State Dept. to Conduct J-1 Inspections
The Department of State recently emailed J-1 exchange visitor sponsors to announce that it plans to conduct on-site inspections of J-1 internships and training programs. The visits may be both planned and unannounced. J-1 inspectors may want to speak with responsible officers, supervisors, employees, trainees, and interns, and to inspect facilities, housing, and health insurance arrangements. Inspectors also may review signed Forms DS-7002, Training/Internship Placement Plan, for interns or trainees.
Please contact your Pearl Attorney for advice in specific situations.
DOL Adds Q&A to FAQ Renotification and Consideration of Laid-Off U.S. Workers for PERM LCAs
The Department of Labor’s Employment and Training Administration has added a new question and answer (Q&A) to its frequently asked questions (FAQ). The new Q&A concerns notification and consideration of laid-off U.S. workers for PERM labor certification applications.
The new Q&A asks, “How does an employer demonstrate that it notified and considered laid-off U.S. workers for the job opportunity listed on the ETA Form 9089?” The answer notes that some employers have misconstrued the regulations to require only that they inform workers when laid off that the employer may have future positions and inviting the worker to monitor the employer’s job postings and apply, rather than their actively notifying and considering the laid-off workers. In fact, the Q&A notes, misapplication of the regulatory requirements will result in denial of a PERM application. The employer must make a reasonable, good-faith effort to notify each potentially qualified worker who has been laid off during the six months preceding the application whenever a relevant job opening exists and invite the worker to apply.
The Q&A notes that an employer who files multiple labor certifications can satisfy its responsibilities under the relevant regulation by notifying each laid-off worker (in the manner chosen by the worker) at least once a month that a list of current relevant job openings is maintained electronically on a website operated by the employer. “Simply informing a laid-off worker to monitor the employer’s website for future openings and inviting the worker, if interested, to apply for those openings, will not satisfy the employer’s regulatory obligation to notify all of its potentially qualified laid-off U.S. workers of the job opportunity,” the Q&A states.
The Q&A adds that an employer must maintain documentation showing that it has met its notice and consideration requirements, including copies of all relevant letters, e-mails, faxes, Web pages (including those listing details of the relevant job openings and applications by laid-off workers for those openings), and other contemporaneous documents that show when and how notice and consideration was given. In addition, an employer must obtain and maintain written documentation that a laid-off worker has declined to receive notices, requested discontinuation of the notices, or refused to give or update contact information.
The new Q&A is available.
USCIS Releases Fact Sheet on Correcting Immigration Records After E-Verify Tentative Nonconfirmations
U.S. Citizenship and Immigration Services (USCIS) has released a fact sheet on how to correct immigration records after resolving a Tentative Nonconfirmation (TNC) in E-Verify. USCIS noted that an employer may receive a TNC because immigration records are inaccurate. Correcting them can prevent future TNCs.
The fact sheet which includes several ways immigration records can be corrected, is available.
Australia
As of February 14, 2014, the ceiling on nominations for 457 visas has been abolished. This gives employers the flexibility to nominate more foreign nationals for a 457 visa than they initially requested in their Standard Business Sponsorship (SBS) application.
Unlimited Nominations
When lodging a new SBS, employers are still required to request a certain number of persons that they wish to nominate during the period of approval as a sponsor but this number is now treated as an estimate, rather than a limit. Until the SBS period of approval expires, employers can continue to nominate more people beyond their initial request.
Previously Approved Sponsorships
Standard Business Sponsorships that were approved before February 14, 2014 and were subject to the nomination ceiling will still cease when the ceiling is reached. If these sponsorships are getting close to reaching their nomination ceiling, a sponsorship variation application can still be lodged.
Chile
On February 28, 2014, the U.S. Department of Homeland Security has designated Chile as the newest member of the Visa Waiver Program. Chilean nationals who are eligible and have an electronically readable passport and obtained authorization for travel from Electronic Screening System for Travel Authorization (ESTA) prior to initiating travel will be able to visit the United States under the Visa Waiver Program (VWP) beginning May 1, 2014.
Please visit the Department of State website for more information regarding the VWP, list of designated countries, and ESTA requirements.
Philippines
The Philippines Bureau of Immigration has issued several Operation Orders, making significant changes to immigration procedures. As of February 20, 2014, applicants for the 9(g) Pre-arranged Employment Visa (Commercial) to the Philippines must now apply for a new Provisional Work Permit if they wish to start work before the issuance of the 9(g) visa, delaying their start of work date by two to three weeks. The Bureau of Immigration has also tightened the rules on expired 47(a)(2) visas, requiring holders to leave the country (rather than apply to change immigration status from within the country) when their work authorisation period has expired.
Provisional Work Permit
A foreign national who has submitted an application for an Alien Employment Permit (AEP) at the Department of Labour and Employment (DOLE) but has not yet been issued a 9(g) visa from the Bureau of Immigration (BI), may not start work until they have obtained a Provisional Work Permit (PWP) from the BI. The provisional work permit is valid for three months or until a 9(g) visa is issued, whichever comes first. Previously, a submitted application for an AEP was recognised as a provisional work permit, allowing applicants to start work even before submitting their 9(g) visa application. The PWP application requires several documents to be submitted, including a completed Consolidated Application Form and a letter of request from the sponsoring company, undertaking to pay the applicant’s income tax, and guaranteeing that all documents submitted were legally obtained. The Operation Order SBM-NO.-2013-019, issued in December 2013, was finally implemented by the Bureau of Immigration in the week beginning February 17, 2014.
47(a)(2) Visa Holders
Operations Order No. SBM-2014-010 of February 21, 2014 states that foreign nationals who are holders of Section 47(a)(2) visas must not remain in the Philippines beyond the period of employment authorized by the Philippine Economic Zone Authority (PEZA) Previously it was possible for foreign nationals in this situation to change visa status or “downgrade” to a 9(a) tourist visa upon the expiry of the 47(a)(2) visa. This is no longer possible without the foreign national first leaving the country.
Other Changes Expected
The Philippines Bureau of Immigration is expected to soon begin implementing a new checklist of documentary requirements for many visa applications, along with a consolidated general application form. Furthermore, changes are expected to the Tax Identification Number requirement for foreign nationals on home payroll. We are currently looking into these changes and will provide you with more details as soon as we can.
Ukraine
Several consulates and government offices involved in immigration processing in Kyiv are currently closed or are operating reduced services or opening hours, as a result of the ongoing violence in the city centre.
More Details of Closures
The visa and consular sections of the embassies of Canada, the United Kingdom, India and Switzerland, among others, were closed on Friday. Some foreign offices and ministries abroad are advising their citizens not to travel to, or attempt to leave, Kyiv.
The Kyiv office of the State Migration Service, which processes residence permit applications and renewals, is not in the centre of Kyiv, and is currently still open for business as usual. However, the State Employment Office in Kyiv, which handles work permit applications and renewals, is closed.
Other government agencies and consulates may also be affected. There is no indication as to when these offices will reopen and services return to normal.
Vietnam
The Vietnamese government has finally issued a long expected Guidance Circular clarifying certain new work permit regulations introduced last year.
The Guidance Circular, effective March 10, 2014, gives details about the procedure for submitting employers’ demand on using foreign nationals, and also lists the documentary requirements justifying the qualifications of the applicant.
Demand on Using Foreigners
Every year (and during the year if any change), employers in Vietnam must report their demand and must also seek approval for using foreign nationals for each specific position where Vietnamese nationals cannot meet the employer’s requirements.
The demand shall be submitted at the Provincial Labor Department who will then forward the demand for approval to the People’s Committee of the province/city where the company’s head office in Vietnam is located. The demand must be lodged at least 30 days prior to the expected work commencement date at the Provincial Labor Department. Within 15 days the Labor Department shall inform the employer whether or not the People’s Committee has approved the demand.
The work permit application approval process by the Department of Labor will only start after receiving approval from People’s Committee so this step is extremely important.
The new circular does not provide any clarifications on what criteria are used by the People’s Committee to approve or reject the demand of using a foreign national in a certain position.
Documentary Requirements for Qualification of the Applicant
Previously, Manager and Executive were the only authorized positions for a foreign national working in Vietnam. The new Decree 102 and its related circular introduce “Specialists” and “Technical Workers”.
The documentary requirements to prove qualifications for the different positions are as follows:
For Managers and Executives:
A document that verifies the Manager/Executive position such as a valid or expired work permit from any country; or a labor contract from any country; or an assignment letter confirming that the foreign national has worked as a Manager or Executive; or
Any document issued by former employer(s) that confirms the foreign national was a Manager/ Executive.
According to the new circular, a university degree or a testimonial of five years’ work experience is no longer required for Manager/Executive positions.
For Specialists:
A university (or higher) degree and work testimonial(s) of at least five years’ working experience. Both the degree and work testimonial(s) should be in the field that matches the targeted job position in Vietnam; or
A document issued by an overseas jurisdictional body/organization showing specialized qualifications; or
A document issued by the overseas employer certifying that the foreigner is a specialist in the targeted job position in Vietnam.
For Technical Workers:
A document or confirmation letter issued by an overseas jurisdictional body/organization or the overseas employer certifying that the foreigner has been trained for at least one year in the technical fields that match with the targeted position in Vietnam and
A work testimonial issued by current or former employer(s) showing at least three years in a related technical field.
Background and Other Comments
On September 6, 2013 (effective November 1, 2013), Vietnam’s Ministry of Labor, Invalids and Social Affairs (MOLISA) issued a Decree (102/2013/ND-CP) defining the implementation of the new labor code as it pertains to foreign nationals working in Vietnam.
However, due to the absence of a Guidance Circular, Labor Departments have been reluctant to advise on the new Decree and sometimes have refused to receive work permit applications until they were provided more details on how to properly implement the Decree. After nearly four months of delays and confusion, the Guidance Circular was finally issued on February 24 and will take effect on March 10, 2014.
Work Permit Exemptions
An additional circular by the Ministry of Industry and Trade (MOIT) is expected to come out before the end of March to provide guidelines for the basis and procedures for work permit exemptions: i.e. how to certify that a foreign employee is a corporate transferee operating within one of the 11 sectors listed in Vietnam’s World Trade Organization (WTO) service commitment and therefore exempt from requiring a Work Permit.