| About Us | ||||||||||||
Immigration Resources
| ||||||||||||
| Practice Areas | ||||||||||||
| Work For Us | ||||||||||||
| Contact Us | ||||||||||||
| Site Map | ||||||||||||
| Home | ||||||||||||
|
|
|
January 4, 2005 immigration news update
Click for a Printable Version of this Article
1. Long-Awaited PERM Regulations Published 1. Long-Awaited PERM Regulations Published After a two-year wait, on December 27, 2004 the Department of Labor (DOL) published regulations for its Program Electronic Review Management (PERM) program. PERM is an electronic process for filing and processing labor certification applications for permanent employment-based immigration. The PERM regulations, first proposed in May 2002, are intended to help streamline the permanent labor certification system and thus combat the current labor certification backlog. The regulations take effect March 28, 2005. They will have dramatic effects on the way labor certifications are handled. One of the most important changes to the process will be that the DOL expects that files submitted electronically through PERM will be decided within 45-60 days. Currently the DOL can take up to three years to process labor certification applications. To file a form electronically employers can go to http://www.plc.doleta.gov. This site will become active when the rule takes effect. Employers can also file labor certification applications by mailing them directly to the appropriate centralized processing center. A listing of central processing centers is available at: http://www.workforcesecurity.doleta.gov/foreign. Here some key aspects of the new PERM rule: Prevailing wage: *The employer must pay the sponsored employee at least 100% (rather than just 95%) of the prevailing wage for the position as determined by the DOL. Required Recruitment: For a professional occupation, the employer must: *Advertise in two Sunday newspaper editions. *Undertake at least three additional means of recruitment such as job fairs, company website, internet sites, on-campus recruiting, trade or professional organizations or other acceptable alternate forms of advertising. If the position requires experience and an advanced degree, it is recommended that the employer substitute an advertisement in a national journal or publication for one Sunday newspaper advertisement. *Place a 30-day job order with the DOL for the offered position. Conduct of Recruitment: *Disqualifying candidates - The employer is not allowed to disqualify a US worker who can reasonably be trained to perform the duties of the position. *Layoffs - If the employer has had any layoffs in the sponsored employee’s occupation or a related occupation within six months before filing, the employer must document that it has contacted and considered all laid off employees. *Audit - Recruitment materials and results must be kept by the employer for five years and are subject to government audit. Employer with 10 or fewer employees: *The employer must document any family relationship between its employees and the sponsored employee where the sponsored employee is one of 10 or fewer employees. Payment of Legal Fees: *If the employee is “required” to pay legal fees, the DOL may question whether or not the position is open to US workers. Withdrawing and Refiling Labor Certification Applications: * Employers may withdraw and refile pending cases under the new PERM regulations, while preserving the original filing date. In doing this, a foreign national could have their application approved more quickly than it otherwise would be. However, withdrawn and refiled applications have to present an "identical job opportunity." There is no guidance as to what makes an application identical. Applications found not to be identical will be withdrawn and refiled under a new filing date. The old filing date cannot be recovered. Cases not withdrawn and refiled will be processed under current labor certification rules. To read the DOL PERM regulations please visit: For an overview of the current labor certification process see the following article on the True, Walsh & Miller web site: http://www.millermayer.com/resources/immigrant/immigrant2cont.htm If your company wishes to start labor certification applications for employees under the current regulations, contact True, Walsh & Miller now to have the applications prepared and filed with the DOL before March 28. 2. President Approves Changes to the H-1B and L-1 Visa Categories On December 8, 2004 President Bush signed the Consolidated Appropriations Act of 2005 into law. This act funds the federal government for another year. Among the law's many provisions are major changes to the H-1B temporary worker and L-1 intracompany transferee visa categories. Under the act, up to 20,000 foreign nationals with masters or higher-level degrees from U.S. universities will be exempt from the H-1B cap each year. These H-1B visas will be available to the first 20,000 foreign nationals who apply on or after March 8. Demand for these additional 20,000 H-1B visas will be extremely high. As a result, companies wishing to hire eligible foreign nationals should file H-1B petitions on or about the first day the numbers become available. The new law is especially important to F-1 and J-1 nonimmigrants working for employers based on authorized practical training that will expire in the spring or summer of 2005. The new law increases the financial burden on employers who hire H-1B nonimmigrants. Employers with more than 25 employees must pay a $1,500 "worker retraining fee." Employers with 25 or fewer employees only have to pay $750. This fee went into effect upon enactment of the law. The law also introduces a new $500 fraud prevention and detection fee. This fee will take effect March 8. All of these fees apply to employers filing new H-1B applications, a change of status application, or a change of employer application. Employers will have to pay 100% of the prevailing wage for the particular job, rather than 95%, as permitted in the past. The law requires the Department of Labor (DOL) to provide a four-tiered evaluation system to match training and experience with the appropriate wage. Fraud is a major concern addressed in both the H-1B and the L-1 visa category changes. The H-1B visa reform includes a section that permanently reinstates the DOL's ability to investigate H-1B employers if the agency has "reasonable cause to believe" that the employer is not complying with any H-1B requirements. Changes to the L-1 visa category reflect concerns by legislators and the media that some overseas companies have allegedly used the L-1 visa category to outsource their employees to large U.S. companies and thus displace U.S workers. In an attempt to erase any loopholes that might lead to visa abuses, the new law clarifies that an L-1 specialized knowledge worker cannot be effectively an employee of a third party company. The petitioning company must primarily control and supervise its L-1 employees. The Department of Homeland Security (DHS) will also be keeping statistics on L-1 visa petitions and usage. We have revised our H-1B fact sheet to reflect the new changes. It is on our web site at: http://www.millermayer.com/resources/nonimmigrant/h1fact.html Contact any of our immigration attorneys to analyze how the new H-1B and L-1 changes may affect you or your company. 3. Backlog in Employment-Based Green Cards The Department of State (DOS) recently announced that the processing dates for the employment-based third (EB-3) immigrant visa category have rolled back to January 2002. This retrogression affects EB-3 immigrants from China, India, Mexico and the Philippines, countries providing the majority of immigrant workers in this category. The EB-3 category is designed for skilled workers, professionals and other workers. Before the retrogression the DOS processed the EB-3 visas in a nearly current fashion. The backlog may affect foreign nurses more directly than any other group. The United States is currently experiencing a shortage of health care workers. According to an Associated Press article, the United States could face a shortage of nearly 275,000 nurses by the year 2010, particularly as our nation deals with an aging population. Each of the countries affected by the retrogression contributes a significant number of immigrant nurses to the United States every year. The loss of current EB-3 visa numbers may also have a ripple effect on other visa categories. Employers may look to other green card categories for relief. Doing so would draw greater scrutiny and possible backlogs in those categories. Also, each category carries a different set of requirements and financial burdens for employers to negotiate. For example, if an employer attempts to elevate an employee qualified for the EB-3 category to the EB-2 visa category they would have to: ensure that the employee is indeed qualified through letters of attestation and U.S. degree equivalencies; pay a higher prevailing wage commensurate with the employee's experience; and carefully document their own actions in case of an audit. It is important to talk to a good immigration attorney about viable options to the EB-3 visa category. To view the Department of State's Visa bulletin regarding the EB-3 retrogression, please visit: For more information about visas for foreign nurses, please visit: 4. Pilot Employee Verification Program Extended Nationwide All newly hired employees must fill out an Employment Eligibility Verification Form (Form I-9) with documentation proving their eligibility to work in the United States. For several years the Department of Homeland Security (DHS) has had a pilot program that allows certain employers to receive an immediate confirmation of an employee's work authorization after they submit Form I-9 electronically. On December 20 the DHS announced that it will extend its pilot program from its original five states to all 50 states. The pilot program works through the Social Security Agency (SSA) and is intended to combat the employment of illegal immigrants. If an employee does not have proper authorization, the SSA electronically forwards queries to the U.S. Citizenship and Immigration Services (USCIS) for confirmation. The pilot program is generally open to employers who volunteer to participate in the program. Some branches of the federal government must participate in the program. If an employer does not elect to participate in the pilot program they must keep copies of employee I-9 forms on file in the event of an audit by the Immigration and Customs Enforcement Agency (ICE) or the U.S. Department of Labor (DOL). A major advantage of the pilot program is that it may mean the end of extensive paper files of I-9 forms. Only recently has it become possible for businesses to electronically complete and store I-9 forms. See item 5 of our December 2004 newsletter at http://www/millermayer.com/resources/news12_2_04.html Despite the pilot program's potential, it is still in its formative stages and there are major concerns. For example, the DHS noted in its evaluation of the program that the system frequently rejected foreign-born work-authorized employees. According to the report this led to "unintentional discrimination." The USCIS report evaluating the Basic Pilot Program is available at: To register for the Basic Pilot Program, employers can visit: https://www.vis-dhs.com/employerregistration. 5. Limited Telephone Service Returns to Service Centers After an 18-month hiatus, U.S. Citizenship and Immigration Services (USCIS) Service Centers have resumed receiving calls on a limited basis. USCIS Service Centers, located in Vermont, Nebraska, Texas and California, process applications for temporary visa applications, green cards, and other immigration benefits. During the last 18 months, only congressional offices could directly contact these service centers. All other telephone inquiries were received by the National Customer Service Center (NCSC), which is not staffed by immigration agency employees. This arrangement led to complaints from both immigration professionals and immigration beneficiaries. Both faulted NCSC for long waiting times, lacking information and providing erroneous information. The restored service may reduce such complaints. However, initially only certain types of calls will be directed to the Service Centers. According to the USCIS only the following cases will be directed to Service Centers: -When a new permanent resident has been informed of their status, but has not received their permanent resident card within 30 days. The newly restored telephone service will not handle expedite requests. The USCIS warns that Service Center employees will strictly adhere to the above list of case types. According to an official USCIS e-mail outlining the nature of the renewed telephone service, "A customer who tries to use the automated menu selections as a PIN to get direct[ly] to the SC to raise other issues, either in the context of appropriate transfers or not, will not find any success." The e-mail further notes that the renewed telephone service is a pilot program to be evaluated in several months. At that point the USCIS will decide whether to expand the program or shut it down. To access this new service, callers will have to call the NCSC at 1.800.375.5283 and chose from the automated menu. Cases matching the types listed above will be forwarded to the appropriate Service Center. Spanish speakers, or people who call before 8 am or after 4:30 pm local time, may not receive immediate Service Center assistance. Instead the NCSC will handle their calls and then refer the case to the appropriate service center for processing. 6. Application Period for Diversity Lottery Ends Jan. 7 The U.S. Department of State (DOS) will stop accepting electronic applications for the 2006 Diversity Visa (DV) green card lottery on January 7, 2005. The DV program allows up to 50,000 people a year to immigrate to the United States. It is limited to applicants from countries with low rates of immigration to the United States. For DV-2006, natives of the following countries are not eligible to apply because they sent a total of more than 50,000 immigrants to the United States in the previous five years: Canada, China, Colombia, the Dominican Republic, El Salvador, Haiti, India, Jamaica, Mexico, Pakistan, the Philippines, Russia, South Korea, the United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam. Persons born in Hong Kong SAR, Macau SAR, and Taiwan are eligible to apply. Applicants for diversity visas are chosen by a computer-generated random lottery drawing. The visas are distributed among six geographic regions, with more green cards going to regions with lower rates of immigration. No one country may receive more than seven percent of the available diversity visas in any one year. This is the second year the DOS will only accept electronic DV applications via the Internet. Paper entries are no longer accepted. The DOS moved to this electronic system to improve efficiency and security. However, applicants have still been faced with electronic scams. Fraudulent e-mail notifications have been sent to DV applicants from "dvlottery.state.gov" informing them that they have won the lottery and requesting a "clearance/acceptance fee." The DOS will only accept completed DV entry forms submitted electronically at www.dvlottery.state.gov until 12:00 pm EST (GMT-5) on January 7, 2005. Winners will be notified between May and July 2005, and will be able to actually file their green card applications beginning October 1, 2005. They must complete the green card process by September 30, 2006. For more information about the DV green card lottery and how to apply, visit: 7. State Dept. Discusses Ways to Improve Business Visa Procedures In a memo the Department of State (DOS) released to the public on December 14, 2004, the DOS outlined consular efforts to facilitate business travel. Touting Secretary of State Colin Powell's slogan "Secure Borders, Open Doors," the memo emphasized that public outreach was the department's primary concern. To this end the Department of State is working with American businesses to identify problems with obtaining business visas. According to the memo, the Department of State has also tried to make the visa process more transparent, in part by making more information about visas available electronically. Consulates are engaged in a number of formal business programs. Many posts have officers designated for serving the local business community. For such programs, consulates usually publish special e-mail addresses and phone numbers for these officers. Several consulates have also started training programs to educate officers about their country's economy, business community and how to conduct business visa interviews. Some consulates have programs that allow members of major companies to obtain expedited appointments or expedited visa processing. Members of this type of program are generally members of the American Chamber of Commerce in that country. Some posts offer group interviews and will expedite appointments for groups. Some consulates set aside blocks of time weekly to allow certain types of applicants to appear without an interview. Globally, the DOS is looking for ways to enhance its electronic and automated processing systems. The DOS also advises in its memo that certain consular posts will be unable to provide certain business facilitation programs for foreign policy reasons such as economic sanctioning. To find out more about the types of business initiatives available at individual consulates contact the pertinent embassy at: http://usembassy.state.gov/ 8. New Articles on Our Web Site Our immigration group’s 2004 holiday greeting card is posted on our web site at http://www.millermayer.com/holiday_card.htm. Enjoy! A new article about recent changes to the US VISIT program is on our web site at http://www.millermayer.com/new/usvisit.html Steve Yale-Loehr has co-written an article about the recent surge in immigration cases being appealed to the federal courts. The article is on our web site at http://www.millermayer.com/resources/immappeal.html 9. Hilary Fraser Returns from Sabbatical; The Firm Speaks We are delighted to welcome back Hilary Fraser from her well-deserved six-month sabbatical. She is recharged and ready to assist new and continuing clients with all your immigration issues. February 16: Steve Yale-Loehr and Rosanne Mayer will give two talks at the University of Buffalo--one to foreign medical graduates, the other to undergraduates--about visa options after graduation. March 23: Steve will chair the PLI annual basic immigration law seminar in New York City. Details about the seminar are available at http://www.pli.edu/product/program_detail.asp?ptid=511&stid=3&id=EN00000000020270 Contact Steve at mailto:syl@millermayer.com for more details on any of these talks. _____________________ For answers to any of your immigration questions, contact: Hilary Fraser (mailto:htf@millermayer.com)
|
