Client Alert - May 2007

 Important developments require the attention of every HR professional dealing with immigration matters.   

• Labor Certification - Action Alert
• important changes effective July 16, 2007
• No more substitutions of one employee for another
• Employees cannot pay any labor certification expense
• Labor certifications expire if not used within 180 days
• Action suggested now
• identify existing unused labor certifications and analyze for use before July 16, 2007
• review company policies regarding payment and reimbursement of labor certification related expenses.
• notify employees who have labor certifications and have not yet filed I-140 petitions that clock is ticking
• USCIS substantially raises fees -  
  
  Go to complete Client Alert

Client Alert - February 2005

[This newsletter is formatted in HTML and is available online, with live "links" at http://www.usimmlaw.com/HRclientAlert0205.htm. ]

 Important developments require the attention of every HR professional dealing with immigration matters.  These range from the Labor Department's new PERM regulations  to H availability opening up for a short time.  In addition to this alert, and our web site, we have also developed ThePermPage at www.thepermpage.com.  This web site will be updated with important information about the implementation of the PERM program which begins March 28, 2005. 

• H-1b alert
• important changes effective 3/8/2005
• 20,000 additional H-1b visas become available
• "dependency" attestation returns
• fees increase for initial H-1b filings
• $185 existing filing fee
• $1,500 training fee effective December, 2004
• $500 initial fee effective March 8, 2005
• Total for a first time H - $2,185 BEFORE attorneys fees!
• prevailing wage obligation increases to 100%
• additional wage levels available
• Action suggested now
• identify potential beneficiaries of additional  H-1bs, contact our office
• begin an audit to determine possible H-1 dependency, and develop action plan to deal with or avoid dependency.
• prepare to file new H-1b applications on April 1 for employees and candidates not now in H-1b status
• L Blanket option
• Did you know that your company may be eligible for a blanket L?
• With a blanket L, you can transfer your overseas employees to the U.S. without first filing a petition with the CIS
• With a blanket L, your filings fees may be $1500+ lower than they would be with an H-1b
• Action suggested now: Contact our office about the Blanket L option
• If you have overseas offices and
• over $25 million in U.S. sales, or
• over 1,000 U.S. employees, or
• have transferred at least 10 L employees to the US in the last year

• PERM - the new Labor Certification program
• On March 28^th the DOL's new PERM program goes into effect
• Labor certifications are promised in weeks instead of years
• Pending applications can be refiled under PERM and may be decided more quickly
• PERM will involve a reengineering of the entire labor certification process, including your and our internal processes
• Action suggested:
• Review www.thepermpage.com for answers to frequently asked questions
• www.thepermpage.com will help you develop a protocol for dealing with pending applications for employees who want to file again under PERM
• Implement a policy with regard to refiling pending labor certifications
• Begin recruitment now for PERM applications which should be filed as soon after 3/28 as possible
• Begin a program to identify and document recruitment activities which may be useful for PERM. Notify your recruiters.
• Review company policies regarding when and under what circumstances labor certifications will commence.
• Notify us at least 90 days prior to the end of the 5^th year of H-1b eligibility for any employee for whom a labor certification has not yet been filed, and who the company wishes to retain.
• L-1a & L-1b - changes effective 3/8/2005
• Additional fee of $500 for initial L-1 application or visa issuance
• L-1bs filed under blanket petition will need 12 months, rather than 6 months, employment abroad
• L-1bs cannot be "seconded" to other employers under some circumstances (effective June 6, 2005)
• your use if contracted workers may be affected
• Action suggested:
• If you use contracted workers, verify with contractor their status will not be affected by L-1b changes
• Move up new L-1 petition filings into February, if possible
• Review you use of L-1b workers to assure compliance
• Are Indians persons of "special interest"
• We have received reports that nationals of India entering the U.S. across land borders are being treated as persons of "special interest". This involves obtaining full fingerprints and transmitting them electronically for clearance before the subject can be admitted. We don't know the extent or accuracy of this report yet. However, if correct, persons traveling on Indian passport - including permanent residents of the U.S. - may be delayed for many hours entering the U.S. from Canada or Mexico.
• Backlogs coming?
• The State Department has already announced retrogression in visa availability for the third employment based preference category for India, the Philippines and China.
• There are predictions that the worldwide third preference may retrogress before the end of the year, and that the "other worker" category is likely to become unavailable within the next several months.
• PERM - if it works as promised - will result in labor certifications moving through the system much more quickly. That means that the demand for immigrant visa numbers will accelerate. If labor certifications become fast and "easy", the worldwide demand for immigrant visas and preference numbers will increase. Backlogs may start building in the second and third employment based preference categories.
• Action suggested:
• Have employees who have approved labor certifications begin the final process to obtain permanent resident status if they have not done so already.
• Start new cases sooner, rather than later.
• Immigration "Reform"
• The President made immigration reform part of his agenda for his second term. There is no agreement on what appropriate "immigration reform" is - not in the Congress, and not even within the Republican Party. Those of us with a stake in the continued possibility of moving human resources across borders need to enter this discussion now.
• Let your elected official know how important it is to your company, the community, and the economy that the U.S. continue to be able to utilize the talents of the best, the brightest, and the skilled.
  

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  copyright 2005, Jay I Solomon

Notes on Action Alert

20,000 new H-1b visas available to persons who have at least a masters degree from a U.S. university.  CIS has not yet published implementing regulations  Will not apply to those with foreign advanced degree, nor to those with only bachelor's degree.


"H-1b dependency" means you have 
- more than 50 full time equivalent employees ("FTE"), and more than 15% are H-1b
- from 26 to 50 FTE and more than 12 are H-1b
- less than 26 FTE, and more than 7 H-1bs

ThePermPage has recommendations for analyzing when, if and how to file a new PERM application if you have a pending labor certification.  See www.thepermpage.com and specifically http://www.thepermpage.com/oldlaborcerts.htm. 

The L-1b contractor changes prohibit the use of an L-1b as a "contractor" and applies to L-1b petitions filed after June 6, 2005.    Specifically prohibited will be situations where:
(1) The L-1 visa holder will be controlled and supervised by an unaffiliated employer, or
(2) The placement of the L-1 visa holder at the third party site is part of an arrangement to provide labor for the third party rather than placement at the third party site in connection with the provision of a product or service involving specialized knowledge specific to the petitioning employer.
Determine if any contracted workers you are USING are in L-1b status. Obtain assurances that your contractor can replace those workers with non-L-1b workers when their work authorization expires.