if some portion of the employment period remains.

ETA will continue to process new H-2B applications with dates of need within FY 2005 (that is, starting October 1, 2004 or later). For these new applications, employers must continue to follow existing filing rules, including regarding the timing of filing with the State Workforce Agency (SWA). Thus, employers must file a new H-2B application with the appropriate SWA no earlier than 120 days before the date of need and at least 60 days before the date of need.

The procedures described in this notice relate only to H-2B applications for nonimmigrant workers subject to the numerical limitation (cap) for FY 2005 and who will be engaged in temporary work to commence on or after October 1, 2004.

Source: http://www.visapro.com/Immigration-News/?a=101&z=10

USCIS has factored into its count of petitions subject to the FY05 cap the number of Chile/Singapore set-asides that were unused in FY2004 and any other cases that can be counted against the previous fiscal year’s H-1B cap rather than the FY 2005 cap. USCIS has received enough petitions to reach the limit for FY 2005.

After today, USCIS will not accept any new H-1B petitions that are subject to the FY 2005 annual cap. For the remainder of FY 2005, USCIS will follow the procedures set forth in the notice published on February 25, 2004 in the Federal Register at 69 FR 8675 to address the cap reached during FY 2004. Those procedures include:

USCIS plans to provide further details on these procedures in a new notice that will be published in the Federal Register shortly.

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:

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.

Source: http://www.visapro.com/Immigration-News/?a=99&z=10

Adding Actuaries and Plant Pathologists to Appendix 1603.D.1 of the North American Free Trade Agreement

AGENCY: U.S. Citizenship and Immigration Services, DHS.

ACTION: Final rule.

SUMMARY: This final rule adopts without substantive change a proposed rule that was published in the Federal Register by the former Immigration and Naturalization Service (Service). This final rule amends the Department of Homeland Security’s (Department’s) regulations by adding Actuaries and Plant Pathologists to Appendix 1603.D.1 of the North American Free Trade Agreement (NAFTA) and by modifying the licensure requirements for Canadian citizens seeking admission to the United States as “trade NAFTA” (TN) nonimmigrant aliens. These amendments reflect the agreements made among the three parties to the NAFTA and will facilitate travel to and business in the United States.
On March 1, 2003, the Service transferred from the Department of Justice to the Department, pursuant to the Homeland Security Act of 2002 (Pub. L. 107-296). Accordingly, the Service’s adjudication function transferred to the U.S. Citizenship and Immigration Services (USCIS) of the Department.

DATES: This final rule is effective November 12, 2004.

FOR FURTHER INFORMATION CONTACT: Craig Howie, Staff Officer, Business and Trade Services Branch, Program and Regulations Development, U.S. Citizenship and Immigration Services, Department of Homeland Security, 425 I Street, NW., ULLICO Building, 3rd Floor, Washington, DC 20536, telephone (202) 514-3228.

SUPPLEMENTARY INFORMATION:

What Is NAFTA?

On December 17, 1992, the United States, Canada and Mexico signed NAFTA. NAFTA entered into force on January 1, 1994, creating one of the largest trading areas in the world. Besides trade, NAFTA allows for the temporary entry of qualified business persons from each of the parties to the agreement. NAFTA is comprised of 22 chapters. Chapter 16 of NAFTA is entitled “Temporary Entry of Business Persons,” and in addition to reflecting the preferential trading relationship between the parties to the agreement, it reflects the member nations’ desire to facilitate temporary entry on a reciprocal basis. It also establishes procedures for temporary entry, addresses the need to ensure border security and seeks to protect the domestic labor force in the member nations.

Who Is a TN Nonimmigrant Alien?

A TN nonimmigrant alien is a citizen of Canada or Mexico who seeks admission to the United States, under the provisions of Section D of Annex 1603 of NAFTA, to engage in business activities at a professional level as provided for in the Annex. NAFTA parties have agreed that 63 occupations qualify as professions. These occupations are listed in the Appendix 1603.D.1 to Annex 1603 to the NAFTA found in 8 CFR 214.6(c). Canadian and Mexican citizens seeking to engage in occupations not included in Appendix 1603.D.1 to Annex 1603 are not eligible for classification as TN nonimmigrants.

What Changes Were Proposed in the Proposed Rule?

In the proposed rule published on December 19, 2000 at 65 FR 79320, the former Service proposed to add the occupation of actuary to the list of professions in Appendix 1603.D.1. In addition, the rule proposed to include plant pathologist to the Appendix 1603.D.1 as a footnote to the occupation of biologist. The former Service also proposed to change the licensure requirements for Canadian TN aliens applying for admission to the United States described at 8 CFR 214.6(e)(3)(ii)(F). The rule further proposed to remove 8 CFR 214.6(l), which relates to the transition period for Canadian citizens who were admitted to the United States under the United States-Canada Free Trade Agreement that existed before the effective date of NAFTA. The former

Service also proposed to change all references to the Northern Service Center to the Nebraska Service Center to reflect the center’s current name. Finally, the former Service proposed to remove the term “diplomas, or certificates” from 8 CFR 214.6(d)(2)(ii) and at 8 CFR 214.6(e)(3)(ii) since these regulatory cites are inconsistent with the footnotes to the Appendix.

Did the Former Service Receive Any Comments in Response to the Proposed Rule?

Yes, the former Service received 12 comments on the proposed rule. Seven of the comments dealt with the proposal that would add actuaries and plant pathologists to NAFTA and five comments related to the proposal to modify the licensure requirements for Canadian TN nonimmigrants. One of the comments addressing the proposed licensure requirements for Canadian TN nonimmigrants was actually a number of questions relating to the process that the former Service (now Department) uses to determine whether an alien has an appropriate license to practice in his or her occupation or profession. Since the questions posed in this comment letter do not directly relate to the proposed rule, this comment will not be discussed.

None of the comments addressed the technical changes that the former Service noted in the proposed rule. These technical changes include the removal from the regulations of the discussion of the transition period for Canadian citizens who were admitted to the United States under the former United States-Canada Free Trade Agreement, changing references to the “Northern Service Center” to “Nebraska Service Center,” and removal of the term “diplomas, or certificates” from 8 CFR 214.6(d)(2)(ii) and 8 CFR 214.6(e)(3)(ii) since these regulatory cites are inconsistent with the footnotes to the appendix.

The Department published an interim final rule on March 10, 2004 (69 FR 11287) which implemented changes to the TN application process resulting from the sunset of some NAFTA requirements imposed on Mexican TN’s. The changes in that interim final rule resolved the technical issues referenced above, and this rule finalizes the technical changes noted in the proposed rule.

Why Did the Former Service Propose To Change the Licensure Requirements for Canadian TN Nonimmigrants?

To ensure that the former Service’s regulations implementing Chapter 16 are in conformity with the obligations of the United States under the Agreement, the former Service proposed to remove 8 CFR 214.6(e)(3)(ii)(F). This provision requires the presentation of a license by a Canadian citizen as an entry requirement under the NAFTA.

For detailed Notice published in the Federal Register, please click here.

Source: http://www.visapro.com/Immigration-News/?a=113&z=10

Based on past experience, USCIS needs to approve approximately 100,000 beneficiaries to fully utilize the 66,000 H-2B visa cap during a fiscal year. As the 100,000 beneficiary target is approached, USCIS will use more exacting counts to determine if it needs to stop accepting H-2B petitions during fiscal year 2005.

On March 9, 2004, USCIS stopped accepting H-2B petitions that counted against the fiscal year 2004 statutory cap. USCIS continued to process petitions for current H-2B workers that did not count against the cap throughout fiscal year 2004. Those petitions were filed to:

• Extend the stay of a current H-2B worker in the United States.
• Change the terms of employment for current H-2B workers.
• Allow current H-2B workers to change or add employers.

USCIS anticipates imposing a similar cut-off with similar exceptions during fiscal year 2005.

The H-2B visa category allows U.S. employers in industries with peak load, seasonal or intermittent needs to augment the existing labor force with temporary workers. Typically, H-2B workers fill labor needs in occupational areas such as education, construction, health care, landscaping, lumber, manufacturing, food service/processing, and resort/hospitality services.

Source: http://www.visapro.com/Immigration-News/?a=145&z=10

The Bill will become law only when it is signed into law by the President. Therefore, none of the provisions of the bill will apply until it becomes law. Further, most of the H-1B related provisions will be effective 90 days after the Bill is signed into law, except certain provisions (related to fees) that will be effective immediately. The L-1 provisions will not be implemented until 180 days after the signing of the Bill into law. The key highlights of the Omnibus Appropriations Bill containing the H-1B and L-1 Visa Reform are discussed below.

Changes in H-1B Visa Program

New H-1B exemption

The Bill throws up an additional 20,000 of the coveted H-1B visas. This news generated a lot of excitement and our office has been flooded with calls enquiring whether the FY 2005 H-1B cap has been raised. In fact, various newspapers and journals, particularly in India, carried news reports that the H-1B cap has been raised by 20,000. While it is true that the legislation has opened up more H-1B visas, the caveat lies in the fact that these visas will be available only to certain qualifying applicants, and then, they won’t be available until three months after the Bill is signed by the President into law. These 20,000 new visas will be reserved for foreign students who have earned Master’s or higher degree from American universities or institutes of higher education. The annual cap will remain at 65,000. The proposed 20,000 H-1B visas will be treated as an exemption from the cap.

Additional H-1B Fees

Though the bill provides for relief to certain H-1B applicants from the H-1B cap, this relief comes with an expensive price tag in the shape of reinstatement and increase of the worker ‘retraining’ fee and the introduction of a new anti-fraud fee.

Education and Training Fee: The Bill reinstates and increases the Education and Training Fee. The employer-funded fee increases to $1500 (previously $1000), is separate from, and in addition to the regular USCIS filing fee and the optional $1000 premium processing fee. Employers with fewer than 25 full-time equivalent employees will only be required to pay half of the fee, i.e., $750.

New Anti-Fraud Fee: The Bill also introduces a new $500 anti-fraud fee to be paid by the employer at the time of initial H-1B or L-1 petitions.

Prevailing Wage Changes

The Bill also modifies Section 212(p) of the Immigration and Nationality Act to require employers to pay 100 per cent of the prevailing wage. Previously the provisions permitted 5% variance from the prevailing wage determinations for H-1B cases and in the labor certification process. However, the good news is that the Bill also mandates that where a governmental survey to determine prevailing wage (such as the Online Wage Survey) is made available to employers by the Department of Labor, such survey shall provide 4 levels of wages commensurate with experience, education and the level of supervision. Alternatively, a formula will be provided to calculate the 2 additional intermediate levels.

DOL Investigative Authority

The Omnibus bill also contains provisions expanding the Department of Labor’s investigative authority to conduct an investigation if it receives credible information providing reasonable cause that the employer has committed a willful failure to meet a condition.

Changes in L-1 Visa Program

No subcontracting of employees

The Bill modifies the provisions to prevent an L-1B holder from being primarily stationed at another employer’s worksite in the case where:

• The L-1B visa holder will be under the control and supervision of an unaffiliated
  employer;
• The L-1B visa holder will be providing labor for the third party rather than
  providing a product or service involving specialized knowledge specific to the
  petitioning employer.

These changes will apply to initial, extended or amended petitions filed on or after the effective date, i.e., 180 days after the President signs the Bill into law.

L-1 Blanket – one year work requirement

The Bill also strikes out the provision permitting the six-month requirement of continuous employment abroad to receive L-1 status under an L-1 Blanket petition. All visa applicants under the L-1 Blanket must once again meet the one year requirement applicable to all other L-1 applicants.

$500 Anti-Fraud Fee

The Bill also introduces a new $500 anti-fraud fee to be paid by the employer at the time of initial L-1 petition or a change of status application, in addition to the regular USCIS filing fees. The fee will be imposed only on principal alien. Visa applicants under an L-1 Blanket will also be required to pay the fee at the U.S. Consulate.

Note: The Fiscal Year 2005 Appropriations Act was signed by the President on December 8, 2004. For further information click here.

Conclusion

The changes proposed in the Omnibus Appropriations Bill will have a far reaching impact on H-1B and L-1 visas. We at VisaPro are keeping track of these proposed changes and will continue to update you when the Bill becomes a law. Subscribe to Immigration Alerts to get the latest news delivered to your email inbox.

Source: http://www.visapro.com/Immigration-News/?a=184&z=48

Congress created the new visa category as part of its approval of the United States-Chile Free Trade Agreement and the United States-Singapore Free Trade Agreement. By statute, the new H-1B1 visa is available only to nationals of Chile and Singapore. Under the implementing legislation, DOL’s responsibilities regarding H-1B1 visas are to be implemented in a manner similar to the existing H-1B program for temporary employment of nonimmigrant aliens in specialty occupations and as fashion models.

Thus, employers in the United States seeking to temporarily employ foreign professionals in specialty occupations through H-1B1 visas must file a labor attestation with the Department of Labor making the same attestations regarding payment of prevailing wages, working conditions, absence of strikes or lockouts, and notice to other employees that employers currently make when seeking entry of a foreign worker under the H-1B program.

This interim final rule is effective on November 23, 2004. Interested persons are invited to submit written comments on this interim final rule. To ensure consideration, comments must be received on or before January 24, 2005.

For complete notice published in the Federal Register click here.

Source: http://www.visapro.com/Immigration-News/?a=151&z=10

Following the adjustment for the Chile and Singapore H-1B1 program, and taking into account any other cases that can be counted against the FY 2004 cap, there now appears to be a sufficient number of H-1B petitions with employment start dates prior to October 1, 2005 pending at the USCIS Service Centers to reach the adjusted cap for FY 2005. Therefore, as of October 2, 2004, and until April 1, 2005, USCIS will return any petitions (along with the filing fee and, if applicable, the premium processing fee) requesting an employment start date prior to October 1, 2005.

What Is the Effect of This Notice?

This notice explains the USCIS procedure for processing H-1B petitions for new employment, which are subject to the H-1B cap, and filed by employers seeking to employ H-1B aliens on or before September 30, 2005.

What Is the USCIS Procedure for Processing H-1B Petitions for New Employment During the Remainder of FY 2005?

This notice informs the public that there appears to be a sufficient number of H-1B petitions pending at USCIS Service Centers to reach the adjusted cap of 58,200 for FY 2005. As of October 2, 2004, USCIS will not accept for adjudication any H-1B petition for new employment containing a request for a work start date prior to October 1, 2005. Petitions filed on or after October 2, 2004 will be returned (along with the filing fee and, if applicable, the premium processing fee) to the petitioner according to 8 CFR 214.2(h)(8)(ii)(E). In accordance with existing regulations, such petitioners may refile those petitions after April 1, 2005, with a new starting date of October 1, 2005, or later.

USCIS has established how many H-1B petitions are pending and will likely count towards the FY 2005 statutory limit. USCIS will adjudicate all petitions filed prior to October 2, 2004 in the order in which they are received. USCIS is not suspending premium processing and normal rules applicable to those cases filed on or before October 1, 2004 still apply.

How Will USCIS Treat H-1B Petitions That Are Revoked for Any Reason Other Than Fraud or Willful Misrepresentation?

For purposes of the annual numerical limitation, if an H-1B petition was approved in a prior fiscal year (e.g. FY 2001, 2002, 2003, 2004) but revoked in FY 2005, that revocation will have no effect on the FY 2005 cap and the number will not be restored to the total number of H-1B new petition approvals available for the remainder of FY 2005.

However, if an H-1B petition was approved in FY 2005 (and the approval was counted against the FY 2005 cap), and the H-1B petition subsequently is revoked during FY 2005 for any reason other than fraud or willful misrepresentation (e.g. the petitioner goes out of business), that number will be restored to the total number of H-1B petition approvals available for the remainder of FY 2005. If the same H-1B petition is revoked for any reason other than fraud or willful misrepresentation after the end of FY 2005, USCIS will not restore the number to the FY 2005 cap.

How Will USCIS Process H-1B Petitions That Are Revoked for Fraud or Willful Misrepresentation?

Section 108 of the American Competitiveness in the Twenty-first Century Act of 2000, Public Law 106-313 (“AC21”), sets forth the procedure when an H-1B petition is revoked on the basis of fraud or willful misrepresentation. Under AC21, one number for each petition that is revoked on the basis of fraud or misrepresentation shall be restored to the total number of H-1B petition approvals available for the fiscal year during which an H-1B petition is revoked, regardless of the fiscal year in which the petition was approved.

How Will USCIS Process H-1B Petitions That Were Originally Denied But Subsequently Ordered Approved by the Administrative Appeals Office or by a Federal Court?

USCIS has considered cases currently on appeal in its determination of cases that could count towards the statutory cap. USCIS will process approved petitions in the order that they were originally filed with USCIS or the former Immigration and Naturalization Service.

Will USCIS Refund a Filing Fee if a Petition Is Withdrawn or Revoked?

No, USCIS will not refund the $185 filing fee when a petition is revoked or withdrawn. The provisions contained in 8 CFR 103.2(a)(1) preclude the refunding of filing fees on Form I-129 petitions in these situations. USCIS will refund a filing fee only if the refund request is based on USCIS error or if the petition is filed subsequent to October 1, 2004. It should be noted that H-1B cap cases filed under the premium processing program are subject to the conditions contained in this notice.

For complete notice published in the Federal Register click here.

Source: http://www.visapro.com/Immigration-News/?a=150&z=10