USWorkVisa.com News Archive
for 2010

The House of Representatives passed the DREAM (Development, Relief and Education for Alien Minors) Act on December 8, 2010. Analysts predict, however, that it may not move in the Senate. Senate Majority Leader Harry Reid (D-Nev.) and Sen. Dick Durbin (D-Ill.) said that they hope to bring the bill to a vote by the end of the Congressional session. If it is not passed by then, prospects are dim for the near future.

The DREAM Act (summary), which has a long history, would allow qualified long-term U.S. residents up to the age of 29 who were brought into the U.S. without authorization or who became undocumented as a result of their parents’ actions to legalize their status. The DREAM Act also would require that they graduate from high school or obtain a GED and demonstrate good moral character. Qualifying children would be given a six-year conditional status. During that time, the applicant must have been attending college or serving in the military for at least two years, and must have passed criminal background checks.

Secretary of Labor Hilda Solis issued a statement on December 8, 2010. Among other things, she predicted that the DREAM Act could reduce the deficit by $1.4 billion over the next 10 years, “through the increased tax revenues that individuals who attend college and earn legal status will generate as they become doctors, engineers, or otherwise realize their full potential.”

For the first time, U.S. Citizenship and Immigration Services (USCIS) has introduced a standardized form for requesting waivers of the fees charged for immigration benefit processing. Form I-912, Request for Fee Waiver, became available for use on November 23, 2010, the same day USCIS’s latest fee schedule took effect.

USCIS said it heard concerns expressed in stakeholder meetings that the absence of a standardized form led to confusion about the criteria and standards used to approve waivers. The new form states requirements for documenting a fee waiver request and gives information on the methodology USCIS uses to evaluate the requests. For example, if an applicant can show that he or she is receiving a means-tested benefit and presents evidence to document that claim, the applicant is not required to submit further evidence. USCIS said it will use the same methodology in reviewing all fee waiver requests, whether submitted on the new I-912 or in a written statement generated by the applicant.

The Department of Labor’s Wage and Hour Division (WHD) announced on December 7, 2010, that it had obtained a consent order to recover $638,449 in back wages and interest from Peri Software Solutions, based in Newark, New Jersey, and its owner, Saravanan Periasamy, for H-1B violations. The company sponsored H-1B nonimmigrant programmer analysts to work in various locations in the U.S. The company and its owner also were fined $126,778 in civil money penalties and interest for failing to provide notice of the labor condition applications at each job site and for filing lawsuits against H-1B workers for early cessation of employment. The company and Mr. Periasamy also were debarred from participation in the H-1B program for one year.

WHD said common violations include the employer’s failure to post notice of the filing of labor condition applications at every worksite where an H-1B worker may be employed, and failure to pay nonimmigrant workers the required wage rate for all nonproductive time caused by conditions related to employment, such as lack of assigned work, lack of a permit, or studying for a licensing exam.

In another recent case, the Law Offices of Sergio Villaverde PLLC, a New York City law firm, was disqualified from the H-1B program for a period of two years for willfully violating prevailing wage requirements. The firm also has been ordered to pay a penalty of $2,250 and to pay one employee back wages totaling $31,954.

In 2003, the firm hired a nonimmigrant attorney from India as a full-time legal assistant and filed an H-1B labor condition application to allow the attorney to work legally in the U.S. An investigation by the WHD’s New York District Office determined that the firm paid the legal assistant less than the required prevailing wage from January 1, 2004, to June 30, 2006. In a recent decision and order, Labor Department Administrative Law Judge Jonathan Calianos ruled that the firm, having advertised its expertise in immigration law, willfully violated the H-1B prevailing wage requirements.

The WHD press release on the Peri Software case is available here. The press release on the Villaverde case is available here.

During a 60-day period that ends on January 31, 2011, U.S. Citizenship and Immigration Services is seeking comments on whether to revise the Petition by Entrepreneur to Remove Conditions (Form I-829). The form is used by conditional resident entrepreneurs who obtained such status through a qualifying investment, to apply to remove conditions on their conditional residence and on that of their spouses and children.

Written comments may be submitted via one of the methods outlined in the PDF notice.

Starting December 23nd, the U.S. Citizenship and Immigration Service (CIS) will require employers who are sponsoring foreign national workers for certain work visas to certify that they have made an export licensing determination regarding each employee sponsored. More specifically, employers will have to certify that they have evaluated the applicable regulations and have determined whether the employee will require an export license in order to perform the job.

The certification requirement is found in the new version of the Form I-129 Petition for Nonimmigrant Worker, the application form used to sponsor most types of work visa status for foreign national workers in the United States. The new form will be required for all filings after December 22, 2010. The certification is quite detailed.

The United States prohibits the export of certain technology and technical data without a license to do so. U.S. law treats as an export the exposure of such technology or technical data to a foreign national working in the U.S., even if the company does not otherwise export any materials, technology, or data. This is referred to as “deemed exports.”

USCIS now requires employers filing Form I-129 for H, L, and O visa status of foreign nationals (1) to certify that they have read the relevant Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR) and (2) to certify whether or not an export control license is required to expose the foreign national to any technologies or technical data associated with the workplace. If a license is required, the employer must attest that the worker will not be exposed to covered technologies without a license covering the foreign worker. We wish to make sure that you do not make a misrepresentation on Form I-129 in this regard, which would be a federal crime in itself.

The International Traffic in Arms Regulations (ITAR) can be found at this site, a page from which other links can be found for the State Department’s Directorate of Defense Trade Controls, which oversees ITAR matters.