Immigration Law Iowa

Update on PERM Labor Certification Program: Audits on Rise; Wage Determinations “Current”

Amy M. Landwehr — Fri, 16 Dec 2011 16:04:30 +0000

PERM audits are on the rise again, and employers sponsoring foreign workers need to take care that they are strictly complying with the requirements of the PERM labor certification program. Job requirements, advertising, and recruitment are the key areas for PERM audits. In this time of high unemployment, recruitment is an area that is especially vulnerable to an audit. Because vetting applicants and managing applicant response is one particular part of the process for which employers are solely responsible, employers must maintain good records of their recruitment efforts and applicant pool. While they must document who applied and how they were notified about the selection process, employers are not, however, required to tell applicants why they weren’t hired even though some audit notices ask for this information. Supervised recruitment – which can cost an employer additional money for advertising and legal fees – also is on the rise, especially in professional occupations where the requirements include configurations that offer alternatives to bachelor degrees, where the job is entry level with no requirements, in lower level financial industry jobs, and in restaurant industry positions irrespective of the status of the foreign national.

Meanwhile, the Department of Labor announced that is has cleared up its backlog and is again issuing prevailing wage determinations for PERM cases within 60 days of submission.

H-1B Cap Reached

Amy M. Landwehr — Wed, 23 Nov 2011 22:42:55 +0000

Today USCIS announced that the H-1B cap for this fiscal year (FY 2012) has been reached. The government will not accept any new, cap-subject H-1B petitions received after November 22, 2011 that are requesting an employment start date in FY 2012.

The USCIS will continue to process H-1B applications for individuals already in H-1B status seeking to extend their status or seeking to change their terms of employment (including those seeking a change in employer). In addition, applications will still be accepted for H-1B employees seeking concurrent H-1B employment and the government will continue to accept cap exempt H-1B petitions (for instance, individuals seeking to work at an insitution of higher education, physicians that have obtaining a Conrad 30 J-1 waiver, etc).

If you are interested in filing a cap-subject H-1B application for next fiscal year, please let us know as soon as possible. We will begin preparing these applications in order to file them on April 1, 2012 and will be able to request an October 1, 2012 start date.

Update on Visa Number Availability

Amy M. Landwehr — Tue, 15 Nov 2011 19:16:14 +0000

In the November Visa Bulletin, the Department of State (DOS) provides its prognosis on the likely availability and movement of visas for the next few months:

For Family (Worldwide) Categories: F1, expected to advance three to six weeks; F2A, three to six weeks; F2B, one to two weeks; F3, one to two weeks; and F4, up to one month.

For Employment Categories: EB-1, current; EB-2, current for Worldwide, Mexico, and The Philippines. (For China EB-2 and India EB-2, DOS reports that the current EB-2 cut-off date is approaching the most favorable date previously reached for such applicants; the dates reflect an effort to generate demand based on new filings for adjustment of status at USCIS offices. DOS advises, however, that once the level of demand increases sufficiently, the forward movement may be slowed or stopped, and a retrogression of the cut-offs at some point during the year is possible); EB-3, for Worldwide, expected to advance up to one month; China EB-3, one to three weeks; India EB-3, up to two weeks; Mexico EB-3, up to one month; Philippines EB-3, up to one month; EB-4, current; EB-5, current.

Update on H-1B Visas

Amy M. Landwehr — Fri, 04 Nov 2011 17:42:03 +0000

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 28th, USCIS reports that 49,200 new H-1B cap-subject petitions were receipted and another 20,000 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.

USCIS Announces Redesigned Employment Authorization Document (EAD) and Certificate of Citizenship

Amy M. Landwehr — Tue, 25 Oct 2011 19:24:23 +0000

On October 25th the United States Citizenship and Immigration Services (USCIS) announced that it will begin issuing a new version of the Employment Authorization Document (EAD) and Certificate of Citizenship as of October 30th. The new version of these documents will include enhanced security features in an effort to reduce fraud. Previously issued documents will continue to be valid. However, the government will start issuing the new format of the EAD for new applications and renewals. For additional information and samples of the new documents, you can visit the USCIS website at: http://www.uscis.gov/ .

USCIS to Resume Mailing of Original I-797 To Attorney of Record

Amy M. Landwehr — Thu, 20 Oct 2011 19:23:28 +0000

On October 20th the USCIS announced that due to complaints from stakeholders, it will resume the mailing of original I-797 approval and receipt notices to the attorney or accredited representative of record. As you may recall, in September without notice, the USCIS changed its longstanding process of sending original notices to attorneys, and instead started sending them directly to the Petitioner or Beneficiary. This resulted in many unanticipated problems, including the inability of attorneys being able to correct errors on notices (since the courtesy copy does not include the I-94 card), delays with approval notices due to mailroom issues at large companies, beneficiaries not receiving approval notices due to a change of address, and attorneys not receiving proper notification. In approximately six weeks, the USCIS will resume sending the original notices to the attorney or accredited representative on record. In addition, applicants or petitioners will receive a courtesy copy of the approval.

Most Immediate Relative Petitioners Residing Abroad Now Must File Their I-130s in the U.S.

Amy M. Landwehr — Thu, 20 Oct 2011 19:21:44 +0000

In mid-August, USCIS announced that petitioners residing outside the U.S. in countries without USCIS offices will no longer be eligible to file immediate relative green card petitions, Form I-130, with the Department of State (DOS) nor have the option of filing at the USCIS overseas office governing their jurisdiction. Instead, they will be required to file only with the USCIS Chicago Lockbox. Petitioners residing in countries where a USCIS office is located will continue to have the option to file either with that office or with the Chicago Lockbox.

Why is this significant for some? Because, the processing time for the overseas filing of Form I-130 is significantly shorter than the time for processing through the Lockbox. So, in most locations, a petitioner who can file locally abroad may have his immediate relative issued an immigrant visa within two to three months of filing an application, whereas a petitioner filing via the Lockbox may not result in an immigrant visa being issued for nine or more months. Those who may be impacted may still be eligible for “local” processing if warranted by special circumstances and USCIS authorizes the DOS to accept and adjudicate an I-130 petition. USCIS provides examples of circumstances in which it would consider authorizing local DOS adjudication: certain military and medical emergencies; threats to personal safety; certain “aging out” cases; certain cases where the petitioner has recently naturalized; and certain cases involving adoption of a child.

October 28 is Deadline for Certain Widow(er)s to File for Green Card

Amy M. Landwehr — Tue, 18 Oct 2011 19:20:41 +0000

A foreign national widow or widower who was married to an American citizen for less than two years prior to October 28, 2009 is eligible to file a Form I-360, Petition for Amerasian, Widow(er) or Special Immigrant; however, the deadline for that filing is October 28, 2011. Widow(er)s with pending I-130s, Petitions for Alien Relative, filed prior to the death of the spouse will automatically have their cases converted to an I-360 petition.

On October 28, 2009 a new law was enacted that eliminated the requirement that widow(er)s of U.S. citizens to be married for at least two years before becoming eligible to file an I-360. (Immigrants who were married for more than two years are governed by other provisions.) Under the 2009 provisions, a surviving spouse who was married a U.S. citizen for less than two years at any time in the past and who has not remarried can apply for his or her green card but may have to do so during the law’s transitional period, October 28, 2009 to October 28, 2011. In other words, if widow(er)’s spouse passed away prior to October 28, 2009, he or she is still eligible to apply for immigration benefits but is required to file by October 29, 2011. If the U.S. citizen spouse passed away on or after October 28, 2009, the I-360 must be filed within two years of the U.S. citizen’s death. USCIS advises that if a case was denied prior to October 28, 2009 based on evidence of less than two years of marriage, it may be considered a pending case.

Original Approval Notices Now Sent to Petitioner or Applicant

Amy M. Landwehr — Fri, 14 Oct 2011 19:19:56 +0000

In mid-September, USCIS began sending original I-797 receipt and approval notices directly to applicants or petitioners, while sending only copies of the notices to the attorney of record. Previously, the original notice had been sent to the attorney, while a courtesy copy was sent to the address provided by the applicant or petitioner in the applicable application or petition form. According to USCIS, it implemented the change to ensure that documents are mailed directly to the address specified by the applicant or petitioner. A formal regulation will be promulgated governing the change in late November. However, the sending of original notices, especially those approval notices that contain an I-94 card, can cause problems for the foreign national if the document is lost or otherwise not timely received.

In a terse letter to USCIS Director Alejandro Mayorkas, the immigration bar association, AILA, requested that USCIS resume its prior practice of sending the original I-797 approval notice to the attorney of record. Not only does the change violate current regulations governing the representation of parties in immigration benefits proceedings, AILA expressed deep concern that the change could impair the ability of petitioners and beneficiaries to comply with obligations to verify employment authorization, to maintain status, and to comply with alien registration obligations. Serious harm could result from a misrouted, mishandled, or lost document. For example, when an I-797 notice is sent to an employer in a large operation, the document can easily be misrouted internally, resulting in delays in its reaching the proper unit and to the foreign national. In the worst case, it can be lost. Moreover, in large-scale operations, employers rely on immigration counsel to properly handle immigration-related documents. Finally, sending the original documents to attorneys of record allows for immediate review of key data and in the event there are errors (spellings, validity dates, etc.), immediate action to correct the errors can be taken.

During this transition, USCIS will permit petitioners for nonimmigrant workers to use the attorney’s address as the mailing address on the petition but the petitioner will not receive any I-797 notices. Special accommodations also are being made for cases that are premium processed.

For now, employers and human resource officers should pay close attention to the I-797 Notice of Action Approval Notices received on behalf of their foreign national workers, share copies with their immigration counsel, and make sure that original documents are distributed to their workers in a timely fashion.

Change in Recruitment Guidance Issued for ‘Special Handling’ Cases

Amy M. Landwehr — Mon, 03 Oct 2011 19:18:27 +0000

For colleges and universities that sponsor foreign national teachers in the greencard process, there has been a recent (and positive!) change.

The Department of Labor (DOL) has announced that they will now allow the use of an electronic or web-based national professional journal instead of using a print journal when conducting recruitment for college and university teachers under the “Special Handling” labor certification (PERM) process. The advertisement must be posted for at least 30 calendar days on the journal’s website, and the employer must be able to document the start and end dates of the advertisement.

Previously, when a college or university wanted to sponsor a foreign national teacher for a greencard, they were required to place a print advertisement in a national journal, even if this was not the normal course of recruiting. However, the government is now allowing the use of electronic or web-based advertisements that meet their guidelines.

If you have any questions on this new guidance or how that may affect future cases, please let us know.