January 2011 Archives

January 29, 2011

H-1B Cap Reached for FY2011

The annual 65,000 H-1B cap has been reached as of January 26, 2011. That means for the balance of the fiscal year ending September 30, 2011, no new H-1B visas are available for employers with positions subject to the cap if they want to hire foreign talent between now and the end of September. The fact the cap was reached at all is interesting. In an earlier post, GAO Issues Significant H-1B Report , I noted that the cap has been reached every year except for 2001 to 2003 when the maximum available visas were 195,000. But in every year the maximum cap was 65,000, including this year, the cap has been reached well before the end of the fiscal year. Even in a poor economy when hiring has been slow, it has take several months to reach the cap, but several months are left when employers will be out of luck. Reaching the cap at all means there is still job growth in various sectors and that demand has exceeded the supply. Now that the cap is reached, USCIS will not accept any new applications.

Applications will be received once again beginning April 1 for jobs to begin in the next fiscal year starting October 1, 2011. This means that employers desiring to hire foreign professionals should get their hiring decisions made and applications ready in the next few weeks to be ready for receipt at USCIS on April 1.

The following people can continue to file applications now and the rest of the year as they are not subject to the cap again once already counted. Employers who need to:
* extend the amount of time a current H-1B worker may remain in the U.S.;
* change the terms of employment for current H-1B workers;
* allow current H-1B workers to change employers (unless previously exempt from the cap and transferring to a cap position); and
* allow current H-1B workers to work concurrently in a second H-1B position.

In addition, employers that are nonprofit research institutions, institutions of higher education, government research institutions, and some private sector companies "affiliated with" the preceding types of entities, can petition for foreign workers all year long and are not subject to the cap. We can help you determine whether your entity or position offered qualifies if there is any doubt. However, USCIS is scrutinizing "affiliate" positions and employers lately. Therefore, legal advice is highly recommended.

January 20, 2011

ICE to Establish I-9 Center and Increase Employer Audits

A Wall Street Journal article, Crackdown on Illegal Workers Grows, reports that Immigration Customs and Enforcement (ICE) will open a new "Employment Compliance Inspection Center" to handle an increase in I-9 audits of employers of all sizes, including large, major employers. Under the Bush administration, ICE focused on rounding up undocumented workers through surprise raids. By contrast, the Obama administration is conducting stealth, "silent" audits of employer documents. Where false documents or unverified documents are revealed, or no I-9s are prepared at all, employers are liable for paperwork violations as well as "knowingly" hiring unauthorized workers. Undocumented workers discovered during the process are often fired and may be pressured to become witnesses against the employer. Naturally, employers are thought to be the lure for illegal immigration.

Last fiscal year ending September 30, 2010, 2,740 companies were audited by ICE and $7 million in civil fines were levied on businesses that employed illegal workers. This represents a substantial increase than in past years. Now ICE really means business as it ramps up its operations even more.

To help employers, the government recently released a new version of its Guide for Employers (M-274) discussed in an earlier post. It is a good idea for employers to review ICE's range of and type penalties to better understand the potential for liabilities. ALL employers are required to complete form I-9s for employees hired, recruited or referred for a fee after November 4, 1986, including U.S. citizens.

Doing a self-audit of I-9s, such as by in-house H.R. professionals or company executives is probably not a good idea. It is recommended that employers use third party auditors or attorneys to conduct an in-house I-9 audit before ICE comes knocking on your door (or sends a three-day notice of inspection). Our firm has had calls by employers who simply want to put our name down as a third party auditor in a subcontract with the potential client's contracting firm in case of an ICE audit. We generally oppose this unless the company first hires us to do a complete private audit in order to get to know the company, the key personnel devoted to I-9 compliance, its operations and workforce with plenty of time to review all I-9s and related documents. We also provide training for the staff that will handle the I-9 process. This saves time if the client later gets a notice of audit or inspection. It would otherwise be too stressful to put together a plan, make corrections, if allowed, in only three days.

Continue reading "ICE to Establish I-9 Center and Increase Employer Audits" »

January 18, 2011

GAO Issues Significant H-1B Report

At the request of Congress, on January 14, 2011, the Government Accounting Office (GAO) issued a comprehensive and quite significant report on the H-1B Specialty Occupation program. Entitled H-1B Visa Program: Reforms Are Needed to Minimize the Risks and Costs of Current Program, the GAO study involved interviews with 34 H-1B company executives, researchers of various types, advocates for several groups, interviews with involved agencies, examination of the data on 150 of the top users of H-1B visas, analysis of available data on wages, filings, complaints and other data sources. Some of the findings and recommendations confirm the legitimate needs and complaints of employers who use or try to use the program, while other points give some credence to issues raised by critics of the program. The GAO makes several legislative recommendations for Congress and recommends actions that the Executive branch or agencies could take. It is a very long and interesting report (118 pages). It attempts to balance sufficient numbers of H-1B workers based on national economic need and a more streamlined easier to use program for employers with the need for more enforcement against abusers and better data to assess the impact on U.S. workers.

Specifically, the GAO report focuses on four main areas: 1) employer demand, 2) how the cap affects employer costs, innovation, R&D, and decisions to move work overseas, 3) worker characteristics and the impact of raising the annual 65,000 cap on visas, and 4) how well the H-1B program protects the jobs of U.S. workers.

Key Findings
From 2000 to 2009, demand has exceeded the annual cap. However, 14% of all H-1B visas issued have been for cap-exempt employees working for nonprofit research institutions and institutions of higher learning, which tend to be large organizations. Of those H-1Bs subject to the annual cap, 1% of the employers using the program accounted for 24% of the cap-counted petitions. Of those few heavy users of the H-1B program, several were headquartered in India and were staffing companies. The top origins of country of birth were India (46.9%), China (8.9%), the Philippines (3.7%), and Canada (4.3%). 40% of H-1B workers were in systems analysis and programming, 7% in higher education, and 35% were in other specialty occupations.

Of the 34 employers interviewed of various sizes in different industries, most said the H-1B program added costs to their business. Smaller companies experienced even greater costs when they were shut out of the H-1B program due to the cap being reached because it became more expensive for them to find other candidates, especially if they had to settle for less qualified applicants who were needed for short and competitive development cycles or key projects. Most companies said their access to talented labor primarily drove their decisions more than the cap did when deciding to move operations or personnel overseas. GAO reported what most H-1B users and prospective users already knew: the annual cap and resulting lottery give employers no predictability for staffing projects or ability to prioritize which employees they would want selected if only a few of their applicants make it through the lottery.

Continue reading "GAO Issues Significant H-1B Report " »

January 13, 2011

Green Card Applicants Must Wait Even Longer According to February 2011 Visa Bulletin

In a few earlier posts, I discussed how the permanent immigration quota system works, or doesn't work because of its impact on illegal immigration. In my recent post, Why Don't They Just Come Legally? - Myths Part II, I mention that two of the causes of illegal immigration are due to there being no lines for legal visas to get into in the first place because there are no categories for certain employment and family categories. And, in cases where there are applicable categories, the lines can be very, very long - decades in some cases. In my post on the Anchor Babies and the 14th Amendment - Myths Part I, now called the "birthright citizenship" movement devoted to repealing the 14th Amendment, I discuss how American born kids can't sponsor their parents or siblings until they are 21, and even then, at least for siblings, they have to endure the quota backlogs. Finally, in an article on the DREAM Act, I showed how the last proposal before Congress added 10 years to the DREAM Act process. As a result, the beneficiaries would have to wait 10 years to become a U.S. citizen before they could even start the process of sponsoring relatives. The sibling quota delays would add another 10-20 years to the process. Well, now the February issue of the U.S. State Department's monthly Visa Bulletin really demonstrates just how bad the quotas can get based on demand and small supply of available green cards or visas.

The term "retrogression" in the Visa Bulletin refers to the quota getting longer or the line moving backwards rather than advancing forward toward being current. For years, ALL of the family based preference categories, which do not include spouses, parents or minor children of U.S. citizens, have been subject to lengthy backlogs, regardless of country of birth. Siblings of U.S. citizens are always the worst, and if the person immigrating is from China, India, Mexico or the Philippines, or the Dominican Republic, the quotas are the worst of all. Starting in January, the family based quota retrogressed for most people in most categories which means demand has increased.

In the employment based immigration context, foreign investors and creme-de-la-creme employees (those that are world renown or hold advance degrees) typically have no backlogs unless the person is from India or China. Everyone else immigrating based on a job requiring limited work experience or a bachelors degree is subject to a quota delay with Indians having the longest wait. Most Indian and Chinese nationals are here on H-1B temporary work visas because of strong hiring trends several years ago, but because demand is high, they have longer waits, and for many of them, their H-1Bs will run out before they reach the front of the line of the quota. Many have already gone home because of better opportunities abroad. Accordingly, many experts view the employment quota backlog situation in America as a cause for concern about an outbound brain drain.

Starting next month, the the February 2011 Visa Bulletin has a new column for people from the Dominican Republic. Evidently, there is high demand by Dominicans but insufficient visas in both family and employment based immigration categories. Permanent residence (green card) levels were set by Congress over 20 years ago according to a complicated formula. A general idea about how the numbers are allocated is described in the The Operation of the Immigrant Numerical Control System. Briefly, visas are allocated by per category limits which are then allocated by per country limits. Then there are rules about spillovers from one category to another. Demand for visa numbers can fluctuate from one month to another, with the inevitable impact on cut-off dates. A person's place in line in the quota or backlog is called their priority date, which is established when the government receives the first application type that starts the immigration process in that category.

Continue reading "Green Card Applicants Must Wait Even Longer According to February 2011 Visa Bulletin" »

January 11, 2011

USCIS Issues Updated M-274 - "Handbook for Employers"

A revised edition of "Handbook for Employers" or M-274 has been released by USCIS. This booklet is a critical and indispensable tool for employers to use when documenting the work authorization status of new and rehired employees as well as containing information for recruiters and referrers for a fee. Since 1986 when Congress passed the Immigration Reform and Control Act (IRCA), employers have been responsible for verifying work authorization documents for all US citizen and noncitizen hires. This booklet helps employers to fill out the required Form I-9 and explains how to examine the variety of documents an employee may present. In addition, the booklet guides employers about how to avoid charges of discrimination in the I-9 documentation process.

Some of the changes in the new edition include:
* New visual aids for completing Form I-9
* Examples of new relevant USCIS documents
* Expanded guidance on lawful permanent residents, refugees and asylees, individuals in Temporary Protected Status (TPS), and exchange visitors and foreign students
* Expanded guidance on the processing of employees in or porting to H1-B status and H2-A status
* Expanded guidance on extensions of stay for employees with temporary employment authorization
* information for employers in the Commonwealth of the Northern Mariana Islands (CNMI) who must verify their employees' employment authorization on Form I-9 CNMI and information about documents CNMI employers may accept from their employees.

I previously wrote a post in November 2010, I-9 Form Revisions Subject of USCIS Stakeholders Meeting, where USCIS solicited ideas from the public about improving the I-9 form. The notes of those meetings are now available on the USCIS website as the agency works toward revising the form.

January 9, 2011

H1B Cap Update: Numbers Still Available

As of January 7, 2011 USCIS reports that 58,700 of the annual 65,000 allotment of cap-eligible petitions have been approved. Some petitions are exempt from the cap under the advanced degree exemption provided to the first 20,000 petitions filed for a beneficiary who has obtained a U.S. master's degree or higher. Those 20,000 have now been reached.

If the annual 65,000 cap is reached in the next few weeks or months, then a new round of H-1B visas will not be available until October 1, 2011. The application window will open again on April 1, 2011. Not all positions/employers are subject to the cap. Our firm can help with analyzing whether a particular position or employer is subject to the cap. If an employer or position is not subject to the cap, then H-1Bs are available for cap exempt petitions all year long. Whether the cap is reached or not reflects whether employers are hiring and if the economy is improving. In growth years, the cap has maxed out on the first day or within the first few days of the filing season. If hiring levels are poor, then the cap is never reached or it takes much longer to be reached. Since the fiscal year started on October 1, 2010, the cap numbers reflect that there is some growth in the professional level job market despite the poor unemployment figures. H-1B employers are barred from hiring H-1B workers into positions if there were layoffs among those similarly employed within the 90 days before application or within 90 days after the H-1B worker is placed.

January 6, 2011

Why Don't They Just Come Legally? Myths - Part II

As Congress and several states take up proposals to repeal the 14th Amendment citizenship provisions because of fears of an "alien invasion", anti-immigrant activists continue to incorrectly charge that individuals from abroad want to invade our country by breaking the law. Myth: Most of the people here illegally just don't want to follow the law. The frequent refrain, or more likely, a quip, is "why don't they just come legally or get in line?" Reality: Most people would come legally if they could. In my many years of immigration practice I have rarely, if ever, met people who wanted to come to the U.S. illegally. Almost all would have applied for visas had there been a proper category or a number. Others did apply for visas and were rejected.

There are several reasons people don't just come legally or wait their turn in line: there are no lines to get into because there are no visa categories for the situation; the line is too long because of insufficient numbers of available visas; consular and border officers deny visas or entry without possibility of review; lack of options/desperate situations (e.g. fleeing persecution, war, calamity); deceptive and abusive situations (e.g., smuggling); and our laws or foreign policies sometimes fail to acknowledge the human condition to want to protect and be with family members, and to earn a living to feed one's family.

1. Lack of Appropriate Categories: Many individuals here without authorization are in low-skilled or semi-skilled occupations. Yet, we don't have any appropriate visa categories for dish washers, gardeners, home care workers, maids, or construction workers, to name a few. We no longer have visas for many nursing occupations despite a shortage of nurses. We do have an H-1A agricultural worker program that is extremely difficult for employers to use. Farm workers must reapply every time they move from one crop/employer to another. There is no permanent work visa for farm workers. The various government agencies involved do not always approve visas on time for harvests or packing seasons which can change due to unpredictable weather conditions. Although we have a H-2B visa category that could accommodate low or semi-skilled workers, it has an annual cap in the number of visas available, and every job must be short-term temporary work such as seasonal, peak load, or temporary substitution. There is no temporary visa category for long-term work in the low-skill occupations mentioned above.

In the family based area, there are no categories for grandparents to sponsor grandchildren or for aunts and uncles, cousins and the like to sponsor each other. Also, there are no categories for U.S. citizens or green card holders to sponsor their gay partners. I mentioned in my earlier post, Anchor Babies and the 14th Amendment - Immigration Myths Part I, that it is a complete myth that anchor babies (born in the U.S.) can sponsor their parents and siblings. This is not true at least until the children turn 21. The line gets even longer when you add sibling quota backlogs and other delays due to immigration law issues for people here without authorization.

Continue reading "Why Don't They Just Come Legally? Myths - Part II" »

January 3, 2011

NEXUS and SENTRI Users Can use Global Entry Kiosks

In an earlier blog post, Hate Lines? CBP Announces Expansion of Global Entry Pilot Program, one of several trusted traveler programs, Global Entry, is discussed that enable frequent travelers to expedite entry into the U.S. But there are others, including NEXUS and SENTRI. NEXUS is a U.S.-Canada program for frequent trusted travelers between the U.S. and Canada. SENTRI is a another U.S.-Mexico program for other frequent trusted travelers. U.S. Customs and Border Protection (CBP) announced that starting December 29, 2010, NEXUS and SENTRI card holders can use the Global Entry kiosks set up at selected airports mentioned in the earlier post. NEXUS and SENTRI card holders will be able to use the Global Entry kiosks for the remaining time available on their existing cards, and once NEXUS or SENTRI status is renewed, the kiosks can be used for the extended period of time. However, before using the Global Entry kiosks, NEXUS and SENTRI holders need to log online to their accounts on the CBP Global Online Enrollment System (GOES), make the request for Global Entry access and then wait for confirmation from CBP that they are permitted to use Global Entry kiosks. Once approved, NEXUS and SENTRI holders will have to meet the same declaration requirements as regular Global Entry users, mentioned in the earlier post, concerning bringing in commercial goods, agricultural products, currency and other related declarations. See the CBP website for more information on NEXUS, SENTRI, GOES and Global Entry. The new process is detailed in a Federal Register notice and allows users or potential users to send in comments to CBP. All of the programs have elaborate security checks, filing fees and zero to little tolerance for any mistakes. In addition, participating countries also run security checks. Applicants must be willing to provide fingerprints and photos.

January 2, 2011

Hate Lines? CBP Announces Expansion of Global Entry Pilot Project

Starting December 29, 2010, U.S. Customs and Border Protection (CBP) expanded its international trusted traveler pilot program, known as Global Entry, to qualified Mexican nationals. Global Entry allows for the expedited clearance of pre- approved, low-risk travelers into the United States. The program is operational at several major U.S. airports. The program is not for the faint of heart, however, as it involves more elaborate security checks and biometrics features (fingerprints and photos) and zero tolerance for false statements or mistakes in declarations or carrying unauthorized goods. Until now, eligibility has been limited to U.S. citizens, U.S. nationals, U.S. lawful permanent residents (LPRs), and certain eligible citizens of the Netherlands. Now, qualified nationals of Mexico who otherwise satisfy the requirements for participation can participate in the Global Entry pilot. Citizens from the Netherlands who participate in Privium, an expedited travel program in the Netherlands, can participate in Global Entry Pilot. Interested persons can submit applications online directly to CBP in order to participate in the program.

In the meantime, there is a comment period as part of the notice and publication process in the Federal Register. Comments should be sent using this label, ''USCBP-2006-0037,'' by mail to: Border Security Regulations Branch, Regulations and Rulings, Office of International Trade, U.S. Customs and Border Protection, Mint Annex, 799 9th Street, NW., Washington, DC 20229, or comments can be posted online at http://www.regulations.gov (be sure to refer to the same label number above).

Airports with Global Entry kiosks include John F. Kennedy International Airport, Jamaica, New York, Terminal 4 (JFK); the George Bush Intercontinental Airport, Houston, Texas (IAH); and the Washington Dulles International Airport, Sterling, Virginia (IAD), Los Angeles International Airport, Los Angeles, California (LAX); Hartsfield-Jackson Atlanta International Airport, Atlanta, Georgia (ATL); Chicago O'Hare International Airport, Chicago, Illinois (ORD); and Miami International Airport, Miami, Florida (MIA). Newark Liberty International Airport, Newark, New Jersey (EWR); San Francisco International Airport, San Francisco, California (SFO); Orlando International Airport, Orlando, Florida (MCO); Detroit Metropolitan Wayne County Airport, Romulus, Michigan (DTW); Dallas Fort Worth International Airport, Dallas, Texas (DFW); Honolulu International Airport, Honolulu, Hawaii (HNL); Boston-Logan International Airport, Boston, Massachusetts (BOS); Las Vegas-McCarran International Airport, Las Vegas, Nevada (LAS); Sanford-Orlando International Airport, Sanford, Florida (SSB); Seattle-Tacoma International Airport-SEATAC, Seattle, Washington (STT); Philadelphia International Airport, Philadelphia, Pennsylvania (PHL); San Juan-Luis Munos Marin International Airport, San Juan, Puerto Rico (SAJ) and Ft. Lauderdale Hollywood International Airport, Fort Lauderdale, Florida (FLL).

How the Program Works

Application is made online and security checks are done. Once approved, Global Entry participants become eligible for expedited entry into the United States at any of the designated airport locations by using automated kiosks located in the Federal Inspection Services (FIS) area of each airport. The Global Entry pilot uses fingerprint biometrics technology to verify a participant's identity and confirm his or her status as a participant.

Continue reading "Hate Lines? CBP Announces Expansion of Global Entry Pilot Project" »