2. OBJECTIVE
RECENT
CHANGES TO H-1B
EFFECTIVE USAGE OF L-1 VISAS
COMPLIANCE ISSUES
BUDGETING & COSTS
PERM & LABOR CERTIFICATION
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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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
