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

By Catherine Kang on

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

By James Jensen on

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

By James Jensen on

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

By Rob Cohen on

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

By Rob Cohen on

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

By Rob Cohen on

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

By James Jensen on

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

By Catherine Kang on

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?

By Rob Cohen on

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 …

BALCA Finds Employer’s Duty to Investigate Further The U.S. Applicants’ Qualifications

By Catherine Kang on

In its latest decision, Matter of Select National Inc. (Sept. 19, 2012), the Board of Alien Labor Certification Appeals (BALCA) affirmed the denial of a labor certification by holding that even if a potential U.S. worker applicant did not appear to meet the required amount of experience, the employer had a duty to investigate further where the resume demonstrated a "broad range of experience, education and training." (For a general description of the PERM process, please see our recent post).

Select National Inc., follows two decisions issued earlier in the year, Matter of Goldman Sachs & Co. (June 8, …

What is PERM?

By Catherine Kang on

An application for Labor Certification, known by the acronym PERM (Program Electronic Review Management) is often the first of three steps required by an employer who wishes to sponsor a foreign national employee for permanent resident status. This post will provide some background and general explanation for the PERM process. We anticipate more posts in the coming months to explain some of the detailed processing issues that are of interest to employers and individuals working through the PERM process.

In most instances, the "green card processing" involves three steps:

  1. A U.S. employer wanting to hire a foreign worker on full-time permanent
…

Form I-9 Remains Valid Despite August 31 Expiration Date

By Rob Cohen on

On Aug. 13, 2012, the U.S. Citizenship and Immigration Services (USCIS) announced that the most recent version of Form I-9 remains valid notwithstanding the OMB expiration date of Aug. 31, 2012 (located in the upper right hand corner on the form). Until further notice, the current form, which was last revised on Aug. 7, 2009 (located in the lower left hand corner), should continue to be used for new employees. USCIS published a proposed new form in March, and requested comments, but has not published the revisions in final form.

The Form I-9 must be prepared by new employees not later …

The Supreme Court Provides a Mixed Review of the Arizona Immigration Laws

By Rob Cohen on

The Supreme Court has issued its long awaited decision on the constitutionality of the Arizona Immigration law known as SB 1070. The case came before the Court following a decision by the lower courts to grant a preliminary injunction enjoining the application of four provisions of the Arizona law. The Ninth Circuit determined that it was likely the United States would prevail on its challenge that the provisions of the Arizona law were preempted by Federal law and were therefore unconstitutional. The Supreme Court held that three of the four provisions were unconstitutional, and it was premature to determine if the fourth provision …

H-1B Cap has been reached for FY2013

By Catherine Kang on

Yesterday, the U.S. Citizenship and Immigration Services announced that the H-1B cap has been reached for the Fiscal Year 2013, which begins October 1, 2012. Accordingly, no H-1B petitions can be filed until April 1, 2013, for potential employees who are cap-subject to be able to begin working on October 1, 2013.

Each fiscal year, the law permits 20,000 "master cap" cases for the H-1B beneficiaries who have obtained graduate degrees from U.S. universities and 65, 000 "regular cap" cases. In most instances, cap-subject individuals are those who are acquiring H-1B status for the first time, such as international students …

USCIS Announces the H-1B Cap has been reached

By Rob Cohen on

This afternoon, the USCIS announced that it has received sufficient petitions for the H-1B visa to reach the statutory cap for Fiscal Year 2012. The H-1B cap is 65,000 per fiscal year, and an additional 20,000 visas are allocated to advance degree graduates of United States universities. The "masters cap" was reached on October 19, 2011, and the regular cap was reached on November 22, 2011. Thus, any petition not filed before November 22 will be rejected. Filing will open up again for Fiscal Year 2013 on April 1, 2012 to begin work on or after October 1, 2013.

The …

USCIS Approaches H-1B Cap for New Fiscal Year

By Rob Cohen on

USCIS announced the status of the H-1B cap filings as of October 21, 2011 for the fiscal year that began on October 1, 2011. For background, the law permits 65,000 regular "cap" cases and 20,000 master cap (graduates of U.S. universities with an advanced degree) each fiscal year. Because filings are permitted six months in advance, the annual filing season begins on April 1 each year and continues until the cap has been reached.

As of October 21, 2011, the full 20,000 complement of masters cap cases has been exhausted, and 46,200 regular cap petitions have been filed. This leaves …

USCIS Restores Practice of Sending Notices to Counsel of Record

By Rob Cohen on

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, …

USCIS Change in Mailing Procedures Has Substantive Impact upon Employers and Foreign National Employees

By Rob Cohen on

On September 12, 2011, U.S. Citizenship and Immigration Services changed their long standing practice for the distribution of original approval notices for petitions and applications seeking immigration benefits, including the change or extension of nonimmigrant stay. Notices have previously been sent to counsel of record, but now are sent directly to the petitioner or applicant. Employers and individuals have immediately noted several unattended consequences of this change in long-standing policy.

Many approval notices include a revised or extended Form I-94, Arrival and Departure Record. This original document advises foreign nationals of their current nonimmigrant status and the date on which …

Department of Justice Complaint Against Farmland Foods Highlights Fine Line Employers Must Walk In Evaluating Employment Authorization Documents

By Rob Cohen on

Today, the Justice Department announced that it has filed a lawsuit against Farmland Foods, Inc., a major producer of pork products based in Kansas. The lawsuit, which will be heard by an Administrative Law Judge, alleges that the employer engaged in unlawful discriminatory acts by requiring foreign born and non-citizen employees to provide additional documentation of employment authorization beyond what was required by law and the documents required from U.S. citizens. While we have not yet heard the full facts or Farmland Food’s position, the lawsuit highlights the fine line employers must walk to satisfy both the obligation to verify …

Supreme Court Upholds Mandatory E-Verify Law in Arizona

By Rob Cohen on

On Thursday, the Supreme Court issued a divided opinion on the constitutionality of Arizona’s law requiring every employer to register for E-Verify as a condition of conducting business in Arizona. Chamber of Commerce v. Whiting.

E-Verify, a voluntary pilot program operated by the Department of Homeland Security, requires participating employers to verify employment eligibility of all new employees within three days of hire through an Internet based system of Federal records. By a 5-3 vote (Justice Kagen did not participate in the decision), the Court upheld the constitutionality of the law against the Chamber of Commerce’s argument that the …

SSA Resumes Social Security Number “No-Match” Letter Program

By Porter Wright on

Employers may recall several years ago when they received letters from the Social Security Administration informing them that the Social Security Numbers they reported did not match the corresponding employees’ names. A new round of letters is on the way beginning this month. Employers will need to review the letters carefully, perform due diligence to determine the possible cause of the mismatch and give identified employees a reasonable opportunity to resolve the situation. If not already in place, employers should develop procedures to address no-match letters and then follow the procedures consistently.…

I-9 Interim Rule From 2008 Now Final

By Porter Wright on

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.…

New H-1B Pre-Filing Registration On the Horizon

By Porter Wright on

The Proposed Regulation

U.S. Citizenship and Immigration Services (CIS) announced a proposed rule that would require employers of H-1B workers to complete a pre-filing registration before submitting petitions for individuals subject to the annual H-1B cap. The earliest it would go into effect would be January 2012. Once effective, employers will complete an online registration for each prospective, cap-subject H-1B employee. CIS then will provide a confirmation instructing that the employer may file a petition on behalf of the specific person. Employers still may file petitions for more than one person, but a separate pre-registration will be required for each …

The Evolving Ramifications of I-9 Compliance

By Porter Wright on

Investors likely gave no thought to I-9 compliance when buying shares in the Mexican fast food restaurant Chipotle. The Immigration and Customs Enforcement I-9 audits of the company’s restaurants that began late last year and are ongoing already have resulted in hundreds of allegedly unauthorized workers losing their jobs. That was just the beginning. With the ever-widening government investigations and audits of the company’s workforce, investors are starting to take notice. A report this week indicated that at least one investor intends to approach Chipotle about its workforce woes.

Clearly it’s too early to predict what impact the I-9 audits …

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