Categories Compliance Department of Labor News & Updates USCIS

How This Immigration Bill Impacts Employers

The highly publicized bipartisan “Gang of Eight” in the Senate has pushed forward to draft an immigration reform bill that many believe will make it through Congress and result in comprehensive immigration reform. Many of the bill’s provisions impact U.S. employers.

H-1B Visa Reform

Currently, there is a cap of 65,000 H-1B visas allotted every year. This year, the H-1B cap was exceeded during the first five days of the filing period and resulted in a lottery to select which petitions USCIS will accept. Recognizing the need for more visas, this bill proposes to increase the minimum number of H-1B visas to 110,000, with an allowed increase of 10,000 every year depending on demand from the previous year. The maximum allowable number is 180,000 H-1B visas.

Additionally, the number of exemptions for those with advanced U.S. degrees increases from 20,000 to 25,000. However, the bill limits the exemption to Science, Technology, Engineering, and Mathematics (STEM) occupations.

The bill provides a 60-day grace period for H-1B workers who separate from their sponsoring employer. During this time, they can either depart the United States or find a new employer to sponsor their H-1B. A timely filed petition during the 60-day grace period would keep the H-1B worker in valid status while the case is pending.

The bill would allow spouses of H-1B visa holders to work in the U.S. if their home country allows reciprocal employment in similar situations.

However, with some benefits come some costs. As H-1B visas increase, the bill compensates by requiring employers to pay higher wages to H-1B workers based on a new 3-tier wage system to be developed by the Department of Labor. Also, before employers can hire an H-1B applicant, they are required to advertise the position to U.S. workers. Under the bill, the Department of Labor would establish a centralized website where all employers must post H-1B positions for 30 days before hiring an H-1B applicant.

Changes to the Green Card Process

Under this bill, the demand on the limited number of immigrant visas would be greatly alleviated. Cases filed under the EB-1 category would no longer be counted toward the annual limit, nor would cases for those holding doctorate degrees. Cases for dependent spouses and children would also not be counted.

Moreover, the bill establishes a “merit-based points” system that would replace the current Diversity Visa Program. Under Tier 1, beneficiaries can acquire points for factors such as education, length of employment, type of employment, family members in the U.S., and length of residence in the U.S. For the first four fiscal years after the bill’s enactment, merit-based visas will be allocated for skilled workers, professionals, and other workers, who provide non-seasonal and unskilled labor. For the Tier 2 track, employment-based immigrant visas are provided to those with cases pending more than 5 years.

An Increase in Government Oversight

Heightened security is a main focus of this bill. For this reason, the bill envisions 100% employer participation in E-verify by year five of the bill’s enactment.

It is anticipated that the Department of Labor would be more involved in employer enforcement as well. This bill removes the “reasonable cause” requirement and allows the DOL to investigate employers for any reason. The DOL would also conduct annual compliance audits of all employers with over 100 employees if more than 15 percent of them are H-1B workers.

Further, this bill increases fines on employers violating terms of the Labor Condition Application. For mistakes on an LCA, fines would increase from $1,000 to $2,000. For willful LCA violations, fines would increase from $5,000 to $10,000.

Conclusion

The “Gang of 8” bill is currently undergoing mark-up procedures in the Senate. At the same time, a bipartisan group in the House of Representatives in seeking to draft its own immigration reform bill. These bills will then proceed to a vote.

Graham Adair continues to monitor developments on comprehensive immigration reform. We will provide updates as they become available.

If you have any questions, please feel free to contact us at: info@grahamadair.com.

Categories Compliance News & Updates USCIS

USCIS Issues New I-9

Today, U.S. Citizenship and Immigration Services (USCIS) publishd a revised version of Form I-9.? The new version requires additional information from foreign national employees, including the email address, telephone number, and foreign passport information.

 

The revised form is effective today.? USCIS is providing a 60-day grace period so that employers can update their internal processes. During the grace period, the current version can still be used. After the 60-day grace period, which ends on May 7, 2013, employers must use the new I-9 or be subject to penalties for not using the correct version.

 

Starting today, the new Form I-9 can be downloaded at: www.uscis.gov.

 

If you have any questions about this new process or its impact, please feel free to contact us at: info@grahamadair.com.

Categories Compliance News & Updates

Updates on Plan to Eliminate the I-94 Card

It was announced in 2012 that U.S. Customs and Border Patrol would move to eliminate the issuance of I-94 cards to arriving non-immigrants in the near future.? In 2012, I-94 cards were no longer issued to individuals arriving under the Visa Waiver Program.? However, CBP did not announce when or how it would eliminate I-94 cards for other arriving non-immigrants.? This is obviously a significant move for CBP and has ramifications across several branches the Department of Homeland Security and other government agencies, such as the Social Security Administration and many state agencies who issue drivers licenses.

Although there is still no publically available timeline for when changes will happen, these are some of the details of CBP?s plan:

  • I-94 cards will at some point in the near future no longer be issued to passengers arriving at air and seaports with Advanced Passenger Information Systems (APIS) in place;
  • I-94 cards will continue to be issued at land border crossings and seaports not equipped with APIS;
  • In place of the I-94 card, individuals will be given a stamp in their passport that will include a handwritten annotation indicating non-immigrant status and the period of authorized stay in the U.S.; and
  • CBP will record admission to the U.S. in an electronic database; there is some question of whether individuals will be given a receipt confirming their information in the database, and CBP has taken this under consideration.

The eventual elimination of the I-94 card will impact employers when it comes to I-9 verification and participation in E-Verify since a valid passport and I-94 card are currently accepted as evidence of valid work authorization.

The attorneys at Graham Adair will continue to monitor and update our clients as these changes go into effect.? We will work with our clients to make this government process change seamless for our clients.

Categories Compliance Immigration and Customs Enforcement News & Updates USCIS

Employer Alert on Site Visits

Site visits to employers sponsoring H-1B petitions have been increasing recently as USCIS continues to implement changes in response to its H-1B Benefit Fraud Analysis report from September 2008. ?As site visits become more common, employers need to become familiar with what to expect and the topics and questions that may be raised by the inspector.

 

The California Service Center (CSC) advised employers that inspections typically check the work location listed on the I-129 petition. ?(For employees who work offsite or at multiple locations, an itinerary should be provided in the petition.) ?In? ddition to speaking to a company representative ? typically the signatory of the? etition ? and the beneficiary, the inspector may also ask to review documents related? to the petition and take photos of the worksite.

 

In practice, we have had inspectors:

  • Verify the information submitted with the petition, including supporting documentation submitted by the petitioner, based on a checklist prepared by USCIS;

  • Verify the existence of a petitioning entity;

 

  • Take digital photographs;

 

  • Speak with organizational representatives to confirm the beneficiary?s work location, employment workspace, hours, salary and duties; and

 

  • Speak with employees to confirm job details contained in the I-129 petition.

 

Furthermore, we have had inspectors request general information about other H-1B petitions pending or in process with the employer.? These requests have been made in person, by phone, and by email.

 

Site inspectors will report the results of their site inspections to the Fraud Detection and National Security (FDNS).? An FDNS Officer will review the information and determine whether an official inquiry should be made. ?If so, the FDNS will provide an Immigration Services Officer (ISO) with a Summary of Findings (SOF), which may decide to request additional evidence from the petitioner or initiate denial or revocation proceedings. ?When indicators of fraud are identified, the FDNS Officer may refer the case to ICE for criminal investigation.

 

If your company is contacted about a site visit, contact your Graham Adair attorney for guidance.

Categories Compliance News & Updates USCIS

New Combined EAD and AP Card

The U.S. Citizenship and Immigration Services (USCIS) just announced that it will start issuing a new combined employment authorization document (EAD) and advanced parole document (AP) to certain individuals who have a pending employment or family based I-485 application to adjust status. This new combined EAD/AP card will look similar to the current EAD card, but will contain language on the face of the card that states ?Serves as I-512 Advanced Parole.? The new card will be issued to individuals who concurrently apply for their EAD and AP documents with their I-485 application. The card will also be issued to applicants who file for extensions of their EAD and AP documents concurrently, so long as their EAD and AP documents expire within 120 days of each other.

The new card will be issued for one to two years at the discretion of USCIS. This new card will allow individuals to carry only a single document for work and travel authorization while the I-485 applications are pending.

Employers will be able to treat this document as a List A document for purposes of I-9 verification.

If you have further questions about this document please contact Graham Adair.