California Immigration Lawyer Blog

Articles Posted in H-1 B Visas

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In order to obtain a H-1B visa, a potential employee is required to show that he or she has an unrestricted state license, registration or certification which authorizes him or her to fully practice the specialty occupation and be immediately engaged in that specialty in the state of intended employment. 8 C.F.R. Section 214.2(h)(4)(v)

Licensing is required for certain professionals in California: occupational therapists, physical therapists, architects and social workers, to name a few.

If you do not have a license to practice the occupation, there are several other “work-arounds” that you may pursue and still obtain a H-1B visa.

  • Obtain a temporary license
  • Many occupations allow professionals to obtain a temporary license. For instance, it can take social workers years before they are eligible to take the licensing exam but applicants may apply to be “Associate Clinical Social Workers” (ASW) and work under the supervision of a Licensed Clinical Social Worker while they are pursuing their post-masters experience and preparing for the licensing exam. USCIS regulations permit such employment if a temporary license is available and if the duties of the occupation can be performed without a permanent license. In this situation, USCIS will examine the nature of the duties, the level at which the duties are performed, the degree of supervision received, and any limitations placed on the worker. If an analysis of the facts demonstrates that the individual under supervision is authorized to fully perform the duties of the occupation, H classification may be granted. 8 C.F.R. Section 214.2(h)(4)(v)(B)

  • Become licensed in another state that is faster
  • I am not familiar with the licensing requirements of all states but some states may have a faster licensing process than California does. Once licensed in another state, it may be possible to work in California for a brief time while applying for licensing in California. For instance an occupational therapist who holds a valid license in another state may work in California for 60 calendar days from the date he or she submits an application to the Board of Occupational Therapy.

  • Work under the license of a professional
  • For some professions it is possible to work under the license of a professional. Architects have to go through a lengthy process to become licensed in California. They must go through an intern development program and take exams. While going through this process, they may work as “intern architects” for a licensed architect in H-1B status.

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The issue of applying or having applied for Selective Service comes up a lot when applying for naturalization. Recently I have seen a number of clients at my San Francisco office who have not registered for Selective Service. I will write a couple of blog posts on the issue of Selective Service and naturalization.

Applicants for naturalization need to establish good moral character for the five years prior to the filing of the naturalization application (Form N-400) up to the time the oath of allegiance is taken. Although there is no specific law, USCIS (United States and Citizenship Services) interprets a failure to register for Selective Service as an act that reflects negatively on an applicant’s ability to establish good moral character.

The Selective Service agency is the agency responsible for maintaining a list of men who are eligible the military draft, if we should have one. All men, even if in the United States illegally, between the ages of 18-25, must register for Selective Service. (If you 26 or older, you are too old to register.) A Social Security number is not required to register. The only exception to the registration requirement is for men who are in the United States in valid non-immigrant status (i.e., students on F-1 visas or professionals on H-1B visas). Women are not required to register.

You may register for Selective Service online on their website or you can use the link at the bottom of this page. You may also register at a post office. In addition, you can register if you are applying for a student loan by completing a Federal Student Financial Aid (FAFSA form). You can check “Register Me” on Box #22 of that form, and the Department of Education will furnish Selective Service with the information to register. Finally, if you are applying for adjustment of status in the United States, you will automatically be registered upon USCIS’ acceptance of your Form I-485. (The last page of the form indicates that you agree to have USCIS transmit your information to Selective Service.)

If you are not sure whether or not you have registered with Selective Service or you want proof that you have registered, you may go to their website and click on the link to check registration.

My next few blog posts will discuss how to obtain a status letter from Selective Service and what to do if you have not registered with Selective Service.

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This year is very different in terms of the number of people filing for H-1B visas. Last year, USCIS, received enough applications on April 1 such that the cap was reached on the first day applications were accepted. This year, it is a different story.

As of May 4, 2009, USCIS had received 45,000 petitions toward the 65,000 cap limit. Thus it is still possible to file an H-1B petition for a job beginning October 1, 2009. (The government fiscal year begins on October 1.) There is also an additional 20,000 visas available for persons with advanced degrees (a Master’s degree or higher). Although USCIS has received 20,000 of these applications, they are still accepting additional applications because it has been their experience that not all of these petitions are approvable.

You can check the USCIS website on current cap counts for H-1B filings.

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I am currently working on a H-1B petition for an accountant in a northern California accounting firm. I was therefore interested when I saw an article about H-1B fraud posted on AILA’s (American Immigration Lawyer’s Association) website. While the website is open to the public, there is a special area for members only and this is where I saw the article.

Basically an AILA member did a Freedom of Information Act (“FOIA”) request and accidentally received the attached USCIS internal H-1B referral sheet. The sheet indicates areas which, if seen in a H-1B petition, United States Citizenship and Immigration Services (“USCIS”) may think that the petition is fraudulent. For instance, one of the possible markers for fraud, in the eyes of the USCIS, is a petition for a position as an accountant. Another marker is if the size of the company. If the company has less than 25 employees, it apparently looks fraudulent to the USCIS. Both of these markers appear in my case.

It appears that the adjudicator, upon seeing possible indications of fraud, would complete this form and then send the case on for investigation.

This form contains useful information because it tells us how USCIS thinks. I cannot change the facts in my case but at least I know what the concerns of USCIS are and can prepare for them.

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April 1 is the first date when applications for H-1B visas may be submitted to United States Citizenship and Immigration Services (“USCIS”) for jobs beginning on October 1, 2009. Immigration attorneys are now gearing up to file these petitions so that they are received at USCIS on April 1.

Recently the liaison committee of my professional association asked officials at the California Service Center (“CSC”) to specify what type of documentation they would accept in order to establish that the potential employee had met the degree requirements for the job. The CSC responded that they would accept the following:

  • A final transcript; OR
  • A letter from the registrar; OR
  • A letter executed by the person in charge of the records of the educational institution where the degree was awarded.

If the third option is chosen, then that person must show that they are authorized to issue such letters.

The degree requirements must be completed prior to the filing of the H-1B.

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It seems everyone is making predictions for the new year so I figure I can as well. My predictions are based on what I see going on around me in the San Francisco Bay area. Unfortunately I do not see a good year ahead for immigrants in the year to come, but not wanting to end on a pessimistic note, my last prediction is not depressing, although somewhat sarcastic. Here are my predictions:

1. There will be no immigration reform in 2009.
Although President-elect Obama has stated in his Plan for Science and Innovation that immigration reform is important to attract talented people to the United States, I do not see it happening in 2009 – at least reform that will benefit immigrants. Unfortunately, I do see immigration restriction as a possibility. Historically, our immigration laws have been tied to the economic situation in the U.S. When work is plentiful, our immigration policies encourage immigration. When work is perceived as scarce, our laws become restrictive. For example, in the 1840s and 1860s, American welcomed large numbers of Chinese immigrants. They primarily worked in mining (during the Gold Rush) and on building the railroads. When mining decreased and jobs were perceived as scarce, our government in 1882 passed the “Chinese Exclusion Act,” which prohibited “skilled and unskilled laborers and Chinese employed in mining” from entering the country for ten years under penalty of imprisonment and deportation. It also prohibited Chinese lawful permanent residents who were already in the United States from obtaining citizenship. It had far reaching repercussions and effectively stopped immigrants from China from being able to immigrate. Following another wave of immigrants in the early 1900s, our government restricted immigration in the 1920s with a strict quota enacted in 1924. The quota together with the Depression, effectively curtailed immigration in the United States until after World War II. Given the current economic situation today, I believe history will repeat itself and we will not see any legislation that will expand immigration.

2. There will be no additional H-1B numbers allocated this year.
Based on what I mentioned in the previous paragraph, I do not see an expansion in the H-1B program. The H-1B program (permitting professionals to work for a temporary period in specialty occupations) has come under a lot of criticism in the past year. Employers and advocates will have a hard time explaining why additional numbers are needed when there is high unemployment in the United States.

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