Hello and welcome to the June 2011 Immigration Newsletter!
Many interesting and crucial changes have taken place this month. We continue to monitor all developments that could affect the both prospective employees and employers. Let’s take a look at some of the most important news this month.
USCIS published a new edition of the M-274, Handbook for Employers, which provides instructions on completing the Form I-9 or the employment eligibility verification process. The new edition, dated June 1, 2011, revises and expands the previous version to give detailed directions on how to fill out the I-9 correctly. Some of the changes include instructions on how to identify valid employment authorization for those in Temporary Protected Status, detailed instructions on how to fill out the I-9 for those in J-1, F-1 or M-1 status, explanation and instructions regarding F-1 students who file an H-1B petition and are utilizing cap-gap and detailed explanation and discussion regarding those who have extensions of status pending and those utilizing H-1B portability when changing employers.
Welcome news for Indian and Chinese nationals came by way of the release of the July Visa Bulletin earlier this month. The July Bulletin saw significant advancement for Indian and Chinese nationals in the Employment Based Second Preference Category (“EB-2”). Using unused numbers from the severely under-utilize First Preference Category and unused numbers from EB-2 for all other chargeabilities. The DOS was able to move EB-2 numbers for Indians and Chinese nationals by almost 5 months. Further movement is anticipated and eagerly awaited.
The month of June also marks the introduction of several immigration reform bills. One of them is, HR 216, the Immigration Driving Entrepreneurship in America (IDEA) Act of 2011. It was introduced by Rep. Zoe Lofgren (D-CA) on June 15, 2011 and contains provisions that would allow professionals with advanced degrees in Science, Technology, Engineering and Math (STEM) and investors who would create U.S. jobs to obtain expedited green cards. On the other hand, however, the bill also proposes to place new, possibly severe, restrictions on employers hiring H-1B professionals and L-1 intracompany transferees. The bill proposes the creation of a new Employment Based First Preference (EB-1) category for individuals who have advanced degrees in the STEM subjects, have a job offer from a U.S. employer and are offered a wage at or above the prevailing wage. Individuals in this category as well as “Outstanding Researchers” would also no longer be subject to any numerical limitations.
In terms of the nonimmigrant categories the IDEA Act, for example, would require employers to conduct recruitment before filing an H-1B petition unless the employer could prove that they are a recruiter that has a track record of hiring U.S. workers and pays at least Level 2 wages. IDEA, in its current form, would increase the Department of Labor’s regulatory authority, requiring that at least five percent of H-1B petitions be audited. Also, the total H-1B eligibility period would be limited to three years unless the green card process is started. L-1 employers would also be required to pay at least the prevailing wage under IDEA if the L-1 employee remains in the U.S. for more than eighteen months over a three year period. IDEA would also give DOL the same authority to investigate and audit L-1 employers as they do H-1B employers.
As the bill is still in the early stages of the process, changes can be expected. It is safe to say, however, that the Bill in its present form, while creating great options and advancement in the green card categories for advanced degree professionals will also create severe restrictions on an employer’s ability to hire temporary foreign professional workers. A summary of some of the other proposals made in the bill are as follows:
- Backlog Reduction: Recapture unused employment- and family-based visa numbers going back as far as 1992 to reduce the backlog. Spouses and minors would be exempt from numerical limits and per-country limits would be eliminated.
- PERM Filing Fee: Enact a filing fee ($295) for labor certifications. The DOL would be required to adjudicate labor certifications within 120 days or 180 days in the case of an audit. A form of premium processing would be offered for an additional fee ($1,000) where DOL must adjudicate the application within 30 days or 60 days for an audited case.
- “Established U.S. Recruiter”: Employers who consistently employ a workforce that is made up of 80% U.S. workers and meet other eligibility requirements are designated as an “established U.S. recruiter.” In addition to some streamlined recruitment requirements, these employers could permanently retain qualified foreign nationals by proving there are not “equally qualified” U.S. workers. This is a significant department from minimally qualified U.S. workers. This distinction means that an employer can eliminate U.S. applicants that are not equally qualified as a highly valued foreign national.
- EB-5 Regional Center: The Regional Center “pilot” program becomes permanent. Among other changes, the bill introduces the idea of “full-time equivalence”- a method to allow employer/investors to include part-time employees in the minimum employment creation requirements.
- EB-6 “Immigrant Entrepreneurs”: Creation of a new employment based category, EB-6, for immigrant entrepreneurs establishing start-up businesses that demonstrate the creation of U.S. jobs. There would be no numerical limitations for this category.
- F-1 and Dual Intent: Dual Intent, currently available for H-1B and L-1 workers, is extended to F-1 students.
- F-1/L-1 Status Extension: The ability to continue to extend status as long as a green card application is pending, currently available to H-1B workers, is extended to F-1 and L-1 status holders.
- High-Volume Filers: Employers who are high-volume filers could be pre-certified and become a “trusted employer”, as proposed by the American Council on International Personnel (ACIP).
- Premium Processing Expansion: Premium Processing is expanded to all employment based petitions and applications including administrative appeals.
- 3-Level Prevailing Wage System: Eliminate the lowest wage level, creating a 3-level wage system. This would adjust wages upward.
On the other end of the immigration spectrum, namely enforcement, Judiciary Committee Chairman Lamar Smith (R-TX) introduced the Legal Workforce Act. The bill would make an “E-verify” type system mandatory for practically all employers and would be phased in based on the size of the business. Civil and criminal penalties for knowingly hiring unauthorized workers and for employment verification paperwork errors would increase. The bill also provides for improving methods to protect workers against identity theft and fraud.
While the bill would be welcome news for employers as it would mean an escape from the patchwork of state verification laws that are currently in existence and are being enacted, it would also significantly increase penalties for simple paperwork errors, not just penalties for knowingly hiring unauthorized workers.
Other Developments in Immigration Law:
USCIS and Mississippi Implement New E-Verify Tool to Combat Fraud
USCIS launched Records and Information from DMVs for E-Verify (RIDE), a new feature which allows USCIS’s E-Verify program to validate the authenticity of Mississippi driver’s licenses used by employees as Form I-9 identity documents.
DOS Temporary Suspends Certain J-1 Exchange Visitor Program Requirement For Libyan Students
DOS is temporarily suspending the application of certain requirements governing program status and on-campus and off-campus employment for J-1 Libyan students. This action is necessary to mitigate the adverse impact upon these students due to political turmoil in their home country. This action is will take effective and remain in effect until December 31, 2011.
Immigration Articles and Other Fun Stuff:
Check out our In Focus section for this month, titled ‘Being a Permanent US Resident – How to maintain your Status?’ is a must read if you are a Lawful Permanent Resident (Green Card holder) in US or are intending to apply for one. The article reveals you the importance of being a Permanents Resident of US and also explains you why and how important it is to maintain your Permanent Resident Status in the US. You can’t afford to miss this article, friends. Every month we introduce a new and interesting question for our opinion poll. Last month’s poll results indicate that 64.71% of the respondents agree to the immigration experts’ belief that H-1B visas for FY2012 will remain available till this year end. We appreciate that people take interest in the opinion question and cast their vote to give us their feedback. Keep it up! And continue to cast your vote to express Your Opinion.
We congratulate Nathan Joe for winning last month’s Immigration Quiz. Again, we received a significant number of responses from our readers, who talked about various solutions to support their position, but Nathan Joe gave the correct answer and won a free online consultation to discuss the concerned Immigration issues. So it’s time to get ready for this month’s quiz. If you know the correct answer your name might be featured in next month’s newsletter. All the Best!!!
See you next month with a lot more noise from the Immigration World!