In This Issue:
1) Results of H-1B CAP filings submitted on April 1, 2014
2) Some alternatives for hiring in lieu of the H-1B
3) The Department of Homeland Security announced proposal to extend employment authorization to spouses of certain H-1B workers
4) NIV Arrival/Departure history is now available to individuals for the past five (5) years
5) Diversity Visa Program: “Winners” of the Lottery announced
6) Test your I-9 knowledge
7) Office of Special Counsel: Recent Immigration Discrimination Cases
8) June Visa Bulletin
1. RESULTS OF H-1B CAP FILINGS SUBMITTED ON APRIL 1, 2014
The H-1B program, which allows employers to seek to hire nonimmigrant aliens as workers in specialty occupations, makes available 65,000 visas for the general category and 20,000 under the advanced degree exemption.
For the second year in a row, the number of filings submitted exceeded the H-1B cap during the first five days of filing. This recalls the situation that existed in each of 2007 and 2008, before the recession, when annual caps also were met immediately.
On April 10, 2014, USCIS announced that it had received 172,500 petitions well in excess of the number of H-1B petitions needed to reach the statutory cap for fiscal year 2015, for effective dates of October 1, 2014.
The number received will exceed the statutory cap of 65,000 visas for fiscal year (FY) 2015 and the additional 20,000 H-1B petitions available under the advanced degree exemption. As a result, USCIS conducted a random lottery to select those petitions that would be processed in this fiscal year and have issued receipts for those selected, which is approximately forty-nine (49%) of the total number filed.
Dornbaum & Peregoy received (for the second straight year) a much higher percentage of selections than the national average. We are still awaiting final official notification from USCIS of those cases that were not selected in the lottery. As soon as we receive the final official confirmation, we will be notifying both the company and the individuals that his/her case was or was not selected and will discuss alternative options, if available, for ongoing work authorization in the U.S.
2. SOME ALTERNATIVES FOR HIRING AND EMPLOYMENT IN LIEU OF H-1B
As predicted, U.S. Citizenship and Immigration Services (USCIS) reached the H-1B cap for fiscal year 2015 in the first week of April. For those who need new work visas, but were shut out, there may be a “Plan B” under other visa categories.
Employees who meet certain requirements may qualify for an alternative work visa. Options for employees for whom no H-1B include the following alternatives:
• The 17-month optional practical training (OPT) extension for individuals with a U.S. degree in a science, technology, engineering or math (STEM) field and employers enrolled in E-Verify;
• The O-1 visa for individuals who may qualify under the extraordinary ability criteria;
• The E-1 (Treaty Trader) or E-2 (Treaty Investor) visa for essential employees if the company and foreign national share the same nationality;
• Continue with F-1 studies and consider internship opportunities under curricular practical training (CPT) for individuals in F-1 status;
• Pursue concurrent I-140/485 green card process and work authorization issuance for individuals who may qualify under the EB-1 extraordinary ability, EB-1 outstanding researcher, or EB-2 national interest waiver (NIW) criteria;
• Consider placing, for example, individuals whose employers have offices outside the United States, the individuals on the foreign payroll and work abroad until next year’s H-1B filing period opens (April 1, 2015) or until another type of work visa (for example, L-1) becomes available;
• The H-3 visa, for individuals entering a structured training program;
• The J-1 visa, for individuals who can be classified as an Exchange Visitor;
• The TN (“Treaty-NAFTA”) visa available under the North American Free Trade Agreement for Canadian and Mexican professionals;
• The E-3 visa for nationals of Australia;
• The H-1B1 visa for nationals of Chile or Singapore;
• The L-1 visa for intracompany transferees. An organization with foreign operations might transfer employees to its U.S.-affiliated company in a similar position under certain circumstances for intracompany transferees;
• Work authorization as a derivative under a spouses non-immigrant work classification.
3. THE DEPARTMENT OF HOMELAND SECURITY ANNOUNCED THE PUBLICATION OF A RULE THAT WILL ALLOW SPOUSES OF CERTAIN H-1B EMPLOYEES TO OBTAIN WORK AUTHORIZATION
Upon final publication of this proposed rule, existing regulations will be amended to allow for spouses of certain H-1B Employees to obtain Employment Authorization.
Under existing regulations, the Department of Homeland Security (DHS) does not extend employment authorization to dependents (also known as H-4 nonimmigrants) of H-1B nonimmigrant workers. The change proposed by DHS would allow H-4 dependent spouses of certain H-1B nonimmigrant workers to request employment authorization, as long as the H-1B worker has already initiated the process of filing for lawful permanent residence through employment.
Eligible individuals would include H-4 dependent spouses of principal H-1B workers who:
• Are the beneficiaries of an approved Form I-140, Immigrant Petition for Alien Worker; or
• Have been granted an extension of their authorized period of stay in the United States under the American Competitiveness in the Twenty-first Century Act of 2000 (AC21) as amended by the 21st Century Department of Justice Appropriations Authorization Act. AC21 permits H-1B workers seeking lawful permanent residence to work and remain in the United States beyond the original six-year limit on H-1B status.
As soon as this rule is finalized, Dornbaum & Peregoy will be notifying foreign nationals whose spouses may be eligible for this benefit and advise of new eligibility to initiate the processing of the Employment Authorization.
4. NIV ARRIVAL/DEPARTURE HISTORY IS NOW AVAILABLE FOR INDIVIDUALS FOR THE PAST FIVE (5) YEARS
The U.S. Customs and Border Protection launched a new webpage on May 1, 2014 that offers nonimmigrant U.S. visitors access to their I-94 arrival/departure record and their arrival/departure history.
The new CBP webpage allows nonimmigrant travelers to access arrival/departure records going back five years from the request date. This electronic travel-history function means that travelers may no longer need to file Freedom of Information Act requests to receive their arrival/departure history, greatly speeding their process. Travelers will have electronic access to the date and port of entry of their arrivals and departures.
When travelers visit the I-94 webpage they can retrieve their I-94 arrival/departure record number and five (5) year travel history by entering the required name, date of birth, and passport information.
Clicking on “Get Most Recent I-94” will return the I-94 number, most recent date of entry, class of admission and admit-until date. The information does not reflect changes of status, extension of stay or adjustments of status granted by U.S. Citizenship and Immigration Services. Travelers then have the option to print the record.
Clicking on “Get Travel History” will return their five (5) year travel history based on their I-94 records, which they also can print.
It is critical that Foreign Nationals retrieve their electronic I-94s after each international trip and forward a copy to Dornbaum & Peregoy. Frequent errors are made by CBP and the only way our firm can monitor an individual’s status and ensure that s/he is in valid status is by reviewing the I-94 that is issued.
5. DIVERSITY VISA LOTTERY: “WINNERS” OF THE LOTTERY ANNOUNCED
On May 1, 2014 the U.S. Department of State announced the winners of the 2015 Diversity Visa program (DV-2015). Over 100,000 eager U.S. immigrants were selected and these “winners” will have an opportunity to have their fairy tale come true – a chance to obtain a green card.
However, being selected for the diversity immigrant visa program is not the fairy tale many “winners” expect it to be. It is not a ticket to a guaranteed green card. In reality, it is a ticket to yet another more rigid lottery. Unfortunately, only 50,000 immigrant visas are allotted to the diversity lottery “winners” and their accompanying family members. As a result less than half of the 100,000 “winners” will actually be issued green cards, leaving thousands massively disappointed.”
6. TEST YOUR I-9 KNOWLEDGE
1. Question: True or False? Must non-U.S. citizens provide a DHS-issued document, such as Form I-766, to fulfill the Form I-9 document requirements?
Answer False. An individual who is not a U.S. citizen does not have to submit a DHS-issued document if he or she can fulfill the Form I-9 requirements by presenting other documents. For example, an asylee who presents an unexpired state driver’s license (List B document) and an unrestricted Social Security card (List C document) fulfills the Form I-9 requirements and may not be required to present a DHS-issued document.
2. Question: True or False? Under the “receipt rule” a refugee may meet the Form I-9 requirements by presenting the departure portion of the Form I-94, containing the refugee admission stamp?
An individual normally must submit a document from List A, or one document from List B and one document from List C. Under the “receipt rule” for refugees, however, during the first ninety (90) days in the U.S., a refugee may meet the Form I-9 requirements by presenting to his or her employer the departure portion of the Form I-94, containing a refugee admission stamp. This submission only completes the Form I-9 temporarily. Within 90 days, the refugee must provide the employer with either (1) an unrestricted Social Security card and an unexpired List B document or (2) an unexpired employment authorization document issued by DHS.
Note: in addition to the Refugee I-94 receipt, other receipts may be accepted in lieu of original documents for Form I-9 purposes. For instance, all employees may provide receipts for lost, stolen or damaged documents, and lawful permanent residents may present a Form I-94 with a photo and I-551 stamp as a receipt for a List A document.
3. Question: True or False? Is a Form I-94 with an asylee stamp considered a receipt as well?
Answer: False. The Form I-94 with an asylee stamp is considered an unexpired employment authorization document issued by the Department of Homeland Security appearing on List C, item number 8. Therefore, it could be presented in conjunction with a document from List B. An I-94 with an asylee stamp does not expire and should not be reverified.
4. Question: True or False? An employee must submit the same proof of identity and employment eligibility at reverification as he or she did on the initial Form I-9?
Answer: False. An employee may present an unexpired document that shows either an extension of his or her initial employment authorization or a new unexpired document evidencing work authorization from either List A or List C, including an unrestricted Social Security card. The employee is not required to present proof of identity at reverification.
5. Question: True or False? Refugees, Asylees, Amerasians, and Iraqi and Afghan Special Immigrants are indefinitely authorized to work in the United States and an employer should indicate “N/A” for the status expiration date field in Section 1.
Answer: True. Of the populations served by the ORR Refugee Resettlement Program, Refugees, Asylees, Amerasians, and Iraqi and Afghan Special Immigrants are indefinitely authorized to work in the United States and employers should indicate “N/A” for the status expiration date field in Section 1.
6. Question: True or False? Even though a refugee or asylee is authorized to work indefinitely an employer may be required to reverify their employment?
Answer: True. Employers may still be reverified by an employer depending upon the documentation shown for I-9 purposes. If a refugee or asylee presents an unexpired employment authorization document (EAD) for initial verification, the employer will have to reverify the employee’s work authorization at the time the EAD expires. However, if an asylee or refugee presents an unexpired List B document, such as a state identification card, paired with an unexpired List C document, such as an unrestricted Social Security card, there is no basis to reverify the employee.
7. Question: True or False? An employer cannot refuse to hire an individual because the individual’s document has an expiration date?
Answer: True. Consideration of a future employment authorization expiration date in determining whether an individual is qualified for a particular job may constitute an immigration-related unfair employment practice.
8. Question: True or False? An employer can postpone the start date of an employee who does not yet have a Social Security Number?
Answer: False. Although an employer must eventually record a Social Security Number for wage reporting purposes, once an employee has satisfied the I-9 documentation requirements, the employer must allow the employee to work regardless of whether he or she has been issued a Social Security Number. Employers using E-Verify should allow the employee to work but should delay running an E-Verify query until the employee is issued a Social Security Number.
7. OFFICE OF SPECIAL COUNSEL: RECENT IMMIGRATION DISCRIMINATION CASES
The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) is responsible for enforcing the anti-discrimination provision of the INA. The statute prohibits, among other things, citizenship status and national origin discrimination in hiring, firing or recruitment or referral for a fee, document abuse and retaliation or intimidation.
The Justice Department reached an agreement with Master Klean Janitorial, a company based in Denver, resolving claims that the company engaged in a pattern or practice of discriminatory documentary requests based on citizenship status in violation of the Immigration and Nationality Act (INA).
The department’s investigation was based on a referral from U.S. Citizenship and Immigration Services (USCIS). The investigation found that Master Klean Janitorial subjected work-authorized non-U.S. citizen new hires to unlawful demands for specific documentation issued by the U.S. Department of Homeland Security in order to verify their employment eligibility, while U.S. Citizens were permitted to present their choice of documentation. The INA’s anti-discrimination provision prohibits employers from placing additional documentary burdens on work-authorized employees during the hiring and employment eligibility verification process based on their citizenship status or national origin. This practice is commonly known as document abuse.
Under the settlement agreement, Master Klean Janitorial will pay $75,000 in civil penalties to the United States, undergo training on the anti-discrimination provision of the INA, revise its employment eligibility verification policies and be subject to monitoring of its employment eligibility verification practices for one year.
In another settlement, The Justice Department reached an agreement with Mexico Foods LLC, aka El Rancho Corp., a supermarket chain based in Garland, Texas, resolving claims that the company engaged in discrimination during the employment eligibility verification process in violation of the INA.
Again, the department’s investigation was initiated based on a referral from USCIS. The investigation revealed that El Rancho required lawful permanent residents to present a new employment eligibility document after being hired when their Permanent Resident cards expired, even though the Form I-9 and E-Verify rules prohibit this practice because lawful permanent residents have permanent work authorization in the United States, even after their Permanent Resident cards expire. The investigation also uncovered evidence that El Rancho routinely requested a specific work authority document from lawful permanent residents during the initial employment eligibility verification process even though under the law employees are allowed to choose what documents to present. The department found that El Rancho’s discriminatory practices were based on employees’ citizenship status.
Under the settlement agreement, El Rancho must pay $43,000 in civil penalties, undergo training on the antidiscrimination provision of the INA and submit to monitoring for a period of eighteen (18) months, during which the department may review the company’s employment eligibility verification practices.
Please contact Dornbaum & Peregoy if you have any questions about I-9s, E-Verify, or Hiring Practices with respect to Employment Authorization or to discuss the benefits of an I-9 audit.
8. JUNE VISA BULLETIN
The State Department released the Visa Bulletin for June 2014. Unexpected and dramatic increase in demand in the employment-based third (EB-3) and “other worker” categories has resulted in retrogression in those categories, except for the Philippines.
The EB-3 China category retrogressed from October 1, 2012 to October 1, 2006, and the “other worker” China category retrogressed from October 1, 2012 to January 1, 2003.
The reason for the retrogression of six (6) years for Chinese Nationals in the EB-3 category is because for the past year, the EB-3 China category had experienced the unusual situation of having a more favorable priority date than did the EB-2 China category. Therefore, many Chinese Nationals who were eligible for EB-2, filed to “downgrade” their status from EB-2 to EB-3. Due to the high demand in this category, the priority date has severely retrogressed.
EB-3 Mexico and EB-3 worldwide have also retrogressed by more than a year from (October 1, 2012 to April 1, 2011).
Dornbaum & Peregoy has identified individuals whose priority dates will retrogress on June 1, 2014 and who are able to file the Green Card application this month and our firm is working with these individuals to file their Green Card applications prior to May 31, 2014.
On June 21, 201, Neil Dornbaum will be speaking on a panel entitled, “Preparing and Updating the H-1B Public Access File – Not as Simple as It Looks.” This panel will a part of the Annual Conference of American Immigration Lawyers Association (AILA) in Boston, Massachusetts.