Labor Immigration Law

United States Labor Immigration Law News and Analysis

Archive for February, 2009

Premium Processing for I-140s Expanded

About 6 months ago, USCIS made premium processing available to certain cases where the I-140 beneficiary is in danger of  H-ing out. (Our original stories.)  USCIS has just announced that it is expanding the I-140 premium processing program.  Currently, only beneficiaries who are in H-1B status at the time of  the filing of the I-140 may request premium processing.  The new program, which becomes effective March 2, 2009, will allow beneficiaries who have reached or are reaching the limitation on their stay in H-1B nonimmigrant status to request premium processing.

Eligibility Criteria

I-140 Premium Processing, starting March 2, 2009, will be available to beneficiaries who, as of the date of filing the premium processing request:

  • are the beneficiary of a Form I-140 petition filed in a preference category that has been designated for premium processing service;
  • have reached the sixth-year statutory limitation of their H-1B stay, or will reach the end of their sixth year of H-1B stay within 60 days of filing;
  • are only eligible for a further H-1B extension under section 104(c) of the American Competitiveness in the Twenty-first Century Act of 2000 (AC21) (which allows beneficiaries to extend H-1B in 3-year increments if I-140 is approved and a visa number is not immediately available); and
  • are ineligible to extend their H-1B status under section 106(a) of AC21.

Documents Needed by USCIS to Determine Eligibility

USCIS has indicated that certain documents are helpful to determine the premium processing eligibility of a particular  I-140 application:

  • Copies of all Forms I-94, Arrival/Departure Record and I-797 H-1B or L approval notices that have been issued on his or her behalf;
  • A copy of the relating Form I-140 petition receipt notice if the form was previously filed; and,
  • A copy of the labor certification approval letter issued by the Department of Labor, if filing under the EB-2 or EB-3 classifications.

Conclusion

By expanding the premium processing program for I-140s, USCIS effectively expands the window in which the premium processing request may be filed.  Previously,  only holders of valid H-1B status who had 60 days or less remaining on their status were eligible.  Now, under the new rule, premium processing can be filed 60 days before the expiration of H-1B status or after it expires.

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Stimulus Bill, TARP Companies and H-1Bs – Summary

A week after the Stimulus Bill was signed into law and the dust has started to settle, we have compiled a summary of the key points of the Stimulus Bill’s restriction on TARP-recipient companies to issue new H-1B visas.   The law became effective upon the stimulus bill’s enactment, February 17, 2009. It is important to note that the law will remain effective for only two years after its enactment. Thus, it will sunset on February 16, 2011.

Final Text of the Stimulus Bill Imposing the H-1B Limitations

Section 1611 of the American Recovery and Reinvestment Act of 2009 (“ARRA”)  reads:

SEC. 1611. HIRING AMERICAN WORKERS IN COMPANIES RECEIVING TARP FUNDING.

(a) SHORT TITLE.—This section may be cited as the ‘‘Employ American Workers Act’’.

(b) PROHIBITION.—

(1) IN GENERAL.—Notwithstanding any other provision of law, it shall be unlawful for any recipient of funding under title I of the Emergency Economic Stabilization Act of 2008 (Public Law 110–343) or section 13 of the Federal Reserve Act (12 U.S.C. 342 et seq.) to hire any nonimmigrant described in section 101(a)(15)(h)(i)(b) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(h)(i)(b)) unless the recipient is in compliance with the requirements for an H–1B dependent employer (as defined in section 212(n)(3) of such Act (8 U.S.C. 1182(n)(3))), except that the second sentence of section 212(n)(1)(E)(ii) of such Act shall not apply.

(2) DEFINED TERM.—In this subsection, the term ‘‘hire’’ means to permit a new employee to commence a period of employment.

(c) SUNSET PROVISION.—This section shall be effective during the 2-year period beginning on the date of the enactment of this Act.

What Exactly Are the H-1B Restrictions?

Covered companies are not allowed to “hire” an H-1B worker unless the company has complied with additional LCA attestations which are generally imposed on H-1B dependent employers.  These additional attestations are:

(1) that the employer has, prior to filing the H-1B petition, taken good-faith steps to recruit U.S. workers for the position for which the H-1B worker is sought, offering a wage that is at least as high as that required under law to be offered to the H-1B worker. The employer must also attest that, in connection with this recruitment, it has offered the job to any U.S. worker who applies and is equally or better qualified for the position; and

(2) that the employer has not laid off, and will not lay off, any U.S. worker in a job that is essentially equivalent to the H-1B position in the area of intended employment of the H-1B worker within the period beginning 90 days prior to the filing of the H-1B petition and ending 90 days after its filing.

Which Employers Are Covered Under the H-1B Restriction?

A company which receives funding under title I of the Emergency Economic Stabilization Act of 2008 (Public Law 110-343, the “TARP Bill”) or that receives funding under Section 13 of the Federal Reserve Act (12 U.S.C. § 342 et seq., authorizing the Federal Reserve’s “Discount Window” for short-term, secured loans to financial institutions and other companies) is covered under the H-1B restriction.   USA Today has a chart with names of the TARP companies and the U.S. Treasury has a list of transaction reports under the TARP program.

Note that companies recipients of funds pursuant to the ARRA stimulus bill, but not under the TARP Bill, are not subject to the H-1B restriction.

Are There Exemptions?

Generally, employers who are H-1B dependent can claim one of two exemptions – having salary higher than $60,000 or having a master’s degree – and avoid having to provide the additional attestations.  However, these two exemptions have been made explicitly unavailable to TARP companies.

What Happens to H-1B Workers at Existing TARP Companies?

The statute is drafted to prohibit any “new hires” between February 17, 2009 and February 16, 2011.  “Hire” is defined as permitting “a new employee to commence a period of employment.” As a result, it seems that the H-1B restrictions do not apply to H-1B workers who are already employeed at the TARP companies.  However, neither USCIS nor DOL have issued implementation guidance or regulations yet, so it is not completely certain that they will take the same view.

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Clarification on H-1B Transfer After Layoff

In late January we wrote an article which described the immigration implications and options available to H-1B workers who have been laid off or otherwise terminated from their employment.  Our article was prompted by a Vermont Service Center (VSC) AILA Liaison guidance and has generated a fair amount of interest and comments.

Work Allowed While H-1B Transfer Pending Even if There is a Gap in Employment

Just this week, VSC’s AILA Liaison provides some clarifications which, in these difficult economic times, provide a fair amount of relief to terminated H-1B workers.    Our article, and the previous guidance from VSC, indicated that in order to be eligible to “port” to a new H-1B employer, the new H-1B petition must be filed before termination or before the old petition is revoked or withdrawn by the old employer.

However, if the H-1B portability criteria are met, then the foreign national would be eligible to work pursuant to H-1B portability upon filing the H-1B transfer application even if s/he was not eligible for an extension or change of status. The H-1B portability criteria are: (1) the foreign national was lawfully admitted; (2) the new H-1B petition is “nonfrivolous;” (3) the new H-1B petition was filed before the date of expiration of period of authorized stay (as described on the I-94 card); and (4) subsequent to lawful admission, the foreign national has not been employed without authorization.  (INA § 214(n))

For example, if an H-1B employee is terminated on February 1, and her employer requests revocation of her H-1B on February 1, then the H-1B status is automatically revoked pursuant to 8 C.F.R. § 214.2(h)(11)(ii).  However, the foreign national remains in the U.S. and finds a job on March 1 and the new employer files a new, non-frivolous H-1B petition on her behalf.  Since the foreign national was lawfully admitted, the petition is non-frivolous, the I-94 was not expired, and she has not worked without authorization between February 1 and March 1, then the foreign national is eligible to start work under INA § 214(n).

Scenarios Upon Approval of Pending H-1B Transfer Application

The foreign national is eligible to work until the petition is adjudicated.  Once the H-1B petition is approved, this “interim” authorization to work ceases, and one of two things can happen.  One, USCIS will use its discretion and approve an extension of status and the employee will continue to be able to work for the new sponsoring employer.  Or, two, USCIS will deny the extension of status request and the employee will have to depart the U.S., and either obtain an H-1B visa at a U.S. consulate, or, if she already has a valid H-1B visa from her former employer, she will simply need to depart the U.S. and, upon re-entry, present her old visa with the new I-797 and continue working.

Conclusion

The guidance from VSC makes it easy for employees to understand their options in the event their H-1B employment is terminated. Working for the new H-1B employer while the application is pending allows an employee to continue to receive income especially when there is a period of unemployment between the old H-1B employment and the new one.  However, it should be noted that it is possible that USCIS may decline to “forgive” the period of unemployment between the two H-1B jobs and as a result the foreign national will have to travel outside of the U.S.

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2010 H-1B Cap Season Is Underway – Contact Us Now

About the H-1B Visa and the Annual H-1B Cap

The H-1B visa is one of the most commonly used U.S. work visas for highly skilled foreign born workers in fields such as information technology, engineering, research, academia, and others.  The H-1B visa is both highly desirable and, unfortunately, in short supply.

The H-1B visa category was created in 1990 through the Nationality and Immigration Act of 1990 (INA).  An H-1B job must require a bachelor’s degree or equivalent and the foreign national must have a bachelor’s degree or equivalent in a field of study that is related to the job.   Upon the creation of the H-1B visa type,  INA imposed a numerical limitation (“cap”) on the number of H-1Bs that could be issued in each fiscal year.  This “cap” (or quota) has varied over the past years but is set to 65,000 per year for the 2010 Fiscal Year starting on October 1, 2009.  As part of the Visa Reform Act which went into effect as of May 5, 2005, an extra 20,000 H-1B visas were made available to foreign nationals graduating with a US Master’s or higher degree from a US institution. These 20,000 are counted in addition to the annual cap of 65,000 visas.

Who is Counted Towards the Cap?

Most H-1B applications are subject to the annual cap.   Generally, all H-1B petitions which are filed for a new employment of an H-1B beneficiary (whether the foreign national is current outside of the U.S. or in the U.S. on a different visa type) and where the beneficiary has never held an H-1B visa in the past six years are subject to the cap.

However, some H-1B petitions are cap-exempt. Petitions filed by institutions of higher education or their affiliates or by non-profit or government research organizations are not subject to the H-1B cap (see our Guide to H-1B Cap-Exempt Employers)  Additionally, H-1B petitions where the beneficiary has had H-1B visa approved within the last six years are also exempt – in many cases such cases are H-1B employer transfers or changes in terms of employment.

What is H-1B Season?

All H-1B petitions which are subject to the cap must be filed on April 1 with a starting date of not earlier than October 1.  The demand for H-1B visas over the past several years has far exceeded the available 85,000 H-1B visas and as a result the government has instituted a lottery which randomly determines which H-1B applications submitted on or shortly after April 1 are to be considered.  Because of this limited window of opportunity, H-1B petitions which are subject to the cap must be filed on April 1 or a day or two afterwards.  Petitions filed late are automatically rejected.  As a result, the months of February and March are generally referred to as the “H-1B Cap Season” because this is the only time of the year when H-1B cap cases can be prepared and filed.

Deadline is April 1

The H-1B Season is underway.  We are already receiving many new H-1B cap inquiries and we are starting to get very busy with new H-1B cap applications.  Because cap-subject H-1B applications have only one opportunity to be filed per year, it is very important that each application be properly prepared and timely filed and we take extra effort to do so.  We still accept new cases so please contact us for a free initial consultation and evaluation on your case.  We would be happy to evaluate whether your H-1B petition is subject to the cap and if so, guide you through the process.

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Final Stimulus Bill to Restrict TARP Recipeints From Issuing New H-1B Visas

The final version of the stimulus bill, The American Recovery and Reinvestment Act of 2009 (H.R. 1, S. 1), was passed by the Congress late on Friday. The final version of ARRA included Senator Sanders’ amendment and the final version which is expected to be signed into law by President Obama on Tuesday, February 17th, will restrict the issuance of new H-1B visas by companies who are recipients of TARP funds. (List of TARP recpient companies)

We wrote and analyzed about the proposed amendment on Tuesday, February 10th, and we received a number of comments and reactions.  There was a very intensive effort to try and defeat the Sanders amendment during the conference, but ultimately, the Sanders amendment survived the conference and made its way into the final stimulus bill.

Following the passage, one of the major issues with analyzing the bill were (1) ths size of ARRA and (2) the scanned PDF format in which it was distributed.  Recognizing the urgency of the bill and its passage, we understand that to some extent transparency and convenience were sacrficed.  However, the inability to properly parse the text of the bill delayed its analysis.

According to the Conference Report:

Section 1611 provides that it shall be unlawful for any recipient of funding of Title I of the Emergency Economic Stabilization Act of 2008 or section 13 of the Federal Reserve Act to hire any nonimmigrant described in section 101(a)(15)(h)(i)(b) of the Immigration and Nationality Act unless the recipient is in compliance with the requirements for an H-1B dependent employer as defined in that Act.  This requirement is effective for a two-year period beginning on the date of enactment of this Act.

We would seek a final copy of the bill (as opposed to reading the PDF of the conference report) and post on this site any updates.

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DOL Explanation of PERM Delays

Last week we wrote about the substantial delays in PERM processing.  We have received numerous responses, inquiries and reactions from companies and immigrants who are concerned by this trend.  According to DOL:

[T]he delay was due to change in contractors and the subsequent period of hiring and training new contractor staff for the Atlanta National Processing Center.

One of the reasons that case processing slowed in the 4th quarter of 2008 was that DOL was hiring and training contractor staff for the Atlanta National Processing Center. The contract was awarded last summer, a losing contractor appealed and won the appeal, then the initial contractor sued. The workers did not come on board until last September 2008. The Atlanta Processing Center has only 40 federal employees and the rest of the staff consists of contractors. With the contractors now in place, the pace of processing has picked up. Only 4,571 PERM applications were completed in October-December 2008 but 3,500 PERM applications were completed in January 2009. However, DOL expects this will level off and processing rates will slow down again because of the limited number of federal employees available to review the contractors’ work.

The January number of 3,500 PERM applications is reassuring.  We will continue monitoring information from DOL regarding PERM processing timelines and provide updates to this important to many of our readers topic.

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Amid Layoffs, DOL Increases Scrutiny on PERM Filings

In addition to the substantial delays in PERM processing, the Department of Labor (DOL) has indicated that in light of the substantial layoffs and increased unemployment, it would impose a heavier scrutiny on PERM labor certification applications which are the first step of any green card process.

In a response to a question posed at a February 3, 2009, DOL stakeholder meeting, DOL indicated that:

The rising unemployment rate is also a big concern to DOL. 180,000 jobs were lost in the last month, and 1.2 million jobs were lost in the last five months. Unemployment funding is in trouble in many states. OFLC is trying to integrate labor market information from various sources within DOL. In response to continued layoffs, DOL will increase supervised recruitment.  [...]DOL will carefully analyze actual data regarding layoffs and not react solely based on news reports. However, the clear message is that we should expect more supervised recruitment as layoffs affect new industries.

This message from DOL seems to indicate that an increased scrutiny should be expected in certain PERM filings.  Although it is difficult to predict the kind of cases to which DOL will impose supervised recruitment, it is likely that, for example, financial analyst positions in New York City will be given extra attention.

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March 2009 Visa Bulletin – Not Much Movement

The March 2009 Visa Bulletin has been released.  Unfortunately, even though there is some forward movement in some EB categories, the progress is very small.  Many important categories have not moved forward at all this month.

  • EB-1 remains current across the board.
  • EB-2 China moves forward by 45 days to February 15, 2005.  EB-2 India moves forward by 45 days to February 15, 2004.
  • EB-3 applicants, however, will be disappointed.  There is no movement in most of the categories.  EB-3 India remains unchanged at October 15, 2001.  EB-3 ROW (Rest of World) remains unchanged at May 1, 2005.  EB-3 China moves forward slightly by 22 days to October 22, 2002.  Finally, EB-3 Mexico moves forward significantly by 17 months to March 15, 2003.

March’s Visa Bulletin continues to improve the EB-2 category and make it a very attractive option for many applicants.  Although this month’s EB-2 progress of 45 days is significantly less than the 6-month forward movement observed in last month’s visa bulletin, it seems that USCIS is making efforts to improve the efficiency of the EB-2 category.

In light of these visa numbers, it becomes increasingly important to be able to file under the EB-2 category and avoid the very lengthy delays of the EB-3 category.  Please contact our office and we would be happy to evaluate your case and advise on the possibility of using the EB-2 category.

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Senate Version of Stimulus Bill to Restrict H-1B Visas for TARP Recipients

Today, Tuesday, February 10, the U.S. Senate is expected to vote and approve a version of the Stimulus Bill which President Obama has been pushing very hard over the past weeks.  The version of the Stimulus Bill contains a provision which would automatically and for a period of two years make all employers who are recipients of TARP funds H-1B dependent employers.

The relevant section of the Stimulus Bill is Sec. 1610:

    Sec. 1610. Hiring American workers in companies receiving TARP funding.
    (a) Short Title- This section may be cited as the `Employ American Workers Act’.
    (b) Prohibition-

 (1) IN GENERAL- Notwithstanding any other provision of law, it shall be unlawful for any recipient of funding under title I of the Emergency Economic Stabilization Act of 2008 (Public Law 110-343) or section 13 of the Federal Reserve Act (12 U.S.C. 342 et seq.) to hire any nonimmigrant described in section 101(a)(15)(h)(i)(b) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(h)(i)(b)) unless the recipient is in compliance with the requirements for an H-1B dependent employer (as defined in section 212(n)(3) of such Act (8 U.S.C. 1182(n)(3))), except that the second sentence of section 212(n)(1)(E)(ii) of such Act shall not apply.

 (2) DEFINED TERM- In this subsection, the term `hire’ means to permit a new employee to commence a period of employment.

    (c) Sunset Provision- This section shall be effective during the 2-year period beginning on the date of the enactment of this Act.

What is Going to Happen?

The Senate version of the Stimulus Bill, including the language above, is expected to be approved by the Senate today.  However, the House version of the Stimulus Bill does not have such language and both versions will have to be reconciled so that both the Senate and the House approve the same text.  Only then the Stimulus Bill would become law after it is signed by the President.

This means that the language restricting H-1Bs at TARP recipients may not end up in the final law.  However, given the pressure to pass the legislation quickly, it is very possible that the House would adopt the proposed Senate language and ultimately impose the H-1B restrictions.

What Does the Prohibition Mean?

The text, as currently drafted, would impose some limits on the ability of companies recipients of TARP funds to hire new foreign workers on H-1B visas.  By making such employers “H-1B dependent”, the law would require any TARP recipient willing to sponsor an H-1B for the next two years to, among other things, (1) provide certain “displacement attestations” that no U.S. workers have been or will  be displaced as a result of the H-1B employee; (2) provide recruitment attestations about the nature of the recruitment process; (3) remain liable for displacement of U.S. workers as a reuslt of placement of H-1B employee with another employer.

However, the requirements on an H-1B dependent employer do not apply for “exempt H-1B nonimmigrants” which include (1)  those holding a master’s or higher degree or its equivalent in a specialty related to the intended employment, or (2) who earn wages (including cash bonuses and similar compensation) at an annual rate of at least $60,000.   This exemption is not likely to cover all, but is likely to cover many of the intended foreign national beneficiaries of H-1B visas from TARP recipient companies.

Finally, the definition of “hire” is drafted in a way that includes only new employment.  This should mean that H-1B extensions for H-1B holders already employed at TARP recipient companies should not be subject to the additional requirements.

Who are TARP Recipients?

The list of companies recipients of TARP funds is very long, so we will not publish it at length.  Please find the full and recently updated list here.

Conclusion

While the Stimulus Bill draft may be a source for alarm for some, the reality is that (1) until the law is approved by both the Senate and the House, the text is not final and (2) there are some exceptions which would allow TARP companies to hire H-1B workers either by complying with the H-1B dependent employer requirements or by claiming the applicable exemptions.

Update (14:57 pm):  the Senate approved the Stimulus Bill by 61-47 votes.

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List of H-2B Eligible Countries

The Federal Register has published a rule (73 FR 77729, 12/19/08) pursuant to which nationals of the following countries can apply for H-2B visas:

Argentina;
Australia;
Belize;
Brazil;
Bulgaria;
Canada;
Chile;
Costa Rica;
Dominican Republic;
El Salvador;
Guatemala;
Honduras;
Indonesia;
Israel;
Jamaica;
Japan;
Mexico;
Moldova;
New Zealand;
Peru;
Philippines;
Poland;
Romania;
South Africa;
South Korea;
Turkey;
Ukraine;
United Kingdom.

It should be noted that individuals already holding H-2B visas are not affected by this rule.

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