An Immigration Roundup

by Jose Latour

Following are select highlights of immigration events in March 2004.

L Visa Standards Addressed by DOS In Light of H-1B Cap
Following last week's announcement that the U.S. Citizenship and Immigration Services (CIS) has received enough new H-1B visa applications to meet the cap for the 2004 Fiscal Year (October 1, 2003 - September 30, 2004), the Department of State (DOS) has issued a cable to embassies and consular posts regarding the L visa standards and the need to remain aware of potential visa fraud.

The document begins with a speculation that "applicants may increasingly turn to other visa categories, particularly L-1, as a way to evade the H-1B limitations..." and discusses concern in Congress over abuse of the L visa category.

"There is no legal reason why aliens eligible for H-1B status cannot legitimately seek out other types of visas, including L. On the other hand, the inability of aliens to obtain H-1B visas can lead to increased fraud and abuse of the L and other categories, and posts need to be sensitive to this possibility." [Emphasis added]

The cable describes and defines the requirements of the L visas with two concerns for potential abuse of the L visa category: "job shops" vs. "employer-employee relationship" and "specialized knowledge." Consuls are advised in the cable to seek an advisory opinion if uncertain.

Singapore Free Trade Agreement Visa Information

The United States Embassy in Singapore has recently posted information regarding the visa categories made available to citizens of Singapore by the recently enacted (September, 2003) Free Trade Agreement (FTA) between the U.S. and Singapore. The FTA with Singapore allows for a limit of 5,400 H-1B visas for Singaporean professionals. These reserved visa numbers do count toward the H-1B cap.

The three new nonimmigrant visa categories available to citizens of Singapore are the:

• E-1 Treaty Trader visa,
• E-2 Treaty Investor visa, and
• H-1B1 USSFTA Professional Visa, similar in requirements to the H-1B visa

Here are some differences of the USSFTA Professional Visa from the traditional H-1B visa:

• "Applicants must demonstrate that they intend to return to Singapore when their temporary job is finished. (Singaporeans are still eligible to apply for traditional H-1B visas.)

• Unlike a traditional H1-B visa, submission by the employer of Form I-129, Petition for Nonimmigrant Worker, to the Bureau of Citizenship and Immigration Services (Department of Homeland Security) is not required, and the applicant does not need to obtain a Notice of Approval, Form I-797, before submitting their visa application.

• Extensions and renewals are allowed, but adjustment of status to another non-immigrant category or to legal permanent residency is not permitted."

• Additional required documents for H-1B1 visa applications are: "the standard DS-156, DS-157 (for males aged 16-45), a photo and a valid Singapore passport. They are subject to the US$100 (S$180) application fee."

Singaporean citizens are still able to apply for traditional H-1B visas and all of the categories for which Singaporeans were previously eligible, as well as travel through Singapore's membership in the Visa Waiver Program.

More detailed information about the new visa categories, as well as links to more information on qualification requirements, can be found on the website for the U.S. Embassy in Singapore.

"Crew List Visas" to be Eliminated

On March 18, 2004, an "Interim Final Rule" was published in the Federal Register by the Department of State, currently open for comments until May 17, 2004, to eliminate "crew list visas" which would be effective on June 16, 2004.

Pursuant to Section 101(a)(15)(D) of the Immigration and Nationality Act (INA), "aliens serving in good faith as crewmen on board a vessel (other than a fishing vessel having its home port or an operating base in the United States, unless temporarily landing in Guam) or aircraft" are exempted from being "deemed immigrants."

Section 221(f) "permits an alien to enter...on the basis of a crew manifest that has been visaed by a consular officer." This section does not specify that the entire crew manifest be admitted, and authorizes a consular officer to "deny admission to any individual alien..."

Previously, based upon these sections, there was a "Crew List Visa." However, citing security reasons, the State Department will now eliminate the "Crew List Visa" with the following new rule. Instead, "each crewmember...will be required to complete the nonimmigrant visa application forms, submit a valid passport and undergo an interview and background checks." The Federal Register document can be found at http://www.gpoaccess.gov/fr/index.html, and search for "22 CFR Part 41."

Another Cap Reached and Still Early in the Fiscal Year

On March 10, 2004, United States Citizenship and Immigration Services (USCIS) issued a press release announcing that the H-2B cap of 66,000 new workers has been reached for FY2004 [October 1, 2003 - September 30, 2004].

We've heard a lot about the H-1B, but what is the H-2B visa? Glad you asked!

The H-2B is for nonagricultural skilled or unskilled workers needed to meet temporary or seasonal needs in positions for which qualified U.S. workers are not available. (There is a separate visa for temporary agricultural workers, the H-2A, which has no annual cap.) The H-2B visa category has several stringent requirements:

• The employer's need for the services the H-2B worker will provide is only temporary ("seasonal, intermittent, peak load, or one-time").

• The job, in particular, will be one-time, seasonal, peak load, or intermittent.

• The job will be for less than one year.

• There must be no qualified and willing U.S. workers available for the job (the Department of Labor must determine this in a labor certification process).

Some of these temporary jobs approved in past years include: bricklayers, amusement park workers, cable splicers, housekeepers, construction workers, deckhands, meat processors, farm workers, forest workers, fish cleaners, kitchen helpers, lawn service laborers, musicians, produce packers, stable attendants, and others. Accordingly, some industries who use these visas are the construction, landscaping, restaurant, and service industries.

The announcement that the cap has been reached states that:

• "USCIS will process all petitions received by the end of business on March 9, 2004.

• USCIS will return all petitions subject to the annual cap (along with the filing fee and, if applicable, the premium processing fee) that are filed after the end of business on March 9, 2004.

• Petitioners may re-submit or file new petitions when they have received labor certification approval for work to start on or after October 1, 2004."

Similar to the H-1B, continue to process requests regarding these visas that do not count toward the annual cap, which include petitions to:

• Extend the stay of a current H-2B worker in the United States.

• Change the terms of employment for current H-2B workers.

• Allow current H-2B workers to change or add employers.

About The Author

Jose Latour is the founding partner of Latour & Lleras, P.A., a Gainesville, Florida based business immigration practice representing corporations nationwide in visa management, compliance, and HR training. The above represents Mr. Latour's Editorial opinion. The A/V rated firm and its web site, www.usvisanews.com, were named a winner of the 2002 Inc. Magazine Web Award, receiving recognition along with 14 other companies as the best Web companies in America. In 1999, the firm was named "One of America’s Top Ten Internet/Virtual Companies" in the Inc. Magazine and Cisco Systems "Growing with Technology Awards." The site is one of the most visited and widely read resource on the Internet on U.S. immigration law, attracting subscribers from all over the world, the media and from within the U.S. government. Mr. Latour served as a U.S. Diplomatic and Consular Officer in Mexico and Africa before entering private practice and today divides his time between his law practice, writing, flying, and his music.

                        

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