In the latest in a series of decisions addressing the proper allocation of travel and immigration fee expenses between employers and employees utilizing the H2A agricultural guestworker program, the Court of Appeals for the Ninth Circuit ruled an employer must reimburse an H2A worker for the employee’s travel and immigration expenses in the initial week of employment. For complete details, please visit the Jackson Lewis Wage and Hour Law Update.
AUTHOR: Otieno Ombok.
The U.S. Citizenship and Immigration Services (USCIS) has announced that, as of November 8, 2013, the agency receipted applications for 9,078 beneficiaries toward the 33,000 H-2B cap amount for the first half of FY2014. This count includes 7,478 approved and 1,600 pending beneficiaries.
The H-2B non-agricultural temporary worker program allows U.S. employers to bring foreign nationals to the United States to fill temporary non-agricultural jobs. Before requesting H-2B classification from USCIS, the employer must apply for and receive a temporary labor certification for H-2B workers from the U.S. Department of Labor (DOL).
The cap (numerical limit) for H-2B visas is set by Congress at 66,000 per fiscal year. The number is divided equally: 33,000 to be allocated for employment beginning in the first half of the fiscal year (October 1 – March 31) and the remaining 33,000 to be allocated for employment beginning in the second half (April 1 – September 30). Any unused numbers from the first half of the fiscal year are rolled over for use during the second half. However, there is no carryover of unused H-2B numbers from one fiscal year to the next.
Employers are therefore reminded to file H-2B petitions before the H-2B cap for the first half of the fiscal year is reached. Current holders of H-2B visas are not affected by the cap. USCIS will continue to process petitions to:
- Extend the stay of current H-2B holders
- Hire roe processors, fish roe technicians and/or supervisors of fish roe processing
- Hire H-2B workers in the Commonwealth of Northern Mariana Islands (CNMI) and/or Guam (provision will sunset on December 31, 2014)
Employers should also initiate the labor application process for the second half of 2014. While they cannot file until at least 120 days before the date of need, presumably April 1, 2014, they can request DOL prevailing wage determinations at this time. The entire H-2B application process is as follows:
- Obtain a prevailing wage determination from the DOL.
- Begin the pre-filing recruitment no more than 120 days before the employer’s date of need.
- Prepare a recruitment report once the pre-filing recruitment process is completed.
- File the labor application with DOL on Form ETA 9142.
- Upon receiving DOL labor certification, file I-129 petition with USCIS. Standard processing time is approximately two months, although 15-day expedited service is available at an additional fee. Current USCIS regulations permit the filing of a petition for unnamed beneficiaries.
- Once USCIS approves the H-2B petition, workers outside the U.S. must apply for a visa at a U.S. Embassy/Consulate before traveling to the U.S. to begin work. Employers may recruit workers only from designated countries. On the other hand, workers already present in the U.S. must be identified on the I-129 petition filed with USCIS.
For more information on H-2B visas, H-2B labor certification applications, DOL H-2B audits or investigations, please contact your Jackson Lewis attorney or any member of the Jackson Lewis Immigration practice.
AUTHOR: Amy Peck
The Colorado Division of Labor is conducting more than a thousand audits on employers each year to enforce Colorado’s Employment Verification Law. The Division has conducted approximately 200 complaint-based audits, 5,400 random audits, and 650 re-audits (more than 6,000 audits total) of employers with employees in Colorado since the Law went into effect on January 1, 2007. It has levied over $500,000 in fines and fined more than 160 individual employers.
The Law, Section 8-2-122, C.R.S., applies to public and private employers who transact business in Colorado and to employees hired on or after January 1, 2007. It is comprised of two main components:
- Each employer in Colorado must make an affirmation on the Colorado Affirmation of Legal Work Status Form (rev. 9/06/12) within 20 days after hiring a new employee. The Form instructs that employers must “keep a written or electronic copy of the affirmation … for the term of employment of each employee.”
- The employer must keep a written or electronic copy of the employee’s documents required by the federal I-9 law (8 U.S.C. Sec. 1324a), which include identity and employment authorization documents.
The Division has been conducting between 1,000 and 2,000 new audits every year. The majority of the targets are randomly selected. Once audited, companies are likely to be re-audited and the Division takes a harsh stance on violations occurring after the first audit.
If you would like information, assistance or advice regarding the Colorado Affirmation of Legal Work Status Form or other workplace requirements, please contact the Jackson Lewis attorney with whom you regularly work.
AUTHOR: Forrest G. Read IV.
A recent decision from the USCIS Administrative Appeals Office (“AAO”) provides some fresh insight for international companies seeking to transfer executives or managers under the L-1A visa from one affiliated foreign office to open new offices in the U.S. and keep their fledgling offices in business after the initial year.
AUTHOR: Kevin Lashus.
AUTHOR: William J. Manning
AUTHOR: Sean Hanagan.
In the wake of Janet Napolitano’s September departure from the top spot at the Department of Homeland Security, who President Obama would nominate as her replacement has been the subject of much anticipation. With immigration reform legislation discussions somewhat sidelined in Congress due to the government shutdown and debt ceiling debates, the President’s tapping of Jeh C. Johnson, a former top Pentagon attorney who focused mainly on military and anti-terrorism issues, may come as something of a disappointment to immigration reform advocates.
With passage of the bi-partisan S. 744 Border Security, Economic Opportunity, and Immigration Modernization Act in June, many employers, advocacy groups and professional organizations, including the U.S. Chamber of Commerce and the American Immigration Lawyers Association expressed optimism that at long last the country’s immigration system may receive the full scale overhaul that it clearly needs. Designed to appeal to both Republican and Democrat agendas, including border security, a significant increase in specialized work visas for foreign nationals so critical to maintaining American innovation and competitiveness in the global market (see H-1B Visas and the STEM Shortage), a guest worker program, and the reintroduction of a penalty-based mechanism for undocumented aliens to legalize in the U.S. as prominent components of the legislation, many felt immigration reform to some degree will be realized. While House Representatives quickly doused hopes for passage of the senate bill in its comprehensive form with calls for a more compartmentalized approach (see Comprehensive Immigration Reform Bill under Fire), proponents of reform held out hope for continued debate and movement towards reform this year.
Based on his expertise and deep experience overseeing military and anti-terrorism initiatives prior to leaving the government for private practice last year, should nominee Johnson succeed Napolitano, his strengths likely could lead to the elevation of issues of national security on DHS’s agenda over reform considerations. Employers are encouraged to continue dialoguing with elected representatives on the importance of hammering out much needed changes to our immigration system.
AUTHOR: Maggie Murphy.
- Select “other” from the drop-down list of reasons; and
- Enter: “Federal Government Shutdown.”
- Close the initial E-Verify FNC by selecting either “Employee continues to Work for the employer after receiving a Final Nonconfirmation result,” or “The employee continues to work for the employer after receiving a Now Show result”; and
- Enter a new case in E-Verify for that employee.
AUTHOR: Jessie Feinstein.
- Copy of the pending LCA. Replace with the certified LCA containing original signature (once LCA is certified) and cover pages.
- Prevailing wage information/salary survey.
- Actual wage memorandum and wage statement.
- Posting Memorandum to confirm compliance.
- Summary of Benefits.
Some attorneys provide many of these documents to their clients (Jackson Lewis included), which may include a cover sheet/checklist that can be used as the cover page for the LCA public access file for each employee. The public access file is retained for a period of one year beyond the last date on which any H-1B nonimmigrant is employed under the LCA or, if no non-immigrants were employed under the LCA, one year from the date the LCA expired or was withdrawn.
AUTHOR: Forrest Read.