News from the Alliance of Business Immigration Lawyers Vol. 10, No. 3A • March 01, 2014
Headlines:
1. State Dept. Announces J-1 On-Site Inspections – DOS plans to conduct on-site inspections of J-1 internships and training programs.
2. State Dept. Predicts Visa Availability in the Coming Months; Visa Bulletin Moved – The Department of State’s Visa Office has estimated visa availability in the coming months. Also, DOS has reorganized its website, moving the Visa Bulletin.
3. DOL Adds Q&A to FAQ Re Notification and Consideration of Laid-Off U.S. Workers for PERM Labor Certification Applications – An employer must make a reasonable, good-faith effort to notify each potentially qualified U.S. worker who has been laid off during the six months preceding a PERM application whenever a relevant job opening exists, and invite the worker to apply.
4. USCIS Releases Fact Sheet on Correcting Immigration Records After E-Verify Tentative Nonconfirmations – Correcting inaccuracies in immigration records can prevent future TNCs.
5. New Publications and Items of Interest – New Publications and Items of Interest
6. Member News – Member News
7. Government Agency Links – Government Agency Links
Details:
1. State Dept. Announces J-1 On-Site Inspections
The Department of State recently emailed J-1 exchange visitor sponsors to announce that it plans to conduct on-site inspections of J-1 internships and training programs. The visits may be both planned and unannounced. J-1 inspectors may want to speak with responsible officers, supervisors, employees, trainees, and interns, and to inspect facilities, housing, and health insurance arrangements. Inspectors also may review signed Forms DS-7002, Training/Internship Placement Plan, for interns or trainees.
The Alliance of Business Immigration Lawyers (ABIL) recommends that clients contact their ABIL attorneys for advice in specific situations.
2. State Dept. Predicts Visa Availability in the Coming Months; Visa Bulletin Moved
Visa availability. In the Visa Bulletin for March 2014, the Department of State’s Visa Office makes the following estimates of visa availability in the coming months:
EMPLOYMENT-based categories (potential monthly movement)
Employment First: Current
Employment Second:
Worldwide: Current
China: Three to five weeks
India: No forward movement
Employment Third:
Worldwide: This cut-off date has been advanced over four and one half years since last spring in an effort to generate new demand. After such a rapid advance of a cut-off date applicant demand for number use, particularly for adjustment of status cases, can be expected to increase significantly. Once such demand begins to materialize at a greater rate it could have a significant impact on this cut-off date situation. Little if any forward movement of this cut-off date is likely during the next few months.
China: Will remain at the worldwide date
India: Little if any movement
Mexico: Will remain at the worldwide date
Philippines: Three to six weeks
Employment Fourth: Current
Employment Fifth: Current
The above projections for the…Employment categories are for what is likely to happen during each of the next several months based on current applicant demand patterns. Readers should never assume that recent trends in cut-off date movements are guaranteed for the future, or that “corrective” action will not be required at some point in an effort to maintain number use within the applicable annual limits. The determination of the actual monthly cut-off dates is subject to fluctuations in applicant demand and a number of other variables. Unless indicated, those categories with a “Current” projection will remain so for the foreseeable future.
Visa Bulletin moved. The Department of State has redesigned and reorganized its website at http://www.travel.state.gov. The Visa Bulletin is now found under “Law and Policy” in the Visas section of the website. Visitors to the website have several ways to access the Visa Bulletin.
From the homepage:
- Click on the link for usvisas.state.gov, located on the upper right side of the main graphic, or the link “U.S. Visas” located at the bottom of the page. These links will take you to the Visas section of the website.
- Once in the Visas section, scroll down the page to the “We Want You to Know” section.
- Click on the icon, “Check the Visa Bulletin,” or click on the link for the Visa Bulletin in the Law and Policy box.
- Alternately, once in the Visas section of the website, hover over the “Immigrate” icon along the top of the page. A drop-down menu will appear with a link to the Visa Bulletin.
3. DOL Adds Q&A to FAQ Re Notification and Consideration of Laid-Off U.S. Workers for PERM Labor Certification Applications
The Department of Labor’s Employment and Training Administration has added a new question and answer (Q&A) to its frequently asked questions (FAQ). The new Q&A concerns notification and consideration of laid-off U.S. workers for PERM labor certification applications.
The new Q&A asks, “How does an employer demonstrate that it notified and considered laid-off U.S. workers for the job opportunity listed on the ETA Form 9089?” The answer notes that some employers have misconstrued the regulations to require only that they inform workers when laid off that the employer may have future positions and inviting the worker to monitor the employer’s job postings and apply, rather than their actively notifying and considering the laid-off workers. In fact, the Q&A notes, misapplication of the regulatory requirements will result in denial of a PERM application. The employer must make a reasonable, good-faith effort to notify each potentially qualified worker who has been laid off during the six months preceding the application whenever a relevant job opening exists and invite the worker to apply.
The Q&A notes that an employer who files multiple labor certifications can satisfy its responsibilities under the relevant regulation by notifying each laid-off worker (in the manner chosen by the worker) at least once a month that a list of current relevant job openings is maintained electronically on a website operated by the employer. “Simply informing a laid-off worker to monitor the employer’s website for future openings and inviting the worker, if interested, to apply for those openings, will not satisfy the employer’s regulatory obligation to notify all of its potentially qualified laid-off U.S. workers of the job opportunity,” the Q&A states.
The Q&A adds that an employer must maintain documentation showing that it has met its notice and consideration requirements, including copies of all relevant letters, e-mails, faxes, Web pages (including those listing details of the relevant job openings and applications by laid-off workers for those openings), and other contemporaneous documents that show when and how notice and consideration was given. In addition, an employer must obtain and maintain written documentation that a laid-off worker has declined to receive notices, requested discontinuation of the notices, or refused to give or update contact information.
4. USCIS Releases Fact Sheet on Correcting Immigration Records After E-Verify Tentative Nonconfirmations
U.S. Citizenship and Immigration Services (USCIS) has released a fact sheet on how to correct immigration records after resolving a Tentative Nonconfirmation (TNC) in E-Verify. USCIS noted that an employer may receive a TNC because immigration records are inaccurate. Correcting them can prevent future TNCs.
FACT SHEET, which includes several ways immigration records can be corrected
5. New Publications and Items of Interest
DHS OIG report on ensuring that H-1B, L-1 employers pay applicable border security fees. The Department of Homeland Security’s Office of Inspector General (OIG) has published a report, “USCIS Controls To Ensure Employers Sponsoring H-1B and L-1 Employees Pay Applicable Border Security Fee.” Employers must pay a border security fee of up to $2,250 per petition if they have 50 or more employees in the United States, and if their workforce consists of 50 percent or more H-1B or L-1 nonimmigrant workers. OIG audited USCIS’s foreign worker petition process to determine whether employers comply with the fee requirement. Based on its review of 203 petitions for foreign workers, OIG determined that employers typically paid the fee when required. However, 3 percent of the random petitions and 21 percent of the petitions OIG selected “judgmentally based on select characteristics” contained errors that the agency believed could be prevented if USCIS made improvements to its fee collection process. OIG said USCIS needs to implement processes to scrutinize information employers provide to ensure that they pay the proper fees. Some USCIS officers already verify information employers provide regarding their workforce to ensure that the proper fees are collected, but OIG found that this practice was inconsistent across USCIS because there was no requirement that officers do so. Without verification, an employer’s declaration was typically the sole basis for determining whether the employer was required to pay the border security fee.
OIG recommended that USCIS electronically capture employer information regarding the number of employees for analysis and comparison. OIG also recommended that USCIS implement procedures to identify employers who pay fees inconsistently, expand the use of readily available resources to assess the reasonableness of employer-provided information, and conduct further analysis to determine whether an average of 30 minutes was the appropriate amount of time to adjudicate H-1B and L-1 petitions. USCIS generally concurred with these recommendations.
DHS OIG report on ICE’s worksite enforcement administrative inspection process. The Department of Homeland Security’s Office of Inspector General (OIG) has published a report, “U.S. Immigration and Customs Enforcement’s Worksite Enforcement Administrative Inspection Process.” OIG found that generally, ICE’s worksite enforcement administrative inspection process met the requirements of the Immigration Reform and Control Act of 1986. However, OIG said, ICE’s Homeland Security Investigations directorate has not adequately monitored or evaluated the performance or outcomes of implementing its administrative inspection process through the worksite enforcement strategy. Specifically, ICE’s Homeland Security Investigations headquarters did not adequately oversee the field offices to ensure that they were consistent in issuing warnings and fines, and some field offices issued significantly more warnings than fines. The directorate also negotiated fines with employers, in some cases substantially reducing the amounts. OIG said that Homeland Security Investigations’ inconsistent implementation of the administrative inspection process, plus the reduction of fines, may have hindered its mission to prevent or deter employers from violating immigration laws. OIG made recommendations to improve ICE’s implementation of its worksite enforcement strategy through the administrative inspection process.
Several ABIL members co-authored and edited the Global Business Immigration Practice Guide, released by LexisNexis. The Practice Guide is a one-stop resource for dealing with questions related to business immigration issues in immigration hotspots around the world.
Latchi Delchev, a global mobility and immigration specialist for Boeing, called the guide “first-rate” and said the key strong point of the book is its “outstanding usability.” She said she highly recommends the book and notes that it “is helpful even to seasoned professionals, as it provides a level of detail which is not easily gained from daily case management.
Mireya Serra-Janer, head of European immigration for a multinational IT company, says she particularly likes “the fact that the [guide] focuses not just on each country’s immigration law itself but also addresses related matters such as tax and social security issues.” She noted that the India chapter “is particularly good. The immigration regulations in India have always been hard to understand. Having a clear explanation of the rules there helps us sort out many mobility challenges.’
This comprehensive guide is designed to be used by:
- Human resources professionals and in-house attorneys who need to instruct, understand, and liaise with immigration lawyers licensed in other countries;
- Business immigration attorneys who regularly work with multinational corporations and their employees and HR professionals; and
- Attorneys interested in expanding their practice to include global business immigration services.
- An overview of the immigration law requirements and procedures for over 20 countries;
- Practical information and tips for obtaining visas, work permits, resident status, naturalization, and other nonimmigrant and immigrant pathways to conducting business, investing, and working in those countries;
- A general overview of the appropriate options for a particular employee; and
- Information on how an employee can obtain and maintain authorization to work in a target country.
Each chapter follows a similar format, making it easy to compare practices and procedures from country to country. Useful links to additional resources and forms are included. Collected in this Practice Guide, the expertise of ABIL’s attorney members across the globe will serve as an ideal starting point in your research into global business immigration issues.
Order HERE. International customers who do not want to order through the bookstore can order through Nicole Hahn at (518) 487-3004 or [email protected].
ABIL on Twitter. The Alliance of Business Immigration Lawyers is now available on Twitter: @ABILImmigration. Recent ABIL member blogs are available on the ABIL Blog.
6. Member News
H. Ronald Klasko, Bernard Wolfsdorf, and Stephen Yale-Loehr will speak about the EB-5 immigrant investor program at the Invest in America Summit on March 22-23, 2014, at the Jing An Shangri-la Hotel in Shanghai, China.
Mr. Klasko recently published several blog entries. “Chinese EB-5 Quota Retrogression – Part 2” “FAQs on EB-5 Quota Backlog”
Cyrus Mehta has published a new blog entry. “DOL Policy on Laid-Off U.S. Workers for PERM Labor Certification Applications”
Mr. Yale-Loehr was quoted on February 25, 2014, in an article on USNews.com about deportations under the Obama administration. He noted that the executive branch has wider discretion than the White House admits with respect to deportations. He said that stopping deportations would be a political risk that the president doesn’t want to take. “He has wide legal authority, but you have to balance that against the will of the people and politically what you can get through Congress if you push your executive authority too far,” he said.
7. Government Agency Links
Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State’s latest Visa Bulletin with the most recent cut-off dates for visa numbers:
USCIS Service Center processing times online
Department of Labor processing times and information on backlogs
Department of State Visa Bulletin