Immigration Law Blog

Monday, August 24, 2009
H-1B change of employer
Question: What happens if, during the term of employment, an employee on H-1B visa changes employers in the United States?

Answer: Every H-1B is based upon a specific employer and requires the same process as original application: a new H-1B petition is filed and approval from USCIS to work for the new H-1B employer must be obtained. The definition of a new employer generally is based upon the employer’s federal tax identification number – if the identification number is different then it is a new employer and a new H-1B is required. This is not the case if the change of employer is based on a corporate reorganization/merger/acquisition. In that case, no H-1B petition is required, the new employer in that case must merely assume the LCA liabilities of the previous employer and the new employer must update the public examination file with required information. While this procedure is sometimes referred to as a “transfer”, there technically is no transfer procedure under the law. Under H-1B portability, the petitioner may begin working for the new employer once he/she has filed the new application, however, in order to maintain/extend an employee’s H-1B status the employee will need the new H-1B approved and a new I-94 issued with the H-1B approval notice to continue to work for the new employer.

Posted 12:06 PM, EST by Robert D. Pearson, Esq.

Tuesday, May 5, 2009
Foreign Registered Nurses (RNs) and Immigration to the U.S. in General
Foreign nurses generally (excluding Canada and Mexico) have to obtain H-1B visas in order to live and work legally in the US. The US H-1B visa is a non-immigrant visa, which allows a US company to employ a foreign individual for up to six years. As applying for a non-immigration visa is generally quicker than applying for a US Green Card, staff required on long-term assignment in the US are often initially brought in using a non-immigrant visa such as the H-1B visa.
Individuals cannot apply for an H-1B visa to allow them to work in the US. The employer must petition for entry of the employee. H-1B visas are subject to annual numerical limits.
US employers may begin applying for the H-1B visa six months before the actual start date of the visa. Since the beginning of the FY 2009 is October 1, 2008, employers can apply as soon as April 1, 2008 for the FY 2009 cap, but the beneficiary cannot start work until October 1st.
The H-1B visa is designed to be used for staff in "speciality occupations", that is those occupations which require a high degree of specialized knowledge. Generally at least the equivalent of a job-relevant 4-year US Bachelor's degree is required (this requirement can usually be met by having a 3-year degree and 3 years' relevant post-graduate experience). However, professionals such as lawyers, doctors, accountants and others must be licensed to practice in the state of intended employment – e.g. a lawyer must generally have passed the relevant state bar exam.
Non-graduates may be employed on an H-1B visa where they can claim to be 'graduate equivalent' by virtue of twelve or more years' experience in the occupation.
New H-1B legislation requires certain employers, called 'H-1B dependent employers' to advertise positions in the USA before petitioning to employ H-1B workers for those positions. H-1B dependent employers are defined as those having more than 15% of their employees in H-1B status (for firms with over 50 employees – small firms are allowed a higher percentage of H-1B employees before becoming 'dependent'). In addition all new H-1B petitions and 1st extensions of H-1B's now require a fee (in addition to the usual filing fees) of US$1,000 to be paid, which will be used to fund a training programme for resident US workers.
The initial visa may be granted for up to three years. It may then be extended, in the first instance for up to two further years, and eventually for one further year, to a maximum of six years. Those wishing to remain in the US for more than six years may, while still in the US on an H-1B visa, apply for permanent residence (the "green card"): if such employees do not gain permanent residence, when the six year period runs out, they must live outside the US for at least one year before an application is made for them to enter on an H or an L visa.
Once a company has brought an employee to the US on an H-1B visa, should the company dismiss that employee before the expiry of the visa, the company is liable for any reasonable costs that the employee incurs in moving him/herself, his/her effects, back to his/her last foreign residence. This provision covers only dismissal, it is not relevant when an employee chooses to resign.

If the RN resides abroad, the following steps must be completed before the nurse may be employed in the U.S. the RN must have:
a. A diploma from a nursing school in her country;
b. An RN license in her country;
c. A full and unrestricted license to practice professional nursing in the state of intended employment, or a certification issued by the Commission on Graduates of Foreign Nursing Schools (CGFNS), or evidence that she has passed the NCLEX-RN licensing examination but cannot obtain a license because she lacks a social security number.
Although some states require that foreign nurses pass the CGFNS examination before taking the state RN licensing (NCLEX) examination, the number of such states is on the decline. This is because, as of January 2005, it became possible to take the NCLEX abroad in (1) Hong Kong; (2) London, England; or (3) Seoul, Korea. On January 24, 2006, the National Council of State Boards of Nursing (NCSBN) announced that within the next year, it will be possible to take the NCLEX in Australia, India, Japan, Mexico, Canada, Germany and Taiwan as well as the three locations named above. In addition, RNs residing abroad may take the NCLEX in Guam and Saipan.
2. RNs together with physical therapists are listed as shortage, or "Schedule A", occupations in regulations issued by the Department of Labor. An employer who wishes to immigrate an RN is exempt from having to submit a PERM application to the Department of Labor.
The immigration process begins when an employer submits an immigrant visa petition (Form I-140) to the service center of the US Citizenship and Immigration Services having jurisdiction over the nurse's place of intended employment. The petition must be accompanied by Labor Department form ETA-9089, by a posting notice, a prevailing wage determination and by various other documents. The petition should also be accompanied by a check for filing fees.
3. US Citizenship and Immigration Services sends the approved visa petition to the National Visa Center (NVC) in Portsmouth, New Hampshire. The nurse (or her attorney) receives a "fee bill" asking for all government processing fees to be paid in advance of processing her application and those of her immediate family members. After the fees are paid, the NVC forwards a packet to the nurse or her attorney containing biographical information forms to be completed by her and her family members, and a list of documents which must be submitted.
4. The RN, or her attorney, sends the signed and completed forms and documents to the NVC which then schedules an appointment for an Immigrant Visa for the RN and her family at the U.S. Consulate or Embassy where they will have their interviews for permanent residence. At this interview, the government will examine various documents including:
a. Applications for Immigrant Visas
b. Police Clearances
c. Birth Certificates
d. Marriage Certificate, if any
e. Divorce or Death Certificate of Spouse, if any
f. Valid Passports
g. Medical Examinations
h. Photographs
i. Recent job offer letter (or employment contract)
j. Financial information regarding employer
k. Government filing fees
l. VisaScreen Certificate
A VisaScreen Certificate is issued only after the RN has demonstrated that (1) her education, license and training in her country are equivalent to education, licensure and training in the U.S. and that (2) her level of competence in oral and written English are appropriate to practice professional nursing in the U.S.
The CIS regulations provide that the only organization authorized to issue VisaScreen certificates to RNs is the Commission on Graduates of Foreign Nursing Schools (CGFNS), the organization which is listed in §343. The CGFNS is located at 3600 Market Street, Philadelphia, PA, 19104-2651; telephone: (215) 349-8767; fax: (215) 349-0026; e-mail: support@cgfns.org
The CIS's VisaScreen regulations provide that even if a foreign-born RN is educated, licensed and trained in the U.S., she still must obtain a VisaScreen certificate. However, such RNs may be able to obtain a certificate on a streamlined basis. Obtaining such a certificate requires a significant expenditure of time, effort and money (over $300) on the part of the nurse.
Unless the nurse was educated in an English-speaking country (U.S., Australia, New Zealand, Ireland, United Kingdom or Canada - all provinces except Quebec), she must achieve a certain minimum score on tests in written and spoken English administered by TOEFL (Test Of English As A Foreign Language), IELTS (International English Language Testing Service) or the TOEIC (Test of English in International Communications). Also, if the RN registered for the MELAB (Michigan English Language Assessment Battery) before November 27, 2002, this result may be sent to the CGFNS for VisaScreen purposes.

Posted 10:10 AM, EST by Robert D. Pearson, Esq.

 

Wednesday, February 18, 2009
Department of State Publishes Final Rule on Diversity Visa Program

Visas: Documentation of Immigrants Under the Immigration and Nationality Act, as Amended: Electronic Petition for Diversity Immigrant Status

AGENCY: State Department. ACTION: Final rule.

SUMMARY: This rule makes final an interim rule published in the Federal Register on August 18, 2003, amending the Department's regulations pertaining to the manner in which aliens may petition for the opportunity to participate in the Diversity Visa Program. The rule changed the standard mail-in system previously used to an entirely electronic system for the purpose of making the process less prone to fraud, improve efficiency and significantly reduce the processing costs to the Government.

Effective Date: This rule became effective on January 15, 2009.

What did the rule do? The rule amended the Department's regulations at 22 CFR 42.33 to establish an entirely electronic system utilizing a specifically designated Internet Web site, by which aliens can petition for the opportunity to participate in the Diversity Visa Program.

Why was the petitioning process changed? There are three main benefits to changing the mail-in process to an electronic format. First, it helps eliminate multiple applications, prohibited under INA Section 204(a)(1)(I). Secondly, it greatly reduces the cost of administering the system. Finally, it benefits the petitioners by immediately notifying them of the receipt of the petition, impossible under the mail-in system.

Posted 11:11 AM, EST by Robert D. Pearson, Esq.