We have been advised that USCIS will hold a 2nd in-person and teleconferenced meeting on the above topic on Friday, March 26th at 3:00 (Eastern). We link to a copy of the Meeting Invitation that contains the RSVP information.

The American Immigration Lawyers Association (AILA) sent a letter to USCIS, requesting that the January 8th “Neufeld memo” on the “employer-employee relationship” be withdrawn listing four key problems.

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Here’s an update with some new developments in re the H-1B Memo:

1. The memo is a new policy that is inconsistent with current regulations: The regulations already define “employer” for H-1B context and indicates control when the employer “may hire, pay, fire, supervise, or otherwise control the work of any such employee.” The Memo adds additional requirements beyond what the regulations state.

2. The position taken by USCIS imposes significant economic burdens on business, at a time when the government should be trying to encourage business growth, in that employers will be required to spend considerable time and money gathering additional evidence to file their H-1B petitions and/or respond to RFE’s. Also, AILA pointed to several studies of the positive economic impact of H-1B employment, including a study that found that “U.S. technology companies increase their employment by an average of five U.S. workers for each H-1B worker they hire.”

3. The memo will have serious adverse affects on employers and individuals: AILA pointed to state restrictions on physicians being employed directly by hospitals and to locum tenens and other temporary staffing arrangements in the health care arena (including therapists) where it will be difficult to satisfy the new standards of the memo. AILA also pointed to government contracts as not being able to meet the standards. The memo will also negatively affect H-1B workers who change employers or extend status, and may have adverse effects on permanent residence petitions. AILA noted that it is not just the H-1B petitioner and the H-1B visa holder that are impacted — the end-users are also affected as they may experience a disruption in work for an H-1B worker that is not able to timely extend status or when additional staffing is needed.

4. The policy is spreading to other non-immigrant and immigrant petitions: AILA noted that USCIS has been adjudicating L-1 petitions and I-140 petitions based upon this new, heightened standard of the employer-employee relationship.

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For those of you who might have missed the Immigration Solutions teleconference that we had on “Tougher Standards for H-1B’s”, you can access the audio recording here.

If you would like to share with us any recent experiences you’ve had or your input as to how this Memo has impacted your business, please feel free to do so.

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Lastly, we are available to assist you with your H-1B filings and have developed some smart approaches as to how to deal with these new regulations and document requirements. Contact us today. If you file your own H-1B cases and require consultation or a skilled attorney to review your petitions, we also offer these services.

The government contracting official decides if your contract qualifies for the E-Verify clause and if you meet the following criteria:

• The contract was awarded on or after the Federal contractor rule effective date of September 8, 2009 and includes the FAR E-Verify clause
• The contract has a period of performance that is more than 120 days
• The contract’s value exceeds the simplified acquisition threshold of $100,000
• At least some portion of the work under the contract is performed in the United States

What if you use Subcontractors?

All subcontractors must also verify all existing employees directly performing work under the covered contract. Contractors will need to include a clause for a subcontractor if they meet the following criteria:

• Is for commercial or non-commercial services or construction
• Exceeds $3,000; and
• Includes work performed in the United States

We have a talented team of attorneys and specialists to assist you with pre-Everify audits, reporting and training to get you ready for enrollment. Call us to arrange a consultation today.  562 612.3996.  Our Compliance Services and Solutions: http://www.immigrationsolution.netemployer_compliance_services_solutions.php

California-based client receives FAR E-Verify contract language and waits until the 11th hour to get their I-9’s in order:

In order to properly enroll in the DHS FAR E-Verify free Internet-Based program, or a vendor-based Designated Agent program, the contractor must rely upon the accuracy of their I-9’s and the information provided by their employees on the I-9 form.  We recommend a proactive approach to this issue by obtaining a pre-EVerify I-9 audit (can be a random audit or a complete audit depending upon the condition of your I-9s) to pinpoint reoccurring issues and correc them – with accompanying I-9 compliance training and the establishment of policy and procedure around how your company will handle this function – then you’re ready to enroll in E-Verify.

If you have questions or require any of the above services, our distinguished team of attorneys and specialists are available to work with you on your compliance needs.

Leslie Davis, Managing Director
Immigration Solutions

As reported in Workforce Magazine

The lack of opportunities in the U.S. plus burgeoning business opportunities on their home turf are causing foreign workers to return to their native lands. Experts warn that the shift will force domestic firms to compete with their one-time workforce as they open their own companies in their native countries.

A 2009 survey by financial firm HSBC revealed that 23 percent of expats in the United States and 44 percent in the United Kingdom were considering going home because of the global economy. Although they originate from several countries, these expats from the U.S. and U.K. cited limited career prospects as the top reason for returning home.

Back in the U.S., the story is particularly startling, with one expert contending that the tide of expats heading home has reached historic proportions.

“For the first time in American history, expats are leaving,” says Vivek Wadhwa, senior research associate with the Labor and Worklife Program at Harvard Law School. “For the last decade or so, there’s been a massive outflux of talent, particularly to India and China. These are typically skilled professionals in the prime of their careers.”

Wadhwa says between 50,000 and 75,000 Indian and Chinese professionals went back home in the last 20 years. Those numbers will soon more than double.

“There will be another 100,000 to India and 100,000 to China in the next five years,” he says. “These people are driving innovations in their home countries that will become competitors to America.”

A shortage of green cards is a major cause for Indians and Chinese, as well as Brazilians and Russians, to return home. “We have a 10-year backlog for green cards,” Wadhwa says. “There are more than one million skilled immigrants—about 35 percent Indian and 25 percent Chinese—who are waiting.

“When we start seeing the next Google coming out of India and China, and people realize these advances are coming from former expats, that’s when the alarm bells will go off,” Wadhwa says.

Many of these expats would like to stay, says Lynn Shotwell, executive director of the American Council on International Personnel, an organization advocating improved business immigration policies.

“The perception is that if we really wanted to change things, we would,” she says. “The question is, are we losing our edge? The ability to attract the best and brightest from around the world was always a big strength for the U.S. Now we’re pulling up the welcome mat.”

Thanks to the recession, companies are evaluating the costs of international assignments and the need to bring expatriates home. . “Before, companies felt they needed to send people [abroad] to open markets and transfer technology and culture,” says Scott Sullivan, executive vice president of Brookfield Global Relocation Services, an international, full-service relocation company. “Now there are lots of capable people in those countries who can perform those jobs. [Companies ask] if they really need to send people overseas or can we hire locally. This is a big dynamic in global business.”

The petitions of applicants who will be processed at an overseas US Consular post are forwarded by USCIS to the Department of State (DOS).  Applicants in categories subject to numerical limit are registered on the visa waiting list.  Each case is assigned a priority date based on the filing date of the initial petition.  There are about 3.5 million on this list.  This is positively disastrous when you consider that our current laws permit 376,000 people to immigrant to the USA each year under the family-based and employment-based systems, with the average wait being over 10 years long!

There are probably another 1 million in the USA waiting to adjust their status and these numbers aren’t even reflected in the DOS report.

About 95% of the people on the list are in the family-based categories and more than 1/2 of these are  in the brother-sister 4th preference category.  At the 65,000 number level for this category, this is a wait time that averages 10-26 years!

The total employment numbers waiting a priority date:  130,509 including 119,759 in the EB-3 category.  This is a 3-4 year wait, ignoring per country limits.  The countries with the largest backlogs are the Philippines (45,331 – mostly nurses and their families.  Yes, there’s something wrong with this picture!) and India (20,467 – mostly IT professionals and their families – something is wrong with this picture, too!).  Then we hear politicians and uninformed folks saying “get in line and wait your turn”  – like the line is actually moving!

It’s a sad state of affairs that points squarely at the fact that we must first focus on legal immigration reform – getting these wait times down to something reasonable.  Do we have any representatives courageous enough to vote for legal immigration reform so that we have a system that doesn’t punish people who play by the rules?

As reported by ImmigrationImpact.com

This month marks the 7th anniversary of the DHS which is home to the nation’s three immigration agencies (ICE, CBP and USCIS).  It also marks the end of a sweeping internal review ordered by DHS Secretary Janet Napolitano which has not been made public.

The Immigration Policy Center has released a report entitled DHS Progress Report: The Challenge of Reform to assess the 1st year of the Obama Administration’s immigration policy.

On the plus side, there has been more public engagement and discussion of DHS priorities. ICE has announced, although not fully implemented, numerous detention reforms. It has done away with the massive worksite raids of the past few years, placing greater emphasis on employer violations. The Obama Administration and USCIS have made some genuine inroads into immigration fee reform, backlog reduction, and expanded naturalization and integration efforts. Secretary Napolitano has also invested significant time and resources into developing plans for comprehensive immigration reform.

These are just some of the examples of changes within the last year. Ultimately, this first year was mostly frustrating—a year where the promise of reform seems to fight daily with the dynamics of an entrenched belief in an enforcement driven culture. For every two steps forward, it seems that the Department takes one steps backward.

It has been reported that today President Obama is scheduled to meet with two key congressional players in the movement for immigration reform—Sen. Charles Schumer (D-NY) and Sen. Lindsay Graham (R-SC)—who are working together behind the scenes to draft a bipartisan immigration bill. The President is expected to ask the Senators to produce a reform bill blueprint that “could be turned into legislative language.” Some think that the meeting is another positive signal from the White House, and others view it as a “last-ditch effort in an election year.” Although interpretations are mixed, a spokesman for the White House affirmed that the President is still committed to reforming our immigration system.  More on this

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.  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 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 he or she has filed an application for the license according to the State or local rules and procedures and 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.  My email address is leslie@immigrationsolution.net, telephone is 562 612.3996.  If you’d prefer to request a consultation, you can do so here

Unlike many other industries, the healthcare sector is projected to continue growing.  The federal Bureau of Labor Statistics released a report in December 2009 that projected an additional four million jobs will be created in the healthcare and social assistance fields during the period from 2008 to 2018.

There’s an extreme shortage of primary care physicians; there’s an extreme shortage of registered nurses.  Healthcare organizations need to be proactive in planning for the future.

Expanding the capacity of nursing schools is another essential element in preparing the workforce for coming changes, especially if the healthcare system evolves to the point where it needs more advanced practice nurses. There will be a need to educate even more nurses, and capacity would continue to be a problem.

That means that many healthcare organizations may be scrambling to fill vacancies and to develop creative and efficient strategies to deliver patient care.

We link to this article in Healthcare Briefings for more.

CNN posted an interesting article on 12/23/09 that echoed what all of us have been saying in healthcare immigration and staffing, that the USA is facing an ever worsening nursing shortage as the population grows older.

Here are some of the comments:

America has had a nursing shortage for years, said Peter Buerhaus, workforce analyst at Vanderbilt University School of Nursing in Nashville, Tenn. But by 2025, the country will be facing a shortfall of 260,000 RNs, he said.  “In a few short years, just under four out of 10 nurses will be over the age of 50,” said Buerhaus. “They’ll be retiring out in a decade. And we’re not replacing these nurses even as the demand for them will be growing.”

Barry Pactor, international director of global health care for consulting company HCL International, agrees that more nurses should be trained within the U.S. system. But as a short term solution for this “huge shortage,” he said the U.S. government should loosen immigration restrictions on foreign health care workers.

“I don’t see this as foreign nurses taking American jobs, because these are vacancies that already exist and cannot be [filled] by nurses currently in training,” he said. “We’d be filling in the gaps until the training can catch up with the demand.” 

DHS employees are being asked to volunteer for assignments at U.S. diplomatic missions to help State Department officials review applications for visas.

The assignments, “some of which are located in high-threat areas,” would last at least 30 days, the notice states.

ICE agents already are posted in a dozen countries to weed out applications from potential terrorists or criminals, but the new notice seeks people to conduct in-depth background checks and write intelligence reports. Federal officials told CNN they would back up State Department officials who lack law-enforcement experience to look for security threats.

After meeting with his homeland security and counterterrorism team Tuesday, Obama told reporters that the government “has to do better” to stop attacks like the December 25 attempt to blow up Northwest Airlines Flight 253.

Additionally, U.S. anti-terrorism officials are pushing to get more air marshals on American jetliners and beef up efforts to screen visa applicants overseas after some stinging criticism from President Obama.

Internal notices issued Tuesday and Wednesday by the Department of Homeland Security is asking employees to step up to train as air marshals and to serve at U.S. diplomatic posts abroad. Both moves follow Obama’s call for immediate reforms to prevent the kind of “potentially disastrous” failure involved in the unsuccessful attempt to bomb a U.S. jetliner on Christmas Day.