H1B Visa Lawyer Blog

June 24, 2008

E-Verify – What is it?

E-Verify (formerly known as the Basic Pilot/Employment Eligibility Verification Program) is a free Internet based system that electronically verifies the employment eligibility of newly hired employees. The verification program has existed for more than a decade, but is now being promoted by the Bush administration as a Homeland Security and Immigration control measure. The program is operated by the Department of Homeland Security (“DHS”) in partnership with the Social Security Administration (“SSA”). The U.S. Citizenship and Immigration Services (“USCIS”) is the agency in DHS responsible for administering the program. USCIS promotes the program as an essential tool for employers committed to maintaining a legal workforce. The program is easily accessible through a user-friendly government Web site, which allows employers to verify employment eligibility in three (3) to five (5) seconds. The program essentially compares employee information taken from Form I-9 with more than 444 million records in the SSA database, and more than 60 million records in DHS immigration databases.

Essentially, once enrolled, an employer must initiate a query by entering key information from Form I-9 into the E-Verify database within three days of an employee starting work. The key information that must be entered includes: the employee’s name and date of birth, social security number, the citizenship status he or she attests to, and the type of document provided on Form I-9 to establish work authorization status. Additionally, the following would be entered in the initial query, if applicable: an A number or I-94 number, and proof of identity, and its expiration date. Once the information is entered into the query, the employer will submit the query and wait a few seconds for a response. Depending upon the response, the employee will continue to work for the employer, or they will contest a Tentative Non-confirmation (“TNC”) or mismatch with the appropriate federal agency within eight federal business days. If the program issues a final non-confirmation, the employee shall not be further employed.

E-Verify is an entirely voluntary program, as such the government may not mandate its use by the states, according to the tenth amendment of the U.S. Constitution. However, some Federal Government employers and violators of certain immigration laws may be ordered to participate.

June 24, 2008

Department of State introduces “Student Intern” J-1 Visa Category

by Kellie N. Lego

On June 20, 2008, the Department of State (DOS) revised its regulations governing J-1 visas by publishing the final rulein the Federal Register. The rule creates a new “Student Interns” subcategory to the College and University Student J-1 visa category. Foreign students enrolled and pursuing a degree at post-secondary academic institutions outside of the United States may participate in this category for up to 12 months at each degree level. DATES: This Final Rule will be effective July 21, 2008.

This new rule will make it possible for private sector organizations to offer internships to individuals with less training and experience than had previously been required of J-1 “trainee” category participants. To be eligible as an intern in a private sector program, foreign nationals must be currently enrolled in and pursuing studies at an academic institution or a recent graduate (i.e., within 12 months) from such institution. As an intern, the intern program participant will enter the United States to pursue a structured and guided work-based internship program in his or her specific academic field. Prior work experience is nor a requirement for participation in this program.

Sponsors of J-1 interns will be required to ensure that host organizations are legitimate entities, are appropriately registered or licensed to conduct their business, and possess and maintain the ability and resources to provide structured and guided work-based experience according to individualized Training and Internship Placement Plans. The Final Rule permits a student intern to engage in full-time employment during the internship program as outlined on the T/IPP, with or without wages or other compensation. Employment is not required for participation in the program. A student intern may be employed, however, only with the approval of the responsible officer and the student’s home institution’s dean or academic advisor.

June 20, 2008

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

by Kellie N. Lego

The CSPA protects Derivative children of Employment-Based preference categories

As mentioned in my previous article, new guidelines issued by the USCIS make the CSPA retroactive to petitions filed prior to August 6, 2002. In addition to applying to children of U.S. Citizens and children of permanent residents, the CSPA also applies to children of beneficiaries of employment-based visas. As a derivative, the child of a beneficiary of an I-140 petition (Immigrant Petition for Alien Worker) is eligible for an immigrant visa number at the same time and under the same preference category as his/her parent. Prior to the CSPA, if a child turned twenty-one (21) prior to being issued an immigrant visa or obtaining approval of an adjustment of status application, the child would “age-out” and would lose eligibility for a green card based on his/her parent’s application.

Again, we must calculate the “CSPA age” of the child in order to determine if they qualify for benefits under the CSPA. First, you must determine the age of the child when the petition was filed, and the approximate date the child will be when a visa becomes available (when your priority date becomes current).

June 19, 2008

A Little Guidance on the Child Status Protection Act (“CSPA”) –Part 2 of 3

by Kellie N. Lego

The CSPA protects family-based 2(A) preference children of Permanent Residents

As mentioned in my previous article, new guidelines issued by the USCIS make the CSPA retroactive to petitions filed prior to August 6, 2002. The CSPA applies to children of Lawful Permanent Residents (“LPR”) if Form I-130 (Petition for Alien Relative) is filed on their behalf. To qualify under the CSPA, the child of the LPR must be “under age 21” as defined by the CSPA (and unmarried) at the moment that s/he obtains immigrant status. Specifically, if the Immigrant petition is filed by an LPR and the immigrant petition is approved and the priority date becomes current before the applicant’s “CSPA age” reaches 21, the child will not “age-out.” In order for CSPA coverage to continue, the child must apply for permanent residence within one-year of the date the priority date became current.

The calculation of the CSPA age involves two formulas. First, you must determine the age of the child when the petition was filed, and the approximate date the child will be when a visa becomes available (when your priority date becomes current).

June 18, 2008

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

by Kellie N. Lego

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: