DOL Issues Round 7 FAQs on H-2A Final Rule
The Department of Labor has posted new FAQs for the H-2A program. Topics include signatures, job preferences, and fees. These FAQs are available here.
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DOL Updates H-2A Prevailing Wage Rates for Sheepherding/Goatherding Occupations
On January 8, 2013, the Department published a notice in the Federal Register establishing new 2013 prevailing wage rates for certain occupations processed under H-2A special procedures, including for sheepherding/goatherding and open range production of livestock occupations which became effective immediately. See, 78 FR 1260 (Jan. 8, 2013). The Department is hereby updating prevailing wage rates for these occupations that must be offered and paid in certain states effective as of January 8, 2013.
DOL Issues FAQs on H-2A Final Rule (Round 8)
The Department of Labor has posted new FAQs for the H-2A program. Topics include custom combine activities, housing inspections, filing an application, rates of pay, reimbursable costs, surety bonds, and recruitment.
These FAQs are available here.
Visa denial based upon immigrant intent, Section 214(b) of Immigration and Nationality Act
Nonimmigrant Visas
Immigration Law
Substantial transcription for video
Substantial transcription:
7th July 2012 at 05:16 PM
9.59 Minutes
What do we do when our visa gets denied under section 214(b) of the Immigration and Nationality Act? Basically, this means that if the consulate doesn’t believe you are going to come back, they deny the visa, saying that you have an immigrant intent which you have not been able to rebut. So the idea is whenever somebody goes for a visa stamping, they actually are presumed to have immigrant intent unless they prove otherwise. Of all the visas A, B, C, D, E, F, G, H all the way to V, some visas are immune to this problem.
What are the visas that are immune?
H-1 as well as H-4, L-1 as well as L-2, and O-1 and O-1 derivative visas are immune by law almost. H and L are clearly immune by law and O by implication. With these visas, if you have a green card going, the consulate is not going to deny your visa for that reason.
On the other hand, there are notorious visas that are very susceptible to this problem:
B-1, B-2, F-1 as well as F-2 (which are for students), and J-1 as well as J-2 are susceptible. A lot of physicians on J-1’s have had a visa denial on 214(b).
TN visa holders strictly not going for visa stamping but can be stopped at the border if their green card has been filed. So bear in mind that when TN holders apply for a green card, they should be careful about this particular factor.
The biggest problem with 214(b) is it is extremely difficult to fight it. I have recently taken a case in which an F visa was denied on 214(b), and I think we have a fighting chance because the visa applicant has come to the U.S. many times and she has left within her time permitted. So she’s been a frequent traveler on a B visa. Her F visa denial is extremely unjustified, in my opinion.
Let me just very quickly go through the visa alphabets.
A visa (diplomats) will have no problem. They have no issues of a green card being denied.
B visa will have a problem.
C, D, and E visas will usually not have a problem.
The only thing you have to establish for E-3, especially for Australians (E-3 is kind of equivalent of H-1), is that you do have an intention to come back but not to the same degree. In other words, if you have a home in Australia, the degree of proof is not very high so it is very easy to meet that degree of proof.
G visa is ok.
H visa is ok.
By the way, H-2B visas can have a major problem with immigrant intent. These are people who are coming to U.S. for to perform skilled labor.
I, which is international journalists/media representatives, may or may not be ok.
J visa will definitely be a problem.
K -1 and K-3 are no problem because they are fiancés or spouses of U.S. citizens and are obviously meant to go into green card.
L visa is no problem.
M, which is folks who are doing vocational training, can have this problem.
P visa (performers, athletes, etc.) can have a problem but usually won’t.
Q visa (exchange visitors) can have a problem.
R visa usually won’t.
S, T, and U visas won’t usually have a problem because they are done within the USA and are usually either victims of crime or people who are assisting in criminal investigations.
So what do you do if you get a 214(b) denial?
Normally there isn’t much we can do but, if you have been to USA before or else there is something unique in your case, we can ask the consulate to reconsider and if they are not willing and able, then we can ask the visa office in Washington, D.C. to intervene. You can also contact your family or employer in the U.S. to contact the local Congressmen to seek their intervention. This typically is not helpful but you can try. If anybody from the bar or a lawyer tells you he or she can fix it, be mindful because they may not be able to. Especially be careful when you talk with lawyers in your own country. This makes me very nervous because we have had some cases where local lawyers in other countries did some strange stuff. They had some hook ups with consulates and ultimately got caught.
The biggest problem is with fraud or misrepresentation. If you make a misrepresentation in attempting to get any immigration benefit, you can be barred from entering USA forever.
Going back to 214(b) denials, you can ask the consulate to reconsider. Reapply if you have a case that begs for a special consideration, like you’ve been to the U.S. many times. For example, one of my friends asked me that, if his girlfriend is refused a B visa, is it okay to bring the lady in on a K-1 (fiancé visa)? My take is do not use the fiancé visa in lieu of B-1 or B-2 visa, because if you do not have the intention to get married, the government can consider it to be fraud. So make sure you want to get married within 90 days after they enter the U.S.
One more point -- there is a legal fiction created in U.S. immigration law about ties to your home country that says you can overcome 214(b) denial if you have ties to your home country. That in my mind is a legal fiction. To demonstrate ties is very difficult. Of course, if you have family in your home country, that’s a good example of ties but to say you have property, but property can be sold, so I don’t think that’s really ties. Having business is also not really a tie as a business can be sold. Hence demonstrating ties to your home country is usually a difficult thing to do.
This issue has come up several times recently. Feel free to ask me specific questions on the website, in a forum, or on a community conference call.
DOL Announces Record Settlement In H-2A Violation Case
US Department of Labor reaches agreement resulting in more than $2.3 million in back wages to temporary foreign agricultural workers
Agreement provides record back wage amount for H-2A program, plus $500,000 penalty
SACRAMENTO, Calif. — Yerington, Nev.-based onion grower Peri & Sons has agreed to pay a record total of $2,338,700 in back wages to 1,365 workers, along with a civil money penalty of $500,000, for violations under the H-2A program.
The Chicago National Processing Center has moved to New Address
The Chicago National Processing Center (CNPC) has a new address. Beginning on August 2, 2012, please direct your hard copy filings for the D-1, H-2A and H-2B programs to the CNPC's new addresses provided below. Please note that the CNPC move does not affect the electronic filing of LCAs but any employer with permission to file by hard copy should direct its LCA filing(s) to the new address.
Please also remember to direct your payments of H-2A labor certification fees to the new P.O. Box address (also listed below).
DOL Online Resource Page on H-2A & H-2B Electronic Filing System
The Department is announcing the implementation of electronic filing in the H-2A and H-2B visa programs through the Department's iCERT Visa Portal System. We believe this new electronic filing capability will enhance the accessibility and quality of labor certification services, reduce the data collection and reporting burden on small employers, facilitate more streamlined business processes, and establish greater transparency in the Department's decisions.
DOL Fact Sheet on H-2A Electronic Filing System
- DOL fact sheet on a new web-based tool that will re-engineer the processing of H-2A applications filed by U.S. farmers, ranchers, and associations of agricultural producers through the iCERT Visa Portal System beginning on December 10, 2012.
- Please check the attached file to read the fact sheet
DOL Fact Sheet on H-2B Electronic Filing System
The Department is in the process of implementing electronic filing in the H-2B programs through the iCERT Visa Portal System. This page will contain information related to the implementation of electronic filing in the H-2B programs, including technical details about accessing four training webinar sessions.
Please check the attachment to read the H-2 B Fact Sheet.
USCIS Temporarily Suspends the Use of VIBE in the H-2A Program, Offers H-2A Checklist and Q&A
Due to the time-sensitive nature of agricultural work, U.S. Citizenship and Immigration Services (USCIS) expedites all H-2A “temporary or seasonal agricultural worker” petitions. However, some recent H-2A petitions have experienced unexpected delays due to Requests for Evidence (RFEs) resulting from the use of the Validation Instrument for Business Enterprises (VIBE).
DOL Releases Training and Employment Guidance Letter (TEGL) On Many H-2A Program
DOL releases Training and Employment Guidance Letter (TEGL) on various topics, please check attachments for detail information.
DOL Issues Prevailing Wage Update for H-2B
The Department, in anticipation of the enactment of H.J.Res 117, which prohibits the Department from expending funds to implement the 2011 H-2B Wage Rule for the duration of that Continuing Resolution, will publish in the Federal Register a Final Rule extending the effective date of the 2011 Wage Rule to March 27, 2013.The Final Rule is posted on the Federal Register's web site September 28, 2012 and it is accessible here.
USCIS Announces New Filing Option For Canadian TN Visa Seekers
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Canadian TN Nonimmigrants
On Oct. 1, 2012, USCIS will begin accepting the Form I-129, Petition for Nonimmigrant Worker, filed on behalf of Canadian citizens who are outside the United States and seeking classification as a TN nonimmigrant.
With respect to the TN classification, USCIS currently only accepts Form I-129 in connection with a request to extend a TN nonimmigrant’s stay or to change a nonimmigrant’s status to TN.
DOL FAQs on New Electronic Filing System for H-2B & H-2A Programs
The Department has posted the first round of Frequently Asked Questions (FAQs) addressing the implementation of electronic filing in the H-2B and H-2A labor certification programs through the Department's iCERT Visa Portal System. The FAQs are largely based on questions received from participants in the four webinar training sessions conducted by the Office of Foreign Labor Certification, and are published to assist program users in navigating electronic filing in the H-2B and H-2A programs.
DOL Notice on H-2A Program: 2013 Allowable Meal Charges and Travel Subsistence
The Department has published in the Federal Register a notice establishing the 2013 allowable meal charges and maximum travel subsistence reimbursement amounts. The 2013 allowable charge for providing three meals a day is set at $11.42 per day, although employers may petition the Chicago National Processing Center for a higher charge if justified by documentation of actual costs. Similarly, the 2013 minimum subsistence charge for meals during travel is set at $11.42 a day.
Recording for February 20, 2025, Conference Call with Rajiv S. Khanna
Immigration.com
Nonimmigrant Visas
Green Card
FAQs:
1. Can I volunteer with a Non-Profit while on any temporary visa (for example, F-1 OPT)?
2. Options after layoff on approved EB-1 - Compelling circumstances EAD and GC EAD conversion
3. NIW I-485 rejected: Refiling options and priority date usage?
USCIS Releases QAs On H-2A and H-2B -Signature Requirements For Labor Certifications
Introduction
USCIS, in consultation with DOL, prepared the following frequently asked questions and answers.
Questions & Answers
Temporary Labor Certifications
Q1. When does the U.S. Department of Labor (DOL) expect me to sign an electronically filed H-2A and H-2B temporary labor certification (TLC) application?
Update on Suspension of Adjudication of Most H-2B Petitions Following Court Order
As announced by USCIS on April 2, 2013, USCIS has temporarily suspended adjudication of certain Form I-129 H-2B petitions for temporary non-agricultural workers.
For more complete information, click here
Update on Suspension of Adjudication of Most H-2B Petitions Following Court Order
As announced by USCIS on April 2, 2013, USCIS has temporarily suspended adjudication of certain Form I-129 H-2B petitions for temporary non-agricultural workers while the government considers appropriate action in response to the Court order entered March 21, 2013 in Comite de Apoyo a los Trabajadores Agricolas et al v. Solis, 2:09-cv-00240-LDD (E.D. Pa).
What This Means for H-2B Employers
USCIS Temporarily Suspends Adjudication of Most H-2B Petitions
Effective March 22, U.S. Citizenship and Immigration Services (USCIS) is temporarily suspending adjudication of most Form I-129 H-2B petitions for temporary non-agricultural workers while the government considers appropriate action in response to the Court order entered March 21, 2013 in Comite de Apoyo a los Trabajadores Agricolas et al v. Solis, 2:09-cv-00240-LDD (E.D. Pa).
USCIS Resumes Adjudication of All H-2B Petitions Following Publication of Interim Final Rule
USCIS has resumed processing of all Form I-129 H-2B petitions for temporary non-agricultural workers. On March 22, 2013, USCIS temporarily suspended adjudication of most Form I-129, Petition for Nonimmigrant Worker, H-2B petitions while the government considered appropriate action in response to the Court order in Comite de Apoyo a los Trabajadores Agricolas et al
DOL Releases FAQs on Interim Final Rule on H-2B Wage Methodology
The Department of Labor is making available Frequently Asked Questions (FAQs) to assist filers with complying with the requirements of the joint Interim Final Rule. The FAQs address the applicability of the new prevailing wage methodology, employer wage obligations, requests for review and the processing of pending H-2B prevailing wage requests and H-2B applications for temporary labor certification.
To learn more, please read the FAQs.
DOL Announces H-2B Wage Methodology Interim Final Rule
The Department of Labor and the Department of Homeland Security are making available for public inspection a copy of the Interim Final Rule, Wage Methodology for the Temporary Non-Agricultural Employment H-2B Program, Part 2, to be published in the Federal Register on April 24, 2013. This Interim Final Rule, developed jointly by the Departments of Labor and Homeland Security, revises the prevailing wage methodology used by the Department of Labor to calculate certain prevailing wages paid to H-2B workers and U.S.
DOL Will Publish Final Rule in H-2B Program
On August 30, 2013, the Department of Labor (Department) will publish in the Federal Register a final rule to delay indefinitely the effective date of the Wage Methodology for the Temporary Non-Agricultural Employment H-2B Program final rule (2011 Wage Rule), which was published on January 19, 2011, 76 FR 3452.
H-2A and H-2B Ombudsman Customer Service On-line Survey
The OFLC Ombudsman is pleased to announce a new on-line survey intended to encourage stakeholder feedback on their experience with Ombudsman Program. Survey questions are designed to promote the enhancement of customer service and overall satisfaction with the Program. The survey is located on both the H-2A and H-2B Ombudsman webpages: H-2A Ombudsman Webpage H-2B Ombudsman Webpage