Global Immigration Blog : Immigration Lawyers & Attorneys : Jackson Lewis Law Firm : Labor Certification, Adjustment of Status

H-1B filing season is upon us again. The most often used work visa for Professional Workers is the H-1B. The H-1B has a limited availability of approximately 58,000 per year.  Despite the economy, these visas still are anticipated to be in high demand and become unavailable by the end of 2010.

Although, H-1B visas will be valid on October 1, 2010, a company may apply as early as April 1, 2010. Because of the high demand in this category, employers should file as early as possible. Indeed, the first week of April is recommended.

This H-1B quota applies to current or potential employees who are not in H-1B status, for example:

-          Employees currently in F-1 student status who are working on a limited duration work authorization;

-          Employees in TN, L, E or another status for whom the company may want to commence a green card process; and

-          Employees currently abroad who will move to a U.S.-based role in the fall.

Employees currently working based on H-1B status are not subject to this numerical limit, and therefore generally do not need to be concerned about this timing. 

Last year, the government did not meet the H-1B cap until December.  We anticipate that the filing window will be much shorter this year. Contact the Global Immigration practice group at Jackson Lewis as soon as possible to start the filing process.

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New legislation that would expand penalties for employers who knowingly hire unauthorized workers has been introduced in the House of Representatives. The “Criminal Penalties for Unauthorized Employment Act of 2010” (H.R. 4627), introduced by Representative Frank Kratovil (D-Md.), would significantly increase imprisonment terms, criminal fines, and civil fines that can be levied against an employer or individual with “hiring authority.” A person with “hiring authority” is anyone who has “direct authority to make a decision to hire or to recruit or refer for a fee, an individual for employment.”

Currently, criminal penalties for knowingly hiring unauthorized workers apply only if a “pattern or practice” can be shown. An entity or individual may be fined $3,000 and an individual may be imprisoned for up to six months for the entire “pattern or practice.”

The proposed legislation would impose criminal penalties for each unauthorized worker, and criminal penalties would increase with each subsequent conviction:
- For a first offense, a fine of $2,500 and/or imprisonment of up to 1 year
- For a second offense, a fine of $5,000 and/or imprisonment for up to 2 years
- For a third or subsequent offense, a fine of $10,000 and/or imprisonment for up to 5 years

The bill also would increase the civil penalties assessed:
- For a first offense, a fine ranging from $1,000 – 5,000 (currently $250 – $1,000)
- For a second offense, a fine ranging from $5,000 – 10,000 (currently $2,000 – $5,000)
- For a third or subsequent offense, a fine ranging from $10,000 – 20,000 (currently $3,000 – $10,000)
 

Stay tuned as Jackson Lewis will continue to follow this legislation and update readers through this blog.

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The USCIS has mandated sweeping changes in the use of H-1B visas, redefining the employer-employee relationship for third-party worksite placements pursuant to H-1B petitions, among other things. The changes, which have alarmed many employers, came in memorandum from the agency’s Associate Director of Service Center Operations, Donald Neufeld, this past January.

Although the “Neufeld Memo” arguably targets consulting companies which place professionals at third-party worksites, it also has a significant impact on U.S. employers who supplement their full time workforces with teams of both talented U.S. and foreign workers, considered consultants. In a recession, these consultants make up a significant portion of corporate workforces and are vital to many companies’ continued viability.

If fully implemented, the Neufeld Memo could result in denials of amendments and extensions of status for current H-1B visa holders. In addition, H-1B workers travelling internationally may face re-adjudication and denial of admission by Immigration officials at U.S. ports of entry. Lastly, this could result in potential revocations of status for H-1B visa holders should the USCIS conduct workplace site visits.

While challenges to the Neufeld Memo are mounted and considered, we will continue to guide clients on how to enhance chances of securing H-1B visa approvals under the Memo rule.
 

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Employers who plan on filing for new H-1Bs this year shouldn’t rely on the flexibility experienced last year. Employer filings for FY2010 regular cap H-1Bs in 2009 did not reach the annual limit until late in December. Most employers who anticipated needing an H-1B worker for FY2010 filed on April 1. However, economic conditions resulted in substantially fewer H-1Bs being requested early. Thus, employers were able to hire H-1B employees throughout much of the year until the full FY2010 allotment had been requested. That’s unlikely to happen again in 2010.

H-1B visas generally are limited to an annual distribution of 65,000 per fiscal year. Immigration’s fiscal year begins on October 1, and petitions are accepted for the upcoming fiscal year beginning April 1. In recent years, substantially more petitions were received on April 1 for the upcoming fiscal year than H-1Bs available. In those situations, a lottery was held to determine which petitions would be considered.

Just as in years past, employers should plan to file for any needed FY2011 H-1Bs on the first day that petitions are accepted. Hiring should be planned in anticipation of a lack of H-1B availability, and employers should not depend on being able to hire H-1B employees as needed throughout the year like they were able to do last year.

Last year’s filing data reflects a dramatic increase in filings at the end of the calendar year. This certainly could indicate a change in hiring conditions that would result in a much shorter window of H-1B availability for FY2011.

Based on this increase, many predict that employers will not have the luxury this year of waiting until late December to obtain H-1Bs, although it is unlikely that a lottery will be held on April 1. So in anticipation, do not wait to plan your hiring needs, consult soon with your attorney, and file as soon as possible.

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Many foreign workers are unaware of the immigration consequences of criminal pleading and plea agreements, especially with regard to crimes that many consider “minor” due to the minimal fines and lack of jail time. Unfortunately, not all criminal lawyers are aware of the immigration consequences either. For example, a plea agreement might be offered in response to a charge of possession of a nominal amount marijuana that would allow a U.S. citizen to pay a $200 fine and to walk away. However, the same plea deal can carry serious consequences for foreign workers, including the possibility of removal. Further, a U.S. citizen pleading guilty to a domestic dispute charge, which can be brought in many jurisdictions when a couple is observed engaging in a verbal altercation, may receive a mere 12-hour detention and possibly a nominal fine. A foreign worker, however, may face removal proceedings.

Discussing criminal issues directly with your employees may not be desirable, but new foreign workers should be advised of the fact that serious immigration issues can arise when they or their family members admit to a crime or accept a plea deal, even if the crime doesn’t seem “major.” Foreign workers should always consult immigration counsel if they or one of their family members are charged with any crime, especially before pleading or accepting any kind of plea deal.
 

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Due to the dramatic increase in ICE worksite enforcement actions in 2009, employers are taking steps ensure their I-9 compliance, and utilizing such tools as internal audits, training, and implementation of I-9 software. I-9 software can often help to minimize the disorganization and clerical errors that can result in an absolute nightmare upon receipt of an ICE inspection notice. In response to growing employers’ compliance efforts, software companies are rushing “feature-rich” I-9 software packages to market. And while employers tend to scrutinize the user features available when selecting I-9 software, many are overlooking a vital feature – data security.

Once I-9 software has been implemented by your company, proper data security is required to protect your employees’ stored personal data. Minnesota state agencies using a Texas-based I-9 software provider with inadequate data security recently discovered that the personal data of nearly 500 employees may have been made accessible through the software provider’s web site, displaying employee names, dates of birth, hire dates, and Social Security numbers. This is a wake-up call to many employers that data security is a feature that cannot be overlooked when selecting I-9 software.
Employers should always ask their software provider to outline the software’s data security features. Compare them to features offered by other providers. Generally, you want to ensure that all user accounts are properly password protected, a sophisticated encryption method is used to encrypt the data, and if the data is stored remotely by the software provider, measures are taken to ensure that data is protected from external hackers and that the data is properly isolated to ensure that it is not erroneously accessed by another user.
I-9 software is an excellent tool to use in the quest for I-9 compliance, and a fear of a potential data compromise should not prevent you from implementation. Most software packages have adequate data security features, and a few have substantial ones. However, employers should be aware of the importance of data security when shopping for an I-9 software package, and should move data security to the top of their list of questions for their potential providers.
 

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Are you subject to the Federal Acquisition Rule’s (FAR) E-Verify requirements?Many companies mistakenly think they are subject to FAR and therefore required to use the E-Verify System.

FAR sets out certain prerequisites for determining whether a government contract makes an employer subject to mandatory E-Verify Registration. For example, the contract period must be for at least 120 days and the contract value must be for at least $100,000. More importantly, however, the contract also must contain the FAR provision. Many employers seem to miss this point. They worry needlessly whether they should be using E-Verify when the clause is not in the contract. Existing contracts can be modified to include the clause, but until your contract is modified, or you receive a new contract with the FAR clause, you should not be subject to the E-verify requirement.

The contracting government official, not DHS or SSA (unless they also are the contracting agency), determines if you are subject to the requirement. In negotiating your contract, you can argue why you should not be subject in order to keep the clause out of the contract. For example, if you believe your product meets the commercially available off-the-shelf (“COTS”) exemption, try to persuade the contracting official to omit the clause from your contract in the first place.

While E-Verify is always an option for new hires, remember it can only be used for the entire workforce or employees assigned to the contract if you have a FAR clause. Using it in this context without the clause also is a violation.  Many issues surrounding the FAR E-verify clause remain unsettled as this is still a relatively new regulation. The government has been addressing questions as they arise and may issue a new Memorandum of Understanding in the future. Watch this blog for the latest developments on E-verify compliance and strategy.
 

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The Social Security Administration (SSA) No-Match Rule illustrates the problem employers can face when intensive government scrutiny is combined with a lack of government guidance. This problem was further exacerbated by the Citizenship and Immigration Services’ (CIS) announcement in November of 1,000 I-9 Audits.

This issue arose in 2007, when DHS issued guidelines for employers confronting SSA “No-Match” notices. However, the SSA initiative was enjoined quickly by federal court order and never took effect. Prior to the injunction, the SSA issued “No-Match” letters to employers on an annual basis, notifying them of employees whose social security information presented to employers did not match information contained in the government’s database. In some cases, the discrepancies were acknowledged to be SSA error, others resulted from name changes of which individuals had failed to inform SSA, and some pointed to possible fraud or identity theft by the employee.
Employers were left with little guidance, however, since the No- Match letters expressly cautioned against taking “personnel action solely based on this letter.” Employee advocates warned employers of discrimination issues, arguing that affected employees should be given many months to address the issue while remaining at work.

The No-Match Rule would have required employers to take concrete steps over a defined period to address employee social security discrepancies, or risk being charged with “constructive knowledge” that their employees were undocumented. Briefly, the Rules called for employers to check their records and to ask employees to resolve any discrepancies within 90 days. It also instructed employers to reverify an employee’s work authorization with documentation not listing the questioned social security number if the discrepancy could not be resolved within that timeframe.

Despite the government’s attempt to clarify the Rule and its justification through an economic impact analysis in March 2008, the No-Match Rule eventually was withdrawn and abandoned entirely under the new Administration.

After all this, employers are back to square one. They have to determine for themselves what steps to take when No-Match issues arise. With government audits on the increase, legal counsel have been getting more requests to advise on these issues. This blog will continue to update you on this developing area of the law.

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The Comprehensive Immigration Reform for America’s Security and Prosperity Act of 2009 (“CIR ASAP”) has been introduced by Rep. Luis V. Gutierrez (D. Ill.). The bill proposes a broad array of changes to the visa system, some of which may place additional burdens on employers:

Included in the bill, introduced on December 15, 2009, are measures to reduce immigrant visa backlogs for highly-skilled workers and expansion of the EB-5 investor immigrant visa program. There also are provisions for a new lottery-based temporary visa for unskilled workers and a special six-year visa to allow currently undocumented aliens an opportunity to apply for permanent residence through a points system.

The bill includes proposals for enhanced border security, employer immigration enforcement and employment authorization verification. In addition, the bill modifies existing policies to increase employer obligations for companies who utilize the H-1B, H-2B and L-1 Visa programs. Particularly troubling is the proposal to require recruitment prior to filing H-1B visa petitions.

While CIR ASAP contains interesting proposals for resolving the problems employers face in finding low-skilled workers who are in the U.S. lawfully, the measure does not offer employers much to ensure that they will be able to access the highly-skilled workers required by the U.S. economy. The proposal for a Commission on Immigration and Labor Markets will be particularly problematic for employers, as such a body is unlikely to be able to predict the need for various types of workers or respond timely to market changes. A self-adjusting, demand-based visa allocation system would better meet the needs of the economy.
 

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