(This is a sample of the type of timely alert sent to our clients on a periodic basis)
HR Immigration Alert - May 30, 2007
(A periodic email sent to clients of the Law Offices of Jay I. Solomon. To be removed from future mailings, please see end of message)
This alert covers:
- Important new labor certification rules
- Substantial Fee Increases by USCIS
- Update on comprehensive immigration reform
Labor Department issues new rules:
The Department of Labor has issued a new rule effective on July 16, 2007.
Substitutions will no longer be permitted for labor certifications.
Employees will not be permitted to pay or reimburse any part of the costs for preparing or filing a labor certification.
Labor certifications will “expire” 180 days after issuance if not used to support a preference petition filed with the USCIS.
What this means:
• Substitutions: Under current law, when a labor certification (“LC”) has not been used for the employee named, it may be used for another employee who has all the stated requirements as of the date the LC was filed (“priority date.”). Substitutions will continue to be permitted only until July 15, 2007. After that date, a LC may only be used for the named employee.
• Payment by employees: The new regulation prohibits the employee to pay or reimburse any part of the attorney’s fees, advertising or other costs involved in the labor certification. Employees may pay their own lawyer only if the same lawyer does not represent the employer.
• Labor certifications issued on or after July 16, 2007 will only be valid for 180 days. A preference petition must be filed within that time frame, or the LC becomes invalid. Labor certifications issued before July 16, 2007 must be used by January 12, 2008.
Action required now - use it or lose it!
• Identify unused labor certifications and consider using them for current employees. The current employee may obtain an early priority date an become eligible for a “green card” years earlier than would otherwise be possible. The company will save the expense of starting a new labor certification process.
To qualify an employee must have the education, experience, and all other requirements stated on the labor certification as of the date the LC was filed. They must be able to document all requirements. (e.g. - copies of degrees, experience letters, certificates, etc.).
To use an existing LC for a new employee, the employer should have the original LC, or - if it was previously filed with an I-140 which was canceled, proof that the I-140 petition was withdrawn or canceled.
• Reevaluate policies. If your company has a policy requiring employees to reimburse expenses for “green cards” or labor certifications if they leave your employment within a certain period of time, the policy must be reevaluated in light of the new regulation. Likewise, if your company has a policy to require employees to pay some or all of the costs involved in a labor certification, that policy should be reevaluated before July 16, 2007.
• If you have employees who are the beneficiaries of approved labor certifications and have been holding off on filing preference petitions, notify them that the “clock is running.” Some employees wait to file their petitions because of their marital status or for personal reasons.
USCI$ increases fees:
The USCIS has announced a fee increase effective July 30, 2007. Most filing fees increase substantially. In some cases, the fee increases are so substantial that you may want to consider filing some application earlier than you might otherwise.
Comprehensive Immigration Reform
Immigration is in the headlines every day as the Senate today - and the House tomorrow - tries and reshape our immigration system. Current proposals would entirely scrap the present employer driven system of allocating employment visas based on labor certifications and preference petitions.
On a regular basis, proposals are introduced, changed, rejected or adopted. Some of these may ultimately become part of a new law.
You may have an interest in shaping this legislation. For instance, one Senator introduced a proposal to change the H-1b “training fee” from $1500 to $8,500. The bill currently has a $5,000 “training fee”. That would make the cost of filing an H-1b petition almost $6,000 without attorney’s fees!
If you have any interest in participating in this debate and helping to shape comprehensive immigration reform, please let us know. “Help” may be as little as clicking on a “contact your representative button” to send an email - or as much as making a phone call or writing a letter. Participation by the business community demonstrate the importance of intelligent immigration reform to our companies, our economy, and our country.
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