Summary of changes in Hatch-Shcumer amendment.

H–1B SKILLED WORKER DEPENDENT - Section 212(n)(3) (8 U.S.C. 1182(n)(3)) is amended—

Note - the present definition of H-1B dependent employer remains same. Click here for its definition. In addition to that there is "H-1B Skilled worker Dependent Employer", See below definition.

(
‘H–1B skilled worker dependent employer’ means an employer who employs H–1B non immigrants in the United States in a number that in total is equal to at least 15 percent of the number of its full-time equivalent employees in the United States employed in occupations contained within Occupational Information Network Database (O*NET) Job Zone 4 and Job Zone 5.

1. (ii) An H–1B nonimmigrant who is an intending immigrant shall be counted as a United States worker in making a determination under clause (i).’’

The term intending immigrant has broad definintion. Any employee for whom a Labor Certification is filed will be counted as an intending Immigrant.
 
The amendment also says

(b) SPECIAL REQUIREMENTS.—Notwithstanding any other provision of law, the amendments made by section 4211(c) shall not apply to any application or petition filed by an employer on behalf of an existing employee.


ADJUSTMENT OF STATUS FOR EMPLOYMENT BASED IMMIGRANTS.— ‘‘(1) PETITION.—An alien, and any eligible dependents of such alien, who has filed a petition for immigrant status, may concurrently, or at any time thereafter, file an application with the Secretary of MDM13698 S.L.C. Homeland Security for adjustment of status if such petition is pending or has been approved, regardless of whether an immigrant visa is immediately available at the time the application is filed.

See the entire Hatch-Shcumer amendment here

Electronic I-94 - Travel Advice

We request the travelers to carry a hard-copy of From I94 with them - because a paper Form I-94 is would function as a backup document in the event that CBP officers cannot access the electronic record of admission  at the time that traveller seeks re-admission to the U.S.

You must get a Tear Sheet. If not? That's okay

Nonimmigrant or Parole traveller must expect a tearsheet at the port of entry from CBP directing the them to the CBP website (www.cbp.gov/I94). The People who do not receive a tear sheet may still be able to access their electronic Form I-94 admission record at www.cbp.gov/I94 by entering the required information. 

What if your name is not available to print I-94 in CBP website?

If an individual cannot locate a record at www.cbp.gov/I94 or if the information at that site does not correlate with the passport stamp and written notation of class and term of admission made by CBP at the POE, be sure read the FAQ that gives few basic instructions but worth reading. Also, CBP has clearly told earlier that the name on the passport, rather than the visa, is required to access a record of admission.

Even if this wont help then contact through a deferred inspection office (http://www.cbp.gov/xp/cgov/toolbox/contacts/deferred_inspection/). I personally know that deferred inspection site officers are very friendly and will resolve the issue immediately.

CBP - I-94 Quick reference guide

Customs and Border Protection's reference guide showing different versions of the Form I-94 Arrival/Departure Record that may be encountered in the field by local, state and/or federal agencies.See below

Update - Video demonstration by CBP on how to print I-9 using computer. Click here

CBO's Statistics on foreigners in US

Interesting ahead of CIR Bills and many amendments to it, Congressional Budget office (CBO) has released various statistics of foreign people in United States. Looks like CIR bill will be better with the amendments. Wait and watch...

The Department of Homeland Security (DHS) has estimated that, in 2011, about 11.5 million U.S. residents were in the country without legal authorization—about 3 million more than in 2000. Most of that increase was due to an increase in the unauthorized population from Mexico. According to DHS, in 2011 about 6.8 million unauthorized residents in the United States came from Mexico, an increase of more than 2 million since 2000. Too see more statistics visit www.cbo.gov

www.cbo.gov

The Border Security, Economic Opportunity, and Immigration Modernization Act of 2013

Actually its not a H-1B Visa reform at all!!

VISA STAMPING CAN BE DONE WITHIN USA AND WAGES CANNOT BE BELOW LEVEL 2

1. Employee retains his H-1B status for the period of 60 days after his termination from employment
2. Visa stamping can be done from inside United States itself 
3. Visa interview waiver for low risk travelers
4. H-1B wages cannot be lesser than level 2 wages (also Prevailing wages will have only three levels)
5. H-1B Job posting must be made in DOL’s website for at least 30 calendar days.

OUTPLACEMENT

An H-1B dependent employer may not place, outsource, lease or otherwise contract for the services or placement of an H-1B nonimmigrant employee.

H-1B Dependent employer means

1. Healthcare, etc.
2. In the case of an employer that has at least 51 full-time equivalent employees who are employed in the United States, employs H-1B non-immigrants in a number that is equal to at least 15 percent of the number of such full-time equivalent employees.

In determining the number of employees who are H–1B nonimmigrants under subparagraph (A)(ii), an intending immigrant employee shall not count toward such number.

1. The term ‘intending immigrant means, with respect to the number of aliens employed by an employer, an alien who intends to work and reside permanently in the United States, as evidenced by—
2. for a covered employer, an approved application for a labor certification or an application that has been pending for longer than 1 year; or 
3.  A pending or approved immigrant status petition filed for such alien.

In this paragraph:

The term ‘covered employer’ means an employer of an alien that, during the 1-year period ending on the date the employer files an application for the labor certification for such alien, has filed an immigrant status petition for not less than 90 percent of the aliens for whom the employer filed an application for a labor certification during such period. Labor certification applications that have been pending for longer than 1 year may be treated for this calculation as if the employer filed an immigrant status petition 10 ‘‘(ii) The term ‘labor certification’ means an employment certification under section 212(a)(5)(A).

ANNUAL AUDITS

Conduct annual compliance audits of each employer with more than 100 employees who work in the United States if more than 15 percent of such employees are H–1B nonimmigrants; and make available to the public an executive summary or report describing the general findings of the audits carried out pursuant to this subclause.

OPPORTUNITY TO PARTICIPATE IN INSURANCES ARE MANDATORY

1. It is a violation of this clause for an employer who has filed an application under this subsection—
2. to require an H–1B nonimmigrant to pay a penalty for ceasing employment with the employer prior to a date agreed to by the nonimmigrant and the employer (the Secretary shall determine whether a required payment is a penalty, and not liquidated damages, pursuant to relevant State law); and
3. to fail to offer to an H–1B nonimmigrant, during the nonimmigrant’s period of authorized employment, on the same basis, and in accordance with the same criteria, as the employer offers to similarly situated United States workers, benefits and eligibility for benefits, including—a.       the opportunity to participate in health, life, disability, and other insurance plans; 
   b.      the opportunity to participate in retirement and savings plans; and 
   c.       Cash bonuses and noncash compensation, such as stock options (whether or not based on performance).

The full text can be read here

IT Firm (Dibon) Indicted for H-1B Benching

Dibon Solutions, Inc., a Texas IT Staffing company has been indicted by federal authorities for benching H-1B Visa workers.  The full details of their scheme is outlined in a very detailed manner in papers filed in the U.S. District Court for the Northern District of Texas, Dallas Division.

Click here to see the full case.

Notice of filing travel requirements - Important Decision from BALCA

In the case, Matter of Oracle American, Inc., BALCA held that although the plurality in the Job title indicates that Notice of filing was actually for multiple job positions however, the way the travel requirement was stated does not give enough distinction that it only applied to some of the positions. See the full case by clicking here and also excerpt is listed below.  

1. On October 4, 2010, the CO denied the application because various forms of recruitment, including the Notice of Filing (“NOF”), listed a travel requirement not included in the ETA Form 9089, in violation of 20 C.F.R. § 656.10(d)(4) and 20 C.F.R. § 656.17(f)(6).
2. The Employer filed a request for reconsideration, arguing that the NOF was for multiple positions and the phrase “[m]ay be assigned to various unanticipated sites throughout the United States” did not create a mandatory requirement for all of the multiple open positions listed on the NOF. 
3.  The Employer further argued that the use of the term “may” indicates that travel “might or might not be part of the job” and since the NOF covered multiple positions, if some of the positions “may” involve travel, then it follows that some of the positions “may not” involve travel. 
4.  The Employer asserted that nothing in the NOF would dissuade U.S. workers from applying to the position. With its request, the Employer attached “Notes from DOL Stakeholders Telephone Conference June 22, 2010” addressing the use of advertisements containing multiple job openings. 
5.  On May 23, 2011, the CO denied reconsideration and forwarded the case to BALCA stating that “open ended terms or conditions of employment like ‘may’ require assignment to various locations, could, in fact, be considered a necessary requirement by interested individuals attempting to determine whether to act on the NOF.” 
6.  The Employer additionally argued in its brief that the NOF merely identified potential “incidental travel,” which did not create a job requirement changing the nature of the position or exceeding the job requirements listed on the ETA Form 9089. The Employer asserted that incidental travel, such as attending an industry conference, visiting a client or attending a training seminar, is neither a term nor a condition of employment as it does not change the requirements or the day-to-day duties for the position, and therefore does not need to be included on the ETA Form 9089. The Employer added, even if it was required to reference incidental travel in the applications, there is no space on the applications for including such incidental travel, and thus the CO cannot deny certification on this basis. 
7.  BACLA has consistently held that an employer cannot include a travel requirement in an advertisement for a single position, where none is listed on the application, as it violates 20 C.F.R. § 656.17(f)(6). Microsoft Corporation, 2011-PER-00324, PDF at 9 (Feb. 29, 2012) (citing JPP Eurosecurities, 2010-PER-00160 (Feb. 25, 2011); Xpedite Technologies, Inc., 2010-PER-00100 (Apr. 7, 2010)). However, establishing compliance with Section 656.17(f)(6) in an advertisement for multiple job opportunities with differing travel requirements is not as clear. 
8.  In a recent decision, Microsoft Corporation, 2011-PER-00324 (Feb. 20, 2012), a BALCA panel reversed a CO’s denial based on similar facts to the cases presently before us. In Microsoft Corp., the employer did not list a travel requirement on its ETA Form 9089, but included the phrase “may require employer-reimbursed travel” in its NOF listing multiple position openings. In reversing the denial, the panel focused on the fact that the description of duties and requirements in the NOF were written in the disjunctive, demonstrating a contrast between the different job openings. The panel stated that “the requirements in th[e] advertisement are all described as alternatives or as possibilities, which conveys that some of the requirements apply to some of the positions, while other requirements apply to other positions” and “[t]here is nothing in this advertisement to indicate that some of the requirements apply to all of the positions.” The panel also reasoned that “given the variety of job descriptions, education, and experience requirements, anyone reading the advertisement would understand that the education and experience requirements do not apply to each and every position.” Lastly, the panel found that because the NOF was for multiple positions and the requirements were written in a passive voice, it was understood that the subject of each sentence was “some positions.” 
9.  The Microsoft panel concluded that it was “clear within the overall context of the advertisements that not all of the Marketing and Product Manager positions require travel. As such, the panel found that “in the context of this advertisement,” the phrase “may require employer-reimbursed travel” is indistinguishable from the language “some positions may require travel”5 approved by the DOL in the June 22, 2010 Stakeholders Telephone Conference. The panel in Microsoft noted the limited scope of its holding, based on the specific facts of the case. In a footnote, the panel warned that “if an employer does not use the DOL-endorsed language, a fact-specific inquiry will be necessary to determine whether any potential applicant could have been confused or misled into believing that all positions advertised required travel.”
10. We find that on the facts of the cases before us, a potential job applicant could be confused in thinking that all the Software Engineer positions had the potential requirement of travel. In Microsoft, the panel relied on the fact the employer’s NOF listed a “myriad” of job requirements and duties, all listed in the disjunctive, signifying that not all the requirements applied to all of the positions. In contrast, the NOF in the appeals before us did not list any job duties or requirements other than the possible travel requirement. Although it is clear that the NOF was for multiple positions as it states “Software Engineers” in the plural, the NOF did not contain multiple requirements, listed in the disjunctive, for the various positions listed on the NOF. Thus, there are no contextual cues in the NOF that would signify to a reader that the travel requirement only applied to some of the positions. The Employer in no way differentiated between the various software engineer positions. Additionally, unlike the Microsoft case, the travel requirement in the NOF is not in the passive voice, “making it understood that the subject of [the] sentence is ‘some positions.’” Thus based on the “overall context” of the NOF in the appeals before us, it is not clear that an applicant would know that the potential travel requirement does not apply to all the positions. As such, the phrase “may be assigned to various unanticipated sites” constituted a travel requirement that exceeded the requirements listed in the ETA Form 9089. 
11.  We find no merit to the Employer’s argument that language in the NOF referred only to “incidental” travel. There is nothing in the NOF that suggests that the possible travel was “incidental” in nature. Further, although the Employer argues otherwise, its request to amend the application to add the travel requirement would constitute a modification prohibited under 20 C.F.R. § 656.11(b), and therefore is not allowed.

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