News
6/11/2010
H-1B Numbers Remain Available. On June 11, 2010, more than two months into the FY2011 H-1B filing season, U.S. Citizenship and Immigration Services (USCIS) reported having received to date approximately 22,200 H-1B petitions counting toward the 2011 H-1B annual cap of somewhat less than 65,000. Similarly, USCIS reported receipt of 9,400 petitions under the U.S. advanced degree cap of 20,000. We will continue to track the rate of H-1B usage, but for now it appears that H-1B petitions can continue to be filed for at least several more months.
Increased Fees for Visas and Future Increases for Immigration Benefits. The U.S. Department of State has announced that nonimmigrant visa application fees are increasing, effective June 4, 2010. Prior to June 4, the visa application fee for all nonimmigrant visa applications was $131. Now, rather than one visa application fee applicable to all nonimmigrant visa categories, there is a tiered system under which a higher fee is charged for visa categories that are more complex and require more in-depth consideration. Under the new fee schedule, applicants for B1/B2 (tourist and business visitor), F (students), and J (exchange visitors) visas will pay a visa application fee of $140. The fees for other nonimmigrant visa categories are:
- H, L, O, P, Q and R category visa: $150.00
- E category visa (treaty traders and investors): $390.00
- K category visa (fiancés of U.S. citizens): $350.00
Additional detail on these fee increases is available on the
Department
of State website. (NOTE: in addition to the visa application
fee, individuals applying for U.S. visas may have to pay a visa
issuance fee, depending on their country of origin. These visa
issuance fees are based on "reciprocity", meaning they
are based on what the applicant's country of origin charges a
U.S. citizen for a similar-type of visa. The amount of this "reciprocity"
fee varies depending on the applicant's nationality. Individuals
applying for a visa at a U.S. consulate or embassy abroad should
consult the Visa
Reciprocity Tables at the website of the U.S. State Department
to find out whether a visa issuance "reciprocity" fee
will apply to their application).
In addition to this State Department action, U.S. Citizenship
and Immigration Services (USCIS) is proposing to increase the
fees it charges for the many applications and petitions that are
filed with it, by an average of approximately 10 percent. Examples
of increases for commonly filed forms include an increase from
$475 to $580 for an Immigrant Petition for Alien Worker (Form
I-140); from $930 to $985 for an Application to Adjust Status
[to U.S. Permanent Resident] (Form I-485); from $305 to $360 for
an Application for Travel Document (Form I-131); and from $340
to $380 for an Application for Employment Authorization (Form
I-765).
4/15/2010
Visa Processing in Canada. The U.S. Department of State recently warned the American Immigration Lawyer's Association about difficulties individuals are likely to face when applying for visas at U.S. consulates in Canada if they are not Canadian. An individual applying for a U.S. visa in Canada who is not Canadian is referred to by the State Department as a third country national (TCN). The State Department has indicated that U.S. consulates in Canada are likely to refuse to issue an H-1B visa to a TCN if the individual's degree is not a U.S. or Canadian degree, unless the individual has previously been issued an H-1B visa in her or his home country. Similarly, the State Department discourages TCNs who last entered the U.S. in visitor status from applying for F, M, J, H or L visas at Canadian consular posts. Rather, the State Department encourages such applicants to return to their home countries for visa issuance.
3/15/2010
New Prevailing Wage Determination Process Can Slow PERM Preparation. In January, the U.S. Department of Labor (DOL) implemented a new centralized process which employers must use to apply for the prevailing wage determination that is a mandatory part of the PERM application process. The DOL is taking approximately 60 days to issue prevailing wage determinations under the new process, which is considerably longer that these determinations took under the old system. This 60-day delay means PERM applications will typically take an absolute minimum of four months to prepare. As a result, in cases where the PERM application needs to be filed quickly (for example, when the employee is nearing five years in H-1B status), it is even more important to begin the PERM process early.
2/25/2010
Increase in Random I-9 Audits. While announcing a half million dollar fine to the Cincinnati Poultry Company related specifically to Form I-9 violations, U.S. Immigration and Customs Enforcement (ICE) reminded employers that they have implemented a comprehensive strategy to reduce the demand for unauthorized employment by focusing their resources on auditing and investigating employers who are suspected of cultivating and hiring undocumented workers. In addition, ICE announced that they have also been increasing the number of random Form I-9 audits on all employers, regardless of size or industry. Cowan Miller & Lederman is available to assist in the evaluation of I-9 compliance in the event of an audit or at any point prior.
2/25/2010
New Government Memo on H-1B Employees Working at Third Party Worksites. The U.S. Consulate General in Vancouver, Canada has suspended visa services for the duration of the 2010 Winter On January 8, 2010, U.S. Citizenship and Immigration Services (USCIS) issued a new memorandum discussing the required "employer-employee relationship" between an H-1B employer and the H-1B worker. In particular, this memorandum focuses on H-1B workers who are placed at third-party worksites. It demonstrates that USCIS will be looking very closely at H-1B employers who place H-1B workers at third-party sites and will require these employers to prove that, despite the placement at a third-party site, the H-1B beneficiary is still their employee and not an employee of the third-party. The key factor that will be looked to in determining whether the necessary employer-employee relationship exists is whether the H-1B petitioning employer has the "right to control ... when, where, and how the beneficiary performs the job." In making this determination, USCIS will look at a number of factors, including whether the H-1B petitioner supervises the employee, and the means of this supervision for an off-site employee; whether the H-1B petitioner controls the work of the beneficiary on a day-to-day basis; and whether the H-1B employee is producing an end-product that is directly linked to the H-1B petitioner's business. Although this memorandum is particularly important for information technology and healthcare staffing companies, it will have an impact on any business using consultants who provide client services at the client's site. In these circumstances, it will be important that H-1B petitions properly document the employer-employee relationship between the petitioner and the beneficiary. The full text of the new memorandum is attached here: Full Neufeld Memo.
2/25/2010
Increased Scrutiny of H-1B Workers Entering the United States. .S. Customs and Border Protection (CBP) officers at the JFK Airport in New York and the Newark International Airport are apparently scrutinizing certain H-1B workers very closely upon their entry to the United States. In some cases, H-1B workers holding valid H-1B visas have not only been denied entry to the United States, but also subjected to "expedited removal", which is a form of deportation that has serious, adverse consequences for the individual removed. The H-1B workers who have been subjected to this scrutiny appear to be primarily H-1B workers from India employed by IT consulting firms, especially those who work at worksites of third-party clients. According to CBP, some of these cases were related to fraud investigations and others resulted from a new policy of conducting random checks. It also seems that some of these cases have been the result of the new USCIS memorandum discussed above, questioning the validity of the employer-employee relationship in situations where the H-1B beneficiary works at a third-party worksite. All H-1B (or L-1B) travelers who work at client sites should be prepared for possible questioning by CBP upon entry to the United States. In particular, such workers should carry a copy of the H-1B petition and supporting documentation submitted on their behalf by their employer and should be thoroughly familiar with its contents. They should also have with them proof of current employment in the form of a recent paystub and/or current letter from their employer and they should be prepared for questions relating to the nature of their employer-employee relationship with the H-1B petitioner. If any of your employees fall into one of the categories that appear to be targeted, please contact our office prior to international travel to discuss re-entry with one of our attorneys.
In general, all H-1B employees should have the following with them when travelling internationally:
· Passport valid for at least six months
· Valid H-1B visa stamp in the passport (except in the
case of Canadians)
· Original H-1B Approval Notice
· Copy of the H-1B petition with supporting documents
· Copies of recent paystubs from the H-1B employer
· Copies of W-2s issued by the H-1B employer to the beneficiary
(if available)
· Letter from the H-1B employer verifying current employment
and showing the
existence of a true employer-employee relationship (which means
a relationship in which the petitioning employer controls when,
where, and how the H-1B employee performs his or her job).
1/21/2010
U.S. Consulate in Vancouver Suspends Visa Services due to
Olympics. The U.S. Consulate General in Vancouver, Canada
has suspended visa services for the duration of the 2010 Winter
Olympic Games, which are being held in Vancouver. During the Winter
Games (12 February 2010 to 28 February 2010), visa services will
be available only for emergency cases. The Consulate will reopen
for routine visa services on March 1, 2010. It is important that
participants and spectators at the Winter Games, as well as any
travelers in British Columbia who wish to enter the United States
for any reason, obtain any required visa in their home country
prior to their arrival in Canada. For individuals wishing to apply
for U.S. visas in Canada, the other U.S. consular posts in Canada
continue to offer visa services. As of January 21, 2010, appointments
were available at the other Canadian consular posts as follows:
Toronto - available after March 4
Calgary - available after February 19
Montreal - available after February 4
Ottawa - available after January 29
12/21/2009
H-1B Cap for FY2010 is Met. U.S. Citizenship and Immigration Services (USCIS) announced that as of December 21, 2009 it had received enough cap-subject H-1B petitions to meet the quota for FY2010. The next opportunity for employers to file for new H-1B numbers will be on or after April 1, 2010 for start dates on or after October 1, 2010. Please remember that employers can still hire or "port" individuals already counted against the H-1B cap from a prior year and file extensions of H-1B authorization as necessary. If you have or hire employees whose Optional Practical Training employment authorization will expire in 2010, please contact our office to discuss an April H-1B filing. In prior years, it has been necessary to file in the first day or week of April. In 2009, this proved not to be the case due to the slower economic climate. It may well be a lottery system again by April so advance planning is prudent.
11/17/2009
Apparent Surge in H-1B Filings. U.S. Citizenship and Immigration Services (USCIS) continues to accept H-1B petitions subject to the general cap for FY2010. However, as of November 6, 2009 USCIS reported that approximately 54,700 cap-subject petitions had been filed. This is a very substantial increase in the rate of filings as compared to previous months. During the four-month period from May 2009 through September 25, 2009, USCIS reported receiving only approximately 1,700 H-1B petitions subject to the general cap. By comparison, the new figure of 54,700 suggests that USCIS received approximately 8,000 H-1B petitions in the last month. The total number of H-1Bs available for the current fiscal year is 58,200. Thus, there are approximately 3,500 H-1B numbers left for this fiscal year (October 1, 2009 through September 30, 2010). USCIS has indicated that the jump in the H-1B count is to some extent due to the fact that the additional 20,000 H-1B numbers available for individuals with U.S. master's degrees have been used up, which resulted in pending petitions for beneficiaries with U.S. master's degrees being moved into the regular cap pool. Nevertheless, this jump in the H-1B numbers makes clear that employers who need new H-1B workers should file their petitions as soon as possible.
11/17/2009
Alert for Travelers to the U.S. Using the Visa Waiver Program. Since January 12, 2009, individuals traveling to the U.S. without visas under the Visa Waiver Program (VWP) have been required to obtain advance travel authorization from the Department of Homeland Security's Electronic System for Travel Authorization (ESTA). To obtain this travel authorization, VWP travelers must submit an application online through CBP's ESTA website. One of the questions asked as part of the ESTA application process is whether the applicant has ever been denied a U.S. visa. U.S. Customs and Border Protection (CBP) recently advised the American Immigration Lawyers Association (AILA) that individuals whose visa applications have been continued for further "administrative processing" must answer "yes" to the question of whether they have had a visa denied. Individuals in this category are those who have applied for a U.S. visa at a U.S. consulate or embassy abroad and had the visa application "refused" pursuant to Immigration and Nationality Act § 221(g). It is common for consular officers to cite INA § 221(g) as a basis to continue visa applications after interview for "administrative processing." This may mean that additional documents are required to process the visa application, or that administrative checks are needed. Typically, an applicant in this situation will be given a worksheet on U.S. consular or embassy letterhead, which may have a list or a checked box explaining the specific reason for the delay in visa issuance. Although this sort of action is technically classified as a visa "refusal," the application can be reactivated upon receipt of the required documents or completion of the necessary administrative checks. However, it appears that individuals in this situation will now have difficulty traveling to the United States under the Visa Waiver Program. CBP requires an applicant in this situation to answer "yes" to the question on the ESTA application relating to prior visa denials. This may result in denial of the ESTA application and an inability to travel to the United States. One possible solution is to use the space provided on the ESTA application for stating when and where the visa denial occurred to make clear that the "denial" was based on §221(g) and that the consulate/embassy has requested additional documents or is performing administrative checks. If you need to travel to the U.S. and have a visa application pending administrative processing at a U.S. consulate or embassy, please contact us for further advice.
11/17/2009
President Obama Signs Legislation Eliminating the Widow Penalty and Extending Immigration Programs. The FY 2010 Homeland Security Appropriations bill, H.R. 2892, has now been signed by President Obama. This bill extends several important immigration programs through September 30, 2012, including the Conrad 30 J Waiver Program for Physicians, the EB-5 Investor Pilot Program for Regional Centers, the Non-Ministerial Religious Worker Program, and the E-Verify Pilot Program. In addition, H.R. 2892 provides significant new protection to family members when a sponsoring U.S. relative dies. The bill eliminates the so-called "widow penalty," which caused widows and widowers of U.S. citizens whose spouse passed away before they had been married for two years to lose the right to remain in the United States. It also provides important benefits to other family members, including parents, children, and siblings of U.S. citizens, spouses, parents and children of permanent residents, spouses and children of individuals who are immigrating to the United States through sponsorship by an employer, spouses and children of asylees and refugees, and individuals entitled to "T" (trafficking victims) or "U" (crime victims) status. Many individuals who would have lost the ability to remain in the United States as the result of the death of a family member will now have the possibility of remaining. If you have questions about how this new law may impact you or a family member, please feel free to contact us.
10/27/2009
2009 Nobel Prizes Illustrate Importance of Immigration to the United States. This year's Nobel Prize announcements gave Americans reason to feel proud. Eleven U.S. citizens won Nobel prizes this year. From an immigration standpoint, it is interesting to note that five of the U.S. Nobel prize winners are immigrants to this country. The 2009 Nobel Prize in Medicine is shared by two U.S. citizens of foreign birth: Jack Szostak was born in the United Kingdom and Elizabeth Blackburn was born in Australia. The 2009 Nobel Prize in Physics is also shared by two U.S. citizens of foreign birth: Charles Kao was born in Shanghai, China and William Boyle was born in Nova Scotia, Canada. Indian-born U.S citizen Venkatraman Ramakrishnan shares the 2009 Nobel Prize in Chemistry. In an era of restrictionist immigration policies, this illustrates the tremendous contributions immigrants make to the United States. Our nation continues to rely upon the talent and intellectual contributions of immigrants to drive the research and discovery that is so essential to our growth. Cowan Miller & Lederman is proud to be a part of this process.
10/27/2009
LCA Compliance in an Era of Wage Reductions, Company-Wide Closures and H-1B Site Visits. In our current economy, many companies are facing tough choices with respect to staffing and salary levels. Employers may be considering cost-saving options such as temporary closures or employee furloughs. With H-1B, H-1B1, and E-3 employees, these sorts of steps could result in possible violations of the employer's obligations under relevant Department of Labor regulations. For example, an employer is obligated to pay H-1B, H-1B1, and E-3 employees the higher of the actual wage (the wage it pays to other, similarly employed individuals) or the prevailing wage (a wage typically derived from Department of Labor wage databases and specified as part of the H-1B petition process). Any decrease in the salary/wage being paid to an H-1B, H-1B1, or E-3 employee could potentially violate the employer's minimum wage obligations. Further, an employer may not fail to pay an H-1B, H-1B1 or E-3 employee because that employee is in a "nonproductive status" due to a decision by the employer. This is commonly referred to as the no-benching rule. As a result, furloughs and similar programs can lead to violations of Department of Labor regulations. If you are an employer considering pay reductions, furloughs, or similar steps, please contact our office to ensure that the issue is handled in a way that will continue to be in compliance with relevant Department of Labor regulations. This is especially important given the new program described above, under which U.S. Citizenship and Immigration Services is conducing "site visits" of H-1B employers.
10/27/2009
New Protection for Family Members When a Sponsoring Relative Dies. The FY 2010 Homeland Security Appropriations bill, which has now been approved by both the House and the Senate and is expected to be signed by President Obama shortly, contains dramatic changes to the immigration laws to protect surviving family members when a sponsoring U.S. relative dies. Under current law, many family members of U.S. citizens or permanent residents lose all immigration benefits, and may face deportation, if their U.S. relative dies before all immigration processing is completed, which can take many years. This harsh situation has been addressed in the new legislation. The new law eliminates the so-called "widow penalty," which caused widows and widowers of U.S. citizens whose spouse passed away before they had been married for two years to lose the right to remain in the United States. It also provides significant protection to other family members, including parents, children, and siblings of U.S. citizens, spouses, parents and children of permanent residents, spouses and children of individuals who are immigrating to the United States through sponsorship by an employer, spouses and children of asylees and refugees, and individuals entitled to "T" (trafficking victims) or "U" (crime victims) status. Many individuals who would have lost the ability to remain in the United States as the result of the death of a family member will now have the possibility of remaining. If you have questions about how this new law may impact you or a family member, please feel free to contact us.
10/27/2009
2011 Diversity Visa Lottery Registration Open. The DV-2011 Diversity Visa Lottery registration period is now open. The U.S. State Department began accepting electronically submitted applications on October 2, 2009 and the registration period extends to noon, Eastern Standard Time, on November 30, 2009. To apply, individuals must go to the website of the U.S. State Department (http://www.dvlottery.state.gov) and submit the electronic application form, Form DS-5501, Electronic Diversity Visa Entry Form. Paper entries will not be accepted. Applicants are strongly encouraged to apply as soon as possible. It is likely that heavy demand will result in website delays towards the end of the application period.
The Diversity Visa Lottery program is administered on an annual basis making available up to 55,000 Diversity Visas to people from countries with low rates of immigration to the United States. Applicants must possess a high school education or equivalency or two years of experience gained in the past five years in an occupation that requires at least two years' experience or training.
For DV-2011, natives of the following countries are NOT eligible to apply because the countries sent a total of more than 50,000 immigrants to the United States in the previous five years:
Brazil
Canada
China (mainland)
Colombia
Dominican Republic
Ecuador
El Salvador
Guatemala
Haiti
India
Jamaica
Mexico
Pakistan
Peru
Philippines
Poland
South Korea
United Kingdom (except Northern Ireland) and its dependent territories
Vietnam
10/8/2009
Special Alert: H-1B Site Visits. U.S. Citizenship and Immigration Services (USCIS) has initiated a new program involving the hiring of privately-contracted "investigators" to conduct some 25,000 site visits to H-1B employers. These visits are unannounced. A number have already occurred in the State of Washington. Given this new USCIS program, H-1B employers should be aware of the possibility that they will receive such a visit.
The purpose of these visits is to verify that a specific H-1B employee is actually employed in the position described in the H-1B petition filed on his or her behalf. According to the reports we've received, the contract investigator presents a photo I.D. badge, requests to speak with the person who signed the Form I-129, and then asks basic questions about the company, including questions about the nature of the business, the number of employees, the hours of operation and office locations. The investigator also asks immigration-related questions, including the number of employees in H-1B status, the number of employees the company has sponsored for permanent residence, and the number of employees holding Lawful Permanent Resident status. The investigator asks questions about the specific H-1B employee, including the employee's title, job duties, work location and salary. The investigator may also request to review a copy of the company's tax returns, quarterly wage reports, and/or other company documentation to evidence that it is a bona fide business. He or she may also request confirmation that the signature on the Form I-129 petition is genuine, may ask to review a copy of the H-1B nonimmigrant's most recent paystub and last Form W-2, and may request a tour of the employer's facility. So far, it does not appear that investigators have been requesting to review the Labor Condition Application (LCA) Public Access file. Investigators then ask to meet with the foreign national employee for a few minutes during which time the employee's photo I.D. is checked and he or she is asked the same questions as outlined above about the nature of the employment, potentially including who paid for the H-1B process. After conducting the interviews and receiving any requested documentation, the investigator will complete the site visit.
The USCIS has stated that it will allow counsel to be present by phone, if this is requested by the employer. These H-1B site visits usually last for less than an hour. Although most H-1B site visits have occurred post adjudication, a USCIS adjudications officer may refer an H-1B petition to these investigators for a site visit prior to the completion of an adjudication. This may be especially true with H-1B extensions with the same H-1B employer.
It is of course always important to be sure that all H-1B Public Access files are complete and up-to-date. In general, personnel responsible for greeting visitors should be advised that it is company policy not to admit any unauthorized persons to the private areas of the business, including government agents or contractors, without the approval of a designated company official. In the case of agents or contractors investigating a visa sponsorship petition, the designated official should be knowledgeable of the petitioner's immigration program and the conditions under which the beneficiaries are employed.
Employers should request the name, title, and contact information for the site investigator. If the investigator identifies himself as a USCIS contractor, request a business card.
Please retain complete copies of your I-129 petitions and supporting documents in a file maintained by the designated company official. Foreign national employees should have a redacted copy of the I-129 petition and supporting documents relating to the nature of the job opportunity, the terms and conditions of employment, and the beneficiary's education and prior work history. If the beneficiary has been placed at a client site not controlled by the client, the client should notify the end user about the current H-1B assessment program and the possibility of a site visit. The employer should request that the end user company contact the employer at the beginning of a site visit so that the employer and/or its representative may be present either in person or by telephone during the site visit at the end user's location.
If the employer and/or end user company has secure areas which are not accessible to the public and the investigator requests access to these secure areas, the employer should explain to the investigator about the secure areas and possibly suggest other less sensitive areas in order to conduct interviews with the beneficiary. Although employers should comply with reasonable requests from the investigators regarding the examination of the employer's premises or work areas, the employer should explain if it (or its client when the site visit is occurring at an end user client location) has strict policies against tours or photographs in such areas.
If an investigator requests information from the employer and the employer can not provide accurate information without further research, the employer should indicate this to the investigator. The employer should not "guess" about any information provided during the site visit. If the employer is unsure about some requested information, the employer may want to indicate that he/she will follow up with the investigator to provide accurate information after such information is obtained. This is especially important for representatives who do not have access to information being requested by the investigator and there are no other company representatives available to answer the questions during the unannounced visit.
If you have any questions about how to handle a site visit, please
contact us. If you have a visit please let us know ASAP.
9/24/2009
Immigration Relief for Surviving Spouses of U.S. Citizens. U.S. Citizenship & Immigration Services (USCIS) has issued a new policy designed to remedy a situation commonly referred to as the "widow penalty." Under USCIS' interpretation of current law, a foreign national whose U.S. citizen spouse dies within two years of the marriage, and who has not yet completed the process of becoming a U.S. permanent resident, loses the right to remain in the United States based on the marriage. This "widow penalty" has been the subject of litigation and some U.S. Courts of Appeal have held that these surviving spouses continue to qualify for immigration benefits based on their marriage. Further, there are bills currently pending in Congress to remedy the "widow penalty." Until there is a legislative solution to the "widow penalty", USCIS' new policy will provide relief to these surviving spouses by allowing them to file for "deferred action." Individuals who receive a grant of "deferred action" from USCIS can continue to live and work in the United States, and are eligible to receive an advance parole travel document that will allow them to travel internationally.
9/24/2009
Washington Company Fined $100,000 for Illegal Workers. An engine rebuilding company located in Bellingham, Washington was recently fined $100,000 for employing illegal workers. In addition, the two owners of the company pled guilty to felony charges based on employing the illegal workers and were sentenced to a year of probation. The fines and criminal charges arose out of a raid on the company that took place in January of this year. The company and owners could have faced more severe penalties of up to $500,000 in fines and five years in prison. This case, and other recent cases arising out of government raids, makes clear the importance to employers of ensuring they are in compliance with all legal requirements relating to verifying the work eligibility of their employees. Please contact us if you would like assistance with auditing your records or policies in this area.
9/24/2009
Speedy Processing Option at U.S. Airports. In 2008, U.S. Customs and Border Protection (CBP) initiated a new program called Global Entry. This program is designed to speed immigration processing for U.S. citizens and lawful permanent residents who travel internationally. In August of 2009, Global Entry was expanded to many more airports and is now available at 20 U.S. airports, including JFK, Washington Dulles, Houston, Miami, Atlanta, Los Angeles, Chicago, Seattle, Detroit, Dallas, Newark, San Francisco, Boston, Orlando, Honolulu, Las Vegas, Orland-Sanford, Philadelphia, San Juan, and Fort Lauderdale. To participate in Global Entry, individuals must be U.S. citizens or lawful permanent residents and must sign up by completing an online application, attending an interview at a CBP airport location, and paying a $100 enrollment fee. Once enrolled, participants enter the United States by utilizing automated kiosks located in the airport. CBP estimates that participation in Global Entry reduces average wait times for CBP processing by 70 percent, with more than 75 percent of travelers who use Global Entry completing their customs & immigration processing in under five minutes. More information can be found at the CBP website: Global Entry.
9/8/2009
E-Verify Federal Contractor Rule in Effect as of September 8, 2009. Effective September 8, 2009, all federal contracts will include a clause requiring the contractor to use the E-Verify system to verify their employees' eligibility to work in the United States. E-verify is intended to strengthen employment eligibility screening by only awarding federal contracts to employers who use E-Verify to check employee work authorization. Companies awarded a contract with the E-Verify clause on or after September 8, 2009 will be required to enroll in E-Verify within 30 days of the contract award date. With certain exceptions, E-Verify must be used to confirm that all new hires, whether employed on a federal contract or not, as well as existing employees directly working on these contracts, are legally authorized to work in the United States. More information on the program is available on the E-Verify Web site and customer support is available by calling toll free (888) 464-4218.
8/25/2009
New LCA System Means Longer Preparation Time for H-1B Petitions. The Department of Labor's new online Labor Condition Application (a required element in every H-1B and E-3 application) replaced their old system on July 1, 2009. The new iCert system has been taking 7-10 business days to certify a Labor Condition Application, whereas the old LCA Online System offered immediate certification. Employers should be aware of this additional time element when projecting start dates for new H-1B employees, particularly in "H-1B port" situations.
8/25/2009
H-1B Site Visits. U.S. Citizenship and Immigration Services (USCIS) has initiated a new program involving the hiring of privately-contracted "investigators" to conduct some 25,000 site visits to H-1B employers. The purpose of the visits is to verify that H-1B employees are actually employed in the positions described in the H-1B petitions filed on their behalf. We are aware of one employer who received such a visit last week. This employer reported that the contract investigator presented a photo I.D. badge and met with a Human Resources (HR) representative. The investigator asked basic questions about the company, including questions about the nature of the business, the number of employees, the hours of operation and office locations. The investigator also asked immigration-related questions, including the number of employees in H-1B status, the number of employees the company had sponsored for permanent residence, and the number of employees holding Lawful Permanent Resident status. The investigator asked a few questions about the specific H-1B employee, including his scope of work, salary, hours and start date. She asked the HR representative for I.D. and also asked to see a W-2 or pay stub. She then met with the foreign national employee for a few minutes, checked his I.D., and asked him similar questions. She asked for an office tour, and that completed her visit. The HR representative indicated that it was a fairly quick process and that none of the questions were difficult to answer. She further indicated that the investigator was very professional. The investigator did indicate that the visits are intended to be surprise visits and that employers should not expect advance warning.
Given this new USCIS program, H-1B employers should be aware of the possibility that they will receive such a visit. If you have any questions about how to handle a site visit, please contact us. It is of course always important to be sure that all H-1B Public Access files are complete and up-to-date.
8/25/2009
Changes to Countries on J-1 Skills List. In April, the State Department published revisions to the Exchange Visitor Skills List. The Skills List serves as the basis for requiring certain J-1 visa holders to meet a two-year home country residence requirement. J-1 Exchange Visitors from designated countries whose skills or specialized fields appear on the Skills List are not eligible to change to H or L temporary visa status or to apply for permanent residence until they have either satisfied or waived their two-year foreign residence requirement. The revisions, which took effect on June 28, 2009, removed 33 countries from the Skills List, primarily from Africa, the Middle East (Kuwait, Jordan, Pakistan and Qatar) and Eastern Europe (Afghanistan, Croatia, Hungary and Poland). 14 countries were added to the Skills List, including Armenia, Belize, Cambodia, Georgia and South Africa. Visit the website of the State Department for additional information on the 2009 Skills List.
J-1 Exchange Visitors who entered the United States prior to the effective date of the revisions (June 28, 2009) and were subject to the two-year foreign residence requirement based on the Skills List are now exempt if the revisions removed their home countries from the list. However, if the revisions only removed the individual's skill from the list, but not the individual's home country, the J-1 Exchange Visitor is not relieved of his or her two-year home residence obligation.
8/25/2009
Issues with Long-Term TNs. The TN category, offered to citizens of Mexico and Canada under Treaty NAFTA, has always carried with it the burden of proving that the applicant intends to stay only temporarily in the United States. The Department of Homeland Security has recently increased its scrutiny of TN applicants with regard to this issue, both for applicants applying at the border and for TN extension petitions filed with U.S. Citizenship and Immigration Services' offices in the United States. In both situations, adjudicating officers have begun requesting evidence of temporary intent, including such things as statements from the employer confirming the temporary nature of its need for the applicant's services, statements from the applicant concerning plans for permanent departure from the United States, and employment contracts between the employer and the applicant documenting temporary employment. As a result of this increased scrutiny, TN employees who have spent a substantial amount of time in the United States should be prepared to document the temporary nature of their stay.
7/22/2009
U.S. Immigration and Customs Enforcement (ICE) Issues a Barrage of I-9 Audits to Employers. Notices of Inspection (NOIs) were recently issued to 652 businesses nationwide, including 27 in Washington State. The notices alert business owners that ICE will be inspecting their hiring records to determine whether or not they are complying with employment eligibility verification regulations. Employers are required to complete and retain a Form I-9 for each individual they hire in the United States. This form requires employers to review documents verifying the new employee's authorization to work in the United States, determine whether the documents reasonably appear to be authentic, and record information relating to these documents on the Form I-9. This broad new initiative demonstrates ICE's increased focus on holding employers accountable for their hiring practices in efforts to ensure a legal workforce. The number of NOIs issued in this round is more than were issued throughout all of the last fiscal year. The businesses targeted during the recent round of I-9 audits were apparently selected based on information obtained through ICE investigations. Cowan Miller & Lederman is available to assist employers with the evaluation of their I-9 records to ensure compliance with all legal requirements, or to provide advice in the event of an ICE audit.
7/15/2009
H-1B Cap Not Reached - Petitions Continue to be Filed. As we indicated in our news alerts in April, May and June, the fiscal year 2010 annual cap for H-1B petitions has still not been reached. As a result, H-1B petitions for the upcoming fiscal year can continue to be filed. The total available for the regular cap is 58,200 (65,000 minus 6,800 set aside for a special program for Singapore and Chile) and the total available for the advanced degree cap is 20,000. (USCIS says it is continuing to receive cases under the advanced degree cap on the grounds that not all cases accepted for filing are ultimately approved). If you are considering an H-1B filing for this year, it is important to act quickly as it remains unclear how long visa availability will last. Please contact us if you would like to discuss the likelihood of successfully submitting an H-1B petition from this point forward.
7/15/2009
Immigrant Visa Availability. Although the August Visa
Bulletin (released July 10, 2009) was less dire, on June 10, 2009
the Department of State (DOS) made intimidating predictions about
the availability of visa numbers for employment-based permanent
residence filings for the remainder of FY2009 and future years.
Individuals seeking permanent residence in the United States cannot
complete the process until a visa number becomes available to
them. Because of limits on the number of permanent residence visas
that can be issued annually, there can be long waits for visa
availability, depending on the category a particular applicant
is in. Most employment-based permanent residence filings are EB-3
[no advanced degree] or EB-2 [advanced degree or bachelor's plus
five years of experience]. For individuals who were not born in
India or China, visas are currently available in the EB-2 category.
However, for Indian and Chinese nationals, there are long waits
in this category. There are also long waits for nationals of all
countries in the EB-3 category. The Department of State is now
estimating even longer waits in many categories. In his June 10th
comments, Mr. Charles Oppenheim of the DOS estimated that all
140,000 employment-based visa numbers would be used this fiscal
year. He said that increased rates of demand have come from 4th
preference (EB-4) religious workers and other special immigrants
as well as 5th preference (EB-5) immigrant investors. The increase
in usage of the 4th and 5th preference numbers is significant
because, historically, there have been unused numbers in these
categories which have been used to meet high demand for visas
in other categories.
Mr. Oppenheim further predicted that the employment-based 1st
preference (EB-1) category worldwide would remain current for
the rest of FY2009 but that 1st preference usage for India and
China could require a cut-off date in August or September. His
prognosis for the employment-based 2nd preference (EB-2) category
for India and China was grim, although August's Visa Bulletin
reversed the dire retrogression seen in those categories in July.
He noted that approximately 25,000 EB-2 India cases are currently
queued up at the Department of State awaiting visa numbers. A
similarly large number of Chinese cases are also waiting for visa
numbers Given the limit of 2,800 EB-2 numbers available per year
per country, without legislative relief the waiting time for both
Indian and Chinese EB-2 applicants will continue to be measured
in years.
For employers concerned with losing top talent as their frustration
mounts with the long waits for visa availability, proactive planning
with respect to permanent residence processing is definitely in
order. In short, if you have Chinese and Indian employees whose
expertise you value, start early on the green card process, regardless
of which category they fall into.
Effective 6/29/2009
Premium Processing for I-140s Coming Back in Expanded Form.
Effective June 29, 2009, USCIS will resume Premium Processing
Service for I-140 Petitions. USCIS has concluded that backlog
reduction efforts and increased efficiencies allow them to offer
this benefit. USCIS will accept Premium Processing requests for
EB-1 Individuals with Extraordinary Ability, EB-1 Outstanding
Professors and Researchers, EB-2 Members of Professions with Advanced
Degrees or Exceptional Ability not seeking a National Interest
Waiver, EB-3 Professionals, EB-3 Skilled Workers, and EB-3 Workers
other than Skilled Workers and Professionals. Premium Processing
Service will still not be offered for EB-1 Multinational Executives
and Managers and EB-2 National Interest Waiver petitions.
Use of the Premium Processing Service guarantees petitioners that,
for a $1,000 fee, USCIS will issue either an approval notice,
or, where appropriate, a request for additional evidence or notice
of intent to deny, within 15 calendar days of receipt. An additional
benefit of using the Premium Processing program is access to a
dedicated phone number and e-mail address to check on the status
of the petition.
6/17/2009
Procedural Changes May Create Travel Issues for Individuals Applying for Reentry Permits. On June 17, 2009, U.S. Citizenship and Immigration Services (USCIS) announced a revision to its procedures for rescheduling biometrics appointments for individuals applying for reentry permits. Individuals applying for reentry permits are typically Lawful Permanent Residents of the United States who are leaving the country to spend a substantial amount of time abroad. These applicants must have their biometrics (fingerprints and photograph) taken by USCIS as part of the application process. The scheduling of these biometrics appointments is often difficult because the applicants are planning to travel abroad for extended periods and may need to leave the United States before the date the appointment is scheduled. USCIS' Nebraska Service Center now says that it will deny all applications if the applicant does not complete his/her biometrics within 120 days of filing the application. If an applicant must leave the United States before their biometrics appointment occurs, the applicant may request that the appointment be rescheduled. However, the new procedure provides that the rescheduling request must be accompanied by a reasonable excuse for failing to attend the regularly scheduled appointment. Further, appointments cannot be rescheduled further out than 30 days and applicants who request more than 30 days will receive only up to 30 days. USCIS' announcement warns that applicants who go abroad without completing the initial biometrics appointment, and who do not timely file a request for their biometrics to be rescheduled, will likely face a denial. Additionally, applicants who do not follow up on their reschedule request to ensure they are actually rescheduled, will also likely face denial, regardless of any evidence of a timely attempt to reschedule. Applicants who seek rescheduling several times and do not complete the biometrics within 120 days of the initial I-131 filing date, will face a denial. USCIS did state that they review all applications upon submittal to determine the applicant's proposed departure date and make every attempt to schedule the biometrics appointment prior to the applicant's departure. In general, Permanent Residents with plans to leave the United States for an extended period should make every effort to file their Reentry Permit applications as early as possible, to allow the biometrics to be completed prior to their departure.
4/15/2009
Understanding the "Cap-Gap" Extension of OPT Work Authorization. Some students who are the beneficiaries of pending H-1B petitions may be in a situation where their student status and/or their Optional Practical Training (OPT) employment authorization will expire prior to October 1, 2009, which is the first date on which they could obtain H-1B status. This gap, which results from the annual cap on the number of H-1B petitions that can be approved, is commonly referred to as the "cap-gap." Regulations passed last year provide for the "automatic" extension of student status and employment authorization through October 1 for students in this situation. Students are eligible for the extension of employment authorization as long as they had OPT work authorization on the date their H-1B petitions were filed. Students do not need to apply for an extended Employment Authorization Card (EAD) to cover the additional period of employment authorization. However, U.S. Citizenship and Immigration Services (USCIS) and U.S. Immigration and Customs Enforcement (ICE) have indicated that a student in this situation must request a new I-20 form from their school, reflecting the continued employment authorization. To obtain the new I-20 form, students should give their school's Designated School Officer (DSO) proof that the H-1B petition was filed, such as a copy of the petition and a Fed Ex, UPS, or USPS Express/certified mail receipt. With this, the school can issue an I-20 authorizing employment through June 1, 2009. Once USCIS issues a receipt notice for the H-1B petition, the student can take the receipt notice to their school and obtain an I-20 extending employment authorization beyond June 1. Companies employing students in this situation should be prepared to provide the students with copies of the H-1B petition, mailing receipts documenting that the petition was sent to USCIS, and receipt and approval notices for the H-1B petition, once these are received from USCIS. Click for additional Information from USCIS or from ICE.
4/15/2009
Expect More Supervised Recruitment Based on Labor Market Conditions. The U.S. Department of Labor (DOL) has recently advised that, due to the current state of the economy, employers filing PERM Labor Certification applications may be required to conduct additional recruitment, supervised by DOL, after the filing of a PERM application. A PERM application is filed by an employer on behalf of a foreign national after a targeted recruitment process has determined that there are no qualified and available U.S. workers to fill a particular position. This application is often the first step in the process of obtaining U.S. permanent residence status (a "green card") for employees. DOL has indicated that post-filing supervised recruitment may be required based on layoffs in specific occupations or geographic regions. Thus far, DOL has not indicated what occupations or geographic regions are likely to be impacted, with the exception of individuals employed in financial services in New York. However, employers filing PERM applications for job occupations that are experiencing layoffs may be subject to this new supervised recruitment requirement.
4/15/2009
DOL Launches New LCA Filing System; New PERM Filing System to come. The Department of Labor (DOL) launched its new iCERT portal on April 15, 2009, starting with the Labor Condition Application (LCA) required as part of the H-1B filing process. Continued use of the old LCA system will be an option until May 14, 2009. The new system requires entities who file LCA applications to re-register with DOL under the new system. It is also predicted that the LCA process will take longer under the new system, making the process of preparing an H-1B petition longer and more cumbersome. The launch of the new PERM filing portal has been delayed from July 1, 2009 to sometime in September 2009.
4/15/2009
Maintaining Nonimmigrant Intent on a TN. Right on the heels of the new "three-year TN" comes the reality check: we understand that USCIS has started to send out requests for evidence in cases where TN applicants are applying for three-year extensions to determine if the individual has "immigrant intent," which means the intent to stay permanently in the United States. Individuals in TN status are not allowed by regulation to have "immigrant intent." With this in mind, we encourage individuals in TN status to take proactive steps to maintain demonstrable ties to Canada. This could include maintaining a valid driver's license, bank account, mailing address or residence in Canada.
3/12/2009
Border Issues for TNs. Due to increasing scrutiny of TN filings at U.S. ports of entry, TN applicants must be fully prepared when presenting a TN application at a port of entry. In particular, TN applicants must read all the materials in the TN application package carefully prior to presenting the application. TN applicants should know the contents of all documentation they present to border officials and should be comfortable writing about or discussing their job duties without referencing the application materials. This is important not only when applying for a new TN position, or an extension, but at any time a TN foreign national crosses the border. We have seen an increase in the number of people who, after being granted TN status for a job in the United States, find their applications for extensions being denied at the ports of entry, even when there has been no change in the employer or job since the first approval. Further, individuals simply crossing the border on an existing TN have been interrogated at length about their temporary job position in the U.S. Individuals in TN status may want to consider the alternative process of filing the TN extension application by mail with a USCIS Service Center in the United States. Please contact us if you wish to discuss the pros and cons of extending TN status by mail, rather than at the border.
3/12/2009
Restrictions on H-1B usage for Certain Employers. The recently passed economic stimulus bill included a provision limiting the use of the H-1B category by certain employers. The employers impacted are those who receive funding pursuant to the financial rescue bill passed at the end of 2008 (the Emergency Economic Stabilization Act of 2008, also known as the "TARP bill"), or who receive funding under Section 13 of the Federal Reserve Act, authorizing the Federal Reserve to provide short-term credit via its "Discount Window." These employers, who are primarily banks and financial institutions, may only file H-1B petitions for foreign workers if they meet two conditions: (1) they must have made good faith efforts to recruit U.S. workers for the position and must have offered the position to any U.S. worker who is equally or better qualified for the position; and (2) they must not lay off any U.S. worker in a job essentially equivalent to the H-1B position during the period beginning 90 days prior to the filing of the H-1B petition and ending 90 days after its filing. The employer will be obligated to attest to its compliance with these requirements on the Labor Condition Application form filed with the Department of Labor in connection with H-1B petitions. Employers who may be subject to this requirement should be careful to ensure that they are in compliance with these new procedures and obligations.
3/12/2009
Layoffs and H-1Bs - Implications for Employees and Employers. Individuals who are in the United States working in H-1B status face unique difficulties if they are laid off. A frequently asked question is whether there is a "grace period" following termination of employment with the H-1B employer, to allow the H-1B worker to look for another job. Unfortunately, there is no such grace period. H-1B employees are technically out of status as soon as their employment ends. This raises the question of what constitutes employment. Individuals who experience a temporary period during which they are not performing services for their employer, but who continue to be paid their full wage, may, in some circumstances, be considered "employed." However, U.S. Citizenship and Immigration Services (USCIS) has indicated that a severance package that offers H-1B beneficiaries their normal compensation and benefits for a period of time beyond their termination date does not extend the period of employment until the end of the severance period. In general, there must be a bona fide employer/employee relationship and payment of the full H-1B salary and benefits for the H-1B worker to be considered "employed." Given this, ideally an H-1B worker who is changing employers would have a new petition filed by the new employer prior to the H-1B worker's last day of employment with his/her current employer. This of course is not always possible. USCIS has discretion to excuse a gap between employers and has said that it "seeks to be reasonable" when evaluating whether to allow an extension of stay in a case where the H-1B worker had a period of unemployment prior to the filing of an H-1B petition by a new employer. At this time, it is unclear how long the gap between the old and the new employment can be before USCIS would not be willing to exercise its discretion and approve an extension of stay. If USCIS were to deny an extension of stay, the H-1B worker would need to leave the U.S. and return in order to obtain continued H-1B status, and would potentially incur other adverse consequences. From the point of view of the employer, when an H-1B employee is terminated the employer must take certain steps. In addition to notifying the employee, the employer must notify USCIS of the termination of employment and must pay, or offer to pay, the return transportation of the H-1B worker to his/her home country.
3/12/2009
DOL PERM Caseload and Processing Times. PERM processing has lagged noticeably over the last half of 2008 and into 2009. As of December 31, 2008, the agency had a caseload of 53,200 active PERM cases and indicated that processing times for these cases had slowed down significantly in the final months of the year. The Department of Labor (DOL) attributes the adjudication slowdown to transitioning to a new contractor. In a meeting with industry stakeholders held in early February, the DOL indicated that applications would be subject to more frequent and increased scrutiny and, in some circumstances, to recruitment that is directly overseen by a DOL Certifying Officer. Most recent processing times for regular applications (not subject to audits or appeals) indicate approximately 8 months for consideration. DOL is currently processing regular cases filed in June and July 2008. For applications in the audit process, they are working on August 2007. For appeals, they go even further back, to April 2007. According to DOL, 67% of the active caseload is in their regular review process and 26% of the current caseload is under pending audit. Cases that have been denied but are now under reconsideration or on appeal make up approximately 5% of the current PERM workload.
2/10/2009
Visa issuance delays for science and technology workers. Individuals applying for visas at U.S. consulates and embassies abroad are subject to various security clearances which can delay the visa issuance process. Individuals working in scientific and technological fields may be subject to a "Mantis" security check to ensure that their employment does not implicate any controlled or classified technology. These "Mantis" background checks appear to be taking much longer than the State Department's published 10-day processing time. Some individuals have reported an 8-10 week delay in visa issuance. A resource for determining whether a particular individual may be subject to a "Mantis" security clearance is the State Department's Technology Alert List ("TAL"), which is a list of technologies considered sensitive. The TAL can be accessed here. Individuals from China, India, Israel, Pakistan and Russia are frequently impacted, but any nationality can be subject to a "Mantis" inquiry. Please contact us in advance if you have an employee applying for a visa abroad whose skills are related to the TAL. These employees should schedule visa appointments for the beginning of their trips and must be prepared for the possibility of a delay in visa issuance preventing an immediate return to the United States.
Effective 6/1/2009
Passports required at land border crossings. Effective June 1, 2009, the Western Hemisphere Travel Initiative (WHTI) will go into effect at land and sea ports of entry. This will require U.S. and Canadian citizens 16 years of age or over who enter the United States by land and sea to have a passport, NEXUS card, or other designated secure travel document. U.S. and Canadian citizen children under the age of 16 will continue to be able to present the original or a copy of their birth certificate, or other proof of citizenship such as a naturalization certificate or citizenship card. Click here for more information.
Effective 4/3/2009
New I-9 Form. The effective date of the new I-9 form has been delayed for 60 days. The Form I-9 ("Employment Eligibility Verification Form") must be completed by employers for all employees hired in the United States. A new version of the form has been issued and was originally scheduled to become mandatory on February 2, 2009. The comment period on the new form now runs until March 4, 2009 and the new form is currently scheduled to become mandatory on April 3, 2009. The new I-9 Form is now available on the USCIS website. All employers are required to complete a Form I-9 for each employee hired in the United States and to re-verify Form I-9 for any employee with expiring employment authorization. The primary change from the prior version of the Form I-9 is the requirement that documents presented to meet the Form I-9 requirements must be unexpired. The prior form allowed the use of some expired documents, such as an expired U.S. passport, to meet the Form I-9 requirements. This change may create difficulties for employees who were previously allowed to use an expired document to meet the Form I-9 requirements and who are unaware of this change. The old form can be identified by its edition date of 06/05/2007, found at the bottom of each page of the form. If you have questions about the new Form I-9 or need assistance with Form I-9 compliance, please feel free to contact us.
Effective 1/18/2009
US-VISIT Expanded to Nearly All Noncitizens. The Department
of Homeland Security has expanded the population of those subject
to
US-VISIT. The US-VISIT program was established in 2003 to increase
border security by using biometric identifying information (fingerprints
and photographs) to verify the identities and travel documents
of visitors to the United States. Under US-VISIT, most international
travelers entering the United States on nonimmigrant visas or
under the Visa Waiver Program are required to provide finger scans
and photographs as part of the entry process. Effective January
18, 2009, nearly all non-U.S. citizens, including Lawful Permanent
Residents, will be subject to the requirements of US-VISIT. The
final regulation implementing this change is available here.
Additional information on US-VISIT is available here.
1/12/2009
Visa Waiver Program Requires Advance ESTA Registration. U.S. Customs and Border Protection (CBP) has also announced that beginning January 12, 2009, all individuals traveling to the U.S. under the Visa Waiver Program (VWP) must obtain advance travel authorization from the Department of Homeland Security's Electronic System for Travel Authorization (ESTA). To obtain this travel authorization, VWP travelers must submit an application online through CBP's ESTA website. The electronic ESTA application collects the same information as the paper Form I-94W currently filled out by VWP travelers while en route to the United States. An ESTA authorization will generally be valid for up to two years and for multiple entries to the United States. Click here for access to the ESTA website.
11/24/2008
USCIS publishes final rule on Religious Worker classification. The final rule requires R-1 applicants to apply at a USCIS Service Center and reduces the period of R-1 admission to 30 months. See Announcement at www.uscis.gov/files/article/religious_worker_factsheet_21nov08.pdf and FAQs at www.uscis.gov/files/article/religious_work_faq_21nov08.pdf.
11/17/2008
US State Department creates website devoted to intercountry adoptions: www.adoption.state.gov.
Visa Waiver Program Expanded. Effective November 17, 2008, the Department of Homeland Security added seven countries to the Visa Waiver Program (VWP). The VWP allows citizens and eligible nationals of VWP countries to enter the United States for up to 90 days as visitors for business or pleasure without first obtaining a visa, provided that they are otherwise eligible for admission. The new VWP countries are the Czech Republic, Estonia, Hungary, Latvia, Lithuania, the Republic of Korea, and the Slovak Republic. The other countries covered by the VWP are Andorra, Australia, Austria, Belgium, Brunei, Denmark, Finland, France, Germany, Iceland, Ireland, Italy, Japan, Liechtenstein, Luxembourg, Malta, Monaco, the Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovenia, Spain, Sweden, Switzerland, and the United Kingdom. Click here for the final rule adding the new VWP countries. Additional information on the VWP is available here. Please note that individuals traveling pursuant to the VWP now need to register in advance under the ESTA program.