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

It is H-1B season again. The United States Citizenship and Immigration Services officially announced today that they are accepting H-1B applications for FY2012. U.S. businesses use the H-1B program to employ foreign workers in specialty occupations that require theoretical or technical expertise in specialized fields, such as scientists, engineers, or computer programmers.

Cases will be considered accepted on the date USCIS receives a properly filed petition for which the correct fee has been submitted; not the date that the petition is postmarked. Similar to last year, we do not expect the H-1B quota to be fully utilized until late 2011. However, employers should start looking to initiate cases for employees who might be subject to the quota in order to assure themselves a visa before the cap hits.
 

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Despite a marked decrease in H-1B petitions filed to date, USCIS is making little effort to adjudicate its current caseload of H-1B petitions in a timely fashion. The USCIS’s stated processing times for H-1B’s are more than two months off the actual processing times, which are approaching five months and increasing.

The effect of the processing slow down is that some beneficiaries and employers are being forced to move cases into premium processing or risk losing work authorizations. One affected group is the cap-gap student who has an expired Optional Practical Training (“OPT”) work permit, but is permitted to continue working until October 1st under the cap-gap regulations.

To qualify for cap-gap relief, an H-1B petition for a change of status must be timely filed on behalf of an eligible F-1 student. The student must be in authorized status, meaning, within the OPT period, which includes the 60-day post-departure preparation period, commonly known as the “grace period.” Once a timely filing has been made, the automatic cap-gap extension will begin and will continue through September 30th, unless the H-1B petition is denied, withdrawn, or revoked.

Because USCIS is not doing its job of adjudicating petitions, many cap-gap students are now faced with a not-yet-approved H-1B and October 1st approaching. If this situation applies to you, several steps need to be taken:

1. Notify legal counsel immediately. Counsel may be able to request that the case be expedited without premium processing.
2. The student must go on unpaid leave after September 30th, continuing until the H-1B is approved.

Contact legal counsel immediately if you wish to premium process the application. Premium processing is an extra $1,000 filing fee. Even with this payment, you may not get the case adjudicated for 10 business days.
 

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In a blow to employers, a federal district court has upheld a USCIS memorandum that set out factors to determine whether an employer-employee relationship existed for H-1B nonimmigrant visa petition adjudication purposes.

The case was brought by an IT staffing firm that, along with other IT staffing firms and trade associations, challenged the validity of the USCIS’s January 8, 2010, Memorandum for “Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements” (HQ 70/6.2.8 AD 10-24) (“Neufeld Memo”). The case was dismissed, with prejudice, by the federal district court for the District of Columbia on August 13, 2010. Broadgate Inc. v. U.S. Citizenship and Immigration Services, No. 1:10-cv- 00941-GK, (D. D.C.). The Neufeld Memo set out 11 factors and hypothetical examples for when an employer-employee relationship did and did not exist for H-1B nonimmigrant visa petition adjudication purposes. The plaintiff argued that the Neufeld Memo failed to comply with the Notice of Proposed Rule Making requirements of the Administrative Procedures Act and, therefore, was invalid. Additionally, they argued the memorandum set out new substantive rules that were binding upon USCIS service center adjudicators. Siding with the USCIS, the Court found the Neufeld Memo to be valid as it is “interpretive” in nature and was intended to be used by adjudicators in the application of the five tests set forth in the regulation for determining whether the requisite employer-employee relationship had been satisfied by the petitioner.

It is no secret that with the current recession and corresponding high unemployment rate, there is intense government scrutiny of immigration-related filings by U.S. employers seeking to secure employment work visas for foreign workers. Statutory and regulatory requirements are now being applied strictly, as evidenced by the Neufeld Memo.

What is most troublesome with the Broadgate decision is that the door is now open for the USCIS to create potentially unlawful “interpretive” memorandums for the adjudication of such filings, leaving the employer with the ability to challenge their unlawfulness only when the filing has been erroneously denied. It is not uncommon for 24 or more months to elapse from the time of denial of an application by the Service Center and affirmation by the Administrative Appeals Office before the Petitioner can challenge the legality of the standard in federal district court. In agreeing with the government’s “interpretation defense,” the Court created a Trojan horse for the USCIS and other federal agencies, such as the Office of Foreign Labor Certification at USDOL, to render erroneous decisions that deny immigration benefits to those legally entitled to them.
 

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Implementing a portion of the Border Security funding bill (Public Law 111-230) signed by President Barack Obama on August 13, USCIS has announced a new fee, in addition to existing fees, for certain H-1B and L-1 petitions. The new fee is $2,000 for certain H-1B and $2,250 for certain L-1 petitions.

The fee applies to petitioners who employ more than 50 workers in the U.S., with more than 50% of them in H-1B or L-1 status. The fee must be paid when an employer seeks an initial grant of H-1B or L-1 status, and when an existing H-1B or L-1 worker is seeking a change of employer.

USCIS notes that Form I-129, and accompanying instructions, will be modified to comply with the new law. In the interim, employers should address the fee requirement with a notation on their H-1B or L-1 applications.

See the USCIS announcement here:
http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=27eac9514bb8a210VgnVCM100000082ca60aRCRD&vgnextchannel=5b33aca797e63110VgnVCM1000004718190aRCRD
 

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On April 9, 2010, USCIS announced that in the first week of accepting cap-subject H-1B filings for FY 2011, only 13,500 petitions had been received against the 65,000 regular cap and only 5,600 against the 20,000 master’s cap.

New H-1B visas are generally limited to 65,000 per fiscal year, with an extra 20,000 available to certain individuals with advanced degrees (the master’s cap). The fiscal year begins on October 1, and petitions are accepted beginning April 1.

The first week’s filings represent the fewest H-1B petitions initially filed in several years. In previous years, USCIS had received a substantially greater number of petitions on April 1 than H-1Bs available. Such a situation required lotteries to determine which petitions would be accepted for adjudication. The last lottery was held in 2008, when USCIS received over 160,000 initial H-1B petitions.

No lottery was held last year, where after the first week of filing, USCIS had received over 30,000 regular cap petitions and close to 20,000 master’s cap petitions. USCIS continued to accept applications for new H-1Bs until the limit was reached on December 21, 2009.

It appears that employers now have some flexibility in bringing on new H-1B workers for a start date of October 1, 2010 or later.
 

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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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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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Although the economy has hit all employees hard, Reductions-in-Force (RIFs) have a disproportionate affect on H-1B employees. When an H-1B employee is terminated from employment, that employee must deal with not only the financial difficulties of a layoff, but the additional complexity of losing authorized status in the United States as of the day of the termination. Even if the individual were to find employment subsequent to the termination, there are many issues in switching employers legally. 

Anytime an employer terminates the employment of an H-1B worker, the employer is liable for reasonable costs of return transportation abroad. Moreover, the employer should withdraw immediately its H-1B petition with United States Citizenship and Immigration Service (“USCIS”), to avoid “front” and “back” pay obligations. The petition, however, may be automatically revoked if the employer goes out of business. 

If a new employer wishes to hire an H-1B individual terminated by a previous employer, the new employer should keep in mind that the individual may need to return to his home country to obtain an H-1B visa if employment has ended prior to the filing of the new employer’s application and his beginning new employment. The Immigration regulations do not provide a grace period from the time the individual ceases employment until the new petition has been filed to find a new position and sponsoring company. 

Other major changes in employment, such as location, duties, or level of responsibility, may require the filing of an amended H-1B petition. While a corporate reorganization may not trigger a duty to amend the petition with the USCIS, this must be analyzed on a case-by-case basis. 

Understanding the immigration implications for H-1B workers that may be part of a RIF or other corporate change can make all the difference in mitigating both financial and personal issues for employers, H-1B employees and their dependant family members.

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This just in! As of December 8, 2009, approximately 61,500 H-1B cap-subject petitions had been filed. USCIS has approved sufficient H-1B petitions for aliens with advanced degrees to meet the exemption of 20,000 from the fiscal year 2010 cap. Any H-1B petitions filed on behalf of an alien with an advanced degree will now count toward the general H-1B cap of 65,000. USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn.

Look to this blog for ideas on how to find solutions to the H-1B cap being hit for fiscal Year 2010.

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The USCIS announced that as of November 20, 2009, approximately 56,900 H-1B cap-subject petitions had been filed. USCIS has approved sufficient H-1B petitions for aliens with advanced degrees to meet the exemption of 20,000 from the fiscal year 2010 cap. Any H-1B petitions filed on behalf of an alien with an advanced degree will now count toward the general H-1B cap of 65,000. USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, recognizing that some of these petitions may be denied, revoked, or withdrawn.

Last week, the USCIS used approximately 1300 H-1Bs. Assuming the agency stops accepting applications once they hit 58,200 (65,000 less 6,800 reserved for H-1B1 program), the cap will be open for about one more week. Those needing an H-1B visa should file immediately. If the quota is reached, H-1B visas will be unavailable until October of 2010.

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The Fraud Detection Unit of the United States Citizenship and Immigration Services (PDF) (USCIS) has initiated thousands of unannounced site visits to employers with H-1B employees. Although the vast majority of site visits go smoothly, this program can be intimidating and create a chilling effect for employers who wish to pursue the H-1B program appropriately. Employers who do not file accurate H-1B applications may have their petitions revoked, and, in cases of severe abuse, further investigation could lead to civil penalties and criminal prosecution.

Conscientious employers generally do not have to fear a site visit, but should understand them and know how to respond. A site visit will occur at the employer’s location or employee’s worksite. The USCIS investigator generally will ask for the signer of the immigration forms, but may ask for another company official. The investigator will seek to review information from the immigration petition regarding the employer’s business and the employee's job title, duties, work location, and salary.

If you have H-1B employees, prepare for the strong likelihood of a site visit. This means maintaining accurate immigration documentation and becoming knowledgeable aboutthe information they contain. If the H-1B employee is not on site, be sure that there is a person at the location who knows how to respond to an audit.

If you are audited, take careful notes, including the name, title, and contact information of the investigator. If possible, have a witness who also prepares detailed notes of the visit.
If you are unsure how to answer the investigator’s question , simply say that you will follow up after the visit. If any issues arise during the site visit or if you have other concerns, ask to have your immigration lawyer present in person or by telephone.

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