The Department of Labor announced last week that it will be suspending the processing of prevailing wage determinations (PWDs) for most case types,  including PERM labor certifications and H-1B cases – while it complies with a federal court order that requires them to reissue some 4,000 PWDs for the H-2B temporary non-agricultural visa program. The suspension will mean that some employers may be delayed in their ability to commence recruitment on or file PERM labor certification applications.  DOL has not indicated when it will resume issuing non-H-2B PWDs, but because its H-2B workload is considerable, it may not return to full-scale PWD processing for several months.

Though the suspension involves several immigration case types, PERM applications, by far, are the most severely affected due to the time-sensitivity given that the results of an employer’s labor certification recruitment are valid for just 180 days. If a request for a prevailing wage determination is delayed and an employer has commenced the recruitment phase prior to receiving the PWD, an employer’s recruitment could expire, meaning that the entire recruitment process would have to be redone before a PERM application could be filed. The effect on H-1B petitions is far less because employers can use the OFLC Wage Data Center or other independent surveys to determine the prevailing wage for an H-1B position.

DOL’s official timeframe for processing prevailing wage requests had been 60 days, but they had been turning them around in about 30 days.   It appears that the suspension is affecting PWRs filed as early as the beginning of June 2011.

Action Item for Employers: If you require a PERM Labor Certification Application be filed in order to continue employment for your H-1B visa holders who are approaching the 6-year maximum period of stay, you cannot start these cases early enough.  Please discuss strategy and planning with your immigration professional right away, or give our office a call to discuss your case concerns.  We will keep you updated as developments occur.

Foreign students studying at U.S. universities have traditionally had a year after graduation in which to find a job, allowing them to live and work in the United States. Three years ago, the U.S. Department of Homeland Security (DHS) changed immigration rules to stretch this window of time from 12 to 29 months for students graduating in certain areas of science, technology, engineering, and mathematics.

On May 12, 2011, DHS announced that it was expanding the list of disciplines eligible for the extension. The revised list adds fields such as neuroscience, marine science, environmental science, pharmaceutics and drug design, and education research. It also greatly expands its listings within the agricultural sciences and psychology. The decision follows a yearlong review of requests from businesses and academia to add new fields, says Gillian Christensen, a spokesperson for DHS’s Immigration and Customs Enforcement.

The announcement follows President Obama’s recent remarks in El Paso, Texas, where he reiterated his strong support for new policies that embrace talented students from other countries, who enrich the nation by working in science and technology jobs and fueling innovation in their chosen fields here in the United States, as a part of comprehensive reform.

By expanding the list of STEM degrees to include such fields as Neuroscience, Medical Informatics, Pharmaceutics and Drug Design, Mathematics and Computer Science, the Obama administration is helping to address shortages in certain high tech sectors of talented scientists and technology experts-permitting highly skilled foreign graduates who wish to work in their field of study upon graduation and remain in the USA, to extend their post-graduate work authorization.

Under the OPT program, foreign students who graduate from U.S. colleges and universities are able to remain in the U.S. and receive training through work experience for up to 12 months. Students who graduate with one of the newly-expanded STEM degrees can remain for an additional 17 months on an OPT STEM extension.

On Thursday,  3/31/11, a House Immigration Subcommittee hearing underscored the U.S. economy’s reliance on scientists and engineers from abroad. The hearing, entitled “H-1B Visas: Designing a Program to Meet the Needs of the U.S. Economy and U.S. Workers,” was characterized by considerable disagreement among witnesses and subcommittee members as to how the H-1B program for highly skilled foreign professionals should best be structured in terms of wage protections and job portability. But virtually everyone, including Subcommittee Chairman Elton Gallegly (R-24th/CA) and Judiciary Committee Chairman Lamar Smith (R-21st/TX), agreed that foreign-born scientists and engineers, including many who come to the United States on H-1B visas, make critical contributions to the U.S. economy.

CEO’s and the Institute of Electrical and Electronics Engineers (IEEE), a professional association, had a rare opportunity to make their case on the H-1B program  and up, wrote the House Judiciary Committee to emphasize the value of green cards.

For Tom Brokaw’s report on entrepreneurs leaving Silicon Valley, we link here.

…and for your listening pleasure, here is an animated version of an attorney explaining the PERM Labor Certification program (the 1st step in the green-card process) to a client, entitled When will Kumar get his Greencard? – Enjoy!

USCIS announced today it will start accepting H-1B petitions subject to the fiscal year (FY) 2012 cap on April 1, 2011. Cases will be considered accepted on the date USCIS receives a properly filed petition for which the correct fee has been submitted; not the date that the petition is postmarked.

The H-1B program is used to employ foreign workers in specialty occupations that require theoretical or technical expertise. Such workers include scientists, engineers, and computer programmers, among others.

The cap (the numerical limit on H-1B petitions) for FY 2012 is 65,000. The first 20,000 H-1B petitions filed on behalf of individuals with U.S. master’s degrees or higher are exempt.

USCIS will monitor the number of H-1B petitions received and will notify the public of the date when the numerical limit of the H-1B cap has been met. This date is known as the final receipt date. If USCIS receives more petitions than it can accept, it may on the final receipt date randomly select the number of petitions that will be considered for final inclusion within the cap. USCIS will reject petitions that are subject to the cap and are not selected, as well as petitions received after it has the necessary number of petitions needed to meet the cap.

In addition to petitions filed on behalf of people with U.S. master’s degrees or higher, certain other petitions are exempt from the congressionally mandated cap.

Petitions for new H-1B employment are exempt from the annual cap if the beneficiaries will work at:

• Institutions of higher education or related or affiliated nonprofit entities;
• Nonprofit research organizations; or
• Governmental research organizations.

Petitions filed on behalf of beneficiaries who will work only in Guam or the Commonwealth of the Northern Marianas Islands are exempt from the cap until Dec. 31, 2014. Employers may continue to file petitions for these cap-exempt H-1B categories for beneficiaries who will start work during FY 2011 or 2012.

Petitions filed on behalf of current H-1B workers who have been counted previously against the cap do not count towards the H-1B cap. USCIS will continue to process petitions filed to:

• Extend the amount of time a current H-1B worker may remain in the United States;
• Change the terms of employment for current H-1B workers;
• Allow current H-1B workers to change employers; and
• Allow current H-1B workers to work concurrently in a second H-1B position.

H-1B petitioners should follow all statutory and regulatory requirements as they prepare petitions, to avoid delays in processing and possible requests for evidence. USCIS has posted on its website detailed information, including a processing worksheet, to assist in the completion and submission of a FY2012 H-1B petition.

Should you wish to discuss your case or become a client of our firm, please contact us at info@immigrationsolution.net or call 562 612.3996.

USCIS announced today that it has published a proposed rule that will save US businesses more than $23 million over the next 10 years by establishing an advance H-1B registration process for U.S. employers seeking to file petitions for foreign workers under the H-1B specialty occupation category.  The proposed electronic system would minimize administrative burdens and expenses related to the H-1B petition process—including reducing the need for employers to submit petitions for which visas would not be available under the visa cap.

USCIS Director Alejandro Mayorkas announced today the opening of a 60-day comment period that will allow businesses and the general public to provide input on the proposed system in order to ensure it best meets the needs of employers that rely on H-1B visas to bring in foreign workers for specialty occupations.  Mayorkas expressed that “Improving the H-1B petition process is part of USCIS’s ongoing efforts to leverage new ideas and innovation to streamline our operations and enhance customer service.”

The employer would go through an online, electronic a process that would take an estimated 30 minutes to complete.  Before the petition filing period begins, USCIS would select the number of registrations predicted to exhaust all available visas. Employers would then file petitions only for the selected registrations. The registration system would save employers the effort and expense of filing H-1B petitions, as well as Labor Condition Applications, for workers who would be unable to obtain visas under the statutory cap.

The proposed rule, which posted to the Federal Register today for public viewing, contains complete details about the registration system and estimated cost savings. USCIS encourages formal comments on the proposed rule.  We link to the following additional information:

Fact Sheet

News Release

For those of you who might like to listen to the news rather than read it, we invite you to tune into “InFOCUS” – immigration news and updates to listen to our podcast on the above-captioned topic.  Should you wish to contact our office to discuss your particular immigration needs, please feel free to do so here.

#1: The Job Description and Degree Requirement

The job offer and the job description must be for a specialty occupation that requires a minimum of a bachelor’s degree or its foreign equivalent.  What is the definition of a specialty occupation?  A specialty occupation requires the theoretical and practical application of a body of specialized knowledge along with at least a bachelor’s degree or its equivalent. For example, information technology, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts are specialty occupations.

Small to medium-size companies are being asked to justify why the position requires someone with a bachelor’s degree and to explain, through various types of evidence including organizational charts, classified ads for the position, and educational information pertaining to existing or previous employees in the same position, why their business is more unique than other similar businesses in their industry that they would require a candidate with a bachelor’s degree in a particular position.

Bachelor’s Degree equivalency can be attained through a single-source foreign degree that meets US standards, a combination of a degree and work experience, or a work experience alone equivalency that meets the “3 for 1” rule; namely, that 3 years of work experience to 1 year of university level education (this requires an expert credential evaluation by a service that is authorized to evaluate work experience).

Note: Bear in mind that if you have a skilled immigration professional that has a strategy in place for your green-card sponsorship (permanent residency), it is essential that your degree and its equivalency be carefully reviewed so that it will be compatible with the classification under which you will be filing your PERM labor certification and green-card case.

USCIS now requires very detailed job descriptions that contain the position summary, duties and responsibilities, as well as the percentage of time spent on each job duty. It is hard to imagine that a job description with a 15-bullet point list of duties and a full page in length is insufficient, but when you work with a skilled immigration practitioner, this can be successfully argued against the O*NET and the OOH which is the primary source of job information for USCIS and the Department of Labor.

In summary: Employers need to be prepared with complete job descriptions for their H-1B prospective employees and document the need for a degreed professional thoroughly in their casework and work with an immigration attorney that is well versed in handling H-1Bs as well as PERM labor certifications.

#2:  Plan Ahead and File Early

When should I start my case? Immigration Solutions accepts H-1B cap-subject cases well in advance of April 1st to avoid the rush that normally occurs when employers become aware of cap deadlines and when foreign workers obtain job offers that require cap subject visa numbers. Bottom line, cap-subject cases should be started ASAP.  We advise employers to assess their hiring needs for FY 2012 and contact their immigration attorney to discuss timing issues.

How long does it take to prepare an H-1B Case? We do not recommend waiting until the last minute because of the various government agencies that are involved in the process. With good front-end case strategy, consulting with an attorney that has a depth of experience with H-1Bs with and a streamlined case process – the many steps involved in preparing an H-1B requiring the cooperation of all parties, can go very smooth and an approvable petition can be filed with all necessary supporting documentation.  An approval requires that a case be prepared correctly from the start.  It is often not possible to reverse strategy after the case is filed.  Planning ahead is crucial to flush out any issues that need to be overcome, particularly when working with IT and healthcare consultants and staffing agencies that have 3^rd party jobsite issues.

In summary, the demand for H-1B visas, although not as high in this economy, have tougher documentation standards and Department of Labor delays sometimes for several weeks with employer EIN# verification issues. By understanding the issues involved in the H-1B process, one can take a proactive approach to assure that the needs of all parties are addressed early.

#3:  When the Occupation Requires a License

USCIS’ approval of an H-1B petition that requires a license, is not authorization for the employee to practice his or her profession without the required license. This is particularly prevalent when processing H-1Bs for teachers and healthcare professionals.  USCIS regulation provides that if an occupation requires a state or local license to fully perform the duties of the occupation, the foreign worker must have the license prior to the approval of the petition.

This can be a Catch 22….Some states will not issue a state license unless the individual worker presents evidence to the State Board that they are legally authorized to be employed in the USA. Some State Boards require the worker to establish to the State Board that they have been granted H-1B status as a prerequisite to issuing the license. For example, certain State Boards of Pharmacy will not issue a pharmacist license until the worker presents evidence of work authorization. Teachers and registered nurses have been unable to obtain licensure until they obtain social security numbers which cannot be achieved until one is authorized to work in the USA.

With the above being said, USCIS adjudicators have been instructed to approve H-1B petitions for a one-year period if a State or local license to engage in the profession is required, and the appropriate licensing authority will not provide such license to the worker without evidence that that they have been granted H-1B status. At the end of the one-year period, the employer is required to file another petition with a request for extension and also present evidence at that time that state licensure has been obtained.

As a condition to approving petitions involving state or local licensure, the worker must demonstrate that they have filed an application for the license according to the State or local rules and procedures, provide evidence that they are qualified to receive the license, and that all educational, training experience and other requirements are met, including healthcare certification, at the time of filing the petition. For instance, Physical Therapists must provide a letter or statement signed by an authorized state physical therapy licensing official in the state of intended employment, indicating that the PT is qualified to take the state’s written licensing examination for physical therapists and thereafter obtain state licensure.

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If you are not a client of our firm and would like to discuss H-1Bs as well as any other immigration matters, we invite you to contact us at info@immigrationsolution.net | telephone 562 612.3996 to set up a consutation.

USCIS announced today that it has received a sufficient number of H-1B petitions to reach the statutory cap for fiscal year (FY) 2011. USCIS is notifying the public that yesterday, Jan. 26, 2011, is the final receipt date for new H-1B specialty occupation petitions requesting an employment start date in FY2011.

The final receipt date is the date on which USCIS determines that it has received enough cap-subject petitions to reach the limit of 65,000.  Properly filed cases will be considered received on the date that USCIS physically receives the petition; not the date that the petition was postmarked.  USCIS will reject cap-subject petitions for new H-1B specialty occupation workers seeking an employment start date in FY2011 that arrive after Jan. 26, 2011.

USCIS will apply a computer-generated random selection process to all petitions that are subject to the cap and were received on Jan. 26, 2011. USCIS will use this process to select petitions needed to meet the cap.  USCIS will reject all remaining cap-subject petitions not randomly selected and will return the accompanying fee.

Extensions of stay and portability H-1B cases (transferring to a new employer) can still be filed and so can cases for H-1B exempt employers.

As of April 1, 2011, we can start filing new H-1B cases with USCIS to commence employment October 1, 2011.  This is a good time for employers to begin to assess their H-1B hiring reqirements for FY 2012 and plan in advance.

Contact our office should you wish to consult with us and retain us to handle your H-1B immigration cases.

As previously reported in our blog post and newsletter,on January 12, 2011, USCIS Director Alejandro Mayorkas released the revised version of the I-9 Employer Handbook known as the M-274.  After reviewing the new release, the following is a summary of the additional guidance and answers to FAQs that we think you need to be aware of in order to continue to remain I-9 compliant as well as update your policies and procedures in relation to managing your I-9s.   

Is this a perfect employer handbook? … No — but it is improved and does address many of the questions that we hear from employers in our practice; i.e, questions about name changes, conditional resident status, how to handle H-1B portability, clarifying the Thursday Rule for when the employer must complete Section 2 of the form, and assistance in how to calculate and determine the I-9 retention date for separated employees. So, let’s get started with the issues that produce the most questions:

 Clarifying the Thursday Rule (Page 3)   The Handbook states that employers must review the employee’s documents and complete Section 2 of the form within 3 business days of the first day of work for pay, but not including the actual date of hire – or, Thursday if the employee begins work on Monday.

Clarifying Conditional Residency (Page 9)  Permanent Resident Cards with either an expiration (Conditional Cards) date or no expiration date are List A documents that should not be re-verified.  An example of the new Form I-551 Permanent Resident Card that was issued May 11, 2010 has been included in the examples of “reasonable” authorization documents

Name Changes (page 18)   An employer is not required to update the I-9 form when an employee changes their name, but may do so in Section 3.  The new Q&A section instructs that employers may accept a document with a different name than what is entered in Section 1 (due to married names, compound names, or misspellings) if the documentation presented by the employee reasonably relates to the employee and appears genuine.  USCIS further suggests that if the employer is not satisfied that the presented documents appear genuine and relate to the individual, to request additional documentation to assist in making the determination.  The employer may wish to attach a brief memo to the I-9 detailing the employee’s reason for the name discrepancy, including copies of any supporting documentation the employee chooses to provide; this is referenced on pages 41-42.  There is a reminder for government contractors required to comply with FAR E-Verify that a name change in the system triggers the completion of a new I-9 form under the FAR rule.

Interruptions in Employment (Page 20)    The Handbook now provides guidance to employers about whether a new I-9 form is required after an employee has had a brief interruption in employment.  The Handbook provides examples of continuing employmentsituations such as maternity or paternity leave,  leaves of absence, transferring from one business unit to another unit for the same employer, changing jobsite locations with the same employer.  An employer is not required to fill out a new I-9 form in these situations where there is an expectation of continued employment.

The Temporary Employment Authorization Tablehas been replaced instead with narrative content for refugees and asylees, employees in TPS status (Temporary Protected Status), exchange visitors (J visas), students (F and M visas), H-1B professionals and H-2A agricultural workers.  More on this below.

H-1B Employees Changing Employers (a/k/a “Portability” or an H-1B Transfer) – Page 17   The Handbook restores the ability to “port or transfer” and start working immediately for an employee in valid H-1B status who changes to a new employer upon filing an H-1B petition with USCIS.  The prior 2009 version of the Handbook required the porting H-1B employee t o obtain a Form I-797 receipt notice from USCIS prior to starting employment.  One of the benefits of H-1B portability is that the employee can start right away, so it’s good to see them finally get this right as it applies to the Form I-9.  Further guidance states that the H-1B employee’s Form I-94/I-94A issued for  employment with the previous employer, with the foreign passport, would qualify as List A documents.  You should write “AC-21” and record the date you submitted the I-129 Petition to USCIS in the margin of the I-9 form next to Section 2. 

Page 18 further states that “you should” retain the following documents with the Form I-9 to show that you filed for an extension of stay:  1) A copy of the new Form  I-129;  2) Proof of payment for filing a new Form I-129; and  3) Evidence that you mailed the new I-129 petition to USCIS.  No further guidance has been provided on when or if to re-verify the H-1B petition after it’s approved.   We recommend that you calendar re-verification of H-1B status based upon the dates provided on the I-797 USCIS  approval notice.

Extensions of Status (Page 17-18)   Guidance states that an employee with a petition for extension of status, timely filed before work authorization expires, are eligible for continued employment for up to 240 days beyond the expiration date of the authorization as long as the extension remains  pending.  Details are provided for how to complete the I-9 and the documentation to be attached for those in E-1, E-1, H-1B, H-2B, H-3, L-1, O-1, O-2, P-1, P-2, P-3, Q-1, R-1 and TN classification who have timely filed extensions with the same employer. 

For H-1B extensions, the employer should write “240-Day Ext” and record the date the employer submitted the I-129 Petition Extension to USCIS in the margin of the I-9form next to Section  2 (Page 17).  Further guidance is provided as to what documentation should now be attached to the I-9 form, as follows:

• A copy of the Form I-129 that was filed
• Proof of payment
• Evidence that the new I-129 Petition was mailed to USCIS
• After the extension is filed, USCIS will issue a receipt notice (Form I-797C) which should also then be added and retained with the I-9

Upon approval of the case, the employer should record in Section 3 the document title, number and expiration date listed.  The Handbook further states that the employer must give to the employee the Form I-94A attached at the bottom of the approval notice, which is evidence of the employee’s nonimmigrant status.

J-1 Exchange Visitors and M-1 and F-1 Students Changing to H-1B Status (“The Cap Gap”) – Pages 11-13   This section now includes details on how to complete Section 2 and confirms that the student’s employment authorization will remain valid through September 30^th of the calendar year for which the H-1B is filed, so long as the student’s H-1B status will begin on October 1^st.  The Handbook also informs that an employer must re-verify a student’s Form I-20.  The Form I-20 must show that the cap-gap extension was endorsed by the student’s designated school official.  Re-verification must be done no later than October 1^st.

I-9 Retention Calculator (Page 23)   The Handbook now includes an IRS retention calculator to help employers determine the retention date for terminated or separated employee I-9s.

Electronic Retention of the I-9 Form and Documentation of Electronic Storage Systems – What’s New?  (Page 24)   The Handbook expands guidance to employers that use paper, electronic systems or a combination of paper and electronic.  Employers must follow particular guidelines should they choose to retain their I-9s in an electronic storage system.  Employers who are currently using an electronic retention system or contemplating the future use of an electronic retention system should review the information outlined in the Handbook and consult with their immigration or attorney.

Employees with Temporary Protected Status (TPS)…Page 10   The Department of Homeland Security (DHS) may extend a country’s TPS designation by issuing a Federal Register notice that automatically extends expiring Employment Authorization.  A TPS employee may choose to present an Employment Authorization Document (EAD card) that is expired so long as it has been automatically extended.

 So, how do you determine if the TPS EAD card is a valid List A document?  There is now guidance on how to determine whether DHS has issued an automatic extension of expiring EADs, and how to explain that the status has been extended, as well as sample images of an EAD card that has been issued.  There is additional guidance on how to re-verify refugees and asylees.

Federal Contractors (Page 19)   The new Handbook provides  additional guidance to Federal Contractors about their responsibilities under the amended FAR related  to employment eligibility verification and states that the regulation requires contractors with a federal contract that contains the FAR E-Verify clause to use E-Verify for their new hires and all employees (existing and new) assigned to the contract.  Additionally, guidance is provided that where an employee working for a FAR employer undergoes a name change and the employer chooses to verify existing employees by updating existing I-9s, and then a new I-9 form must be completed.

Check out the new Q&A section on pages 37-49

For questions pertaining to the revised Handbook and how to implement the new guidance into your current I-9 policies and procedures, please contact our office.

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