USWorkVisa.com News Archive
for the ‘H Visas’ Category

The Department of Labor’s Employment and Training Administration (ETA) has announced (PDF, includes a state-by-state table of AEWRs for 2010) the new 2010 Adverse Effect Wage Rates (AEWRs) and the 2010 maximum allowable meal and travel subsistence charges applicable to employers seeking to employ H-2A nonimmigrant workers to perform agricultural labor in the United States on a temporary or seasonal basis. The AEWR serves as the floor for the agricultural wage rates under the H-2A program.

The ETA noted that the H-2A AEWR is based on USDA data compiled through its Farm Labor Survey (FLS) Reports. The changes take effect March 15, 2010.

U.S. Citizenship and Immigration Services (USCIS) has provided guidance for processing and adjudicating the Petition for a Nonimmigrant Worker (Form I-129) filed on behalf of H-1B specialty occupation and H-2B temporary nonagricultural workers in the Commonwealth of the Northern Mariana Islands (CNMI) and Guam. The memo notes that H-1B and H-2B workers in the CNMI and Guam are exempt from the numerical limitations, or caps, for these categories. To qualify for this exemption under the H-1B classification, the prospective employer’s petition must include a labor condition application (LCA) listing employment or services in the CNMI and/or Guam only. To qualify under the H-2B classification, the petition must include a temporary labor certification (TLC) listing labor or services in the CNMI and/or Guam only.

Canada welcomes approximately 250,000 new immigrants each year, which represents the highest per capita immigration in the world.

The majority of those who immigrate to Canada apply to do so under Canada’s Federal Skilled Worker Class Program or under one of the Provincial Nominee Programs for those chosen/selected by one of Canada’s provinces or territories.

Canada’s Federal Skilled Worker Class Program is a points-based system. Points are awarded for education, language abilities (English and French), work experience, age, arranged employment, and adaptability.

Until 2008, any applicant who was awarded the minimum required 67 points would have been accepted as long as they and their family members had no significant medical, criminal, or security problems. Since 2008, Canada has imposed an additional requirement of having at least one year of full-time work experience in one of 38 occupations (financial managers, computer and information systems managers, accountants, physicians, and others) for those not already working in Canada or those who do not have an “arranged employment offer with a Canadian employer.”

Other options to consider for those interested in Canadian permanent residence who are not on Canada’s Federal Skilled Worker Class Program “38 occupations list” are the province of Quebec’s Skilled Worker Class Program and the province of Alberta’s U.S. Visa Holder Category Program.

Quebec’s Skilled Worker Class Program does not have a restrictive occupations list. Fifty-five points (for a single person) and 63 points for a married person are the minimum required points to be accepted for Canadian permanent resident status under the Quebec program, as of the most recent legislative changes of October 14, 2009. Points are awarded by Quebec (which accepts approximately 55,000 immigrants a year) principally for education, work experience, age, language abilities (oral French and oral English), visits to Quebec, family in Quebec, children’s and spouse’s educations, age, and oral French abilities. If a foreign national has some oral French abilities, or can readily acquire them, the Quebec Skilled Worker Class Program should be considered.

Alberta’s U.S. Visa Holder Category Program requires the foreign national to:

1. Be currently working in the United States with valid H-1B, H-1B1, H-1C or E3 status;
2. Have a minimum of one year of work experience in the U.S. in one of the qualifying visa categories; and
3. Be on the Alberta Occupations Under Pressure list of 72 occupations.

Canada welcomes applicants and their spouses who are in common-law or same-sex relationships.

Canada may be an option for those in the U.S. or elsewhere with precarious or soon expiring status.

The Department of Labor recently released a list of important e-mail addresses pertaining to the PERM system, labor condition applications and prevailing wages, and H-2A/H-2B issues.

Donald Neufeld, Associate Director for U.S. Citizenship and Immigration Services (USCIS) Operations, released a memorandum on January 8, 2010, that provides guidance concerning the requirement that an H-1B petitioner establish that an employer-employee relationship exists and will continue to exist with the beneficiary throughout the duration of the requested H-1B validity period.

The memo states that a lack of guidance clearly defining what constitutes a valid employer-employee relationship has “raised problems,” particularly with independent contractors, self-employed beneficiaries, and beneficiaries placed at third-party worksites. Mr. Neufeld notes that the placement of a beneficiary/employee at a worksite that is not operated by the petitioner/employer (third-party placement), common in some industries, “generally makes it more difficult to assess whether the requisite employer-employee relationship exists and will continue to exist.

Among other things, petitioner control over the beneficiary must be established when the beneficiary is placed into another employer’s business and is expected to become a part of that business’s regular operations, the memo notes. “The requisite control may not exist in certain instances when the petitioner’s business is to provide its employees to fill vacancies in businesses that contract with the petitioner for personnel needs. Such placements are likely to require close review in order to determine if the required relationship exists,” the memo warns.

Further, the memo notes, USCIS must ensure that the employer is in compliance with Department of Labor regulations requiring that a petitioner file a labor condition application (LCA) specific to each location where the beneficiary will be working.

The memo includes a discussion of the “right to control” when, where, and how the beneficiary performs the job, which the memo distinguishes from “actual control.” The memo states that the employer-employee relationship hinges on the right to control the beneficiary, and outlines 11 factors USCIS will consider to make such determinations. The memo also provides examples of valid and invalid employer-employee relationships; exceptions; documentation to establish the employer-employee relationship; and requests for evidence.

A related Q&A is available here.
cf. http://www.nationofimmigrators.com/