• Date: Thursday, March 18, 2010
• Time: 11am – 12 Noon  PST.  For the time in your area: http://www.timezoneconverter.com/cgi-bin/tzc.tzc
• RSVP:      info@immigrationsolution.net
• Who should Attend:  Employers who sponsor L-1A employees and employees who are going through the L-1A adjudication process
• Agenda:

1. What is the Intracompany Transferee L-1A Manager/Executive Visa?
2. What are the requirements?
3. What is the eligibility criteria to obtain an L-1A visa?
4. Why is it so difficult to obtain an L-1A visa in today’s business climate?
5. The insidious RFE’s and Intensified Scrutiny
6. Open Q&A

The regulations have not changed for obtaining L-1A visas, but the good old days are certainly over when entrepreneurs told you how easily they had obtained their L-1A visas and green-cards via the L route.  Now, you are more likely to hear people who have received L-1A visa approvals talk about what good jobs their attorneys did in ensuring compliance with the stringent standards that are being meticulously enforced by the USCIS.

Our Speaker for this Event will be:  Thomas J. Joy, Esq, Supervising Attorney, Immigration Solutions.  Formerly, Managing Partner Hirson Wexler Perl, Los Angeles, CA; Senior Attorney, Fragomen, Del Rey, Bernsen & Loewy; Supervising Attorney, Law Office of Bernard Wolfsdorf

This is a free teleconference for our clients and readership.  Dial in and access information will be provided a few days in advance of the conference call.  RSVP now to reserve your place on the call.

Customs and Border Protection (CBP) last week provided AILA (the American Immigration Lawyers Association) with information regarding enforcement issues at Newark Airport.  The CBP have been assisting ICE with an investigation of certain H-1B non-immigrants and particular employers who hire H-1B workers.  This created events where H-1B visa holders were detained as a result of  employers being under investigation by ICE.

This incident has been a strong reminder that non-immigrants in work-related status such as H-1B, L-1, E and O-1 classification should be prepared for the potential of additional scrutiny when entering the United States after travel abroad.  CBP will question arriving non-immigrants about their employer, and may request documentation to prove that the nonimmigrant is still employed according to the petition that was filed on their behalf.

The above-mentioned incident where CBP engaged in more extensive questioning, has caused many H-1B visa holders and their employers to have concern about documentation that their employees will need to re-enter the USA following foreign travel.

CBP does have the authority to inquire about these issues, however, recent events indicate that their line of questioning may become more extensive and may result in more situations where arriving employees will be put in secondary inspection.  Secondary Inspection is where CBP officers wish to question the alien concerning their intent in the USA and conduct a more thorough interview and review any additional documentation that the individual may have brought with them, as well as information on electronic devices (cellphones and laptops).  They may even conduct Internet searches on the individual and the employer.  Therefore, employees entering the USA in H-1B classification or other employment based visas should be prepared for the possibility of additional scrutiny, and for the possibility of secondary inspection, regardless of where and when they enter – be it an airport or a land border.

We highly recommend that entering non-immigrants bring the following additional information with them in the event they are asked to produce evidence of their employment:

1)      Copies of 2 recent paycheck vouchers

2)      A copy of the USCIS petition that their status is based upon

3)      Current/Original I-797 approval notice

4)      A current letter of employment verification from a company officer or HR professional confirming job title and dates of employment  on business letterhead – is an excellent idea, as well.

We have heard recent reports that employers may also be contacted by CBP to confirm information related to the employment relationship and job duties.

We will provide updates to you on this issue and intend to monitor it very closely.  If you or your employees have encountered any additional scrutiny and would like to relay your experiences, please contact Immigration Solutions.

Yes – it’s the season to start preparing H-1B “cap” filings again for Fiscal Year 2011.

The USCIS FY starts on October 1st each year. Thus, fiscal year 2011 starts on October 1, 2010 and runs through September 30, 2011.  Regulations permit cap subject filings 6 months in advance of the October start date for cases to be received at USCIS on April 1, 2010.

The following are suggestions to help you for the upcoming cap season.  Our suggestions are based on existing law, as well as USCIS guidance and our experience from prior years.

USCIS frequently issues updated guidance with slight procedural variations for each fiscal year. For example, the LCA process changed in July – note it is taking sometimes up to 7 days to obtain an approval.  In case of a denial such as problems with verifying an employer’s EIN# which is quite common unfortunately, obtaining an LCA may take even longer.

Immigration Solutions is accepting H-1B cases for FY2011 at this time.  We have a team of experienced attorneys, case managers and paralegals in our business unit who are currently working on new H-1B cap-subject cases.  The cases will be prepared in advance and will be transmitted for delivery on March 31, 2010, for USCIS filing on April 1^st.  In order to file, it is necessary to have an appropriate job offer from a U.S. employer who is willing to sponsor the H-1B case.

The USCIS has increased scrutiny on all H-1B cases and imposed tougher standards, particularly those filed in the IT consulting industry and for software companies. These new standards also affect healthcare staffing agencies that place workers at 3^rd party jobsites.   The standards for approval have become more stringent. It is necessary to recognize this trend when preparing new H-1B cap cases for filing.  For this reason, we recommend that you work with an experienced law firm that specializes in employment-based immigration. Click here to contact us for your new H-1B case now.

NOTE:  Immigration Solutions is sponsoring a free teleconference on February 10^th that will address the tougher standards in the H-1B category.  For more on this and to RSVP, we link to our blog

Unlike many other industries, the healthcare sector is projected to continue growing.  The federal Bureau of Labor Statistics released a report in December 2009 that projected an additional four million jobs will be created in the healthcare and social assistance fields during the period from 2008 to 2018.

There’s an extreme shortage of primary care physicians; there’s an extreme shortage of registered nurses.  Healthcare organizations need to be proactive in planning for the future.

Expanding the capacity of nursing schools is another essential element in preparing the workforce for coming changes, especially if the healthcare system evolves to the point where it needs more advanced practice nurses. There will be a need to educate even more nurses, and capacity would continue to be a problem.

That means that many healthcare organizations may be scrambling to fill vacancies and to develop creative and efficient strategies to deliver patient care.

We link to this article in Healthcare Briefings for more.

The January edition of our InFOCUS news and podcast is now available.  Hope you enjoy it!

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

Our November Newsletter and Podcast are now available

Archived podcasts, teleconferences, articles and other news media can be accessed at our website.

Subscribe to our Blog here

Immigration Impact reports today, the United States Supreme Court opens its October session. Among the cases it will hear this term, two may have a significant effect on immigrants. The first case involves the intersection of the criminal justice system and immigration and the important role that lawyers play in safeguarding the rights of immigrants. The second case deals with immigrants’ access to federal court review—review which provides necessary oversight of government decision-making in immigration cases. These cases present the Supreme Court with opportunities to reaffirm that immigrants must be afforded fair process and a meaningful opportunity to be heard.

For a summary of the cases, refer to the above link.

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.