H-1B cap count update - 45,700 now used.

USCIS updated the H-1B cap count for Fiscal Year 2010. It now has 45,700 cases against the regular (non-Master's) H-1B cap. For more information, see the previous blog posts here and here

New guidance issued on H-1Bs for healthcare workers

The US Citizenship and Immigration Service (USCIS) has issued new guidance on the standards for adjudicating H-1B petitions filed on behalf of beneficiaries seeking employment in a health-care specialty occupation.

The memo suggests that adjudicators should first consult the U.S. Bureau of Labor Statistics’ Occupational Outlook Handbook (OOH) to determine whether the position qualifies as a H-1B "specialty occupation" as defined in the Immigration and Nationality Act.

The memo addresses licensing requirements for health-care workers in detail, and the effect of having a license - or not having a license - on approval of a case. If the foreign national has the required license, the adjudicator should not "look beyond the license." If the foreign national has a restricted license (e.g., license approved except for mandatory supervised practice), and the petition is otherwise approvable, an adjudicator should approve the petition for one year, or the duration of the restricted license, whichever is longer.

If the employee does not have the license because s/he needs certain immigration documents before getting a license, CIS can approved the petition for one year. The memo says that

"The approval of any such H-1B petition shall not constitute approval by USCIS for the alien beneficiary to engage in any activity requiring possession of such State or local license. It is merely a means to facilitate the state or local licensing authority’s issuance of such a license to the alien, provided all other requirements are satisfied."

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An end to the "widow penalty?"

A court in Massachusetts (Taing v. Napolitano) has held that a woman from Cambodia could continue with her permanent residence application although her US citizen husband died before the paperwork was processed. The US immigration service (CIS) argued that Mrs. Taing no longer qualified as a "spouse" since her husband had died before the case was approved.

This controversial so-called "widow penalty" has been the subject of many news articles, listed here. The New York Times recently called on the government to end this penalty also.

Mrs. Taing entered the US in 2004. Later that year, she married her late husband and they filed the relevant immigration paperwork. Six months later, Mr. Taing tragically died, before the immigration filings were approved. USCIS denied the permanent residence application, on the basis that Mrs. Taing was no longer a "spouse." The US Court of Appeals for the First Circuit agreed with the Sixth and Ninth Circuit court's views that the plaintiff in this situation remained a "spouse" and that she should not be penalized because CIS didn't adjudicate the case quickly enough.

Although we rest our holding on entirely legal grounds, we note that our decision comports with common sense. We do not believe that Congress intended for the speed at which immigration authorities attend to a pending application to be dispositive in determining when a surviving spouse like Mrs. Taing, who has diligently followed the rules, can qualify as [a spouse.] As our sister court has recently noted, the result the government seeks would "create[] an arbitrary, irrational and inequitable outcome in which approvable petitions will be treated differently depending solely upon when the government grants the approval." Lockhart, 561 F.3d at 620 (quoting Robinson, 554 F.3d at 371 (Nygaard, J., dissenting)).

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Colebrook, N.H., rises up to save French bakery - The Boston Globe

Colebrook, N.H., rises up to save French bakery - The Boston Globe

I love this story about how the residents of this small town persuaded the US consulate in Paris to approve a visa. The owner of the bakery had applied for a new E-2 (investor) visa, and was initially denied because the consulate didn't think her bakery business was profitable enough.

"They began sending letters to the US Embassy in Paris. They lobbied their congressmen to get behind their appeal. They signed a petition by the hundreds and sent it to American diplomats several thousand miles away.

Their argument: The bakery might not earn huge sums of money, but it contributed plenty to the community, providing a place for residents to gather, while offering hope that a small business, even one as unlikely as the boulangerie, could thrive in their town."

The petition was successful, and the US consulate overturned their denial and approved the E-2 visa.

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