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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.
Please
contact a member of the Mintz Levin Immigration Section for additional
information.
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