While not all cases will be processed under supervised recruitment, larger percentage of cases will be subject to this process. Supervised recruitment is spelled out in 20 CFR 656.21. Pursuant to the regulations, it gives the Certifying Officer the choice of requesting a supervised recruitment process. The Certifying Officer is the person with the responsibility of issuing labor certification. The practical impact is a slower process. Under the supervised recruitment, there are additional steps to be undertaken, not required by PERM, and they are summarized below.

Kudos to Mr. Dimon for expressing what many are afraid to say. Subjecting corporation to this type restriction is wrong and is, in fact, disgraceful. Restricting the follow of talents to our country chokes our competitive edge. We must be more vigorous in delivering this message, especially during challenging times. For our tendency to look the other way and become complacent during a crisis is our weakness.

The reason that many of the 550 plus companies should be careful is twofold: The first challenge large employer’s face is compliance with the H-1B dependant attestations without utilizing an elaborate and expensive tracking system; the second is applicability of The False Claims Act on TARP funds recipients.

H-1B Dependent Requirements:

H-1B dependent employers must make certain promises and must be able to demonstrate compliance if audited by the Department of Labor. TARP fund recipients who file H-1B petitions:

The court affirmed that Ohio has improperly upgraded the wage requirement to the highest possible level (level IV) by incorrectly combining experience and education in its analysis. In the case decided, , a level IV wage was assigned to an Engineering position because the employer required a Masters Degree plus one year of experience. BALCA’s ruling states that the proper wage level for this type of position with the aforementioned requirements should have been equivalent to a level II wage.

Keep in mind that there are no cases with a January 1, 2000 priority date because that day was a Saturday and one day after a federal holiday. Federal offices were not open to accept applications. So, based on the currently released Visa Bulletin, the second preference, Indian born applicant with a filed labor certification or immigrant visa petition in 1999 or earlier may file for an adjustment of status. Translation: No visas are available at this time as it is virtually impossible to find an unadjusted, decade old petition in this category. I believe the January 1, 2000 date referenced above was politically chosen. A priority date availability from the prior decade (which is only one day earlier) would be politically incorrect and would not be looked upon favorably. This is also consistent with the visa numbers for third preference categories across the board being released as unavailable for the second month in a row.

It is important to note that, employer’s obligation to place the foreign national at the work location represented in the labor certification begins no earlier than the time the adjustment of status is approved. As such the employee/ foreign national may be located at other locations during the pending green card process. But the general rule regarding work locations is that if the intended place of employment changes, it renders the certified labor certification invalid, resulting in a denial of the adjustment of status. The exception is roving employees where the labor certification will be filed reflecting the employment location where the company headquarters is located, or in instances where the employee - foreign national is working for a different employer and is taking advantage of the American Competitiveness In The Twenty-First Century Act of 2000 (AC21) .

If the foreign national is working for a different employer and the adjustment of status has been pending for more than 180 days, then the work location may be anywhere in the US, so long as the AC21 guidelines are followed. Namely, the job is of the same or similar occupational classification. Note that the body of AC21 law interpretations and administrative memos addressing its applications and limitations is growing in complexity. As such, it is critical to consult with a competent immigration attorney before accepting a job offer from another employer to ascertain that the job change will preserve the pending green card application.

• Write to your congressman and explain to them that USCIS tactics of targeting small companies is not helpful to the economy and may be violating the Equal Protection Clause of the Fourteenth Amendment.
• Understand that, the H-1B petition must be substantially detailed. The critical information dealing with employment location, nature of the work and nature of the company must be well documented in the application.
• Expect a Request for Evidence and prepare your documentation in advance so time is not wasted in gathering information you know you will need to submit.

Until USCIS finds more effective methods to uncover fraud, the law abiding companies that fit the profile will have to pay the price for the sins of those that perpetrate fraud. No, there is no fairness in this policy.

In today’s employment immigration system, a green card application is filed while the candidate is in his twenties to receive approval in his thirties. By the nature of the process, we end up stifling entrepreneurial spirit rather than encouraging it. The foreign national is restricted in undertaking an intellectual or financial chance due to the uncertainly and the restrictions imposed by the pending application.

Most will agree that creative and productive talents are impatient by definition. The most talented and capable individuals will not wait a seven year period for a green card to come through. Consider the case of Sanjay G. Mavinkurve, featured in NY Times. Sanjay, an Indian national, is one of the key engineers that developed Facebook. Sanjay moved to Canada because the lengthy immigration process in the U.S. prevented him from joining his wife while the application is pending. Sanjay’s story truly demonstrates the failure of our immigration system. The fact is there are many individuals who have left the U.S. for similar reasons as Sanjay.

While producing more homegrown talent is a priority, the truth is we must remain most hospitable to talents regardless of their origin. To that end, we must eliminate the immigrant visa backlog. AILA appropriately advocates that we should recapture all family based and employment based green cards not used in prior years, exempt family members form the current numerical limitation imposed on employment immigrant visas, and provide for appropriate exemptions for U.S. graduates in the field of science, engineering and mathematics. Finally, it calls for implementing a market based cap system that more appropriately addresses our need to remain more competitive.

• H-1B Visa RFE – Sound Advice – Part I
• Request for Evidence, H-1B, Employer Information - Part II
• H-1B attorney on H-1B RFE’s, Part III

In this blog we will explore what USCIS looks for when it inquires about that nature of the relationship between the beneficiary and the petitioner. The nature of the relationship between the employer and the employee is one of the most straight forward inquiries in H-1B petitions, unless the employer/petitioner provides consulting services, outsourcing services or acts as an agent rather than an employer.

In a traditional employment relationship, the employee reports to the employer’s work location where he or she performs the professional services of the company. For example, a civil engineer reports to an engineering firm where he performs employment tasks of reviewing plans and preparing design documents for the employer. The supervisor is generally in the same office engaging the employee daily. This type of traditional relationship does not pose a challenge since it fits neatly within the conventional sense of an employer- employee relationship.

In this case the employer, a small company, sought to hire a foreign national that it has long used as an independent contractor. The difficulty the Plaintiff has run into in this case is that it did not explain why it will be paying the beneficiary twice as much salary as an employee as it is it is paying him as an independent contractor. Further the Plaintiff did not explain how it will be coming up with additional funds. The court went on to suggest that forms of acceptable explanations that are better than using Tax returns or a net asset calculations would have been that they have landed new contracts, or they have raised capital, or evidence that the new employee will generate additional revenues that covers his salary. Another possible explanation the court listed as acceptable is that the beneficiary would be working longer hours thus generating more revenue for the company as an employee.

The court explained that profitable companies might have no taxable income for various tax related consideration and it does not follow that they are unable to add or pay for an employee.