Publications

April 2006

H.1B PETITIONS, FILINGS FOR 2007 FISCAL YEAR

For the next fiscal year that begins on October 1, 2006, to avoid delays in processing, the dates and places where the work is to be done must be listed, and that the applicant who is in the U.S. demonstrate that he/she has maintained lawful status. If an applicant is changing to a new employer proof will be required that the applicant did work for the original H.1B employer for the time for which the original employer petitioned.

BLANKET LABOR CERTIFICATIONS

This is a list prepared by the U.S. Department of Labor of occupations that have been determined that there are not sufficient U.S. workers who are able, willing, qualified and available and that the wages and working conditions of U.S. workers similarly employed will not be adversely affected by the employment of aliens in these occupations. This means that those aliens who qualify do not have to undergo the Labor Certification process to prove that there are no available and qualified workers who can perform the work they do.

Registered nurses, physical therapists, aliens of exceptional ability in the sciences or arts or in the performing arts qualify for this expedited processing procedure.
To apply under this blanket certification process (Schedule A) , a preference petition must be filed with the Immigration Service, an uncertified form issued by the Department of Labor must be filled out by and signed by the employer setting out the details of the job duties; and another by the employee (alien) setting forth a resume of qualifications, namely experience and education. A wage determination issued by the State Workforce Agency (SW) from the area where the job offer will be or where the employer’s headquarters are if the salary conditions derive from the headquarters or the job will be a roving one; and a copy of the notice that will be sent to the applicable collective bargaining unit or a copy of the notice posted with an affidavit of posting for not less than 10 consecutive business days within 30 to 180 days preceding the filing of the petition must be posted at the petitioning employer’s principal notice. Copies of all in house medic normally used by the employer for the recruitment of similar position must be posted and retained by the employer.

Evidence of the applicant alien’s special qualifications, educational and special experiential must be shown.

Registered nurses must submit a full and unrestricted permanent license to practice nursing in the state of intended employment, a CGFNS certificate issued by the Commission on Graduates or Foreign Nursing Schools; or evidence that the alien applicant has passed the National Council Licensure Examination for Registered Nurses (NCLFX-RN) administered by the National Council of State Boards of Nursing must be proved.

Physical Therapists need to prove they have a permanent license to practice in the state of intended employment or have a letter or statement signed by an authorized state physical therapy licensing official stating that the alien applicant is qualified to take the state’s written licensing examination for physical therapists.

For aliens of exceptional ability, evidence of widespread acclaim and international recognition accorded the alien by recognized experts in the alien’s field and evidence that the alien applicant’s prior and intended work requires exceptional ability.
The preference petition must also be submitted with a prevailing wage determination issued by the SWA for the proposed area where the job will be performed. The SWA form must reflect the date the wage determination was made, which must be not less than 90 days nor more than 1 year old and the preference petition filing must fall under this one year time frame to be valid. The preferred wage shall be 100% of the wage determined.

CANCELLATION OF REMOVAL

To apply for cancellation of Removal under INA Section 240 A (b); FU.S.CA Section. 1229 b (b), 2000, the Board of Immigration Appeals has recently decided that prior to the notice to appear only the 10 year continuous physical presence requirement be proved and the issue of qualifying relatives, hardships or good moral character need only be shown at the time of the hearing.

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New York Immigration Lawyers > Immigration Publications > April 2006