In February, the Department of Labor issued  final regulations changing the rules for employers who use the H-2B visa program to sponsor temporary workers.   The new rules were to go in effect on April 27, 2012.  On Thursday, a Federal judge issued a temporary order blocking the new H-2B rules.

In Thursday’s ruling, US District Court Judge Margaret C. Rodgers said the department “acknowledges that it has no express congressional grant of authority to engage in legislative rule making under the H-2B program and that such authority was vested instead in the secretary of theDepartment of Homeland Security.”

The new rules were criticized by small business owners who argued the scheme will make labor costs prohibitively expensive and the H-2B visa program unusable.   The rules would:

• Require employers to complete a complex registration process to substantiate the need for temporary workers
• Reduce the length of employment from ten to nine months Require the filing of job orders, extensive domestic recruitment and an application for a temporary labor certification
• Require the employer to pay round-trip airfare and subsistence costs for H-2B employees as well as U.S. employees performing similar work

The parties now have 60 days to file motions for summary judgement, and the H-2B visa program will remain in limbo for several months.

The USCIS California Service Center has reported that 22,323 cap-subject H-1B visa petitions have been received as of April 4, 2012.   Approximately 25% of those cases are for workers with U.S. advanced degrees. This means the number of filings received in the first days of the FY2013 filing season are more than double the number of filings received by USCIS during the first week of the FY2012 filing season.

The annual cap on H-1B visas is 65,000. Not all H-1B petitions are subject to this annual cap.   For example, some are exempt from the cap under the advanced degree exemption provided to the first 20,000 petitions filed for a beneficiary who has obtained a U.S. master’s degree or higher.

At the current rate of use, H-1B visas will run out quickly this year.  If you need to file an H-1B visa for an employee, you need to hurry!

We applaud the Obama administration’s decision to designate Syria for Temporary Protected Status (TPS).  This will doubtless save many lives as the violent conflict in Syria rages on.  Details and procedures for applying for Temporary Protected Status have been published in the Federal Register.  It is estimated that over 3,000 Syrians in the U.S. are eligible to apply for TPS.  The registration deadline is September 25, 2012.

To be eligible for Temporary Status, Syrians must file an application along with evidence that demonstrates:

1.  They are nationals of Syria;

2.  They have continuously resided in the U.S. since March 29, 2012; and

3.  They have been continuously present in the U.S. since March 29, 2012.

Syria TPS applicants will be subjected to background and security checks.  If you have been arrested for or convicted of any offenses, consult with an immigration attorney before filing your registration application.  If you are found to have committed any deportable offenses, your application will be denied and you will be referred to the Immigration Court for removal.  Also, various grounds of inadmissibility apply to TPS registrants, including the bar for participating in the persecution of another individual.  USCIS has frequently found former members of the Baath Party to be inadmissible under the persecutor bar.  If you have ever been a member of the Baath party, you should consult with an immigration attorney to determine whether you are eligible for TPS.

Temporary Protected Status allows Syrians to remain in the U.S. and obtain work authorization until the TPS designation is terminated.  Once the designation is terminated, you will revert back to the immigration status you had before TPS.  Temporary Protected Status does not lead to permanent residence or U.S. citizenship.  If you are not present in the U.S., you are not eligible for TPS and should explore other immigration alternatives.  If you have questions about Syria TPS or would like assistance in filing your case, please schedule a consultation with our immigration attorney.

On March 23, 2012, Secretary of Homeland Security Janet Napolitano announced  that DHS will be designating Syria for Temporary Protected Status (TPS) for Syrians currently present in the United States.   This week the Department will publish a notice in the Federal Register that will provide further guidance about TPS eligibility requirements and registration procedures.  No Syrians should apply for TPS until the registration period is opened.

Once the eligibility requirements have been established, we will provide a post with details on how to apply.  If you are a Syrian national and need immigration assistance, you can schedule your initial consultation online.

Saturday, March 20, 2012 is Passport Day. On Passport Day you can apply for your U.S. passport at a Regional Passport Agency without an appointment. You will be able to apply for standard processing (4-6 weeks) or pay an additional $60 for expedited processing (2-3 weeks, door-to-door). Passport Day in the USA events are being held at Regional Passport Agencies across the nation. You can find a Regional Passport Agency near you by visiting the State Department website.

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We are updating our website this weekend to create a more user-friendly experience for our readers.  Some functions, such as the online booking links and social media widgets may not work properly during this renovation.  If you are unable to schedule your appointment online, please email info@whittfirm.com with the type of appointment desired and preferred date and time.   We expect all functions to be restored by Monday, February 27.

Due to the recent surge of violence in Syria, the United States has closed the Embassy in Damascus.  All American Embassy personnel have departed the country.  The State Department has directed U.S. citizen petitioners who are resident in Syria to email USCIS.Amman@dhs.gov if they wish to make an appointment to file I-130 petitions in Amman for their Syrian relatives.  All I-730 petitions Refugee/Asylee following to join cases have been transferred to the Embassy in Amman, Jordan.  If your relative is unable to travel to Amman for his or her interview, you may be able to transfer the case file to another U.S. Embassy in the region.

As of January 27, 2012, USCIS receipted 29,301 petitions toward the 33,000 H-2B cap amount for the first half of the fiscal year. This count includes 21,689 approved and 7,612 pending petitions.  This also includes 1,705 approved and 931 pending petitions for second half of FY2012.  Once the H-2B cap is reached, USCIS will only accept petitions for H-2B workers who are exempt from the H-2B cap.

If you are a permanent resident (“green card holder”) and a spouse of a U.S. Citizen, you can apply for citizenship three years after approval of your Adjustment of Status. Your approval may be noted via any of the following: approval notice (I-797), on your passport (I-551 stamp and date), or your green card (“resident since” date). The three year count down begins with that date.

If you are not married to a U.S. citizen, you can apply for citizenship five years after the approval of your adjustment of status.  (There are exceptions for members of the U.S. armed services, which will be discussed in a separate post.)

It is not enough to simply be a green card holder for the required number of years.  You must also be in “continuous residence”
during that time.  “Continuous residence” means that you have not left the United States for a long period of time.  If you leave the U.S. for more than six months, it is likely that you interrupted your continuous residence.  In almost all cases, if you leave the United States for one year or more, you have disrupted your continuous residence and may not be eligible to apply for U.S. citizenship.

To find out whether you are eligible to apply for U.S. citizenship, schedule a consultation with our Dallas immigration lawyer today.

U.S. businesses use the H-1B program to employ foreign workers in specialty occupations that require theoretical or technical expertise in specialized fields, such as scientists, engineers, or computer programmers.  On November 23, 2011, USCIS received a sufficient number of H-1B temporary worker petitions to reach the cap of 65,000 for fiscal year 2012.  USCIS rejected all cap-subject petitions that arrived after November 22, 2011.   USCIS will start accepting cap-subject H-1B petitions for FY 2013 on Monday, April 2, 2012 for employment with a start date of October 1, 2012 or later.

In previous years, the annual limit for new H-1Bs was exceeded within the first few days of the filing season, resulting in a random, computer-generated lottery for available visa numbers.  However, since FY 2010, the cap has been reached later in the year.  It is impossible to predict whether the cap will be reached quickly this year, so employers should immediately start identifying employees who will need H-1B petitions filed this season.  Employers should also be aware that the Department of Labor is taking up to 60 days to process prevailing requests, which can significantly increase the amount of time it will take to prepare H-1B petitions.

In order to offer H1B visa sponsorship to a foreign employee, the employee must have at least a Bachelor’s degree or its equivalent, and the field of study must be related to the job being offered.  The job offered must usually require at least a Bachelor’s degree or higher.

If you are an employer and have questions about sponsoring an employee for an H-1B visa, you can schedule a consultation with our Dallas immigration attorney online.