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February 1st, 2010 by Kate Kalmykov
Klasko, Rulon, Stock & Seltzer, LLP has learned that Customs and Border Protection (“CBP”) officials have been issuing expedited removal orders to certain H-1B nonimmigrant workers seeking entry at Newark airport in New Jersey. H-1Bs that have been targeted include those working at IT consulting firms and those posted at third-party worksites.
Expedited removal in which the government covers the costs of the return airline ticket, bars the individual from reentering the U.S. for a period of five years. CBP officers are authorized to institute expedited removal when they believe that an individual is entering the U.S. in violation of the terms and conditions of the visa. Reports from those impacted state that they were put into secondary inspection by CBP officers and coerced into signing statements that contain falsehoods. These statements were then used as the basis for their removal. Interestingly, the H-1Bs were not advised that they could withdraw their applications to enter the U.S. and return home at their own expense. This option would have allowed the nonimmigrants to apply for a new H-1B visa stamp either with the same or a new H1B employer and reenter the U.S. at anytime thereafter.
Entering nonimmigrants are often placed into secondary inspection if CBP officers wish to question the alien as to the intent of their stay in the U.S. Although intimidating, it is critical for nonimmigrants to ensure that they answer all questions honestly and accurately, as only erroneous expedited removal orders can be vacated. Unfortunately, aliens seeking entry at CBP do not have a right to counsel and therefore, must be extremely precise when articulating their reasons for entry to CBP. It is believed that CBP in Newark is instituting these actions in response to the recent USCIS memo which limits the definition of the employer-employee relationship and in particular targets IT consulting companies and “job shops.”
Klasko Law will continue to provide updates on this issue.
Tags: CBP, H-1B, Newark
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January 22nd, 2010 by Kate Kalmykov
As a result of the catastrophic events in Haiti, immigration attorneys from around the country, including those at Klasko, Rulon, Stock & Seltzer, LLP, have come together to offer assistance to Haitian nationals in obtaining temporary protected status (TPS) and employment authorization.
Applicants from the Haitian community in New York can attend a free clinic where lawyers will provide assistance in preparing applications for TPS on Thursday, January 28, 2010 from 5:30 to 8 p.m. at the New York City Bar Association located at 42 W. 44th Street. Haitians in the Philadelphia area can contact HIAS and Council of Migration Service of Philadelphia at (215) 832-0900 to request a referral to a volunteer immigration attorney.
We encourage Haitian nationals that were in the country prior to the date of the earthquake January 12, 2010 and are eligible for TPS to act quickly, as the TPS registration period will only run for 180 days from January 21, 2010 until July 21, 2010.
Tags: EAD, TPS
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January 18th, 2010 by Kate Kalmykov
On January 13, 2010, the U.S. Citizenship and Immigration Services (USCIS) issued guidance that imposes enhanced evidentiary requirements on employers filing H-1B petitions. The memo discusses what evidence must accompany an H-1B petition to establish a valid employer-employee relationship. The guidance also addresses in what instances the H-1B visa is appropriate for foreign workers who will be placed at third-party client worksites. It also discusses if self-employed individuals, business owners, and independent contractors can continue to qualify for the H-1B.
The federal regulations governing the H-1B classification require that an employer establish that it has an employer-employee relationship with the beneficiary of a petition. The new memo provides guidance on how USCIS will evaluate if this relationship exists. The memo lists a variety of factors to be considered when evaluating the petitioner’s right to control the beneficiary, including the manner and extent to which the petitioner actually supervises the beneficiary; the petitioner’s right to control the beneficiary’s daily work and work product; and the petitioner’s right to hire, pay and fire the beneficiary. USCIS instructs its adjudicators to review the totality of the circumstances when making a final determination of whether the employer-employee relationship exists. The memo also requires that the petitioner establish that the right to control the beneficiary’s work will continue to exist throughout the duration of the beneficiary’s employment with the petitioner.
Read more after the jump.
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Tags: H-1B
Posted in Agency Updates, Temporary Visas | 1 Comment »
January 18th, 2010 by Kate Kalmykov
The USCIS has announced that Department of Homeland (DHS) Secretary Janet Napolitano has designated Temporary Protected Status (TPS) for eligible nationals of Haiti. The Secretary stated that this decision is warranted because of the devastating earthquake and aftershocks which occurred on January 12, 2010. DHS estimates that approximately 100,000 to 200,000 individuals will be eligible for TPS.
TPS is a temporary immigration status granted to eligible nationals of a certain country designated by the Secretary of Homeland Security because the country has experienced temporary negative conditions, such as armed conflict or an environmental disaster, that prevent nationals of the country from returning safely or for the country to handle their return adequately.
The Haitian TPS registration period will run for 180 days. DHS stated that TPS eligibility will be for an initial period of 18 months. Applicants who apply for TPS will also be able to apply for an Employment Authorization Document and Advance Parole Travel Document. Although, these applications will require fees, DHS has stated that they will consider fee waivers for those that can demonstrate that they are unable to pay the costs of the applications.
As proof of nationality, USCIS is looking primarily for a passport (an expired one is acceptable) or birth certificates. For those that have problems with obtaining this documentation, USCIS indicated that secondary evidence would be considered.
On the subject of orphans, USCIS noted that, if adopting parents were in the Haiti at the time of the earthquake, they may go to the U.S. embassy to complete the adoption process, and the government of Haiti will waive the exit visa requirement. DHS and the Department of State are still working on the issues related to adoptions by parents not in Haiti. They urge parents not to travel to Haiti at this time.
Tags: Advance Parole, EAD, Haiti, TPS
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January 11th, 2010 by Kate Kalmykov
The Department of Labor (DOL) has nationalized the process for issuance of prevailing wage determinations used in a variety of immigration applications including PERM, H-1B, H-1B1 (Chile/Singapore), E-3 (Australia), and H-2B. Beginning January 1, 2010, employers must now apply for prevailing wage determinations to the DOL rather than the state workforce agencies (SWAs). DOL has indicated that from January 1, 2010 through January 20, 2010 prevailing wage requests must be submitted by mail. After January 20, 2010 DOL expects that submissions will be able to be made through the iCERT portal.
DOL issued prevailing wage determinations are a mandatory requirement for PERM applications. The agency has advised employers to submit prevailing wage requests at least 60 days before beginning recruitment or filing an application for labor certification. Likewise, DOL has indicated that prevailing wage requests using independent wage sources could have lengthier processing times. As we have reported, the introduction of the iCERT system for preparation of LCAs has significantly lengthened preparation time due to technical glitches in the system. It is therefore critical for employers to be aware of these delays, especially if they are filing PERM applications for H-1B nonimmigrant workers who are reaching the end of their fifth year of status and who wish to extend that status beyond the six-year maximum under the provisions of AC21.
In addition to processing delays, it remains to be seen if the validity periods for prevailing wage determinations issued by the DOL will be shorter than those that were issued by local SWAs.
Although prevailing wage determinations from the DOL are not required for H-1B cases, they are preferred by some employers as they provide important safe harbors. Given the expected delays in DOL processing times for issuance of prevailing wage determinations it is critical that employers identify and begin preparing cap-subject cases for the Fiscal Year 2011 as soon as possible.
While DOL policy guidance states that there will be no changes in the way prevailing wages are determined, employers should note that the national office may take a different approach from local SWAs in determining how occupational categories and wage levels are assigned. DOL has indicated that the national office will entertain requests for redetermination. Redeterminations will be handled by the Office of Foreign Labor Certification. Requests to reconsider redeterminations can be submitted to the Board of Alien Labor Certification Appeals (BALCA). It remains to be seen how receptive the national office will be to requests to reconsider prevailing wage determinations, including the assignment of occupational categories and wage levels.
Tags: DOL, iCert, PERM, prevailing wage
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January 11th, 2010 by Kate Kalmykov
On January 11, 2010, the Department of State (DOS) released the February 2010 Visa Bulletin. In February, there will be a three week movement forward in the employment based second category for Chinese nationals to May 22, 2005. Indian nationals will continue to have cut-off dates of January 22, 2005.
In the employment based third preference category for professionals and skilled workers, cut-off dates moved forward to September 22, 2002 for China and worldwide. India’s cut-off date will remain June 22, 2001. Mexico will also continue to have a cut-off date of July 1, 2002.
The EB-1 category for multinational managers and executives, individuals of extraordinary ability and outstanding professors will remain current. The EB-4 religious worker and EB-5 immigrant investor categories will also remain current.
Tags: Agency Updates, EB-2, EB-3, priority dates
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January 11th, 2010 by William Stock
USCIS recently released its required annual report on the characteristics of H-1B workers, based on documentation from fiscal year 2008 (the period between October 1, 2007 and September 30, 2008). While this information predates the severe downturn in the economy at the end of 2008, it does provide some interesting information about the H-1B visa and those who hold it.
For example, in 2008, the number of H-1B petitions was 5 percent lower than it was in 2007. Of those petitions, only 20% were for truly “new” H-1B employees - individuals outside the United States entering for new employers. The majority of petitions filed (60%) were for current H-1B workers getting extensions of status, with the remaining 20% going to individuals who were already in the United States in another status (mostly students at US universities) changing to H-1B.
One interesting statistic was that the majority (over 56%) of H-1B workers are in their 30’s, still short of their prime earning years. Only 1% is under age 24, and 14% are 40 or over. Another is that less than half have only a bachelor’s degree; the majority of H-1Bs have a Master’s, doctoral or professional degree.
While much has been written about the concentration of H-1Bs in the computer industry, it is interesting to note that the majority of employers of H-1Bs (56.5%) are outside the computer, electrical engineering and data networking fields. In fact, a list of the “top five” H-1B occupations other than computer professionals would look something like this: 1. C0llege and University Faculty and Staff; 2. Accountants and Auditors; 3. Physicians and Surgeons; 4. Mechanical Engineers; and 5. Biological Scientists.
Another myth challenged by the data is that H-1Bs are underpaid as compared to similar US workers. In fact, the report shows that the median salary of all H-1Bs was $60,000, which compares favorably to the $57,980 median wage reported for the same period for similar US workers (those with a Bachelor’s or higher degree; data from the Current Population Survey from the Bureau of Labor Statistics).
Oh, and one other helpful perspective when thinking about H-1Bs: in 2008, the number of initial H-1B petitions (new professional workers from overseas and from US schools) constituted just three-tenths of one percent of the workers in the United States with a bachelor’s or a higher degree.
Tags: Agency Updates, H-1B
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December 17th, 2009 by Jennifer Hermansky
The Department of State issued its January 2010 Visa Bulletin. The new visa bulletin reveals little movement across employment-based immigration categories. The employment-based first preference (EB-1) category will remain current for all nationalities. Cut-off dates in the EB-2 category will remain stalled at January 22, 2005 for India, while they will advance slightly for China (May 1, 2005). The EB-2 category will remain current for all other countries.
The Eb-3 category cutoff for skilled workers is June 22, 2001 for India and July 1, 2002 for Mexico. The cutoff for China, Philippines, and all other countries is August 1, 2002. The cutoff for Eb-3 unskilled workers is June 1, 2001.
The January 2010 Visa Bulletin also contains the first projection of what priority dates are likely to become currently during this fiscal year, which is of great interest to adjustment of status applicants with long-pending applications. The Visa Bulletin predicts, based on current indications of demand, the best case scenarios for cut-off dates which will be reached by the end of FY-2010 (that is, by September 30, 2010) are as follows:
Eb-2:
China: July through October 2005
India: February through early March 2005
Eb-3:
Worldwide: April through August 2005
China: June through September 2003
India: January through February 2002
Mexico: January through June 2004
Philippines: April through August 2005
The Dept. of State advises that the above date ranges are only estimates which are subject to fluctuations in demand during the coming months. The actual future cut-off dates cannot be guaranteed, and it is possible that some annual limits could be reached prior to the end of the fiscal year.
Tags: Green Cards, immigrant visa numbers
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December 3rd, 2009 by H. Ronald Klasko
My partner previously reported that H-1B numbers were likely to be used up between Christmas and New Year’s, and based on what I heard this week at a conference in New York, the cap is likely to be reached no later than that. It may, in fact, be reached sooner than Christmas, perhaps even in the next week.
I was speaking at a Continuing Legal Education course in New York sponsored by the American Immigration Lawyers Association, and USCIS officials on another panel informed the audience that the pace of H-1B filings had increased significantly in the past two weeks - about 2000 petitions were received in the short week before Thanksgiving alone. While they did not reveal their “target” number of petitions to reach the H-1B cap, they only have, at most, 5000-6000 potential numbers available left, which means the cap will be hit very soon if that pace of filings does not decrease.
Tags: H-1B cap count
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December 2nd, 2009 by William Stock
Yesterday, the Fiscal Policy Institute released a detailed analysis of census and economic data in the 25 largest metropolitan areas of the United States. The analysis looked at the number of first-generation immigrants (see notes below the jump) as a share of the population in each of these metro areas, and also at the economic growth in those metropolitan areas. Overall, the analysis concluded that those metropolitan areas with the highest rates of immigration between 1990 and 2007 also had the highest levels of economic growth in that time frame, which made me curious to see how Philadelphia did in each of those rankings.
First, in the Philadelphia metropolitan area (which includes the counties around Philadelphia and Camden, as well as those around Wilmington, Delaware), first generation immigrants are a lower percentage of the population than any of the metropolitan areas of comparable size around the United States. When compared with our “peer” metro areas (those with around 6 million population, namely Dallas, Houston, Miami, Washington, DC, and Atlanta), we rank last.
In fact, Philadelphia’s first generation immigrant population of about 500,000 out of a total population of roughly six million, or 9%, is tied for seventeenth among the twenty-five major metropolitan areas - we are tied with Minneapolis and Detroit, and beat out only five (Baltimore, at 8%, Cleveland, 6%, and Pittsburgh and Cincinnati, both 3%).
As the report notes, immigrant population is strongly correlated with economic growth: when ranking those same metropolitan areas by percentage of immigrants in the labor force compared to economic growth (both figures calculated from 1990 to 2005-2007), those metropolitan areas with the largest growth in their immigrant labor force also had the largest percentage economic growth. While the study does not argue that immigration causes economic growth, it is clear that immigration and economic growth go hand in hand: a growing economy attracts immigrant workers, and immigrant workers in turn become consumers in that economy and help it continue to grow.
Philadelphia and the other four large metropolitan areas on the East Coast (Boston, New York, Washington and Atlanta) were also analyzed in further detail. The percentage of immigrants in the labor force in Philadelphia is lowest of these five areas, but are spread relatively evenly through the occupations. In fact, in our area, immigrants are more likely to be in professional and technical occupations (doctors, engineers, technicians, etc.) than US workers - while 11% of the area’s total labor force are first generation immigrants, more than 15% of the labor force in these occupations are first generation immigrants. Given the importance of education, healthcare and other “knowledge industries” to our region, it is clear that we are “punching above our weight” in attracting these highly-qualified immigrants to the Philadelphia area.
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