Congress Considers Halting Job Flexibility Rule, Bill to Change Employer H-1B Exemption Eligibility

Representative Darrell Issa (R-Calif.) has introduced two pieces of legislation to watch.

The Midnight Rules Relief Act, H.R. 21, would allow Congress to overturn any regulations en masse that were finalized or will be finalized during the lame duck session. This could include the long-awaited rule regarding Retention of EB-1, EB-2 and EB-3 Immigrant Workers and Program Improvements Affecting Highly-Skilled H-1B Nonimmigrant Workers, set to become effective on January 17. The rule would establish job portability and flexibility for certain nonimmigrants, including those with pending green card processes. H.R. 21 was passed by the House.

The Protect and Grow American Jobs Act, H.R. 170, would change eligibility requirements for exemption from the Labor Condition Applications (LCA) requirements for H-1B dependent employers. Employers with more than 50 full-time workers are H-1B dependent if at least 15 percent of their workforce is in H-1B status. H-1B dependence calculations for smaller employers are set forth at 20 CFR 655.736. When H-1B dependent employers file H-1B petitions, they must make additional LCA attestations regarding displacement of U.S. workers and good faith efforts to recruit and hire U.S. workers. But there are exemptions from those attestations if the employee will make at least $60,000 annually or if the employee possesses a Master’s degree in the relevant field. H.R. 170 would eliminate the Master’s degree exemption and raise the minimum annual salary for exemption to $100,000. Representative Issa’s website states that the bill “will help crack down on abuse and ensure these spots remain available for the best and brightest talent from around the world.”

We will continue to monitor the path of these bills.

Two International Entrepreneurs Start under New York’s International Innovators Visa Program

Understanding the scarcity of H-1B visas, early in 2016, the New York City Economic Development Corporation (NYCEDC), in partnership with the City University of New York (CUNY), launched the International Innovators Initiative (IN2NYC) to build a pathway to help international entrepreneurs grow companies and create jobs in the United States, specifically in New York City. The program is now bearing fruit as its first two entrepreneurs are setting up their businesses within the CUNY incubator. Gabor Tankovics, a native of Hungary, will base his company, Dartboard, at LaGuardia Community College and Namisha Bahl from India will begin mentoring students at the City College of New York’s Zahn Innovation Center. Dartboard has created a web application to help individuals manage their student loans. Ms. Bahl is the Director of Integrated Management for Mogul, an international website and hub for women around the world that enables them to connect and share knowledge.

Institutions of higher education are not subject to the limit on H-1B visas as long as the beneficiaries of those visa petitions are contributing to a central mission of the school. Applicants for the IN2NYC program are selected through a competitive process. If selected, they are matched with the appropriate CUNY institution. The entrepreneurs will work on developing their companies while contributing to the schools’ missions by conducting academic research, helping to develop entrepreneurship programs, teaching courses, mentoring students, hiring students as interns or employees in their companies, and participating in community outreach efforts, among other things. The entrepreneurs will partner with the schools’ incubator programs, set up their offices at the institutions and have access to the schools’ support services. To be eligible for the program, and cap-exempt H-1B visas, the foreign entrepreneurs must demonstrate that they have either started a company overseas and want to relocate or expand in the U.S. or that they have been students in the U.S. and have started companies that they wish to grow in the U.S.

At the federal level, the USCIS has proposed the International Entrepreneurship Rule. If enacted, the rule would allow foreign entrepreneurs to enter the U.S. for an initial two-year period if they can demonstrate their startup entities’ potential for rapid growth and job creation. For more on the proposal, see Administration Welcomes Foreign Entrepreneurs with Proposed Rule. The International Entrepreneurship Rule was established on the basis of President Barack Obama’s Executive Order and does not require Congressional action. Observers have said that, due to the bipartisan appeal of supporting entrepreneurship, President-elect Donald Trump may not move to bar the rule.

Please contact your Jackson Lewis attorney for more information about this and other developments.

Revised Employment Verification Regulations Take Effect on January 18, 2017

Revised regulations implementing Section 274B of Immigration and Nationality Act (INA), prohibiting certain unfair immigration-related employment practices, will become effective on January 18, 2017, the Department of Justice has announced. Of particular import to employers are the revisions to 28 CFR Part 44 on the employment eligibility verification process. Employers should ensure their policies and practices are in compliance with the revised regulations.

Since 1990, employers have been prohibited from requesting more or different documents or rejecting valid documents during the employment verification process. In 1996, with the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), Congress made clear that such unfair documentary practices were unlawful if done only “for the purpose or with the intent of discriminating” on the basis of citizenship status or national origin. Now, 21 years later, the Department has update the regulations to reflect the IIRIRA amendments.

With the newly amended regulations, it is clear that in the I-9 process, including the E-Verify process, an employer can be guilty of prohibited discrimination on the basis of citizenship status or national origin even if it is simply trying to be helpful. The regulations specify that the prohibited discrimination must be intentional, but that ill will or animus is not required. In other words, while an employer’s motives might be benign or even if the employer is simply trying to help its employees, disparate treatment is prohibited.

Moreover, employers should not ask for specific documents based upon their understanding of the employee‘s immigration status. The comments to the regulations state that “[r]equesting specific employment eligibility verification documents from employees unnecessarily limits their choice of documentation. An employer that is interested in helping workers through the employment eligibility verification process should provide all workers with the List of Acceptable Documents and explain to them that they may present one List A document or one List B documents and one List C document.” With this, the Department appears to be establishing a best practice or even a safe harbor.

The anti-discrimination provisions of the INA are enforced by the Civil Rights Division of the Department of Justice through the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC). The amended regulations also renamed the OSC as the “Immigrant and Employee Rights Section.” As of this date, the individual who will head the Section under the Trump administration is yet to be selected.

 

 

 

President Obama Signs Continuing Resolution That Includes Extension of Four Immigration Programs

On December 9, 2016, President Barack Obama signed H.R. 2028 (Pub. L. 114-254), a stop-gap spending bill to keep the government running through April 28, 2017. H.R. 2028 includes a Continuing Resolution that extends four immigration programs: The Conrad 30 J Waiver, the Non-Minister Special Immigrant Religious Worker Visa, the EB-5 Regional Center Visa Program, and the E-Verify Program.

The programs operate as follows:

  • The Conrad 30 J Waiver Program allows foreign physicians who have trained in the United States to apply for a waiver of the two-year home residence requirement that would otherwise obligate them to return to their home countries for two years in exchange for providing full-time medical care over a three-year period to patients in health professional shortage areas or medically underserved populations in the United States.
  • The Non-Minister Special Immigrant Religious Worker Visa makes it possible for non-ministers in religious vocations and occupations who will work in the United States in either a professional or non-professional capacity to apply for permanent residence in the United States.
  • The EB-5 Regional Center Program allows foreign individuals who invest at least $500,000 into commercial enterprises associated with regional centers specifically designated by the USCIS because of their potential to promote economic growth to apply for green cards. Although there were attempts to comprehensively reform this program, Congress ran out of time and the program simply was extended.
  • E-Verify is the government’s electronic employment eligibility verification system, extension of which means the service will not be disrupted for the many companies across the United States that participate in the program.

The Continuing Resolution did not include an extension of the H-2B Returning Worker Exemption. The H-2B Temporary Non-Agricultural Workers Program allows workers to temporarily enter the United States to perform work that is needed seasonally, intermittently, for peak-load situations, or for a one-time occurrence. These visas are used by the landscaping, hospitality, tourism, and construction industries, among others. There is a cap of 66,000 H-2B visas available annually. The exemption had allowed individuals who had been in the United States in H-2B status in the previous three years to apply again without being subject to that cap, thereby allowing more than 66,000 workers to use those visas annually.

 

Retired Marine General Chosen to Head Department of Homeland Security

President-elect Donald Trump has chosen retired Marine General John F. Kelly to head the Department of Homeland Security (DHS), the third largest cabinet department. Kelly was head of the U.S. Southern Command until his retirement from the military in February 2016. If confirmed Kelly’s responsibilities will include border security and immigration.

The head of DHS is in charge of a number of key immigration component agencies, including U.S. Citizenship and Immigration Services (USCIS), the U.S. Customs and Border Protection (CBP), and U.S. Immigration and Customs Enforcement (ICE).

Kelly brings an understanding of the many cross-border issues facing the next administration. Consistent with the DHS mission, he appears to be most concerned with potential national security threats to the U.S.

During testimony before Congress, Kelly expressed concern that criminal organizations involved in smuggling people and illicit drugs to the U.S. might be used to facilitate the movement of terrorists or weapons of mass destruction across the border. While he looks to share the view with President-elect Trump that additional hardening of the southern border is necessary, he also has said that a wall alone will not work and that the best way to contend with the current crises of unaccompanied minors and families at the border is to deal directly with the desperate conditions in Central and South American countries that propel people northward.

For further insights into his thinking, we await his confirmation hearing. Similarly, a clearer picture of the new administration’s immigration-related policies and priorities for the next several years will emerge as the administration announces other key positions, such as the head of USCIS, ICE, and CBP. General Kelly is expected to be confirmed by the Senate.

Reminder: USCIS Fee Increase Effective December 23, 2016

Any employer anticipating submission of an immigration application or petition should consider filing prior to December 23, 2016, to avoid higher USCIS filing fees.

On October 24, 2016, USCIS announced a final rule that adjusts the required fees for most immigration applications and petitions. This will be the first increase in six years and, according to USCIS, the increase is needed in order to recoup higher costs associated with customer service, case processing, fraud detection, and national security. USCIS is almost entirely funded by application and petition fees.

Another reminder: most nonimmigrant extension requests can be submitted up to 180 days prior to the expiration of the foreign national employee’s current status. Employers may want to consider filing these extension requests prior to December 23, 2016, if the individual is eligible.

Examples of the increased fees:

  • from $325 to $460 for Form I-129 (i.e., nonimmigrant petition filings seeking visa status such as H-1B, L-1, TN),
  • from $580 to $700 for Form I-140 (i.e., immigrant petition for an alien worker), and
  • from $1070 to $1,225 (including required biometrics fee) for Form I-485 (i.e., application to register permanent residence or adjust status).

Immigration applications or petitions postmarked or filed on or after December 23, 2016, without the new increased fees will be rejected. To avoid delay because of insufficient filing fees, new applications or petitions should be sent in well in advance of the scheduled fee increase.

USCIS Publishes Final Job Flexibility Rule for Employment-Based

The U.S. Citizenship and Immigration Services has published the long-anticipated final rule, “Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers.” The rule will take effect on January 17, 2017, before President Barack Obama leaves office.

The rule codifies existing policies in establishing job portability and flexibility for certain nonimmigrants, including foreign nationals in H-1B status as well as applicants whose Adjustment of Status (AOS) applications have been pending for at least 180 days.

The rule also adds the following new provisions and benefits to the employment-based immigrant and nonimmigrant landscape:

  • Provides for retention of I-140 Priority Dates and petition approvals under certain conditions. Beneficiaries of I-140 petitions can retain their Priority Date as long as the I-140 is not revoked for fraud, willful misrepresentation, invalidation or revocation of the underlying Labor Certification, or material error by USCIS. Additionally, I-140 petitions approved for at least 180 days are no longer subject to automatic revocation due strictly to employer withdrawal or termination of the business. This new provision, however, does not eliminate the need for a beneficiary to have an I-140 approved by the intending employer before adjusting status.
  • Allows certain nonimmigrants to apply for a 1-year period of separate employment authorization if they can show compelling circumstances. The individual must be in E-3, H-1B, H-1B1, O-1, or L-1 status, have an approved I-140, be subject to immigrant visa backlog, and meet the “compelling circumstances” standard. This new benefit is intended to be a stopgap measure for high-skilled nonimmigrants who have initiated the green card process and abruptly stop working. Examples of “compelling circumstances” are serious illness or disability, employer retaliation, “other substantial harm,” or significant disruption to the employer. Renewal of this work authorization is allowed in certain circumstances, and beneficiaries will be considered in a period of authorized stay, though they will not be allowed to adjust status until returning in proper nonimmigrant status.
  • Provides grace periods for individuals in certain nonimmigrant status. Nonimmigrants in E-1, E-2, E-3, L-1, and TN status are afforded a 10-day grace period on the front and back end of their status validity period (this rule extends to those visa classifications the grace period already provided to H-1B, O, and P nonimmigrants). Additionally, nonimmigrants in E-1, E-2, E-3, H-1B, H-1B1, L-1, and TN are afforded a grace period of up to 60 days (or until their petition expires, whichever is shorter) when their employment ends before the end of their authorized validity period, so they may more readily pursue new employment and an extension of their nonimmigrant status. This grace period is intended to give nonimmigrants flexibility in changing jobs or employers without suffering negative immigration consequences.
  • Codifies USCIS policy on H-1B cap and fee exemption for nonprofits related to or affiliated with institutions of higher education, while expanding “affiliation” to arrangements in which there is a written affiliation agreement and one of the nonprofit’s “fundamental activities” is contributing directly to the institution’s research or education mission. This new rule replaces USCIS’s “interim guidance” on this ground for H-1B cap exemption — accordingly, the agency will no longer provide “deference” to prior cap exemption adjudications based on affiliation with an institution of higher education.
  • Provides an automatic extension of work authorization in certain circumstances based on the timely filing of an employment authorization document (EAD) renewal application. Eligible applicants may apply up to 180 days prior to expiration of their EAD, doing so will extend work authorization automatically for up to 180 days pending the issuance of the new EAD. The renewal application must be requested on the same basis as that designated on the initial EAD. Further, the EAD must be in a category that does not rely on adjudication of an underlying benefit, such as employment authorization based on the pendency of an AOS application — thus, an EAD based on L-2, J-2, H-4 status, for example, will not qualify for automatic extension.

The new rule is expansive and includes multiple provisions that affect businesses and their employees. Jackson Lewis is available to answer inquiries about these new regulations.

New Form I-9 Issued

The United States Citizenship and Immigration Services (USCIS) has published the long awaited new Form I-9, Employment Eligibility Verification. The prior form expired on March 31, 2016. The Immigration and Nationality Act requires that employers complete a Form I-9 for all new hires after November 6, 1986, to verify employment authorization.

The new form, released on November 14, 2016, with a revision date of 11/14/2016, must be used by January 22, 2017. Until then, the prior form remains acceptable.

The new form, which has many of the same features as the prior version, contains the following updates:

  • The preparer and translator section is slightly different
  • Each form has a unique QR code
  • The instructions are separate from the form
  • The new electronic version features new drop down menus and added security

Jackson Lewis is providing a complimentary, one-hour webinar to discuss the new form on November 30, 2016. You can register at http://www.jacksonlewis.com/event/get-ready-new-i-9.

 

California Passes Law Expanding I-9 Controls

An amendment to California law expands state prohibitions against “unfair immigration-related practices” related to the hiring of foreign nationals. SB-1001 goes into effective on January 1, 2017.

According to the preamble of the bill, it is “unlawful for an employer to request more or different documents than are required under federal law, to refuse to honor documents tendered that on their face reasonably appear to be genuine, to refuse to honor documents or work authorization based upon the specific status or term of status that accompanies the authorization to work, or to reinvestigate or reverify an incumbent employee’s authorization to work, as specified.” Moreover, the statute gives aggrieved employees and applicants for employment a cause of action with the California Labor Commission’s Office.

SB-1001 expands existing prohibitions against unfair immigration-related practices under California law. First, the new law protects applicants for employment in addition to employees, thereby expanding punishable hiring practices beyond retaliatory acts against employees for attempting to exercise legal rights. Now, document abuse at the point of application for hire is included in punishable activity.

Second, SB-1001 prohibits employers from refusing to honor documents based on specific status or term of status and from attempting to reinvestigate or reverify the work status of a current employee unless by request of the federal government.

Finally, it expands enforcement by creating a new state remedy. Under the new law, aggrieved individuals can file a complaint with the California Labor Commission’s Office, which can penalize employers up to $10,000 per violation. By creating a state remedy, SB-1001 expands California’s previous system of enforcement through the U.S. Department of Justice (OSC) and federal appeals process, which the California Senate called “an overly cumbersome process.”

California employers should be alert of the new restrictions in conducting hiring procedures, including I-9 and E-Verify, and understand that document abuse is no longer limited to instances of “retaliation” against incumbent employees.

The California Assembly Committee on Labor Employment offered the following examples of employer document abuse:

  • Demanding to see a worker’s U.S. passport;
  • Asking for an Employment Authorization Document when the worker has already shown a state ID and “unrestricted” Social Security card;
  • Refusing to accept an EAD because it contains a future expiration date;
  • Asking to reverify work documents of an employee who presented a Green Card at the point of hire; and
  • Demanding to see an employee’s renewed driver’s license because the previous license used for the I-9 expired.

Hence, employers should cautiously avoid making document requests or other activities considered “unfair immigration-related practices” under the statute when dealing with new applicants as well as current employees.

Jackson Lewis is available to answer inquiries about this and other developments.

Physical Therapists Must Meet New Educational Requirements To Obtain Health Care Worker Certifications from FCCPT

Under Immigration and Nationality Act (INA) Section 212(a)(5)(C), health care workers (except physicians) who seek employment in the United States must obtain a health care worker certification from an approved independent credentialing organization. Physical therapists are among those allied health professionals subject to this requirement and commonly obtain the required certification from the Foreign Credentialing Commission on Physical Therapy (FCCPT). Until September 2016, physical therapists who possessed a bachelor’s degree in physical therapy were able to submit their credentials, including evidence of their bachelor’s degree, to FCCPT and obtain the certificate. That standard has changed, effective immediately.

For the remainder of this calendar year, all applications filed with FCCPT by September 15, 2016, that are “in review” (all documents in support of the applications have been received) or “pending” (additional documents are required to complete the applications) must show substantial equivalence to a master’s degree or higher in physical therapy in order to obtain the required certification. Applications filed after September 15, 2016, must include evidence of a master’s degree or higher in physical therapy in order to obtain the required certification. The previously issued certifications to applicants who applied based on a bachelor’s degree prior to this new rule becoming effective remain valid and applicants may obtain subsequent renewals of those certifications (if the currently valid certifications are set to expire) for the remainder of 2016 without meeting the new master’s degree or higher standard.

As of January 1, 2017, applicants for FCCPT certification must meet an even higher educational standard. They must possess a doctorate in physical therapy in order to obtain certifications from FCCPT. Here again, applications for renewals of previously issued certifications would not need to include evidence of this heightened standard in order for renewals to be issued.

This new rule dramatically changes the standards for physical therapists seeking to obtain health care worker certifications from FCCPT. All new applications for the remainder of 2016 must have evidence of a master’s degree or higher in physical therapy and all new applications starting in 2017 must have evidence of a doctorate in physical therapy. It is unclear as of this writing whether the Commission on Graduates of Foreign Nursing Schools (CGFNS), which also is authorized under INA to issue certifications to physical therapists, will change its standards similar to FCCPT’s changes.

Jackson Lewis will monitor any further developments with respect to health care worker certifications for U.S. employment.

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