Update on H-1B Visas

November 2nd, 2011

H-1B Professional Specialty Worker Cap Update: As October 1 marked the beginning of the new fiscal year, visas are now immediately available for new H-1B cap-subject petitions. As of October 7th, USCIS reports that 41,000 new H-1B cap-subject petitions were receipted and another 19,100 petitions for foreign nationals with advanced degrees for FY2012. There are 85,000 new H-1B visas available annually, of which 20,000 are designated for advanced degree holders.  For FY2011, H-1B visas became unavailable as of January 26, 2011.

Tough Penalties Levied Against School District in Maryland for H-1B Violations Become Final:  A Department of Labor Administrative Law Judge approved a settlement agreement with Maryland’s Prince George’s County School District (PGCSD), located in the Washington, D.C. metro area, to pay sizeable fines for major violations of the H-1B program, including failure to pay wages and to maintain documentation as required. Under the agreement, PGSCD is barred from hiring any new foreign workers for two years and must pay a civil penalty of more than $100,000 for violating the H-1B program and over $4 million in back wages to more than 1,000 teachers.

Over the last several years, government agencies involved with the H-1B program have stepped up their enforcement and auditing efforts. Employers and their human resource personnel are wise to make sure their public access files and other records relating to their H-1B employees are up to date and in good order.

Comment » | H-1B

Certain Provisions of Alabama’s Anti-Immigration Law Blocked by Court; Others Go into Effect

November 2nd, 2011

In late September, a federal district court blocked certain portions of Alabama’s controversial immigration law, HB 56, from taking effect, ruling that there is a substantial likelihood that the U.S. government can establish that the provisions are preempted by federal law. The provisions upheld, however, include those that authorize local police to inquire about a driver’s immigration status during routine traffic stops or arrests if reasonable suspicion exists that the person is in the United States illegally; and requires public schools to verify students’ immigration status. The law also provides that undocumented foreign nationals can be charged criminally for willful failure to carry federal immigration papers, and any contracts entered into by an individual who is undocumented as well as transactions between any division of the state and an undocumented immigrant are legally nullifiable. The Department of Justice  (DOJ) sought an emergency stay of the decision at the 11th Circuit Court of Appeals on October 7th.

While the status of the law remains uncertain, its effects are already being felt.  Many undocumented immigrants are fleeing the state, workers are no longer reporting to their jobs, and undocumented children (and children of undocumented parents) are no longer attending classes. In requesting the emergency stay, the DOJ claimed that the new law was highly likely to expose persons lawfully here, including schoolchildren, to new difficulties in their daily affairs, and that the legislation could impact diplomatic relations with foreign countries. DOJ set up a hot line to report potential civil rights concerns related to the impact of Alabama’s immigration law.  Call 1‐855‐353‐1010 or email hb56@usdoj.gov.

While clearly one of the most draconian new state laws, the National Conference of State Legislature reports that from January 1 to June 30, 2011, 40 state legislatures have passed 151 immigration-related laws and 95 resolutions.

Zulkie Partners is nationally recognized for its command of immigration law. We offer services that cover all aspects of corporate immigration law, including nonimmigrant work visas, permanent residence sponsorship and more.

Connect with us today to learn how we can help you further your hiring goals.

Comment » | Department of Homeland Security, E-Verify, I-9, Immigration and Customs Enforcement, Worksite enforcement policies

Administration Announces Initiatives to Promote Foreign Entrepreneurial Talent

August 22nd, 2011

For years, America has sought the best and the brightest from business, academia, science, and the arts.  And, U.S. companies have sought to attract key, highly skilled professionals needed to manage, expand, and re-invigorate their operations here. But visa backlogs, limited visa availability, restrictive agency interpretations, and rigid adjudications all have had a chilling effect on those companies who seek to expand and create jobs in the U.S. through the petitioning of foreign personnel. Entrepreneurs, self-styled capitalists, and other self-employed self-starters, large and small, have experienced particular difficulty and uncertainty when applying for nonimmigrant or immigrant visa eligibility, never knowing whether their cases would be approved.  In many instances, the evidentiary burden as applied to them has been disproportionately onerous; in other instances, the documentary evidence required has been misconstrued and disconnected from real business practices.

It is against this backdrop and a tanking economy that USCIS Director Alejandro Mayorkas and Secretary of Homeland Security Janet Napolitano recently outlined – with much fanfare – “a series of new policy, operational, and outreach efforts” designed to help invigorate the economy and stimulate investment by making it easier for highly-skilled immigrants to start and grow companies and create jobs in the United States. Citing the need to attract foreign entrepreneurial talent of all kinds, immigration officials announced plans that could positively affect immigration visa eligibility in several categories if their plans are more than mere fantasy and hype.

National Interest Waivers (NIWs) for Entrepreneurs

First, the government announced that it “will clarify,” presumably with field adjudicators, that immigrant entrepreneurs may obtain employment-based second preference (EB-2) immigrant visas if they satisfy the existing requirements.  The law has always provided for such eligibility and perhaps USCIS is instructing adjudicators to merely apply the law. More notably, USCIS makes clear that entrepreneurs can qualify for an EB-2 National Interest Waiver (NIW), and sheds light on how such individuals can demonstrate that their business endeavors will be in the interest of the United States. Significantly, an individual seeking an EB-2 national interest waiver can self-petition; he does not need an employer to hire him.

Historically, the first step in proving EB-2 NIW eligibility, even for entrepreneurs, has been relatively easy. It requires that an individual is a professional holding an advanced degree or possesses “a degree of expertise significantly above that ordinarily encountered,” or exceptional ability. The second step, proving that the entrepreneur’s investment in a business venture will substantially serve the national interest, has been more challenging. To do so – to qualify for a national interest waiver – the entrepreneur must demonstrate that (1) the proposed employment or work has substantial intrinsic merit; (2) that the benefit to be provided will be national in scope; and (3) that the national benefit is so great that it exempts the individual from undergoing the lengthy and costly process of testing the labor market for U.S. workers through the labor certification process.

In its August announcement, USCIS provides some examples on how an entrepreneur can meet the NIW, or second-step requirements.  To establish the national scope of the proposed benefit of the work, for instance, an entrepreneur could, describes USCIS, show a linkage between job creation in a locality and the spinoff of related jobs in other parts of the country. Alternatively, he could show that local job creation will have a positive national impact. USCIS also opines that an individual entrepreneur might be eligible for exemption from the labor certification process if he establishes that the enterprise is creating new job opportunities for U.S. workers or that it otherwise enhances the welfare of the United States. Through these examples and its broader pronouncement, USCIS seems to be signaling a break from current constructions of what is required and setting out new expectations for these kinds of cases.

Immigrant Investor (EB-5) Program

USCIS plans to enhance and streamline the Immigrant Investor (EB-5) Program. Some components of the streamlined program include a fast-track for applications of enterprises that are fully developed and ready to be implemented, premium processing for certain cases, and the implementation of direct communication between the applicant and USCIS to, among other things, resolve issues without the need for formal requests for additional evidence (RFEs). USCIS is developing a rollout of these changes with the first to be implemented in early September.

Expansion of Premium Processing for Immigrant Multinational Executives and Managers

USCIS also announced that it will expand premium processing service to multinational executives and managers immigrant visa petitions (EB-1-3). Premium processing, which guarantees adjudication in 15 days, is currently available for many other employment-based immigrant visa petitioners, including extraordinary ability foreign nationals and outstanding professors and researchers. However, EB-2 National Interest Waiver petitions remain conspicuously still absent from the premium processing list, an anomaly that is hard to explain. Surely, the certainty of a decision in 15 calendar days through premium processing would encourage a reluctant entrepreneur-petitioner to go forward and invest.  We hope USCIS will rethink this and add EB-2 NIW petitions to the list.

Nonimmigrant Visas

On the nonimmigrant side of the ledger, USCIS unfortunately provides little new guidance. It does, however, state that an H-1B beneficiary who is the sole owner (an employee-entrepreneur) of the petitioning company may establish a valid employer-employee relationship for the purposes of qualifying for an H-1B visa. This has long been a gray area and fraught with tremendous uncertainty in adjudication.

USCIS also announced plans to undertake extensive outreach efforts, including a series of engagement opportunities with stakeholders to seek input and feedback on how to address the unique circumstances of entrepreneurs, new businesses, and startup companies.  Certainly, other nonimmigrant work visas that are suitable for those in business – Es, Ls, and Os – will be the subject of such efforts and must be addressed. And, given the fanfare associated with the recent announcement, USCIS must be prepared to lay out its implementation plan in real and concrete terms.

Will New Policy Translate into Nonimmigrant and Immigrant Visa Approvals?

Long advocated for by immigrant practitioners, economists, business, and others, the ideas outlined by Secretary Napolitano and Director Mayorkas are welcome news, even if symbolic. The United States needs capital and talent to jump-start the economy, and foreign investors and entrepreneurs — natural risk takers – have long sought status in the United States to conduct business here. Moreover, these initiatives require no new visa category to be enacted and no expansion of visa numbers. What these initiatives do require, however, is flexibility and a common sense application of the law by USCIS and State Department adjudicators. Such decision-makers must be instructed and trained to adapt the specific particularities of everyday business practice to immigration visa criteria, and abandon their more widespread rigid, checklist approach to adjudication.

So, will foreign companies that operate and expand operations in the U.S. see fewer hurdles when seeking to transfer their executive and managerial employees? Will self-starters with big ideas, some capital, and job creation prospects secure green cards? Will EB-5 immigrant investors have greater assurance that the conditions on their residence will be removed? Will foreign E-1 traders and E-2 investors – while not specifically addressed – have more confidence in their renewal applications? Most importantly, will these initiatives trickle down to the field?  Or, is the Emperor wearing no clothes.  Stay tuned….

Zulkie Partners is nationally recognized for its command of immigration law. We offer services that cover all aspects of corporate immigration law, including nonimmigrant work visas, permanent residence sponsorship and more.

Connect with us today to learn how we can help you further your hiring goals.

Comment » | Department of Homeland Security, H-1B, I-140, Lawful permanent resident

DOL Prevailing Wage Determinations on Hold; Delays Will Thwart Employers Ability to File PERM Applications for Employees

August 22nd, 2011

The Department of Labor National Prevailing Wage Center (NPWC) advises that it is not issuing prevailing wage determinations (PWDs), often a necessary beginning step in the PERM labor certification process, as it uses all of it resources to reissue some 4,000 court-ordered H-2B wage determinations. Requests for reconsideration or appeal are also on hold. This means that employers seeking to begin PERM cases must wait, even though certain cases must be filed for their H-1B workers due to AC-21 extension requirements, expiring recruitment, or other reasons. DOL advises employers to submit prevailing wage determination requests at least 60 days in advance of the employer’s initial recruitment efforts. As of this writing, it is unclear when DOL will resume PWD processing for new cases and whether any relief will be made available for PERM cases that must but cannot be filed. For now, employers are advised to plan accordingly and build additional time into the application process.

Comment » | Department of Labor

Controversial Secure Communities Initiative Continues But Without Agreements with States

August 22nd, 2011

In an abrupt change of approach to a key immigration enforcement program, ICE declared in early August that it would continue its “Secure Communities” program but without memoranda of agreements (MOA) with state or local law enforcement agencies because ICE deemed them unnecessary. MOAs already in place were unilaterally terminated.  Under the three-year-old Secure Communities program, the FBI shares fingerprint data of people arrested by local (or state) law enforcement authorities with DHS so that it, in turn, can check for immigration law violations. Procedurally, the program has been criticized by some state and local governments for lack of uniformity, inconsistency, and confusion. For example, local authorities have been led to believe that the program is “voluntary” when in fact there is no mechanism for them to opt out. More substantively, the program has been criticized for netting low-level or non-criminal immigration violators – 60% of those arrested are not serious criminals according to ICE statistics – at the expense of local community policing efforts. Indeed, as reported in the Washington Post, Boston Mayor Thomas Menino assessed the program more bluntly, and wrote to ICE Director Morton that “Secure Communities is negatively impacting public safety.” Despite the criticisms, ICE plans to have the program in place nationwide by 2013.

Comment » | Department of Homeland Security, Immigration and Customs Enforcement

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