While Barack President Obama has delayed taking action on deportations to give House Republicans the opportunity to take action on immigration reform, it seems unlikely to happen soon.

House Majority Leader Eric Cantor (R-Va.) released a memo, dated June 6, 2014, outlining the GOP-led House’s legislative priorities for June.  Among them are government funding on transportation, housing and urban development agencies, and agriculture and defense; as well as the SKILLS Act, which aim to improve job skills for workers.  Immigration reform is not included.

Advocates for immigration reform worry this summer may be the final opportunity for an overhaul on immigration legislation this year.  While it appears that some House Republicans are trying to work toward that goal behind the scenes, immigration reform continues to face seemingly insurmountable obstacles in Congress.

AUTHOR:  Harry Joe.

An employer was not absolved of its failure to complete I-9 Employment Eligibility Verification Forms for employees in a proper and timely manner and to produce them during an audit and inspection simply because it used E-verify to check the employment authorization of its employees, an administrative law judge has ruled. The ruling arose in United States v. Golf International d/b/a Desert Canyon Golf Club, decided on March 26, 2014, by the Department of Justice’s Office of the Chief Administrative Hearing Officer.

Desert Canyon is a semi-private golf club in Scottsdale, Arizona. It was the subject of an I-9 Inspection and Administrative Subpoena. In the course of the audit, 157 I-9s were produced for active and terminated employees.  Desert Canyon was charged with failure to sign Section 2 of 107 I-9s, of which 93 were entirely left blank. In addition, Desert Canyon also was charged with failure to ensure that employees had properly completed Section 1 of the I-9 in 11 instances. In the course of the audit, Desert Canyon corrected the omissions in Section 2 of the I-9s and submitted the information to E-Verify.

Before the ALJ, Desert Canyon contended that because it used E-Verify, it was entitled to a rebuttable presumption that it had not violated the employment authorization verification requirements of Section 274A of the Immigration and Nationality Act. Moreover, it argued, its use of E-Verify was sufficient to accomplish the verification and attestation requirements in Section 2 of each I-9 and that failure to complete Section 2 had been excused.

The ALJ ruled that Desert Canyon’s use of the E-Verify employment verification system did not provide it with a “blanket protection” from fine proceedings for failure to properly complete an I-9 form for each new employee. The ALJ alluded to the E-Verify Memorandum of Understanding between the Department of Homeland Security and Desert Canyon that ” The Employer understands that participation in E-Verify does not exempt the Employer from the responsibility to complete, retain, and make available for inspection Forms I-9 that relate to its employees.”

The ALJ ruled that Desert Canyon was liable for 125 violations for the failure to ensure that employees properly completed Section 1 of the Form I-9 and the failure to properly complete Section 2, and that 4 violations had also been established for a failure to prepare and present I-9 forms upon the government’s request for inspection.

At a recent White House law enforcement event, President Barack Obama took the opportunity to pressure Republicans in the House of Representatives to present an immigration reform bill this summer in advance of the November mid-term elections.

House Speaker John Boehner (R-Ohio) has made comments supportive of immigration reform and issued a “statement of principles” developed by House Republican leadership addressing immigration reform in January. As reported by the Cincinnati Inquirer, the Speaker was careful earlier this month to distinguish that proposed roadmap to legal status for some illegal aliens from an outright amnesty.  “I reject that premise. … If you come in and plead guilty and pay a fine, that’s not amnesty,” he said.  Regardless of how reform measures are characterized, though, patience is flagging and significant progress remains stubbornly elusive.

The President’s comments on immigration reform, while also asking his secretary of the Department of Homeland Security, Jeh Johnson, to delay releasing details of a recent study on the country’s deportation system, were seen as giving lawmakers time to propose and debate new legislation,   but continuing to hold out the threat of an executive order should Congress fail to act.  Activists on the left are pressuring the President to act. They urge an executive order similar to the one issued in 2012 extending temporary status and work authorization to some unauthorized aliens brought to the U.S. as children. The new measure for example, could extend the same type of protection to parents of those children, advocates contend.

Nearly two million illegal immigrants have been deported since the President took office, according to a New York Times review and official records. The President asked the DHS secretary to evaluate how to make the deportation system more humane.  Further executive action on immigration may spur additional controversy and make comprehensive immigration reform negotiations in Congress more difficult.

An example of this type of challenge is in seen in the obstacles besetting the bi-partisan “ENLIST Act“(H.R. 2377), a bill designed to extend legal permanent residence to immigrants who were brought to the U.S. illegally as children and who enlist in the U.S. armed forces.  Hopes for easy passage have been set back.    Contrary to the expectations of many supporters, including the bill’s sponsor, Rep. Jeff Denham (R-Calif.), the measure was not taken up for discussion as part of the annual defense bill.   This is discouraging for proponents of reform.   Political brinksmanship, rather than a genuine willingness address the nation’s dysfunctional immigration system, appears to be the order of the day.

USCIS has announced that all H-1B Cap-Subject Petitions selected in the H-1B lottery have officially been data-entered for the 2015 Fiscal Year.  While Receipt Notices for these data-entered petitions likely will be sent in the next few weeks, unselected petitions are now in the process of being returned to the Petitioner or attorney of record.

The H-1B visa program allows U.S. businesses to employ foreign workers in specialty occupations that are considered “professional” in nature.  These includes engineers, scientists, and computer programmers, among many others.  The program is subject to an annual cap on the number of H-1B visas that can be issued – 65,000 visas for general petitions with a 20,000 advanced degree exemption.

Where more petitions are filed under the annual cap than eligible visas, USCIS conducts a lottery to determine which petitions are accepted. The filing window for the FY2015 H-1B cap opened on April 1, 2014, and USCIS confirmed on April 7 that the H-1B cap had been reached.  USCIS received 172,500 H-1B Petitions in the first five business days of filing eligibility.

Employers whose petitions were not selected under the cap will need to quickly start exploring alternative visa strategies for their effected foreign national employees.  Our immigration attorneys will work closely with affected employers to help obtain and retain work authorization for employees negatively affected by the H-1B cap limitations.  Contact your Jackson Lewis attorney for any questions regarding the H-1B cap, lottery selection process, and alternative visa options for your company and its employees.

United States Citizenship and Immigration Services (“USCIS”) adjudicators have been giving heightened scrutiny to U.S. employers’ I-129 Petitions for L-1B status on behalf of “intracompany transferees.”   These individuals are employees of U.S. employers’ foreign-based affiliates, subsidiaries or parent companies who possess “specialized knowledge.” Such knowledge is defined as particularized knowledge “of the organization’s product, service, research, equipment, techniques, management, or other interests and its application in international markets,” or “an advanced level of knowledge or expertise in the organization’s processes and procedures.”  USCIS adjudicators review U.S. employers’ petitions and have the authority to approve or deny those them, thus having the authority over employers’ ability to employ selected foreign national employees in the U.S.

Recent data shows that USCIS has continued its aggressive review of employers’ L-1B petitions.  In FY 2006 and FY 2007, respectively, the denial rate for such petitions was 6% and 7%.  The denial rate then spiked dramatically to 22% in FY 2008 – a new, unmistakable indictor of   stricter agency  review of L-1B petitions.  In FY 2011, the denial rate had risen to a whopping 27%, meaning that more than one quarter of L-1B petitions filed were denied.  Remarkably, USCIS has managed to increase those numbers.  New data shows that in FY 2012 and FY 2013, respectively, denials rose to 30% and 34%.

In addition, U.S. employers can continue to expect costly and time-consuming requests for evidence (RFE) from USCIS in response to their petitions.  USCIS adjudicators issue RFEs to obtain additional, purportedly necessary information prior to reaching a final decision on  L-1B petitions, and were issued in 63% of cases in FY 2011.  After a backlash from U.S. employers and practitioners, RFE rates have dropped to 43% and 46%, respectively, in FY 2012 and FY 2013.  Still, employers can count on receiving RFEs for roughly half of the petitions they file, and thus must plan for delays, interruptions, or cancellations of important projects or initiatives in the absence of their needed and scheduled workforce.

Because U.S. employers select carefully qualified intracompany transferees who will satisfy the L-1B specialized knowledge standard, the USCIS denial and RFE rates are viewed by many as  staggeringly high and suggest that USCIS may be imposing heightened standards in  disregard of the language and purpose of the  applicable regulations.  But those rates persist.  Just over one-third of all L-1B petitions are denied.  Furthermore, employers receive RFEs in nearly half of their cases, delaying company plans and increasing costs.  Before assuming employees will be able to work in L-1B status and making definitive staffing plans as to company projects, U.S. employers should consult with counsel regarding  the chances of approval and potential employment start dates in particular cases.

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.

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.

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.