Questions & Answers from CIS Ombudsman's Teleconference
These are a compilation of questions callers posed during a recent CIS Ombudsman Community Call-in Teleconference on Temporary Worker Visas (H, L, O, and P), as well as selected follow-up questions received by email. Some questions include USCIS’ responses.
1. Basic Company Qualifications for L - A caller indicated that there is nothing on the USCIS website to indicate what qualifies a company to file for this visa on behalf of someone, e.g., how big, revenue, etc.
2. H-2B Visas. New Workers Not Under Exemption - A caller said that her company uses 300 international workers each year - 280 on H-2B visas, including 160 returning this year. The question is what changes might result from the exemption next year, i.e., new workers not under exemption. She was trying to figure out her company's strategy for next year. She received conflicting info from different sites for second year returning/working individuals.
3. Reactivation of Bi-specialization for I-129s - The caller mentioned concerns about differences in adjudication at different SCs.
4. Mail Pick-up - The caller asked if there will be someone at the SCs to collect mail this Saturday, if the mail is sent overnight on Friday, or whether it would be in the queue for Monday. Recommendation - We recommend that USCIS put something on their website to clarify this.
5. Travel for H-1B Cap Cases – A caller mentioned the situation where there is travel by people on F or L status who might be traveling overseas during the pendency of their H-1B adjudication, or after that and Oct 1. This raises the issue of pre-conceived intent from F1 students. If the employer files the H-1B to take effect on Oct 1, unless they do premium processing, they will be tied to the U.S. It would be helpful if USCIS could provide guidance on this. (see also questions below)
6. Recent L Denials - The caller mentioned that USCIS is reading the regulation too narrowly on the definition of "managerial" at the VSC and CSC. USCIS is requiring managers to supervise other managers or professionals, but the language reads differently. She tried to clarify by putting regulation in L visa submitted, but it did not work.
7. Best practice - The decoupling of H1, H4, L1, and L2 visas has worked really well.
8. Recommendation:- The caller suggested that the H-4s have the possibility to work, as what happens in other countries.
9. Return of Applications on H-2B Filings - the caller asked how quickly applications will be returned on those for which the H-2B cap was already met. These are cases sent to the VSC. She wants to be able to file for cap exempt workers. Recommendation - the caller suggested USCIS use the Federal Express enveloped enclosed. USCIS should return the application no matter what the outcome via the enclosed envelope.
10. Labor Cert Denials for H-2Bs - The caller indicated that there is a very high rate of labor cert denials from Atlanta and Philadelphia processing centers. The caller would like them to look at appeal petitions with a fresh look due to new DOL regulations, particularly at the CSC. This would be helpful to temporary employers. Best practice - USCIS is stepping up to the plate at VSC in trying to review appeal petitions.
11. Bump Ups to AAOs - The caller mentioned that the VSC has been certifying H2Bs to the AAO on its own and without a USCIS decision. Would it be possible to explain this process? The caller mentioned that he filed several petitions for different positions, all seasonal- of the 13 filed, 8 had different responses - denials, approvals, RFEs, AAO, etc.
12. O Visas - A caller mentioned that there are different opinions as to what works in different SCs. Can USCIS publish info on examples of cases they might approve?
13. RFEs - A caller said that RFEs are often boilerplate and it appears that nobody has read the application. She sent two identical Ls for the same company - one got approved and one got an RFE; they were identical.
14. Best Practice - The caller mentioned that some officers pick up the phone and just call the person to ask them to provide information that was forgotten. This occurred particularly with officers at the NSC and TSC.
15. Additional Officers re Premium Processing? - A caller asked if extra officers are assigned to deal with premium processing re the April 1 deadline.
16. Concerns re Preferences Issued This Week - The caller asked if there are going to be issues with the mailroom this week, if applicants do not following stated preferences in submissions.
17. Numbers Without Premium - The caller asked if you could get a number for the cap without premium processing.
18. L Visa Processing - The caller asked if USCIS has a provision to process L visas in 30 days and would the processing be affected by the H surge.
19. Questions from a participant: I had a question that I asked to be passed on to the USCIS concerning international travel for individuals applying for COS to H-1B with a 10/1/07 start date. Where the bene is on an F-1 with practical training and wants to travel, they will be reentering with intent to COS to H-1B on 10/1/07, which would be a problem for CBP, right? This means that the F-1 is relegated to consular processing, correct?
Questioner: With an H-1B cap bene, where he/she is in the USA on another visa classification (other than the H-1B visa) and is the beneficiary of a petition to change status from a non-H-1B classification to H-1B, he/she should not travel outside the USA until the petition is approved, which may take 3-6 months, or more. If international travel is necessary, we are recommending either filing the petition using "premium processing" or that the approval be cabled. Is there a way to soften the rules or clarify them so that the COS will not be abandoned if the international travel occurs while the COS is pending, as long as the return is prior to the start date (10/1/07).
Questioner: If a foreign national employee is presently in the USA on a valid L-1 or TN visa and we are processing a change of status to H-1B visa that will take effect on 10/1/07, is it correct that the current USCIS rules (based on the Regs and Memos) state that if that person leaves the USA while the petition is pending with the CIS (prior to a decision being rendered), he/she automatically abandons the request for the change of status to the H-1B visa?
Questioner: In these cases, and because the H-1B visa cannot take effect until 10/1/07, the individual would have to depart the USA again after the H-1B visa petition is approved (late September or after 10/1/07), make an appointment an go to an American Consulate overseas to have the H-1B visa stamped into his/her passport (if a Canadian citizen, would have to go to a port-of-entry), and re-enter the USA on the H-1B visa for him/her to be legally and properly in the USA, correct?
Questioner: The other alternatives would be to advise the bene NOT to travel internationally until after 10/1/07 when they will have changed over to H-1B status; travel internationally and get the H-1B visa stamped in their passports with a return date within 10 days prior to 10/1/07 or thereafter, right?
Questioner: Am I correct in understanding that if they travel internationally, they cannot return on the NEW H-1B visa stamp until 10 days prior to October 1, 2007, at the earliest and would not be eligible to work on the H-1B until 10/1/07?
This page was last modified on April 11, 2007