PERM Plans to Modernize Recruitment Process

The US Department of Labor announced that it is modernizing US worker recruitment for the PERM process.

DOL has not comprehensively examined and modified the permanent labor certification requirements and process since their inception 10 years ago. Over the last 10 years, much has changed in our country’s economy, affecting employers’ demand for workers as well as the availability of a qualified domestic labor force. This past fiscal year, employers submitted over 70,000 PERM applications requesting foreign workers. The majority of those job openings were for professional occupations in the Information Technology and Science fields.

Over time, demands for labor have increased, and surpluses for various types of workers have changed. Advances in technology and information dissemination have dramatically altered common industry recruitment practices, and the DOL has received ongoing feedback that the existing regulatory requirements governing the PERM recruitment process frequently do not align with worker or industry needs and practices.

To respond to change, the DOL is working on new regulations for the following:

  • Options for identifying labor force occupational shortages and surpluses, and methods for aligning domestic worker recruitment requirements with demonstrated shortages and surpluses;
  • Methods and practices designed to modernize U.S. worker recruitment requirements;
  • Processes to clarify employer obligations to insure PERM positions are fully open to U.S. workers;
  • Ranges of case processing timeframes and possibilities for premium processing; and
  • Application submission and review process and feasibility for efficiently addressing nonmaterial errors.

The objective of the DOL is to align DOL recruitment methods with that of the U.S. immigration system and needs of workers and employers, and to enhance the integrity of the labor certification process.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney St. Louis, Missouri
nsm@mlolaw.us

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The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Copyright 2014. All rights reserved.

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Want to Work in Canada?

Canada is getting ready to launch “Express Entry,” a program for “in-demand” immigrants whose applications will be processed in six months or less.

Canada announced today that in one month, Express Entry will launch a new phase of active immigration recruitment to meet economic and labor market needs in Canada. Potential job applicants can create their profile on January 1, 2015 and the first Invitations to apply will be issued within weeks.

Express Entry will help select skilled immigrants based on their skills and experience. Those with valid job offers or provincial/territorial nominations will be picked first. Details published today in the Canada Gazette explain how candidates will be ranked and selected, based on factors that research shows are linked to success in the Canadian economy.

According to the Canadian government, these criteria will help ensure newcomers participate more fully in Canada’s economy and integrate more quickly into Canadian society.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney St. Louis, Missouri
nsm@mlolaw.us

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The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Copyright 2014. All rights reserved.

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EB-5 for Newbie investors

There are only a few items investors with EB-5 visas need to remember. First, they can choose any size project — either a regional center project or a direct investment project. Second, there is no magic size to the project; project investment can be $500,000 or $1 million, but there is no green card unless the project creates 10 jobs for every investor. The 10 jobs must be created by the time the conditions on residency are approved to be removed by USCIS.

The return on investment is very low — in the low single digits — but the real reward is the green card. So choose a lawyer and a project you can trust to see you to the end of the process.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney St. Louis, Missouri
nsm@mlolaw.us

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The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Copyright 2014. All rights reserved.

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Massachusetts’ Immigrant Program for Students

Massachusetts has created a loophole program, called Global Entrepreneur in Residence (GER), to permit foreign students to stay legally in the US.

Foreign students who attended college in Massachusetts and who want to pursue entrepreneurial activities in the state can apply to the GER Program, which is being run by the Massachusetts Tech Collaborative, an independent state agency designed to promote the advancement of technology in the state. Chosen individuals will be given a job at a participating universities in Massachusetts—the students will work part-time and will submit visa applications sponsored by the university. The program is expected to grow 46,000 jobs for students.

US immigration law dictates that foreign students can study at US colleges and universities under a student visa—after they graduate, their visas expire and they have to find a US employer to sponsor them for an H-1B visa. The H-1B visa system inherently poses a disadvantage for entrepreneurs, the system only allows for a once-per-year application process—in the form of a lottery—and the slots fill up quickly. On April 7, 2014, USCIS reported that it had secured its quota of 85,000 H-1B visa petitions only five days after it began receiving applications.

This is why the GER Program’s loophole is important: colleges and universities are immune to the cap and can submit applications for employers at any time. This means foreign graduates have a higher chance of obtaining a visa through the GER Program, and through employment with higher-education institutions, because these institutions are exempt from the cap.

The House bill proposed to devise a new category of startup visas for foreign entrepreneurs, while also raising the amount of H-1B visas accessible to immigrants with advanced degrees. While the Massachusetts program is yet to be funded, this is a great start for foreign graduates whom the US needs to retain!

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney St. Louis, Missouri
nsm@mlolaw.us

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The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Copyright 2014. All rights reserved.

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The US needs more H1B visas

The Visa Lottery

On April 7, USCIS announced that it had received a sufficient number of H-1B petitions to reach the statutory cap of 65,000 visas for fiscal year (FY) 2015. USCIS has also received more than the limit of 20,000 H-1B petitions filed under the advanced degree exemption.

USCIS received about 172,500 H-1B petitions during the filing period which began April 1, including petitions filed for the advanced degree exemption. On April 10, 2014, USCIS completed a computer-generated random selection process, or lottery, to select enough petitions to meet the 65,000 general-category cap and 20,000 cap under the advanced degree exemption. For cap-subject petitions not randomly selected, USCIS will reject and return the petition with filing fees, unless it is found to be a duplicate filing.

Advanced Degrees Get Two Bites of the Apple

The agency conducted the selection process for the advanced degree exemption first. All advanced degree petitions not selected then became part of the random selection process for the 65,000 limit.

On March 25, USCIS announced that they would begin premium processing for H-1B cap cases no later than April 28.

Non-Cap-Based H1B Visa Applications

USCIS will continue to accept and process petitions that are otherwise exempt from the cap. Petitions filed on behalf of current H-1B workers who have been counted previously against the cap will not be counted towards the Congressionally mandated FY 2015 H-1B cap. USCIS will continue to accept and process petitions filed to:

  •  Extend the amount of time a current H-1B worker may remain in the United States;
  • Change the terms of employment for current H-1B workers;
  • Allow current H-1B workers to change employers; and
  • Allow current H-1B workers to work concurrently in a second H-1B position.

Premium Processing H-1B Visas

USCIS provides premium processing service for certain employment-based petitions and guarantees a 15-calendar-day processing time.

USCIS will continue to accept Form I-907, Request for Premium Processing Service, with fee, concurrently with the Form I-129, Petition for Nonimmigrant Worker, during the time period that premium processing is unavailable. Petitioners may also upgrade a pending H-1B cap petition to premium processing once USCIS issues a receipt notice.

While the Form I-797 receipt notice indicates the date USCIS received the premium processing fee, the 15-day processing period set by 8 CFR 103.7(e)(2) will begin no  later than April 28, 2014. This allows for USCIS to take-in the anticipated high number of filings, conduct the lottery to determine which cases meet the cap, and prepare the volume of cases for premium and regular processing.

The 15-day processing period for premium processing service for H-1B petitions that are not subject to the cap, or for any other eligible classification, continues to begin on the date that the request is received.

Clearly, since there are so many applications, more visas should be issued. The cost of non-availability of specialized knowledge workers for the US economy is enormous!

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney St. Louis, Missouri

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The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Tara Mahadevan
Copyright 2014. All rights reserved.

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Facts About Immigrants in Missouri

In 1990, the percentage of foreign-born in Missouri was only 1.6%; since then, Missouri’s cultural makeup has changed drastically to include large amounts of Latinos, Asians and other immigrant populations. Missouri’s current foreign-born population is 4%; 41.6% of “New Americans” in Missouri have become naturalized citizens who can vote. About 5% of Missouri’s ‘New Americans’ are either Latino or Asian.

These New Americans also contribute economically to Missouri as business owners, workers, professionals, tax-payers and consumers. Together, Latinos and Asians possess $9.8 billion in consumer purchasing power — their businesses make $5.1 billion and employ 34,000 people. Foreign students also enrich the community: Missouri’s total of 16,061 foreign students contribute $417.9 million to the state’s economy.

A little bit of food for thought: if Missouri’s unauthorized immigrants — which total 1.3% of our workforce — were deported from the state, we would lose $2.3 billion in economic activity and roughly 13,859 jobs.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
Lowenbaum Partnership, LLC
St. Louis, Missouri

The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Tara Mahadevan

Copyright 2013. All rights reserved.

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A Second Look at Comprehensive Immigration Reform

In February, I wrote about why comprehensive immigration reform has a chance to pass this year; now, it’s time to discuss how immigration reform can strengthen the US as a whole.

Immigration reform has heavy bipartisan support, spearheaded by President Obama and Republican Sen. Marco Rubio (FL). Sen. Rubio is a member of the “Gang of Eight”, the four Democrat and four Republican Senators who have introduced new immigration legislation to Congress — Rubio has also assumed the role of spokesperson for the pending bill in the Senate. The House is also sponsoring several other bills on immigration.

There are security and economic reasons for the US to reform its immigration policy, both of which will have a major impact on the US economy.

The Security Side and the Impact on Employers

Immigration reform is not going to happen without enhanced border security and metrics to measure the levels of security reached. Another measure of security to guarantee a legal workforce is to make both E-verify and Form I-9 compliance mandatory for all employers.  Senate has already earmarked $110 million dollars to these programs — employers should see new compliance regulations soon after a new immigration bill has passed.

In addition, electronic checking of departures by CBP will ensure that non-immigrants depart on the date their authorized stay expires, according to their Form I-94 record. Departures are currently recorded with a paper I-94, which is surrendered upon exiting the US. The new electronic I-94 will record departures from passenger manifests issued by airlines. Entries are currently recorded, but exits from the US are not recorded uniformly at all ports. In addition, the new bill will mandate that all passports be electronically read, which would reduce human error.

It is a misconception that highly skilled visa holders somehow depress US wages. On the contrary, where certain technical skills are in short supply, employers pay top dollar wages for visa holders and high fees to the federal government, as well as jump through legal hurdles to employ these workers. The cost of employing a foreign worker is more expensive than a domestic worker.

The Economic Side

Granting legal status to more immigrants will relieve our labor shortages in both high-skill and low-skill arenas. The educational background of native-born Americans typically includes high school and college education — few are without high school diplomas, and hardly any have Ph.D.s in science, technology, engineering or mathematics (STEM). The educational background of immigrants, on the other hand, is quite different: while many lack high school education, others hold Ph.D.s in STEM fields.

Most of the debate on immigration reform has focused on giving legal status to undocumented immigrants, upon the condition that they pay fees and back taxes. This will certainly have positive effects on our economy; however, we have more to gain from immigrants, both young and old, who, after gaining legal status, decide to further their careers in the US. Once these immigrants feel reassured about their future in the US, they will be more willing to invest in their careers.

One of our current problems is that many skill workers have trouble gaining a foothold onto the path to citizenship. Foreign entrepreneurs and technologists who study in the US are often denied works visas and return to their home country to find success. This issue is both stunting economic growth and causing a brain drain in America.

The number of available temporary visas is rarely revised and is still dependent upon caps and quotas. Our economic conditions have not been taken into consideration. Increasing visas both for high skilled workers, and lower skilled entrants in agriculture and forestry, could have a positive effect on wages and reduce the number of illegal entrants and overstays.

Immigrants also bolster our productivity growth. According to the Wall Street Journal, foreign scientists and engineers, who came to the US with an H1B visa, contributed 10-20% of the yearly productivity growth in the US from 1990-2010. Attracting innovators to our country will undoubtedly create more jobs, as more innovation means more labs, universities and companies doing research. Yet, the US’s H1B visa program only creates 65,000 visas per year for highly skilled workers. That amount has proved to be insufficient, as H1B visas quotas fill very quickly as in the last cap.

There are clear economic and security needs for streamlined and comprehensive immigration reform, and lawmakers and politicians must take action. Congress is set to vote on immigration reform before the July 4 congressional recess.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
Lowenbaum Partnership, LLC
St. Louis, Missouri

The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Tara Mahadevan

Copyright 2013. All rights reserved.

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H1B cap has reached!

USCIS received 124,000 H1B visa applications from Monday April 1, 2013 to Friday April 5, 2013 — the cap has not been filled this fast for about 4 years. The number of applications received includes both cap subject bachelor degree holders and US Master Degree holders for whom a special 20,000 visas are allotted.

US Master degree holders get two bites of the apple, when it comes to ‘cap’ time. All US Master degree applications not counted towards the 20,000 cap will be considered again in the regular cap of 65,000 visas. Master degree applications are subject to the lottery first, before the bachelor degree holders. Please keep in mind also that this 65,000 number is reduced by 5,800 visas set aside for Chile and Singapore, under Free Trade Treaties that the US has signed with these countries. The unused visas from this ‘carve out’ is added back to the general pool of available cap subject visas.

USCIS announced that it conducted a lottery to allot visas using a computer generated selection process on Sunday, April 7, 2013. All those applications not selected will be returned to the employers or attorneys. Of course, the return process may not occur for a while, as applications are vetted for accuracy and correct application fees. Application fees will be returned with the applications if the package is not selected in the lottery.

H1B applications filed with premium processing will be processed in 15 days, if they are selected in the lottery.

No more applications will be accepted by USCIS, but H1B applications to change employers, or extension of visa applications filed by non-profit employers and concurrent H1B employment, can still be filed with USCIS.

The Takeaway

Contact your Senator and Congressional representative to encourage an increase in the number of visas available for H1B visas. H1B visas filed by entrepreneurs are also subject to the cap. Entrepreneurs are employment multipliers for the U.S. economy.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
Lowenbaum Partnership, LLC
St. Louis, Missouri

The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Tara Mahadevan

Copyright 2013. All rights reserved.

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2014 H1B Cap Might Hit in the First Week

Speculation about the H1B visa cap has been all-consuming in the business community. For 2014, USCIS has stated that all 65,000 H1B visas, and 20,000 H1B visas reserved for US Masters degree holders, would be finished in the first 5 days of filing from April 1 (Monday) to April 5 (Friday).

USCIS also stated that it would monitor the number of petitions received and notify the public of the date on which the numerical limit of the H-1B cap had been met, which is called the final receipt date. If USCIS receives more than 85,000 visa application petitions (regular and cap visas, disregarding the carve-outs for Singapore and Chile under Free Trade Agreements signed by the US with those countries), USCIS will use a lottery system to randomly select the number of petitions required to reach the limit of 85,000 visas.

USCIS will reject petitions that are subject to the cap and are not selected. USCIS will also reject any petitions that are received after the necessary number of petitions needed to meet the cap are filled. The last time USCIS conducted a lottery for the H-1B cap was in April of 2008.

The Consequences

Pronouncements like this have led to a frantic need to file on the first day, so that the cap is not missed. The problem is that this artificial season does not necessarily meet the hiring cycles for US business and employers. In other words, US business employment practices are artificially constrained by the necessity to tailor employment hiring practices to coincide with a start on April 1. Depending on the industry, employers hire throughout the year, varying with the ebbs and flow of business.

The Takeaway

Immigration reform proposed by the 8 Senators has a more realistic view of the business world — i.e. releasing visas as the demand grows, in a stepped up basis. Now that we are talking about the ‘reality’ on the ground for employers and business, could we have a more realistic PERM labor system? I know, if wishes were horses…. But I can dream the immigration dream, can’t I?

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
Lowenbaum Partnership, LLC
St. Louis, Missouri

The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Tara Mahadevan

Copyright 2013. All rights reserved.

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The New and Improved I-9 Form

On March 8, 2013, USCIS published a new Form I-9 for employers to use for new hires, which is for immediate use. USCIS received over 6,000 comments on the form and has tried to incorporate some of the suggestions. To ensure that the correct form is being used, look for the form’s date in the lower right-hand corner of the form.

When Should Employers Use the New I-9

The new form is to be used for all new hires. The 3 day rule remains, which is to fill Section 1 within 3 days of starting work. The form can also be filled in advance, as long as an offer of employment has been made and accepted. If the old form was used and the employee has not started work, a new form should be used in lieu of the old form.

The new form should be used for both US citizens and non-citizens, if they are working within the geographical boundaries of the United States of America. If a new office or an employee is hired in Mexico or Canada, there is no obligation to maintain a Form I-9 for the new hire. Employers should use the new Forms I-9 from 8 March, 2013 onwards. Older forms dated 02/02/2009 and 08/07/2009 can be used until May 7th, 2013.

The Spanish version can be filled out by new hires only in Puerto Rico. On the mainland, the Spanish version can be utilized as a translation tool for Spanish speaking new hires, but only an English language version Form I-9 can be filled out by both the employer and employee and retained by the employer.

The New Form

The new form is 7 pages of instruction and two pages of form to be filled. Section 1 occupies its own page, with expanded areas for the employee to fill personal identifying information. The expanded area allows work-authorized non-citizens to complete their information.

Page 2 of the form is divided between Section 2 and 3. Section 2 is renamed to include authorized representative review and Section 3 is now called “Reverification and Rehires”, instead of “Updating and Reverification”. Section 3 is to be used for employees who return to work after an absence of time. Once the initial I-9 is filled out by the employee, the employer cannot ask legal permanent residents or US citizens to present new documents to complete reverification for work authorization.

The Takeaway

The form is more detailed and thus, may have more pitfalls. Print the new form on both sides of the paper to keep both pages together. The 67 page book of “Instructions” is now called “Guidance”. The important step is to start using the new form and to cease using the old form. Section 1 cannot be populated by electronic programs used to ‘onboard’ new hires. Employer liability, audits and monetary fines remain the same under the old and new forms.

We are available to discuss the new form or needs for training and assistance.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
Lowenbaum Partnership, LLC
St. Louis, Missouri

The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Tara Mahadevan

Copyright 2013. All rights reserved.

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