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How does an employer determine whether to advertise under the recruitment requirements for professional occupations or nonprofessional occupations?

According to the Labor Department:

The employer must recruit under the standards for professional occupations set forth in § 656.17(e)(1) if the occupation involved is on the list of occupations, published in Appendix A to the preamble of the final PERM regulation, for which a bachelor's or higher degree is a customary requirement. For all other occupations not normally requiring a bachelor's or higher degree, employers can simply recruit under the requirements for nonprofessional occupations at § 656.17(e)(2). Although the occupation involved in a labor certification application may be a nonprofessional occupation, the regulations do not prohibit employers from conducting more recruitment than is specified for such occupations. Therefore, if the employer is uncertain whether an occupation is considered professional or not, the employer is advised to conduct recruitment for a professional occupation.

This section discusses some of the most popular temporary work visas which are used by foreign nationals to enter the U.S. and work in various occupations for various periods of time.

Note that these are not the only types of work visas which are available. In addition, foreign nationals sometimes obtain the authorization to work based on other qualifications, such as by qualifying for "Temporary Protected Status", for individuals from certain countries which are experiencing some-type of strife. Likewise, some foreign nationals obtain temporary work status as part of their student visas, or as a precursor to obtaining permanent residency status.

Anyone considering the various options, should take a look at the List of Temporary Visas and Classifications, as well as the List of of primary avenues to U.S. Permanent Residency (“Green Card” status).

It is also important to note that certain nationals have special types of work authorization available to them, e.g., Canadians, Mexicans, Australians, Singaporeans, etc.

On 12/19/2006, the USCIS announced Processing Changes for Waivers of 2 Year Home Residency Requirement (which applies to certain individuals who held J exchange visitor status in the U.S.).  First, as of 11/1/2006, the USCIS "Nebraska, Texas and Vermont Service Centers began forwarding to the California Service Center any new filings of Form I-612, Application of Waiver of the Foreign Residence Requirement of Section 212(e) of the Immigration and Nationality Act (INA), as amended, that are based on claims of exceptional hardship or persecution."  Second, "effective October 10, 2006, all INA 212(e) waiver recommendations received by USCIS from the Department of State (DOS) based on a “no objection” statement from the individual’s home country, a request by an interested United States government agency, or a request by a State Department of Health (State Conrad 30) are being forwarded to the Vermont Service Center (VSC) for processing."

According to the Labor Department:

No, any correction or change must be sent to the appropriate Center following the instructions above.

The State Department's Visa Bulletin for January 2007 summarizes the availability of immigrant (green card) numbers during January 2007 for citizens of all countries, for immigration purposes. Because many categories for green cards are backlogged, it is important to check the current availability of immigrant numbers since you can not apply for adjustment of status or consular processing until your category is current (although you may be able to file the underlying petition, and you may be able to file for labor certification, etc., at any time).

Note that you are normally "CHARGEABLE" to the country in which you were born, although there are certain exceptions to that general rule. See our chargeability page. It is advisable to consult an immigration attorney regarding chargeability exceptions. An immigration lawyer can advise you on whether you meet a specific exception, and which country would be best to use for chargeability.

According to a Liaison between the American Immigration Lawyers Association and the U.S. Department of State: E visa processing is to be consolidated at the U.S. Embassy in Rome and U.S. Consulate in Milan, effective Jan 1, 2007.  Applicants for E visas "in the Florence and Naples consular districts will be asked to apply in Rome, but may also apply in Milan providing they are residents of or physically present in Italy."  This change in procedures is intended to "ensure uniform processing and posts plan to set up dedicated channels of communication for applicants and their attorneys."

The USCIS has announced that after completing a policy review that it was clarifying that “any time spent in H-4 status will not count against the six-year maximum period of admission applicable to H-1B aliens.”  Likewise, the USCIS also announced that “time an alien has spent time in L-2 dependent status will not count against the time available to the alien in L-1A or L-1B status.”  The new policy was announced in a USCIS Interoffice Memorandum from Michael Aytes, Associate Director, Domestic Operations, to all Regional Directors and Service Center Directors, dated December 5, 2006.  

The USCIS has announced that after completing a policy review that it was clarifying that to avoid H-1B QUOTA, individuals who spent one year outside of U.S. and did not exhaust entire six year term can CHOOSE to be re-admitted for “remainder” of initial six-year period without being subject to H-1B cap.  The new policy was announced in a USCIS Interoffice Memorandum from Michael Aytes, Associate Director, Domestic Operations, to all Regional Directors and Service Center Directors, dated December 5, 2006. 

The USCIS has announced that after completing a policy review that it was clarifying that “Aliens who are eligible for the 7th year extension may be granted an extension of stay regardless of whether they are currently in the United States or abroad and regardless of whether they currently hold H-1B status.”  The 7th year H-1B extension is available for individuals with Labor Certification (PERM, traditional, or RIR) applications or I-40 petitions pending for more than one year, and for individuals who have approved I-140 petitions, under the terms of AC21.  The new policy was announced in a USCIS Interoffice Memorandum from Michael Aytes, Associate Director, Domestic Operations, to all Regional Directors and Service Center Directors, dated December 5, 2006. 

According to the Labor Department:

All cases are being assigned new case numbers once entered into the Permanent Backlog System (PBLS). Once a case has been entered into PBLS, the BPC will send the employer and attorney of record (if applicable) a letter with the new case number.

H-1B1 visas can be valid for a maximum of 18 months. Extensions and renewals are allowed.

The LA Times reports:

The raid of six Swift & Co. meat packing plants last week spotlighted the fine line employers face because of increased government scrutiny: Make sure your employees are in the U.S. legally, but don't push too hard to find out.

This time, federal inspectors detained 1,300 Swift workers suspected of providing stolen Social Security numbers to the company. But four years ago, the company's requirement that Latino job applicants provide proof of their legal status led to a $200,000 fine for discrimination.

According to the Labor Department:

Employers may have agents and/or attorneys represent them, however, the employer is required to sign in Section N of the Application for Permanent Employment Certification, ETA Form 9089, that the employer has designated the agent or attorney identified in Section E to represent it, and by virtue of its signature, is taking full responsibility for the accuracy of any representations made by the attorney or agent. In signing, the employer acknowledges that to knowingly furnish false information in the preparation of the application form and any supplement thereto or to aid, abet, or counsel another to do so is a federal offense punishable by a fine or imprisonment up to five years or both under 18 U.S.C. §§ 2 and 1001. Other penalties apply as well to fraud or misuse of ETA immigration documents and to perjury with respect to such documents under 18 U.S.C. §§ 1546 and 1621.

NOTE: An attorney or agent is not permitted to register to use the Permanent On-line System for the employer. Only an employee or owner of the employer entity may register. Nor is an attorney or agent of either the alien or the employer permitted to participate in interviewing or considering U.S. workers for the job offered the alien. The agent or attorney may only participate if the agent or attorney is the employer’s representative, i.e., the person who normally interviews or considers, on behalf of the employer, applicants for job opportunities such as that offered the alien, but which do not involve labor certifications.

Over 6.4 million entries for the 2008 Diversity Visa Lottery were received during the two-month electronic registration period, from October 4, 2006, through December 3, 2006. This is an increase from the more than 5.5 million applications received in the 2007 Diversity Visa Lottery. Taking into account dependents, there are more than 10 million participants in the 2008 Diversity Visa Lottery.

Most of the applications were from Africa and Asia with 41 percent of the total from Africa, 38 percent from Asia, 19 percent coming from Europe, and 2 percent coming from South America, Central America, and the Caribbean. The largest number of applicants came from Bangladesh (more than 1.7 million applicants) followed by Nigeria (684,735) and Ukraine (619,584). The number of winning entries by country will be available after the random lottery process is conducted next year.

If an application for a Schedule A occupation is denied is the employer permitted to file for a labor certification for a physical therapist or professional nurse under the basic process, § 656.17?

According to the Labor Department:

No, labor certifications for professional nurses and for physical therapists will not be considered under § 656.17.

With all the reports of high-tech surveillance by the government, one would think that the federal government, including the Department of Homeland Security (DOH), must be teeming with “tech geeks” that would make Bill Gates proud. Unfortunately, the reality may be the opposite: at least if we judge by DOH’s recent decision to throw up its hands and give up on even trying to track something as basic as who has entered and who has departed the U.S. through major land border crossings.

I am a new attorney of record for a permanent foreign labor certification case. Our firm wishes to notify your office of this change. How do I do this?

According to the Labor Department:

Please send the appropriate Backlog Processing Center a letter stating the requested change and enclose a new signed and dated G-28 with the updated information. A separate G-28 is required for each case for which you want to make a change. Each G-28 must be signed and dated by the employer and/or the alien, depending on which party you represent.

“Chargeability” refers to the rules which are used to determine under which country you will be counted for green card purposes.

A fence-building company in Southern California agrees to pay nearly $5 million in fines for hiring illegal immigrants. Two executives from the company may also serve jail time. The Golden State Fence Company's work includes some of the border fence between San Diego and Mexico.

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According to the Labor Department:

No, only college and university teachers of exceptional ability in the sciences or arts who have been practicing their science or art during the year prior to application and who intend to practice the same science or art in the United States fall under Schedule A, Group II, Sciences or Arts.