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

Responding to proposals by the Migration Advisory Committee, the UK Border Agency (UKBA) has announced that before employers may hire migrant workers for a job under Tier 2 of the points-based system, they must advertise the position for four weeks. Previously, the test required two weeks of advertising, or one week’s advertising for jobs with salaries of £40,000 or more. The change is intended to better support British nationals looking for skilled jobs as the country comes out of the economic downturn.

The change will take effect December 14, 2009. To provide flexibility to employers, the four weeks of advertising will not need to run continuously. Employers that have already advertised positions need not re-advertise to meet the requirement.

Updated guidance for Tier 2 sponsors will be provided on UKBA’s website on December 14.

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The economic recession has resulted in a growing number of U.S. jobseekers, particularly those at the executive level, seeking (and securing) employment abroad, according to USA Today. Although the number of candidates remains relatively small, the trend reverses a longtime pattern of greater numbers of foreign workers seeking jobs in the U.S. than the reverse.

Recruiters cite India, China, Brazil, Dubai and Singapore as the “hottest” markets. Candidates in the fields of engineering, investment banking, computer technology, manufacturing and consulting are in high demand.

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The Houston Chronicle reports that with a budget shortfall of $164 million, U.S. Citizenship and Immigration Services (USCIS) is considering increasing the fees it charges for immigration applications. USCIS also is considering possible cost-saving measures, including staff layoffs. As this blog previously noted, immigration applications (e.g., citizenship, permanent residency), a revenue source for USCIS, have decreased in recent years, thereby straining USCIS’s budget. In fiscal year 2009, citizenship applications decreased by over 25% (1 million in FY 2008; 733,000 in FY 2009). Although USCIS improved its citizenship application processing time after the most recent fee increases (July 2007), it may experience difficulty maintaining the five-month average processing time if the Obama administration succeeds in implementing a legalization program for the estimated 12 million illegal immigrants in the United States.

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Senators Bernie Sanders (I-Vt.) and Charles Grassley (R-Iowa) have introduced legislation that would prevent large companies that conduct mass layoffs from hiring foreign labor through guest worker programs. The Employ America Act (S. 2804) (pdf) builds on similar prohibitions included in the American Recovery and Reinvestment Act (ARRA or “Economic Stimulus”), which prevents companies receiving funds through the Troubled Asset Relief Program (TARP) from replacing laid-off citizen workers with foreign labor. Continue reading about this development on Littler's Washington D.C. Employment Law Update blog.
 

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According to IBN Live, visa applications by Pakistan-born U.S. citizens seeking to visit India will now be processed by authorities in New Delhi, rather than by the Indian embassy in Washington, D.C. or by consulates. Visa approvals had been tightened by the Indian embassy in Washington, D.C.

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The Times of India reports that India has issued a travel advisory in response to the Chinese embassy’s practice of stapling paper visas to passports of individuals from Jammu, Kashmir and Arunachal Pradesh. Indian officials have declared these visas invalid because they do not conform to the usual practice of pasting visas to passports. The advisory reminds Indians traveling to China to ensure that the visas are pasted onto their passports.

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As reported recently on this blog, the Government of India's Ministry of Home Affairs has released guidance on permissible use of Business Visas and Employment Visas by foreign nationals visiting India. This development has significant implications for multinational corporations sending employees to India on short-term assignments. For an update regarding this uncertain legal development based on feedback from companies whose employees have been directly affected by this situation, continue reading Littler's ASAP "India Guidance on Its Visa Regimes May Create Major Change for Companies Doing Business in India," written by Ian Macdonald.

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At a symposium in Washington, D.C., US Citizenship and Immigration Services (USCIS) announced that today (November 19, 2009), an additional 1,000 Notices of Inspection (NOI) will be issued. This is a significant move and reveals the administration's intent to increase enforcement actions against employers that engage in the unlawful hiring of undocumented workers. This year alone, Immigration Customs and Enforcement has issued 1,044 NOIs, which is three times as many NOIs than were issued in 2008. Adding another 1,000 NOIs drastically increases this statistic. To further illustrate the administration's aggressive pursuit of employers, Notices of Fines totaling $24 million have been issued in 2009, compared with $2.4 million in 2008. Also, during 2009, 100 companies and individuals have been barred from doing business with the federal government, whereas only one company was barred last year.

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According to The National, the United Arab Emirates Ministry of Labour (MOL) plans to reform the system by which it accepts work permit applications through external typing offices, following reports of abuse, including forgery. The external typing offices submit applications directly to the MOL on behalf of individuals and companies, collect ministry fees and fines, and provide legal advice. There are approximately 5,000 of these offices, and currently they can operate without a license.

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U.S. Citizenship and Immigration Services (USCIS) recently announced that it would temporarily accept H-1B petitions for filing without a certified Labor Condition Application (LCA) from the Department of Labor (DOL). This action is being taken in response to public pressure and to the USCIS Ombudsman’s recommendation that USCIS reinstate its practice of accepting an H-1B petition with evidence of a timely filed LCA with DOL. USCIS had affirmed this practice in 1992, and then again in 2001. USCIS has granted this accommodation for a 120-day period, starting November 5, 2009 and ending March 4, 2010.

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gantdaily.com reports that Canada will cut its immigrant visa quota by 3,000 while keeping the 2010 permanent resident visa quota at current levels of between 240,000 and 265,000. The lower immigrant visa quota is based on the 18-month processing time for applications of refugee status claimants. The quota, however, may go up again in 2011 and 2012 because vacancies on the Immigration and Refugee Board will soon be filled.

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The New York Times reports that the Obama Administration will push to implement immigration reform measures in the first quarter of 2010. Department of Homeland Security Secretary Janet Napolitano indicated today in an address to the Center for American Progress that immigration reform will be put on the political agenda early in 2010. Napolitano sent a clear message to Congress that it should be ready for movement on immigration. Specifically, Napolitano referred to a "three-legged stool" approach that will incorporate tougher enforcement laws aimed at employers and illegal immigrants, a streamlined system for legal immigration, and a stringent process to allow illegal immigrants to become legal. It is anticipated that the Administration's focus on securing the border and targeting employers that hire undocumented workers will substantially increase while the foundation is laid to introduce an immigration reform initiative to Congress.

This entry was written by Ian R. Macdonald.

Photo credit: David Franklin

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As reported by the New York Times, on October 30, 2009, President Obama repealed the ban on travel to the United States by people who test positive for HIV. The final rule (pdf) lifting the ban will take effect on January 4, 2010. As of the effective date, foreigners wishing to visit the U.S., or seeking U.S. residency, will no longer be required to take an AIDS test.

Photo credit: change.gov

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The U.S. Supreme Court has asked the Solicitor General to submit a brief outlining the Obama administration’s stance on an Arizona law that punishes companies for hiring illegal immigrants, the Miami Herald reports. The justices will review this brief before deciding whether to hear a challenge to the law.

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The Wall Street Journal reports that thousands of H-1B visas for fiscal year 2010 remain available. Unlike previous years, when the 65,000 visas available for the year were scooped up by employers within days, factors such as the sagging economy and government investigations into visa fraud have resulted in companies underutilizing the program. Not since 2003—when 323 days elapsed before all fiscal year 2004 H-1B visas were awarded—have visas remained available at such a late stage.

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Gulf News reports that remaining outside the UAE for six months or longer will result in the automatic cancellation of a residence permit. The condition is not new – it is contained in the Federal Residency Law – but it had not been rigorously enforced. Now, however, a residence permit holder who remains outside the UAE for more than six months must reapply for a visa to re-enter. Exemptions may be granted, but only under specific circumstances.

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India's Ministry of Home Affairs (MHA) has released an FAQ (pdf) to clarify the two types of visas available for work-related visits to India: business visas (“B” visas) and employment visas (“E” visas).

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US Citizenship and Immigration Services (USCIS) has announced that as of October 30, 2009, approximately 53,800 H-1B cap-subject petitions had been filed and received. It also announced that the 20,000 H-1B Advanced Degree Exemption cap had been met, and that all petitions filed for an individual with an advanced degree from a US academic institution will now be counted towards the general H-1B cap of 65,000. 

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The U.S. Citizenship and Immigration Services (USCIS) Ombudsman has discovered (pdf) that iCert, the certification process for Labor Conditions Applications (LCA) operated by the Department of Labor, has been generating false mismatches of Federal Employer Numbers. After examining applications filed between April and August 2009, the Ombudsman found that 7% of denials (approximately 2,900 applications) were incorrect. These errors can hinder the ability to timely file original or extension H-1B visa petitions.

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On October 21, 2009, Roxana Bacon became Chief Counsel for U.S. Citizenship and Immigration Services. Ms. Bacon is an employment and immigration law practitioner with over 30 years’ experience. Her professional experience includes:

• serving as a lawyer representative to the Ninth Circuit Judicial Conferences (the first woman to have this role);
• being the first woman elected President of the Arizona State Bar Association;
• teaching at the Arizona State University Sandra Day O’Connor College of Law; and
• chairing the American Immigration Lawyer's Association's (AILA) Enforcement Liaison Committee.

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On October 28, 2009, President Obama signed into law the Department of Homeland Security Appropriations Act, 2010 (H.R. 2892). The law contains a measure that ends the “widow penalty,” the government’s practice of annulling a foreigner’s permanent residency application when his or her American spouse dies before the marriage is two years old. 

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