Premium processing can be thought of as an upgrade to certain non-immigrant and immigrant employment based visa categories.  The way that it works is that the sponsoring employer pays $1,000 to the US immigration service in exchange for a commitment to process the petition within 15 calendar days.  What does "process" mean you may ask?  It means that they will either approve, deny or request additional evidence within that time frame.  If they request additional evidence, then the 15 day clock restarts anew when they receive your reply for additional evidence.  The process is available for nearly all of the first three employment based immigrant categories (with the exception, currently, of multinational executives and managers).  It also does not apply to immigrant investors and immigrant religious workers.  Nearly all of the applicable non-immigrant employment based categories are covered.  Additionally, you can either file the premium processing request initially with your petition or you can upgrade it at any point.  It can be a real time saver.  The question to ask yourself is whether the time savings is worth $1,000.  Many times it can be.  For example, if an alien is in H-1B status that will expire in the next month or two and has an employment based immigrant petition pending, upgrading that petition through premium processing may mean that the alien can apply for adjustment of status and a work permit sooner and avoid having to renew his H-1B status and the costs associated with it.

As many of our readers are aware, there is an artificially set number of H-1B visas available each fiscal year, 85,000 to be exact.  Of these, some are set aside for people who graduated with Masters’ degrees in the US and some are put aside for Chile and Singapore free trade agreements.  The fiscal year runs from October 1 to September 30.  Six months prior to the beginning of the fiscal year, one may submit a new (as opposed to renewal or extension) H-1B petition.  As mentioned in our blog post from earlier this year, the season only lasted about seven weeks.  Think about how few visas are available for this big country.  These are jobs that are only for professionals.  This means we’re turning away talent rather than keeping it here.  On the same note, employment based immigrant visas are backlogged in several categories.  For jobs that require education and/or experience (but something less than a Master’s degree or equivalent) there is a backlog of more than four years.  This basically means that the labor certification process is theoretically flawed.  An employer goes through a detailed process of showing that it cannot find an employee who meets certain minimum qualifications (of which of course, the foreign national possesses).  Then, after having proved this, the process is relatively on hold for four years.  The American Immigration Lawyers Association recently posted a letter to Congress from nearly one thousand businesses, schools and hospitals in the US complaining about these backlogs and shortfalls and asking for relief.  If we as a country are going to have these categories in place, should we not at least make sufficient visas available so that they can be used as intended?

I am angry right now and I’ll tell you why.  I just met with a potential client who wasted significant time and money by obtaining advice from a non-lawyer rather than a qualified immigration attorney.  The person who came to visit me arrived in the US about two years ago and his lawful stay expired about a year and a half ago.  Around the time his status was to expire, he paid several thousand dollars to a non-lawyer who blindly told him to sign a form that that person had prepared that would lead to a work permit in the US.  If it’s too good to be true then it is.  The form that this person signed was an application for a process designed for people who arrived in the US before 1982 (when this particular applicant would have been only a small child).  He was not even remotely eligible for this process.  Non-lawyers prey upon uninformed people by promising them unachievable results for large sums of money and of course, they never deliver.  They call themselves, notaries, notarios, immigration consultants, etc.  The bottom line is that unless they have a law degree that allows them to practice law in the US, they are not qualified to give advice.  State legal bar associations, to differing degrees, seek out these non-lawyers for prosecution.  The State Bar of Texas actively pursues violators of their statute.  The previous link is to an article on their web site related to the unlawful practice of law.  The Florida Bar also pursues violators of Florida law related to this matter.  The bottom line is that people should seek immigration advice only from qualified immigration attorneys.  In my immigration practice, I have a number of cases  devoted to fixing the damage that non-lawyers have done to people’s cases.  Sometimes, the damage is so great that it cannot be fixed.

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)).