On March 12, 2012 USCIS revised the FAQs that reference the Jan 8, 2010 Donald Neufeld Memo that relates to the employer-employee relationship in adjudicating H-1B Petitions for 3rd Party Jobsite Placements. This topic is still very complex and greatly impacts the IT, healthcare and staffing agency industries in their ability to file for H-1B visa petitions on behalf of foreign professionals.  We link above to this updated guidance, and  remind you that our office is available to assist you with your H-1B case filings as it relates to these and other industries. If you have any questions pertaining to this topic or any other matter, please contact us.

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.

Top officials from the White House and the U.S. Citizenship and Immigration Services are in Silicon Valley for the week to solicit viewpoints and input from the start-up community on how the administration can improve the way it hands out visas to talented entrepreneurs who’ve landed funding to create new companies.  While Obama is asking the question how he can improve the immigration process for foreign entrepreneurs, he’s stating to UniVision, “I’ve got 5 years left to solve immigration.”  Our question is, must we really remain in the dark ages for 5 more years?

The article states that comprehensive immigration reform legislation continues to remain stalled in congress, as is specific bi-partisan legislation that attempts to address some of these start-up visa issues. So the Obama administration is left trying to make the most of the rules that it currently has on the books by re-interpreting a more accommodating implementation of those rules with fresh information gathered from the field.   The consensus is that Obama lacks the conviction to use his executive authority in an election year on controversial immigration issues, and that this is simply PR.  We say — this is exactly the time for him to use his executive authority anywhere he possibly can concerning immigration reform.   We shall see if anything comes of this.  More on this here.

The Department of Labor announced last week that it will be suspending the processing of prevailing wage determinations (PWDs) for most case types,  including PERM labor certifications and H-1B cases – while it complies with a federal court order that requires them to reissue some 4,000 PWDs for the H-2B temporary non-agricultural visa program. The suspension will mean that some employers may be delayed in their ability to commence recruitment on or file PERM labor certification applications.  DOL has not indicated when it will resume issuing non-H-2B PWDs, but because its H-2B workload is considerable, it may not return to full-scale PWD processing for several months.

Though the suspension involves several immigration case types, PERM applications, by far, are the most severely affected due to the time-sensitivity given that the results of an employer’s labor certification recruitment are valid for just 180 days. If a request for a prevailing wage determination is delayed and an employer has commenced the recruitment phase prior to receiving the PWD, an employer’s recruitment could expire, meaning that the entire recruitment process would have to be redone before a PERM application could be filed. The effect on H-1B petitions is far less because employers can use the OFLC Wage Data Center or other independent surveys to determine the prevailing wage for an H-1B position.

DOL’s official timeframe for processing prevailing wage requests had been 60 days, but they had been turning them around in about 30 days.   It appears that the suspension is affecting PWRs filed as early as the beginning of June 2011.

Action Item for Employers: If you require a PERM Labor Certification Application be filed in order to continue employment for your H-1B visa holders who are approaching the 6-year maximum period of stay, you cannot start these cases early enough.  Please discuss strategy and planning with your immigration professional right away, or give our office a call to discuss your case concerns.  We will keep you updated as developments occur.

This is the best news we’ve heard in weeks.  As Jack Welch (former CEO of GE) recently stated in a CNN interview with Piers Morgan (to paraphrase)… We must have a compelling mission of innovation through which to filter and shape our decision making and legislative reform.

Compete America,  a coalition dedicated to ensuring that the United States has the highly educated workforce it needs to continue to lead in innovation and job creation, applauded yesterday the House Republican Technology Working Group for committing to review current visa rules that inhibit access to highly educated, innovative foreign workers among its policy priorities for job creation.

Under the section, “Ensure American Access to the Best Workers,” the Working Group committed to “examine current education programs to make sure they are operating efficiently.  We will also examine current visa and immigration laws to make sure we attract and retain the best and brightest minds from around the world.”

The American Council on International Personnel (ACIP) had this to say in their Press Release yesterday:

“…Today we applaud the House Republican Technology Working Group for including among its job creation priorities a commitment to review current education policies and immigration laws to ensure that America has access to the best talent, from America and around the world. In its list of priorities, “A Focus on Technology Policies that Foster Job Creation,” released today, the Working Group states:

Ensure American Access to the Best Workers: We will examine current education programs to make sure they are operating efficiently.  We will also examine current visa and immigration laws to make sure we attract and retain the best and brightest minds from around the world.

The commitment is consistent with several recent calls for reform made by both Democratic and Republican leaders, and is in line with ACIP’s long-held position that improving U.S. STEM education and reforming highly educated employment-based immigration policies to allow access to the world’s best and brightest are both needed for building America’s 21^st century workforce.

We applaud the House Republican Technology Working Group for making a commitment today to review education and visa policies to ensure a strong American workforce, said ACIP Executive Director Lynn Shotwell.  We urge Congress and the Administration to join together and enact bipartisan reform of the high-skilled employment-based immigration system this year.”

US companies have contributed nearly $2 billion in H-1B fees to scholarships and US worker training since 1999.  For a list of companies contributing to education and the future of the American workforce, we link here

For more editorial content on this subject:

CNN:  Fareed Zakaria, How to Innovate

Wall Street Journal

The Washington Post

Forbes

The Watertown Daily Times

On Thursday,  3/31/11, a House Immigration Subcommittee hearing underscored the U.S. economy’s reliance on scientists and engineers from abroad. The hearing, entitled “H-1B Visas: Designing a Program to Meet the Needs of the U.S. Economy and U.S. Workers,” was characterized by considerable disagreement among witnesses and subcommittee members as to how the H-1B program for highly skilled foreign professionals should best be structured in terms of wage protections and job portability. But virtually everyone, including Subcommittee Chairman Elton Gallegly (R-24th/CA) and Judiciary Committee Chairman Lamar Smith (R-21st/TX), agreed that foreign-born scientists and engineers, including many who come to the United States on H-1B visas, make critical contributions to the U.S. economy.

CEO’s and the Institute of Electrical and Electronics Engineers (IEEE), a professional association, had a rare opportunity to make their case on the H-1B program  and up, wrote the House Judiciary Committee to emphasize the value of green cards.

For Tom Brokaw’s report on entrepreneurs leaving Silicon Valley, we link here.

…and for your listening pleasure, here is an animated version of an attorney explaining the PERM Labor Certification program (the 1st step in the green-card process) to a client, entitled When will Kumar get his Greencard? – Enjoy!

USCIS announced today that it has published a proposed rule that will save US businesses more than $23 million over the next 10 years by establishing an advance H-1B registration process for U.S. employers seeking to file petitions for foreign workers under the H-1B specialty occupation category.  The proposed electronic system would minimize administrative burdens and expenses related to the H-1B petition process—including reducing the need for employers to submit petitions for which visas would not be available under the visa cap.

USCIS Director Alejandro Mayorkas announced today the opening of a 60-day comment period that will allow businesses and the general public to provide input on the proposed system in order to ensure it best meets the needs of employers that rely on H-1B visas to bring in foreign workers for specialty occupations.  Mayorkas expressed that “Improving the H-1B petition process is part of USCIS’s ongoing efforts to leverage new ideas and innovation to streamline our operations and enhance customer service.”

The employer would go through an online, electronic a process that would take an estimated 30 minutes to complete.  Before the petition filing period begins, USCIS would select the number of registrations predicted to exhaust all available visas. Employers would then file petitions only for the selected registrations. The registration system would save employers the effort and expense of filing H-1B petitions, as well as Labor Condition Applications, for workers who would be unable to obtain visas under the statutory cap.

The proposed rule, which posted to the Federal Register today for public viewing, contains complete details about the registration system and estimated cost savings. USCIS encourages formal comments on the proposed rule.  We link to the following additional information:

Fact Sheet

News Release

Our January 2011 newsletter with I-9 and E-Verify updates and US and Canadian immigration news is now available.

If you haven’t had a look at our I-9 Employer Resource Center, please take a minute to do so, fill out the Survey and send it along to us:  www.I-9Audits.com

Over the last year, employers have continued to experience unannounced site visits by U.S. Citizenship and Immigration Services’ Office of Fraud Detection and National Security (FDNS), and it is expected that site visits will increase in 2011.  FDNS conducts site inspections to verify the information that employers provide in their immigration petitions. Most recently, site visits have focused on approved H-1B, L-1 and some O-1 petitions. Some employers have reported receiving multiple site visits pertaining to separate petitions and foreign workers.

In this series, we will address questions and inquiries that we have received pertaining to USCIS site visits.  If your company is contacted by an FDNS officer, you should call your designated Immigration Solutions professional immediately to discuss options, including the possibility of having counsel present during a site visit.

1)  Why is USCIS making employer site visits?   Site visits are conducted as part of a Benefits Fraud Assessment (BFA). BFAs are initiatives that review specific immigration programs – such as the H-1B or L-1 program – to determine the incidence of fraud in that particular program. A BFA typically lasts for several months. During this time, USCIS will randomly select a large number of petitions or applications for benefits in the particular category being assessed. These cases are assigned to FDNS officers, who visit the premises of sponsoring employers to verify the existence of the employer, the validity of the information the employer has provided in an immigration petition, and whether sponsored foreign nationals are working in compliance with the terms of their admission to the United States.

In addition to verifying the validity of data contained in an immigration petition, FDNS officers use information collected during site visits to help USCIS develop a fraud detection database. FDNS officers gather information to build profiles of the types of companies that have records of good faith use of immigration programs and records of immigration compliance, and also to identify factors that could indicate fraud. 

2)  Does USCIS give advance notice of a site visit?   Not necessarily. In most cases, officers from the FDNS unit will arrive at the worksite unannounced, though occasionally an officer may call the company to inform it of an impending visit.

3)  Can your attorney be present during the site visit?  You can ask to have counsel present during the site visit, especially because your attorney has submitted a Form G-28 notice of appearance of attorney, confirming that the company has legal representation in connection with each petition it files.  FDNS officers will not typically reschedule a site visit to accommodate the presence of an attorney, but may agree to allow counsel to be present by phone. In the alternative, you may contact your Immigration Solutions with questions during a site visit. If the officer is resistant, you should explain that having the company’s immigration counsel present or available by phone will help the employer respond fully and accurately to the officer’s questions and requests for information.

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As always, we welcome your feedback. If you are interested in becoming an Immigration Solutions client, please call our office at 562 612.3996 and request a consultation. We handle a broad range of business related immigration matters and have an active employer compliance practice and consult on proper I-9 (Employment Eligibility Verification) best practices, auditing, training, and work with our clients to develop compliant immigration policies and procedures.  We offer these services, as well, to government contractors and advise on FAR E-Verify enrollment and compliance issues.  Visit our new I-9 Employer Resource center here

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