Tags: employment, foreign nationals, green card, H-1B, immigration, immigration reform, PERM, visas
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On Thursday November 20, 2014, President Obama announced that he would be using his powers already granted to him by the U.S. Constitution and Congress to make certain reforms to the United States’ broken immigration system. Most of the fanfare (and most of his speech) has been devoted to the President’s plan to utilize prosecutorial discretion to prevent the deportation of certain undocumented foreign nationals. However, President Obama has also committed to making several important reforms to employment-based immigration, including:
- Modernizing and streamlining the quota system used to issue employment-based Green Cards;
- Allowing individuals with approved employment-based Green Card petitions who are caught in the quota backlogs to apply in advance for certain immigration benefits;
- Increasing employment flexibility for foreign nationals with pending Green Cards;
- Allowing spouses of H-1B Workers who have reached certain milestones in the Green Card process to apply for employment authorization;
- Expanding employment opportunities for foreign graduates from U.S. Universities, especially for those in STEM fields;
- Expanding and promoting underutilized programs to encourage research, development, and entrepreneurship in the United States;
- Clarifying the adjudication standards for “Specialized Knowledge” intra-company transferees (L-1B Visas);
- Modernizing the Labor Certification (PERM) Program; and
- Establishing an Interagency working group for consistent enforcement of federal labor, employment and immigration laws.
The policy memoranda issued in the past 24 hours have been sparse and are missing important details regarding the above reforms, so we would like to give the Obama Administration time to clarify its plan before providing an analysis of the actions that will be taken. We expect to issue an Immigration Alert in the coming days with more details on each of the above points.
In the meantime, please feel free to contact the Immigration Law Group with any questions on the potential impact of the reforms.
Tags: getting in line, green card, immigration, USCIS
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By: Grant Godfrey
Anyone who has navigated through our maze of immigration laws understands that it is complicated and takes a long time. An NBC news article published today sheds light on how the concept of “getting in line” for a Green Card is a dramatic oversimplification of our current system. The better questions are: (a) which line do you have to get in?, (b) how many years are you going to have to wait?, and (c) is there even a line available to you?
To help you answer these questions and more, please contact any member of our Immigration Practice Group.
Tags: foreign workers, green card, hr, i-9, immigration
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On Thursday, October 11th MBBP is hosting an immigration event on Real World Issues in the Hiring and Retention of Foreign Workers. Employers who find candidates that have the education, training, skills and experience matching their needs may also find that those candidates require visa sponsorship. This interactive session will provide an analysis of real life scenarios that HR and recruiters face in the hiring process, and will explain how different types of visa status may impact hiring and retention of the prospective employee.
The program will review top immigration compliance issues post-hire and also touch upon factors to consider in Green Card sponsorship.
Other topics of discussion will include:
- Pre-Hire Considerations
- Meaning and relevance of visa types
- The Offer Letter
- Determining the appropriate employment visa category
- E-Verify and I-9
- Sponsorship costs – who bears the burden?
- Record keeping and reporting
- Changes in pay, job duties, job titles and job locations
- Time limits and timing considerations for long-term retention
For more information, directions, or to register, please visit the event page: 10/11/12 – Real World Issues in the Hiring & Retention of Foreign Workers.
Tags: college professors, green card, labor certification
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By: Donald Parker
College and University Professors in tenure track teaching positions have long qualified for an abbreviated Green Card process called “Special Handling”. The Special Handling procedure is an expedited Labor Certification Application (the first step in the Green Card process) based on recruitment that was done by a College or University for a faculty position at the time that the sponsored Professor was hired. In addition, the standard in a Special Handling application is whether the foreign national selected for the position was more qualified than the other candidates who applied. By contrast, under the normal Labor Certification Application process (called the “PERM” process), which most other employers must go through, the employer must conduct a new formal recruitment process (including advertisements in local newspapers and journals, internet advertisements, etc.) in order to establish that there are no U.S. workers who are qualified for the position for which the Alien Labor Certification is sought. In the normal PERM process, the existence of a U.S. worker who meets the minimum requirements for the position will result in the denial of the PERM application, even if the foreign national was more qualified than the U.S. worker. Because a Special Handling case can be based on a recruitment process that has already occurred and the standard for rejecting a U.S. worker is more relaxed, for those foreign national faculty members who are eligible, the Special Handling procedure provides the simplest and quickest avenue to a Green Card.
Until recently, a central requirement of eligibility for the Special Handling process has been that the College or University have advertised the position for which a foreign national was selected in the print edition of a national professional Journal. Without evidence of a print ad having been run, the Special Handling procedure was simply not available. In response to a recent administrative court decision on this issue, the Department of Labor (which administers the PERM application process) has now indicated that an employer may use an electronic or web-based national professional journal to satisfy this prong of the Special Handling rules. At the same time, however, the DOL took the opportunity to add some additional requirements in the event that the case relies on an electronic or web-past position. Specifically, (i) the electronic or web-based journal’s job listings must be viewable to the public without payment of subscription and/or membership charges, and (ii) the ad must be posted for at least 30 calendar days on the journal’s website.
This acceptance of the reality of advertising in the digital age is a welcome change in the Special Handling area and will make this expedited Green Card process accessible to a broader range of College and University faculty.
For more information on this topic, please contact Don Parker.