Employers who plan to file for new H-1B employment visas in FY2014 should be prepared to file by April 1, 2013.  H-1B visas generally are limited to a fiscal year distribution of 65,000 (85,000 when U.S. Master’s Degree holder visas are included). The immigration fiscal year begins on October 1. Petitions are accepted for the upcoming fiscal year beginning April 1. Until recently, substantially more petitions were received on April 1 for the upcoming fiscal year than the available H-1B numbers and a lottery was held to determine which petitions would be considered.

While H-1B usage has been lower over the last several years, recent demand has been increasing. The 2013 cap was reached on June 11.  Therefore, employers should consider filing for needed FY2014 H-1Bs on the first day that petitions are accepted, and hiring should be planned in anticipation of a lack of H-1Bs.  It is not clear yet whether a lottery will be needed for FY2014, but all signs point to the cap being reached very quickly. Do not wait to plan your hiring needs. Consult early with your attorney and file as soon as possible.
 

On the heels of the immigration reform plan outlined by a bipartisan Senate group earlier this week, President Obama presented his own proposal for immigration reform in Las Vegas on January 29.   Although he promised reform in his first term, he believes that “now is the time.”   The bipartisan support is a good sign, the President said, expressing general agreement with the principles announced by the Senate group.

In his speech, the President discussed the moral and economic impacts of immigration reform.  The United States is a nation of laws and of immigrants, he said, and that once “we” were “them.”  His plan focuses on enforcement, legalization and family unity.

The proposal contains on four major themes, which will be fleshed out over the coming weeks:

Border Security:  The proposal will increase security at all ports of entry, fight trans-national crime, and attempt to eliminate visa and passport fraud.  Part of this will be done by creating liaisons with border communities.  Addressing the immigration court system to ensure there are enough judges will be a priority as will be providing help to those who cannot afford legal representation.

Employment Enforcement: Targeting employers who are “gaming the system” by hiring undocumented workers will be a key element of the program.  There would be mandatory E-Verify for all employers (with some exceptions) over the next 5 years and increased penalties for employers who violate the laws. (This may presage an increase in the number of I-9 audits nationwide.)  Employees will be given protection related to confidentially, due process and workers rights.

Earned Citizenship: The 11 million or so undocumented immigrants must be brought “out of the shadows” and put on a pathway to contributing to the economy and our nation, according to the President.  The individuals who qualify as DREAMers and certain agricultural workers would have an expedited path under his proposal.  All other qualified individuals would have to follow a procedure requiring background checks, English proficiency, and payment of fees and penalties.  Additionally, the backlogs for legal immigration must be eliminated before any of these individuals can begin the process to legalization.

Legal Immigration:  The proposal would work to eliminate the family and employment based visa backlogs by recapturing unused visas and temporarily increasing the annual visa allotment.  On an ongoing basis, the annual visa numbers allotted for family based categories would be increased by 15-20% and per country caps would be eliminated for employment based categories.  Also, STEM masters and PhD graduates would have a direct path to permanent residence so long as they have employment.  Finally, the President’s proposal would allow individuals to petitioner for same sex partners.

A more complete breakout of the president’s proposed plan can be found at: http://www.whitehouse.gov/the-press-office/2013/01/29/fact-sheet-fixing-our-broken-immigration-system-so-everyone-plays-rules.

The President promised to send a bill to the House for an up or down vote if the house cannot deliver its own bill in the near future.  He does not want this issue to be delayed by political paralysis, the White House said.  If passed, the proposed legislation would significantly impact employers’ ability to attract and retain the best and brightest for the benefit of the country.  Jackson Lewis will continue to keep readers informed on these developments.

On January 28, 2013, a bipartisan Senate group consisting of four Democrats (Charles Schumer of New York, Dick Durbin of Illinois, Robert Menendez of New Jersey and Michael Bennet of Colorado) and four Republicans (John McCain of Arizona, Lindsey Graham of South Carolina, Marco Rubio of Florida and Jeff Flake of Arizona) announced plans to introduce new immigration legislation.  The Senators said their bill will address securing the borders, verifying immigration status, and creating a path to citizenship for approximately 11 million illegal immigrants present in the U.S.
A 5-page “Bipartisan Framework for Comprehensive Immigration Reform”
(http://www.c-span.org/uploadedFiles/Content/Documents/Bipartisan-Framework-For-Immigration-Reform.pdf) summarizes the policies beingproposed. It addresses the following four goals:

  1. Create a tough but fair path to citizenship for unauthorized immigrants currently living in the United States that is contingent upon securing our borders and tracking whether legal immigrants have left the country when required;
  2. Reform our legal immigration system to better recognize the importance of characteristics that will help build the American economy and strengthen American families;
  3. Create an effective employment verification system that will prevent identity theft and end the hiring of future unauthorized workers; and,
  4. Establish an improved process for admitting future workers to serve our nation’s workforce needs, while simultaneously protecting all workers.

On January 25, 2013, President Obama met with leaders of the Congressional Hispanic Caucus to discuss the need to repair the “broken immigration system.”  On January 29, 2013 the President is scheduled to travel to Las Vegas to discuss his views on immigration reform.  See http://www.whitehouse.gov/the-press-office/2013/01/25/readout-presidents-meeting-congressional-hispanic-caucus-leadership.

The need to reinvigorate the U.S. immigration system has been on Washington’s agenda for some time.  In 2006, President Bush initiated an ambitious campaign for immigration changes, calling for securing the borders, facilitating a guest-worker program and implementing related legal reforms.  Immigration reform also was one of the main focuses of President Obama’s 2008 election campaign.  While the issue generated vigorous public debate, comprehensive change proved elusive.

Demographic changes among voters and their impact in the recent U.S. presidential election reportedly have helped stimulate efforts to reach a bipartisan solution.  Many employers here are pushing for change, too. The present immigration system hinders their ability to acquire and retain global talent.  In May 2012, the Partnership for a New American Economy and Partnership for New York City published the critical assessment, “Not Coming to America”  http://www.renewoureconomy.org/sites/all/themes/pnae/not-coming-to-america.pdf.  Its title seemingly a play on the name of a popular 1988 motion picture, the report compares varying immigration policies around the world and the effect of those policies on economic growth.  According to the report, more than 40 percent of Fortune 500 companies in the U.S. were started either by an immigrant or a child of an immigrant. But that entrepreneurial infusion, it warns, may be a thing of the past.  Now, arcane and sclerotic backlogs, low visa quotas and onerous bureaucratic procedures hinder the country’s business development. Today’s announced reform legislation would make it easier for U.S. employers to compete for global talent and grow the economy.

Further developments are expected soon.

The United States Citizenship and Immigration Services (“USCIS”) has spent the last four years creating a one-stop shop for all laws, regulations and policy guidance it administers or promulgates.  USCIS will soon unveil “version 1.0” of its effort. The on-line USCIS Policy Manual (“Manual”) will go live at www.uscis.gov later this month.  Although the Manual was developed primarily for use by USCIS adjudicators, the agency the Manual is expected to be accessed and used just as frequently by the immigration community.

USCIS Director, Alejandro Mayorkas on January 15, 2013, stated the intention of the Manual is to bring consistency, predictability and transparency to the legal authority and policies that drive USCIS petition adjudication.  Previously, to access the pertinent laws, regulations and policies related to a specific subject matter handled by the USCIS, one would have to pull from a number of different resources, independently housed by the issuing agency.  These resources included the Adjudicator’s Field Manual and a collection of memoranda, legislation, regulations and interpretive guidance coming from different agencies.  These materials will now be replaced by a centralized repository of all relevant policy guidance and legal authority.

According to the agency, the Manual strives to be user friendly, using logic and plain language to explain the rules.  The Manual will be organized sequentially from entry to naturalization and the topics will be presented by Volume – Part – Chapter and will be searchable.  Webinars on how to navigate the Manual as well as a short introductory video are available at www.uscis.gov.

For more information about the new Manual, go to uscis.gov or contact your Jackson Lewis immigration attorney.

With President Barack Obama’s inauguration and the start of his second term, the Administration is heralding yet another year of immigration compliance focused on sanctioning employers.  In recent remarks, the President stated that any immigration reform measures should contain penalties for companies that purposely hire undocumented workers.

The Administration’s focus on employer audits is not new.  Data from U.S. Immigration and Customs Enforcement (ICE) highlight how audits have become key to the Administration’s compliance efforts and illustrate their success.  In fiscal year 2012, ICE audited the I-9 forms of 3,000 employers.  Only 250 employers were audited in fiscal year 2007.  Along with the audits, the fines ICE assessed rose to $13 million in fiscal year 2012 from $1 million in fiscal year 2009.  The median fine in fiscal year 2011 was $11,000.  Managers of companies have been targeted as well—238 managers have been arrested in fiscal year 2011.  See http://www.dhs.gov/dhs-progress-2011-smart-and-effective-enforcement

While it may appear that industries which historically have hired immigrants for manual labor have been targeted, the audits actually result from random selection as well as leads from the public, other employers, and employees.  Brad Bench, a special agent in charge at ICE’s Seattle office, stated, “Geography is not a factor.  The size of the company is not a factor.  And the industry it’s in is not a factor.  We can audit any company anywhere of any size.”  ICE has audited stores; restaurants; bakeries; dairies; farms; and companies involved in manufacturing, construction, food packaging, janitorial services, and catering.

Employers should complete their I-9 forms accurately and audit them internally on a regular basis.  If ICE audits an employer, these records will be at the focus of the audit.  The Jackson Lewis Immigration Practice Group can assist employers with any questions related to I-9 completion, verification, recordkeeping, and audits.

In an effort to expedite visa processing for business travelers from Mexico, the U.S. State Department announced this month the expansion of its Business Facilitation Program (“BFP”) to all U.S. Consulates and Embassies in Mexico. To qualify for the program, participating employers in Mexico must meet one of the following requirements:

1) Be a branch, affiliate, or subsidiary of a U.S. company; or
2) Have at least 100 employees in Mexico; or
3) For companies with fewer than 100 employees, obtain a recommendation letter from the Mexico City American Chamber of Commerce (“AmCham”), Camara de Comercio de Mexico (“CANACO”), or Asociación Nacional de Importadores y Exportadores de la República Mexicana (“ANIERM”) certifying that the company has been a member in good standing and paid its dues to the organization for at least 3 years.

To apply for membership in the BFP, companies must complete a 2-page questionnaire, identity 2-4 authorized company signatories, and provide corporate documentation describing the company and its U.S. branch, affiliate, subsidiary, or U.S. clients. Upon review of the application by the U.S. Consulate or Embassy, the company may be asked to provide additional documentation or to schedule a meeting with the reviewing officer before the application is approved.

Once the company has registered successfully with the U.S. Consulate or Embassy in Mexico, company representatives can schedule appointments and complete visa applications on behalf of their employees who then will receive expedited treatment of their visa applications. Participating BFP companies are expected to track and monitor employees who travel on business under the program and may be audited for compliance with program requirements.

While eligible employees must be employees of BFP participating companies, the U.S. Consulate or Embassy may consider contractors on a case-by-case basis. Spouses and children of eligible employees also may obtain dependent visas under this program.

If you need assistance in applying for BFP membership or would like more information about the BFP, please contact your Jackson Lewis attorney.

Lawmakers return to Washington for the 113th Congress with comprehensive immigration reform once again moving to the front burner. Comments and proposals are being fielded by  prominent political figures, including former President George W. Bush http://trailblazersblog.dallasnews.com/2012/12/george-w-bush-debate-immigration-policy-with-a-benevolent-spirit.html/ and Senator Marco Rubio  http://online.wsj.com/article/SB10001424127887323442804578235844003050604.html.  These and similar calls for Congress to finally address the country’s immigration system, widely criticized as “broken” on both sides of the aisle, seem to be resonating with the White House, at least mildly http://www.washingtonpost.com/politics/citing-rubios-ideas-on-immigration-reform-white-house-sees-hope-for-bipartisan-deal/2013/01/15/d83f4102-5f48-11e2-9940-6fc488f3fecd_story.html.

The growth of bipartisan support for comprehensive immigration reform may move the Administration and Congress to initiate a new push to enact immigration reform legislation as early as this March.  Senate Majority Leader Harry Reid recently noted publicly that a bipartisan group of senators, led by Democratic Sens. Chuck Schumer and Dick Durbin and Republican Sens. John McCain and Lindsey Graham, have been crafting an immigration package and that this was to be “first thing” on the Senate’s agenda.  While the exact scope and language is still being discussed, all indications are that the Administration is looking to pass comprehensive legislation that addresses multiple elements of immigration reform.  Key elements of any comprehensive solution include: mandatory verification of legal status of newly hired workers, additional visa numbers for highly skilled immigrants and creation of a temporary guest-worker program.  Reform legislation also is expected to address the approximately 11 million individuals currently residing in the U.S. without legal status.

Employers have been grappling with a number of immigration-related issues, including increased government audits of I-9 records and heightened scrutiny on the use of temporary work visas.  Comprehensive immigration reform will have significant implications for all employers.  Employers should keep informed of proposed legislation in order to anticipate changes that could affect future hiring, staffing, and related workplace operations.

The current version of Employment Eligibility Verification Form I-9 (http://www.uscis.gov/files/form/i-9.pdf), which all employers must use when on-boarding new hires, expired on 8/31/2012.

USCIS announced a proposed new form for public comment on March 27, 2012 (http://tinyurl.com/aogxuy2), but after receiving thousands of comments and calls from stakeholders to extend the comment period, the expiration date passed with no final form release.  As a temporary fix, USCIS advises on their I-9 Central overview page that “until further notice, employers should continue to use the currently available form [even after expiration]…”  (http://tinyurl.com/c96fsr).

At long last, the release of the new version of the form is reportedly imminent, but with no concrete release date yet.  The Jackson Lewis Immigration Group is closely monitoring the situation, and we are developing a webinar that will be finalized once the form has been released.  Please stand by for additional details and the webinar announcement.

AUTHOR:  Melina Villalobos

Employers are well aware that just one work-related accident or illness can result in medical expenses, rehabilitation services, and liability compensation. This can be the case whether the accident or illness involves a legal or illegal worker. A recent Nebraska Supreme Court decision is a reminder that undocumented aliens also may bring workers’ compensation claims.  In Moyera v. Quality Pork International, 284 Neb. 963 (Jan. 4, 2013), the Nebraska Supreme Court held that the Nebraska Workers’ Compensation Act applies to undocumented aliens and these employees could be entitled to permanent total disability benefits (PTD benefits) for work-related injuries.  Indeed, courts in the following states have found that undocumented employees are covered by their state workers’ compensation systems:  (1) Florida, (2) Kansas, (3) Kentucky, (4) Maryland, (5) New Jersey, (6) North Carolina, (7) Ohio, (8) Oklahoma, and (9) Pennsylvania.  Thus, this is another reason for carefully managing the hiring process — to ensure that your workforce does not include aliens who are not authorized to work.

From a compliance standpoint, employers can avoid potential liability for PTD benefits for work-related injuries with an I-9 compliance audit accompanied by ongoing training initiatives aimed at preventing the hiring of employees who do not possess lawful work authorization.  Such initiatives should not be undertaken without the assistance of competent legal counsel to help navigate the murky waters of immigration compliance.   Jackson Lewis attorneys are available to assist employers with these immigration compliance issues and other workplace requirements.

The U.S. Citizenship and Immigration Services (USCIS) has announced that, as of January 4, 2013, it has received 22,769 petitions for temporary workers under the H-2B nonimmigrant visa program. This number counts toward the 33,000 H-2B cap for the first half of FY2013, which ends March 31.  Of this number, 18,996 are approved and 3,773 are pending petitions.

The H-2B non-agricultural temporary worker program allows U.S. employers to bring foreign nationals to the United States to fill temporary non-agricultural jobs.  Before requesting H-2B classification from the USCIS, the employer must apply for and receive a temporary labor certification for H-2B workers from the U.S. Department of Labor.

The cap for H-2B visas is set by Congress at 66,000 per fiscal year, 33,000 are allocated for employment beginning in the first half of the fiscal year (October 1 – March 31) and 33,000 are allocated for employment beginning in the 2nd half (April 1 – September 30).  Any unused numbers from the first half are rolled over for use during the second half of the year.  However, unused H-2B numbers are not carried over from one fiscal year to the next.

Employers should consider filing H-2B petitions before the cap for the first half of the fiscal year is reached.  Current holders of H-2B visas are not affected by the cap. USCIS will continue to process petitions to:

• Extend the stay of current H-2B holders
• Hire roe processors, fish roe technicians and/or supervisors of fish roe processing
• Hire H-2B workers in the Commonwealth of Northern Mariana Islands (CNMI) and/or Guam (provision will sunset on December 31, 2014)

Employers also should initiate the labor application process for the second half of the year now.

Employers may continue to file H-2B applications under the 2008 H-2B Rule until DOL’s 2012 H-2B Final Rule takes effect.  The 2012 H-2B Final Rule, published on February 21, 2012, would have taken effect on April 23, 2012, but was enjoined by a district court on April 26, 2012 (Bayou Lawn & Landscape Services, et al. v. Hilda L. Solis, 3:12-cv-00183 (MCK-CJK)).  The 2012 H-2B Final Rule would have significantly changed the H-2B visa program by imposing onerous and costly new conditions and requirements on H-2B employers.

The preliminary injunction raised doubts about the DOL’s underlying authority with respect to the H-2B program and DOL advised employers to continue to “file H–2B labor certification applications under the 2008 H–2B Rule, using those procedures and forms associated with the 2008 H–2B Rule for which the Department has received an emergency extension under the Paperwork Reduction Act.”  The agency acknowledged the doubts by stating, “…please be aware that this preliminary injunction necessarily calls into doubt the underlying authority of the Department to fulfill its responsibilities under the Immigration and Nationality Act and DHS’s regulations to issue the labor certifications that are a necessary predicate for the admission of H–2B workers.”

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 Group.