In this economy, we’ve received countless phone calls asking about this issue.  Putting an employee on leave (or “benching”) because you have no assignment for them does not relieve the employer from continuing to pay salary.  Doing so will expose you and your company to some very heavy-handed judgments, such as being assessed to pay back wages, benefits, and penalties on top of this.

As contract work becomes harder in this economy, particularly for those that work in the IT sector for an IT consultant or staffing agency, employers must protect themselves, even if it means that sometimes you must let a valuable employee go.

Per H-1B reguations, employers are required to pay full salary to the employee even during non-productive time.

If you have questions concerning this issue or require the expert services of our firm, please contact us today.

Leslie Davis, Managing Director

Immigration Solutions |  info@immigrationsolution.net |  562 612.3996

Immigration Impact Reports

The positive impact of Sunday’s rally on the mall for immigration reform is already in evidence.  Yesterday, after months of pressure, Senators Schumer and Graham finally released their blueprint for immigration reform and President Obama immediately pledged to help push bipartisan legislation forward. Next was Senator Reid who promised to make time for legislation on the floor this year and Senator Leahy also pledging his support. It’s hardly a coincidence that these statements all came days before the rally, which organizers predict will bring tens of thousands of people to Washington for an interfaith prayer service, three hours of speeches, and a peaceful march for change.

Cynics may ponder whether these are simply more empty promises, but that would ignore just how hard it is to get commitments from politicians on anything relating to immigration. The prospect of thousands of people calling you out on national TV has a way of focusing the political mind.

Immigration Solutions will re-visit this topic on Sunday.

Want to receive an email with our blog posts, you can sign up here.

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sent a letter to USCIS, requesting that the January 8th “Neufeld memo” on the “employer-employee relationship” be withdrawn listing four key problems.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

The 2 senators today released their plan to mend immigration in the Washington Post.  The announcement was praised by the President in this statement.  The Post article, authored by both senators, agrees that:

1. the system is broken
2. although our borders are more secure, there are still millions that enter the USA illegally with no way of tracking if they leave when their visas expire
3. employers are overburdened with a complex employment verification system for their workers
4. Most Americans oppose illegal immigration and support legal immigration

They further discuss continuing to hold employers accountable for the employment verification of their workforce and implementing a tamper proof ID system to decrease illegal immigration.

This is what Schumer and Graham propose and seek support on:

1. To introduce a biometric social security card to ensure that illegals cannot get jobs where each card would have its own unique identifier on the card and not in government databases.  Employers would swipe the card to confirm a person’s identify
2. Strengthen border and interior enforcement
3. Create a process for admitting temporary workers and allowing more lower skilled immigrants to come to the USA when the  economy is creating jobs and fewer in a recession.  Will also permit those who have put down roots in the USA  and succeeded in the workplace to obtain a green-card
4. Implement a path to legalization for those already here
5. Zero tolerance on gang members, felons, smugglers and terrorists and increase internal enforcement to apprehend and deport them
6. Complete an entry-exit system that tracks those that enter the USA on visas and report those who overstay to law enforcement databases
7. Increase the border patrol

The article closes with the following:

“For the 11 million immigrants already in this country illegally, we would provide a tough but fair path forward. They would be required to admit they broke the law and to pay their debt to society by performing community service and paying fines and back taxes. These people would be required to pass background checks and be proficient in English before going to the back of the line of prospective immigrants to earn the opportunity to work toward lawful permanent residence.

The American people deserve more than empty rhetoric and impractical calls for mass deportation. We urge the public and our colleagues to join our bipartisan efforts in enacting these reforms.”

We will continue to keep you informed and will report in more detail on the immigration plan in our April newsletter.

If you wish to subscribe to our blog posts, newsletters and other information, you can sign up on our website

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.”

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.

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