US Senator Robert Menendez (D-NJ), along with Senators Kirsten Gillibrand (D-NY), Edward Kennedy (D-MA) and Charles Schumer (D-NY) introduced legislation last week to re-emphasize family unity in the US immigration system. The Reuniting Families Act would help legal immigrants reunite with their families and end decade-long waiting times for legal immigrant visas.

Senator Menendez said: "Family unity is a deeply-rooted American value, and it should continue to be a main ideal by which we draw our newest Americans. Strong, unified families help maintain stable communities and tend to work hard, pay taxes and start businesses that create jobs. We have clear societal and economic reasons to ensure that family reunification is at the core of our legal immigration system. As a nation with a history rooted in immigrants arriving here to reunite with their loved ones, this approach embodies our American values. Our family immigration system is broken - it has not been updated in 20 years and many families wait decades to immigrate legally to this country. This bill will help legal immigrants reunite with their families rather than forcing them to wait for years apart."

Senator Gillibrand said: "As a mother of two young boys, I know that every day away from your family is an eternity. Family is the cornerstone of our society. That's why I am honored to work with Senator Menendez and other colleagues in Congress to reform America's family-based immigration system to reunite loved ones, promote family stability and foster the economic growth that immigrant families have provided throughout our history."

What does the legislation do?

• It helps an estimated 322,000 spouses and children under the age of 21 of lawful permanent residents who are waiting in line to reunite with their families by reclassifying them as immediate relatives
• It addresses the decades-long backlogs for certain countries by raising the per-country immigration limits from 7 percent to 10 percent of total admissions
• It protects widows, widowers and orphans by allowing them to continue to wait in line for a visa after the death of the sponsoring relative.
• It utilizes an estimated 400,000 family-sponsored and employment-based visas that went unused between 1992 and 2007.
• It promotes family unity by allowing more people who are already eligible for an immigrant visa to efficiently use our legal family immigration system.
• It provides equal treatment for stepchildren and biological children by allowing stepchildren under the age of 21 to immigrate upon their parents' marriage (current age limit is 18).

If passed, this will help thousands of people waiting in line for permanent residency.  The million-dollar question is whether this will pass.  We sincerely hope so!

Stay tuned to www.bashyamspiro.com for additional updates.

Having been in the immigration law business for over a decade, our law firm has helped thousands of immigrants successfully immigrate to the United States.  During this time, we have heard many great stories about people's lives and why they wanted to come to this country.  Unfortunately, we have also heard the frustration of going through the complicated immigration process, or the inability of some to go through it at all because of legal bars.  We have listened to many a Human Resources manager whose company wants to hire a foreign worker with special skills but can't due to immigration laws.  We have listened to immigrants who have to wait many years just to bring their spouse to the United States. It's time for change.

In order for America to stay competitive, we must reform our immigration laws to keep up with our global economy.  In addition to providing incentives to keep the best and brightest from other countries in the U.S., we must also have a fair immigration system that strives to keep families together and not apart.  The entire immigration debate over the past number of years has focused on illegal immigration.  From our perspective, this debate has missed an entire demographic of immigrants.

What we need in this country is smart immigration reform, not rhetoric from politicians who pander to one group or another.  The best way to foster change is to make your voices heard.  For this reason, we started the Facebook and LinkedIn group People for Smart Immigration Reform.  On both sites, there is a discussion titled Tell Us Your Immigration Stories.  Please join the group and this discussion.  If you feel comfortable, tell us your immigration story or anything else you feel should be heard in the immigration debate. If you represent a company, tell us your immigration story as well.  Let's use this group to try to convince Congressional Representatives that change alone is sometimes not good, but that it's smart change that we need.

For the group's Facebook page, please click here.

For the group's LinkedIN page, please click here.

U.S. Citizenship and Immigrations Services (USCIS) published a Federal Register notice on April 28, 2009 that changed the filing location and filing instructions for the Application to Replace Permanent Resident Card (Form I-90).  The revised filing instructions require applicants to submit supporting documentation with their applications.  Prior to this change, applicants were instructed to bring their supporting documentation to their biometrics appointments.  The notice also revises the Direct Mail address for the Form I-90.  Applicants must now file their Form I-90 and supporting documentation with the USCIS Lockbox facility in Phoenix.

This change in filing location affects all I-90 applicants filing a paper form, including those applicants filing the I-90 because their previously issued card was never received or because their existing card has incorrect data due to a USCIS error.  This notice does not affect applicants filing an I-90 electronically or whose place of residence is outside the United States.

Beginning on April 27, 2009, applicants must submit their Form I-90 and supporting documentation to the USCIS Lockbox facility in Phoenix for initial processing, using the following addresses:

USCIS
P.O. Box 21262
Phoenix, AZ 85036

For USPS Express Mail and Courier Service deliveries, use the following address:

USCIS
ATTN: I-90
1820 Skyharbor Circle S Floor 1
Phoenix. AZ 85034

U.S. Citizenship and Immigration Services (USCIS) issued a reminder on its web site that the revised Form I-9, Employment Eligibility Verification (Rev. 02/02/09), went into effect Friday, April 3, for all U.S. employers. The revision date is printed on the lower right-hand corner of the form.

The interim final rule, published Dec.17, 2008 in the Federal Register, revised the list of documents acceptable for the Employment Eligibility Verification (Form I-9) process.  Employers may no longer use previous versions of the Form I-9.

USCIS also updated the Handbook for Employers – Instructions for Completing Form I-9 to reflect the requirements of the revised Form I-9.  You can access the revised handbook by clicking here.

For a USCIS Question and Answer on the new I-9 form, please click here.

U.S. Citizenship and Immigration Services (USCIS) announced additional requirements for employers who receive funds through the Troubled Asset Relief Program (TARP) or under section 13 of the Federal Reserve Act (covered funding) before they may hire a foreign national to work in the H-1B specialty occupation category. 

The new “Employ American Workers Act,” (EAWA), signed into law by President Obama as part of the American Recovery and Reinvestment Act on Feb. 17, 2009, was enacted to ensure that companies receiving covered funding do not displace U.S. workers. Under this legislation any company that has received covered funding and seeks to hire new H-1B workers is considered an “H-1B dependent employer.” All H-1B dependent employers must make additional attestations to the U.S. Department of Labor (DOL) when filing the Labor Condition Application.

EAWA applies to any Labor Condition Application (LCA) and/or H-1B petition filed on or after Feb. 17, 2009, involving any employment by a new employer, including concurrent employment and regardless of whether the beneficiary is already in H-1B status. The EAWA also applies to new hires based on a petition approved before Feb. 17, 2009, if the H-1B employee had not actually commenced employment before that date.

EAWA does not apply to H-1B petitions seeking to change the status of a beneficiary already working for the employer in another work-authorized category. It also does not apply to H-1B petitions seeking an extension of stay for a current employee with the same employer.

USCIS is revising Form I-129, Petition for Nonimmigrant Worker, to include a question asking whether the petitioner has received covered funding. USCIS is encouraging petitioners, whenever possible, to use the most up-to-date form.  However, USCIS will not require use of the revised form in time for the start of the filing period for fiscal year 2010. 

USCIS urges H-1B petitions who have already prepared packages for mailing using the previous Form I-129 (January 2009 version) to complete only the page in the revised version of the Form I-129 (March 2009) which has the new question on EAWA attestation requirements and to file this single page with the prepared package. The single page referenced is the first page on the H-1B Data Collection and Filing Fee Exemption Supplement.

On Wednesday March 11, 2009, our law firm conducted a Webinar for non-immigrant and immigrant employees who have been laid off or think they may get laid off.  The topic of conversation was the impact a layoff would have an on employee’s immigration status.  The following are questions submitted by the Webinar participants.  We felt that providing our responses in a written format would be helpful to our Webinar participants, as well as to others who did not attend the Webinar.  Our answers should not be construed as legal advice since everyone’s case is different and details that may be missing in a question can impact the advice that is given. 

Q: I am here on an H1B and have gone though the process of getting a green card. In the meantime, I’m marrying an American citizen, should I continue to try and obtain a green card through work? 

A: That is a difficult question to answer without knowing more about where you are in the employment-based residency process.  However, we can tell you that the process of obtaining permanent residency through marriage to a U.S. citizen (as long as it’s a legitimate relationship) is usually much faster than obtaining residency through employment.  If you are in the beginning stages of your employment-based process, or if you are subject to per-country visa backlogs, you might be better off having your U.S. citizen spouse sponsor you for permanent residency. 

Q: What is the exact process to apply for an H1B transfer to another employer? (Cost/timing/exact steps, potential problems that the change to B1 status may cause, etc) 

A:  The company that wants to hire the H-1B employee will have to file a new H-1B application.  However, the case will not be subject to the H-1B cap.  Once the case is filed, the employee has the option of beginning work for the new employer while the case is pending.  Currently, an H-1B application takes between 4-6 months to process.  This can be expedited to within 15 days if the employer premium processes the case by paying an extra $1000 to the USCIS.  Attorney fees will vary, but the USCIS filing fee is $2320 for employers with more than 25 employees and $1570 for employers with less than 25 employees.   

If an H-1B employee has changed their status to B-1, the new employer can file for a change of status back to H-1B or file the case as a ‘consular processing’ case.  In the former situation, the employee could not work until the H-1B is approved.  In the latter, the employee would have to return to their home country upon approval of the H-1B application, obtain an H-1B visa (if they don’t have a valid H-1B visa stamp already) and return with the new approval notice in order to get back into valid H-1B status.  We recommend this approach since people on B-1 visitor should have the intention to returning to their home country, and returning to their home country to visa process should satisfy that requirement. 

Q: You mentioned H1B status expiring if you are terminated. If your H1B is valid till 2013,  can you go for a time as a Canadian visitor, then once finding a new job apply for a change of employer on the H1B and utilize the remaining eligibility? 

A: If you are a Canadian, you can return to Canada and re-enter as a visitor after termination. This would allow you to look for a job but you could not work.  Once you find a job, and if your new employer would like to sponsor you for H-1B status, you could obtain it (if otherwise eligible for H-1B status) for the remaining period of validity.  A person is generally allowed to hold H-1B status for up to six (6) years.  There are some exceptions to this six (6) year limitation.  

Q: On the topic of the TN, how can one qualify for the “Management Consultant” category? Can it apply to a position with a U.S. consulting firm? 

A:  To qualify for as a Management Consultant, you must be a Canadian citizen, have a job offer in a Management Consultant position, and have at least 5 years of consulting experience or at least a Bachelor’s degree in that field.  You can obtain more information on the TN visa at this link:  http://bashyamspiro.com/default.aspx?tabid=141.  TN status can now be issued for an initial period of up to 3 years. 

Q: Regarding an H-1B “gap”, if USCIS does not excuse the gap, does there need to be a new approval? Is this new approval subject to the annual cap? Or is it considered within the additional cap allocated for purposes such as this?  

A:  If the USCIS does not excuse the ‘gap’ between the termination date and your filing of a new H-1B transfer application, the USCIS can still approve the case.  If approved, you would have to leave the U.S. and return with a valid H-1B visa and your new approval notice to get back into valid H-1B status for your new employer.  The case will not be subject to the H-1B cap. 

Q: I am graduating soon (MBA) and will get an OPT which has a maximum of 3 months of unemployment time, after which I have to leave the US and go to Canada. Now, can I come back as a visitor and continue to look for jobs?  

A:  Yes. As a visitor, you can look for jobs if you have a professional background.  However, you cannot work. 

Q: What do I tell potential employers regarding my status, particularly when they aren’t willing to sponsor me? Can I say that they always hire me on a TN? I didn’t find a specific category for MBA’s under TN, but I was wondering if either Computer Systems Analyst (since I have an engineering degree) or Management consultant would work? 

A:  If you are a Canadian citizen, you can qualify for TN status if the employer is going to hire you in a position that is listed under NAFTA.  You can find a list of NAFTA positions and requirements at this link:  http://bashyamspiro.com/default.aspx?tabid=141.  

Q: Also, as a Canadian, what are my options once my OPT runs out?  Can I never reenter US labor force, until someone files an H1B (I believe that happens only on April 1^st) which means, I have to find someone who will file on April 1^st and wait for a few months to start working? Finally, can I legally look for a job, recruit or interview while on visitor status? 

A:  Yes, you can look for a job as a visitor but you cannot work.  As a Canadian, you would have to have an employer sponsor you for H-1B or TN status.  If you are a person of ‘extraordinary ability’ by being nationally or internationally known in your field, an employer could also sponsor you for O-1 status.  The O-1 and TN statuses are not subject to numerical limitations. 

Q: I have a TN status, but will be laid off. However I have a marriage-based green card case pending. Do the same rules for the employer-based process apply to me? Or can I stay and work with my EAD? 

A:  If you have a case pending based on marriage to a U.S. citizen, the same rules do not apply to you.  You can actually remain in the U.S. and work with your Employment Authorization Document (EAD) if you find another job. 

Q: My husband is on TD status and is currently a full time student since he is not allowed to work. Can he accept US paid –internships as a part of his college program? 

A:  It is unlikely since he is not in F-1 student status.  Regardless, we recommend that he speak with his International Student Office to get advice on this issue. 

Q: If I return to Canada and come back into the US as a visitor, how do I explain not having a Canadian address? My family had troubles coming in on TN when we told immigration officers that our house in Canada had been sold. 

A:  Unless you have evidence of your ties to Canada, you may have a problem entering the U.S. as a visitor.  Just tell the officer exactly what the situation is, and depending on the officer you may be allowed to enter the U.S. as a visitor.   

Q: If my H-1B I-94 expires in 2 years but I get laid off now, how long can my family and I stay in the US? We are Canadian. 

A:  The USCIS has a no ‘grace period’ rule for people in H-1B status when they are laid off.  Therefore, you cannot legally stay in the U.S. once you have been terminated from your job. 

Q: What is the approval rate of TN visas given the current economy? 

A:  So far, our office has not seen a direct impact between the economy and approval of TN status for our clients.   

Q: If you apply for a TN and they do not approve it at the border, can you still enter as a visitor? 

A:  That depends on the officer you are speaking with and the reason you need to enter the U.S. as a visitor.  In this situation, the officer might not believe that you are truly entering as a visitor and will not work.  

Q: Will/can they deny your reentry as a visitor if you leave and reenter immediately? 

A:  Any application for entry can be denied even in the best of circumstances.  So far, however, we have not seen this to be a big issue.  Just tell the truth to the officer on why you need to be in the U.S. as a visitor, how you have the intention of returning to your home country, and in most cases they will let you through. 

Q: If the application for E2 renewal is in process but the I-94 has expired during that time, do the I-94 penalties apply from date of expiration of visa/I-94 or from the date of the denial of renewal? 

A:  Unlawful presence for the 3 and 10 year bars will start accruing after the date of denial, or after 240 days if your extension has been pending that long. 

Q: When I-140 is approved and I-485 is pending, does that void the GC application as well?

A:  If you have an approved I-140 and your I-485 adjustment has been pending for over 180 days, the application can continue to be processed if you can find another job in the same or similar position to what was listed in your labor certification application.  This is called ‘porting’ under AC21. 

Q: My H1B approval notice has an I-94 on the form. Can we go by the date on this I-94 to determine our stay in the US?

A:  The expiration date on your I-94 will determine your stay in the U.S. as long as you are working in valid H-1B status.  If you are laid off or otherwise terminated from employment, you would be ‘out of status’ immediately upon termination or layoff. 

Q: What happens if I lose my job while I’m on EAD? 

A:  If you have an approved I-140 application and your I-485 adjustment has been pending for over 180 days, you can look for a new job and then work on EAD once you find one.  Your residency application can continue to be processed through the new employer. 

Q: I am going to the border to get a new TN visa myself, while my husband stays here in the US with my son (who is an American citizen). Should I take my husband’s passport with me to get his TD visa or does he have to be with me to get his new visa? 

A:  If you are extending your TN status, we recommend that your husband accompany you to the port-of-entry in this situation. 

Q: My Labor Certification and I-140 are approved and the I-485 is pending since Sept.2007, can I travel outside the country? 

A:  If you have a valid Advance Parole document (APD), you can travel outside the U.S. and return as long as you have not otherwise violated your status in the past. 

Q: I am on H1B and I’m a Canadian citizen, is it safe to leave by April 5^th? My I-94 expires in 2010 but my layoff termination date is April 5^th. 

A:  Yes, if you leave on the termination date, you would not be staying in the U.S. illegally. 

Q: How long can a person with a pending I-485 remain in the US unemployed or without a job? 

A:  If you have an employment based I-140 approved and I-485 pending for over 180 days, you can remain here until you find a job.  You must find a job in the same or similar position prior to final USCIS adjudication of your I-485 application. 

Q: If currently on TN visa, what is the best route to obtain a Green Card? Try to obtain an H1B then apply for a Green Card? 

A:  The TN is a single-intent status.  That means that you must have the intention of ultimately returning to your home country.  The H-1B is a dual-intent status, meaning that your intention to return home does not matter.  We therefore recommend that people switch from TN to H-1B before initiating the permanent residency process.  If you process a residency application while on TN status, you may have problems extending your status or may run into problems at the port-of-entry if an Immigration officer asks you questions relating to your pending residency application. 

Q: If you have a TN how long can you stay in the US before returning to Canada?  What are the options if I have a TN visa, and I’m terminated in February, but my I-94 expires in July? 

A:  There is no grace period after termination even if on TN status.  Therefore, you would legally have to return to Canada immediately. If you are employed, then you can remain here in TN status until the expiration date on your I-94 card.  Your TN status can also be extended if you wish to remain with your employer and continue working in the U.S. 

Q: What do I do now that I’ve been here for 2 weeks and I’m in the middle of the recruiting process with a company? It’s possible that I may get an offer within the next week.   Do I stay and go for the 2^nd interview or return home and come back for interview? 

A:  If you are in H-1B status, your new employer can file an H-1B transfer application for you even if there is a ‘gap’ in filing.  If the gap is short, the USCIS can excuse it at their discretion.  The longer the period between the termination date and the filing of another H-1B, the likelier it is that the USCIS will not excuse the gap and you would have to return to your home country and reenter with valid visa and your new approval notice to get back into H-1B status.   

U.S. Citizenship and Immigration Services (USCIS) will expand Premium Processing Service for designated Forms I-140 (Immigrant Petition for Alien Worker) to include alien beneficiaries who have reached, or are reaching, their limitation of stay in H-1B nonimmigrant status. Currently, only certain alien beneficiaries who are in H-1B nonimmigrant status at the time of filing may request premium processing for Form I-140.

Beginning March 2, 2009, USCIS will accept Form I-907 (Request for Premium Processing Service) for alien worker petitions filed on behalf of alien beneficiaries who, as of the date of filing the Form I-907:

• Are the beneficiary of a Form I-140 petition filed in a preference category that has been designated for premium processing service;
• Have reached the sixth-year statutory limitation of their H-1B stay, or will reach the end of their sixth year of H-1B stay within 60 days of filing;
• Are only eligible for a further H-1B extension under section 104(c) of the American Competitiveness in the Twenty-first Century Act of 2000 (AC21); and
• Are ineligible to extend their H-1B status under section 106(a) of AC21.

Aliens who are abroad or who currently hold another non-immigrant status other than H-1B are also eligible for I-140 Premium Processing if the above-mentioned conditions are met. 

Section 104(c) of AC21 permits applicants to extend their stay in H-1B nonimmigrant status in increments of up to three years, provided they are the beneficiary of an approved Form I-140 and an immigrant visa is not immediately available. Section 106(a) of AC21 permits applicants to extend their stay in H-1B nonimmigrant status in increments of up to one year, provided the Form I-140 petition or underlying labor certification has been pending for at least 365 days. 

On February 17, 2009, President Obama signed the American Recovery and Reinvestment Act of 2009, otherwise known as the Stimulus Bill.   The final version of the bill includes the Sanders H-1B amendment which severely restricts the ability of financial institutions that received funding under the US Department of Treasury's 700 billion "Troubled Assets Relief Program" (TARP) to hire employees under the H-1B program.   Any such institution is barred from hiring an H-1B employee for two years from the date of enactment of the Act unless the institution can attest that is has been unsuccessful in good faith attempts to recruit US workers and that the H-1B employee has not or will not displace a U.S. worker for a certain period of time.  The American Immigration Lawyers Association noted "The misguided signal [the amendment] sends is that immigrants are part of the problem rather than an integral part of the solution.   The stimulus bill looks helpful but is counterproductive when it restricts the financial industry's access to top-flight global talent who can help create jobs for U.S. workers.  In many ways this decision is at odds with President Obama's call that the stimulus legislation shouldn't be shaped by ideological factors, but by 'what works'."

Thankfully, the Kingston and Calvert E-Verify Amendment, which was also proposed, was removed from the final bill.   This measure involved E-Verify, a program in which employers can use an electronic database to confirm an employee's eligibility to work in the U.S.   The amendment would have made participation in E-Verify mandatory for recipients receiving stimulus funding.  Given the multitude of problems reported with E-Verify and the business costs of participation, this would have posed a greater burden to already overburdened employers.

To view the American Recovery and Reinvestment Act of 2009, click here.

According to the Department of Labor’s Bureau of Labor Statistics, North Carolina’s unemployment rate reached 8.7 percent in December. As our economy continues a period of slow growth, many employers are forced to cut costs to ride out the economic downturn. Unfortunately, just looking at labor statistics shows that many employers are making hard decisions such as reductions in workforce, pay, or hours worked by company employees. It’s certainly a difficult economy, but companies must be careful not to violate immigration laws when making tough decisions. For companies employing foreign workers, layoffs carry with them possible violations of immigration law.

So what potential immigration laws could a company violate under these circumstances?

Labor Condition Application Violations

Under the H-1B and E-3 professional visa programs, employers are required to pay their foreign employees a prevailing wage (or actual wage – whichever is higher) for the position. This prevailing wage is determined by the Department of Labor (DOL). These obligations are covered under the Labor Condition Application (LCA) that is filed by employers with the DOL prior to obtaining professional work status for foreign employees. The LCA governs what the employer must pay and the hours the employee must work under the H-1B and E-3 programs.

Employers should be mindful that reducing pay or work hours of foreign employees could result in a violation of the employer’s obligations under the LCA. Make sure that the salary does not fall below the wage listed in the LCA for the foreign employee. That could lead to DOL penalties. Reducing an employee’s status from full-time to part-time is possible, but an employer must first: 1) make sure that they are paying the higher of the actual or prevailing wage for that part-time position and 2) file an amended H-1B/E-3 application that contains a new LCA evidencing the part-time status of the employee. Furthermore, the DOL does not recognize ‘nonproductive work status’ (also referred to as ‘benching’). Employers will be required to make pro-rata payment of required wages even if a foreign worker is put on nonproductive work status.

What happens if an employer terminates an H-1B or E-3 professional workers? An employer must pay for the reasonable costs of transportation for the H1B employee back to his/her home country. This means the cost of a plane ticket home. The obligation covers the foreign national worker, but not their family. The same legal obligation does not exist for workers holding E-3 status.

Some employers will be considered ‘H1B dependent’ if a certain percentage of their workforce consists of H-1B workers. If an employer is H-1B dependent, it must monitor layoffs within its workforce. After an LCA is certified for a position, an employer must make certain that it has not laid off a U.S. worker from an equivalent position within 90 days preceding and 90 days after the filing of an H-1B petition. Employers must be careful to monitor layoffs of U.S. workers under these conditions.

PERM Labor Certification Violations

The PERM labor certification application is the first step of most employer-sponsored permanent residency applications filed on behalf of foreign employees. The purpose of PERM is to prevent the displacement of qualified U.S. workers for the foreign employee’s position. Layoffs of U.S. workers in positions similar to the foreign worker, if they occur within the six-month period preceding the filing of a PERM labor certification, will impact an employer’s recruitment obligations and their ability to file the labor certification application. In this situation, employers will be required to consider the U.S. workers who have been laid off for the position specified in the labor certification. Therefore, it is important that employers monitor layoffs not only in the context of workers in H-1B or E-3 status, but for workers who are going through the permanent residency process as well.

Is it a tough economy? Yes. Will tough decisions need to be made? Perhaps. But be careful not to violate immigration laws while implementing cost cutting measures.