Labor Immigration Law

United States Labor Immigration Law News and Analysis

Employers Articles

Clarification on H-1B Transfer After Layoff

In late January we wrote an article which described the immigration implications and options available to H-1B workers who have been laid off or otherwise terminated from their employment.  Our article was prompted by a Vermont Service Center (VSC) AILA Liaison guidance and has generated a fair amount of interest and comments.

Work Allowed While H-1B Transfer Pending Even if There is a Gap in Employment

Just this week, VSC’s AILA Liaison provides some clarifications which, in these difficult economic times, provide a fair amount of relief to terminated H-1B workers.    Our article, and the previous guidance from VSC, indicated that in order to be eligible to “port” to a new H-1B employer, the new H-1B petition must be filed before termination or before the old petition is revoked or withdrawn by the old employer.

However, if the H-1B portability criteria are met, then the foreign national would be eligible to work pursuant to H-1B portability upon filing the H-1B transfer application even if s/he was not eligible for an extension or change of status. The H-1B portability criteria are: (1) the foreign national was lawfully admitted; (2) the new H-1B petition is “nonfrivolous;” (3) the new H-1B petition was filed before the date of expiration of period of authorized stay (as described on the I-94 card); and (4) subsequent to lawful admission, the foreign national has not been employed without authorization.  (INA § 214(n))

For example, if an H-1B employee is terminated on February 1, and her employer requests revocation of her H-1B on February 1, then the H-1B status is automatically revoked pursuant to 8 C.F.R. § 214.2(h)(11)(ii).  However, the foreign national remains in the U.S. and finds a job on March 1 and the new employer files a new, non-frivolous H-1B petition on her behalf.  Since the foreign national was lawfully admitted, the petition is non-frivolous, the I-94 was not expired, and she has not worked without authorization between February 1 and March 1, then the foreign national is eligible to start work under INA § 214(n).

Scenarios Upon Approval of Pending H-1B Transfer Application

The foreign national is eligible to work until the petition is adjudicated.  Once the H-1B petition is approved, this “interim” authorization to work ceases, and one of two things can happen.  One, USCIS will use its discretion and approve an extension of status and the employee will continue to be able to work for the new sponsoring employer.  Or, two, USCIS will deny the extension of status request and the employee will have to depart the U.S., and either obtain an H-1B visa at a U.S. consulate, or, if she already has a valid H-1B visa from her former employer, she will simply need to depart the U.S. and, upon re-entry, present her old visa with the new I-797 and continue working.

Conclusion

The guidance from VSC makes it easy for employees to understand their options in the event their H-1B employment is terminated. Working for the new H-1B employer while the application is pending allows an employee to continue to receive income especially when there is a period of unemployment between the old H-1B employment and the new one.  However, it should be noted that it is possible that USCIS may decline to “forgive” the period of unemployment between the two H-1B jobs and as a result the foreign national will have to travel outside of the U.S.

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2010 H-1B Cap Season Is Underway – Contact Us Now

About the H-1B Visa and the Annual H-1B Cap

The H-1B visa is one of the most commonly used U.S. work visas for highly skilled foreign born workers in fields such as information technology, engineering, research, academia, and others.  The H-1B visa is both highly desirable and, unfortunately, in short supply.

The H-1B visa category was created in 1990 through the Nationality and Immigration Act of 1990 (INA).  An H-1B job must require a bachelor’s degree or equivalent and the foreign national must have a bachelor’s degree or equivalent in a field of study that is related to the job.   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 the 2010 Fiscal Year starting on October 1, 2009.  As part of the Visa Reform Act which went into effect as of May 5, 2005, an extra 20,000 H-1B visas were made available to foreign nationals graduating with a US Master’s or higher degree from a US institution. These 20,000 are counted in addition to the annual cap of 65,000 visas.

Who is Counted Towards the Cap?

Most H-1B applications are subject to the annual cap.   Generally, all H-1B petitions which are filed for a new employment of an H-1B beneficiary (whether the foreign national is current outside of the U.S. or in the U.S. on a different visa type) and where the beneficiary has never held an H-1B visa in the past six years are subject to the cap.

However, some H-1B petitions are cap-exempt. Petitions filed by institutions of higher education or their affiliates or by non-profit or government research organizations are not subject to the H-1B cap (see our Guide to H-1B Cap-Exempt Employers)  Additionally, H-1B petitions where the beneficiary has had H-1B visa approved within the last six years are also exempt – in many cases such cases are H-1B employer transfers or changes in terms of employment.

What is H-1B Season?

All H-1B petitions which are subject to the cap must be filed on April 1 with a starting date of not earlier than October 1.  The demand for H-1B visas over the past several years has far exceeded the available 85,000 H-1B visas and as a result the government has instituted a lottery which randomly determines which H-1B applications submitted on or shortly after April 1 are to be considered.  Because of this limited window of opportunity, H-1B petitions which are subject to the cap must be filed on April 1 or a day or two afterwards.  Petitions filed late are automatically rejected.  As a result, the months of February and March are generally referred to as the “H-1B Cap Season” because this is the only time of the year when H-1B cap cases can be prepared and filed.

Deadline is April 1

The H-1B Season is underway.  We are already receiving many new H-1B cap inquiries and we are starting to get very busy with new H-1B cap applications.  Because cap-subject H-1B applications have only one opportunity to be filed per year, it is very important that each application be properly prepared and timely filed and we take extra effort to do so.  We still accept new cases so please contact us for a free initial consultation and evaluation on your case.  We would be happy to evaluate whether your H-1B petition is subject to the cap and if so, guide you through the process.

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Final Stimulus Bill to Restrict TARP Recipeints From Issuing New H-1B Visas

The final version of the stimulus bill, The American Recovery and Reinvestment Act of 2009 (H.R. 1, S. 1), was passed by the Congress late on Friday. The final version of ARRA included Senator Sanders’ amendment and the final version which is expected to be signed into law by President Obama on Tuesday, February 17th, will restrict the issuance of new H-1B visas by companies who are recipients of TARP funds. (List of TARP recpient companies)

We wrote and analyzed about the proposed amendment on Tuesday, February 10th, and we received a number of comments and reactions.  There was a very intensive effort to try and defeat the Sanders amendment during the conference, but ultimately, the Sanders amendment survived the conference and made its way into the final stimulus bill.

Following the passage, one of the major issues with analyzing the bill were (1) ths size of ARRA and (2) the scanned PDF format in which it was distributed.  Recognizing the urgency of the bill and its passage, we understand that to some extent transparency and convenience were sacrficed.  However, the inability to properly parse the text of the bill delayed its analysis.

According to the Conference Report:

Section 1611 provides that it shall be unlawful for any recipient of funding of Title I of the Emergency Economic Stabilization Act of 2008 or section 13 of the Federal Reserve Act to hire any nonimmigrant described in section 101(a)(15)(h)(i)(b) of the Immigration and Nationality Act unless the recipient is in compliance with the requirements for an H-1B dependent employer as defined in that Act.  This requirement is effective for a two-year period beginning on the date of enactment of this Act.

We would seek a final copy of the bill (as opposed to reading the PDF of the conference report) and post on this site any updates.

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Senate Version of Stimulus Bill to Restrict H-1B Visas for TARP Recipients

Today, Tuesday, February 10, the U.S. Senate is expected to vote and approve a version of the Stimulus Bill which President Obama has been pushing very hard over the past weeks.  The version of the Stimulus Bill contains a provision which would automatically and for a period of two years make all employers who are recipients of TARP funds H-1B dependent employers.

The relevant section of the Stimulus Bill is Sec. 1610:

    Sec. 1610. Hiring American workers in companies receiving TARP funding.
    (a) Short Title- This section may be cited as the `Employ American Workers Act’.
    (b) Prohibition-

 (1) IN GENERAL- Notwithstanding any other provision of law, it shall be unlawful for any recipient of funding under title I of the Emergency Economic Stabilization Act of 2008 (Public Law 110-343) or section 13 of the Federal Reserve Act (12 U.S.C. 342 et seq.) to hire any nonimmigrant described in section 101(a)(15)(h)(i)(b) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(h)(i)(b)) unless the recipient is in compliance with the requirements for an H-1B dependent employer (as defined in section 212(n)(3) of such Act (8 U.S.C. 1182(n)(3))), except that the second sentence of section 212(n)(1)(E)(ii) of such Act shall not apply.

 (2) DEFINED TERM- In this subsection, the term `hire’ means to permit a new employee to commence a period of employment.

    (c) Sunset Provision- This section shall be effective during the 2-year period beginning on the date of the enactment of this Act.

What is Going to Happen?

The Senate version of the Stimulus Bill, including the language above, is expected to be approved by the Senate today.  However, the House version of the Stimulus Bill does not have such language and both versions will have to be reconciled so that both the Senate and the House approve the same text.  Only then the Stimulus Bill would become law after it is signed by the President.

This means that the language restricting H-1Bs at TARP recipients may not end up in the final law.  However, given the pressure to pass the legislation quickly, it is very possible that the House would adopt the proposed Senate language and ultimately impose the H-1B restrictions.

What Does the Prohibition Mean?

The text, as currently drafted, would impose some limits on the ability of companies recipients of TARP funds to hire new foreign workers on H-1B visas.  By making such employers “H-1B dependent”, the law would require any TARP recipient willing to sponsor an H-1B for the next two years to, among other things, (1) provide certain “displacement attestations” that no U.S. workers have been or will  be displaced as a result of the H-1B employee; (2) provide recruitment attestations about the nature of the recruitment process; (3) remain liable for displacement of U.S. workers as a reuslt of placement of H-1B employee with another employer.

However, the requirements on an H-1B dependent employer do not apply for “exempt H-1B nonimmigrants” which include (1)  those holding a master’s or higher degree or its equivalent in a specialty related to the intended employment, or (2) who earn wages (including cash bonuses and similar compensation) at an annual rate of at least $60,000.   This exemption is not likely to cover all, but is likely to cover many of the intended foreign national beneficiaries of H-1B visas from TARP recipient companies.

Finally, the definition of “hire” is drafted in a way that includes only new employment.  This should mean that H-1B extensions for H-1B holders already employed at TARP recipient companies should not be subject to the additional requirements.

Who are TARP Recipients?

The list of companies recipients of TARP funds is very long, so we will not publish it at length.  Please find the full and recently updated list here.

Conclusion

While the Stimulus Bill draft may be a source for alarm for some, the reality is that (1) until the law is approved by both the Senate and the House, the text is not final and (2) there are some exceptions which would allow TARP companies to hire H-1B workers either by complying with the H-1B dependent employer requirements or by claiming the applicable exemptions.

Update (14:57 pm):  the Senate approved the Stimulus Bill by 61-47 votes.

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Recent PERM Numbers Suggest Increasing PERM Delays

The U.S. Department of Labor (DOL) has released its quarterly report on PERM for the first quarter of FY 2009 covering October 1, 2008 to December 31, 2008.  For comparison, you can read about the previous DOL report here.

There are some interesting numbers.  Unfortunately, the news is not good for PERM applicants.  As of December 31, 2008, there were 53,200 active PERM cases pending at DOL.  This is significantly higher than the 40,200 cases which were pending as of September 30, 2008.  This means that for the past three months, the backlog at DOL’s PERM processing centers has increased by 13,000 cases, or by 32%.   For the same period, between October 1 and December 31, 2008, DOL received 20,752 new PERM applications but it completed only 4,571 cases.

These  numbers confirm our observations that PERM applications are backlogging significantly and the processing time is likely to skyrocket over the next 6-12 months.  According to (fairly reliable) information compiled by our friends at trackitt.com, the PERM processing times have been steadily increasing from somewhere around 70 days in late 2007 and early 2008 to 200-200 days in mid 2008.   Based on DOL’s statistics, we expect the PERM processing times to incrase more.

We will continue monitoring the PERM timelines and attempt to draw some conclusions which would help our clients plan their immigration strategy.  Please subscribe to our newsletter to receive regular updates on this topic.

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E-Verify Requirement for Federal Contractors Postponed

The requirement, imposed late last year on certain federal contractors to become E-Verify compliant or become ineligible for contracts with the federal government was due to become effective on January 15, 2009.  However, the requirement, after attack by a number of organizations special interest groups, has been postponed until at least May 21, 2009.

There are a number of legal challenges on the proposed rule and we will continue posting updates on the topic as they become available.

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USCIS Updates Form I-9, Employment Eligibility Verification

USCIS has updated Form I-9, Employment Eligibility Verification and the new form is available for us; however, two versions exist. Please note that the version dated 06/05/07 is only available if used BEFORE February 2, 2009. The version dated 02/02/09 will be appropriate for use ON or AFTER February 2, 2009.

UPDATE: the implementation of the updated Form I-9 has been delayed.

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Form I-9, Employment Eligibility Verification Revised

USCIS has announced that is has submitted for publication in the Federal Register an Interim Final Rule which modifies the Employment Eligibility Verification process.

The Interim Final Rule narrows the list of identity documents which are acceptable and specifies that expired documents are not considered acceptable forms of identification.   The changes included in the Interim Final Rule are intended to improve the security and the trustworthiness of the employment eligibility verification process.

The Interim Rule eliminates Forms I-688, I-688A, and I-688B (Temporary Resident Card and older versions of the Employment Authorization Card/Document) from List A on Form I-9.  These documents are no longer issued and those that were in circulation have expired. The Rule also adds to List A of the Form I-9 foreign passports containing specially-marked machine-readable visas and documentation for certain citizens of the Federated States of Micronesia and the Republic of the Marshall Islands.  The Rule makes other, technical changes to update the list of acceptable documents. The revised Form I-9 includes additional changes, such as revisions to the employee attestation section, and the addition of the new U.S. Passport Card to List A.

Form I-9.

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E-Verify Becomes Mandatory for Federal Contractors

We have written about this requirement in the past, but it is now a final rule.  Starting January 15, 2009, federal contractors and subcontractors will be required to begin using the U.S. Citizenship and Immigration Services’ E-Verify system to verify their employees’ eligibility to legally work in the United States.

Federal contracts awarded and solicitations issued after January 15, 2009 will include a clause committing government contractors to use E-Verify. The same clause will also be required in subcontracts over 3,000 for services or construction. Contracts exempt from this rule include those that are for less than $100,000 and those that are for commercially available off-the-shelf items. Companies awarded a contract with the federal government will be required to enroll in E-Verify within 30 days of the contract award date. They will also need to begin using the E-Verify system to confirm that all of their new hires and their employees directly working on federal contracts are authorized to legally work in the United States.

It is interesting to note that the final rule is significantly narrower than the proposed rule circulated earlier this year.  The revised final rule would limit its application to contracts worth $100,000 or more, instead of $3,000, and require employers to check the eligibility only of workers on those contracts, instead of all their workers. The changes would apply to solicitations or awards made after January 15, and exempt workers who have already received security clearances, contracts for commercial, off-the-shelf items, and contracts lasting less than 120 days.

According to Department of Homeland Security numbers, more than 92,000 employers currently use E-Verify, a free Internet-based system operated by the DHS in partnership with the Social Security Administration that allows participating employers to electronically verify the employment eligibility of their employees. During Fiscal Year 2008, more than 6.6 million employment verification queries were run through the system representing 1 out of every 8 hires made in the United States. Approximately 96.1 percent of all cases queried through E-Verify are instantly found to be employment authorized, and individuals who are not immediately cleared are given the opportunity to correct their government records in order to confirm their work eligibility.

We are attaching a Frequently Asked Questions document, released by USCIS yesterday, to address most of the concerns and questions which may be raised by this new rule.  We at the Capitol Immigration Law Group are an E-Verify registered agent and we can help you understand the requirements of the system and we can help you in your compliance efforts.  Please contact us for more information.

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EB-5 Investor Visa Regional Center Pilot Program Extended

About the EB-5 Visa and Regional Centers

Under section 203(b)(5) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1153(b)(5), 10,000 immigrant visas per year are available to qualified individuals seeking permanent resident status on the basis of their engagement in a new commercial enterprise (generally of at least $1 million).  Of the 10,000 investor visas (i.e., EB-5 visas) available annually, 5,000 are set aside for those who apply under a pilot program involving an CIS-designated “Regional Center.”

The Regional Center program was established by Congress as a pilot program to determine the interest of foreign investors, in exchange of a green card, in specific investment areas, determined by the U.S. government, which are in need of investment capital and development.  The general requirement of $1 million investment is lowered by half, to $500,000, for such Regional Centers.

A Regional Center is generally set up and run by a third party, that allows the prospective foreign national to invest $500,000 (in an economically depressed area in the US), but not have to be involved in the oversight of the investment nor the job creation. The Regional Center personnel are set up to create 10 new jobs on behalf of the investor and are involved in the day to day operations of the whatever investment vehicle that they are overseeing.  The Regional Center program thus allows foreign investors to obtain the benefit of their investment, receive a green card, and not have to be involved in the day-to-day operations of their U.S.-based business.

Extension of the Regional Center Program

The Regional Program is a temporary program, which was scheduled to expire on September 30, 2008.  However, Congress has extended its expiration through March 6, 2009.    This is only a short extension to allow Congress time to debate and discuss the future of the program.

The U.S. House of Representatives has passed the bill authorizing the extension of the Regional Center program, but the Senate has yet to review it as of the time of this writing.  It then has to be signed by the President into law.   However, in the meantime, the EB-5 program has been authorized by a stop-gap resolution signed by the President.

Fiscal Year 2008 Regional Center Statistics

To support the popularity of the Regional Center program, USCIS recently releases statistics on EB-5 and the Regional Center EB-5 visas.  During Fiscal Year 2008, there were:

  • 12 new EB-5 regional centers were approved;
  • 1017 Forms I-526, Immigrant Petitions for Alien Entrepreneur filed; and
  • 350 Forms I-829, Petitions by Entrepreneurs to Remove Conditions filed.

These numbers suggest some very good news for foreign EB-5 investors who seek to obtain a green card – while Congress is designating more and more new Regional Centers, there are still plenty of investor visas available to fill the annual cap of 10,000.

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