The current medical exam Form I-693, is set to expire today, 08/31/2009. The USCIS will continue to accept this form despite its expiration date until a revised form is published. The revised form is currently in progress and not yet available.
On September 8, 2009, Federal appropriations regulations will require that participating vendors and subcontractors use the E-Verify system for both active/existing and new employees. The E-Verify system is a program by the Department of Homeland Security (DHS) and the Social Security Administration (SSA) allowing employers to confirm employment eligibility of newly hired employees by comparing the information provided for Form I-9 against the DHS and SSA databases. To date, the E-Verify program has applied to newly hired employees. On September 8, 2009, it will apply to both active/existing and newly hired employees, which will create a significant burden for employers. We will continue to provide updated information as it is released in hopes that something helpful related to this incredible looming burden will be published.
USCIS Application Support Centers (ASC) are locations that are designated for capturing biometrics including photographs and fingerprinting for green card and citizenship applications. Some ASC’s are located in the same office as the USCIS while others are located independent of the USCIS office and are “stand-alone” offices. Previously the stand-alone ASC offices were open from Tuesday – Saturday. However, starting on November 2, 2009, ASC “stand-alone” locations will have a new schedule of Monday – Friday from 8AM-4PM. Note that these ASCs will close on Halloween (Saturday, 10/31/2009) and open the following Monday morning (11/02/2009) with the new schedule. The last Saturday of operation is 10/24/2009. ASC locations can be found at https://egov.uscis.gov/crisgwi/go?action=offices.type&OfficeLocator.office_type=ASC.
BEWARE!!! Are you an H-1B employer? If so, your company may be the next target of a random audit by the USCIS!
Here is a list of questions that your company should be prepared to answer when USCIS comes knocking on your door:
1. What are the company’s products and/or services?
2. How many employees does the company have?
3. How many employees are in H-1B status?
4. How many employees have been sponsored for permanent residency?
5. How many employees are currently permanent residents?
6. Questions about the H-1B employees specifically: job title; salary; work hours; start date
To the HR person or employer representative answering these questions, the investigator will ask for ID and a copy of the person’s W-2 or recent paystub to verify employment. The investigator may ask to speak to the H-1B employees directly and ask about job duties, work hours and salary, likely looking for consistency. They may also check the employee’s ID.
If any of these questions raise concerns for your company, please don’t hesitate to contact our office.
The new visa bulletin is out at this link: http://travel.state.gov/visa/frvi/bulletin/bulletin_4558.html. Employment-based categories are as follows: EB-1 remains current; EB-2 remains current, except for India and China, which are at January 8, 2005 and earlier; EB-3, 4 and religious workers continue to remain unavailable; EB-5 is current; and the category of targeted employment areas and regional centers is current. Family based petitions are backlogged, with the most recent date at 2005. All diversity visa categories are current except for Ethiopia and Egypt.
If your LCA has been denied because the Department of Labor cannot verify the FEIN number, follow these steps:
Send a copy of the DOL denial email to DOL by email, mail or fax, along with one of the following documents:
IRS document assigning FEIN
Federal or State tax return – must have pre-printed label or a pre-printed tax coupon
Employer’s bank statements or letter from the bank stating FEIN
Articles of incorporation, business license, or other documents of business establishment
Secretary of State registration documents
Official and/or government documents
Other documentation showing the FEIN and name of the employer
How to notify DOL:
Fax to (312) 886-1688. Cover page should state "LCA Business Verification Team - Proof of Valid FEIN"
Email as PDF attachments to LCA.Chicago@dol.gov. Enter "LCA Business Verification Team - Proof of Valid FEIN" in the subject line
Mail to:
Attn: LCA Business Verification Team - Proof of Valid FEIN
U.S. Department of Labor
Employment and Training Administration
Office of Foreign Labor Certification
844 N. Rush Street, 12th floor
Chicago, IL 60611
The company should be notified by email after the submitted documents have been reviewed. Our experience is that it is taking the Department of Labor more than 7 calendar days to confirm the FEIN number. Once the FEIN number is confirmed, the LCA needs to be resubmitted and it takes the USCIS another 7 days to certify the LCA’s.
Employers pay a $500 anti-fraud fee as part of each H-1B petition. This fee has been used recently by the United States Citizenship and Immigration Services (USCIS) to hire contractors to perform site visits to petitioning entities to check the status of workers. One such visit has been recounted to practitioners in the field as a warning of what’s to come.
An investigator phoned the H-1B employer and asked for the company’s attorney who was not available. The lawyer called the investigator back who told him that he is a federally certified private investigator doing background checks on government employees for the Department of Homeland Security’s (DHS) Fraud Detection Program. He stated that these types of visits are usually undergone without warning.
The crux of this investigation revolved around the investigator’s concerns about the attorney signing an H-1B petition for the employer (note: this is actually untrue – the attorney signed as the attorney only). Two items were of interest to the investigator. First, whether the company was a operating business and second, whether the employee/beneficiary was a legitimate worker. He was investigating for two kinds of fraud: a worker who lies on a petition, claiming to work for an employer that he doesn’t work for and/or an employer lying on a petition. He wanted to meet with HR to confirm the employee’s information and also wanted photos of the entity to prove it exists. The investigator mentioned that 28 cities will be targeted with investigations and that this employer was randomly selected. If anything is uncovered in the investigation, the information will be turned over to Immigration and Customs Enforcement (ICE) or DHS.
The H-2B category is available to individuals temporarily in the U.S. for seasonal, periodic, or intermittent employment of a non-agricultural nature. The H-2B category is capped at 66,000 per year worldwide with 33,000 available on October 1 and 33,000 available on April 1 of each year. USCIS has announced that it will continue to receive H-2B petitions for fiscal year 2009 because they have not yet met the H-2B quota. However, they must be adjudicated by September 30, 2009. Any filed after that date will be counted toward FY2010 which starts on October 1.
The H-1B category is a temporary status available to specialty workers who hold a minimum of a Bachelor’s degree or equivalent experience and who will be working in positions that require the same. The H-1B category is capped at 65,000 petitions per year worldwide plus 20,000 additional petitions for those who earned a Masters degree or higher from a U.S. educational institution. The latest H-1B cap count came out August 14, 2009 and reports that 45,000 regular cap petitions and 20,000 Master’s cap petitions have been filed with the USCIS. The agency will continue to receive both types of cap petitions until all cap numbers have been used.
The Department of Homeland Security (DHS) published a rule in 2007 setting forth “safe haven” procedures for an employer to complete upon receipt of a Social Security Administration (SSA) “no-match” letter. A “no-match” letter is a letter from the SSA to an employer that a particular employee does not match the SSA database. The DHS rule created the “safe haven” rule that allowed safe haven to employers if they followed a short and harsh timeline for verifying the person’s employment with consequences that could lead to many immigrants being fired. The AFL-CIO and various organizations succeeded in getting a court to stop the rule from going into effect for the time being.
The DHS proposed on August 19, 2009 a rule that cancels its prior “save haven” rule. The DHS is currently accepting public comments on the August 19, 2009 rule until September 18, 2009, after which it will issue the final rule rescinding its “safe haven” procedures.
Please note that the SSA will continue to issue “no-match” letters, but the DHS will not require that “safe haven” procedures be followed. Employers should simply follow the instructions on the SSA letter as presented. Please feel free to contact our office with any questions.
415-974-1900