Posts Tagged ‘H-1B’

CIS Issues New Green Card (It’s Green!) and Other News

May 12, 2010

Well, I’m not sure if it is environmentally friendly, but it will now be green in color (see picture attached). The card will be issued for new permanent residents and replacement cards starting yesterday (May 11), and is chock full of additional security features.

Go to www.uscis.gov – it is the top news story – for more information.

And other news . . .

H-1B cap count

As of May 11, 18,000 “regular” and 7,600 “advanced degree” petitions have been filed against the numerical limits of 65,000 and 20,000 (respectively).  Remember that labor condition applications (LCAs) are taking at least a week, so don’t wait to the last minute to let us know if you need an H-1B.

Will IA’s “temporary” DL be OK for I-9?

If you understand the previous sentence, you are a human resources professional.

Iowa has changed its driver’s license issuing procedures so that, like many states, upon application you will receive a 30-day “paper” license and within that time will receive the “plastic” license good for the period of time to which you are entitled by law.  An example of the new driver’s licenses is attached.

We have confirmed with DOT that the “paper” license is a license, and will be valid for that purpose (at least they hope you will be able to board a plane outside of Iowa).  Since it has a photo, it will satisfy List B as an identity document on the I-9 form.  Although it will expire, typically we do not have to re-verify identity documents for I-9 purposes (thank goodness!).

So, as an employer trying to comply with the I-9 law, you can accept the temporary “paper” DL, so long as it appears to be genuine and relate to the person presenting it and is still valid at the time of the I-9 completion.  You will record the expiration date, but do not have to “tickle” that date (unless having a valid DL is a job requirement).

The harder question is what if you WANT to check for the “plastic” DL?  After all, the point of the new system is to catch terrorists, etc.  The information from the initial application is sent to a central location to be checked against all kinds of security databases.

Our employment lawyers tell us that so long as you implement this as a policy that applies to everyone or to a specific category that makes sense (and is not unlawfully discriminatory) that should be OK.

But really, when you think about it, if the person fails the security database check, we hope that someone with a badge is following up to remove that person to a more secure location . . .

If you have particular questions, we have employment lawyers here to help you.

Other laws of note

Early Retiree Reinsurance Program:

HHS recently released interim final rules outlining the Early Retiree Reinsurance Program established by the health care reform legislation adopted in March.  This is important for any employer that provides health benefits to early retirees (retirees between the age of 55 and 64).  The new rules require plan sponsors to apply for and be approved for the Program prior to submitting any claims for reimbursement from the federal government.  Plan sponsors of plans covering early retirees may begin applying June 1, 2010, regardless of whether they currently have a claim that would be eligible for reinsurance.  Given the limited availability of funds, HHS may stop accepting applications at any time.  Therefore, it is important that interested plan sponsors apply early.  Contact Susan Freed (SusanFreed@davisbrownlaw.com), one of our health lawyers, for details.

For small tax-exempt entities:

Until recently, tax-exempt organizations that had annual gross receipts of $25,000 or less had no Annual Information Return (Form 990 series – an exempt’s equivalent of an annual tax return) filing obligation.  Under the Pension Protection Act, however, even these smaller exempt organizations now must file an electronic “e-postcard” return with the IRS, or risk having their exempt status automatically revoked by statute.  Failure to file an e-postcard for 3 consecutive years will result in this automatic termination.   The e-postcard filing is very simple, and is done over the Internet.  For calendar year organizations whose 3rd skipped filing year ended December 31, 2009, their exempt status will be revoked May 15th.  Exempts that operate on a fiscal-year basis will have a later deadline depending on their required filing date, which is generally the 15th day of the fifth month after their fiscal year ends.  Contact Bill Boatwright (WilliamBoatwright@davisbrownlaw.com), one of our tax lawyers, for details.

And finally, the Arizona law  – legal analysis

I am not a Constitutional lawyer (although we have them in our firm), but I thought you might appreciate hearing the Constitutional argument against the Arizona “papers please” law from Crystal Williams, the Executive Director of the American Immigration Lawyers Association (only read this if you want to know what lawyers talk about among themselves):

One of the problems with debates on serious issues being played out in the media is that all sides, by necessity, make their arguments with shorthand and sound bites. The same is true, in spades, of the public discussion on Arizonas SB1070 immigration law.

Much of the debate centers around the laws requirement that law enforcement personnel demand immigration documents when they have reasonable suspicion that someone they have stopped might be undocumented. Proponents of the law often give the example of an Arizona driver who has been stopped for speeding and is unable to produce a valid driver’s license as an example of reasonable suspicion.

While that example makes for a nice sound bite, the reality is a little more complicated. If Arizona had meant to limit the circumstances to that, they readily could have written a law that said that if a person required to produce an Arizona driver’s license cannot do so, check for his proof of legal status. That would have been ethnically neutral, and would have avoided getting into the vague territory of “reasonable suspicion.” But they didn’t do that. Instead, they went much further.

The Arizona law requires law enforcement officers (including non-police civil servants enforcing municipal civil codes) to demand documents where “reasonable suspicion” exists that a person might be undocumented. Thus, if a county official goes to a home to cite the resident for the grass being too tall, or having too many people living in the house, or having a car on blocks in the yard, this obligation kicks in. Since there is no reason in these kinds of instances to look at a drivers license, what would create “reasonable suspicion” in this form of stop?

The legal definition of “reasonable suspicion” arises from a 1968 Supreme Court case called Terry v. Ohio. The court there said that, under the Fourth Amendment prohibition against unreasonable searches and seizures, an officer may “stop and frisk” a person if the officer observes “articulable facts” that make it “reasonable to assume” that the person is violating the law. Well, here, the “frisk” would be the demand for the documents. But what articulable facts could arise that would make it reasonable to assume that someone is in violation of immigration laws? THAT is the sticking point. In the vast majority of circumstances covered by this law, the ONLY articulable facts would be ethnically based–color of skin, accent, language. And THAT then triggers an issue under the Equal Protection Clause of the Fourteenth Amendment to the Constitution, which states “no state shall … deny to any person within its jurisdiction the equal protection of the laws”.

Modern law interpreting the Equal Protection Clause derives from the famous school desegregation case, Brown v. Board of Education. That case, and those that have followed it, have established that this Clause operates as a general restraint on the government’s power to discriminate against people based on their membership in certain classes, including those based on race and ethnicity. Because in the vast majority of the circumstances in which the Arizona law requires officers and officials to demand documents, the only possible articulable fact that would lead to the demand is ethnically based, the law conflicts with the Fourteenth Amendment.

It also is just plain against American values to engage in this kind of ethnic profiling.

There are those who argue that police develop “instincts” and “can identify patterns” that lead them to a reasonable suspicion based on their experience. Even assuming that that is true, and is not in fact based on subliminal prejudices, it would not be true here. The enforcement of this law is being assigned to state and local police and to civil servants, rather than to immigration officers. None of them have the experience to know what those patterns would be. Again, that leaves them with only ethnicity to serve as a guide. And, since the majority of ethnic minorities, including Latinos, in Arizona are in fact U.S. citizens or legal residents, ethnicity would not be a reliable basis even if such profiling were not morally repugnant.

(From AILA InfoNet Doc. No. 10051130 (posted May. 11, 2010)

No doubt this is headed for the courts.

Lori Chesser
Davis Brown Immigration Department Chair

REMINDER: “Deadline” for Filing H-1B Applications is April 1, 2010

March 4, 2010

H-1B status is a temporary, work-authorized status for individuals working in “specialty occupations”, which are occupations that require, at minimum, a bachelor’s degree in a specialized area.  The government limits the number of new H-1B approvals to 65,000 per fiscal year (and makes and additional 20,000 slots available to individuals with a master’s or higher degree from a U.S. institution of higher education).  This quota is referred to as the “H-1B cap” and, in most circumstances, only applies to individuals who are initially seeking H-1B status (it does not apply – in most instances – to individuals who have been in H-1B status and are seeking an extension or transfer to another employer).  In addition, some employers are exempt from this H-1B cap (such as institutions of higher education, nonprofit research organizations, and government research organizations).

All of the H-1B slots for the current fiscal year have been used. However on April 1st we can begin filing applications for the next fiscal year (which begins October 1, 2010).  With the exception of applications filed in 2009, over the past several years USCIS received more H-1B applications than slots available on the first available filing date, which subjects applications to a lottery system.  Therefore, it is important to file your H-1B application on April 1st.  Prior to filing the H-1B application, we must obtain an approved Labor Condition Application (LCA), from the Department of Labor (DOL).  This application is filed electronically online and in the past, would be approved instantly.  However, due to a new online system, the LCA approval is taking approximately one week to obtain.  Therefore, due to this delay, H-1B applications take longer to prepare than in past years.

Please contact our office immediately if you wish to sponsor an individual for H-1B status.

ALERT: Multiple Reports of H-1B IT Consultants Being Turned Away At Border

January 15, 2010

Over the past week there have been numerous reports of H-1B employees being turned away upon entry at airports in Newark, New Jersey and JFK in New York City.  Seemingly in response to the USCIS memo released earlier this week (Determining Employer-Employee Relationship for Adjudication of H-1B Petitioners, Including Third-Party Site Placements, Donald Neufeld, January 9, 2010), some H-1B employees that work for IT consultancy firms (employees that are hired by an IT consultancy firm and working at a third-party worksite) have reported being erroneously subject to expedited removal and forced to return to their home country.

Until we receive more details on the situation, we do not know if this is a new trend that we expect to see on a nationwide basis or if these were isolated events limited to these two ports of entry.  Therefore, until we know that this issue has been resolved, we recommend that all H-1B employees working for IT consultancy firms consult with your attorney prior to any international travel.

USCIS Issues Guidance on Employer-Employee Relationship Requirements for H-1B Petitions: Severely Limits Eligibility of IT Consultancy Firms and Other Third-Party Site Placements

January 15, 2010

Today a new USCIS memo was released that could severely limit the ability of IT Consultancy Firms to sponsor H-1B applicants.  Since April 2009, the government has been changing their interpretation of many aspects of the H-1B program, to the detriment of employers and prospective H-1B employees.  This is certainly due, at least in part, to the government’s new focus on fraud prevention in the H-1B program.  While we are certainly in favor of any new procedures or interpretations that could reduce fraud in the H-1B or any other program, we are discouraged by the fact that government is seemingly issuing new guidance in many aspects of the H-1B program without notice.  Furthermore, we are discouraged by the fact that their new interpretations are being followed inconsistently, to the detriment of legitimate H-1B employers, and are clearly causing excessive delays, uncertainty, and erroneous denials.

To qualify for H-1B status, one of the requirements is that an employer-employee relationship exist between the employer filing the H-1B application and the prospective H-1B employee.  The USCIS memo that was released today (Determining Employer-Employee Relationship for Adjudication of H-1B Petitioners, Including Third-Party Site Placements, Donald Neufeld, January 9, 2010) clarifies the definition of “employer-employee relationship” and what type of documentation can be used in order to prove that this relationship exists.  The memo states that the employer-employee relationship exists when the petitioner has the “ability to hire, pay, fire supervise, or otherwise control the work of any such employee” and the petitioner must be able to establish that it has the right to control when, where and how the beneficiary performs the job.

The memo lists a variety of documentation that can be used to prove that this relationship exists, and clearly states that the government will look at the totality of the circumstances (with no one factor being decisive).  In order to make this determination, the memo indicates that adjudicators will look to the following criteria:

1)      Does the petitioner supervise the beneficiary and is such supervision off-site or on-site?

2)      If the supervision is off-site, how does the petitioner maintain such supervision, i.e. weekly calls, reporting back to main office routinely, or site visits by the petitioner?

3)      Does the petitioner have the right to control the work of the beneficiary on a day-to-day basis if such control is required?

4)      Does the petitioner provide the tools or instrumentalities needed for the beneficiary to perform the duties of employment?

5)      Does the petitioner hire, pay, and have the ability to fire the beneficiary?

6)      Does the petitioner evaluate the work-product of the beneficiary, i.e. progress/performance reviews?

7)      Does the petitioner claim the beneficiary for tax purposes?

8)      Does the petitioner provide the beneficiary any type of employee benefits?

9)      Does the beneficiary use proprietary information of the petitioner in order to perform the duties of employment?

10)  Does the beneficiary produce an end-product that is directly linked to the petitioner’s line of business?

11)  Does the petitioner have the ability to control the manner and means in which the work product of the beneficiary is accomplished?

The government provides an example of an IT Consultancy Firm that hires an H-1B employee to work as a computer analyst and the Consultancy Firm contracts the employee to a third-party company to fill a core position to maintain the third-party company’s payroll.  In this scenario, the government indicates that the required employer-employee relationship does NOT exist.  The memo indicates that there is no qualifying relationship due to the fact that specific position was not outlined in contracts between the IT Consultancy Firm and the third-party client company; that the H-1B employee reported to a manager who worked for the third-party company; that the H-1B employee did not report to the IT Consultancy Firm for work assignments (but instead received them from the third-party company); the IT Consultancy Firm did not have control over how the H-1B beneficiary completed daily tasks; that the end-product that the H-1B employee worked on did not relate to the IT Consultancy Firm’s line of business; and that progress reviews were completed by the client company.  Many of these factors are typical in Computer Consultancy contracts, which is a great cause of concern.

Of additional concern is the requirement that the employer must document that the employer-employee relationship will exist for the duration requested on the H-1B application, and that an itinerary covering the entire period requested needs to be provided with the H-1B application.  Typically, IT Consultancy Firms assign employees to short-term projects and do not know which specific project the employee will work on once the initial project is complete.  Even if the IT Consultancy Firm is well-established with years of consistently placing employees on projects (without benching employees), that fact is that consultancy companies typically cannot determine exactly where an employee will be in two or three years.

These new developments are frustrating and could severely limit consultancy firms from utilizing the H-1B program.  We encourage you to contact us with any questions and will provide updates as they become available.

ICE Launches I-9 Audits

August 24, 2009

I could not wait to September to send the September update – so much is happening in Immigration Law lately.  Not too much of it is good . . .

H-1B Numbers Hold Out, but DOL Bungles LCAs

As you recall, every fiscal year 65,000 “cap-subject” H-1Bs are available, plus 20,000 for U.S. advanced degree holders.  This fiscal year (2009/10), fewer than 45,000 cap-subject H-1Bs have been received, leaving 20,000 still available.  This count has not changed much since April when the filing period started.  Obviously, the economy has affected H-1B filings as expected.

However, this is good news for those who now have jobs for H-1B workers – you can still file for them for any job starting October 1, 2009 or later.

The bad news?  Dept. of Labor, which is charged with administering the labor condition application program, has implemented a new “iCert” program.  Rather than the fabulous electronic filing system that we had – where LCAs were approved in a matter of seconds if completed correctly – we now have a dysfunctional system that is delaying H-1B filings for weeks.

The point of the new system was to allow for human review of the LCAs to prevent fraud.  We knew this would take longer, but no one expected the lack of functionality we are experiencing.

Because of a technical problem, the iCert system cannot verify tax ID numbers of many companies (even large, well-established companies).  This results in a denial of the LCA.  We then have to file information to verify the tax ID number with DOL.  Once they verify this, we have to RE-FILE the LCA – they will not just approve the wrongly-denied one.  This process can take days or weeks.

Bottom line:  If your company anticipates filing H-1Bs in the future, we suggest that you FILE LCAs NOW for expected positions.  Just like in the “good old days” of manually-filed LCAs, there is no need to have a person identified for an LCA, and you can indicate a range of salaries and designate multiple positions.  The LCA is valid for up to 3 years (as you specify).

If you have a valid LCA approved for a position, you can then plug the H-1B beneficiary into the approved LCA (and of course keep track of how many positions have been used on an LCA).

We would be happy to help you figure out a strategy that can work for your company so that a critical H-1B hire will not be delayed.

More H-1B Woe . . .

Just a head’s up to those filing H-1Bs:  The Immigration Service has an RFE problem this year.  “RFEs” are “requests for evidence”.  They are issued when the examiner believes that more information is needed to properly decide the case.  Usually we do not receive them for common H-1B applications, such as for computer professionals.  But this year, the majority of cases filed have received RFEs, and we have heard the same news from attorneys throughout the U.S.  We can overcome the RFEs but it has added to the H-1B cost and hassle for many clients.  I am involved in liaison efforts with the government through the American Immigration Lawyers Association, and we are working to help resolve this issue.  We are also adjusting our filing packets to make even more abundantly clear that the H-1B should be approved the first time.  But even so, this is not guarantee that an RFE won’t be issued.

R-1 Premium Processing Resumed

R-1 petitions for religious workers and ministers may now be filed with the additional $1,000 premium processing fee for adjudication in 15 calendar days IF the employer has been subjected to a site visit inspection previously.

Please keep in mind that the religious worker category is sun-setting Sept. 30, but we hope it will be extended as in years past. The religious minister category is permanent in the law.

EB Priority Dates

Per the August 2009 Visa Bulletin, the cut-off date for both the China-mainland born and India EB-2 categories is October 1, 2003, almost a four-year jump from last month.  We are following up on any cases that have now become current so that our clients have the best chance of being approved while the numbers are available.

The third preference and “other workers” employment-based categories remain Unavailable; all other categories are Current. EB-3 visa numbers worldwide and for India, China, and Mexico are expected to remain unavailable for the remainder of this fiscal year (which ends Sept. 30). The EB-3 category for India could remain unavailable indefinitely.

Last month the Dept. of State announced that the India and China EB-2 categories could become unavailable in August or September and remain unavailable indefinitely. DOS explained that there is a backlog of at least 25,000 India EB-2 cases awaiting visa numbers. Without legislative relief, the waiting time for Indian EB-2 applicants might be measured in years or even decades, according to DOS.

Demand for EB-4 (religious workers and ministers) is also high, possibly requiring a the establishment of a cut-off date, or the category becoming “Unavailable” for September. It is expected to return to “Current” in October, the first month of the new fiscal year.

This news is disturbing for applicants and highlights the urgent need for immigration reform.

Federal Contractors

It appears the Obama Administration intends to fully implement the e-Verify rule for federal contractors.  The target effective date is September 8. As you may recall, this rule was challenged in court, but so far, no injunction against implementation has been issued.

This rule affects companies who are contractors with the federal government under the Federal Acquisition Rules (FAR).  Language requiring the contractor to use e-Verify on all new and existing employees who will be working directly on a federal contract will be inserted into contracts after the effective date.

A phase-in period is allowed for initial implementation.  We can provide detailed instructions if this rule will affect your company.

No-Match Rule to be Rescinded

Back in the good news department, the Obama Administration is giving up on ICE “no-match” regulation.  The no-match saga began when ICE (the immigration enforcement agency) figured out that the Social Security Administration was sending letters to employers who were reporting wages for SSNs that did not match SSA records.  The reason was to clear up SSA records and attribute withholdings to the right person.

ICE decided this would be a good way to catch knowing hire violations.  So they issued a regulation providing strict and, in my opinion, unreasonable guidelines for companies to address the immigration status questions raised when a no-match letter was received.

Much push-back and federal litigation ensued.  After several rounds by the Bush Administration, the Obama Administration finally decided it was a losing battle. No word whether SSA will begin to issue no-match letters again.

If they do, please remember that a no-match letter still has immigration consequences.  Just because ICE doesn’t have a formal rule does not mean they will disregard how a company responds to a no-match letter.  If you receive one, please contact us to help you work through it to avoid later ICE problems.

New Visa Application Form Being Implemented

The Dept. of State is phasing-in an electronic visa application form, DS-160.  This form will be actually filed electronically with the consular post, rather than the current version (DS-156 and others) that is bar-coded electronically, but still must be physically filed with the consular post.

The form is currently required at 12 posts (some Mexican and Canadian posts, Dublin, Hamilton, Hong Kong, and Tripoli) and will soon be required at others (other Mexican posts and Australia to start).  Phase-in will likely be slow due to DOS server capacity.

VWP Emergency or Temporary Passports must be Electronic

DOS also recently announced that visitors allowed to enter without visas through the “visa waiver” program must have an electronic passport even if the passport is an emergency or temporary one.  An electronic passport is one that has an embedded computer chip that contains biometric information.

Travelers without an electronic passport may be subject to additional inspection or denied entry.  Medical and other emergency situations will be considered.

Whew! That is a big update. Please contact us if we can be of assistance.

UPDATE ON DEVELOPMENTS IN IMMIGRATION LAW AND PROCEDURE

June 23, 2009

The following is an update on developments in immigration law and procedure.

H-1B Cap Still Not Reached – But Stricter Standards Being Applied

How times have changed.  More than two months into the H-1B cap filing period and still more than 20,000 H-1Bs remain to be awarded of the available 65,000 “cap”.  For several years, these ran out the first filing day. Clearly the economic downturn has effected demand.  But this does provide an opportunity for companies to sponsor foreign workers that can help stimulate the economy through their unique job skills.  Remember that applications filed now for H-1B jobs will not take effect until October 1, 2009, if subject to the cap.

The Immigration Service has taken the opportunity of fewer H-1B filings to scrutinize those filings even more closely.  As some of our clients know, we are receiving extensive requests for evidence on some cases – even though we thoroughly document the cases as always.  It has been frustrating to see one employee receive an H-1B with no questions asked and another in the same job receive a big request for evidence.  But this is another example of the unpredictability of administrative law.

H-1B Investigations

Another new trend, which according to the Immigration Service will become more common, is the in-person investigation of H-1B applications.  Because of the increasing emphasis on fraud in all government programs (and especially the H-1B program), we have seen CIS officers come to the employer’s work site to question employees and obtain company records.  Iowa is on the leading edge of this trend because of an alleged scheme of H-1B fraud in the IT industry here.

If you receive a personal visit from CIS, here are some things to remember:

– These are CIS investigations, not ICE (or at least they have not been), and therefore are primarily fact-finding.

– You may (politely) refuse to answer questions until your attorney is present.  For example:  “We of course want to cooperate with you fully, but we would really like to have our attorney here, so can you please wait in the lobby until she arrives?”

– You can call us at any time to assist.  These inspections will likely occur during business hours, but feel free to call outside of business hours (cell numbers:  480-7115 – Lori, 554-7280- Amy, and 991-2783 – Nikki).  If we are too far away, we can find someone to attend the interview, or find some other way to handle this.

– Neither you nor your employee/prospective employee has done anything wrong by filing for an H-1B.  It is unnerving to have this experience, but it does not mean that the application will be denied.

– Employers should keep in mind obligations they may have regarding employee privacy.  If you have questions about employee privacy, we have experts at the firm who would be happy to answer them.  If you have concerns about releasing information requested, you can tell CIS that you need to check with counsel before releasing potentially restricted information.

Immigrant Visa Numbers Expected to Stall

The Visa Bulletin for July indicates that the EB2 waiting line stands at January 1, 2000, for India and China (the rest of the countries are current) and EB3 continues to be “unavailable” for all countries.  EB1 is “current” for all countries.

However, because of increased demand for religious worker (EB4) and investor (EB5) visas, the Department of State expects that visa numbers will move very slowly in the coming year (the new fiscal year starts October 1) unless the quotas are increased.

Only 140,000 employment-based (EB) visas are available each year in these categories and that includes spouses and children in addition to the sponsored worker.  Unused EB4 and EB5 numbers have been available to enhance the other categories in the past, helping general worker visa availability.

The EB1 category is for multinational managers and executives, outstanding professors and researchers, and persons with “extraordinary ability”.  We are happy to explore this category with anyone who believes that he or she qualifies.  Also remember that under “cross-chargeability” provisions, the country of birth of an accompanying spouse (and in very rare cases a parent) can be used instead of the country of the principal applicant if that would help escape a waiting line.  Other than these options, the only way for this situation to improve is to change the law.

Adjustment of Status Interviews Being Held Despite Backlogs

Given the backlogs discussed above, the Immigration Service has decided to adjudicate cases to the extent possible to remove deniable cases from the waiting line and to have approvable cases available to be finalized when the visa numbers progress.

Many applicants in the waiting line have received requests for evidence or interview notices.  This does not mean your case will be approved if a visa number is not available.

Interviews are scheduled for several reasons: to investigate a past criminal conviction, to evaluate the validity of a recent marriage, or to confirm the legitimacy of a job offer, for example.  If we receive the interview notice, we will send a detailed instruction letter and suggest a conference call to discuss how to approach the interview.  If you receive an interview notice and have not heard from us, please contact us.  Sometimes we do not receive government notices, although we are supposed to if we have a G-28 on file in your case.

To EAD or Not to EAD – That is the Question

Another consequence of the long waiting lines is that employment authorization document (EAD) and advance parole approvals must be renewed several times.  The Immigration Service is now approving most EADs in employment-based cases for two years, rather than one year.

Still, people who filed under the “old” rules, must pay a filing fee each time an EAD or advance parole is renewed.

It is true that if you are on H-1B (or L) and continue to work for the H-1B employer (and no other employer without an H-1B approval), you do not need the EAD or advance parole to maintain your status or to travel.

However, please be aware that if the H-1B employment ends, you will need an EAD to work anywhere else (unless the new employer is willing to transfer the H-1B) and an advance parole to travel outside the U.S.  These can take 90 days (or sometimes longer), during which waiting time you cannot work or travel outside the U.S.  Considering this, EAD and advance parole renewals may be reasonably-priced “insurance”.

Farewell to Gina Johnson

We will miss Gina, but wish her well as she moves to Texas to be closer to her family.  Thanks to Gina for all she did for our department and the firm!

Welcome Back Natalie!

The only way we can stand to let Gina leave is that Natalie Rivera is returning!  Natalie spent several months in El Salvador and fortunately for us was able to return right when Gina was scheduled to leave.  Natalie is also fluent in Spanish.

Employment Law Seminar Materials Available

If you missed our firm’s annual Employment Law Seminar and would like the materials, they are available in pdf format.  Just let us know and we’ll send them to you.

Obama Commits to Immigration Reform in 2009

April 10, 2009

Somewhat surprisingly, the Obama administration has stated that immigration reform will be on the plate this year – at least for debate. See http://www.nytimes.com/2009/04/09/us/politics/09immig.html?hp

Given the election cycle, many believe that if reform does not happen this year, it would not happen until 2011. Stay tuned.

H-1B Cap NOT Reached

In another surprise, only about half of the “regular” H-1B visa allotment was filled in the initial filing period (April 1 – 7). Therefore, all applicants for H-1Bs who filed in this window will have their cases adjudicated (and granted if found eligible). Interestingly, almost the entire allotment of 20,000 H-1Bs for persons who earned U.S. master’s degree were received during this same period. This shows that the demand for H-1Bs is tied to high skill levels.

What does this mean? First, if you have a potential employee for whom you could not apply during the initial filing period (whether bachelor’s or master’s degree – or Ph.D. for that matter), you can still apply until the cap is reached. CIS will announce the last day of that they will take cases and will conduct a lottery to award H-1Bs received on that day.

Second, anyone who was in valid OPT status when the H-1B was filed will automatically be allowed to continue working through September 30 (unless the case is denied before then) even if the EAD expires before that date (“cap gap” work authorization).

Finally, it means that the H-1B program is working as it should. When the economy is down, employers are less likely to seek foreign talent to fill positions. Critics of the program maintain that H-1Bs are used to find “cheap labor” rather than needed skills. If this was true, employers would be more likely to seek H-1Bs in economic downturns so as to save on wages.

New I-9 and Employer Handbook

As noted last week, the new I-9 form went into effect April 3. CIS also has published a new Employer Handbook (form M-274) http://www.uscis.gov/files/nativedocuments/m-274.pdf

The major change is that expired documents are no longer acceptable for I-9 purposes. This includes U.S. Passports or the new Passport Card.

The handbook clarifies many issues, such as when to re-verify an employee with an expiring document, and has been re-drafted to be more user-friendly.

However, CIS received numerous complaints about specific situations that are not covered in the form or handbook, but decided to proceed without amendment to address these items. Employers are again left with guesswork about how to correctly fill out this one page form.

Now is a good time to re-examine your I-9 policies to make sure they conform with the new rules and to review your I-9 procedures and training.

ICE Signals New Direction in Work Site Enforcement

Janet Napolitano, Secretary for the Department of Homeland Security, delayed a series of planned raids at the end of March to assess how and when the operations were being conducted. Sources say that this move signals a coming change in work site enforcement priorities that will focus on more on the employer and less on the worker.

This could mean more administrative audits or more management prosecutions – it is too early to tell. In the only major work site operation carried out so far under this Administration, several workers were arrested, but were later released and given work permits. This is a big change from the treatment of workers in Postville, Iowa, where most of the people released on humanitarian grounds following the raid of May 12, 2008, are still without work authorization and in ankle bracelets. Still, these actions are confusing.

Watch this space for further updates.

In Other News – for Employers

Employers interested in the new COBRA subsidy provisions can go to our website for a free FAQ that is updated as new information comes out. See:

http://www.davisbrownlaw.com/news/legalissues/view/index.cfm/03_11_2009_frequently_asked_questions_cobra_subsidies

As part of the economic stimulus bill, Congress extended the HIPAA privacy and security requirements to “business associates”. “Business associates” are individuals and entities that access health information in the course of providing services to a health care provider, health plan, or health care clearinghouse. Examples of clients who are business associates include information technology providers, attorneys, accountants, banks, collection agencies, third party administrators, and consultants. Previously, these business associates were only contractually obligated to comply with the HIPAA privacy regulations. Now they are required to comply not only with the privacy regulations but also the security regulations. Additionally, government enforcement efforts can now be directly targeted at the business associate.

New I-9 Form Implementation Delayed & H-1B Misinformation

February 3, 2009

The Immigration Service delayed the effective date of the new I-9 form that was to go into effect Feb. 2 for 60 days (until April 3, 2009).  They are taking comments on the new form until March 4, 2009.

Just as background, the I-9 form is to be completed for all new hires within 3 days of hire to document that the person is authorized to work in the United States.

Additionally, if a person’s work authorization expires, the I-9 must be updated or a new one completed to show that work authorization was extended.

The changes to the I-9 form were meant to conform to recent law changes and to make the list of acceptable documents smaller to prevent confusion for employers and to limit fraud.

Employers may continue to use the current version of the form, which is available (free of charge) at www.uscis.gov.
Stand Up for H-1Bs!

Those of you in Des Moines may have seen the front page AP story today decrying H-1B use by some of the banks given TARP money (and it may have run in other parts of the country as well).

While there can be misuse of any system, most people do not understand the H-1B program.  Sen. Grassley is calling for more regulation of H-1Bs (including prior recruitment, which we know will be expensive and time-consuming).

Those of you who have used the H-1B program and know that it is regulated enough and that it helps our economy by keeping jobs in the U.S. and keeping U.S. businesses competitive need to stand up and be counted.

Consider writing a letter to the Editor – or even better to Senator Grassley – about your experience with the program.  We need MORE H-1Bs, not more regulation.

Go to http://capwiz.com/aila2/home/ for an easy way to contact Congress.


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