Labor Immigration Law

United States Labor Immigration Law News and Analysis

Employers Articles

Alert: FY2015 H-1B Cap Reached on April 7th

The U.S. Citizenship and Immigration Service (USCIS) announced earlier this afternoon that, as of today, April 7th, they have received a sufficient number of H-1B petitions to meet the annual H-1B cap for the 2015 fiscal year (FY2015).    According to USCIS, they have received more than 20,000 H-1B petitions filed for beneficiaries with U.S. master’s degree and more than the 65,000 general H-1B cap petitions.   As a result, any cap-subject H-1B petitions received by USCIS after April 7, 2014 will be rejected.

The Lottery Process

USCIS will use a computer-generated random selection process (commonly known as the “lottery”) for all FY 2015 cap-subject petitions received between April 1 and April 7, 2014.  The agency will conduct the selection process for advanced degree exemption petitions first.  All advanced degree petitions not selected will be part of the random selection process for the 65,000 limit. Due to the high number of petitions received, USCIS is not yet able to announce the exact day of the random selection process.   Also, the total number of petitions received is not yet known due to the large volume of applications.

Petitions Not Selected under the Lottery Will Be Returned With Filing Fees

Petitions accepted for filing but not selected under the lottery will be returned to the petitioners together with the filing fees (unless there were duplicate filings by the same employer for the same beneficiary, in which case no fees will be returned).

Post-Lottery Processing

Petitions which are selected under the lottery will be issued receipt notices and will be put in a processing queue.   Due to the heavy demand this year, we expect the H-1B processing times to be somewhat long.  Petitions filed under the premium processing service will start to be processed on April 28 and this is when the 15-day premium processing clock will begin.

H-1B Cap-Exempt Petitions Still Accepted

It should be noted that USCIS continues to accept cap-exempt H-1B petitions.   These are petitions generally filed by universities and non-profit research organizations (read more about cap-exempt employers).  Also, H-1B extensions and H-1B transfers are cap-exempt.

Conclusion

The FY2015 H-1B cap was reached, as anticipated during the first week it was open.   The reasons for the high H-1B demand this year may be caused by the improving economy.   Another reason may have been the self-fulfilling prediction by USCIS in March that they expect that the cap would be reached during the first week.

We will continue providing updates on the FY2015 H-1B cap season, including filing statistics, as they become available.   In the meantime, please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics. If our office can be of any help, please feel free to contact us.

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Very Short and Busy H-1B Cap Filing Season Expected: April 1st to April 7th (Five Business Days); H-1B Lottery Likely; Last Call for H-1B Cap Filings

As we are going into the peak of the H-1B cap season, our office receives many inquiries about the duration of the H-1B filing season this year or, in other words, when will the H-1B cap be reached?      So far we have been able to compare demand with prior H-1B filing seasons and we knew that this would be a busy and very short H-1B filing season.     According to our sources (which includes clients, peer law firms and government agencies), we expect that the H-1B cap be reached in the first five business days of April with the number of filings over the first five business days far exceeding the available number of H-1B visas.  This means that there is almost a guarantee that there will be a random lottery to allocate the  available H-1B visas (65,000 regular cap in addition to 20,000 U.S. master’s degree or higher cap)  among all filings received in the first five business days of April.

High H-1B Cap Demand Expected:   Last Call for Starting H-1B Cases

The expected heavy demand in this H-1B filing season means that all H-1B petitions should be submitted on or very shortly after April 1st.    It should be noted that it takes at least 10-14 days to prepare and file an H-1B petition (due to the LCA filing requirement, which takes up to 7 business days).   As a result, any new H-1B cases should be initiated over the next 2-3 days, at the most,  in order to have a decent chance of being accepted under the H-1B cap before it is reached, as anticipated, on April 7th.

What is the Ultimate Last Day to Start H-1B and Make It Under the Cap?

We are often asked when is the absolute last day when an H-1B case can be started and filed under the H-1B cap.    The answer is that it varies, depending on many circumstances.    If the employer can plan ahead and file an LCA early (or now), then a new (or confirmed) candidate’s H-1B petition can be started as late as April 1st and still be filed before April 7th.    The LCA is the step of the process which takes the longest to prepare and certify – often 7 business days.  New employers may also need to do a Federal Tax ID (FEIN) verification process (2-3 days) before an LCA is filed.   As a result, while it may be possible to start a new H-1B case as late as March 24, 2014,  there are many possible risk factors which would cause a late H-1B case to be delayed and miss the H-1B cap.

Our strong recommendation to employers is to consider filing all LCAs (even for planned but unconfirmed positions) over the next few days to keep the best possible options for a timely H-1B cap case filing.    Our office is happy to guide you on the timing process to give you the highest possible chance of making the cap.

H-1B Applications Filed Over the First Five Business Days in April Will Be Subject to Random Lottery

Assuming the H-1B cap is reached by April 7th, as expected, all H-1B filings which are received over the first five business days in April will be subject to  a random lottery to determine which of these H-1B applications would be counted and included under the cap.   This means that, as of now, we expect all H-1B cap cases filed over the first business five days in April to be subject to the random lottery.  Last year, in April 2013, there was also a random lottery to allocate the approximately 130,000 H-1B filings among the total of 85,000 H-1B visas.

H-1B Filings Not Picked by the Lottery or Filed After the Cap is Reached Will be Rejected and Returned

H-1B cases filed over the first five business days in April but not picked by the random lottery or H-1B cases filed after April 7th (again, assuming there are more filings over the first five days than there are available H-1B visas) are processed by USCIS to be returned to the filing petitioner employer (or their attorney) with an explanation that the H-1B cap has been reached and that there are no longer H-1B visas under this year’s cap.

Premium Processing Clock for New H-1B Cases to Start At a Later Date

In connection with the high level of H-1B filings, USCIS is likely to change the way they would process premium processing H-1B cases filed under the H-1B cap.    Under current practice, the 15-day premium processing “clock” starts on the day a case is received by USCIS.      For cases filed under the H-1B cap, in order to facilitate the prioritized data entry of cap-subject petitions requesting premium processing,  USCIS is likely to indicate that that for cap-subject H-1B petitions, including H-1B petitions seeking an exemption from the fiscal year cap for individuals who have earned a U.S. master’s degree or higher, the premium processing “clock” will begin later in April, most likely around April 15th.     This means that even for cases filed on April 1, 2014, the premium processing 15-day response window would not start until later in April.   Premium processing H-1B petitions filed outside of the H-1B cap (such as extensions or transfers) should not be affected.

Conclusion

We have been writing over the past few weeks about the possibly very short H-1B cap filing season this year.   Given the time it takes to prepare and file an H-1B cap case,  this is the last call for starting an H-1B case with a chance of filing under the H-1B cap.

W will be providing updates (as soon as USCIS released the H-1B numbers, which they normally do every two weeks) on the H-1B cap.  To ensure you receive these updates, please sign up to our free weekly newsletter.  If you wish to start a new H-1B work visa petition under this year’s quota, or if our office can be of any help, please contact us immediately.

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I-9 Compliance Reminders for the New Year

The start of the new year is a perfect time to assess corporate compliance with U.S. immigration laws.  As Immigration and Customs Enforcement (“ICE”) and the Department of Labor (“DOL”) increase the number of company audits and fines each year, it is important for employers to perform annual audits of their employment law and immigration compliance.  In addition, companies are often financially responsible for any civil and/or criminal fines imposed when their staff does not correctly follow the letter of the law.  Thus, staff training on immigration compliance and employment laws should be a standard part of any business’s regular compliance audit.

Basic I-9 Requirements

Form I-9 is required for all hires and section 2 of Form I-9 must be completed by the employer within 3 business days of the first date of employment, regardless of immigration status or citizenship of the new employee.

I-9 Retention

Form I-9 should be on file for every current employee.  For former employees, Form I-9 documents should be retained for 1 year after termination or 3 years after start of employment, whichever is later.

I-9 Storage

These confidential forms should be kept secured with access limited to trained staff only.  Forms I-9 and supporting documents may be retained electronically or in paper hard copies as long as the company correctly processes and consistently retains I-9s in the same format.

Accepted Versions of I-9

New I-9 forms should be filled out using the latest version of the form (as of the date of this article, March 8, 2013 edition only).  A new version does not need to be completed for current employees with a previously completed Form I-9.  The Spanish version I-9 may only be completed by employers and employees located in Puerto Rico.

E-Verify and I-9 Supporting Documents

If the employer utilizes e-Verify, e-Verify must be consistently performed and documented for every new employee.  For non-U.S. citizens or non-permanent residents, evidence of current and valid employment authorization is required.

Common I-9 Errors

I-9 errors can be costly to employers if identified by the DOL or ICE during an audit.  Some common I-9 errors include:

  • Not timely completed;
  • Employer discrimination by requesting too few, too many, or only specific documents;
  • Incorrectly completed forms, such as incorrect date of birth or wrong box checked, missing social security number, no signature, document list incomplete or incorrect, incorrect form version, etc., as well as inconsistent manner of completion by the various company representatives, including an inconsistent mix of electronic documents and paper documents;
  • Not properly tracking immigration employment authorization expirations and documenting timely renewals or extensions of employment authorization;
  • Improper retention by not timely removing expired I-9s for former employees or not maintaining I-9s in a safe and secure manner; and
  • Incorrectly completing or not consistently documenting e-Verify, including situations where no-match letters are received and timely resolved.

Many of these pitfalls can be avoided through regular employee training and annual I-9 audits.

I-9 Auditing

We certainly recommend periodic internal I-9 reviews by employers.  However, such reviews should be done carefully.  It is not uncommon for self-audits of companies, once done incorrectly, to cause additional costly errors; therefore, an I-9 compliance audit by a qualified outside source is strongly recommended.

In addition to auditing actual completed I-9s and supporting documents, employers are responsible for ensuring their hiring managers, human resources, executive staff, and other responsible employees are trained in employment law requirements.  Specifically, what can and cannot be asked or requested.  For example: not all designated employees know how to avoid discrimination allegations when requesting documents by employees;  not all designated employees know who is authorized to sign I-9s on behalf of the company, and not all designated employees know (or can easily find out) the difference between employees and contract workers.

I-9 Official Resources

We would like to share some general I-9 resources.

How Can We Help

The Capitol Immigration Law Group can provide various levels of internal I-9 compliance audits and on-site employee training as well as training materials and guidance for performing regular audits and training.  We can provide immigration compliance training and auditing to meet an employer’s specific needs.  We encourage all employers to be mindful of their compliance requirements and to proactively and regularly audit their compliance before a government agency does.   We also invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.  We also invite you to contact us if our office can be of any assistance or you have any questions or comments.

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Infosys In $34 Million Settlement for U.S. Immigration Violations

The large Indian technology company Infosys has agreed to pay $34 million in a civil settlement after federal prosecutors in Texas alleged it had committed “systemic visa fraud and abuse” when bringing temporary workers to the U.S. on H-1B and B-1 visas. This kind of settlement is the largest ever in a visa case and while the details are scarce at this point, it shows that the U.S. government is starting to crack down on large scale abuse of some of the most common visa programs.

The Allegations and the Settlement

After an investigation of more than two years, prosecutors are expected to unveil today the settlement after accusations that Infosys knowingly and unlawfully brought Indian workers into the U.S.  on business visitor visa (B-1) dating back to 2008.    Additionally, Infosys is accused of having conducted improper I-9 compliance.   The company has agreed to pay $5,000,000  for civil or administrative forfeiture. It will pay $5,000,000 to the Department of State for Civil or Administrative forfeiture, and $24,000,000 to the U.S. Attorney’s Office for the Eastern District of Texas.

One of the reasons Infosys used the B-1 visa so extensively is that unlike the H-1B work visa (a common alternative), the B-1 has no annual quota and the costs are many times lower than for H-1B.   According to the allegations, Infosys systematically submitted misleading information to U.S. immigration authorities (at the Consulates and at the port of entry)  in order to secure admission to its B-1 business travelers.

For example, the settlement alleges that an invitation letter submitted by Infosys in 2008 stated that the purpose of the B-1 visa trip was for “customer discussions and related business development activities”, when, in fact, as known by Infosys, the purpose of the trip was to engage in activities not authorized under a B-1 visa such as coding, programming, testing, implementing, etc.

The settlement also alleges irregularities with the H-1B/LCA program compliance.   Prosecutors cite instances where Infosys H-1B workers who applied for an H-1B visa stamp were directed by Infosys to inform the U.S. immigration authorities that their actual workplace destination in the U.S. was the same as the workplace described in the Labor Condition Application (LCA) supporting the H-1B petition; however, Infosys and the foreign workers both knew that the foreign nationals have been assigned to work at a different U.S. worksite (not mentioned in the LCA or H-1B documents).

The settlement also alleges I-9 compliance irregularities.   After an investigation, federal authorities are alleged to have discovered significant I-9 compliance irregularities which could have allowed thousands of foreign nationals to continue working in the U.S. even after their visas or authorized status had expired.

Three Lessons from the Infosys Case

Our office is not familiar with the details of this case other than what is being reported in the media.   Over the next few days, more details are certain to come out.   But we would like to focus on the allegations and draw some important lessons for the benefit of our readers and clients.

B-1 Visa and Status Do Not Authorize Work.   The B-1 business visa program is designed to allow foreign nationals to come to the U.S. for a short period of time (less than six months) for the purpose of conducting business — conduct meetings with vendors or partners, visit a production facility, negotiate a contract or financing, training customers or partners, giving a speech or a presentation or similar business-related activity.    The B-1 visa does not allow work in the traditional sense of the word — engaging in a productive work, paid or unpaid.

H-1B and LCA Documents Should be Correct and in Compliance.    When submitting an H-1B visa stamp application or then traveling to the U.S. on H-1B status, both companies and H-1B workers should ensure that their H-1B and LCA documents reflect accurately the terms of the H-1B employment, including the actual H-1B worksite (for third-party placements).     When necessary, a new LCA and, possibly, an H-1B amendment should be processed as quickly as needed and as possible, even if this is after the fact (in other words, late compliance is better than no compliance).

I-9 Compliance Matters.   For employers of all sizes, it is easy to dismiss I-9 compliance activities, especially once an initial I-9 is completed.   But the Infosys settlement proves that the government will do I-9 investigation often in conjunction with another immigration violation, take seriously a number of irregularities and assess significant fines.    For all companies, but especially those who employ at least one foreign national, I-9 compliance and re-verification are becoming very important.

Conclusion

We will continue to monitor and report on additional important details and developments stemming from the Infosys settlement.    At the same time, we hope that the Infosys case will serve as a reminder that it is important to have adequate internal policies to ensure B-1, H-1B/LCA and I-9 compliance.

In addition to handling a number of visa matters, such as B-1 and H-1B, our office has developed a leading practice of I-9 compliance and we are able and happy to provide compliance advice on these issues.  Please feel free to contact us if our office can be of any assistance.   Please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics.

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Reminder: New Form I-9 Becomes Mandatory May 7, 2013

Many of our readers and clients are already aware and are using the new Form I-9, but it is worth sending another alert to remind that the revised Form I-9 (revision date 03/18/2013) becomes the only acceptable version after May 7, 2013.

Please see our recent alert about the changes to the Form I-9.   Among the most notable changes in the new edition of the Form I-9 are:   improvements to include new fields (such as passport, telephone and email of the worker), reformatting to reduce errors, and clearer instructions to both employees and employers.

Those employers who are still using a Form I-9 edition other than revision date 03/18/2013 should immediately start using the new form for hiring and re-verification, when applicable.  USCIS has also updated the Handbook for Employers, Guidance for Completing Form I-9 to reflect the changes to Form I-9.

Conclusion

The newest version of Form I-9 represents the most significant revision of the Form since its last major revision in November 1991. Capitol Immigration Law Group is happy to answer any questions and will host a Form I-9 training seminar to assist employers with navigating and understanding the new Form I-9. Please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics. If our I-9 compliance practice group can be of any help, please feel free to contact us.

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Anticipated H-1B Filing Season: April 1st to April 5th (Five Days); H-1B Lottery Likely; Last Call for H-1B Cap Filings

As we are going in to the peak of the H-1B cap season, our office receives many inquiries about the duration of the H-1B filing season this year or, in other words, when will the H-1B cap be reached?      So far we have been able to compare demand with prior H-1B filing seasons and we knew that this would be a busy and very short H-1B filing season.  Now we have indication from USCIS that they are also bracing for a very busy but also a very short H-1B cap filing season.   According to USCIS, they expect that the H-1B cap be reached in the first five days of April with the number of filings over the first five days exceeding the available number of H-1B visas which means that there will very likely be a random lottery to allocate the  available H-1B visas among all filings received in the first five days of April.

High H-1B Cap Demand Expected:   Last Call for Starting H-1B Cases

The expected heavy demand in this H-1B filing season means that all H-1B petitions should be submitted on or very shortly after April 1st.    It should be noted that it takes at least 10-14 days to prepare and file an H-1B petition (due to the LCA filing requirement, which takes up to 7 business days).   As a result, any new H-1B cases should be initiated over the next 2-3 days, at the most,  in order to have a decent chance of being accepted under the H-1B cap before it is reached, as anticipated, on April 5th.

H-1B Applications Filed Over the First Five Days in April Will Be Subject to Random Lottery

Assuming the H-1B cap is reached by April 5th, all H-1B filings which are received over the first five days in April will be subject to  a random lottery to determine which of these H-1B applications would be counted and included under the cap.   This means that, as of now, we expect all H-1B cap cases filed over the first five days in April to be subject to the random lottery.   The last time a lottery was used to allocate H-1B numbers over the first five days of the H-1B filing season was in April 2008.

H-1B Filings Not Picked by the Lottery or Filed Afterwards Are Rejected and Returned

H-1B cases filed over the first five days in April but not picked by the random lottery or H-1B cases filed after April 5th (again, assuming there are more filings over the first five days than there are available H-1B visas) are processed by USCIS to be returned to the filing petitioner employer (or their attorney) with an explanation that the H-1B cap has been reached and that there are no longer H-1B visas under this year’s cap.

Premium Processing Clock for New H-1B Cases to Start April 15, 2013

In connection with the high level of H-1B filings, USCIS has also announced that they are altering the way they would process premium processing H-1B cases under the H-1B cap.    Under current practice, the 15-day premium processing “clock” starts on the day a case is received by USCIS.      For cases filed under the H-1B cap, in order to facilitate the prioritized data entry of cap-subject petitions requesting premium processing,  USCIS has annonced that premium processing for cap-subject H-1B petitions, including H-1B petitions seeking an exemption from the fiscal year cap for individuals who have earned a U.S. master’s degree or higher, will begin on April 15, 2013.   This means that even for cases filed on April 1, 2013, the premium processing 15-day response window would not start until April 15.      Premium processing H-1B petitions filed outside of the H-1B cap (such as extensions or transfers) would not be affected.

Conclusion

We have been writing over the past few weeks about the possibly very short H-1B cap filing season this year.   Given the time it takes to prepare and file an H-1B cap case,  this is the last call for starting an H-1B case with a chance of filing under the H-1B cap.

W will be providing updates (as soon as USCIS released the H-1B numbers, which they normally do every two weeks) on the H-1B cap.  To ensure you receive these updates, please sign up to our free weekly newsletter.  If you wish to start a new H-1B work visa petition under this year’s quota, or if our office can be of any help, please contact us immediately.

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Reminder: H-1B Work Visa Quota Opens for New Filings on April 1; Last Call for New Filings

One of the most popular U.S. work visas, the H-1B, will start accepting filings for new H-1B employment on April 1.     Pursuant to each yearly H-1B quota, new H-1B filings can be filed on April 1, at the earliest, for a starting date of employment on or after October 1.

The H-1B Quota and Expectations for This Year

When the H-1B visa category was created in 1990, Congress imposed an annual cap on the number of new H-1B visas which can be issued.  Although the cap has varied through the years, it is set to 65,000 per year plus 20,000 for graduates of U.S. masters programs for the new fiscal year (FY2014) starting on October 1, 2013.

As discussed above, the H-1B cap “opens” on April 1, 2013 and will remain open for new H-1B filings until the 65,000 H-1B limit is reached.  While it is impossible to predict exactly when the FY2014 H-1B cap will be reached, it is helpful to provide some context.  For the FY2010, the H-1B cap was open between April 1, 2009 and December 22, 2009.  For FY2011, the H-1B cap was open between April 1, 2010 and January 25, 2011. For FY2012, the H-1B cap was open between April 1, 2011 and November 22, 2011 while last year, FY2013, the H-1B cap was open between April 2, 2012 and June 11, 2012, or for just over two months.

Given the improving economic outlook, it is our expectation that the H-1B cap will be reached very quickly after it opens on April 1st.   While it is impossible to predict how quickly the cap will be reached, the H-1B cap  may be open for as little as 5 days.

High H-1B Cap Demand Expected:   Last Call for Starting H-1B Cases

The expected heavy demand in this H-1B filing season means that all H-1B petitions should be submitted on or very shortly after April 1st.    It should be noted that it takes at least 10-14 days to prepare and file an H-1B petition (due to the LCA filing requirement, which takes up to 7 business days).   As a result, any new H-1B cases should be initiated over the next few days in order to have a decent chance of being accepted under the H-1B cap before it is reached.

Conclusion

We do not know yet how quickly would this year’s H-1B cap be reached.   But we do know that the demand this year is significant and we are preparing (and advising our clients accordingly) for a very short H-1B filing season and the possibility that the H-1B cap be reached in the first 5-10 days of April.

Assuming the H-1B cap remains open for longer,  we will be providing bi-weekly updates (as soon as USCIS released the H-1B numbers, which they normally do every two weeks) on the H-1B cap.  We will also be providing updates on the number of H-1B cap filings and will be revising (hopefully by making them more accurate) our estimates of how long the H-1B cap would last.  To ensure you receive these updates, please sign up to our free weekly newsletter.  If you wish to start a new H-1B work visa petition under this year’s quota, or if our office can be of any help, please contact us as soon as possible.

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H-1B Cap for Fiscal Year 2014 Opens on April 1, 2013

The U.S. Citizenship and Immigration Service (“USCIS”) is set to begin accepting H-1B visa applications pursuant to its Fiscal Year 2014 (FY2014) quota.   The first day on which USCIS will accept new, cap-subject H-1B petitions, is Monday, April 1, 2013.

About the H-1B Program and the Annual Cap

The H-1B visa category was created in 1990 through the Nationality and Immigration Act of 1990 (INA).  Upon the creation of the H-1B visa type,  INA imposed a numerical limitation (“cap”) on the number of H-1Bs that could be issued in each fiscal year.  This “cap” (or quota) has varied over the past years but is set to 65,000 per year for FY2014 starting on October 1, 2013.

H-1B is a nonimmigrant visa classification used by U.S. employers to hire a foreign national who will be employed temporarily in the U.S. in a specialty occupation (generally one which requires a bachelor’s degree or higher) or as a fashion model.  Each year, by law, USCIS can approve up to new 65,000 H-1Bs, thereby allowing many private and employers to hire temporary qualified workers.   H-1B non-immigrants who work at (but not necessarily for) universities and non-profit research facilities are excluded from the numerical cap (see below for discussion of cap-exempt employers).

There are certain exceptions to the congressionally-mandated maximum of 65,000 H-1B visas per fiscal year.  The first 20,000 H-1B visas issued to alien workers who obtained their master’s degree from a U.S. university are exempt from the 65,000 cap;  H-1B visas issued to such U.S. master degree holders subsequent to the first 20,000 are then counted against the overall 65,000 cap.    Additionally, the cap does not apply to foreign nationals in the U.S. who are in lawful H-1B status and who are seeking to extend their visa or change employers.

Timing of the Cap-subject H-1B Petition Filing

The earliest date on which cap-subject H-1B petitions to be counted under the FY2014 H-1B cap is April 1, 2013.  By law, the earliest starting employment date for petitions approved under the FY2014 H-1B cap is October 1, 2013.  As a result of this up to 6-month window  between the time of filing and the time of employment, it becomes important to plan properly with respect to resources, valid status in the U.S. and work authorization.

Before an H-1B petition can be filed on or after April 1, there are a number of lead-time items.   Employers who have not submitted Labor Condition Applications (LCAs) with the Department of Labor’s iCERT system must have their Federal Employer Identification Number (FEIN) verified – a process which generally takes 2-4 business days.  Subsequently, an LCA must be filed for the offered position.  LCAs tend to be certified within 7 business days.   Only after the LCA is certified (with very minor exceptions) can an H-1B petition can be finalized and filed.  Accordingly, it becomes important to start the H-1B petition process as early as possible.  At a very minimum, an H-1B petition preparation can take at least two (2) and often at least three (3) weeks.

Cap-exempt Employers Can File H-1B at Any Time

Not all H-1B petitions must be filed under the H-1B annual cap.  Certain employers can file for H-1B workers at any time of the year and without being subject to the numerical H-1B visa limitations.  Such employers are generally qualified institutions of higher education (universities, colleges) and non-profit research organizations, or non-profits affiliated with institutions of higher education.   Note, not all non-profit organizations qualify; only those who are engaged in research may file for cap-exempt H-1B petitions.

Please see our helpful Guide to H-1B Cap Exempt Employers for more details.

Projections About This Year’s H-1B Cap

As discussed above, the H-1B cap “opens” on April 1, 2013 and will remain open for new H-1B filings until the 65,000 H-1B limit is reached.  While it is impossible to predict exactly when the FY2014 H-1B cap will be reached, it is helpful to provide some context.  For FY2009, filing made on or after April 1, 2008, caused the H-1B cap to be reached in eight (8) days.   For the FY2010, the H-1B cap was open between April 1, 2009 and December 22, 2009.  For FY2011, the H-1B cap was open between April 1, 2010 and January 25, 2011. For FY2012, the H-1B cap was open between April 1, 2011 and November 22, 2011 while last year, FY2013, the H-1B cap was open between April 2, 2012 and June 11, 2012, or in just over two months.

Below is a comparison chart of the H-1B cap demand for the past two H-1B cap seasons.

As the U.S. economy is gaining strength, we believe that the H-1B cap will be finished faster than last year when it took a little over two months for all H-1B visas to be used.    Accordingly, to eliminate uncertainty, we recommend to our clients to aim for an early April H-1B filing.

Throughout the H-1B filing season, we provide weekly (or more often, if necessary) updates about the status of the H-1B cap and any related developments.  Please check back often or subscribe to our Weekly Newsletter to receive news and updates related to the H-1B filing season.

Conclusion

Because of the increasing demand and the recovering U.S. economy, it is our expectation that the H-1B cap this year will be in high demand and we recommend that clients consider their H-1B needs as soon as possible and be prepared to file on the first available date – April 1, 2013.    Our attorneys and professionals stand ready to review your case, as part of our free initial consultation, and will help you prepare a strong H-1B application.

Contact Us to Start Your H-1B Cap Case

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Guidance on I-9/Employment Verification for DACA Applicants

The U.S. Citizenship and Immigration Service (“USCIS”) has issued new guidance to employers regarding the employment verification and documentation process for employees with valid and pending Deferred Action for Childhood Arrival (“DACA”) applications.     According to recent USCIS figures, there have been approximately 420,000 DACA applications filed and as approvals are starting to be sent out, more and more employers are likely to face the task of documenting the I-9 and employment eligibility for DACA workers.

Background of DACA

On June 15, 2012, USCIS announced the Deferred Action for Childhood Arrivals process for certain individuals without current valid immigration status and who meet specific criteria.  The process allows those individuals to request consideration of deferred action (and work permit) for up to two (2) years, with the option of renewal.  Deferred Action gives the Department of Homeland Security the authority to postpone removal proceedings and is not considered a lawful immigration status.   A valid work authorization document is also issued to successful applicants.  The required criteria for DACA applicants are:

  • Must be under the age of 31 as of June 15, 2012;
  • Must have arrived in the United States before the age of 16;
  • Must have continuously resided in the United States from June 15, 2007 – June 15, 2012;
  • Must have entered the United States without inspection or have expired status as of June 15, 2012;
  • Must be in school, graduated, obtained a GED, or honorably discharged from the United States military force; and
  • Must not have been convicted of a felony, significant misdemeanor, three or more misdemeanors, or pose a threat to national security or public safety.

USCIS Guidance for Companies Hiring or Employing DACA Employees

Approved DACA applicants are issued an Employment Authorization Document (“EAD”) cards by USCIS for up to two (2) years at a time.  Like all other employees, the DACA employee must complete and sign a Form I-9 within 3 days of hire.  For more information on employer responsibilities regarding Forms I-9, see our recent I-9 compliance article.   The employer is responsible for documenting the EAD and its validity dates on the Form I-9, under Section 2.  The employer should not request additional documentation to confirm DACA status, the EAD card is sufficient.

USCIS Guidance for DACA Employees Conflicts With General I-9 Requirements

The M-274 Handbook for Employers should be the ultimate resource for all Form I-9 related concerns.  While the USCIS DACA Guidance for Employers indicates that a new Form I-9 should be completed if an employee’s name, date of birth, signature, or social security number change, this directly conflicts with M-274 Handbook for Employers.  The M-274 Handbook for Employers advises that incorrect or outdated information on the Form I-9 simply be crossed out and updated on the same form.  USCIS’s own I-9 Central states the same.

Conclusion

Only in the case of major errors, such as full sections of the Form I-9 being left incomplete, should a new Form I-9 be completed.  Even then, the incorrect Form I-9 should be attached to the new form with an explanatory note detailing the errors and corrective steps taken.  Finally, the USCIS DACA Guidance also advises employers to submit a new e-Verify application, if the employer participates in the program for all employees, each time a new employment authorization documentation is provided.  This conflicts with the e-Verify program instructions to submit e-Verify only for newly hired employees.  While we applaud USCIS’s efforts to educate employers on completing Form I-9 and submitting e-Verify requests for potential DACA employees, their guidance should match the already existing I-9 and e-Verify rules and procedures.

How Can We Help

The Capitol Immigration Law Group is here to assist with pending DACA applications or questions regarding the DACA process or obtaining the associated EAD.  The Capitol Immigration Law Group can also provide various levels of I-9 compliance education, audits, and on-site employee training as well as training materials and guidance for performing regular audits and training.  We encourage all employers to mindful of their compliance requirements and to proactively and regularly audit their compliance before a government agency does.   We also invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.  We also invite you to contact us if our office can be of any assistance or you have any questions or comments.

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I-9 Compliance – Cleaning Up for the New Year

The start of the new year is a perfect time to assess corporate compliance with U.S. immigration laws.  As Immigration and Customs Enforcement (“ICE”) and the Department of Labor (“DOL”) increase their number of company audits and fines each year, it is important for employers to perform annual audits of their employment law and immigration compliance.  In addition, companies are often financially responsible for any civil and/or criminal fines imposed when their staff does not correctly follow the letter of the law.  Thus, staff training on immigration compliance and employment laws should be a standard part of any business’s regular compliance audit.

Basic I-9 Requirements

Form I-9 is required by all employers to have each employee complete within 3 business days of hiring them, regardless of immigration status or citizenship.

I-9 Retention

A properly completed I-9 should be on file for every current employee.  For former employees, I-9’s should be retained for 1 year after termination or 3 years after start of employment, whichever is longer.

I-9 Storage

These confidential forms should be kept secured with access limited to trained staff only.  I-9’s and supporting documents may be retained electronically or in paper hard copies as long as the company correctly processes and consistently retains I-9’s in the same format.

Accepted Versions of I-9

New I-9’s should be filled out using the latest version of the form (either February 2, 2009 or August 7, 2009).  A new version does not need to be completed for current employees with a previously completed Form I-9.  The Spanish version I-9 may only be completed by employers and employees located in Puerto Rico.

I-9 Supporting Documents

If the employer utilizes e-Verify, e-Verify must be consistently performed and documented for every employee.  For non-U.S. citizens or non-permanent residents, evidence of current and valid employment authorization is required.

Common I-9 Errors

I-9 errors can be costly to employers if identified by the DOL or ICE during an audit.  Some common I-9 errors include:

  • Not timely completed;
  • Employer discrimination by requesting too few, too many, or only specific documents;
  • Incorrectly completed forms, such as incorrect date of birth or wrong box checked, missing social security number, no signature, document list incomplete or incorrect, incorrect form version, etc., as well as inconsistent manner of completion by the various company representatives, including an inconsistent mix of electronic documents and paper documents;
  • Not properly tracking immigration employment authorization expirations and documenting timely renewals or extensions of employment authorization;
  • Improper retention by not timely removing expired I-9’s for former employees or not maintaining I-9’s in a safe and secure manner; and
  • Incorrectly completing or not consistently documenting e-Verify, including situations where no-match letters are received and timely resolved.

Many of these pitfalls can be avoided through regular employee training and annual I-9 audits.

I-9 Auditing

We certainly recommend periodic internal I-9 reviews by companies.  However, such reviews should be done carefully.  It is not uncommon for self-audits of companies, once done incorrectly, to cause additional costly errors; therefore, an I-9 compliance audit by a qualified outside source is strongly recommended.

In addition to auditing actual completed I-9’s and supporting documents, employers are responsible for ensuring their hiring managers, human resources, executive staff, and other responsible employees are trained in employment law requirements, specifically what can and cannot be asked or requested.  For example: not all designated employees know how to avoid discrimination allegations when requesting documents by employees;  not all designated employees know who is authorized to sign I-9’s on behalf of the company, and not all designated employees know (or can easily find out) the difference between employees and contract workers?

I-9 Official Resources

We would like to share some general I-9 resources.

How Can We Help

The Capitol Immigration Law Group can provide various levels internal I-9 compliance audits and on-site employee training as well as training materials and guidance for performing regular audits and training.  We can provide immigration compliance training and auditing to meet an employer’s specific needs.  We encourage all employers to mindful of their compliance requirements and to proactively and regularly audit their compliance before a government agency does.   We also invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.  We also invite you to contact us if our office can be of any assistance or you have any questions or comments.

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