The U.S. Department of Labor (DOL) recently announced it has temporarily suspended the processing of prevailing wage determinations for immigration matters. As you know, prevailing wage determinations must be fi led in connection with all labor certifi cation (PERM) applications for permanent resident status and H-2B seasonal temporary workers, and, in a few instances, H-1B specialty occupation petitions. The delay in processing prevailing wage requests may negatively affect the processing times for these applications and petitions.
The reason for the delay relates to a court order issued by a U.S. district court requiring DOL to reissue thousands of H-2B prevailing wage determinations by September 30, 2011. DOL has stated that National Prevailing Wage Center resources will consequently be used to comply with this order, and that it will be unable to process regular prevailing wage requests until September 30, 2011.
The scope and duration of the delays is uncertain at this time, so we will continue to fi le new prevailing wage requests during this suspension period. However, this delay in processing by DOL will clearly mean that employers will not be able to fi le PERM applications until DOL has processed the employer’s prevailing wage request. We will provide updated information when more becomes available.
Diversity Visa Lottery to Open October 4, 2011
The online registration period for the 2013 Diversity Visa Program (DV-2013) will begin on Tuesday, October 4, 2011 at noon, eastern daylight time (EDT) (GMT-4), and conclude on Wednesday, November 2, 2011 at noon, eastern standard time (EST) (GMT-5). Applicants must register online at http://www.dvlottery.state.gov.
The congressionally mandated Diversity Immigrant Visa Program makes available up to 55,000 diversity visas (DVs) annually. DV entries are randomly selected from countries with low rates of immigration to the United States within the previous fi ve years, and must meet strict eligibility requirements.
Natives of all countries are eligible to apply unless the country sent a total of more than 50,000 immigrants to the United States in the previous fi ve years. Countries ineligible this year are Brazil, Canada, China (mainland-born), Colombia, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, India, Jamaica, Mexico, Pakistan, Peru, Philippines, Poland, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam. Persons born in Hong Kong SAR, Macau SAR and Taiwan are eligible to apply.
The law and regulations require that every DV entrant must have at least: (1) a high school education or its equivalent or (2) two years’ work experience within the past fi ve years in an occupation requiring at least two years’ training or experience. The Department of State does not notify successful DV applicants by letter or e-mail. Entrants may check the status of their entries by returning to the website at http://www.dvlottery.state.gov to fi nd out if their entry was selected or not.
Some companies posing as the U.S. government have sought money in order to “complete” DV entry forms. There is no charge to download and complete the Electronic Diversity Visa Entry Form.
H-1B Cap Update
As of August 12, 2011, U.S. Citizenship and Immigration Services (USCIS) has received approximately 25,300 H-1B petitions under the fi scal year 2012 annual cap of 65,000, and 14,700 under a special quota of 20,000 for individuals with U.S.- issued advanced degrees. These H-1Bs become available when the government’s 2012 fi scal year begins on October 1, 2011.
Department of State Releases New DS-160 Nonimmigrant Visa Application
The Department of State (DOS) has released a new version of the Form DS-160 Nonimmigrant Visa Application. The DS-160 form is an online application form that is completed and submitted electronically in connection with nonimmigrant visa applications at all U.S. embassies and consulates around the world.
The new DS-160 clarifi es that the applicant—and only the applicant—must electronically sign and submit the DS-160 application. The only exceptions to this requirement are for applicants under 16 years of age and those physically incapable of completing an application. In these cases, the DS-160 may be completed and executed (i.e., electronically signed and submitted) by the applicant’s parent or guardian or, if there is no parent or guardian, by any person having legal custody of, or a legitimate interest in, the applicant.
Attorneys may prepare the application for the applicant, but the applicant must “submit” the application electronically—an attorney is no longer permitted to submit the application for the applicant. Other changes on the new DS-160 include the addition of six new questions relating to possible grounds of inadmissibility.
U.S. Immigration and Customs Enforcement Continues Trend of Employer I-9 Investigations
U.S. Immigration and Customs Enforcement (ICE) has initiated a new round of I-9 investigations. The agency has indicated that the emphasis is on “businesses related to critical infrastructure and key resources,” which includes sectors such as banking and fi nance, commercial nuclear reactors, dams, drinking water and water treatment systems, government facilities, information technology, telecommunications and transportation systems, among others.
These inspections seek to ensure that companies hire only individuals authorized to work in the United States, and they involve inspecting I-9 forms and documents provided by employees in order to verify identity and employment authorization.
An employer typically has three days from receipt of the notice of inspection to produce the I-9 forms for review; additional supporting documentation may be requested as well. If violations are found, ICE may impose a number of different penalties. Depending on the severity of the violation, these can range from fi nes to preclusion from bidding for federal contracts. In the most serious cases, criminal charges may be fi led.
In addition to these I-9 inspections by ICE, employers of foreign nationals are also subject to site visits by the Department of Homeland Security (DHS). In these site visits, DHS intends to confi rm that the employer is a bona fi de organization that knowingly fi led the visa petition for its employee, and that the employee is actually working for the employer in the position that was the subject of the visa petition, and at the wage promised in the petition. No prior notice of a site visit is given; the inspecting offi cer simply shows up at the job site.
Please contact your Vedder Price attorney immediately if you receive any communication about a visit or inspection from ICE or DHS.
While there is no way to prevent a site visit or the issuance of a notice of inspection, good policies and practices are essential to avoiding problems. It is critical that employers implement an immigration compliance policy that requires their organization to routinely conduct internal I-9/immigration audits and engage in regular and systematic training of personnel charged with the responsibility for I-9s and other immigration matters.
Maryland’s Prince George’s County Public Schools to Pay over $4 Million in Back Wages for H-1B Violations
The U.S. Department of Labor’s (DOL) Wage and Hour Division announced that Maryland’s Prince George’s County Public School system has agreed to pay over $4 million in back wages to more than 1,000 employees as a result of violations of the H-1B program. Because some of the violations were willful, the school system will also pay a civil penalty of $100,000 and be debarred for two years from using immigration programs. This debarment precludes not only fi ling new immigration petitions, but also extension requests for existing nonimmigrant employees and permanent residence petitions for foreign workers in any employmentbased visa category.
DOL investigators found that the school system illegally reduced the wages of the H-1B workers by requiring them to pay fees that the school system was required to pay. H-1B regulations require that employers pay certain fees that cannot be passed on to the H-1B employee, including the $500 anti-fraud fee and the $1,500 (or $750 for small employers) ACWIA fee, which is used to train U.S. workers. Instead of paying these fees and other costs, the school system required the H-1B workers to pay them, which effectively reduced their salaries below the required levels.
The Department of Labor takes wage violations in the H-1B program very seriously, and all H-1B employers must be vigilant in complying with the wage requirements. Changes to the H-1B worker’s job or job location, if not properly handled, can result in wage violations, and any reductions in salary must be carefully assessed to make sure these don’t create violations as well. Contact your Vedder Price attorney if you anticipate making any changes to a sponsored foreign national’s position, job location or wages. In some cases, amended visa petitions must be fi led or labor condition application notices posted to keep your company in compliance.