Senators Bernard Sanders (I-VT) and Charles Grassley (R-IA) announced that they will introduce a bill to restrict the ability of employers to hire non-immigrant workers if the employer conducts “mass layoffs” under the Worker Adjustment and Retraining Notification (WARN) Act. The new bill, titled the Employ America Act (EAA), will be introduced in the U.S. Senate soon.

EAA would require employers filing temporary worker petitions to attest that they have not had a “mass layoff” in the 12 months immediately preceding the foreign worker’s proposed hire date and that they do not intend to have a mass layoff in the future. In addition, if an employer does conduct a mass layoff, all existing visas approved in the 12 months before the employer issued a “WARN Notice” would expire 60 days after the notice. Affected foreign nationals would be required to leave the United States within the 60-day period.  We link to the Senate Press Release

The Warn Act defines a massive lay off as:  A reduction in force that will result in employment loss at a single employment site during any 30-day period of (1) at least 500 employees, not including part-time employees; or (2) 50 to 499 employees, excluding part-time employees, if the laid-off employees constitute at least 33% of the employees at the site, also not including part-time employees. For purposes of WARN, an employment loss is (1) an employment termination, other than a discharge for cause, a voluntary departure or retirement; (2) a layoff that exceeds six months; or (3) a reduction in an employee’s work hours of more than 50% in each month of any six-month period. However, certain transfers to other employment sites are not considered to be employment losses.  An employer is not required to issue a WARN Notice if a mass layoff is the result of the completion of a particular project or undertaking, if the workers were hired with the understanding that their employment would be of a temporary duration.

The good news is – with comprehensive immigration reform (CIR) on hold until next year, it is doubtful that this will pass although it still could be introduced in another piece or legislation.

This is an extremely informative Q&A session between AILA and  USCIS that addresses the following major  topics:

1)  Excessive documentation requests for L-1 RFEs including L-1Bs involving placements at 3rd party sites

2)  H-1B Cap Exempt employers

3)  Right of Counsel for H-1B Site Visits…..and more

To highlight a few USCIS responses:

1) AILA provided examples to USCIS of explaining its RFE requests by providing examples (rather than endless lists of mandatory documents) of how to respond

2)  Re Counting periods of time abroad for L-1 Eligibility:  USCIS stated,  “Contrary to the AFM, precedent decisions and long practice, USCIS now states that only time in the US in L status, rather than any ‘authorized periods of stay in the US for the foreign employer’, does not interrupt the prior year of employment.

3)  Right to Counsel during the course of audits and site visits & training for Investigative Officers:

a.  “USCIS is in the process of amending several forms (Form I-129 instructions) and receipt notices to advise that USCIS may conduct compliance site inspections at any time pre or post adjusication.  There are currently no plans to provide advance notice of a site inspection conducted under the ASVVP”.

b.  Advance notice is provided by FDNS officers when conducting site visits/administrative inquiries on cases containing elements of suspeced fraud unless the officer believes that advance notice would jeopardize or hamper the site visit.  FDNS officers also provide notice to attorneys of record when conducting site visits under the Benefit Fraud Assessment and Compliance Program.

c.  Are petitioners/beneficiaries informed of their right to call their attorney and have the attorney present before questioning commences?  “Participation in an ASVVP compliance site inspection/any USCIS site visit, is volunary”.

d.  “A petitioner/beneficiary/other persons will be allowed to contact their counsel if they are immediately available (in person or by phone), however, such contact should not unduly delay the process or entail unusual accommodations in which case the site inspection or site visit may be terminated”.

e.  Site visits will not be rescheduled if an attorney cannot be present.  If the employer’s attorney is not available, the Inspector will note this in their report.  The report will be reviewed for follow-up action, if appropriate.

4)  Site Visit Officer Training:  “Training is provided to site inspectors and immigration officers during their basic training after their entry on duty.  The inspectors collect and report information which is then analyzed by immigration officers who do have appropriate immigration law training.”

Other topics in this report covered termination of empoyment authorization documents, I-130 denials that are appealed, Civil Surgeons training and monitoring, etc.   Well worth the read through.

We link to the Q&A document

As of October 25, 2009, approximately 52,800 H-1B cap-subject petitions and approximately 20,000 petitions qualifying for the advanced degree cap exemption had been filed. Seven months into this fiscal year and there are still H-1B visas available – but not for long!

Any H1-B petitions filed on behalf of a foreign national with an advanced degree will now count toward the general H1-B cap of 65,000. USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn.

The H-1B Petition is still a valid option for professionals with degrees in IT, Engineering, those in science and the arts, as well as many healthcare workers including PTs, OTs, Physicians, Pharmacists,  AHPs, and some nurses.

When considering Nurses for H-1B Visas, these are the threshold issues and key questions:

For Nurses:

1. The nurse must hold at least a Bachelor’s Degree in Nursing (a BSN), and

2. The position must normally require a Bachelors Degree.

For the Employer:

A. The hospital is offering the nurse a position as a Clinical Nurse Specialist (CNS), Certified Registered Nurse Anesthetist (CRNA), Certified Nurse-Midwife (CNM), a Certified Nurse Practitioner (APRN-certified) or positions in Critical care where the nurse holds certification;

B. If the nurse will be working in an Administrative position ordinarily associated with a Bachelors Degree, such as Charge Nurse or Nurse Manager;

C. If the nurse will be working in one of these specialties: peri-operative, school health, occupational health, rehabilitation nursing, emergency room nursing, critical care, operating room, oncology and pediatrics. And the hospital will attest that these roles are only offered to those with Bachelors Degrees. Some magnet hospitals have the BSN as its standards, and these make great destination hospitals for RN H-1Bs.

Contact Immigration Solutions if you are seeking representation to assist you with your H-1B case filings.  We have a professional team ready to handle your casework with reasonable and fair fees.  We specialize in IT, Engineering and Healthcare immigration, amongst other business sectors – both in the US and Canada.

The Department of Labor will be centralizingi prevailing wage processing.  The agency is scheduled to open its prevailing wage center in Washington, DC to begin centralized processing of PERM, H-1B, H-1B1 and E-3 NIV programs as of January 1, 2010.

Prevailing Wage Requests will be submitted to the National Center rather than to the State Workforce Agencies (SWAs).

The processing times from state to state vary widely at the present time and the determinations are not always consistent.  We’re not sure what to expect with the new program.  At the onset there will probably be longer processing  times, though DOL is assuring that this should result in more consistent prevailing wage determinations over time.

It has been reported that some 20,000 more unannounced employer site visits will be taking place over the next few months by FDNS, but this time it will be to employers who have filed H-1B extensions to determine if there is ongoing compliance by the employer.

It’s been asked, do they have the legal right to do this – just show up and demand to speak with a company’s representative or executive officer?  Yes, they do, although it hasn’t been acted upon to the extent we are now observing until your $500 Fraud Detection and Prevention government filing fee created the revenue to employ some 6,500 FDNS agents.  Up until now, USCIS or DOL agents have always been in a position to do onsite employer visits when they thought necessary – but it’s been rarely acted upon.  Presently, you can add ICE and FDNS to this group – because we’re in a hunt ‘em down, enforcement climate – and it’s the employers who are being targeted.

So, how does an employer handle this?  We don’t recommend that you wait to ask this question and to get your documentation organized when the agent comes knocking.  This is serious business now, and they are not just targeting the small to medium-size employer or the employer who has financial issues and can’t respond to requests to prove the ability to pay the offered wage to the employee.

Therefore, it is recommended that you discuss this with your immigration counsel now.  If you don’t have a representative, we are available to walk you through a program that will not only assist you in organizing your Public Access information and files, but we will give you the tools to prepare the company representative that will handle the agent site visit and to prepare them for the questions that will be asked, what documentation should be organized now and beeasily accessible to present to the agent when requested – and overall, how to successfully respond to a government site visit at your place of employment.

We’ve had several blog posts on the reverse brain drain issue.  This is a very interesting post that we found on TechCrunch today by Vivek Wadhwa, an entrepreneur turned academic who is a Visiting Scholar at UC-Berkeley, Senior Research Associate at Harvard Law School and Executive in Residence at Duke University.  The writer expresses concerns as to what is occurring in the IT sector today and why the brightest and the best are deciding not to put down roots in the USA.

Vivek spent Columbus Day in Silicon Valley meeting a roomful of new Indian arrivals to the USA. The event was organized by Think India Foundation, a think tank that seeks to solve problems that Indians face.

When introducing the topic of skilled immigration, the discussion moderator, Sand Hill Group founder M.R. Rangaswami asked the obvious question. How many planned to return to India?  He was shocked to see more than three-quarters of the audience raise their hands.  One has to ask why would such talented people voluntarily leave Silicon Valley, a place that remains the hottest hotbed of technology innovation on Earth? Or to leave other promising locales such as New York City, Boston and the Research Triangle area of North Carolina?

What they learned was that the average age of the Indian returnees was 30 and the Chinese was 33. They were really well educated: 51% of the Chinese held masters degrees and 41% had PhDs. Among Indians, 66% held a masters and 12% had PhDs. These degrees were mostly in management, technology, and science. Clearly these returnees are in the U.S. population’s educational top tier—precisely the kind of people who can make the greatest contribution to an economy’s innovation and growth. And it isn’t just new immigrants who are returning home, we learned. Some 27% of the Indians and 34% of the Chinese had permanent resident status or were U.S. citizens. That’s right—it’s not just about green cards.

We link to a letter co-authored by the Semiconductor Industry of America (SIA) and the Industry of Electrical and Electronic Engineers (IEEE) to the Congressional Subcommittee on Immigration.  The letter calls for sensible immigration reform – reforming quotas to match industry needs – reducing the ever-growing visa wait times for green-cards for skilled worker.

Today, the New York Times reports that the U.S. Citizenship and Immigration Service, USCIS, within the Department of Homeland Security is taking steps to prepare to process the visa applications that would be generated if comprehensive immigration reform with a broad legalization component passes the Congress in the next year. Referring to the expected surge in processing, USCIS Director Alejandro Mayorkas told the Times, “We are under way to prepare for that.” The following is a statement by Ali Noorani, Executive Director of the National Immigration Forum, a non-partisan, non-profit pro-immigrant advocacy organization in Washington.

The federal government is gearing up to process immigrants into the legal system and onto the tax rolls, which means the Obama Administration is serious about aligning itself to fight for immigration reform before Congress faces voters again in 2010.

We know that lawmakers in the House and Senate are developing legislative proposals and we know the commitment of Democratic leaders and the President to moving reform forward. Just last week, 111 Democrats in the House wrote to President Obama requesting immigration reform action this year. So we feel confident that a comprehensive immigration package will be unveiled this fall and will move forward early next year.

For additional info.

Our Immigration Newsletter and Podcast are now available.  This month’s issue addresses Immigration Reform, Employer Compliance Issues, Healthcare and IT news.  We link here

It’s hard to imagine that USCIS could get any more enforcement oriented than this filing season, being totally preoccupied with fraud.  Computerworld reports that Senator Grassley is asking immigration officials to toughen their demands for evidence from companies hiring visa workers.

His letter to USCIS Director Alejandro Mayorkas, released Tuesday, also comes just prior to the start of the new fiscal year, Oct. 1 and the release of 66,700 H-1B visas petitions, a number well short of the cap, applied for since April 1, the start of the annual petition process.

In a statement accompanying the release of his letter to Mayorkas, Grassley said, that “Employers need to be held accountable so that foreign workers are not flooding the market, depressing wages, and taking jobs from qualified Americans. Asking the right questions and requesting the necessary documents will go a long way in getting out the fraud in the H-1B program.”  For more on this, please refer to above link and Grassley’s letter to USCIS.

Further to our below blog post, the USCIS today published Q&A on the pending employment-based case inventory.  We link to this for your reference.

The first question that they answer is always what we wonder about, and that is:

Q: Why is the wait so long for my employment-based green card?

A: A visa must be available before a person can obtain an employment-based green card.  Because more people want a green card than there are visas available, not everyone who wants a green card can get one immediately.  Therefore, some people have to wait in line until a visa is available.  The U.S. Department of State (DOS) gives out 140,000 employment-based visas each year.  About 85% of those visas go to people seeking a green card in the United States, while about 15% go to people seeking to immigrate from abroad.  Currently, about 234,000 people have employment-based adjustment of status (green card) applications pending in the United States and are waiting to get a visa.   How long you wait for a visa depends on the supply and demand for your particular preference category, your priority date, and the country your visa will be charged to, usually your country of birth.

Q: What information do I need to have before using the pending Form I-485 inventory reports?

A: You need to know your priority date and your preference category to use the pending Form I-485 inventory reports.  For more information on priority dates and preference categories, see the “Visa Availability & Priority Dates” and “Green Card Eligibility” links to the right.

Q: How do I read the pending I-485 inventory reports?

A: First, click on the link to the report you want to view. Once you click on the link, the report will appear and you will see a series of charts, one for each preference category.  You will see that each chart has different numbers for each month and year.   These numbers show how many green card applicants have priority dates in that month and year.  To figure out how many applicants have earlier priority dates, add all the numbers from all the cells that correspond to earlier months.