John Valdez’s Legal Blog

Anyone who has studied immigration law realizes that generally there are very few changes to the laws in the period immediately preceding a major election.   Immigration is known as a “hot button issue,” one the raises emotions and, no matter which side a candidate takes on the issue, can harm a candidate’s election prospects.  I suspect that for this reason, both John McCain and Barack Obama have largely ignored immigration issues.  Indeed, neither candidate addressed immigration in the debates. 

Still there have been some small movements in the immigration world.  On October 16, 2008, the USCIS issued final regulations which increase from one to three the amount of time a nonimmigrant can be granted TN status.  This regulatory change does help Canadian and Mexican nationals and their employers by giving them more flexibility in making plans for U.S. employment.  It also saves them expense, since extension requests, which cost money in terms of government fees and legal expenses, will not be needed as often.

In addition, the President signed two new bills into law in the past few weeks.  One law, signed on September 30, 2008, extends the E-Verify Program.  This program is meant to help employers electronically verify worker eligibility.   The program has noted flaws and can potentially be used to assist the government with its efforts to conduct worksite raids.  You may see my earlier blog on the subject for more information.

The other new statute, involving religous workers, was signed into law by President Bush on October 15, 2008.  This law continues the immigration program for non-minister religious workers.

Both the E-Verify and religous worker laws were only extended until March 2009.  Congress may have written such short extensions because of reservations regarding the effectiveness of both programs.  Congress wants the USCIS to promulgate regulations that will help cut down the instances of fraud in the religous worker program.  Congress may also be concerned about the error rate involved in the E-Verify Program.  Both of these laws will be reconsidered in the next Congressional term.

I am very hopeful that next year, a non-election year, will bring major reforms to the Immigration Laws that will aid immigrants.  Until that time, I will keep you posted on any other changes.       

On October 8, 2008, the USCIS released a report on incidences of fraud and technical mistakes in the H-1B Program.  This report, described below, may well result in a more burdensome H-1B process.

 The report involved a sampling of cases filed in 2005 and 2006 that were randomly chosen for investigation.  The investigation involved the review of cases filed and the use of workplace inspections.  The results, as reported, were somewhat surprising.  The USCIS found that out of 246 cases, 20.7% involved incidents of fraud and technical violations.  Fraud cases made up 13.4% of the findings, while technical violations were found in 7.3% of the cases.  I would caution readers that while the report cites violations in more than 20% of the cases, it is entirely possible that petitioners and beneficiaries may have valid defenses to the accusations that could be asserted in administrative or court proceedings.

Regardless of the accuracy of the report, the findings are sure to motivate critics of the Program to demand changes to the H-1B Program.  Many of the findings will bring outrage from these critics, including reported incidents of failure to pay the prevailing wage, improper employer demands for employees to pay H-1B business expenses, forged documents, and even a few incidents where the petitioning company allegedly did not exist.

Having represented employers on H-1B petitions for more than 12 years, I can attest to the fact that the employers I have worked with have tried to fully comply with H-1B rules and regulations.  Therefore, I am very skeptical of the government’s H-1B findings.  Regardless of my skepticism, the government may very well impose some or all of the following actions:  

•  Using independent open-source data to obtain information about visa seekers or petitioning companies.  This information could involve checking public information on a beneficiary’s credentials, commercial records to ascertain if a company is truly operating, and other such data.
• Using risks factors to apply greater scrutiny to cases in a class with a perceived higher incidence of fraud.  This additional scrutiny could result in much longer wait times for adjudication of many petitions;
• Adding additional evidentiary requirements that could make filings more burdensome; and
• Requiring more information on immigration forms.

Smith & Garg, PC immigration attorneys help employers follow H-1B regulations.  We are knowledgeable in all immigration compliance rules.  Please contact us if you have any questions about the H-1B program. 

For as long as I have been practicing, the Immigration Service has been faulted for failing to utilize up-to-date technology.  Antiquated computers, software, and high technology systems have certainly contributed to long processing times on immigration applications.  Faced with increased criticism for its failure to keep up with 21st century technology, to its credit, the immigration agencies have made some significant technological improvements.  A number of applications may now be submitted online,  INFOPASS, a new online appointment process, has significantly reduced the wait time at immigration offices, and the Premium Processing Program provides nearly instant feedback via email on pending applications. 

The results of immigration technology upgrades are uneven.  While the above-noted upgrades have produced some positive results, there are still large backlogs of cases causing very slow processing in general.  Even PERM, the new online labor certification process, has now slowed tremendously.  Where I once saw PERM cases completed in a couple of days, I am now seeing processing times of several months.

Other areas of modernization related to immigration enforcement are also less than perfect.  There is really no word on when a border fence will be completed, and there is certainly no guarantee that it will ever be completed or will be effective.  The E-Verify program likewise is not perfect.  This program provides an electronic system verification of work authorization that links databases of the USCIS and Social Security Administration and provides electronic feedback to employers.  Numerous cases of errors have been reported in the system, which have caused serious problems for individuals facing inaccurate reports of their ineligibility to work. 

I believe that the immigration agencies will make technological advancements that will improve their effectiveness, but there will always be problems areas.  We, the immigration attorneys at Smith & Garg, PC can help make your immigration experience as smooth as possible, under any circumstance.       

Few people realize just how complicated it is for employers to sponsor valuable employees for a green card.  For most employers, they must go through a three part process:  First, file a labor certification application.  Second, if the labor certification application is approved, file an immigrant visa petition.  Third, if there are available immigrant visas, file an application for adjustment of status or, if outside of the U.S., an application for a permanent resident visa at a U.S. Consulate.  This blog focuses on just the first step, the labor certification process. (There are cases where labor certification is not required for an employment-based green card, but that will be the subject for a future blog)

Before a labor certification can be granted, the employer must demonstrate that there is not a qualified, willing, and able U.S. worker (hereinafter referred to as a “qualified U.S. worker”) available to fill the position that the employer would like to give to a foreign national.  If this situation can be shown, and the foreign national is qualified to fill the position, the labor certification application may be certified and the process can move forward to the next step in the green card process. 

To demonstrate the lack of qualified U.S. workers, the employer must demonstrate that it advertised for the position, but the advertisement did not result in an application from a qualified U.S. worker willing to take the job.  Normally, there are several advertisements required in different mediums.  The employer is also responsible for providing notice of the labor certification application to the applicable union, or if there is no union, to the employer’s workers.  The process has many requirements, such as the employer’s assurance that it will pay the prevailing wage for the position. 

The labor certification process was developed to insure that when a foreign worker gains U.S. permanent residence through a job offer, it is not at the expense of a U.S. worker qualified for the position.  Thus, the system’s goal is to protect U.S. workers, and it relies on the employer’s good faith efforts to find a qualified U.S. worker. 

In practice, the labor certification process is deeply flawed.  Employers often have a difficult time understanding the rules.  For example, a labor certification application cannot be filed if there is an available U.S. worker who has the “minimum” “objective” qualifications for the position, such as, for example, a certain bachelor’s degree and two years of experience.  The process does not allow the employer to consider such factors as a terrible personality, or a prior employer’s recommendation not to hire the person.   Thus, the process often does not allow for real or normal business recruitment practices.

While the labor certification process is complex and difficult to apply for most employers, the lawyers at Smith & Garg, PC are very good at guiding employers, within the rules, to complete the process.  If you are considering sponsorship of a foreign worker, please contact us for a professional consultation.

On September 27, 2008, the House of Representatives passed Senate Bill 3606, which cleared the Senate on September 26, 2008.  This Bill extends the Special Immigrant Nonminister Religious Worker Program, which provides a pathway to U.S. permanent residence to nonminister religious workers.  The program was due to expire on October 1, 2008.  The President is expected to sign the Bill into law.

This is very good news for religious workers, especially for those who already have pending applications for permanent residence but were uncertain if they would ever receive a green card because of the expiring law.  The extension is, however, a short one.  Congress has only extended the religious worker law to march 9, 2009.

It appears that Congress granted only a short extension of the religous worker law because it wants to see if the Department of Homeland Security can takes sufficient measures to reduce the instances of fraud in the Program.  The USCIS has published reports of high instances of fraud in religous worker applications.  To reduce fraud, Senate Bill 3606 includes the following new provisions:

• The issuance of final regulations, within 30 days of the passage of the Act, to eliminate or reduce fraud;
• Certification to Congress and public notice in the Federal Register that these regulations have been issued; and
• Not later than March 9, 2009, submission of a report to Congress on the effectiveness of the regulations.

In the past, the USCIS has been very slow to publish needed regulations in a variety of immigration areas.  I hope that it will pass the religious worker fraud provisions quickly, as required by the Congressional mandate.  If it does not, the Program might not receive another extension.