The highly anticipated immigration reform bill has been formally introduced by a bi-partisan group of Senators.  The proposal for significant changes to the nation’s immigration system (consisting of almost 850 pages), the Border Security, Economic Opportunity, and Immigration Modernization Act of 2013, includes provisions for increased border security, legalization for individuals present in unlawful status, and modernization of the legal immigration system.  A complete summary of the article is available at  http://www.jacksonlewis.com/resources.php?NewsID=4447.

AUTHOR:  Davis C. Bae.

The USCIS announced on April 8, a week after it began accepting H-1B petitions, that it has received a sufficient number of H-1B petitions to reach the statutory cap for fiscal year (FY) 2014. It received approximately 124,000 H-1B petitions, including petitions for the advanced degree exemption. This likely will mean that more than 40,000 applications will be rejected. Employers will not be able to obtain new H-1B visas for employees until October 1, 2015. (The H-1B quota generally does not affect current H-1B status holders who are being sponsored by a new employer.)

While the demand for H-1B visas is generally a strong indicator of the health of the U.S. economy, this does not help employers requiring qualified employees. Employers with rejected petitions will be scrambling for other options for their employees and candidates, many of whom are working under a different but expiring visa category.

Employers can look to other visa categories and solutions to extending work authorization.  Individuals from certain countries may be eligible for professional visa categories that mimic the H-1B. For example, Australians can qualify for E-3 visas, while Singaporean and Chileans can qualify for H-1B1 visas. Mexican and Canadian citizens may qualify for certain professional category positions under the TN category.

In addition, employers who utilize E-Verify may be able to extend the work authorization of F-1 students for an additional 17 months if the employee is a graduate of a STEM (Science, Technology, Engineering or Math) program. Lastly, other categories, such as the O-1, P-1, L-1, E-1/2 and B-1, may help employers bridge the H-1B visa shortage.

Employers are encouraged to consult their immigration counsel at Jackson Lewis to determine if one of these solutions is appropriate. The H-1B shortage highlights the need for immigration reform that supports our rebounding, but fragile, U.S. economy.

 

Author:  Harry J. Joe.

Job shops and staffing firms use of H-1B visas, but that do not actually and directly employ the alien workers, that assign such workers to third-party worksites and otherwise bench (practice of placing H-1B visa holders in nonproductive status, without pay, while they wait for placement with other employers), and not pay such workers when work is not available can be open to government prosecution. The H-1B visa system was intended for the H-1B worker to perform services for the petitioning company. When employers fail to disclose in their visa petitions and labor condition applications for H-1B alien workers that the workers would be placed at third-party worksites, would be benched, would be paid only for work performed at such sites, would not be employed directly by the petitioning employer and at an employer’s place of business, and that they would not be paid a salary as represented in the filings, they can be criminally prosecuted for visa fraud, wire fraud, harboring, employment of unauthorized workers and money laundering. Both employers and their principals can be open to accusations of criminally misuse of the H-1B visa program.
 
A criminal indictment was filed on February 20, 2013, in the U.S. District Court for the Northern District of Texas against six principals of Dibon Solutions of Carrollton, Texas. It alleged Dibon, along with its six principals, engaged in an unlawful conspiracy to commit visa fraud by sponsoring foreign workers for H-1B visas with the stated purpose of working at Dibon Solutions’ headquarters in Carrollton. In fact, the workers provided services to third-party companies located elsewhere. Moreover, contrary to statements in the petitions and applications, Dibon only paid the workers an hourly wage for work performed at the third-party worksites and only if such third-parties first paid Dibon for the work. When not working, the workers were “benched” and not paid as required by H-1B labor condition application regulations.

The government’s theory of criminal liability was that the H-1B visa system was intended for the worker to perform services for the petitioning company, i.e., Dibon Solutions. Not informing or disclosing in its filings that the workers would be employed at or assigned to a location other than the Carrollton address is contrary to the stated requirements in the petition and the application.
 
The Dibon indictment further alleged the named defendants had unlawfully engaged in wire fraud. The government also is seeking forfeiture of assets procured by the defendants that arose from their criminal enterprise.
 
In its latest criminal prosecution, the government alleged on March 19, 2013, in the U.S. District Court for the Western District of North Carolina that Phani Raja Bhima Raju, founder and principal owner of iFuturistics, recruited and hired foreign nationals with specialized skills in computers and information technology so they could work at other U.S. companies
 
Raju and others were accused of knowingly and willfully conspiring to conceal in iFuturistics’ H-1B petition and labor condition application filings that the workers would be employed at other locations, the actual terms of their employment as to wages and hours of work, and that the workers would be benched. Raju and others also were accused of unlawfully misrepresenting the place of employment as Pineville, North Carolina, and falsely stating that the workers would be employed full-time and paid the stated salary. In fact, the workers were benched and not paid until assigned to a third-party worksite.

According to the allegations against Raju, a bona fide H-1B petitioning employer is a “valid employer,” not a “job agent,” “subcontractor,” or “hiring agent” and the valid employer could not engage in “benching.”

On March 22, 2013, Raju pleaded guilty to five federal charges, ranging from conspiracy to file fraudulent immigration documents to money laundering in a fraudulent scheme to obtain H-1B visas for foreign workers.

Moreover, iFuturistics was ordered by the USDOL Wage and Hour Division on January 4, 2013, to pay back wages to seven H-1B workers in the amount of $149,009.51 and civil monetary penalties of $18,000.
 

On April 9, 2013, U.S. Citizenship and Immigration Services (USCIS) published a notice in the Federal Register clarifying the date by which the new Form I-9 must be used instead of prior versions of the form.  Employers are advised that they must use the new Form I-9 beginning on May 7 or they will be subject to penalties under Section 274A of the Immigration and Nationalization Act (INA), 8 U.S.C. 1324a.  On March 8, USCIS released a revised version of the Form I-9.  The new Form includes significant changes including expanded instructions, new information fields, and a two-page format.  Although the new Form I-9 was for immediate use, employers were given 60 days to adapt their internal processes. USCIS instructions were unclear whether the last date that prior versions of the Form I-9 could be was May 7 or May 8.  The original Federal Register notice itself was internally inconsistent on this, indicating both dates in different sections of the notice.  The April 9, 2013 notice clarifies that prior versions of the form cannot be used beginning on May 7.

USCIS announced today that it "received approximately 124,000 H-1B petitions during the filing period, including petitions filed for the advanced degree exemption." On April 7, 2013, these applications were processed through a computer-generated random selection process known as the lottery to determine which ones would receive the 65,000 visas generally allocated for H-1Bs as well as the 20,000 allocated for holders of advanced degrees from the US. USCIS will reject and return the petitions not selected in the lottery along with the filing fees.

http://www.uscis.gov/H-1B Cap

 

AUTHOR:  Davis C. Bae

U.S. Citizenship and Immigration Services (USCIS) announced today that it has received a sufficient number of H-1B petitions to reach the statutory cap for fiscal year (FY) 2014. USCIS has also received more than 20,000 H-1B petitions filed on behalf of persons exempt from the cap under the advanced degree exemption. After April 5th, USCIS will not accept H-1B petitions subject to the FY 2014 cap or the advanced degree exemption.

All cases received by the USCIS by April 5, 2013 will be eligible for the H-1B visa “lottery."  The lottery will be held to determine which of the applications received by April 5th will be considered, while all other applications will be rejected.
 
Jackson Lewis will continue to provide updates on USCIS announcements on this important issue for employers.
 

A bill seeking to make the Conrad State 30 J-1 visa waiver program permanent and improve the pathway for physician immigration to the U.S. with changes to H-1B visas, Green card issuance and national interest waiver requirements has been introduced by a bipartisan group of four Senators: Amy Klobuchar (D-MN), Jerry Moran (R-KS), Susan Collins (R-ME), and Heidi Heitkamp (D-ND).

The Conrad State 30 Program, also known as the J-1 Visa Waiver program, was enacted in 1994 as a national initiative that permits states to recommend visa waivers for physicians recruited to care for patients in rural and underserved areas.  Under the Program, foreign medical graduates who undertake medical residency and fellowship training in the U.S. agree to practice medicine in underserved communities for at least three years in exchange for a waiver of certain visa restrictions, including the two-year foreign residency requirement. These physicians cannot obtain work visas, such as H-1B, or apply for U.S. permanent residency unless they obtain a J-1 waiver or reside abroad for at least two years. The Program, due to sunset September 30, 2015, has been extended numerous times.

The Conrad State 30 and Physician Access Act (S. 616), introducedMarch 19, 2013, would provide additional incentives for more doctors to participate in the Program. S. 616substantially builds on S. 1979, the Conrad State 30 Improvement Act, introducedby Senator Kent Conrad (D-ND) in the last Congress. S. 1979would have permanently reauthorized the Program.   S. 616 seeks to remove the sunset of the Program, improve its functioning, and allow expansion to better meet U.S. healthcare needs. A physician shortage crisis of as many as 200,000 doctors is projected by 2020.  This shortage will be felt hardest in rural, inner city, and other medically underserved communities.  

Key provisions of S. 616 include:

  • providing a mechanism to increase Conrad 30 waivers each time 90% of waivers are filled nationwide;
  • creating three new Conrad 30 slots per state dedicated for academic medical centers;
  • instituting Conrad 30 program physician employment protections, such as:

(a)    expanding definition of 90-day rule within which to begin J-1 waiver employment to the later of 90 days after receiving waiver, or 90 days after completing graduate medical training, or 90 days after receiving nonimmigrant status or employment authorization;

(b)   permitting J-1 waiver physician to change employers during the 3-year period if: i) USCIS determines existence of extenuating circumstances; or ii) interested State agency that requested the waiver attests that extenuating circumstances exist; or iii) where alien elects not to pursue a determination of extenuating circumstances, if terminated J-1 waiver physician is employed for the remainder of the 3-year period, “and 1 additional year for each termination,” at another designated health facility/organization;

(c)    granting terminated J-1 waiver physician a grace period of 120 days within which to file a petition with USCIS for employment with another employer in a medically underserved area (physician considered to be maintaining lawful status in an authorized stay during the 120-day period);

(d)   granting dual intent to foreign physicians seeking graduate medical training;

  • clarifying physician eligibility for national interest waiver green cards by:

(a) extending the “Flex 10” concept to the physician NIW Green card context;

(b) broadly defining the 5-year service requirement to include period spent working during or in conjunction with J-1 training;

(c) clarifying that an alien physician with a foreign medical degree deemed sufficient for acceptance to an accredited U.S. medical residency/fellowship program is a member of the professions holding an advanced degree or its equivalent;

  • better aligning visa terms with residency training and physician practice. It cures H-1B cap-gap problem for foreign physicians completing medical training in H-1B status by automatically extending nonimmigrant status and work authorization to October 1, provided an H-1B extension petition is timely filed with USCIS. Such automatic status and employment authorization will terminate 30 days from the date such petition is rejected, denied or revoked.  However, a physician’s status and employment authorization will automatically extend to October 1 of the next fiscal year if all H-1B visas are issued.
  • clarifying that J-1 spouses and children are not subject to Section 212(e) foreign residency requirement.

The “Gang of 8” senators working on comprehensive immigration reform likely will include S.616 as part of a broader package.

Jackson Lewis attorneys in the Immigration Group are available to assist healthcare employers with all their immigration needs, including visa sponsorships for physicians, nurses, physical therapists, speech therapists, J-1 waivers for physicians, and Form I-9 and E-Verify compliance.    

UPDATE:

On March 28, 2013, DOL suspended issuance of H-2B Prevailing Wage Determinations due to the Court’s decision on the 2008 wage rule.

http://www.foreignlaborcert.doleta.gov/news.cfm

Further, effective March 22, 2013 U.S. Citizenship and Immigration Services (USCIS) temporarily suspended adjudication of most Form I-129 H-2B petitions for temporary non-agricultural workerswhile the government considers appropriate action in response to the Court’s decision on the wage rule.

******

In a four-year battle over the Department of Labor’s rule regarding the methodology for setting H-2B prevailing wage rates, a federal district court has vacated the 2008 H-2B Wage Rule, granting permanent injunctive relief and remanding the case to the DOL.  The court gave the DOL 30 days to comply.  Comite de Apoyo a los Trabajadores Agricolas v. Solis, No. 09-240 (E.D. Penn. Mar. 21, 2013).  The court answered “yes” to the question: “Whether the DOL’s continued use of the 2008 Wage Rule—which has been found procedurally invalid by this Court and substantively invalid by the DOL—justifies vacating the Rule and barring the Rule’s continued use.”

Before requesting H-2B non-agricultural temporary worker classification from the U.S. Citizenship and Immigration Services (USCIS), the employer must apply for and receive a temporary labor certification from DOL that, among other things, certifies that the H-2B workers would be paid at least the prevailing wage assessed by DOL. Over the past three decades, the DOL has periodically changed its methodology for calculating prevailing wages, without notice and comment, and often without explanation. The 2008 Wage Rule introduced the “arithmetic mean.” It states: “the prevailing wage for labor certification purposes shall be the arithmetic mean . . . of the wages of workers similarly employed at the skill level in the area of intended employment.”  The DOL divides each unskilled, H-2B occupation into four separate skill levels and calculates a prevailing wage for each level.

The 2008 H-2B wage methodology rule was promulgated without seeking public comment during the rulemaking process.  A federal district court, on August 30, 2010, ruled the 2008 Rule violated the Administrative Procedure Act (APA) and ordered the DOL to promulgate new, APA-compliant rules for calculating the prevailing wage rates.  Even though DOL published a new final H-2B Wage Rule on January 19, 2011, its implementation has been held up due to delays by Congressional “appropriations concerns” denying DOL funding.

The court found that H-2B labor certifications issued under the 2008 Wage Rule exceeded the authority delegated to the DOL.  The Rule “…artificially lower wages to a point that they no longer represent market-based wages for the occupation” and “have a depressive effect on the wages of United States workers,” according to the court.  Consequently, the Court concluded that labor certifications issued under the 2008 Wage Rule fall “directly outside the narrow range of circumstances under which the DOL is authorized to issue labor certifications and exceeds the bounds of the DOL’s delegated authority under Section 706(2)(C) of the APA.”

For more information on H-2B visas, H-2B labor certification applications, DOL H-2B audits or investigations, please contact your Jackson Lewis attorney or any member of the Jackson Lewis Immigration Practice.

Links:
http://dl.dropbox.com/u/27924754/CATA%20168%203-21-13.pdf

This week the Department of Homeland Security’s Customs and Border Patrol (CBP) agency, which manages and protects US borders and ports of entry, announced the release of a new rule to automate the I-94 admission/departure process.  Once in effect, the rule will be implemented over a planned four week period, beginning at airports in Orlando, Chicago, Las Vegas, and Charlotte, and then expanding nationwide.   CBP recently met with stakeholders and explained that the current system, whereby foreign travelers entering the US receive a stamped paper card in their passports as proof of lawful admission, and then have the card removed when they depart, costs the agency in excess of $12 million per year in data entry costs through a government contractor.  As the same data is reportedly available digitally to CBP already, the move has been presented as a way to not only reduce government expenditures, but also to smooth travel into and out of the country and enhance the data integrity of these records.  Once the new system is implemented, international travelers will still have access to a paper I-94, and flyers to be handed out at airports and other ports of entry will direct anyone needing a hard copy of their I-94 record to visit www.cbp.gov/I94.  Visitors often need a hard copy of their I-94 form to demonstrate the ability to work legally in the United States or to obtain other benefits.  The new website will go live 30 days from the date the new rule is published in the Federal Register, the same date that the rule is anticipated to take effect.  It is unclear whether there will be a public comment period announced, so readers are encouraged to check back for updates.

http://www.cbp.gov/xp/cgov/newsroom/news_releases/national/03212013.xml

Additional details and instructions available at:

http://www.cbp.gov/xp/cgov/travel/id_visa/i-94_instructions/i94_rollout.xml

AUTHOR:  Rebecca Massiatte.

U.S. Citizenship and Immigration Service (USCIS) has announced a temporary adjustment to its premium processing practice for H-1B petitions for the fiscal year (FY) 2014. Requests for premium processing (15-calendar-day processing time, subject to USCIS request for additional evidence/information) of cap-subject H-1Bs received between April 1 and April 14, will be adjudicated starting April 15, 2013. Premium processing for non-cap H-1Bs and all other cases will begin as normal, when the request is received.

This move is necessary, USCIS explains, because it anticipates that it may receive more than 65,000 cap-subject H-1B petitions and more than 20,000 petitions filed on behalf of individuals with a U.S. master’s degree or higher between the first day petitions are accepted, April 1, 2013, and April 5, 2013. Should this happen, FY 2014 could be the first time since April 2008 that the H-1B cap will require a lottery.

USCIS will accept Form I-907, Request for Premium Processing Service, with fee, concurrently with the Form I-129, Petition for Nonimmigrant Worker, during the period that premium processing is unavailable (from April 1 to April 14).  Employers also may upgrade a pending H-1B cap petition to premium processing once a receipt notice is issued. All requests for premium processing received between April 1, 2013, and April 14, 2013, will be adjudicated when premium processing begins on April 15, 2013.

We strongly urge employers to consult with their Jackson Lewis immigration counsel to plan the filing of the necessary petitions.  We will continue to provide updates on the H-1B cap.