Some employers have learned the hard way that the role of representatives and attorneys is clearly separated in the Programme Electronic Review Management (PERM) rule and that a violation of this rule may have serious consequences. Violators of the PERM rule will find their applications denied or worse, as there are several strategies to punish employers that act in bad faith.
The US Citizenship and Immigration Services (USCIS) has proposed a rule to increase the filing fees for most of its applications and petitions for immigration benefits. Some of the provisions in the proposed rule to increase filing fees suggest that US employers or the public may pay the same or more money, but receive less service from the USCIS. US employers should plan and budget accordingly, monitor the movement of the rule through the rulemaking process and watch out for any possible litigation.
The Department of Labour has introduced its electronic review officers and launched its new online portal: the Foreign Labour Application Gateway (FLAG). The FLAG portal is not yet up and running for Programme Electronic Review Management applications, but is available for all labour condition, temporary H-2A and H-2B and prevailing wage applications.
In January 2019 the US Department of Homeland Security passed a rule that amended the regulations governing the H-1B cap-subject selection process. One of the biggest changes requires employers seeking to file an H-1B cap-subject petition to register the foreign national with the US Citizenship and Immigration Services online electronic registration system. This article sets out some of the items to be aware of with respect to the online electronic registration system for the upcoming H-1B cap season.
President Donald Trump has issued a memorandum to the attorney general and secretary of homeland security as a follow-up measure to a recent proclamation which declared a national emergency in order to address the security and humanitarian crisis at the US-Mexico border. The memorandum confirms that further steps should be proposed to enhance the integrity and efficiency of the existing asylum system.
The Board of Alien Labour Certification (BALCA) recently reversed a decision where a certifying officer had denied a Programme Electronic Review Management labour application because the employer had not specified the exact combination of education, training and experience equivalent to a bachelor's degree that would be acceptable. BALCA held that the language used by the employer had been acceptable.
The Board of Alien Labour Certification recently ruled that there is a lack of clarification about licensing on Form 9089 and that a Programme Electronic Review Management application should not be denied for failure to state the alien's acquisition of a licence. However, the fly in the ointment is that while Form 9089 does not itself clarify this point, the separate instructions to the form do require employers to include licence acquisition.
This article has been removed at the request of the contributing firm.
Recent media reports indicate that the United States is quickly losing its place as the top destination for global talent, resulting in a growing 'brain drain' of skilled talent to countries such as China. Moreover, recent policy changes have made it increasingly difficult for foreign-born students to remain in the United States after graduation. Such short-sighted measures will only hinder US competitiveness in the long run.
The Department of Labour recently announced the implementation of the new Labour Condition Application (LCA) form. The prior LCA form is no longer acceptable. The implementation of the new form will affect LCA processing, since additional information will now be needed to complete the new form. Among other changes, the new LCA form now requires the full legal name and any 'doing business as name' for end clients where the H-1B worker will be placed to perform job duties.
The US Citizenship and Immigration Services issued an alert on 28 September 2018 reminding F-1 students with an H-1B petition that remained pending on 1 October 2018 that they risk accruing unlawful presence if they continue to work on or after 1 October (unless otherwise authorised to continue employment) because their cap-gap work authorisation was valid only until 30 September.
The Department of Labour's Office of Inspector General (OIG) recently found that the Employment and Training Administration's lack of control over the H-2B applications process has jeopardised businesses that depend on H-2B workers. According to the OIG, H-2B application processing delays "could prevent employers from obtaining foreign workers by their date of need" or "obtain[ing] US workers to fill those positions".
The Knowledgeable Innovators and Worthy Investors (KIWI) Act was signed into law on 1 August 2018. The KIWI Act will allow eligible NZ nationals to enter the United States as non-immigrant traders and investors provided that New Zealand grants reciprocal treatment to US nationals.
The Department of Homeland Security recently issued a final rule eliminating the non-immigrant visa exemption for certain Caribbean residents seeking to enter the United States as H-2A agricultural workers and the spouses or children who accompany or follow these workers. As a result of the related interim final rule, these non-immigrants must have both a valid passport and visa.
The US Citizenship and Immigration Services recently announced that it received 190,098 H-1B petitions during the filing period for fiscal year (FY) 2019, including petitions filed for the advanced degree exemption. This number is down from the record-breaking filings for FY 2017, during which USCIS received 236,000 petitions, and down from last year. It can be inferred that the changes implemented under the Trump administration have affected the number of H-1B filings.
The United States Citizenship and Immigration Services (USCIS) recently released a policy memorandum detailing the document requirements for H-1B petitions involving third-party worksites. USCIS has acknowledged that third-party arrangements may be a legitimate and frequently used business model and outlined the documents required to use this model. If employers do not include the mentioned corroborating evidence, USCIS may deny the petition.
In April 2017 President Trump issued the Buy American, Hire American Executive Order. The United States Citizenship and Immigration Services has carried out and is considering a number of policy and regulatory changes to fulfil the president's executive order, including conducting a thorough review of employment-based visa programmes. Further, there are several bills being considered in the House and Senate pertaining to immigration.
The US Department of Homeland Security (DHS) allocated $22.8 billion between 2014 and 2016 to enforce and administer immigration laws, one of its strategic missions. In 2014 a DHS Unity of Effort initiative created the Joint Task Forces to coordinate the department's resources. The DHS Office of Inspector General recently audited DHS to evaluate whether it has been achieving its mission in the most efficient way possible.
In April 2017 President Trump signed the "Buy American, Hire American" executive order. Subsequently, US Citizenship and Immigration Services (USCIS) started working on the necessary rulemaking, policy memoranda and operational changes to implement the executive order. As part of these initiatives, USCIS recently updated agency policy guidance on the burden of proof for extension petitions.
Following the president's "Buy American, Hire American" executive order, companies and immigration practitioners have witnessed increased scrutiny over immigration compliance. The Immigration and Customs Enforcement (ICE) acting director recently confirmed plans to increase enforcement in order to prevent fraud and abuse. ICE has indicated, among other things, that it will prosecute employers for knowingly hiring or retaining workers who lack valid US employment authorisation.