Global Immigration Counsel : Immigration Lawyer & Attorney : Littler Mendelson Law Firm : Permanent Residence, Labor Certification : Global Immigration Counsel

Financial Times reports that lobbying efforts by lawyers and businesses led to a relaxation of the UK’s points-based immigration system posting requirement. British companies seeking to fill senior-level positions with salaries over £130,000 no longer are required to advertise the positions in local Jobcentres. However, companies must continue to advertise via other UK media.

In addition, the Migration Advisory Committee (MAC), which oversees the points-based system, declined to ban intra-company transfers in which businesses bring in overseas staff. Unions had pushed for a ban, but officials believed that preventing foreign companies from relocating staff to the UK would negatively impact investment in Britain.

Rules for the points-based system are being tightened in other respects. The MAC recently recommended that the required posting period for jobs with salaries above £40,000 be increased fourfold, from one week to four weeks. Also, starting salaries of skilled non-EU workers without formal qualifications must be at least £32,000, up from £24,000; for qualified workers the starting salary increased from £17,000 to £20,000. Although the number of skilled non-EU workers coming to the UK has decreased recently, the new changes are expected to produce a further 10% cut.

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The U.S. District Court for the District of Maryland has upheld the E-Verify Federal Contractor Rule, scheduled to become effective September 8, 2009, that will require federal contractors to enroll in E-Verify within 30 calendar days after being awarded a covered contract and to start using the system within 90 days from the date of enrollment.

The U.S. Chamber of Commerce and other business organizations challenged the regulation, claiming it:

• violated federal immigration law;
• constituted improper rulemaking by the Executive Branch;
• exceeded the Executive Branch’s constitutional authority; and
• violated the Regulatory Flexibility Act because it did not consider the financial impact on employers.

The court disagreed and ruled for the government on every count.

Click here for the full text of the decision.

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The United States Court of Appeals, Seventh Circuit, has upheld a United States Department of Labor (DOL) regulation amended to limit the validity of foreign worker labor certificates to 180 days after the regulation had taken effect and only if submitted with a visa petition within that time period. A group of businesses had challenged the regulation, arguing that: (1) the DOL exceeded its authority by creating a rule that regulates immigration, and (2) the regulation itself was unlawfully retroactive because it invalidated previously approved labor certificates that were “valid indefinitely.”

The Seventh Circuit held that the DOL had not exceeded its authority, noting that previous DOL policy was not entirely consistent with federal law requiring that labor certificates only be issued if the DOL could demonstrate that (1) there were insufficient numbers of qualified and available workers for the position and (2) the employment of foreign workers would not adversely impact U.S. workers. The amended regulation, however, fulfilled legislative intent by requiring determinations based on true labor market conditions as well as protecting the interests of U.S. workers.

The court further held that the regulation was not retroactive because it did not create new legal consequences for a past act. The court found that the mere act of applying for a labor certificate was not a final event triggering legal consequences. Moreover, the court reasoned that “indefinite” did not mean “permanent” because the duration was “not clearly fixed.” The court concluded that the DOL addressed the issue of “indefiniteness” by prescribing a validity period for labor certificates.

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BusinessWeek reports that a troubled economy coupled with domestic concerns about jobs being lost to legal, and illegal, immigrants or through outsourcing make immigration reform a difficult campaign promise for President Obama to keep. Although Obama reaffirmed his commitment to the issue last week while meeting with pro-immigrant activists, his efforts might be stymied by a bill—co-sponsored by his former Illinois colleague, Senator Dick Durbin—that seeks to significantly limit the issuance of H-1B visas. Conversely, legislation that will be unveiled in the upcoming months by Senator Charles Schumer is expected to garner Obama’s support.

The debate comes at a time when immigration is in decline. The number of foreigners immigrating for school or work has decreased, and many presently residing in the U.S. are electing to leave because of a poor job market and visa hassles. As we noted earlier this month, more than one-third of H-1B visas for fiscal year 2009 remain available.

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According to BusinessWeek, even though the overall number of applications has increased, the number of foreign students admitted to graduate programs in the United States has decreased for the first time in five years. A struggling U.S. job market and the difficulties applicants face obtaining funding during enrollment and then visas after graduation are cited as major contributors to the decline. Most impacted are business programs, which normally enroll a considerable number of foreign students.

International students are instead opting to apply to programs in their home countries, where work visas are not an issue and the cost of education is considerably lower than in the United States. Many have turned to emerging programs in Asia and Europe. Applications to graduate programs in China rose 14% this year.

Fifty-five percent of U.S. graduate programs received more foreign applications in 2009 than in 2008, although less than half reported an increase in admission offers. U.S. graduate programs rely heavily on foreign students to meet diversity initiatives and to provide tuition income. Although a reported increase in domestic applications may fill the tuition void, the diversity gap may not be so easy to mend.

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According to the New York Times, an increasing number of U.S. college graduates are seeking employment in China. The low cost of living and vibrant Chinese economy, coupled with the dwindling U.S. job market, have made metropolitan areas such as Shanghai and Beijing appealing to recent graduates eager to join the workforce.

Some U.S. graduates are able to obtain far more important positions in Chinese companies than would be possible in the U.S. Rather than starting with an internship, then progressing to an entry-level position and slowly advancing through the ranks, American graduates are able to skip a rung or two on the corporate ladder and gain invaluable business experience that would have taken considerably longer in the U.S.

The benefits, however, are not one-sided. As Chinese businesses attempt to enter U.S. markets, American graduates, with their keen understanding of Western society and culture, are perceived as uniquely qualified to act as company liaisons. Moreover, the assertiveness of U.S. graduates, at least compared to their Chinese counterparts, is highly valued by Chinese businesses seeking to drive their companies forward.

Language, interestingly, has not been much of a barrier, even for those with limited or even no knowledge of the Chinese language; many Americans working in China become conversant in Chinese in a short period of time.

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The Financial Times reports that United Kingdom-based companies fear the points-based immigration system is negatively impacting their ability to compete. They complain that the rules have made it increasingly difficult to recruit, hire and train applicants and employees from outside Britain and that the system is flawed.

Problems have persisted since the system was introduced last year. Although designed to provide “British jobs for British workers,” the policy has frustrated companies in Britain. The requirement that businesses looking to fill high-level executive roles must post positions at local job centers, coupled with the inflexibility of visa examiners concerning application mistakes, has hampered recruitment efforts. Moreover, companies have found compliance difficult because the rules are constantly changing.

Government officials counter that 90% of applications from outside the UK are processed within three weeks. The Home Office is advising its visa case workers to be more flexible when examining applications. Most recently, the UK granted an exemption to candidates from colleges such as Harvard and Stanford, allowing them to participate in annual graduate recruitment drives until August.

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As reported by NetworkWorld, the United States Citizenship and Immigration Services (USCIS) has expanded its Administrative Site Visit and Verification Program to address fraud and abuses of H-1B and L-1 Visa programs by conducting unannounced work site inspections of companies that sponsor H-1B and L-1 Visa holders. Its Office of Fraud Detection and National Security estimates that 21% of H-1B visa petitions violate program rules. The shift comes as the Visa Reform Act - proposed federal legislation that will increase restrictions on and oversight of the issuance of non-immigrant professional visas – remains in congressional committee and employers examine visa alternatives should the legislation pass.

During “surprise visits,” USCIS assessors attempt to confirm the identities of a petitioning employer and visa recipient to verify that both have complied with the visa’s terms and conditions. Unlike the U.S. Department of Labor which has the statutory authority to investigate employer compliance with visa obligations, USCIS has no regulatory or statutory authority to enter workplaces of H-1B or L-1 Visa holders. USCIS officials have confirmed that complying with the investigation is voluntary. Previously only religious organizations were subject to mandatory inspections and reviews, however presently any non-immigrant petition might be subject to a workplace audit after approval and prior to any potential adjudication.

Investigators will request to interview the petitioner, review documents that support the visa application, and enter the workplace to visually confirm the recipient’s employment conforms to H-1B terms and conditions. Employers are not obligated to submit to disruptive or unreasonable requests for access to company employees or company property, but it is advisable that companies sponsoring foreign professionals prepare for potential visits by doing the following:

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The Department of Homeland Security (DHS) has issued a proposed rule (pdf) rescinding regulations instituting safe harbor procedures for employers that receive no-match letters from the Social Security Administration (SSA) or notice of suspect documents letters from the U.S. Immigration and Customs Enforcement (ICE) regarding their employees’ authorization to work in this country.

Read full story on Littler's Washington DC Employment Law Update blog.

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The Wall Street Journal reports that many U.S. businesses along the Canadian border are complaining that a U.S. law requiring travelers to show more than a driver’s license to enter the United States is hurting sales. They claim the additional burden is causing a sharp decline in patronage by Canadian customers.

The law, The Western Hemisphere Travel Initiative, was drafted in 2005 in response to the 9/11 Commission report that recommended tighter border restrictions. The law’s initial provisions, which required greater documentation from air travelers to the United States, took effect January 2007.

During June 2009, the first month the new land and sea crossing requirements became effective, there was a 23% drop from the previous year in border crossings at the U.S.-Canada bridges. Although some businesses are reporting a 27% to 30% drop in sales, U.S. government officials contend the law has had no discernible negative impact on business. Some experts believe the recession is damaging travel and business along the border because people are not traveling as frequently or as far.

Security experts suggest that the law was designed more with Mexico in mind—where documentation requirements have been strict for some time—and not Canada. Before the new requirements, security at U.S.-Canada crossing points was remarkably lenient and Canadians were sometimes permitted to enter the U.S. without showing identification.

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The UK Border Agency (UKBA) has announced several changes to its points-based system. Changes include (PDF):

• Under Tier 2 (General), employers will no longer need to post job vacancies at JobCentres if the position is that of a director, chief executive or legal partner where the salary package exceeds £130,000 or where stock exchange disclosure will be required;
• Migrant workers applying for a Tier 2 visa based upon an intra company transfer (“Tier 2 (ICT)”) must not be directly replacing a settled worker; and
• Establishment—exclusively for University Vice-Chancellors and Academic Registrars—of a UKBA email inbox to address urgent immigration-related matters that have not been resolved by other agencies. Responses will be guaranteed within 72 hours.

In addition, the UKBA has updated information it provides to employers wishing to sponsor foreign employees for a Tier 2, 4 or 5 visa. The 191-page packet (PDF) can be downloaded at UK Border Agency’s website.

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Arab Times reports that Kuwait will now allow foreign workers, after three consecutive years of employment with the same employer, to transfer their residence permits to another sponsor without approval of the current sponsor. However, this policy change does not apply to: 

• foreign workers hired locally (who can transfer after one year); or
• foreign workers hired for government projects (who can only transfer after five years – unless they hold a university degree in which case they can transfer after three years).

The policy change is an attempt by the Kuwaiti government to eliminate visa trading in the country. Kuwaiti legislators, concerned that companies were taking advantage of foreign workers, applauded the move.

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As reported by Daily Triumph, Libya, in an effort to increase tourism, has made it possible for tourists to obtain visas at their point of entry. Moreover, in addition to the government, authorized service providers will be able to obtain visas for tourists. Libya is hoping to attract 1.5 million tourists a year. Recent statistics show that 17,000 tourists visited Libya during the first three months of 2009.

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The United States Citizen and Immigration Services (USCIS) reported promising news for foreign nonagricultural workers who possess valid, temporary labor certificates and who are seeking a fiscal year 2009 H-2B visa. Due to a decrease in requests, approximately 25,000 visas remain available for 2009, more than one-third of those available under the Congressionally mandated cap. Therefore, USCIS has reopened the filing period.

The H-2B nonimmigrant program permits employers to hire foreign workers to come temporarily to the U.S. and perform temporary nonagricultural services or labor on a one-time, seasonal, peak load or intermittent basis.

To obtain a fiscal year 2009 H-2B Visa, Form I-129 (PDF) petitions must be received and approved by USCIS before October 1, 2009. Because the average processing time is two months, it is unlikely that regularly submitted petitions would be approved before the October 1 deadline, so USCIS is recommending that petitioners use its premium processing service which has an average processing time of 15 calendar days.

Petitions for a fiscal year 2009 H-2B visa must include the following:

• A mark in red ink that the petition requests a 2009 fiscal year start date.
• An employment start date before October 1, 2009.
• A valid, temporary labor certificate issued by the U.S. Department of Labor indicating a fiscal year 2009 employment start date that is valid for the entire period of requested employment.
  • NOTE: The U.S. Department of Labor advises employers to file temporary labor certificate requests at least 60 days before the need for the employee. If a certificate is not presently possessed, it would appear unlikely, even if using premium processing, that one could be obtained in time to submit with a fiscal year 2009 H-2B petition.

Petitions requesting an employment start date before October 1, 2009 that are received on or after October 1, 2009, or petitions that are incomplete, will not be approved. Petitions requesting an employment start date on or after October 1, 2009 will be considered for a fiscal year 2010 H-2B visa.

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The Los Angeles Times has reported that President Obama believes immigration reform is unlikely this year and that it must wait until 2010. Although promises of immigration reform during his first year in office were made during the campaign—and high-ranking legislators predicted reform could occur in 2009—current pressing matters, such as economic recovery and healthcare reform, have forced the administration to reprioritize. The delay is upsetting to advocates who suggest that immigration reform will not be as complex and time-consuming as the administration appears to believe.

President Obama made his statement about immigration reform while in Mexico meeting with his NAFTA counterparts, Mexican President Felipe Calderon and Canadian Prime Minister Stephen Harper. Other topics discussed at the meetings were the “Buy American” provisions of the stimulus package and the United States’ restrictions on Mexican truckers.

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Legislation introduced in both the House and Senate aimed at reducing illegal immigration would expand the E-Verify employment verification system, and require its use by all employers. The Secure America through Verification and Enforcement Act (SAVE Act) (H.R. 3308, S. 1505) was originally introduced in 2007, but died in committee. The current bills introduced by Rep. Heath Shuler (D-NC) and Sen. Mark Pryor (D-Ark.) remain substantially similar to the earlier versions. Essentially, both bills contain three components to curb illegal immigration, the second of which would impact employers. Both bills would mandate the use of E-Verify, although the Senate bill provides for a slightly longer timeframe in which all employers must be in compliance with the Act. Continue reading about this development on Littler's Washington D.C. Employment Law Update blog.

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On Friday the Senate confirmed the nomination of Alejandro Mayorkas to serve as the director of the U.S. Citizenship and Immigration Services (USCIS), the agency within the Department of Homeland Security responsible for overseeing lawful immigration to this country. In addition to establishing immigration-related policies and services, the USCIS adjudicates the petitions and applications of potential immigrants and guest workers. Continue reading about this development on Littler's Washington D.C. Employment Law Update blog.

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The New York Times reports that President Obama’s approach to immigration enforcement has remained similar to that of his predecessor. Employee paperwork audits have been conducted at hundreds of businesses and prosecutions for immigration violations have increased. E-Verify, the federal program that allows employers to check applicants’ work authorization status, has been expanded, as has a cooperative program between federal, state, and local officials that runs immigration checks on individuals booked at certain local jails.

The reliance on holdover policies has upset immigrant and Latino advocates, key supporters of Obama’s election, who believed the new administration would take a different, less harsh approach. Although administration officials state that they have backed away from unpopular mass factory roundups of illegal immigrants, advocates contend that the administration’s continuation of existing programs will result in further ethnic profiling and civil rights violations.

As previously discussed, Democrats are planning to introduce an immigration reform bill sometime this year or in early 2010. Anticipating a legislative battle, influential party members have suggested members alter their language when discussing the issue—e.g., abandoning the term “undocumented” in reference to illegal immigrants—to demonstrate their commitment to preventing illegal immigration and strengthening immigration enforcement.

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The nomination of Alejandro Mayorkas as director of the Department of Homeland Security’s Citizenship and Immigration Services was recommended by the Senate Judiciary Committee and the matter now goes to the full Senate for consideration.

Mayorkas served as U.S. Attorney for the Central District of California for 12 years. He has proposed an overall review of the agency, improving the department’s fraud prevention and detection operations, increasing interdepartmental cooperation, and improving E-Verify’s efficiency.

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Panama has amended its visa policy concerning nationals from “restricted countries” (Bulgaria, China, India, Iran, Malaysia, Pakistan, Philippines, and the United Arab Emirates, among others). Previously, these citizens required a visa to visit Panama. Now, however, if they possess a visa from the United States, Canada, Australia, or the European Union, they can enter on a tourist visa so long as it is secured at least 48 hours before traveling to Panama. Tourist visas are good for 30 days and can be extended for an additional 60 days if renewed before the expiration of the initial 30-day period.

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The BBC reports mixed reviews on England’s recently revised immigration system. Some contend that individuals with long and distinguished professional careers are slighted under the system and that preference is given to younger, more educated individuals with less experience. Others believe the system, although tough, is fair and that it promotes employment of domestic workers while allowing employers to look outside Britain and the European Union (EU) to fill specialist vacancies.

Many dismiss the system’s effectiveness and have called for a cap on migration of non-EU nationals. However, supporters contend that the system’s clear and objective criteria, without quotas, allows for admission of the most beneficial immigrant workforce regardless of the economic climate.

Issues remain, however, concerning the UK Border Agency’s inefficiency processing biometric visas and responding to specific cases. Moreover, some are troubled by the system’s lack of an independent appeals process.

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 Increased unemployment, coupled with immigration restrictions and delays has resulted in many skilled foreign workers electing to leave the United States. A recent study found that of those surveyed, 72% of Chinese nationals and 56% of Indian nationals who emigrated to the United States and then returned home thought professional opportunities were better in their home country, even though wages might not necessarily compare. Researchers estimate that possibly 200,000 skilled Indian and Chinese workers will return home over the next five years, compared with approximately 100,000 over the past 20 years.
 

Obtaining permanent residency can be a long process because only 9,800 green cards per country are awarded annually. BusinessWeek reports that applications from Indian and Chinese nationals can take almost a decade and, while applicants wait, visa restrictions prohibit them from changing positions, companies, or starting their own business without obtaining a separate visa. Although the Obama administration has vowed to push for immigration reform, it remains uncertain how skilled immigrants will be affected.

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The Department of Homeland Security (“DHS”) recently unveiled its updated website and YouTube channel. Through the website and YouTube, DHS aims to promote transparency, provide the public with accurate, up-to-date information, and start a dialogue on the department’s security efforts.

The YouTube channel will allow users to watch speeches, public service announcements, and other related content, while the DHS website, which was redesigned based on user input to make the site more accessible, will highlight the department’s five major responsibilities:

1. 1. counterterrorism, 
2. 2. border security, 
3. 3. enforcement of immigration laws, 
4. 4. disaster preparedness and response, and 
5. 5. department unification.

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A recent USCIS study reports that American businesses authenticate 1 in 4 new hires’ work status using E-Verify. According to a Homeland Security Insight & Analysis article, in 2009 there have been about 6 million E-Verify queries, a considerable increase from previous years. E-Verify boasts a 96.9% accuracy rate, and the program is frequently analyzed and updated. Substantial improvements are scheduled to occur in August 2009.

Although E-Verify has been praised by many in the business community, caution over mandating usage among all employers, particularly smaller employers, has been expressed. Others, however, believe that the system represents an efficient and effective way to curb illegal immigration, and are hoping that Congress increases funding and expands the program.

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Anticipating greater restrictions on H1-B visas, Indian IT firms operating in the United States are considering utilizing NAFTA provisions to avoid staffing shortages. The strategy arose in response to proposed U.S. legislation that would, among other provisions, limit the number of employees on H1-B visas in a company to 50% of its total U.S. workforce. Indian IT firms would be impacted because the majority of their U.S. staff work under H1-B visas. 

As reported by Computerworld, instead of sending Indian professionals to the U.S., they would go to Mexico, and Mexican employees would work in the United States under a TN professional visa, which is easier to obtain than the H1-B. No limit applies to TN visas; they are valid for three years, and they are renewable.

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