Question of the Month |
Q: If I decide to change jobs after the completion of my 3 yr waiver, and file for a H-1B change of employer, does my new petition need to be approved before I start work at the new employer or does it just need to be filed with the USCIS?
A: It just needs to be filed.
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Upcoming Events |
"Hablemos el Mismo Idioma"
Seminar in Spanish for Doctors
Due to unexpected technical difficulties at last event, we will discuss First Topic again on:
Thursday, March 25, 2010
First Topic: 10 Errores Criticos durante el proceso migratorio
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Greetings!
Here is our March newsletter with immigration updates affecting physicians and medical facilities. Read on to learn more about:
#3 of the 12 Critical Immigration Mistakes Physicians Must Avoid
Facts and Figures about the H-1B Visa Race Starting April 1
New Rules Affecting H-1B Employers and Employees
Priority Date Update for Green Card Applicants
Job Opportunities for Physicians
Sincerely,
Angela M. Lopez
Badmus Law Firm |
12 Critical Immigration Mistakes Physicians Must Avoid - Part 3 |
After 15 years of helping physicians practice in the United States, Badmus Law Firm has observed numerous immigration missteps that could have been avoided with the right information and knowledge. This year, each issue of our newsletter will discuss a critical immigration mistake and how to avoid it.
MISTAKE # 3 - Don't work fewer than 40 hours per week while completing a J-1 Waiver or while waiting for green card based on NIW petition.
Some employers will put their physician employees that are working pursuant to a J-1 waiver in the authorized underserved location less than 40 hours per week. Likewise, a physician working toward permanent residence based on a national interest waiver may work less than 40 hours per week in the designated underserved location. Remember, you are the one that will suffer if the immigration technicalities are not met. Thus, you must ensure that you are working in the designated location(s) at least 40 hours per week for the full three years for the J-1 waiver and five years for the national interest waiver. |
Facts and Figures about the H-1B Visa Race for Fiscal Year 2011 Beginning April 1, 2010
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WASHINGTON - U.S. Citizenship and Immigration Services (USCIS) announced recently that it will begin accepting H-1B petitions subject to the fiscal year (FY) 2011 cap on April 1, 2010. Cases will be considered accepted on the date that USCIS takes possession of a properly filed petition with the correct fee; not the date that the petition is postmarked.
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.
USCIS will monitor the number of petitions received and will notify the public of the date on which USCIS received the necessary number of petitions to meet the H-1B cap. If needed, USCIS will randomly select the number of petitions required to reach the numerical limit from the petitions received on the final receipt date. USCIS will reject cap-subject petitions that are not selected, as well as those received after the final receipt date.
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.
H-1B petitioners should follow all statutory and regulatory requirements as they prepare petitions to avoid delays in processing and possible requests for evidence. USCIS has developed detailed information, including a processing worksheet, to assist in the completion and submission of a FY2011 H-1B petition, which can be found on our website.
If you have questions about how to win an H-1B visa, you are invited to call and schedule a complimentary telephone consultation with one of our attorneys to help you execute a winning strategy. Call 469-916-7900 or email [email protected]. |
New Rules for H-1B Petitions Involving Third Party Worksites |
A requirement to the filing of H-1B petitions is that the Employer "has an employer-employee relationship with respect to the employees under this part, as indicated by the fact that it may hire, pay, fire, supervise, or otherwise control the work of any such employee" 8 C.F.R. 214.2(h)(4)(ii).
In the past, when an employer provided documentation of the ability to hire, pay and fire an employee, it was sufficient to demonstrate the required Employer-Employee relationship under a totality of the circumstances test. On January 8, 2010 the USCIS issued a Memorandum entitled "Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements." In this Memorandum, the USCIS stresses the importance of the Petitioner's (Employer) control over the Beneficiary (Employee). According to the Memorandum, the following are the factors to be considered when an employee will be work at a location other than the employer's facility:
Does the petitioner supervise the beneficiary and is such supervision on-site or off-site? If the supervision is off-site, how does the petitioner maintain such supervision? I.e. weekly calls, reporting back to main office routinely, or site visits by the petitioner?
Does the petitioner have the right to control the work of the beneficiary on a day-to-day basis if such control is required?
Does the petitioner provide the necessary tools or instrumentalities for the beneficiary to perform the duties of employment?
Does the petitioner hire, pay, and have the ability to fire the beneficiary?
Does the petitioner evaluate the work-product of the beneficiary? I.e. progress/performance reviews?
Does the petitioner claim the beneficiary for tax purposes?
Does the petitioner provide the beneficiary any type of employee benefits?
Does the beneficiary use proprietary information of the petitioner in order to perform the duties of employment?
Does the beneficiary produce an end-product directly linked to the petitioner's line of business
Does the petitioner have the ability to control the manner and means in which the work product of the beneficiary is accomplished? Donald Neufeld's, Associate Director of the USCIS, Memorandum continues to state that: "The common law is flexible about how these factors are to be weighed. In assessing the requisite degree of control, the officer should be mindful of the nature of the petitioner's business and the type of work of the beneficiary. The petitioner must also be able to establish that the right to control the beneficiary's work will continue to exist throughout the duration of the beneficiary's employment term with the petitioner." Until further action can be taken on this position, we recommend that our clients be prepared to present documentation of the Employer-Employee relationship. |
Priority Date Update |
The Department of State has just released the April 2010 Visa Bulletin Bulletin
The relevant dates are:
EB1 - all current
EB2 - all current, except China (22 AUG 05) and India (1 FEB 05) <-- Same as last month
EB3 - all 01 FEB 03, except India (08 SEP 01) and Mexico (01 JUL 02) <-- Same as last month
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JOB OPPORTUNITIES FOR PHYSICIANS |
FQHC in a Gulf Coast parish (county) is in need of an Ob-Gyn and is willing to hire a J-1. If you have anyone who might be interested, please contact Jeanne Haupt for further information:
Jeanne R. Haupt Recruitment and Retention Services Monitor Bureau of Primary Care and Rural Health Bienville Building, 8th floor 628 N. 4th Street Baton Rouge, LA 70802 Office: 225-342-3506 Fax: 225-342-5839 E-mail: [email protected]
For other job opportunIties, click the link below:
JOB OPPORTUNITIES FOR PHYSICIANS |
Thank You! |
Thank you for recommending your friends and colleagues to us! To help your friends or colleagues learn the true facts about immigration, please forward this newsletter and invite them to contact us.
The information in this newsletter has been provided as an educational service. If you have specific questions or issues related to immigration, you are invited to call us at 469-916-7900 or email me at [email protected].
Until next time,
Angela M. Lopez
Attorney
Badmus Law Firm |
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NOTE: Immigration law changes frequently. The resources and information provided in this newsletter are intended to help you understand basic issues involved in the immigration process, and are offered only for general informational and educational purposes. This information is not offered as, nor does it constitute legal advice or legal opinions. Although we strive to keep this information current, we neither promise nor guarantee that the information is the latest available, or that it applies to your specific situation. You should not act or rely upon the information in these articles without seeking the advice of an attorney. To consult with Badmus Law Firm regarding your case, click here.
Badmus Law Firm is a NAPR vendor member.
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