01.12.2011 January 2011 Immigration Update

By: William J. Benos

Human Resource (HR) Tips of the Month. 

Employers Planning to File H, L and O Petitions should be Mindful of Upcoming Export Control Certification on February 20th: U.S. Citizenship and Immigration Services (USCIS) has issued an updated I-129 Petition form which includes a new Part with an export control certification. As of February 20, 2011, employers will be required to complete Part 6 of the updated I-129 which contains a certification regarding the release of controlled technology or technical data to foreign persons employed in the United States.

The certification contained in Part 6 essentially requires employers to certify compliance with respect to U.S. “deemed export” laws. Each employer/petitioner must certify that, with respect to the technology or technical data that the petitioner will release to the beneficiary/employee, or to which the petitioner will otherwise provide such beneficiary/employee with access, it has reviewed the Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR) and has determined that either: (i) a license is not required from either the U.S. Department of Commerce or the U.S. Department of State to release such technology or technical data to the foreign person; or (ii) a license is required from the U.S. Department of Commerce and/or the U.S. Department of State to release such technology or technical data to the foreign person and the petitioner will prevent access to the controlled technology or technical data by the beneficiary until and unless the petitioner has received the required license or other authorization.

The key here is that all employers, not just those in defense or highly technical industries, will be required to make the certification. Although USCIS anticipates that a relatively small percentage of employers will be affected by this certification, all employers will need be to cognizant that, under both the EAR and the ITAR, the release of controlled technology or technical data to foreign persons in the United States, even by an employer, is deemed to be an export to that person’s country or countries of nationality. As such, to be on the safe side, our HR tip is that employers of H, L and O employees should conduct the necessary review and seek the assistance of counsel to ensure that the Part 6 certification can be made and that such employers do not run the risk of making deemed export.

Employers Seeking H-1B extensions for Employees/Beneficiaries at Third-Party Worksites should Exercise Caution when Documenting Extension Petitions:
At a recent liaison meeting with the American Immigration Lawyers Association (AILA), the Vermont Service Center (VSC) of USCIS discussed the supporting documentation that is filed with third-party worksite H-1B extension petitions. The focus of several recent USCIS Requests for Evidence in third-party worksite cases appears to have focused on the employer-employee relationship, the right to control work, and the availability of “qualifying employment” at such third-party worksites.

Based on the discussions at the liaison meeting, AILA's VSC Liaison Committee suggested the following practice pointers which should be informative for HR staff whose employees are or may be assigned to third-party worksites: (i) submit a certified labor condition application that lists multiple work locations, including the petitioner's home office address, as well as the third-party worksite location(s); (ii) document “qualifying employment” for the beneficiary at the third-party worksite through letters confirming a project duration of longer than a year, preferably for the entire three years if the requested validity is three years; (iii) supporting letters should specify the job duties for the beneficiary at the worksite, the duration of the project, a supervisor's name, and the supervisor's telephone number, in order to establish that the beneficiary is an employee of the petitioner and that the petitioner retains the ultimate “right to control” the beneficiary; (iv) provide evidence of “qualifying employment,” such as contracts, statements of work, and work orders; and (v) submit Employee Handbooks as evidence of the “employer-employee relationship” and “right to control.” For more details see AILA InfoNet Doc. No. 10122751 (posted Dec. 27, 2010).

Employers Should Continue to be Mindful of Ongoing Enforcement Actions: U.S. Immigration and Customs Enforcement's (ICE) Office of Homeland Security Investigations (HSI) recently reached a $1,047,110 fine settlement with the clothing retailer Abercrombie & Fitch for violations related to an employer's obligation to verify the employment eligibility of its workers. The audit uncovered numerous technology-related deficiencies in the employer’s electronic I-9 verification system. According to ICE, employers are responsible not only for the people they hire but also for the internal systems they use to manage their employment process, which systems must result in effective compliance. This is a significant development indicating that, even where no unauthorized hires are involved, ICE will assess major fines if there are paperwork violations and the company systems in place do not result in effective compliance.

Additional Immigration Updates and Alerts.

Blanket L Visa Applicants Must Now Pay the Border Security Fee at the Embassy or Consulate. Under the Border Security Act, the U.S. government collects an additional fee of $2,000 in certain H-1B cases and $2,250 in certain L-1 cases if the employer has more than 50 employees in the United States, more than 50% of whom are in H-1B or L-1 status. Typically, the fees are collected by USCIS at the time the petition is filed, with the exception of blanket L-1 fees which are collected at the time the applicant applies for the visa at the Embassy or Consulate. The fees apply to first-time blanket L-1 applicants applying for visas based on a petition adjudicated on or after November 19, 2010, and beneficiaries of blanket L petitions that were renewed on or after August 14, where a visa is being issued for the first time under that renewal. If the Border Security Act fee applies, the employer is required to annotate the blanket L petition, Form I-129S, and give it to the employee for presentation with his or her visa application. The Border Security Act fee is in addition to the Fraud Detection and Prevention fee and the machine-readable visa (MRV) fee. Petitioning companies must use the new edition of the I-129S for forms completed on or after January 7, 2011. See AILA InfoNet Doc. No. 11010668 (posted Jan. 6, 2011).

Current H-1B Cap Count. The total number of H-1B visas available in the general H-1B pool for FY2011 is 64,550. This number was arrived at by reducing the 65,000 overall total by the 6,800 visas set aside from the general H-1B quota for Chile-Singapore H-1B1 users and adding back the unused Chile-Singapore H-1B1 returned to the general H-1B pool from the preceding fiscal year. Given that the CIS Ombudsman advised AILA Liaison that 6,350 H-1B1 numbers were unused in FY2010, that number was added back this year to the FY2011 pool. USCIS currently reports that, as of December 31, 2010, USCIS has accepted 57,300 regular cap-eligible petitions, which have been approved or are still pending, and has receipted all available 20,000 H-1B cap-eligible petitions for aliens with advanced degrees. 

For more information about this topic, please contact the author or any member of the Williams Mullen Immigration Team.


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