Immigration Blog

by SCwpadmin SCwpadmin 58 Comments

Rumor Regarding Publication of Labor Certification Substitution Rule

A rumor has been traveling around immigration circles that the Department of Labor will soon publish its final rule on substituting beneficiaries in labor certification applications. The proposed rule was promulgated on February 13, 2006 and, apparently, on January 26, 2007, DOL submitted the final version of the rule to the Office of Management and Budget. It is anticipated that it will take at least 90 days for OMB to take action on this rule, and it could require further steps before the rule is approved. No one is certain about the contents of the rule but it is widely believed that the rule will eliminate labor certification substitutions. Therefore, any company considering such a substitution should do so in the near future.

On a related note, the Department of Labor has proposed, for the first time, charging a fee for filing a labor certification application.

by SCwpadmin SCwpadmin No Comments

Charity That Reaches To Malawi, Africa

In 2006, Stern Elkind & Curray’s annual auction for charity reached across the world to help children at the Sisters of Charity orphanage in Malawi, Africa.

The firm raised more than $3,000 to purchase formula, medicine, clothing, shoes and school supplies for the orphanage, discovered by paralegal, Mary Connin while on sabbatical. Read more about Mary’s adventure in the African countryside below.

My two month sabbatical was fast approaching and I wanted to make such a generous gift of time memorable. I decided to go visit my girlfriend and her family in Lilongwe, Malawi, Africa. My friend’s husband had been appointed U.S. Ambassador to Malawi, so even though it was a trip to Africa, I knew I would be traveling in style.

My friend and I went on safari, stayed in beautiful safari lodges, witnessed the spectacle of herds of hundreds of elephants in their natural habitat, visited the indescribable Victoria Falls in Zambia, actually contemplated bungee jumping off the bridge over the Zambezi River between Zambia and Zimbabwe (maturity prevailed), and maneuvered through the rather hands-on immigration processes of Malawi, Zambia, and Botswana.

The most interesting part of my trip, though, was to observe day-to-day life in Lilongwe. As part of her duties as the ambassador’s wife, my friend is on a committee that donates food, money and supplies to an orphanage in Lilongwe ran by the Missionaries of Charity, Mother Theresa’s Order. What a treat it was to visit the orphanage! I must say I was nervous, not knowing what to expect. But the children were delightful! Well behaved, sweet, playful, curious, and enthralled by the simplest things. The ice in our cooler was a huge, huge hit.

On the day we visited, the orphanage had about 35 children living there. My friend tells me the orphan population can be as high as 50 or 60 children, ranging in age from newborn to about 12. When I was there, there were cribs with 7 babies under the age of 6 months in a small room set aside for a nursery. The nuns are totally dependent on donations for everything, and my friend has at times received phone calls from the nuns simply desperate for supplies.

Since my sabbatical was indeed so memorable, shortly after my return to work I got to be the entertainment at one of our staff meetings. I showed my pictures and told my stories. The pictures of the children in the orphanage are compelling, that the staff voted to name the orphanage to be our 2006 charity. We have raised more than $3,000 to buy a lot of necessities. We have already sent two boxes of clothes to my friend, who will deliver them to the orphanage, and we are in the process of purchasing diapers (cloth diapers only in Africa!), rubber pants, diaper pins, formula, schools supplies, ointments and lotions, and toys.

These children live in extreme poverty, and I am extremely proud that the items we will send will have a direct and immediate impact on their day-to-day lives.

– Mary Connin

by SCwpadmin SCwpadmin 101 Comments

List of Acceptable Documents

LIST A
Documents that establish both identity and employment eligibility

  • U.S. Passport (unexpired or expired)
  • Unexpired foreign passport with I-551 stamp or attached Form I-94 indicating unexpired employment authorization
  • Permanent Resident Card or Alien Registration Receipt Card with photograph (Form I-151 or I-551)
  • Unexpired Temporary Resident Card (Form I-688)
  • Unexpired Employment Authorization Card (Form I-688A)
  • Unexpired Employment Authorization Document issued by DHS that contains a photograph (Form I-668B)

LIST B
Documents that establish identity

  • Driver’s license or ID card issued by a state or outlying possession of the United States provided it contains a photograph or information such as name, date of birth, gender, height, eye color and address
  • ID card issued by federal, state or local government agencies or entities, provided it contains a photograph or information such as name, date of birth, gender, height, eye color and address
  • School ID card with a photograph
  • Voter’s registration card
  • U.S. Military card or draft record
  • Military dependent’s ID card
  • U.S. Coast Guard Merchant Mariner Card
  • Native American tribal document
  • Driver’s license issued by a Canadian government authority

For persons under age 18 who are unable to present a document listed above:

  • School record or report card
  • Clinic, doctor or hospital record
  • Day-care or nursery school record

LIST C
Documents that establish employment eligibility

  • U.S. social security card issued by the Social Security Administration (other than a card stating it is not valid for employment)
  • Certification of Birth Abroad issued by the Department of State (Form FS-545 or Form DS-1350)
  • Original or certified copy of a birth certificate issued by a state, county, municipal authority or outlying possession of the United States bearing an official seal
  • Native American tribal document
  • U.S. Citizen ID Card (Form I-197)
  • ID Card for the use of Resident Citizen in the United States (Form I-179)
  • Unexpired employment authorization document issued by DHS (other than those listed under List A)
by SCwpadmin SCwpadmin 3,247 Comments

U.S. Economy Needs Skilled Foreign Workers

The recent debate over immigration policy commonly depicts immigrants as undocumented, uneducated people who flood our borders without inspection.

Although many immigrants who enter this country are unskilled laborers who provide essential services in many sectors of our economy, of equal importance to the immigration debate are the highly educated foreign professionals whose skills play a vital role in the enrichment of our economy.

The U.S. economy has shifted significantly over the past 50 years. We are no longer the blue collar nation that we once were. The transformation from a manufacturing to a knowledge-based economy has created a growing demand for skilled technical workers. This demand has been accompanied by a decline in the number of native-born students seeking degrees in the fields of science engineering and technology.

Our prestigious graduate institutions currently train more foreign nationals than U.S. citizens in these fields. To alleviate labor shortages, U.S. businesses must be able to recruit and hire additional foreign-born professionals.

We must retain the educated professionals who we have trained internally in order to benefit from the unique skills that they possess. By sending the best and the brightest workers back to their respective countries, we only create competition for ourselves, thereby diminishing America’s economic clout.

In order to increase the number of highly skilled professional in this country, it is necessary to reform the employment based-immigration system and provide a sufficient amount of avenues though which U.S. businesses can legally employ specialized workers. We must increase the number of specialized worker visas awarded.

H-1B visas, or temporary skilled worker visas, are currently capped at 65,000 annually. Yet this “cap” is reached in a couple of months, and U.S. businesses are barred from hiring foreign-born professionals for the remainder of the fiscal year.

At the same time, we must increase recruitment and training of U.S. students. H-1B visas accelerate this process; a hefty portion of the processing fees for the H-1B visas are directed to the education and training of U.S. students in science and technology.

It is important that skilled workers are not overlooked in the current debate regarding comprehensive immigration reform. Raising the H-1B visa cap is vital to maintaining our leadership in the world market. By retaining foreign nationals, we may ensure that U.S. businesses have the most highly qualified workers in their fields, helping America maintain its edge in an increasingly competitive global economy.

by SCwpadmin SCwpadmin No Comments

H-4 and L-2 Time De-Coupled From H-1B and L-1 Time

USCIS has recently clarified that any time spent in H-4 status will not count against the six-year maximum period of admission applicable to H-1B aliens. Thus, an alien who was previously an H-4 dependent and subsequently becomes an H-1B principal will be entitled to the maximum period of stay applicable to the classification.

USCIS finds this approach most consistent with the statutory framework, which allows eligible aliens to obtain a full six-year admission period as an H-1B alien. Further, from a policy perspective, this interpretation promotes family unity by affording each qualified spouse the opportunity to spend six-years in H-1B status while allowing the other spouse to remain as an H-4 dependent and without undermining the Congressional intent to limit a principal alien’s ability to work in a specialty occupation for six-year maximum period.

For example, a husband and wife who come to the United States as a principal H-1B and dependent H-4 spouse may maintain status for six years, and then change status to H-4 and H-1B respectively. Note that, upon the switch, the new “principal alien” would be subject to the H-1B cap if not independently exempt. USCIS will consider, in the context of any applications for change of status from H-4 to H-1B, whether the H-4 alien complied with the requirements of accompanying or joining the H-1B alien, and whether the alien otherwise maintained valid nonimmigrant status.

Also, in light of the similar statutory provision set forth in INA 214(d) applicable to L-1 and L-2 aliens, this memorandum provides that time an alien has spent time in L-2 dependent status will not count against the time available to the alien in L-1A or L-1B status.

by SCwpadmin SCwpadmin 126 Comments

Procedures Announced to Correct Case Type at Backlog Center

On January 10th the DOL changed their Public Disclosure System for cases pending at the Backlog Elimination Centers to include the Case Type of the pending case (RIR or TR). The DOL has announced a procedure for employers or their authorized representatives to follow if they believe the case type as reflected on the Public Disclosure System (PDS) is incorrect (e.g., if it is listed as TR but they believe it should be RIR, or vice versa). In such an event, e-mail the general information e-mail box at the appropriate Backlog Elimination Center (BEC) (either info@phi.dflc.us or info@dal.dflc.us). The subject line of the e-mail must read “Incorrect Case Type – Case # [insert case number].” The body of the e-mail should explain why the employer believes the case type is incorrect. Any supporting documentation may be attached as a pdf. The BECs will review the case and reply as soon as possible based on the volume of requests. Depending on the volume of inquiries received, it may take the DOL a few weeks before the case type is corrected in the Public Disclosure System.

Information provided by AILA (InfoNet Doc. No. 07011965 posted Jan. 19, 2007)

by SCwpadmin SCwpadmin 30 Comments

Passports Now Required For Air Travel to U.S.

As of January 23, 2007, citizens of the United States, Canada, Mexico, and Bermuda are required to present a passport to enter the United States when arriving by air from any part of the Western Hemisphere.

The department expects a smooth transition to the new passport requirement based on the numbers of travelers arriving at U.S. airports with passports. Over 90 percent of U.S. citizens, 97 percent of Canadians, and virtually 100 percent of Mexicans and Bermudans flying to the United States immediately before the rule took arrived with passports.

The air requirement is part of the departments of State and Homeland Security’s Western Hemisphere Travel Initiative. This change in travel document requirements is the result of recommendations made by the 9/11 Commission, which Congress subsequently passed into law in the Intelligence Reform and Terrorism Prevention Act of 2004.

A separate proposed rule addressing land and sea travel will be published at a later date with specific requirements for travelers entering the United States through land and sea border crossings. As early as Jan.1, 2008, citizens traveling between the United States and Canada, Mexico, Central and South America, the Caribbean, and Bermuda by land or sea may be required to present a valid passport or other documents as determined by the Department of Homeland Security to enter the United States.

by SCwpadmin SCwpadmin 111 Comments

DOL Clarifies Several RIR Conversion Issues

The following information was provided by AILA:

Q: Question 16 seems to indicate that we can challenge the prevailing wage before recruiting. If we send in a challenge, what will be the turn-around time to receive a response? If we already obtained a SWA wage, can we submit that in as an alternative source and will the BEC honor that SWA wage? (This could happen, e.g., because the SWA and BEC select different OES codes.)

A: We are making all efforts to review a wage challenge as quickly as possible. A SWA issued wage obtained by an employer independent of the application process will be considered as part of the evidence to rebut a BEC-issued wage, but it will be given no special evidentiary weight.

Q: Question 20 states: “changes to the original ETA-750 will not be accepted if they collectively constitute a new job opportunity.” What is a “new job opportunity?” (e.g.: a change in the SOC code; a change in location?) If the DOL determines the change to be a new job opportunity, when will that evaluation be made? Will the DOL review the requested changes in the email and respond right away or will the employer have to submit the RIR conversion package and wait and see? If the DOL makes this determination, what will happen to the case? Does it stay a TR case and the changes will be acknowledged and a TR process can be done using the amended form? How and when will the employer be told the changes “constitute a new job opportunity?”

A: The legal standard for consideration of amendments has not changed. As always, the CO will look to the changes in the job description, duties, and minimum requirements to make such a determination. The evaluation will be made up front – at the time of the prevailing wage determination — so that the employer will be able to act accordingly. If the case becomes a new job opportunity, the case will not be convertible to RIR and a TR process will be required.

Q: In one part of the DOL’s 12/22/06 FAQ, it says the e-mail must be received before January 20. Elsewhere, it says not later than January 20. Note that January 20 is a Saturday. Can you please clarify whether e-mails actually sent on Saturday, January 20 are acceptable, and whether e-mails received until mid-night January 20th (or whatever is the last date) are acceptable?

A: We have posted a revised date for January 22, the following Monday. Emails must be received by midnight EST that night.

Q: The 12/22/06 DOL FAQ states that for conversion cases, when BEC has already placed the job order, the BEC will send all resumes to employer (around 2/1/07) for consideration by employer. If DOL is going to require employers to review resumes received from the job order placed by BEC, in addition to resumes employers receive as a result of their own conversion recruitment, will DOL allow employers to use the job order placed by BEC as the additional forms of recruitment? This question was asked at the 12/11 meeting and the answer provided by Bill Rabung was basically, “no” you can’t use the job order BEC places because the employer won’t be getting the resumes in response to the job order. However, now that a process and timeframe (2/1/07) for providing the resumes to employers has been developed and employers must consider these resumes, then it seems reasonable that employers can use the job order as a form of recruitment to support conversion.

A: Unfortunately, the answer is still “no.” The job order placed by the BEC is placed by the Department of Labor, and has at least one critical difference from the recruitment placed by the employer in an RIR opportunity: the employer’s name does not appear in the job order. In addition, the job order placed by the BEC will be removed once an employer submits its email requesting conversion to RIR. It will not be a complete 30-day placement in the standard fashion of traditional recruitment; in some cases it may last for only a day. And the difficulties in tracking those cases in which amendments are accepted after a job order is placed (essentially mooting the job order) adds to the difficulty. As a result, that particular piece of recruitment cannot be considered as part of the employer’s RIR; the employer did not place it and has not initiated it. We do not believe that this imposes a significant burden on employers who may as a result have to consider a small number of additional U.S. workers.

by SCwpadmin SCwpadmin 314 Comments

DOL Announces New Procedures for RIR Conversions at BECs

On December 22, 2006, the Office of Foreign Labor Certification announced new procedures for conversion of traditionally filed cases currently being processed at the Backlog Elimination Centers to the Reduction in Recruitment (RIR), process. The full announcement can be found here: http://www.foreignlaborcert.doleta.gov/pdf/backlog_faqs_12-22-06.pdf

Summary of the main points:

Why would an employer want to convert its TR case to RIR? RIR cases generally are completed and reach a disposition faster than TR cases. This enables the employer and alien beneficiary to move the case further to completion in the permanent labor certification process.

Who is generally eligible for RIR conversion under this “new” opportunity? An employer may file a request to convert to RIR if it has a currently pending TR application in one of the BECs (Dallas or Philadelphia) that meets the following conditions: ƒ The case has not already received a disposition, e.g. certification, denial; ƒ A Notice of Findings (NOF) has not been issued for the application, or a NOF has been issued but successfully rebutted at the time of sending the email request; ƒ The application is not for a Schedule B occupation; and ƒthe applicant or its attorney/agent has not received a Recruitment Report Instructions Letter from the BEC indicating that supervised recruitment has ended and providing instructions for the results.

A “hold harmless” benefit in the new guidance allows the employer to commence recruitment without concern that the BEC will initiate job order activity before the employer can submit the recruitment request along with the recruitment, making the applicant ineligible to convert. Any applicant who sends in an e-mail with the specified language before January 20, 2007, indicating its intent to request conversion of its TR case to RIR status will be granted the assurance that the RIR conversion will not be denied solely because the BEC has initiated TR recruitment activities. Therefore, the employer is free to engage in recruitment for preparation for the RIR package without the concern that the BEC will begin TR recruitment activities.

What are the steps under this opportunity?

a) No later than January 20, 2007, the applicant or its designated attorney sends an e-mail to the appropriate BEC using specified language indicating its intent to convert a TR case to RIR status. The e-mail should also contain any proposed amendments.

b) The BEC will place the applicant’s case in “hold” status pending receipt of the RIR conversion package.

c) The BEC will send the applicant a receipt e-mail with the new prevailing wage for the position upon which to base the wage offered in its recruitment, and the status of any proposed amendments, i.e., accepted or not.

d) The BEC will send the employer any resumes the BEC has received in response to any job order activity or advertisement for the employer to consider in preparing its RIR recruitment results package. (Note: This only pertains to cases where a job order activity has been initiated or advertisement was posted by the employer before the employer sent the intent to convert e-mail. In such an instance, this advertisement may be submitted for consideration as part of the RIR conversion recruitment package.)

e) The applicant engages in recruitment and prepares the RIR recruitment results report and supporting documentation (the RIR conversion package).

f) The applicant or its designated representative sends the RIR conversion package to the appropriate BEC in hard copy, by regular mail, certified mail, or mail courier, with the subject “RIR Conversion Package – [case number]” no later than April 1st, 2007. If no package is postmarked for receipt by this date, the case will be closed. These applications do not revert to the TR queue and the decision to close is not subject to appeal.

g) Once the RIR conversion package is received by the BEC, the BEC staff will evaluate the package and determine whether the case can be converted to RIR status.

h) If the case meets the criteria for RIR conversion, the case will be converted and processed as an RIR application. If the case is not eligible, or exhibits other deficiencies that make it ineligible for RIR conversion, the employer will receive a letter advising that the RIR conversion request has been denied and the case will be processed as a TR case retaining its original priority date.

What types of cases are appropriate for an RIR conversion request? Job opportunities which hav an SOC code falling into the following:

1. “In (high) demand” Occupations as listed on O*NET
2. High growth industries identified by ETA: http://www.doleta.gov/BRG/JobTrainInitiative/
3. Any position(s) identified by SWA information as in-demand or shortage occupations.

If an employer’s job opportunity has a SOC code that is not within one of these categories, the employer is not prohibited from filing an RIR conversion request, but the applicant will have to provide evidence at the time of filing the RIR conversion package that the job opportunity is in an occupational field in a demand, high growth, or shortage occupation that is appropriate for a request for a waiver of supervised recruitment.

by SCwpadmin SCwpadmin No Comments

RIR Conversion Guidelines For BEC Cases Expected Soon

Members of this firm recently attended a teleconference in which it was announced that the DOL would soon be publishing new procedures for conversion of traditional cases at the backlog centers to the RIR option. One of the presenters in the teleconference had just attended a meeting with the DOL and obtained some preliminary information on the new procedures.

Though the following has not yet been confirmed by any official announcement, it is expected that the new procedures will require notification to the BEC of the intention to convert to RIR. The BEC will then respond with the required wage and recruitment instructions. Those instructions are expected to include one print ad placement and one item from the menu of alternative recruitment strategies under PERM, the new labor certification process in place since April, 2005. There may be a date certain by which the conversion request must be received at the BEC or face case closure.

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