Fakhoury law group h&l presentation

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Fakhoury law group h&l presentation

  1. 1. FAKHOURY LAW GROUP WWW.EMPLOYMENTIMMIGRATION.COM
  2. 2. OBJECTIVE  RECENT CHANGES TO H-1B  EFFECTIVE USAGE OF L-1 VISAS  COMPLIANCE ISSUES  BUDGETING & COSTS  PERM & LABOR CERTIFICATION
  3. 3. H-1B TEMPORARY WORKER  65,000 PER YEAR  20,000 EXEMPT – U.S. INSTITUTION MASTERS DEGREE OR HIGHER  OVER-SUBSCRIBED –WILL BE FULLY USED BY EARLY TO MIDAPRIL.
  4. 4. H-1 VISA  NEW FEE STRUCTURE: • PAYMENT ONLY FOR INITIAL PETITION • OR INITIAL EXTENTION • CHANGE OF EMPLOYERS – DEC 8TH, 2004 - $1500 – MARCH 8TH , 2005 - $500 – PREVAILING WAGE IS %100 – CONSULAR PROCESSING: MARCH 8TH , 2005 – IN-PERSON INTERVIEW OF ALL NON-IMMIGRANT VISAS  DEPENDENT EMPLOYER – 15% OR MORE OF WORKFORCE ARE NOT U.S. WORKERS – EXEMPT EMPLOYEES– A MASTER’S DEGREE OR RELATED FOREIGN EQUIVALENT OR ARE PAID $60,000 OR MORE PER YEAR – NON-EXEMPT EMPLOYEES – ATTESTATIONS • DISPLACEMENT OF U.S. WORKERS 90 DAYS BEFORE & AFTER FILING OF H-1B • GOOD FAITH EFFORT FOR RECRUITMENT OF U.S. WORKERS
  5. 5. H-1 VISA  DISPLACEMENT – FAILED TO INQUIRE OF THE SECONDARY EMPLOYER WHETHER DISPLACED OR INTENDING TO DISPLACE 90 DAYS BEFORE OR AFTER DISPLACEMENT OF EMPLOYEE – WHEN THE SECONDARY EMPLOYER , IN FACT DISPLACES A U.S. WORKER DURING THIS PERIOD WHETHER OR NOT AN INQUIRY AS TO DISPLACEMENT HAS BEEN MADE. – THE H-1B EMPLOYER IS STRICTLY LIABLE FOR SUCH DISPLACEMENT  A INDEMNITY CLAUSE SHOULD BE USED TO PROTECT FLEXTRONICS FROM ANY LAY-OFFS THAT TAKE PLACE AT A CLIENT (SECONDARY EMPLOYER). IN SHORT THE CLIENTS RE-IMBURSE FLEXTRONICS IF THERE ARE ANY VIOLATIONS OF THE SECONDARY DISPLACEMENT PROVISION
  6. 6. L-1 TEMPORARY WORKER  L-1A MULTI-NATIONAL MANAGER/EXECUTIVE L-1B SPECIALIZED KNOWLEDGE  MUST WORK AT PETITIONING EMPLOYER’S WORKSITE  – DEFINING TERM IS “CONTROL” – L-1B’S REPORTING TO L-1A AT SITE DIFFERENT FROM PETITIONING EMPLOYER  EFFECTS OF VISA REFORM ACT 2004 – REVOKING 6 MONTHS CONTINUOUS EMPLOYMENT – 1 YEAR CONTINUOUS EMPLOYMENT REINSTATED – UNLESS A BLANKET HAS BEEN ALREADY FILED – NEW “FRAUD PREVENTION & DETECTION FEE” $500
  7. 7. L-1 TEMPORARY WORKER  SPECIALIZED KNOWLEDGE – SPECIAL KNOWLEDGE OF THE PETITIONING ORGANIZATION’S PRODUCT, SERVICE, RESEARCH, EQUIPMENT, TECHNIQUES, MANAGEMENT AND ITS APPLICATION IN INTERNATIONAL MARKETS. – POSSES AN ADVANCED KNOWLEDGE OR EXPERTISE IN THE ORGANIZATION PROCESSES OR PROCEDURES.  KNOWLEDGE IS SPECIALIZED ONLY IN THAT IT IS NOT ORDINARY – KNOWLEDGE THAT IS VALUABLE TO THE EMPLOYER’S COMPETITIVENESS IN THE MARKET PLACE. – IS QUALIFIED TO CONTRIBUTE TO THE U.S. EMPLOYER’S KNOWLEDGE OF FOREIGN OPERATIONS. – HAS BEEN A KEY EMPLOYEE ABROAD AND HAS BEEN GIVEN SIGNIFICANT ASSIGNMENTS THAT HAVE ENDORSED THE EMPLOYER’S PRODUCTIVITY, COMPETITIVENESS OR FINANCIAL POSITION. – POSSES KNOWLEDGE THAT CAN ONLY BE GAINED THROUGH EXTENSIVE PRIOR EXPERIENCE WITH THAT EMPLOYER.
  8. 8. L-1 TEMPORARY WORKER – EXPERIENCE NOT READILY AVAILABLE IN THE U.S. – CASES WERE ROUTINELY DENIED WHENEVER THE ADJUDICATING OFFICER DETERMINED THAT THE INDIVIDUAL WAS PROVIDING COMPUTER PROGRAMMING OR ANALYSIS THAT INVOLVED NON-PROPRIETARY SOFTWARE RATHER THAN TECHNOLOGY THAT WAS SPECIFICALLY DEVELOPED BY AND FOR THE PETITIONER. – FUTURE PETITIONS SHOULD CONTAIN DOCUMENT DETAILING SPECIFIC NATURE OF THE BENEFICIARIES KNOWLEDGE , SKILLS AND DUTIES.
  9. 9. PART TIME L-1 – LESS THAN 180 DAYS OF WORK IN THE U.S. – MUST BE FULL-TIME FOR QUALIFYING ORGANIZATION – MAY STAY ON FOREIGN PAYROLL NEW BLANKET L PROVISIONS  SEC 13 : REQUIREMENT FOR PRIOR CONTINUOUS EMPLOYMENT FOR CERTAIN INTRA-COMPANY TRANSFEREES  APPLICABILITY : THE AMMENDMENT MADE BY SUB-SECTION(A) SHALL APPLY ONLY TO PETITIONS FILED ON OR AFTER THE EFFECTIVE DATE OF THIS SUBTITLE THE ANSWER IS THAT THE AMMENDMENT APPLIES ONLY TO PETITIONS BY IMPORTING EMPLOYEES FOR INTERNAL BLANKET CLASSIFICATION AND NOT TO PETITIONS BY EMPLOYETS FOR INDIVIDUAL CASES. PETITIONERS WITH A BLANKET PETITION FILING DATE PRIOR TO JUNE 06, MAY CONTINUE TO TRANSFER EMPLOYEES WHO HAVE BEEN EMPLOYED ABROAD FOR 6 MONTHS.
  10. 10. PERM – MARCH 28, 2005  FORM ETA – 9089 – PRIOR RECRUITING – KEEP DOCUMENTATION FOR 5 YEARS  PROCEDURE – OBTAIN PREVAILING WAGE FROM SWA – PREVAILING WAGE MUST BE 100%  RECRUITMENT – PROFESSIONAL POSITIONS – PLACE A JOB ORDER WITH THE SWA COVERING AREA OF EMPLOYMENT FOR ATLEAST 30 DAYS – 2 NEWSPAPER ADVERTISEMENTS ON TWO DIFFERENT SUNDAYS OR ONE MAY GO IN A PROFESSIONAL JOURNAL – MUST BE DONE AT LEAST 30 DAYS PRIOR BUT NO LONGER THAN 180 DAYS BEFORE FILING.
  11. 11. PERM – MARCH 28, 2005 – MUST CHOOSE AT LEAST 3 OF THE FOLLOWING • JOB FAIR • EMPLOYER’S WEB SITE • JOB SEARCH WEB SITE OTHER THAN THE EMPLOYER’S • CAMPUS RECRUITMENT • TRADE OR PROFESSIONAL ORGANIZATION • PRIVATE EMPLOYMENT FIRMS • EMPLOYEE REFERAL • RADIO & TELEVISION – AND MUST CONTAIN • EMPLOYER’S NAME • JOB LOCATION • DESCRIPTION OF THE JOB SPECIFIC ENOUGH TO APPRAISE U.S. WORKERS OF THE JOB OPPORTUNITY
  12. 12. PERM – MARCH 28, 2005 • MUST DIRECT RESUME TO THE EMPLOYER • CAN NOT BE MORE RESTRICTIVE THAN THE JOB DESCRIPTION IN 9039 • MUST BE HIGHER THAN PREVAILING WAGE – RECRUITMENT REPORTS • DESCRIPTION OF RECRUITMENT STEPS UNDERTAKEN AND THE RESULTS ACHIEVED • THE NUMBER OF U.S. WORKERS REJECTED CATEGORIZED BY THE LAWFULL REASON FOR SUCH REJECTION – THE COMPANY MAY ASK FOR AND RECEIVE RESUMES OF U.S. WORKERS – CAN ACQUIRE THE SKILLS NECESSARY TO PERFORM THE DUTIES INVOLVED IN THE OCCUPATION DURING A REASONABLE PRIOD OF ON THE JOB TRAINING
  13. 13. PERM – MARCH 28, 2005 • FOREIGN NATIONAL EXPERIENCE – O.K. AS LONG AS “SUBSTANTIALLY NOT COMPARABLE TO” THE WORK IN THE OFFERED POSITION – LAYOFFS • 6 MONTHS PRIOR TO APPLICATION – AUDIT • CAUSE OR RANDOM • 30 DAYS TO RESPOND OR WILL BE DENIED – REQUEST ADDITIONAL INFORMATION – SUPERVISED RECRUITMENT • FAILURE TO RESPOND OR MISSING INFORMATION – SUPERVISED RECRUITMENT FOR ALL L/C UP TO 2 YEARS – CAN APPEAL WITHIN 30 DAYS

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