Archive for December, 2010

PERM Labor Certification Program

December 17, 2010

Most foreign nationals who wish to be eligible for employment-based green cards must do so through the PERM labor certification process, by having their employer file a labor certification application with the Department of Labor (DOL). The PERM application certifies that there are no U.S. workers who are willing, able, or available to fill a position offered by a U.S. employer, and the employer must undertake extensive recruitment as documentation of this fact. The PERM application also certifies that the employer will pay the sponsored employee the prevailing wage for the job. Once approved or “certified,” the U.S. Employer can petition USCIS for the foreign national’s eligibility under one of the employment-based preference categories by filing an I-140 immigrant visa petition.

The largely automated PERM program was introduced in March 2005 and touted by DOL as a new and retooled expedited labor certification process through which employers could begin their sponsorship of valued employees. Nevertheless, the PERM process remains laborious and complicated.

Over the past five years through the issuance of FAQs — DOL’s 11th and latest was issued in August — DOL has retroactively applied new rules to old cases and used the informal FAQ process to create or change its requirements. By forgoing the more formal route of promulgating regulations, which would afford public comment and mandate government consideration, the program remains riddled with deficiencies and uncertainties for employers. Moreover, the application takes about three to six months to prepare, plus at least a few months for processing by DOL (from online submission to adjudication). And, if DOL requests that the employer’s recruitment and other records be audited, another 15 months will be tacked on for a DOL audit response. Beyond the changing rules and lengthy processing times, perhaps the most disheartening aspect of the process is how unforgiving it is — even the tiniest error on the PERM application can completely derail a case.

So why do employers and their employees bother? Despite these and other hurdles inherent in the PERM labor certification process, this route to permanent residence is often the only viable option for many needed employees. And, the process eventually works: long-time nonimmigrant employees and their families can become green card holders (and eventually citizens) of the United States. However, employers who anticipate long-term sponsorship of current employees must take particular care to ensure consistency throughout what can be a multi-process, nine- to ten-year immigration odyssey. This can be difficult, especially when the immigration laws are not consistent. Employers also must take care to timely file their PERM applications, especially when their H-1B employees are approaching their final year of their visa status. Indeed, long-term immigration strategies must be considered when hiring H‑1B workers.

Until this system changes, employers and their immigration counsel should actively review pending cases to determine whether additional documentation is required to meet ever-changing DOL requirements. Counsel and employers also are advised to determine from the start the best short- and long-term strategies for their employees.

Advertisements

PERM Labor Certification Program

December 17, 2010

Most foreign nationals who wish to be eligible for employment-based green cards must do so through the PERM labor certification process, by having their employer file a labor certification application with the Department of Labor (DOL). The PERM application certifies that there are no U.S. workers who are willing, able, or available to fill a position offered by a U.S. employer, and the employer must undertake extensive recruitment as documentation of this fact. The PERM application also certifies that the employer will pay the sponsored employee the prevailing wage for the job. Once approved or “certified,” the U.S. Employer can petition USCIS for the foreign national’s eligibility under one of the employment-based preference categories by filing an I-140 immigrant visa petition.

The largely automated PERM program was introduced in March 2005 and touted by DOL as a new and retooled expedited labor certification process through which employers could begin their sponsorship of valued employees. Nevertheless, the PERM process remains laborious and complicated.

Over the past five years through the issuance of FAQs — DOL’s 11th and latest was issued in August — DOL has retroactively applied new rules to old cases and used the informal FAQ process to create or change its requirements. By forgoing the more formal route of promulgating regulations, which would afford public comment and mandate government consideration, the program remains riddled with deficiencies and uncertainties for employers. Moreover, the application takes about three to six months to prepare, plus at least a few months for processing by DOL (from online submission to adjudication). And, if DOL requests that the employer’s recruitment and other records be audited, another 15 months will be tacked on for a DOL audit response. Beyond the changing rules and lengthy processing times, perhaps the most disheartening aspect of the process is how unforgiving it is — even the tiniest error on the PERM application can completely derail a case.

So why do employers and their employees bother? Despite these and other hurdles inherent in the PERM labor certification process, this route to permanent residence is often the only viable option for many needed employees. And, the process eventually works: long-time nonimmigrant employees and their families can become green card holders (and eventually citizens) of the United States. However, employers who anticipate long-term sponsorship of current employees must take particular care to ensure consistency throughout what can be a multi-process, nine- to ten-year immigration odyssey. This can be difficult, especially when the immigration laws are not consistent. Employers also must take care to timely file their PERM applications, especially when their H-1B employees are approaching their final year of their visa status. Indeed, long-term immigration strategies must be considered when hiring H‑1B workers.

Until this system changes, employers and their immigration counsel should actively review pending cases to determine whether additional documentation is required to meet ever-changing DOL requirements. Counsel and employers also are advised to determine from the start the best short- and long-term strategies for their employees.

“Deemed Export” Attestation by Employers To Be Required on Certain I-129 Petitions

December 16, 2010

Beginning December 23, 2010, a new “deemed export” attestation will be required on Form I-129 nonimmigrant visa petitions for H-1B, H-1B1 (Chile/Singapore), L-1, and O‑1A petitioners. The Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR) require U.S. persons to seek and receive authorization from the U.S. government before releasing controlled technology or technical data to foreign persons in the United States. Under both the EAR and the ITAR, release of such information to a foreign national — even by an employer — is deemed to be an export to that person’s country or countries of nationality. One implication of this rule is that a U.S. company must seek and receive a license from the U.S. government before it releases controlled technology or technical data to its nonimmigrant workers employed as H-1B, L-1, or O-1A beneficiaries. While these licensing requirements will affect only a small percentage of employer-petitioners because most types of technology are not controlled for export or release to foreign persons, a new certification attestation will be included on Form I-129. Most employers will simply certify that no license is required, but if an export license is required, then the employer must further certify that it will not release or otherwise provide access to controlled technology or technical data to the foreign national until it has received the required governmental authorization to do so.

For many years now, companies as well as universities have been required to comply with export control laws, but compliance is generally not managed by the same units that prepare I-129 petitions. Even though many activities at companies and universities can benefit from several exclusions to the export license requirement (e.g., the “basic research” exemption), to properly complete the new deemed export attestation on Form I‑129, the petitioner would first have to inquire with the appropriate office at his or her company or university that handles export control issues. It would behoove these institutions to develop an institutional protocol for completing the form and assuring the signatory of the I-129 that their attestation is true and correct. Employers considering sponsoring foreign workers should familiarize themselves with these laws and discuss with immigration counsel their impact on future visa petitions.

The technology and technical data that are controlled for release to foreign persons are identified on the EAR’s Commerce Control List (CCL) (generally “dual use” items) and the ITAR’s U.S. Munitions List (USML) (generally defense-related articles). The CCL is found at www.access.gpo.gov/bis/ear/ear_data.html#ccl; the USML at www.pmddtc.state.gov/regulations_laws/itar.html. Additional information about applying for the appropriate licenses can be found at www.bis.doc.gov/deemedexports and www.pmddtc.state.gov/faqs/license_foreignpersons.html.

“Deemed Export” Attestation by Employers To Be Required on Certain I-129 Petitions

December 16, 2010

Beginning December 23, 2010, a new “deemed export” attestation will be required on Form I-129 nonimmigrant visa petitions for H-1B, H-1B1 (Chile/Singapore), L-1, and O‑1A petitioners. The Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR) require U.S. persons to seek and receive authorization from the U.S. government before releasing controlled technology or technical data to foreign persons in the United States. Under both the EAR and the ITAR, release of such information to a foreign national — even by an employer — is deemed to be an export to that person’s country or countries of nationality. One implication of this rule is that a U.S. company must seek and receive a license from the U.S. government before it releases controlled technology or technical data to its nonimmigrant workers employed as H-1B, L-1, or O-1A beneficiaries. While these licensing requirements will affect only a small percentage of employer-petitioners because most types of technology are not controlled for export or release to foreign persons, a new certification attestation will be included on Form I-129. Most employers will simply certify that no license is required, but if an export license is required, then the employer must further certify that it will not release or otherwise provide access to controlled technology or technical data to the foreign national until it has received the required governmental authorization to do so.

For many years now, companies as well as universities have been required to comply with export control laws, but compliance is generally not managed by the same units that prepare I-129 petitions. Even though many activities at companies and universities can benefit from several exclusions to the export license requirement (e.g., the “basic research” exemption), to properly complete the new deemed export attestation on Form I‑129, the petitioner would first have to inquire with the appropriate office at his or her company or university that handles export control issues. It would behoove these institutions to develop an institutional protocol for completing the form and assuring the signatory of the I-129 that their attestation is true and correct. Employers considering sponsoring foreign workers should familiarize themselves with these laws and discuss with immigration counsel their impact on future visa petitions.

The technology and technical data that are controlled for release to foreign persons are identified on the EAR’s Commerce Control List (CCL) (generally “dual use” items) and the ITAR’s U.S. Munitions List (USML) (generally defense-related articles). The CCL is found at www.access.gpo.gov/bis/ear/ear_data.html#ccl; the USML at www.pmddtc.state.gov/regulations_laws/itar.html. Additional information about applying for the appropriate licenses can be found at www.bis.doc.gov/deemedexports and www.pmddtc.state.gov/faqs/license_foreignpersons.html.

###

H-1B Visas Still Available

December 15, 2010

Following years of extremely high demand, 2010 is proving to be a very slow year for H‑1B visa petitions. This is good news for businesses hoping to add foreign professional workers over the next several months and their prospective employees.

As of December 10, the U.S. Citizenship and Immigration Services (USCIS) reports having accepted 52,400 H-1B visa petitions out of the 65,000 visas that are available each year. Another 900 visas are still available for those foreign nationals who are eligible to file under the “master’s cap,” which provides for an additional 20,000 visa numbers annually. For several years before the 2008 economic downturn, all H-1B visa numbers were exhausted the first day they became available. In 2009, the cap was reached on December 24.

If you are considering sponsoring a foreign worker in the near future, now is a good time to do so while visa numbers remain available. Once the cap is reached for FY 2011, employer-petitioners and their prospective employees will have to wait until October 1, 2011 to commence new H-1B work (although these petitions can be filed on April 1, 2011).

H-1B Visas Still Available

December 15, 2010

Following years of extremely high demand, 2010 is proving to be a very slow year for H‑1B visa petitions. This is good news for businesses hoping to add foreign professional workers over the next several months and their prospective employees.

As of December 10, the U.S. Citizenship and Immigration Services (USCIS) reports having accepted 52,400 H-1B visa petitions out of the 65,000 visas that are available each year. Another 900 visas are still available for those foreign nationals who are eligible to file under the “master’s cap,” which provides for an additional 20,000 visa numbers annually. For several years before the 2008 economic downturn, all H-1B visa numbers were exhausted the first day they became available. In 2009, the cap was reached on December 24.

If you are considering sponsoring a foreign worker in the near future, now is a good time to do so while visa numbers remain available. Once the cap is reached for FY 2011, employer-petitioners and their prospective employees will have to wait until October 1, 2011 to commence new H-1B work (although these petitions can be filed on April 1, 2011).

###

DREAM Act – Still Alive

December 14, 2010

As we go to press (December 14, 2010), the DREAM Act, a bill that would offer a path to citizenship for some undocumented immigrants who entered the United States as children, remains alive in the 111th Congress. The DREAM Act is still expected to be considered by Congress before it adjourns and the session is ended. If passage is unsuccessful, the bill must be reintroduced and considered anew in the 112th Congress come January. The following is the status of this ameliorative immigration legislation.

On December 8, 2010, the U.S. House of Representatives passed by a vote of 216-198 the Development, Relief and Education for Alien Minors, or DREAM Act. Senator Reid, who had vowed to bring up the measure during his recent re-election campaign, worked closely with the House leadership to determine which chamber should consider DREAM first. It was decided that the chances for overall success were best if the House considered its bill first. Their strategy paid off. The Senate was set to consider its version the next day, December 9th, but Reid and others quickly realized they did not have the necessary votes to overcome an important procedural vote and pulled the Senate bill from consideration. As Majority Leader in the Senate, he had the power to do so. Senator Reid next undertook several strategic procedural moves, substituting the House bill in the Senate and postponing consideration until more support could be galvanized. The legislation is now expected to be considered later this week. It must pass the Senate and be signed by President Obama before it becomes law.

The DREAM Act would offer a six-year, conditional status to eligible children under the age of 16 who entered the U.S. illegally but have lived here for at least five years. Other requirements include graduating from high school or obtaining a General Education Development (GED) diploma and demonstrating “good moral character.” Before moving forward, students in conditional status would need to pass criminal background checks and attend college or serve in the military for at least two years. The bill also imposes stiff filing fees at the time of application. Proponents, including President Obama and Democratic leaders, say the bill offers legal standing to young people brought to the United States who have bettered themselves and served their new country, while opponents claim it is a form of amnesty for illegal immigrants.

Shortly after the House passed the DREAM Act, President Obama issued a statement congratulating the House for its work and urging the Senate to do the same “so that I can sign it into law as soon as possible.”

The Senate, by pulling its bill so that it can take up the version passed by the House, now has a simpler path to victory; it can pass the House-passed bill and immediately send it to the President for signature. By contrast, if the Senate were to consider and pass its own version, a potentially lengthy conference committee process reconciling the two bills would have been required, as well as another round of voting.

The momentum from the House vote, the Senate vote on tax cuts, and the more economically palatable version of DREAM Act introduced by the House could help achieve success for a piece of legislation that was first introduced 10 years ago.

Stay tuned.

###

DREAM Act – Still Alive

December 14, 2010

As we go to press (December 14, 2010), the DREAM Act, a bill that would offer a path to citizenship for some undocumented immigrants who entered the United States as children, remains alive in the 111th Congress.  The DREAM Act is still expected to be considered by Congress before it adjourns and the session is ended. If passage is unsuccessful, the bill must be reintroduced and considered anew in the 112th Congress come January. The following is the status of this ameliorative immigration legislation.

On December 8, 2010, the U.S. House of Representatives passed by a vote of 216-198 the Development, Relief and Education for Alien Minors, or DREAM Act. Senator Reid, who had vowed to bring up the measure during his recent re-election campaign, worked closely with the House leadership to determine which chamber should consider DREAM first. It was decided that the chances for overall success were best if the House considered its bill first. Their strategy paid off. The Senate was set to consider its version the next day, December 9th, but Reid and others quickly realized they did not have the necessary votes to overcome an important procedural vote and pulled the Senate bill from consideration. As Majority Leader in the Senate, he had the power to do so. Senator Reid next undertook several strategic procedural moves, substituting the House bill in the Senate and postponing consideration until more support could be galvanized. The legislation is now expected to be considered later this week. It must pass the Senate and be signed by President Obama before it becomes law.

The DREAM Act would offer a six-year, conditional status to eligible children under the age of 16 who entered the U.S. illegally but have lived here for at least five years. Other requirements include graduating from high school or obtaining a General Education Development (GED) diploma and demonstrating “good moral character.” Before moving forward, students in conditional status would need to pass criminal background checks and attend college or serve in the military for at least two years. The bill also imposes stiff filing fees at the time of application. Proponents, including President Obama and Democratic leaders, say the bill offers legal standing to young people brought to the United States who have bettered themselves and served their new country, while opponents claim it is a form of amnesty for illegal immigrants.

Shortly after the House passed the DREAM Act, President Obama issued a statement congratulating the House for its work and urging the Senate to do the same “so that I can sign it into law as soon as possible.”

The Senate, by pulling its bill so that it can take up the version passed by the House, now has a simpler path to victory; it can pass the House-passed bill and immediately send it to the President for signature. By contrast, if the Senate were to consider and pass its own version, a potentially lengthy conference committee process reconciling the two bills would have been required, as well as another round of voting.

The momentum from the House vote, the Senate vote on tax cuts, and the more economically palatable version of DREAM Act introduced by the House could help achieve success for a piece of legislation that was first introduced 10 years ago.

Stay tuned.


%d bloggers like this: