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September 30, 2005

USCIS Releases Numbers on Remaining H-1B Masters Numbers

USCIS has updated its website with the current count for usage of the H-1B numbers for graduates of U.S. masters or above programs for fiscal years 2005 and 2006. It appears that there will be sufficient numbers to get to the end of fiscal 2005, but usage of 2006 numbers is heavy. For details, link to;
http://uscis.gov/graphics/services/tempbenefits/cap.htm

Posted by VisaLawyer at 11:56 AM | Comments (0)

September 29, 2005

Action Alert: Oppose DNA Collection Provision in VAWA Reauthorization Bill

As early as today, September 29, the Senate could consider the Violence Against Women Act (VAWA) of 2005 (S. 1197). Unfortunately, during Senate Judiciary Committee consideration of the measure, Senator Jon Kyl (R-AZ) was successful in attaching an amendment that would authorize any federal government agency to collect DNA samples from people who are arrested or detained under federal authority in order for those DNA profiles to be included in the federal (CODIS) DNA database. This amendment would have serious implications for people who are detained on possible immigration violations, forcing them to submit their DNA to federal officials. The DNA provision has nothing to do with VAWA reauthorization, which AILA strongly supports. Indeed, this pernicious amendment has surfaced in a number of different legislative vehicles. Most recently, the House Rules Committee ruled a similar amendment "out of order" when Representative Jeff Flake attempted to attach it to the Department of Justice Appropriations Authorization Act (H.R. 3402), which contains the House version of VAWA reauthorization legislation (see item number 4 below). Please call your Senators immediately and urge them to oppose the immigrant DNA collection provision wherever it appears! You can reach the U.S. Capitol Switchboard at 202-224-3121.

Posted by VisaLawyer at 11:54 AM | Comments (0)

September 28, 2005

FAQ Will there be more H-1B visas for FY2006?

Answer; We have to lobby the U.S. Congress to make more H-1B visas available for FY2006. If you are a U.S. employer send me your company name, city, state. I will add you to the AILA H-1B sign-on letter drive.

The next deadline is October 10. We need to generate momentum within the business community to get more H-1B visas. To read the H-1B sign on letter go to my blog entry of September 23, 2005.

We have to work together to overcome this temporary obstacle. Obtaining more H-1B numbers will help to achieve the Rights stated in the Declaration of Independence of "Life, Liberty and the pursuit of Happiness".

Posted by VisaLawyer at 07:54 AM | Comments (0)

September 27, 2005

FAQ: Employment for E-2 spouse and children

Free Question: Can my spouse and children work as E-2 dependents?

Free Answer: Your spouse is allowed to work for any employer on the open market. She needs to obtain an employment authorization document. Your children are not permitted to work as E-2 dependents. If they want to work in the U.S. they need to qualify independently for another visa. For example, they may marry a U.S. citizen or apply for an H-1B visa.

Posted by VisaLawyer at 07:41 AM | Comments (0)

September 26, 2005

La Saborsita

Hoy fui a una intrevista y preguntas de inmigracion. Miguel y Mely de la Saborsita son los locutores. Muchas personas llamaron para hacer preguntas. La Saborsita estar en la 810 a.m. en Nashville.

Posted by VisaLawyer at 06:29 AM | Comments (0)

September 25, 2005

USCIS Releases Numbers on Remaining H-1B Masters Numbers

Go to;

http://uscis.gov/graphics/services/tempbenefits/cap.htm

Posted by VisaLawyer at 09:50 AM | Comments (0)

September 24, 2005

Senators Urge USCIS To Follow the Law on Recapturing Chile/Singapore H-1Bs

A letter from a bipartisan group of Senators to DHS urges that USCIS follow the law and recapture unused Chile/Singapore H-1B numbers from fiscal 2005 at the beginning of fiscal 2006. Note, as the letter reflects, that the statute requires that these numbers be allocated to H-1B petitions filed during fiscal 2005. While it is not known whether USCIS will follow the urgings of these lawmakers, if it does it will have been necessary that the application have been made during fiscal 2005, which ends on Septemb

Posted by VisaLawyer at 09:49 AM | Comments (0)

September 23, 2005

H-1B Sign-On Letter from Companies, Associations and Academic Institutions

If you want to have your company name added to the letter please email me. Thanks, Mario;

The Honorable____________
United States Capitol
Washington, DC __________

Re: Increase the H-1B Cap!

Dear Congressman/Senator ____________:

We are writing to urge Congress to take action this year to address a critical issue threatening employers across all sectors of the American economy. On August 12, the U.S. Citizenship and Immigration Service (USCIS) announced that the FY2006 numerical cap limiting the H-1B visa program for temporary professional workers had been exhausted. This means that our companies will lose access for over a year to highly educated foreign professionals vital to our businesses.

Professionals hired through the H-1B program represent a very small but important portion of our workforce. Examples include not only computer professionals, but also engineers, accountants, researchers, medical professionals, economists, and teachers. As our employees, these highly qualified professionals enable us to advance key job-creating projects, enter new markets, and provide enhanced benefits and services to the American public. Cutting off access to these professionals will only dramatically limit our competitiveness and strengthen overseas competition.

As U.S. employers, we look first to hire American workers. However, we also need access to the unique skill sets and expertise offered by the top talent from around the world. When we hire foreign professionals, we not only pay the same wages that we offer to American workers, but we also pay stiff fees, including a $1,500 training fee mandated for each H-1B petition and a $500 fraud prevention and detection fee. These funds contribute to the training and education of American workers in order to enhance our domestic talent pool, while also helping to root out unscrupulous employers. From 1998-2003, the training fees totaled $692 million and helped the federal government provide training and scholarships to more than 68,000 workers.

While targeted Congressional action last year helped reduce some of the pressure from the restrictive H-1B cap, we need a permanent solution that respects the fluctuating market demand for these skilled temporary professionals. Statistics over the past decade show that no matter the size of the cap, H-1B usage fluctuates with the normal ebb and flow of the economy. A modification of the cap so that it is in line with reality would prevent another year long H-1B blackout. Without Congressional action this year, the restrictive limits on this program will increasingly impede our ability to provide services to Americans and diminish our ability to access the job-creating talent necessary to our nation’s economic success.

We urge you to act this year to ensure continued access to these talented professionals.

Sincerely,

Posted by VisaLawyer at 09:40 AM | Comments (0)

September 22, 2005

2007 Diversity Visa (DV) Lottery

The Department has announced that registration for the 2007 Diversity Visa (DV) Lottery will begin at noon on October 5, 2005. Persons seeking to enter the lottery program must register online through the designated Internet website during the registration period. The website for registering for the 2007 DV Lottery, www.dvlottery.state.gov, will be available from noon October 5, 2005 through noon December 4, 2005.

In response to demand, the Department tripled the number of servers hosting the registration website this year. In addition, persons submitting entries to the 2007 lottery will receive a notice of receipt now containing their name, date of birth, country of chargeability, and a time/date stamp when information has been properly registered at www.dvlottery.state.gov.

The Department continues to encourage persons who wish to enter the 2007 Diversity Visa Lottery to submit their information early in the two-month registration period.

There is no fee charged for entering the Diversity Visa Lottery. The Department of State does not endorse, recommend or sponsor any information or material from outside entities. The Department is aware that websites and email have masqueraded as official Diversity Visa Lottery facilitators. Registration for the Diversity Visa Lottery through the official, U.S. government website, www.dvlottery.state.gov is free of charge and notification of winning entries are sent by mail only.

The 2007 Diversity Visa Lottery marks the third year that electronic registration is required. Paper entries and mail-in requests for Diversity Visa Lottery registration are not accepted.

Posted by VisaLawyer at 01:39 PM | Comments (0)

September 21, 2005

Support for H-1B businesses

If your company would lend its name to contacting Congress, chances of raising the H cap back to a more rational level would improve. Please reply to me by email to let me know if your company is willing to 'sign on' to this campaign.

Only your company name, city and state need appear. Individual responsible persons at a company need not be named.

Thank you in advance for your help on this important issue!

Posted by VisaLawyer at 08:34 AM | Comments (0)

September 20, 2005

FAQ: PERM certification; EB-2, EB-3, Other Workers

Free Question: Hi, Saying that we have an employer who is willing to sponsor my husband for the PERM. How can you help us? Thank you very much.

Free Answer: PERM is the process wherein the U.S. Department of Labor certifies a labor certification application. There are three categories which require PERM certification; EB-2, EB-3 and Other Workers.

EB-2 is for the holder of an advanced degree (4 years plus a master’s degree or more). Immigrant visas are currently available for EB-2 applications. This means that after PERM certification an application may be submitted for permanent residency.

EB-3 is for skilled workers (at least two years training or experience) and professionals (baccalaureate degree or a foreign equivalent). The EB-3 priority date for immigrant visa is March 1, 2001. This means that after PERM certification there is a wait of 4 ½ years before an application may be submitted for permanent residency.

The Other Workers category is for positions requiring less than two years of training, work experience, or college education. The Other Worker category is at October 1, 2000. So, after PERM certification there is a wait of 5 before an application may be submitted for permanent residency.

India, China, Mexico and the Philippines all have waiting periods different from the ones quoted above.

Posted by VisaLawyer at 01:20 PM | Comments (0)

September 19, 2005

October 2005 Visa Bulletin severe retrogressions

The October 2005 Visa Bulletin shows severe retrogressions in India and China employment-based first and second preferences, and early cutoff dates in worldwide third preference. The Bulletin indicates that future forward movemenfrom India or China you need to contact my office immediately. We can still process your application to be submitted prior to the end of September.

Posted by VisaLawyer at 11:46 AM | Comments (0)

September 18, 2005

DHS Secretary Michael Chertoff; border and expedited removal

DHS Secretary Michael Chertoff announced he will exercise his authority according to the Homeland Security Act of 2002 and REAL ID Act of 2005, to waive certain legal requirements necessary to ensure expeditious completion of the 14-mile Border Infrastructure System (BIS) near San Diego, California.

On 9/14/05 he announced the expansion of Expedited Removal authority from three to nine U.S. Customs and Border Protection (CBP) Border Patrol Sectors, implementing this policy across the entire southwest border.

Posted by VisaLawyer at 11:45 AM | Comments (0)

September 17, 2005

FAQ: K-1 denial and 212 wavier

Free Question: I had a short question regarding immigration. A friend of mine referred me to you who had previously used your services. She highly recommends you and speaks the world of you.

A friend of mine needs to file the I-212 waiver. She was denied the K-1 visa in Brazil and they told her she needs to send the I-212 waiver to where she was removed. She was denied entry at Dulles airport. Does she mail the I-212 waiver and hardship letter to the USCIS office closest to Dulles?

Free Answer: the correct place to file the waiver is the consulate where she was denied on the K-1 visa.

Posted by VisaLawyer at 09:23 AM | Comments (0)

September 16, 2005

FAQ: Chile H-1B1

Free Question: Dear Mario: I am an industrial engineer and also have an MBA degree. I'd like to take advantage of th H-1B1 visa program for Chilean citizens. Can you help me? I do not have a job offer in the US

Free Answer; You are correct that you need a job offer to apply for an H-1B1 visa. You qualify for the H-1B1 because you are from Chile. The H-1B1 visa allows one year of work in the U.S. and may be extended. To qualify you need (1) Letter from U.S. employer stating activity to be engaged in, anticipated length of stay and arrangements for remuneration; (2) Evidence that education requirements are met; and (3) Labor attestation. My office can process your H-1B1 visa application within 72 hours of receipt of all information. Look for a job related to your degree or area of work. Here are various U.S. job websites; http://www.webjobsusa.com/ http://www.job-hunt.org; http://www.monster.com; http:/www.dice.com; http://whohasjobs.com; http://www.latpro.com; http://hotjobs.yahoo.com/; http://www.nashvillechamber.com/

Posted by VisaLawyer at 07:56 AM | Comments (0)

September 15, 2005

Broad Statewide Community Coalition Announces Support for Comprehensive Immigration Reform

Yesterday I attended a press conference by the Tennessee Immigrant Rights Coalition organized by David Lubell. The conference brought together representatives from Tennessee's academic, religious, labor, legal, business, and immigrant communities--as well as others who support immigrants, the important contributions made by Tennessee's immigrant families, and the need for comprehensive reform of the nation's immigration system.

The conference highlighted the need for the passage of comprehensive immigration reform legislation. The Secure America and Orderly Immigration Act, proposed by Arizona Senator John McCain, is the only bi-partisan reform proposal that honors values of family, hard work and fairness by putting into place a safe, legal, and orderly system, enabling hardworking immigrant families to fully contribute to the economy and our communities.

Immigration reform will allow the evacuees of Hurricane Katrina to feel better by helping to solve the immigration problem and to rebuild their lives.

The event took place at the Catholic Center of Nashville, Tennessee. For more information about the press conference contact TIRRC's policy coordinator, Stephen Fotopulos at stephen@tnimmigrant.org or 615-845-6672.

Posted by VisaLawyer at 06:59 AM | Comments (0)

September 14, 2005

Notice to the Public regarding Australian E-3 Visas

This just came out about the E-3 visa;

The US Consulate General in Toronto will process E-3 visas once the required systems upgrades are completed.

Please be advised that the Treaty (E-1/E-2) Visa Unit will NOT handle these visas. As the new E-3 is most similar to an H-1B1, it will be handled in accordance with established procedures for H, L, or other work visas.

Applicants who wish to apply for an E-3 visa must schedule an appointment by phone or online through the website or number listed below.

E-3 applications received by the Treaty Visa Unit will not be accepted.

To schedule an appointment from Canada please call: 1-900-451-2778 (charge applies)

To schedule an appointment from the US please call: 1-900-443-3131 (charge applies)

You may also schedule an appointment online at: www.nvars.com

Posted by VisaLawyer at 06:56 AM | Comments (0)

September 13, 2005

FAQ: could I qualify under PERM?

Free Question: Dear Sir, I would like to know if I could qualify for PERM. Qualifications: MSM, Bachelors in Electronics, over 10 years of work experience. Currently CEO for a company. I am married with child. With kind regards,

Free Answer: You qualify for PERM as either EB-2 (holder of a advanced degree; 4 years plus experience) or EB-3 (4 year degree). With PERM certification you and your family may apply for permanent residency. I have obtained certification under PERM for my clients. Because you are outside of the U.S. you will process in the consulate.

Posted by VisaLawyer at 02:43 PM | Comments (0)

September 12, 2005

9th Annual Australian Festival; ANZACC conferenc

Yesterday I attended the 9th Annual Australian Festival in Nashville, Tennessee. My wife and two boys loved the Eastern Grey Kangaroos, the blue-tongued lizard, and other animals from Kentucky Down Under; www.kdu.com. The festival has a website at www.australianfestival.com This year the festival was part of the ANZACC conference. Last week the E-3 visa regulations came out with the process for applications. At the festival I met Vicent Giuca, The Regional Director of Immigration for the Australian Embassy, Washington, D.C. We discussed the new E-3 and the application process. The E-3 is a great example of innovation in U.S. immigration law.

Posted by VisaLawyer at 01:25 PM | Comments (0)

September 11, 2005

FAQ; Is H-1B and H1 the same?

Free Question: Is H-1B and H1 the same? I have heard that the H1 cap for this year is full and that we need to apply only next year. I do not have a job in the US currently, how can I go about the process of acquiring the H1? There are consultancies that promise to process your H1 and then get you a job. Is there any consultancy in Singapore that can help. I am a software consultant with 5 years of IT experience.

Free Answer: The H-1B1 is the work visa for persons such as you from Singapore. There are still H-1B1 visas available for Singapore citizens. First you need a job offer to work in the U.S. Our office will work with you and your employer inside or outside the U.S. My office can process your H-1B1 visa application within 72 hours of receipt of all information. After receiving your H-1B1 my immigration team will help with your lawful permanent residency/green card. Look for a job related to your degree or area of work. Here are various U.S. job websites; http://www.webjobsusa.com/ http://www.job-hunt.org; http://www.monster.com; http:/www.dice.com; http://whohasjobs.com; http://www.latpro.com; http://hotjobs.yahoo.com/; http://www.nashvillechamber.com/

Posted by VisaLawyer at 07:03 AM | Comments (0)

September 10, 2005

FAQ: working in Sinapore can I apply for an H-1B1

Free Question: I am working here at Singapore on an employment pass and I am not a Singapore Citizen. I do not hold a PR of Singapore either. My husband is here on a dependent pass. He is an AutoCAD draftsman with 2.5 years of experience. We have seen in many job sites thatUS has lot of requirement for GIS Analysts which my husband can do. Kindly guide and let me know where and how I can get in touch with your team. Please let me know if I need to acquire a job in the US before my H1 processing starts and

Posted by VisaLawyer at 06:57 AM | Comments (0)

September 09, 2005

FAQ; que seria mejor? casarnos en el salvador ..o aplicar a la fiance visa?

Free Question: hola soy de el salvador soy novio cmprometido de una ciudadana americana que vive en los estados unidos ..ella me ha estado visitando durante sus vacaciones ya que yo no tengo una visa para poder visitarla ..estamos pensando en aplicar a una fiance visa para casarnos el proximo junio...si por algun motivo no aplicamos a ese tipo de visa estamos decididos a casarnos siempre en junio mi pregunta es : que seria mejor? casarnos en el salvador ..o aplicar a la fiance visa ...y cuanto tiempo esperariamos para estar juntos en USA si nos casamos en el salvador..gracias por este sitio espero su respuesta Dios Bendiga.

Free Answer: La visa K-1 es aprovada mas rápido que la visa K-3. Si tienen hijos, ustedes se deben de casar antes que sus hijos cumplan 18 años de edad, sino ellos no podrán obtener la visa K-2 o K-4.

Posted by VisaLawyer at 07:57 AM | Comments (0)

September 08, 2005

FAQ; H1B availability and processing and Oracle DBA opportunities in USA

Free Question: I hold my MTech from Indian Institue of Technology, Madras, India. I have certifications in Oracle 8i and Oracle 9i and currently working as Oracle DBA - for the past 10 years. I would like to know about H1B availability and processing and Oracle DBA opportunities in USA.

Free Answer: First you need to find a job sponsor. As a MTech graduate you should be able to find a job offer in the U.S. You may currently apply for an H-1B visa with a job offer from a university/school, non-profit or doing research. You cannot apply for an H-1B with a private employer until April 1, 2006. The H-1B visa allows three years of work in the U.S. and may be extended. To qualify you need either a four year university degree or equivalent work experience. Our office will work with you and your employer inside or outside the U.S. Once you have located a job offer contact my office as my office does not assist to locate a job offer. After receiving your H-1B my immigration team will help with your lawful permanent residency/green card. Look for a job related to your degree or area of work. Here are various U.S. job websites; http://www.webjobsusa.com/ http://www.job-hunt.org; http://www.monster.com; http:/www.dice.com; http://whohasjobs.com; http://www.latpro.com; http://hotjobs.yahoo.com/; http://www.nashvillechamber.com/

Posted by VisaLawyer at 07:31 AM | Comments (0)

September 07, 2005

Finally; the DOS final rule implements the E-3 visa for Australian specialty occupation workers

DEPARTMENT OF STATE, 22 CFR Part 41, RIN 1400-AC12 [Public Notice 5181]

Visas: Treaty Trader, Treaty Investor, or Treaty Alien in a Specialty Occupation

AGENCY: State Department. ACTION: Final rule.

SUMMARY: This rule expands the definition of treaty trader and treaty investor contained at 22 CFR 41.51 to include a new nonimmigrant category (E-3) for nonimmigrant treaty aliens coming to the United States solely to perform services in a specialty occupation. It also reorganizes existing regulatory language pertaining to treaty traders and treaty investors to make this information clearer and easier to read.

DATES: This rule is effective September 2, 2005.

FOR FURTHER INFORMATION CONTACT: Charles Robertson, Legislation and Regulations Division, Visa Services, Department of State, 2401 E Street, NW., Room L-603D, Washington, DC 20520-0106; telephone 202-663- 1221; e-mail robertsonce@state.gov.

SUPPLEMENTARY INFORMATION:

Why Is the Department Promulgating This Rule?

Because of the passage of a new law amending the Immigration and Nationality Act (INA). The Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief, 2005, Public Law 109-13, 119 Stat. 231 was signed into law by the President on May 11, 2005. Division B, Title V, Section 501 of the Act adds a new nonimmigrant visa classification for certain treaty aliens who are coming to the United States solely to perform services in a specialty occupation. The classification will hereafter be designated the ``E-3 visa.''

Who Qualifies for the E-3 Visa?

The new E-3 visa classification currently applies only to nationals of Australia as well as their spouses and children. E-3 principal nonimmigrant aliens must be coming to the United States solely to perform services in a specialty occupation.

Are There Other Requirements for Qualifying for an E-3 Visa?

The E-3 visa classification is numerically limited, with a maximum of 10,500 visas available annually. Spouses and children do not count against the numerical limitation nor are they required to possess the nationality of the principal. A Labor Condition Application (LCA), containing attestations by the sponsoring employer related to wages and working conditions, must be filed with and approved by the Department of Labor (DOL). At the time of visa application, the visa applicant must present the consular officer with the original or copy of the approved LCA. However, if the applicant cannot provide the original, the consular officer, at his/her discretion, may accept a certified copy of the approval. The approved LCA represents DOL's certification that the employer has met the attestation requirements of the E-3 statute.

What Is a Specialty Occupation?

In general, a specialty occupation is one that requires theoretical and practical application of a body of knowledge in professional fields and at least the attainment of a bachelor's degree, or its equivalent, as a minimum for entry into the occupation in the United States. The Department's regulations governing E-3 visas incorporate the definitions contained in section 214(i)(1) of the Immigration and Nationality Act (INA). In order to determine what constitutes a ``specialty occupation,'' consular officers abroad will be guided by, and will apply, regulatory criteria already developed by the Department of Homeland Security for the H-1B classification.

Is It Necessary To File a Petition With the Department of Homeland Security as a Prerequisite to Visa Issuance?

No petition to the Department of Homeland Security is necessary. Instead, in the case of an employee seeking a visa, the employee will present the necessary evidence for classification directly to the consular officer at the time of visa application. Such evidence will include the original or copy of the Labor Condition Application signed by the prospective employer and approved by the Department of Labor. Procedures for the E-3 visa are similar to those established for obtaining H-1B1 classification under the U.S.-Chile and U.S.-Singapore Free Trade Agreements.

May Spouses Work?

Yes. INA 214(e)(6) permits the spouse of a principal E nonimmigrant to engage in employment in the United States. As is the case for the spouse of a principal E-1 and E-2 nonimmigrant, the spouse of a qualified E-3 nonimmigrant may, upon admission to the United States, apply for an employment authorization document, which an employer could use to verify the spouse's employment eligibility. Such spousal employment may be in a position other than a specialty occupation.

Regulatory Findings

Administrative Procedure Act

This final rule involves a foreign affairs function of the United States and, therefore, is not subject to the procedures required by 5 U.S.C. 553 and 554. It is exempt from review under Executive Order 12866 but has been reviewed internally by the Department to ensure consistency with the purposes thereof. This rule does not require analysis under the Regulatory Flexibility Act or the Unfunded Mandates Reform Act. It has been found not to be a major rule within the meaning of the Small Business Regulatory Enforcement Fairness Act of 1996. It will not have substantial direct effects on the States, the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this rule does not have sufficient federalism implications to warrant application of consultation provisions of Executive Orders 12372 and 13132. This rule does not impose any new reporting or recordkeeping requirements subject to the Paperwork Reduction Act, 44 U.S.C. Chapter 35.

Regulatory Flexibility Act/Executive Order 13272: Small Business

This rule is not subject to the notice-and-comment rulemaking provisions of the Administrative Procedure Act or any other act, and, accordingly it does not require analysis under the Regulatory Flexibility Act (5 U.S.C. 601, et seq.) and Executive Order 13272, section 3(b).

The Unfunded Mandates Reform Act of 1995

Section 202 of the Unfunded Mandates Reform Act of 1995 (UFMA), Pub. L. 104-4, 109 Stat. 48, 2 U.S.C. 1532, generally requires agencies to prepare a statement before proposing any rule that may result in an annual expenditure of $100 million or more by State, local, or tribal governments, or by the private sector. This rule will not result in any such expenditure, nor will it significantly or uniquely affect small governments.

The Small Business Regulatory Enforcement Fairness Act of 1996

This rule is not a major rule as defined by 5 U.S.C. 804, for purposes of congressional review of agency rulemaking under the Small Business Regulatory Enforcement Fairness Act of 1996, Public Law 104- 121. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or adverse effects on competition, employment, investment, productivity, innovation, or the ability of United States-based companies to compete with foreign based companies in domestic and import markets.

Executive Order 12866

The Department of State has reviewed this proposed rule to ensure its consistency with the regulatory philosophy and principles set forth in Executive Order 12866 and has determined that the benefits of the proposed regulation justify its costs. The Department does not consider the proposed rule to be an economically significant action within the scope of section 3(f)(1) of the Executive Order since it is not likely to have an annual effect on the economy of $100 million or more or to adversely affect in a material way the economy, a sector of the economy, competition, jobs, the environment, public health or safety, or state, local or tribal governments or communities.

Executive Orders 12372 and 13132: Federalism

This regulation will not have substantial direct effects on the States, on the relationship between the national government and the States, or the distribution of power and responsibilities among the various levels of government. Nor will the rule have federalism implications warranting the application of Executive Orders No. 12372 and No. 13132.

Paperwork Reduction Act

Applicants for E-3 visas will fill out forms that OMB has already approved, the DS-156 form (approved OMB 1405-0019) and the DS-157 form (approved OMB 1405-0134). A specialized form for E-3 applications may be developed in the future.

List of Subjects in 22 CFR Part 41

Immigration, Passports and visas.

PART 41--[AMENDED]

1. The authority citation for part 41 continues to read:

Authority: 8 U.S.C. 1104; Pub. L. 105-277, 112 Stat. 2681-795 through 2681-801.

Additional authority is derived from Section 104 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), PL-104-208, 110 Stat. 3546; as well as the Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief, 2005, P.L. 109-13, 119 Stat. 231.

2. Revise Sec. 41.51 to read as follows:

Sec. 41.51 Treaty trader, treaty investor, or treaty alien in a specialty occupation.

(a) Treaty trader. (1) Classification. An alien is classifiable as a nonimmigrant treaty trader (E-1) if the consular officer is satisfied that the alien qualifies under the provisions of INA 101(a)(15)(E)(i) and that the alien:

(i) Will be in the United States solely to carry on trade of a substantial nature, which is international in scope, either on the alien's behalf or as an employee of a foreign person or organization engaged in trade, principally between the United States and the foreign state of which the alien is a national, (consideration being given to any conditions in the country of which the alien is a national which may affect the alien's ability to carry on such substantial trade); and

(ii) Intends to depart from the United States upon the termination of E-1 status.

(2) Employee of treaty trader. An alien employee of a treaty trader may be classified E-1 if the employee is in or is coming to the United States to engage in duties of an executive or supervisory character, or, if employed in a lesser capacity, the employee has special qualifications that make the services to be rendered essential to the efficient operation of the enterprise. The employer must be:

(i) A person having the nationality of the treaty country, who is maintaining the status of treaty trader if in the United States or, if not in the United States, would be classifiable as a treaty trader; or

(ii) An organization at least 50% owned by persons having the nationality of the treaty country who are maintaining nonimmigrant treaty trader status if residing in the United States or, if not residing in the United States, who would be classifiable as treaty traders.

(3) Spouse and children of treaty trader. The spouse and children of a treaty trader accompanying or following to join the principal alien are entitled to the same classification as the principal alien. The nationality of a spouse or child of a treaty trader is not material to the classification of the spouse or child under the provisions of INA 101(a)(15)(E).

(4) Representative of foreign information media. Representatives of foreign information media shall first be considered for possible classification as non-immigrants under the provisions of INA 101(a)(15)(I), before consideration is given to their possible classification as treaty traders under the provisions of INA 101(a)(15)(E) and of this section.

(5) Treaty country. A treaty country is for purposes of this section a foreign state with which a qualifying Treaty of Friendship, Commerce, and Navigation or its equivalent exists with the United States. A treaty country includes a foreign state that is accorded treaty visa privileges under INA 101(a)(15)(E) by specific legislation (other than the INA).

(6) Nationality of the treaty country. The authorities of the foreign state of which the alien claims nationality determine the nationality of an individual treaty trader. In the case of an organization, ownership must be traced as best as is practicable to the individuals who ultimately own the organization.

(7) Trade. The term ``trade'' as used in this section means the existing international exchange of items of trade for consideration between the United States and the treaty country. Existing trade includes successfully negotiated contracts binding upon the parties that call for the immediate exchange of items of trade. This exchange must be traceable and identifiable. Title to the trade item must pass from one treaty party to the other.

(8) Item of trade. Items that qualify for trade within these provisions include but are not limited to goods, services, technology, monies, international banking, insurance, transportation, tourism, communications, and some news gathering activities.

(9) Substantial trade. Substantial trade for the purposes of this section entails the quantum of trade sufficient to ensure a continuous flow of trade items between the United States and the treaty country. This continuous flow contemplates numerous exchanges over time rather than a single transaction, regardless of the monetary value. Although the monetary value of the trade item being exchanged is a relevant consideration, greater weight is given to more numerous exchanges of larger value. In the case of smaller businesses, an income derived from the value of numerous transactions that is sufficient to support the treaty trader and his or her family constitutes a favorable factor in assessing the existence of substantial trade.

(10) Principal trade. Trade shall be considered to be principal trade between the United States and the treaty country when over 50% of the volume of international trade of the treaty trader is conducted between the United States and the treaty country of the treaty trader's nationality.

(11) Executive or supervisory character. The executive or supervisory element of the employee's position must be a principal and primary function of the position and not an incidental or collateral function. Executive and/or supervisory duties grant the employee ultimate control and responsibility for the enterprise's overall operation or a major component thereof.

(i) An executive position provides the employee great authority to determine policy of and direction for the enterprise.

(ii) A position primarily of supervisory character grants the employee supervisory responsibility for a significant proportion of an enterprise's operations and does not generally involve the direct supervision of low-level employees.

(12) Special qualifications. Special qualifications are those skills and/or aptitudes that an employee in a lesser capacity brings to a position or role that are essential to the successful or efficient operation of the enterprise.

(i) The essential nature of the alien's skills to the employing firm is determined by assessing the degree of proven expertise of the alien in the area of operations involved, the uniqueness of the specific skill or aptitude, the length of experience and/or training with the firm, the period of training or other experience necessary to perform effectively the projected duties, and the salary the special qualifications can command. The question of special skills and qualifications must be determined by assessing the circumstances on a case-by-case basis.

(ii) Whether the special qualifications are essential will be assessed in light of all circumstances at the time of each visa application on a case-by-case basis. A skill that is unique at one point may become commonplace at a later date. Skills required to start up an enterprise may no longer be essential after initial operations are complete and are running smoothly. Some skills are essential only in the short-term for the training of locally hired employees. Long- term essentiality might, however, be established in connection with continuous activities in such areas as product improvement, quality control, or the provision of a service not generally available in the United States.

(13) Labor disputes. Citizens of Canada or Mexico shall not be entitled to classification under this section if the Attorney General and the Secretary of Labor have certified that:

(i) There is in progress a strike or lockout in the course of a labor dispute in the occupational classification at the place or intended place of employment; and

(ii) The alien has failed to establish that the alien's entry will not affect adversely the settlement of the strike or lockout or the employment of any person who is involved in the strike or lockout.

(b) Treaty investor. (1) Classification. An alien is classifiable as a nonimmigrant treaty investor (E'2) if the consular officer is satisfied that the alien qualifies under the provisions of INA 101(a)(15)(E)(ii) and that the alien:

(i) Has invested or is actively in the process of investing a substantial amount of capital in bona fide enterprise in the United States, as distinct from a relatively small amount of capital in a marginal enterprise solely for the purpose of earning a living; and

(ii) Is seeking entry solely to develop and direct the enterprise; and

(iii) Intends to depart from the United States upon the termination of E'2 status.

(2) Employee of treaty investor. An alien employee of a treaty investor may be classified E-2 if the employee is in or is coming to the United States to engage in duties of an executive or supervisory character, or, if employed in a lesser capacity, the employee has special qualifications that make the services to be rendered essential to the efficient operation of the enterprise. The employer must be:

(i) A person having the nationality of the treaty country, who is maintaining the status of treaty investor if in the United States or, if not in the United States, who would be classifiable as a treaty investor; or

(ii) An organization at least 50% owned by persons having the nationality of the treaty country who are maintaining nonimmigrant treaty investor status if residing in the United States or, if not residing in the United States, who would be classifiable as treaty investors.

(3) Spouse and children of treaty investor. The spouse and children of a treaty investor accompanying or following to join the principal alien are entitled to the same classification as the principal alien. The nationality of a spouse or child of a treaty investor is not material to the classification of the spouse or child under the provisions of INA 101(a)(15)(E).

(4) Representative of foreign information media. Representatives of foreign information media shall first be considered for possible classification as non-immigrants under the provisions of INA 101(a)(15)(I), before consideration is given to their possible classification as non-immigrants under the provisions of INA 101(a)(15)(E) and of this section.

(5) Treaty country. A treaty country is for purposes of this section a foreign state with which a qualifying Treaty of Friendship, Commerce, and Navigation or its equivalent exists with the United States. A treaty country includes a foreign state that is accorded treaty visa privileges under INA 101(a)(15)(E) by specific legislation (other than the INA).

(6) Nationality of the treaty country. The authorities of the foreign state of which the alien claims nationality determine the nationality of an individual treaty investor. In the case of an organization, ownership must be traced as best as is practicable to the individuals who ultimately own the organization.

(7) Investment. Investment means the treaty investor's placing of capital, including funds and other assets, at risk in the commercial sense with the objective of generating a profit. The treaty investor must be in possession of and have control over the capital invested or being invested. The capital must be subject to partial or total loss if investment fortunes reverse. Such investment capital must be the investor's unsecured personal business capital or capital secured by personal assets. Capital in the process of being invested or that has been invested must be irrevocably committed to the enterprise. The alien has the burden of establishing such irrevocable commitment given to the particular circumstances of each case. The alien may use any legal mechanism available, such as by placing invested funds in escrow pending visa issuance, that would not only irrevocably commit funds to the enterprise but that might also extend some personal liability protection to the treaty investor.

(8) Bona fide enterprise. The enterprise must be a real and active commercial or entrepreneurial undertaking, producing some service or commodity for profit and must meet applicable legal requirements for doing business in the particular jurisdiction in the United States.

(9) Substantial amount of capital. A substantial amount of capital constitutes that amount that is:

(i)(A) Substantial in the proportional sense, i.e., in relationship to the total cost of either purchasing an established enterprise or creating the type of enterprise under consideration;

(B) Sufficient to ensure the treaty investor's financial commitment to the successful operation of the enterprise; and

(C) Of a magnitude to support the likelihood that the treaty investor will successfully develop and direct the enterprise.

(ii) Whether an amount of capital is substantial in the proportionality sense is understood in terms of an inverted sliding scale; i.e., the lower the total cost of the enterprise, the higher, proportionately, the investment must be to meet these criteria.

(10) Marginal enterprise. A marginal enterprise is an enterprise that does not have the present or future capacity to generate more than enough income to provide a minimal living for the treaty investor and his or her family. An enterprise that does not have the capacity to generate such income but that has a present or future capacity to make a significant economic contribution is not a marginal enterprise. The projected future capacity should generally be realizable within five years from the date the alien commences normal business activity of the enterprise.

(11) Solely to develop and direct. The business or individual treaty investor does or will develop and direct the enterprise by controlling the enterprise through ownership of at least 50% of the business, by possessing operational control through a managerial position or other corporate device, or by other means.

(12) Executive or supervisory character. The executive or supervisory element of the employee's position must be a principal and primary function of the position and not an incidental or collateral function. Executive and/or supervisory duties grant the employee ultimate control and responsibility for the enterprise's overall operation or a major component thereof.

(i) An executive position provides the employee great authority to determine policy of and direction for the enterprise.

(ii) A position primarily of supervisory character grants the employee supervisory responsibility for a significant proportion of an enterprise's operations and does not generally involve the direct supervision of low-level employees.

(13) Special qualifications. Special qualifications are those skills and/or aptitudes that an employee in a lesser capacity brings to a position or role that are essential to the successful or efficient operation of the enterprise.

(i) The essential nature of the alien's skills to the employing firm is determined by assessing the degree of proven expertise of the alien in the area of operations involved, the uniqueness of the specific skill or aptitude, the length of experience and/or training with the firm, the period of training or other experience necessary to perform effectively the projected duties, and the salary the special qualifications can command. The question of special skills and qualifications must be determined by assessing the circumstances on a case-by-case basis.

(ii) Whether the special qualifications are essential will be assessed in light of all circumstances at the time of each visa application on a case-by-case basis. A skill that is unique at one point may become commonplace at a later date. Skills required to start up an enterprise may no longer be essential after initial operations are complete and are running smoothly. Some skills are essential only in the short-term for the training of locally hired employees. Long- term essentiality might, however, be established in connection with continuous activities in such areas as product improvement, quality control, or the provision of a service not generally available in the United States.

(14) Labor disputes. Citizens of Canada or Mexico shall not be entitled to classification under this section if the Attorney General and the Secretary of Labor have certified that:

(i) There is in progress a strike or lockout in the course of a labor dispute in the occupational classification at the place or intended place of employment; and

(ii) The alien has failed to establish that the alien's entry will not affect adversely the settlement of the strike or lockout or the employment of any person who is involved in the strike or lockout.

(c) Nonimmigrant E-3 treaty aliens in specialty occupations. (1) Classification. An alien is classifiable as a nonimmigrant treaty alien in a specialty occupation if the consular officer is satisfied that the alien qualifies under the provisions of INA 101(a)(15)(E)(iii) and that the alien:

(i) Possesses the nationality of the country statutorily designated for treaty aliens in specialty occupation status;

(ii) Satisfies the requirements of INA 214(i)(1) and the corresponding regulations defining specialty occupation promulgated by the Department of Homeland Security;

(iii) Presents to a consular officer a copy of the Labor Condition Application signed by the employer and approved by the Department of Labor, and meeting the attestation requirements of INA Section 212(t)(1);

(iv) Presents to a consular officer evidence of the alien's academic or other qualifying credentials as required under INA 214(i)(1), and a job offer letter or other documentation from the employer establishing that upon entry into the United States the applicant will be engaged in qualifying work in a specialty occupation, as defined in paragraph (c)(1)(ii) of this section, and that the alien will be paid the actual or prevailing wage referred to in INA 212(t)(1);

(v) Has a visa number allocated under INA 214(g)(11)(B); and,

(vi) Intends to depart upon the termination of E-3 status.

(2) Spouse and children of treaty alien in a specialty occupation. The spouse and children of a treaty alien in a specialty occupation accompanying or following to join the principal alien are, if otherwise admissible, entitled to the same classification as the principal alien. A spouse or child of a principal E-3 treaty alien need not have the same nationality as the principal in order to be classifiable under the provisions of INA 101(a)(15)(E). Spouses and children of E-3 principals are not subject to the numerical limitations of INA 214(g)(11)(B).

Dated: July 14, 2005.
Maura Harty,
Assistant Secretary for Consular Affairs, Department of State.
[FR Doc. 05-17622 Filed 9-1-05; 8:45 am]

BILLING CODE 4710-06-P

Posted by VisaLawyer at 07:18 AM | Comments (0)

September 06, 2005

FAQ; Chile H-1B1

Free Question: Vivo en Chile he trabajado para una empresa de US, y necesito reinsertarme en ese campo laboral como un Internal Auditor. Todas mis postulaciones han fallado por no tener una visa para trabajar alla. Necesito urgente la visa y si me dieran mas informacion para la visa de los profesionales de Chile.

REPUESTA GRATIS: Ya se puede aplicar por una visa H-1B1 de Chile, primero tendrá que conseguir una oferta de trabajo con: una universidad o escuela, una corporación o compañía sin fines de lucro, o en el gobierno estadounidense. Una visa H-1B1 se puede conseguir en menos de 15 días si usted aplica usando el sistema de “Premium Processing” o Procesamiento Rápido. Busque una oferta de trabajo en la cual usted pueda poner en práctica su carrera o estudios universitarios. La compañía firmará los papeles de la visa H-1B por parte del trabajador. Para recibir la Residencia Permanente o la “Tarjeta Verde”, se debe aplicar por una certificación de labor. Mi sistema del Internet está diseñado para procesar casos de una manera muy rápida y eficaz. Después de que usted haya conseguido una oferta de trabajo, mi oficina puede ayudarle a conseguir la visa H-1B1. Regularmente los abogados no ayudan a buscar ofertas de trabajo, usted puede hacerlo en las siguientes páginas de Internet: http://www.job-hunt.org; http://www.monster.com; http:/www.dice.com; http://whohasjobs.com; http://www.latpro.com; http://hotjobs.yahoo.com/; http://www.ajb.dni.us/; http://www.Tennessean.com/; http://www.nashvillechamber.com/

Posted by VisaLawyer at 12:30 PM | Comments (0)

September 05, 2005

FAQ; adjustment interview; husband US Army- active duty

Free Question: I am married with a US citizen for almost 2 years. He is currently deployed to Iraq, because he is a member of the US Army- active duty. The interview was scheduled for October 18, 2005? Do you think they will allow me to go alone for the interview and do I have to take any documents that show that he is deployed?

Free Answer: Last week one of my clients with a case just like yours was approved for adjustment of status. My office prepared all the necessary papers for the interview. At the

Posted by VisaLawyer at 08:53 AM | Comments (0)

September 04, 2005

Oppose Border Vigilantes

Representative John Culberson (R-TX) has introduced a bill, the so-called Border Protection Corps Act (H.R. 3622), that would allow governors to establish citizen militias to patrol our international borders. Although these amateur militias would lack the training and resources of federal agents, this unrealistic measure would authorize them to use force against people they believe to be undocumented immigrants. Send a letter urging your Representative to oppose H.R. 3622, which invites dangerous vigilantis

Posted by VisaLawyer at 11:25 AM | Comments (0)

September 03, 2005

Here's Your Challenge: Send More Letters Than Our Opposition in Support of Comprehensive and Realistic Reform

When your Senators and Representative return from the August recess on Tuesday, make sure your letters supporting comprehensive reform start pouring in. The opposition is gearing up for a fight, so Congress needs to hear from you! Urge your Senators and Representative to support the Secure America and Orderly Immigration Act (S. 1033/H.R. 2330) because it offers a realistic solution to a complex problem. Click here to send a letter: http://capwiz.com/aila2/mail/oneclick_compose/?alertid=7614761

Posted by VisaLawyer at 11:23 AM | Comments (0)

September 02, 2005

H-1B Numbers for U.S. Masters Graduates Remain

USCIS HQ has confirmed to AILA that, despite rumors to the contrary, H-1B numbers remain for both fiscal 2005 and 2006 for graduates of U.S. masters or above programs. Please remember that, for fiscal 2005 numbers (i.e., a start date earlier than 10/1/05), the petition should be filed at the special address at the Vermont Service Center.

Posted by VisaLawyer at 07:48 PM | Comments (0)

September 01, 2005

Kiplinger Newsletter online poll: skilled foreign workers?

Go and vote on the Kiplinger Newsletter features an online poll that asks: Should Congress allow more skilled foreign workers into the U.S.? Yes, no, or not sure are the possible replies. Here is the link to the poll: http://www.kiplingerforecasts.com/
Thanks for your vote.

Posted by VisaLawyer at 07:00 PM | Comments (0)