OUTSIDE THE BOX THINKING, DELIVERING CUTTING EDGE SOLUTIONS!

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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.

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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.

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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:

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In July of 2007, the U.S. Citizenship and Immigration Services (USCIS) received a record 460,000 applications for naturalization. Moreover, for 2007, the USCIS received 1.4 million naturalization applications. This is double the normal annual volume. As a result of the record volume of applications, the USCIS announced in April
of this year that depending on the region that an applicant’s citizenship application was filed, it was taking the USCIS at least five to fourteen months. As a result, over the past few months, the USCIS has increased the number of officers adjudicating naturalization applications. Moreover, USCIS just announced that it will centralize the initial naturalization processing. Hopefully, these changes speed up the process for the thousands of individuals who are waiting to become citizens.

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The U.S. Department of Homeland Security (DHS) announced on June 3, 2008 the Interim Final Rule for the Electronic System for Travel Authorization (ESTA), a new online system that is part of the Visa Waiver Program (VWP) and is required by the Implementing Recommendations of the 9/11 Commission Act of 2007.

“Rather than relying on paper-based procedures, this system will leverage 21st century electronic means to obtain basic information about who is traveling to the U.S. without a visa,” said Homeland Security Secretary Michael Chertoff.

Once ESTA is mandatory, all nationals or citizens of VWP countries who plan to travel to the United States under the VWP will need to receive an electronic travel authorization prior to boarding a U.S.-bound airplane or cruise ship. The requirement will go into effect January 2009.

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The employment based permanent residency or “green card” process is a three step process. The first step in this process is called Labor Certification. As of March 28, 2005 all Labor Certification applications are filed through the online PERM process. The Since April of 2007, immigration attorneys have reported a significant increase in the number of PERM audit notifications issued by the US Department of Labor (DOL).

PERM audits are either randomly issued or are triggered by mechanisms installed in the PERM program by the DOL. In order for an employer to file a successful labor certification application, a U.S. employer must establish that no U.S. workers (either U.S. citizens or permanent residents) were available for the position. The DOL requires U.S. employers to conduct a recruitment campaign prior to filing a PERM based labor certification application. If the DOL deems the U.S. employer’s job requirements to be excessively restrictive to U.S. workers, an audit request is issued. In most instances, an audit will be triggered if an employer’s job requirements do not comply with the Department of Labor’s specific vocational preparation (SVP) guidelines as set forth in the O*NET. For example, if the DOL has set a SVP of “7< 8" for the software engineer position. According to the DOL's SVP guidelines, the maximum vocational preparation for this position is 4 years. The DOL equates a bachelor's degree to 2 years of vocational preparation and a master's degree to 4 years of vocational preparation. Therefore, if an employer's requirements for a software engineer exceed either a bachelors degree in the field and 2 years of experience or a masters degree in the field an 0 years of experience, the requirements would be considered excessive by the DOL.

The majority of the recent PERM audits are a direct result of employer's exceeding the DOL's SVP requirements. Most of these audits require employers to establish "business necessity" for the job requirements exceeding the SVP. In accordance with Matter of Information Industries, 88-INA-92 (BALCA Feb. 9, 1989) and 20 CFR § 656.17(h), "To establish a business necessity, an employer must demonstrate the duties and requirements bear a reasonable relationship to the occupation in the context of the employer's business and are essential to perform the job in a reasonable manner." Therefore, when responding to business necessity related audit requests, the employer must provide the DOL with evidence that proves that the employer's requirements bear a reasonable relationship to the occupation and are essential to perform the job in a reasonable manner. The employer could include evidence of its past hiring practices and describe its operations in detail to justify that the requirements are needed to perform the duties of the position to fulfill the employer's business needs.

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U.S. Citizenship and Immigration Services (USCIS) announced on April 10, 2008 nearly 163,000 H-1B petitions received during the filing period on April 1 to April 7, 2008. More than 31,200 of those petitions were for the advanced degree exemption. On April 14, 2008 USCIS conducted the computer-generated random selection processes on H-1B petitions to select which H-1B petitions for fiscal year 2009 (FY 2009) would continue to full adjudication.

USCIS conducted random selections, first on petitions qualifying for the 20,000 “U.S. master’s or higher degree” (advanced degree) exemption, and second on the remaining advance degree petitions together with the general H-1B pool of petitions, for the 65,000 cap. Petitioners whose properly filed petitions have been selected should receive a receipt notice dated no later than June 2, 2008. USCIS will return unselected petitions with the fee(s) to petitioners or their authorized representatives, unless found to be a duplicate. The total adjudication process is expected to take approximately eight to ten weeks.

USCIS has “wait-listed” some H-1B petitions, they may possibly replace petitions chosen to receive an FY-2009 cap number, but that subsequently are denied, withdrawn, or otherwise found ineligible. USCIS will retain these petitions until a decision is made whether they will replace a previously selected petition. USCIS will send a letter to the wait list petitioners to inform them of their status.

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Now that the H-1B lottery has been held and all of the new H-1B visas for the 2008 fiscal year have been allocated, what options do employers who are looking to hire foreign national professionals have? Here are some creative solutions to this problem:

H-3 Visa

The H-3 Visa is not an alternate visa option for anyone who would be eligible for an H-1B visa. However, it is an alternative option for individuals who would benefit from a training program. This category does not apply to physicians.

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H-1B petitions filed on behalf of employees are generally filed for a specific job that has specific job duties. When there is a material change in the terms of an H-1B beneficiary’s employment, the petitioning employer is legally required to file a new H-1B petition or amend the original petition.

What is a material change?

A material change is a change to the H-1B beneficiary’s job that substantially changes the terms and conditions of the H-1B employee’s job. The following are examples of material changes to a job for H-1B purposes:

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Although the H-1B Visa is not usually thought of as an option for an investor/entrepreneur, it may be utilized by some of these foreign business entrepreneurs. Foreign investment in U.S. businesses creates economic benefits beyond merely a visa benefit for the foreign investor. The Small Business Administration (SBA) estimates that 99 percent of the firms in the United States are small businesses, and small firms have generated 60 to 80 percent of the net new jobs annually over the past decade. It is estimated that these small businesses employ 41 percent of the United States’ high-tech work force. These days, immigrants have an ever increasing role in the creation of these small businesses. For instance, in the 1990’s, Immigrant-operated companies accounted for $19.5 billion in sales and 72,839. Twenty-nine percent of these companies were in the technology sector.

Prohibition on Self-petitioning

For H-1B purposes, the United States Citizenship and Immigrations Service’s (USCIS) regulations define a U.S. employer as a “person, firm, corporation, contractor, or other association, or organization in the United States which:

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