The post H-1B Specialty Occupations: The Requirements appeared first on GreenCard1.

The post Immigration and the Leaked Memo: An Unlikely Solution appeared first on GreenCard1.

On December 27, 2004, the U.S. Department of Labor published a new regulation for the department’s Permanent Foreign Labor Certification (PERM) program. PERM is the new way of filing labor certifications, eliminating the old two methods: RIR and the “traditional” DOL monitored system. The PERM program helps meet workforce needs when there are no available American workers to fill an available job. Applications can be submitted on or after March 28, 2005.

All pending LC/RIR cases filed under the old rules are being transferred to DOL backlog reduction centers (BRCs); applications filed between now and March 28, 2005 will also be transferred to the BRCs for processing. Once the PERM program officially begins on March 28, the DOL will no longer accept applications for the current RIR or regular labor certification process. Effective March 28, 2005, all labor certification filings must be PERM compliant.

The good news for employers and attorneys practicing in this area is that labor certifications may be approved in as fast as 60 days. If you are familiar with the proposed regulation however, you will be pleasantly surprised at the other changes in the final PERM regulation as most are favorable to employers.

A brief summary of the major changes being implemented in PERM follows below. Please note that this summary in general in nature and you are invited to contact us to go over specific cases and questions in detail. We can help you determine how these rules affect your existing labor certification/RIRs and new PERM cases you many wish to now pursue.

Conversion of previously filed applications to PERM

PERM does allow for the withdrawal and “re-filing” of regular and RIR cases filed before the effective date of March 28, 2005 without loss of the original filing date by (i.e. a “conversion” process):

• Submitting an application for an identical job opportunity after complying with all PERM filing and recruitment requirements, and
• Withdrawing the original application

Notes:

• A job opportunity will be considered identical if the employer, beneficiary, job title, job location, job requirements, and job description are the same as those stated in the original application, including all accepted amendments
• The filing of an application under PERM that is identical to an application under existing regulations will be deemed to be a withdrawal of the original application regardless of whether the employer’s request to use the original filing date is approved
• A refiling must be made within 210 days of the withdrawal of the prior application

DOL Issues Partial Clarification of Policy Regarding Multiple Applications for Labor Certification

The Department of Labor posted on December 20, 2005 a new FAQ that clarified of its policy on multiple applications in the PERM labor certification program, but left open the question of whether filing a PERM application will jeopardize a pending RIR or Traditional labor certification application.

The essence of DOL’s policy is that only one PERM application can be filed and pending for the same employee for the same job opportunity at any given time. DOL also states that only one RIR or Traditional application for the same employee for the same job opportunity can be pending at the same time for labor certification applications that were filed under the rules in effect before PERM and remain pending at a DOL Backlog Elimination Center.

DOL did not announce any policy regarding the crucial issue of whether or under what conditions it would permit employers to have an application filed under PERM for the same employee and same job opportunity for which an application is pending at a Backlog Elimination Center, stating instead that it would engage in further discussions on this issue:

This FAQ does not address the situation in which an application for the same employer, alien and job opportunity is pending under both the prior RIR/Traditional] and new PERM regulation. DOL is considering stakeholder input on this situation, which in some cases may have implications for priority dates.

The new FAQ included instructions on procedures for withdrawing duplicate or multiple PERM applications, and announced a January 19, 2006 deadline for completing all withdrawals. Beginning January 19, 2006: (1) if multiple applications from an employer for the same alien and same job opportunity are still pending under PERM, DOL will assume that the employer wishes the last-filed application to be processed and the other pending PERM applications for the same alien/job opportunity will be denied; and (2) if an application for a particular employer/alien/job opportunity is pending under PERM and a second application is filed under PERM for the same employer/alien/job opportunity, DOL will continue to process the first-filed PERM application and deny subsequent PERM filings except where the employer follows the procedures outlined in the FAQ.

The complete FAQ is available online athttp://atlas.doleta.gov/foreign/faqsanswers.asp#filing12

How the PERM Application Process Works

• The Employer must conduct a bona fide recruitment campaign 30 to 180 days prior to filing
• PERM Applications are filed directly with DOL (Applications may be filed either electronically or by mail using a single new Form ETA-9089 – Employers must attest to having met all PERM requirements for the proposed job opportunity and that no )
• Employers do not submit supporting documentation with the PERM application but must retain supporting documentation for 5 years for audit purposes No filing fee at this time
• Decisions are expected within 45- 60 days; however many decisions are taking up to 4-5 months, while others have taken 3 weeks.

Prevailing Wage Determinations

• The State Employment Services Agencies (SESAs), a.k.a. State Workforce Agencies (SWAs), must administer Prevailing Wage Determinations (PWDs) prior to the PERM filing
• Employers must now pay 100% of the prevailing wage for the position (instead of prior 95%)
• A New 4-tier system will be used to determine for the prevailing wage
• Employers may submit alternative wage surveys for consideration by the SESA if conducted within 24 months prior to the application (using either arithmetic mean or median wage if mean or average wage not available)
• Prevailing Wage Determinations may be valid for 90 days to 1 year from the date of the determination (discretion of the SESA)
• A wage set forth in a collective bargaining agreement (CBA) is still binding.
• Of great benefit is the requirement that if the SWA rejects the revailing wage survey presented by the employer, it is required to provide written notice of the rejection, specifying the reasons that the survey was unacceptable. The employer may then make a one-time supplemental submission to request reconsideration of the decision. If the prevailing wage request is again rejected, the employer can either file a new prevailing wage request or request review by the Certifying Officer within 30 days of the determination. If the Certifying Officer (C.O.) affirms the SWAs decision to reject the survey, the employer has 30 days from the C.O.’s decision to appeal to BALCA.
• Nonprofits, higher educational institutions, and governmental research organizations have often complained that it is inappropriate to compare their wages against those offered in the private sector. The new PERM regulation rectifies this problem by allowing these types of entities to have their wages compared with similar entities in the area of intended employment.

Recruitment Requirements for Professional/Nonprofessional Positions

Under PERM, an employer must perform specific advertising based on the type of position offered, i.e., professional and nonprofessional. Professional positions are defined as “an occupation for which the attainment of a bachelor’s or higher degree is a usual educational requirement”. A nonprofessional position would then be a position that does not require at least a bachelor’s degree.

For nonprofessional positions:

• The employer must place a job order with the applicable SWA
• Two Sunday newspaper advertisements must be placed within 6 months of filing the application
• An internal posting must be placed at the job site for 10 consecutive business days

For Professional Positions:

• Job Order placed with SWA for 30 days (in California, www.caljobs.ca.gov)
• Two (2) Sunday print ads must be placed in a newspaper of general circulation in the geographic area of the proposed place of employment between 30 days and 180 days prior to application filing; ads must include: the job title, name of the employer, and the means to contact the employer
• Employers may substitute one National journal ad for one Sunday newspaper ad where the position requires experience and/or an advanced degree
• Three additional recruitment steps required for “professional positions” – employers may submit documentation of any 3 of the following types of recruitment activities:
  • Job fairs
  • Employer’s website ads
  • Job search website
  • On-campus recruiting
  • Trade or professional organizations
  • Private employment firms
  • Employee referral program with incentives
  • Campus placement offices
  • Local and ethnic newspapers
  • Radio and television ads

Only one of the alternative recruitment steps for professional positions may consist solely of activity conducted within 30 days of the filing and one of the steps may have taken place more than 180 days prior to the filing.

For Non-professional and professional positions:

• Both professional and nonprofessional positions require completion of an internal posting at the location of employment for 10 consecutive business days, AND
• Notification in “any and all in-house media, whether electronic or printed, in accordance with the normal procedures used for the recruitment of similar positions in the employer’s organization.”
• The posting must be completed a minimum of 30 days prior to filing the PERM application

Job Requirements

• Job requirements must represent the employer’s actual minimum requirements, must bear a reasonable relationship to the occupation, and must be essential to perform the job in a reasonable manner (i.e., based on business necessity)
• A foreign language requirement must be accompanied by a justification based on business necessity
• Employer must not have hired workers with less training or experience for substantially comparable jobs
• Beneficiaries may use experience gained while working for the employer if such experience was gained in a position not substantially comparable to the position for which certification is sought
• A “substantially comparable” job or position means a job or position requiring performance of the same job duties more than 50 percent of the time
• Employers may be required to provide position descriptions, percentage of time spent on the various duties, organization charts, and payroll records in order to document that they have not hired workers with less training or experience for substantially comparable jobs

Report of Recruitment Results Must Contain:

• Description of recruitment steps undertaken and results achieved
• Number of hires
• Number of U.S. workers rejected, categorized by the lawful job related reasons for rejection
• The Certifying Officer may, after a review of the recruitment report, request resumes of U.S. workers. Note that there is a 5-year document retention rule. At this point, it is unclear how stringently DOL would interpret this highly burdensome requirement but employers might consider setting up a detailed, well-documented process for the review of applicants to the job opportunity, which, along with the recruitment report, can be presented to the Certifying Officer in case of an audit.
• Additionally, an employer could show that applications/resumes rejected for lawful, job-related reasons are treated the same as all applications/resumes received, i.e. that rejected applications/resumes are placed into the employer’s general resume database for the same amount of time that all applications/resumes are stored, and that they, like all other applications/resumes, may be considered for other position openings with the employer. While we still do not know how important the retention of resumes and applications will be, employers should at least consider putting processes into place that could meet its burden in an audit situation that limits the amount of voluminous paperwork it would otherwise need to retain.
• NOTE: PERM regulations now state that “A U.S. worker is able and qualified for the job opportunity if the worker can acquire the skills necessary to perform the duties involved in the occupation during a reasonable period of on-the-job training”. “Reasonable period” is not clarified.
• It may be beneficial for an employer to continue to track its general recruitment efforts similar to those recruitment efforts tracked for RIR purposes. In this way, an employer may bolster an audit response by not only submitting data from the specific PERM-recruitment report, but also broader data showing that it has been unable to locate sufficient qualified and available U.S. workers and continues to have multiple position openings for the position for which the application for permanent employment certification was filed.

Determinations & Labor Certification Validity

• If the Certifying Officer grants the labor certification, the employer and/or the employer’s attorney will receive notification of the Final Determination. If the case is denied, the Final Determination will contain information on the reason for denial and outline the requirements for review of the decision. If the Certifying Officer finds that the employer filed to produce required documentation, or that the documentation was inadequate or contains a material misrepresentation, the employer may be required to conduct supervised recruitment for any future labor certification application filing for up to two years.
• After a determination is made, employers will have 30 days to file a request for review with the Board of Alien Labor Certification Appeals (BALCA). Unlike the current appeal system, however, BALCA’s authority to remand a case to a Certifying Officer for further consideration or fact-finding and determination has been eliminated.
• Similar to the current rule, a labor certification is valid indefinitely. However, the Department of Homeland Security or the Department of State may invalidate a labor certification upon a finding of fraud or willful misrepresentation of a material fact involving the application. Further, the Certifying Officer may revoke approval of a labor certification if he/she finds that the certification was not justified. No definition of “not justified” is included in the regulations. In such a situation, the employer will receive a Notice of Intent to Revoke and will have 30 days to respond to the Notice before the application approval is revoked.

PERM Decisions/Audit Procedures

• As stated, the DOL Certifying Officer (CO) can use its discretion to approve, deny, or require an audit of the PERM case
• If audited, the CO may order supervised recruitment (to be administered by the CO instead of the SWA)
• No criteria in the regulation for ordering an audit or for ordering supervised recruitment – some applications will be randomly selected for audit
• Employers will have 30 days to respond to an “Audit Letter;” Certifying Officers may grant a single 30 day extension “for good cause.”
• Failure to respond to an Audit Letter will result in denial of the application, and may result in a finding of fraud or misrepresentation
• If the CO determines there was fraud or misrepresentation on an application, the CO may penalize the employer by ordering supervised recruitment for all applications filed by the offending employer for 2 years
• The CO may revoke a prior approval at any time after providing notice of intent to revoke – employers will have 30 days to submit a rebuttal; the CO will issue a decision within 30 days of receipt of the employer’s rebuttal evidence

Post-Decision Options for Employers

• Employers may file a request for reconsideration within 30 days of a denial
• Employers may file a request for review by BALCA within 30 days of a denial
• No new information may be submitted in support of the application

Supervised Recruitment Requirements

• CO may order supervised recruitment for any application, whenever appropriate
• One ad must be placed in a newspaper of general circulation for 3 consecutive days, one of which must be a Sunday
• The CO may require as an alternative an ad placed in a professional, trade, or ethnic publication
• Employer must supply a draft ad to the CO for review and approval within 30 days of being notified that supervised recruitment is required – the ad must include the wage offered (a wage range is permissible provided that the lower end of the range is at least as high as the prevailing wage for the position
• Extremely detailed recruitment report will be required

Impact of Layoffs

If there has been a layoff (i.e. a reduction in force, downsizing or restructuring) by the employer applicant in the area of intended employment within 6 months of filing an application involving the occupation for which certification is sought or in a related occupation, the employer must document it has notified and considered all potentially qualified laid off (employer applicant) U.S. workers of the job opportunity involved in the application and the results of the notification and consideration.

Special Provisions

Please note that the PERM regulations have special provisions for closely held corporations, partnerships, etc., Teachers, Nurses and Domestic Workers. Please discuss, on a case-by-case basis, if these sections would apply to your situation.

Form more information about PERM, please call the Heller Immigration Law Group, LLP at 1-800-863-4448 or visit our website and send us an email

The post Perm Labor Certification: The Regulations appeared first on GreenCard1.

Although Obama’s new immigration policy, a stopgap measure, is long in coming since Congress won’t act on Immigration Reform, I wonder why not broaden the policy to include both youth and adults. I’ve long been an advocate for immigration reform based upon several fundamentals. Any reform must be good for the U.S. economy.

By adding many new people into the federal tax system, we broaden our tax base and create more revenue and demand; and by separating those that can and will be productive members of society from those that have shown they are not, we enable law enforcement to be more efficient. Why should American taxpayers spend limited resources on looking for, rounding up and deporting otherwise smart and hard working law abiding residents?

The criminal element will not come forward and by so doing they will be more identifiable to the authorities and USCIS in the future. Whatever side of the immigration debate you may be on, what is the point of being unfocused. Let’s be smart for a change. Let us first concentrate on getting rid of and deporting the criminal element, and for all others make sure they become useful members of society and broaden our tax base. It is a win/win. Anyone remaining after a registration period will have no where to go but ‘out’. They will be marked for removal.

Is the above a permanent solution to our immigration problems? Of course not.

Real immigration reform will entail several things, including scrapping an outdated and lengthy immigration system – where most visas are for families and relatives. In fact, a better system would focus and alot the majority of visas on attracting and then keeping the highly skilled, educated and entrepreneurial here in this country. Science, technology, engineering and mathematics graduates at the present time. Another category would be people that invest in or start companies that create jobs. Those that buy houses, not for speculation, but want to live here.

I’ve never understood the need for government to be involved in the labor market. Companies don’t look to nationalities when a hiring decision is made. They look to their own needs, primarily who will help them make a profit and expand. If in the future system skilled foreign born individuals are allowed to move freely from company to company, job to job, the way an American can, the salary offered will rise to a real salary based on skill sets and retention not on where one is from.

The system I envision would have a stronger economic basis, but always be mindful of family based immigration. Lastly, to get there we must do what every other G8 country has – issue all residents (U.S. and foreign born) and temporary visitors a ‘smart card’.

And lastly, for the necessary unskilled labor, we must look into a workable and realistic guest worker program with a reasonable wage offered. The above are just some ideas. A system to be workable must be, of course, worked out by our law makers. But for once let’s get politics out of our immigration system and think of the country at large.

The post The Obama Memo: Immigration Reform Thoughts appeared first on GreenCard1.

One of the most commonly used visas for the new immigrant communities is the E-2 (non-immigrant) investor visa category. Nationals of countries, which have a treaty of commerce and navigation with the U.S., are allowed to live and work here so that they can successfully manage and direct a ’substantial’ investment. The true rationale behind this visa status is that free trade and investment will result in economic benefits for both the U.S. and the treaty nation. Often not truly understood, however, is the notion that the investment should result in job opportunities for the local population and the investment itself cannot be the sole means of support for the investing individual (and/or family).

Although all E visas were created under the same principle, larger companies prefer to use E-1 whereas medium-sized and small businesses utilize E-2. When companies, which have substantial international trade, use E-1 or E-2 to transfer their employees to the U.S. operation, the transfer to permanent resident status for these visa holders can be processed fairly quickly, if desired later. I will discuss such cases in a future article. In this article, I would like to explain the small business economy driven on the wheel of E-2 visa.

From my experience with the new immigrant communities, I observed that a typical foreign E-2 investor would purchase a grocery, dry cleaners, or gas station for family business. While some families have a successful E-2 business and thus enjoy a stable status, other families suddenly lose their business for reasons beyond their control (e.g., lease dispute with the landlord, economic downturn, natural disaster, etc.) and realize they no longer have a legal status in the U.S.

E-2 investor visa status allows the visa holder to make business investment and work for that business operation in the U.S. For entrepreneurial foreigners, this seems to be a perfect visa status as it allows them to open up their own small and medium-sized businesses.

In order to receive an E-2 visa, the investor must have a clear business plan and make substantial and irrevocable investment with a goal to eventually create some employment. The investor must also intend to return to home country once the investment is over. There is no minimum amount for such investment. Rather, it depends on the type of the business operation. Some businesses will require a large initial investment in the infrastructure and others will require less. However, the investment should be sufficient to ensure the successful operation of the enterprise and, as stated above, not be merely a means of supporting the individual entrepreneur and his/her family

With E-2 visas, one can stay in the U.S. as long as one’s investment continues. Once the invested business closes down, the authorized stay is over, and E-2 visa holder and the dependent family must leave the U.S. or change to anther status.

The advantages of E-2 include an opportunity for the principal investor to own and manage a U.S. business with a relatively small amount of investment and subsequent opportunity for the family members to study and/or work in the U.S, if qualified to do so under another visa category (such as H-1B). Also, family members, as owners, can work in their own business entity. In this regard, E-2 visa holder and his/her family enjoy similar privileges as U.S. permanent residents or citizens.

Nonetheless, E-2 is a temporary ‘non-immigrant’ status and does not give any long-term stability. The privileges I mentioned above are tied to the business. Even if the business continues, when minor children reach 21, they are not considered dependent members any more and must change to another status, such as F-1.

E-2 should also be separated from investment immigration. In general, investment immigration requires at minimum $1 million investment and the creation of 10 new jobs. Because of these stringent requirements, investment immigration category is one of the most underused categories, and there are usually better ways of going about immigration.

Although E-2 visas rarely lead to a greencard since the investment itself is not large enough nor create the requisite 10 new jobs, if desired later, obtaining permanent residency may be possible with creative and thoughtful strategies, depending on many other factors including job skills.

For the above reasons, it is always wise to speak to a qualified immigration attorney to go over and strategize before utilizing this visa category since in the long term it may be a perilous decision. One must ask, what is the goal to be achieved? Is it simply to do business in the U.S., to make money, or obtain permanent resident status for you and/or one’s family members? A hasty decision can not only lead to an unnecessary complication in one’s life but also complicate one’s future immigration goals.

The post Small Business Immigration: The E-2 Visa appeared first on GreenCard1.

“U.S. Visa Officers Dispel Rumors”

(8 June 2000) On 2 June Mr. Charles Bennett, chief of the visa section at the American Embassy in Beijing, went to the Beijing Telegraph Building to answer telephone queries from the public. He was accompanied by visa officers James Heller and William Duff, together they answered several dozen questions over a system that allowed up to 400 callers to listen in.

Mr. Bennett began by saying “There are certain matters people do not have accurate information about concerning the American Embassy and visas. We call these misconceptions the Four Myths.

The first myth is that we don’t issue visas to Chinese students . I can tell you categorically that this is not true. The proof is that last year alone we issued over 8,000 visas to Chinese students to go to study in American universities and colleges. I would also like to point out that according to statistics from various sources there are now more Chinese studying in the U.S. than students from any other country; over 50,000 Chinese students are currently enrolled in U.S. universities.

The second myth is that we have a quota for Chinese students-that we can only issue a certain number of student visas, either every day, or every month or every year. This is also false. We issue a student visa to any student we think is qualified . We have no quotas, and anybody can apply; if we find that you are qualified, we will issue you a visa. It’s that simple. And there is no maximum number of visas that we can issue per day, month or year.

The third myth is that we have special law or policy regarding visas for Chinese students . This also is not true. There is one U.S. law concerning student visas – a law passed by Congress – and that law applies just as much to students from France, from Russia or from Mexico as to students from China.

The fourth myth is that how many visas we issue depends on the current state of the political relations between the U.S. and China. This is absolutely not true. Issuance of visas depends on the law passed by Congress, making the decisions of visa officers completely outside the realm of politics. Even if the political relationship between our two nations is not doing so well, or if, as now, it is comparatively relaxed, the policy remains the same. Whether or not we issue somebody a visa depends not on politics, but rather on that individual applicant’s qualifications.”

Below are some of the more interesting questions asked by callers, with the answers that the visa officials gave:

Q: I have been refused a visa once. Will this influence my next application? 
A: No, it won’t. At the Embassy we have a rule that when you reapply, the officer who turned you down cannot see you again. You must be interviewed by another officer. We think this is fair. We visa officers are human beings, not computers, and sometimes we do make mistakes. So we guarantee that we will give your application a fresh look-as Americans say, we’ll give you “an impartial hearing”.

We have another rule:
If you’ve been turned down once, you must reapply on Thursday.

Q: My husband is in the US now, and I want to apply for an F-2 visa. I’ve heard that I have to present wedding pictures and other group photos as part of the application process. Unfortunately I don’t have any. What should I do? 
A: The purpose of asking to see your wedding pictures is to confirm that you are truly married. Some Chinese applicants have cheated us in the past with bogus marriages. If you don’t have any group photo, you can bring letters or e-mails between you and your husband, or anything else that demonstrates the genuineness of your relationship.

Q: My money is not coming from my parents but from a relative. Can I get a visa? 
A: You should tell the truth when you come in for your interview. What is your relation to your sponsor? You will need to explain what your plans are. If you tell us that somebody is going to give you all that money, you can be sure that we will ask how you intend to pay it back.You had better be prepared to explain how you are going to return to China and make money!

Q: I want to pursue an MBA at Indiana University, but last year I was turned down for a visa three times. I was rejected again last week. Could you tell me honestly what my chances are of getting a visa next time? 
A: It’s very hard for us here in the studio to tell you exactly why we couldn’t issue you a visa – we don’t have your application in front of us. I can tell you, however, that the vast majority of people who fail to get a student visa from us are unsuccessful because we are not convinced that they have solid reasons to come back to China after finishing their education. Everybody has a different way of answering our questions, but you must be prepared to explain to the consular officer in detail how you are going to use what you learn in the U.S. here in China. We know that with an MBA you can get a good job in the U.S. . You have to persuade us that you intend to come back to China and use your new expertise here in China. This is a critical question.

Q: My visa application was rejected last month. I’ve been told I should wait three months before reapplying. Is that true? 
A: According to our rules, you can apply three times in one year, but the period between any two times depends on you. If you were turned down today, Friday, then you can apply again on this coming Thursday. But if , for example, you were turned down on 3 March, 5 April and 2 June, you cannot apply again until 2 June of next year.

The post Visa Officer Charles Bennett Dispels Rumors appeared first on GreenCard1.

Aren’t U.S. immigration laws ironic? These laws seem to apply more stringent standards on highly esteemed professions with clear shortages. The medical profession stands as a visible example of such shortages. For example, a recent issue of Business Week reports that the U.S. has fewer physicians per dollar of gross domestic product than most countries in the Organization for Economic Cooperation & Development. The January/February 2002 issue of Health Affairs, a policy journal, predicts that the nation will face a shortage of 50,000 physicians by 2010.

Before they are free to live and practice medicine in the U.S., foreign physicians experience frustration over the complex immigration process. This situation affects a surprising number of people and medical facilities-the American Medical Association’s current statistics show that international medical graduates (IMGs) now comprise more than 20% of physicians working in the U.S. Future increases in the number of IMGs practicing medicine illustrate one possible way of stemming an increasingly significant shortage of physicians in the U.S. An overview of obtaining proper work authorization for IMGs shows how nonimmigrant and immigrant options available to foreign medical doctors makes it possible for individuals in this situation to live and practice medicine in the U.S.

Requirements

All physicians (IMGs as well as U.S. citizens) must overcome basic hurdles in order to practice medicine in the U.S. In addition to their degree from a foreign medical school, IMGs must pass Parts 1 & 2 of the U.S. Medical Licensing Exam (http://www.usmle.org/). They must also pass an English-language proficiency test and obtain certification from the Educational Commission on Foreign Medical Graduates (http://www.ecfmg.org/), which establishes knowledge equivalent to that gained at a U.S. medical school.

J-1

Many IMGs come to the U.S. to train in J-1 status under the sponsorship of the Educational Commission for Foreign Medical Graduates (ECFMG) or other academic institutions. Duration of this program is limited to 7 years, and participation in such a program subjects the alien to a two-year home country physical presence requirement under INA s.212(E). Unless foreign physicians are willing to return to their home country for two years, they must obtain a waiver of the two-year home residency requirement.

Unfortunately, obtaining a J-1 waiver often has its own restrictions. Foreign medical graduates are specifically precluded by statute from applying for a waiver based solely on a ‘no objection’ statement. However, they may apply for a waiver based on exceptional hardship, persecution, or through the support of an interested government agency. For more information on these waivers, please visit the J-1 waiver section at our website.

For the majority of the J-1 foreign medical graduates, finding an interested government agency may be the only option. Over 1,000 IMGs are sponsored for J-1 waivers each year, but obtaining a waiver of the foreign residency requirement through this means has become increasingly difficult. An interested government agency must determine that the alien’s continued stay in the U.S. is in the national interest. To obtain waivers for J-1 visa holders, the sponsoring employer must be located in a federally designated Health Professional Shortage Area (’HPSAs,’ bphc.hrsa.gov/databases/newhpsa/newhpsa.cfm) or Medically Underserved Areas (’MUAs’ bphc.hrsa.gov/databases/newmua), and the physician must practice primary care or psychiatry.

Several federal agencies currently sponsor IMGs for waivers, albeit in a limited manner. These include the Appalachian Regional Commission (www.arc.gov), which covers 13 Appalachian states; the Department of Health and Human Services (www.hhs.gov) in research positions; and the Veterans Administration (www.vacareers.com) in its facilities. The Department of Agriculture (USDA) used to sponsor IMGs for J-1 waivers but ceased doing so this year in response to security concerns.

Lastly, a J-1 physician may apply for a waiver using the “Conrad 20? program, named after its author, Senator Kent Conrad of North Dakota. Under this program, participating states may sponsor up to 20 IMGs for J-1 waivers each year. Over 40 states participate in the program, with Texas and California standing as notable exceptions. The participating physician must pledge to provide service for not less than 3 years in a facility located in HPSAs or MUAs, but not all states require that they practice primary care or psychiatry.

H-1B visas

The H-1B category provides an alternative to the J-1 for U.S. employers who wish to employ IMGs. The H-1B category is preferable because it is less restrictive to both employers and physicians:

The employer does not have to be located in federally designated areas Physicians are not limited to specific practice areas Physicians are not subject to the 2-year home residency requirement. In order to attend U.S. residency programs on H-1Bs, the alien must: 1) be a graduate of a U.S. medical school and have licensure as required for the type of employment by the statue of intended employment; or 2) be an IMG who has completed all three parts of USMLE or passed both parts of the Federation Licensing Exam (FLEX) and obtained ECFMG English-language certification and licensure.

E-2 visas

When the foreign physician wishes to be self-employed, the E-2 visa category offers itself as an option for exploration. A physician from a country that has a bilateral commercial treaty with the U.S. may qualify as an E-2 principal investor for the purpose of setting up his/her own medical practice in the U.S. In addition to possessing a license to practice medicine in the state of intended employment, a foreign physician seeking E-2 treaty investor status must make a substantial, non-marginal investment. He or she also takes responsibility for the development and overall direction of the investment.

Canadian physicians

As a surprise to many, Canadian-educated physicians are not considered IMGs. They may obtain medical licenses in most U.S. states and obtain green cards based on their Canadian training and exams. However, they cannot obtain H-1B visas unless they have completed a U.S. qualifYing exam, such as USMLE, NBME, or FLEX. Canadian physicians who have completed a U.S. exam can obtain H-1B visas and work in the U.S. in a matter of months. Those who have not taken a U.S. exam may have to wait a longer time until they obtain a green card and are legally authorized to work.

Permanent residence (”green card”)

Foreign physicians seeking to become lawful permanent residents have several options. One prominent option is the National Interest Waiver, a convenient option for those physicians already working in health professional shortage areas. Another option is applying under other preference categories.

The National Interest Waiver (NIW) is a waiver from the job offer and labor certification requirement when work by the alien serves the “national interest.” Until late 1998, cases involving a physician serving or situated in HPSA, MUA, or a state-designated area experiencing underservice of health care, were clearly approvable as National Interest cases. However, by late 1998, the BCIS began denying NIW cases of physicians in shortage area cases under this category, on the interpretation that the physician’s work only provided local benefit and was not national in scope. Such narrow interpretation caused concerns over providing adequate health care coverage, so the U.S. Congress passed a law in 1999 that carved out an exception for physicians in these circumstances and restored NIW benefits to physicians in shortage areas.

Under the interim regulations, BCIS will grant NIWs to physicians who serve at least five years in medically underserved areas. To obtain a NIW for a foreign physician, the following requirements must be met:

• Physician must agree to work full-time in a health shortage area as designated by the Secretary of Health and Human Services or at a VA facility;
• Determination by a federal agency or state public health department that the work is in the public interest; and Physician must work full-time for an aggregate of 5 years (waivers filed before November 1st, 1998 are approved with evidence of full-time work for 3 years instead of 5).
• One advantage of the NIW is that Adjustment of Status applications can be filed concurrently with NIW petitions (or, for those who began as J-1s, immediately after completion of their three years of service pursuant to a commitment under the Conrad Amendment) prior to the completion of the fifth year. This means that the dependent spouse may also obtain an Employment Authorization Document.

If the employment is not situated in one of the designated shortage areas or the physician wishes to avoid the 5-year obligation, other immigrant options exist. Alternative options include:

• Self-petition under the Alien of Extraordinary Ability category. This category can be used by physicians who are internationally renowned, as indicated by meeting three of ten evidentiary criteria An employer’s petition for outstanding professors and researchers in the medical discipline. An immigrant petition based on pre-approved labor certification, which requires proper licensure for the state of intended employment.

As this overview reveals, physicians must contend with rather complex immigration rules and regulations before they can legally practice in the U.S. Again, many limitations are imposed on the foreign physicians, although several exemptions are available for individuals in these circumstances. In tandem, these limitations and exemptions create a labyrinth that make careful and advanced planning a must for medical professionals dealing with the complexities of immigration law.

The post Visa Information for Physicians appeared first on GreenCard1.

Recession Guide For Foreign Workers And Their Employers

In precarious economy, both the employers and employees feel the pressure to reduce expense and increase profit. Such pressure is even higher in foreign worker situations because the foreign workers’ immigration status depends on the specific employment. Typical situations that arise in a recession include reduction of work hours, reduction of salary, benching, and finally layoffs.

Reduction of Hours/Salary

First of all, when a reduction of hours and/or salary becomes a significant enough change in terms of employment, it has to be properly amended and reported. Especially in the situation of H-1Bs, because the employment is defined closely by location, salary, and hours, a particular attention has to be given to ensure the H-1B employees do not fall out of status and the company does not violate the DOL regulations. Then, what changes are considered so significant as to require an amendment? If the full-time worker’s hours are reduced below full-time (35+ hours a week) or the rate of the guaranteed salary goes below the prevailing wage rate, the employer must file an amendment to correctly reflect the situation. Also, if the employer relocates the worker to another county, this also requires an amendment. An amendment is almost same as a brand new H-1B filing because a new LCA and all the immigration forms and letter of support must be resubmitted and approved. However, if the employer does not request extension of the H-1B stay at the time of amendment, no training fee is required. In some situations, however, the employer might wish to extend the stay while filing for an amendment so that it does not have to file an extension for another three years. In that case, the training fee has to be paid.

Sometimes, we have met employers and employees who did not file an amendment, under the wrong impression that part-time is not allowed under H-1B, and let the H-1B status slide out of status. It is most unfortunate that such basic questions are not asked or advised. Part-time employment is certainly allowed under H-1B and the petition has to be filed or amended accordingly.

Benching or Lay-offs

Whether the foreign worker’s employment is put on hold, unpaid, or an official notice to lay-off has been given, both situations are considered termination of employment. Even if the visa or I-94 period is still valid, the foreign worker will be considered out of status from the time of termination of employment.

At this point, the foreign worker needs to make a quick decision whether to secure another employment or leave the U.S. Technically speaking, if the gap between two employment if more than few weeks, the INS can approve the petition but refuse to change status in the U.S. because the foreigner no longer has a status to change from. In such an event, the foreign beneficiary must leave the U.S. and apply for a new visa at the U.S. consulate and return in the new status. This should not worry the visa applicants too much. As long as the gap was not unreasonable and/or no unlawful presence has accumulated, the Consulates have so far overlooked the minor gap and approved visa applications.

Change of Employment While I-485 Pending

What if the foreign worker is in the middle of adjusting one’s status when changes occurred to the employment? Nowadays, the I-485 adjustment applications are taking well over one year, during which time, many things can happen to the employment. As many are aware, the new law under AC 21 has permitted change of employment in cases of lengthy adjustment as long as the new job is in the same or similar occupational classification as the job that was the basis of his or her employment-based I-140 and the I-485 has been pending 180 days or more, the new employer may be substituted into the existing I-485 application without disrupting the application at all.

However, there is no law that protects an applicant whose employment has been terminated and who has not secured another similar job. The bad news is the longer the adjustment of status takes, the more likely RFE’s will be issued and interviews scheduled.

It is extremely important for this reason to document that the applicant worked for the petitioner for more than 180 days after filing the I-485 and he/she is now working at a similar job.

Although there are not perfect solutions to many unfortunate situations in the recession economy, I hope the above provides some guideline as to how to deal with changes of employment.

The post An H1B Recession Guide: Layoffs, Benching and Salary Changes appeared first on GreenCard1.

Hiring Foreign Nurses

The shortage of nurse is a widely-open secret in the U.S. medical community. As immigration lawyers, we are frequently contacted by American health care facilities that are frustrated by the difficulty of finding qualified nurses and are looking for an alternative solution – foreign nurses.

The occupation of nurse takes a special corner in the already highly specialized U.S. immigration law. In a balancing act between the need for more nurses and the need to protect the U.S. workers as well as the patients who deserve qualified health care, the Congress has often promulgated, enacted, and changed the laws and regulations dealing with foreign nurses. The result is a confusing and unsettled web of regulations, requiring particular attention.

At one point, a special category known as H-1A was created specifically to alleviate the shortage problem and to allow the U.S. employers to employ foreign nurses on a temporary basis. However, the H-1A category was allowed to expire in 1997, and the permanent residence option is now favored over the temporary visa options.

Permanent Residence for Registered Nurses

Let’s first explore the green card option to hire foreign nurses. Because the registered nurse (RN) is a Schedule A shortage occupation, an employer who wishes to immigrate an RN is exempt from having to submit an application for alien labor certification to the Department of Labor. Therefore, an immigrant visa petition may be filed with the BCIS . At this time, if the RN and her family members are already in the U.S., we will simultaneously begin their adjustment of status to permanent residence under the new regulations. If the RN is abroad, an immigrant visa petition must be approved before we can begin a permanent visa processing through a U.S. consulate.

The immigration process for nurses looks deceptively simple. Despite the lack of labor certification, there are many requirements the foreign nurse must meet before becoming eligible for permanent residence.

A foreign nurse must meet the following requirements before getting employment in the U.S. The RN must be in possession of a diploma from a nursing school and an RN license in home country, a full and unrestricted license to practice professional nursing in the state of intended employment, or a certification that she has passed the examination given by the Commission on Graduates of Foreign Nursing Schools (CGFNS), and a VisaScreen Certificate.

There are no exceptions to the credentialing requirement, even for nurses educated in the US. For information to the State Licensing requirement, click here.

The state licensing examination (officially known as the National Council Licensure Examination for Registered Nurses or “NCLEX-RN”) may only be taken in the U.S., Guam, Saipan, the Virgin Islands, Puerto Rico and American Samoa at this point. However, NCLEX officials have indicated that starting in 2003, the NCLEX-RN will be offered abroad. The NCLEX-RN is administered by the National Council of State Boards of Nursing, Inc. (http://www.ncsbn.org)

In addition, every foreign nurse, whether educated, licensed, and trained in the U.S. or abroad, now must present a VisaScreen Certificate in order to qualify for immigration. The VisaScreen Certificate requirement was imposed by §343, a last-minute amendment to the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA).

A VisaScreen certificate is issued only after the RN has demonstrated that (1) her education, license and training in her country are equivalent to education, licensure and training in the U.S. and that (2) her level of competence in oral and written English are appropriate to practice professional nursing in the U.S. VisaScreen certificates are issued by the Commission on Graduates of Foreign Nursing Schools (CGFNS); web site (www.cgfns.org). Obtaining such a certificate requires a significant expenditure of time, effort and money (over $300) on the part of the nurse. This requirement will only be waived if the RN is already employed in the U.S. on a temporary visa.

In order to show language proficiency and qualify for a VisaScreen certificate, all nurses, who were educated in countries other than U.S., Australia, New Zealand, Ireland, United Kingdom or Canada (except Quebec), must achieve a certain score on tests in written and spoken English administered by TOEFL (http://www.toefl.org) or MELAB (http://www.lsa.umich.edu/eli/melab.htm ).

Temporary Visas for Nurses

As explained above, there are only limited options for the employers that wish to hire RNs on temporary working visas. Although the similar licensing requirement applies as in permanent resident cases, the VisaScreen requirement is waived for all nonimmigrant nurses.

First, if the foreign RN is a citizen of Canada or Mexico, the TN option under NAFTA may be utilized. RNs, who are citizens of Canada or Mexico, may work in the U.S. in TN status with an employment offer from a U.S. employer if they are licensed in Canada or Mexico and in the state of intended employment. However, while Canadian RNs may apply for TN directly at the border, Mexican RNs must wait for the approval of an I-129 nonimmigrant petition before applying for a TN visa at a U.S. consulate in Mexico.

Secondly, with the last H-1A visa expired in 1997, H-1B specialty occupation status may be considered in some limited situations. The H-1B category only applies to jobs for which a four-year bachelor’s degree is a minimum entry requirement. Thus, general staff RN positions, that require only a two-year associate degree rather than a four-year bachelors’ degree, are not an H-1B position. However, if a health care facility can justify that a four-year degree is the minimum entry requirement for certain jobs (e.g., nurse practitioners, nurse anesthetists, certain nurses in supervisory positions, etc.), such positions may be suitable for an H-1B visa.

Finally, there is a special H-1C category for RNs in medically underserved areas. Under the Nursing Relief for Disadvantaged Areas Act of 1999 (NRDAA), certain hospitals in medically underserved areas may be allowed to employ up to 500 nurses nationally in temporary “H-1C” status.

In order to hire foreign nurses under the H-1C, the employer must fulfill a number of conditions and obtain attestations from the Department of Labor. Form example, the employer must be a hospital located in a federally-designated Health Professional Shortage Area (HPSA) as of March 30, 1997, have a minimum of 190 acute care beds, and have a minimum percentage of Medicare and Medicaid patients, etc. Requiring hospitals to be located in HPSAs, determined by the 1997 standard, not only is illogical but also excludes a majority of hospitals from even considering the H-1C option. Because of such restrictive regulations, only 14 hospitals in the entire nation are qualified to apply for H-1C nurses.

As stated, the specialized and unresolved immigration laws and regulations regarding foreign nurses requires special care in planning and implementation of the immigration application on behalf of foreign nurses. It is therefore advisable for the employers and foreign nurses to begin the immigration process by seeking out qualified immigration attorney’s guidance as early as possible.

The post Immigration For Foreign Nurses appeared first on GreenCard1.

Today I want to talk again about employment-based immigration, specifically H-1B visas. In today’s uncertain job environment many individuals call me to want to know what to do in the event one is laid off or terminated. They ask, “Is there a grace period? How long do I have? What if my employer tells me I might be rehired? What are my options?

For many reasons, the BCIS has not been clear and simply addresses the general issue by saying each situation will be looked at on a ‘case by case’ basis under the circumstances presented to them. They don’t want to say it, but there is no statutory or regulatory basis for a ‘grace period’. At the same time, BCIS is not interested in forcing people abroad when there is a likelihood the individual will soon find new H-1B employment. This is truly a rare instance in the law where there seems to be an accommodation to common sense and practicality over strict compliance and enforcement. Yet, it is exactly because of these uncertainties that it is paramount one seeks and utilizes the services of a qualified professional, who, after consultation, can offer true options and strategies.

When clients seek my advice, I must first determine if the individual wants to stay in the U.S. or return to their home country. Is there a family? Are children involved and are they attending school? What are the real prospects of finding new employment? When was the last paycheck? Because of ‘portability’ (easily going from one H-1B employment to another) under AC21, a new employer will want to know how quickly one can work. The answer is ‘on filing’; yet not properly structuring a new H-1B case can have severe consequences for the individual and/or the family later on when he/she seeks a green card.

In addition, a poorly put together filing can result in BCIS requesting further documentation, including questions about one’s previous stay or status. It should be noted too that a qualified and experienced immigration lawyer can often help with what I call the ‘employer hurdle’, talking to a prospective employer both about the H-1B process itself and later on, the green card process. Oftentimes, employers have a ‘bad taste’ from either prior bad history with the BCIS , or bad experience with ‘immigration consultants or paralegals’ and often even an inexperienced immigration attorney or law firm. Finally, let’s talk about the gap, i.e., “What happens if a new employer cannot be quickly found after a layoff?” The answer is that we must advise the client to quickly change their immigration status, but that, too, must be carefully mapped out and the case must include legitimate reasons that are real and not fabricated and are ‘protective’ later on when and if the individual will return to H-1B status. Again, one must seek professional guidance so as not to create a poor ‘record’ with BCIS through misstatements or intentional and material fabrications that can often come back to haunt the client if later he/she seeks to immigrate to the U.S.

The post H-1B and the Layoff Economy appeared first on GreenCard1.