Immigration Inbox: News You Can Use - January 2011

U.S. Immigration

1. DREAM Act Fails in Senate
2. H-1B Cap Update and Possible Changes for FY2012
3. DOS Discusses Upcoming Employment Visa Number Priority Cut-Off Dates
4. USCIS Issues Reminder on New Fees and Q&A on New Fee Schedule
5. USCIS Revises I-129 Petition Form, Including (Now Deferred) New Export Control Certification
6. US Embassy Mexico Announces New Visa Procedures

Seyfarth Workforce Authorization Team (SWATeam)

1. OSC Issues Tips on SSN “No-Matches”
2. WHD Orders Companies To Pay Back Wages, Penalties for H-1B Violations
3. DOL Hits H-2A Employer With $1.3 Million Order for Back Wages, $136,500 in Fines

Global Mobility

1. Belgium Publishes 2011 Minimum Salary Level For Type B Work Permit

U.S. Immigration

1. DREAM Act Fails in Senate

The House of Representatives passed the DREAM (Development, Relief and Education for Alien Minors) Act on December 8, 2010, but the Senate failed to pass the bill on December 18.

Prospects are dim for enactment in the near future, although Democrats vowed to push for the legislation and to include it in any comprehensive immigration reform bill. President Barack Obama said he found the results “incredibly disappointing” but that his administration “will not give up on the DREAM Act, or on the important business of fixing our broken immigration system.” House Speaker Nancy Pelosi said, “Though disappointed by the result of today’s DREAM Act vote in the Senate, we are not deterred in our determination to continue advocating for this critical legislation.” Sen. Lindsey Graham (R-S.C.) countered, “We’re not going to pass the DREAM Act or any other legalization until we secure our borders. It will never be done stand-alone. It has to be part of comprehensive immigration reform.” (The Senate passed a $600 million border security bill in August.)

The DREAM Act, which has a long history, would allow qualified undocumented children to apply for conditional legal immigration status and eventually to obtain permanent residence if they meet certain requirements.

2. H-1B Cap Update and Possible Changes for FY2012

As of December 31, 2010, approximately 57,300 H-1B cap-subject petitions were receipted by USCIS. In addition, USCIS had receipted 20,000 H-1B petitions for aliens with advanced degrees, meaning that the advanced degree cap has been met for FY2011. Once the regular cap has been reached, USCIS will not accept H-1B cap-subject petitions until April 1, 2011.

In related news, USCIS plans to propose a rule to establish electronic pre-registration for H-1B petitions for FY2012 and beyond. Reportedly, this will require an employer to first register online and wait for an H-1B number before filing the full petition with supporting documentation. USCIS hopes this will reduce the burden on both employers and the agency in preparing and submitting petitions, entering data, and returning non-selected petitions. USCIS has not yet released details of the proposed rule nor a date of publication.

For more on H-1B statistics and filing requirements, click here.

3. DOS Discusses Upcoming Employment Visa Number Priority Cut-Off Dates

The Department of State’s Visa Bulletin for December 2010 notes that it is unlikely that any cut-off dates will be set in the employment-based first-preference category during the coming months. It also appears unlikely that it will be necessary to establish a cut-off date other than those already in effect for the second-preference category. Cut-off dates continue to apply to the China and India employment second preference categories due to heavy demand.

Based on current indications of demand, the Department said the “best case scenarios” for cut-off date movement each month are:

Employment-Based Second:

China: none to two weeks
India: no movement

Employment-Based Third:

Worldwide: three to six weeks
China: one to three weeks
India: none to two weeks
Mexico: although continued forward movement is expected, no specific projections are possible now
Philippines: three to six weeks
The Department noted that the above ranges are estimates based on current demand patterns and will be subject to possible fluctuations during the coming months.

The January 2011 Visa Bulletin is available here.

4. USCIS Issues Reminder on New Fees and Q&A on New Fee Schedule

The new fee schedule for immigration-related applications and petitions took effect on November 23, 2010. Applications or petitions postmarked or otherwise filed on or after this date must include the new fee or they will be rejected.

USCIS published the new fee schedule in the Federal Register on September 24, 2010, following a review of public comments received after publication of the proposed rule this past summer. The new fee schedule increases application and petition fees by an average of about 10 percent.

USCIS has also corrected the new fee for refugee travel documents. As discussed in the preamble to the final rule, the agency had determined that the fee for a refugee travel document for an adult age 16 or older should match the fee charged for the issuance of a passport to a U.S. citizen ($110 plus a $25 execution fee). Accordingly, USCIS intended to reduce the fee for filing a Form I-131, Application for Travel Document for refugees to $135 for an adult age 16 or older. The final rule inadvertently listed a fee of $165 for the I-131 refugee travel document for an adult age 16 or older. No other changes were made under this correction.

The Q&A is available here.

USCIS alert is available here.

The correction notice is available here.

A table listing the old and new fees is available here.

The final rule is available here.

5. USCIS Revises I-129 Petition Form, Including (Now Deferred) New Export Control Certification

U.S. Citizenship and Immigration Services (USCIS) has issued a new version of the Petition for a Nonimmigrant Worker (Form I-129). USCIS accepted previous versions of the form until December 22, 2010. Beginning on December 23, 2010, USCIS will only accept the revised form and will reject previous versions.

Among other changes, the revised I-129 form had required employers who are sponsoring foreign nationals for H, L or O work visas to certify that they have made an export licensing determination regarding each employee sponsored. More specifically, employers would have been required to certify that they have evaluated the applicable export control regulations and have determined whether the employee will require an export license to perform the job. The U.S. Department of Commerce announced on December 22, 2010, that USCIS would have a sixty-day moratorium on the export control certification. Thus, at this point the certification will not apply to petitions filed prior to February 20, 2011.

As background, under the Department of Commerce’s export control regulations, the release of technical information to a foreign national is deemed an “export” to that person’s country of origin. That remains true even if the foreign national is lawfully employed. Compliance with this “deemed export rule” can be complex, so it is critical to consult your Seyfarth Shaw attorneys to determine how to comply.

Instructions can be found here. A link to the revised form can be found here.

Link to Seyfarth Shaw client alert can be found here.

6. US Embassy Mexico Announces New Visa Procedures

Beginning January 10, 2011, U.S. consular posts in Mexico will require most applicants to visit Applicant Service Centers (ASCs) prior to their visa interview. The ASC will collect the applicant’s biometric information, which the consular post will review prior to the applicant’s interview.

The announcement is available here.

Seyfarth Workforce Authorization Team (SWATeam)

1. OSC Issues Tips on SSN “No-Matches”

The Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices recently issued the following do’s and don’ts for employers on Social Security Number “no-match” letters. These are letters issued by the Social Security Administration (SSA) to employers stating that information supplied to the SSA does not match SSA records.

DO:

Recognize that name/SSN no-matches can result because of simple administrative errors.
Check the reported no-match information against your personnel records.
Inform the employee of the no-match notice.
Ask the employee to confirm his/her name/SSN reflected in your personnel records.
Advise the employee to contact the SSA to correct and/or update his or her SSA records.
Give the employee a reasonable period of time to address a reported no-match with the local SSA office.
Follow the same procedures for all employees regardless of citizenship status or national origin.
Periodically meet with or otherwise contact the employee to learn and document the status of the employee’s efforts to address and resolve the no-match.
Submit any employer or employee corrections to the SSA.

DON’T:

Assume the no-match conveys information regarding the employee’s immigration status or actual work authority.
Use the receipt of a no-match notice alone as a basis to terminate, suspend or take other adverse action against the employee.
Attempt to immediately reverify the employee’s employment eligibility by requesting the completion of a new Form I-9 based solely on the no-match notice.
Follow different procedures for different classes of employees based on national origin or citizenship status.
Require the employee to produce specific documents to address the no-match.
Ask the employee to provide a written report of SSA verification.

The document is available here.

A similar document for employees is available here.

A related FAQ is available here.

Also, the National Employment Law Project issued “Top 10 Tips for Employers” on Social Security no-match letters. The tips are available here and are linked to a National Immigration Law Center “No-Match Letter Toolkit” available here.

2. WHD Orders Companies To Pay Back Wages, Penalties for H-1B Violations

The Department of Labor’s Wage and Hour Division (WHD) announced on December 7, 2010, that it had obtained a consent order to recover $638,449 in back wages and interest from Peri Software Solutions, based in Newark, New Jersey, and its owner, Saravanan Periasamy, for H-1B violations. The company sponsored H-1B nonimmigrant programmer analysts to work in various locations in the U.S. The company and its owner also were fined $126,778 in civil money penalties and interest for failing to provide notice of the labor condition applications at each job site and for filing lawsuits against H-1B workers for early cessation of employment. The company and Mr. Periasamy also were debarred from participation in the H-1B program for one year.

WHD said common violations include the employer’s failure to post notice of the filing of labor condition applications at every worksite where an H-1B worker may be employed, and failure to pay nonimmigrant workers the required wage rate for all nonproductive time caused by conditions related to employment, such as lack of assigned work, lack of a permit, or studying for a licensing exam.

In another recent case, the Law Offices of Sergio Villaverde PLLC, a New York City law firm, was disqualified from the H-1B program for a period of two years for willfully violating prevailing wage requirements. The firm also has been ordered to pay a penalty of $2,250 and to pay one employee back wages totaling $31,954.

In 2003, the firm hired a nonimmigrant attorney from India as a full-time legal assistant and filed an H-1B labor condition application to allow the attorney to work legally in the U.S. An investigation by the WHD’s New York District Office determined that the firm paid the legal assistant less than the required prevailing wage from January 1, 2004, to June 30, 2006. In a recent decision and order, Labor Department Administrative Law Judge Jonathan Calianos ruled that the firm, having advertised its expertise in immigration law, willfully violated the H-1B prevailing wage requirements.

The WHD press release on the Peri Software case is available here. The press release on the Villaverde case is available here.

3. DOL Hits H-2A Employer With $1.3 Million Order for Back Wages, $136,500 in Fines

The Department of Labor’s Wage and Hour Division (WHD) is assessing J&R Baker Farms LLC of Ellenton, Georgia, $1,311,644 in back wages owed to 244 workers and $136,500 in fines for violating provisions of the H-2A temporary agricultural worker program.

WHD found that the vegetable farm allegedly failed to provide at least 75 percent of the hours promised in the work contract. WHD is asking an administrative law judge to order the farm to pay $1,311,644 in back wages to 148 U.S. workers and 96 H-2A workers and pay a fine of $122,000.

The investigation also discovered that the farm failed to provide a copy of the H-2A work contract at the time of recruitment to 29 U.S. workers who performed the same type of work as the H-2A workers. The Department is recommending a fine of $14,500 for that offense.

A press release announcing the findings is available here.

Global Mobility

1. Belgium Publishes 2011 Minimum Salary Level For Type B Work Permit

The Government of Belgium has published the minimum annual base salary level to apply for a type B work permit in 2011 for a foreign employee. Per diems, allowances and benefits cannot be taken into consideration when determining the base salary. The following base salary levels apply effective January 1, 2011:

Highly qualified employees: EUR 36,604/year (EUR 36,355 in 2010)
Executives in a managerial position: EUR 61,071/year (EUR 60,654 in 2010)
Applications meeting the above minimum annual salary levels are not subject to a local labor market check.

Recent News From Seyfarth’s Immigration Lawyers

Angelo Paparelli recently spoke, along with Immigration Judge Denise Slavin, at the Berkeley Institute of Journalism on the issue of labor shortages and skills mismatches, including the “misguided approach to labor market testing adopted by the DOL requiring the employer to prove a negative” (the unavailability of able, qualified, and willing U.S. workers) and the need instead for the Department of Labor to declare additional labor shortage occupations on Schedule A of its PERM regulations. Information on the seminar, “The Changing Face of America: Going Beyond the Rhetoric on Immigration,” is available here.

Jason Burritt has been selected by Seyfarth Shaw as the firm’s 2010 Pro Bono Associate of the Year. In addition to the honor of receiving the award, Mr. Burritt received $1,000 to donate to the legal aid organization of his choice, which he will give to the American Immigration Council (AIC).

For more information, please contact the Seyfarth attorney with whom you work, or any Business Immigration attorney on our website.