H-2B Cap Reached

U.S. Citizenship and Immigration Services (USCIS) announced today that it has received a sufficient number of petitions to reach the congressionally mandated H-2B cap for the second half of Fiscal Year 2009 (FY2009). USCIS is hereby notifying the public that Jan. 7, 2009 was the “final receipt date” for new H-2B worker petitions requesting employment start dates prior to October 1, 2009. The “final receipt date” is the date on which USCIS determines that it has received enough cap-subject petitions to reach the limit of 33,000 H-2B workers for the second half of FY2009.

USCIS will reject petitions for new H-2B workers seeking employment start dates prior to October 1, 2009 that arrive after Jan. 7, 2009.

The U.S. Department of Homeland Security (DHS) has made significant revisions to the special immigrant and nonimmigrant (R-1) religious worker visa. The DHS believes the changes will ensure the integrity of the religious worker program by establishing a requirement that employers submit a formal petition for temporary religious workers, and by providing for increased inspections, evaluations, verifications, and compliance reviews of religious organizations. The following is the actual list of changes of the ruling for the religious visas published by the Department of Homeland Security.

Petitioning Requirements

• U.S. Citizenship and Immigration Services (USCIS) will require in every instance the filing of a petition by an employer on behalf of a nonimmigrant religious worker (the petition requirement already exists for special immigrants and for organizations seeking to extend the stay for or change status to nonimmigrant religious workers already in the U.S.).
• The employing U.S. organization must complete and submit the Petition for a Nonimmigrant Worker (Form I-129) or Petition for a Special Immigrant (Form I-360) (except in cases where the special immigrant is self-petitioning). This requirement will allow USCIS to verify the eligibility of the petitioner, the alien beneficiary, and the job offer prior to the issuance of a visa or admission to the United States.
• Petitioning employers will be required to submit an Attestation (included in the Forms I-129 and I-360) verifying the worker’s qualifications, the nature of the job offered, and the legitimacy of the organization.

Onsite Inspections

• The final rule provides additional notification to petitioners that USCIS may conduct onsite inspections of organizations seeking to employ religious workers.
• Inspections are intended to increase deterrence and detection of fraudulent petitions and to increase the ability of the agency to monitor religious workers and ensure their compliance with the terms of their religious worker classification.
• If an onsite inspection yields derogatory information not known to the petitioner, USCIS will issue a Notice of Intent to Deny the petition. The petitioner may submit additional documentation to rebut the derogatory evidence.
• A denial of a petition may be appealed to the USCIS Administrative Appeals Office.

Evidentiary Requirements for Petitioning Organizations

• All petitioning organizations must submit a currently valid determination letter from the Internal Revenue Service establishing their tax-exempt status. (Note: A valid determination letter includes those issued before the effective date of the Internal Revenue Code (IRC) of 1986 and also those which may be issued under future IRC revisions).
• Petitioning organizations that are not classified as “religious organizations” by the Internal Revenue Service must establish the religious nature and purpose of their organization. They must also certify that they are affiliated with a religious denomination that is tax exempt by completing the Religious Denomination Certification in the revised Forms I-129 and I-360.

Nonimmigrant Religious Worker Classification

• Every petition for a nonimmigrant religious worker (R-1) classification must be initiated by a prospective or existing employer through the filing of a Form I-129 with USCIS. The beneficiary (the religious worker) will no longer be able to obtain an R-1 visa at a U.S. Consulate abroad or at a port-of-entry without prior approval of the Form I-129 by USCIS.
• USCIS is amending the standard initial period of stay for nonimmigrant religious workers from three years to up to 30 months. The period of stay granted is always based on the petitioner’s need for the alien’s services. The revision gives the agency the opportunity to review, at an earlier time, whether the terms of the R-1 visa have been met. (Requests for one potential extension of an additional 30 months will be considered.)

Special Immigrant Religious Worker Classification

• USCIS is expanding its interpretation of qualifying prior work experience to include work that is not in the exact same position as the job offered.
• The final rule allows for a short break in the continuity of the required two-year religious work experience when the beneficiary was engaged in further religious training or on a sabbatical.

New Definitions and Proposed Changes to Existing Definitions

• The rule provides enhanced definitions of the terms Religious Vocation and Religious Occupation.
• The final rule amends the definition of Religious Vocation to be a formal lifetime commitment to a religious way of life.
• The final rule amends the definition of Religious Occupation by removing the list of occupations listed as examples in the proposed rule. The amended definition requires that the occupation relate primarily to a traditional religious function that is recognized as a religious occupation within the denomination.
• The rule defines the term Minister to be a person duly authorized by a religious denomination to conduct religious worship and other duties performed by clergy; but requires no uniform types of training for all denominations. Petitioning organizations may submit evidence of the individual denomination’s requirements for ordination to minister, the duties allowed to be performed by virtue of ordination, and the denomination’s levels of ordination, if any.
• A definition of Denominational Membership is added to clarify how a petitioner can establish that the beneficiary is a member in the same religious denomination as the U.S. employer seeking to employ him or her.
• The rule defines Religious Denomination as a religious group or community of believers governed or administered under some form of “ecclesiastical government.” USCIS acknowledges, however, that some denominations lack a central government. Accordingly, the religious entity may satisfy the ‘ecclesiastical government’ requirement by submitting a description of its own internal governing or organizational structure.

Compensation Requirements

• In both the immigrant and nonimmigrant programs, compensation can include either salaried or non-salaried compensation.
• Verifiable evidence must demonstrate how the alien will be supported.
• The only exception to the compensation requirement is for certain nonimmigrant religious workers who are participating in an established program for temporary, uncompensated missionary work within the petitioning organization, which is part of a broader, international program of missionary work sponsored by the denomination. Such missionary workers would nevertheless have to submit evidence of financial resources sufficient to support them during their work.

Revocation Procedures and Appeal Rights

• Appeal rights and revocation procedures are currently applicable to immigrant religious workers.
• The final rule adds a provision allowing an appeal of a denied nonimmigrant religious worker petition.
• The final rule also establishes procedures for revocation of the approval of nonimmigrant religious worker petitions. As with immigrant religious worker petitions, the revocation may be automatic or may require notice depending on the grounds for revocation. A petition that is revoked on notice may be appealed.

Extension of Nonminister Categories Affected by the Sunset

• On October 10, 2008, President Bush signed the Special Immigrant Nonminister Religious Worker Program Act, Public Law 110-391.
• This legislation granted a six-month extension of the two special immigrant categories for nonministers that expired on October 1, 2008. These two categories now expire on March 6, 2009.
• Although this legislation was enacted on October 10, 2008, it does not become effective until the Secretary of Homeland Security publishes final regulations eliminating or reducing fraud, issues a certification to Congress, and publishes a notice in the Federal Register that such regulations have been issued and are in effect.
• Now that the regulations are published and effective, USCIS has resumed the acceptance and processing of nonminister special immigrant religious worker petitions.

Pending Nonminister Cases Affected by the Sunset

• Noniminister special immigrant and nonimmigrant religious worker cases that have been held in abeyance will be adjudicated in accordance with the final rule. Request for Evidence will be issued for any evidence required as per the new regulations if such evidence was not initially submitted and not contained in the record

The Visa Waiver Program (VWP) enables eligible citizens or nationals of certain countries to travel to the United States for tourism or business for stays of 90 days or less without obtaining a visa. The program is overseen by United States Department of Homeland Security (DHS).

As of 17th November, 2008, citizens of 7 additional countries can enter the United States under VWP, these are Czech Republic, Estonia, Hungary, the Republic of Korea, Latvia, Lithuania, and Slovakia under the Visa Waiver Program.

The above mentioned countries are in addition to those already covered by the program namely Andorra, Australia, Austria, Belgium, Brunei, Denmark, Finland, France, Germany, Iceland, Ireland, Italy, Japan, Liechtenstein, Luxembourg, Monaco, the Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovenia, Spain, Sweden, Switzerland, and the United Kingdom.

In order to qualify for the VWP, the prospective country must meet various security requirements stipulated by the United States Administration.

The Department of Homeland Security (DHS) announced that, beginning January 12^th, 2009, all nonimmigrant aliens traveling to the United States under the Visa Waiver Program (VWP) must obtain an approved travel authorization from the Department’s Electronic System for Travel Authorization (ESTA). To comply with ESTA, VWP travelers must provide electronically to U.S. Customs and Border Protection (CBP) the information currently collected on the I-94W Nonimmigrant Alien Arrival/Departure (Form I-94W) through the CBP ESTA website and receive authorization to travel before embarking on travel to the United States.

An audit of H-1B applications entitled the “H-1B BFCA Benefit Fraud & Compliance Assessment” and results of which were released earlier in October, 2008 suggests that one in five H-1B visas are either fraudulent or contain technical violations. The audit was released by the Office of Fraud Detection and National Security, which is part of the USCIS. The report was produced at the request of Sen. Chuck Grassley, R-Iowa.

A random sample of 246 applications found 13 percent of the applicants used forged documentation, false businesses or addresses, false job offers, or misrepresented their immigration status. Another 7 percent had technical violations such as requiring the applicant to pay the application fee or list a salary substantively above what the applicant would actually be paid.

The USCIS plans to tighten up its procedures for vetting and approving the H1B applications in the wake of this audit to try eliminate the types of problems identified in the audit.

Some of the changes that maybe under consideration are:

• Increases in the number of visits investigators make to the sites of potential H-1B employers, to confirm that the companies exist, the nature of their business and the job descriptions of the H-1B applicants involved.
• Modifying the evidence required to extend an H-1B visa, such as a W-2 form to confirm the salary being paid.
• Changes to the I-129 forms used in the applications to make them less cumbersome to fill out and less prone to error.
• A plan to use “open-source” data to verify the identity of petitioners. Open-source is any form of data that is open to the public.

The USCIS is also working with the Department of Labor on changes to the Immigration and Naturalization Act that would allow a broader use of the $500 that is paid by each applicant into an anti-fraud fund that is supposed to pay for the policing of the system.

Trupti N Patel & Associates can help companies comply with the requirements of the H-1B Program. If you employ H1B workers, please contact us to see how we can help your organization comply with the rules & regulations governing the H1B Program.

Diversity Immigration (DV) Category

The Immigration and Nationality Act provides a maximum of up to 55,000 immigrant visas each fiscal year to permit immigration opportunities for persons from countries other than the principal sources of current immigration to the United States. The Nicaraguan and Central American Relief Act (NACARA) passed by Congress in November 1997 states that beginning with DV-99, up to 5,000 of the 55,000 annually-allocated diversity visas will be made available for use under the NACARA program. This reduction has resulted in the DV-2009 annual limit being reduced to 50,000. DV visas are divided among six geographic regions. No one country can receive more than seven percent of the available diversity visas in any one year.

For November, immigrant numbers in the DV category are available to qualified DV-2009 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers below the specified allocation cut-off number:

Entitlement to immigrant status in the DV category lasts only through the end of the fiscal (visa) year for which the applicant is selected in the lottery. The year of entitlement for all applicants registered for the DV-2009 program ends as of September 30, 2009. DV visas may not be issued to DV-2009 applicants after that date. Similarly, spouses and children accompanying or following to join DV-2009 principals are only entitled to derivative DV status until September 30, 2009. DV visa availability through the very end of FY-2009 cannot be taken for granted. Numbers could be exhausted prior to September 30.

Advance Notification of DV Immigrant Category Rank Cut-offs which will apply in December

For December, immigrant numbers in the DV category are available to qualified DV-2009 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers below the specified allocation cut-off number: