10/29 Free Webcast: After the Recession: Immigration Strategies for a New World
The worldwide recession and record low unemployment levels have prompted many countries to re-examine their existing immigration system and increase their entry requirements. These protectionist tactics actually restrict the international movement of labor, hindering innovation and overall long-term competitiveness. In the October issue of Mobility, the magazine of the worldwide Employee Relocation Council, an organization dedicated to global workforce mobility, VISANOW rationalizes this perspective by taking a global look at the two sides of the debate – the international movement of labor/globalist perspective versus the protectionist retreat of clamping down on immigration.

Read VISANOW’s ERC editorial authored by Amberley Johnson, Global Immigration Services Manager.

Regardless of which way a country's responds to the recession, it is evident that a new world of corporate immigration is upon us, and to help corporations effectively deal with the post-recession immigration changes, VISANOW has partnered with HR.com to present the complimentary webcast: “After the Recession: Immigration Strategies for a New World” on October 29 at 11:00 a.m. ET /10:00 a.m. CT.

Register for the webcast.

11/19 Free Webcast: Going Global – Now What? How to Send People Abroad Quickly, Legally and Economically
New or fairly new to global immigration and not sure where to begin? For novices or those sending employees abroad infrequently the global immigration world can seem quite complex.

VISANOW has partnered with HR.com to present “Going Global – Now What? How to Send People Abroad Quickly, Legally and Economically” on November 19 at 1:00 p.m. ET/ 12:00 p.m. CT.

This webcast will cover:

• The fundamental building blocks of a successful global immigration program
• Insights into common misconceptions who can work where, for how long with what visas
• What situations require work permits or business visas
• Global immigration terminology
• A quick reference check-list of crucial points when sending staff abroad
• How to manage stakeholder expectations and global immigration costs
• How to stay compliant around the globe

Register now.

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U.S. Immigration News

H-1B Fraud Inspections: What to Expect
The United States Citizenship and Immigration Services (USCIS) has increased its fraud detection activities in relation to H-1B workers and is at random checking businesses around the country to verify compliance. Specifically, CIS is verifying that the company is a real operating business entity and that the employee is in fact a legitimate employee.

If you are contacted by a CIS inspector immediately get in touch with your immigration services provider. From our experience inspectors have been satisfied as long as the employee and employer can confirm the details of employment that match the approved H-1B terms and that the foreign national did not pay employer-required application fees such as education and training.

CIS inspectors are looking for two types of fraud: a foreign worker who falsifies an application and claims to work for a company that he does not work for and/or a company that is falsifying information.

If your company gets a visit from a CIS inspector, here’s what to expect:

• The inspector will request to meet the H-1B worker and see some form of identification to prove the worker’s identity. The inspector will probably ask for the following: full name, phone number, job title and description, salary, whether the employee paid for the filing fees/whether the filing fees were deducted from the salary, start date of employment with the sponsoring employer and education history and dates of graduation.
• The inspector will request to meet with HR to confirm the H-1B worker's terms of employment, including: date of hire, job title and description, work location and salary information.
• The inspector will take a photo of the company office building to prove that the company exists.

If your company receives a phone call from an inspector prior to the visit, you should obtain their contact information and immediately call your immigration services provider. However, since most visits will be unannounced, in order to prepare for the visit, please make sure that your employee files have copies of the approved H-1B petition, valid I-9s, current job titles, work location, and salary information. Your employees should be aware that they are expected to be familiar with the terms of their employment as laid out in the approved H-1B. If any material changes have been made to the employment (e.g., over 50% change in job duties), please make sure that the proper amendments have been filed or are in the process of being filed.

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Visa Spotlight: E-3, the H-1B for Australians
The E-3 is essentially the “H-1B for Australians.” Intended for Australians who have Bachelor’s degrees and are coming to the U.S. to work in specialty occupations, the E-3 is issued in 2-year increments and renewable indefinitely. There is an annual quota of 10,500 E-3 visas, and this cap has never been filled in a single year.

The E-3 is a great option for Australians who may have missed the H-1B cap, are concerned about running over their maximum 6 years in H-1B status, or would rather apply for the E-3 directly at the U.S. Embassy in Australia. If you’re Australian, contact your immigration services to explore the E-3 visa option for U.S. work authorization.

The E-3 was created in 2005 by as a result of the Australia-United States Free Trade Agreement. In order to qualify for an E-3, the U.S. employer must first offer a professional capacity job, or a “specialty occupation,” to the Australian citizen. Like in an H-1B, the position must be the type of position that normally requires a candidate with a Bachelor’s degree. For instance, engineer, computer scientist, and architect positions would all normally qualify for an E-3 visa, because these are occupations that require a Bachelor’s degree, as well as theoretical and practical application of a body of specialized knowledge. Also, like an H-1B, the E-3 employer is required to certify that they will pay the foreign national employee the DOL-determined “prevailing wage” for the position and the geographical area.

Unlike the H-1B demand which usually far outweighs the supply (with the exception of 2009), the supply of E-3s far outweighs the demand, meaning that E-3s are available to applicants year-round. Also, the E-3 is issued in 2-year increments and renewable indefinitely, so Australians do not need to worry about starting the green card process before running out of time in E-3 status.

While the U.S. Citizenship and Immigration Services (“USCIS”) must approve an H-1B petition before the foreign national can get the visa stamp, the E-3 application process can take place directly at the U.S. Embassy in Australia and does not require the USCIS’ prior approval. This can significantly decrease the time required for E-3 processing, because the Australian national can simply bring the application forms to the Embassy, where the consular officer will issue the E-3 visa stamp. Additionally, while H-4 dependent spouses of H-1Bs are not authorized to work, E-3D dependent spouses of E-3s are allowed to obtain work authorization and contribute to the family income.

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DOL Confirms iCERT Glitch
U.S. employers have recently experienced problems obtaining labor condition application (LCA) approvals for H-1B petitions under the iCert program. The problem arises when the U.S. Department of Labor (DOL) cannot verify the employer's Federal Employer Identification Number (FEIN). This is occurring even when the employer or attorney has entered the FEIN properly on the LCA. The DOL has confirmed this glitch which can lead to erroneous LCA denials and is working on a resolution.

We are optimistic that the DOL will solve this glitch as soon as possible so that the incidents of wrongful rejections for FEIN numbers are reduced or eliminated. For now, it is safest for employers to be aware of potential delays, and to plan accordingly. Also, we recommend that employers submit evidence or documentation generated by the IRS to possibly circumvent the delays. We will continue to share information regarding the iCert system and other DOL matters, as it is made available. Contact your immigration services provider for additional questions.

In order to help employers understand how to remedy this problem, the DOL has modified the error notice it generates due to FEIN problems. The error notice now includes instructions regarding the documentation that the employer must transmit to the DOL via email, fax, or regular mail for FEIN verification. According to the DOL, employers should only have to undergo the verification process once and verification should resolve an employer's problem regarding the FEIN for future LCA filings. At this time, the DOL has not indicated a timeframe for addressing the requests for FEIN verification. As such, when planning for H-1B filings, employers are advised to consider the iCert system's estimated seven-day processing period as well as the possibility of a FEIN delay which may add to the processing time significantly.

Further to circumvent delays, In support of a valid FEIN number, employers are encouraged to submit documentation or evidence generated directly by the Internal Revenue Service (“IRS”) as we recommended last month. Because the FEIN is issued by the IRS, materials generated by the IRS which clearly bear the employer’s name and FEIN number offer the best chance for quick and effective verification by the DOL. Also, employers may wish to consider initiating FEIN verification themselves, proactively, before submitting an LCA for processing. This allows employers to speed the verification process to strengthen any subsequent LCA filings.

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November 2009 Visa Bulletin
The November Visa Bulletin showed mixed results for the employment-based immigrant visa categories as the U.S. Department of State (DOS) confirmed that the priority dates for most categories were put on hold due to visa demand already exceeding initial projections.

The DOS announced that demand is already greater than the U.S. Citizenship and Immigration Services (CIS) had predicted at the beginning of the fiscal year. In other words, the CIS ended up requiring more immigrant visa numbers than it initially projected it would need to approve pending Form I-485 applications for adjustment to permanent residency based on the priority dates published in the October Visa Bulletin. Presumably, demand for immigrant visa numbers at U.S. consulate abroad remained at or below expectations.

As a result, priority dates have advanced for only a few of the employment-based immigrant visa categories:

• The priority date for Chinese nationals in the Employment-Based (EB) second category (members of the professions holding advanced degrees or persons of exceptional ability) moved by 10 days to April 1, 2005.
• Priority dates in the EB third category (skilled workers and professionals only) for China and Mexico moved to June 1, 2002, an advancement of over 3 months and 1 month, respectively.
• The priority date for Indian nationals in the EB third category (skilled workers, professionals, and other workers) moved by one week to April 22, 2001.

The future progression of cutoff dates is again uncertain, as the DOS warns that, “[a]t this time, it is not possible to provide any estimates regarding future cut-off date movements.” If the level of demand is already exceeding predictions within the first 30 days of the immigration fiscal year, it is more than likely that the quotas will be filled faster than the six months it took last year, and progress is almost certain to be much slower.

Employment-Based Visa Bulletin for November 2009

Legend

• C = current as there is no waiting period necessary to file the I-485
• U = unavailable as visa supply has been exhausted for the remainder of fiscal year, or legislation creating the category has expired
• Date indicated = cut-off date that indicates a backlog; if the priority date (date the labor certification or I-140 was filed, depending on the type of case) is BEFORE date listed, the I-485 can be filed

Employment-based Preferences

• First: Priority Workers
• Second: Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability
• Third: Skilled Workers, Professionals, and Other Workers
• Fourth: Certain Special Immigrants
• Fifth: Employment Creation

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International Immigration News
 

Heightened Employment Visa Scrutiny in India
Affecting all multinational companies that do business in India, the India Government has announced its intention to strictly enforce its business versus employment visa stipulations for project/contract workers. Also, all employment visa applications will now need to be submitted in the applicant’s country of citizenship as of September 16, 2009. Everyone working on a project or contract work on a business visa in India must leave by October 31, 2009 and apply for an employment visa. Non-compliance can result in visa denial, fines and public scrutiny for violating immigration laws.

This announcement is to reiterate the proper visa sponsorship as stipulations, because in the past short term workers were obtaining business visas rather than applying for employment visas. Thus, contact your immigration services provider to ensure you remain compliant and to determine how the new employment visa filing process will affect your employment timing.

At the end of August, the Ministry of Commerce and Industry Department of Industrial Policy and Promotion, provided clarification on the intended use of the business visa category that any foreign businessman who will be working in India on a short term project or contract will be required to have an employment visa. Current business visa holders working in India as a project or contract worker must leave by October 31, 2009 and obtain an employment visa.

As of September 16, 2009, all employment visa applicants must submit their applications in their country of citizenship. This new change will cause some very impractical issues for multinational companies by adding increased processing time and expense as they send employees to their country of citizenship to apply for the employment visa. For example, if a company has an employee in the US who has permanent residency (a green card) and wants to send them to India to work and holds an Ireland passport; they now have to send this employee back to Ireland to apply for the employment visa.

This employment visa for project/contract workers isn’t a new visa change, but more of a reminder of current policy, which will now be strictly enforced. If sending foreign nationals to work in India, even for the short term, take the necessary precautions by applying for the employment visa. Plan ahead as you apply for the employment visa, since you will need to send employees to their country of citizenship before they start their work assignment in India and even before they process the employment visa – if you are not prepared, this could be a huge timing issue.

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Recession End in Canada is Good News for Foreign Nationals
The recession in Canada has come to an end, as highlighted in a recent report by the Toronto Dominion Bank stating that Canada's economy will grow by a robust 2.5 per cent next year (due to improvements in the housing sector, consumer spending, exports and commodity prices) and that exports are expected to contribute to Canada's growth for the first time in two years.

Why is this important to foreign workers? Currently the skilled worker applications are restricted to 38 occupations; however you don’t have to apply under these 38 categories if you have general work experience in Canada. As the economy progressively improves employers will have an easier time showing need for foreign workers and it will be easier for employers to get a positive labor market opinion and to ultimately hire foreign workers.

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Sweeping Changes to Australia’s Work Permit Program
Earlier this Spring, the Australian Government began been rolling out sweeping amendments to the 457 program, which is the work permit program for long stays, impacting all current and future work permit sponsorship. The program changes were developed in 2008 to provide more integrity to the 457 program with the objective of employing skilled labor to Australia unexploited while not monopolizing the local market and training opportunities. The program has been completely overhauled as the updates are wide-ranging from increased sponsor obligations to more governmental non-compliance powers to greater nomination requirements for visa applicants.

While the initial measures were announced early April, several program deadlines have been implemented on a rolling basis. Most recently the market salary rates requirement and the temporary skilled migration income threshold (TSMIT) came into affect last month. If you employ or are planning to employ expatriates in Australia, contact your immigration services provider for consultation as these recent implementations and all of the 457 program changes will affect your sponsorship terms.

The new rules include:

• New Sponsorship Regime – As of September 14, 2009 an eligible Australian or overseas business is permitted to apply to become a standard business sponsor. A sponsorship under policy will be valid for 3 years and there is no limit on the number of 457 visas a sponsor may nominate under the approved sponsorship.
• Penalties for Non-Complying Sponsors - Under the new legislation a sponsorship may be cancelled and/or a sponsor barred from future applications for fraud or provision of misleading information and non-compliance of 457 program stipulations.
• Sponsor Monitoring - Department of Immigration & Citizenship (DIAC) will be actively monitoring sponsors through data sharing with the Australian Taxation Office, Fair Work Australia, the Department of Education, Employment & Workplace Relations and other government bodies. Additionally, DIAC now has the power to conduct immigration raids (without force) at worksites.
• Training Benchmarks - Businesses operating in Australia for 12 months now need to satisfy training benchmarks in order to become a business sponsor for the 457 program.
• Nomination Changes - It is no longer permitted to obtain bulk generic nominations. Sponsors are now required to identify the applicant (and included family members) when nominating a position under the approved sponsorship. It will be necessary at the nomination stage to provide the qualifications and experience of the visa applicant to ensure an appropriate skill level for the position in question e.g. formal skills assessments and increased English language requirements.
• Market Rate Salaries – As of September 14, 2009, it is now required to pay “market salary” to 457 visa holders. For visas granted before the September 14, there is a transition period until January 1 2010, when all sponsors must comply with market rate salary. Also, the Temporary Skilled Migration Income Threshold (TSMIT) is in effect for employers who must minimally pay 457 visa workers A$45,220 - the market rate salary for a specific position must exceed the TSMIT in effect at time of visa decision.
• Health Obligation Changes - All 457 visa holders with visa issued after September 14, 2009 must show proof that they have private health insurance for the duration of the visa.
• Portability of Visa - 457 visa holders can now change sponsors/employers without the need to apply for a new 457 visa.

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