On April 5, 2013, U.S. Citizenship and Immigration Services (USCIS) announced that it had received enough petitions to meet the statutory H-1B cap of 65,000 new H-1B visas to be issued each year.  The H-1B visa category is used by U.S. businesses to employ foreign workers in a “professional” or “specialty occupation” position. USCIS also announced that it received enough petitions to meet the 20,000 advanced degree exemption.  USCIS reported receiving approximately 124,000 H-1B petitions within the first week of the filing period. 

On April 7, 2013, USCIS selected the H-1B petitions to be processed using a computer generated random selection process, known as a lottery.  H-1B cap subject petitions received after April 5, 2013 or not selected for processing in the lottery will be rejected and returned to the petitioner along with the filing fees.  USCIS has started to issue receipt notices for premium processing cases selected for processing.  

H-1B petitions for extensions of stay or change of employer for workers who are currently in H-1B status do not count towards the H-1B cap and USCIS will continue to accept petitions for individuals in those categories.  USCIS will also continue to accept petitions for employers exempt from the H-1B cap, including institutions of higher education, nonprofit entities affiliated with an institution of higher education, and nonprofit research organizations. 

If you missed the H-1B filing window or your petition was not selected for processing, you should contact one of the lawyers in the Global Immigration Practice Group to discuss whether there are other options for employing your foreign national.

On March 8, 2013, U.S. Citizenship and Immigration Services (USCIS) announced the release of the new I-9 Employment Eligibility Verification Form.  All employers are required to use the new I-9 immediately to verify the identity and employment authorization eligibility of their employees.

Although USCIS requires employers to use the new Form I-9 beginning March 8, 2013, USCIS has provided a 60-day grace period for employers to continue to use the current version of the form issued 08/07/09 (the 02/02/09 version is also still valid) until May 7, 2013.  Failure  to ensure proper completion and retention of Forms I-9 may subject an employer to civil money penalties of up to $1,100 per I-9, and, in some cases, criminal penalties.  Although the new two-page Form I-9 mainly contains format changes, additional data fields, and further instructions to the employer, it increases the administrative burden placed on employers. 

Here is a section-by-section summary of the changes to the Form I-9:

Section 1: Employer Information and Attestation

• fields are added to list the employee’s email address and telephone number, but are optional; and
• employees who check “An Alien Authorized to Work Until….” and who were issued an I-94 card, will also need to list the foreign passport number and country of issuance.

Section 2: Employer Review and Verification

• employers will need to list employee’s full name at the top of Page 2;
• List A now has room to list three documents, which is helpful to the employer because the prior form only had room for two documents, and there are occasions when three documents are required, e.g., J-1 visa holders or F-1 students completing Optional Practical Training;
• the certification box adds numbers to the items the HR representative must attest to when reviewing the documents and separates out the place where the employer is required to insert the employee’s first date of work for pay;
• the List of Acceptable Documents, List A, Number 5 has revised language but essentially includes the same information regarding accepting foreign passports and I-94 cards;
• the List of Acceptable Documents, List C, Number 1 provides clarification that Social Security  Cards containing restrictions, such as “Not Valid For Employment,” “Valid for Work Only with INS Authorization,” or “Valid for Work Only with DHS Authorization” are not acceptable as List C documents; and 
• the List of Acceptable Documents includes a reference to Section 2 of the Handbook for Employers regarding information about acceptable receipts.

Section 3: Reverification & Rehires

• provides clarification that List B identity documents do not require reverification; and
• adds a field for the Employer representative to print his or her name.

To avoid discrimination claims, do not complete the new Form I-9 for current employees for whom there is already a properly completed Form I-9 on file, unless reverification applies.  Now is the time to ensure that all your personnel  responsible for completing the Form I-9 are trained on the new form.  If you have any questions or need additional information, visit our website at www.laborlawyers.com or contact any member of the Fisher & Phillips Global Immigration Practice Group.

Give your company the gift of an immigration audit this year – it may just keep your company off the government’s naughty list.  Here are the top 12 immigration mistakes employers made in 2012:

1.  Failing To Properly Pay H-1B Workers

USDOL debarred a Washington information technology consulting services company from participating in the H-1B program for two years, assessed $405,175 in civil money penalties, and ordered payment of $983,039.12 in back wages for numerous H-1B violations, including willful failure to pay required wages by demanding workers pay H-1B government filing fees.

2.  Employing Unauthorized Workers

Two Houston companies each forfeited $2 million and agreed to adhere to revised immigration compliance programs for employing unauthorized workers.  Both companies received multiple "no-match letters" from the Social Security Administration (“SSA”), which indicated employee names and Social Security numbers did not match SSA records. ICE completed an I-9 audit of both companies in 2011, revealing that from 2005 to 2009 about 44 percent of the workforce of one company was undocumented, many individuals were employed with numerous "egregiously suspect" identification documents, including misspellings of agency names and/or containing the words "novelty item."  Similarly, an I-9 audit of the second company revealed that about 269 of its 451-person workforce consisted of undocumented aliens.

3.  Failing to Properly Notify USCIS of an H-1B Worker’s Termination

USDOL has repeatedly held that H-1B workers are entitled to back pay for the entire period of the H-1B approval where the company failed to promptly withdraw the H-1B with USCIS and pay for the reasonable cost of the H-1B worker's return transportation to his or her home country.

4.  Visa Fraud

The head of a Los Angeles law firm was sentenced to 10 months in prison for his role in orchestrating a lengthy employment visa fraud scheme where he and other members of the firm set up nearly a dozen shell companies in order to file at least 137 fraudulent employment-based visa petitions for nearly 100 foreign national clients in exchange for payments of $6,000 to $50,000.

5.  Citizenship Status Discrimination

USDOJ reached an agreement with a manufacturer of semiconductor structures and advanced solar cells based in Illinois to resolve allegations that the company violated the anti-discrimination provision of the Immigration and Nationality Act (“INA”), when it placed six online job postings that explicitly stated citizenship status preferences or requirements that excluded certain work-authorized non-citizens from consideration.  The company will pay $12,000 in civil penalties. 

6. I-9 Document Abuse

In October, USDOJ settled a lawsuit against a Las Vegas Casino for $49,000 in civil penalties and full back pay to a former employee for unfair documentary practices.  The complaint alleged the casino required non-citizen employees to provide more or different documents or information than it required from citizen employees during the initial employment eligibility verification process.  The company then allegedly used the information gathered to impose improper document requests on non-citizens during the reverification process as a condition of continued employment.  The complaint further alleged that the casino subjected non-citizen employees’ documents to a heightened review process by senior human resources representatives that was not applied to documents presented by U.S. citizens.   

7.  Failure to Comply with State Immigration Laws

Employers are often unaware of the myriad of state immigration requirements.  A Survey of Immigration Laws is available on our website.

8.  Failing to Comply with the Deemed Export Rule

 The Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR) impose licensing requirements on the export, reexport, and in-country transfer of a wide variety of items that are controlled for national security, foreign policy, and other reasons. The requirements include an obligation for U.S. persons, including corporate employers, to seek and receive a U.S. Government license before releasing in the U.S. to foreign persons, including foreign person employees from certain countries, various types of technology controlled by these regulations. This obligation is referred to by the Commerce Department as the “deemed export” rule because releases of controlled technology to foreign persons in the U.S. are “deemed” to be an export to the person’s country or countries of nationality.

9.  Failure to Properly Complete Form I-9s
 
A construction company with no history of previous I-9 violations was assessed fines in the amount of $17,200 for 103 I-9 violations, including failure to present I-9 forms for 10 employees, failure to list the proper List A document in Section 2 of the I-9, and twenty-seven I-9s with procedural or technical violations. 

10. Failing to Follow Proper E-verify Procedures

USDOJ reached a settlement with a provider of janitorial and facilities maintenance services based in Tampa to resolve allegations that the company violated the anti-discrimination provision of the INA when it failed to fully reinstate an employee in retaliation for asserting her right to work in the U.S.  The company has agreed to pay $6,800 in monetary relief to the charging party, which included back pay and interest, along with a $2,000 civil penalty.  The charging party alleged that the company failed to provide the employee with proper notice and instructions for contesting an initial data mismatch in E-Verify, resulting in E-Verify issuing an erroneous final response that she was not work authorized.    

11.  Taking Adverse Actions Against Employees Based Solely on SSA No-Match Letters

There is no clear guidance from the government on how an employer should respond to No-Match Letters received in 2012.  Employers should take the following steps upon receipt of a SSN No-Match letter:

• Check your records to make sure your Human Resources department accurately recorded the employee’s information.  If an error was made, provide the SSA with any corrections;
• If your records are correct, promptly notify the employee that you received a SSN No-Match letter and ask the employee to go to SSA to address any discrepancy;
• Do not take any adverse action against the employee based solely on the SSA No-Match letter;
• Apply any procedure developed to respond to the SSA No-Match letters in a non-discriminatory way; and
• Give the employee a reasonable amount of time to correct any discrepancy.  If the employee indicates that he visited SSA and the situation is resolved, please note the actions you and the employee took to resolve the discrepancy in the event of an audit. 

12. Not Preparing for an ICE Raid

In the chaos of an intrusive ICE raid, companies should ensure that their representatives are instructed not to volunteer statements to ICE agents or allow themselves to be interviewed or interrogated without an attorney present who represents the organization.
 
Last fiscal year, employers nationwide were ordered to pay nearly $10.5 million in civil fines for hiring violations. In addition, criminal charges were filed against a record-breaking 221 owners, employers, managers and/or supervisors – up from 196 in fiscal year 2010.  Once the final statistics for 2012 are tallied, 2012 is expected to be another record-breaking year for enforcement.  In order to avoid the above-listed costly errors, your company’s resolutions for 2013 should include ensuring immigration compliance programs are in place, up-to-date, and followed.

The L-1 Intracompany Transferee visa category is a valuable visa category for international companies wishing to transfer key employees to the company’s U.S. operations.   The L-1 visa category authorizes the transfer of managers, executives and individuals with specialized knowledge from a foreign company to a U.S. related company.  There are two L-1 visa categories.  The L-1A visa category permits the transfer of managers, and executives, while the L-1B visa category permits the transfer of individuals working in a specialized knowledge capacity.

In general, for L-1 visa purposes, a manager is an employee who manages an organization, department, subdivision, or function of a business.   An executive is an employee who directs the management of the organization or a major component or function of the organization.  An employee with specialized knowledge is someone with special knowledge of the company’s products, services, equipment, techniques, etc. or an advanced knowledge of the company’s processes and procedures.

In order to qualify for the L-1 visa category, the foreign employee must have been employed by a foreign entity related to the U.S. company.  The qualifying relationship between the U.S. and foreign entity includes, parent, branch, subsidiary, or affiliate.    In addition, the foreign employee must have been employed in an executive, managerial or specialized knowledge capacity for at least one full year during the three years preceding the filing of the petition.  The employee is not required to be transferred to the U.S. in the same position, but the U.S. position must be as an executive, manager or in a specialized knowledge capacity. 

Whether the U.S. position is in an executive, managerial, or specialized knowledge capacity will determine how long the person is permitted to remain in the U.S. in L-1 status.  The L-1A visa category for managers and executives authorizes employment in the U.S. for up to 7 years.  The L-1B visa category for specialized knowledge authorizes employment for up to 5 years.  Individuals approved for the L-1A visa are not only permitted to stay in the U.S. for a longer period of time, but are also eligible for a streamlined permanent residence process.  Spouses and children of L-1 visa holders are given L-2 visa status and spouses are also eligible to apply for work authorization in the United States.

The normal procedure for applying for the L-1 category is for the U.S. employer to file a petition with U.S. Citizenship and Immigration Services.  However, Canadian citizens are allowed to apply for L-1 status directly at the U.S. border. 

There is not a numerical cap on the number of L-1 visas available each year, so an employer may file an L-1 petition at time.  Further, there are no specific educational requirements for the L-1 visa category.   In order to qualify, the employee must have only worked in a qualifying capacity.  Therefore, U.S. companies with international operations should consider the L-1 visa whenever the company’s business requires the services of an employee from a foreign related company. 

Since the H-1B visa cap was reached on June 11, 2012, U.S. employers wishing to hire a foreign worker who is a Canadian or Mexican citizen should consider the TN visa category.  The TN visa category is part of the North American Free Trade Agreement (NAFTA) and permits Canadian and Mexican citizens to enter the United States to participate in professional business activities on a temporary basis.

Under the TN visa category, Canadian and Mexican citizens are permitted to work in the U.S. in certain defined professional occupations, including, but not limited to, Accountant, Architect, Computer Systems Analyst, Engineer, Hotel Manager, Management Consultant, Mathematician, Scientific Technician/Technologist, and Scientist.  There are specific educational requirements and alternative credentials for each category and TN status is only available to individuals employed in the listed occupations who possess the required credentials. 

The TN visa category is available to an unlimited number of Mexican and Canadian citizens.  Unlike the H-1B visa category, the TN visa category does not have a numerical limit on how many visas are available each year.  Under the TN visa category, a Canadian or Mexican citizen can obtain employment authorization in three-year increments and renew indefinitely. 

In order to apply for a TN, Canadian citizens can simply apply for TN status at a U.S. port of entry.  Canadian citizens are not required to obtain a visa at a U.S. Consulate.   However, Mexican citizens are required to apply at a U.S. Consulate and obtain a TN visa stamp in their passport prior to entering the U.S.

Whether applying at a U.S. port of entry or at a U.S. Consulate, applicants for a TN must provide the following documentation:

• Valid Canadian or Mexican passport as proof of citizenship;
• Offer letter of employment from U.S. employer, detailing the professional position and applicant’s credentials;
• Proof of applicant’s qualifications, including degree, diploma, and/or experience letters; and
• Application fee.

Due to the availability of the TN visa for qualified applicants, the TN visa is an option for employers seeking to immediately hire a Canadian or Mexican citizen into a professional position.  Once employers have identified a potential candidate for TN status, they should contact an immigration attorney to evaluate whether the offered position and the candidate’s credentials fit within one of the defined TN occupations and will support a TN application.   

As a rule, if an employee in the United States is unable to produce a valid, unexpired work authorization document to complete the Form I-9 process (for a new hire) or by the date that his or her prior authorization is due to expire (for a current employee), you cannot continue the employment.  But what do you do if the employee announces that he or she has Temporary Protected Status (TPS) work authorization and cannot produce an unexpired employment authorization card?  What is TPS?  Can you allow this employee to work and for how long?  The answer is “Yes” if the employee is from a TPS-designated country and for which an automatic extension of employment authorization has been granted. 

TPS work authorization is granted to individuals from countries that DHS has determined have conditions preventing their nationals from safely returning home (e.g. civil war or environmental disaster).  Currently, El Salvador, Haiti, Honduras, Nicaragua, Somalia, Sudan, and South Sudan have TPS designation and citizens of those countries are eligible for work authorization with varying country-specific end dates.  Often, DHS will re-designate TPS through a particular date and also grant an automatic extension of work authorization through a shorter date to allow continued work while the individual waits for issuance of his or her new EAD.  For example, TPS EADs for nationals of El Salvador expired on March 9, 2012.  DHS re-designated TPS for El Salvador through September 9, 2013 and granted an auto-extension of work authorization through September 9, 2012.  An employee from El Salvador with TPS work authorization is allowed to continue working until September 9, 2012 without presenting an unexpired EAD.  For a list of current TPS countries, expiration dates, and automatic EAD extension dates, visit the U.S. Citizenship and Immigration Services (USCIS) website at www.uscis.gov/tps.

To ensure compliance with Form I-9 requirements, for a new employee, you may accept an expired EAD that has been auto-extended if the category listed on the card is either “A-12” or “C-19” and the expiration date corresponds with the last re-registration date indicated on the USCIS website.  Do not ask for proof that the employee is a national of the TPS country.  For an existing employee, update Sections 1 and 2 of the Form I-9 on file by drawing through the expiration dates listed, write the new auto-extension date above the prior dates, and write “TPS Ext.” in the margins of both sections.  Have the employee initial and date the change in Section 1.  You will initial and date the change in Section 2.  Set a reminder to re-verify the  auto-extended EAD when it is due to expire.  At the end of the auto-extension period, the TPS employee must present his new EAD.  As long as DHS continues to re-designate TPS for your employee’s country, he or she will continue to be employment-authorized.  You can to continue to employ him or her (either under the auto-extension option or with his or her new EAD card) but remember to rev-verify his or her Form I-9 each time.