Archive for the ‘Temporary Visas’ Category
Wednesday, April 3rd, 2013
When considering the prospects of new immigration legislation from Congress aimed to modernize the system or address legalizing the millions of individuals out of status over the past few years, many of us have felt like Charlie Brown trying to kick a field goal. Time and time again we’ve been disappointed when Lucy pulled the ball away.
Discussion of immigration reform has been incessant since the last “major” revision to the Immigration and Nationality Act in 1996. The first version of the DREAM Act was introduced in Congress in 2001, but despite reintroductions and revisions, it has never made it to the Oval Office for signature. Six years later, the Comprehensive Immigration Reform Act of 2007 was introduced in the Senate but failed to materialize support to bring about an up-or-down vote. Indeed, for the past decade, only relatively minor piecemeal legislation and Executive Branch policies revising enforcement priorities have been the headline-grabbing changes to the system.
But this year (and this Congress) is shaping to be quite different.
News broke Friday night that the AFL-CIO and the Chamber of Commerce reached a deal on a new relatively lower-skill “guest worker” visa, presumptively dubbed the W-visa. Led by the so-called Senate bipartisan “Gang of Eight,” the two constituent groups have reached a preliminary deal which allows workers the opportunity to receive employment-authorized visas without depressing U.S. workers’ wages. For years the lack of a consensus as to a visa category which allows those to take jobs in the service industries and agriculture – which some say is a major driver of illegal immigration – has stymied comprehensive reforms notwithstanding a broader consensus on legalization and increased enforcement.
The agreement reached by the two groups sets forth the following general provisions:
- The volume of W-visas will be capped, yet fluctuate from year to year in response to the economy. The first year, slated to begin in 2015, will cap W-visas at 20,000. The numbers will then increase to 35,000 in the second year, 55,000 in the third, and 75,000 in the fourth.
- In the fifth year, the number of W-visas will be capped at a maximum of 200,000 but the actual number available to employers will be determined by a new Bureau of Immigration and Labor Market Conditions, relying upon on labor market data. For instance, if economic indicators are weak, there could be as few as 20,000 W-visas in any given cycle.
- Similar to the H-1B, W-visa employers will need to comply with wage restrictions that require them to pay the greater of 1) the actual wages paid by an employer to U.S. workers with similar levels of experience in similar positions, or 2) the “prevailing wage” determined by the Department of Labor for the occupational category in question.
- However, unlike the H-1B, the W-visa is not temporary, but transitional. Beneficiaries will have the ability to self-petition for Green Cards after a year. Furthermore, the W-visa will not be tied to a single, discrete employer, allowing workers to leave abusive businesses.
- W-visa workers will be protected by state and federal employment laws. W-visa beneficiaries cannot be used by employers who have laid off workers within the preceding 90 days, and those enduring a strike or lockout.
This new agreement, forged in principle between two groups which historically have not seen-eye-to-eye, evidences a strong break in past failures to bridge the gap between organized labor and business on this hot-button issue.
Politicians from both sides of the aisle have expressed optimism that comprehensive legislation will soon be introduced. On Sunday, Senator Chuck Schumer (D-NY) told NBC’s Meet the Press that he is “very, very optimistic” that the group of lawmakers will have a deal this week and that legislation could be introduced as early as the next. Another Member of the Gang of Eight, Senator Lindsey Graham (R-SC), told CNN’s State of the Union that “[C]onceptually, we have an agreement between business and labor, between ourselves.”
But don’t pop the champagne quite just yet. Members have cautioned that while there may be an emerging agreement for the basic principles behind Comprehensive Immigration Reform, legislation has still yet to be drafted. Senator Marco Rubio (R-FL) cautioned to the Associated Press that “[A]rriving at a final product will require it to be properly submitted for the American people’s consideration, through the other 92 senators from 43 states that weren’t part of this initial drafting process.”
Thursday, April 28th, 2011
In a notice published today, April 28, 2011, the Department of Homeland Security announced the removal of all countries from the National Security Entry-Exit Registration System (NSEERS). The NSEERS program had required certain non-immigrant aliens or nationals of listed countries to comply with special registration and identification procedures.
NSEERS was implemented following the September 11, 2001 terrorist attacks. The countries listed were predominantly located in the Middle East and northern Africa. Citizens/nationals of each country were specifically required to provide photographs, fingerprints, and other documentation at the time of admission to the United States. Additional requirements included follow-up registration with Immigration and Customs Enforcement (ICE) and that the alien depart from a specified port.
Although the regulation giving rise to NSEERS will remain in place, the removal of all designated countries marks a de facto end to the program. One of DHS’s stated reasons for the removal of the countries is that NSEERS registration is redundant and inefficient, especially with the implementation of the United States Visitor and Immigrant Status Indicator Technology Program (‘‘US–VISIT’’). Under the provisions of US-VISIT, all non-resident aliens, regardless of nationality, are subject to digital photographing and biometric finger scanning.
Monday, April 4th, 2011
USCIS issued an FAQ today that discusses the automatic extension of post-completion Optional Practical Training (OPT) and F-1 status in the U.S. for students with pending or approved H-1B petitions for an employment start date of 10/1/11, under the Fiscal Year 2012 H-1B cap.
Friday, January 28th, 2011
USCIS announced today that it has received a sufficient number of H-1B petitions to reach the statutory cap for fiscal year 2011. USCIS is notifying the public that yesterday, Jan. 26, 2011, was the final receipt date for new H-1B specialty occupation petitions requesting an employment start date in fiscal year 2011. Individuals interested in applying for the fiscal year 2012 cap may begin to submit their applications on April 1st for an October 1st start date.
Tuesday, January 18th, 2011
On January 14, 2011, USCIS updated its H-1B cap count and confirmed that it has received 60,700 H-1B petitions for FY 2011. In addition, USCIS already has reached the 20,000 H-1B Master’s exemption cap for FY 2011. Therefore, any H-1B petition filed as a Master’s degree will be counted towards the regular 65,000 H-1B cap.
The last update from USCIS on January 7, 2011 confirmed that 58,700 H-1B petitions had been received. Given that USCIS is receiving at least 2000 petitions per week, H-1B numbers for FY 2011 are expected to run out within the next two weeks.
Contact your Klasko Law attorney immediately if your organization wishes to sponsor a cap-subject H-1B nonimmigrant in FY 2011.
Tuesday, December 14th, 2010
Effective on December 23, 2010, U.S. Citizenship and Immigration Services (“USCIS”) is requiring the use of a new Form I-129, Petition for a Nonimmigrant Worker, to file nonimmigrant petitions for employees in categories such as H-1B, L-1 and O-1. The new form contains several changes to previous editions of the form, including being more detailed about the location of the employee’s work. Most notably it requires certain petitioning employers to make an export control license attestation regarding the sponsored employee. The so-called “deemed export” attestation is made by H-1B, H-1B1 Chile/Singapore, L-1, and O-1A petitioners only.
Part 6 of Form I-129 contains the new “Certification Regarding the Release of Controlled Technology or Technical Data to Foreign Persons in the United States.” The new Certification requires the employer to certify that it has reviewed the Export Administration Regulations (“EAR”) and the International Traffic in Arms Regulations (“ITAR”). The employer certifies, with respect to any technology to which the employee will have access on the job, that a license from the Department of Commerce or Department of State is not required to release the technology to the foreign national (or, in the rare case that a license is required, the employer will restrict the beneficiary’s access to the technology until a license is obtained).
What Are the EAR and ITAR Regulations?
The EAR regulations (found at 15 CFR Parts 770-774) and the ITAR regulations (found at 22 CFR Parts 120-130) prevent controlled technology with sensitive military, law enforcement, anti-terrorism, or similar applications from being exported or released to other countries. An employer who releases controlled technology or technical data to a foreign national in the course of his or her employment, even if the employment is in the United States, is deemed to have “exported” that technology to the person’s country or countries of citizenship. More detailed information on the topic of “deemed exports” is available from the Department of Commerce’s deemed export page. The EAR and ITAR regulations require employers to obtain export control licenses before releasing controlled technology or technical data to foreign nationals in the United States.
Which Employers Are Likely to Require Licenses?
Employers who are military contractors or subcontractors are most likely to be affected, but both universities and private employers will be affected by the changes to Form I-129. In general, most types of commercially-available technology are not controlled under the EAR and ITAR regulations, or are exempted from the licensing requirement because they are commercially available. However, employers dealing with certain advanced scientific and manufacturing equipment, as well as certain software and software systems, may be subject to licensing requirements for employees from certain countries, depending on whether the technology has military, law enforcement or counterterrorism applications in addition to its normal, civilian uses.
What Additional Responsibilities Are Required Now of All Petitioning Employers?
With the new I-129, all employers sponsoring H-1B, H-1B1 Chile/Singapore, L-1, and O-1A nonimmigrants must now determine whether an export control license is needed for the nonimmigrant employee before the petition can be prepared. Employers may be able to make such a determination for all employees of a particular type; for example, if an employer only hires physical and occupational therapists on H-1B visas, the employer may be able to consult an export control lawyer, or obtain an advisory opinion from the Department of Commerce, that such employment does not involve controlled technologies. For other employees, a case-by-case assessment with the assistance of an export control lawyer may be necessary.
Personnel responsible for H-1B petitions also must determine the appropriate person within the organization to contact regarding the organization’s export control compliance, who can help identify whether the technology and technical data that will be used by or available to the alien beneficiary in the course of his or her employment is controlled under the EAR and ITAR regulations . Your Klasko Law attorney can work with your in-house export control compliance specialist to help develop a protocol between Human Resources, General Counsel and others involved in the immigration process to document that the organization has reviewed the issue and determined that no license is necessary. If your organization does not have that capability in-house, we can help your organization select outside counsel to make an initial determination regarding export compliance, and help establish a clearance protocol with them if necessary.
The protocol developed will enable employer to document how and when the EAR and ITAR determination was made, and to keep that information in the H-1B employee’s file, should it ever be requested. Such documentation will then be available in the case of an audit, a site visit or a request for evidence pertaining to the employer’s export control compliance.
The deemed export control regulations are complex, but your Klasko Law attorney can help your organization get ready for the new attestations on Form I-129. If your organization sponsors H-1B, H-1B1 Chile/Singapore, L-1, and O-1A nonimmigrants, contact us to determine how the deemed export attestation will affect your organization’s immigration compliance.
Wednesday, September 15th, 2010
As Klasko previously reported, President Obama signed into law Public Law 111-230 on August 13, 2010. The law requires the submission of an additional fee of $2,000 for certain H-1B petitions and $2,250 for certain L-1A and L-1B petitions postmarked on or after Aug. 14, 2010, and will remain in effect through Sept. 30, 2014. These additional fees apply to petitioners who employ 50 or more employees in the United States with more than 50 percent of its employees in the United States in H-1B or L (including L-1A, L-1B and L-2) nonimmigrant status.
If an employer filed an H-1B or L-1 petition on behalf of an employee that was postmarked on or after August 14, 2010, U.S. Citizenship and Immigration Services (“USCIS”) has started to issue “Requests for Evidence” (or RFEs) to determine if the employer is subject to P.L. 111-230. The RFE requests employers to submit an attestation or other documentation to establish whether or not the petition is subject to the new fee.
If the employer is subject to P.L. 111-230, the employer should return the RFE along with a statement explaining why the employer is subject to the fee and include a check for the relevant amount (either $2,000 or $2,250 depending on the type of nonimmigrant petition). If the employer is not subject to P.L. 111-230, the employer may sign an attestation which states why the employer is not subject to the law. The attestation should be placed on the employer’s letterhead, be signed by the employer, and should state:
“[Name of employer] has [number] employees in the United States, of whom fewer than [insert number] are H-1B or L nonimmigrants. As such, [name of employer] is not subject to the additional fees required under PL 111-230.”
Employers should be careful to include only the number of employees in the United States and not the world-wide number of employees in the calculation. This number may differ from the “number of employees” question asked on Form I-129, which may include a world-wide employee figure.
For H-1B and L-1 petitions filed on or after August 14, 2010, Klasko recommends that employers create an addendum to the Form I-129 Data Collection Supplement, which explains why the employer is not subject to P.L. 111-230. USCIS also has indicated that employers should note on the H-1B cover letter whether or not the petition is subject to P.L. 111-230. For more information, contact your Klasko Law attorney.
Monday, August 30th, 2010
The Department of State (DOS) Visa Office announced that the Kentucky Consular Center (KCC) has started to verify information submitted in nonimmigrant petitions to U.S. Citizenship and Immigration Services (USCIS) through telephonic contact with employers.
In November 2007, the DOS required Consular posts to verify information contained in approved nonimmigrant visa petitions through the Petition Information Management Service (PIMS). PIMS is operated by the KCC. When a nonimmigrant petition is filed with USCIS, a duplicate copy of the petition is scanned into the PIMS system so that a U.S. Embassy or Consulate abroad can access petition information through PIMS and the Consular Consolidated Database (CCD) when the petition beneficiary applies for a visa stamp. The PIMS record is the primary proof that a nonimmigrant visa petition is approved. Additionally, the PIMS record may contain information from DOS’ Fraud Prevention Unit.
It has come to the attention of the DOS that the lack of information on the petitioner in the USCIS Computer Linked Information Management System (CLAIMS) system sometimes makes a CCD record incomplete. Therefore, the DOS will be conducting its own investigation of both petitioners and beneficiaries of nonimmigrant visa petitions. To verify petitioners, the KCC will review of the company website, company contact information, and use of Google earth to confirm that an office exists in an appropriate physical location. The DOS has stated that the KCC will not normally re-verify the petitioner information for two years.
To verify factual information about the beneficiary of the petition, the KCC will make random telephonic contact with the petitioning employer. The telephonic contact by KCC is unannounced and should be anticipated to occur shortly after the petition is transferred to the KCC from the U.S. Citizenship and Immigration Services. The DOS has designated 15 contractors to conduct the telephonic interviews. The contractors will contact the petitioning employer, and ask to speak with an authorized representative. They will ask a series of questions including, but not limited to the following:
1. Whether the petitioner, in fact, submitted the petition;
2. When was the petitioner incorporated;
3. Where is the physical location of the petitioner;
4. Number of employees;
5. Names of shareholders;
6. Location of Attorney of Record;
7. General information regarding the petitioner’s operations and business plan.
Klasko wants to remind employers of the following points for the KCC telephonic interviews:
1. Request the name of the KCC contractor and confirm the credentials of the contractor with the KCC [(606) 526-7500] prior to providing any information.
2. Contact your Klasko law attorney to advise us of the telephonic contact by the KCC contractor.
3. Do not speak with government agents or contractors without a witness present. Both the witness and the interviewee should prepare notes of what questions were asked and label them “Privileged and Confidential/Prepared at the Direction of Counsel,” and submit them to your Klasko law attorney for review and retention.
4. Retain complete copies of your I-129 petitions and supporting documents in a confidential file maintained by the designated company official for easy access during a contractor call.
5. Never guess at the answer to a question about the petition. If the employer is unsure about some requested information, the employer should indicate that he/she will follow up with the KCC contractor to provide accurate information after such information is obtained.
Employers are reminded that the investigations conducted by the KCC are separate and apart from the investigations conducted by the Fraud Detection and National Security Unit (FDNS) of the Department of Homeland Security (DHS). DHS will continue to conduct its own fraud investigations using the FDNS unit. FDNS conducts site visits of petitioning employers in an effort to combat fraudulent petitions. Employers are reminded to contact their Klasko law attorney if they receive a site visit from a Department of Homeland Security contractor.
Tuesday, June 15th, 2010
On June 11, 2010, USCIS issued an update count of Fiscal Year 2011 cap-subject numbers. Approximately 22,200 H-1B cap-subject petitions counting towards the 65,000 general cap were receipted in by the Service. Only 9,400 H-1B petitions for aliens with advanced degrees from U.S. institutions have been receipted in counting towards the 20,000 Master’s cap. (more…)
Monday, June 14th, 2010
Last week, an application for Preliminary Injunction and a Complaint (Broadgate, Inc., et al v. USCIS, et al) were filed in the U.S. District Court of the District of Columbia, challenging the USCIS’s application of the January 8, 2010, Neufeld Memorandum’s definition of employer-employee relationships.
As Klasko Law previously reported, the H-1B guidance issued by USCIS earlier this year reinterpreted the H-1B program to place added emphasis on the relationship between the employee and employer as a basis for eligibility for the visa classification. The memorandum asserted that it would no long recognize employees hired by staffing agencies and assigned to work at third party worksites because the USCIS no longer considered such arrangements did not constitute a valid employer-employee relationship. Almost immediately after issuance of the memorandum, employers who had previously had no issues in obtaining H-1B status for their employees across a variety of industries that include healthcare, information technology, education, engineering and manufacturing reported receiving extensive requests for evidence and denials of petitions.
The Compliant claims that the USCIS violated mandatory rule marking procedures under the Administrative Procedures Act (APA), which requires that the agency conduct an analysis of the impact of the new rule on small business and entities per the Regulatory Flexibility Act. Moreover, the compliant asserts that the USCIS failed to follow proper rule making procedures by seeking to legislate through memorandum. Federal regulations require that agencies amend rules through posting in the Federal Register and allowing for notice and comment from the public. Finally, the complaint alleges that the rule is arbitrary and capricious because it targets a specific business model that has been regularly recognized under immigration law without good cause or public hearing.
Klasko Law will continue to provide our clients with updates regarding the status of the Neufeld memorandum.