The Texas Service Center employment-based I-485 Email Pilot Special Notification Initiative is to provide a mechanism by which applicants can facilitate TSC processes relating to specific EB I-485 application scenarios through an email address.  The email address for this purpose is:

EBUPDATE.Tsc@dhs.gov

Applicants will receive an automatic reply from TSC stating that the email was received.  After submitting information through this pilot email initiative, one follow-up inquiry may be sent if no communication has been received from TSC, such as a decision notice, a request for evide3nce, or other notice, within 90 days.  The automatic email reply will provide further information on how to submit the follow-up inquiry.

The notice was posted today on AILA and is not yet available to the public.  Here is a copy of the Notice dated 4/22/10 on this program:

http://www.docstoc.com/docs/37276568/TSC-Applicant-I-485-Email-Pilot-Program

The program covers 4 different scenarios:

1. What is the procedure to notify TSC when an applicant is eligible for porting under AC21?
2. What is the procedure to notify TSC when an applicant has multiple approved I-140’s with priority dates that are visa available?
3. What is the procedure to notify TSC when an applicant is eligible for cross-country chargeability?
4. What is the procedure to notify TSC when an applicant has an adjustment case that should be transferred?

We’ll see how well this works, and we applaud TSC for giving this a try.

An employer may make “short-term placement(s) or assignments” to new places of employment in areas of intended employment not listed on the original LCA w/o filing a new LCA. Short term placements may occur only under certain conditions for strictly limited periods.

1)      The employer has satisfied all obligations under the existing LCA covering the H-1B worker

2)      There is no strike or lockout at the new worksite in the occupational classification of the H-1B worker; and

3)      The employer continues to pay the required wage based on the original LCA and also pays all lodging, travel, meals and incidental or misc expenses associated with the worker’s stay at the new location, for both workdays and non-workdays.

Short-term placement at any worksite or combination of worksites in a new area may not exceed 30 workdays in a one-year period, or under certain circumstances, 60 workdays.  Workdays counted toward the limit may be nonconsecutive and may be at different specific worksites within the area of employment.  Weekend, holiday or other non-workdays do not count.  Thus, the 30-workday limit would typically be about 6 weeks.

It is recommended that you obtain the advice of an experienced immigration attorney who understands this issue. If you are not a client of our office and would like to be, please contact me directly.

Leslie Davis, Managing Director
Immigration Solutions
D 562 612.3996
Our News: http://www.immigrationsolution.net/newsletter-April-2010.php

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.

Beginning March 1, 2010, VisaScreen renewal applicants who can demonstrate employment in the United States in the health care profession that is designated on their International Commission on Healthcare Professions VisaScreen certificate do not have to take another approved English exam for renewal of their VisaScreen certificate if the following criteria are met:

1)  The period of employment must be for at least 27–36 months, including nine months of the year before the date an applicant submits the renewal application.

2)  They will need to have their employer submit an employment summary on corporate letterhead with the appropriate signature for the English requirement to be waived.

CGFNS has made the U.S. Department of Health and Human Services aware of this policy change.

CGFNS is an immigration-neutral, nonprofit organization based in Philadelphia, Pennsylvania, USA, and is an internationally recognized authority on the education, registration and licensure of nurses worldwide. CGFNS’s mission is to provide responsible leadership in the delivery of relevant services to the global nursing and health care community. The organization was founded in 1977 through a collaborative effort by representatives from the U.S. Department of Labor; Department of Health, Education and Welfare (now the Department of Health and Human Services); the Immigration and Naturalization Service; and representatives from nursing organizations, including the American Nurses Association and the National League for Nursing.

For additional information about CGFNS and its services, contact: CGFNS International, 3600 Market Street, Suite 400, Philadelphia, PA 19104-2651 USA; telephone: +1 (215) 222 8454.

ICE is not backing off sending I-9 audit notices to US employers.  It’s latest  round of 180 NOI’s (Notice of Inspection) were sent to employers March 2nd in 5 Southeastern states:   Louisiana. Alabama, Arkansas Tennessee and Mississippi.  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 laws and regulations.

Employers are required to complete and retain a Form I-9 for each individual they hire for employment in the United States. This form requires employers to review and record the individual’s identity document(s) and determine whether the document(s) reasonably appear to be genuine and related to the individual.

Due to the ongoing, law enforcement sensitive nature of these audits, the names and locations of the businesses will not be released at this time.

We link to the Press Release on the ICE website

A strong reminder to employers: Compliance with immigration law is crucial in this enforcement climate. We are in a historic moment regarding U.S. Immigration reform. Major U.S. companies have been slapped with steep fines for non-compliance with immigration laws and contractors have been closed and even jailed for employing illegal immigrants. Now is the time for prudent companies to implement a Corporate Immigration Compliance Program. Our firm’s years of experience and knowledge with employer compliance and worksite enforcement issues can assist your business in offsetting the extent of sanctions and other ICE enforcement threats.  Because of this, employer compliance is becoming more complex and enforcement (investigations and audits) is increasing.

We have a very informative area on our website  relating to this topic.  Please refer to our services and solutions and contact us if you require assistance with I-9 management, audits or training.

In light of the recent controversial USCIS 19-page January 8, 2010 memo where USCIS takes a very strident and restrictive position on staffing agencies as employer/petitioners, we find it particularly disconcerting to learn that there are 200,000 contract employees working at the DHS, more than the 188,000 “civilian” workforce.

In a letter sent to the agency’s Secretary Janet Napolitano, Lieberman and Collins said the figure “raises the question of whether DHS itself is in charge of its programs and policies, or whether it inappropriately has ceded core decisions to contractors.”

Napolitano is slated to appear before the Senate committee and is expected to face questions on the subject. The senators want a unit-by-unit breakdown of where in Homeland Security the contractors are working and have asked for assurances that contractors are not performing “inherently governmental work.”

Clark Stevens, a spokesman for Homeland Security, told CNN Tuesday that “Secretary Napolitano has been strongly committed to decreasing the department’s reliance on contractors and strengthening the federal work force” at Homeland Security.

“Over the past year, we have been actively converting contractor positions to government positions and will continue to build on these efforts at an even more aggressive pace this year. We are working across the department to identify and make additional conversions as quickly as possible while sustaining the work force required to carry out our critical mission,” Stevens said.

How ironic could this possibly be?!  We will keep you posted.  For the story on CNN

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, 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, 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 is equivalent 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.

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.

If you are not a client of Immigration Solutions, we are available to discuss your H-1B filing needs.  Feel free to contact us.

The filing period for new H-1B visas under the cap opens soon, on April 1st.    So, now is the time for you to organize and plan to get the most from the new filing period.  You might wish to access a recent audio conference we had on the topic where we also address the tougher standards and document requirements and the new regulations around the employer-employee relationship.  Below is a brief review of what the employer needs to do to prepare:

1)  Plan and identify the workers subject to the cap:  The applicants that fall into this category are applicants for new H-1B visas that will most likely be either: (a) new hires or current employees with non-immigrant status that will NOT permit them to work continuously through October 1, 2010.  These would be F-1 students on OPT, J-1 exchange visitors and H-3 trainees; (b) candidates who are outside the USA and have not been counted against the cap; (c) Employees you wish to maintain on a permanent basis who might require a change of status as a necessary means to your long-term business strategy of sponsoring them for their green-cards (L-1Bs, L-1A managers who do not qualify for EB-1C multinational manager green-cards and TNs).

2)  Delays due to LCA Issues:  Utilizing the new iCERT system that still has many quirks, can delay filings up to 7-14 days, with erroneous and improper denials based upon their inability to verify the employer’s EIN#.  Given that LCA’s can be processed up to 6 months in advance for a cap case with a start date of 10/1/2010, with proper planning – these delays can be avoided.

On October 1st of every year, 85,000 new H-1B visas become available, with 20,000 of them set aside for advanced degree graduates of colleges and universities in the USA.  The “cap” quota only applies to filings for new employment.  H-1B extensions and transfers to a new US employer are not subject to the annual cap.

Employees of institutions of higher education and certain non-profit or government research organizations are exempt from the cap.  Please remember to discuss this category with your immigration attorney because it can be tricky.

Please do not hesitate to contact Immigration Solutions with any questions or concerns you might have.  We are available to handle your casework or, if you process your own H-1B cases, to consult with you and review your casework for approvable USCIS filing.

Yes – it’s the season to start preparing H-1B “cap” filings again for Fiscal Year 2011.

The USCIS FY starts on October 1st each year. Thus, fiscal year 2011 starts on October 1, 2010 and runs through September 30, 2011.  Regulations permit cap subject filings 6 months in advance of the October start date for cases to be received at USCIS on April 1, 2010.

The following are suggestions to help you for the upcoming cap season.  Our suggestions are based on existing law, as well as USCIS guidance and our experience from prior years.

USCIS frequently issues updated guidance with slight procedural variations for each fiscal year. For example, the LCA process changed in July – note it is taking sometimes up to 7 days to obtain an approval.  In case of a denial such as problems with verifying an employer’s EIN# which is quite common unfortunately, obtaining an LCA may take even longer.

Immigration Solutions is accepting H-1B cases for FY2011 at this time.  We have a team of experienced attorneys, case managers and paralegals in our business unit who are currently working on new H-1B cap-subject cases.  The cases will be prepared in advance and will be transmitted for delivery on March 31, 2010, for USCIS filing on April 1^st.  In order to file, it is necessary to have an appropriate job offer from a U.S. employer who is willing to sponsor the H-1B case.

The USCIS has increased scrutiny on all H-1B cases and imposed tougher standards, particularly those filed in the IT consulting industry and for software companies. These new standards also affect healthcare staffing agencies that place workers at 3^rd party jobsites.   The standards for approval have become more stringent. It is necessary to recognize this trend when preparing new H-1B cap cases for filing.  For this reason, we recommend that you work with an experienced law firm that specializes in employment-based immigration. Click here to contact us for your new H-1B case now.

NOTE:  Immigration Solutions is sponsoring a free teleconference on February 10^th that will address the tougher standards in the H-1B category.  For more on this and to RSVP, we link to our blog