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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 (or "cap") of 85,000 H-1B visas available each year: 65,000 for bachelor degree-level candidates and 20,000 for advanced degree graduates of American universities. These petitions can be submitted to U.S. Citizenship and Immigration Services (USCIS) on or after April 1, 2013 for employment beginning no earlier than October 1, 2013 (this is the beginning of the government's 2014 fiscal year, which runs from October 1, 2013 to September 30, 2014). However, we anticipate that the available H-1B visa numbers will be exhausted within the first week employers are eligible to file new H-1B petitions. If this occurs, USCIS will conduct a computer-generated random selection process, or lottery, for submitted H-1B petitions to select which petitions will be accepted for adjudication. If approved, H-1B employees will be eligible to receive an H-1B visa number and begin working for their petitioning employers.

The limit of 85,000 H-1B visas is specific for potential employees initially seeking to acquire H-1B visa or status, and does not impact current H-1B employees. Accordingly, cap-subject individuals include those acquiring the H-1B visa or status for the first time, such as foreign (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.

Each year the H-1B cap typically is reached well before the end of the fiscal year. For the fiscal year 2013, all H-1B visas were exhausted by June 11, 2012. Due to an improving economy, as well as an uncertain number of H-1B candidates who failed to get a visa number last year or who are waiting to apply this year, we advise employers to be proactive and move quickly to ensure their H-1B petitions are prepared and ready to file no later than April 1, 2013.

Once the H-1B cap has been reached, no new petitions may be filed until the next fiscal year (April 1, 2014 for employment beginning October 1, 2014). This can make both hiring and planning an employment start date difficult. For example, although employers can file petitions up to six months in advance of the requested effective date, which makes the April 1 filing date so critical, the approved petition will not be valid until October 1 of that year. Thus, even though employers may file petitions on or after April 1 for the next fiscal year, the petition will not be effective until October 1. This issue particularly impacts foreign (F-1) students, who often have post-graduate work authorization to allow them to remain in the U.S. and work while awaiting the H-1B effective date. In limited situations, other visa categories may be available in lieu of the H-1B. For other cap-subject individuals, such as those currently abroad or who do not have H-1B status, they must wait until October 1 before commencing employment.

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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 job order stated that the experience requirements for the position was "Mid Career (2-15 years)." The CO denied certification on the basis that the job order's experience requirement exceeded the 12month requirement stated on the PERM application. Finding that the employer could not prevent the automatic conversion to a pre-determined range, BALCA concluded that the employer conducted a good faith recruitment effort as required by the regulations. In reversing the CO's denial, the BALCA reiterated its earlier finding in Federal Insurance Co., (Feb. 20, 2009), that denying certification where a deficient form prevented an employer from complying with the regulations offends fundamental due process.

In Matter of Infosys Technologies Limited, (Nov. 16, 2012), BALCA stated: "Our analysis is guided by the purpose of regulation which is to assist employers in adequately testing the labor market." BALCA found that the employer adequately tested the labor market for a consultant-type employee where the recruitment ads were placed in the San Francisco Chronicle and its related job search website, indicating that the position was located in San Francisco which may require multiple long-term assignments within the region. Due to the limitations of the PERM application form for consultant-type positions with unanticipated client sites, the application indicated the employer's headquarter office, located in Fremont, California, as the location of job opportunity. The CO had determined that San Francisco and Fremont were not in the same Metropolitan Statistical Areas (MSA) and that the geographic area of employment in the ads did not match the geographic area of employment in the PERM application. BALCA found that any U.S. worker reading the ads would realize that the job location may be anywhere within the San Francisco area, which would include Fremont, and reversed the CO's denial of certification.

In Matter of Bottomline Technologies, (Oct. 18, 2012), the CO had denied certification on the grounds that the employer did not adequately document the employer referral program as one of the recruitment steps. Specifically, the CO noted that the documents did not show that the program was in effect during the relevant period of recruitment and that the employees were on notice of the job opening. While commenting that the employer's evidence "could have been better presented," BALCA found that the employer submitted enough documentation to show that the program was in effect and that the employees were on notice when considering all the evidence submitted by the employer in its response to the PERM Audit and its motion for reconsideration. As to the CO's finding that the program documentation did not include the employer's name or the job location, BALCA found that the job posting in the employer's website clearly included the employer's name and the job location, and further stated as follows: "Perhaps the CO was looking for this information to be on the employee handbook description of the employer referral program itself, but that is not a reasonable or realistic expectation."

BALCA is to be commended for exercising reason and common sense in its interpretation of the regulations in deriving these decisions. We hope that BALCA continues to be guided by the purpose of the regulations and will not seek technical reasons to deny certifications for applications filed and processed in good faith.

(For a general description of the PERM process, please see our previous post.)
 

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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 cut-off date of November 1, 2002. Since the beginning of the fiscal year, that's a movement of a whole month for Indian born applicants in the EB-3 category.

(For those still confused about the visa cut-off dates: the foreign employee's priority date must be prior to the visa cut-off date published in the monthly Visa Bulletin for the employee to be able to file an application to adjust status, the final step in the process for permanent residence. If the application to adjust status has already been filed, it cannot be approved until the posted cut-off date reaches the individual's priority date. The priority date is set by the filing date of the PERM application or the immigrant visa petition, whichever comes first.)

The problem for Indian born applicants is the per country limitation. The law limits each country to 7% of the total applicants if a classification is oversubscribed, meaning that there are more applicants in line than the law allows in any one year. Congress set the limit for employment-based visas at 140,000 in 1990, and has not updated the law since then. Because this limit includes not only the employees being sponsored, but each of their family members, the sponsored immigrant requires an average of 2.3 visas, further reducing the availability of visas. The allocation for the EB-2 and EB-3 categories are 40,040 each, and because both have been oversubscribed, the per country limitation has been effective since April 2000. This means that there are 2,803 (7% of 40,040) visas available for Indian born applicants in each of the two employment categories.

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On October 7, 2011, we reported that the USCIS changed its procedures regarding the delivery of approval notices. Effective September 12, 2011, notices were sent to the applicants or petitioners instead of counsel, as had been the long standing practice. There were numerous complaints through several channels, and the USCIS hosted a "Stakeholder Engagement" session to receive feedback on October 12. A week later, Director Alejandro Mayorkas announced that the policy would be reversed, and the USCIS would again send approval notices to counsel of record. The reprogramming of the system to restore the policy will take approximately 6-8 weeks, but should eliminate the problems created by the sudden change in this long standing practice.
 

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We previously reported on an interim I-9 rule from December 2008 (see U.S. Citizenship and Immigration Services Announces Revised I-9 Form).  Citizenship and Immigration Services now has finalized the interim rule. The final rule is effective May 16, 2011. As a practical matter, the final rule continues the provisions we discussed in this previous blog from two years ago. Employers therefore simply should continue to follow these provisions as they have for the past two years.

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U.S. Citizenship and Immigration Services published a final rule outlining filing fee increases for immigration benefits petitions and applications. The announcement and related questions and answers mention several times that CIS receives approximately 90% of its $2.4 million budget from filing fees. As a result, CIS explains that it needs to increases the fees to recover the costs of its operations.

The new filing fees applicable to employers concern the I-129 petition for temporary visa categories (e.g. E, H-1B, L, O, TN) and green card processing (e.g. I-140 immigrant worker petition and I-485 application to adjust status). The I-129 petition fee increases only slightly, from $320 to $325. The I-1-140 petition fee will increase from $475 to $580. The I-485 application increases to $1,070, up from $1,010. The most substantial increase is for the optional premium processing fee for 15-day service. It will jump from $1,000 to $1,225. Finally, for employees with family members who require dependent status, such as H-4, the filing fee for the I-539 application actually will decrease by $10, from $300 to $290.

CIS maintains a complete list of filing fees at www.uscis.gov.  As noted above, the new fees go into effect on November 23, 2010.

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After a two-month delay for the Obama Administration to review the new form and related policies, today (April 3, 2009) marks the introduction of the yet another version of the I-9 form. Employers are required to use the new form to verify the employment eligibility of all newly hired individuals on or after today's date  - April 3, 2009. 

There are two changes from the previous editions of the form. First, the last page of the form, which identifies acceptable documents, has some modified language and adds additional documents that can be accepted to verify employment eligibility in both List A (documents that establish both identity and employment eligibility) and List C (documents that establish employment eligibility). Employers may now accept a passport from the Federated States of Micronesia or the Republic of the Marshall Islands with an I-94A admission document as proof of both identity and employment authorization. This modification is based upon a recent compact between these two territories and the United States. The second modification requires the new employee to identify their status as a citizen, permanent resident, national of the United States, or an alien temporarily authorized to work. Prior versions of the form included citizen or national with the same check mark, but the new form differentiates between the two classifications. Neither of these changes will impact many individuals, but the new form is nevertheless required for all newly hired employees beginning on April 3, 2009. 

The new form is available at this link on the USCIS web site.

A new version of the employer’s I-9 Handbook is also available on the USCIS web site.

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The conference committee negotiating the American Recovery and Reinvestment Act of 2009 (H.R.1), also known as the stimulus bill, agreed to include one controversial immigration provision, but deleted a second. The first provision prohibits all financial institutions receiving TARP funds from hiring any employee in H-1B status unless the company complies with the H-1B dependent provisions. These provisions inhibit the ability by an employer to hire H-1B employees by requiring a recruiting process similar to an application for labor certification before filing the petition. This will make it very difficult for any recipient of TARP funds to hire or retain H-1B employees, and will deny banks and other recipients the ability to hire highly skilled individuals for some positions.

Opponents of the bill have argued that rather than stimulating the economy, this provision could actually have the opposite effect by stifling the ability of troubled businesses to hire and retain the expertise needed for their operations. The second provision, requiring the expansion of E-Verify to even more employers, has been deleted.

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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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