Talk about U.S. Immigration

U Visa Certification

In a welcome development for U Visa, the Department of Labor announced that it would start certifying the U visa applications. The Secretary of Labor issued a statement on March 16, 2010 that if a workplace investigation reveals foreign nationals as victims of crime or abuse, investigators would be able to identify them as potential U visa applicants. Such identification of foreign national would be based upon their willingness to assist in the investigation or prosecution of crime.

The U non immigrant visa is available to victims of qualified criminal activities, who have suffered substantial physical or mental abuse and who assist or agree to assist law enforcement or other designated officials in investigation or prosecution of those crimes.

Qualifying criminal activities involve violations of certain federal, state or local criminal laws, including: abduction, abusive sexual contact, blackmail, domestic violence, extortion, false imprisonment, female genital mutilation, felonious assault, hostage-taking, incest, involuntary servitude, kidnapping, manslaughter, murder, obstruction of justice, peonage, perjury, prostitution, rape, sexual assault, sexual exploitation, slave trade, torture, trafficking, witness tampering, unlawful criminal restraint and other related crimes.

Eligibility for U Visa is based upon certification by designated authorities of the assistance provided by the foreign national in the investigation or prosecution. Applicants can obtain lawful temporary resident status and employment authorization while their application is pending adjudication.

The DOL statement is an effort in the right direction. Hopefully it would act as a deterrant against those perpetuatinf abuse. It surely would help crime detection and enforcement of penalties where the foreign nationals possess the necessary evidence but would not disclose the evidence or silently endure the abuse for fear of deportation.

H-1B Employer

Specialty Occupation foreign national worker i.e. H-1b visa holders to whom we credit boosting the American economy would soon become a rarity. Soon after the H-1b quota was lowered, the government targetted the IT (information technology) industry with special focus on computer consultancy businesses alleging visa abuse. H1 petitions for these jobs are closely reviewed so also the foreign Nationals hired who reenter with H1b visa for IT consultancy jobs face stringent scrutiny. Reports of RFEs, petition denials for lack of desired documentation and visa refusal at the port of entry to let the unwary foreign national into the country are becoming frequent.

A Memo issued by the USCIS beginning this year has been the underlying cause. The agency Memo requires that h1b petitions show presence of employer and employee relationship and details several factors indicating such relationship. In addition to the traditionally accepted standards such as abilities to pay, hire and fire, it includes exercise of control and suprvision by the employer over the job performed as the necessary indicia of employer and employee relationship.

Factors indicating presence of employer and employee relationships are well established in the subsatntive law and same policies have been followed by USCIS in adjudicating visa petitions. The government memo attempts to borrow these same concepts is a compilation of its poilicies followed so far. However, there has been wide opposition to the memo which is called as untra vires because its issuance did not follow the requisite government procedure detailed in the Administrative Procedure Act. However, even if unltravires, until withdrawn we are required to follow the Memo and its mandate and prove as required, the presence of employer-employee relationship for a successful H1b petition.

I 140 returns to premium processing

I-140s would qualify for premium processing starting june 29th, 2009 says USCIS. Well, then comes the limitation that not all the I-140s would be accepted as premium processing. Out goes the Eb1 for multinational executives and managers and EB2 applicants seeking national interest waiver.

Those qualifying include extra ordinary ability workers and outstanding researchers and professors in EB1 category, exceptional ability or advanced degree professionals who do not want national interest waiver, and EB3 professionals, skilled and non skilled workers.

Premium processing was suspended in 2007 due to the heavy filing load in july- august. At the time government admitted openly that due to the enormous amount of filing it was not possible to fulfil the premium procesing guarantee of processing applications within 15 days as promised. Fair enough. After two years the services are about to be resumed. The national interest waiver category for professionals with advanced degree or extraordinary ability, that is widely used is kept out of premium processing for now.

It is nice to see the government regaining ability to quickly process papers but isn’t it something all should be entitled to? Administration is also run like a business. So when delay is inevitable and all pervalent, faster service ought to be made available at a premium. Well, this rule of premium processing started when the government wasn’t so much in need of $$$ but now we understand.

I-94 Error

Time and again I see that the foreign nationals have issues with their I-94 period i.e. the period for which a foreign national is permitted to stay in the U.S. When a foreign national enters U.S. with a visa, an I-94 stamp is placed on the person’s passport. This stamp among other things contains the date upto which the foreign national’s stay within U.S. is lawful.

Occassionally, an I-94 stamp may, erroneously, be made to coincide with the date of validity of their visa. The foreign national would do himself a favor if he checked the date on the stamp and other biographical information entered on the I-94 stamp before leaving the officer’s desk. An error corrected on the spot would save the foreign national from a lot of worries later on although CBP offers deferred inspection services that could be availed for I-94 corections.

All such efforts to correct the errors should be undertaken in polite and peaceful manner.

The Economic Stimulus Bill

The U.S. Senate adopted the “Sanders Bill” by a voice vote after the Bill was amended. The Bill allows a financial institution to benefit from the government offered stimulus and as a condition, makes it harder for the institution to hire foreign nationals on H-1 visa or even receive extension of such visa for those in the employ. The present time limit for the restriction is two years.

It is hard to believe a proposal that tantamounts to “protection” of employment in favor of the U.S. nationals is being adopted in the U.S., country that has been a protagonist of international free trade and commerce and has been a live example of the advantages of open economy with least government interference. Is it a sign of a change in U.S. ideology or merely an effort to politicise the immigration issue once again? Reminds me of the lessons I learnt in my economics class on why protection does more bad than good.

Generally, the reason for America’s role as a world leader in the economy was due to its passion for talent and the freedom it gives the talent to grow along side the employer hiring such talent. The opportunities created themselves within the country and then abroad creating multinational companies. The reason being, international trade and commerce leads to national economic growth and promotes competition that brings efficiency.

It is a common fear, that any protectionistic umbrella generally takes away the incentive to compete and so such a measure for the financial institutions to start with and percolating to other industries in U.S., would shun the human talent from around the world that the nation had welcome, enjoyed and exploited for the benefit of itself and for everyone else. Similar protectionist steps adopted by other countries would be detrimental to international trade and commerce. Recession, being a global phenomenon, an effort to combat it should properly consider its international aspect.

H-1B Employers to watch Strategy in the Slow Economy

Foreign workers in the U.S. and their U.S. employers need to be more careful, during the current economic downturn, so as to stay in compliance with the immigration and labor laws as businesses reorganize in an attempt to survive. In a recent statement, the Department of Labor (DOL) said that the department is well aware of the recent trends in the job market with rising rate of unemployment in certain industries and with a view towards enforcing existing regulations, would be closely monitoring the U.S. employers’ hiring practices of foreign nationals on H-1B and L visa.

The announcement has great significance to the U.S. employers, hiring foreign workers on H-1B, and L-3 visa categories. Employment in both these categories requires a labor condition application (LCA) to be certified by the DOL. The LCA contains basic information about the employment eg. rate of pay, period of employment and work location. It also carries four attestations or promises by the employer. Violation of any of the condition or the attestation of the LCA is met with sanctions that include back pay, civil fines and penalties and disqualifications from hiring foreign workers in future.

As the economy tumbles, employers resorting to various ways to cut costs including employment costs should be watchful of compliance requirements, lest they may find themselves in violation of the labor and immigration regulation. Resort to layoff, benching (where the employee is neither required to report to work nor is paid for the non productive period) or adjusting the work hours or salary and benefits package is common. A U.S. employer hiring foreign worker could be violating the terms of the LCA for adopting these practices.

A U.S. employer hiring foreign worker, is required to offer reasonable return transport to its H-1B employee in case of involuntary termination eg. layoff and must report to the USCIS to avoid liability for back wages. Violation of LCA could also occur for failure to pay full time or part time wages at the rate stated in the visa petition, or failure to pay a foreign worker the required wages within 30 days of admission into U.S. or within 60 days of hire if the employee is already present in the U.S. Similarly, benching, a nonproductive unpaid employment, is an unacceptable practice and violates the LCA.

Employer of a foreign worker may neither safely adjust the work hours nor the salary or other benefits without violating the terms of the LCA. The employer is required to pay the higher of the actual or the prevailing wage and has to offer the same benefits as those offered to similarly situated U.S. worker under the same eligibility criteria. While some of these changes may be incorporated by filing a new LCA and an amended H-1B petition, some forethought on the possible outcome is essential.

PERM (employment based greencard) filing, i.e. seeking DOL certification to hire the foreign worker as a permanent employee, may be another new challenge. The process requires employer to carry out recruitment efforts to hire U.S. workers and prove that no qualified worker turned up for the position. With the vast layoffs in some industries and increasing unemployment, DOL thinks there may be plenty of U.S. workers available for the position and appears skeptical of the employers’ claim that no U.S. workers were available. A careful and extensive documentation is essential to provide proof of compliance of the relevant regulations. As always, DOL would be looking for bonafide recruitment efforts to approve PERM applications.

Stricter review of PERM recruitment process

Department of Labor (DOL) announces its decision to use stricter scrutiny in certain PERM cases. In the light of the economic downturn DOL is focusing its attention on some industries that have been adversely affected including those facing the resultant “domino effect” especially the ones with roving employees. The department says that it would subject the companies to extra scrutiny that file for permanent labor certification of foreign workers but lay off other employees.

Although, the relevant rules had been in existence for long time, the present cautionary note from the Department indicates a seeming change in its existing practice. Consequently, the PERM recruitment process to hire U.S. workers would require the employers to show a strong good faith effort to comply with the requirements.

It is possible that in case of industrywide lay off the PERM recruitment would be affected by the industry wide availability of U.S. workers. This just means that the recruitment process would be more cautiously monitored or may even be subjected to supervised recruitment.

Perhaps, this is also a call for more frequent audits.

Stumped by EAD Processing Delays?

Delayed processing of employment authorization document is frequently heard although the government regulations require USCIS to process the EAD applications within 90 days. 8 C.F.R. 274a(13). The limitations imposed on you i.e. how long before you could properly file such an application and how long you could continue to lawfully work as you await your proof of employment authorization creates a restless situation for all lawful foreign nationals. If this is you, the CIS Ombudsman recently offered the following suggestions on how to handle EAD processing delays:

Step 1: call the USCIS Customer Service; record the call details and the person who responded to your call. Explain your jittery situation and request expedite service or ask for an interim EAD. As Ombudsman claims, some have seen it works.

Step 2: If you want to go to the local CIS office you could schedule an infopass appointment. Ask for your iterim EAD. It appears that the local offices are no longer equipped to give you one but could forward your request to the service center following which you should get your EAD.

Step 3: If neither of the above steps worked then you contact the Ombudsman for help providing as much details of your call to the customer service or the local USCIS office as you may have kept in the beginning. Well, hopefully these steps work for you i have heard it worked for some. Good luck.

Extended Employment Authorization Document

On June 12, 2008 the U.S. Citizenship and Immigration Service (USCIS) issued a communication in the form of Questions and Answers which included among other information that it would soon start issuing the work authorization documents with a 2 yr. validity period to a specific group of adjustment of status applicants and that within two weeks from now the applicants would even start receiving their extended EADs. The authority to do so is claimed under its interim rule, “Employment Authorization Documents” at 69 Federal Regulation 45555, issued July 30, 2004, which gives it the discretion to issue EADs with a validity period different from one year, based upon certain specific criteria the agency chooses to apply.

According to the USCIS Communication, the extended work authorization would be provided only to those who are seeking the Lawful Permanent Resident Status by filing the I-485 adjusment of status application but are unable to adjust their status because of the unavailability of the immigrant visa numbers. The present effort comes as an ameliorative remedy to cure the situation caused by the huge backlog after August ‘07 when the immigrant visa numbers retrogressed as a result of the July ‘07 Visa Bulletin fiasco and the consequential rush in filing the AOS applications in July – August 2007.

The standard for grantng the two year work authorization is set by the most recent Visa Bulletin issued by the Department of State.

The Communication also clarifies that the I-765 filed along with the I-485 application would not qualify for the favored treatment because such an application would have been filed when the Immigrant Visa numbers were available. The adjustment applicant in this case scenario would receive a one year work authorization. If the visa numbers remain unavailable at the expiration of the first EAd period he could then apply for the two year employment authorization document.

The H-1B anxiety

Just as last year, the U.S. employers desiring to hire foreign nationals on h-1b visa are scurrying to file their petitions and hoping that their petitions would be selected in the computer generated random selection process trying to hire the most employees they could.

Yesterday, after much suspense in the air, USCIS released an interim rule and issued a fact sheet disclosing that the Rule would prohibit ‘multiple and duplicate’ filing by an employer for the same employee. It appears that several employers and prospective employees were planning to file multiple and duplicate petitions to increase their odds of success in the computer generated lottery selection process.

The prohibition applies to job offer(s) from the same employer to the same employee whether the petitions are for one job or different jobs. In view of the limited number of the H-1B admissions available for the FY, the policy behind this rule is to afford employers equal opportunity in hiring H-1b workers. The rule however exempts “related employers” like parent and subsidiary companies etc. from the prohibition. In other words, related employers may file petitions for the same foreign national as long as the positions are different and there is a “legitimate business need.”

The last minute rule has sent people scurrying for clarifications whether multiple petitions in certain situations are ok or not. It appears that people are prepared to file multiple petitions because if their petitions are not selected the USCIS would refund their filing fee and they lose nothing. The rules also require that if an exemption is claimed erroneously the fee would not be refunded.

The H-1B petitions may be filed as early as April 1 each Fiscal Year for the employment start date of the first day of the FY i.e. October 1. The foreign national must have the qualifications to fill a professional position (specialty occupation); generally, a bachelor or higher level degree or a combination of education and experience, and is hired for a permanent position.

H-1B is a much wanted visa category as the foreign national enjoys long enough stay (6 yrs.), is subject to the least limitations and can seek legal permanent resident status while continuing to maintain the h-1b visa status.

The total number of H-1B admissions are subject to a fixed numerical limit each Fiscal Year (the ‘CAP’) that determines how many foreign nationals could be hired each year under the “specialty occupation” category. The annual numerical limitation was raised each year following the enactment of “American Competitiveness and Workforce Improvement Act of 1998″ (ACWIA) that was later amended by the “American Competitiveness in the Twenty-First Century Act of 2000″ (AC 21). Until FY 1996 the number of foreign nationals hired in the h-1b category was much less than the numerical limitations (CAP) imposed for the category. In FY 1997 the CAP was reached in September (a month ahead of the end of the Fiscal Year) and in the next FY by May 1998.

An all time high was reached when the Congress increased the annual cap to 195,000 for the years 2001, ‘02 and ‘03 from 115,000 in 2000. The numerical limits were restored to 65,000 in the FY 2004 i.e. from October 1, 2003. The 2004 “H-1B Visa Reform Act” also created a cap exemption for 20,000 advanced degree graduates of U.S. universities, these numbers are taken away from the above mentioned total numerical limit of 65,000 and do not raise the CAP in any way.

In FY 2004, the annual cap was reached early in the year and on February 17, 2004, USCIS announced no further cap-subject applications would be received. The coming years showed the same trend with the visa numbers getting exhausted much earlier each FY. In 2008 the USCIS anticipated that the CAP would be reached on the very first day of the FY. In an unprecedented event, on the very first day when the petitions could be filed for the FY 2008 (i.e. April 1, 2007) USCIS received enough number of applications that far exceeded the available H-1B admissions for the entire year. However, as required by the Rule, USCIS continued accepting the applications for the first two days of April, 2008 and then refused all others. The cap subject applications were pooled to be selected by the computerized random selection.

As the H-1B Visa numbers remain unchanged at 65,000 for the FY 2009, employers and foreign nationals, find themselves constrained by the numerical limits imposed by the U.S. immmigration law, because the demand for this visa category far exceeds the allowable numbers and think of ways to maximize their chances of H-1B allotment in the present lottery system. Immigration advocacy groups and businesses equally feel that nation’s immigration laws are hampering the economic growth by restricting the employment of foreign nationals and are the major cause for movement of business opportunities out of U.S.