In the "How can they live with themselves?" department, USCIS has issued warnings about immigration scams targetted at Haitians applying for TPS (Temporary Protected Status). CIS has published a Fact Sheet explaining that no attorney or other representative is needed to file for TPS and outlining what forms are needed, and the fees. CIS has a website dedicated to the services response to earthquake victims, which contains links to many other resource sites.
WASHINGTON - U.S. Citizenship and Immigration Services announced today that eligible Haitian nationals in the United States may begin the application process for Temporary Protected Status. Details and procedures for applying for TPS are provided in the Federal Register notice published today.
On Jan. 15, 2010, Secretary of Homeland Security Janet Napolitano designated TPS for eligible Haitian nationals as a result of the catastrophic earthquake that occurred in Haiti on Jan. 12, 2010.
The TPS designation for Haiti is effective today and will remain in effect through July 22, 2011. The designation means that eligible Haitian nationals will not be removed from the United States and will also be eligible to apply to work in the United States. The 180-day registration period for eligible Haitian nationals to apply for TPS begins today and will end on July 20, 2010.
The designation applies only to those Haitians who resided in the United States on or before Jan. 12, 2010; TPS will not be granted to Haitian nationals who entered the United States after Jan. 12, 2010.
Haiti joins El Salvador, Honduras, Nicaragua, Somalia, and Sudan as countries currently designated for TPS.
The Department of Homeland Security has issued FAQs on Temporary Protected Status (TPS) for Haiti. The FAQs address how to apply, when to apply, what to do if required documents are unavailable, how to apply for work authorization, how to request a waiver of the filing fee, and much more. The FAQ link is here. It is also published in French and Haitian Creole.
Photo by http://www.flickr.com/photos/unitednationsdevelopmentprogramme/4273888823/.
USCIS has published an FAQ memo to its website, that answers some common questions about how H-1B petitions for consulting companies will be treated now. The memo addresses what evidence should be provided with H-1B petitions, what will happen if the evidence does not prove an "employer-employee" relationship, whether an itinerary is required, and more.
The memo stresses a few times that a petitioner is only obliged to submit evidence that "is required by regulations." Any other evidence, including in response to a Request for Evidence, can be "other similar probative evidence." We'll see.....
The US has suspended removals (deportation) to Haiti because of the recent earthquake. In a press release, DHS stated
Department of Homeland Security Secretary Janet Napolitano and U.S. Immigration and Customs Enforcement Assistant Secretary John Morton today halted all removals to Haiti for the time being in response to the devastation caused by yesterday’s earthquake. ICE continues to closely monitor the situation.
The New York Times reported on the news yesterday. The article states that there are an estimated 30,000 Haitians awaiting removal, however sending them back to Haiti now would endanger them.
The paper also refers to the push now to give Haitians Temporary protected Status (TPS). This status is given to people from certain countries that have suffered natural disasters, wars, or other extreme situations. TPS allows immigrants from the country to stay in the US and work as long as the TPS applies. Haiti has been requesting this status for years, after a series of natural disasters. These include floods in 2004 that left more than 5,000 people dead or missing, and 4 major storms in 2008 that killed at least 800 people and destroyed most of Haiti’s food crops.
TPS seems like a really obvious move for Haitians now, doesn't it?
Photo by http://www.flickr.com/photos/37913760@N03/4273890315/.
The US Citizenship and Immigration Service has issued a long memorandum on what constitutes an "employer-employee" relationship for H-1B purposes. This should be especially interesting to H-1B workers and employers with consulting or contracting arrangements.
US immigration regulations (8 C.F.R. 214.2(h)(4)(ii)) require, among other things, that a H-1B petitioner "Has an employer-employee relationship with respect to employees under this part, as indicated by the fact that it may hire, pay, fire, supervise, or otherwise control the work of any such employee"
CIS acknowledges that the lack of guidance defining what constitutes a valid employer-employee relationship has caused problems, especially when employees such as consultants or contractors are placed at 3rd-party sites. In these situations, the petitioner might not be able to show the required control over the employee's work. CIS considers that the "right to control" the employee's work is critical. The memo stresses that the right to control is different to actual control. To analyze the control, CIS looks at:
Does the petitioner supervise the beneficiary and is such supervision off-site or on-site?
If the supervision is off-site, how does the petitioner maintain such supervision, i. e. weekly calls, reporting back to main office routinely, or site visits by the petitioner?
Does the petitioner have the right to control the work of the beneficiary on a day-to-day basis if such control is required?
Does the petitioner provide the tools or instrumentalities needed for the beneficiary to perform the duties of employment?
Does the petitioner hire, pay, and have the ability to fire the beneficiary?
Does the petitioner evaluate the work-product of the beneficiary, i.e. progress/performance reviews?
Does the petitioner claim the beneficiary for tax purposes?
Does the petitioner provide the beneficiary with any type of employee benefits?
Does the beneficiary use proprietary information of the petitioner in order to perform the duties of employment?
Does the beneficiary produce an end-product that is directly linked to the petitioner's line of business?
Can the petitioner control the manner and means in which the work product of the beneficiary is accomplished?
The CIS Memo describes various different employment relationships, and states whether they meet the regulatory requirements. Those which CIS considers do not comply with regulations include:
Self employment;
Independent contractors;
"Job shops".
The memo describes, in detail, the evidence that can be submitted to prove an employer-employee relationship, especially where the employee will be working off-site.
The memo also notes that petitions must show compliance with 8 C.F.R. 214.2(h)(2)(i)(B) which states:
Service or training in more than one location. A petition that requires services to be performed or training to be received in more than one location must include an itinerary with the dates and locations of the services or training and must be filed with USCIS as provided in the form instructions. The address that the petitioner specifies as its location on the Form I-129 shall be where the petitioner is located for purposes of this paragraph.
The memo notes that to satisfy the requirements of 8 C.F.R. 214.2(h)(2)(i)(B), the petitioner must "submit a complete itinerary of services or engagements that specifies the dates of each service or engagement, the names and addresses of the actual employers, and the names and addresses of the establishment, venues, or locations where the services will be performed for the period of time requested. Compliance with 8 C.F.R. 214.2(h)(2)(i)(B) assists USCIS in determining that the petitioner has concrete plans in place for a particular beneficiary, that the beneficiary is performing duties in a specialty occupation, and that the beneficiary is not being "benched" without pay between assignments." Submitting a detailed itinerary for the next 3 years will be very difficult for many employers who place employees out on contracts.
This memo has just been published today, and there will undoubtedly be many more articles published that analyze the provisions.
1/25/10 UPDATE: I'm happy that this posting is helping so many people. However, I cannot answer specific situations in the comments. This blog provides general information, not specific legal advice. If you would like a formal legal opinion, please speak with a lawyer who could fully analyze your situation and see all your documents. Also, before asking a general question, please check the comments to see if it has been answered earlier.
The US Department of State has released the new Visa Bulletin for February 2010. As in previous months, there is very slight change. To view the bulletin, click here.
The USCIS has issued new information on the vaccination requirements for foreign nationals here. The guidance explains that applicants for US permanent residence need to be vaccinated against the following:
Mumps
Measles
Rubella
Polio
Tetanus and Diphtheria Toxoids
Pertussis
Influenza Type B
Hepatitis B
Any other vaccine-preventable diseases recommended by the Advisory Committee for Immunization Practices.
The guidance answers questions regarding why vaccination is required, what proof is needed of prior vaccinations, what happens if vaccines are not medically appropriate, e.g. because the applicant is pregnant, how to get a waiver of the vaccination requirement, etc.
I blogged about Affidavits of Support here last year, and that blog post has received far more comments so far than any other post. I cannot answer specific questions via the blog , so I hope that last year's FAQs are a help. I recently found another great FAQ publication here, from the National Immigration Law Center (NILC). The NILC article links to other useful resources from the government and from NILC itself. I hope you find this as informative as I did.
The Department of Labor (DOL) has implemented a new system for requesting prevailing wage determinations (PWD), starting on January 1, 2010. Starting on that date, all PWD requests ust be sent to the National Prevailing Wage and Helpdesk Center (NPWHC). This means that State Workforce Agencies will no longer accept PWDs for PERM, H-1B, H-1B1 (Chile/Singapore), E-3 (Australia) or H-2B programs.
Where to send requests
Employers or their attorneys now must request a PWD on Form ETA-9141. Initially, the form must be send by mail or other delivery service (UPS, FedEx, etc) to:
U.S. Department of Labor ETA,
National Prevailing Wage and Helpdesk Center ,
Attn: PWD Request,
1341 G Street, NW, Suite 201,
Washington, DC 20005-3142.
DOL is implementing a system for electronic submission of PWD requests and I will report as soon as this is finalized.
PWD Results
DOL will send the PWD results by e-mail, if the requestor lists an e-mail address on the Form 9141. Otherwise, the results will be mailed.
Processing Times.
DOL will process PWDs in the order they are received. The Department recommends that applicants submit the PWDs at least 60 days before they are needed, e.g. before recruitment starts for PERM.
The US Transportation Security Administration (TSA) has issued guidance for people traveling after the attempted bombing of a plane on Christmas Day. TSA stresses that security measures are not the same in every airport, and this is deliberate so that people cannot anticipate how they will be screened. Details of the TSA guidance is here.
Photo thanks to http://www.flickr.com/photos/sixmilliondollardan/3382932556/
As of December 21, 2009, USCIS has received sufficient petitions to reach the statutory cap for FY2010. USCIS has also received more than 20,000 H-1B petitions on behalf of persons exempt from the cap under the advanced degree exemption. USCIS will reject cap-subject petitions for new H-1B specialty occupation workers seeking an employment start date in FY2010 that are received after December 21, 2009 USCIS will apply a computer-generated random selection process to all petitions that are subject to the cap and were received on December 21, 2009.
