Visa Lawyer Blog

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The United States Department of Labor (DOL) has announced on January 14, 2010 that a new online prevailing wage system for PERM and H-1B will be launched on January 21, 2010. This is a big change in DOL’s practice regarding the prevailing wage determination system. For the past decade, prevailing wage determination for PERM and H-1B has been performed by State Workforce Agency. Employers who request a determination for a prevailing wage need to file an application with the state wage agent when a position is offered. Under the PERM system, a prevailing wage determination must be received prior to filing the PERM labor certification, the first step in an employment sponsored immigration petition.

DOL began this new centralized system on January 1st, but it has only been available through paper filing for the first couple of weeks. The new online prevailing wage system will be incorporated into the existing iCert system that DOL currently uses to handle Labor Condition Applications for H-1B petitions.

The newly updated iCert system will have several upgraded features. Once logging into iCert, a user will immediately be able to see case activity and the status and decision passed on the last ten applications submitted. Now, users will be able to electronically file and manage Form 9141 in a similar fashion to LCA Form 9035. If a user does not finish an application in one sitting, he/she can save the application and return to it later. Users can also withdraw submitted applications or delete unfinished ones. In addition, a user can reuse information from an old application for a new one. Via the upgraded system, printable forms and other instructions are now directly accessible from the prevailing wage application. On applications that have received decisions, users can also electronically request a Redetermination Review. Finally, the new system will accord much more control over sub-accounts, allowing users to block or grant access to the prevailing wage feature.

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The tragedy in Haiti continues, all the Aid in the world will not change the devastation. The US Government through some temporary immigration measures is trying to do its share. Secretary Janet Napolitano, in coordination with the U.S. Department of State, today announced a humanitarian parole policy allowing orphaned children from Haiti to enter the United States temporarily on an individual basis to ensure that they receive the care they need—as part of the U.S. government’s ongoing support of international recovery efforts after last week’s earthquake.

Humanitarian parole into the United States may be granted by the Secretary of Homeland Security to bring otherwise inadmissible individuals into the country on account of urgent humanitarian reasons or other emergencies. The humanitarian parole policy announced by Secretary Napolitano today will be applied on a case-by-case basis to the following children:

Children who have been legally confirmed as orphans eligible for intercountry adoption by the Government of Haiti and are being adopted by U.S. citizens.

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You might have heard of Twitter, you might even be using it, you might even be an addict (like me).

If you have no idea what Twitter is, it’s basically a ‘microblogging’ service which allows you to push out small bite sized updates (no more than 140 characters). It started out as an SMS based service, but has really moved onto the data platform now with mobile clients improving and data plans becoming more affordable.

Now ICE the USCIS enforcement arm is joining the fun. U.S. Immigration and Customs Enforcement (ICE) is using Twitter and YouTube to engage and educate the public about the agency’s enforcement efforts and its mission to keep the homeland safe.With Twitter (www.twitter.com/wwwICEgov (http://www.ice.gov/exec/leaving.asp? url=http://www.twitter.com/wwwICEgov) ) the public is able to follow breaking news from ICE and access useful information from the agency. ICE’s YouTube channel (www.youtube.com/wwwICEgov (http://www.ice.gov/exec/leaving.asp?url=https://www.youtube.com/wwwICEgov) ) offers viewers a glimpse into ICE with videos highlighting the agency’s national security role, special capabilities, enforcementoperations, public awareness campaigns and ceremonies.

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After a tough December with H1B RFE’s and the Cap, on January 8th USCIS issued new requirements for H1B cases. An employer who seeks to sponsor a temporary worker in an H-1B specialty occupation, as of April 2010, will be required to establish, through documentary evidence, a valid employer-employee relationship throughout the petition validity period. The sweeping and controversial new guidance will change the way employers prepare, and USCIS adjudicates, most H-1B petitions.

Employer-Employee Relationship

H-1B regulations currently require that a United States employer establish that it has an employer-employee relationship with the beneficiary of the petition. The memorandum states that the lack of guidance on this issue has made it difficult for USCIS adjudicators to determine whether such a relationship exists, especially when petitions involve independent contractors, self-employed beneficiaries, and beneficiaries placed at third-party worksites.

When determining whether an employer-employee relationship exists, USCIS will evaluate whether the petitioner has the “right to control” the beneficiary’s employment, such as when, where and how the beneficiary performs the job. USCIS will consider the following, with no one factor being decisive:
* Does the petitioner supervise and is such supervision off-site or on-site?
* If the supervision is off-site, how does the petitioner maintain such supervision?
* Does the petitioner have the right to control the work of the beneficiary on a day-to-day basis if such control is required?
* Does the petitioner provide the tools or instrumentalities needed for the beneficiary to perform the duties of employment?
* Does the petitioner hire, pay, and have the ability to fire the beneficiary?
* Does the petitioner evaluate the work-product of the beneficiary?
* Does the petitioner claim the beneficiary for tax purposes?
* Does the petitioner provide the beneficiary any type of employee benefits?
* Does the beneficiary use proprietary information of the petitioner in order to perform the duties of employment?
* Does the beneficiary produce an end-product that is directly linked to the petitioner’s line of business?
* Does the petitioner have the ability to control the manner and means in which the work product of the beneficiary is accomplished?
According to the memorandum, the petitioner will have met the test if, in the totality of the circumstances, a petitioner is able to present evidence to establish its right to control the beneficiary’s employment. The petitioner must also be able to establish that the right to control the beneficiary’s work will continue to exist throughout the duration of the beneficiary’s employment term with the petitioner.

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Rescue workers struggled to clear rubble and bodies Wednesday from the streets of Haiti’s “flattened” capital, where a government official said the death toll from Tuesday’s 7.0-magnitude earthquake may exceed 100,000. Thousands of injured people waited for care outside badly damaged hospitals, while an unknown number remained trapped inside collapsed buildings.

Our thoughts are with the families and relatives searching for loved ones, some of our clients are from Haiti and we know how difficult it must be to not know about the faith of loved ones.

In the US, the DHS issued the following statement:

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Recently the Congressional Reserch Service issued a new report titled: “The Effects on U.S. Farm Workers of an Agricultural Guest Worker Program.” Linda Levine the author writes:

Guest worker programs are meant to assure employers (e.g., fruit, vegetable, and horticultural specialty growers) of an adequate supply of labor when and where it is needed while not adding permanent residents to the U.S. population. They include mechanisms such as the H-2A program’s labor certification process to avoid adversely affecting the wages and working conditions of comparable U.S. workers. If changes to the H-2A program or creation of a new agricultural guest worker program led growers to employ many more aliens, the effects of the Bracero program might be instructive: although the 1942-1964 Bracero program succeeded in expanding the farm labor supply, studies estimate that it also harmed domestic farm workers through reduced wages and employment. The magnitudes of these adverse effects might differ today depending upon how much the U.S. farm labor and product markets have changed over time, but their direction likely would be the same.

The report further states, Despite increases in H-2A worker certifications issued by the U.S. Department of Labor in recent years, the number of H-2A workers remains quite small compared to the nearly 1 million hired farm and agricultural service workers employed in 2008.5 Thus, even if the labor certification process has not operated as intended—to protect similarly employed U.S. workers—the H-2A program’s low utilization suggests that its overall impact on the domestic farm labor force has been minimal.

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There has been a lot of confusion about the impact of the HIV removal on previous waiver denials and other related issues. USCIS released a good set of FAQ to address some concerns.

Section 212(a)(1)(A)(i) of the Immigration and Nationality Act (the Act), bars the admission to the United States any foreign national who has been diagnosed with certain specific illnesses. The Department of Health and Human Services (HHS), on Nov. 2, 2009, published a final rule in the Federal Register, removing Human Immunodeficiency Virus (HIV) infection from the from the list of illnesses that make a foreign national inadmissible. This rule takes effect on Jan 4, 2010. As of Jan. 4, 2010, therefore, having HIV infection will no longer make a foreign national inadmissible to the United States.

Here are the most common questions asked:

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DOL announced late last year about the changes to the Prevailing Wage Determination procedures, these changes became effective today. So what cases are affected? As described in the Department’s December 4, 2009 Federal Register Notice, the National Prevailing Wage and Help desk Center (NPWHC) will process Prevailing Wage Determination (PWD) requests for H­1B, H­1B1(Chile/Singapore), H­1C (if reauthorized by Congress), H­2B, E­3 (Australia) programs, and the permanent labor certification program (PERM).

Now employers will need to plan at least 60 days in advance when filing any of the above referenced applications, we anticipate serious delays in the early stages of this program. Especially since only hard copy mail ins are accepted at this time.

Click here for the DOL complete rule.

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What a great way to start the year. Today is an historic day in US Immigration law. The US has lifted a 22-year immigration ban which has stopped anyone with HIV/Aids from entering the country. President Obama said the ban was not compatible with US plans to be a leader in the fight against the disease.

The new rules come into force today and the US plans to host a bi-annual global HIV/Aids summit for the first time in 2012. The ban was imposed at the height of a global panic about the disease at the end of the 1980s. It put the US in a group of just 12 countries, also including Libya and Saudi Arabia, that excluded anyone suffering from HIV/Aids.

Rachel Tiven, head of the campaign group Immigration Equality, told the BBC that the step was long overdue.

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On December 25, 2009, an individual on board NW Airlines Flight 253 set off a device and was subdued by passengers and crew. As a result of this incident, TSA has worked with airline and law enforcement authorities, as well as federal, state, local, and international partners to put additional security measures in place to ensure aviation security.

Read more from the TSA…

The government must continually balance the need for security with the realization that the United States remains a favored destination for immigrants from around the world.

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