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Archive for January, 2010
Friday, January 22nd, 2010
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
Posted in Hot Questions | Click Here To Comment »
Monday, January 18th, 2010
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. (more…)
Tags: H-1B
Posted in Agency Updates, Temporary Visas | 2 Comments »
Monday, January 18th, 2010
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
Posted in Agency Updates, Hot Questions, News & Politics | Click Here To Comment »
Monday, January 11th, 2010
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
Posted in Agency Updates, Green Cards | Click Here To Comment »
Monday, January 11th, 2010
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
Posted in Agency Updates | 1 Comment »
Monday, January 11th, 2010
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
Posted in News & Politics, Temporary Visas | Click Here To Comment »
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