Month: August 2008

by SCwpadmin SCwpadmin 8 Comments

New Option for Contractors with Public Contracts in Colorado

On May 13, 2008, the Colorado Legislature revised the Colorado Public Contractor Rule allowing contractors with public services contracts with the state, or political subdivisions within the state of Colorado, to choose between using E-Verify, or a newly created program through the Colorado Department of Labor, called the “Department Program.” Either of these programs can be used to verify that newly hired workers working on public service contracts are authorized to work.

The Department Program requires contractors to notify the Colorado Department of Labor that they will be participating in the program by completing a form that is available online for this purpose. Under the Department Program, the contractor must affirm within 20 days of hiring a new employee that the contractor has examined the legal work status of the new employee. The contractor must retain file copies of the documents required under Colorado law and not alter or falsify any of these documents. The contractor must then fill out an affirmation that must be notarized and submitted to the contracting state agency or political subdivision.

The affirmation and participation forms are available at http://www.coworkforce.com/LAB/pcs/. Once completed, the forms must be submitted to the contracting state agency or political subdivision.

by SCwpadmin SCwpadmin 6 Comments

New developments in the area of H-1B visas

Extensions beyond six years

USCIS has made it clear that if an individual is attempting to extend his/her H-1B status beyond six years based on the filing of a labor certification, the labor certification will expire unless an I-140 form is filed. Generally speaking, the filing of a labor certification prior to the expiration of five years of H-1B status will allow an individual to extend his/her H-1B status beyond six years. If the labor certification is approved, an I-140 must be filed within 180 days. If an I-140 is not filed during this time period, the labor certification can no longer be used to extend H-1B status.

If the H-1B beneficiary did not file a labor certification application prior to the end of the fifth year of H-1B status, an extension beyond six years can still be obtained if he or she has an approved I-140 and cannot file for adjustment of status due to a backlog in visa numbers. USCIS has announced that it will expedite I-140 applications under these circumstances.

On a related note, in order for a beneficiary to be eligible for I-485 portability, the underlying I-140 must be approved in addition to demonstrating that the adjustment of status application has been pending for more than six months.

Official termination

There has been a lot of activity in the area of what constitutes an official termination of an H1-B employee. At the annual AILA Conference in Vancouver, at a joint panel with USCIS and DOL, the statement was made that an official termination will not occur until the following four events occur:

– The employee is notified;
– USCIS is notified;
– The employer has made an offer to pay the beneficiary’s transportation to his/her home country; and
– The LCA has been withdrawn.

The requirement of withdrawing the LCA is a new development which is not supported by regulation or case law. In fact, there have been a number of recent cases on this point which do not mention the necessity of withdrawing the LCA. These cases also support our position that return transportation does not need to be paid. Rather, an offer to pay such transportation must be made to the employee. Our practice has always been to inform the employee that if he or she is leaving the United States on a permanent basis and can document his or her transportation costs, the employer will reimburse the H-1B beneficiary for those expenses. Recent case law supports this practice.

Our firm has revamped the way in which we assist employers in terminating H-1B status in order to be in full compliance with these developments.

by SCwpadmin SCwpadmin No Comments

E-Verify Mandatory for Federal Contractors

On June 6, 2008, President Bush issued an executive order mandating all federal government contractors to use E-Verify to verify employment eligibility for all newly hired and future employees that will be working in federal contracts. Employers are also to use E-Verify to verify the employment eligibility of all persons hired during the contract term and all persons performing work within the United States on the federal contract. Under the current E-Verify rules, you are not allowed to use E-Verify to screen current employees, but are required to re-verify employees who will be working on that federal contract. The federal government will be modifying the E-Verify system process to accommodate this new provision.

While states like Colorado have backed off of using E-Verify by creating alternative programs to verify work eligibility, the trend nationally is to make E-Verify mandatory. There are several bills in Congress including the Save Act which makes E-Verify mandatory for all employers across the United States. While this bill has not been enacted or signed into law at this time, it signifies the federal government’s push to get employees to use E-verify.

by SCwpadmin SCwpadmin 5 Comments

New developments in the PERM process

In recent pronouncements, the Department of Labor seems to be adopting the “testing the job market” approach to labor certification application. This approach has been advanced by immigration attorneys for many years.

There has been a great deal of publicity surrounding the issue of a law firm’s involvement in recruitment. The largest immigration firm in the country has been notified that all of its cases will be audited based upon an allegation that the law firm was involved in the recruitment process. This confirms our office’s practice of providing advice and checklists with respect to the recruitment process in general, but not being involved in the review of resumes and the determination of whether applicants are, or are not, qualified.

The Department of Labor will go live with a new version of the PERM application (9089) on January 1, 2009. This form has some positive elements to it. For example, the form can handle multiple work sites and eliminates the distinction between experience in the job offered and related experience. The form makes it clear that training and internships can be counted as experience, which is a good development. The form also creates a check off as to whether the employer will consider any reasonable combination of experience, education and training in determining if the applicants qualify for the position.

Our firm has always included this language in the labor certification form. Failure to include it can lead to a denial. The creation of a check off for this language will avoid these denials.

There has been an ongoing debate as to what constitutes “normal” in regards to the PERM question which asks if the minimum requirements set forth in the labor certification application are normal for the position. Many attorneys have taken the position that “normal” should be interpreted in a common sense fashion to represent normal practices on the part of the employer or in the industry. Other attorneys, including our firm, have interpreted the term “normal” to mean consistent with O-NET standards. The new form makes it clear that the latter perspective is consistent with the Department of Labor’s interpretation. Since this has been our firm’s practice since the creation of the PERM process, it will not require any change in how we handle labor certification applications.

Finally, the new 9089 form allows for substitute signatures, which will eliminate difficulties if the individual who authorized the application on the part of the employer is no longer affiliated with that company.

by SCwpadmin SCwpadmin No Comments

Electronic System for Travel Authorization (ESTA)

The Department of Homeland Security has created an internet-based travel authorization system to verify that people who are entering the United States on the Visa Waiver Program are pre-authorized to travel before they arrive in the United States. While the ESTA program will be pre-authorizing travel to the United States, it only authorizes a traveler to board a carrier to travel and is not designed to make a determination on a non-citizen’s admissibility to the United States. The information that is submitted through the ESTA program is the same information that is currently submitted on the I-94W form when a visa waiver applicant arrives in the United States.

The information that is submitted on the electronic application will be checked against all appropriate databases including lost and stolen passport databases and various government watch lists. An ESTA travel authorization will be good for two years, or until the individuals passport expires, whichever comes first. ESTA will have the capability to accommodate last-minute and/or emergency travel needs. ESTA will start on August 1, 2008 as a voluntary program. Using ESTA for travel pre-authorization will become mandatory as of January 12, 2009. The ESTA website is at http://www.cbp.gov/xp/cgov/travel/id_visa/esta/

Top