After inquiring with CBP headquarters about these incidents, the CBP Liaison Committee of the American Immigration Lawyers Association was advised by CBP that several of these cases involved companies under investigation by U.S. Immigration and Customs Enforcement (“ICE”) and/or U.S. Citizenship and Immigration Services (“USCIS”) for ongoing fraud. 

CBP’s new, unannounced policy involves conducting random checks for returning H-1B, L-1, and other employment-based visa holders.  Based upon the initial check, if the CBP officer determines the foreign national’s admissibility is questionable, then he or she will be sent to secondary inspection for further interview. In some cases, if CBP discovers discrepancies in previously filed petitions, then the applicant may be asked to withdraw his/her application for admission into the United States or be subject to expedited removal.

CBP has claimed that those questioned are offered the opportunity to contact their consulate.  While CBP officers, at times, have contacted the H-1B petitioner and/or current employer when clarification was necessary, they have not permitted the interviewee to contact legal counsel.

With this new policy, CBP officials have been authorized to institute expedited removal when they believe that an individual is entering the U.S. in violation of the terms and conditions of his/her visa. Expedited removal, in which the government covers the costs of the return airline ticket, bars the individual from reentering the U.S. for a period of five years. 

This post serves as a wakeup call for all nonimmigrant workers with upcoming travel plans abroad.  They should prepare for their return trip to the United States in advance by reviewing (and having with them) all pertinent documents to their visa petition.  They should also have with them (on their person or in carry-on baggage) evidence to support the assertions made in the petition  (i.e. current paystubs, a letter from their employer which reflects they are, indeed, employed at the location listed in the petition). Similarly, the employer’s representative (the signatory on the forms) should be notified of the travel plans and thus prepared for telephone inquiries from CBP officers at ports of entry to confirm the assertions made in any nonimmigrant petition and supporting documentation.  Finally, employers should note that the government is entitiled to review information posted in any public media (such as websites and other media) for consistency with the content of the nonimmigrant petition. Thus, keeping such public information accurate and current is essential.

TPS is a temporary designation for qualified nationals of a foreign country who are already in the United States in circumstances where such nationals are unable to safely return to their country of origin due to ongoing armed conflict, an environmental disaster, or other extraordinary or temporary conditions. TPS grants foreign nationals work authorization and protection against deportation for the duration of the protected status. It does not lead to permanent resident status or confer any additional immigration benefit.

There will be a six (6) month window for which you may file an application seeking TPS benefits. As is typical with TPS designations, there is a date by which applicants must have continuously resided in the United States — for Haitian Nationals applying for TPS, applicants must have continuously resided in the U.S. since January 12, 2010.  The date by which applicants must have been continuously physically present will be published in the Federal Register. 

TPS benefits are initially granted for a period of eighteen (18) months.   The typical statutory bars to TPS benefits will apply — a Haitian national will not be eligible for TPS if s/he:

1. Has been convicted of any felony or two or more misdemeanors committed in the United States;
2. Is a persecutor, terrorist or otherwise subject to one of the bars to asylum; or
3. Is subject to one of several criminal-related grounds of inadmissibility for which a waiver is not available.

For more specific information relating to eligibility for TPS benefits, see INA section 244(c)(2) and 8 CFR §§ 244.1 - 244.4

Last night’s 60 Minutes report provided a stark picture of the unparralleled devastation and challenges faced by Haiti in the aftermath of last week’s 7.0-magnitude earthquake.  Our thoughts and prayers are with the people of Haiti. 

If you haven’t already done so, we would strongly encourage you to make a donation to the relief efforts in Haiti. Here are direct links to some of the organizations currently accepting donations: American Red Cross,  UNICEF (1-800-4UNICEF), Yele Haiti, Care, Clinton Bush Haiti Fund, Direct Relief,  Partners in Health, World Food Program, Mercy Corps (1-888-256-1900), Save the Children, Doctors Without Borders, The International Rescue Committee, Feed the Children, and Habitat for Humanity.

USCIS has further advised that it will apply a computer-generated random selection process (“lottery”) to all petitions that are subject to the cap and received on December 21, 2009.  USCIS will use this lottery system to select the number of petitions remaining in the cap.  Those not selected in the lottery will be rejected and returned to the petitioner with the appropriate filing fees.

Based on USCIS’ recent announcement, we have advised our clients to calendar March 1, 2010 as an important date to make sure they have apprised us of all potential H-1B candidates who will be subject to next year’s cap so that we may timely prepare and file those H-1B petitions on the first day of eligibility for the FY 2011 cap, which is April 1, 2010, with an effective date of October 1, 2010.

It is important to note that H-1B visa extensions of stay and H-1B visa transfers (from one eligible U.S. employer to another) are not subject to the annual cap and, therefore, will continue to be regularly accepted by USCIS. Likewise, H-1B nonimmigrants who work at (but not necessarily for) eligible colleges, universities and other qualifying non-profit research facilities may also be excluded from the numerical H-1B visa cap.

If you have any questions about the H-1B visa cap, or would like to discuss appropriate alternatives to the H-1B category, please do not hesitate to contact us.

Clearly, we are in the final days of availability of H-1B visas under the FY 2010 cap.   While it may already be too late at this juncture, we strongly urge you to contact us immediately if you would like to sponsor a prospective employee for an H-1B visa under the cap.  Otherwise, you will have no choice but to wait until April 1, 2010 to sponsor cap-subject H-1B workers, with a start date of October 1, 2010.

In a rapid (almost daily) succession of press releases, the USCIS has once again updated its announcement about the number of H-1B visa petitions it has received and counted towards the H-1B visa cap for FY 2010.  Today’s press release provides that as of December 11, the USCIS had received approximately 62,900 H-1B petitions counting toward the Congressionally-mandated cap of 65,000 petitions.  This announcement marks a  somewhat alarming spike of approximately 1,400 petitions filed and accepted by the Service since it’s announcement on December 9.

Since we are in the final days of availability of H-1B visas under the FY 2010 cap, we would highly recommend that you act promptly if you are contemplating the sponsorship of a foreign national for an H-1B visa under the cap.  Time is of the essence!  At a rate of approximately 500 H-1B visas per day (with just over 2,000 H-1Bs visas remaining), it is likely that the USCIS will announce later this week or early next week that it has received a sufficient number of H-1B visas to close the 2010 H-1B visa cap.

Since the available H-1B visas under the cap are quickly disappearing, we would highly recommend that you act promptly if you are contemplating the sponsorship of a foreign national for an H-1B visa under the cap. Over the past several weeks, the cap has been filled at an increasing rate of nearly 2,000 petitions per week. At this rate, the FY 2010 H-1B cap could be reached at any moment if this increased demand continues, so time is of the essence!

As of November 27, USCIS reported it received 58,900 H-1B petitions counting toward the Congressionally-mandated cap.  For some of us, that 58,900 number not only came as a bit of a surprise, but it set off a warning signal – that the H-1B cap is rapidly nearing exhaustion.  Why a warning signal you ask?  Although the H-1B cap is set at 65,000 visas per year (not including the 20,000 visas available under the advanced degree cap exemption), USCIS has, for several years, estimated the demand for Chile/Singapore H-1B1 visas, and has set aside that estimated number by reducing the general H-1B cap to approximately 58,200 visas.  With that carve out in mind, and some simple arithmetic, it would appear then that the cap is oversubscribed, or is it?  

Apparently not, at least not as of today.  Following the November 27 announcement, without revealing the exact number of H-1B1 petitions that have been received under the Chile/Singapore provisions (nor providing an estimate of the number of H-1B visas remaining), USCIS recently indicated that demand for H-1B1 visas under such provisions has been very low this year. Therefore, those set aside (approximately 6,800 visas) should be returned to the general H-1B “pool”, with USCIS continuing to accept H-1B petitions.  Thus, though the Chile/Singapore carve out reduces initially the H-1B cap from 65,000 to 58,200, in reality, some “x” number of thousand unused Chile/Singapore visas have been added back into the general count, bringing the number of H-1B visas available under the cap above 58,200.

In sum, according to the latest statements by USCIS, there are still visas available under the H-1B cap.  Notwithstanding, because of the recent surge in petitions being filed (2,000 were filed in the week leading up to the Thanksgiving holiday alone) we have urged our clients to act immediately if they are contemplating the sponsorship of a foreign national for an H-1B visa under the cap.  Indeed, in just a matter of a few weeks (or maybe days), employers will have no choice but to wait until April 1, 2010 to sponsor cap-subject H-1B workers, with a start date of October 1, 2010.

Background

The O visa program is available to a person who can demonstrate an extraordinary ability in the sciences, arts, education, business or athletics, or those in the motion picture and television industry. O-1 and O-2 petitions may be filed by a U.S. employer, a U.S. agent, or a foreign employer through a U.S. agent.

The P-1 visa program is available to a person who performs as an athlete, individually or as a part of a team, that is “internationally recognized” [attained a high level of achievement], or a person who performs with (or an essential part of) an entertainment group that has been recognized internationally.

The P-2 visa program is available to a person who performs as an artist or entertainer, individually or as a part of a group, who seeks to enter the U.S. as a part of a reciprocal exchange program between an organization in the U.S. and a foreign organization.

The P-3 visa program is available to a person who performs as an artist, entertainer, teacher, trainer, coach, or interpreter, individually or as part of a group, in a musical, theatrical, or artistic performance or presentation which is culturally unique.

P petitions may be filed by a U.S. employer, a U.S. agent, a U.S. sponsoring organization, or a foreign employer through a U.S. agent.

Both the O and P regulations provide that if the O or P beneficiary (employee) plans to work concurrently for more than one employer within the same specified time period, each employer must file a separate petition with the Service Center which has jurisdiction over the area where the foreign national will perform services. See 8 CFR 214.2(o)(2)(iv)(B); 8 CFR 214.2(p)(2)(iv)(B). A way to avoid filing multiple petitions, when appropriate, is for an established agent (i.e. sports agent, fight promoter, art director) serve as the actual employer of the beneficiary.

The Neufeld Memo’s Guidance For “O” and “P” Petitions Filed By A U.S. Agent

A petition filed by an “established agent” is subject to certain conditions. A petition involving multiple employers may be filed by a person or company in business as an agent that acts as the representative of both the employers and the beneficiary, so long as the following evidence is supplied:

(a) The supporting documentation includes a complete itinerary of the event or events;
(b) The itinerary specifies the dates of each service or engagement, the names and addresses of the actual employers, and the names and addresses of the establishments, venues, or locations where the services will be performed;
(c) The contract between the employers and the beneficiary is submitted; and
(d) The agent explains the terms and conditions of the employment and provides any required documentation.
 
See 8 CFR 214.2(o)(2)(iv)(E)(2) and (p)(2)(iv)(E)(2).

In addition to the foregoing evidence, for an agent to be considered the actual employer of the beneficiary, the agent must also demonstrate that he/she is “in business as an agent.” While the regulations do not specify the appropriate evidence to establish that one is “in business as an agent,” the Neufeld Memo instructs adjudicators to “focus on whether the petitioner can establish that it is authorized to act as an agent for the other employers for the purposes of filing the petition.”

This guidance should serve to end some of the irregularities in adjudications of O and P petitions filed by U.S. agents. The Neufeld Memo instructs adjudicators that the petitioner is not required to demonstrate that he/she normally serves as an agent outside the context of the petition. Therefore, one need only establish that petitioner is duly authorized to act in the employers’ place for the limited purpose of filing the O or P petition with USCIS to demonstrate that one is “in business as an agent”.

Conservatively, however, we would still recommend supplementing the petition with other forms of probative evidence to avoid an RFE, such as (i) a statement confirming the relevant information [itinerary, names and addresses of the series of employers] signed by the petitioner and the series of employers; (ii) other types of agency representation contracts; (iii) agency fee arrangements; and/or (iv) statements from the other employers regarding the nature of petitioner’s representation of the employers and beneficiary.

The Definition of “U.S. Sponsoring Organization” as it Applies to the P Visa Classification

A “P” petition filed by a U.S. sponsoring organization is also subject to specific guidelines. A sponsoring organization is defined as “… an established organization in the U.S. which will not directly employ a P-1, P-2 or P-3 alien but will assume responsibility for the accuracy of the terms and conditions specified in the petition.”

A sponsoring organization therefore can qualify as a petitioner if it can provide evidence, such as a written contract between it and the beneficiary that, although it will not directly employ the beneficiary, it will guarantee the terms and conditions of the employment of the beneficiary.

Since USCIS has received 20,000 petitions qualifying for the advanced degree cap exemption, any H1-B petitions filed on behalf of a foreign national with an advanced degree will now count toward the general H1-B cap of 65,000. 

As such, USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn.

Under 8 CFR 214.2(o)(2)(i) and 8 CFR 214.2(p)(2)(i), O and P petitions may only be filed by a U.S. employer, a U.S. agent, or a foreign employer through a U.S agent.

Both the O and P regulations provide that if the beneficiary employee will work concurrently for more than one employer within the same time period, each employer must file a separate petition with the Service Center that has jurisdiction over the area where the foreign national will perform services, unless an “established agent” files the petition.  See 8 CFR 214.2(o)(2)(iv)(B); 8 CFR 214.2(p)(2)(iv)(B).

A petition filed by an “established agent” is subject to several conditions under the law.  A petition involving multiple employers may be filed by a person or company in business as an agent as the representative of both the employers and the beneficiary, if the following evidence is supplied:

(a) The supporting documentation includes a complete itinerary of the event or events;

(b) The itinerary specifies the dates of each service or engagement, the names and addresses of the actual employers, and the names and addresses of the establishments, venues, or locations where the services will be performed;

(c) The contract between the employers and the beneficiary is submitted; and

(d) The agent explains the terms and conditions of the employment and provides any required documentation.

See 8 CFR 214.2(o)(2)(iv)(E)(2) and (p)(2)(iv)(E)(2).  In addition, an agent who is also the beneficiary’s employer may file a petition, but the agent must specify the wage offered and the other terms and conditions of employment as described in the contractual agreement between the agent/employer and the beneficiary employee.  Therefore, while the regulations permit an agent to file a petition on behalf of multiple employers (including the agent/employer itself), the regulations require that the agent be “in business” as such an agent.

An employer that files a petition on behalf of other employers under the guise of being such employers’ “agent” does not meet this condition.  For example, if Employer A files a petition for a beneficiary it will be sponsoring, and submits an itinerary that includes performances for the beneficiary with other employers, at different times, and at different venues, USCIS generally would only approve the petition for Employer A and deny the petition with respect to the other employers.

Such a petition may be approved with respect to all employers only if Employer A can establish to the satisfaction of USCIS that it is “in business as an agent,” and that the other employers are its clients.  This may be accomplished by agent-Employer A submitting all of the required evidence listed above, as well as evidence of the agency relationship, such as a copy of its contract with the other employers. 

Should you have any further questions regarding the O and P visa classifications, please do not hesitate to contact us.