immigration information h-1 and permanent residency regulatory changes

Immigration Information

H-1 and Permanent Residency Regulatory Changes

Immigration 101

Nonimmigrant Status- remain temporarily in US and has foreign residence abroad with no intention to abandonLawful Permanent Resident (LPR) – international who intends to remain in the US permanentlyUS citizenship

H-1B Employment Visa Status

Specialty occupation/min. requirementsTime Limits: 6 years/ individualMust pay the prevailing wageDual IntentEmployer/position specificH-4 dependents – no employmentNo H-1 if subject to J-1 two year rule

President Bush recently signed into law the Omnibus Appropriations Act for FY 2005

This incorporates the”H-1B Visa Reform Act of 2004” which contains changes in the H-1B category.

H-1B changes

New $500 fee5% rule eliminatedWage surveys increase from 2-4DOL investigative authority expandsEffective date: March 8, 2005

H-1 cap – 20,000 exemptTraining fee returns in private sector (not MSU)H-1B dependency & attestations (not MSU)

Fraud Prevention and Detection Fee

New $500 fee paid by employerMust be paid with initial H-1petitionsFee is not required for H-1 extensionsFee only applies to employee, not dependentsWhere will the money go? Split evenly between DOL,DHS, & DOS for antifraud activities, including the hiring of additional personnel.

When is the new fee needed?How will we know? Is an MSU check needed?

Note: Form I-129 fee of $185.00 is still needed along with new fee.

Possible Fees for H-1 filing

$685 for new H petitions$185.00 for H extensions $1,000 (optional) premium processing fee$195.00 for H-4 dependents (employer or employee can pay)

Is new fee needed?

A researcher at MSU in J-1 status needs H-1 status?A professor in H status at Illinois accepts a tenure stream offer at MSU?An F-1 student on practical training at MSU accepts an assistant professor position?An H-1 at MSU needs an H extension?An H-1 at MSU moves departments?

Is an MSU check needed?

Check payable to: U.S. Citizenship and Immigration Service (USCIS)Employer should cover costs for H-1Check options: $685.00 ($500 + $185.00 filing fee) OR two checks: $500 and $185$185.00 (Form I-129 filing fee for extensions)

5% rule eliminated

Elimination of the 95% rule for prevailing wageEmployer must offer 100% of prevailing wage or actual wage whichever is higherOffered Wage is $32,000. PW comes back at $35,000 MSU must now pay $35,000.Offered wage is $50,000. PW is $38,000 MSU must pay $50,000.

Prevailing wage levels

Prevailing wages getting more precise can check on line source to obtain a approximate wage level:http://online.onetcenter.org/http://www.flcdatacenter.com/OesWizardStart.aspx

Prevailing Wage Levels

Requires DOL to provide at least 4 levels of wages Where the survey has only 2 levels, the employer can use a formula for converting 2-level wage determinations to 4-levels.

An OES 2-level survey has a Wage Level 1 of $35,000 and Wage Level-2 of $65,000

Determine the difference: $30,000Divide the difference by 3: $10,000Add the quotient ($10,000) to the OES Level 1, to derive a new Level 2 Wage, and subtract the quotient ($10,000) from the OES Level 2, to derive a new Level 3 Wage.

The OES 2 level survey converts to 4 levels

Wage Level 1 = $35,000 (OES Level 1 wage)Wage Level 2 = $45,000 (35,000 +10,000)Wage Level 3 = $55,000 (65,000 – 10,000)Wage Level 4 = $65,000 (original OES Level 2 wage)

Great, 4 levels! What level do I use for my position?

Is a Research Associate with 1 year of experience: Level 1, Level 2, Level 3 or Level 4?This is still to be determined. DOL should develop guidelines.Specific Vocational Preparation (SVP)

H-1Cap – 20,000 exemption

Individuals who earned US masters or higher degree in United States will be exempt from H-1 cap

DOL investigative authority

This law permanently reinstate DOL’S authority to investigate LC fraud and abuse, and will expand that authority to allow DOL to initiate investigations, in addition to specific complaint driven investigations.

Overview of Immigrant Visa Categories

Employment based: Extraordinary abilityOutstanding researcher/professorLabor certification

Family based: marriage, refugee, asylum,

Diversity Lottery Program

Permanent Residency (PR)

Most common options used at MSU:Employment based: Outstanding researcher – no labor certification neededSpecial handling – teachers onlyStandard Labor CertificationMarriage based PR

Permanent Residency (PR)

Employer wants an individual to stay in the US permanently can submit a petition on their behalf; if permanent full-time offer existLabor Certification is required prior to petitioning USCIS for permanent residency(“green card”) for certain employment based immigrant visas.

PR –Labor certification

Department of Labor (DOL) certifies:

1.unable to find an available, willing, and similarly qualified US workers

2. and the employment of the foreign worker will have no

adverse effect on US workers

PERM: What is it?

Program Electronic Review and Management (PERM) regulationEffective date: March 28, 2005One standardized systemElectronic applicationNew advertising, recruitment, & posting requirementsNew recordkeeping requirements

PERM: What is it?

Must submit prevailing wage Conduct recruitment for 30-180 days45-60 day processing, unless selected for an audit (compare to 3-5yrs)New Form ETA 9089, replaces ETA 750No filing fee – may have fee in future

Special Handling Labor Certification

Teaching must be part of dutiesNational recruitment with search committeeMust be at least one print ad in national journalRecruitment report -- more comprehensiveMaintain resumes & materials for audit purposes (5 years)

How does PERM change MSU?

Potential more inquires, because of significant decrease in processing time Special handling case will require more documentationIn-house media posting requirementsDefinition of “permanent”Lay-offs?

Cautions

Send any PR inquiries to OISSDr. Banks is only person who can sign Labor Certifications/Immigration forms ETA 9089 is filed electronically: no signature needed to file with DOL – potential abuse (signature needed before sending to CIS)

Guide for Hiring

http://www.isp.msu.edu/oiss/for_msu_depts/guide.php

Questions?