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Main Contacts

Laura J. Danielson, Chair

ldanielson@fredlaw.com
612.492.7148
Immigration

What's New

 

Advisory Alert for Foreign Nationals Stranded in the United States Due to the Earthquake and Tsunamis


USCIS has issued an advisory allowing an extension of stay for certain foreign nationals from Japan and countries in the Pacific who are unable to return to their countries because of the devastating earthquake and tsunamis affecting the region. This measure would allow travelers who exceed their authorized stay in the U.S. to extend their stay up to an additional 30 days.

Click here to read full article.

New Export Control Certification on Form I­129 (H‑1B, L, O, and other Nonimmigrant Petitions) Requires Employers to Plan Early:

Fiscal Year 2012 H­1B Filings Start April 1, 2011


On November 23, 2010, USCIS released a new version of Form I‑129, Petition for a Nonimmigrant Worker, that included a new Part 6, “Certification Regarding the Release of Controlled Technology or Technical Data to Foreign Persons in the United States.” Effective February 20, 2011, USCIS requires that employers filing nonimmigrant employment petitions based on Form I‑129 complete this certification for all H‑1B, H‑1B1, L‑1 and O‑1A petitions.

Click here to read full article.

H-1B Update: Filing Date Approaches


Employers may submit cap-subject H-1B petitions again on April 1, 2011, for the fiscal year (FY) 2012 H-1B program. The numerical limitation, or H1B cap, for FY 2011 was reached recently on January 26, 2011. New H-1B petitions may be filed under fiscal year 2012 beginning April 1, 2011. Beneficiaries of cap-subject petitions may begin employment no earlier than October 1, 2011. It is difficult to say when the H1B cap will be reached this year. Therefore, we recommend that employers be prepared to have their petitions delivered to USCIS on April 1, 2011. Due to longer delays in the LCA process, it is best to notify us as soon as possible for a new H-1B employee, so that we may immediately begin preparing these cap-subject cases.

Petitions are only subject to the FY 2012 H1B cap if the beneficiary has not been previously counted against the H cap. Thus, “new” H-1B petitions are cap-subject, but most petitions for extension, change of employer, or concurrent employment are not affected by the H-1B cap. Further, petitions on behalf of foreign nationals to be employed by institutions of higher education (or related or affiliated nonprofit entities), nonprofit research organizations, or governmental research organizations are not subject to the cap. If an employer wishes to hire an H-1B employee currently employed at such an organization, the new petition would be cap-subject. An attorney should be contacted to evaluate this, as recent changes by USCIS have occurred in defining who is cap exempt and cap subject.
 
We look forward to helping secure work authorization for your employees in fiscal year 2012.
For more information, please contact our immigration team at Fredrikson & Byron, P.A.

I-9 Employment Eligibility Verification Compliance: USCIS Issues Revised M-274 Handbook for Employers


On January 5, 2011, USCIS issued a revised Handbook for Employers to assist employers with the I-9 Employment Eligibility Verification form. This handbook is an essential guide for employers in completing the Form I-9, Employment Eligibility Verification Form. The Handbook has been revised with new information. Click here for more information.

USCIS Raises Many Fees and Adds New Fees


In a final rule effective November 23, 2010, USCIS is making changes to its fee structure. Applications or petitions mailed, postmarked, or otherwise filed on or after November 23, 2010, must include the new fees. A list of the new fees may be found here.

Fredrikson & Byron Immigration Attorneys Receive National ‘Beacon of Justice’ Award for Pro Bono Work - October 22, 2010


Fredrikson & Byron’s immigration attorneys received the national Beacon of Justice award from the National Legal Aid & Defender Association (NLADA), the oldest and largest U.S. non-profit association of individual legal professionals and legal organizations devoted to ensuring the delivery of legal services to the poor. NLADA is based in Washington, D.C. Click here to read full Press Release.

DV-2012 Visa Lottery Entry Period Begins


The DV-2012 Lottery online entry period runs from noon EDT on October 5, 2010, to noon EST on November 3, 2010. Information and instructions for the DV-2010 lottery are available at http://travel.state.gov/visa/immigrants/types/types_1318.html.

Travel Alert: Increased Scrutiny U.S. Ports of Entry 


At Newark and Philadelphia international airports, U.S. Customs and Border Protection (CBP) officials have recently refused entry to a few H-1B and B-1 foreign nationals due to questions regarding the nature of their work in the U.S. and/or visits to locations other than the offices of their employers. All H-1B, L-1, and B-1 foreign nationals should be prepared for additional questions from CBP and should carry the appropriate documentation regarding their employment and business activities when entering the U.S., particularly when visiting a client site rather than their place of employment.

This increased scrutiny may be related to new guidance issued by the U.S. Citizenship and Immigration Services requiring companies to demonstrate a strong employer-employee relationship with H-1B workers, particularly those working at client locations. For this reason and the increased efforts at targeting and reducing fraud, it is anticipated that the Department of Homeland Security will continue with tougher adjudications, more thorough border inspections, employer site visits, and other investigative measures.

H-1B and L-1 workers in particular should be prepared for additional questions by CBP upon entry in the U.S. They should carry the appropriate documentation (a complete copy of the petition and supporting documents) and be able to answer questions regarding their job duties, job location(s), and salary. B-1 nonimmigrants should be prepared to answers questions regarding the nature of the visit to the U.S. and should carry documentation regarding the purpose of the visit.

AAO Processing Times as of January 4, 2010 


Click here for the AAO Processing Times as of January 4, 2010. 

Revised Exchange Visitor Skills List issued by the Department of State


Click here to read the Revised Exchange Visitor Skills List issued by the Department of State.

E-Verify - Press Release, July 8, 2009


Click here to read the Department of Homeland Security’s Press Release entitled “Secretary Napolitano Strengthens Employment Verification with Administration’s Commitment to E-Verify,” issued on July 8, 2009.

What you should know if you’re contacted by a Government Agent (ICE/DOL/FBI)


  1. The investigator (agent) has the right to contact you and request to speak with you.
  2. If you are contacted by an agent, inform your supervisor or legal counsel immediately.
  3. If you are contacted by an agent, inform the agent that you have legal counsel. Provide the agent with your legal counsel’s information and ask the agent to directly contact counsel.
  4. You have the right to choose whether or not to speak with any investigator. In all situations you have the right to consult with legal counsel before you decide whether or not to talk to the agent.
  5. The government agent does not have the right to insist upon an interview, and it is improper for him or her to pressure you in an attempt to obtain an interview.
  6. If you decide to refuse an interview, you should politely, but firmly, decline the agent’s request. If you are threatened with a subpoena, ask the agent to allow you to contact legal counsel.
  7. You do not have to allow the agent to have access to your or your employer’s files unless a subpoena or search warrant is issued. If a subpoena or search warrant is issued, contact legal counsel immediately.
  8. An employee has every legal right to tell an employer about a government contact by an investigator. The agent may request or suggest that you keep the contact confidential, but there is no law that would prevent you from disclosing any detail of your discussion with the agents.
  9. Under all circumstances, remember that if you decide to speak, you must tell the truth to government agents. Failure to do so may, in and of itself, be a violation of the law.
  10. Do not destroy any documents or attempt to hide evidence.

USCIS will Resume Premium Processing Service for Form I-140, Immigrant Petition for Alien Worker


USCIS will accept Premium Processing requests for Form I-140 Immigrant Petition for Alien Worker, involving EB-1 Aliens with Extraordinary Ability, EB-1 Outstanding Professors and Researchers, EB-2 Members of Professions with Advanced Degrees or Exceptional Ability not seeking a National Interest Waiver, EB-3 Professionals, EB-3 Skilled Workers, and EB-3 Workers other than Skilled Workers and Professionals.

Premium Processing Service is still not available for Form I-140, Immigrant Petition for Alien Worker, involving EB-1 Multinational Executives and Managers and EB-2 Members of Professions with Advanced Degrees or Exceptional Ability seeking a National Interest Waiver.

Under the Premium Processing Service, USCIS guarantees petitioners that, for a $1,000 processing fee, it will issue either an approval notice, or where appropriate, a notice of intent to deny, a request for evidence or open an investigation for fraud or misrepresentation, within 15 calendar days of receipt. If the petition is not processed within 15 calendar days, USCIS will refund the $1,000 fee and continue to process the request as part of the Premium Processing Service. Premium Processing Service continues to be available for previously designated classifications within Form I-140 and Form I-129, Petition for Nonimmigrant Worker.

New Border Document Requirements in Effect June 1


U.S. Customs and Border Protection (CBP) issued a reminder to U.S. and Canadian citizens that new document requirements took effect on June 1, 2009, for entry into the U.S. at land or sea ports under the Western Hemisphere Travel Initiative (WHTI). CBP said it is committed to working with travelers to ensure that they have access to, and can obtain, appropriate travel documents. Those who lack WHTI-compliant documents but are otherwise admissible “will not be denied entry into the United States on June 1, and are encouraged to continue with their travel plans and to obtain facilitative and secure WHTI travel documents as soon as possible,” CBP said.

WHTI-compliant documents include:

  • U.S. or Canadian passports
  • Trusted Traveler Cards (NEXUS, SENTRI, or FAST/EXPRES);
  • U.S. Passport Cards
  • State or province-issued Enhanced Driver’s Licenses (when and where available)

Children under age 16 arriving by land or sea from Canada, Mexico, or the Caribbean need only present proof of citizenship, such as an original copy of a birth certificate, a consular report of birth abroad, a naturalization certificate, or a Canadian citizenship card. Document requirements for permanent residents of the U.S. remain unchanged, and such persons should continue to present their Permanent Resident Card (Form I-551).

USCIS Updates Progress Toward H-1B Cap


USCIS announced that as of May 22, 2009, it has received approximately 45,700 H-1B petitions toward the congressionally mandated 65,000 H-1B cap for the fiscal year (FY) 2010 program. The agency continues to accept petitions subject to the general cap.

Additionally, the agency said it has received approximately 20,000 petitions for those with advanced degrees; however, it continues to accept advanced degree petitions “since experience has shown that not all petitions received are approvable.” Congress mandated that the first 20,000 of these types of petitions are exempt from any fiscal year cap on available H-1B visas.

USCIS Announces Extension of J-1 Entry Date for International Medical Graduates to Qualify for “Conrad 30”


USCIS issued a reminder that the date by which international medical graduates must have been granted J-1 nonimmigrant status to later qualify for the “Conrad 30” program has been extended to September 30, 2009. Before this latest extension was granted, the most recent sunset date for qualifying J-1 admission was March 6, 2009.

Under the Conrad 30 program, each state health department may submit a request directly to the Department of State (DOS) to initiate the waiver process for a J-1 medical doctor. This request enables J-1 doctors to obtain a waiver of the two-year foreign residence requirement, if the DOS submits a favorable recommendation to USCIS, and generally will be granted “as long as there are no underlying concerns.” Once the waiver is granted, J-1 doctors must practice medicine for at least three years in a medically underserved shortage area or areas. The Department of Health and Human Services designates the medical shortage areas.

The Conrad 30 (originally Conrad 20) program was established in 1994 to address the shortage of qualified doctors in medically underserved areas, and has been extended several times since then. In 2004, Congress amended the program to exempt J-1 doctors who received a Conrad 30 waiver from the annual H-1B cap, because these doctors must complete their required three-year period of service as H-1B nonimmigrants.

The new sunset date of September 30, 2009, applies to the date the medical doctor originally entered the U.S. in J-1 status or received a change of status to J-1 to complete a residency program in the U.S. Doctors who acquired J-1 status before that date may pursue a waiver of the two-year foreign residence requirement under the Conrad State 30 program if they meet all the eligibility requirements.

DOL Keeping Pre-iCERT LCA System Operational Through June 30


On May 9, 2009, during a conference call, the Department of Labor recently told several organizations that it has remedied some problems with the new iCERT online labor condition application system, but will keep the old LCA system operational through June 30, 2009, to allow sufficient transition time to the new online system for filing LCAs using the new ETA-9035.

USCIS Extends Non-Minister Special Immigrant Religious Worker Program


USCIS has extended the non-minister special immigrant religious worker program through September 29, 2009. The program had expired on March 6, 2009.

The extended category covers special immigrant religious workers in professional or non-professional capacity within a religious vocation or occupation. The extended date also applies to accompanying spouses and children of these non-ministers. Workers entering the U.S. only to continue the vocation of a religious minister are not affected by the expiration date.

USCIS will receive and process Petitions for Amerasian, Widow(er), or Special Immigrant (Forms I-360) for those religious workers affected by the expiration of the program. USCIS also will process Applications to Register Permanent Residence or Adjust Status (Forms I-485) based on approved I-360 petitions for non-minister special immigrant religious workers.

Applications for Action on an Approved Application or Petition (Forms I-824) requesting “following-to-join” individuals whose basis for the adjustment was an approved I-360 SR petition for a non-minister category, or requesting an approved I-360 SR petition to be sent to the State Department’s National Visa Center, will continue to be accepted and processed as well, USCIS said.

Unless Congress extends the expiration date of the program, beginning September 30, 2009, USCIS will suspend processing of any pending Forms I-360, I-485, and I-824 affected by the expiration, and will reject all petitions and applications for this program received on or after that date.

State Dept. Updates Visa Availability for Remainder of Year


The Department of State’s Visa Bulletin for June notes that applicant demand for visa numbers, primarily for adjustment of status cases at USCIS offices, has been extremely heavy throughout the year. As a result, visa availability during the final fiscal quarter could become limited as categories approach their annual numerical limits. Therefore, the Department said, visa availability throughout the remainder of the year cannot be guaranteed and the establishment of cut-off dates, or retrogression of existing cut-off dates, cannot be ruled out. The employment-based third preference and “Other Workers” categories are unavailable for June, and are expected to remain that way until October 1, when the new federal fiscal year begins.

All other employment-based categories are Current, except for China-mainland born second preference, which has a cut-off date of February 15, 2005, and India second preference, which has a cut-off date of January 1, 2000. The Department noted that it was necessary to retrogress the India employment second preference cut-off date more than four years, from February 15, 2004, in the May Bulletin to January 1, 2000, in the June Bulletin, to keep visa issuances within the annual category numerical limit. The Department said it is unsure whether this retrogression will apply throughout the remainder of the fiscal year.

The Visa Bulletin for June is available at http://www.fredlaw.com/areas/immigration/govt_info.html.

New Form I-9 Required April 3, 2009


On or after April 3, 2009, employers must use the 02/02/2009 edition of Form I-9 when verifying and reverifying the employment eligibility of their employees. The current edition of Form I-9, dated 06/05/2007, must continue to be used through April 2, 2009, but will no longer be valid for use on or after April 3, 2009. The new Form I-9 may be found by clicking here.

Deferred Enforced Departure Extended for Liberians - USCIS Automatically Extends Validity of Employment Authorization Documents


USCIS automatically extended through September 30, 2009, employment authorization for Liberian nationals covered under Deferred Enforced Departure (DED). This is in response to President Obama’s recent announcement extending DED through March 31, 2010 for qualified Liberians and those persons without nationality who last habitually resided in Liberia. Although DED was scheduled to end for Liberian nationals on March 31, 2009, President Obama determined that there are compelling foreign policy reasons to continue to defer enforced departure from the United States for eligible Liberian nationals presently living in the United States under the existing grant of DED for 12 months, through March 31, 2010. The president’s determination continued the exclusion of some individuals from DED, including certain criminals, persons subject to the mandatory bars to Temporary Protected Status, and persons whose removal is in the interest of the United States.

In addition to automatically extending the validity of employment authorization documents for Liberian nationals covered under DED, USCIS will publish a notice in the Federal Register with instructions for these individuals on how to obtain employment authorization for the remainder of the 12-month DED extension, through March 31, 2010.

Workforce Retention Issues Impacting Foreign Employees During the Economic Downturn


As we all know, many employers across the United States are facing difficult workforce “right-sizing” decisions due to steep declines in revenues, decreased demand for goods and services, and an extremely tight credit market.

Companies engaging in lay-offs, temporary shut-downs, and wage and hour reductions must be particularly careful in considering the impact on foreign employees (including H-1B, L-1, TN, E-3, and other workers) in the permanent application process.

Depending on the type of visa, the employer and/or the foreign employee may suffer serious consequences for failing to notify the U.S. Citizenship and Immigration Service (USCIS) or the Department of Labor that there have been changes. For example, an H-1B employer who pays an H-1B worker less than the wage listed on the Labor Condition Application (LCA) could incur liability for back pay and civil monetary penalties for violations of the LCA regulations. The employer risks debarment from the H-1B program, and the employee could end up out of status, deportable, and ineligible for certain future immigration benefits.

In other situations, employers face a loss of their substantial investment in qualifying such workers for admission, the inability to rehire them without repeating the costly sponsorship process, and depending on the agreement, potential contract liability for breach of immigration sponsorship obligations.

In managing these concerns, employers must remember that workers are protected from discrimination in hire or discharge on the basis of citizenship and national origin status. In a mixed workforce of foreign and domestic workers, an employer must ensure that whatever policies or procedures it uses to identify workers for reduction-in-force are non-discriminatory in form or effect. 

Fortunately, many of these immigration related problems can be avoided through filing timely amendments to the LCA or immigration petitions indicating reduced wages or hours. Below is a list of possible scenarios. If any of these apply, you should consider contacting us promptly.

Reduction in Wages:

  • If the employee has an H1B there is risk of violating the LCA, which requires that the employee is paid the prevailing rate of pay listed on the LCA. LCA and H1B petition would need amending. If there are wage reductions without LCA amendment an employee could prevail on a complaint with the Department of Labor.
  • If a reduction in wages is significant (“material”) then an employer needs to amend other, non H1B applications as well.

Reduction in Hours:

  • A reduction in hours that drops an employee below full time employment would probably be “material”, requiring an amended petition.
  • A new LCA would also be required, indicating part-time hours.

Temporary Lay-offs:

  • H-1B’s have “no benching” provisions. Careful strategies would need to be employed to ensure that employee does not fall out of status.
  • Lay-offs would create material changes in any petitions, requiring amendments.

Pre-arranged “Shut-downs”:

  • These are similar to lay-offs. A possible solution would be to list minimum/maximum hours per month on impacted immigration petitions.

Terminations:

  • The employer must notify USCIS regarding any H1-B termination or risk continuing obligations for wages under the LCA.
  • The employee is out of status upon termination unless he/she can find new job/sponsor, and employer is liable for return transportation of H-1B worker.

Impact on Permanent Applications:

  • Testing the labor market is difficult, particularly if there are lay-offs in company
  • Job must be “permanent” and “full time” so reduced hours will create an issue.
  • The employer must document the ability to pay wages offered

Please contact us immediately if your company will be impacted by wage or hour reductions.

Revised Form I-9 - EFFECTIVE DATE EXTENDED


DHS extended the effective date of its interim final rule “Documents Acceptable for Employment Eligibility Verification,” for 60 days, from February 2, 2009 to April 3, 2009. This temporary extension will provide DHS with an opportunity for further consideration of this rule. USCIS also is extending the comment period for this rule for 30 days. Employers should continue to use the edition of Form I-9 dated 06/05/2007 until April 3, 2009.

Deadline for Filing New H-1B Applications under FY 2010: April 1, 2009


H-1B madness is here again! Employers must file H-1B petitions on April 1, 2009 for fiscal year 2010. The earliest H-1B employment start date is October 1, 2009, which is the first day of Fiscal Year 2010. Employers should notify us right away about any new H-1B petitions they expect to file for next year, as we will need to start getting the petitions ready for an April 1 filing deadline. H-1B numbers for 2010 will run out very quickly. If, like last year, the number of cases received exceeds the quota, USCIS will use a random selection process for all cap-subject filings received on April 1, 2009. USCIS will reject and return all cap-subject H-1B petitions that are not randomly selected and will also return the filing fee(s).

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