H1B Visa Lawyer Blog

June 18, 2008

A Little Guidance on the Child Status Protection Act (“CSPA”) –Part 1 of 3

The CSPA as it relates to U.S. citizens filing petitions on behalf of their children.

The CSPA was designed to benefit children who would “age-out” because of processing delays on the part of the U.S. Citizenship and Immigration Services (USCIS) or Department of State. In enacting the CSPA, Congress had the intent to ensure that a child did not lose an immigration benefit merely because the child turned 21 while the government was processing the child’s immigration documentation. Prior guidance issued by the USCIS on August 17, 2004 and June 14, 2006 had limited eligibility of individuals to the CSPA if certain qualifying events occurred prior to August 6, 2002. However, new guidelines recently published by the USCIS remove those limitations.

The CSPA changes who can be considered to be a “child” for the purpose of the issuance of visas by the Department of State, and for purposes of adjustment of status of aliens by USCIS. The Immigration and Nationality Act defines a “child” as someone who is unmarried and under the age of twenty-one. Prior to the passage of the CSPA on August 6, 2002, a child could only benefit from his “child” status if he/she remained a child right up until the date that he obtained an immigrant visa to come to the U.S.

June 17, 2008

Supreme Court Holds that Those Granted Voluntary Departure Can Seek Reopening

by Kellie N. Lego

Dada v. Mukasey, No. 06-1181, 554 U.S. ___ (June 16, 2008)

The Supreme Court held that voluntary departure recipients must be permitted to unilaterally withdraw a voluntary departure request before the expiration of the voluntary departure period “to safeguard the right to pursue a motion to reopen.” The Supreme Court rejected the argument that the voluntary departure period automatically tolls when a motion to reopen is filed.

Case Summary:

June 13, 2008

Maintaining PERM AUDIT Files

by Kellie N. Lego

It is the employer’s responsibility to maintain an audit file for every PERM application they file on behalf of their employees. As a practical matter, it is important to keep accurate and up-to-date records of all employee supporting documentation, especially when dealing with the PERM process. It is important that all steps in the process are followed precisely. Otherwise, consequences may occur that could ultimately result in supervised recruitment for two years, employer disbarment from the PERM system for two years, or even the closing of the employer’s business. Therefore, by maintaining an audit file for every PERM applicant, the employer is prepared to respond to an audit notice in a timely and efficient manner, and has the evidence to establish that they followed the required procedures correctly.

The key elements of an employer’s audit file should include the following:

1. A copy of the certified labor certification application (ETA FORM 9089)
An employer is required to maintain a copy of the certified application

2. Proof of permanent, full-time employment
An employer must be prepared to document the permanent and full-time nature of the position by furnishing job descriptions and payroll records for the job opportunity involved in the 9089 application– If the job does not exist, the employer must be prepared to show that a change in its business caused the job to be created

3. Notice to the bargaining representative (if applicable)
A copy of the letter and a copy of the 9089 Application form that was sent to the bargaining representative will suffice

4. Documentation of job posting notice
A copy of the posted notice and statement regarding where it was posted, and copies of all the in-house media that were used to distribute notice will be sufficient

5. Proof of job order placement
A copy of the State job order print document will be adequate

6. Documentation regarding bona fide job opportunity (if applicable)
Applies if the employer is a closely held corporation or partnership or if there is a familial relationship between management and the alien, or if the alien is one of a small number of employees

If applicable, documentation consisting of the Articles of Incorporation, partnership agreements, licenses, an organizational chart documenting all positions and relations between workers, the total investment of each individual, and the name of the human resources representative should all be kept within the file

7. Prevailing wage documentation
The State Workforce Agency (‘SWA’) prevailing wage determination printout will suffice; however, if the employer used an alternative wage source to obtain a prevailing wage determination, the employer should retain copies within the file

8. Recruitment documentation consisting of: (three different mediums must be utilized in addition to the two required print ads)
• Print Ads – copies of the newspaper pages in which the advertisements appeared will suffice
– if a professional journal was utilized, a copy of the page in which the advertisement appeared will be adequate

• Job Fairs – a copy of a brochure advertising the fair and/or newspaper advertisements in which the employer is named as a participant in the job fair will be sufficient

• Employer’s Web site – a dated copy of the page from the website that advertises the occupation involved will suffice

• Job Search Web site (other than employer’s)
– a dated copy of the page(s) from one or more website(s) that advertise the occupation involved will be adequate

• On-Campus recruiting – copies of the notification issued or posted by the university’s placement office naming the employer and the date it conducted interviews for employment in the occupation will be sufficient

• Trade or professional organization journals/newspapers – copies of pages of newsletters or trade journals containing advertisements for the occupation involved will suffice

• Private employment firms – copies of contracts between the employer and the private employment firm and copies of advertisements placed by the private employment firm for the occupation involved will be adequate

• Employee referral program with incentives – dated copies of employer notices or memoranda advertising the program and specifying the incentives offered will be sufficient

• Campus placement offices – a copy of the employer’s notice of the job opportunity provided to the campus placement office will suffice

• Ads in local and ethnic newspapers – copies of the newspaper pages in which the advertisements appeared will suffice

• Radio and Television advertisements – a copy of the text of the employer’s advertisement along with a written confirmation from the radio/television station stating when the advertisement was aired
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June 12, 2008

UPDATE: USCIS Offers Premium Processing for I-140s on a Limited Basis

by Kellie N. Lego

As I had recently mentioned in another one of my other recent blog postings, the American Immigration Lawyers Association (AILA) had reported that the U.S. Citizenship and Immigration Service (USCIS) was going to resume premium processing of I-140 applications for certain individuals. Today, the USCIS released an update and fact sheet addressing this issue.

In its update, the USCIS confirms that on June 16, 2008 it will make available its Premium Processing Service for individuals who are on H-1B status and are reaching the end of their sixth year on H-1B and have I-140 petitions (Immigrant Petition for Alien Worker) filed on their behalf (in our previous report we had reported that USCIS officials were going to open up premium processing on July 16, 2008).

Under the Premium Processing Program, the USCIS guarantees that petitioners would get a response (i.e., approval, denial, request for additional evidence, etc.) within 15 calendar days. This is really good news for individuals running our of time on H-1B status as according to the American Competitiveness in the Twenty-first Century Act of 2000 (AC21), and H-1B nonimmigrant is permitted to extend their status for three years beyond the six year limit provided that the alien is the beneficiary of an approved I-140 petition and an employment-based preference visa is not available for that individual.

June 11, 2008

Maintaining an H1B Audit (Public Access) File

by Kellie N. Lego

The H-1B , is an employment based non-immigrant visa, that enables United States employers to seek highly skilled foreigner workers from around the world to increase productivity and develop new innovations within their fields which ultimately helps the U.S. economy. In return, the U.S. remains at the forefront of technology among other nations of the world, and continues as a major competitor in all other fields. The system was designed to protect both U.S. and foreign workers by: (1) including labor certifications and attestations; (2) implementing costly filing fees; (3) requiring extensive background documentation/proof; and (4) conducting on-site employer investigations and continuous oversight by several federal agencies.

The H-1B program contains strong provisions to ensure that U.S. and foreign workers are protected. Employers must guarantee that the U.S. workers will not be adversely affected upon the hiring of an H-1B professional. A U.S. employer using the program must also guarantee that: (1) the foreign professional will not adversely affect the working conditions of U.S. colleagues; (2) U.S. colleagues will be given notice of the foreign professional’s presence among them; (3) there is no strike or lockout at the worksite; and (4) the position requires a professional in a specialty occupation and the intended employee has the required qualifications. Employers who fail to comply with the Department of Labor (“DOL”) regulations may become subject to investigation, civil and administrative penalties, payment of back wages, and disbarment from participation in key immigration programs.

To ensure that U.S. and foreign workers are protected, each employer must maintain an audit/public access file for each H-1B applicant it has acquired. It is important to keep the public access file separate from all other employee and business files. The employer is required to have a public inspection file and DOL is able to audit that inspection file as well as payroll records to make sure the foreign worker is/was being paid the wage stated in the application. Public access files must be maintained for a period of one year beyond the last date on which any H-1B nonimmigrant was employed under the labor condition application.

June 10, 2008

Maintaining a I-9 AUDIT Files

by Kellie N. Lego

EVERY employer needs to complete I-9 forms for every employee hired after November 4, 1986. Under the Immigration Reform and Control Act of 1986 (“IRCA”), all employers must verify that every person that is hired is either: a U.S. citizen, a lawful permanent resident, or a foreign national with authorization to work in the U.S. Within three business days of beginning the job, the employee must furnish identity and employment eligibility documents. It is the responsibility of the employer to examine the documents to determine whether they are genuine and relate to the specific employee. Once the I-9 form is completed, they are to be kept in office for the longer of three years after employment begins or one year after employment is terminated. Most importantly, if an employee has temporary employment authorization, a reverification of employment eligibility must be conducted prior to expiration of the employment authorization. Moreover, officers of the Department of Homeland Security (“DHS”) and Immigration Customs Enforcement (“ICE”) have the right to audit employers’ I-9 forms. DHS/ICE officers conduct an estimated 60,000 I-9 audits a year on employers around the country and have issued fines in excess of $1,000,000. Additionally, each mistake on an I-9 Form counts as a separate violation. All employers are further subject to civil and criminal penalties for knowingly hiring or continuing to employ aliens who are not authorized to work in the U.S. Accurate completion of I-9 forms is a good faith defense to a charge of hiring unauthorized workers.

ICE has increasingly been conducting workplace raids that can have a significant impact on an employer and its workers regardless of status. Results of those raids have been: public relations nightmares, fleeing or arrested workers resulting in loss of work force, loss of productivity, split up families and related humanitarian issues, as well as expensive and protracted litigation. Therefore, the best way for an employer to avoid IRCA problems is to establish a meaningful I-9 audit system.

Such a system should include at least the following elements:

June 9, 2008

USCIS TRIES TO INCREASE EFFICIENCY IN PROCESSING NATURALIZATION APPLICATIONS

by Kellie N. Lego

In July of 2007, the U.S. Citizenship and Immigration Services (USCIS) received a record 460,000 applications for naturalization. Moreover, for 2007, the USCIS received 1.4 million naturalization applications. This is double the normal annual volume. As a result of the record volume of applications, the USCIS announced in April
of this year that depending on the region that an applicant’s citizenship application was filed, it was taking the USCIS at least five to fourteen months. As a result, over the past few months, the USCIS has increased the number of officers adjudicating naturalization applications. Moreover, USCIS just announced that it will centralize the initial naturalization processing. Hopefully, these changes speed up the process for the thousands of individuals who are waiting to become citizens.

June 5, 2008

Changes To Visa Waiver Program – DHS Announces Pre-Travel Authorization Program for U.S.-Bound Travelers from Visa Waiver Countries

by Kellie N. Lego

The U.S. Department of Homeland Security (DHS) announced on June 3, 2008 the Interim Final Rule for the Electronic System for Travel Authorization (ESTA), a new online system that is part of the Visa Waiver Program (VWP) and is required by the Implementing Recommendations of the 9/11 Commission Act of 2007.

“Rather than relying on paper-based procedures, this system will leverage 21st century electronic means to obtain basic information about who is traveling to the U.S. without a visa,” said Homeland Security Secretary Michael Chertoff.

Once ESTA is mandatory, all nationals or citizens of VWP countries who plan to travel to the United States under the VWP will need to receive an electronic travel authorization prior to boarding a U.S.-bound airplane or cruise ship. The requirement will go into effect January 2009.

June 5, 2008

PERM Business Necessity Audits

by Kellie N. Lego

The employment based permanent residency or “green card” process is a three step process. The first step in this process is called Labor Certification. As of March 28, 2005 all Labor Certification applications are filed through the online PERM process. The Since April of 2007, immigration attorneys have reported a significant increase in the number of PERM audit notifications issued by the US Department of Labor (DOL).

PERM audits are either randomly issued or are triggered by mechanisms installed in the PERM program by the DOL. In order for an employer to file a successful labor certification application, a U.S. employer must establish that no U.S. workers (either U.S. citizens or permanent residents) were available for the position. The DOL requires U.S. employers to conduct a recruitment campaign prior to filing a PERM based labor certification application. If the DOL deems the U.S. employer’s job requirements to be excessively restrictive to U.S. workers, an audit request is issued. In most instances, an audit will be triggered if an employer’s job requirements do not comply with the Department of Labor’s specific vocational preparation (SVP) guidelines as set forth in the O*NET. For example, if the DOL has set a SVP of “7< 8" for the software engineer position. According to the DOL's SVP guidelines, the maximum vocational preparation for this position is 4 years. The DOL equates a bachelor's degree to 2 years of vocational preparation and a master's degree to 4 years of vocational preparation. Therefore, if an employer's requirements for a software engineer exceed either a bachelors degree in the field and 2 years of experience or a masters degree in the field an 0 years of experience, the requirements would be considered excessive by the DOL.

The majority of the recent PERM audits are a direct result of employer's exceeding the DOL's SVP requirements. Most of these audits require employers to establish "business necessity" for the job requirements exceeding the SVP. In accordance with Matter of Information Industries, 88-INA-92 (BALCA Feb. 9, 1989) and 20 CFR § 656.17(h), "To establish a business necessity, an employer must demonstrate the duties and requirements bear a reasonable relationship to the occupation in the context of the employer's business and are essential to perform the job in a reasonable manner." Therefore, when responding to business necessity related audit requests, the employer must provide the DOL with evidence that proves that the employer's requirements bear a reasonable relationship to the occupation and are essential to perform the job in a reasonable manner. The employer could include evidence of its past hiring practices and describe its operations in detail to justify that the requirements are needed to perform the duties of the position to fulfill the employer's business needs.

June 4, 2008

FY2009 H1B Cap Filing Update

by Kellie N. Lego

U.S. Citizenship and Immigration Services (USCIS) announced on April 10, 2008 nearly 163,000 H-1B petitions received during the filing period on April 1 to April 7, 2008. More than 31,200 of those petitions were for the advanced degree exemption. On April 14, 2008 USCIS conducted the computer-generated random selection processes on H-1B petitions to select which H-1B petitions for fiscal year 2009 (FY 2009) would continue to full adjudication.

USCIS conducted random selections, first on petitions qualifying for the 20,000 “U.S. master’s or higher degree” (advanced degree) exemption, and second on the remaining advance degree petitions together with the general H-1B pool of petitions, for the 65,000 cap. Petitioners whose properly filed petitions have been selected should receive a receipt notice dated no later than June 2, 2008. USCIS will return unselected petitions with the fee(s) to petitioners or their authorized representatives, unless found to be a duplicate. The total adjudication process is expected to take approximately eight to ten weeks.

USCIS has “wait-listed” some H-1B petitions, they may possibly replace petitions chosen to receive an FY-2009 cap number, but that subsequently are denied, withdrawn, or otherwise found ineligible. USCIS will retain these petitions until a decision is made whether they will replace a previously selected petition. USCIS will send a letter to the wait list petitioners to inform them of their status.