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November election results likely will significantly impact labor and employment law in coming years

Now that it is clear that Donald Trump will be the 45th President of the United States, questions are continuously being asked about how the regime change when he takes office in January of 2017 will impact labor and employment law. Acknowledging that any discussion of Trump’s policies before he takes office on Jan. 20, 2017 is purely speculation, it is important for employers to consider the potential implications on labor and employment law.…

Long wait times for Indian nonimmigrant visas merit human resources planning

Special thanks to summer associate Sara Schiavone for her work on this blog post.

Human resource professionals who are managing the immigration processing for Indian nonimmigrant employees should be aware of the increased processing times for the visa application at consulates in India. The extraordinary increase in routine processing for nonimmigrant visas requires significantly more planning to avoid long periods of non-productivity while employees are stranded abroad waiting for a visa appointment.

It was not that long ago that one week was seen as a standard timeframe to receive an interview appointment. However, applicants now experience wait times as long …

Employer alert: a new H-1B filing season brings hope and anxiety

It is again the time for U.S. employers to begin considering filing H-1B petitions for prospective new foreign national employees. These petitions can be submitted to U.S. Citizenship and Immigration Services (USCIS) on or after April 1, 2016 for employment beginning no earlier than Oct. 1, 2016, the beginning of the government’s 2017 fiscal year. The H-1B visa category provides for the temporary employment of foreign nationals who will work in “specialty occupations,” or those jobs for which at least a bachelor’s degree in a particular field is required, such as engineers, teachers, accountants, and many professional information technology positions.. …

Seven employment law trends to keep your eyes on for 2016

2016 has arrived, marking the beginning of a year of political transition. While we cannot be certain what the upcoming Presidential election holds for 2017, we can expect to see at least seven employment law trends as we move through this year.

1. Increase in Fair Labor Standards Act (FLSA) initiatives and enforcement

The Department of Labor (DOL) has proposed changes to the thresholds for exempt status, which will increase the number of employees eligible for minimum wage and overtime payments. In addition, technology advances in the workplace are likely to collide with wage and hour laws with the increased …

State Department revises Visa Bulletin cutoff dates

In November 2014, President Obama spoke on prime time television to explain his promise to issue executive orders and fix as much of the dysfunctional immigration system as could be done without Congressional action. The press and Republicans in Congress criticized the program to grant “deferred action” to a significant percentage of the undocumented population (and litigation has put that element on hold), but largely overlooked the several initiatives to reform the employment-based immigration system.  While the reforms outlined in November 2014 were little more than duct tape and chewing gum designed to provide modest improvement to a fully dysfunctional …

H-4 dependent spouses eligible for U.S. work authorization

Effective May 26, 2015, U.S. Citizenship and Immigration Services (USCIS) will begin processing applications to grant employment authorization for certain H-4 dependent spouses of H-1B nonimmigrant workers.  The application for employment authorization (Form I-765) must be submitted to USCIS, in paper form only, with the filing fee of $380 and supporting documents showing eligibility for work authorization.

Eligibility for this benefit is limited to spouses of H-1B workers who have started the employment-based lawful permanent resident (“green card”) process. To obtain an H-4 employment authorization document (EAD), the H-1B spouse must either: 1) be the beneficiary of an approved Immigrant …

Join us in Columbus on May 19 for a breakfast briefing – “Defining Your Company’s Immigration Policy”

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Breakfast Briefing: Defining Your Company’s Immigration Policy

Like never before, in order to compete in today’s global marketplace, companies need to ensure they have the best talent with the skillset that will help distinguish them from their competition. Many companies find that the best talent may not be around the corner and companies must look more globally to acquire the workforce their businesses demand.

In this breakfast briefing, Rob Cohen, Chair of Porter Wright’s Immigration Practice, will address the range of potential issues for employers who hire foreign nationals and issues to consider when developing a corporate immigration policy to …

The H-1B cap and the Chicken Little effect, or the sky is not falling, but this system is a mess

“I try not to worry about the future – so I take each day just one anxiety attack at a time.” Tom Wilson, American cartoonist (not an immigration lawyer)

Beginning April 1, USCIS began accepting cap-subject H-1B petitions for the 2016 fiscal year, and thus another flood of petitions washed over USCIS Service Centers in California and Vermont. This year, April Fool’s Day was an appropriate time for immigration attorneys and their clients to pause, reflect, and immediately begin freaking out—“What if my H-1B petition is not accepted for processing?” “What if my petition is lost in the mail?” …

Employment authorization for H-4 dependent spouses of H-1B employees

On February 24, 2015, the United States Citizenship and Immigration Services (USCIS) of the Department of Homeland Security (DHS) announced that certain H-4 dependent spouses of H-1B nonimmigrant workers pursuing employment-based lawful permanent resident (LPR) status will be eligible for employment authorization beginning May 26, 2015.

This announcement follows the Executive Action announced by President Obama on November 20, 2014. Among the many initiatives included in the Executive Action to modernize, improve and clarify visa programs to grow the U.S. economy and create jobs was to extend eligibility of employment authorization to certain H-4 dependent spouses.

In issuing the final …

Employer immigration alert: H1B filing season approaches — are you ready?

A new year brings new challenges and opportunities, especially for U.S. employers, and it is now time to begin considering filing H-1B petitions for prospective new foreign national employees. These petitions can be submitted to U.S. Citizenship and Immigration Services (USCIS) on or after April 1, 2015 for employment beginning no earlier than October 1, 2015, the beginning of the government’s 2016 fiscal year. The H-1B visa category provides for the temporary employment of foreign nationals who will work in “specialty occupations,” or those jobs for which at least a bachelor’s degree in a particular field is required (for example, …

Congressional Action Is Required to Modernize Employment Based Immigration

President Obama’s announcement on November 20, 2014 regarding his planned Executive Action to improve the immigration system was accompanied by several administrative memorandums, including several that addressed the business community’s frustration with a system that has been cumbersome, lengthy, and unpredictable. One memo included a promise to review the PERM process with an effort to modernize and improve it. (For a general description of the PERM process, please see our previous post). The Department of Labor (DOL) issued a brief Fact Sheet explaining their concept of what it will mean to modernize this program.

While an effort to modernize …

Business implications of the President’s Executive Action on immigration reform measures

Last night President Obama addressed the nation and outlined his long awaited Executive Order to begin the process of immigration reform. His speech emphasized the policy imperative to improve the system, and encourage economic growth consistent with our values respecting and protecting individual rights. The President, anticipating the Republican response, reiterated that it is the role of Congress to make substantive changes in the laws, but that in the absence of Congressional action, he noted several steps that he can take as President to make the immigration system work a little better. Setting aside this constitutional controversy for the moment, …

State Department announces a change in visa reciprocity agreement with China

This past weekend President Obama, while in China, announced changes in the reciprocity agreement for visas for Chinese citizens. The reciprocity agreement, which becomes effective on November 12, 2014, governs the period of validity for different kinds of visas which permit Chinese citizens to travel to the United States for different purposes. The agreement provides for the same provisions relating to U.S. citizens travelling to China in similar visa categories. The State Department issued a press release and announced the specific changes, together with a series of frequently asked questions with regard to the impact of this announcement for the …

H-1B Cap Reached Again, but Employers May Have Options to Keep Foreign Employees Working

This year brings more bad news for employers who filed H-1B petitions for foreign workers beginning on April 1, 2014.  On April 10, U.S. Citizenship & Immigration Services (USCIS) announced that it had received about 172,500 H-1B petitions, far above the 85,000 H-1B visas available each year (65,000 being available for bachelor degree-level graduates, with an additional 20,000 available for advanced degree graduates of American universities).  Thus, due to this H-1B visa “cap,” more than 50 per cent of the petitions filed will not be accepted for processing. USCIS has since completed a computer-generated lottery to select the petitions to …

H-1B cap reached as expected

This morning, the USCIS announced that the H-1B cap was reached during the initial filing period. More than 65,000 petitions were received for the regular cap, and more than 20,000 petitions were received for the advanced degree exemption. This announcement was expected, and it will take another couple of weeks for the USCIS to enter sufficient data for the petitions filed to run the random selection, and decide which cases to accept and process. The rest of the cases will be rejected. We expect another announcement when the number of petitions has been counted, and we will be able to …

Can my employee travel during the H-1B cap gap extension period?

By now, all employers should have filed their H-1B petitions for their employees who are subject to the cap for the upcoming fiscal year. While waiting for the October 1st start date, the employees often ask about travel during the summer before the H-1B becomes effective. The rules on travel during the “cap-gap” period are both obscure and a trap for the unwary.

For individuals on F-1 student status whose H-1B petitions have been selected and issued receipt notices, the Optional Practical Training (OPT) authorization is extended to September 30th so that there is no gap in employment authorization between …

Prepare for the H-1B Cap: Filing Season Begins April 1, 2014

Spring is right around the corner, so we’d like to remind our clients, especially U.S. employers, to begin considering filing H-1B petitions for prospective new foreign national employees.  These petitions can be submitted to U.S. Citizenship and Immigration Services (USCIS) on or after April 1, 2014 for employment beginning no earlier than October 1, 2014 (this is the beginning of the government’s 2015 fiscal year, which runs from October 1, 2014 to September 30, 2015).  The H-1B visa category provides for the temporary employment of foreign nationals who will work in “specialty occupations,” or those jobs for which at least …

Scam Alert! Beware of Telephone Scams from “USCIS” Officials Asking for Money

U.S. Citizenship and Immigration Services (USCIS) is warning the public of a new telephone scam targeting foreign-born immigrant applicants and petitioners. The scammers contact individuals in temporary status, and identify themselves as USCIS or other government officials. The callers often have some private information, and are very skilled at collecting more private information, and then using that information to lend credibility to their claim to be governmental officials. The callers use “Caller ID spoofing” to display a misleading phone number (often 911) in the recipient’s Caller ID, and then claim that due to problems with the recipient’s application or records, …

The Impact of the Government Shut-Down on Immigration Processing for Employers and Individuals

The Government shut-down resulting from Congress’ inability to pass an appropriation measure or continuing resolution will have varied impacts on employers and individuals who require visa applications, and immigration processing at the several agencies with responsibility for the administration of the immigration laws. Several agencies have issued statements as to which operations will continue as essential services and which offices will be shuttered. This information is based in part upon those statements as well as the practices during past closures. However, processing of different components of the immigration applications may change as agencies struggle with competing responsibilities and of course, …

USCIS Announces H1-B Cap Reached

The USCIS announced on April 5, 2013 that the H-1B cap was reached in the first week petitions could be filed for the fiscal year beginning October 1, 2013. Because more than 85,000 petitions were submitted, a computer generated lottery will be held to determine which petitions will be processed. USCIS will take a few days to data entry the information required, and then will first conduct the lottery for the 20,000 advanced degree graduates. All remaining advanced degree graduates will be entered into the regular cap lottery for the remaining 65,000 visas. The remaining petitions will be rejected and …

“Now is the Time” to Move on Immigration, But the Devil is in the Details

It has been two weeks since a bipartisan Senate Committee of eight senators released their statement of principles for Comprehensive Immigration Reform, followed two days later by President Obama during a speech in Las Vegas. The President told the nation that the political stars have aligned and "now is the time" for serious consideration of immigration reform. Together, these statements set the stage for the debate to come.

These two statements provide a hopeful sign that the intractable problems have been reconsidered in light of the new political reality and good old-fashioned compromises have been defined. There are still many …

Prepare for the H-1B Cap: Filing season begins April 1, 2013

A new year brings new opportunities and challenges, and it’s time for American employers to begin considering filing H-1B petitions for prospective new foreign national employees. The H-1B visa category provides for the temporary employment of foreign nationals who will work in “specialty occupations,” or those jobs for which at least a bachelor’s degree in a particular field is required (for example, engineers, teachers, accountants, and many professional information technology positions). The problem is that there are limited numbers of H-1B visas available each year, and this year we expect these numbers to be quickly claimed.

There is a limit …

BALCA Exercises Reason and Common Sense to Reverse Denials of Certification

The Board of Alien Labor Certification Appeals (BALCA) recently issued three decisions reversing the Certifying Officer’s (CO) denials of certification.

In Matter of Cognizant Technology Solutions US Corp., (Nov. 29, 2012), the employer had submitted a PERM application for the position of Business Development Manager which required a master’s degree and 12 months of experience. As part of the recruitment process and as required by the regulations, the employer placed a job order with the New Jersey State Workforce Agency stating the said requirements for the position. Due to an automatic conversion programmed into the job order form, the posted …

Will EB-3 Catch Up to EB-2 for India?

The State Department released the January 2013 Visa Bulletin last week. Among the items of interest was the disappointing news that the visa cut-off date for the EB-2 category for India remains September 1, 2004, for the fourth straight month since the new fiscal year began in October. This means that cases with a priority date on or before the cut-off date can be processed, all other applications must wait for an available visa. The visa cut-off date for the EB-3 category for India again showed a slight movement of one week to November 8, 2002, from the previous month’s …

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