Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.

Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.


July 28‚ 2011

Immigration News Update for July 2011:
Recently Enacted or Proposed Immigration Policies

H-1B Cap Update

As of July 22, 2011, U.S. Citizenship and Immigration Services (USCIS) has received approximately 21,600 H-1B petitions counted under the fiscal year 2012 annual cap of 65,000, and 13,300 under a special quota of 20,000 for individuals with U.S.-issued advanced degrees. These H-1Bs become available when the government’s 2012 fiscal year begins on October 1, 2011.

As of this same date last year, approximately 26,000 H-1B cap-subject petitions were received, and 11,300 H-1B petitions for individuals with advanced degrees.

The availability of H-1B visas offers opportunities to identify valued employees who might benefit from a conversion of their current status to H-1B. These include foreign nationals in the U.S. in TN status, H-1B1 (Singaporean and Chilean citizens) status, or E-3 (Australian citizens) status, particularly those who may want to pursue permanent residence. With the extensive priority date backlogs limiting immigrant visa availability, many of these employees, because of their countries of birth, will have to maintain their nonimmigrant status and work authorization for years before they will be eligible for permanent residence. Once the permanent residence process reaches a certain stage, these employees are discouraged from traveling abroad because TN, H-1B1, and E-3 classifications do not permit “dual intent”—the intent to work temporarily while at the same time also applying for permanent residence.

If the employee in TN, H-1B1, or E-3 status cannot file an I-485 application because of priority date backlogs, he or she may not be able to travel for several years. Conversion to H-1B status solves this problem, because H-1B status specifically allows for “dual intent” such that the employee may maintain this status while also pursuing permanent residence. Generally, employees who are affected by the priority date backlogs are those in EB-2 classification who were born in India or China, or anyone in EB-3 immigrant classification (not to be confused with E-3 nonimmigrant classification) regardless of nationality. In addition to the benefit of dual intent, H-1B status may also be extended beyond the usual six-year limit for those whose permanent residence processing is timely commenced.

Employees in L-1 status may also benefit from conversion to H-1B. Although the L-1 classification permits dual intent, L-1 extensions beyond the usual limits, unlike H-1Bs, are not permitted based on commencement of permanent residence processing. By converting to H-1B status, however, the employee becomes eligible for unlimited annual extensions as long as the permanent residence process is timely commenced.

While H-1Bs continue to be available, cap-subject employers should consider the benefits of converting employees in other status classifications to H-1B.

Department of State Releases New DS-160 Nonimmigrant Visa Application

The Department of State (DOS) has released a new version of the Form DS-160 Nonimmigrant Visa Application. The DS-160 form is an online application form that is completed and submitted electronically in connection with nonimmigrant visa applications at all U.S. embassies and consulates around the world.

Individuals who have completed this form since it was introduced in 2008 and fully implemented in 2010 know that the form is quite lengthy and that the form often “times out” while the applicant is completing it, causing a loss of data and the need to start over. DOS claims that this “timing out” problem has been fixed on the new version of the DS-160. Another technical “fix” DOS indicated is coming is the ability to progress though the form without having to first complete each section. As of June 29, this fix does not appear to have been incorporated, but the ability to complete different sections of the form in any order—should this change materialize—will make the DS-160 much more user-friendly.

On the nontechnical side, the new DS-160 clarifies that the applicant—and only the applicant—must electronically sign and submit the DS-160 application. The only exceptions to this requirement are for applicants under 16 years of age and those physically incapable of completing an application. In these cases, the DS-160 may be completed and executed (i.e., electronically signed and submitted) by the applicant’s parent or guardian, or if there is no parent or guardian, by any person having legal custody of, or a legitimate interest in, the applicant.

Other changes on the new DS-160 include the addition of six new questions relating to possible grounds of inadmissibility.

U.S. Immigration and Customs Enforcement Continues Trend of Employer I-9 Investigations

Mintz Levin has previously reported on the trend of increasing worksite compliance initiatives by the government, and this trend shows no sign of slowing.

U.S. Immigration and Customs Enforcement (ICE) has initiated a new round of I-9 investigations, issuing notices of inspection to 1,000 employers across the United States. The agency has indicated that the emphasis is on “businesses related to critical infrastructure and key resources,” which includes sectors such as banking and finance, commercial nuclear reactors, dams, drinking water and water treatment systems, government facilities, information technology, telecommunications and transportation systems, among others.

These inspections seek to ensure that companies hire only individuals authorized to work in the United States, and they involve inspecting I-9 forms and the documents provided by employees to verify identity and employment authorization.

An employer typically has three days from receipt of the notice of inspection to produce the I-9 forms for review, and additional supporting documentation may be requested as well. If violations are found, ICE can impose a number of different penalties depending on the severity of the violation. These can range from fines to debarment from bidding for federal contracts to criminal charges in the most serious cases.

What can you do to prepare?

While there may be no way to prevent a notice of inspection from being issued, good I-9 policies and practices are essential to avoiding problems. It is critical that employers routinely conduct internal I-9 self-audits and engage in regular and systematic training of personnel with responsibility for I-9s to ensure that all I-9 forms and documentation are in order.

Mintz Levin is available to conduct I-9 audits and trainings at your offices and through webinars, which can reach all employees responsible for I-9 compliance throughout a multi-office organization.

In addition to these I-9 inspections by ICE, employers of foreign nationals are also subject to site visits by the Department of Homeland Security (DHS). In these site visits, DHS wants to confirm that the employer is a bona fide organization that knowingly filed the visa petition for its employee, and that the employee is actually working for the employer in the position that was the subject of the visa petition, and at the wage promised in the petition. Click here for additional information pertaining to DHS site visits.

Since DHS site visits and ICE notices of inspection can come without warning, and since noncompliant employers are subject to serious fines and penalties, it is critical that your immigration files are in order and that you are prepared ahead of time:

·         Ensure that your company has a designated point-of-contact in the event of a DHS visit or ICE investigation, and a back-up person to assume this function if the designated person is out of the office on the day of the visit, and ensure that the staff knows who the contact persons are.

·         Ensure that your immigration files are in good order, including (1) immigration documentation files, (2) H-1B Public Inspection Files, and (3) I-9 forms and supporting documents. These sets of files should be reviewed and updated annually.

·         Contact your Mintz Levin attorney immediately if you receive any communication about a visit or inspection from ICE or DHS.

·         Ensure that you check with your Mintz Levin immigration attorney if you anticipate making any changes to a sponsored foreign national’s position, job location, or wages. In some cases, amended visa petitions must be filed or labor condition application notices posted to keep your company in compliance.

Maryland’s Prince George’s County Public Schools to Pay Over $4 Million in Back Wages for H-1B Violations

The U.S. Department of Labor’s (DOL) Wage and Hour Division announced that Maryland’s Prince George’s County Public School system has agreed to pay over $4 million in back wages to more than 1,000 employees as a result of violations of the H-1B program. Because some of the violations were willful, the school system will also pay a civil penalty of $100,000 and be debarred for two years from using immigration programs. This debarment precludes not only filing new immigration petitions, but also extension requests for existing nonimmigrant employees and permanent residence petitions for foreign workers in any employment-based visa category.

DOL investigators found that the school system illegally reduced the wages of the H-1B workers by requiring them to pay fees that the school system was required to pay. H-1B regulations require that employers pay certain fees that cannot be passed on to the H-1B employee, including the $500 anti-fraud fee and the $1,500 (or $750 for small employers) ACWIA fee, which is used to train U.S. workers. Instead of paying these fees and other costs, the school system required the H-1B workers to pay them, which effectively reduced their salaries below the required levels.

H-1B workers must be paid the higher of the prevailing wage for the job in the area of intended employment or the “actual wage,” which is the wage that the employer pays to similarly employed U.S. workers. With limited exceptions, H-1B workers must also receive the same benefits offered to U.S. workers. DOL considers H-1B filing fees and any legal fees associated with filing H-1B petitions to be business expenses that should be borne by the employer. Any payment of these fees by the H-1B employee is considered an improper deduction from the required H-1B wage. It is also important to note that the $500 anti-fraud fee and the $1,500 ACWIA fee, which are paid to the government when filing an H-1B petition, may not be paid by the employee under any circumstance.

The Department of Labor takes wage violations in the H-1B program very seriously and all H-1B employers must be vigilant in complying with the wage requirements. Changes to the H-1B worker’s job or job location, if not properly handled can result in wage violations and any reductions in salary must be carefully assessed to make sure these don’t create violations as well.