Today, USCIS published notice that it will expand premium processing of I-140 Petitions to H-1B holders that have already “H-ed” out. In the past, I-140 Premium Processing was only available for those who were within 60 days of the expiration of their 6th year and who did not qualify for the 1-year AC21 extension at section 106(a). It specifically excluded people who were forced to leave the US at the end of their 6th year in order to wait for I-140 approval in order to get an AC21 extension and return to the US in H-1B status. Now those people waiting outside of the US can premium process an I-140 (or upgrade a pending case) to obtain an approval and get a three-year extension of H-1B status under AC21 section 104(c). For more information, check out the government’s Press Release. http://www.uscis.gov/files/article/I-140_premium_24feb09.pdf
Archive for February, 2009
I-140 Premium Processing Expands
Tuesday, February 24th, 2009List of E-Verify Employers?
Friday, February 20th, 2009In a recent presentation to the international students at the University of Cincinnati, I was asked whether I could provide them with a list of employers participating in the E-Verify Program that they could use during their job search to find a potential “STEM extension” employer. To my knowledge, no such public list exists to date. However, I offered to research the topic and answer the student queries on our H-1b Blog.
My research has confirmed that there is no list of employers published by the US Government. However, there are a few search sites that claim to have a searchable list provided to the site by the US Government. One such site is www.smartbusinesspractices.com which is an anti-illegal immigration website designed to encourage/shame companies into signing up for the E-Verify program. As with any privately run website, especially one with a particular political platform, be cautious as you view the information because there are no guarantees as to the information’s authenticity.
However, to the students at UC and any others hoping to get a 17 month STEM extension, you may be able to use this website or any of the others to start your OPT job search. Just remember to double check with the company to ensure that they are in fact registered and that they continue to be a participating employer. If the company is not registered or withdrew from the program, then it will not be possible to claim a STEM extension through employment or through a job offer with that company.
If I lose my H1b job, am I out of status?- VSC clarifies
Thursday, February 19th, 2009The American Immigration Lawyers Association (AILA) has received clarification from the Vermont Service Center on whether an H-1B employee’s status is terminated when the petition has been revoked, particularly in AC21 portability situations. Generally, the USCIS’ stance is that an H-1B employee’s status terminates as of the date the employment ceases or the date the petition is revoked, whichever is later. The USCIS’ position on how this rule applies to AC21 portability scenarios is as follows: If the beneficiary ports to a new employer and accepts employment with that new employer upon the filing of a new petition, prior to the revocation of the H-1B petition filed by his or her former employer, then the beneficiary will be in an “authorized period of stay” while the newly filed petition is pending (allowing the alien to avoid accruing unlawful presence), but it does NOT extend the alien’s period of authorized status . In other words, provided the Alien has joined the new employer upon the filing of the H-1B petition, the fact that the initial employer then revokes their H-1B petition does not impact the Alien’s period of stay. The Alien’s status, however, will not be extended until the new petition is approved.
Further, in cases where the Alien has lost their job and only joins a new employer after a period of time, the USCIS has clarified that technically that Alien is out of status the day after their job is lost. However, practically speaking the USCIS has been known to overlook short gaps of time in between jobs. For more information, please contact your HLG attorney.
The Stimulus Bill does NOT contain a ban on H-1b’s.
Wednesday, February 18th, 2009There is a ton of misinformation out there. For example, SiliconIndia is reporting that some kind of ban has been passed, or will be passed, or might have been passed – it does not provide any details. The truth is that the restrictions included in the bill only pertain to institutions which have received bail out money. The restrictions only apply to new hires. Existing H-1b employees are unaffected. Plus, the provision is only slated to last for 2 years from the date the bill is signed into law. Is it based on good policy or a sound analysis of the impact of foreign workers? No – but it’s not a ban either.
Still waiting on that EAD?
Tuesday, February 17th, 2009USCIS has issued a new memorandum which clarifies the 90 day processing rule. In general, regulations dictate that an application for employment authorization must be processed within 90 days. If an RFE is issued, however, that 90 clock starts again once the reply is received. In other words if 89 days have passed before the reply to the RFE is received by USCIS, they can legally take another 90 days from the date the reply is received to finish processing the EAD.
Vision Systems indictment: 11 arrests, $7.4 Million
Monday, February 16th, 2009By Sherry Neal
The latest immigration enforcement effort by the U.S. Immigration and Customs Enforcement has resulted in the arrest of 11 individuals on visa and mail fraud. A New Jersey corporation, Vision Systems Group (VSG), was also indicted on charges of conspiracy and mail fraud along with a Notice of Forfeiture seeking forfeiture of $7.4 million from proceeds derived from the offenses. The government used information from immigration filings and tax filings to combine for a charge of conspiracy. No lawyer or law firm was mentioned in the indictment begging the question of who is VSG’s counsel or if they even had one. The 28 page indictment alleges that:
1. VSG filed LCA’s (Labor Condition Applications) and applications for permanent employment certification (ETA 9089 and the previous version, ETA 750) containing prevailing wages for a location other than where the employees would actually be employed.
2. VSG then tried to conceal it by filing tax wage reports to support the location listed on the immigration filings, rather than the actual work locations.
3. The government also used the immigration filings to support a charge for mail fraud.
It remains to be seen whether VSG was legitimately placing workers at other locations pursuant to the short-term placement rules under the Department of Labor’s H-1b Regulations or whether the company filed new LCA’s (and amended H-1b petitions) to cover the new worksite.
The government presented evidence to the grand jury that eight VSG’s Applications for permanent residence listed the employer’s address and employee’s residential address in Iowa and contained Notice of Job Opportunity (commonly referred to as “internal posting”) and job advertisements for Iowa whereas the employees worked at other locations. VSG’s best possible defense is if it was adhering to the long-standing Department of Labor “roving employee” interpretation. The roving employee interpretation allows the internal posting and prevailing wage analysis to be done at the company’s corporate headquarters if the employer has “roving employees” who work at different locations.
The Department of Homeland Security pooled the resources of several agencies to investigate this allegation of conspiracy and fraud: U.S. Citizenship and Immigration Services’ Fraud Detection and National Security Division (FDNS); U.S. Department of Labor’s Office of Inspector General; U.S. Postal Inspection Service (USPIS); U.S. Department of State; and the Social Security Administration’s Office of the Inspector General.
For information on LCA requirements, see the following Hammond Law Group publications:
Common Labor Condition Application Violations in the H-1b Context
www.hammondlawfirm.com/monthly/Feature_Article/november_featured_article2007.pdf
More than Just a Suitcase! Legal Requirements when Moving an Employee to a New Location
www.hammondlawfirm.com/monthly/Feature_Article/More_Than_Suitcase.pdf
To Amend an H-1b or Not?
www.hammondlawfirm.com/monthly/Feature_Article/bim_featured_article_may_2007.pdf
An Analysis of the USCIS H-1b Benefit Fraud and Compliance Assessment
www.hammondlawfirm.com/monthly/business-immigration-monthly-november-2008.htm.
Harvard Business School Studies the H-1B visa
Saturday, February 14th, 2009A recent academic paper by Harvard Business School quantifies the impact of changes in H-1B admission levels on the pace and character of US invention over the 1995-2006 period. The paper recognizes that although the link between innovation and immigration appears tenuous at first, the link is real and central to the US’ ability to innovate and commercialize.
DOL Current Processing Times
Friday, February 13th, 2009Ever wonder what’s going on with your PERM case? DOL finally updated processing times during a recent stakeholders meeting with AILA:
Clean cases (non-audited cases) filed on or before June 2008 are being processed.
Audited cases filed on or before August 2007 are being processed.
Denied cases that were subsequently appealed are being processed according to the original filing date. They are currently working on appealed cases filed on or before April 2007.
One gem that DOL did release is that when the new PERM system is implemented (ETA July 1, 2009), there will be a login mechanism for employees to check the status of their labor certification case. Stay tuned for more!
Some Canadians vocal in their support for stronger bilaterial links with the US
Friday, February 13th, 2009The Economist is reporting that a growing number of powerful Canadians are becoming increasingly vocal in their support of a strong bilateral trade structure with Washington rather than the trilateral arrangement created by NAFTA. Certainly the size of the US economy relative to that of Mexico’s or Canada’s has always made NAFTA somewhat of an anomaly as far as trade agreements go, i.e., Mercosur, or even the EU; but it has worked so far.
Sanders/Grassley amendment fueled by bad AP reporting.
Wednesday, February 11th, 2009The National Foundation for American Policy has looked behind the numbers cited by the Associated Press and found that the financial institutions targeted by the Sanders/Grassley amendment used far fewer H-1(b)’s than the AP reported. In its report, the NFAP gives the example of Bank of America which “…employed 210,000 people in 2007 and received petitions for 66 new H-1B visa holders, representing 0.03 percent of its workforce. “