Category: Immigration

Exercise Care When Terminating Employee Who Holds H-1B Status

If an employer doesn’t follow certain requirements when it terminates an employee holding an H-1B visa, then the employer could be surprised to learn that employee wasn’t properly terminated, and the obligation to pay that employee wages and benefits continues despite the attempted termination. As background, Department of Labor (DOL) regulations at 20 CFR §655.731 provide guidance regarding wage obligations relating to H-1B (“specialty occupation”) employees.  Employers are required to pay to H-1B visa holders the higher of the prevailing wage for the occupation, or the actual wage for the position, as confirmed in the Labor Condition Application (LCA) that the employer must file during the H-1B petition process.

This wage obligation even applies to H-1B nonimmigrants who have been “benched” or are no longer actively working for the employer.  When an employer terminates an H-1B employee prior to the expiration date of the employee’s H-1B status, DOL considers this action to be a form of benching the employee UNLESS/UNTIL the employer has taken the following steps to effectuate a “bona fide” termination:

STEP 1 – The employer must notify the USCIS that the relationship has been terminated (USCIS will then cancel the petition); and

STEP 2 – The employer must provide the employee with offer of payment for return transportation abroad [for these purposes, the term “abroad” is defined in 8 CFR 214.2(h)(4)(iii)(E) as the foreign national’s last place of foreign residence].

Although not required by regulation, it is also advisable for the employer to withdraw the underlying Labor Condition Application (LCA), as long as the terminated employee is the only employee who has been covered by that particular LCA.

Failure to take Steps 1 and 2 above may result in DOL’s requiring the employer to pay back wages commencing on the date of attempted dismissal and continuing until the date upon which DOL determines that the termination has been perfected.

Note that these regulations do not apply to an H-1B employee who has voluntarily terminated his/her employment prior to the H-1B expiration date. Termination by the employer launches these stringent requirements.  In reality, many terminated H-1B employees are able fairly quickly to secure new employment and to transfer their H-1B sponsorship to the new employer; however, these two simple steps should shield the original H-1B sponsor from potential back-pay obligations.Article By

ARTICLE by Nancy M. Lawrence of Odin, Feldman & Pittleman, P.C.
© 2015 Odin, Feldman & Pittleman, P.C.

2016 H-1B Filing Season Is Here

Now is the time for employers to assess their FY2017 H-1B needs and to start preparing their petitions for submission on April 1.

On April 1, 2016, US Citizenship and Immigration Services (USCIS) will begin accepting cap-subject H-1B petitions for fiscal year 2017 with an employment start date of October 1, 2016. We recommend that employers send all H-1B petitions subject to the FY2017 cap to USCIS on March 31 so that USCIS receives them on April 1. USCIS will reject any cap-subject H-1B petition that it receives before April 1.

USCIS has a quota of 65,000 cap-subject H-1B visas each fiscal year. A separate allotment of 20,000 H-1B visas is available to foreign nationals who hold a master’s degree or other advanced degree from a US institution of higher education. As indicated in the table below, demand for H-1B visas has fluctuated in past years. A few years ago, it took months to reach the cap; recently, in 2014 and 2015, the cap was reached within the first few days of filing. Although it is not possible to predict with complete accuracy what the demand for H-1B visas will be this year, an improving economy and an increasing demand for qualified workers, especially in the information technology industry, strongly suggest that demand will be high and that the cap will be reached again very early this year, possibly within a week of April 1. Employers should therefore submit their cap-subject H-1B petitions as early as possible.

Year    

Date H-1B Cap Reached

2009 (FY2010)

December 21, 2009

2010 (FY2011)

January 26, 2011

2011 (FY2012)

November 22, 2011

2012 (FY2013)

June 11, 2012

2013 (FY2014)

April 5, 2013

2014 (FY2015)

April 7, 2014

2015 (FY2016)

April 7, 2015

By law, 6,800 of the 65,000 H-1B visas are allocated as H-1B1 visas to nationals of Chile and Singapore.

Only petitions filed on behalf of foreign nationals who have not previously been counted against the H-1B cap in the last six years are subject to this year’s H-1B cap. Accordingly, most H-1B change of employer petitions are not subject to the cap. H-1B petitions for foreign nationals employed by institutions of higher education, nonprofit research organizations, or for employment at governmental research organizations are not subject to the cap.

How This Affects You

Employers should review the immigration status of their current and potential foreign national employees and identify any individuals for whom H-1B status would be beneficial. These individuals include the following:

  • Recent graduates employed in F-1 status and candidates abroad who are subject to the annual H-1B cap

  • Candidates in some other nonimmigrant status (e.g., L-1B) who are approaching the maximum limits of their status and would benefit from a change of status to H-1B

  • Candidates in another nonimmigrant status who work for a different employer and would require an H-1B visa to change jobs

  • Candidates in TN, E, or H-1B1 status for whom an employer is considering pursuing permanent residence

Note that if the limit on H-1B visa numbers is reached on any one of the first five business days of the cap season, all petitions that USCIS receives between Friday, April 1 and close of business on Thursday, April 7 will still be accepted, but their selection for adjudication will be subject to USCIS conducting a lottery among them. USCIS has held a lottery for the last three years, and it is likely that it will do so again this year.

Article By Eleanor Pelta, Eric S. Bord, A. James Vázquez-Azpiri, Roland C. Lechner, Lisa Stephanian Burton & Tracy Evlogidis of Morgan, Lewis & Bockius LLP
Copyright © 2015 by Morgan, Lewis & Bockius LLP. All Rights Reserved.

Year End Brings Major Changes to US Visa Waiver Program

Included in the 2016 Consolidated Appropriations Act (HR 2029), signed into law on December 18, 2015, were significant changes to the Visa Waiver Program (VWP). These changes will require “e-passports” of all VWP travelers and additional security standards. This follows “enhancements” to the program announced by the Obama Administration at the end of November.

The VWP permits visa-free travel for 20 million visitors per year to the United States for citizens of 38 program partner countries around the world. VWP visitors are admitted to the US as tourists or business visitors for 90 days. VWP countries include those in Western Europe, Australia, Chile, Japan, New Zealand, Singapore, South Korea and Taiwan. Every prospective VWP traveler undergoes counterterrorism screening and must receive approval through DHS’ Electronic System for Travel Authorization (ESTA).

The Consolidated Appropriations Act imposes new restrictions to VWP eligibility for certain individuals who:

  1. Have been present in Iraq, Syria, Iran or Sudan (or other countries designated by the Secretary of Department of Homeland Security (DHS) as supporting terrorism or countries “of concern” as designated by the Secretary) at any time on or after March 1, 2011. The law exempts those performing military service in the Armed Forces of VWP countries or those who carry out official duties in a full-time capacity in the employment of a VWP country government. DHS may also wave exclusion from the VWP program if it would be in the law enforcement or national security interest of the US.

  2. The Act also excludes VWP individuals who are nationals of Iraq, Syria, Iran or Sudan.

  3. All participating VWP countries must issue electronic- and machine-readable passports.

These new restrictions are more expansive than may be apparent and could result in unintended consequences for not only nationals of VWP countries, but US citizens, as well. It is important to note, nationality typically depends on the laws of the designated country. For example, an individual born in Iran but holding German nationality and a German passport may now be excluded from the VWP even if they have not visited Iran for many years and does not possess an Iranian passport.

As the impact of these changes play out over the next several weeks and months, we could see retaliation by VWP countries that restrict visa waiver travel for certain US citizens. Stay tuned and Happy New Year.

ARTICLE BY Gregory A. Wald of Squire Patton Boggs (US) LLP
 © Copyright 2015 Squire Patton Boggs (US) LLP

USCIS Visa Bulletin Coming January 2016

On December 14, 2015, USCIS released an updated Visa Bulletin chart listing the dates to file adjustment of status applications starting in January, 2016.  Applicants can use the charts issued by USCIS as a guide to determine whether visas in particular categories are available for them and whether they are eligible to file I-485 adjustment of status applications.

As we previously reported, earlier in September 2015, USCIS and DOS revised the procedures for determining visa availability for individuals looking to file adjustment of status applications.  The Visa Bulletin now has two categories of cut-off dates:

  • Application Final Action Dates (dates when visas may finally be issued); and

  • Dates for Filing Applications (earliest dates when applicants are eligible to apply).

The two categories listed in the Visa Bulletin are Family-sponsored immigrant visas and Employment-based immigrant visas.  The Visa Bulletin charts jointly released from USCIS and Department of States are listed below[1]:

January 2016

DATES FOR FILING FAMILY-SPONSORED VISA APPLICATIONS

Photo 1

As indicated in the chart for Family-Sponsored visa categories, applicants may use the Dates for Filing Visa applications chart for January 2016.

Recent Procedural Changes by USCIS

On October 14, 2015, USCIS again changed its instruction for the adjustment of status process[2]. Under the new guideline, applicants will only be permitted to use the Dates for Filing chart if USCIS first determines there are more immigrant visas available for a fiscal year than available applicants.  This decision is made each month by USCIS, and applicants must use the Application Final Action Dates chart unless USCIS states otherwise.  The Visa Bulletin in January 2016 reflects this newly implemented instruction, and applicants must use the Application Final Action Dates.  The chart below lists the dates for Employment-Based preference visas:

APPLICATION FINAL ACTION DATES FOR EMPLOYMENT-BASED PREFERENCE CASES Photo 2

Article By Ian R. Macdonald of Greenberg Traurig, LLP
©2015 Greenberg Traurig, LLP. All rights reserved.

[1] See Dept of State, Visa Bulletin For January 2016, Number 88, Vol. IX, available at  http://travel.state.gov/content/visas/en/law-and-policy/bulletin/2016/visa-bulletin-for-january-2016.html; see also USCIS, When to File Your Adjustment of Status Application for Family-Sponsored and Employment-Based Preference Visas: January 2016, available at:  http://www.uscis.gov/visabulletin-jan-16.

[2] USCIS, Updated Instruction for Using the DOS Visa Bulletin, available at http://www.uscis.gov/news/updated-instruction-using-dos-visa-bulletin.

January 2016 Visa Bulletin Update

The Department of State’s (DOS) January 2016 Visa Bulletin showed minor movements in the employment-based visa categories. The most significant movement was in the Indian EB-2 category which advanced by another 8 months, to Feb. 1, 2008 (the December 2015 bulletin showed a 10 month jump). There was also movement in the Dates for Filing in the employment-based categories, except in both of the “All Chargeability Areas” and “Mexico” EB-3 and Other Workers categories, which moved from Sept. 1, 2015, to Jan. 1, 2016.

The January Visa Bulletin also advised about the upcoming, scheduled expiration of the immigrant investor pilot program (EB-5 Visas) on Dec. 11, 2015, unless Congress acts to extend these programs. The Visa Bulletin states that no I5 visas may be issued overseas, or final action taken on adjustment of status cases, after Dec. 11, 2015. The cut-off date for this category has been listed as “unavailable” for January. Congress is currently considering an extension of the I5 visa category, but there is no certainty when such legislative action may occur. If there is legislative action that extends this category for FY-2016, the cut-off dates would immediately become “current” for January, for all countries except China-mainland born I5.

Final Action Dates for Employment-Based Preference Cases

imm blog 1

Dates for Filing of Employment-Based Visa Applications

imm blog 2

Article By Patricia A. Elmas of Greenberg Traurig, LLP

©2015 Greenberg Traurig, LLP. All rights reserved.

Department of Homeland Security Seeks Comments for New ‘Smart’ Form I-9

For its proposed 13th iteration, the I-9 form is getting “smart” new features. The suggested changes to the form from the Department of Homeland Security include:

  •  Validation of certain fields to ensure the entered information is correct;

  • Helpful on-screen text for various fields;

  • Space to enter more than one preparer or translator;

  • Drop-down menu for the list of acceptable documents to cut down on entry errors;

  • A dedicated notes area for information employers now have to note in the margins;

  • A QR code to facilitate ICE audit reviews;

  • Replacement of the “other names used” field with “other last names” used; and

  • Provision of either I-94 or foreign passport, instead of both.

While the “smart” form will facilitate on-screen data entry and completion of the Form I-9, it is not an electronic form. After completion, employers not using an electronic I-9 system will have to print out the Form I-9 for signature by the foreign national and the employer.

Public comments on the revisions will be accepted through January 25, 2016, here. After USCIS reviews the comments and makes changes it deems appropriate, it will publish a second notice in the Federal Register. After that, the public has 30 days to provide comment before the regulation becomes final.

The current I-9 form expires on March 31, 2016. After that date, USCIS will have to extend the validity of the current form or introduce its new form.

Article By Nicola Ai Ling Prall of Jackson Lewis P.C.

Jackson Lewis P.C. © 2015

Supreme Court Rejects States’ Request for 30 Day Filing Extension on DACA, DAPA

On Tuesday, December 1, the U.S. Supreme Court handed the Obama administration a “small procedural victory” and refused the request of Texas and other states for a 30-day extension to file briefs in support of the lawsuit blocking the Obama administration’s immigration executive action on DACA and DAPA. Instead, the Court accepted the Justice Department’s eight day extension request. The Supreme Court will likely decide in January whether or not to hear the case this term. If the Supreme Court hears the case during the current term, the decision would likely be published in June, providing quite the fan-flaming event during the 2016 presidential election.

The lawsuit itself is related to President Obama’s executive action expanding the Deferred Action for Children and creating Deferred Action for Parents (of U.S. Citizen or permanent resident children).

On Monday, over 220 organizations filed in favor of lifting the injunction on the executive action. These groups focused on the tangible benefits of expanding DACA and implementing DAPA and left the legal arguments to the Department of Justice.

Article By Immigration Practice at Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
©1994-2015 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.

Client, Staffing Agency and E-Verify: What’s Permissible?

E-Verify LogoCompanies facing an I-9 audit by Immigration and Customs Enforcement (ICE) can be subject to heavy fines and penalties. Some companies that use staffing agencies may especially be concerned about their potential liability, particularly if they believe, after Browning-Ferris, they may be considered a joint employer with their staffing agencies due to the specific facts of the contract.  Can such a business, for its protection, demand that the staffing agency use E-Verify for all individuals placed with the client?

The issue of whether a business may demand that the staffing agency use E-Verify for all staffed individuals implicates the I-9 anti-discrimination provisions that the Department of Justice enforces.  A staffing agency may enroll in E-Verify as an employer or as an E-Verify employer agent with limited participation of hiring sites, but may not designate those hiring sites based on the national origin or citizenship status of employees hired at those sites. If the staffing agency only uses E-Verify at certain sites, it may create the appearance of a discriminatory practice, leading to complaints by employees.

Despite that, a recent TAL, a technical assistance letter, provided general guidelines for staffing agencies in this situation. It first reiterated compliance with the anti-discrimination provisions is required, but also stated that, to the extent E-Verify is used selectively by the staffing agency to meet the client’s demands for reasons “wholly unrelated” to the workers’ citizenship status or national origin, it likely will not violate any anti-discrimination provisions. As with guidance on other employment issues to employers, careful written documentation of the client’s legitimate reasons for the request, wholly unrelated to the citizenship status or national origin of the workers, is essential.

Article By Doreen D. Dodson of Polsinelli PC

© Polsinelli PC, Polsinelli LLP in California 

December Visa Bulletin Shows Little Movement But Contains Projections for Future Movement

The Department of State’s (“DOS”) December 2015 Visa Bulletin showed minor movements in the employment-based visa categories.  The most significant movement was in the Indian EB-2 category which advanced  by 10 months to June 1, 2007.  All other employment-based categories showed slow advances by few weeks, except for Mainland China EB-3 and Other Worker categories that advanced by 10 weeks to April 15, 2012, and by 12 weeks to August 1, 2006, respectively.  There was no movement in the Dates for Filing in the employment-based categories.

The December Visa Bulletin contained the following additional information:

  1. The Bulletin advised about the upcoming scheduled expiration of the non-minister special immigrant program and the immigrant investor pilot program (“EB-5 Visas”) on December 11, 2015, unless Congress acts to extended these programs.

  1. The Bulletin contained a prognosis of visa movement in the coming months.  For the employment-based visa categories, possible movements are as follows:

  1. EB-2 China:  Little or no movement

  2. EB-2 India:   Up to eight months

  3. EB-3 China:  Rapid forward movement with possible “corrective” action as early as April, 2016

  4. EB-3 India:  Up to three weeks

  5. EB-3 Philippines:  Four to six weeks

  6. EB-5 China:  Slow forward movement

  1. New 9 FAM-e.  The Visa Bulletin announced that on November 18, 2015, the printed Volume 9 of the Foreign Affairs Manual will be replaced by the 9 FAM-e and as of that date the e-version will become the authoritative source for visa guidance.  The new e-version overhauls language and organization of Volume 9 of the FAM, but does not alter the substance of the old printed version.

Final Action Dates for Employment-Based Preference Cases

december visa bulletin

Dates for Filing of Employment-Based Visa Applications 

december visa bulletin

Article By Shaoul Aslan of Greenberg Traurig, LLP
©2015 Greenberg Traurig, LLP. All rights reserved.

Customs and Border Protection Announces Expansion of Global Entry to UK Citizens

On November 3, the US Customs and Border Protection (CBP) commissioner announced the expansion of Global Entry to UK citizens. Global Entry, a CBP Trusted Traveler program, allows for expedited clearance of preapproved, low-risk travelers. As an added benefit, Global Entry members are also eligible to participate in the TSA Pre✓ expedited screening program.

The registration process is quite straightforward. UK citizens will apply through the UK Home Office’s website and pay a £42 processing fee. Successful applicants will receive an access code to enter when applying for Global Entry through CBP’s Global Online Enrollment System. The nonrefundable application fee for a five-year Global Entry membership is $100, and applications must be made online. Once an application is approved, a CBP officer will conduct a scheduled interview with the applicant and make a final eligibility determination. Although no traveler is guaranteed expedited screening, this expansion should facilitate travel for low-risk travelers from the UK significantly.

Similarly, US citizens are eligible to apply for the UK’s trusted traveler program, Registered Traveller. Members enrolled in Registered Traveller may use e-gates at airports in the UK. The service costs £70 to apply and an additional £50 a year thereafter. If an application is unsuccessful, the applicant will receive £50 back. To qualify for Registered Traveller, a US citizen must make four trips to the UK per year.

Article By Eleanor Pelta, Eric S. Bord, A. James Vázquez-Azpiri, Lisa Stephanian Burton, Tracy Evlogidis & Roland C. Lechner of Morgan, Lewis & Bockius LLP

Copyright © 2015 by Morgan, Lewis & Bockius LLP. All Rights Reserved.