This issue is currently under examination within the H-1B policy review working group as part of the comprehensive USCIS policy review.  It has long been fraught with confusing and sometimes contradictory policy guidance regarding when a change in employee work location requires a new H-1B petition.

The fact is that not every change in jobsite location represents a ‘material change’ and not every change equates to a change in the conditions of employment, particularly if the change is in the same Metropolitan Statistical Area (MSA) upon which the Labor Condition Application and the prevailing wage is based.

It has long been the policy articulated in the October 23, 2003 Efren Hernandez letter (AILA Doc. No. 03112118), that changes in job site location do not require amended H-1B filings as long as a Certified Labor Condition Application is in place; an LCA posting notice under DOL regulations was completed, and other wage and hour obligations are met.

The American Immigration Lawyers Association (AILA) is requesting that USCIS “issue clear and unequivocal guidance confirming the provisions in the Hernandez letter so that petitioners and USCIS can follow and rely upon it.”

We will keep you informed concerning this matter as developments occur.

The Department of Labor announced last week that it will be suspending the processing of prevailing wage determinations (PWDs) for most case types,  including PERM labor certifications and H-1B cases – while it complies with a federal court order that requires them to reissue some 4,000 PWDs for the H-2B temporary non-agricultural visa program. The suspension will mean that some employers may be delayed in their ability to commence recruitment on or file PERM labor certification applications.  DOL has not indicated when it will resume issuing non-H-2B PWDs, but because its H-2B workload is considerable, it may not return to full-scale PWD processing for several months.

Though the suspension involves several immigration case types, PERM applications, by far, are the most severely affected due to the time-sensitivity given that the results of an employer’s labor certification recruitment are valid for just 180 days. If a request for a prevailing wage determination is delayed and an employer has commenced the recruitment phase prior to receiving the PWD, an employer’s recruitment could expire, meaning that the entire recruitment process would have to be redone before a PERM application could be filed. The effect on H-1B petitions is far less because employers can use the OFLC Wage Data Center or other independent surveys to determine the prevailing wage for an H-1B position.

DOL’s official timeframe for processing prevailing wage requests had been 60 days, but they had been turning them around in about 30 days.   It appears that the suspension is affecting PWRs filed as early as the beginning of June 2011.

Action Item for Employers: If you require a PERM Labor Certification Application be filed in order to continue employment for your H-1B visa holders who are approaching the 6-year maximum period of stay, you cannot start these cases early enough.  Please discuss strategy and planning with your immigration professional right away, or give our office a call to discuss your case concerns.  We will keep you updated as developments occur.

USCIS announced today that it has published a proposed rule that will save US businesses more than $23 million over the next 10 years by establishing an advance H-1B registration process for U.S. employers seeking to file petitions for foreign workers under the H-1B specialty occupation category.  The proposed electronic system would minimize administrative burdens and expenses related to the H-1B petition process—including reducing the need for employers to submit petitions for which visas would not be available under the visa cap.

USCIS Director Alejandro Mayorkas announced today the opening of a 60-day comment period that will allow businesses and the general public to provide input on the proposed system in order to ensure it best meets the needs of employers that rely on H-1B visas to bring in foreign workers for specialty occupations.  Mayorkas expressed that “Improving the H-1B petition process is part of USCIS’s ongoing efforts to leverage new ideas and innovation to streamline our operations and enhance customer service.”

The employer would go through an online, electronic a process that would take an estimated 30 minutes to complete.  Before the petition filing period begins, USCIS would select the number of registrations predicted to exhaust all available visas. Employers would then file petitions only for the selected registrations. The registration system would save employers the effort and expense of filing H-1B petitions, as well as Labor Condition Applications, for workers who would be unable to obtain visas under the statutory cap.

The proposed rule, which posted to the Federal Register today for public viewing, contains complete details about the registration system and estimated cost savings. USCIS encourages formal comments on the proposed rule.  We link to the following additional information:

Fact Sheet

News Release

ICE and HSI worksite enforcement activities strike again – this time it’s temp agencies!

In an ICE Press Release today, it was announced that during an ICE and HSI investigation, it was found that a 2-location temp agency was knowingly supplying undocumented unskilled and skilled warehouse and janitorial workers to their clients as a part of their labor pool.

Clinton Roy Perkins, the owner of Can Do It Inc. in Bensenville, IL, was sentenced on February 16th to 18 months in prison, to be followed by three years of supervised release, for knowingly hiring illegal aliens at the staffing companies. He pleaded guilty in September 2010. On Feb. 25th, U.S. District Judge Joan B. Gottschall also ordered the forfeiture of $465,178 in proceeds obtained as a result of the criminal activity.

Perkins admitted to knowingly hiring more than 10 illegal aliens from Mexico between October 2006 and October 2007.  Perkins did not require the workers to provide documents establishing their immigration status or lawful right to work in the United States.

Perkins and his son-in-law, Chrispher Reindl, paid the illegal workers’ wages in cash; did not deduct payroll taxes or other withholdings. Perkins and Reindl directed low-level supervisory employees to transport illegal workers back and forth between locations near the aliens’ residences in Chicago and work sites in the suburbs. Both also provided bogus six-digit numbers – purporting to be the last six digits of the aliens’ Social Security numbers – to a company, knowing that their workers were in the country illegally and did not possess valid Social Security numbers.

In a quote from special agent in charge of ICE HSI in Chicago:  “We will hold employers accountable for their actions.  Mr. Perkins knowingly hired an illegal workforce and circumvented our nation’s immigration laws for financial gain. The goal of our enforcement efforts is two-fold – reduce the demand for illegal employment and protect job opportunities for the nation’s lawful workforce.”

ICE was assisted in the investigation by the U.S. Department of Labor’s Office of Inspector General in Chicago. Assistant U.S. Attorneys Christopher R. McFadden and Daniel May, Northern District of Illinois, prosecuted the case.

February 16, 2011, Brett Dreyer, Chief of the Worksite Enforcement, Unit of Homeland Security Investigations, verified on 2/16/2011 that ICE continues to focus its investigations both on businesses that were brought to their attention by tips and leads, and on those that work in areas of national security and critical infrastructure. Mr. Dreyer further confirmed: “The agency continues to be interested in egregious employers as they tend to break other laws in addition to immigration…including paying employees under the table, avoiding taxes and ignoring employee protections. The inspections will touch on employers of all sizes and in every state in the nation — no one industry is being targeted nor is any one industry immune from scrutiny.”

Confirmation has been publicized that NOI’s were indeed served throughout the USA on February 17^th.  The audits are expected to be completed within the next 2-3 months. We link here for more on this story.

This is a good time to review what you should do if you are served with a Notice of Inspection (NOI):

• Immediately contact Immigration Solutions and company management
• Employers are allowed by law 3 days notice to respond by producing the I-9 records of their active as well as terminated employees within a particular period of time

The NOI will be most probably be accompanied by a very invasive Document Subpoena that might ask for all of some of the below items:  

• A copy of your I-9 Policy and Procedures Statement or Manual
• I-9 forms for current employees hired after 11/6/1986
• I-9 forms for terminated employees within the required retention period
• Complete employee lists of current and terminated employees
• Quarterly Wage and hour reports
• Payroll Summaries
• SSA Mismatch correspondence
• E-Verify and/or SSNVS documents
• Business information such as:  Employer ID number, owner’s SSN/address, business license, etc.

We work with our clients to create compliant workforces, and now is the time to be proactive if you absolutely know that you have problems with your I-9 forms; and, by the way, most employers do.  We encourage you to be proactive and take action now before you pay the high price of being put in a position where your options have diminished.

We are happy to hear from you and are very flexible with our package of compliance services and solutions.  Our talented team is read to assist you with whatever you’d like to accomplish with your compliance programs.  Visit our I-9 Resource Center here.

For those of you who might like to listen to the news rather than read it, we invite you to tune into “InFOCUS” – immigration news and updates to listen to our podcast on the above-captioned topic.  Should you wish to contact our office to discuss your particular immigration needs, please feel free to do so here.

#1: The Job Description and Degree Requirement

The job offer and the job description must be for a specialty occupation that requires a minimum of a bachelor’s degree or its foreign equivalent.  What is the definition of a specialty occupation?  A specialty occupation requires the theoretical and practical application of a body of specialized knowledge along with at least a bachelor’s degree or its equivalent. For example, information technology, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts are specialty occupations.

Small to medium-size companies are being asked to justify why the position requires someone with a bachelor’s degree and to explain, through various types of evidence including organizational charts, classified ads for the position, and educational information pertaining to existing or previous employees in the same position, why their business is more unique than other similar businesses in their industry that they would require a candidate with a bachelor’s degree in a particular position.

Bachelor’s Degree equivalency can be attained through a single-source foreign degree that meets US standards, a combination of a degree and work experience, or a work experience alone equivalency that meets the “3 for 1” rule; namely, that 3 years of work experience to 1 year of university level education (this requires an expert credential evaluation by a service that is authorized to evaluate work experience).

Note: Bear in mind that if you have a skilled immigration professional that has a strategy in place for your green-card sponsorship (permanent residency), it is essential that your degree and its equivalency be carefully reviewed so that it will be compatible with the classification under which you will be filing your PERM labor certification and green-card case.

USCIS now requires very detailed job descriptions that contain the position summary, duties and responsibilities, as well as the percentage of time spent on each job duty. It is hard to imagine that a job description with a 15-bullet point list of duties and a full page in length is insufficient, but when you work with a skilled immigration practitioner, this can be successfully argued against the O*NET and the OOH which is the primary source of job information for USCIS and the Department of Labor.

In summary: Employers need to be prepared with complete job descriptions for their H-1B prospective employees and document the need for a degreed professional thoroughly in their casework and work with an immigration attorney that is well versed in handling H-1Bs as well as PERM labor certifications.

#2:  Plan Ahead and File Early

When should I start my case? Immigration Solutions accepts H-1B cap-subject cases well in advance of April 1st to avoid the rush that normally occurs when employers become aware of cap deadlines and when foreign workers obtain job offers that require cap subject visa numbers. Bottom line, cap-subject cases should be started ASAP.  We advise employers to assess their hiring needs for FY 2012 and contact their immigration attorney to discuss timing issues.

How long does it take to prepare an H-1B Case? We do not recommend waiting until the last minute because of the various government agencies that are involved in the process. With good front-end case strategy, consulting with an attorney that has a depth of experience with H-1Bs with and a streamlined case process – the many steps involved in preparing an H-1B requiring the cooperation of all parties, can go very smooth and an approvable petition can be filed with all necessary supporting documentation.  An approval requires that a case be prepared correctly from the start.  It is often not possible to reverse strategy after the case is filed.  Planning ahead is crucial to flush out any issues that need to be overcome, particularly when working with IT and healthcare consultants and staffing agencies that have 3^rd party jobsite issues.

In summary, the demand for H-1B visas, although not as high in this economy, have tougher documentation standards and Department of Labor delays sometimes for several weeks with employer EIN# verification issues. By understanding the issues involved in the H-1B process, one can take a proactive approach to assure that the needs of all parties are addressed early.

#3:  When the Occupation Requires a License

USCIS’ approval of an H-1B petition that requires a license, is not authorization for the employee to practice his or her profession without the required license. This is particularly prevalent when processing H-1Bs for teachers and healthcare professionals.  USCIS regulation provides that if an occupation requires a state or local license to fully perform the duties of the occupation, the foreign worker must have the license prior to the approval of the petition.

This can be a Catch 22….Some states will not issue a state license unless the individual worker presents evidence to the State Board that they are legally authorized to be employed in the USA. Some State Boards require the worker to establish to the State Board that they have been granted H-1B status as a prerequisite to issuing the license. For example, certain State Boards of Pharmacy will not issue a pharmacist license until the worker presents evidence of work authorization. Teachers and registered nurses have been unable to obtain licensure until they obtain social security numbers which cannot be achieved until one is authorized to work in the USA.

With the above being said, USCIS adjudicators have been instructed to approve H-1B petitions for a one-year period if a State or local license to engage in the profession is required, and the appropriate licensing authority will not provide such license to the worker without evidence that that they have been granted H-1B status. At the end of the one-year period, the employer is required to file another petition with a request for extension and also present evidence at that time that state licensure has been obtained.

As a condition to approving petitions involving state or local licensure, the worker must demonstrate that they have filed an application for the license according to the State or local rules and procedures, provide evidence that they are qualified to receive the license, and that all educational, training experience and other requirements are met, including healthcare certification, at the time of filing the petition. For instance, Physical Therapists must provide a letter or statement signed by an authorized state physical therapy licensing official in the state of intended employment, indicating that the PT is qualified to take the state’s written licensing examination for physical therapists and thereafter obtain state licensure.

:::::::::::

If you are not a client of our firm and would like to discuss H-1Bs as well as any other immigration matters, we invite you to contact us at info@immigrationsolution.net | telephone 562 612.3996 to set up a consutation.

USCIS announced today that it has received a sufficient number of H-1B petitions to reach the statutory cap for fiscal year (FY) 2011. USCIS is notifying the public that yesterday, Jan. 26, 2011, is the final receipt date for new H-1B specialty occupation petitions requesting an employment start date in FY2011.

The final receipt date is the date on which USCIS determines that it has received enough cap-subject petitions to reach the limit of 65,000.  Properly filed cases will be considered received on the date that USCIS physically receives the petition; not the date that the petition was postmarked.  USCIS will reject cap-subject petitions for new H-1B specialty occupation workers seeking an employment start date in FY2011 that arrive after Jan. 26, 2011.

USCIS will apply a computer-generated random selection process to all petitions that are subject to the cap and were received on Jan. 26, 2011. USCIS will use this process to select petitions needed to meet the cap.  USCIS will reject all remaining cap-subject petitions not randomly selected and will return the accompanying fee.

Extensions of stay and portability H-1B cases (transferring to a new employer) can still be filed and so can cases for H-1B exempt employers.

As of April 1, 2011, we can start filing new H-1B cases with USCIS to commence employment October 1, 2011.  This is a good time for employers to begin to assess their H-1B hiring reqirements for FY 2012 and plan in advance.

Contact our office should you wish to consult with us and retain us to handle your H-1B immigration cases.

Our January 2011 newsletter with I-9 and E-Verify updates and US and Canadian immigration news is now available.

If you haven’t had a look at our I-9 Employer Resource Center, please take a minute to do so, fill out the Survey and send it along to us:  www.I-9Audits.com

USCIS released a revised January 5, 2011 version of the I-9 Employer Handbook today.  Our office received an emailed  Press Release from USCIS Director Alejandro N. Mayorkas announcing the release of the Handbook that is published in cooperation with the Department of Homeland Security partners. Director Mayorkas states:

“By law, U.S. employers must verify the identity and employment authorization for every worker they hire after November 6, 1986, regardless of the employee’s immigration status. To comply with the law, employers must complete Form I-9, Employment Eligibility Verification. The Handbook for Employers is a guide for employers in the Form I-9 process.

It has been revised and updated with new information about applicable regulations, including new regulations about electronic storage and retention of Forms I-9; it clarifies how to process an employee with a complicated immigration status; and, it addresses public comments and frequently asked questions. We thank the many stakeholders who have provided comments on the Form I-9 process and the Handbook since the Handbook was last revised (Rev. 7/31/2009).

Some of the many improvements, new sections, and tools included in The Handbook for Employers are:

• New visual aids for completing Form I-9
• Examples of new relevant USCIS documents
• Expanded guidance on lawful permanent residents, refugees and asylees, individuals in Temporary Protected Status (TPS), and exchange visitors and foreign students
• Expanded guidance on the processing of employees in or porting to H1-B status and H2-A status; and
• Expanded guidance on extensions of stay for employees with temporary employment authorization.

The Handbook for Employers now also includes information for employers in the Commonwealth of the Northern Mariana Islands (CNMI) who must verify their employees’ employment authorization on Form I-9 CNMI. It also highlights information about documents CNMI employers may accept from their employees.

We are pleased to release this revised and updated handbook. We are hopeful it will serve as a useful guide for employers complying with the Form I-9 process.”

::::::::::::::::::::::::::::

Should you have questions following the reading and review of the new Handbook, please contact our compliance team at Immigration Solutions.  Should you require compliance services and solutions, our talented team is ready to assist you.