DOL Allows Implementation of Wage Determinations OnLine Website

Effective September 26, 2005 the Department of Labor is amending its regulations so that the Wage Determinations OnLine Internet site will be the source for contracting agencies to use to obtain wage determinations for service contracts (subject to the NcNamara-O’Hara Service Contract Act) and construction contracts (subject to the Davis-Bacon Act and Related Acts). Find out more atwww.wdol.gov.

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DOS Corrects Proposed Rule Regarding Exchange Visitor Program

The Department of State has amended an earlier proposed rule regarding secondary school students in the Exchange Visitor Program. The original proposed rule did not include information regarding the requirements of criminal background checks on all program sponsor officers, employees, representatives, agents and volunteers.

H1-B Numbers For Graduates of U.S. Masters Programs Still Available

According to the USCIS, H-1B numbers for graduates of U.S. masters (or doctoral) programs do still exist for both Fiscal Year 2005 and 2006. Do note that for applications for Fiscal Year 2005 H-1B numbers for graduates of U.S. masters programs (starting earlier than 10/01/05), petitions should be filed to the Vermont Service Center at the following specific address:

USCIS Vermont Service Center 1A Lemnah Drive St. Albans, VT 05479-7001

Petitions for Fiscal Year 2006 numbers (10/01/05 or later) should be filed at the service center that has jurisdiction over the particular place of employment.

USCIS Extends Liberia’s TPS Status

The USCIS has extended the Temporary Protected Status (TPS) designation for Liberia for 12 months. The designation was originally to expire on October 1, 2005; this extension will now keep Liberia’s TPS status open until October 1, 2006. Nationals of Liberia and aliens with no nationality who last “habitually resided” in Liberia with TPS can re-register and apply for an extension of employment authorization. This re-registration is limited to individuals who registered under the current status, which was first announced August 25, 2004. Some nationals of Liberia (and habitual residers) who have not previously applied for TPS may be now eligible to apply for that status. The 60-day registration period begins August 16, 2005 and will remain in effect until October 17, 2005.

Department of Labor Proposes A 45-Day Deadline for Labor Certification Applications

The Department of Labor intends to reduce the incentives and possibilities for fraud and abuse related to permanent employment of aliens by eliminating the practice of allowing the substitution of alien beneficiaries on applications and approved labor certification forms. In addition, the Department of Labor plans to reduce the possibility of fraud by implementing a 45-day deadline for employers to file approved labor certifications in support of their petitions with the Department of Homeland Security. This proposed change would prohibit the sale, barter or purchase of permanent labor certifications/applications, along with related payments. These amendments are relevant to employers using both Form ETA 750, the Application for Alien Employment Certification and Form ETA 9089, the Application for Permanent Employment Certification.

USCIS REACHES H-1B CAP

Washington, D.C.– U.S. Citizenship and Immigration Services (USCIS) announced today that it has received enough H-1B petitions to meet the congressionally mandated cap for fiscal year 2006. USCIS has determined that the “final receipt date” is August 10, 2005. Any petitions received on that date will be subject to the random selection process described below. USCIS will reject any petitions that are subject to the FY 2006 annual cap and received after the “final receipt date.” Additional information regarding the specific number of H-1B petitions processed is available at:

http://uscis.gov/graphics/services/tempbenefits/cap.htm.

Cap and Set Asides. Congress has established an annual H-1B cap of 65,000. Of that number, 6,800 are set aside for the H-1B1 program under terms of the U.S.-Chile and U.S.-Singapore Free Trade Agreements. The total H-1B cap number available for FY 2006 is therefore 58,200. The law provides that any of the unused Chile/Singapore numbers be reallocated back to the FY 2006 H-1B cap. These unused numbers will be made available on October 1, 2006, the start of FY 2007. The law authorizes USCIS to make such unused numbers available within the first 45 days of FY 2007 to aliens who had applied for such visas during FY 2006. At that time, USCIS will announce how many Chile/Singapore numbers went unused and can be reallocated. USCIS will announce the process for distributing any reallocated numbers in a future press release.

Cap Procedures. USCIS has implemented the following process for FY 2006 H-1B filings in accordance with the procedures announced in the Federal Register at 70 FR 23775 (Allocation of Additional H-1B Visas Created by the H-1B Visa Reform Act of 2004):

• USCIS has closely monitored FY2006 H-1B filings and used projections to determine the number of petitions necessary to reach the congressionally mandated cap.

• Having determined that the numerical limits have been exceeded, USCIS will identify those H-1B petitions seeking an FY 2006 number that were received on the date that USCIS received the number of petitions necessary to meet the cap (the “final receipt date”).

• For petitions received on the “final receipt date,” USCIS will apply a computer-generated random selection process. This process will randomly select the exact number of petitions from the day’s receipts needed to meet the congressionally mandated cap.

• After random selection, any remaining H-1B petitions that do not receive an FY 2006 number and are not otherwise exempt will be rejected and returned along with the filing fee(s).

• Petitioners may re-submit their petitions when H-1B visas become available for FY 2007.

• The earliest date for which a petitioner may file a petition requesting FY 2007 H-1B employment with an employment start date of October 1, 2006, is April 1, 2006.

Current H-1B Workers. Petitions for current H-1B workers do not count towards the congressionally mandated H-1B cap. Accordingly, USCIS will continue to process petitions filed to:

• Extend the amount of time a current H-1B worker may remain in the United States.

• Change the terms of employment for current H-1B workers.

• Allow current H-1B workers to change employers.

• Allow current H-1B workers to work concurrently in a second H-1B position.

Cap-Exempt Petitions. As directed by the H-1B Visa Reform Act of 2004, USCIS treats as exempt from the cap for any fiscal year the first 20,000 H-1B petitions reflecting an alien beneficiary with a U.S.-earned master’s or higher degree. For FY 2005 and 2006 USCIS has now received approximately 10,000 and 8,000 of such petitions, respectively. USCIS also notes that petitions for new H-1B employment are not subject to the annual cap at all if the alien will be employed at an institution of higher education or a related or affiliated nonprofit entity, or at a nonprofit research organization or a governmental research organization. Thus, petitions for these exempt H-1B categories may still be filed for work start dates in FY 2005 or 2006.

H-1B in General. The H-1B visa program is utilized by some U.S. businesses to employ foreign workers in specialty occupations that require theoretical or technical expertise in a specialized field, such as scientists, engineers, or computer programmers. As part of the H-1B program, the Department of Homeland Security (DHS) requires U.S. employers to meet specific labor conditions to ensure that American workers are not adversely impacted, while the Department of Labor’s Wage and Hour Division safeguards the treatment and compensation of H-1B workers.

Changes Made to L Status Now in Effect

In December of last year, President Bush signed into law the Omnibus Appropriations Act for 2005 (FY). Part of this Act was the L-1 Visa Reform Act of 2004. This sub-act changed the L-1 classification in two major ways:

1. Aliens are now ineligible for classification as specialized knowledge worker nonimmigrants (L-1B) if the aliens will be stationed primarily at the worksite of an employer other than the petitioner or its affiliate, subsidiary or parent.
2. Aliens are also ineligible for L-1B status if they are either (a) primarily under the control and supervision of an unaffiliated employer or (b) the placement of the worker at a non-affiliated worksite is an arrangement to provide labor for hire for the unaffiliated employer, as opposed to being connected to providing a product or service for which specialized knowledge is required.

These grounds for ineligibility apply to all petitions filed on or after June 6 of this year and apply to petitions for initial applications, amendments or extensions of status.