Employers who place workers at  multiple worksites, whether theirs or someone else’s, must include the assignment’s details to the Department of Labor (DOL) and the Citizenship & Immigration Service (CIS) on H-1B petitions.  As the nation’s workforce embraces alternative work modes  (e.g., remote workers, roving employees, and virtual office workers), foreign nationals  who are so employed  and their employer-petitioners face greater scrutiny than those petitioning for “traditional” work.

H-1B regulations require that an employer wishing to post an H-1B worker at multiple worksites must provide an itinerary that will cover the entire period of H-1B employment requested, specifying the amount of time the employee will spend at each worksite.  If the employer cannot establish that a qualifying employer-employee relationship will exist during the entire period sought, USCIS may limit a petition’s validity to periods of qualifying employment established by the evidence.  Therefore, it is critical that the petitioner be ready to provide a detailed work itinerary for the employee’s assignments for the duration of the proposed H-1B validity.

Jackson Lewis has a national team of expert H-1B attorneys who work with employers of all sizes to structure H-1B filings that comply with these regulations. We can assist employers with the drafting of clear itineraries and with documenting the appropriate employer-employee, controlling relationship required by CIS.

The Department of Labor (DOL) is launching an online registry to publish data from certified PERM and Labor Condition Applications filed via its online iCERT system.  The registry, expected to launch July 1, will include information about cases certified as far back as April 2009. New cases will be available as early as two business days after certification.  The registry will be a searchable database. Users will be able to pull up online information, as well as redacted PDF copies of the applications.  The DOL will redact employee names, employee personal information, employer FEINs and other sensitive information. The identities of employers who are sponsoring foreign nationals for employment and the positions involved, however, will be disclosed. As a result, the public will have more access to employment opportunities available by position, company, industry, and location.

Employers wishing to sponsor employees for nonimmigrant H-1B, H-1B1, E-3, H-2A and H-2B visa status for work in the U.S. must file a Labor Condition Application (LCA) with the DOL to attest to fair wage and labor standards. They must provide details regarding the occupation, working conditions, and work locations for which the employee is being sponsored.  Employers wishing to sponsor workers for permanent resident status in the U.S. often must start the process by filing a PERM Labor Certification Application with the DOL to attest that it has recruited for the position and cannot find any willing, qualified or able U.S. workers to fill the position. Both the LCA and the PERM applications are filed online (preferably), via the DOL’s iCERT database.

Jackson Lewis has a national immigration team that routinely navigates the iCERT system for daily PERM and LCA filings. We will continue to track the progress of this registry and will inform you when more is known about information to be made public.

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.