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Nonimmigrant Visa for Nurse Trainees

The USCIS recently released a policy guidance on H-3 nonimmigrant trainees. The new guidance consolidated previously issued guidance on the program.

The H-3 visa is for foreign nationals coming to the U.S. to participate in training programs with U.S. employers. The training program may be in any field including agriculture, commerce, communications, finance, government, transportation, among others. It must not be available in the foreign national’s home country and must benefit his career or employment outside the United States.

Although H-3 trainees are allowed to receive compensation while training, they cannot engage in productive employment unless necessary to the training and should not displace the regular employment of citizens and resident workers.

A foreign nurse may enter the U.S. under an H-3 visa to receive training provided he meets the basic H-3 trainee requirements, is not on an H-1 status, and has a full and unrestricted license in the country where he obtained his nursing education or such education was obtained in the U.S. or Canada.

The petitioner seeking H-3 classification for a nurse must certify that under the laws of the place where the training will be conducted, the nurse is fully qualified to receive training and the petitioner is authorized to give such training.

The petitioner must also certify that there is a genuine need for the nurse to receive training and that the training is designed to benefit both the beneficiary’s career outside the United States and his overseas employer.

The petition for an H-3 trainee is made on Form I-129. The petition must be accompanied by a statement describing the training program, the supervision to be given, the proportion of time devoted to productive employment and the number of hours spent on classroom or on-the-job training.

The statement must also include the reasons for training the beneficiary and why such training cannot be obtained in the foreign national’s country, the benefit the beneficiary’s training will bring to the petitioner, and the amount and source of the beneficiary’s remuneration.

The USCIS will scrutinize the training program and may not approve the program if the following features are present: it deals with generalities and does not have a fixed schedule, objective or means of evaluation; it is incompatible with the petitioner’s business or enterprise; the beneficiary already has substantial training and expertise in the field of nursing and his training will unlikely be used outside the U.S.

In addition, the training program may not be approved if it results in “productive employment, unless necessary to the training”; it is designed to recruit and train foreign nurses for staffing of U.S. hospitals and other healthcare facilities; the petitioner has no venue or sufficient staff to provide proposed training; and it is designed to extend the total allowable practical training allowed a nonimmigrant student.

An H-3 trainee is admitted for the duration of the program but for not more than two years. Extensions may be obtained if their original period of stay under H-3 status was less than two years. After two years, an H-3 trainee may not seek extension, change of status or be readmitted to the U.S. under H or L status unless he resided and had been physically present outside the U.S. for the preceding six months.

There are a few exceptions to this general rule. One exception is where the H or L status of the H-3 nonimmigrant was seasonal, intermittent, or lasted for an aggregate of 6 months or less per year. Also, an H-4 dependent may change status to H-3 and vice versa. The time spent as an H-4 dependent does not count towards the maximum period of stay under H-3 status.

There is no annual limit for the H-3 category. The spouse and children of the H-3 visa holder may enter the U.S. under the H-4 visa.

Is Delaying Executive Action On Immigration A Smart Move?

President Obama wouldn’t be taking any executive action on immigration soon after the end of summer as promised. He will wait until after the midterm elections in November before he acts on immigration on his own. The President “believes it would be harmful” to his immigration policy if he were to announce administrative action before that time.

The President’s announcement has infuriated many immigrant rights advocates. Mary Kay Henry, president of the Services Employees International Union, said that “The White House’s decision to delay executive action forces countless families to continue to wait in the shadows of fear.”

This is the second time that the President moved his timetable to deal with immigration. Earlier this year, the President postponed the release of the results Department of Homeland Security Secretary Jeh Johnson’s review of the deportation policies to give Congress the chance to act on immigration.

House Republican leaders, however, continued to refuse to vote on the comprehensive immigration bill passed by the Senate on June 27, 2013 and refused to make an effort to come up with their own version of the bill. The inaction of the GOP pressed the President to make his announcement last June that he would unilaterally act soon after the end of the summer.

White House officials have concluded that any Presidential action on immigration before the midterm elections could anger conservatives across the nation and contribute to the loss of vulnerable Democrats in the House and Senate.

Although many immigrant rights advocates were disappointed with the delay, they recognize that any hope for a permanent legislative fix to the broken immigration system would diminish if Republicans take control of the Senate. They expect Republicans to undertake immense efforts to attack and invalidate President Obama’s Deferred Action on Childhood Arrivals (DACA) program.

Also, the surge of unaccompanied young children crossing the border diminished public support for immigration reform. Putting off the President’s executive action until after the midterm elections would give the administration time to work on the policy and clarify the change to the public.

Speaker John A. Boehner (R-Ohio), for his part, criticized the President’s decision saying, “The decision to simply delay this deeply controversial and possibly unconstitutional unilateral action until after the elections – instead of abandoning the idea altogether – smacks of raw politics.”

Meanwhile, White House officials confirmed that the “bulk of work” has been completed and that “the [remaining] work will be done in sufficient time for the President to make an announcement before the end of the year.”

The President plans to go “as far as he can under the law” to deal with immigration. One of the measures the President is reportedly studying is the grant of temporary relief from deportation to a significant number of the 11 million undocumented.

The balance of power in Congress may or may not change come midterm elections. Whatever the outcome, the President will have to remain true to his word to provide a solution to immigration by the end of this year.

Visa Processing Fee Changes Take Effect September 12

A new schedule of fees for a number of consular services will go into effect on September 12, 2014. Every year the Department of State (DOS) reviews the cost of services and the new fees more accurately reflect the costs to the Department for providing these services.

Immigrant processing fee for employment-based visa application will decrease by $60 from $405 to $345 while the fee for family-based visa application will increase by $95 from $230 to $325. The increase in processing fee for family-based immigrant visa is based on the August 2013 cost-of-service model update which shows that visa processing for this category costs more than other categories. All other immigrant visa applications will decrease from $220 to $205.

The nonimmigrant visa processing fee for Treaty Investors (E-1) and Trade (E-2) visas will decrease by $65 from $270 down to $205. The fee for Fiancé(e) (K) visas will increase by $25 from $240 to $265. The fee for Border Crossing Card for Mexican citizen minor applicants under the age of 15 will increase by $1 from $15 to $16. Fees for all other categories of nonimmigrant visa processing will remain the same.

The fee for determining returning resident status will decrease from $275 to $180. The fee for waiver of the two-year residence requirement for J-1 visa holders will also drop from $215 to $120. The affidavit of support fee, on the other hand, will increase by $32 from $88 to $120.

The fee for administrative processing of formal renunciation of U.S. citizenship will increase to $2,350 which is five times more the current fee of $450. The increase is largely due to the substantial amount of time consular officers spend to accept, process, and adjudicate these requests.

The charge for consular time or fee for services performed outside normal business hours will be lowered from $231 to $135.

The proposed fees were published in the Federal Register on August 28, 2014 and will take effect September 12 or 15 days from publication. Applicants will have to pay the fee in effect on the day of payment. Individuals availing of American Citizen Services at a U.S. Embassy or Consulate are required to pay the fees on the date the services are delivered. They cannot pay the fees in advance.

For immigrant visa applicants, they will pay the fee printed on the fee bill they receive from the National Visa Center. Immigrant visa receipts are valid for one year.

For nonimmigrant visa applicants, they will be charged the processing fee in effect on the date of payment. Payment of nonimmigrant fees is generally made in advance of the appointment. Where there is an increase in the processing fee, receipts for payments made 90 days prior to September 12 or through December 11, 2014 will still be accepted and the applicant does not need to pay for the difference. After that date, however, the applicant will have to pay the balance when he appears for his appointment.

If the processing fee for the visa category declines and the applicant paid prior to September 12, he will not be entitled to a refund.

The last time the processing fees were increased was two years ago. The fee changes are based on the Department of State’s latest cost-of-service study. The DOS estimates that it will process more than 11 million nonimmigrant visa applications and around 600,000 immigrant visa applications for fiscal year 2014.

Work Visa for Nannies

Nannies may enter the United States under an H-2B visa to perform temporary work. This H-2B visa allows a foreign worker to do nonagricultural work or services on a temporary basis.

To petition a foreign worker for H-2B visa, the petitioner must apply for a temporary labor certification for H-2B employment with the U.S. Department of Labor. When the labor certification is issued, it must be attached to the H-2B petition on Form I-129 by the petitioner and filed with the USCIS.

The petitioner of an H-2B petition may be a U.S. employer or U.S. agent. However, the petitioner must show that the need is only temporary in nature. He must demonstrate that the work will terminate after a definite period of time. The temporary need for a nanny, for example, may include proof that the child will be going to nursery school in one year or that either parent has a definite plan to stop working at a certain time.

When approved, the validity of the H-2B visa will reflect the period indicated in the labor certification. This should reflect the period of the employer’s need. Generally, the period granted is limited to one year which may be extended for another year up to a maximum of three years.

The temporary nature of the employer’s need for the services for an H-2B petition shall be a one-time occurrence, seasonal, peak load or intermittent need. A U.S. employer may file an H-2B petition, based on his need, for both unskilled workers such as kitchen helpers, construction workers, dining room attendants and landscape laborers as well as skilled workers like computer programmers, production managers, trainers and chefs.

The beneficiary of an H-2B petition may be in the United State or overseas. The H-2B petition can be filed with an unnamed beneficiary if the beneficiary is overseas and will be applying for the visa at a U.S. consular office abroad. However, if the name of the beneficiary is required to establish eligibility or that the beneficiary is not from a participating country, the beneficiary must be named in the petition.

The Philippines as well as 62 other countries have been identified by the USCIS as participating countries under the H-2B program in a list released in January 2014. An H-2B petition may be approved for a beneficiary who is not from any of the participating countries only if the Secretary of Homeland Security finds that it is in the interest of the U.S. to approve the petition.

An H-2B petition for a beneficiary already in the U.S. must provide for the name of the beneficiary. The beneficiary must also apply for change of status on Form I-539.

When an H-2B petition has been approved, both name and unnamed beneficiaries may be substituted so long as the initial beneficiaries have not been admitted in the U.S. Substitute beneficiaries may not exceed the number of beneficiaries in the approved labor certification.
Substitution is no longer allowed where the beneficiary is already in the U.S. A new petition with an approved labor certification must be filed.

There is a cap of 66,000 visas per year. Accompanying family members of H-2B visa holders who are granted H-4 status as well as extension of stays for H-2B visa holders do not count towards the cap.

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