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 Supreme Court is reviewing US Court of Appeals decisions which found President Trump's Executive Order 13780 (Protecting the Nation from Foreign Terrorist Entry into the US) to be unconstitutional. The government can now ban people from Iran, Libya, Somalia, Sudan, Syria and Yemen from entering the United States for a 90-day period, unless they can show that they have a bona fide relationship with a person or entity in the United States
Given the new era of enforcement under the Trump administration, foreign nationals must have appropriate documentation in their possession to prove their lawful immigration status in the United States. Failure to do so may result in the foreign national being arrested and detained until the necessary documentation is provided.
As the H-1B cap season for fiscal year 2018 is fast approaching, companies should take steps now to assess their H-1B needs and begin to collect the necessary documentation for H-1B cap petition filings in order to maximise their chances of success. It is unclear whether any changes will be made to the H-1B programme in the months before the H-1B cap season, following the recent US presidential election results.
The Department of Homeland Security recently proposed a new rule to retain and attract highly skilled workers and entrepreneurs to the United States: the International Entrepreneur Rule. The proposed rule is separate from the E-2 and EB-5 US investor visa programmes, and would provide another avenue for entrepreneurs who wish to live and work in the United States to pursue.
The Department of State issues a monthly visa bulletin to inform the public of the priority dates which will be effective for various immigrant visa preference categories. As it is often difficult to predict which priority dates will become effective or be brought forward, the Department of State recently provided predictions regarding the movement of priority dates for the upcoming October 2016 Visa Bulletin.
Following the completion of their academic programme in the United States, F-1 visa students are often issued optional practical training (OPT). The purpose of OPT is to allow F-1 students to supplement their academic knowledge with valuable work experience after earning their US degrees. The Department of Homeland Security has now issued a final rule on OPT for F-1 students with degrees in the sciences, technology, engineering and mathematics.
Two senators recently introduced a bill that would reform the H-1B and L-1 visa programmes in the United States. Specifically, the bill proposes to modify wage requirements, impose requirements when placing workers at third-party locations and limit the usage of the H-1B and L-1 categories by employers. While the bill is not expected to be passed by Congress in its current form, certain provisions are worth noting as they may find their way into future legislation.
The L-1B visa category is used by multinational companies to transfer personnel to the United States based on their specialised knowledge of the organisation's product, service, equipment, techniques, processes or procedures. US Citizenship and Immigration Services recently issued a final policy guidance memorandum on the adjudication of L-1B visa petitions.
One way in which a foreign national may be sponsored by a US employer is through the Programme Electronic Review Management (PERM) process. Due to staff changes and the fact the PERM foreign labour certification process has not been updated or revised in more than 10 years, the Department of Labour appears poised to make changes to the programme in order to bring the process up to date.
The PERM labour certification process requires a US employer seeking to sponsor a foreign national for US permanent resident status to place a series of advertisements which meet certain criteria, including notifying US workers of where they may have to travel to or reside to perform the work. There is little guidance on how an employer may craft language to this end, although recent denial notices may provide some clarity.
The Office of the US Citizenship and Immigration Services (USCIS) Ombudsman recently issued its Annual Report for 2014, which focused on several areas, including waivers of inadmissibility, the H-2B temporary worker programme, the EB-5 investor programme and Form G-28 issues. One of the areas addressed by the report concerned the adjudication of H-1B and L-1 petitions by USCIS service centres.
US Citizenship and Immigration Services has announced that it is to send inspectors to the worksites of L-1 visa holders, similar to the current practice of sending inspectors to the worksites of H-1B visa holders. The purpose of sending inspectors to listed work locations is to verify that the information in the petition filings is accurate and that the workers and employers are complying with the terms and conditions of employment.
Immigration reform was the focus of lawmakers and the public in 2013, but appears to have stalled in 2014. Although there is more opposition to immigration reform from some lawmakers than in the past, there is still a good chance that the House of Representatives may pass one or more of its immigration reform bills. If no immigration reform legislation is agreed in 2014, it will likely be introduced in 2015.
IT projects may last for years or only a few weeks, and the professionals with the skills needed to work on these projects are often in great demand. The H-1B category is one way in which companies are able to bring IT professionals to the United States to work on these projects.
US consulates are reportedly increasing their scrutiny of H-1B visa applications with respect to wage rates. The government is concerned that some US employers may be selecting low wage rates for positions that are not entry-level roles. Employers must be careful when completing labour condition applications and ensure that the proper wage level is selected, following the Department of Labour wage-level definitions.
The US Department of Homeland Security's Office of Inspector General recently issued a report intended to examine whether there is fraud or abuse with respect to the L-1 visa programme in the United States. The report makes several recommendations, including the issuance of new guidance with respect to the interpretation of the term 'specialised knowledge' and increased site visits for new office L-1s.
The US Senate passed a comprehensive immigration reform bill in June 2013 which contains harsh provisions targeting heavy users of the H-1B and L-1 categories. However, the US House of Representatives has rejected the bill, preferring to pursue reform in a piecemeal fashion in the form of a series of bills that each address a specific immigration reform issue and do not seem to include the same harsh provisions.
The Department of Labour recently created the Labour Certification Registry. The registry allows the public to view labour condition and permanent employment certification applications filed by US employers. As the registry will allow for close monitoring of applications, employers should be careful when drafting such applications in order to ensure that there is consistency and accuracy with respect to positions offered.
The Border Security, Economic Opportunity and Immigration Modernisation Act, which was recently introduced into the Senate, addresses border security issues and has provisions to reform the H-1B and L-1 non-immigrant visa categories. It creates a path towards citizenship for those who are undocumented, creates a merit-based visa and reallocates the distribution of visas.
US Customs and Border Protection has published a rule that will eliminate the issuance of Form I-94 at the time of admission at all air and sea ports of entry. This new rule will have an impact on how foreign nationals document their status and apply for various government benefits. It will likely create challenges for several parties. Foreign nationals and employers are advised to monitor this developing issue.
US Citizenship and Immigration Services (USCIS) has reported that it has received enough H-1B cap petitions for the 2014 fiscal year to meet the 65,000 quota. In addition, it has received enough H-1B master's degree cap petitions to meet the 20,000 quota. For the first time since 2008, USCIS has reached the H-1B cap quotas within the first week of the filing period.
Form I-9 (Employment Eligibility Verification) is issued by US Citizenship and Immigration Services (USCIS) and used by US employers to document the identity and employment authorisation of each new employee that is placed on the employer's payroll. Form I-9 is required to be completed by both the employer and employee. USCIS recently issued a new version of the form.
The Department of Labour recently held a stakeholders' meeting, in which it provided information updates regarding its processing of Programme Electronic Review Management (PERM) labour applications and Labour Condition Applications. The filing of a PERM labour application by a US employer is often the first step in the US green card application process for many foreign nationals.
The H-1B non-immigrant category is heavily used by US employers to bring professionals into the United States to work temporarily in a specialty occupation. With the slow but gradual improvement in the US economy, since the recession the cap has been reached earlier in each of the last three fiscal years. Thus, the H-1B cap quota for fiscal year 2014 is likely to be reached much earlier in 2013 than in prior years.
The US Department of Labour (DOL) has provided statistics with respect to its Programme Electronic Review Management (PERM) labour application processing in the United States. The DOL reported that it has 23,700 PERM labour applications pending with its Employment and Training Administration. According to the report, non-audited PERM labour applications accounted for 47% of these applications.
The Programme Electronic Review Management (PERM) labour application process requires that two Sunday print advertisements be placed in a newspaper of general circulation in the area of intended employment when sponsoring a foreign national in connection with the green card process. Where a US employer wishes to move its headquarters, this will have an impact on the PERM labour application process.
The Department of Labour is increasing its scrutiny of wage levels listed on H-1B petitions. The reason for this increased scrutiny is because the majority of H-1B petitions filed in the past appear to list only a Level 1 wage. As a result, the department has begun to question the accuracy of wage levels listed on H-1B petitions by employers.
It may take the Department of Labour up to 60 days to process a request for a prevailing wage determination, so this should be obtained before placing any recruitment in connection with a Programme Electronic Review Management (PERM) labour application. This timeframe may also be a factor if an employer is interested in filing a PERM labour application before an H-1B employee's five-year anniversary of H-1B status.
In some recent cases US Customs and Border Protection inspecting officers have separated H-1B visa holders from other non-immigrants applying for admission into the United States on arriving at a port entry. This treatment may be the result of a memorandum issued by US Citizenship and Immigration Services to clarify what constitutes an employer-employee relationship between a petitioner and a beneficiary.
Several requirements must be met before a petition for a non-immigrant worker (Form I-129) may be filed with the US Citizenship and Immigration Services in order to sponsor a foreign national for H-1B classification. These range from ensuring that the position listed on the form is a specialty occupation to complying with various Department of Labour requirements.