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U.S. IMMIGRATION NEWSLETTER is the E-Newsletter regarding U.S. Immigration Laws, News & Issues compiled by GLOBAL LAW CENTERS on a Bi-weekly basis and special news issues are sent when important immigration news arises. It is a must reading for potential immigrants, employers and human resources managers. It provides analysis of the latest developments in U.S. immigration laws. Information provided in this newsletter is general information only and may not apply to any particular set of facts or situations.
In This Issue
An H-1B Visa (Specialty Occupation) is a non-immigrant visa that is available to a foreign national who has been offered a job by a United States company for services to be performed in the United States. H-1B Visas are available to workers in specialty or professional occupations. It allows one to stay and work in the U.S. for an initial period of three years, but not to exceed six years. H-1B Visa holders can travel in and out of the United States, when it has been granted by a U.S. consulate. Spouses and unmarried children under the age of 21 may receive visas as well.
Per federal regulations, the USCIS is only permitted to issue 65,000 H-1B visas each fiscal year (FY). They are also required to set aside 6,800 for nationals of Chile and Singapore, thereby leaving only 58,200 visas available for the regular H-1B program. Out of these individuals who have earned a U.S. Master’s degree are processed under a separate quota of 20,000. Any remaining master’s cap applicants not selected in this special category will then be ran in the random selection under the regular H-1B cap.
For the current fiscal year, the H-1B cap was reached in the first week the USCIS accepted petitions, under the USCIS lottery rules.
Over the past two years, the H-1B quota cap has been reached on the earliest possible day of filing—April 1.
• For FY 2009 the H-1B quota was met on April 7, 2008, the earliest possible day under the USCIS H-1B lottery rules (which provides for a random drawing lottery for petitions received during “the first five business days”).
• For FY 2008 the H-1B quota was met on April 2, 2007, resulting in the first ever random lottery used to select petitions to be processed under the H-1B quota.
Last year, the USCIS accepted H-1B filings from April 1, 2008 to April 7, 2008. At the end of this filing period they ran the random selection lottery to determine who made that years H-1B cap. This year we are expecting a similar filing situation. Petitions filed under this year’s cap are likely to run out within the first week of April. The H-1B visa is highly desirable due to the fact that it is a “dual intent” visa. This means that a visa will not be denied simply because an individual has intentions to become a permanent resident.
Employers interested in obtaining H-1B Visas for prospective employees do not need to demonstrate that there is a shortage of qualified U.S. workers so there is no need for Labor Certification. It’s best to have an attorney or representative present the proper documentation and establish that the offered position is a specialty occupation; ant that the employee has the appropriate credentials for the job. To further discuss your possibilities for an H-1B visa please contact our office at (714) 657-7460 for a free consultation.
PERM Labor Certification is the process through which employers demonstrate their intent of hiring a foreign national for a permanent position in the United States. It was designed to protect the rights and opportunities of U.S. Workers, therefore requiring lengthy steps in recruitment in order to obtain a certification from the U.S. Department of Labor (DOL). After an employer has completed all recruitment efforts and provides evidence that there are no qualified, willing, or available U.S. workers for the offered position, the DOL will certify & issue the Labor Certification. The labor certification is the first step in most employment-based permanent residence (green card) cases. With the recent economic downturn it is important to be aware of the issues and eligibility criteria that arise when an employer involved in the labor certification process has had employee layoffs.
We have recently seen layoffs in all areas of business which have left thousands scratching their heads as to why an employer would need to hire a foreign national while laying off some of their employees. The reality of the situation is that it an employer may require employee layoffs in one location, while needing additional employees in another business location. Many businesses have had to restructure their companies and cut their losses resulting in the shutdown of less productive operations or consolidations. Employers have to be ready to modify their spending in a downtrodden economy. There may be an increase in one segment of the business, with a downturn in another.
Any employer that has filed a PERM Labor Certification knows that the DOL specifically asks whether the employer has had a layoff in the area of intended employment in the occupation or in a related occupation within the six months immediately preceding the filing of the application. If this is the case, the employer is required to provide information and evidence demonstrating that U.S. workers were notified and considered for the job opportunity for which the labor certification is sought.
Before answering yes when your company has had recent layoffs, be sure to examine each part of the question to determine if it applies to you. If the answer is yes, then the employer is required to try to contact and consider certain potentially-qualified former employees for the job opening. Below is a list of questions designed to assist you in determining whether the above inquiry applies to your business:
• Has your company had any layoffs?
• Did these layoffs occur within the past six months?
• Were any of the employees laid-off U.S. Workers?
• Were the former employees working in the area of intended employment?
• Were the former employees working in the occupation set forth in the labor certification?
• Were the former employees working in an occupation related to that in the labor certification?
If the position or job opportunity does not fall into these categories, then an employer has a greater opportunity at receiving the labor certification. It is important to remember that the DOL is only concerned with protecting U.S. Workers. The layoff provision only applies to U.S. workers (i.e. U.S. citizens, lawful permanent residents, and individuals who do not require sponsorship to work in the U.S., such as refugees / asylees). If no U.S. workers have been terminated, then the employer need not worry about this portion of the question. Additionally, if an employer has not had any layoffs in the past six months, then there should be no rise for concern on the employer’s part as the DOL is only concerned with recent layoffs occurring throughout recruitment periods.
The last requirement of companies with recent layoffs is that former U.S. Workers included in any layoff must have worked in the area of intended employment, which is the geographic area where the offered position is to be performed (including normal commuting distance). If the labor certification is for work in a specific location (or locations), and the former employee lives within arguably normal commuting distance, then the response to the question must be yes. If the sponsored position does not have a set work location, but rather anticipates various worksites throughout the U.S., then yes must be the answer to the question, if there have been any layoffs of U.S. workers in related occupations within the six-month period.
If your company has had recent layoffs which fall under the above criteria, then you must be able to demonstrate genuine attempts to notify U.S. worker/s of the job opportunity and that the former employee/s were considered for the position. The DOL is firm in their regulations requiring employers to identify the terminated U.S. workers who previously held the same or related positions in the area of intended employment. The employer must determine whether any worker is potentially qualified for the position and must attempt to notify the worker/s of the opening.
Not only must an employer make these attempts to contact U.S. workers who were previously laid off, but they must also document the good-faith attempts to notify former employees. Any of the former employees who respond to the employer’s notification must be evaluated to determine if they are able, willing, and qualified to perform the sponsored job, under the standards applied to any other applicant. The employer does not have to contact former employees who are not potentially qualified based upon the requirements set forth in the labor certification.
DOL has issued statements affirming that due to the economic hardship the country is currently facing, they will have to carefully scrutinize this particular aspect of the PERM process.
The U.S. Department of Health and Human Services (DHHS) recently released their update outlining the 2009 poverty guidelines which are used as an eligibility criterion for various community services and Federal programs. The poverty guidelines issued on the DHHS website are a simplified version of the poverty thresholds that the Census Bureau uses to prepare its estimates of the number of individuals and families in poverty.
The poverty guidelines have always been important to those affected by immigration whether in the U.S. as an investor on a non-immigrant visa or a U.S. Citizen (or Permanent Resident) petitioning for a family member.
People intending to immigrate to the U.S., change their immigration status in the U.S., or wanting to come to the U.S. on a non-immigrant visas (like E-1, E-2, and L visas, for example), will be required to meet these income requirements above 125%.
The Department of Homeland Security and the USCIS have established as part of U.S. immigration policy that each person staying in the U.S. will earn enough money to support themselves and any accompanying dependents. For example, if a married couple with two children come to the U.S. on an E-2 investor visa, they must make at least 125% of the poverty level number for a household of four (two adults and two children) to qualify for that visa. It is important for anyone hoping to immigrate or work in the U.S. to watch these numbers carefully to make sure that they always fall within these guidelines.
While some may find the numbers and guidelines arbitrary and imprudent, the DHHS update is required to be used in immigration so that intending immigrants do not become a “public charge”. For more information about how this release may affect your immigration status please contact us at http://globallawcenters.com.
The California Service Center has announced that they are in the process of identifying all pending Adjustment of Status Applications in the EB-5 category based on the pilot program and all non-Minister Religious Worker I-485s. They will expedite these applications due to the sunset date on March 6, 2009.
Individuals applying to serve in the two non-minister categories of the program must either adjust status to permanent residence or apply for, and be admitted with, an immigrant visa before March 6, 2009. Special immigrant religious workers entering the United States solely to carry on the vocation of a minister of a religious denomination are not impacted by the expiration date.
Global Law Centers’ website is host to hundreds of AAO & DOL decisions and rulings. Whether looking for the most up-to-date immigration case law regarding employment based immigration or family based immigration, companies and clients look first to our comprehensive library for these major cases. Stop by today at Global Law Centers-Case Law.
Section 6 – Looking for a USCIS form or Application? Global Law Centers has the most up-to-date USCIS forms on our website!
Make sure to take a look at our Forms section of the website. Global Law Centers provides free downloadable, user-friendly USCIS Forms which are always up to date. Global Law Centers offers the most comprehensive collection of free forms on the Internet. All forms, fees and specific filing instructions are available in the instructions, also provided by our website. Stop by today and download the application that you need!
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