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Posts Tagged ‘H-1B’
Monday, February 1st, 2010
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
Posted in Temporary Visas | 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 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 »
Wednesday, November 18th, 2009
USCIS has just released its newest cap count, informing us today that, as of November 13, just over 55,000 of the 65,000 H-1B petitions available for this fiscal year (from now until October 1, 2010) have been used.
The recent pace of filings means that we can expect that H-1B numbers may be exhausted for the fiscal year by Christmas or New Year’s. After that, employers will be left with limited alternatives for hiring skilled foreign nationals when US workers are unavailable, at least until the filings for next fiscal year can be made.
Tags: Add new tag, Cap Count, H-1B
Posted in Agency Updates, Temporary Visas | 1 Comment »
Tuesday, November 3rd, 2009
We have previously commented on the reduced usage of H-1B numbers, due to the increased availability of US workers (so employers do not need to hire H-1B workers) and the general economic slowdown.
USCIS has updated its “cap count” for H-1Bs for the first time since the new fiscal year started on October 1, and the pace of filings has definitely accelerated. In mid-September, about 46,000 of the 65,000 available “regular” H-1B petitions had been approved, a number which had held relatively steady since early August.
As of October 25, however, USCIS announced it has approved approximately 53,000 of the 65,000 available “regular” H-1B petitions. Based on that usage, we expect H-1B numbers may become unavailable as of late December or early January (or possibly sooner, if there is a rush of cases filed this month).
The separate 20,000 quota for holders of US master’s degree is also nearly completely filled, so will not likely be available for much longer than the “regular” H-1B quota.
Tags: Agency Updates, Cap Count, H-1B
Posted in Agency Updates, Temporary Visas | Click Here To Comment »
Tuesday, September 22nd, 2009
As we predicted in our blog post announcing the implementation of a new Labor Condition Application (LCA) online system known as iCert by the Department of Labor (DOL) there have been numerous delays in obtaining certification of LCAs. This has had a tremendous impact on employers, as they are required to obtain a certified LCA as a precondition to filing an H-1B nonimmigrant worker petition with the United States Citizenship and Immigration Service (USCIS).
The iCert system became effective on June 30, 2009, replacing the previous web-based system. While it was known that iCert would eliminate same day LCA approvals, the DOL originally anticipated that it could take up to seven business days to certify the LCA. However, since its implementation the iCert system has experienced a number of technical glitches that have resulted in delays in obtaining certified LCAs beyond the seven day period.
Part of the reason for these glitches is that employer data from the old LCA system did not transfer to the new iCert system. As a result, the most prevalent problem of the new system is the denial of LCAs when the DOL cannot verify the employer’s Federal Employment Identification Number (FEIN). This occurs even on LCAs filed by employers who regularly submitted applications on the old system with no issues. Moreover, these denials occur even when the correct FEIN was entered on the LCA. Because the iCert database is not integrated with the IRS database or the old LCA system, there is no way for the DOL to verify the FEIN.
Upon the receipt of an LCA denial notification from the DOL employers are instructed to provide the DOL with proof of the FEIN number through a specified email address. Acceptable proof of the FEIN can include IRS documentation assigning the FEIN, preprinted tax coupons or tax returns with a preprinted label listing the FEIN, bank documents listing the FEIN, and any other government documents indicating the FEIN. Once the employer locates this documentation and sends it to the DOL it is taking up to ten additional business days to resolve the FEIN problem.
The FEIN resolution does not result in an LCA approval. Once the employer receives confirmation from the DOL that the FEIN issue has been resolved they can then resubmit the LCA through the iCert system. This resubmission is, once again, subject to the seven day processing time.
The DOL is attempting to resolve these issues. They have recently issued guidance to employers noting that they are integrating iCert with the PERM database. It is hoped that the FEINs submitted by employers in connection with PERM applications will be transferred to the iCert system, thereby reducing the number of FEIN non-confirmations. However, until the issues are fully resolved these delays can have very serious implications for employers and employees alike. Employers are urged to locate acceptable tax documents that verify your company’s FEIN and have them available if and when they are requested by the DOL. Another effective way of avoiding delays is to implement a tickler system to identify expiring H-1Bs within the company’s workforce. As H-1B extensions can be filed as much as six months in advance of the requested start date, employers can avoid last minute delays and possible breaks in the employee’s work authorized status by identifying the applications that need to be filed in advance.
Tags: DOL, H-1B, LCA
Posted in Temporary Visas | Click Here To Comment »
Monday, June 22nd, 2009
This is a reminder from Klasko, Rulon, Stock & Seltzer that the days of the instant labor condition application (LCA) are over. Effective June 30, 2009, the new U.S. Department of Labor (DOL) iCert system for LCAs will completely replace the previous web-based system, eliminating same day LCA approvals. Instead, under the new system, DOL will use up to seven business days (or more) to certify the LCA, and early experience with the system indicates that DOL is taking all seven business days.
In a recent meeting of the American Immigration Lawyer’s Association (AILA), a top-level DOL official indicated that, if non-obvious errors or other problems with the LCA are detected, the decision on the LCA could extend beyond the seven days. At this meeting, Klasko Partner, Bill Stock urged the DOL to adhere to their own regulations and either deny or certify LCAs within the seven day period allotted by the regulations. However, DOL officials insisted that they could not currently provide processing times for LCAs that require further review.
What does this mean for employers? Well, this system change means that it will no longer be possible to prepare and file H-1B applications on short notice. Every employer filing an H-1B petition with the United States Citizenship and Immigration Service (“USCIS”) must first obtain an approved LCA from the DOL. In the LCA the employer is required to attest to paying the higher of the actual or prevailing wage, to providing working conditions that will not adversely affect the working conditions of workers similarly employed, that there is no strike or lockout in the course of a labor dispute in the occupational classification at the place of employment, that the employer has provided appropriate notice to bargaining representatives or employees and that the employer has completed and made available a file for public examination. A DOL approved LCA is a precondition to filing an H-1B petition with the USCIS, and as such is integral to obtaining H-1B status for employees.
In the era of iCert, advance planning will be a must. Employers should monitor the expiration dates of H-1B employees and allow sufficient time for the preparation and filing of H-1B extensions and amendments. This delay in filing will also impact the usefulness of H-1B portability, since an individual in H-1B status can only be authorized to work for the new employer upon the filing of the new petition, which requires a certified LCA. Under the new system, certification will add at least a week to ten days to that process. Unfortunately, employees who fall victim to the economy will also feel the impact of the delayed LCA certification timing, as it will delay their ability to file a new H-1B petition once they have obtained new employment.
Employers and employees can also expect that in the first weeks of use, there will continue to be technical glitches in the software. The delay in implementation of the iCert program reflects this fact.
If you have further questions on how iCert impacts your workforce, please schedule a consultation or contact one of the attorneys for more information.
Tags: DOL, H-1B, iCert
Posted in Temporary Visas | Click Here To Comment »
Tuesday, May 19th, 2009
Those of our readers following the H-1B cap saga this year know that filings are down and scrutiny is up for all H-1B petitions this year.
USCIS just released its latest update on the “cap count,” and the remarkable news is that only about 500 applications have been added to the cap since the initial filing period in April. Since many H-1Bs are hired after graduating from US schools, the current economic situation is clearly depressing demand for professional workers. As some have noted, this natural decrease in demand for foreign national workers whenever the US economy is slower means that the statutory caps, which limit such workers when the economy is growing, are not really necessary.
Tags: Cap Count, H-1B
Posted in Agency Updates, Temporary Visas | Click Here To Comment »
Thursday, May 7th, 2009
An all-to-frequent question we have been answering these days is how to advise a work-based nonimmigrant in H, L, E or similar status who is terminated.
We have a resource for employers and terminated employees specifically written with respect to the H category, and much of the advice in that document, from the employee’s perspective, applies equally to all employment-based nonimmigrants. The most important rule is that a terminated nonimmigrant does not have any formal “grace period” or fixed period of time during which their status is considered valid. Nonimmigrants are admitted to the US for a particular activity – workers to work, students to study, visitors to visit – and as soon as they stop that activity, they are out of status. Note that periods of severance are not periods of employment, and USCIS generally does not regard a person receiving status as being “in status.”
Unfortunately, this rule means terminated nonimmigrants need to deal with the situation immediately – and there is no “one size fits all” solution that we can recommend. They can seek a change of status to another status they qualify for, such as student status or visitor status; make arrangements to depart as soon as possible; or may have other options depending on their personal situation. Therefore, the best advice to a terminated nonimmigrant is to refer him or her to one of our attorneys for a detailed consultation, during which we can help develop a strategy to deal with the immigration consequences of the termination.
Tags: H-1B, layoffs and terminations
Posted in Hot Questions, Temporary Visas | Click Here To Comment »
Tuesday, May 5th, 2009
USCIS has published its latest estimates of filings subject to the “H Caps.” They report receipts of approximately 45,000 petitions subject to the 65,000 cap, virtually unchanged in two weeks.
At the same time that fewer petitions are being received by USCIS, the agency is subjecting th0se that are filed to increased scrutiny. Companies are facing Requests For Evidence asking for significant amounts of documentation that the job they are offering exists and will exist in October. Now more than ever, ensuring that initial H petitions are well documented (some would say over-documented) is necessary to have success in H petition filings.
Tags: Cap Count, H-1B
Posted in Agency Updates, Temporary Visas | 1 Comment »
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