Greetings!
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Challa Law Offices Moved to a New Location
On February 26th 2010, we moved to our new location. Our phone and fax numbers are the same; however our new address is listed below. Please make a note for your records. With a larger facility and additional staff we are as ready as ever to serve you better.
New address:
5040 Sadler Place Suite 200
Glen Allen VA 23060
Phone 804 360 8482 and Fax 804 360 8483 |
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On your mark...get set..let's file some H-1B Petitions!
On March 9, 2010, the U.S. Citizenship and Immigration Services (USCIS) stated that it will begin accepting H-1B petitions subject to the fiscal year (FY) 2011 cap on April 1, 2010. Cases will be considered accepted on the date that USCIS takes possession of a properly filed petition with the correct fee; not the date that the petition is postmarked.
The two main issues for the H-1B filings subject to FY 2011 are:
1) iCert delays; and
2) H-1B January Memo
iCert
Labor Condition Applications (LCA) are now filed through the iCert program which can take 7-10 days for certification. Due to delays in receiving approved LCAs, take the proper precautions and start your H-1B process early so we can file your LCA promptly to avoid any undue iCert delays, which could prove to be detrimental to your filing. Please note that the "temporary fix" offered by USCIS that allowed in certain situations for filing of the H-1B petition without the certified LCA expired on March 9, 2010.
H-1B January Memo
On January 8, 2010, USCIS issued a memo on H-1B petitions and third party placements. There has been significant concern over the impact of this memo on H-1B holders and H-1B filings. This concern was increased with the January 11th expedited removal of a number of H-1B Indian nationals from Newark Airport. Many have suggested Customs and Border Patrol's actions were a result of an overzealous interpretation of the memo. Whatever their motivation, there has been no subsequent incident of mass removal similar to what occurred on January 11th. However, there have been anecdotal reports that Customs and Border Patrol are engaging in more critical questioning into the nature of H-1B employment of certain foreign nationals entering the US.
One point that is critical to understand is the text of the memo does not reflect significant change to USCIS policy; it outlines the types of documentation that is required to establish the employee-employer relationship. USCIS has since come out with an FAQ that confirms that their policy has not changed. Specifically, the memo provides guidance on what USCIS considers when determining if a petitioner, which places an H-1B employee at a third party site, is the true employer of the H-1B employee. The determining factor in establishing that the petitioner is the true employer is whether the petitioner has a right to control the employee. The memo provides a number of factors USCIS considers when determining right to control, such as the petitioner's ability to hire, fire, and pay the employee.
From the standpoint of USCIS, the memo has resulted in an increase in RFEs issued. Companies considering filing H-1B petitions must be thorough in their ability to document control of their employee. In addition, if the placement of the employee is at a third party worksite, the employer must establish a valid job offer. Such documentation can come in many forms and our office can assist you in establishing such a requirement. For upcoming filings, we highly recommend that you are able to provide:
EVIDENCE OF A VIABLE JOB OFFER-In other words, do you have H-1B work for this employee. The evidence you need to provide includes:
A. Contract between employer (your company) & middle client (if any)
B. Work order
C. Contract between middle client & end client whenever possible
D. An end client letter
EVIDENCE OF THE EMPLOYER AND EMPLOYEE RELATIONSHIP
"Right to Control"
The January 2010 memorandum discusses the types of evidence petitioners may provide to establish that an employer-employee relationship exists and will continue to exist with the beneficiary throughout the duration of the requested H-1B validity period. We have outlined some of the criteria addressed in the memorandum and also offered some suggestions for evidence that can be submitted to meet those requirements.
1) Supervisory Issues
a) Does the petitioner supervise the H-1B employee at the third party worksite?
b) If yes, then provide information relating to the manner of the supervision. For example, if the employer/petitioner has a team lead or project manager placed at the third party worksite, then you could submit one of more of the following as evidence:
i) Work order for the supervisor and his/her pay stub;
ii) Include the supervisor's information in the offer letter; and
iii) Organization chart outlining petitioner's organizational structure at the third party worksite.
c) Is the petitioner's supervisor located off site?
i) If yes, then provide information relating to the manner of the supervision. How is the work delegated?
(1) Are there weekly status meetings;
(2) Does the H-1B employee work on a project management software that connects them with the off site supervisor; and
(3) Does the off site supervisor have regular scheduled meetings with end client.
ii) How is the work delegated?
(1) Third party client (end client) communicates with the petitioner's off site supervisor and the supervisor then directs the H-1B employee; and
(2) How is the day to day supervision addressed?
2) Work Product and Equipment
a) Who provides tools or equipment needed to perform the duties:
i) Due to security concerns, most third party placement will not allow outside equipment to be used.
b) Does the beneficiary use the petitioner's proprietary information
c) Is the work product directly related to the petitioner's line of business
3) Monetary control
a) Does the petitioner pay the salary:
i) Include a copy of the W-4;
ii) Offer letter should also address salary and pay period.
b) Does the petitioner provide the employee benefits
i) Evidence of the benefits provided (i.e. health insurance, retirement);
ii) Offer letter may also outline benefits offered; and
iii) Employee handbook may discuss benefits in greater detail.
c) Does the petitioner claim the beneficiary for tax purposes
4) Who controls the employee and his or her work product?
a) Does the petitioner have the authority to hire and fire;
i) Employment agreement; and
ii) Employee handbook may also discuss termination policies.
b) Does the petitioner dictate the policy for vacation and sick leave;
i) Employee handbook; and
ii) Clear defined process between the petitioner and H-1B employee for requesting leave.
c) Does the petitioner evaluate the work-product of the beneficiary
Please note that no one factor is decisive and adjudicators will review the totality of the circumstances when making a determination as to whether the employer-employee relationship exists.
Although this may seem like an unfavorable H-1B playing field, USCIS continues to approve H-1B petitions, even with third party placements. To this end, our office can assist in proactively structuring a strong petition that takes into consideration the concerns of USCIS that were outlined above.
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Narrow Exception Allowing H-1B Petitions without Certified LCAs Set to Expire
A temporary U.S. Citizenship and Immigration Services (USCIS) policy that allows employers to file H-1B petitions without certified labor condition applications (LCAs) in limited circumstances will expire on March 4, 2010. Unless the policy is extended by the agency, employers with long-pending LCAs will need to wait for certification by the Department of Labor (DOL) before submitting H-1B petitions.
To address lengthy LCA processing times at DOL, USCIS announced late last year that it will temporarily accept an H-1B petition without a certified LCA if the LCA has been pending unresolved for at least seven calendar days. The policy has proven to be of very limited use to employers. It does not cover situations in which an LCA was denied and resubmitted - the most common source of LCA delays - unless the resubmitted LCA has been pending for seven calendar days or more. And if a long-pending LCA is ultimately denied, the H-1B petition would be denied and would need to be refiled once a certified LCA is eventually obtained.
USCIS has not yet announced whether the policy will be extended. Though LCA delays were expected to be addressed by March 4, they are still common, with DOL currently taking seven business days or more to process an LCA. Therefore, employers need to plan the timing of their H-1B cases carefully and submit LCAs for certification well in advance of an anticipated H-1B filing date
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USCIS Will Forward Form I-824s To LockBox Until March 31st
U.S. Citizenship and Immigration Services (USCIS) announced an addition to the recently posted filing instructions for the Application for Action on an Approved Application or Petition, Form I-824. The revised instructions include a note in the "Where to File" section, to clarify that applicants who are filing Form I-824 concurrently with another form, should mail their applications according to the filing instructions on the other form.
As a result, USCIS Service Centers have extended the period of time during which they will forward all Form I-824 applications to the Lockbox facility, until March 31, 2010. After March 31, 2010, the Service Centers will return any incorrectly filed Form I-824 applications with instructions to send the application to the correct location.
When filing Form I-824 at a USCIS Lockbox facility, applicants may elect to receive an email and/or text message notifying them that USCIS has accepted their application. To receive notification, applicants must complete an E-Notification of Application/Petition Acceptance (Form G-1145), and attach it to the first page of their application. |
TEMPORARY CLOSURE OF VISA APPLICATION CENTERS IN SOUTH INDIA
The visa application centers in Hyderabad, Cochin and Bangalore will be closed from 31 March to 5 April 2010 inclusive. The visa application center in Chennai will be closed from 1 to 5 April 2010 inclusive.
The closures are to enable the installation of a new IT system at the British Deputy High Commission in Chennai, as part of a global programme affecting all British High Commissions and Embassies.
The last date on which VFS will accept new applications in Hyderabad, Cochin and Bangalore is Tuesday 30 March. In Chennai, the last date for applications is Wednesday 31 March.
The visa application centers will re-open on Tuesday 6 April.
During this closure, customers will be able to collect their passports from the visa application centres from 0900 to 1000 only. Customers who intend to travel to the UK in April are advised to submit their visa applications as soon as possible. Please note that the UK Border Agency office in Chennai and the customer enquiry email addresses will also be closed from 2 to 6 April, after which the aim is to resume a normal visa service as quickly as possible.
Any further updates will be placed on the websites: www.vfs-uk-in.com and http://ukinindia.fco.gov.uk.
For general enquires customers may also call the VFS Global helpline: (080) 40084008. Calls are charged at local or STD rates depending on your location. This service will be available Monday to Friday between 08:00 and 17:00.
The UK Border Agency apologises in advance for any inconvenience these closures may cause. |
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Some Employers Report Petition Revocation Notices after USCIS Site Visits
According to recent reports, some employers have received a notice of intent to revoke (NOIR) a nonimmigrant visa petition some time after undergoing a worksite visit conducted by the fraud unit of U.S. Citizenship and Immigration Services (USCIS). These notices - which can be prompted by even minor changes in employment circumstances between the filing of a petition and a site visit - typically ask the employer to show ongoing compliance with the petition approval. Recent notices have been issued primarily in H-1B cases. As USCIS continues its site inspection program, more employers could receive these notices.
In recent months, USCIS's Fraud Detection and National Security (FDNS) unit has been conducting more frequent site visits of employers that have filed nonimmigrant visa petitions on behalf of foreign workers. The purpose of the visits is to verify the accuracy of the information in a specific petition. During a visit, an FDNS officer usually interviews a company representative and the foreign beneficiary, using a standard list of questions. The officer may also tour the premises and ask for employment or immigration records. After conducting a visit, the officer makes an internal report of his or her findings.
Most site visits are uneventful, but in some cases employment circumstances may have changed between the time the immigration petition was originally approved and the time a site visit takes place. For example, the employer may have changed locations or the foreign beneficiary of a petition may have resigned and moved to a new employer. If there appear to be differences between the information provided in an immigration petition and the circumstances that exist at the time of the FDNS site visit, USCIS can decide to reopen the case and issue a NOIR to examine whether the foreign national remains eligible for the nonimmigrant classification and whether both the employer and employee are complying with the terms of the immigration category.
USCIS plans to conduct as many as 25,000 FDNS site visits this fiscal year. Though only a small number of organizations have thus far reported notices of intent to revoke a petition after a site visit, employers could begin to see more NOIRs as site inspections become more frequent. |
Changes in K-3 Spousal Case Procedure
Pls note the U.S. Department of State (DOS) issued a notice regarding a change in processing procedures for K-3 visa cases. K-3 cases are filed for spouses of U.S. citizens. Effective February 1, 2010, if both the K-3 petition and required I-130 spousal petition approvals are transmitted to the National Visa Center (NVC), then the K-3 process will be discontinued by NVC. The NVC will process the I-130 immediate relative petition, only, so that the foreign national spouse will be able to enter the United States on an immigrant visa instead of the K-3 nonimmigrant visa. The stated reason is that the availability and need for the K-3 nonimmigrant visa ends if the I-130 petition has been approved.
K-3 Requires I-130 Filing
The K-3 nonimmigrant petition for the spouse of a U.S. citizen must be preceded by the filing of the I-130 immediate relative petition. There is no need to wait for a decision on the I-130, it must simply be filed. The K-3 case is filed using Form I-129F, as is the K-1 for fiancé/es. The purpose of the K-3 visa category was to provide a faster avenue for the immigration of spouses of U.S. citizens, if the foreign national resided abroad. Prior to the creation of the K-3 category, the only option was the I-130 petition for immediate relative. The processing times for I-130s, combined with the waiting times for interviews at the consulates, often left couples separated for more than a year. The K-3 processing was supposed to be much faster than the I-130, and, thus, was an attractive option for many couples in this situation.
Faster I-130 Processing Changes Landscape
In recent years, the processing times for I-130 petitions for immediate relatives has improved. Thus, the K-3 did not always provide a significant advantage over the I-130. Since there was variation and unpredictability in the processing time of the cases, however, many people continued to utilize the K-3 option.
New Procedure by NVC Effective February 1, 2010
Under the new procedure, in place as of February 1, 2010, the K-3 case will end at the NVC if the required I-130 approval has reached the NVC. That is, if the USCIS approves and transmits the I-130 to the NVC in advance of or at the same time of the I-129F K-3 petition approval, then the NVC will terminate the processing of the K-3 case. The NVC will proceed with the I-130 immediate relative case. After processing at the NVC, the case will be forwarded to the appropriate consulate for an interview. If the interview goes well, the spouse will be approved as an immediate relative after obtaining the immigrant visa stamp at the U.S. consulate abroad. The spouse then may enter the United States using the immigrant visa, and be admitted as a lawful permanent resident to the U.S. |
BRAZIL - New Procedures for In-Country Registrations
The Foreign Division of the Federal Police Department of São Paulo in Brazil has changed the registration procedures for work permit holders. In general, foreign nationals who will remain in Brazil for more than 90 days must register with the Federal Police within 30 days of entry. Foreign nationals holding work permits for employment in São Paulo must now schedule an appointment to register, using a password they can obtain from the Federal Police. Upon receiving the password, the foreign national will automatically receive instructions which will inform him or her of the date and time for the registration. On average, registration appointments are now occurring 35 days after the request. Priority services are no longer available.
Work permit holders are permitted to start working in Brazil before they complete the registration procedures. They are not permitted to travel outside Brazil, however, until registered. In addition, work permit holders cannot obtain Brazilian documents such as the CTPS (employment and social security booklet) or their RNE Card, the form of identification used by foreign nationals in Brazil, until their registration is complete. The 35-day wait for registration appointments will delay the issuance of these documents, which may delay the ability of employers to add work permit holders to Brazilian payrolls.
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SINGAPORE - Foreign Worker Levies to Gradually Increase Over the Next Three Years, Starting July 1, 2010
Beginning July 1, 2010, employers that sponsor "S" Pass and Work Permit holders will be required to pay increased monthly levies for their foreign employees. The levies will increase gradually in stages through July 1, 2012. By increasing the levies, Singapore's Ministry of Manpower (MOM) seeks to regulate the demand for "S" Pass and Work Permit holders and encourage hiring of local workers and foreign nationals with higher skills and qualifications.
The MOM also announced that it will increase monitoring and enforcement activities against employers that attempt to recover levies from their foreign workers, whether directly or indirectly. Employers that do so may face prosecution and may be prevented from hiring foreign workers.
"S" Pass
The MOM is introducing a new two-tier levy system for holders of "S" Passes, a type of employment pass for middle-level skilled foreign workers earning a basic salary of at least SGD1,800 a month. Employers will be required to classify their "S" Pass holders into two tiers: (i) a basic tier comprised of the "S" Pass holders that make up less than 20 percent of the employer's total workforce, and (ii) a second tier consisting of remaining "S" Pass workers that make up 20-25 percent of the company's total workforce. Note the "S" Pass quota limits the number of "S" Pass holders an employer can hire at 25 percent of the company's total workforce.
The monthly levy per "S" Pass holder will be raised from the current rate of SGD50 to SGD100 for the basic tier, while a new rate of SGD120 will be introduced for the second tier. These levy rates will be adjusted every six months until July 1, 2012, when the basic tier levy will reach a maximum of SGD150 while the second tier levy will reach a maximum of SGD250.
Work Permit
The new levy tiers and rates for Work Permits, a type of employment authorization for unskilled and semi-skilled foreign workers with a basic monthly salary of less than SGD1,800, will be based on the sponsoring employer's industry sector (e.g. manufacturing, services, or construction). The changes are very detailed, but in general, there will be a greater differentiation in levy rates between skilled and unskilled Work Permit holders.
Full details of the changes to the levy rates and tiers for "S" Passes and Work Permits are available on this mail attachment. The content of this alert is provided for informational purposes only.
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RUSSIA - Employers May Now Apply for Work Permits for 2010
Russian authorities recently released the 2010 work permit quota distributions for each region of the Russian Federation. The Russian government sets a national quota for the maximum number of available work permits each year, which are later allocated by region and occupation. Employers cannot file work permit applications on behalf of foreign workers until the allocation figures are released. Now that they have been, employers may now file work and employment permit applications and invitation letter applications for 2010.
Nationwide, the quota will be 1,944,356 for all types of work permits in 2010. This figure is based on Russian employers' reported needs for 2010. The number of work permits reserved for Moscow city is 250,000 overall. There is an additional 85,600 for the outlying Moscow region.
An additional 583,307 quota numbers will be held in reserve for all regions of Russia. The reserve quota may be made available to employers later in the year, at the discretion of Russian authorities |
UK Immigration statistics show immigration decline
The Home Office recently published quarterly immigration statistics on immigration and asylum. The immigration statistics cover the number of asylum applications, total removals of people who have been in the UK illegally and migration from Eastern Europe over the period October to December 2009. According to UK Immigration the immigration statistics show the following:
· Applications by Eastern Europeans to work in the UK under the Worker Registration Scheme fell to 28,495 in fourth quarter of 2009, compared to 30,600 in 2008 and 52,765 in 2007 in the same quarter of these years. UK Immigration says that immigration statistics show that immigration by Eastern Europeans from the 'A8' accession countries of the European Union has fallen.
· There has been a small reduction in overall immigration to the UK; Immigration was 518,000 in the year to June 2009 compared to 531,000 in the year to June 2008.
· The fourth quarter of 2009 saw a drop of thirty percent in the number of asylum applications compared to the same quarter in 2008. The number of asylum applications at 4,765 is according to the government is the smallest number of applications made in almost twenty years.
· Asylum cases are determined more quickly as decisions on asylum have gone up 36 percent compared to the same quarter in 2008. It also appears to be the case that it is now more difficult to claim asylum as only 13 per cent of applications are successful.
· UK Immigration says that as a result of fewer asylum applications being made the number of removals and voluntary departures from the UK has decreased slightly from 67,980 in 2008 to 64,750 in 2009.
· Immigration Minister Phil Woolas had the following to say:
'Asylum applications for the last three months of 2009 were the lowest since the early 1990s. Net migration is down, and the new UK Border Agency is increasingly successful.
'the border has never been stronger, as shown by the fall in the number of asylum applications.
'The new flexible points-based system also gives us greater control over those coming to work or study from outside Europe, ensuring that only those that Britain need can come.
'We are making the UK a more hostile place for illegal immigrants by issuing foreign nationals with ID cards, checking those who apply for visas against watch lists and fining those who employ illegal workers.' |
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Disclaimer
This newsletter has been prepared for general informational purposes only and does not constitute legal advice. No information included herein shall create an attorney/client relationship or constitute an invitation for such a relationship. This newsletter is not intended to be an advertisement. You should always seek professional, independent legal consultation before taking or refraining from any action. | |
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Sincerely,
Lakshmi Challa
Challa Law Offices
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Our New and Enhanced Website
You can now do the following on our improved website:
Schedule an appointment
Make a payment for your legal fees
Some features that have not changed include:
Our online case management systems, where employees and employers can check the status of a case online 24/7
Additionally, employers can still generate reports which facilitate tracking high-volume case status and progress, and provide an additional safeguard to ensure critical deadlines are met
Check out our website at www.challalaw.com |
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Don't Get Caught Off Guard by a DOL Audit
Challa Law Offices Offers Training: Employer's Obligations Under the H-1B Regulations. The four-part training session is offered to employers. Special features of the training include determining the "Required Wage Rate"; parameters of the LCA, ongoing employer obligations, maintaining public access and other records, and finally DOL enforcement and penalties. Contact us if you would like to learn more about the training sessions. | |
