October 2, 2009 - With the severe backlogs in the employment based (EB) preferences for Indian and Chinese nationals, alien professionals holding H-1B or L-1 visas are experiencing difficulty obtaining permanent residency and, in some instances, renewing the H or L visas. This has created an adverse impact on the ability of such H visa holders as well as their dependent H-4 and L-2 holders to remain in the United States until additional numbers become available.

We are republishing a USCIS December 6, 2006 memorandum that provides guidance on determining periods of admission for aliens previously in H-4 or L-2 status; aliens applying for additional periods of admission beyond the H-1B six year maximum; and aliens who have not exhausted the six-year maximum but who have been absent from the United States for over one year.

The memorandum provides guidance to USCIS adjudicating officers on how to determine periods of admission for aliens implicated in the 6 year maximum period of admissibility. The guidelines are as follows:

• Clarifies that the time spent as an H-4 and L-2 dependent do not count against the maximum allowable period os stay available to principals in H-1B and L-1 status;
• Clarifies that H-1B aliens, who qualify under American Competitiveness in the Twenty-First Century Act of 2000 (AC21) need not be in the H-1B status when requesting an additional period of stay when requesting an additional period of stay beyond the six-year maximum;
• Clarifies how to determine the maximum period of admission in H-1B status for a beneficiary who was in the United States in Valid H-1B status for less than the six-year maximum period of admission but has since been outside the United States for more than one year.

[Review the entire memorandum regarding H-4 and L-2 Stays]

The USCIS’ Office of Fraud Detection and National Security (FDNS) has instituted a program aimed at collecting information and auditing employers who sponsor H-1B visa applications for its employees. The FDNS is charged with the mission to detect, deter and combat immigration benefit fraud and to ensure that benefits are not granted to persons who threaten national security.

H-1B FDNS Site Visit Overview: These H-1B site visits by USCIS agents are mostly unannounced with one or more agents arriving at an employer’s location during a typical workday. The visits typically occur at the employer’s principal place of business or the location where the H-1B employee is physically located. They last less than one hour and continue whether or not an employer’s or the beneficiary’s attorney is present. While agents typically do not reschedule the visit to accommodate an attorney’s presence, they permit and attorney to be present by telephone, if requested.

BALCA September 1, 2009 - The Board of Alien Labor Certification Appeals (BALCA) has issued a ruling regarding the appropriate wage rate to be posted on job notices for PERM Labor Certification Application. This ruling clarifies that the postings must be for the actual wage where such is higher than the prevailing wage. In other words, the job notice must show the actual wage paid by the position instead of the prevailing wage where the prevailing wage is lower.

PERM Labor certification application will not be certified where the postings contain the lower prevailing wage determination instead of the higher actual wage for the position. [Read The PERM BALCA Decision]

[Read The PERM BALCA Decision]