The Department of Labor’s National Prevailing Wage Center (NPWC) currently is not issuing Prevailing Wage Determinations (PWDs), nor are they reviewing requests for reconsideration or appeals to the Center Director. The NPWC handles PWDs for the PERM labor certification, H-1B, H-1B1 (Chile/Singapore), H-2B and E-3 programs. As a result of the suspension, prevailing wage requests filed since early June 2011 are still pending. Previously, such requests were routinely processed in 3-4 weeks.
These processes are on hold at this time as the NPWC is required to reissue approximately 4,000 H-2B wage determinations, to reflect the new H-2B wage rates that will apply for H-2B employment on or after September 30, 2011.
It is unclear how long the suspension will last. In the rule published on August 1, DOL indicated that while they will be able to reissue all of the required H-2B wage determinations before October 1, they also stated that DOL could not reissue all 4,000 required H-2B wage determinations before August 31, 2011. DOL has not issued any estimate on when they will resume processing prevailing wages.
The NPWC is now sending out the following revised message regarding prevailing wage determinations:
The OFLC National Prevailing Wage Center is experiencing delays in processing prevailing wage determinations as it is currently working to reissue certain determinations to comply with a court order issued June 15, 2011 in the United States District Court for the Eastern District of Pennsylvania. A Notice of Proposed Rulemaking was published in the Federal Register on June 28, 2011, and a Final Rule will be published on August 1. All Center resources are currently being utilized to comply with this court order. The processing of Prevailing Wage Determinations, redeterminations, and Center Director Reviews has been temporarily suspended. Processing will resume as soon as full compliance with the court order has been completed by OFLC.
The June 15, 2011 court order stems from the August 30, 2010 decision in CATA v. Solis, where the district court ordered DOL to promulgate new H-2B prevailing wage regulations.
The USCIS has announced a new initiative designed to attract and retain foreign entrepreneurs, particularly in the high-tech sector, who wish to launch start-up companies in the U.S. This initiative will include changes to current visa programs and training for visa officers with the objective of enabling more entrepreneurs to gain entry into the U.S. and of bringing more speed and efficiency to the visa-application process.
Here are some of the proposed changes:
EB-2 Immigrant Visas: foreign entrepreneurs will be eligible without a specific job offer, as long as they demonstrate that their business endeavors will be in the U.S. national interest.
H-1B Visas: The government is also seeking to bolster use by foreign entrepreneurs of H-1Bs. A sole entrepreneur can now qualify for an H-1B if the individual’s employment is decided by a corporate board or shareholders of the start-up company.
EB-5 Investor Visas: Additionally, the EB-5 investor program, which enables foreign investors and their families to qualify for green cards if they invest at least $500,000 in a U.S. project that generates at least 10 jobs.
If you have any questions about this new government initiative or any of these visas please contact our office at info at harms-law.com.
Here is a link to the Wall Street Journal article discussing this initiative: http://online.wsj.com/article/SB10001424053111904292504576482573203358158.html
As of July 22, 2011 approximately 21,600 H-1B cap-subject petitions were receipted. Additionally, USCIS has receipted 13,300 H-1B petitions for aliens with advanced degrees. USCIS started accepting H-1B petitions subject to the fiscal year 2012 on April 1, 2011. The current annual cap on the H-1B category is 65,000. Not all H-1B non-immigrants are subject to this annual cap. If you are interested in the H-1B program or have any questions, please contact our office at info at harms-law.com.
As of July 1, 2011 approximately 18,400 H-1B cap-subject petitions were receipted. Additionally, USCIS has receipted 11,900 H-1B petitions for aliens with advanced degrees. USCIS started accepting H-1B petitions subject to the fiscal year 2012 on April 1, 2011. The current annual cap on the H-1B category is 65,000. Not all H-1B non-immigrants are subject to this annual cap. If you are interested in the H-1B program or have any questions, please contact our office at info at harms-law.com.
As of June 13, 2011 approximately 15,200 H-1B cap-subject petitions were receipted. Additionally, USCIS has receipted 10,200 H-1B petitions for aliens with advanced degrees. USCIS started accepting H-1B petitions subject to the fiscal year 2012 on April 1, 2011. The current annual cap on the H-1B category is 65,000. Not all H-1B non-immigrants are subject to this annual cap. If you are interested in the H-1B program or have any questions, please contact our office at info at harms-law.com.
As of May 20, 2011, approximately 12,300 H-1B cap-subject petitions were receipted. Additionally, USCIS has receipted 8,500 H-1B petitions for aliens with advanced degrees. Last week the count was 11, 200 H-1B cap-subject petitions and 7,900 H-1B petitions for aliens with advanced degrees. USCIS started accepting H-1B petitions subject to the fiscal year 2012 on April 1, 2011. The current annual cap on the H-1B category is 65,000. Not all H-1B nonimmigrants are subject to this annual cap. If you are interested in the H-1B program or have any questions, please contact our office at info at harms-law.com.
On Wednesday, March 30, I visited California College of the Arts and presented Immigration Options for CCA Students Following Graduation. As I explain in all of my presentations at local San Francisco Bay Area universities, it is always wise for students to consult with an immigration attorney to discuss their options for work authorization prior to accepting a position with a employer.
If you are interested in scheduling a free presentation at your university regarding immigration options for students and scholars after leaving the university, please contact our office at info at harms-law.com.
Tomorrow, May 27th, I will present immigration options for students after leaving the University of California, Davis at 5 pm in 206 Olson Hall. This presentation covers several issues which are of the utmost importance for anyone considering (non-UC Davis) H-1B status in the future, including:
• What are the requirements for H-1B status?
• How far in advance of the expiration of my current status should I consider H-1B sponsorship?
• What is the current situation with H-1B ?numbers? for undergraduate and graduate students?
• What questions should I ask potential employers about their immigration policies with regard to H-1B status and employing foreign nationals?
• What happens to my status if I am laid off from my job while in H-1B status?
• How can I obtain permanent residency? How does permanent residency relate to my H-1B status?
• How do I maintain my F-1/J-1 status if I marry a US citizen and apply for permanent residency?
I have attached the presentation and the handouts for anyone who cannot make the presentation tomorrow. Please also feel free to e-mail me at info at harms-law.com to schedule a one-hour consultation for a nominal fee to design an immigration strategy relevant to your particular situation.
Melissa Harms H-1B Workshop May 2010
H visa
On January 8, 2010, the USCIS released a memo regarding establishing an employee/employer relationship for H-1B petitions where employees are placed at third party sites. This memo gives guidance to USCIS adjudicators in determining whether a sufficient employer/employee relationship exists as for the Petitioner to qualify as an “employer” under the Immigration and Nationality Act and the Code of Federal Regulations when applying for H-1B status on behalf of its employees.
The memo outlines several types of relationships where the employer/employee relationship exists:
- Traditional employment
- Temporary/Occasional Off-Site employment (for example, accountants who visit different client sites for audits and the petitioner provides food and lodging costs for the beneficiary who is normally stationed at a centralized office run by the petitioner.)
- Long Term/Permanent Off Site employment (for example, architects who are working off-site at a project site where the petitioner provides the instruments and tools for the project and the beneficiary reports to the petitioner, and the underlying contract states that the petitioner has the right to ultimate control of the beneficiary’s work.)
- Long Term Placement at a Third Party Work Site (for example, the petitioner is a computer software development company which has contracted with another company to develop an in-house computer program. The beneficiary will work on the contract at the client site. While the beneficiary is at the site, he reports to the petitioner, and is paid by the petitioner and receives benefits from the petitioner.)
The memo also states that self-employed beneficiaries and independent contractors do not have a sufficient employer/employee relationship for H-1B purposes. Lastly, the memo states that Third Party Placements/ “Job Shops” do not demonstrate the requisite employee/employer relationship. These relationships exist when the petitioner has contracts with numerous outside companies in which it supplies employees to fill specific staffing needs. The specific staffing needs are not outlined in the contract between the petitioner and the third-party company, but are staffed on an as-needed basis. The beneficiary does not report to the petitioner for work assignments and the petitioner does not control how the beneficiary will complete daily tasks.
The USCIS is now going to subject any H-1B application to strict scrutiny to determine if the relationship is analogous to the “Long Term Placement at a Third Party Worksite” situation as described above, which does satisfy the employee/employer test, or whether it is more analogous to the “Job Shop” scenario described above. Therefore, H-1B petitions that do not involve a traditional employment relationship or in which the employee must travel to additional worksites will need to provide the evidence stated below (as appropriate):
- A complete itinerary of services or engagements that specifies the dates of each service or engagement, the names and addresses of the actual employers, and the names and addresses of the establishment, venues, or locations where the services will be performed for the period of time requested;
- Copy of signed Employment Agreement between the petitioner and beneficiary detailing the terms and conditions of employment;
- Copy of an employment offer letter that clearly describes the nature of the employer/employee relationship and the services to be performed by the beneficiary;
- Copy of relevant portions of valid contracts between the petitioner and a client (in which the petitioner has entered into a business agreement for which the petitioner’s employees will be utilized) that establishes that while the petitioner’s employees are placed at the third-party worksite, the petitioner will continue to have the right to control its employees;
- Copies of signed contractual agreements, statements of work, work orders, service agreements, and letters between the petitioner and the authorized officials of the ultimate end-client companies where the work will actually be performed by the beneficiary, which provide information such as a detailed description of the duties the beneficiary will perform, the qualifications that are required to perform the job duties, salary or wages paid, hours worked, benefits, a brief description of who will supervise the beneficiary and their duties, and any other related evidence;
- Copy of position description or any other documentation that describes the skills required to perform the job offered, the source of the instrumentalities and tools needed to perform the job, the product to be developed or the service to be provided, the location where the beneficiary will perform the duties, the duration of the relationship between the petitioner and beneficiary, whether the petitioner has the right to assign additional duties, the extent of petitioner’s discretion over when and how long the beneficiary will work, the method of payment, the petitioner’s role in paying and hiring assistants to be utilized by the beneficiary, whether the work to be performed is part of the regular business of the petitioner, the provision of employee benefits, and the tax treatment of the beneficiary in relation to the petitioner;
- A description of the performance review process; and/or
- Copy of petitioner’s organizational chart, demonstrating beneficiary’s supervisory chain.
Given the increased scrutiny on these H-1B petitions, the Law Office of Melissa Harms will work with employers in these situations to gather the necessary documents and craft legal arguments to ensure the maximum chances of success for H-1B petitioners.
Tags: beneficiary, consultant, consultants, contractor, Donald Neufeld, employee, employer, H-1B, Memo, petitioner, relationship, third party, USCIS
Legal Updates | melissa | 
January 20, 2010 3:22 pm | 
Comments (3)
The Department of Labor announced that it has recovered more than $1.4 million in back wages for 237 employees employed by a contractor for the US Department of Homeland Security’s US Citizenship and Immigration Services Vermont Service Center at various locations for failing to pay these workers the prevailing wage for their positions.
When sponsoring individuals for H-1B status (the most common work-authorized work visa), the employer has to prove to the Department of Labor and the Department of Homeland Security’s USCIS agency that it is paying the prevailing wage for the position. Therefore, I find it highly ironic that the USCIS will hold employers to a higher standard than it holds its own contractors!
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