As we all now know, the Democrats have won majority control of both the US House of Representatives and the Senate.  Last year the House passed a restrictionist only immigration bill.  Earlier this year, the Senate passed a more comprehensive immigration bill that included a guest worker program and other forms of relief.  Before either of these can become law, the two houses of the legislature must meet to reconcile the differences between the two bills and present a final version for the President to either sign or veto.  Unfortunately, for reasons of politics and elections amongst others, this has not yet come to pass.  Overall, Democrats have been more willing to work on the immigration issue in a positive and less restrictionist manner.  Additionally the President has shown great interest in passing an immigration bill that includes guest worker provisions amongst other real life, realistic solutions to our country’s immigration issues.  Perhaps the recent change in the balance of power in Congress will bring this issue back to the forefront.

The H-2B visa is specifically for foreign nationals who will fill a temporary position in short (labor) supply in the US. The visa is good for up to one year initially and can be renewed twice (in one year increments). It is important that one’s intention to work in the US is temporary and that a potential employer’s need for labor services be temporary.

The employer must be able to prove that its need for foreign labor services are temporary (will not exceed one year) and that they are:

1. Either a one time occurrence;

2. Seasonal (this often times applies to landscaping positions and wait staff positions in country clubs);

3. Peak-load (such as construction job); or,

4. An intermittent need (for short periods of time).

The employer must prove that it cannot find US worker(s) to fill a position. The employer goes through a process known as labor certification (not to be confused with the labor certification process for a permanent position). While it is helpful if the employer has tried to recruit for the position in the past, it is not absolutely required. The attorney completes an application for the requested position with the state Department of Labor. The Labor Department will then check to see what is the appropriate wage for the position and make sure that the employer is willing to pay at least that much, if not more. Once the Labor Department reviews the application, they will direct the employer to advertise for three consecutive days in a local newspaper. The Labor Department will also post the job on-line with America’s Job Bank for ten days. The ads will direct applicants to send their resumes to the Labor Department who will then turn them over to the employer to review and contact the potential applicants. It should also be noted that the job description placed in the application is exactly what will appear in the ad. For this reason, the employer must be brief and succinct otherwise, the advertisement costs with the newspaper can be astounding. In order for the process to be successful, it is hoped that no one applies or that those who do apply do not meet the job’s minimum requirements. This part of the process can last two months.

When the application for the Labor Certification is made, the job start date must be no sooner than 60 days from that application date and no more than 120 days from the application date. For example, if an employer wants an employee to begin a job on April 1, 2006, the Labor Certification application would be submitted between December 1, 2005 and February 1, 2006.

Once the application with the Labor Department is approved, an H-2B petition is submitted to US Immigration. By means of this petition, the employer will show that it properly recruited and has not found a US worker to fill the position, that the workers listed in the petition are qualified for the position and that the position is temporary. That process takes approximately four to six weeks. This can be shortened to 15 days by payment to the US Immigration Service of a Premium Processing fee of $1,000. Once that case is approved, an application is made at the US Consulate to have a visa stamp placed into the foreign national’s passport and entry into the US can be made so that work can begin.

There is a limitation on the number of visas available each fiscal year. Because of these limitations, the soonest that work could begin in this status at this time would be April 1, 2006. On the web site of US Immigration, one may view the progression of approved visas (in order to estimate how many are left), please consult the column for (H-2B 2nd Half (FY 06)).

Today we write to you about a new visa opportunity that is strictly for Australian nationals.  It is called the E-3 visa and it is for professional employment in the United States.  The visa is good for two years and can be renewed indefinitely.  Basically it must be shown that a US employer is sponsoring an Australian national for a professional position which normally requires a University degree.  The Australian national must show that he or she possesses the required degree.  A benefit to this status is that it can be used as an alternative to the H-1B (the primary professional visa) which is subject to numerical caps and frequently is used up early.  Another benefit is that the Australian national’s spouse can obtain an unrestricted work permit while his or her spouse is working in the US with an E-3 visa.  This visa can be obtained at a US consulate abroad or one can apply for change to E-3 status in the United States.  Finally, the E-3 visa does not carry with it the very expensive filing fees associated with the H-1B (which could be up to $2,190).  There is an annual limit of 10,500 new visas per year.  However, since only Australian nationals can apply for this visa, it remains to be seen whether the numerical limit will ever be reached before the end of the fiscal year.  Please also see the US immigration press release regarding this new status.