Immigration News & Analysis, Maggio & Kattar’s electronic immigration newsletter, offers up-to-date information and insightful commentary on U.S. immigration law and policy. Immigration News & Analysis is published monthly in an electronic format and is available via e-mail. Subscribe to Immigration News & Analysis.
New DOL Rules, Effective July 16, 2007, Require Employers to Pay All Labor Certification Fees, Including Attorneys' Fees, Prohibit Substitution in Labor Certification Applications, and Impose 180-Day Deadline for Filing Immigration Petitions
Breaking News
The U.S. Department of Labor ("DOL") published its final rules, effective July 16, 2007, that drastically change (1) the processing of, and who can pay for, the costs associated with labor certification applications; (2) the substitution of alien beneficiaries; and (3) the validity period of an approved labor certification.
Very significantly, the new rules require employers to pay all costs - attorneys' fees and other expenses - associated with preparing, filing, and obtaining labor certification. Currently, employers may bear these costs, share these expenses with their employees, or require the foreign national to assume them. These new rules eliminate such flexibility, and therefore, this change will have a dramatic impact on the ability of many foreign nationals to apply for permanent resident status based upon employment. Also, many businesses will face additional costs merely because there is a labor market shortage of qualified U.S. workers in their industry.
The rules state that a foreign worker may pay for his or her own "legitimate" costs associated with applying for permanent resident status although these costs are not clearly defined. Clearly, the legal fees and costs, such as advertising and filing fees associated with the labor certification application must be paid by the employer. Moreover, where the same attorney represents the foreign national and the employer, those costs must be borne by the employer. In short, this would make it impossible for a foreign national to pay for the lawyer doing his or her labor certification application. If the employer is not willing and able to pay those fees and costs, such as advertising and attorneys' and filing fees, then labor certification cannot be sought. Consequently, it will be substantially more difficult for many foreign nationals to acquire permanent resident status based upon employment and more costly for many employers to sponsor essential foreign workers for permanent resident status.
Second, the rules prohibit the practice of replacing or substituting the beneficiary of a labor certification application with another foreign worker who possesses qualifications that meet or exceed the stated requirements of the application. The rules state, "[s]ubstitution or change to the identity of an alien beneficiary on any application for permanent labor certification is prohibited for any request to substitute submitted after July 16, 2007." This prohibition applies to all pending permanent labor certification applications and to approved certifications not yet filed as part of an Immigration Petition for Alien Worker ("I-140") with the U.S. Citizenship and Immigration Services ("USCIS"). The rule will not be applied retroactively to labor certifications where substitutions have been approved by DOL and filed with USCIS (with an I-140 petition) prior to the July 16th effective date, even if the I-140 remains pending after July 16th.
Finally, the rule imposes a 180-day deadline for filing immigration petitions (I-140s) based on an approved labor certification, whereas currently labor certifications are valid indefinitely. (The proposed rule provided a 45-day deadline.) The 180-day deadline applies to all labor certifications, those that have not yet been filed as of July 16, 2007, the effective date of the new rule, and to those previously approved. In other words, an approved labor certification granted before July 16, 2007 expires if not filed in support of an I-140 petition with the USCIS within 180 calendar days of July 16, 2007. As previously stated in our February 2006 issue of Immigration News & Analysis, this will put unnecessary pressure on employers to act immediately and sometimes unnecessarily due to visa unavailability. Moreover, the rule will compel employers and employees alike to have all supporting evidence for the immigrant visa petition, such as letters verifying experience, in hand. Such evidence can take an indeterminable amount of time to obtain, especially when it must come from abroad.
In furtherance of the DOL's efforts to reduce fraud in the labor certification process, the revised regulations include provisions addressing suspension and debarment from the labor certification program where the DOL finds involvement in fraud or willful misrepresentations. Moreover, the new rules provide notice that knowingly and willfully furnishing false statements is a federal offense punishable by fines and/or imprisonment, as well as additional penalties.
While these new rules do not go into effect for two months, employers and their foreign national employees are now on notice that these changes will be law soon, and that they must prepare accordingly. We expect that these new rules will be challenged in federal court, particularly those provisions that govern attorneys' and other costs as impermissibly interfering with the attorney-client relationship. Nonetheless, all concerned should assume that these new rules will control the labor certification process starting July 16, 2007. We will be working with our clients to ensure compliance with these new rules, and where possible, to file employee-paid labor certification applications before July 16th.
Litigation Compels Department of Homeland Security to Approve University's Visa for Bolivian Academic but Security Checks Are Still an Issue
Breaking News
Washington, DC – Pending for nearly two years for “security checks,” an H-1B work visa petition filed by the University of Nebraska – Lincoln (“UNL”) on behalf of Dr. Waskar Ari, a Bolivian historian whom the university seeks to hire as an Assistant Professor of History and Ethnic Studies, was finally approved by the Department of Homeland Security (“DHS”) after a lawsuit to compel action was filed in federal district court. No explanation for the extraordinary delay or the sudden change of heart was given by DHS. Dr. Ari now must apply for a visa at the U.S. Consulate in La Paz, Bolivia where visa issuance is by no means assured.
H-1B Unavailability and Filing for Permanent Resident Status Now
Some employers may wish to consider PERM labor certifications and green card applications for certain H-1B eligible individuals who were not able to secure H- 1B visa status last month due to the cap being reached as an alternative means to secure U.S. employment authorization in the quickest possible manner. This option, however, is viable only for certain individuals with a master's degree or a bachelor's degree plus five years of progressive and related work experience. Of course, the positions for which employers choose to sponsor such individuals for U.S. permanent residence must also require at least a master's degree or a bachelor's degree and five years of progressive and related work experience. In addition, persons who may qualify under the extraordinary and exceptional ability categories should consider the possibility of pursuing U.S. permanent residence status filings.
As widely reported, "new" H-1B visas are now unavailable. The 65,000 H-1B cap for the general population was reached on April 2, 2007, and the 20,000 H-1B cap for foreign nationals with advanced degrees from U.S. institutions was reached on April 30, 2007. Although applying under the PERM labor certification program would mean that sponsored individuals must wait several more months to receive work authorization, employers may choose to sponsor certain employees or candidates for U.S. permanent resident status now. Note that only those individuals not born in China or India and those who possess at least a master's degree or a bachelor's degree plus five years of progressive work experience may benefit from this alternative. (Bachelor's degree holders and individuals born in India and China are not able to apply for adjustment of status to permanent residence via a work visa even if they are approved for PERM labor certification due to the severe backlog in their preference categories.)
If an employer is able to secure approved PERM labor certifications for sponsored individuals - which could occur as little as six to eight months after beginning the necessary recruitment phase - I-140 immigrant visa petitions and adjustment of status applications (including work permit applications) could then be filed. The U.S. Citizenship and Immigration Service ("USCIS") usually requires 30 to 60 days to issue work authorization after such filings are made, although in some cases the work permits can take around 90 days to be issued. In order for this alternative to be viable, employers must act soon to begin PERM sponsorship for relevant individuals.
Of course, other visa alternatives to H-1B status should also be considered, such as O-1 nonimmigrant status for individuals of extraordinary ability, TN status for Canadian and Mexican professionals, E-3 status for Australians, and H-1B1 visas for citizens of Singapore and Chile.
Obviously, the PERM labor certification strategy will not work for all employees and their employers. But, in a time of visas unavailable for highly educated foreign professionals and backlogs for would-be employment- based green card holders, employers may have no other option than to embark upon the PERM process despite expense and work delays for their future employees.
We urge employers confronting employment-based visa unavailability to contact their members of Congress to demand legislative action addressing our nation's growing labor market shortages at every level. Reform can wait no longer. H-1B visas and other employment-based visas are sorely needed so that the world's best, brightest, and hardest working can continue to work and reside in the United States. America's global leadership and competitive edge are at stake.
Priority Dates for Immigrant Visas Jump Almost Two Years Forward for Certain Professionals and Skilled Workers; Other Significant Advances in June
Remarkably, given the prognostications last month, the State Department's Visa Bulletin for June shows significant forward movement in most categories but particularly so for certain professionals and skilled workers in the employment-based third preference category across all areas of chargeability. Eligible foreign nationals with priority dates earlier than June 1, 2005 (except for China, India, and Mexico) may be able to apply for adjustment of status or consular processing in the month of June. China, India and Mexico, however, also advanced significantly in this preference category. The State Department now predicts that it is likely that there will be additional advances in employment-based visa availability during the coming months. This is particularly welcome news given the current H-1B visa crisis. Employment-based second preference for China and India also advanced significantly in June, almost 9 months 15 months, respectively. Moreover, visas for unskilled workers become available again, with an October 1, 2001 cut- off date. Future unavailability for this category is expected, however. In the family-based categories, the June Visa Bulletin reveals more modest forward movement across most categories, ranging from a couple of weeks to a few months.
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DOL Proposals Will Make Labor Certification Process More Onerous
Action is expected soon on the U.S. Department of Labor ("DOL") pending proposals for far-reaching changes to the processing of labor certification applications. These changes will have a tremendous impact on employers and foreign nationals. If promulgated as proposed and expected, these rules would eliminate the substitution of foreign workers in labor certification applications, impose a 45-day deadline on filing immigration petitions, and require employers to pay attorney's and other fees associated with the process. (See our February 2006 Immigration News & Analysis for more details on DOL's proposed changes.) While the DOL has not yet made these changes final - and there are indications that some of the proposals have been modified - the proposed rule is now making its way through the various government agencies that must comment and approve agency proposals before final action can be taken. We now expect that some or most of these proposed changes will become effective within the next three to six months. It is ironic, however, that the government is pressing forward on yet another set of harsh restrictions that will impede the hiring of eligible and needed foreign workers in the wake of current immigrant and nonimmigrant (e.g., H-1B) visa backlogs and unavailability. Although we do not yet know how drastic these changes will be, make no mistake, new rules will make it more difficult and expensive for many employers who rely on the valuable labor certification process as a means of obtaining "green card" status for coveted, eligible workers.
Establishing a Corporate Immigration Law Compliance Program
Without question, U.S. immigration laws are among the world's most complex, and there is extensive potential immigration liability lurking for all U.S. employers. While immigration law compliance can be especially daunting, corporate immigration law compliance is essential to any corporation's credibility before the USCIS and U.S. consulates abroad. Immigration law compliance also helps corporations maintain a competitive advantage in the global marketplace. Perhaps most importantly, corporations that do not comply with the law are easy targets for substantial fines, criminal prosecution, and public ridicule.
Under immigration law, all U.S. employers are required to complete and maintain an I-9 Employer Verification Eligibility form for each U.S. employee hired on or after November 6, 1986 to ensure that the foreign national is authorized to work. The law also subjects employers to civil penalties for failing to properly complete I-9s for each employee. In other words, an employer may be fined for simply completing the form incorrectly, or for employing a foreign national who works pursuant to an inappropriate or expired visa.
Full compliance with U.S. immigration law also is essential for employees. Significantly, an employee's willful and material misrepresentation on a visa application, or to an immigration official when applying for admission to the United States, can have dire consequences not only for the employee but also for the employer. First, the foreign national can be barred forever from entering the U.S. unless a very difficult-to- secure waiver of inadmissibility is granted. The employee will be subjected to mandatory incarceration and perhaps immediate deportation. Should the employee successfully misrepresent him or herself and gain unwarranted admission, his or her employer could face liability for employing someone with the incorrect (and thus unauthorized) visa status. Under some such circumstances, misrepresentations may lead to criminal prosecution, too. Wal-Mart's payment of a multi-million dollar fine in 2003 for permitting sub-contractors to employ "illegal aliens" at its stores is illustrative of what can occur when foreign employees incorrectly seek admission to the U.S. as a "business visitor" when in fact they require more time consuming and cumbersome-to-obtain work visas, such as an H-1B or L-1.
Too many companies attempt to tip toe through the minefield of immigration laws and dismiss immigration compliance as unimportant. Simply put, this is not good business practice. A company's ability to do business could be thwarted by flouting immigration rules or embracing the gray areas of immigration law. Non-compliance may preclude the retention or transfer of essential employees to work in the United States and elsewhere. Immigration non- compliance, which often involves a foreign national working with the wrong type of visa, may actually result in barring a company from securing U.S. government contracts. Moreover, immigration non-compliance may lead to public embarrassment and can adversely impact a company's overall public image.
Good immigration compliance begins with:
- Training human resource personnel and management involved in hiring practices on the fundamentals of U.S. immigration law.
- Urging HR and management to bring immigration counsel and the company's corporate law department into the process as soon as a foreign national employee or potential employee has been identified as a candidate for transfer to, training with, or otherwise being hired to work in the United States.
- Ensuring that a company's overseas divisions participate in priority visa processing programs at their local U.S. consulate, usually under the auspices of the American Chamber of Commerce, wherever such programs exist.
- Emphasizing immigration compliance, and especially the need for total disclosure and complete candor in all dealings with U.S. immigration officials.
- Implementing systems to monitor the expiration of work permits, immigration statuses, and travel documents for foreign national workers.
- Making immigration due diligence investigation an integral part of all corporate acquisition activities.
- Regularly educating HR personnel and management about immigration policies and processes.
Companies that embrace centralized immigration procedures also witness an increase in satisfaction from their foreign workers and those managers who depend upon them: fewer visa denials, less potential liability, and substantially reduced costs. An integrated approach plays a key role in maintaining growth and enhancing a company's hard-earned reputation for excellence and honesty.
Senate Floor Debate on Immigration Reform Finally Begins
Tangled in presidential politics and shifting political winds, comprehensive immigration reform is nearing a "make or break" point, with new political players and fresh peril for both parties. Against this backdrop, Senate Majority Leader Harry Reid has decided to force the issue by committing these next two weeks of Senate floor debate to immigration reform, starting today, May 14th. Senator Reid also announced that he will give negotiators a few days within which to reach a new deal on new proposals. If agreement cannot be reached, however, he will re-introduce Senate bill S. 2611 - the bill that passed a year ago - because he believes bipartisan backing makes it the best starting point for action. (See May 2006 Immigration News & Analysis.) However, there are countless problems with S. 2611. For starters, Senate Republicans who helped craft the bill last year no longer see it as a solution and now support a much tougher and restrictive legislative stance. Moreover, other Republicans who opposed that bill last year have emerged as key players in this year's debate and have introduced concepts and issues that were hardly discussed in 2006. For example, Senator Kyl of Arizona is insisting on provisions that would decimate family preference categories in exchange for a legalization program. Other new provisions would eliminate a path to permanent residence for any new essential nonimmigrant workers and would adopt zero increases in the worldwide ceiling for future green cards. Meanwhile, Democrats must bridge chasms within their own party and among their stakeholders. Without substantive agreement between the White House-led group of Republican Senators and a Kennedy-led group of Democratic Senators, the fate of comprehensive immigration legislation rests with President Bush, who could use his remaining political capital for a major second-term domestic victory. So far, he has not invested the kind of personal advocacy that is now critical. Without Presidential resuscitation, immigration reform remains on life support. And, neither party is particularly optimistic about its prognosis.
TPS Extended for Hondurans, Nicaraguans, and Salvadorans
USCIS recently extended temporary protected status (TPS) designation for eligible nationals of Honduras, Nicaragua, and El Salvador by an additional 18 months, or until January 2009 for Hondurans and Nicaraguans and until March 2009 for Salvadorans. Current expiration dates are July 5, 2007 and September 9, 2007, respectively. USCIS reports that approximately 78,000 Hondurans, 4,000 Nicaraguans, and 230,000 Salvadorans will be permitted to continue to work and live in the United States if they re- register and avail themselves accordingly. (USCIS advises that re-registration instructions will be forthcoming.)
Mandamus Litigation Can Compel DHS Action: Professor Ari's Case
Pending for nearly two years for "security checks," an H-1B employment visa petition filed by the University of Nebraska - Lincoln ("UNL") on behalf of Dr. Waskar Ari, a Bolivian historian the university seeks to hire as an Assistant Professor, was finally approved by the Department of Homeland Security ("DHS") after Maggio & Kattar attorneys Michael Maggio and Thomas Ragland filed a lawsuit to compel action in federal district court. (See our press release for more details on the UNL lawsuit and our article on this lawsuit in March 2007 Immigration News & Analysis. Click here for an information clearinghouse on the case.) No explanation for the extraordinary delay or the sudden change of heart was given by the DHS. Dr. Ari now must apply for a visa at the U.S. Consulate in La Paz, Bolivia where visa issuance is by no means assured and another round of security checks is a near certainty.
Despite the DHS's recent announcement that the filing of mandamus lawsuits will not expedite its adjudication of long-pending cases, Maggio & Kattar's litigation team attorneys find that mandamus suits continue to be effective tools for compelling the agency to act before being ordered to do so by a federal judge. For example, our attorneys have continued to successfully pursue mandamus lawsuits in long delayed deportation, naturalization, adjustment of status, and employment authorization cases and we have recently filed such suits in U.S. district courts in Texas, Vermont, Maryland, and the District of Columbia. We encourage anyone who has been waiting for an unreasonably long period of time for a decision on an immigration benefit application to consider filing such a lawsuit in federal court.
Maggio & Kattar Attorneys to Teach Immigration Law at Annual District of Columbia Bar CLE Immigration Law Program
Maggio & Kattar has been asked to teach the District of Columbia Bar's Immigration Law Course, as part of the D.C. Bar's continuing legal education (CLE) program. For more than four years, Maggio & Kattar attorneys have taught this four-part series, which examines family-based immigration, business immigration law for business lawyers, the immigration implications of criminal convictions, and immigration law ethics, among other topics. The program will be conducted on May 8, 15, 22 and 29, 2007 in Washington, D.C.