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December 1, 2008

Headlines:

  • – The deadline for filing for H-1s for 2009-2010 is fast approaching. Read this article to help make decisions about whether to apply or not.
  • – Federal contractors and subcontractors will be required to begin using the E-Verify online work authorization verification system starting January 15, 2009.
  • – The final rule requires that employers submit a formal petition for temporary religious workers.
  • .
  • – Countries added include the Czech Republic, Estonia, Hungary, Latvia, Lithuania, the Republic of Korea, and the Slovak Republic.
  • – Law firms that represent both the employer and the employee, must do so carefully.
  • – Applicants who are not eligible for the federal skilled worker category may qualify under another category.
  • – The re-registration period is extended through December 30, 2008.
  • – Unreimbursed expenses incurred by guestworkers for a large forestry contractor may be recovered, a judge has found.

Also in this issue:

Details…

1.

It is anticipated that the H-1B numbers will be totally used by the 1st day of April, as they have been for the previous two years. This situation has created considerable angst among employers, as they must strategize what they will do.

Preparing and filing an H-1B petition has now been relegated to the function of a “preparatory step.” The REAL success is to have the petition drawn in the lottery. This year, as in the past two years, it is anticipated that many more petitions will be filed than the 65,000 numbers available. The USCIS will once again have a “lottery” that will choose the winning petitions. This means that many employers will be frustrated, having gone through the time, effort and expense of preparing and filing petitions, only to have them rejected by the USCIS. To make the matter worse, even though the petitions must be filed by April 1st, the foreign national will not be able to start employment under the H-1 (assuming that the petition is approved) until October 1st, 2009.

Difficult decisions have to be made as employers consider the alternatives:

  • Prepare and file the petitions – Hoping for the best. If this alternative is chosen, it should be chosen early on so that you are not caught up in the frantic last few days before April 1st.
  • Not file any petitions this year – Some employers have such a pent-up need this is not a viable alternative. Others do not have such a pressing need. They can sit back, let other employers go through the process, and “mine” talented individuals who are the successful beneficiaries of H-1B visas.
  • Consider off-shoring tasks. – Off-shoring is an unanticipated by-product of the limited H-1B cap. In appropriate situations, however, this is a very attractive alternative. If the necessary talent cannot be located or brought to the United States, then the task may be off-shored. This is not an alternative for every company, however, India, China and other countries are benefiting from the inability of employers to bring in needed talent.

There are a number of factors which tend to temper some of the harshness of the H-1B cap. One is that 20,000 extra numbers have been allocated for persons who have obtained master’s degrees from U.S. colleges and universities. Another one is that graduates of STEM disciplines (Science, Technology, Engineering and Math), have been given extended practical training times which will allow the employers to apply at least twice for H-1s. The government’s assumption is that if an employer does not succeed in the first go round, they very well may in the second go round, giving an employer “two bites of the apple.” Finally, non-profit organizations that are affiliated with a college or university may file for an H-1 and do not come under the H-1B cap.

In conclusion, employees are going to need to make a hard decision as to what their strategy for H-1Bs will be for the next year. IF this strategy is to file H-1B petitions, then attention should be given so that this is not a last minute situation putting pressure on employers and attorneys, alike, to file the proper forms and documentation and a timely manner.

2.

Many companies that contract with the federal government will be required to begin using U.S. Citizenship and Immigration Services’ (USCIS) E-Verify system starting January 15, 2009, to verify their employees’ eligibility to work legally in the United States. In a final rule, the Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council amended the Federal Acquisition Regulation (FAR) to reflect this change.

The new rule implements Executive Order 12989, as amended by President George W. Bush on June 6, 2008, directing federal agencies to require that federal contractors agree to electronically verify the employment eligibility of their employees. The amended Executive Order reinforces the policy, first announced in 1996, that the federal government does business only with companies that have a workforce that is authorized to work in the U.S. This new rule requires federal contractors to agree, through language inserted into their federal contracts, to use E-Verify to confirm the employment eligibility of all persons hired during a contract term, and to confirm the employment eligibility of federal contractors’ current employees who perform contract services for the federal government within the U.S.

Federal contracts awarded and solicitations issued after January 15, 2009, will include a clause committing government contractors to use E-Verify. The same clause will also be required in subcontracts over $3,000 for services or construction. Contracts exempt from this rule include those that are for less than $100,000 and those that are for commercially available off-the-shelf items. Companies awarded a contract with the federal government will be required to enroll in E-Verify within 30 days of the contract award date. They also will need to begin using the E-Verify system to confirm that all of their new hires and their employees directly working on federal contracts are authorized to work in the U.S.

The final rule reflects some changes from the proposed rule. The changes are intended to lighten the burden on small businesses that decide to accept federal contracts, and to provide contractors with flexible means of complying with the basic requirement that all persons working on federal contracts be electronically verified.

More than 92,000 employers currently use E-Verify, an Internet-based system operated by the DHS in partnership with the Social Security Administration that allows participating employers to verify the employment eligibility of their employees electronically. During fiscal year 2008, more than 6.6 million employment verification queries were run through the system, representing one out of every eight people hired in the U.S. Approximately 96.1 percent of all cases queried through E-Verify are found to be employment-authorized, and individuals who are not immediately cleared are given the opportunity to correct their records, USCIS said.

The final rule is available at
http://edocket.access.gpo.gov/
2008/pdf/E8-26904.pdf
.
A related USCIS announcement is available at
http://www.uscis.gov/files/
article/FAR_13Nov08.pdf.
A USCIS “frequently asked questions” sheet is available at
http://www.uscis.gov/files/
article/FAR_FAQ_13nov08.pdf.

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3.

U.S. Citizenship and Immigration Services (USCIS) announced that it has revised significantly the special immigrant and nonimmigrant (R-1) religious worker visa classification regulations. USCIS said the final rule “will ensure the integrity of the religious worker program by establishing a requirement that employers submit a formal petition for temporary religious workers, and by providing for increased inspections, evaluations, verifications, and compliance reviews of religious organizations.” The rule “also fulfills the recent Congressional mandate to issue final regulations to eliminate or reduce fraud in the religious worker program.”

Previously, foreign religious workers were able to request an R-1 religious worker visa at a consular post without any previous stateside review of the religious organization or job offer. The final rule will require individuals seeking to enter the U.S. through the nonimmigrant religious worker program to provide a consular officer an approved Form I-129, Petition for Alien Worker. Stateside review of the petition will allow USCIS to verify that the petitioner and the job offer are legitimate before the State Department issues a visa and admits the religious worker to the U.S.

Among other things, the rule also reduces the initial period of admission for a nonimmigrant from three years to a period of up to 30 months. USCIS said this will allow it an earlier opportunity to review whether the terms of the visa have been met before extending the nonimmigrant religious worker’s stay in the U.S. Religious workers will be allowed one extension of up to an additional 30 months.

The final rule was published in the Federal Register on November 26, 2008, and was effective the same day.
The full text of the final rule is available at
http://edocket.access.gpo.gov/
2008/pdf/E8-28225.pdf
.
A questions-and-answers sheet is available at
http://www.uscis.gov/files/
article/religious_work_faq_21nov08.pdf.
A related fact sheet is available at
http://www.uscis.gov/files/
article/religious_worker_factsheet_21nov08.pdf.
A policy memorandum on handling non-minister special immigrant religious worker petitions
affected by the October 1, 2008, sunset date is available at
http://www.uscis.gov
/files/nativedocuments/
SpecialImmigrantRWPetitionsOct1sunset91908.pdf.

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4.

Computer consulting firms are currently seeing an increase in H-1B Requests for Evidence and Denials. There are three prevailing reasons for this:

  • Questions as to whether the petitioner will be the actual “employer” of the foreign national;
  • Questions as to whether the position for the “employer” qualifies as an H-1B occupation; and,
  • Questions about whether the petitioner has a bona fide position by the ability to pay the foreign national’s salary.

The USCIS’ position is that the H-1B petitioner must document the existence of an employer/employee relationship, the specific placement, and the viability of the petitioner. Although most petitioning consulting firms have a strong history of meeting all USCIS criteria and, even though there is a reasonable expectation of employment, in many cases, the petitioners do not yet have contracts for the full three years of employment being requested on the H-1B petition.

Even where the consulting company has the responsibility for hiring, paying, firing, supervising, or otherwise controlling the work of an employee, USCIS has increasingly taken the position that consulting companies are not the employers, but rather the end user company. The USCIS has recently questioned and even denied petitions stating that there is, in fact, no employer/employee relationship between the petitioner and the beneficiary. The basis for the USCIS’ position is their conclusion that when a foreign national is assigned to a project at a third party’s site, the petitioner gives up day-to-day supervision of the individual’s work, leaving direction and supervision up to the end user. They conclude, therefore, that the petitioner is no longer the “employer” and, if not the employer, then it is not eligible to petition for the foreign national. Unfortunately, petitioners often do not respond with sufficient documentation to show continuing oversight and supervision.

Where the beneficiary is yet to be assigned to a project at a third party side, the USCIS finds the individual’s job duties are not known. And where the duties are not known, it cannot be shown that the position qualifies as a specialty occupation and as such is not a qualifying employment, according to USCIS.

Consulting firms make their income from placing their employees with companies that need the individual’s skills or expertise. Based on the fee charged for services, the petitioner anticipates sufficient income to pay the H-1B foreign national’s salary. The USCIS frowns on such an arrangement as “proof” that the petitioner will have sufficient income to pay the foreign national’s salary.

In a recent working group meeting between the USCIS and the American Immigration Lawyers Association (AILA), the USCIS confirmed their position regarding computer consulting firms and what the Service identifies as speculative employment. The USCIS stated “a reasonable expectation of employment is not stated in the regulations as satisfying the requirements for employment… The petitioner should not be submitting a petition for a beneficiary where the employment is speculative in nature.”

Computer consulting firms seeing an increase in RFEs and Denials are increasingly seeking out the expertise of our law firm. Litwin & Smith has been very successful in obtaining approvals for these anxious clients.

Donald Smith, Senior Associate Attorney at Litwin & Smith recently stated, “We have had a number of petitioning H-1B consulting firms coming to us where the USCIS has declared the beneficiary’s employment speculative in nature. We have been able to assist these clients with identifying documentation previously not submitted to establish the existence of an employer/ employee relationship, the specific placement, and the viability of the petitioner.”

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5.
Effective November 17, 2008, the Department of Homeland Security has added the Czech Republic, Estonia, Hungary, Latvia, Lithuania, the Republic of Korea, and the Slovak Republic to the list of countries authorized to participate in the Visa Waiver Program (VWP).

Citizens and eligible nationals of VWP countries may apply for admission at a U.S. port of entry as nonimmigrants for up to 90 days for business or pleasure without obtaining a nonimmigrant visa, provided that they are otherwise eligible for admission under applicable statutory and regulatory requirements. The designated countries in the VWP include Andorra, Australia, Austria, Belgium, Brunei, Denmark, Finland, France, Germany, Iceland, Ireland, Italy, Japan, Liechtenstein, Luxembourg, Monaco, the Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovenia, Spain, Sweden, Switzerland, and the United Kingdom (defined for VWP purposes as England, Scotland, Wales, Northern Ireland, the Channel Islands and the Isle of Man).

U.S. Customs and Border Protection (CBP) also announced on November 13, 2008, that beginning January 12, 2009, all VWP nonimmigrants traveling to the U.S. must obtain an approved travel authorization from the Department’s Electronic System for Travel Authorization (ESTA). To comply with ESTA, VWP travelers must provide electronically to CBP the information currently collected on the I-94W Nonimmigrant Alien Arrival/Departure (Form I-94W) through the CBP ESTA Web site and receive authorization to travel before embarking on travel to the U.S. The ESTA Web site is at https://esta.cbp.dhs.gov/esta/esta.html?
_flowExecutionKey=_cD88DB6C
B-CF0E-B36E-3AE3-4C453B4C
386E_k613ED908-DCC2-7541-9CD
A-5DB7BB3E0773
.

The final rule adding the VWP countries is available at
http://edocket.access.gpo.gov/2008/pdf/E8-27062.pdf.
The CBP notice about obtaining travel authorization is available at
http://edocket.access.gpo.gov/2008/pdf/E8-26997.pdf.

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6.

“Dual representation” is the principle where a lawyer or legal firm concurrently represents two potentially conflicting parties. In many immigration cases, those parties would be the employer and the employee. Litwin & Smith has a policy of dual representation.

Dual representation is a win-win. The employer has access to legal assistance in strategizing non-immigrant and immigrant petitions and applications, preparing the paperwork, etc. Employees have the ability to get questions answered by going directly to the lawyer. Employee’s direct access saves HR and other employer personnel the time spent in acting as go-betweens between the employees and the immigration law firm. Normally, the dual representation protocol works very well, since both the employer and the employees have the same common goals: approved visa petitions, approved permanent residence, etc.

Single representation firms that attempt to represent the employer or employee only do a disservice to both by not fully representing their shared interests.

Because dual representation law firms have the legal and ethical responsibility for maintaining the best interest of their clients, potential conflicts can arise which employers need to be aware of. For example, when an employer needs to downsize, they may call the immigration lawyer informing them of potential lay off. The “dual representation” lawyer must protect both their individual clients’ best interests. If the specific employee is identified, it is the legal obligation of the attorney to notify the employee, if the employer has not already done so, since the employee must take the necessary steps in order to find another job in order to continue to have income to support family, pay rent or mortgages, etc.

Because we want to give our employer clients the best advice possible, call us when you need any general information regarding foreign national employees. We are always eager to assist and give general advice. However, when you identify an individual to the law firm, one of two things must be done:

  • Either the employer has already notified, or will immediately, the employee of its intentions; or,
  • The law firm has the obligation to notify the foreign national.

While factors are overwhelmingly in favor of dual representation, we are always very watchful about infrequent “conflicts.”

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7.
Jason Kenney, Canada’s Minister of Citizenship, Immigration and Multiculturalism, announced on November 28, 2008, that retroactive to February 27, 2008, the “Action Plan for Faster Immigration” includes issuing instructions to visa officers reviewing new federal skilled worker applications to process those from candidates who:

  • include an offer of arranged employment; or
  • are from a foreign national living legally in Canada for one year as a temporary foreign worker or international student; or
  • are from a skilled worker who has at least one year of experience under one or more of the 38 occupations listed at
    http://www.cic.gc.ca/english/immigrate/eligibility.asp.

The list of 38 occupations was developed after consultations with the provinces and territories, business, labor, and other stakeholders. New federal skilled worker applications that do not meet the eligibility criteria outlined above will not be processed, and the application fee will be refunded. Citizenship and Immigration Canada (CIC) said in a statement that this effort, along with funds set aside in the 2008 budget to improve the immigration system, “will stop the backlog from growing and will start to draw it down.”

“The eligibility criteria apply only to new federal skilled worker applicants and will not affect Canada’s family reunification or refugee protection goals,” Minister Kenney said. He noted that applicants who are not eligible for the federal skilled worker category may qualify under another category, such as the Provincial Nominee Program, or as temporary foreign workers, which could then put them on a path to permanent residence through the new Canadian Experience Class.

“We expect new federal skilled worker applicants, including those with arranged employment, to receive a decision within six to 12 months compared with up to six years under the old system,” said Minister Kenney. “All other economic class applications—including applicants chosen by Quebec, provincial nominees, the Canadian Experience Class, and live-in caregivers—will continue to be given priority.”

All applications made before February 27, 2008, will be processed according to the rules that were in effect at that time.
CIC said that these changes “bring Canada in line with two of its main competitors for highly skilled labor: Australia and New Zealand. Both of these countries have eliminated their backlogs and have systems that deliver final decisions for economic applicants within a year.”

Canada plans to admit between 240,000 and 265,000 new permanent residents in 2009, Minister Kenney said, noting that the planned numbers are on par with last year and are among the highest for Canada during the past 15 years. The 2009 plan includes up to 156,600 immigrants in the economic category; 71,000 in the family category; and 37,400 in the humanitarian category.

Minister Kenney noted that “the recent steps this Government has taken to improve our immigration system will help ensure that Canada remains competitive internationally and responsive to labour market needs domestically.” Critics, however, expressed concerns that the new emphasis on skilled workers would create two classes of immigrants and that less-skilled workers would be at a disadvantage, and that doubling the number of temporary workers would depress wages. “It’s bad for the Canadian economy and it’s bad for [the temporary workers], because they cannot bring in their families and often are open to exploitation and abuse,” said New Democrat Olivia Chow.

CIC has expanded its web site. The site now includes a section for employers ( http://www.cic.gc.ca/english/e-services/employer-portal.asp) and a new interactive tool ( http://www.cic.gc.ca/cometocanada) that matches information provided by potential applicants with immigration programs.
The ministerial instructions are available at
http://www.cic.gc.ca
/english/department/media/
backgrounders/2008/2008-11-28a.asp .
A notice announcing the instructions is available at
http://www.cic.gc.ca/
english/department/media
/backgrounders/2008/2008-11-28.asp .
For more information on the new initiatives,
see http://www.cic.gc.ca/
english/department/
media/releases/2008/2008-11-28.asp .

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8.

U.S. Citizenship and Immigration Services (USCIS) has announced an extension to the re-registration period for nationals of Nicaragua and Honduras who have been granted temporary protected status (TPS) and are now eligible to re-register and maintain their status an additional 18 months. Initially, the 60-day re-registration period for nationals of Honduras and Nicaragua began October 1, 2008, and ended on December 1, 2008. The re-registration period is being extended through December 30, 2008, because of tropical storm activity in the region.

Additionally, USCIS has automatically extended the validity of employment authorization documents (EADs) for eligible Honduran and Nicaraguan TPS beneficiaries for 6 months, through July 5, 2009. USCIS said this is intended to allow sufficient time for eligible TPS beneficiaries to re-register and receive an EAD without any lapse in employment authorization.

The Department of Homeland Security (DHS) announced in October 2008 that the TPS designations of Honduras and Nicaragua were extended through July 5, 2010. The extension will make those who have already been granted TPS eligible to re-register and maintain their status for an additional 18 months.

Nicaraguan and Honduran TPS beneficiaries are strongly encouraged to apply as soon as possible within the registration period that now ends December 30, 2008.

The announcement is available at
http://www.uscis.gov/files/article/
tps_nicaragua_honduras_extend_21nov08).pdf.
USCIS published a related notice in the Federal Register on November 24, 2008, available at
http://edocket.access.gpo.gov/
2008/pdf/E8-27702.pdf
(Honduras) and
http://edocket.access.gpo.gov/
2008/pdf/E8-27703.pdf
(Nicaragua).

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9.

In a class action lawsuit, U.S. District Court Judge Clarence Cooper found that unreimbursed expenses incurred by guestworkers for a large forestry contractor, Eller and Sons Trees, Inc., of Franklin, Georgia, may be recovered and that actual damages sought by the workers may exceed $500,000. The employer had sought to cap the damages.

The named plaintiffs are three migrant farmworkers. Eller and Sons Trees provides forest reforestation (tree planting) and forestry services such as brush clearing, boundary marking, and chemical spraying. Most of its employees are engaged in tree planting, predominantly in the southern U.S. during the months of December, January, and February. Eller and Sons Trees cannot find enough employees in the U.S. to perform the work, the decision noted. As a result, most of the workers come from outside the U.S., with the vast majority coming from Guatemala, and others coming from Mexico, Honduras, and Colombia. Eller and Sons Trees obtains temporary seasonal employees through the H-2B visa program.

According to the SPLC, the court also found that the representations an employer makes to the government on H-2B visa applications, such as the total number of hours the employees will work per week, can be enforced by the workers even if they are unaware of what the employer reported to the government. This finding would hold an employer liable for a 40-hour work week promised on its application to federal government, even if the employer never made such an agreement with its workers, the SPLC noted. The judge in this case found that an employer cannot drive a worker’s pay below the minimum wage rate by deducting expenses for things that primarily benefit the employer. The court also found that the prevailing wage rate for the area, rather than the lower minimum wage rate, is protected from such deductions under this principle. The SPLC said that this is the first time such a decision has been reached in a contested case.

The judge found that the costs of passports, visas, and other travel costs not only drove the workers’ pay below the protected rate level but resulted in workers having “negative incomes” in their first week of work. The judge awarded $53,890 to the case’s plaintiffs for expenses that were not reimbursed during their first work week, citing the Fair Labor Standards Act. The SPLC believes that damages for the rest of the class, which the organization expects number into the thousands of workers, may reach into the millions of dollars.

The case records for Escolastico de Leon-Granados et al. v. Eller and Sons Trees, Inc., are available at
https://www.splcenter.org/.
The SPLC has filed a number of other guestworker lawsuits.

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State legislation on immigration. The “State Responses to Immigration” database contains all bills and resolutions related to immigrants or immigration that were considered by state legislators across the U.S. The database contains all immigration-related legislation for 2007. Data for 2008 and historic 2001-2006 data will be added in the coming months. The searchable database is classified by state, region, subject area, legislative type, and bill status. The database allows users to find out, for example, the status of enforcement initiatives introduced in their state, compare the number of bills regulating employment, or evaluate the passage rate of certain bills across the nation. The database assigns a bill’s status based on its status as of December 31 of the given year.

The database notes that in 2007, 1,059 immigration-related state bills and resolutions were introduced in state legislatures nationwide, of which only 167 (or 16 percent) were enacted into law. The vast majority of bills proposed in 2007 either expired (33 percent) or remained pending (45 percent) without any legislative resolution. The report is available at
http://www.migrationpolicy.org/
pubs/2007methodology.pdf
.

State Responses to Immigration
( http://www.migrationinformation.org/
datahub/statelaws_home.cfm
)
is a joint project of the Migration Policy Institute (MPI) and a research team at the New York University School of Law (NYU).

The Small Business Administration’s Office of Advocacy has published “Estimating the Contribution of Immigrant Business Owners to the U.S. Economy.” Among other things, the report finds that:

  • The total business income generated by immigrant business owners is $67 billion, representing 11.6 percent of all business income in the U.S.
  • Immigrants are nearly 30 percent more likely to start a business than are nonimmigrants, and they represent 16.7 percent of all new business owners in the United States
  • Immigrant business owners make significant contributions to business income, generating $67 billion of the $577 billion in U.S. business income, as estimated from 2000 U.S. Census data. They generate nearly one-quarter of all business income in California—nearly $20 billion—and nearly one-fifth of business income in New York, Florida, and New Jersey.
  • Immigrant business ownership is geographically concentrated in a few states. Nearly 30 percent of all business owners in California are immigrants, compared with about 12.5 percent of the population of U.S. business owners.
  • Immigrants own 11.2 percent of businesses with $100,000 or more in sales and 10.8 percent of businesses with employees.
  • Immigrants’ contributions differ across sectors of the economy. They own a large share—more than one-fifth—of businesses in the arts, entertainment, and recreation industry. They also contribute significantly to other services, transportation, and wholesale and retail trade.
  • Although business owners from Mexico constitute the largest share of immigrant business owners, total immigrant business ownership, formation, and income originate with immigrant business owners from around the world.

The report is available at
http://www.sba.gov/advo/research/rs334tot.pdf
.

The Department of Labor’s Office of Foreign Labor Certification released a fact sheet in October 2008 that offers selected statistics and highlights of PERM processing in fiscal year 2008.
See http://www.globallawcenters.com/pdfs/27006.pdf.

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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: https://egov.uscis.gov/cris/processTimesDisplayInit.do

Department of Labor processing times and information on backlogs:
http://www.foreignlaborcert.doleta.gov/

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