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.

For what may by the first time, the number of H-1B petitions withdrawn by applicants or rejected by U.S. authorities is exceeding the number of new petitions for the visas – as published in Computerworld 7/22/2009.  Employers are finding it impossible to respond to the burdensome and extensive requests for additional evidence, and are withdrawing their petitions in this season of high scrutiny and enforcement.

We link to this article.

We’ve been covering this topic at Immigration Solutions for quite awhile.  Canada has figured out how to implement a much more user friendly immigration system to navigate than the USA.  Have a listen to our audio conference Living and Working in Canada

The Immigration Impact article states:  “If we needed any proof that our dysfunctional immigration system inhibits our economic growth, our neighbors to the north have provided us that proof. Canada is actively exploiting, to their economic benefit, our backlogged and broken immigration system. Canada is recruiting the best and brightest American-trained foreign nationals through a streamlined immigration process. After receiving a U.S. education, these talented foreign nationals are now contributing to Canada’s economic future instead of ours.”

Congress! – it’s time to wake up so that we stop “saying goodbye” to the brightest and best!

USCIS has received significant funding for a substantially increased volume of random site visits to employer locations.  Over the coming year, many thousands more employers will have USCIS knocking on their doors.

The FDNS (Fraud Detection and National Security Unit) of USCIS is expanding its manpower and its site visits to employers that hire foreign nationals.  Sometimes the employer is called in advance – and sometimes they are unannounced visits.  Also, many of these site visits can occur after the petition is approved.

FDNS visits are to verify the existence of the employer, discuss the information that the employer has provided to USCIS in their petition(s) and whether the foreign national(s) are working in compliance with the terms of their admission to the USA.  This information can also be used to determine whether or not a petition will be approved.  Typically, the FDNS officer will wish to speak with the HR representative, may want to also speak with the sponsored worker; the officer could have a copy of the petition and will endeavor to verify the information contained in the petition.

What’s the “take away” on this for employers:  It is important that you contact your designated immigration professional should you receive notification of a site visit… AND… make sure that you are working with well-informed immigration counsel that have experience in employer compliance issues.  Immigration Solutions does, and we link to our Employer Compliance page on our website.

We link to one employer’s experience (as posted on AILA Infonet).

Recent panel discussions at the AILA Conference in NV focused on the H-1B program.  The $500 anti-fraud fee collected for H-1B and L-1 visas is being used to hire more investigators.  Business practices once considered “the norm” and perhaps not perfect – are being scrutinized and employers are being penalized for document violations and overall inattention to detail. Consular offices and USCIS are asking for photos of premises, employment agreements, business licenses and organizational charts.  These requests are way out of bounds, and considerably prolong case processing creating tremendous stress for all parties concerned – the employer, the employee and the immigration practitioner.

A recent posting on AILA of a Fraud Summary Sheet (that wasn’t posted for very long!) for H-1B and L-1 cases, presumes fraud if one meets 2 out of 3 criteria:  doing business for fewer than ten years, has fewer than 25 employees, and/or has less than $10 million in revenue.  Many high-profile, very reputable organizations are receiving these Requests for Evidence based on the Fraud Cheat Sheet without any basis in reality.

This preoccupation with fraud in the H-1B and L-1 programs is likely to continue in the upcoming year.  So, in terms of supporting evidence….a word to the wise…

Business Week Magazine started a conversation about a hot topic this month.  We link to the first article in a series that will examine immigration issues amid a recession by Moira Herbst.

A Wall Street Journal opinion piece points out that an infusion of innovators is even more needed in a recession. “Companies founded by immigrants include Yahoo. eBay and Google. Half of Silicon Valley start-ups were founded by immigrants, up from 25% a decade ago. Some 40% of patents in the US are awarded to immigrants. A recent study by the Kauffman Foundation found that immigrants are 50% likelier to start businesses than natives. Immigrant-founded technology firms employ 450,000 workers in the US.

Schedule A Nurse Visas: Improving the Processing

In a very promising development, on December 5, 2008 the Office of the Citizenship and Immigration Services Ombudsman published it recommendations as to how to improve the processing of Schedule A nurse cases and delivered the 11-page Report to Congress on Monday, December 8, 2008. 

The recommendations are based on a recent nationwide teleconference conducted by the Ombudsman at which Immigration Solutions was present. Immigration Solutions has obtained an advance copy of the report which can be accessed here.

Those of you who have read the monthly newsletters and periodic newsflashes published by Immigration Solutions and who have participated in teleconferences presented by Immigration Solutions, will readily recognize that the report repeats and reinforces everything that Immigration Solutions has discussed and presented over the past few years.

The attached report, while specifically providing recommendations for improving the processing of Schedule A nurse cases, should also be required reading for all persons active in the field of recruiting foreign nurses to the United States. 

The report provides an excellent history of the issues and discusses the effect of the nurse shortage in the United States.  It explains the limited nonimmigrant visa options available to nurses (TN, H-1B and H-1C).  Specifically, the report provides statistics of how few H-1B nurse cases have been approved recently (38 cases in 2006, 66 cases in 2007 and only 136 in 2008).  In addition, the report discusses the immigrant visa process for nurses through Schedule A and the two main problems with that process, i.e., the delays at USCIS in processing the I-140 visa petition and the immigrant visa quota delays.  We note that the report references the fact that one of the Service Centers charged with adjudicating Schedule A casework is some 4 months behind what the Processing Report presently indicates.

The Ombudsman concludes the report with the following recommendations:

• That USCIS separate and prioritize Schedule A green card nurse applications so that they can be expedited upon immigrant visa availability.
• That USCIS centralize Schedule A nurse applications at one designated USCIS service center to facilitate more efficient and consistent processing of Schedule A applications.
• That USCIS regularly communicate with DOL and develop points of contact at DOL to discuss concerns and direct inquiries regarding the processing of nurse applications.

In conclusion, while the report makes recommendations to improve the processing of the I-140 Schedule A petitions at the USCIS, legislative action is still needed to increase the number of immigrant visas available each year for nurses. Indications so far from incoming President Obama and the incoming Congress are good that this issue will be dealt with early in 2009.  The Ombudsman’s Report and the reasonably good chances of increased immigrant visa quotas for nurses reinforce our opinion that hospitals, staffing agencies and other healthcare providers should be filing I-140 Schedule A visa petitions now to establish their position on the immigrant visa quota waiting list in order to be ahead of the competition when more immigrant visas become available and the processing procedures improve and become faster.      

Please feel free to contact us with any questions that you might have pertaining to this information.  As always, we are available to assist you with your immigration needs for all healthcare occupations.  This is our area of specialty.  Our highly trained staff stands ready to work with you on designing an immigration program that suits your specific needs and requirements for 2009.

For more information on the report:
Read the original congressional memo