We applaud President Obama’s announcement of  broad executive action to offer temporary relief from deportation to millions of undocumented immigrants, stating that the separation of families or the oppression of low-wage immigrant workers is “not who we are as Americans.”

Concurrent with the televised nationwide presidential address last night, the Department of Homeland Security (DHS) Secretary issued a series of memoranda outlining the various facets of the programs and policies which would constitute, in total, “executive action” relating to immigration matters such as:  Revising Removal Priorities, ending Secure Communities and replacing it with a New Priority Enforcement Program, expanding DACA, extending DACA to Parents of US citizens and Permanent Residents, revising parole rules, expanding Provisional Waivers to spouses and children, modernizing high-skilled business-related immigration, and more.  We link to this information above.

Additional specific information on the initiatives contained in the Executive Action taken by President Obama can be found here

There are certain classes of non-profit employers who are exempt from the H-1B cap. The exemption from the cap only applies to institutions of higher education, non-profit research institutions, government research institutions, and non-profits formally affiliated with an exempt educational institution.  Let’s discuss this.

 Institutions of higher education: Under the definition, an institution of higher education is one which:

• admits students who have completed secondary education;
• is licensed to provide education beyond secondary school;
• provides educational programs for which the institutions award bachelors’ degrees or provide programs of not less than 2 years that are acceptable for full credit toward bachelors’ degrees;
• is a public or nonprofit institution; and
• is accredited or has been granted pre-accreditation status by a recognized accrediting agency.

What does it mean to be related or affiliated to a higher education institution nonprofit entity?

The USCIS states that it is sufficient that a nonprofit entity is related or affiliated to an institution of higher education through shared ownership, control or be somehow affiliated to the higher education institution as a member, branch or subsidiary.

This narrow definition makes the types of non-profits that qualify for this exemption few and far between.  For instance, non-profit service, community, policy and arts organizations would not qualify for the exemption from the H-1B cap. Unless the non-profit employer is primarily devoted to research, or is formally affiliated with a university, it will not qualify as a cap-exempt H1B petitioner. Public secondary schools do not qualify for H1B cap-exemption unless they have a formal affiliation agreement with a college or university. However, the exemption does cover certain professionals employed by a for-profit entity but but does when working at an exempt location, as long as the work continues to serve the core mission of the exempt institution, such as a physicians’ practice group affiliated with and located at a university teaching hospital.

Nonprofit Research Organizations | Government Research Organizations:  Nonprofit research organizations or governmental research organizations, are defined in 8 CFR 214.2(h)(19)(iii)(C), as follows:

•   A nonprofit research organization is an organization that is primarily engaged in basic research and/or applied research.
•   A governmental research organization is a United States Government entity whose primary mission is the performance or promotion of basic research and/or applied research.

Basic research is general research to gain more comprehensive knowledge or understanding of the subject under study, without specific applications in mind. Basic research is also research that advances scientific knowledge, but does not have specific immediate commercial objectives although it may be in fields of present or potential commercial interest. It may include research and investigation in the sciences, social sciences, or humanities.  

Applied research is research to gain knowledge or understanding to determine the means by which a specific, recognized need may be met. Applied research includes investigations oriented to discovering new scientific knowledge that has specific commercial objectives with respect to products, processes, or services. It may include research and investigation in the sciences, social sciences, or humanities.

Conclusion

It should be noted that all of the criteria above must be met in order for an institution or an organization to qualify for a cap-exempt status for H-1B purposes. Such institutions and organizations can indicate that their H1B filing is cap exempt by marking Form I-129 (Petition of Non-Immigrant Worker) with a “yes” answer to questions 1, 2, or 3 in Part C of the H1B Data Collection and Filing Fee Exemption Supplement. Bear in mind that an employer or a foreign national who wishes to seek H-1B status under a cap-exempt petition must verify that they qualify for the cap exemption under one of the three categories above. It is recommended that you work with an immigration practitioner that understands this casework as the analysis is often complex.  If you’d like to become a client of our office, please contact us at info@immigrationcompliancegroup.com or call 562 612-3996.

By:  Timothy Sutton, Communications Editor

Kansas Senator Jerry Moran (R-Kan.) has introduced a Senate Bill named S.3217 Startup 2.0, a bill to jump-start economic recovery through the formation and growth of new business, and for other purposes. Numerous senators support Startup 2.0, which will infuse the skilled labor market with an additional 50,000 visas for immigrants with post-baccalaureate degrees in any field listed with the Department of Homeland Security STEM Designated Degree Program (science, computers, and medicine). Applicants can be students seeking degrees or professionals practicing in any of the enumerated STEM fields.

Additionally, Startup 2.0 allocates 75,000 visas for qualified entrepreneurs who (1) hold a nonimmigrant visa or have or will complete a STEM listed degree, (2) register a business that employs two or more full-time non-relative employees and invests or raises at least $100,000 that (3) grows the business to an average of five employees within a three year period.

At first glance, Startup 2.0 is a positive indicator that immigration reform may be shifting toward pro-business legislation. This bill would create access to citizenship for educated foreign entrepreneurs who may lack the funding necessary to apply for an EB-5.  Startup 2.0 may also free up the quota on H1-B visas, particularly the Master’s degree exception. The current H1-B quotas as of May 18, 2012 are 42,000 for the H-1B regular cap (65,000 quota) and 16,000 for the US Master’s Degree cap (20,000 quota).  The cap is expected to be reached within 2-3 weeks.

To stay informed about the latest immigration news and updates subscribe to our blog and immigration and I-9 newsletters here.

By:  Timothy Sutton, Communications Editor

The Hamilton Project, at the Brookings Institution held a forum on U.S. immigration on May 15, 2012. US Davis Economist, Giovanni Peri, purposed a radical overhaul to the entire immigration system. In short, Peri proposed a national auction system wherein employers bid for employee visas and proceeds of these sales fund local healthcare and education. The auction prices would be set with a reserve to ensure a minimal guaranteed income stream. Uncapped, the market would dictate the number of visas issued annually. This proposal seems to find a common ground between business needs and government regulation, benefiting the low-skilled labor market.

Auctioning low-skilled labor visas should help reduce the population of roughly 11.5 million illegal immigrants. Employers will be able to hire a legal workforce up to the point where auction prices for visas offset low wage savings. At that time, I-9 audits and workplace raids should continue to deter further hiring of illegal immigrants. This larger, stable and legal temporary workforce will help stabilize the economy. Changes are welcomed for companies like 3M that recently experienced a “brain drain.” 3M has been outsourcing science and technology jobs to Asia, citing the instability of the low skilled labor market they rely on to support their laboratories, manufacturing, research and development.

While Peri’s proposals are likely years away from actually being introduced into legislation, public officials like Senator John Cornyn continue to push for business friendly immigration. Senator Cornyn recently introduced legislation that would add 85,000 H-1B temporary visas issued annually to foreign-born engineers, mathematicians, scientists and other high-tech workers. Cornyn reminded the Senate, “We have to remember how this country was built. All of us are sons and daughters of immigrants that showed up here and made our way. We’ve cut off that flow.”

For continued coverage of proposed immigration reform and legislation, as well as the latest developments in immigration politics, subscribe to our blog and immigration and I-9 newsletters here.

Interested in staying current with I-9/E-Verify news and issues?  Check out our group on LinkedIn.

With H-1B filing season upon us as of April 2, 2012, we take this opportunity to remind you that although there has been slow but steady economic recovery over the last few years, the H-1B cap is expected to be reached much faster this year.  This, coupled with a recent NFAP Policy Report Analysis released this month citing case denial rates of 17% with a staggering RFE (Request for Evidence) rate of 36%, sends a clear, “culture of no” message that USCIS is making it more difficult for skilled foreign nationals to work in the USA with increasing denial rates for both the H-1B and L-1 visa programs.  All the more reason to be relying on experienced business immigration council for your case filings.

The NFAP report states, “Employers report the time lost due to the increase in denials and Requests for Evidence are costing them millions of dollars in project delays and contract penalties, while aiding competitors that operate exclusively outside the United States beyond the reach of USCIS adjudicators and U.S. consular officers.”

Small to medium-size companies and IT consultants and staffing agencies often bear the burden of these overbearing RFE’s.  Working with smart immigration practitioners and preparing your case strategy in advance to address both your strengths and weaknesses, will pay off greatly.  Here are some tips that we highly recommend be incorporated in your filings:

1)     Incorporate a detailed brochure and description of the employer’s products or services and why you require a professional with a bachelor’s degree to perform the offered position.  Include promotional materials, press releases or news articles to illustrate the nature of the business, new trends and growth factors in your business that substantiate the offered position.

2)     Include a copy of your corporate tax return or financial statements to evidence profit and business stablity

3)     Explain in detail why the position cannot be performed by an employee without a bachelor’s degree; i.e. is it standard in your industry?  Provide detail (such as examples of work to be done) concerning the complexity of the position

4)     Provide a real, detailed job description with the percentage of time spent on the duties of the position, the qualifications and special skills required to perform the job.  Further explain any discretionary judgment that the employee will have in their job and other such areas of responsibility that are demanding or highly advanced

5)     Provide evidence that you have a current and past practice of hiring bachelor’s degree employees for the subject position

6)     IT and staffing agencies must be prepared to evidence the “employer-employee relationship” in H-1B offsite placement work situations by clearly evidencing the employer’s ability to “hire, pay, fire, supervise, or otherwise control the work of the employee. (based upon the January 8, 2010 Neufeld Memorandum).

If you’d like to set up a time to discuss your case with our office or to engage our services, please feel free to contact us.

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.

At the American Immigration Lawyers Association (AILA) 09/2010 Stakeholder Conference, the Vermont Service Center (VSC) advised that if compliance issues arose during the previous H-1B approval period, VSC could request evidence of all work performed during the previous H-1B approval period on requests for extension cases. VSC also confirmed that they are issuing one-year approvals where third-party work assignment is documented for less than one-year.

In light of the increase in RFEs focused on the employer-employee relationship, right to control, and availability of “qualifying employment” at third-party worksites, it is suggested that the following practice pointers be utilized in order to maximize the likelihood of securing a three-year H-1B extension for petitions involving placement at third-party worksites:

1. Submit a certified labor condition application (LCA) that lists multiple work locations, including the Petitioner’s home office address, as well as the third-party worksite location(s);
2. Document “qualifying employment” for the Beneficiary at the third-party worksite through End-Client letters confirming a project duration of longer than a year, preferably for the entire three years if the requested validity is three years;
3. End-Client letters should specify the job duties for the Beneficiary at the worksite, duration of the project, supervisor’s name, and supervisor’s telephone number. It is critical to establish that the Beneficiary is an employee of the Petitioner and that the Petitioner retains the ultimate “right to control” the Beneficiary;
4. Provide evidence of “qualifying employment,” such as: contracts, statement of work, work order between Petitioner and End-Client (if there are intermediate vendors involved, offer the entire chain of contracts between the Petitioner and End-Client); and
5. Submit Employee Handbooks as evidence of “Employer-Employee relationship” and “right to control.” Petitioner’s Employee Handbook should include issues such as salary, benefits, payroll procedures, performance evaluations, project progress review procedures, supervision of beneficiary’s work, right to hire/fire, etc. All of the previous stated items for the Petitioner’s Employee Handbook are requirements identified in the January 8, 2010, Neufeld Memo (AILA Doc. No. 10011363).

Immigration Solutions is available to assist you with with your H-1B case filings. Please contact us here

As USCIS continues its H-1B enforcement efforts, the Department of Labor announced last week its latest case – a computer consulting company in New Jersey – that was fined $638,449 in back wages and interest and $126,778 in civil penalties.  The company was also barred form using the H-1B program for one year.  DOL additionally reported in its announcement that their investigations since 2005 have resulted in $5.6 million in back wages and $300,000 in civil monetary penalties in New Jersey alone.

The most common violations include:

1. Failing to pay the required wage on the H-1B petition
2. Failing to post the Internal Job Posting Notice of the filing of a labor condition application at every worksite where H-1B workers are employed, and
3. Failing to pay nonimmigrant workers the required wage for all non-productive time caused by conditions related to employment.  This includes lack of assigned work between projects and non-employment because of a lack of a permit or license or studying for a license exam.

Immigration Solutions provides comprehensive assistance to our clients in developing and maintaining best practices necessary to assure compliance with USCIS and Department of Labor regulations.  We have extensive knowledge of the H-1B and LCA regulations and provide our clients with the tools necessary to run a successful H-1B program, including the preparation of Public Access Files and the set-up and maintenance of LCA tracking systems.

In a November 18th Press Release the Ambassador announced a more convenient visa application processes, effective immediately, and that the  U.S. Embassy in New Delhi and Consulates General in Mumbai, Chennai, Kolkata and Hyderabad will now accept visa applications from across India at all visa facilities, regardless of the applicant’s home address or city of residence. This is part of
Mission India’s ongoing effort to facilitate legitimate travel to the United States.

Following the opening of Consulate General Hyderabad in 2008, the U.S. Mission has looked for ways to best capture
the dynamism of India’s growth across the nation.  As a result, they have  redesigned the consular districts, as follows:

Embassy Delhi: Bihar, Delhi, Haryana, Himachal Pradesh, Jammu and Kashmir, Punjab, Rajasthan, Uttarakhand, Uttar Pradesh, Bhutan;

Consulate Mumbai: Goa, Gujarat, Madhya Pradesh, Maharashtra, Diu and Daman, and Dadra and Nagar Haveli;

Consulate Hyderabad: Andhra Pradesh, Orissa;

Consulate Chennai: Karnataka, Kerala, Puducherry, Lakshadweep, Tamil Nadu, Andaman and Nicobar Islands;

Consulate Kolkata: Arunachal Pradesh, Assam, Chhattisgarh, Jharkhand, Manipur, Meghalaya, Mizoram, Nagaland,
Sikkim, Tripura, West Bengal

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President Barack Obama on Friday signed a bill directing $600 million more to securing the U.S.-Mexico border, a modest election-year victory that underscores his failure so far to deliver an overhaul of immigration law from Congress.

Obama signed the bill Friday in a low-key Oval Office ceremony alongside Homeland Security Secretary Janet Napolitano. There were cameras present, but no reporters. The action came a day after the Senate convened in special session during its summer recess to pass the bill.

“Look, only Congress can pass a bill,” Napolitano said. “The president can advocate. He can get them to the table, as he has in the Roosevelt Room upstairs. He can implore. He can provide ideas. He can agree to a framework, as he already has. He can give a major address that spells out what’s needed in a bill, but only Congress can pass a bill.”

The new law will pay for the hiring of 1,000 more Border Patrol agents to be deployed at critical areas, as well as more Immigration and Customs Enforcement agents. It provides for new communications equipment and greater use of unmanned surveillance drones. The Justice Department gets more money to help catch drug dealers and human traffickers.

“Efforts to overhaul our broken immigration system have once again taken a back seat to appeasing anti-immigrant xenophobes, as Congress passed another dramatic escalation in border enforcement with very little evidence that past escalations have been effective,” said Margaret Moran, president of the League of United Latin American Citizens.

More on this

Obama’s Statement on Passing the Border Security Bill

USA Today