H-4 Spouses Can Get Work Authorization

The USCIS announced today that it will begin to extend employment authorization to certain H-4 visa holders.  USCIS will begin to accept H-4 employment authorization applications on May 26, 2015.  In order to be eligible for an H-4 Employment Authorization Document (EAD) an individual must meet one of the following criteria:

H-4 dependent spouses of H-1B nonimmigrants who:

  • Are the principal beneficiaries of an approved Form I-140, Immigrant Petition for Alien Worker; or
  • Have been granted H-1B status under sections 106(a) and (b) of the American Competitiveness in the Twenty-first Century Act of 2000 as amended by the 21st Century Department of Justice Appropriations Authorization Act. The Act permits H-1B nonimmigrants seeking lawful permanent residence to work and remain in the United States beyond the six-year limit on their H-1B status.

This is great news for clients who have an approved I-140 but are unable to submit an Adjustment of Status application because of priority date retrogression.  We will continue to monitor developments on this change and will begin preparing H-4 EAD applications for clients as we get closer to the May 26, 2015 filing date.

November 2014 Visa Bulletin: India EB-2 Retrogression

As expected, increased demand in EB-2 category for India required the retrogression of the cut-off date from May 1, 2005 to February 15, 2005. In contrast, potential visa availability is expected for other employment-based categories in the upcoming months.

 

For example, EB-2 China’s cut-off date is expected to have a 3-5 week forward movement. EB-3 China, with a cut-off date of January 1, 2010 is expected to have a rapid forward movement.  The rapid advance of the cut-off date may result in a significant increase in demand for visas.  Meanwhile, EB-3 India has little movement at all.  Lastly, EB-3 Philippines is currently at the worldwide cut-off date of June 1, 2012, but increased demand may require “corrective” action later in the fiscal year.

 

For more information on the November 2014 Visa Bulletin, please visit: http://travel.state.gov/content/visas/english/law-and-policy/bulletin/2015/visa-bulletin-for-november-2014.html

 

If you have any questions about the visa bulletin or other immigration matters, please feel free to contact us at info@grahamadair.com.

How This Immigration Bill Impacts Employers

The highly publicized bipartisan “Gang of Eight” in the Senate has pushed forward to draft an immigration reform bill that many believe will make it through Congress and result in comprehensive immigration reform. Many of the bill’s provisions impact U.S. employers.

H-1B Visa Reform

Currently, there is a cap of 65,000 H-1B visas allotted every year. This year, the H-1B cap was exceeded during the first five days of the filing period and resulted in a lottery to select which petitions USCIS will accept. Recognizing the need for more visas, this bill proposes to increase the minimum number of H-1B visas to 110,000, with an allowed increase of 10,000 every year depending on demand from the previous year. The maximum allowable number is 180,000 H-1B visas.

Additionally, the number of exemptions for those with advanced U.S. degrees increases from 20,000 to 25,000. However, the bill limits the exemption to Science, Technology, Engineering, and Mathematics (STEM) occupations.

The bill provides a 60-day grace period for H-1B workers who separate from their sponsoring employer. During this time, they can either depart the United States or find a new employer to sponsor their H-1B. A timely filed petition during the 60-day grace period would keep the H-1B worker in valid status while the case is pending.

The bill would allow spouses of H-1B visa holders to work in the U.S. if their home country allows reciprocal employment in similar situations.

However, with some benefits come some costs. As H-1B visas increase, the bill compensates by requiring employers to pay higher wages to H-1B workers based on a new 3-tier wage system to be developed by the Department of Labor. Also, before employers can hire an H-1B applicant, they are required to advertise the position to U.S. workers. Under the bill, the Department of Labor would establish a centralized website where all employers must post H-1B positions for 30 days before hiring an H-1B applicant.

Changes to the Green Card Process

Under this bill, the demand on the limited number of immigrant visas would be greatly alleviated. Cases filed under the EB-1 category would no longer be counted toward the annual limit, nor would cases for those holding doctorate degrees. Cases for dependent spouses and children would also not be counted.

Moreover, the bill establishes a “merit-based points” system that would replace the current Diversity Visa Program. Under Tier 1, beneficiaries can acquire points for factors such as education, length of employment, type of employment, family members in the U.S., and length of residence in the U.S. For the first four fiscal years after the bill’s enactment, merit-based visas will be allocated for skilled workers, professionals, and other workers, who provide non-seasonal and unskilled labor. For the Tier 2 track, employment-based immigrant visas are provided to those with cases pending more than 5 years.

An Increase in Government Oversight

Heightened security is a main focus of this bill. For this reason, the bill envisions 100% employer participation in E-verify by year five of the bill’s enactment.

It is anticipated that the Department of Labor would be more involved in employer enforcement as well. This bill removes the “reasonable cause” requirement and allows the DOL to investigate employers for any reason. The DOL would also conduct annual compliance audits of all employers with over 100 employees if more than 15 percent of them are H-1B workers.

Further, this bill increases fines on employers violating terms of the Labor Condition Application. For mistakes on an LCA, fines would increase from $1,000 to $2,000. For willful LCA violations, fines would increase from $5,000 to $10,000.

Conclusion

The “Gang of 8” bill is currently undergoing mark-up procedures in the Senate. At the same time, a bipartisan group in the House of Representatives in seeking to draft its own immigration reform bill. These bills will then proceed to a vote.

Graham Adair continues to monitor developments on comprehensive immigration reform. We will provide updates as they become available.

If you have any questions, please feel free to contact us at: info@grahamadair.com.

Department of Labor Issues FY 2009 Annual Foreign Labor Certification Report

 The U.S. Department of Labor (DOL) just issued its 2009 Annual Report on Foreign Labor Certification.  The figures are intriguing and noteworthy, but not surprising.  In 2007, there were very few audits issued and most cases were quickly certified, often just days from the date of filing.  From FY2007 to FY2008, the number of audits rose and there was a staggering 42% decrease in cases certified.  From FY2008 to FY2009, there was another significant decrease of 40% in certified cases.  Indeed, the total number of permanent labor certification cases approved in FY2009 was 29,502.  California was the largest draw, with 6,155 cases; New York was a distant second with 3,093.

Interestingly, the DOL report does not spend much time discussing the increase in audits.  It does, however, acknowledge that the enhanced audit effort has led to longer processing times.  While the increase in audits is certainly a significant factor in the dramatic decrease of certified cases, it is not the only culprit.  The financial crisis that took hold in the United States in 2008 and continued through 2009 was a major contributor.  The large number of unemployed looking for positions resulted in many tests of the labor market finding qualified and available U.S. workers for specified positions.  When a test of the labor market for a specified position turns up a willing and qualified U.S. applicant, it may prevent a bona fide permanent labor certification from being filed for a minimum period of six months.

Furthermore, with companies looking to reduce spending, the sponsorship of immigration benefits is one area that experienced cutbacks.  And because attorney fees for permanent labor certification require payment by the sponsoring company, this case type was probably impacted more than others.

The other significant factor in reduced certifications over the past few years is layoffs.  Many U.S. companies were compelled to reduce their workforce due to decreases in demand for their products and services.  When a U.S. citizen employee is laid off, permanent labor certifications for the position held by the U.S. worker cannot be sponsored for a minimum of six months.  Some very large U.S. companies experienced widespread rolling layoffs, inhibiting their ability, in some cases, to file permanent labor certifications for extended periods of time.

The decline in the number of certifications was experienced across all occupations, with agriculture experiencing the biggest slide – a decrease of over 83 percent from FY2008 to FY2009. Several other industries saw significant drops of over 50 percent, including retail trade, construction, waste management and remediation support services, and mining.

From a demographic standpoint, India and China remained the two top countries of origin for foreign workers in the PERM program.  India far exceeded any other country, however, accounting for nearly 39% of certified cases.  At number two, China only accounted for 7% of certified cases.  South Korea and the Philippines joined the top four, while Mexico dropped out of this top grouping.  Canada came in at number five, with nearly 5.5%.

We anticipate that, for the reasons discussed above, the downward trend of certified permanent labor certifications has continued in FY2010.

DOL Clarifies Questions on New National Prevailing Wage

The U.S. Department of Labor (DOL) has issued guidance to clarify some questions that have arisen due to the new centralized prevailing wage system for labor certification, which took effect as of January 1, 2010.  Perhaps the most concerning news in this update is related to the anticipated processing time.  The DOL indicated that processing times for the issuance of a prevailing wage determination could be lengthy, and recommended that they be done at least 60 days in advance of initial recruitment efforts.  The protracted processing time for prevailing wage determinations will further lengthen an already extensive recruitment period.