E-1 / E-2 Visa Services Suspended in Vancouver due to Winter Olympics

Below is an automatic email response from the US Consulate in Vancouver:

E1/E2 visa services will be suspended for the duration of the 2010 Winter Olympic Games (February 12 - February 28, 2010). There will be NO cases logged, reviewed or scheduled for appointments during these dates. The Treaty Visa Unit will reopen on March 1, 2010.

Vancouver only processes E-1 or E-2 visa applications for Canadian citizens or permanent residents of Canada (who reside in either British Columbia, Alberta, Yukon or are currently in the U.S. in legal status).

If you are writing requesting information on how to apply for an E-1 or E-2 visa, please log onto our detailed website: http://vancouver.usconsulate.gov then click on Visa Information, then click on Treaty Trader & Investor. We do not adjudicate cases over the email.

If you are writing about a pending E-1 or E-2 visa application, please note our current approximate processing time is 12-16 weeks from your(clients) log-in date. This processing time can fluctuate based on workload and staffing. Please refrain from contacting us about the status of your case unless it has been pending for over 16 weeks without communication from our office.

In Honor of Dr. Martin Luther King Day

One of the best speeches of all time.

USCIS Memo Imposes New Requirements on H-1B Employers

On January 8, 2010, the Department of Homeland Security's USCIS (former INS) implemented new requirements for US employers seeking to hire or retain H-1B professional workers.

The underlying purpose of the new guidance is to eliminate so called "job-shops" - defined by USCIS as a US company who sponsors an H-1B worker, and then places that worker with another employer. The underlying purpose of eliminating job shops is to encourage US companies to hire American workers, as opposed to their foreign counterparts.

Unfortunately, in today's global economy we feel that faced with the choice of outsourcing work vs. hiring American workers, many US companies will move the job overseas to India or China, or fold under the pressure of today's economic climate. The last thing the US economy needs right now is to force more work overseas, off of US soil.

The impact of the new requirements will be felt primarily by IT consulting firms, whose services are becoming increasingly valuable to US businesses trying to stay competitive in today’s global market.

These companies will now be required provide extensive (read: overly burdensome) documentation to establish that they “control” the work of the H-1B employee, i.e. that they are not a "job-shop".

Among other forms of evidence (which are outlined below), we expect employment contracts to play a large role in addressing USCIS concerns about the existence of an employer-employee relationship. As such, we are suggesting to our clients that they work closely with employment law counsel to ensure that contracts include provisions which clearly demonstrate control over the H-1B employee, regardless of where the employee is placed.

We are also advising clients to expect shorter petition validity dates. Historically, USCIS approves H-1B petitions for three years. However, the new guidance emphasizes the need to establish the employer-employee relationship throughout the requested validity period.

As a result, we are inferring that USCIS will begin approving cases for terms of less than three years, to match the underlying documentation provided.

Notably, as a result of Requests for Evidence (RFEs) routinely issued by the USCIS in perceived “job-shop” cases, Law Office of Michael Ryvin has already been filing H-1B petitions with much of evidence required in the new memo.

However, the fact remains that thousands of US employers, small to mid-sized businesses, badly need important computer, engineering, and other outsourced work to stay alive in this difficult economy – and the USCIS just made things more difficult for these businesses.

For your reference, directly from the memo:

Employer-Employee Relationships

USCIS must look at a number of factors to determine whether a valid employer-employee relationship exists. Engaging a person to work in the United States is more than merely paying the wage or placing that person on payroll. In considering whether or not there is a valid “employer-employee relationship” for purposes of H-1B petition adjudication, USCIS must determine if the employer has the sufficient level of control over the employee. The petitioner must be able to establish that it has the “right to control” over when, where, and how the beneficiary performs the job and USCIS will consider the following to make such a determination (with no one factor being decisive):

(1) Does the petitioner supervise the beneficiary and is such supervision off-site or on-site?
(2) If the supervision is off-site, how does the petitioner maintain such supervision, i.e. weekly calls, reporting back to main office routinely, or site visits by the petitioner?
(3) Does the petitioner have the right to control the work of the beneficiary on a day-to-day basis if such control is required?
(4) Does the petitioner provide the tools or instrumentalities needed for the beneficiary to perform the duties of employment?
(5) Does the petitioner hire, pay, and have the ability to dire the beneficiary?
(6) Does the petitioner evaluate the work-product of the beneficiary, i.e. progress/performance reviews?
(7) Does the petitioner claim the beneficiary for tax purposes?
(8) Does the petitioner provide the beneficiary any type of employee benefits?
(9) Does the beneficiary use proprietary information of the petitioner in order to perform the duties of employment?
(10) Does the beneficiary produce an end-product that is directly linked to the petitioner’s line of business?
(11) Does the petitioner have the ability to control the manner and means in which the work product of the beneficiary is accomplished?

According to the memorandum, the petitioner will have met the test if, in the totality of the circumstances, a petitioner is able to present evidence to establish its right to control the beneficiary’s employment. The petitioner must also be able to establish its right to control the beneficiary’s work will continue to exist throughout the duration of the beneficiary’s employment term with the petitioner.

Evidence to be submitted with the Initial Petition:

The petitioner must clearly show that an employer-employee relationship will exist between the petitioner and beneficiary, and establish that the employer has the right to control the beneficiary’s work, including the ability to hire, fire and supervise the beneficiary. The petitioner must also be responsible for the overall direction of the beneficiary’s work. Lastly, the petitioner should be able to establish that the above elements will continue to exist throughout the duration of the requested H-1B validity period. The petitioner can demonstrate an employer-employee relationship by providing a combination of the following or similar types of evidence:

• A complete itinerary of services or engagements that specifies the dates of each service or engagement, the names and addresses of the actual employers, and the names and addresses of the establishment, venues, or locations where the services will be performed for the period of time requested;
• Copy of the signed Employment Agreement between the petitioner and the beneficiary detailing the terms and conditions of employment;
• Copy of the relevant portions of valid contracts between the petitioner and a client (in which the petitioner has entered into a business agreement for which the petitioner’s employees will be utilized) that establishes that while the petitioner’s employees are placed at the third-party worksite, the petitioner will continue to have the right to control its employees;
• Copies of signed contractual agreements, statements of works, work orders, service agreements, and letters between the petitioner and the authorized officials of the ultimate end-client companies where the work will actually be performed by the beneficiary, which provide information such as a detailed description of the duties the beneficiary will perform, the qualifications that are required to perform the job duties, salary or wages paid, hours worked, benefits, a brief description of who will supervise the beneficiary and their duties, and any other related evidence;
• Copy of position description or any other documentation that describes the skills required to perform the job offered, the source of the instrumentalities and tools needed to perform the job, the product to be developed or the services to be provided, the location whether the beneficiary will perform the duties, the duration of the relationship between the petitioner and beneficiary, whether the petitioner has the right to assign additional duties, the extent of petitioner’s discretion over when and how long the beneficiary will work, the method of payment, the petitioner’s role in paying and hiring assistants to be utilized by the beneficiary, whether the work to be performed is part of the regular business of the petitioner, the provision of employee benefits, and the tax treatment of the beneficiary in relation to the petitioner;
• A description of the performance review process; and/or
• Copy of the petitioner’s organizational chart, demonstrating beneficiary’s supervisory chain.

Evidence to be submitted with the Extension of Status Petition (Same Employer):

An H-1B petitioner seeking to extend H-1B employment for a beneficiary must continue to establish that a valid employer-employee relationship exists. The petitioner can do so by providing evidence that petitioner continues to have the right to control the work of the beneficiary, as described above.

The petitioner may also include a combination of the following or similar evidence to document that it maintained a valid employer-employee relationship with the beneficiary throughout the initial H-1B status approval period:

• Copies of the beneficiary’s pay records (leave and earnings statements, and pay stubs, etc.) for the period of the previously approved H-1B status;
• Copies of the beneficiary’s payroll summaries and/or Form W-2s, evidencing wages paid to the beneficiary during the period of previously approved H-1B status;
• Copy of prior years’ work schedules;
• Documentary examples of work product created or produced by the beneficiary for the past H-1B validity period, (i.e. copies of: business plans, reports, presentations, evaluations, recommendations, critical reviews, promotional materials, designs, blueprints, newspaper articles, web-site text, news copy, photographs of prototypes, etc.). Note: the materials must clearly substantiate the author and date created;
• Copy of dated performance review(s); and/or
• Copy of any employment history records, including but not limited to, documentation showing date of hire, dates of job changes, i.e. promotions, demotions, transfers, layoffs, and pay changes with effective dates.

If USCIS determines, while adjudicating the extension petition, that the petitioner failed to maintain a valid employer-employee relationship with the beneficiary throughout the initial approval period, or violated any other terms of its prior H-1B petition, the extension petition may be denied unless there is a compelling reason to approve the new petition (e.g., the petitioner is able to demonstrate that id did not meet all the terms and conditions through no fault of its own). Such a limited exception will be made solely on a case-by-case basis.

Requests for Evidence (RFEs) to Establish Employer-Employee Relationship

USCIS may issue a Request for Evidence (RFE) when USCIS believes that the petitioner has failed to establish eligibility for the benefit sought, including in cases where the petitioner has failed to establish that a valid employer-employee relationship exists and will continue to exist throughout the duration of the beneficiary’s employment term with the employer. Such RFEs, however, must specifically state what is at issue (e.g. the petitioner has failed to establish through evidence that a valid employer-employee relationship exists) and be tailored to request specific illustrative types of evidence from the petitioner that goes directly to what USCIS deems as deficient. Officers should first carefully review all the evidence provided with the H-IB petition to determine which required elements have not been sufficiently established by the petitioner. The RFE should neither mandate that a specific type of evidence be provided, unless provided for by regulations (e.g. an itinerary of service dates and locations), nor should it request information that has already been provided in the petition. Officers should state what element the petitioner has failed to establish and provide examples of documentation that could be provided to establish H-1B eligibility.

Compliance with 8 C.F.R. 214.2(h)(2)(i)(B)

Not only must a petitioner establish that a valid employer-employee relationship exists and will continue to exist throughout the validity period of the H-IB petition, the petitioner must continue to comply with 8 C.F.R. 214.2(h)(2)(i)(B) when a beneficiary is to be placed at more than one work location to perform services. To satisfy the requirements of 8 C.F.R. 214.2(h)(2)(i)(B), the petitioner must submit a complete itinerary of services or engagements that specifies the dates of each service or engagement, the names and addresses of the actual employers, and the names and addresses of the establishment, venues, or locations where the services will be performed for the period of time requested. Compliance with 8 C.F.R. 214.2(h)(2)(i)(B) assists USCIS in determining that the petitioner has concrete plans in place for a particular beneficiary, that the beneficiary is performing duties in a specialty occupation, and that the beneficiary is not being “benched” without pay between assignments.

Attending a Nonimmigrant Visa Interview in London

Fear, Loathing, and the Know-Nothings of 2010

An interesting article from journalist Jeffrey Kaye:

Take a guess: What percentage of the nation’s population are immigrants?

In a recent random survey, the average estimate of 1,000 Americans who were asked that question put the immigrant population of the U.S. at 35.2 percent. One thousand Brits asked the same question estimated the foreign-born population of the United Kingdom was 26.5 percent. The guesses turned out to be wild exaggerations.

Why care about wrong guesses about migrants on the part of people with no particular expertise phoned at random? The overblown estimates—combined with other survey results about increasingly hostile attitudes towards immigrants—are troubling. History has shown that anti-immigrant sentiment tends to rise during economic downturns, when fear, fueled by ignorance breeds nativism and a search for scapegoats. It was the “Know-Nothing” American Party of the mid- 19th century which, in reaction to rising immigration, demonized German and Irish Catholics as well as Chinese migrants of the era.

You can read Mr. Kaye's entire blog post here.

US Immigration Authorities Halt Deportations to Haiti

In light of the earthquake in Haiti:

Department of Homeland Security Secretary Janet Napolitano and U.S. Immigration and Customs Enforcement Assistant Secretary John Morton today halted all removals to Haiti for the time being in response to the devastation caused by yesterday’s earthquake. ICE continues to closely monitor the situation.

Link.

February 2010 Visa Bulletin

The Visa Bulletin for February 2010 shows the following:

1.) The EB-1 category will remain current, for all nationalities.

2.) The cut-off date for the "EB-2 China" category will move forward by three weeks, to May 22, 2005; while the "EB-2 India" cut-off date will stay put at January 22, 2005. "EB-2 Worldwide", "EB-2 Mexico", and "EB-2 Philippines" will remain current.

3.) The priority date cut-off for "EB-3 China" and "EB-3 Worldwide" will move forward to September 22, 2002; while "EB-3 India" and "EB-3 Mexico" cut-off dates will NOT move forward, staying put at June 22, 2001, and July 1, 2002, respectively.

4.) EB-4 Religious Workers and EB-5 Immigrant Investors will remain current, for all nationalities.

Please do not hesitate to contact the Law Office of Michael Ryvin if you have questions about your priority date, or how the Visa Bulletin works generally.

Travel Delays Expected as Homeland Security Outlines New Travel Security Recommendations

In a January 7, 2010 press release, the US Department of Homeland Security Secretary Janet Napolitano announced recommendations DHS has made to President Obama, in response to security reviews ordered by the President following the attempted terrorist attack on Decemeber 25, 2009.

The five recommendations are:

1.) Re-evaluate and modify the criteria and process used to create terrorist watch lists—including adjusting the process by which names are added to the “No-Fly” and “Selectee” lists.

2.) Establish a partnership on aviation security between DHS and the Department of Energy and its National Laboratories in order to develop new and more effective technologies to deter and disrupt known threats and proactively anticipate and protect against new ways by which terrorists could seek to board an aircraft.

3.) Accelerate deployment of advanced imaging technology to provide greater explosives detection capabilities—and encourage foreign aviation security authorities to do the same—in order to identify materials such as those used in the attempted Dec. 25 attack. The Transportation Security Administration currently has 40 machines deployed throughout the United States, and plans to deploy at least 300 additional units in 2010.

4.) Strengthen the presence and capacity of aviation law enforcement—by deploying law enforcement officers from across DHS to serve as Federal Air Marshals to increase security aboard U.S.-bound flights.

5.) Work with international partners to strengthen international security measures and standards for aviation security.

Secretary Napolitano states, "The attempted attack on Christmas Day is a powerful illustration that terrorists will go to great lengths to try to defeat the security measures that have been put in place since September 11, 2001. These recommendations will strengthen aviation security - at home or abroad - through partnerships, technology and law enforcement efforts."

New Procedure for Prevailing Wage Determination (PWD) Requests

Question: What programs are affected by the new prevailing wage procedure administered by the National Prevailing Wage and Helpdesk Center (NPWHC) in Washington DC?

Answer: The NPWHC will process PWD requests for H-1B, H-1B1 (Chile/Singapore), H-1C (if re-authorized by Congress), H-2B, E-3 (Australia), and labor certification (PERM) applications.

Additional questions and answers regarding the new procedure can be found here.

January 2010 Visa Bulletin including Predictions for FY 2010

The January 2010 Visa Bulletin has been released by the US Department of State.

The employment-based first preference (EB-1) category will remain current during the month of January for all nationalities, while remaining employment-based immigration categories show little movement.

Specifically, the EB-2 India category has not moved from January 22, 2005; while EB-2 China has moved forward slightly to May 1, 2005. The EB-2 category for all other nationalities remains current.

The cutoff date for EB-3 Worldwide, EB-3 China, and EB-3 Philippines, is August 1, 2002; with EB-3 India at June 22, 2001 and EB-3 Mexico at July 1, 2002. The cutoff date for EB-3 unskilled (“other”) workers, is June 1, 2001.

Further, based on current indications of demand for green cards, the January 2010 Visa Bulletin predicts the following best case scenarios:

The cutoff date for the EB-2 China category will be between July and October of 2005, by the end of FY 2010 (September 30, 2010); while EB-2 India’s will be between February to early March of 2005

The cutoff dates for the EB-3 India category will be as follows:

Worldwide: April - August 2005
China: June - September 2003
India: January - February 2002
Mexico: January - June 2004
Philippines: April - August 2005

The Department of State advises that the above date ranges are only estimates which are subject to fluctuations in demand during the coming months. The actual future cut-off dates cannot be guaranteed, and it is possible that some annual limits could be reached prior to the end of the fiscal year.

An Undocumented Princetonian

An inspiring immigrant story courtesy of the NY Times:

Luckily, he says, his grandmothers had hammered self-respect into him. He was proud of the solitary women who had raised him, and proud of how hard his father and mother had worked to send money to Colombia to put food on the family table. Still, each time he uttered his awkward sentences, he was sure other students wondered what he was doing at Princeton.

In the classroom he was very quiet, he says. But as the year progressed, he showed a firm grasp of the course material on written tests. He would read a required chapter so many times he would memorize much of it. He was always ahead of the reading list by two weeks. He kept two notebooks for every course, one recording what the professor had said in class and the other containing more organized summaries supplemented with explanations and diagrams. To study, he found private niches where there were no distractions. He was particularly attached to the classrooms in Palmer Hall, where nearly half a century before Einstein had given some of his lectures.

It was a form letter from the adviser to foreign-born students, Janina M. Issawi. Those who were not citizens or permanent residents were asked to set up appointments and bring their documents to be photocopied. According to a Princeton spokeswoman, Emily Aronson, the university had to verify that these students were eligible for federal loans or work-study jobs. Harold had received a Pell grant and federal loans, both restricted to citizens or permanent residents. He was neither.

A copy of his green card had been submitted with his application; now Princeton was asking for the original. But the original was a crude forgery.

You can read the entire story here.

IRS Plans to Regulate Paid Tax Preparation

Assuming for the moment this new regulation will be enforced, it comes as good news for the immigrant community in the United States, particularly for individuals facing removal in US Immigration Court. Payment of taxes is routinely addressed in these proceedings, and immigrants are often forced to explain the "shoddy or fraudulent" work of unregulated and unlicensed tax preparers.

Courtesy of the Washington Post:

The Internal Revenue Service plans to test, register and screen people who get paid to prepare tax returns, stepping into a virtually unregulated business on which millions of Americans depend for crucial financial services.

The agency wants to crack down on preparers who do shoddy or fraudulent work and create a way for consumers to make more informed choices -- though the moves could increase the cost of having tax returns prepared.

"In most states you need a license to cut someone's hair," but today "most tax-return preparers don't have to meet any standards when they sit down and prepare a federal tax return for an American taxpayer," IRS Commissioner Douglas Shulman said in an interview Monday.

The agency said it will phase in the changes with the 2011 tax season.

You can read the rest of the article here.

US Consulates in India to Begin New Online Visa Application Process - February 1, 2010

Courtesy of the India Times:

The applicant would have to fill up visa papers electronically, answer a few questions online and approach the consulate with a print-out of a one-page confirmation with barcode.

The article also provides some interesting statistics:

The number of students from India to the US increased by nine per cent, from 94,563 to 103,260 during 2008-09, Tyler said. China and Korea have the second and third largest students studying in the US, he added.

India is leading for the last eight years in a row, he said, adding that the growth in number of Indian students per year is between five to ten per cent.

The entire article can be found here.

New US Visa for Start Ups?

Courtesy of BBC News:

Over a year ago he started to apply for a visa to allow him to carry on working in the Valley, but he soon encountered problems.

In the end, Mr. Diep decided to base himself in his native Canada and travel back and forth to Silicon Valley.

The start-up visa is aimed at streamlining the country's EB-5 visa system which was initially introduced in 1990 to attract foreign capital to the US.

Each year 10,000 EB-5 visas are available but to get one, applicants need to invest $1m and create 10 full-time jobs.

Mr. Polis said he wants "a new class of eligibility" with the start-up visa. It would be granted to foreign entrepreneurs if their business plan attracts either $250,000 from a venture capital operating company that is primarily US based or $100,000 from an angel investor.

They must also show that the business will create five to ten jobs or generate a profit and at least $1m in revenue.

Some of these requirements may well be changed when the bill goes to committee in the new year.