Immigration Visa Attorney Blog

Before a Permanent Labor Application (PERM) can be filed, the employer must attempt to recruit U.S. workers for the position being offered. This process is essential to a successful PERM case, and if the recruitment is not carried out according to mandatory Department of Labor (DOL) regulations the PERM case may be denied. What follows is a general overview of this crucial step...

The recruitment process spans professional and non-professional positions, and will vary depending on whether or not the job is one that the DOL considers a professional or non-professional position. In either case, the employer must be able to prove that appropriate recruitment was carried out prior to filing the PERM application; dated copies of all recruitment must be kept on file.

For professional and non-professional positions, the DOL mandates the following (professional positions include any EB-2 position and most EB-3 positions that require a degree):

1. The Job Order
The employer must make sure that a job order is placed with the State Workforce Agency (SWA). This ad must run for a period of at least 30 days.

2. Advertisements in Newspapers or Professional Journals
A newspaper advertisement for the position must run on two Sundays. If the position requires an advanced degree, then an ad may run in a pertinent and national professional journal in place of ONE of the Sunday newspaper ads.

3. Internal Job Posting
The employer must run a job posting at the place in which the offered position will be performed. This ad must be posted for at least 10 consecutive business days.

For professional positions (EB-2 and most EB-3 positions) there are another 3 recruitment activities, for a total of 6. Any 3 of the following recruitment forums may be chosen, and must take place within the recruitment period:

1. Job fairs
2. Employer's web site
3. Job search web site other than employer's
4. On-campus recruiting
5. Trade or professional organizations
6. Private employment firms
7. An employee referral program, but must include verifiable incentives
8. Campus placement office
9. Local and ethnic newspapers
10. Radio and television advertisements

All recruitment must be completed in the 180 days prior to filing the PERM, and 30 days before filing the application, though for a professional position one of the three additional steps may take place less than 30 days prior to submitting the application.

Finally, it is extremely important to keep in mind that errors in recruitment cannot be corrected after the PERM has been filed.

Last month the Brookings Institute released a study on highly skilled immigrant workers and their demand based upon geographic region within the United States. What Brookings found was that the highly coveted STEM (science, technology, engineering and mathematics) workers who make up the majority of H-1B visas are more often finding a home in the Midwest.

Expected tech hubs such as San Francisco, Los Angeles and San Jose are still at the very top in terms of total H-1B requests. But when Brookings looked at the ranking of cities in terms of H-1B requests per 1,000 workers, it found the Midwest is one of the country's up-and-coming hotbed for these visas.

Continue reading "Increasing Demand for H-1B Workers in the Midwest" »

This week the United States Citizenship and Immigration Services (USCIS) announced that it had reached the cap for H-1B petitions in FY 2013. Any petitions received by USCIS on or after June 12 will be rejected.

"June 11, 2012, was the final receipt date for new H-1B specialty occupation petitions requesting an employment start date in FY 2013," the USCIS said in a release.

With the cap season opening on April 2, that means the 85,000 (65,000 regular, 20,000 advanced degree) cap number was reached in approximately ten weeks. This is a significant change from FY 2012, which the cap wasn't filled until late November.

A number of factors explain the increase in H-1B interest this fiscal, first and foremost being a slight improvement in the U.S. economy and the resulting boost in hiring. As we've mentioned before in this space, as the country emerges from its slow-down, companies have been deciding to invest in infrastructure and are making H-1B-heavy areas like information technology a priority.

Continue reading "H-1B Cap Reached" »

Speaking last week at the tenth installment of the Wall Street Journal's "All Things Digital Conference" (ATD10), LinkedIn CEO Jeff Weiner told the audience he thinks H-1B visas need to be relieved of their cap restrictions.

With more than 160 million users worldwide, LinkedIn is the world's largest professional network. More than two million companies have pages on the site. The company has offices around the world and boasts approximately 2,500 full-time employees.

Weiner spoke on the first day of ATD10 alongside LinkedIn co-founder Reid Hoffman. One of the topics addressed was the issue of H-1B visas and his desire that U.S. companies be allowed to bring in more employees from overseas.

Continue reading "Leading Tech CEO says: 'Free the H-1B'" »

As of the United States Citizenship and Immigration Services' (USCIS) May 18 report, there have been 42,000 regular (65,000) cap-eligible petitions received. Additionally the USCIS has received 16,000 petitions for the advanced degree, or 20,000, cap category.

In USCIS' previous May 11 report the cap numbers stood at 36,700 (regular) and 14,800 (advanced), respectively.

This May 18 report is the seventh of the fiscal year for USCIS. If the current rate of filing continues, the FY2013 seems likely to continue for approximately 4 or 5 more weeks.

Continue reading "H-1B FY2013 Update" »

Here is a quick update regarding H-1B cap-eligible petitions for fiscal year 2013.

As of the May 4 report, the United States Citizenship and Immigration Services (USCIS) had received 32,500 petitions for the 65,000 (regular) cap and 13,7000 petitions for the 20,000 (advanced degree) cap. This is the fifth update of the fiscal year, with petitions having been accepted starting on April 2.

In USCIS' previous (April 27) update, the cap numbers stood at 29,200 for regular petitions and 12,300 for advanced degree petitions.

At this point in FY2013, the numbers indicate that filings are being accepted at a rate of approximately 3,500 per week for the regular cap and 1,300 per week for the advanced degree cap. We believe that this rate should continue for the next month or so.

Continue reading "Update For H-1B Cap-Subject Petitions" »

The USCIS issued a revised "Q & A" regarding the establishment of employee-employer relationship with regards to H-1B. While the Q & A did not change any requirements for H-1B, it clarified that a "consulting company may be able to establish that a valid employer-employee relationship will exist."

This news appears to be in response to a January 2010 memo from Associate Director of Service Center Operations Donald Neufeld, which tackled the issue of H-1B and companies that handle consulting. The memo challenged whether or not a staffing firm could establish H-1B's required employer-employee relationship.

Under this new guideline, consulting firms can demonstrate employer-employee relationship by proving "the right to control the work of the beneficiary." This includes paying the beneficiary's salary, and if they "determine the beneficiary's location and relocations assignments and whether the petitioner will perform supervisory duties."

Continue reading "New H-1B Guidelines for consulting Firms" »

The Press Trust of India (PTI) is reporting that the United States Citizenship and Immigration Services (USCIS) received 22,000 H-1B applications in the first four days of Fiscal Year 2013.

A spokesperson for USCIS said the government has received "approximately 22,000 H-1B petitions" since FY 2013 began on April 2. The spokesperson emphasized to PTI that the numbers are preliminary.

The 22,000 figure counts petitions filed for both the regular (65,000) and advanced degree (20,000) caps.

This number marks a significant increase in first week H-1B petitions over the past few years. If accurate, 22,000 would be highest number of early applications since 2009, when USCIS received 42,000 during the first week.

The U.S. Department of State is expected to retrogress the cutoff for Employment-Based Second Preference (EB-2) for India and China to August 2007. The change could come as early as the May bulletin.

This comes from comments made last month by Charles Oppenheim, who is the Chief of the Visa Control and Reporting Division for the State Department. Oppenheim mentioned August 2007 as a likely point of retrogression, but did not rule out cut-off dates being retrogressed more than projected. Currently the priority date is May 1, 2010.

Continue reading "'Significant' Retrogression of EB-2 Priority Could Come Next Month" »

Last week the Department of Homeland Security announced that it had designated the nation of Syria for Temporary Protected Status (TPS). This will be in effect for 18 months and will be reviewed again before the end of that period.

Additional details will be forthcoming from Homeland Security as to who qualifies and exactly how to work through the application process. In the meantime this would be an ideal time for Syrians in the Columbus, Ohio area to seek out assistance from an experienced immigration attorney.

Homeland Security uses the TPS designation in situations where conditions in a foreign country make it unsafe for a foreign national to return safely. Cases like civil war and environmental disaster are common reasons the designation is used by the U.S. government. If foreign nationals are found eligible for TPS they can obtain employment authorization (EAD), can be granted traveling privileges and are not removable from the U.S.

In the case of Syria, the concern is over a citizen uprising related to President Bashar al-Assad. According to the United Nations, more than 9,000 people have died since the so-called Arab Spring made its way to the country in 2011. Currently there are concerns about military snipers targeting unarmed civilians including small children.

Continue reading "Syria Granted Temporary Protected Status" »

Mark Warner, a member of the United States Senate from Virginia, says he will look into concerns regarding recent H-1B denials to applicants from India.

Warner is the co-chair of the Senate India Caucus. This month he spent a week in the country as part of a Congressional delegation. During the trip Warner was informed that some Indian companies believe the percentage of H-1B visas denials in their country has been higher than other parts of the world.

Warner said that in response to the concerns he has recently introduced legislation which would examine the U.S. visa issue and take a look at providing green cards to foreign nationals who graduate from American universities and wish to work in the country.

Warner has said he's in favor of removing the caps on H-1B visas and introducing "additional opportunities for Indian H-1Bs."

Continue reading "US Senator To Look at Indian H-1B Denials" »

The Board of Alien Labor Certification Appeals (BALCA) recently ruled on a case related to the confirmation of an employer's sponsorship of a foreign worker. We think it is an interesting decision, one that our friends here in central Ohio should pay attention to as they work on these kinds of application.

Four years ago a company filed for Permanent Employment Certification (PERM) for a landscaping/grounds keeping-related position. The Certifying Officer (CO) in the case denied the application on the grounds that they could not verify the employer's sponsorship of the candidate.

When applying, the Employer included a signed "declaration under of penalty of perjury" from the company president attesting to the conditions of employment. In the denial, the CO stated it tried unsuccessfully to reach the president by phone on five separate occasions over a one-month period.

Continue reading "PERM Judge rules on telephone verification " »

An immigration case that has been featured prominently in the news over the past week highlights some of the issues currently plaguing our system. This should help illustrate for our readers here in Ohio just how damaged the investor visa program is at this point.

ABC World News last week reported on the story of 22-year old Israeli national Amit Aharoni. Aharoni, a graduate of Stanford Business School, was able to land more than $1.65 million in capital to launch an online company that helped customers book cruises

Aharoni's company, CruiseWise.com, already employed nine Americans and was mentioned by Business Insider as one of the country's hottest startups. Aharoni said his hope was that CruiseWise could create hundred of jobs in the San Francisco area.

Continue reading "Columbus, OH Attorney: A disturbing visa case gets national attention" »

In recent weeks our office has been getting a number of inquiries into the EB-5 program. We thought this would be a good opportunity to review some recent information related to the program.

As many of you are aware, EB-5 is an immigration investor visa program that was created as part of the Immigration Act of 1990. It grants lawful permanent residence to foreign nationals who invest $1 million into a U.S. business that either creates or preserves ten American jobs.

There are other components to EB-5, such as a $500,000 category for investment into so-called Regional Centers, Targeted Employment Area (TEA) areas where unemployment is at least 150 percent the national average, or in rural areas. In recent years much of the EB-5 visas have been centered around the real estate industry, but the visas impact other industries such as clean technology and finance.

Continue reading "EB-5: The Latest" »

One of the hottest immigration topics over the past few weeks is the administration's announcement that it plans to change how it treats the hundreds of thousands of deportation cases currently in the system. For good reason this has stirred controversy from both sides of the political isle as people try to make sense of what the policy will mean.

And though we realize most of our readers are not involved with an active deportation case, it's important to look at the change as it may impact the speed of the federal system as a whole. How the government elects to allocate resources could have an affect on the entire immigration system.

First, some quick background: On Aug. 18 the administration announced it would be reviewing the deportation cases already within the system -- more than 300,000 in total -- with the goal of prioritizing those involving felony cases. The idea being that with limited financial and legal resources the most efficient way to attack the backlog problem is to target those situations most likely to pose a threat to the community.

Continue reading "The administration changes course on deportation: What does it mean? " »