July 14th, 2009 at 10:39am
Under Immigration Law
Immigration Lawyers of Minnesota
Seasonal industries often find it difficult to find seasonal workers due to the short duration of the jobs and the tasks involved. This is where the H-2B visa category can help. Common industries that utilize the H2B program to supplement their workforce include, but are not limited to: nurseries, golf courses, carnivals and fairs, lawn and landscaping, resorts and hotels, tourist attractions, theme parks, and snow removal. But the H-2B visa program is not limited to any particular industry. However, the H-2B visa cannot be used for agricultural work.
H2b visas are also not limited to any particular country. Workers may come from Mexico, South Africa, China, Russia or any other country where they are located. In order to simplify the process and keep costs down, it is best to get all of the workers from the same location. If all of the workers are coming from the same place to do the same job, they may all be included on one petition.
Work Visa Application
Temporary Labor
The first criteria is that the need for the workers and the job must be seasonal; the employer cannot use the H-2B visa to fill an ongoing need. Almost all seasonal jobs, by definition, meet this criteria because the services or labor are traditionally tied to a season of the year by an event or pattern and is of a recurring nature.
Department of Labor
Before filing a petition with the immigration service – U.S. Citizenship & Immigration Services (USCIS), the employer must first get labor certification from the U.S. Department of Labor (DOL). This generally requires that the employer prove the seasonal nature of the job and that it cannot find any qualified and willing U.S. workers.
The procedure for getting certification changes almost yearly and therefore, it is recommended that you seek the assistance of an experienced H-2B immigration lawyer to advise on the current practices.
While it may seem obvious, it is nevertheless worth noting that the employer must be a U.S. company. There are instances in which foreign companies operate in the United States and it must be the U.S. entity that files the petition.
U.S. Citizenship & Immigration Services â USCIS
After DOL grants certification, the employer can petition USCIS for the H-2B visas. The proof required at this stage is somewhat duplicative with the process undertaken with DOL, but USCIS nevertheless must grant the petition before the visas can be issued.
U.S. Consulate / Embassy
If USCIS approves the H-2B petition, it will forward the case to the U.S. consulate where the temporary workers are located. The workers then go to the consulate to apply individually for their visas. It is helpful at this stage to use an agency in the foreign country familiar with the H-2B procedures at the consulate to assist in gathering the workers and applying for the visas.
How long can the workers stay in the United States?
H-2B
H2B
Work Visas/Temporary Work Visas
Labor Certification
H-1B
H-3 Trainee Visa
L-1 Employee Transfer Visa
Family Immigration
Fiance/K-1 Visas
Citizenship
Asylum
Why Visas Are Denied
Green Card Abandonment
How to Avoid Application Mistakes
Investor Visas
Stop Deportation
July 10th, 2009 at 12:19pm
Under Appeals and Writs
The Mandamus Actions. -A mandamus is a writ that is used to compel an administrative agency to act. For instance if your adjustment of status or your citizenship is pending for a long period of time, you can opt to file such an action. The Mandamus Act, Codified at 28 USC § 1361 says:
Action to compel and officer of the United States to perform his duty. The district courts shall have original jurisdiction of any action in the nature of mandamus to compel and officer or employee of the United States or agency thereof to perform a duty owed to the plaintiff.
The Mandamus Act authorizes the court to order a remedy. It does not provide independent, substantive grounds for a suit. In other words, what the court is going to determine the reasons why the decisions are pending not the outcome of the decision. Therefore by forcing the agency (e.g. the USCIS) to make a decision can also result in a denial. At that point appeals or motions to reopen can be timely filed. However this is not within the scope of this article. Remember, it is highly advisable to have an experienced licensed federal district court admitted attorney to handle your case.
In a mandamus action you as plaintiff (“plaintiff”) must demonstrate that:
You have a clear right to the relief requested;
Under the Mandamus Act, the court may compel the government to take action, but the court cannot compel the agency to exercise its discretion in a particular manner, nor can it grant the relief that the plaintiff seeks from the agency.
The above is just a brief analysis of using the Mandamus Act however, there are other factors that need to be considered before a person moves forward on a Mandamus action. Our office handles such cases, so please feel free to contact us on (510) 742 5887 for a consultation.
What to do if a naturalization (Citizenship) application is being stalled or delayed.
In a situation where you have already filed for your naturalization application, and passed the interview but you are waiting for your oath date, there is a better action than the Mandamus Action. Let us say, you took your Citizenship interview in January 2006 and you passed the test. You are told that the “FBI/Name Check” has not been completed. Patiently you wait. Months have passed and “your oath” date does not come up. You call the USCIS and they tell you, “you are pending for FBI/Name Check; unfortunately nothing can be done until finalization of this process”. What do you do next?
Under INA § 336(b), USC § 1447(b), specifically provides for judicial review for a stalled naturalization petition in these circumstances. It states as follows:
If there is a failure to make a determination under [INA] § 335 [8 USC § 1446] before the end of the 120-day period after the date on which the examination is conducted under such section, the applicant may apply to the United States District Court for the District in which the applicant resides for a hearing on the matter. Such court has jurisdiction over the matter and may either determine the matter or remand the matter, with appropriate instructions to the Service to determine the matter.
In other words, if your Naturalization application after the interview, which you passed, is pending for more than 120 days, you can seek judicial relief. The judicial relief can come in two forms:
Note that under this section of the law, the Federal Court retains jurisdiction on the case. This means only the Federal Judge can decide about your case and that USCIS has no right to make a decision on the case unless you allow them to do so.
Our office has successfully handled a number of such cases. Very often, the USCIS will comply and ask the attorney to dismiss the case through the US attorneys. Your attorney will dismiss the case provided they agree to confirm an oath date on your case.
The entire process above used to take few weeks to complete. However in December 2006, the USCIS issued a memo stating that there will be no FBI expedited name check. Now there are a lot of more struggles. Yet many of our cases have been completed within few months.
Therefore don’t desperate if your case is pending for a long time. We can still assist you achieve the dream of citizenship.
Should you want more information on the process, please do not hesitate to contact our office on 510.742.5887
The information contained in this article is provided for informational purposes only, and should not be construed as legal advice on any subject matter. No recipients of content from this article, clients or otherwise, should act or refrain from acting on the basis of any content included in the article without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from an attorney licensed in the recipient’s state.