Employment and Labor Relations Lawyer & Attorney : Porter Wright's Employer Law Report : Employment Litigation, Non-Compete, Trade Secrets

On June 12, 2008, U.S. Citizenship and Immigration Services (USCIS) informed the American Immigration Lawyers Association that the H-1B random selection process has been completed. USCIS completed the intake and receipt processes for all filings as of May 24, 2008 and began mailing rejection notices the week of June 9. Therefore, if an employer has not yet received a filing confirmation (Form I-797C Notice of Action), it likely means that the petition was not selected in the random process and that the rejection notice will be forthcoming.

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On May 9, 2008, Citizenship and Immigration Services published a proposed regulation to extend the permitted period of admission in TN status for Canadian and Mexican professionals under the North American Free Trade Agreement (NAFTA) up to three-years. NAFTA allows individuals from Canada or Mexico to enter the United States to work for or provide services to an organization in the U.S. provided the proposed services fall within one of the designated occupations, including Computer Systems Analysts, Economists, Engineers and Management Consultants.

At present, the maximum period of admission in TN status is one year. The new regulation would apply both to applications at the border as well as to applications filed with CIS to extend TN status for individuals already present in the United States. The goal of the new regulation is to reduce the administrative burden of annual renewal applications. If the regulation eventually becomes effective, it will be a welcome change to many individuals who either make annual trips to the border or file applications to extend their TN status.

There is no limit on the period of time an individual may qualify for TN status, provided the nature of the services continues to be temporary. In this regard, however, the commentary to the new regulation specifically confirms that the doctrine of “dual intent” does not apply to TN professionals. Dual intent allows a foreign national to be in the United States temporarily yet at the same time pursue lawful permanent resident status (i.e. “a green card”) to be able to remain indefinitely. Currently, only the H-1B and L-1 visa categories benefit from dual intent. Accordingly, individuals with TN status need to continue to plan carefully if they desire to obtain lawful permanent resident status.

The comment period ends June 9, 2008. Comments may be submitted via the Internet at  http://www.regulations.gov or by e-mail to rfs.regs@dhs.gov. Comments need to include a reference to “DHS Docket No. USCIS-2007-0056.” There also is the option to submit comments by mail or courier.

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U.S. Citizenship and Immigration Services announced on April 18, 2008 a special "cap gap solution" for F-1 students whose Optional Practical Training (OPT) expires before October 1, 2008. An April 8, 2008 interim final rule automatically extended OPT for F-1 students, but it applied only in those cases where the employer requested a "change of status" on the H-1B petition. To be eligible for the change of status from F-1 student to H-1B temporary worker, however, the student must have had less than a 60-day gap between when the OPT expires and October 1, 2008. Therefore, when employers filed H-1B petitions on April 1, it was not possible to request a change of status for any F-1 student/employee whose OPT expired on August 1, 2008 or earlier. Therefore, there were many individuals who could have benefited from the new regulation had it been published before April 1.

Recognizing the inequity of the situation, the solution announced on April 18 allows employers whose H-1B petitions are accepted on behalf of an F-1 student to amend the petition and request a change of status. The OPT then will be extended to October 1, and the individual will be permitted to remain in the United States and continue working without interruption. This is a significant benefit for individuals who otherwise were planning to spend several months abroad after their OPT expired and before they could obtain H-1B visas and return on or after October 1, 2008. After the H-1B filing confirmation has been issued (all notices are to be issued by June 2, 2008), the employer will have 30 days to amend the petition and request the change of status.

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In a follow up to my recent post on H-1B visa petitions, U.S. Citizenship and Immigration Services conducted the random selection process on April 14, 2008 and announced that it will issue receipt notices for selected petitions by June 2, 2008. The notice also indicated that the total processing time would be eight to 10 weeks but did not indicate whether the clock would begin from April 14 or from the date of the receipt notice. For premium processing cases ($1,000 extra filing fee for 15-day processing), the 15-day clock began on April 14.

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As a follow up to my earlier post, Citizenship and Immigration Services ("CIS") announced today that it has received sufficient H-1B petitions for the next fiscal year, which begins October 1, 2008, for both the base amount of 65,000 and the additional 20,000 for U.S. master's or higher graduates. For those who have been following this situation, the announcement should come as no surprise. CIS accepted petitions through April 7, 2008 to allow for delivery of the expected, large number of petitions at the two designated service centers. On a date it has yet to announce, CIS will conduct a random selection to identify the first 20,000 master's/higher petitions. Thereafter, any remaining master's/higher petitions will enter the random selection for the 65,000 remaining visas. CIS will return, with the filing fees, any petition that is not successful in the lottery. For employers that filed duplicate petitions (for the same person and same job) in hopes that at least one would be successful in the random selection, CIS will keep the filing fees for both as a punitive measure against such employers.

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The Department of Homeland Security (DHS) again published the so-called “No-Match Regulation” on March 26, 2008. The regulation, first proposed on June 14, 2006, and published in final form on August 15, 2007, was withdrawn when the federal court in San Francisco enjoined enforcement actions based on the regulation. DHS now proposes to re-publish the rule in the identical form as it was published last August but with further commentary and justification. The supplemental commentary and justification reads more like an appeal brief challenging the district court’s injunction against the regulation than a review of the comments and considerations typical in Administrative Procedure Act proceedings. The regulation  has no new effective date, but the public is invited to provide comments before April 25, 2008. 

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The Government can file enforcement actions for hiring unauthorized employees in either criminal or civil proceedings. Criminal proceedings may result in either fines or prison sentences while civil proceedings result in administrative fines. Attorney General Mukasey announced on Friday, February 22, 2008, that the administrative fines would increase effective March 29, 2008 to adjust for inflation. The minimum fine for the first offense of the knowing hire of an unauthorized individual will increase by $100 to $375. The maximum civil penalty for the first violation increases to $3,200. For multiple offenses, the maximum penalty increases from $11,000 to $16,000. 

The Attorney General announced these increases as routine adjustments for inflation, but noted that the increases were also part of the initiative announced last August as part of enhanced effort to improve interior and worksite enforcement. Current efforts, however, remain focused on the criminal prosecution of employers for the hiring of unauthorized immigrants. In one recent press release, Immigration and Customs Enforcement noted that 57 undocumented workers were arrested in Utah, and many of the workers as well as the employer would be indicted for various criminal charges. The press release also noted that the Department of Labor participated in the investigation and processing of the arrested workers to be sure the proper wages had been paid for work before the arrest. The workers were then processed for criminal charges and deportation. 

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Today's Columbus Dispatch features an op-ed I wrote titled "Immigration crackdown hurts economy," which discusses my thoughts on how the Administration's immigration policy impacts our struggling economy. 

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On February 13, 2008, the Department of Labor (DOL) proposed amendments to the regulations and streamlined the application process for temporary agricultural workers. Interested parties will have 45 days to submit comments in response to the proposed rule. Although it is not clear when the new rules will become effective, the regulatory process is not expected to be completed in time for the 2008 growing season. 

Known by the technical classification H-2A, the temporary agriculture worker program is only one part of the more generic guest-worker program discussed in the popular press. In its announcement, the DOL noted that employers hired only 75,000 workers through this program last year, while they estimate that the undocumented workforce was between 600,000 and 800,000. The application process is lengthy, expensive, and difficult to navigate. Duplication of efforts between the state workforce agencies and DOL contributed to the dysfunctional nature of the program. Comments to the proposed rule quoted several news sources discussing the adverse impact this program had on the agricultural industry and explained the need to streamline the process to provide a realistic legal alternative for agricultural employers to hire the required workforce. 

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With the April 1, 2008 filing opportunity for “new” H-1B petitions looming, employers can begin planning now to try to obtain one of the limited number of H-1B visas available for the next federal fiscal year, which runs from October 1, 2008 to September 30, 2009.

A “new” H-1B petition refers only to individuals acquiring the H-1B visa or status for the first time, such as F-1 students changing to H-1B status and individuals abroad who plan to enter the U.S. for the first time using an H-1B visa. These cases often are referred to as “cap-subject” cases because they require one of the 85,000 allotted visas (65,000 for bachelor-level candidates and 20,000 for U.S. masters graduates). It does not apply to one who already has an H-1B visa or status. An exception that private sector employers should note, however, is that an H-1B foreign national currently working for a university in most cases will be subject to the cap. Universities are exempt from the H-1B cap, and when a foreign national leaves a university for the private sector, he/she then becomes cap-subject.

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A recent wage-and-hour case illustrates the effect payroll deductions can have on minimum wage compliance. In Rivera v. Brickman Group, Ltd., No. 05-1518 (E.D. Pa. Jan. 7, 2008), a company brought Guatemalan and Mexican workers to the United States for seasonal employment under H-2B visas. Although the workers were paid amounts that appeared to be above the minimum wage, the company failed to take into account certain travel expenses and other employment-related costs incurred by the workers – expenses that reduced the workers’ earnings below minimum wage levels.

In particular, the court found that transportation expenses, costs involved in obtaining visas, and fees charged by the company’s recruiters were incurred by the workers primarily for the company’s benefit. Therefore, the company violated the Fair Labor Standards Act because the deductions brought the employees’ earnings below the minimum wage. In reaching its decision, the court rejected the company’s argument that the Immigration and Nationality Act and the Portal-to-Portal Act supersede the FLSA with regard to H-2B workers’ wages and do not require employers to bear the travel expenses of such employees. The company has not yet announced whether it will appeal the decision.

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