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| Your Trusted Immigration News Source |
May 2008, Vol. 1, Issue 4 | |
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GLG NEWS |
» Jerry Grzeca has been nominated for AILA's Board of Governors. Voting began May 16th and results will be announced at the AILA Annual Conference, June 25-28. Click here to view Jerry's campaign promo. » GLG is excited to announce four new hires! Emily Kasper and Elizabeth Hilt join GLG as Legal Assistants. Meagan Van Ahn joins as Executive Assistant. Rachel Studinski joins GLG as Law Clerk.
» Jerry Grzeca discussed the H-2B visa shortage in a Milwaukee Journal Sentinel article published on May 24th. Click to view the article.
» We're redesigning and retooling Grzecalaw.com. Stay tuned for updates!
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PRESENTATIONS |
» JUNE 25-28, 2008 - Vancouver, Canada AILA Annual Conference. Discussion Leader. Topic: Complex L-1 Issues
» July 10, 2008 - Wisconsin Bar Association Webcast, Introduction to Employment Based Immigration
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August 7, 2008 - Wisconsin Bar Association Webcast, Ensuring Compliance with Immigration Laws
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September 18, 2008 - Wisconsin Bar Association Webcast, Immigration Enforcement
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SPECIAL ANNOUNCEMENT
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If you've followed our coverage of the H-1B cap crisis, you know that U.S. Citizenship and Immigration Services (CIS) received nearly 163,000 H-1B petitions in 5 days, well exceeding the 65,000 cap.
We are pleased to announce that over 75% of cases filed by Grzeca Law Group in that filing period were accepted for processing!
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QUOTABLES |
"Every year, Congress shuts the door to hundreds of thousands of doctors, scientists, engineers, and artists from around the world who want to work here. It's the greatest case of national self-sabotage and attempted suicide I can imagine. If our country's future is going to be as great as our past, we have to start realizing that immigrants have always been - and always will be - one of our greatest economic and cultural assets."
- New York City Mayor Michael Bloomberg, in a commencement address at the University of Pennsylvania, May 22, 2008. | |
DRASTIC RISE IN PERM AUDITS
DOL Auditing an Alarming 45 percent of Applications
Department of Labor audits appear to be a new reality in the permanent residence process, as companies applying for permanent labor certification on behalf of their employees are experiencing a dramatic increase in the number of audits being issued relating to Applications for Permanent Labor Certification (PERM). The DOL is reportedly auditing 45 percent of PERM applications, including all applications submitted by Fragomen, Del Rey, Bernsen & Loeewy LLP, the nation's largest corporate immigration law firm. Find out more about this development and how to prepare for the different types of audits being issued. Read »
EMPLOYMENT VERIFICATION SYSTEM HAS MIXED SUPPORT
The Future is Hazy for e-Verify
While some lawmakers have touted e-Verify as the solution to U.S. illegal immigration, the employment verification program continues to run into roadblocks due to concerns about its accuracy and efficiency. Read what its critics are saying and how extending the program would affect employers. Read »
A PIECEMEAL APPROACH TO IMMIGRATION REFORM
Three Employment-Related Immigration Bills Introduced in late April
 Few expect Congress to act this year on any comprehensive immigration reform proposal, but lawmakers like Rep. Zoe Lofgren (right) are pushing a number of smaller employment- related immigration bills that call for increasing the number of available green cards and H-1B visas. Find out more about these bills and how businesses can be influential on important immigration issues. Read »
GOOD NEWS FOR CANADIAN AND MEXICAN WORKERS
New Proposal May Increase the Period of Stay for TN Workers
A new rule from U.S. Citizenship and Immigration Services (CIS) would make it more attractive for Canadian and Mexican professionals to work in the United States. On May 5th, the CIS announced the proposed rule which would increase the period of stay from one year to three years for individuals applying for a TN classification. Read »
CHANGE IN PROCEDURE FOR VISA APPLICANTS
 Nonimmigrant Visa Application Goes Electronic
PRACTICE TIPS
For H-1B Employee Transfers, Timing is Critical
While employers often know that an H-1B employee's status is transferable, or "portable" to another company, the
timing of the transfer is very important. Find out the qualifications for porting an H-1B employee and when it's right to do so. Read »
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DOL Auditing an Alarming 45 percent of Applications
 In recent months, companies applying for permanent labor certification on behalf of their employees
have experienced a dramatic increase in the number of audits being issued
related to Applications for Permanent Labor Certification (PERM).
On June 1, DOL consolidated all PERM processing in the Atlanta Processing Center. The move toward consolidation has coincided with an increase in the number of audits. The new reality in the permanent
residence process is that now 45% of all applications submitted for certification are
being audited.
In addition, you may have heard in the news, the DOL recently announced it will be auditing all labor certifications submitted by the nation's largest corporate immigration law firm, Fragomen, Del Rey, Bernsen & Loewy LLP. Click here to read the DOL press release.
In addition to a random
audit, the various reasons that audits are being issued is described
briefly below.
SVP Audit
As defined
by the DOL, Specific Vocational Preparation (SVP),
is the amount of lapsed time required by a typical worker to learn the
techniques, acquire the information, and develop the facility needed for
average performance in a specific job-worker situation. Each job classification has been assigned a
SVP level by the DOL and if the requirements for the position offered exceed
that level, the application will be audited asking the employer to prove the
"business necessity" of the "excessive" requirements. In many job classifications, requirements of
a Bachelor's Degree plus three years of experience or a Master's
Degree with one year of experience would be enough to trigger an audit.
Substantially Dissimilar Audit
In a review that was previously reserved for CIS, the
DOL is now auditing some cases where a foreign national gained some of the
experience necessary to qualify for the position offered with the petitioning
employer. The DOL audit then asks for
proof that the position is "substantially dissimilar" from the offered position.
Foreign Language Audit
The DOL presumptively assumes that if a position requires
fluency in any language other than English, it is "unduly restrictive" and not
a bona fide job opportunity for U.S. workers.
Therefore, the DOL will automatically issue an audit asking the company
to prove the business necessity of any foreign language requirement.
Bachelors Plus No Experience Audit
Based on the belief that it would be unusual that there are no available U.S. workers to meet a position's minimum requirements, the DOL now routinely audits labor certification applications for positions that merely require a bachelor's degree and no experience.
Combination of Duties Audit
If a position requires an usual combination of duties,
the DOL is likely to issue an audit to determine if it was a bona fide job
opportunity for U.S. workers.
Due to this drastic increase in audits being issued by
the DOL, Grzeca
Law Group works with employers in an effort
to manage any potential audits as part of the strategic planning for every
permanent residence case. Doing so helps to avoid these audits so that the permanent residence process can stay on track.
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While some lawmakers have touted e-Verify as the solution to
U.S. illegal
immigration, the employment verification program continues to run into roadblocks due
to concerns about its accuracy and efficiency.
Congress has until November of this year to extend e-Verify's pilot
program or to make the voluntary program mandatory.
E-Verify is an Internet-based system that allows employers
to confirm the legal working status of new hires by tapping into Social
Security Administration (SSA) and the Department of Homeland Security (DHS)
databases. Employers can log in and
enter information from a new employee's Form I-9. The program then compares the information
against more than 425 million SSA records and 60 million DHS immigration
records. Initial results are returned in 3-5 seconds. About 93 percent of numbers placed into the
system immediately come back verified.
The remaining need further adjudication by the DHS or SSA.
The voluntary pilot version of e-Verify is currently used by
only about 63,000 of the six million U.S.
businesses. And while participation in the program is
steadily increasing, some immigration advocates, business groups, and experts argue
that e-Verify relies on faulty databases that were never designed to be
immigration enforcement tools. They cite
a 2006 report by the SSA's inspector general that indicated a 4.1 percent error
rate in the agency's databases. With e-Verify
relying on these databases, it would mean that 1 in 25 new hires would not
receive an immediate match, or potentially inaccurate information.
Critics of e-Verify also suggest that making the program
mandatory to all six million U.S.
businesses would put a major strain on the SSA.
At a House panel meeting on May 6th, former Rep. Barbara
Konnelly and current president of the National Committee to Preserve Social
Security and Medicare pointed to the current 750,000-case backlog in SSA's
processing of disability claims.
"Verification does not belong in Social Security," said Konnelly.
With the pilot version of e-Verify expiring in November, members
of Congress will have to sort through the advantages and disadvantages of the
program and decide whether or not to extend the pilot or make it mandatory to all
employers. In January, a law was implemented
in Arizona requiring all of its companies
to run new employees through e-Verify. Under the law, companies that knowingly hire
illegal immigrants are subject to various penalties, including losing their
business licenses. A similar bill called
the SAVE Act, co-Sponsored by Rep. Heath Shuler (D-NC) and Rep Brian
Bilbray (R-CA), would mandate all U.S. companies to use
e-Verify within four years. Due to e-Verify's pitfalls, the American Immigration Lawyers Association is opposed to expanding the program is lobbying to combat the SAVE Act. Meanwhile, other
lawmakers are addressing the concerns about e-Verify by proposing employment
verification programs that would use sources other than the SSA to check
workers' eligibility.
While it is difficult to predict the future of e-Verify, it is important that employers are familiar with the program should
they be required to use it or a similar tool in the future. For more information, please contact our
office.
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Few expect Congress to act this year on any comprehensive
immigration reform proposal, but lawmakers are considering a number of smaller employment-related
immigration bills that call for increasing the number of available green cards
and H-1B visas.
In April, Rep. Zoe Lofgren (D-Calif.), who represents a
district based in the tech epicenter of Silicon Valley,
introduced two employment-based immigration bills aimed at helping U.S.
companies hire highly-skilled foreign workers.
She introduced a bill on April 23rd co-sponsored by Rep. Jim Sensenbrenner (R-WI) that would recapture employment-based
immigrant visas lost to bureaucratic delays.
The bill would also prevent losses of family- and employment-based immigrant
visas in the future. On April 29th,
Lofgren introduced a second bill that would eliminate the per country level for
employment-based immigrants and would end the spill-over of unused immigrant visa
numbers between employment-based and family-sponsored categories.
A third bill was introduced on April 29th by Rep.
Robert Wexler (D-FL) that would provide relief for the shortage of nurses in
the United States. It would allow the federal government to
issue additional green cards to immigrant nurses. The bill would also provide funding to train
domestic nurses.
Rep. Bruce Morrison (D-Conn.) is also working to increase
the number of workers in the U.S.
by seeking a measure that would help foreign nurses to stay in the
country. While Morrison supports the
recently introduced immigration bills, he is weary that a piecemeal approach to
comprehensive immigration reform will be just as challenging as the full swoop.
As a Director of the American Immigration Lawyers Association
(AILA) Board of Governors, Jerry Grzeca is committed to remaining engaged in advocating comprehensive
immigration reform. In addition to participating in a number of national conferences and seminars, Grzeca has been featured in area media discussing the problems facing the current immigration system. He also serves as the AILA liaison to Rep. Sensenbrenner's office.
Businesses are also
urged to be heard on important employment-related immigration issues. Visit AILA's Congressional Action and Information Center for more.
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Foreign nationals applying for U.S. visas abroad may soon have a new form to complete before their visit to U.S. Embassies and Consulates. The Department of State has recently announced that it will be phasing in a completely electronic Nonimmigrant Visa Application (DS-160) to replace the DS-156 and other application forms. The new visa form will collect more comprehensive biographical information from visa applicants than the previous forms.
The DS-156 is a form that collects basic information about visa applicants, such as their travel details, employment information, and visa history. Applicants complete the form online and e-mail a draft version of the form to our office for review. Once finalized, applicants submit the form online, but then must print and sign the form to submit a copy at the time of their visa interview. With the new DS-160, applicants can complete the form, edit it and submit it all online prior to their interview. No hard copy will need to be submitted at the time of the visa interview.
The new form DS-160 has already replaced the DS-156 for visa interviews at the U.S. Consulates in Monterrey and Nuevo Laredo, Mexico. The DS-160 is expected to be implemented at all other U.S. Embassies and Consulates in the coming years, with no specific roll out date for any particular post.
Because Embassies and Consulates often differ with respect to visa application procedures, it is strongly advised that employers contact our office well in advance of any foreign nationals traveling abroad and applying for a visa. Also, it is recommended that foreign nationals forward a draft version of the DS-156 or DS-160 to our office prior to submitting, so that we may ensure that the information is accurate and consistent with their other documentation.
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For H-1B Employee Transfers, Timing is Critical
While employers often know that an H-1B employee's status is transferable, or "portable" to another company, the timing of the transfer is very important. An H-1B employee can start working for a new employer as soon as that new employer files a "nonfrivolous" H-1B petition on the employee's behalf. However, the following conditions must apply: - The nonimmigrant was lawfully admitted to the U.S.;
- The nonfrivolous petition for new employment was filed before the end of the period of authorized stay;
- The nonimmigrant has not been employed without authorization since his or her lawful admission to the U.S., and before the filling of the nonfrivolous petition.
Complications may arise when an employee leaves employment with their original H-1B employer. Technically, when an H-1B nonimmigrant leaves employment, the H-1B status automatically lapses. Thus, it is important to time the transfer carefully and to make sure that the portability petition has been filed before the employee actually changes employers. The most conservative way to determine whether a valid portability petition has been filed is to await the receipt notice from U.S. Citizenship and Immigration Services (CIS). However, employers sometimes take a calculated risk and begin employment when the petition has been delivered to the CIS. This carries the greatest risk, because if the CIS does not properly receive the application, the employee would be working without proper authorization. Our firm has helped our clients to "port" numerous of H-1B employees. Any employer who is considering hiring an employee who has a valid H-1B should contact us to review the original petition and to further discuss timing the employee's transfer.
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Grzeca Law Group, SC is an AV-rated law firm dedicated to providing superior professional service to the international business community by advising corporate clients on all aspects of employment-related immigration law.
Immigration Update has been prepared by Grzeca Law Group, S.C. for informational purposes and does not constitute legal advice. This information is not intended to create, and receipt of it does not consitute, lawyer-client relationship. Readers should not act upon this information without seeking advice from professional advisors. | |
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