Volume 5, Issue 3, March 2009

The Business Immigration Monthly is Hammond Law Group’s web-based newsletter, directed at international workers and employers seeking the most up-to-date news on U.S. immigration issues, specifically those that impact workers on H, L, E, and O visas and workers seeking permanent residency.

FEATURE ARTICLE

Are you Benching Employees in this Tough Economy?

Violating your LCA Could Cost Much More than a Return Ticket Home!

by Katie Orton-Jacob

            Over the recent weeks, our office has received countless phone calls from employers wanting advice on how to handle employees that cannot be placed on client sites due to the struggling economy.  Similarly, we receive regular calls from frustrated employees that have been placed on “unpaid leaves of absence” because their employer cannot find work for them.  Not uncommon in a down economy, many employers mistakenly believe that placing an employee on an unpaid leave is not “benching” and will relieve them of their duty to pay full salary thereby allowing the company to save money. 

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HEADLINES

APRIL visa bulletin
The Department of State has released the April Visa Bulletin.  In a surprising move, EB3 All Chargeability and EB3 Philippines retrogressed more than two years back to March 1^st, 2003. There was slight movements in other categories with EB3 China moving to March 1, 2003 and EB3 India moving one month to November 1, 2001. http://travel.state.gov/visa/frvi/bulletin/bulletin_4438.html

H-1B CAP
On April 1, 2009, the USCIS will open the FY 2010 H-1 visa quota.  H-1B visas can only be filed once per year so it is critical that you review your workforce and make sure that any needed action is taken.
http://www.h1cap.com/
 

LOW DEMAND RECORDED FOR FOREIGN WORKERS- H1B CAP FILING IMPACTED?
CNNMoney.com is reporting that the demand for foreign workers has decreased with experts expecting 2009 H1B cap filings to be at their lowest level in years. There is even the rumor that it could take up to a week to fill the H1b quota this year, whereas in the past it took less than 48 hours to fill the cap. Reporter Malika Zouhali-Worrall reports that there are a number of factors to blame for this year’s reduced demand including the slowing economy, new restrictions on H1B hirings, and the accounting scandal that weakened the IT powerhouse Satyam computer Services. As Zouhali-Worrall concludes, the good news, however, is the lower demand means “Smaller firms have the best chance they’ve had in years to score an H-1B”. Immigration experts are encouraging smaller firms that if they are hiring, this is the year to file the H-1B petitions as the chances for selection are much higher than in previous years. For full article see: http://money.cnn.com/2009/03/04/smallbusiness/foreign_worker_visas_applications_down.smb/index.htm

PREMIUM PROCESSING FOR I-140s EXPANDED

The USCIS is expanding the Premium Processing option for I-140 (Immigrant Petition for Alien Worker) cases to include Foreign Nationals who have reached, or are reaching their six year limitation of stay in H-1B status. Previously only Foreign Nationals who were in H-1B status at the time of filing could have requested Premium Processing of their I-140 petitions. On March 2nd, 2009, the USCIS started accepting Premium Processing requests for petitions filed where the Foreign National meets the following requirements:

-          is the beneficiary of an I-140 petition filed in a preference category eligible for premium processing

-          has reached their 6^th year statutory limitation of their H-1B stay, or will reach their six year limitation within 60 days of filing

-          are only eligible for further H-1B extensions under section 104 (c) of the AC21 regulation (i.e. Section 104(c) permits applicants to extend their stay in H-1B status in a three year increment, provided both their I-140 is approved and their priority date is not current); and

-          are ineligible to extend their H-1B status under section 106(a) of the AC21 regulation (i.e. Section 106(a) permits applicants to extend their stay in H-1B status in a one year increment provided their labor certification or I-140 application has been pending for at least 365 days.

For questions on whether you are eligible to premium process your I-140 petition, please contact your HLG attorney for assistance. http://www.uscis.gov/

USCIS MARKS MILESTONE- ELIMINATES FBI NAME CHECK BACKLOGS FOR NAME CHECKS PENDING MORE THAN 6 MONTHS

The USCIS has announced that, in conjunction with the FBI, they have been able to eliminate the backlog for FBI name checks pending more than six months. This elimination is the fourth milestone met by the USCIS as part of its joint plan with the FBI to eliminate the backlog of pending name checks completely. The agencies are on schedule to meet its next two goals- i.e. all name checks requests pending more than 90 days will be completed by May 30, 2009; and by June 2009, 98 percent of all name check requests will be completed within 30 days. On its website the USCIS writes “Elimination of the name check backlog is an example of the USCIS’ commitment to making timely decisions about immigration applications and petitions, while maintaining the security and integrity of America’s immigration system.” http://www.uscis.gov/

STIMULUS BILL PASSED- STRICT RESTRICTIONS IMPOSED ON H1B FILINGS
The US Senate has voted in favor of imposing strict restrictions on the hiring of H-1B workers by American companies receiving federal bailout money. The Bill requires that a company receiving bailout money under the TARP fund and applying for workers under the H-1B process must operate as an "H-1B dependent company,” i.e. the company must comply with the H-1B dependent employer rules which include attesting to actively recruiting American workers; not displacing American workers with H-1B visa holders; and not replacing laid off American workers with foreign workers.

For more information on the Stimulus Bill’s impact checkout HLG’s H-1B blog: http://www.h1cap.com/

HLG EVENTS

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