H-1B Cap Opens: Procedural Changes Could Catch Employers Off-Guard

Under immigration law, the H‑1B program allows U.S. employers to hire foreign nationals in “specialty occupation” positions for which they require a bachelor’s degree or the equivalent. Under current law, there is a cap on the number of new H‑1B petitions that will be granted during each federal fiscal year (“FY”). While current trends suggest the cap might not be hit as early this year as in some years, procedural changes related to prevailing wage requirements could catch employers off-guard and cause delays.

Immigration Inspections: ICE Audits Employers’ Immigration Documents

The Department of Homeland Security recently stepped up enforcement actions against employers with inspections of I-9 forms and other documents. On November 19, 2009, Homeland Security’s enforcement agency, Immigration and Customs Enforcement (“ICE”), issued Notices of Inspection and some subpoenas to 1,000 employers across the United States, seeking to review the following types of documents:

Employers Awarded Federal Contracts Must Now Verify Employees’ Work Authorization

Effective September 8, 2009, employers with federal contracts must begin checking work authorization for employees through the government E-Verify system. The rule applies to federal contractors and subcontractors, including those who receive American Recovery and Reinvestment Act Funds. E-Verify is an Internet-based program operated by the Department of Homeland Security agency, U.S. Citizenship and Immigration Services (“USCIS”), for employers to cross-check a worker’s birth date, name, Social Security information, and visa and immigration status against records contained in Homeland Security and Social Security Administration (“SSA”) databases. Employers who enroll in the program must use it uniformly for employees, regardless of citizenship.

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SeaTac Airport Added to Global Entry Program for International Travelers

Certain travelers arriving in U.S. airports from abroad can avoid lines by using the Global Entry Program. Administered by the Department of Homeland Security agency, U.S. Customs and Border Protection (“CBP”), Global Entry is a “trusted traveler” program designed to provide expedited clearance process for low-risk travelers, allowing CBP officers to focus on processing and inspecting other arriving passengers.

Global Entry is not available for domestic travel or for departures, only for entry into the United States from abroad.

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Revised Form I-9 Becomes Effective April 3, 2009

The Department of Homeland Security has revised the Employment Eligibility Verification Form (“Form I-9″), altering the list of documents employers may accept to verify work authorization and identity. Employers, agricultural recruiters and referrers, for a fee, must use the new version of the I-9 starting April 3, 2009. View full article (PDF).

Stimulus Plan Provisions for Favoring U.S. Workers Before Hiring H-1B Foreign Workers: Focus on Financial Institutions

The economic stimulus package that Congress passed and President Obama signed into law on February 17, 2009, imposes U.S. worker recruitment and retention, as well as record keeping obligations, on certain federal funds recipients before hiring H-1B foreign workers. View full article (PDF).

TN Status Expanded from One Year to Three Years

U.S. Citizenship and Immigration Services (“USCIS”) is expanding the validity period of Trade-NAFTA (“TN”) status from one year to three years. TN status comes from the North American Free Trade Agreement (“NAFTA”) among the United States, Canada and Mexico. TN status is available for professional workers from Canada or Mexico to work temporarily in the United States. TN status is available to professional workers from Canada or Mexico. Three years is the same period of time that USCIS currently may grant to H-1B specialty occupation workers. The rule cleared the Office of Management and Budget on September 10, 2008, and publication is expected soon. View full article (PDF).

H-1B “Lottery” Coming: Begin Filing Preparations by March 2008

Under immigration law, the H-1B program allows U.S. employers to hire foreign nationals in “specialty occupation” positions that require a bachelor’s degree or the equivalent. Under current law, there is a cap on the number of new H-1B petitions that will be granted during each federal fiscal year (“FY”). This year, current trends suggest that employers who do not mail their petitions on March 31, 2008, will be out of luck for what is considered the H-1B “lottery.” View full article (PDF).

Marriage Considerations for Foreign Nationals Awaiting a Green Card

It’s timely on Valentine’s Day to remind foreign nationals in H-1B and other nonimmigrant classifications who have found someone to love and to marry, that the timing of when they choose to marry may affect the immigration status of their prospective spouse. The considerations are particularly important for those with an application for adjustment of status to permanent residence pending, or those who plan to file one. Due to immigration quotas and anomalies of immigration law, marrying before receiving a green card can enable the spouse to join in the process, but waiting until after receiving a green card can prevent the spouse from joining the applicant in the United States for years. View full article (PDF).

New Form I-9 and Handbook for Employers

The Department of Homeland Security agency U.S. Citizenship & Immigration Services (“USCIS”) announced on November 7, 2007, that it has released a new version of Form I-9, Employment Eligibility Verification, as well as the M 274, Handbook for Employers, Instructions for Completing the Form I-9. Employers are required to complete an I-9 for all new employees. USCIS has advised that it intends to make additional changes in 2008 and issue another version of the I-9 at that time. View full article (PDF).

No-Match Letter “Safe Harbor” Rule in Flux: Best Practices for Employers to Follow in the Meantime

On August 15, 2007, U.S. Immigration and Customs Enforcement (“ICE”), an agency within the Department of Homeland Security (“DHS”) published a final rule, entitled “Safe Harbor Procedures for Employees Who Receive a No-Match Letter.” The rule was scheduled to take effect on September 14, 2007, and if it does take effect, it will impose new burdens on employers of U.S. workers as well as foreign workers. View full article (PDF).

July Sizzles with Immigration Rule Change

July 2007 will be a hot month for immigration law, with significant Department of State, Department of Homeland Security and Department of Labor rule changes going into effect.

• Department of Homeland Security Announces Immigration Filing Fee Increase; File by July 28, 2007, to Avoid Increase.
• State Department Announces Jump Forward in Immigrant Visa Priority Dates, Effective July 1, 2007; Speeds Up Last Phase of Green Card Process, but Expect Backlogs After July.
• Department of Labor Rules Restrict Employees From Paying for Their Own Labor Certification and Other DOL Rule Changes, Effective July 16, 2007.

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Cap for H-1Bs Hit in One Day: Some Options Remain

Each year there are 65,000 new H-1B slots available for companies to hire foreign workers. The quota is available starting October 1, and cases can be filed six months in advance. This year, U.S. Citizenship & Immigration Services (“USCIS”) received more than 150,000 H-1B petitions on April 2, 2007, depleting the cap in one day. View full article (PDF).

New Passport Rules for Air Travel – Guidelines and Frequently Asked Questions

Starting January 23, 2007, all travelers flying to or from the United States must carry a passport, or one of a few alternative documents, as evidence of citizenship and identity. This is a change to the law that previously allowed travel between the United States and Canada, Mexico, and the Caribbean with documentation of citizenship other than a passport, such as a birth certificate. Following are answers to some questions about the change. View full article (PDF).

Deadline for Speeding up the Green Card Process Approaches, Window Closes January 20, 2007

A window is open for employers who filed the first phase of the green card process for foreign employees to convert to a speedier process. The window closes January 20, 2007. View full article (PDF).

Guidelines and FAQ on Visa Retrogression

Heavy demand for employment-based permanent resident status can create backlogs and long waits to obtain “green cards,” sometimes due to retrogression of immigrant visa numbers. While retrogression and lengthy processing is frustrating, in many instances applicants and family can remain and work in the United States, and travel abroad, while waiting for quota backlogs to subside. View full article (PDF).

Immigration Enforcement in the Construction Industry

In May 2006, U.S. Department of Homeland Security enforcement officers raided construction sites of one of the country’s top residential home construction companies and found 76 undocumented workers working as subcontractors. As a result, four supervisors are facing federal charges of harboring illegal immigrants with penalties of up to 10 years in prison and $250,000. Further, in recent crackdowns, Homeland Security officers arrested seven managers of a Houston pallet supply company. These actions represent aggressive moves to show Homeland Security is serious about employer compliance of workforce hiring laws. Companies should recognize that immigration issues continue to pose hot-button topics for the construction industry, and should focus on three measures: 1. Know your workforce. 2. Know your obligations for complying with the law. 3. Know your rights. View full article (PDF).

This article first appeared in BUILDERnews Magazine.

Medicaid Law Changes Require Evidence of Citizenship

Beginning July 1, 2006, U.S. citizens seeking Medicaid benefits will have to provide evidence of citizenship. The new requirement to verify documentation when applying for Medicaid is intended to prevent illegal immigrants from declaring they are citizens and obtaining Medicaid benefits. View full article (PDF).

Guidelines On Travel For Foreign Nationals With Temporary Visas

When you are traveling abroad after you have obtained your temporary status to work in the United States, it is important that you have all the following documents in order to ease your return to the United States. As these guidelines explain, the type of documentation required depends on your immigration category. View full article (PDF).

H-1B Cap Hit Before Year Ends

Without warning, U.S. Citizenship and Immigration Services (“USCIS”) announced on August 12, 2005, that the H-1B quota for the coming year had been reached two days earlier, on August 10, 2005. Once again, this shows that demand for an educated workforce has outstripped the contracted supply in the United States. Unless Congress acts, employers will be left to consider alternatives or to turn away valuable foreign candidates for openings through September 30, 2006. View full article (PDF).