Labor Immigration Law

There has been quite a bit of legal activity in connection with the Bush administration executive order requiring federal contractors to use E-Verify to check the employment eligibility of all  newly hired employees as well as current employees directly working on a contract.

Rule Goes Into Effect on September 8, 2009

On August 26, 2009, a U.S. District Court struck down the challenges to the E-Verify rule.  As a result, the new rule goes into effect on September 8, 2009.

This means that most federal contracts awarded, as well as solicitations issued after September 8, 2009, must include a clause mandating use of E-Verify for all employees hired during the contract period and all existing employees assigned to perform work under the contract.  The United States Citizenship and Immigration Services (USCIS) has published information and frequently asked questions on its website regarding application of the rule.

E-Verify Compliance

The Capitol Immigration Law Group is an E-Verify designated agent which allows us to handle E-Verify compliance on behalf of our clients.  If you or your company are interested in E-Verify compliance assistance please feel free to contact us.

USCIS released updated information on the numbers of cap-subject H-1Bs filed since April 1.  As of Friday, August 28, USCIS has received approximately 45,100 H-1B petitions counting toward the 65,000 cap.   USCIS will continue to accept petitions subject to the general cap.   Additionally, USCIS has received approximately 20,000 petitions for aliens with advanced degrees; however, it will continue to accept advanced degree petitions since experience has shown that not all petitions received are approvable.

The numbers, as of August 28th, indicate that there was a very slight increase (of about 100 H-1B new petitions) in the number of H-1B petitions, compared to August 14, 2009.    The rate of new H-1B filings has slowed down substantially over the past several weeks and if the current rate holds steady,  we expect the H-1B cap to remain open for some months ahead.

In a memorandum dated August 6, 2009, Donald Neufeld, the Acting Associate Director for USCIS Domestic Operations Unit provides new guidance and amends USCIS policy with respect to review of Form I-140 successor-in-interest (“SI”) amendments.  The goal of the new guidance is to update (the dated) USCIS policy in light of changing business realities with respect to corporate mergers and acquisitions.

Prior I-140 SI Standard

The prior standard by which I-140 SI filings were reviewed was that the I-140’s validity will be reaffirmed only if the successor company had assumed all of the rights, duties, obligations and assets of the original employer and continue to operate the same type of business as the original employer.  Additionally, the new employer had to establish its ability to pay the profferred wage specified on the labor certification.

The old standard, initially set forth in a 1993 Paleo memorandum, is quite old and does not reflect the realities of the corporate M&A and business practices where it is now rare that a successor company would assume all of the predecessor company’s rights and obligations.

New Standard for I-140 SI Review

According to the Neufeld Memo, for all SI I-140 petitions filed after August 6, 2009, the adjudication officers should focus  on the following factors:

1.  The Job Opportunity Offered By The Successor Must Be The Same As The Job Opportunity In The Original Labor Certification.

The job offered by the successor must remain unchanged with respect to rate-of-pay (upward adjustments due to passage of time are acceptable), job description and job requirements specified on the labor certification.   There cannot be any changes to the job which would affect the labor market test conducted initially by the predecessor company.  The job opportunity must continue to exist at all time and there must not be a substantial lapse of operations with respect to the successor company after the business transfer.

2. The Successor Company Bears Burden To Establish Continuing Eligibility In All Respects, Including Ability-to-Pay.

The successor company must demonstrate that all of the criteria for the visa classification initially proposed have been met.  This includes, but is not limited to, the predecessor’s ability to pay the profferred wage from the date of the filing of the labor certification (the “priority date”) until the date of the business transfer. Similarly, the successor must demonstrate that it is a valid “employer” under the USCIS regulations and that it has ability to pay the profferred wage.   The I-140 SI petition must also include evidence to establish that the sponsored employee possesses the minimum education/experience specified on the labor certification.

3. The Successor Must Fully Document The Transfer And Assumption Of Ownership.

The Neufeld Memo specifically addresses that the transfer of ownership must occur after the approval of the underlying labor certification.  Additionally, the successor must present evidence to document the business transaction such as:

• contract of sale or similar document of the acquisition;
• mortgage closing statements;
• SEC Form 10-K;
• audited financial statements;
• documentation of the transfer of real property and business licenses;
• copies of financial instruments used to executed the transfer; and
• media or other reports of the business transfer.

When a specific unit of the predecessor unit is being transferred, the transferred unit must be clearly defined unit within the predecessor organization and that unit must be transferred in its entirety to the successor except certain unrelated liabilities.  As discussed above, the job offered to the alien beneficiary must continue to be in the transferred unit.

AC21 and Successor-in Interest

The Neufeld Memo specifically addresses the situations in which the alien beneficiary is entitled to port his or her process to a new employer under Section 106(c) of AC21.  In such cases, a SI entity need not file a new petition on alien’s behalf assuming AC21 conditions have been met (such as “same or similar job”).

SI Amendments Not Needed For Self-Sponsored I-140 Petitions

I-140 petitions filed in connection with visa categories which do not require labor certifications (EB-1 EA, EB-2 NIW) remain valid even if a business transfer has occurred.  There is no need of I-140 SI amendments in such cases.

New Labor Certification May Be Required In Certain Cases

If the successor entity cannot support the requirements outlined above a new labor certification setting forth the changed job conditions must be filed.   Specifically, USCIS required a new labor certification be filed when (1) the successor entity has not met the three factors outlined in the Neufeld Memo, (2) the labor certification is not valid for the new geographic area of the alien beneficiary’s proposed employment, or (3) there has been another material change in the job opportunity offered.

By nature, consulting companies often send their employees to work at a third-party’s worksite and perform services onsite.  When filing H-1B work visa petitions for their workers, many consulting or third-party worksite companies have faced an increasing number of requests for evidence (“RFES”) requesting information about the duties of the employee, itinerary of work and contracts with the third-party worksite host.

The Vermont Service Center (“VSC”) has clarified that in responding to RFES requesting such information related to third-party worksites, a letter from the third-party worksite host is sufficient to establish the work assignment.  VSC has confirmed that a letter can be submitted instead of a contract and, in fact, VSC has eliminated the request for contracts from the standard RFE language.

USCIS released updated information on the numbers of cap-subject H-1Bs filed since April 1.  As of Friday, August 14, USCIS has received approximately 45,000 H-1B petitions counting toward the 65,000 cap.   USCIS will continue to accept petitions subject to the general cap.   Additionally, USCIS has received approximately 20,000 petitions for aliens with advanced degrees; however, it will continue to accept advanced degree petitions since experience has shown that not all petitions received are approvable.

Rate of New Applications
The numbers, as of August 14th, indicate that there was a very slight increase (of about 100 H-1B new petitions) in the number of H-1B petitions, compared to July 24, 2009.    Furthermore, according to a Vermont Service Center (“VSC”) recent communication dated August 20, 2009, VSC is receiving between 1,200 and 1,600 new cap cases per month.     The rate of new H-1B filings has slowed down substantially over the past several weeks and if the current rate holds steady,  we expect the H-1B cap to remain open for some months ahead.

Our office has been handling an increasing number of expedited processing Form I-131 reentry permits for legal permanent residents (“LPR”) who are or are planning to spend extended periods of time abroad and who wish to maintain their legal permanent resident status.

Reentry Permits Are Generally Valid for Two Years

One of the questions we receive very often in connection with the reentry permit applications is what would be the duration of the reentry permit, once issued.   For most of the applicants, the answer is that the reentry permit is valid for two (2) years starting from the date on which the reentry permit is issued.

But One-year Reentry Permits Are Given for Extended Absenses

However, pursuant to 8 CFR 223.2(c)(2), an LPR who, since becoming an LPR or during the past five (5) years, whichever is less, has been outside of the U.S. for more than four (4) years in the aggregate will be issued a reentry permit with validity of only one (1) year from the date of issuance.

There are exceptions.  If the LPR is employed by public international organization of which the U.S. is a member or is a professional athlete, then the reentry permit can be issued for two (2) years despite extended periods of absence from the U.S.

Conclusion

The restriction described above on the validity of reentry permits makes it important for some applicants to be able to calculate the aggregate amount of time spent outside of the U.S. for the past five years (or since becoming LPR).  Such applicants should also make plans to renew their reentry permit within one year of issuance.

Please visit our Reentry Permit and Expedited Processing page for more information.