May 2009 Newsletter

Vol. XXXVI

A MONTHLY UPDATE ON IMMIGRATION
LAW AND RELATED NEWS FROM
MEYNER AND LANDIS LLP

May 2009

In this Issue:

Immigration Law News & Policy Updates

• There Are Still Plenty of H-1B Visas Available Under The Cap!
• H-1B Audits Are On The Rise!
• Velarde Memo Issues New Guidance To Adjudicators On Requirements for H-1B Beneficiaries Seeking To Practice In Certain Health Care Occupations
• The Legacy LCA Online System Will Remain Operational For LCA Submissions Through June 30, (extended from May 15, 2009)
• The Department of Homeland Security Issues A New Directive To Focus Investigations On The Companies That Hire Undocumented Workers Rather Than The Workers Themselves

The Road To Comprehensive Immigration Reform

• According To Senator Schumer, The Time For Consensus On Comprehensive Immigration Reform Is Now!

IMMIGRATION LAW NEWS AND POLICY UPDATES

There Are Still Plenty of H-1B Visas Available Under The Cap!

On May 26, 2009 USCIS once again updated the count of H-1B petitions received and counted towards the H-1B cap. More specifically, as of May 22, 2009, approximately 45,700 H-1B cap-subject petitions had been received. As such, the agency continues to accept petitions subject to the general cap. Also, it has received approximately 20,000 petitions qualifying for the advanced degree cap exemption but will continue to accept advanced degree petitions, stating that experience has shown that not all petitions received are approvable.

This presents a very unique opportunity for those employers who may have opted not to file H-1B petitions for otherwise eligible workers because of the potential for wasted efforts and resources should such petitions not be selected in the anticipated lottery. Based upon this updated news, however, it appears there is plenty of availability under the regular cap if you act promptly.

H-1B Audits Are On The Rise!

U.S. Department of Labor (“DOL”) H-1B audits are just another unfortunate by-product of our current economic times.  Recent experiences show that DOL will not only audit an employer’s H-1B “Public Access Files” relating to a specified period of time, but will also request various other records to determine whether an H-1B worker was paid the required wage (the higher of the applicable prevailing wage or the actual wage paid to similarly employed U.S. workers) at all relevant times.  It is critical; therefore, that employers not only insure that their H-1B “Public Access Files” are in order, but also that they are in compliance with USCIS regulations regarding the proper methods of terminating H-1B workers. 

With regard to Public Access Files, DOL regulations require an employer to first obtain certification of a Labor Certification Application (“LCA”) from DOL before it may file a petition with USCIS on behalf of an H-1B worker.  The employer must then create a Public Access File within one business day of filing the LCA.  Such file, which must be made available upon request to any member of the public, must be maintained at the employer’s principal place of business or at the place of employment of the H-1B worker(s) employed pursuant to that particular LCA.  In addition to the signed and certified LCA, the file must also contain, among other things, a statement of the actual current rate of pay for the H-1B worker(s), the prevailing wage determination, a memorandum by the employer explaining the actual wage determination and evidence that the notification requirement regarding the filing of the LCA has been met.

Recent DOL H-1B audits also tend to focus on whether H-1B workers have been placed “on the bench” by the employer or whether a discrepancy exists relating to the actual date of the foreign national’s termination of employment.  It is impermissible to “bench” an H-1B worker because of a lack of assigned work. Indeed, an employer is obligated to pay the required wage to an H-1B worker even if that worker is not able to perform such work due to an unproductive period of the employer.

With regard to termination of an H-1B worker, USCIS regulations require that the employer notify USCIS when an H-1B worker is terminated prior to the foreign national’s completion of the period of stay authorized by USCIS.  Such notification requirement applies whether the termination is voluntary or otherwise.
 
USCIS regulations also require the employer to reimburse a terminated foreign national (not including family members) for one way travel back to his/her last residence abroad.  Of course, if the foreign national leaves his/her position on his/her own accord or decides to remain in the United States (for another job offer or on account of a filing of a change of status application), there would be no need to pay for any return transportation.  In that case, evidence of an offer of return transportation would suffice. 
 
Failure to notify USCIS of the termination of an H-1B worker and/or the failure to offer reimbursement of travel to such a terminated employee could result in sanctions, including payment of back wages and, in some cases, debarment from the use of the H-1B program for a period of time.  As such, it is critical for the employer to document in each H-1B worker’s personnel file (with a signed acknowledgement by the foreign national if possible) both (a) the actual date of termination and (b) the offer of return travel reimbursement.

Velarde Memo Issues New Guidance To Adjudicators On Requirements for H-1B Beneficiaries Seeking To Practice In Certain Health Care Occupations

The May 20, 2009 Memo from Barbara Velarde, Chief of USCIS Service Center Operations, ("Velarde Memo" or "Memo") provides some important guidance to adjudicators on the requirements for H-1B beneficiaries seeking to practice in certain health care occupations, which is of significant import to occupational therapists ("OTs") and physical therapists ("PTs"). The crux of this guidance is as follows: advanced degrees are not required for health care professionals enumerated under 8 CFR 212.15(c) (including OT and PT candidates) applying for the H-1B nonimmigrant visa classification-thereby reversing a recent trend of USICS in denying H-1Bs for OTs and PTs who do not possess an advanced degree.

More specifically, the Velarde Memo instructs that if the petitioner (employer) provides documentary evidence that the beneficiary has a valid license to practice in the state in which the beneficiary seeks to be employed, the adjudicator should not look beyond that license. Such beneficiary will be deemed to meet the qualifications to perform services in a specialty occupation as outlined in 8 C.F.R. 214.2(h)(4)(iii)(C)(3). Importantly, the Memo specifies that this guidance "applies regardless of whether the beneficiary is in possession of a bachelor's degree, master's degree or doctoral degree in the health care occupation."

For further details on the Velarde Memo, please visit our H-1B Blog on ILW.com at http://blogs.ilw.com/h1bvisablog/.

The Legacy LCA Online System Will Remain Operational For LCA Submissions Through June 30, 2009 (extended from May 15, 2009)

The Department of Labor (“DOL”) has recently advised that it will keep the “legacy” or “old LCA system” operational through June 30, 2009.  The decision to keep the legacy LCA system operational was based on DOL’s interest in fixing glitches in the new system while providing users additional time to become familiar with the new iCert System.

Before this announcement, the use of the DOL’s new iCERT portal for LCA submissions was to become mandatory as of May 15, which, consequently, would have disabled the legacy LCA Online system as of that date. 

The iCert System is a new, one-stop visa portal system, implemented by the Office of Foreign Labor Certification (“OFLA”) to improve employer access to employment-based visa application services.  Effective April 15, 2009, employers or their authorized representatives became eligible to register with the iCERT System and establish a single account to file the new ETA Form 9035E - Labor Condition Application (“LCA”) covering the H-1B, H-1B1, and E-3 visa programs.

If you are experiencing difficulties with the iCert Portal, please feel free to contact us or reach out to the DOL's Help Desk at the Chicago National Processing Center by sending an email to lca.chicago@dol.gov.

The Department of Homeland Security Has Issued A New Directive To Focus Their Investigations On The Companies Hiring Undocumented Workers Rather Than Undocumented Workers Themselves

On April 30, 2009, the Department of Homeland Security (“DHS”) announced that it will shift its focus from prosecuting undocumented workers themselves to the American employers that knowingly hire them. Such a policy shift makes it absolutely critical that your immigration compliance programs are not only in place, but functioning effectively.

Indeed, new field guidelines have been circulated to special agents at U.S. Immigration and Customs Enforcement (“ICE”) which transfer the emphasis from workplace raids (traditionally aimed at rounding up individual undocumented workers) to imposing fines and, in some cases, even prison sentences against employers who knowingly break the law. More specifically, special agents have been trained to look for evidence of money laundering, mistreatment of workers, trafficking, smuggling, and identification fraud.

Among the most significant of the new guidelines is one in which ICE agents are instructed to “obtain indictments, criminal arrest or search warrants, or a commitment from a U.S. attorney’s office to prosecute the targeted employer, before arresting employees for civil immigration violations at a work site.” In other words, the pendulum appears to have swung in favor of seeking criminal charges, where applicable, rather than the government’s traditional approach of instituting civil penalties. In situations where only civil penalties are warranted (where ICE does not have enough evidence to press criminal charges) the new guidelines call on agents to not only seek fines, but disbarment from federal contracts where applicable.

Additionally, the new guidelines require the investigating field office to notify ICE headquarters and provide it with information including a proposed strategy for prosecuting the employer at least 14 days before conducting any raids.

This approach marks a fairly substantial change from that of Bush administration, which aimed raids almost entirely at workers and were conducted largely on the basis of tips that an employer was hiring illegal workers, which prevented the development of necessary evidence to bring criminal charges against the employer.

Under President Obama, however, DHS Secretary Janet Napolitano has outlined ways to build a criminal case against a business that knowingly hires illegal workers. Investigative tools include auditing I-9 files, having illegal workers go undercover, and soliciting information from people who regularly interact with the employers (including competitors) are just a few of DHS’ newly developed investigational methods.

In light of these revamped field guidelines, it is important that you reassess the effectiveness of your compliance programs and take the appropriate steps to protect your business from potential fines and/or even criminal investigations.

To inquire about the protections available to your business and its employees, or about the potential ramifications of these changes to you or your organization, please do not hesitate to contact us. 

THE ROAD TO COMPREHENSIVE IMMIGRATION REFORM

According To Senator Schumer, The Time For Consensus On Immigration Reform Is Now

Newsday.com reported that Senator Charles Schumer (D-NY) recently stated at the second Senate hearing on immigration that since the Federal Government is fulfilling its promise to secure the nation’s borders, citing a 27% drop in arrests for illegal border crossings since October 2009 that now is the time for “immigration reform.”

Declines in recent arrests indicate a trend of fewer undocumented nationals attempting to enter the United States illegally. The source of those declines remains a heated debate. Whether the declines are attributable to tougher enforcement at the border or higher unemployment in the United States remains to be seen. 

With such testimony, Senator Schumer, who currently serves as Chairman of the Senate’s Immigration Subcommittee, sought to focus on the issue that he says killed the last comprehensive immigration reform package.  In so doing, Senator Schumer claimed that “[t]he reason the bill failed is that the American people didn't have faith that there wouldn't be a future wave of illegal immigrants if we passed that bill.” Now that there is empirical data to suggest otherwise, Senator Schumer is fighting for a consensus on the need for a comprehensive immigration reform bill.

To further that end, on June 8, President Obama will host a White House meeting on immigration with key members of Congress.  Stay tuned for further developments in this area!

Portions of this Newsletter have been
Reprinted with permission from AILA
Copyright © 2009, American Immigration Lawyers Association