• USCIS Guidelines for H-1B Employers Who Are Repaid TARP Funds

 

USCIS has advised that those H-1B employers who received TARP funding and repaid it may answer "no" to Question A.1.d of the H-1B petition, which asks whether the employer received covered funding. [Available at www.uscis.gov]

 

• Utah and Virginia Pass E-Verify Laws

 

The Utah Private Employer Verification Act was passed and requires all private employers who employ 15 or more employees as of July 1, 2010 to use E-Verify to determine the employment eligibility of their new hires.  The Act does not apply to private employers of foreign nationals who hold H-2A or H-2B visas.

The Virginia E-Verify Program (HB 737), requires only state agencies to use E-Verify to determine the employment eligibility of their new hires by December 1, 2012. [Available at www.le.utah.gov; http://leg1.state.va.us/]

 

• Visa Waiver Program Visitors to Pay $10 Fee

 

On March 4, 2010, President Obama signed the Travel Promotion Act into law. This Act is aimed to promoting international travel to the United States. The Act will affect the Visa Waiver Program travelers who will have to pay a $10 fee when completing the Electronic System for Travel Authorization registration. Payment of such fee will commence no later than September 4, 2010. [Available at www.washingtonpost.com]

 

• DOL Seeks Nearly $1.9 million From Computer Consulting Company for H-1B LCA Violations

 

The Department of Labor fined Peri Software Solutions Inc. nearly $1.9 million in back wages for 163 workers for violation of the H-1B provisions of the Immigration and Nationality Act in determining that the Newark-based company failed to pay the required prevailing wage to workers hired as computer analysts under the H-1B program. [Available at www.dol.gov]

 

• ICE Confirms Deadline for Correcting I-9 Paperwork Errors

 

ICE recently confirmed that employers should have 10 days to correct technical or procedural paperwork errors following a government I-9 audit.  ICE divides I-9 errors into two categories of substantive verification errors and technical or procedural verification error.  Substantive errors are not subject to the 10-day correction period.  Technical or procedural violations are correctible provided the employer has made a good faith effort to comply with the requirements of the form. 

 

• January 08, 2010 Neufeld H-1B Memorandum on Third-Party Placement of H-1B Workers

 

The H-1B Memorandum on Third-Party Placement issued by USCIS (Donald Neufeld) outlines a controversial strict policy about the circumstances under which foreign nationals may be used for work at clients' worksites including new requirements for the employer to demonstrate a "right of control" over its H-1B worker and a heightened burden to produce more detailed documentation on the employer-employee relationship with the sponsored H-1B worker.  The memorandum is being challenged as an unlawful rule making without notice.  [87 IR 637; March 22, 2010]

 

• USCIS Updates Several Forms

 

USCIS has recently released new versions of the following forms: Form I-751, Petition to Remove Conditions of Residence; Form I-824, Application for Action on an Approved Application or Petition; Form I-907, Request for Premium Processing Service; Form N-300, Application to File Declaration of Intention; and Form N-600, Application for Certificate of Citizenship. [87 IR 565; March 8, 2010]. 

 

• USCIS Announces Change of Filing Location for Several Forms

 

USCIS announced it changed the filing locations for the following forms: Form I-102, Application for Replacement/Initial Nonimmigrant Arrival-Departure Document; Form I-360, Petition for Amerasian, Widow(er), or Special immigrant; Form I-485, Application to Register Permanent Residence or Adjust Status; and Form I-765, Application for Employment Authorization. [87 IR 493; March 1, 2010]

 

• USCIS Reminds Petitioners It Will No Longer Accept H-1B Petitions with Uncertified LCAs

 

USCIS has announced that it will no longer accept H-1B petitions with uncertified LCAs. USCIS will reject any H-1B petition filed without a certified LCA from DOL after March 10, 2010. [87 IR 603; March 15, 2010].

•   BALCA decision– Prevailing Wage Range too Low- Cert. denied

Employer filed an application for PERM certification on behalf of foreign national for the position of laundry supervisor. On the application, the employer stated that the state workforce agency prevailing wage determination was $19.04 per hour and that the employer was offering that same wage. In response to an audit, the employer submitted the job order, which showed a wage range of $18 to 19.50 per hour. The CO denied certification on the ground that $18 was less than the wage offered by the employer and less than the prevailing wage. On appeal, the Board affirmed, stating that 20 CFR §656.10(c)(1) requires employers to certify that the offered wage equals or exceeds the prevailing wage and that INA §212(p)(3) provides that the prevailing wage required to be paid by an employer must be 100% of the prevailing wage determination.  [87 IR 581; March 8, 2010; Matter of Marcel Cleaners, Inc. 2009-PER-00395 (BALCA Feb. 16, 2009)].

• BALCA decision – Posted Notice of Filing Below SWA Prevailing Wage- Cert denied

Employer filed a PERM application on behalf of foreign national for the position of computer and information systems manager.  The CO denied certification because the notice of filing indicated the wage was $126,000, which was lower than the $132,371 wage listed on Item G.1 of Form 9089. Employer argued that the state workforce agency's assessment of Level 4 was a dramatic departure from the employer's previous experience that the same position would receive a Level 3 O*NET code assessment.  Employer claimed that the difference in the wages listed was harmless error and that DOL should have given him the chance to correct the error. The CO stated that issues arising from the assessment level should have been resolved between the employer and SWA prior to submitting the documentation to DOL.  The Board affirmed the denial based on the principle that nothing in the regulatory scheme compelled the Employer to post the Notice of Filing before it received the prevailing wage determination. [87 IR 621; March 15, 2010; Matter of Deloitte Consulting LLP, 2009-PER-00312 (BALCA Mar. 3, 2009)].

• BALCA decisions –Incorrect address for ETA – Cert denied

BALCA affirmed denial of a PERM application because the employer had provided the incorrect address on the notice of posting during the recruitment process. The CO had denied the application because the Notice of Filing listed the address of the regional office of the Employment and Training Administration (ETA) instead of the CO at a National Processing Center (NPC). BALCA opined that the regulations state that the employer should have listed the address of the "appropriate" office which was not the one chosen by the employer. [Matter of Hawai’i Pacific University, 2009-PER-00127 (3/2/10); available at www.aila.org]  

IR-Interpreter Releases; IB-Bender’s Immigration Bulletin; American Immigration Lawyers Association Monthly Journal; AILA - American Immigration Lawyer’s Association