On April 1, 2010, Secretary of Labor Hilda L. Solis announced DOL’s “We Can Help” campaign in Chicago, where she told an audience of union leaders and community members that the DOL “will not allow anyone to be denied his or her rightful pay — especially when so many in our nation are working long, hard and often dangerous hours." 

The nationwide "We Can Help" campaign, spearheaded by DOL’s Wage and Hour Division (WHD), is an outreach program directed at the nation’s low-wage and “vulnerable” workers, such as workers in construction, janitorial services, hotels, food services and home health care services industries. The program also addresses topics such as rights in the workplace and how to file a complaint with the WHD to recover wages owed. Additionally, the campaign underscores the awareness that wage and hour laws apply to all workers in the U.S. regardless of their immigration status. In conjunction with this enforcement program, DOL has added more than 250 field investigators nationwide to help in this campaign.

Additionally, the inter-governmental agencies’ concerted enforcement efforts should not be overlooked. An immigration worksite visit could potentially involve a concurrent or subsequent DOL WHD audit and vice versa. In DOL’s efforts to protect the “vulnerable” workers in the U.S., it is yet to be seen if DOL will follow the Immigration and Customs Enforcement (ICE)’s lead in potentially offering incentives to undocumented workers in order to gain cooperation from them to detect and determine an employer’s liabilities.

Forbes.com recently explored the pitfalls faced by foreign business visitors attempting to enter the United States on short-term trips. Jackson Lewis’ Global Immigration practice group Partners Davis Bae and Sean Hanagan were quoted extensively. To read the article, click:

www.forbes.com/2010/03/04/how-to-get-us-visa-lifestyle-business-travel-visit.html

 

The Extraordinary Ability (EB1) immigrant visa category, as the name suggests, is set aside for immigrants who possess extraordinary ability in their fields. Unlike the case of other visa categories, individuals in this category may submit petitions for themselves. It also avoids the backlogs in other visa categories and is commonly used by artists, entertainers and researchers. 

To qualify, an individual must provide evidence of (1) a one-time achievement that is of a major, international significance (the Nobel Prize is the standard example), or (2) at least three out of ten lesser types of accomplishments, as defined by regulations.

Although the regulatory framework has remained unchanged for years, USCIS has varied its interpretation of “extraordinary.” Recently, it has sought to impose requirements beyond those included in the regulations. Rather than accept evidence of three lesser accomplishments to show extraordinary ability, USCIS routinely has required applicants to prove how each accomplishment shows that they are extraordinary. 

For example, the agency required a researcher to show how his publications have changed the way researchers viewed the area of science, even though the regulations only require the applicant to have authored publications. In another instance, the applicant was expected to show that he was selected to conduct peer review because of his extraordinary ability despite the fact the regulations require only that the individual has done peer review. 

 

Kazarian v. USCIS may help check the USCIS’s excesses, at least in the Ninth Circuit. On March 4, 2010, the Court found "neither USCIS nor an [Administrative Appeals Office] may unilaterally impose novel substantive or evidentiary requirements beyond those set forth [in the regulations]." Specifically, the Court found improper the agency’s denial of a visa to Poghos Kazarian because of his failure to demonstrate the “research community’s reactions to his publications." Ultimately, Kazarian did not qualify for the visa, but the Ninth Circuit’s affirmation that USCIS cannot impose new requirements on applicants arbitrarily is a major win for Extraordinary Ability applicants. (The Ninth Circuit has jurisdiction over Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington.)

 

Start-up companies have always been a driving force in the U.S. economy. They are even more important in a down economy, as innovation drives job creation. While there are visa categories for entrepreneurs who invest their own capital, there is a gap in U.S. visa policy when it comes to entrepreneurs with great ideas who have established investors ready to back them financially. The current investor categories are limited by country of citizenship for temporary visas and by a minimum investment of $1 million ($500,000 in some cases) for green cards, making a permanent visa solution unlikely for the vast majority of would-be foreign national entrepreneurs in the United States. 

Senators John Kerry (D-Mass.) and Richard Lugar (R-Ind.) have introduced legislation proposing a new green card category for immigrant entrepreneurs who have secured at least $250,000 in funding from a qualified venture capitalist or “angel investor.” The bill is designed to drive job creation and increase the country’s global competitiveness by helping immigrant entrepreneurs secure permanent residence in the United States.

 

More than 160 venture capitalists from around the country have endorsed the bill, citing a restrictive visa policy that has forced many innovative entrepreneurs (and the corresponding creation of new jobs) to establish outside of the United States.

 

Jackson Lewis works with entrepreneurs and investors all over the world who wish to invest in the United States on opportunities which create jobs for Americans. If this bill is passed, the new visa category would substantially broaden the pool of potential investments for venture capital firms and help stimulate the U.S. economy. 

H-1B filing season is upon us again. The most often used work visa for Professional Workers is the H-1B. The H-1B has a limited availability of approximately 58,000 per year.  Despite the economy, these visas still are anticipated to be in high demand and become unavailable by the end of 2010.

Although, H-1B visas will be valid on October 1, 2010, a company may apply as early as April 1, 2010. Because of the high demand in this category, employers should file as early as possible. Indeed, the first week of April is recommended.

 

This H-1B quota applies to current or potential employees who are not in H-1B status, for example:

 

–          Employees currently in F-1 student status who are working on a limited duration work authorization;

–          Employees in TN, L, E or another status for whom the company may want to commence a green card process; and

–          Employees currently abroad who will move to a U.S.-based role in the fall.

 

Employees currently working based on H-1B status are not subject to this numerical limit, and therefore generally do not need to be concerned about this timing. 

 

Last year, the government did not meet the H-1B cap until December.  We anticipate that the filing window will be much shorter this year. Contact the Global Immigration practice group at Jackson Lewis as soon as possible to start the filing process.

New legislation that would expand penalties for employers who knowingly hire unauthorized workers has been introduced in the House of Representatives. The “Criminal Penalties for Unauthorized Employment Act of 2010” (H.R. 4627), introduced by Representative Frank Kratovil (D-Md.), would significantly increase imprisonment terms, criminal fines, and civil fines that can be levied against an employer or individual with “hiring authority.” A person with “hiring authority” is anyone who has “direct authority to make a decision to hire or to recruit or refer for a fee, an individual for employment.”

Currently, criminal penalties for knowingly hiring unauthorized workers apply only if a “pattern or practice” can be shown. An entity or individual may be fined $3,000 and an individual may be imprisoned for up to six months for the entire “pattern or practice.”

The proposed legislation would impose criminal penalties for each unauthorized worker, and criminal penalties would increase with each subsequent conviction:
– For a first offense, a fine of $2,500 and/or imprisonment of up to 1 year
– For a second offense, a fine of $5,000 and/or imprisonment for up to 2 years
– For a third or subsequent offense, a fine of $10,000 and/or imprisonment for up to 5 years

The bill also would increase the civil penalties assessed:
– For a first offense, a fine ranging from $1,000 – 5,000 (currently $250 – $1,000)
– For a second offense, a fine ranging from $5,000 – 10,000 (currently $2,000 – $5,000)
– For a third or subsequent offense, a fine ranging from $10,000 – 20,000 (currently $3,000 – $10,000)
 

 

Stay tuned as Jackson Lewis will continue to follow this legislation and update readers through this blog.

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.
 

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.

Many foreign workers are unaware of the immigration consequences of criminal pleading and plea agreements, especially with regard to crimes that many consider “minor” due to the minimal fines and lack of jail time. Unfortunately, not all criminal lawyers are aware of the immigration consequences either. For example, a plea agreement might be offered in response to a charge of possession of a nominal amount marijuana that would allow a U.S. citizen to pay a $200 fine and to walk away. However, the same plea deal can carry serious consequences for foreign workers, including the possibility of removal. Further, a U.S. citizen pleading guilty to a domestic dispute charge, which can be brought in many jurisdictions when a couple is observed engaging in a verbal altercation, may receive a mere 12-hour detention and possibly a nominal fine. A foreign worker, however, may face removal proceedings.

Discussing criminal issues directly with your employees may not be desirable, but new foreign workers should be advised of the fact that serious immigration issues can arise when they or their family members admit to a crime or accept a plea deal, even if the crime doesn’t seem “major.” Foreign workers should always consult immigration counsel if they or one of their family members are charged with any crime, especially before pleading or accepting any kind of plea deal.
 

Due to the dramatic increase in ICE worksite enforcement actions in 2009, employers are taking steps ensure their I-9 compliance, and utilizing such tools as internal audits, training, and implementation of I-9 software. I-9 software can often help to minimize the disorganization and clerical errors that can result in an absolute nightmare upon receipt of an ICE inspection notice. In response to growing employers’ compliance efforts, software companies are rushing “feature-rich” I-9 software packages to market. And while employers tend to scrutinize the user features available when selecting I-9 software, many are overlooking a vital feature – data security.

Once I-9 software has been implemented by your company, proper data security is required to protect your employees’ stored personal data. Minnesota state agencies using a Texas-based I-9 software provider with inadequate data security recently discovered that the personal data of nearly 500 employees may have been made accessible through the software provider’s web site, displaying employee names, dates of birth, hire dates, and Social Security numbers. This is a wake-up call to many employers that data security is a feature that cannot be overlooked when selecting I-9 software.
Employers should always ask their software provider to outline the software’s data security features. Compare them to features offered by other providers. Generally, you want to ensure that all user accounts are properly password protected, a sophisticated encryption method is used to encrypt the data, and if the data is stored remotely by the software provider, measures are taken to ensure that data is protected from external hackers and that the data is properly isolated to ensure that it is not erroneously accessed by another user.
I-9 software is an excellent tool to use in the quest for I-9 compliance, and a fear of a potential data compromise should not prevent you from implementation. Most software packages have adequate data security features, and a few have substantial ones. However, employers should be aware of the importance of data security when shopping for an I-9 software package, and should move data security to the top of their list of questions for their potential providers.