Immigration Visa Attorney Blog

The United States Citizenship and Immigration Services (USCIS) issues 65,000 new H-1B visas annually for individuals with a Bachelor's degree or higher who will be working in a specialty occupation. In addition, the USCIS issues 20,000 H-1B visas to individuals with a Master's degree or higher under the advanced degree exemption every year. The H-1B fiscal year begins on October 1st, but the USCIS begins accepting petitions for the new fiscal year on April 1st. The USCIS will continue to accept petitions until the annual limitation on H-1B visas has been reached. Once the yearly cap has been fulfilled, H-1B hopefuls must wait until the next H-1B fiscal year to apply for an H-1B visa.

The time frame in which the H-1B cap is reached has varied from year to year. For instance, for Fiscal Year 2005, reverted to 65,000 limit, it was not filled until October 1, 2004. For Fiscal Years 2006 and 2007 it, likewise, took the cap a few months to be exhausted. Beginning in Fiscal Year 2008, though, the USCIS was flooded with H-1B petitions on April 1st, enough to exhaust the entire fiscal year cap by April 2, 2007. At that point, the USCIS instituted a lottery just to determine which of the hundreds of thousands of H-1B petitions received would be processed. This trend continued into Fiscal Year 2009, as well. Unlike the previous two years, however, the Fiscal Year 2010 cap remained open until December 21, 2009. At that time, it was becoming clear that the downturn in the U.S. economy was slowing the demand for new H-1B workers.

Unfortunately, the Fiscal Year 2011 demand for H-1B visas does not seem to have increased any from Fiscal Year 2010 and may, in fact, be lower. As of May 14, 2010, the USCIS had received only 19,000 cap-subject H-1B petitions and 8,100 cap-exempt H-1B petitions. This is far fewer petitions than had been received by this time last year. In comparison, the USCIS had received 45,000 cap-subject petitions and 20,000 cap-exempt petitions by May 18, 2009. It appears that much like the Fiscal Year 2010 H-1B visa cap, the Fiscal Year 2011 H-1B visa cap will take many months to reach. It is even possible that, for the first time since the mid 1990's, the H-1B, it will not be completely filled before the next H-1B fiscal year begins. However some trend analysts still predict that the H-1b cap will be reached this year around November. Only time will tell when.

In the absence of national-level immigration reform, Arizona has passed its own version. Unfortunately, it is not the type of immigration reform that most in the immigration community would appreciate. Specifically, Arizona's new law requires foreign nationals to carry their immigration documents at all times and allows law enforcement to question any individual suspected of being in the U.S. illegally. Aside from the obvious problems of racial profiling and discrimination, laws such as this one continue to fracture an already cracked immigration system. This law will also, as many in the law enforcement community have pointed out, impede law enforcement's efforts. Not only will this monopolize police time with questioning individuals "suspected" of being an illegal immigrant, but individuals who have witnessed crimes may not be willing to come forward if they fear being deported.

Arizona's recent immigration law demonstrates why nationwide, comprehensive immigration reform is so desperately needed in this country. If not for the benefit of the foreign nationals whom have waited so patiently for a better system, then to prevent radical legislation like that passed in Arizona. Immigration is a federal issue under the constitution. By allowing individual States to dictate immigration reform, the system is going to become even more inconsistent and piecemeal. Arizona's recent legislation should send a clear message to Congress that it needs to regulate this area of the law and it must act promptly. If not, each State will take it upon itself to pass its own version of immigration reform, as Arizona has done. Clearly, other States will be inspired to introduce similar legislation or perhaps even worse.

Interestingly, Janet Napolitano, Homeland Security Secretary, preceded Jan Brewer as Governor of Arizona and vetoed several comparable bills that were placed on her desk for signature. Many different civil rights and immigration groups have staunchly opposed the bill, and the Mexican Government has even voiced its criticisms of the bill. Various groups have also vowed to challenge the law on constitutional grounds if signed into law by Governor Brewer. One can only hope that Governor Brewer realizes this law would do much more harm than good -- socially, politically and economically -- and veto the bill. The Governor has not made her position known and has another day to veto or sign the bill. Undoubtedly, the country, and perhaps other countries, will be watching closely to see what the Governor's decision will be.

Employees whose work requires them to continually travel to different work locations, typically called roving employees, requires special attention during the labor certification process. If an Employee works a short period in Columbus, Ohio then moves to Troy, Michigan and then to Dublin, Ohio in one year, this employee is a roving employee in all likelyhood. Normally, a labor certification is filed in the area of intended employment in order to test the U.S. labor market for qualified workers in that area. Arguably, if a foreign national's work location is constantly changing, it becomes difficult to properly test the appropriate labor market and certify there are no qualified employees available to fill the position. If an employee's work location changes after the labor certification and the employer has no intention of returning the employee to the labor certification work location, the labor certification may no longer be valid.

There are certain exceptions for roving employees, but the Department of Labor (DOL) and United States Citizenship and Immigration Services (USCIS) have indicated they review such applications with heightened scrutiny, especially when an employer is downsizing or laying off employees. Thus, it is of utmost importance to ensure all PERM recruitment steps are precisely followed and roving employee issues are preemptively addressed in the I-140 Immigrant Petition for Alien Worker. Employers need to conduct their labor certification recruitment in strict compliance with the PERM regulations or risk drawing the DOL's attention to the case, possibly resulting in supervised recruitment.

A primary concern for roving employees is where the Notice of Filing should be posted. The DOL has indicated that if the employer does not know where the employee's work location will be, a Notice of Filing should be placed at each of the employer's current client worksites. If the employer does know where the employee will be working, the Notice of Filing can be limited to those work locations. Another concern is what prevailing wage should appear on the Notice of Filing. In the situation of roving employees, the prevailing wage should be derived from the area of the petitioner's headquarters.

It is important to keep in mind that an employer's obligation to employ the foreign national employee at the work location specified in the labor certification does not begin until the employee receives their green card. Thus, it will likely be years before the foreign national employee is required to remain permanently at the worksite listed on the ETA 9089 application. Until that time, the foreign national employee can continue to work at various locations as a roving employee. The fact that the employee is not working at the location specified in the ETA 9089 application may cause the USCIS to inquire at the I-140 stage and it is best to preemptively explain such issues in the I-140 Immigrant Petition for Alien Worker.

The PERM process exists to test the U.S. labor market for qualified U.S. workers that could fill a permanent position prospectively being offered to a foreign national. The purpose of PERM labor certification is to establish that the foreign national employee is the only individual with the necessary combination of education and experience for the position who is willing and able to accept the job opening within the employment geographic area. For more information visait PERM FAQ's on our website.

If the foreign national employee gained all or part of their experience in a position with the sponsoring employer, it is arguable that a U.S. worker could have gained that same experience with the employer. To address this issue, the PERM regulations require that any experience gained by the foreign national employee with the petitioning employer be gained in a position that is "not substantially comparable to the position for which certification is being sought." This includes any positions the foreign national has held as a contract employee with the sponsoring employer.

The PERM regulations define substantially comparable as "a job or position requiring performance of the same job duties more than 50 percent of the time." Despite this definition, it can be difficult for employers to determine what constitutes a substantially comparable position. Employers should examine the core skills and responsibilities of the positions, as well as the job duties. One method for assessing whether two positions are substantially comparable is to compile a list of the job duties for each position, including the amount of time the foreign national spends on each duty. If the job duties and time dedicated to each largely overlap, it is likely that the two positions are substantially comparable. It is highly recommended that sponsoring employers consult with experienced immigration counsel regarding whether two positions are substantially comparable to avoid irreparable issues at the I-140 stage.

Continue reading "Labor Certification Attorney On Experience Acquired With The Same Employer" »

This is one of multi-blog series about degree requirements and equivalency in PERM Labor Certification. Additional PERM FAQ's are available on our website.

Overview:

A U.S. employer that wishes to sponsor a foreign national employee for a permanent position must usually establish that there are no qualified U.S. workers to fill the position. The PERM process was developed as a method for testing the U.S. labor market for qualified workers and, as part of the process, the U.S. employer must outline the minimum educational and experience requirements for the position. If no qualified U.S. workers are found, the foreign national being sponsored for the position must demonstrate, at the I-140 stage, that they meet the qualifications for the position as stated in the U.S. employer's recruitment. As not all educational systems are created equally, it is incumbent upon the foreign national to sufficiently establish that their foreign degree is equivalent to the required U.S. degree. Degree equivalency can also be extremely important when determining a foreign national's employment-based preference category and, essentially, their place in line for a green card.

Second Preference Category

To qualify for the second employment-based category, a foreign national must have the equivalent of a U.S. Master's degree or Bachelor's degree plus five years of progressive, post-baccalaureate experience. As a general rule, a combination of 6 years of graduate and undergraduate education that culminates in a Master's degree will be considered the equivalent of a U.S. Master's degree. Such combinations could include 4 years of undergraduate education and 2 years of graduate education, 3 years of undergraduate education and 3 years of graduate education, or 3 years of undergraduate education, a 1 year post-graduate diploma and 2 years of graduate education. Ultimately, it is important that the foreign national's transcripts and dates of attendance reflect 6 full years of education, resulting in the award of a Master's degree.

Third Preference Category:

Foreign Nationals may qualify for third employment-based category if they have at least of two years of experience. If a deree is required for the position, a foreign Bachelor's degree must be evaluated to ensure it is the equivalent of a U.S. Bachelor's degree. In some countries, a Bachelor's degree can be completed in only 3 years and, thus, may not be considered equivalent to a U.S. Bachelor's degree which requires 4 years of study. To be the equivalent of a U.S. Bachelor's degree, the foreign degree must consist of equivalent to 4 years of undergraduate education which culminates in a single-source Bachelor's degree. The foreign national must have transcripts reflecting 4 full years of education, as well as dates of attendance, that result in a single-source Bachelor's degree.

Continue reading "Labor Certification Attorney Explains PERM Degree Equivalency Issues: An Introduction " »

This is the second of three blogs on USCIS most recent H-1B memo. On January 8, 2010, the United States Citizenship and Immigration Services released a guidance memorandum to assist in clarifying what constitutes a valid employer-employee relationship for H-1B purposes. Though the memorandum likely caused more confusion than clarification due to its internal contradictions and repudiation of established law, the following is an overview of the USCIS' "guidance" regarding employer-employee relationships for H-1B petitions.

The memorandum recognizes that certain employment relationships are sometimes difficult to classify in the classic master-servant context. Therefore, the USCIS developed factors, purportedly based on Supreme Court precedent and common law principles, to assist adjudicators and petitioners in determining if the employment situation involves a legitimate employer-employee relationship. The factors outlined by the USCIS generally pertain to who supervises and evaluates the employee, who provides the tools and instrumentalities needed for employment, who claims the employee for tax purposes and provides compensation/benefits, and who has the ability to control the manner and means in which the work is accomplished.

To illustrate the correct application of the employer-employee relationship factors, the USCIS memorandum further classifies certain employment scenarios as having a valid or invalid employer-employee relationship. Specifically, the following situations are considered permissive employer-employee relationships for H-1B purposes: traditional employment, temporary/occasional off-site employment, long-term/permanent off-site employment, and long-term placement at a third-party worksite. The employment scenarios that, according to the memorandum, do not qualify as a valid employer-employee relationship include self-employment, independent contractors and certain third-party placements or "job shops."

Among other problems, the memorandum attempts to overturn well-settled law regarding the H-1B eligibility of consulting companies and is riddled with internal contradictions regarding whether the legal standard is "actual control" or the "right to control" the employee. The USCIS will undoubtedly face numerous legal challenges to the content of their most recent "guidance," but employers and employees should be aware that they are, nevertheless, bound by it in the meantime.

Mike Yates, acting Deputy Director of USCIS, addressed the emotional issue of the long delays in employment based green card processing in the Homeland Security Leadership Journal. He shared that in late 2007 and early 2008, employers filed 234,000 I-140 petitions and currently USCIS is dealing with 300,000 filed adjustment cases. He listed USCIS's measures in dealing with the backlog: increased emphasis on I-140 processing with a target processing time of 4 months to be reached by late 2009; issuing work authorization for a two year periods; and work with the State Department to ensure every available visa number is being used by shifting unused family based visas to employment based as occurred in 2007.
One of the concerns that continue to be expressed is the lack of accurate information on how long a case will take to get approval. Issuing a 2-year EAD is certainly a step in the right direction. I am not as certain that the other two factors listed are, per say, proactive steps to improve the backlog. For example, making sure every available visa is being used and shifting numbers from the family based to the employment based visa is simply required by law. With regard to reduction in processing time of I-140, it does not address the increase in denials of I-140 petitions. What good does reduction in I-140 processing time do if we are dealing with a record increase in erroneous I-140 denials? What most of us would like to see, among other things, is increased training and manpower to process applications expeditiously and correctly, and increased transparency and information sharing on processing time.