BUSINESS WATCH

It Will Cost a Lot to go to H But Not as Much to go to L -  An Immigration Update By Gregory B. Minter (continued)

 

These employers include: (1) institutions of higher education, as defined in § 101(a) of the Higher Education Act of 1965, or related or affiliated nonprofit entities; (2) nonprofit or governmental research organizations; (3) primary and secondary education institutions; and (4) nonprofit entities that engage in established curriculum-related clinical training of students registered at any such institution.  “Dependent employer” requirements that were in effect prior to September 30, 2003, have been reinstated and made permanent. These relate to the ability of the dependent employer to file the labor condition application with the federal Department of Labor without prior recruitment efforts.

 

L-1 Visa Requirements

The new law introduced a provision that prevents L-1B specification for “specialized knowledge” employees from being granted to those foreign nationals who would be: (1) supervised and controlled by an employer who is not affiliated with the employer for whom the petition was granted; and/or (2) placed with an unaffiliated employer to provide labor that does not involve the specialized knowledge specific to the petitioning employer. It also changed the prior employment requirement for blanket visas from six months to one year.   These provisions go into effect on June 6, 2005. As noted above, the new $500.00 fee applies to L visa petitions filed with the USCIS on or after March 8, 2005. The fee is in addition to the regular filing fee of $185.00.

 

Employment Based Third Preference Retrogression

Starting January 1, 2005, the priority date for an employment based third preference individual who is a national of China, India, or the Philippines has retrogressed from being current to January 1, 2002. This means that persons whose employers filed for them in that classification must have had their petition for the immigrant visa filed on or before that date in order to receive a permanent resident visa. The retrogression has occurred with respect to the designated countries because of the large number of persons applying for such visas from those countries. This uses up the number of visas annually allocated to those countries.

 

PERM

A new labor certification regulation of the Department of Labor called PERM was published in the Federal Register on December 27, 2004 and becomes effective March 28, 2005.   A more detailed discussion of the over 300 page regulation will be included in a later issue of Business Watch. The highlights, however, are:

 

· The prevailing wage standard is the same for both PERM and the recent H-1B amendments discussed above.

 

· The offered wage must be 100% of prevailing wage (four wage levels available).

 

· Recruitment is still required but there are new standards for advertisement of the position.

 

· The application for labor certification may be filed electronically or by mail and the goal for completion of processing for electronically filed applications is 45 to 60 days as opposed to the two to three years under the previous system.

 

· There are no fees for filing for labor certification under PERM.   This was also the case under the previous system.

 

 

CONTINUED

 

 

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