AUTHOR: Nicola Prall.
On April 7, 2014, USCIS announced that it had received enough H-1B petitions to reach the statutory cap for fiscal year 2015 beginning on October 1, 2014. On April 10, 2014, USCIS announced that it had received 172,500 petitions. USCIS has not announced the date on which it will conduct the random selection process. A random computer selection process will be run to select which of the received petitions will be considered to meet the caps of 65,000 visas for the general category and 20,000 under the advanced degree exemption. Petitions that are not selected will be rejected and the filing fees returned.
For the second year in a row, USCIS has reached the H-1B cap during the first five days of filing. This recalls the situation that existed in 2007 and 2008, before the recession, when caps were met during the earliest possible filing period, indicating the demand for H-1B workers fluctuates with the economy.
Having to rely on a lottery system to obtain the employees that they need is not good for US employers. The Senate’s comprehensive reform bill includes provisions that would raise the number of H-1B visas to between 115,000 to 180,000 per year, depending on economic factors. The House has not yet passed any bill expanding the availability of H-1B visas. Compete America, a tech industry lobby group, has encouraged the House to pass the Skills Act, a standalone H-1B bill.
AUTHOR: Helen Pihlstrom.
Employers who have submitted cap-subject H-1B petitions should remember that additional actions may be necessary by their current employees who are working pursuant to F-1 Optional Practical Training employment authorization, or OPT. In many cases, an employee’s OPT employment authorization will expire in the spring or summer after an H-1B cap petition has been filed on his or her behalf, but before the H-1B effective date of October 1st. Some may be eligible for an additional 17-month STEM extension based on their program of study at school; many others are not. The time after OPT expires but before the H-1B takes effect is the “cap gap.”
Fortunately, employees facing the cap gap may have their employment authorization extended by their sponsoring universities to cover the cap gap period. The extension is not automatic and employees should plan carefully to ensure they timely apply for and obtain the necessary extension(s) from their schools. Universities may require an appointment.
To obtain proof of continuing status, employees should go to their Designated School Official (DSO) with evidence of a timely filed H-1B cap petition (indicating a request for change of status, rather than for consular processing). Employees whose OPT will expire in June or later should wait for USCIS to issue an official receipt notice for the petition and then promptly bring a copy of the notice to his or her DSO. The DSO will issue a cap-gap I-20 Form showing an extension until September 30th. Employees facing an April or May F-1 expiration and who have not received a receipt notice from USCIS may provide a copy of the petition and a FedEx, UPS, or USPS Express/certified mail receipt instead. The DSO will issue a preliminary cap-gap I-20 showing an extension until June 1st; once the receipt notice is issued, the employee should return to the DSO for the remainder of the cap gap extension.
Once granted a cap gap extension, employees should not travel outside the United States during the cap gap period or he or she will not be permitted to re-enter in F-1 status and would need to apply for an H-1B visa at a consular post abroad prior to returning. As the H-1B petition is for an October 1 start date, the employee should be prepared to adjust his or her travel plans accordingly.
AUTHOR: Marko C. Maglich.
USCIS has announced that it will begin premium processing of H-1B petitions subject to the H-1B cap for Fiscal 2015 no later than April 28, 2014. (See www.uscis.gov). The annual “cap” on H-1B visas is 85,000. Normally, paying an additional filing fee of $1,225 and filing Form I-907 with an H-1B petition guarantee a response from USCIS by the 15th calendar day after the date that USCIS receives the H-1B petition. Now, USCIS is warning that the guaranteed 15-day premium processing period may begin as late as April 28th, and that, therefore, a response on petitions could come as late as May 13, 2014.
The expected heavy load of petitions in the first five days of April usually precipitates a lottery to determine which petitions it will entertained before the agency will begin to work through the petitions. The likely amount of time the lottery will take prior to processing, and the high volume of anticipated filings, has resulted in the announcement.
In the last two years, H-1B cases subject to the cap filed without the employer electing premium processing have taken several months to process. In many cases, decisions have come later than the requested October 1st employment start date. So premium processing is advisable where feasible, to gain a measure of predictability on timing.
No new H-1B’s are available before October 1, 2014. As to the current fiscal year (i.e., for H-1B employment starting now and up to October 1, 2014), only “non-cap” H-1B’s can be processed. No H-1B start dates between October 1, 2013, and September 30, 2014 are available in any H-1B category, except for the following “non-cap” situations, among others:
- Employees or prospective employees who are nationals of Chile (special provision under U.S.-Chile Free Trade Agreement);
- Employees or prospective employees who are nationals of Singapore (special provision under U.S.-Singapore Free Trade Agreement);
- Employment for an institution of higher education or related nonprofit entity (statutory exemption from the cap);
- Employment for a nonprofit research organization (statutory exemption from the cap);
- Employment for a governmental research organization (statutory exemption from the cap); or
- Employees or prospective employees who are nationals of Australia can qualify for E-3 visa status for employment that meets the H-1B criteria.
Please contact an immigration counsel to discuss visa options.
AUTHOR: Michael H. Neifach.
The Department of Justice is investigating and fining employers who require specific documentation from employees during the I-9 employment eligibility verification process. DOJ’s Office of Special Counsel for Immigration Related Unfair Employment Practices (OSC) often relies on statistics showing a large proportion of employees presenting specific documentation during the I-9 process to determine whether to pursue an investigation and charges for document abuse against an employer under the anti-discrimination provisions of the Immigration and Nationality Act, Section 274B.
Section 274B prohibits employers from requiring specific documentation for the I-9 verification process. Under the law, employees can present any unexpired documentation establishing identity and authorization to work from the list of acceptable documents. Lawful permanent residents, for example, may present either a permanent resident card (I-551 or “green card”) or a drivers’ license and a Social Security card. By reviewing data entered on the Form I-9 and information captured through E-Verify, OSC can identify employers with a high percentage of lawful permanent residents verified using a permanent resident card from List A of the List of Acceptable Documents. OSC is aggressively targeting employers for document abuse and seeking significant fines. Depending on the size of the employer, OSC can impose civil fines for document abuse amounting to tens of thousands, even well over $100,000.
Employers should review their internal policy and training to ensure that employees are allowed to present any acceptable combination of documents from the Form I-9 List of Acceptable Documents. Employers should contact consult with counsel on ways to mitigate potential scrutiny by OSC for document abuse.
AUTHOR: Davis C. Bae.
E-Verify is a free online program for employers to verify Form I-9 data through government databases. Tentative Nonconfirmations (TNCs) are messages issued by E-Verify when information from an employee’s Form I-9 does not match data from U.S. Department of Homeland Security (DHS) and Social Security Administration (SSA) records. E-Verify will alert the employer of the mismatch and the employee will be allowed to work while he or she resolves the problem. However, employees are often frustrated when TNCs are a result of errors in the DHS or SSA databases. To avoid future TNCs, the USCIS’s fact sheet, which can be found here, suggests employers ask their employees to take the following corrective actions:
1) Contact USCIS to correct the Form I-551 or Form-766 Employment Authorization Document;
2) Contact USCIS, CBP to correct the Form I-94;
3) Visit www.uscis.gov to determine how to renew or replace the immigration document; or
4) Contact the Student and Exchange Visitor Program (SEVP).
Jackson Lewis attorneys regularly advise clients on practical solutions and best practices in the implementation and use of E-Verify.
AUTHOR: Amy Peck.
An appeals court decision granting six undocumented workers standing to recover wages owed by their employer under the Fair Labor Standards Act (FLSA) will stand after the U.S. Supreme Court declined to review the case on March 14.
The FLSA prescribes standards for minimum wage and overtime pay and provides employees with an avenue to recover earned but unpaid wages. The U.S. Court of Appeals in St. Louis ruled six undocumented workers from Guatemala could pursue a claim under the FLSA for unpaid wages earned while working for Jerusalem Café. The Eighth Circuit determined that “employee,” as used in the FLSA, includes individuals who are not legally authorized to work in the United States.
The owners of Jerusalem Café argued that because the Immigration Reform and Control Act (IRCA) prohibits the employment of undocumented workers, the plaintiffs were not legally entitled to the wages they sought to recover, and so lacked standing to make an FLSA claim. Rejecting this argument, the appeals court noted the IRCA specifically requires employers to comply with other federal laws, such as the FLSA.
The Court also rejected Jerusalem Café’s argument that this matter was governed by the U.S. Supreme Court’s decision in Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002). In Hoffman, the plaintiff alleged he was terminated in violation of the National Labor Relations Act (NLRA). He attempted to recover wages he would have been paid had he not been improperly terminated, but the plaintiff had no standing to recover future lost wages to which he was not legally entitled. However, the plaintiffs’ claims in Jerusalem Café were distinguishable because these employees were attempting to recover wages they already earned, for work already completed.
The Eighth Circuit also rejected Jerusalem Café’s argument that granting undocumented workers standing under the FLSA “would encourage successful evasion of apprehension by immigration authorities, condone prior violations of the immigration laws and encourage future violations.” It agreed with the plaintiffs that awarding earned but unpaid wages to undocumented immigrants does not create an additional violation of immigration laws. Allowing them to recover legal wages for work already completed, the Eighth Circuit said, simply assures that their employer does not gain an economic advantage by employing undocumented workers without complying with the FLSA.
Left intact is a jury verdict of $284,000 in favor of the six employees. The jury made this award despite the plaintiffs’ open disclosure of their immigration status throughout the trial.
AUTHOR: Robert Neale.
The U.S. Citizenship and Immigration Services (“USCIS”) will begin accepting new H-1B petitions against the upcoming Fiscal Year 2015 H-1B quota on April 1, 2014. This year’s H-1B season is expected to be similar to last year’s, during which the 85,000 “cap” on new H-1Bs was reached in the first week petitions were accepted. A total of 124,000 petitions were filed last year. The cap applies to individuals who have never held H-1B status or who previously worked only for an H-1B exempt employer. Employers should plan now for a possible 40-percent-rejection rate on their H-1B petitions.
Alternative visa options for affected employees include the following:
- For Canadian and Mexican professionals, the TN visa available under the North American Free Trade Agreement.
- For nationals of Australia, the E-3 visa.
- For nationals of Chile or Singapore, the H-1B1 visa.
- For intracompany transferees, the L-1 visa. An organization with foreign operations can transfer employees to its U.S.-affiliated company in a similar position under certain circumstances.
- For individuals with a U.S. degree in a science, technology, engineering or math (STEM) field and employers enrolled in E-Verify, the 17-month optional practical training (OPT) extension.
- For individuals who may qualify under the extraordinary ability criteria, the O-1 visa.
- For essential employees if the company and foreign national share the same nationality, the E-2 visa.
- For individuals in F-1 status, continue with F-1 studies and look at internship opportunities under curricular practical training (CPT).
- For individuals who may qualify under the EB-1 extraordinary ability, EB-1 outstanding researcher and/or EB-2 national interest waiver (NIW) criteria, pursue concurrent I-140/485 green card process and work authorization issuance.
- For individuals whose employers have offices outside the United States, the individuals can be placed on the foreign payroll and work abroad until next year’s H-1B filing period or until another type of work visa becomes available.
- For individuals entering a structured training program, the H-3 visa.
- For individuals who can be categorized as an Exchange Visitor, the J-1 visa.
Every situation is different and your legal representative should be consulted to ensure you have an alternative plan should the H-1B petition filed on behalf of a foreign national employee be rejected.
AUTHOR: William J. Manning.
Department of Homeland Security Secretary Jeh Johnson has announced that Temporary Protected Status (“TPS”) for eligible Haitians will be extended for an additional 18 months, from July 23, 2014, to January 22, 2016.
Current Haitian TPS beneficiaries must reregister during a 60-day period, from March 3, 2014, to May 2, 2014. In addition to reregistering, Haitian nationals who wish to have employment authorization must apply for a new Employment Authorization Document (“EAD”). The new EADs will be issued with an expiration date of January 22, 2016.
Because of the volume of applications, U.S. Citizenship and Immigration Services (“USCIS”) expects that some applicants will not receive their new EADs prior to the expiration of their current EADs. Consequently, USCIS has automatically extended current Haitian TPS EADs bearing an expiration date of July 22, 2014, for an additional six months. This means that employers must treat current EADs as valid until January 22, 2015. For Form I-9 reverification purposes, employers can accept the current EAD and a copy of the Federal Register Notice announcing the extension of the Haitian TPS.
In order to reregister, qualified Haitian nationals must file Form I-821, Application for Temporary Protected Status, with USCIS. If they wish to obtain employment authorization, they must also file Form I-765, Application for Employment Authorization. Additional information on TPS for eligible nationals of Haiti is available at www.uscis.gov/tps.
AUTHOR: Harry J. Joe.
The Office of the Special Counsel (OSC) for Immigration-Related Unfair Employment Practices is warning employers not to use forensic tools or techniques to assess the validity of any document presented for identification and employment authorization, or apply a different level of scrutiny based on the type of document presented by the employee or the citizenship status or national origin of the employee when completing the Form I-9 or in the course of an internal compliance audit of I-9s.
The warning appeared in a general guidance letter, dated December 30, 2013, from Alberto Ruisanchez, Acting Deputy Special Counsel, OSC, Civil Rights Division of the United States Department of Justice, answering an inquiry whether an employer conducting an internal I-9 audit may ask anemployee to produce employment eligibility documentation at the time the Form I-9 was completed where copies of the documentation are “unclear and prevent forensic evaluation of their genuineness.”
OSC stated that voluntary internal audits should not be conducted because of lingering doubts concerning employees’ true citizenship status or national origin, or in retaliation for employees’ exercising their rights under the Unfair Immigration-Related Employment Practices provision of the Immigration and Nationality Act of 1952, as amended, 8 U.S.C. 1324b. Prohibited practices include unfair documentary practices commonly referred to as “document abuse.”
OSC advised employers that the standard for reviewing Form I-9 documentation in an internal audit should be the same as in reviewing documentation during the initial employment eligibility verification process. An employer is required to accept Form I-9 documentation that reasonably appears to be genuine and to relate to the individual presenting them.
As to the specific question presented by the employer, Mr. Ruisanchez stated that an employer should not request to see I-9 documents originally presented or alternative documents solely because the photocopies that were previously made were unclear or because documents originally presented were not photocopied. Likewise, an employer should not conclude, based solely upon the illegibility of the photocopies that such documentation was not genuine or did not relate to the individual.
AUTHOR: Kevin Lashus.
The Acting Assistant Inspector General for Audits with the DHS Office of the Inspector General, Mark Bell, has made three recommendations for improving ICE’s implementation of its worksite enforcement strategy based on an audit of the agency (www.oig.dhs.gov). ICE is the DHS agency responsible for implementing the nation’s worksite enforcement strategy and protecting employment opportunities for the nation’s lawful workforce.
One of President Obama’s first acts was to revamp ICE’s worksite enforcement strategy to give priority to identifying employers who knowingly hire illegal workers and to use all available civil and administrative tools to penalize and deter illegal employment.
From fiscal years 2009 through 2012, Congress allocated about $531 million to fund and implement ICE’s worksite enforcement strategy. Over that same period, ICE conducted 9,140 administrative I-9 inspections, issuing about $31.2 million in civil fines to employers.
The recommendations to ICE are as follows:
#1: Enforce its oversight procedures to ensure consistent application of the worksite enforcement strategy administrative inspection process nationwide.
#2: Develop a process to evaluate the effectiveness of the administrative inspection process and modify the process based on the evaluation.
#3: Direct Homeland Security Investigations field offices to provide consistent, accurate, and timely reporting of information on worksite administrative inspections.
Although Mr. Bell’s audit concluded ICE’s I-9 inspection process met the requirements of the Immigration and Nationality Act, he determined ICE failed to monitor or evaluate adequately the performance or outcomes of the process among its field offices, the Homeland Security Investigations’ headquarters did not adequately oversee the offices to ensure they were consistent in issuing warnings and fines—finding some issued significantly more warnings than fines, and some field offices negotiated fines with employers—significantly reducing the amount—while others did not.
Employers should anticipate that more fines from ICE, instead of warnings. There also is expected to be less interest in reducing these assessments and more activity in regions that tended to have fewer inspections. The number of inspections also may increase overall. ICE likely will redouble efforts in monitoring field office activity, encouraging them to conduct inspections in a more consistent fashion, and encouraging more precision in the internal deliberation supporting the fine assessment.