In a previous post, we explained that for employers trying to recruit and keep unskilled employees, the government offered a program called the H-2B program. On December 18, 2008, U.S. Citizenship and Immigration Services, and the U.S. Department of Labor released an advanced copy of a final rule supposedly designed to simplify the procedures. Among the most significant amendments to the H-2B regime, are (i) that petitioning employers will no longer be required to have to state the names of prospective employees, who are located outside the U.S., and (ii) reduce from 6 months to 3 months, the time an alien, following the conclusion of his H-2B term (which is up to three years), must wait before being able to apply for an extension or change of status, including seeking readmission to the U.S. on an L or H-1B visa.  Additionally, the new rule proposes to change the definition of “temporary services of labor”, so that “a one time need” can last up to  three years.  The new rule is scheduled to become effective on January 18, 2009.

While the new rule is a push in the right direction, the fact is that the whole H-2B program requires rethinking. The program is still very complicated and expensive to pursue. The bi-yearly quotas are still in place, imposing a severe restriction on the number of H-2B visas available. The labor certification process is too involved and unwieldly for most small guage employers. Bandaids on a gaping wound have limited effect; the same holds true for the impending rule purporting to improve the H-2B program.     ¼/p>

On December 12, 2008, U.S. Citizenship & Immigration Services (USCIS) announced that a rule would soon be published in the Federal Register amending the I-9 form that employers need to use to verify the identity and work eligibility of  all new hires. According to the Service, the fundamental differences between the present form and the new form, will be that the latter changes certain of the documents considered A-List documents. i.e. documents that demonstrate both identity and work eligibility. The new form will preclude the use of expired documents and will withdraw from consideration certain older forms of work authorization from the A-list.  For a complete explanation of how USCIS proposes to amend form I-9, we recommend that readers review the USCIS update provided, via link, below:   

 interim-final-rule-amending-i-9-procedures-december-2008.pdf

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Concerned that many El Salvadoran, Temporary Protected Status (TPS) extension applicants could confront a gap in coverage if United Stated Citizenship and Immigration Services (”USCIS”) cannot process qualified extension applications before March 2009, when TPS is due to terminate, the Service issued a rule on December 15, 2008, automatically extending benefits (including the right to work legally in the U.S.) through September 9, 2009. For employers, the way to determine if an employee is the beneficiary of an automatic extension, one only needs to view the face of the employee’s Employment Authorization Document (EAD), which should state that the holder is an El Salvadoran national and show a notation of either A-12 or C-19. We recommend that readers review the notice of TPS extension, which can be accessed through the link below:  

Rule on Extension of TPS Benefits

The Vermont Service Center (VSC) of U.S. Citizenship and Immigration Services recently came out with a Practice Pointer on H-1B layoffs. It called on employers and H-1B beneficiaries to keep three scenarios in mind: (1) if an H-1B petition is pending and Immigration learns, through the media, that the H-1B employer is going out of business, the VSC may issue a Notice of Intent to Deny. If the employer is not going out of businesses or otherwise was bought out by a successor organization, such information should be presented in response; (2) if the underlying H-1B petition has already been approved, the general rule is that if the employer goes out of business, the H-1B petition is automatically revoked.  If  VSC learns through the media of the employer’s demise, it will issue a Notice of Intent to Revoke to which the employer should present evidence either that it is not going out of businesses or has been bought out by a successor entity; and (3) the effect of revocation on an H-1B beneficiary is for H-1B status to be terminated as of the date the employment ceased or the date the petition was revoked, whichever date is later. The H-1B beneficiary shall begin accumulating unlawful presence the day following the date of termination of his/her employment.  There is no grace period. ¼/p>

Cutting costs is the theme of the present day and for employers interested in retaining and keeping foreign nationals the pressure to spend as little money as possible is relentless. As the result, employers who bring many foreign nationals into the U.S. are more likely than ever to rely on paralegal/visa services that are equipped to process a high volume of applications for a fraction of the cost attorneys would likely be able to charge for such a service. Many of these services are very reputable, some are not, but, in general, the decision to rely exclusively on visa services for immigration processing implicates some risks. First, although visa services are managed by attorneys, the level of supervision over the paralegal personnel who do the vast majority of the work is necessarily less comprehensive so that attorney costs can be minimized. One cannot, therefore, expect a visa service to question information provided to it by the client or to identify contradictions that are not obvious on the face of the presented documents.  The more complicated the visa category involved, i.e. the L category, which requiries the authorities to consider a company’s international structure and skill requirements, the higher the risk of subtle problems arising as part of the presentation to the authorities.  Another problem is that while visa processing services may get the paper work done, they do not necessarily prepare (or are even required to prepare) visa applicants for their consular interviews.  At least in one case, concerning which C-G was consulted after the fact, the failure to prepare an executive applicant for his consular interview led to misrepresentations being advanced to officials, who, subsequently, held up the processing of all the company’s other pending L-1 petitions.  Third, visa services are not necessarily going to know enough about a company at any one time to ask questions about how it has changed, so that the information the service has, may well become inaccurate. It is not unusual for clients not to be aware of such inaccuracies because, oftentimes, they have not actually reviewed what has been filed.  Obviously, the potential for problems to arise in this situation is significant. Finally, many services are poor educators: Generally, they are not in the business of explaining what the immigration process involves, which sometimes leads clients into committing significant resources to projects that may have questionable value.  In the past year, for example, C-G was approached by a company who had gone through the entire labor certification process using a visa service only to be advised by us that being granted a labor certification does not mean that the employees, in question, could work legally in the U.S. or that they would even be able to adjust to permanent residency from an undocument status. In sum, unless a company has in-house expertise capable of asking the right questions and doing the right monitoring, using visa processing services can increase processing risks and the potential for misundertsandings. The answer is not necessarily to opt out of using visa services in favor of attorneys, but in retaining an outside immigration attorney to help monitor the activities of the visa processing service by vetting the information that is being processed, reviewing, to the extent possible, the quality and accurancy of the work product, and being available to answer client questions about what the immigration process involves and the risks of pursuing one type of immigration strategy over another. As the old saying goes, “you get what you pay for.” In the high risk immigration environment of today, visa services have their place, but cannot be expected to stand in the shoes of competent counsel. Cutting costs may be required in the present downturn,  but consideration needs to be paid to accomplishing this goal while limiting the risks to the company of confronting possibly unnecessary and potentially costly processing problems.¼/p>