The fiscal year cap (numerical limitation on H-1B petitions) for FY 2011 is 65,000.  Additionally, the first 20,000 H-1B petitions filed on behalf of individuals who have earned a U.S. master’s degree or higher are exempt from the H-1B cap.

Petitions for new H-1B employment are exempt from the annual cap if the beneficiaries will work at institutions of higher education or related or affiliated nonprofit entities, nonprofit research organizations or governmental research organizations.  Petitions filed on behalf of beneficiaries who will work only in Guam or the Commonwealth of the Northern Marianas Islands are exempt from the cap until Dec. 31, 2014.  Employers may continue to file petitions for these cap-exempt H-1B categories seeking work dates starting in FY 2010 or 2011.

Petitions filed on behalf of current H-1B workers who have been counted previously against the cap also do not count towards the congressionally mandated H-1B cap.  Accordingly, USCIS will continue to process petitions filed to:

• extend the amount of time a current H-1B worker may remain in the United States;
• change the terms of employment for current H-1B workers;
• allow current H-1B workers to change employers; or
• allow current H-1B workers to work concurrently in a second H-1B position.

U.S. businesses use the H-1B program to employ foreign workers in specialty occupations that require theoretical or technical expertise in specialized fields including, but not limited to, scientists, teachers, architects, engineers, or computer programmers.

Stay tuned to www.bashyamspiro.com for additional information.

Inspections are one of the most powerful tools the federal government has to enforce employment and immigration laws. This new initiative is part of ICE’s increased focus on holding employers accountable for their hiring practices and efforts to ensure a legal workforce.

Employers are required to complete and retain a Form I-9 for each individual they hire for employment in the United States. This form requires employers to review and record the individual’s identity document(s) and determine whether the document(s) reasonably appear to be genuine and related to the individual.

Employers should make sure to complete an I-9 for each employee within 3 days of the date of hire.  Employers should also review current I-9 records to ensure compliance with employment verification regulations. If an employer is not sure whether they are in compliance with I-9 regulations, they should contact a qualified immigration attorney.

We will provide additional information at www.bashyamspiro.com as it becomes available.

If USCIS revises any of these policies, we will make sure to post it at www.bashyamspiro.com.

Space is limited.

Reserve your Webinar seat now at:

https://www2.gotomeeting.com/register/792025747

In January 2010, the USCIS released a memo defining the employer-employee relationship for the purposes of filing an H-1B application.  This memo will have a significant impact on what employers, and especially information technology consulting companies, will have to prove in the H-1B application process.

We will be hosting an informative webinar for H-1B employers regarding the recently issued USCIS guidelines about the employer-employee relationship.  This webinar is a must for employers who hire professional workers under the H-1B program.

This FREE webinar will be held on March 31, 2010 at Noon EST and is open to the public.

Sign up now!

Title: What Do Changes in USCIS H-1B Standards Mean for Employers and Employees

Date: Wednesday, March 31, 2010

Time: 12:00 pm – 1 pm EDT

After registering you will receive a confirmation email containing information about joining the webinar.

We’re a big hit on the social circuit….

You think YOU hate going to parties and other social events?  Maybe  you’re shy, or what your spouse lovingly calls ‘antisocial’.  Maybe you get bored, or just don’t know what to talk about.   Discussions on the weather can only take you so far, so most people resort to talking about their careers at things like this.  But what if you recently lost your job? Or you do some obscure research that no one understands?  Maybe you’re a dermatologist and when you tell strangers they ask you to look at the rash on the bottom of their feet.   When I had young children, and wasn’t employed outside the home, I would dread the question “So what do you do”?  I would panic and stammer something like “Uh. Nothing.”, when that’s the LAST thing that could describe what I did all day.

All that pales in comparison to my experiences these last couple of years.  My husband works for a health insurance company. (Was that a shudder that just went through you?)  Anyway, we’ve started keeping it secret from new acquaintances.  It’s just no fun getting that hateful glare as they digest the fact that he makes a living with the ‘evil empire’ that single-handedly destroyed their friend’s aunt’s life savings, or refused to pay for their sister’s neighbor’s liposuction.  I think people would take it better if he was a used car salesman (apologies to all you used car salesmen). 

Those that try to remain polite in the face of such circumstances will inevitably turn to me to change the topic of conversation.  They try to disguise their contempt as they struggle to maintain their composure and not attack my sweet hubby in public.  “Me”? I say. “Oh, I work in immigration”!  There’s an audible gasp, and then silence. Their face turns white.   And then they let me have it. 

No one has mild feelings on the subject of immigration.  I’ve heard it all. Every misleading idea, every misunderstanding, every out-and-out lie that gets spread as if it’s the gospel truth.  So I have taken this on as my personal life’s mission:  to educate the average American on 1] why our country NEEDS immigrants; 2] why our country should WANT immigrants; and 3] how the US is inestimably richer for our melting-pot culture.  I back them in to a corner (figuratively if not literally) and explain how immigration law is the only federal law that is completely made up. It’s been cobbled together from politicians good and bad over many generations, and currently makes as much sense as the continued popularity of America Idol.  I tell them heartbreaking, personal stories of clients I’ve worked with (no names of course!), which show the truly ugly picture of our broken immigration system. They’ll look sheepish and say something like “Oh that’s different, I’m not talking about THAT kind of immigrant”. I smile sadly, and say as gently as I can, “But there’s more of this story than you can possibly imagine”.

Well, I may not change the world, or even my little corner of it, but my husband and I are getting very good at publicly defending our chosen fields!  Both are at the forefront of the public’s minds right now, because they both desperately need to be fixed.  Until then, every hostess in the Triangle is scratching the Prathers off their guest lists…..

We will provide updates on www.bashyamspiro.com as they become available.

The StartUp Visa Act of 2010 would amend immigration law to create a new EB-6 category for immigrant entrepreneurs, drawing from existing visas under the EB-5 category, which permits foreign nationals who invest at least $1 million into the U.S., and thereby create ten jobs, to obtain a green card.  After proving that he or she has secured initial investment capital and if, after two years, the immigrant entrepreneur can show that he or she has generated at least five full-time jobs in the United States, attracted $1 million in additional investment capital or achieved $1 million in revenue, then he or she would receive permanent legal resident status.

We will keep you updated on our web site if and when the StartUp Visa Act moves through the legislative process.  To read the entire press release from Senator Lugar’s office, please click here.

In a day and age where selfless philanthropy is rare, I am moved by my employer, Bashyam Spiro LLP – Immigration Law Group, for moving so quickly to support the Haiti earthquake relief efforts. Soon after the disaster in Haiti, we hit the ground running to respond to this humanitarian crisis by providing important guidance on obtaining Temporary Protected Status for Haitians through our Immigration Minute web video segment, we also shared this information via our e-newsletter and our colleague, Pam Prather, led the charge in making hygiene kits for the United Methodist Committee On Relief (UMCOR).

Today’s technology has greatly changed the way people give in a crisis. Through mediums like television, mobile phones and the Internet millions have been raised for Haiti, in only a matter of seconds, by texting and tweeting, on social networking sites and by way of personal Web pages.

I know of a number of other law firms and businesses who have also pledged their support to this worthy cause and I salute them. When faced with a disaster of this magnitude, every little bit-large or small-counts.

I sell this type of social action year-round by explaining what volunteering can do for the soul beyond what it can do for society. In a world that can sometimes seem so shallow this kind of showing of philanthropy puts everything into perspective.

As a long time community volunteer and advocate, I am proud to be a part of a group of colleagues who share my passion for helping others.

Our involvement doesn’t stop in Haiti,  several years ago the firm began to help with the significant influx of Montagnards from Vietnam, by working with The Montagnard Human Rights Organization, a non-profit that provides immigration services to refugees in North Carolina. They have since expanded to serving refugees from many different nations.  We’ve had a close and mutually beneficial relationship for several years now, with our attorneys and paralegals logging many pro bono hours on their behalf, as well as on behalf of many of their individual clients.

Members of the law firm have also formed a charity to help people in need around the world.  Called Friends Unite, the organization’s 501(c)(3) charitable mission is to provide funding and support for the advancement of education, health services and other basic necessities, such as food, water and shelter, which are often compromised by poverty.

Our Managing Partner, Murali Bashyam serves on the Board of Directors of the Tammy Lynn Center for Developmental Disabilities.  The Foundation operates the Tammy Lynn Center for Developmental Disabilities, which offers educational, residential and family support services to nearly 400 children and adults with special needs

 We have created this Philanthropy link on our web site to keep you informed on what charities we are currently working with and support.  If you wish to get involved with us in any of these charitable organizations, please let us know.  We would love to have your help and support.

So what does ‘adjust status’ really mean? Adjusting status is a method by which an intending immigrant can get a green card while remaining in the United States.  Form I-485 Application to Adjust Status (“I-485”) is the last step of the U.S. employment-based permanent residency process , and it can be filed if you have an approved I-140, a current priority date, and are legally present in the United States.  Once the I-485 is approved, you are a U.S. permanent resident, and the USCIS mails you a green card.

But not everyone is eligible to file an I-485 application, nor can everyone be approved for one.   One legal bar, or impediment, to this step in the process is having violated your status.   There is one exemption to that bar, and it is a little known provision known as INA Section 245(K).

Enacted in 1997, Section 245(K) allows foreign nationals who have violated their status by less than an aggregate of 180 days following admission, and who are physically present in the United States, to file for adjustment of status (if you are otherwise eligible to do so).   Some examples of status violations, which are addressed in Section 245(K), refer to persons who have:

• Failed to maintain, continuously, a lawful status;
• Engaged in unlawful employment; and/or
• Otherwise violated the terms and conditions of his/her admission.

Section 245(K) applies only to aliens in one of the employment-based preference categories.  It does not apply to family-based preference immigrants, diversity visa adjustment applicants, asylum or refugee adjustment applicants or adjustment applicants under the employment-based fifth preference (EB-5) investment category.  Only aliens in the following preference categories are eligible to take advantage of Section 245(K) if you otherwise meet the conditions mentioned above:

• Employment-Based First Preference (EB-1) – All priority workers.
• Employment-Based Second Preference (EB-2) – Professionals with advanced degrees or aliens of extraordinary ability (National Interest Waiver).
• Employment-Based Third Preference (EB-3) – Skilled workers, professionals or other workers.
• Employment-Based Fourth Preference (EB-4) – Religious workers (only).

The section also applies to spouses and children of eligible aliens.

The following is a simple example that shows how Section 245(K) can help you.

Example:

You are a Canadian national in H-1B status, and your family has H4 visas.  Your employer is sponsoring you for permanent residency, and you just found out that your I-140 has been approved.  Your priority date is current, so your immigration attorney says you can now file I-485 adjustment applications for yourself, your wife, and your two children.  However, your wife was employed for 3 months when she first arrived in the U.S., because she didn’t know she was not allowed to work. She has therefore violated her H4 non-immigrant status.  You are very concerned that she is ineligible to adjust status to permanent resident, because of her unauthorized employment.  Your knowledgeable immigration attorney assures you it’s going to be okay – your wife is protected under Section 245(K) because she has violated her status by less than 180 days.  You breathe a sigh of relief and file those I-485s!

Section 245(K) is an important provision to keep in mind for any employment-based adjustment application who has violated their status in this manner.   It’s frightening and stressful once you realize you or a family member has violated their status, but act quickly, consult your immigration attorney, and make sure the violation is for less than 180 days.   You will still be eligible to file your I-485 Adjustment of Status application, and realize your dreams of becoming a Permanent Resident of the United States.

To access our YouTube page and view our immigration videos, please click here or click the YouTube icon on our home page.