Labor Immigration Law

United States Labor Immigration Law News and Analysis

Archive for March, 2010

Brief Trips to the U.S. and Foreign Residency for New 6-year H-1B Term

As many of our clients and readers know, the H-1B program allows stay in the U.S. on H or L status of up to six years.   Time spent abroad during this period may be “recaptured” and added towards the six years of H-1B time.

However, many foreign nationals who are not eligible to extend their H-1B term past the 6th year based on pending PERM labor certification or approved I-140 immigrant petition are limited from being employed in the U.S. pursuant to H-1B status unless they spent at least one continuous year abroad before they are counted under the H-1B cap again and given another 6-year H-1B term.

The relevant rule is 8 CFR §214.2(h)(13)(i)(B) which states:

When an alien in an H classification has spent the maximum allowable period of stay in the United States, a new petition under sections 101(a)(15) (H) or (L) of the Act may not be approved unless that alien has resided and been physically present outside the United States, except for brief trips for business or pleasure, for the time limit imposed on the particular H classification. Brief trips to the United States for business or pleasure during the required time abroad are not interruptive, but do not count towards fulfillment of the required time abroad. The petitioner shall provide information about the alien’s employment, place of residence, and the dates and purposes of any trips to the United States during the period that the alien was required to spend time abroad.

Recently, the USCIS has confirmed this but has reiterated the point that any stay in the U.S. which is not a brief business or pleasure trip will not only not count towards meeting the one-year foreign residency requirement, but would also reset the one-year clock.

The question then becomes what is a brief business or pleasure trip to the U.S.  Unfortunately, no definition has been provided by USCIS, but generally a common-sense approach may be helpful.  If the trip to the U.S. contemplates employment, longer stay or is generally one which would require a visa other than business or tourist (B1/B2) visa, then it may be considered “not brief trip” and would reset the clock.   Of course, each trip would vary in its duration and circumstances, so we are happy to help our clients and readers when they are unsure whether their U.S. trip may reset the one-year foreign residency clock for new 6-year H-1B term purposes.

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AILA Letter to USCIS on Employer-Employee Relationship Memo

We have written extensively over the past two months on the January 8, 2010 Neufeld Memorandum (the “Neufeld Memo”) changing the H-1B adjudication standards for H-1B employers engaged in 3rd party placement or employee-owners.  We have also written about AILA’s efforts to rescind the Neufeld Memo.

In a letter dated March 19, 2010 addressed to the USCIS Director, AILA puts forward a renewed call for rescission of the Neufeld Memorandum by explaining the unintended and burdensome consequences of the Neufeld Memo.  The AILA letter discusses the economic impact of the Neufeld Memo on a number of H-1B petitioners.  Also, the letter discusses the undesired and unintended (according to AILA) impact of the Neufeld Memo on a number of industries:

  • physicians – since many states prohibit the physician to work directly for a hospital, many physicians are unable to obtain H-1B under the Neufeld Memo employer-employee relationship standard because they cannot, by law, be sponsored by the employer where they will actually work.
  • government contractors – many government contractors operate on a purely third-party worksite placement system, and for many of these contractors, the Neufeld Memo precludes hiring H-1B workers.
  • H-1B entrepreneurs/job creators – the Neufeld Memo would also prevent H-1B visas to be issued to foreign entrepreneurs (and job creators) who have some ownership interest in their U.S. company.
  • IT consulting companies – meeting the Neufeld Memo obligations also impacts IT consulting companies, which have very useful in helping larger companies set-up projects quickly and with the right staffing.

The AILA letter concludes that the Neufeld Memo should be rescinded because of its negative impact on a number of industries and the fact that the de facto rulemaking is done in violation of the Administrative Procedures Act.

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Senators Schumer and Graham Unveil Immigration Reform Plan

In an opinion piece, to be published tomorrow, Friday, March 19, 2010, at the Washington Post, Senators Charles Schumer (D-NY) and Lindsay Graham (R-SC) have unveiled their proposal for comprehensive immigration reform.   The plan, as outlined in the Washington Post piece, sets several four broad principles for immigration reform.

Biometric Social Security Cards to Prevent Illegal Employment

The plan would require all U.S. citizens and legal immigrants who want jobs to obtain a high-tech, fraud-proof Social Security card.  Each card’s unique biometric identifier would be stored only on the card; no government database would house everyone’s information. The cards would not contain any private information, medical information or tracking devices. The card would be a high-tech version of the Social Security card that citizens already have.

Prospective employers would be responsible for swiping the cards through a machine to confirm a person’s identity and immigration status. Employers who refused to swipe the card or who otherwise knowingly hired unauthorized workers would face stiff fines and, for repeat offenses, prison sentences.

Strong Border Security and Interior Enforcement

The plan aims to bolster efforts to secure the borders by increasing the Border Patrol’s staffing and funding for infrastructure and technology.  Additionally, other steps include expanding domestic enforcement to better apprehend and deport those who commit crimes and completing an entry-exit system that tracks people who enter the United States on legal visas and reports those who overstay their visas to law enforcement databases.

Creating a Process for Admitting Temporary Workers

The plan aims to attract the world’s “best and brightest.”   The legislation would award green cards to immigrants who receive PhD or master’s degree in science, technology, engineering or math (STEM) from a U.S. university.

Also, the plan calls for a system for admitting lower-skilled workers.  The plan would facilitate the circular migration” of lower-skilled workers by allowing employers to hire immigrants if they can show they were unsuccessful in recruiting an American to fill an open position; allowing more lower-skilled immigrants to come here when our economy is creating jobs and fewer in a recession; and permitting workers who have succeeded in the workplace, and contributed to their communities over many years, the chance to earn a green card.

Tough But Fair Path to Legalization for Unlawful Aliens

A tough but fair process is intended to allow unlawful aliens to find a way forward.  Such aliens would be required to admit they broke the law and to pay their debt to society by performing community service and paying fines and back taxes.  They would also be required to pass background checks and be proficient in English before going to the back of the line of prospective immigrants to earn the opportunity to work toward lawful permanent residence.

Conclusion

The Schumer/Graham plan has drawn an immediate vow of support by President Obama who has urged Congress “to act at the earliest possible opportunity.”    Mr. Obama’s pledge to support the plan should suggest that some sort of immigration reform may be forthcoming; however, the Senators have not offered a concrete plan and have not suggested a timetable.    Additionally, the White House has indicated that their top priorities (after health care, that is) are financial regulatory reform and campaign finance legislation.

Despite mixed messages from the White House, the Schumer/Graham proposal should help comprehensive immigration reform proponents in moving towards producing a bill and enacting it into law.  We will continue monitoring any developments and reporting them.

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Analysis of Proposed Changes to Form I-129 (H-1B, L-1, TN)

USCIS published a notice in the Federal Register with proposed changes to Form I-129 which is used for H-1B, L-1, TN, among other visa type filings.   Please see the DRAFT proposed Form I-129 (and draft instructions).  The proposed changes are significant and are likely to impact most, if not all, employers who file Form I-129.

More Amendments Will Be Required

The proposed draft contemplates that an H-1B amendment filing will be required for ANY material change in employment.  The instructions provide as an example of material change in employment a change on primary job duties or change in the geographic location of the job.    Currently, H-1B petitions do not always have to be amended when there is a change in the geographic location of the job.   Under current guidance, a valid Labor Condition Application (LCA) is required for such geographic location job change.

Under the proposed Form I-129, an H-1B amendment, in addition to LCA filing, will be required for any job change with respect to geographic location.  While this is unlikely to affect many employers who employ their H-1B workers onsite; the proposed change will be very burdensome to consulting companies and companies with roving employees.

Furthermore, the requirement of filing H-1B amendments for geographic location job changes will create another level of uncertainty associated with the H-1B amendment process.  The cost (filing fees and preparation expenses) of having to prepare such amendments is also likely to be significant and impact consulting and roving-employee companies.

Export License Acknowledgement

The draft revised Form I-129 requires a deemed export license acknowledgment.   Certain H-1B, L-1 and O-1A workers must have a “Deemed Export License” issued by the Department of Commerce to be eligible for employment pursuant to H-1B, L-1 or O-1A status.   Accordingly, the employer must submit evidence that a review of the deemed export license requirements has been completed (under 15 C.F.R. 734.2).

If a deemed export license is required, a copy of the Department of Commerce approved license must be supplied.  Alternatively, if a deemed export license is not required, the employer will have to indicate whether the technology with which the foreign worker will be engaged is subject to Export Administration Regulations (EAR) and identify the Export Control Classification Number (ECCN) of the technology in which the beneficiary will have access to.

Evidence of Valid Status Required

The draft instructions also indicate that evidence of valid status will  be required as initial evidence with any Form I-129 petition.   USCIS will require, for all change or extension of status petitions, copies of the last two paystubs and Form W-2 in addition to Form I-94 and Form I-797 approval notice to support that the beneficiary has maintained a valid status.

Third-party Worksite Attestations

In cases where the worker will be placed at a third-party worksite, the revised Form I-129 requires certain attestations – name of the company where the worker will be placed, the work address and a contact person.  Although changes to the language may be necessary due to apparent misuse of terms, the petitioning employer will also have to attest that the worker will receive at least the prevailing wage or the offered wage (same under current H-1B regulations).

H-1B Worker Will Have to Sign Data Collection Supplement

Under the revised form, the H-1B worker will be required to sign the Data Collection Supplement.  The purpose of this is to attest that the worker has accepted the terms of the job offer, including offsite placement and the possibility of relocation.  Currently, the employee does not have to sign or otherwise acknowledge any portion of the H-1B filing paperwork.

Duplicate Forms Required

The proposed instructions also require that all of the forms and supporting evidence be submitted in duplicate.  Currently, duplicates are necessary for petitions requesting consular processing.   However, since each H-1B worker is, at some point of their H-1B period, likely to apply for a visa at a U.S. consulate abroad, this requirement is certainly helpful to eliminate visa processing delays associated with lack of information in the consular service database due to lack of duplicate copy.

It is our office’s practice to almost always submit duplicate copies of the petitions and all supporting evidence, so this change should not affect our practice.

Conclusion

The proposed changes to Form I-129 are fairly significant and create a number of additional requirements and burdens on at least some, if not all, employers using Form I-129 to petition for foreign workers.  Our office will remain involved in this comment period and we will provide updates on this proposed Form I-129 draft and any developments related to it.  Please consider subscribing to our free weekly newsletter to receive email updates on this and related immigration law developments.

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Various Updates from the Texas Service Center

The Texas Service Center (TSC), in a meeting with AILA, has provided some helpful updates regarding processing of petitions filed with TSC.

Processing Times

TSC has confirmed that the pending application reports posted on the USCIS status check website are generally correct.  I-485s filed prior to March 26, 2009 that are still pending should be in for processing and for those I-485s, a streamline request is appropriate.  Similarly, TSC has completed review of derivative I-485 that have become separated from the primary I-485, so a streamline request may be appropriate in such cases as well.

AC21 Porting Notifications

TSC is expecting guidance from USCIS headquarters regarding cases in which the I-485 has been preadjudicated and waiting visa number but where a request for recent job verification may be necessary.  Currently, there are a high number of preadjudicated I-485 waiting for a visa number; however, many of these I-485 applicants have changed jobs pursuant to the AC21 portability provisions.

It is currently unclear whether TSC will issue an RFE requesting a more recent employment verification letter for these preadjudicated cases.  While TSC has indicated a preference to receive AC21 notifications generally, such notifications are not required.  Pending USCIS headquarters guidance, we still recommend that AC21 change of employer notifications be filed to “preemt” a possible RFE regarding employment verification even for preadjudicated I-485 cases.

Transfers from TSC to National Benefits Center (NBC)

TSC has confirmed that generally, the reason for transferring unadjudicated cases to NBC is when a I-485 requries an interview.  TSC transfers the “A file” to NBC which will then send it to a local office for interview.   Generally, TSC does not transfer cases to other centers for workload reasons.

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April 2010 Visa Bulletin – Gradual Forward Movement, EB-2 India Unchanged

The April 2010 Visa Bulletin was just released by the State Department.  The seventh visa bulletin for the fiscal year 2010 brings gradual forward movement.  There is some gradual forward movement across most employment-based categories except EB-2 India and EB-3 Mexico which did not change this month.   A notable movement is in EB-3 India category where the priority date moved forward by over two months.

Here is a summary of the April 2010 Visa Bulletin:

  • EB-1 remains current across the board.
  • EB-2 ROW remains current, EB-2 China moves forward by six (6) weeks to August 22, 2005, and EB-2 India remains unchanged at February 1, 2005.
  • EB-3 ROW moves forward by almost fix (6) weeks to February 1, 2003, EB-3 China moves forward also by six (6) weeks to February 1, 2003, while EB-3 India moves forward by over two (2) months to September 8, 2001.
  • Other worker visa numbers remains unchanged at June 1, 2001.
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Current State of Immigration Reform: Barely Moving

Today’s Wall Street Journal has a recap of recent high-level meetings and plans regarding an immigration reform, a topic which President Obama said he will tackle during his first year in office.

Washington has been busy for the past few months with health care, wars and the economic crisis.  Not surprisingly, immigration reform has not been high on the President’s agenda.

A pair of senators trying to put together a comprehensive immigration bill showed their outline to President Barack Obama Thursday and asked his help in recruiting additional Senate backers. But with a full plate already and elections looming, it was unclear how involved the White House plans to get on the issue.

According to the Wall Street Journal, while President Obama remains “fully committed” to immigration reform, his administration has taken a more hands-off approach and has left Congress to propose the outline of the reform plans and to “sell” it on Capitol Hill.

The Schumer/Graham plan, proposed by Senators Charles Schumer (D-NY) and Linsay Graham (R-SC), was presented to the President.  However, Sen. Graham is looking for another Republican sponsor, but has been unable to find one.  Senator McCain (R-AZ) who supported a similar plan when President Bush proposed it, has not been willing to sign on.

The Schumer/Graham Plan Outline

While the Senators have not released their plan formally,  it may include many of the building blocks from the last failed effort, including a path to citizenship for those here illegally, now estimated at 10.8 million people; a guest worker program; and, in a new twist, a mandatory biometric identification card for workers to stem the flow of illegal workers into the country in future years.

Immigration Reform – Slow Movement

In this political climate, it seems that immigration reform, if it happens, will move forward very slowly.   The President has seemingly delegated to Congress finding support for the immigration reform, and the current political gridlock in Congress will not help.   We will provide to monitor the current state of the immigration reform from our offices in Washington, DC, and provide further updates.   To stay up-to-date on this and other immigration topics, please consider subscribing to our free weekly immigration newsletter.

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USCIS Will No Longer Accept H-1Bs Without Certified LCAs

In November of last year and in February of this year, we wrote about a temporary change USCIS made with respect to H-1B petitions filed without certified Labor Condition Applications (LCAs).   The reason for this temporary change in policy was to accommodate LCAs which have been delayed past the 7-day LCA processing window.   Pursuant to the temporary policy, H-1Bs could be filed with evidence of filed LCA which shows that the LCA has been pending for more than 7 business days.

USCIS has refused to expand the temporary policy and as a result, effective March 10, 2010, USCIS will no longer accept H-1B petitions filed without a certified LCA.    All H-1Bs filed on or after March 10, 2010, must be accompanied by a certified LCA or will be rejected.

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Greece to be Designated a Visa Waiver Program Country

The U.S. Department of Homeland Security (DHS) Secreatary Napolitano announced that DHS will designate Greece as a Visa Waiver Program (VWP) yesterday, March 9, 2010. As a result, Greek nationals will be able to travel visa-free to the United States effective April 10, 2010.

The VWP will enable citizens of Greece to travel to the United States, beginning on April 10, 2010, for 90 days or less for tourism or business purposes without a visa, provided they have an e-passport and an approved authorization via the Electronic System for Travel Authorization (ESTA).

Currently, 35 countries participate in the Visa Waiver Program. The U.S. Congress authorized DHS in August 2007 to reform the VWP and strengthen the security arrangements required of existing participant countries, as well as to expand the opportunity for aspiring countries to join the program. This legislation also mandates certain improvements to the VWP for all participating countries, such as the requirement that travelers first obtain an online authorization to travel under the recently established ESTA, a web-based system that determines the preliminary eligibility of visitors to travel under the VWP prior to boarding a carrier to the United States.

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VSC Officers and “Credit” for RFES

During a recent AILA conference, the Vermont Service Center (VSC) Director Dan Renaud told the audience that the performance review structure for adjudicating officers has recently changed. Pursuant to the new performance review structure, officers get credit for issuance of Requests for Evidence (RFES), in addition to issuing approvals and denials, under the previous performance review structure.

Anticipating reaction from practitioners and affected individuals, AILA has attempted to clarify this comment with VSC. VSC has clarified this statement. In the VSC’s view, the “credit” for RFES is meant to encourage qualitative RFES. Under the previous policy, VSC was concerned that since examiners were not given “credit” for RFES, examiners were not spending the appropriate amount of time on them, resulting in RFES that were not appropriate. According to VSC, the purpose of giving credit is to improve the quality of RFES by making it something adjudicators have to stop and think about, rather than something to quickly send off. VSC has indicated that the amount of RFES issued has not changed as a result of the policy change.

Inevitably, this comment will trigger a fair amount of speculation and, possibly, accusations that RFES are being issued unfairly. We cannot confirm that RFES are unfair or issued disproportionately; our recent experience indicates that VSCS RFES are fair and well-prepared. We will continue to monitor RFES coming out of VSC and provide updates to our clients and readers.

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