Business Immigration Monthly for February 2010

Date: 1/29/2010
 Business Immigration Monthly for the Month of February 2010

DOL Introduces Prevailing Wage Functionality to the iCERT Portal

The U.S. Department of Labor (DOL) recently introduced the prevailing wage functionality to the iCERT portal. As previously discussed, in our firm's Immigration Update dated December 28, 2009, the DOL changed the prevailing wage issuance process as of January 1, 2010. After January 1, 2010, prevailing wage determinations are no longer issued by the State Workforce Agencies (SWA) for the H-1B and PERM processes. Instead, the prevailing wage determinations for these programs are now issued by the federal DOL. On January 21, 2010, the DOL added the prevailing wage functionality to its iCERT portal so that users can submit prevailing wage requests electronically to the DOL. Prior to this functionality being introduced, users could only submit prevailing wage determinations by mail to the DOL's new National Prevailing Wage and Helpdesk Center (HPWHC) based in Washington, DC. However, now that the prevailing wage function has been added to the iCERT portal, users will be able to save prevailing wage applications in draft, withdraw submitted prevailing wage requests, reuse information on current prevailing wage applications to create new applications, request re-determination reviews of determinations that users disagree with, and view/manage all of the users' prevailing wage determination/requests.

It is still unclear whether the electronic submission of the prevailing wage requests will expedite the processing of prevailing wage determinations. Although the DOL previously stated that it may take 60 days to receive prevailing wage determinations, the DOL was previously processing prevailing wage determinations for the H-2A and H-2B programs in approximately one week.

Additional information about the implementation of new prevailing wage system for the H-1B and PERM programs will be contained in our firm's future Immigration Updates when it becomes available.

CBP Reminds Visa Waiver Travelers About Need to Obtain ESTA Clearance Prior to Traveling Internationally

Customs and Border Protection (CBP) recently reminded U.S.-bound international travelers from Visa Waiver Program (VWP) countries of the Electronic System for Travel Authorization (ESTA) requirements. ESTA has been mandatory for all nationals from VWP countries traveling to the United States under the VWP since January 12, 2009. CBP stated that beginning January 20, 2010, it will initiate a 60-day transition to enforce ESTA compliance for all carriers and that VWP travelers without an approved ESTA clearance will not be allowed to board a U.S.-bound plane.

CVP stated that ESTA applications may be submitted at any time prior to international travel and that once approved, the clearance generally will be valid for up to two years or until the applicant's passport expires, whichever comes first. VWP travelers are required to log onto the ESTA website (www.cbp.gov/esta) and complete an online application prior to traveling internationally. CBP stated that ESTA is expected to completely replace the paper Form I-94W in the coming months. The ESTA website is available in 21 languages to accommodate most VWP travelers.

DOS Releases February 2010 Visa Bulletin – Little Advancement in the Employment-Based Immigrant Visa Categories

The U.S. Department of State (DOS) recently released its February 2010 Visa Bulletin. Similar to the Visa Bulletins issued during the past few months, the February 2010 Visa Bulletin does not contain any significant advancements in any of the employment-based immigrant visa categories. The most significant increase is in the EB-3 World category which advanced from August 1, 2002 to September 22, 2002. However, both the EB-2 and EB-3 Indian national categories did not advance at all.

The following is an overview of the movement in the employment-based immigrant visa categories since the beginning of retrogression in October 2005.

Oct 2005

Dec 2007

Jun 2008

Nov 2009

Dec 2009

Jan 2010

Feb 2010

EB-3 World

03/01/01

09/01/02

03/01/06

06/01/02

06/01/02

08/01/02

09/22/02

EB-2 China

05/01/00

01/01/03

04/01/04

04/01/05

04/01/05

05/01/05

05/22/05

EB-3 China

05/01/00

10/15/01

03/22/03

06/01/02

06/01/02

08/01/02

09/22/02

EB-2 India

11/01/99

01/01/02

04/01/04

01/22/05

01/22/05

01/22/05

01/22/05

EB-3 India

01/01/98

05/01/01

11/01/01

04/22/01

05/01/01

06/22/01

06/22/01

EB-3 Other Workers

10/01/00

10/01/01

01/01/03

06/01/01

06/01/01

05/01/01 (India)

06/01/01

06/01/01

USCIS Issues Guidance on Establishing Employer-Employee Relationship in H-1B Process

The U.S. Citizenship and Immigration Services (USCIS) recently issued updated guidance and clarification to its adjudicators about what constitutes a valid employer-employee relationship necessary to qualify for H-1B classification. The guidance does not implement a new procedural or statutory change. Instead, the guidance is intended to clarify valid employer-employee relationships, especially as they pertain to independent contractors, self-employed beneficiaries and beneficiaries placed at third-party worksites. The guidance also discusses the types of evidence employers may provide to the USCIS to establish that a valid employer-employee relationship exists and will continue to exist throughout the duration of the requested H-1B validity period.

In its guidance, the USCIS stated that its adjudicators must determine if an employer has a sufficient level of control over the employee in order to establish the employer-employee relationship for H-1B purposes. The USCIS stated that the employer must be able to establish that it has the right to control over when, where and how the beneficiary performs the duties of the offered position. The USCIS stated that it will consider the following in the totality of the circumstances when determining whether the Petitioner has the right to control the beneficiary's employment:

1.Does the petitioner supervise the beneficiary and is such supervision offsite or onside?

2.If the supervision is offsite, how does the petitioner maintain supervision?

3.Does the petitioner have the right to control the work of the beneficiary on a day-to-day basis of such control is required?

4.Does the petitioner provide the tools or instrumentalities needed for the beneficiary to perform the duties of employment?

5.Does the petitioner hire, pay and have the ability to fire the beneficiary?

6.Does the petitioner evaluate the work product of the beneficiary?

7.Does the petitioner claim the beneficiary for tax purposes?

8.Does the petitioner provide the beneficiary any type of employee benefits?

9.Does the beneficiary use proprietary information of the petitioner in order to perform the duties of employment?

10.Does the beneficiary produce an end-product that is directly linked to the petitioner's line of business?

11.Does the petitioner have the ability to control the manner and means in which the work product of the beneficiary is accomplished?

The USCIS confirmed that an employer does not need to provide evidence of all of the criteria indicated above. An employer may submit a combination of any documents that sufficiently establishes that the required relationship between the employer and the beneficiary exists. The USCIS then provided examples of cases in which sufficient control may or may not exist to qualify for H-1B classification. For example, if a beneficiary does not report to the employer for work assignments, the employer does not control how the beneficiary will complete his/her daily tasks, the employer does not complete progress reviews of the beneficiary and the beneficiary's end product is not related to the employer's line of business, the requisite employer-employee relationship may not be established for H-1B purposes because the employer can not evidence control over the beneficiary's assignment. However, if the beneficiary reports weekly to a manager who is employed by the employer about the progress of his/her assignment and the beneficiary receives benefits from the employer, a sufficient employer-employee relationship may exist so that the beneficiary may be eligible for H-1B status.

The USCIS has been developing this guidance for more than seven months. However, while this guidance has been in development at USCIS headquarters, many of the adjudicators at the USCIS Service Centers have already been strictly interpreting the employer-employee relationship when adjudicating H-1B petitions. Therefore, this guidance appears to be intended to support this interpretation which has already been implemented at the Service Centers.

If the H-1B initial filing does not provide sufficient evidence of the employer-employee relationship, the adjudicators at the Service Centers have been instructed to continue to issue Requests for Evidence (RFE) to obtain the necessary documentation to confirm that that the employer-employee relationship exists and that the beneficiary is eligible for H-1B classification. This documentation may include, but is not limited to, a copy of the employment agreement between the employer and the beneficiary; a copy of the contract between the employer and its client if the beneficiary will be assigned to a third-party worksite; a letter from the client if the beneficiary will be assigned to a third-party worksite to clarify the terms of the assignment, the requirements of the assignment and the employer's level of control over the assignment; a description of the employer's performance review process; and a copy of the employer's organizational chart demonstrating the beneficiary's supervisory chain. The USCIS also indicated with extension petitions with the same employer, that in addition documenting the right to control the work of the beneficiary, the employer may also provide copies of the beneficiary's Forms W-2, the beneficiary's pay records, example of the beneficiary's work product, a copy of the beneficiary's performance reviews and a copy of any employment history records indicating promotions and pay rate changes.

Indian Consulates Begin Using Form DS-160 on January 19, 2010

As mentioned in our Business Immigration Weekly for the week of December 7, 2009, the U.S. Department of State is beginning its worldwide implementation of the Form DS-160, Nonimmigrant Visa Application. The DS-160 will replace the currently used Forms DS-156, DS-157, DS-158 and DS-3052. Individuals applying for a nonimmigrant visa at one of the Indian Consular posts will have to begin using the DS-160 on January 19, 2010, which is earlier than the anticipated worldwide consular post deadline of March 1, 2010 for a selected number of posts and April 30, 2010 for all other posts. Please note that K visa applicants will continue to use the Form DS-156 and the Form DS-156K supplement until further notice.

ICE Continues to Crackdown on Unauthorized Employment Practices

Pilgrim's Pride Corporation settled an investigation by U.S. Immigration Customs Enforcement (ICE) with an agreement to pay $4.5 Million and adopt greater measures to ensure the company complies with U.S. immigration laws and that its employees are legally authorized to work in the United States.

Heightened Security Measures Expected on All Flights

After the incident on Christmas where an individual attempted to set off an explosive device on a Northwest Airlines flight from the Netherlands to Detroit, Michigan, the Transportation Security Administration (TSA) has issued guidance regarding heightened security measures. Individuals flying into the United States should anticipate greater scrutiny in the form of increased screening such as more thorough baggage searches and pat-downs. Inevitably these measures will increase the wait time at the airport and individuals are advised to allow extra time to advance through the various check in and security check points. Travelers are also reminded that during their flight they will be instructed to follow special measures such as putting away their personal items and turning off their electronic devices for specific periods of time.