Our firm had an consultation with a company regarding the PERM recruitment process and as a result of the convoluted and outdated process, the employer was not able to hire a foreign national. It was extremely unfortunate because they thought she was the perfect fit for their business needs. However, because of the lengthy PERM Labor Certification process, they could not hire and train her in time. As a result, the foreign national had to plan to leave the country once her H-1B expires and back to the drawing board for the employer. This is just one example of many of how the immigration process contributes to the U.S. talent drain.
Here, we explain the convoluted process to you and why you must retain an immigration attorney from the beginning, the job description drafting process.
General Timeline
The PERM recruitment is a long process and could take anywhere from 6 months to a year, maybe even longer if your file has been randomly selected for audit. Under the current rules, the recruitment process must begin 30-180 days before the submission of the PERM Labor Certification application with the Department of Labor (DOL). After the submission, under the current processing time, it takes 3 months for the DOL to process your application. After the application has been approved, if you have a good immigration attorney working with you, the I-140 and its related documentary evidence should not take long to compile.
However, the I-140 wait time could be another year before the employee is able to start working for you. For this reason, we would always recommend premium processing for our employer clients to speed up the wait time to a mere 15 days. This is the only fee that can be paid by your potential employee to lessen the expenses that are associated with the immigration process.
However, if the I-140 has been pending for a year, we recommend using the H-1B extension option under AC21 (provided, of course, that the candidate had a H-1B visa before). Even if the visa is expired or the candidate had used up the 6 years limit, having a I-140 of a Labor Certification pending for 1 year will allow the candidate to work for you using her H-1B extension. Alternatively, once the I-140 is approved, the candidate can also file for the H-1B extension to work for you. For more information on the H-1B extension, which should take about a month (with premium processing), see: Exceptions to the H-1B Six-Year Limit Under American Competitiveness in the 21st Century Act of 2000 (AC21).
Even with the H-1B extension under AC21 and the premium processing option, however, the wait time from the PWD stage until the time that the employer can hire a foreign national to work for them is still at least 5 months!
PERM Recruitment Requirements
Thirty to one hundred and eighty days prior to the filing date of the application, the employer must obtain a prevailing wage determination (PWD), using the job title and description, and begin the recruitment postings. The PWD can be obtained through a government survey, such as the Foreign Labor Certification Data Center.
The recruitment requires 2 postings in a Sunday newspaper (who even reads these anymore?) and 30 days of posting in the State Work Agency (SWA) Job Bank. In Massachusetts, the job bank posting must be on Massachusetts JobQuest. Additionally, if the position is for a professional occupation, the recruitment must also take place in at least 3 of the 10 areas mentioned on Form 9089: employee referral programs, employer's website, job fairs, third-party job search websites, on-campus recruiting, trade or professional organizations, private employment firms, notice of the job opening at a campus placement office, local and ethnic newspapers, and radio and television advertisements. The specific information requires in the job postings is beyond the scope of this article.
Contacts and Interviews
During the recruitment, you must keep all records of your efforts to contact applicants. You also must interview U.S. workers who meet the minimum requirements for the position and you must document all rejections. Rejections must be for job-related reasons. As such, you cannot reject a candidate based on the lack of training, if the training can be provided on the job. You also cannot reject a candidate based on his/her distance from work, if they are willing to travel.
We understand that most of the time, the recruitment process for PERM does not align with your company's recruitment process. However, this is simply a requirement you must follow if you wish to employee a foreign national outside of his/her H-1B term. As such, we would recommend building this process into your regular recruitment process.
If your business depends on foreign nationals with advanced degrees or skills, you need a good immigration attorney to work with you from start to finish to ensure that the entire process is completed correctly, Working with an attorney can save you a lot of headache and resources in the long run. Otherwise, once you find a candidate that is a perfect fit for your business needs, it may be too late to begin PERM. Zhang-Louie, Immigration Legal Counsel consults employers on the PERM process a regular basis, contact our firm to see how you should start your recruitment.
Wednesday, August 24, 2016
Wednesday, August 17, 2016
Exceptions to the H-1B Six-Year Limit Under American Competitiveness in the 21st Century Act of 2000 (AC21)
My previous post, Is My Potential Employee Cap-Exempt?, explains the six-year limitation for an employee working under H-1B and the concept of recapturing unused time. This is a follow-up to explain the options that may be available for those H-1B employees that are approaching the end of their six years or have exhausted their six years.
American Competitiveness in the 21st Century Act of 2000 (AC21) has two important implications for H-1B employees: (1) a "one-time" protection for H-1B employees by extending their H-1B visa in 3 year increments if the I-140 has been approved under section 104(c), and (2) one-year extensions are available if prior to the exhaustion of the beneficiary's H-1B time, the beneficiary's PERM application or the I-140 petition had been pending for more than 365 days under section 106(c).
Section 104(c): One-Time Protection
Section 104(c) allows the H-1B employee to obtain a "one-time" protection to extend their H-1B visa if their inadmissibility into the country was due only to the fact that they could not apply for adjustment of status because of the per country ceiling imposed by the Department of State. Once their I-140 is approved, this section allows the employees to obtain extensions of their H-1B in 3-year increments and work in the U.S. until their priority date on the visa bulletin is current for adjustment.
It is important to note that although Section 104(c) provides for a "one-time" protection, the petitioner may continuously apply to extend the H-1B status of the beneficiary so long as the two requirements are met. The requirements are merely that (1) the beneficiary has an approved I-140, and (2) the only reason the beneficiary cannot adjust status is because of the per country limitations provided in the visa bulletin.
Additionally, the usage of the word "extension" is a bit of a misnomer as the option is available for those H-1B beneficiaries with an expired H-1B visa also. It is more of a "renewal" of the old visa in increments of three years, until your priority date is current for you to adjust your status to obtain your green card. Moreover, this extension is available for beneficiaries regardless of whether you are outside the U.S. or not. Of course, if you are outside the U.S., you must bring the approved H-1B visa extension petition to the U.S. Consulate in your home country to be processed for your entrance back into the U.S.
Section 106(a): One-Year Extension
The second exception to the six-year limit provides for extensions in one year increments, if the PERM Labor Certification or the I-140 petition has been pending for more than 365 days. Like the "extension" under section 104(c) above, the petitioner may also file for the extension if the beneficiary is outside of the country awaiting adjudication. However, as the regulations state the Labor Certification or the I-140 petition "must have been filed at least 365 days prior to the date that the beneficiary will have exhausted the 6 years of H-1B status in the U.S.," this extension petition is almost always filed before the exhaustion of the 6 years limit, while the beneficiary is still in the U.S. working for the petitioner.
Some other requirements for the approval of the H-1B extension are that the labor certification is not expired at the time of filing for the extension and that, but fore the delay in the adjudication, the extension and the I-129 petition are otherwise approvable.
There are also strategies where you may be able to use recaptured time as outlined in Is My Potential Employee Cap-Exempt? to extend your H-1B expiration date to meet the requirement that the Labor Certification or the I-140 must have been filed 365 days prior to the exhaustion of your H1B.
If you believe that you may qualify for these extensions, please contact us to see what we can do for you.
American Competitiveness in the 21st Century Act of 2000 (AC21) has two important implications for H-1B employees: (1) a "one-time" protection for H-1B employees by extending their H-1B visa in 3 year increments if the I-140 has been approved under section 104(c), and (2) one-year extensions are available if prior to the exhaustion of the beneficiary's H-1B time, the beneficiary's PERM application or the I-140 petition had been pending for more than 365 days under section 106(c).
Section 104(c): One-Time Protection
Section 104(c) allows the H-1B employee to obtain a "one-time" protection to extend their H-1B visa if their inadmissibility into the country was due only to the fact that they could not apply for adjustment of status because of the per country ceiling imposed by the Department of State. Once their I-140 is approved, this section allows the employees to obtain extensions of their H-1B in 3-year increments and work in the U.S. until their priority date on the visa bulletin is current for adjustment.It is important to note that although Section 104(c) provides for a "one-time" protection, the petitioner may continuously apply to extend the H-1B status of the beneficiary so long as the two requirements are met. The requirements are merely that (1) the beneficiary has an approved I-140, and (2) the only reason the beneficiary cannot adjust status is because of the per country limitations provided in the visa bulletin.
Additionally, the usage of the word "extension" is a bit of a misnomer as the option is available for those H-1B beneficiaries with an expired H-1B visa also. It is more of a "renewal" of the old visa in increments of three years, until your priority date is current for you to adjust your status to obtain your green card. Moreover, this extension is available for beneficiaries regardless of whether you are outside the U.S. or not. Of course, if you are outside the U.S., you must bring the approved H-1B visa extension petition to the U.S. Consulate in your home country to be processed for your entrance back into the U.S.
Section 106(a): One-Year Extension
The second exception to the six-year limit provides for extensions in one year increments, if the PERM Labor Certification or the I-140 petition has been pending for more than 365 days. Like the "extension" under section 104(c) above, the petitioner may also file for the extension if the beneficiary is outside of the country awaiting adjudication. However, as the regulations state the Labor Certification or the I-140 petition "must have been filed at least 365 days prior to the date that the beneficiary will have exhausted the 6 years of H-1B status in the U.S.," this extension petition is almost always filed before the exhaustion of the 6 years limit, while the beneficiary is still in the U.S. working for the petitioner.
Some other requirements for the approval of the H-1B extension are that the labor certification is not expired at the time of filing for the extension and that, but fore the delay in the adjudication, the extension and the I-129 petition are otherwise approvable.
There are also strategies where you may be able to use recaptured time as outlined in Is My Potential Employee Cap-Exempt? to extend your H-1B expiration date to meet the requirement that the Labor Certification or the I-140 must have been filed 365 days prior to the exhaustion of your H1B.
If you believe that you may qualify for these extensions, please contact us to see what we can do for you.
Thursday, August 4, 2016
Four Reasons That The Next POTUS Must Move Forward the Startup Act
The next president must make passing The Startup Act one of their priorities as a presidential candidate. This would be one giant step towards immigration reform and to really leverage the power of international talent to improve our economy. Here is why...
One: Stop the STEM Students Brain Drain
Studies show that more STEM students here in the U.S. are foreign compared to those that are U.S. Citisens. It is concerning when "we bring them here, we train them, then they leave," according to Vince Bartram, president and CEO of Project Lead the Way, as quoted in the U.S.News article. The reason that most of these students leave after their studies is because they could not find jobs to maintain their immigration status in the U.S.
The Startup Act would provide conditional permanent residence for these students for up to one year after the expiration of the students' F-1 visa as long as they are "diligently searching for an opportunity to become actively engaged" in a STEM field. Let's face it, in the current economy, a couple of mouths of grace period is not enough for the students to find job opportunities. This solution allows the foreign national to stay here for one year while searching for a suitable job.
Two: Encourages Continuing Innovation
In addition to the one year job search opportunity, this Act also provides the foreign nationals with an additional incentive to stay in the STEM field without going through their employers. So long as they are "actively engaged in a STEM field," they would be eligible to remove the conditions on their permanent residence in five years.
In many instances, a foreign national here on H-1B may be forced to leave once their 6-year term is over, if not earlier. In many instances, however, innovations may take more than 6 years for them to become viable. Many employers would be caught between coming up with the money to file for employment-based immigration petitions to sponsor the H-1B innovator or letting them go. For startups, having funding is the the foundation of their existence, so coming up with the sponsorship may not be possible.
This Act would allow those foreign national innovators to stay here and continue working on their inventions past 6 years. They would be eligible to remove the conditions on the permanent residence, as long as they are (1) gainfully employed in a STEM field, (2) teaching courses in the STEM field, or (3) employed by a government entity. In this way, the foreign national would be free to innovate and contribute to the country's growth, without fear that they would have to leave the U.S. in a number of years.
Three: Small Business Ownership
The Act encourages foreign national entrepreneurs to start their own businesses in the U.S. in order to boost the economy. Much empirical evidence is out there showing that small businesses are the backbone to our economy, here are the facts to back that up. There is also much evidence to show that immigrants are driving small business growth in the U.S. This Act ties up the loose ends and allows foreign immigrants to start businesses in the U.S., contribute to economic growth, and become legal permanent residents in the process.
It provides constant checks to ensure that the foreign national is contributing to local economic growth before removing his conditions to permanent residence 5 years later. In order for a foreign national to maintain his conditional permanent resident status, he must register a business during the first year of his immigrant visa. Subsequently, he must employ at least 2 full-time employees unrelated to him. And lastly, he must employ at least 5 full-time employees who are not relatives of the foreign national within 4 years of receiving his immigrant visa. Towards the end of the four years, the foreign national would be eligible to remove the conditions on his permanent residence.
This option provides a similar program to the EB-5 direct investment, only more achievable to the middle class entrepreneurs and less scam-ridden. We know the benefits that EB-5 direct investments have provided to our economy, this program could only help.
Four: Other Countries Are Using This, Why Not Us?
Last but not least, here is a list of just some of the countries already utilizing the startup visa and immigrant entrepreneur programs to improve their economy: Canada, United Kingdom, Australia, France, and Italy, among many others. If the U.S. does not implement this Act, we will lose our best and brightest STEM students and entrepreneurs to these countries. It is time the U.S. stops pondering the reasons why we should have this program and start asking why not.
Follow us @ZLImmigration as we closely track this development in the law.
Zhang-Louie, Immigration Legal Counsel is a semi-virtual immigration law practice in Cambridge, Massachusetts. Embedded in Cambridge's innovative culture, we understand that particularly for startups, finding the most qualified employees and your own immigration issues can be unnecessary distractions, keeping you from your innovations. We are here to provide you guidance and counsel on hiring globally and ensuring that you can stay in the U.S., so that you can focus on growing your business.
One: Stop the STEM Students Brain Drain
Studies show that more STEM students here in the U.S. are foreign compared to those that are U.S. Citisens. It is concerning when "we bring them here, we train them, then they leave," according to Vince Bartram, president and CEO of Project Lead the Way, as quoted in the U.S.News article. The reason that most of these students leave after their studies is because they could not find jobs to maintain their immigration status in the U.S.
The Startup Act would provide conditional permanent residence for these students for up to one year after the expiration of the students' F-1 visa as long as they are "diligently searching for an opportunity to become actively engaged" in a STEM field. Let's face it, in the current economy, a couple of mouths of grace period is not enough for the students to find job opportunities. This solution allows the foreign national to stay here for one year while searching for a suitable job.
Two: Encourages Continuing Innovation
In addition to the one year job search opportunity, this Act also provides the foreign nationals with an additional incentive to stay in the STEM field without going through their employers. So long as they are "actively engaged in a STEM field," they would be eligible to remove the conditions on their permanent residence in five years.
In many instances, a foreign national here on H-1B may be forced to leave once their 6-year term is over, if not earlier. In many instances, however, innovations may take more than 6 years for them to become viable. Many employers would be caught between coming up with the money to file for employment-based immigration petitions to sponsor the H-1B innovator or letting them go. For startups, having funding is the the foundation of their existence, so coming up with the sponsorship may not be possible.
This Act would allow those foreign national innovators to stay here and continue working on their inventions past 6 years. They would be eligible to remove the conditions on the permanent residence, as long as they are (1) gainfully employed in a STEM field, (2) teaching courses in the STEM field, or (3) employed by a government entity. In this way, the foreign national would be free to innovate and contribute to the country's growth, without fear that they would have to leave the U.S. in a number of years.
Three: Small Business Ownership
The Act encourages foreign national entrepreneurs to start their own businesses in the U.S. in order to boost the economy. Much empirical evidence is out there showing that small businesses are the backbone to our economy, here are the facts to back that up. There is also much evidence to show that immigrants are driving small business growth in the U.S. This Act ties up the loose ends and allows foreign immigrants to start businesses in the U.S., contribute to economic growth, and become legal permanent residents in the process.
It provides constant checks to ensure that the foreign national is contributing to local economic growth before removing his conditions to permanent residence 5 years later. In order for a foreign national to maintain his conditional permanent resident status, he must register a business during the first year of his immigrant visa. Subsequently, he must employ at least 2 full-time employees unrelated to him. And lastly, he must employ at least 5 full-time employees who are not relatives of the foreign national within 4 years of receiving his immigrant visa. Towards the end of the four years, the foreign national would be eligible to remove the conditions on his permanent residence.
This option provides a similar program to the EB-5 direct investment, only more achievable to the middle class entrepreneurs and less scam-ridden. We know the benefits that EB-5 direct investments have provided to our economy, this program could only help.
Four: Other Countries Are Using This, Why Not Us?
Last but not least, here is a list of just some of the countries already utilizing the startup visa and immigrant entrepreneur programs to improve their economy: Canada, United Kingdom, Australia, France, and Italy, among many others. If the U.S. does not implement this Act, we will lose our best and brightest STEM students and entrepreneurs to these countries. It is time the U.S. stops pondering the reasons why we should have this program and start asking why not.
Follow us @ZLImmigration as we closely track this development in the law.
Zhang-Louie, Immigration Legal Counsel is a semi-virtual immigration law practice in Cambridge, Massachusetts. Embedded in Cambridge's innovative culture, we understand that particularly for startups, finding the most qualified employees and your own immigration issues can be unnecessary distractions, keeping you from your innovations. We are here to provide you guidance and counsel on hiring globally and ensuring that you can stay in the U.S., so that you can focus on growing your business.
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