Immigration Blog

Artisanal Work Visas as contemplated by the "Gang of 8"

David S. Jones — Fri, 07 Jun 2013 11:43:37 -0800

AUTHOR: Kevin Lashus.

Many employers traditionally have relied upon H-2B visa holders to augment their permanent workforce during seasonal and peak-load cycles simply because they cannot find U.S. citizen and Permanent Resident workers to handle the temporary assignments. The H-2B temporary program generally allows U.S. employers who meet specific regulatory requirements to bring foreign nonimmigrant workers to the United States to fill temporary nonagricultural jobs.

Before requesting H-2B classification from the U.S. Citizenship and Immigration Services (USCIS), the employer must apply for and receive a temporary labor certification for H-2B workers from the U.S. Department of Labor (DOL) by demonstrating that there are no U.S. workers and that the wages will meet the prevailing U.S. wages for the position. As previously noted on our blog and as a result of at least three court cases, on April 22nd, DHS and DOL temporarily halted processing until such time as they were able to issue a joint interim final rule (immediately effective) that establishes a new methodology for calculating prevailing wages. DOL resumes issuing prevailing wage determinations, and USCIS resumes adjudicating H-2B visa petitions. DOL will also now re-determine a “new” prevailing wage and will mail those determinations to employers—even those currently participating in the program. The “new” wage will be significantly higher than that originally issued—clearly a broken system for employers that must rely upon the H-2B visa holders to get the job done!

It appears the “Gang of 8” in the Senate recognizes the limitations of the existing system. S.744 contemplates H-2B reform: adding an exemption so that returning workers don’t count against the 66,000 annual cap, among other items.

More importantly, the proposed reform creates a new visa category: the W-visa. It covers any occupation where typical preparation is less than a four-year university degree (or equivalency). In other words, a nonimmigrant may now qualify for skilled and unskilled occupations W-visa status is a “dual intent” classification, meaning, the W-visa holder can also seek permanent residency.

To request a W visa, an employer will register a position with the State Workforce Agency as well as on a new DOL website listing job postings nationwide. The employer will certify that it is unable to fill the position based upon recruitment results. Once a position is registered, an employer does not need to do any specific additional recruiting or take any other steps during the three-year registration period to activate the registered slot and hire a W-visa holder. W-nonimmigrants must obtain status initially by becoming a “certified alien” through a State Department consular post outside of the U.S., but may extend status in the U.S. or renew a W-visa in three-year increments.

The proposed bill will cap visas during the first four years of the program at 20,000, 35,000, 55,000, and 75,000. W-2 spouses may also be provided work authorization. After the initial four years, the visa cap will hover—controlled by a congressionally-mandated formula—between 20,000 and 200,000 visas.

Additional allocations may be made for meat trimming, poultry trimming and fish cutting occupations.

More encouraging, employers may utilize the existing processes to petition for their W-visa holders to remain in the United States as immigrants. The cap will initially set at 56,000 available immigrant visas for these workers.

Employers relying upon the H-2B visa category may rest much easier if the proposed W-visa category is signed into law.

ICE Met with Pushback in Efforts to Enhance I-9 Civil Penalties

David S. Jones — Tue, 04 Jun 2013 11:22:49 -0800

AUTHOR: Harry J. Joe.

Immigration and Customs Enforcement’s efforts to obtain enhanced civil penalties against employers for Form I-9 violations has met with resistance from the Justice Department’s Office of the Chief Administrative Hearing Officer (OCAHO) in two rulings issued on March 18, 2013.

In the first, United States of America v. Siam Thai Sushi Restaurant, d/b/a Four Siamese Company, Inc., OCAHO Case No. 12A00058, ICE sought aggravated civil penalties by arguing that the employer lacked good faith because the Form I-9s for 18 employees were not completed and produced until four days after a Notice of Inspection had been served on the employer, rather than the three days allowed.. The employer conceded liability for its failure to timely verify the employment eligibility of its employees, although it argued it was unaware of the employment verification requirements and that the proposed enhanced fine would cripple its small business.

While agreeing with ICE that the employer’s failure to timely complete the I-9s were serious violations, the OCAHO Administrative Law Judge (ALJ) disagreed with ICE’s view that the respondent lacked good faith, even though the belatedly produced I-9s contained substantive errors and were incomplete. “[N]either the fact that an employer’s I-9s are missing nor that they are defective is sufficient to show a lack of good faith…,” the ALJ concluded. A failure of compliance based on ignorance of the law is accordingly insufficient to establish bad faith… Absent evidence of culpable conduct that goes beyond the mere failure to comply with the verification requirements there has been no showing that Siam Thai lacked good faith.” ICE’s attempt to impose enhance civil penalties on the basis of lack of good faith was denied.

In United States of America v. Seven Elephants Distributing Corp., OCAHO Case No. 12A00031, ICE sought aggravated civil penalties for 33 flawed I-9s in each of which Section 2 was completed improperly and for the employer’s failure to complete an I-9 for another employee (only 7 of the affected 34 employees were found to be unauthorized workers). The ALJ stated that while it was entirely appropriate to enhance a civil penalty based on the undocumented status of an employee, this is true only with respect to the I-9 form for the specific employee who is found to be unauthorized. However, the ALJ said, “It is… inappropriate to aggravate penalties for all the violations across the board based on the presence of some unauthorized individuals in the workforce.” Therefore, enhanced civil penalties were assessed only for the defective I-9s for the seven unauthorized workers, as expressly permitted under 8 U.S.C. 1324a(e)(5).

Proposed Penalties for Employment Verification Related Violations

David S. Jones — Mon, 03 Jun 2013 18:18:28 -0800

AUTHOR: Michael Neifach.

The Senate’s immigration bill, S. 744, just voted out of the Judiciary Committee and sent for a vote by the full Senate, greatly increases potential penalties for employment verification related violations. Under S. 744, the civil fine for a first offense of knowingly hiring or continuing to employ an undocumented worker ranges from $3,500 - $7,500, up from current range of $375 - $3,200. Fines for record-keeping violations increase from the current range of $110 - $1100 per violation to a minimum of $500 for a first offense up to $8,000 per violation for repeat violations. Moreover, while S.744 still requires employers complete a Form I-9 for all new hires, it also mandates use of E-Verify by all employers. E-Verify, the government’s online web based system that checks I-9 information against Department of Homeland Security (DHS) and Social Security Administration (SSA) databases, is currently used by approximately 450,000 employers, a very small percentage of all U.S. employers, including federal contractors who are required to use E-Verify. If passed, S.744 will phase in mandatory E-Verify for all employers as follows : 1. Critical infrastructure related industries will be required to enroll not later than 90 days from enactment; 2. Employers with more than 5,000 employees not later than 2 years after issuance of regulations; 3. Employers with more than 500 employees not later than 3 years of issuance of regulations; 4. All other employers, including agricultural employers, not later than 4 years after issuance of regulations. Importantly, violations of the mandatory E-Verify provisions would be treated as recordkeeping violations, subject to the significant and enhanced civil violations. S. 744 also significantly changes the process to challenge E-Verify non-confirmations, the documentary requirements for verification, and also expands the authority of the Office of Special Counsel to investigate potential discrimination during the employment verification process.

Republican-Controlled House Expected to Introduce Immigration Reform Bill in early June

David S. Jones — Fri, 31 May 2013 10:41:33 -0800

AUTHOR: Robert Neale.

As the comprehensive immigration reform bill moves from the U.S. Senate’s Judiciary Committee to a full Senate floor debate, the U.S. House of Representatives is expected to introduce its own version of a comprehensive immigration reform bill soon. Unlike the Senate bill, no details of the possible House bill have been released, and different groups within the House reportedly are working on their own versions. One bipartisan working group's bill is expected to contain a 15-year path to citizenship, an E-Verify system that is roughly analogous to the one in the Senate bill, and a pair of guest worker plans that will be sorted out at a later point. That group has been working on a bill since the beginning of the Obama presidency, and took up the issue with renewed vigor after November's elections. Another working group within the House is strongly opposed to any path to citizenship. Any proposed bill must pass through the House Judiciary Committee prior to reaching the floor of the House. We expected that the immigration reform process will play out well into the summer. Jackson Lewis will continue to monitor all legislative activities and keep you informed on comprehensive immigration reform.

Immigration Reform Bill Advances to Senate Floor

David S. Jones — Wed, 22 May 2013 14:30:03 -0800

AUTHOR: Nadine Trinh.

Following five days of hearings over three weeks and consideration of 300 amendments, the Senate Judiciary Committee on May 21, 2013, passed the immigration reform bill in a bipartisan 13-5 vote. Three Republican Senators, including Senators Lindsey Graham (SC) and Jeff Flake (AZ) who helped draft the original bill, joined ten Democratic Senators to approve the bill. Senate Majority Leader Harry Reid (D-NV) has indicated that the bill will be debated on the Senate floor in early June.

The centerpiece of the legislation, providing a 13-year path to citizenship for the approximately 11 million undocumented aliens emerged intact. Another provision that will be voted on by the full Senate is raising the number of H-1B specialty occupation visas from 85,000 to 110,000 annually (an increase to 180,000 is possible). In a move praised by the technology industry, the Committee dropped a related provision that would have required U.S. companies to test the labor market and search for an "equally qualified" U.S. worker before sponsoring an H-1B worker.

We will continue to monitor the upcoming congressional debate and keep you informed on any changes and revisions to the bill. A summary of the original bill is available at http://www.jacksonlewis.com/resources.php?NewsID=4447.

H-1B Work Visa Application Established Employee Contract, New York Court Rules

David S. Jones — Thu, 09 May 2013 08:28:32 -0800

In a departure from prior interpretations of H-1B sponsorship, a New York state court ruled an H-1B work visa application established an employment contract sufficient to support the employee’s breach of contract claim. Kausal v. Educational Products Information Exchange Institute, d/b/a EPIE Institute, 2013 N.Y. App. Div. LEXIS 2491 (NY Apr. 17, 2013).

Nikhil Kausal, a citizen of India, sued the employer for breach of contract and violation of the payment of wages requirement (Article 6) of the New York State Labor Code. The trial court rejected the plaintiff’s contention that the H-1B visa petition submitted by the employer to the Immigration and Naturalization Services is sufficient evidence of the formation of a contract between the plaintiff and the employer. The plaintiff appealed.

The appellate court, finding an enforceable contract, reversed the judgment. The appeals court said, “The plaintiff established the existence of an enforceable written employment agreement between himself and the defendant through the visa application executed by [the employer’s project manager], on behalf of the defendant, under oath.” The appeals court then found the plaintiff established the required elements of a cause of action to recover damages for breach of contract.

It is noteworthy that the contract violations found against EPIE also were violations of the Department of Labor wage requirements under the H-1B program since EPIE failed to pay the wages stated on the Labor Condition Application. This factor may have steered the court to its decision, which is inconsistent with prior rulings throughout the county. Unless the decision is challenged, employers in New York State who sponsor H-1B workers should be cautious about the terms stated on the H-1B petition.

Employers also are reminded that when an H-1B visa holder is being terminated, the employer must send a letter notifying USCIS of the termination and request the withdrawal of the petition. The terminated worker must be notified of the termination in writing and provided with a return ticket to the home country or its cash equivalent. The employer may also withdraw the certified labor condition application submitted on behalf of the terminated worker. The employer should keep evidence of bona fide termination and notifications sent to USCIS and the employee in the employee’s file.

Trial court decision
http://www.courts.state.ny.us/Reporter/pdfs/2011/2011_31001.pdf

Appellate court decision
http://www.courts.state.ny.us/courts/ad2/calendar/webcal/decisions/2013/D37982.pdf

Elimination of I-94 Cards Begins Today!

David S. Jones — Tue, 30 Apr 2013 07:30:12 -0800

AUTHOR: Nicola A. L. Prall.

As reported previously, CBP is eliminating the Form I-94, Arrival / Departure Record, the familiar white card that foreign nationals are asked to complete on the airplane prior to entering the United States. Beginning April 30, 2013, if a foreign national needs a copy of the I-94 card as evidence of his or her entry into the United States, he or she will need to go to www.cbp.gov/I94 and print his or her I-94 record. While this is not mandatory, we recommend that foreign national employees, especially those in the United States on temporary work permission, do so. The I-94 card, in conjunction with a foreign national employee’s visa and foreign passport, often is the “List A” document that confirms the foreign national’s ability to work in the United States. Having proof of this authorization is critical. Foreign national entering at airports and seaports that have eliminated the I-94 should log onto the CBP website after entry and check that all information is accurate and correct, particularly:

spelling of names,
personal information,
visa category, and
expiration date.

If errors are found, the foreign national should contact CBP.

The I-94 Automation Implementation Schedule begins on April 30, 2013, with Charlotte Douglas International Airport, Orlando International Airport, Las Vegas Airport, Chicago O’Hare, and Miami International Airport. These locations are followed one week later, on May 7, 2013, by the airports and seaports in New York, Boston, Buffalo, Baltimore, Detroit, Atlanta, Tampa, Puerto Rico, Miami, Chicago, New Orleans and Houston. On May 14, 2013, the airports and seaports with Pre-Clearance, San Francisco (including Hawaii and Guam), Tucson, El Paso, Seattle, Portland (including Alaska), Los Angeles San Diego, and Laredo, will follow. All remaining airports and seaports will eliminate the Form I-94 on May 21, 2013.

DHS and DOL Jointly Issue Interim H-2B Wage Methodology Rule

David S. Jones — Mon, 29 Apr 2013 14:38:55 -0800

AUTHOR: Otieno Ombok.

The Department of Homeland Security and the Department of Labor have issued a joint interim final rule that establishes a new methodology for calculating prevailing wages under the H-2B low-skilled, nonagricultural guestworker program. This is in response to a March 21 district court decision, in Comité de Apoyo a los Trabajadores Agricolas v. Solis, vacating a portion of the DOL 2008 H-2B Wage Rule (see Federal Court Vacates 2008 H-2B Wage Rule).

The interim rule also responds to another court’s ruling that DOL does not have any authority over the H-2B program. The rule clarifies that DHS is the Executive Branch department charged with making determinations regarding eligibility for H-2B classification and that it consults with DOL about matters with which DOL has expertise, such as the methodology for setting the H-2B prevailing wage.

The agencies stated, “Notwithstanding the Eleventh Circuit's decision in Bayou, or the Departments' joint issuance of this interim rule, DOL and DHS continue to maintain, as the Louisiana Forestry Association court held, that DOL does have independent legislative rulemaking authority for the H-2B program…. However, due to these inconsistent court rulings on DOL's authority to issue independent legislative rules, DOL and DHS are issuing this joint regulation revising the prevailing wage methodology in the H-2B program in order to respond to the court order in CATA v. Solis, and also to dispel questions regarding the respective roles of the two agencies and the validity of DOL's regulations as an appropriate way to implement the consultation specified in section 214(c)(1) of the INA.”

Under the interim rule, DOL will not use the four-level approach, which was vacated by the court, in its prevailing wage methodology. The agencies stated, "The prevailing wage will no longer be the mean of the particular wage level, but will be the overall mean of all persons in the occupation in question."

Key features of the rule:

(i) DOL will use either the Occupational Employment Statistics (OES) wage survey, collective bargaining agreements, the Davis-Bacon Act, the Service Contract Act, or employer-provided surveys, depending on the circumstances, to determine H-2B prevailing wages;
(ii) The prevailing wage will be based on the arithmetic mean wage listed in the OES survey for all persons in the occupation in question;
(iii) DOL will use the prevailing wage set by an applicable collective bargaining agreement where that agreement was reached after arms' length negotiations between the union and the employer;
(iv) The interim rule permits employers to use the Davis Bacon Act (DBA) or Service Contract Act (SCA) prevailing wage rate, if applicable, and an employer may offer a higher DBA or SCA rate if it chooses to do so; and
(v) Employers may present their own wage surveys, as in the 2008 wage rule, if they provide specific information about the survey methodology so DOL can determine the data accuracy and validity of the methodology and the data are collected within 24 months of the date of submission.

With the publication of the interim rule, DOL has resumed issuing prevailing wage determinations, and USCIS has also resumed adjudicating H-2B visa petitions.

For more information on H-2B visas, H-2B labor certification applications, DOL H-2B audits or investigations, please contact your Jackson Lewis attorney or any member of the Jackson Lewis Immigration Practice.

Comprehensive Immigration Reform and E-Verify Compliance

David S. Jones — Fri, 26 Apr 2013 14:00:38 -0800

AUTHOR: Melina V. Villalobos.

As we previously blogged about on April 17th, a comprehensive immigration reform bill has been introduced in the U.S. Senate, Border Security, Economic Opportunity, and Immigration Modernization Act of 2013. While many critics have focused on the new pathways for legal migration to the U.S. contained in the 850-page bill, the new bill contains some powerful enforcement provisions that employers need to keep at the forefront of their minds.

One such enforcement provision deals with E-Verify. E-Verify is an internet-based system sponsored by the Department of Homeland Security that allows businesses to determine the eligibility of their employees to work in the United States. E-Verify is seen as a tool to ensure that employers employ a legal workforce as well as provide a disincentive to individuals who seek to work illegally in this country. E-Verify currently is mandatory only in a handful of states; however, the new legislation would make E-Verify mandatory for all employers across the nation. The phase-in period, ranging from 90 days to four years, would vary according to the company’s number of employees.

In addition, the bill includes language indicating that employers will be presumed to have knowingly hired an unauthorized worker if they do not verify the individual’s work authorization via E-Verify after their mandatory enrollment date. The new bill would permit employers to utilize a three-day grace period for re-verifying the work authorization of employees with expired work authorization. It also calls for the Social Security Administration (SSA) to create tamper-resistant Social Security Cards to combat document fraud. Lastly, the new legislation provides for enhanced photo-matching tools to close-up loopholes that have allowed employees to circumvent E-Verify through identity-theft and ID-borrowing.

Jackson Lewis will continue to monitor developments surrounding comprehensive immigration reform and provide additional updates about issue-specific proposals as we continue to assess the proposed changes contemplated by this bill.

Immigration Reform Bill Introduced in Senate

David S. Jones — Wed, 17 Apr 2013 13:37:50 -0800

Author: Sujata Ajmera

The highly anticipated immigration reform bill has been formally introduced by a bi-partisan group of Senators. The proposal for significant changes to the nation’s immigration system (consisting of almost 850 pages), the Border Security, Economic Opportunity, and Immigration Modernization Act of 2013, includes provisions for increased border security, legalization for individuals present in unlawful status, and modernization of the legal immigration system. A complete summary of the article is available at http://www.jacksonlewis.com/resources.php?NewsID=4447.

Cap Hit in First Week: Alternatives to the H-1B

David S. Jones — Tue, 09 Apr 2013 10:31:47 -0800

AUTHOR: Davis C. Bae.

The USCIS announced on April 8, a week after it began accepting H-1B petitions, that it has received a sufficient number of H-1B petitions to reach the statutory cap for fiscal year (FY) 2014. It received approximately 124,000 H-1B petitions, including petitions for the advanced degree exemption. This likely will mean that more than 40,000 applications will be rejected. Employers will not be able to obtain new H-1B visas for employees until October 1, 2015. (The H-1B quota generally does not affect current H-1B status holders who are being sponsored by a new employer.)

While the demand for H-1B visas is generally a strong indicator of the health of the U.S. economy, this does not help employers requiring qualified employees. Employers with rejected petitions will be scrambling for other options for their employees and candidates, many of whom are working under a different but expiring visa category.

Employers can look to other visa categories and solutions to extending work authorization. Individuals from certain countries may be eligible for professional visa categories that mimic the H-1B. For example, Australians can qualify for E-3 visas, while Singaporean and Chileans can qualify for H-1B1 visas. Mexican and Canadian citizens may qualify for certain professional category positions under the TN category.

In addition, employers who utilize E-Verify may be able to extend the work authorization of F-1 students for an additional 17 months if the employee is a graduate of a STEM (Science, Technology, Engineering or Math) program. Lastly, other categories, such as the O-1, P-1, L-1, E-1/2 and B-1, may help employers bridge the H-1B visa shortage.

Employers are encouraged to consult their immigration counsel at Jackson Lewis to determine if one of these solutions is appropriate. The H-1B shortage highlights the need for immigration reform that supports our rebounding, but fragile, U.S. economy.

Government Prosecutes Staffing Firms for H-1b Visa Fraud

David S. Jones — Tue, 09 Apr 2013 08:23:16 -0800

Author: Harry J. Joe.

Job shops and staffing firms use of H-1B visas, but that do not actually and directly employ the alien workers, that assign such workers to third-party worksites and otherwise bench (practice of placing H-1B visa holders in nonproductive status, without pay, while they wait for placement with other employers), and not pay such workers when work is not available can be open to government prosecution. The H-1B visa system was intended for the H-1B worker to perform services for the petitioning company. When employers fail to disclose in their visa petitions and labor condition applications for H-1B alien workers that the workers would be placed at third-party worksites, would be benched, would be paid only for work performed at such sites, would not be employed directly by the petitioning employer and at an employer’s place of business, and that they would not be paid a salary as represented in the filings, they can be criminally prosecuted for visa fraud, wire fraud, harboring, employment of unauthorized workers and money laundering. Both employers and their principals can be open to accusations of criminally misuse of the H-1B visa program.

A criminal indictment was filed on February 20, 2013, in the U.S. District Court for the Northern District of Texas against six principals of Dibon Solutions of Carrollton, Texas. It alleged Dibon, along with its six principals, engaged in an unlawful conspiracy to commit visa fraud by sponsoring foreign workers for H-1B visas with the stated purpose of working at Dibon Solutions’ headquarters in Carrollton. In fact, the workers provided services to third-party companies located elsewhere. Moreover, contrary to statements in the petitions and applications, Dibon only paid the workers an hourly wage for work performed at the third-party worksites and only if such third-parties first paid Dibon for the work. When not working, the workers were “benched” and not paid as required by H-1B labor condition application regulations.

The government’s theory of criminal liability was that the H-1B visa system was intended for the worker to perform services for the petitioning company, i.e., Dibon Solutions. Not informing or disclosing in its filings that the workers would be employed at or assigned to a location other than the Carrollton address is contrary to the stated requirements in the petition and the application.

The Dibon indictment further alleged the named defendants had unlawfully engaged in wire fraud. The government also is seeking forfeiture of assets procured by the defendants that arose from their criminal enterprise.

In its latest criminal prosecution, the government alleged on March 19, 2013, in the U.S. District Court for the Western District of North Carolina that Phani Raja Bhima Raju, founder and principal owner of iFuturistics, recruited and hired foreign nationals with specialized skills in computers and information technology so they could work at other U.S. companies

Raju and others were accused of knowingly and willfully conspiring to conceal in iFuturistics’ H-1B petition and labor condition application filings that the workers would be employed at other locations, the actual terms of their employment as to wages and hours of work, and that the workers would be benched. Raju and others also were accused of unlawfully misrepresenting the place of employment as Pineville, North Carolina, and falsely stating that the workers would be employed full-time and paid the stated salary. In fact, the workers were benched and not paid until assigned to a third-party worksite.

According to the allegations against Raju, a bona fide H-1B petitioning employer is a “valid employer,” not a “job agent,” “subcontractor,” or “hiring agent” and the valid employer could not engage in “benching.”

On March 22, 2013, Raju pleaded guilty to five federal charges, ranging from conspiracy to file fraudulent immigration documents to money laundering in a fraudulent scheme to obtain H-1B visas for foreign workers.

Moreover, iFuturistics was ordered by the USDOL Wage and Hour Division on January 4, 2013, to pay back wages to seven H-1B workers in the amount of $149,009.51 and civil monetary penalties of $18,000.

New Form I-9 Must Be Used Beginning May 7

David S. Jones — Tue, 09 Apr 2013 06:26:43 -0800

AUTHOR: Michael Neifach.

On April 9, 2013, U.S. Citizenship and Immigration Services (USCIS) published a notice in the Federal Register clarifying the date by which the new Form I-9 must be used instead of prior versions of the form. Employers are advised that they must use the new Form I-9 beginning on May 7 or they will be subject to penalties under Section 274A of the Immigration and Nationalization Act (INA), 8 U.S.C. 1324a. On March 8, USCIS released a revised version of the Form I-9. The new Form includes significant changes including expanded instructions, new information fields, and a two-page format. Although the new Form I-9 was for immediate use, employers were given 60 days to adapt their internal processes. USCIS instructions were unclear whether the last date that prior versions of the Form I-9 could be was May 7 or May 8. The original Federal Register notice itself was internally inconsistent on this, indicating both dates in different sections of the notice. The April 9, 2013 notice clarifies that prior versions of the form cannot be used beginning on May 7.

H-1B Lottery Update

David S. Jones — Mon, 08 Apr 2013 11:01:58 -0800

USCIS announced today that it "received approximately 124,000 H-1B petitions during the filing period, including petitions filed for the advanced degree exemption." On April 7, 2013, these applications were processed through a computer-generated random selection process known as the lottery to determine which ones would receive the 65,000 visas generally allocated for H-1Bs as well as the 20,000 allocated for holders of advanced degrees from the US. USCIS will reject and return the petitions not selected in the lottery along with the filing fees.

http://www.uscis.gov/H-1B Cap

H-1B Cap Reached

David S. Jones — Fri, 05 Apr 2013 16:44:58 -0800

AUTHOR: Davis C. Bae

U.S. Citizenship and Immigration Services (USCIS) announced today that it has received a sufficient number of H-1B petitions to reach the statutory cap for fiscal year (FY) 2014. USCIS has also received more than 20,000 H-1B petitions filed on behalf of persons exempt from the cap under the advanced degree exemption. After April 5th, USCIS will not accept H-1B petitions subject to the FY 2014 cap or the advanced degree exemption.

All cases received by the USCIS by April 5, 2013 will be eligible for the H-1B visa “lottery." The lottery will be held to determine which of the applications received by April 5th will be considered, while all other applications will be rejected.

Jackson Lewis will continue to provide updates on USCIS announcements on this important issue for employers.

Conrad State 30 and Physician Access Act Introduced in U.S. Senate

David S. Jones — Mon, 01 Apr 2013 07:20:41 -0800

AUTHOR: Otieno Ombok

A bill seeking to make the Conrad State 30 J-1 visa waiver program permanent and improve the pathway for physician immigration to the U.S. with changes to H-1B visas, Green card issuance and national interest waiver requirements has been introduced by a bipartisan group of four Senators: Amy Klobuchar (D-MN), Jerry Moran (R-KS), Susan Collins (R-ME), and Heidi Heitkamp (D-ND).

The Conrad State 30 Program, also known as the J-1 Visa Waiver program, was enacted in 1994 as a national initiative that permits states to recommend visa waivers for physicians recruited to care for patients in rural and underserved areas. Under the Program, foreign medical graduates who undertake medical residency and fellowship training in the U.S. agree to practice medicine in underserved communities for at least three years in exchange for a waiver of certain visa restrictions, including the two-year foreign residency requirement. These physicians cannot obtain work visas, such as H-1B, or apply for U.S. permanent residency unless they obtain a J-1 waiver or reside abroad for at least two years. The Program, due to sunset September 30, 2015, has been extended numerous times.

The Conrad State 30 and Physician Access Act (S. 616), introducedMarch 19, 2013, would provide additional incentives for more doctors to participate in the Program. S. 616substantially builds on S. 1979, the Conrad State 30 Improvement Act, introducedby Senator Kent Conrad (D-ND) in the last Congress. S. 1979would have permanently reauthorized the Program. S. 616 seeks to remove the sunset of the Program, improve its functioning, and allow expansion to better meet U.S. healthcare needs. A physician shortage crisis of as many as 200,000 doctors is projected by 2020. This shortage will be felt hardest in rural, inner city, and other medically underserved communities.

Key provisions of S. 616 include:

providing a mechanism to increase Conrad 30 waivers each time 90% of waivers are filled nationwide;
creating three new Conrad 30 slots per state dedicated for academic medical centers;
instituting Conrad 30 program physician employment protections, such as:

(a) expanding definition of 90-day rule within which to begin J-1 waiver employment to the later of 90 days after receiving waiver, or 90 days after completing graduate medical training, or 90 days after receiving nonimmigrant status or employment authorization;

(b) permitting J-1 waiver physician to change employers during the 3-year period if: i) USCIS determines existence of extenuating circumstances; or ii) interested State agency that requested the waiver attests that extenuating circumstances exist; or iii) where alien elects not to pursue a determination of extenuating circumstances, if terminated J-1 waiver physician is employed for the remainder of the 3-year period, “and 1 additional year for each termination,” at another designated health facility/organization;

(c) granting terminated J-1 waiver physician a grace period of 120 days within which to file a petition with USCIS for employment with another employer in a medically underserved area (physician considered to be maintaining lawful status in an authorized stay during the 120-day period);

(d) granting dual intent to foreign physicians seeking graduate medical training;

clarifying physician eligibility for national interest waiver green cards by:

(a) extending the “Flex 10” concept to the physician NIW Green card context;

(b) broadly defining the 5-year service requirement to include period spent working during or in conjunction with J-1 training;

(c) clarifying that an alien physician with a foreign medical degree deemed sufficient for acceptance to an accredited U.S. medical residency/fellowship program is a member of the professions holding an advanced degree or its equivalent;

better aligning visa terms with residency training and physician practice. It cures H-1B cap-gap problem for foreign physicians completing medical training in H-1B status by automatically extending nonimmigrant status and work authorization to October 1, provided an H-1B extension petition is timely filed with USCIS. Such automatic status and employment authorization will terminate 30 days from the date such petition is rejected, denied or revoked. However, a physician’s status and employment authorization will automatically extend to October 1 of the next fiscal year if all H-1B visas are issued.
clarifying that J-1 spouses and children are not subject to Section 212(e) foreign residency requirement.

The “Gang of 8” senators working on comprehensive immigration reform likely will include S.616 as part of a broader package.

Jackson Lewis attorneys in the Immigration Group are available to assist healthcare employers with all their immigration needs, including visa sponsorships for physicians, nurses, physical therapists, speech therapists, J-1 waivers for physicians, and Form I-9 and E-Verify compliance.

Federal Court Vacates 2008 H-2B Wage Rule

David S. Jones — Tue, 26 Mar 2013 13:02:19 -0800

AUTHOR: Otieno B. Ombok

UPDATE:

On March 28, 2013, DOL suspended issuance of H-2B Prevailing Wage Determinations due to the Court's decision on the 2008 wage rule.

http://www.foreignlaborcert.doleta.gov/news.cfm

Further, effective March 22, 2013 U.S. Citizenship and Immigration Services (USCIS) temporarily suspended adjudication of most Form I-129 H-2B petitions for temporary non-agricultural workerswhile the government considers appropriate action in response to the Court's decision on the wage rule.

******

In a four-year battle over the Department of Labor’s rule regarding the methodology for setting H-2B prevailing wage rates, a federal district court has vacated the 2008 H-2B Wage Rule, granting permanent injunctive relief and remanding the case to the DOL. The court gave the DOL 30 days to comply. Comite de Apoyo a los Trabajadores Agricolas v. Solis, No. 09-240 (E.D. Penn. Mar. 21, 2013). The court answered “yes” to the question: “Whether the DOL’s continued use of the 2008 Wage Rule—which has been found procedurally invalid by this Court and substantively invalid by the DOL—justifies vacating the Rule and barring the Rule’s continued use.”

Before requesting H-2B non-agricultural temporary worker classification from the U.S. Citizenship and Immigration Services (USCIS), the employer must apply for and receive a temporary labor certification from DOL that, among other things, certifies that the H-2B workers would be paid at least the prevailing wage assessed by DOL. Over the past three decades, the DOL has periodically changed its methodology for calculating prevailing wages, without notice and comment, and often without explanation. The 2008 Wage Rule introduced the “arithmetic mean.” It states: “the prevailing wage for labor certification purposes shall be the arithmetic mean . . . of the wages of workers similarly employed at the skill level in the area of intended employment.” The DOL divides each unskilled, H-2B occupation into four separate skill levels and calculates a prevailing wage for each level.

The 2008 H-2B wage methodology rule was promulgated without seeking public comment during the rulemaking process. A federal district court, on August 30, 2010, ruled the 2008 Rule violated the Administrative Procedure Act (APA) and ordered the DOL to promulgate new, APA-compliant rules for calculating the prevailing wage rates. Even though DOL published a new final H-2B Wage Rule on January 19, 2011, its implementation has been held up due to delays by Congressional “appropriations concerns” denying DOL funding.

The court found that H-2B labor certifications issued under the 2008 Wage Rule exceeded the authority delegated to the DOL. The Rule “…artificially lower wages to a point that they no longer represent market-based wages for the occupation” and “have a depressive effect on the wages of United States workers,” according to the court. Consequently, the Court concluded that labor certifications issued under the 2008 Wage Rule fall “directly outside the narrow range of circumstances under which the DOL is authorized to issue labor certifications and exceeds the bounds of the DOL’s delegated authority under Section 706(2)(C) of the APA.”

Links:
http://dl.dropbox.com/u/27924754/CATA%20168%203-21-13.pdf

CBP Announces Automation of Form I-94 Arrival/Departure Record

David S. Jones — Sat, 23 Mar 2013 18:45:47 -0800

AUTHOR: Sean G. Hanagan.

This week the Department of Homeland Security’s Customs and Border Patrol (CBP) agency, which manages and protects US borders and ports of entry, announced the release of a new rule to automate the I-94 admission/departure process. Once in effect, the rule will be implemented over a planned four week period, beginning at airports in Orlando, Chicago, Las Vegas, and Charlotte, and then expanding nationwide. CBP recently met with stakeholders and explained that the current system, whereby foreign travelers entering the US receive a stamped paper card in their passports as proof of lawful admission, and then have the card removed when they depart, costs the agency in excess of $12 million per year in data entry costs through a government contractor. As the same data is reportedly available digitally to CBP already, the move has been presented as a way to not only reduce government expenditures, but also to smooth travel into and out of the country and enhance the data integrity of these records. Once the new system is implemented, international travelers will still have access to a paper I-94, and flyers to be handed out at airports and other ports of entry will direct anyone needing a hard copy of their I-94 record to visit www.cbp.gov/I94. Visitors often need a hard copy of their I-94 form to demonstrate the ability to work legally in the United States or to obtain other benefits. The new website will go live 30 days from the date the new rule is published in the Federal Register, the same date that the rule is anticipated to take effect. It is unclear whether there will be a public comment period announced, so readers are encouraged to check back for updates.

http://www.cbp.gov/xp/cgov/newsroom/news_releases/national/03212013.xml

Additional details and instructions available at:

http://www.cbp.gov/xp/cgov/travel/id_visa/i-94_instructions/i94_rollout.xml

H-1B Premium Processing Suspended Until April 15, 2013

David S. Jones — Tue, 19 Mar 2013 07:33:14 -0800

AUTHOR: Rebecca Massiatte.

U.S. Citizenship and Immigration Service (USCIS) has announced a temporary adjustment to its premium processing practice for H-1B petitions for the fiscal year (FY) 2014. Requests for premium processing (15-calendar-day processing time, subject to USCIS request for additional evidence/information) of cap-subject H-1Bs received between April 1 and April 14, will be adjudicated starting April 15, 2013. Premium processing for non-cap H-1Bs and all other cases will begin as normal, when the request is received.

This move is necessary, USCIS explains, because it anticipates that it may receive more than 65,000 cap-subject H-1B petitions and more than 20,000 petitions filed on behalf of individuals with a U.S. master’s degree or higher between the first day petitions are accepted, April 1, 2013, and April 5, 2013. Should this happen, FY 2014 could be the first time since April 2008 that the H-1B cap will require a lottery.

USCIS will accept Form I-907, Request for Premium Processing Service, with fee, concurrently with the Form I-129, Petition for Nonimmigrant Worker, during the period that premium processing is unavailable (from April 1 to April 14). Employers also may upgrade a pending H-1B cap petition to premium processing once a receipt notice is issued. All requests for premium processing received between April 1, 2013, and April 14, 2013, will be adjudicated when premium processing begins on April 15, 2013.

We strongly urge employers to consult with their Jackson Lewis immigration counsel to plan the filing of the necessary petitions. We will continue to provide updates on the H-1B cap.

Health Care Industry Group Testifies at Congressional Hearing on Shortage of Healthcare Workers

David S. Jones — Mon, 18 Mar 2013 07:19:56 -0800

AUTHOR: Otieno B. Ombok.

On March 14, 2013, a member of the American Health Care Association (AHCA) testified before the House Education and Workforce Committee’s subcommittee on Workforce Protections hearing on the critical shortages of mid-level caregivers in the nation’s skilled nursing centers and its impact on the economy. The hearing was held to examine the role of lower-skilled guest worker programs in the economy. Representatives of the Essential Worker Immigration Coalition, the hotel industry, and the Southern Poverty Law Center also testified before the Subcommittee. Health care employers have identified immigration reform and access to foreign workers as a critical issue for the industry.

Fred Benjamin, Chairman of the Kansas Health Care Association and COO of Medicalodges, Inc., a Kansas nursing home operator, represented AHCA. Benjamin identified labor shortage as AHCA’s most pressing operating problem. He stated, “The labor shortage deprives us of the most valuable resource we have, our caregivers. If we are to meet the expectations set for us, policymakers must act now to expand access to new pools of staff and take steps to encourage employment in long term care.” In a recent study on the vacancy rate for nursing staff, AHCA found that there were approximately 60,000 vacant direct care staff positions as of 2010 — shortages that could worsen as nurses who retire and leave the profession are not replaced. Another study by the U.S. Department of Health & Human Services (HHS) and the Department of Labor (DOL) estimates between 5.7 million and 6.5 million nurses, nurse aides, home health, and personal care workers will be needed in the coming years to care for the 27 million Americans who will require long-term care by 2050. Finally, the Health Resources and Services Administration (HRSA) projects that, absent aggressive intervention, the supply of nurses in America will fall 36 percent (more than 1 million nurses) below requirements by the year 2020.

Benjamin testified that among the solutions Congress should consider to address the shortage is to “…increase staff supply, and there are many talented immigrants who are anxious to enter the caregiving field, yet are faced with insurmountable roadblocks. These talented caregivers should be given the opportunity to make a living and make a difference in their own lives and the lives of others. To increase the supply of labor, please give special consideration to permitting new entry for immigrants with nursing skills as well as increasing the pool of unskilled labor. We need a new immigration system that serves the economic needs of the U.S. economy.” Members of the House subcommittee expressed the need to protect jobs for U.S. workers when designing any new low-skilled foreign guest worker program as part of a comprehensive immigration reform bill.

AHCA had earlier outlined its core principles for immigration reform as follows:

Letting business and industry play a leading role to help drive solutions with Congress. Any visa program must give employers, not the government, primary say in which workers (and how many) they need to staff their businesses.
Creating a viable guestworker program that accommodates the needs of U.S. healthcare providers. Employers should be allowed access to previously unused H-1B temporary work visas for nurses and physical therapists.
Waiving the cap on employment-based visas for nurses and physical therapists, speech therapists and those providing other therapies.