News From Ross Silverman LLP

Over the past several months, an immigration-related bill making its way through Congress has been in the news - H.R. 3012, the Fairness for High-Skilled Immigrants Act, was introduced on September 22 by Representative Chaffetz (R-UT). This bill addresses the substantial backlog in employment-based immigrant visa numbers that has disproportionately affected certain countries.

As background, in order to obtain permanent residence in the United States, an individual must first be awarded an immigrant visa number. Current immigration law allots 140,000 immigrant visas each year to foreign nationals who wish to immigrate to the U.S. via employment, and 226,000 immigrant visas to foreign nationals who wish to immigrate to the U.S. via family. These visas are allocated based on the applicant's country of birth and the basis of his/her application. Each birth country is only allowed to use up to 7% of the total visa numbers each year. While H.R. 3012 would not increase the number of visas available each year, it would eliminate the employment-based per-country cap entirely by fiscal year 2015, after a three-year phase-in period, and raise the family-sponsored per-country cap from 7% to 15%. If this legislation passes, it would be extremely beneficial for employment-based permanent residence applicants from India and China, but could lengthen the processing time for applicants from other countries.

On November 29, the House of Representatives passed H.R. 3012 by a vote of 389-15, at which point the measure moved on to the Senate for consideration. Unfortunately, the following day, Senator Grassley (R-IA) placed a hold on H.R. 3012, stating on the Senate floor that he has concerns about the impact of this bill on future immigration flows, and is further concerned that it does nothing to better protect Americans who seek high-skilled jobs during this time of record high unemployment. On December 15, Senator Grassley offered an amendment which would dramatically change the bill, as well as make significant changes to other immigration programs, such as the H-1B and L-1 visa programs. Senator Grassley's amendment was rejected, so his hold on the bill remains. Senate procedures allow any member of the Senate to place a hold on legislation in order to delay consideration of the measure, and such a hold is indefinite. Therefore, there is no way of knowing the future of this bill; however, if Senator Grassley lifts the hold and the Senate approves the bill, we will of course update you, and let you know the potential impact of the bill on any of your employees with pending permanent residence cases.

FY2012 H-1B Cap Reached: Now What?

As you likely are aware, the H-1B cap for Fiscal Year (FY) 2012 was reached on November 22, meaning that no H-1B petitions for cap-subject employment can be filed until FY2013. FY2013 H-1B petitions can be filed beginning on April 2, 2012 (since April 1 is a Sunday), requesting an October 1, 2012 start date. In the meantime, we'd like to remind you of some key information with regard to what you can and cannot do for H-1B employees and potential hires in the coming months. For more detailed information on these topics, view our March 2011 newsletter and as always, please feel free to contact the attorney with whom you work if you have questions or encounter any of these situations.

Can I still hire someone on an H-1B?

Yes - if the individual already has an H-1B with another employer who is subject to the cap, then s/he can "port" to your company. You would still need to file a complete H-1B petition for the individual, but the petition would not be subject to the cap. However, if the individual has an H-1B with a cap-exempt employer (such as a university, teaching hospital, or research organization) and has never been counted against the cap, the only way you could hire him/her prior to October 1, 2012 would be if s/he works concurrently for you and the cap-exempt employer.

Can I hire a student even though I can't get him/her an H-1B? If so, for how long?

Once a student in F-1 status completes a degree program, s/he is typically eligible for one year of Optional Practical Training (OPT) to work for a U.S. employer and gain work experience related to the degree field. Some OPT holders are eligible for an additional 17 months of OPT if their degree is in a designated Science, Technology, Engingeering or Math (STEM) field and if the employer is enrolled in E-Verify. You can hire someone on OPT for the validity period of his/her OPT work authorization, and there is no immigration-related cost to you in doing so. However, if you wish to continue employing the person beyond the OPT validity period, you would need to file for an H-1B for him/her as soon as new visa numbers become available (i.e. on or after April 1).

I have an employee whose F-1 OPT expires in June 2012. Since we can only get her an H-1B to start on October 1, what happens in the interim? Will I have to take her off payroll or can she keep working during that time?

Once you file a petition to change her status to H-1B, this employee can continue to work for you until her H-1B status becomes effective on October 1, 2012. The relevant regulations, commonly known as the "cap-gap" regulations, state that, if the employee's OPT is still valid (i.e. unexpired) at the time of filing the petition requesting a change of status to H-1B, the OPT will be automatically extended while the H-1B is pending and after it is approved. If the H-1B petition is denied, the individual's work authorization will cease immediately; however, the individual has a 60-day grace period after the denial or rejection date (or the end of the original OPT authorization, if that is later) in which to depart the country or obtain a different status.

Are there any other visa options to get someone started with our company before October 1, 2012?

Depending upon the candidate's country of birth and background, there may be other visa options, as there are some country-specific work visas available (e.g. to certain individuals from Canada, Mexico, Australia, Singapore and Chile).

PERM Audits

DOL reported last week that it is auditing an average of 33% of all cases, an increase from past reports. In addition to audits requesting submission of the standard PERM recruitment evidence and demonstration of the business necessity for the PERM position's requirements, we have seen audits requesting substantial documentation of the applicant review process. These audits are requiring employers to provide extensive documentation regarding how they reviewed, contacted and ultimately eliminated any applicants who responded to the PERM recruitment for a given case. DOL has requested documentation ranging from resumes and applications to a complete report listing detailed information for each U.S. worker who was eliminated, including (where applicable): the date(s) the employer contacted the U.S. worker; the date(s) the employer interviewed the U.S. worker; the reason(s) the employer did not interview an U.S. worker applicant; the specific lawful, job-related reason(s) the U.S. worker was eliminated; and physical documentation of the employer's efforts to contact U.S. worker applicants, if the worker could not be reached.

While we have always advised employers to keep careful records of their screening of applicants who respond to PERM recruitment, DOL's elevated scrutiny in this area means that maintaining such documentation is more important than ever. If you have any questions about your current policies and practices with regard to reviewing applicants who respond to recruitment for PERM cases, or if you are unsure of the DOL requirements in this regard, please contact the attorney with whom you work.

Increase in USCIS Site Visits to H-1B Employers and Employees

USCIS is continuing to conduct Site Visits across the country to confirm the details of H-1B filings with both employers and employees, and in some cases is even visiting employees at their remote work locations (including employees working out of their homes). For more information about the Site Visit process, please see our previous News Flashes. We are also receiving reports from USCIS and other attorneys that some H-1B petitions are being reviewed and, in some cases, rescinded, based on information gathered in these site visits (e.g. where petitions are found to contain fraudulent or incorrect information). It is therefore extremely important that an H-1B employee's position information is correct on the H-1B petition and that employers notify our office when any material changes (e.g. changes to job duties or location) are made to the H-1B employee's position.

Consular Updates from India

Mumbai Consulate: In March, the U.S. Consulate in Mumbai discontinued all interviews and processing of H and L visas due to infrastructure issues with the Consular building. The Consulate has now moved to their new location and has resumed H and L visa interviews and visa processing.

Blanket L Processing: Beginning December 1, all applications in India for visas under a Blanket L petition must now be filed with the U.S. Consulate in Chennai. However, applications for individual L visas and dependent L visas (L-2s) may still be processed at any Consular Post in India.

Recent Employment-Based Immigration-Related Enforcement Actions

Employer Required to Pay Back Wages to Employee Who Never Worked Pursuant to the H-1B Petition

In a decision published this summer, DOL's Office of Administrative Law Judges found against an accounting firm in California for failure to affect a bona-fide termination of H-1B employment. Specifically, the company hired an H-1B employee, then decided not to employ him pursuant to the H-1; however, the company never notified USCIS or DOL that it was withdrawing the H-1B petition or underlying LCA, nor did it pay the H-1B worker's return transportation to his home country, all requirements of affecting a bona-fide termination of H-1B employment. When these requirements are not met, the employer can be held liable for all wage obligations under the LCA for the entire H-1B period, even though the employee was not working during that time. This decision found that the employer is liable for over $150,000 in back wages (including interest) for the two-year period between the H-1B start date and the completion of a bona-fide termination, even though the H-1B worker was not actually employed during that time and, in fact, had returned to his home country.

Drywall Company Assessed Penalties for I-9 Violations

In a decision published this fall, the Executive Office for Immigration Review's Office of the Chief Administrative Hearing Officer (OCAHO) ordered a drywall company in Washington to pay penalties for various I-9 violations. The company was ordered to pay $770 per violation, for a total of $173,250. Violations included failure to ensure that employees completed or signed I-9 forms; specifically, failing to collect an employee signature; listing the wrong documents to establish identity or employment eligibility; failing to complete the I-9 within three days of hire; and failing to fully complete the form, including the employee attestation that he or she is authorized for employment in the U.S., regardless of what other documents may have been copied or retained. The decision noted that, "Copying the documents may well serve to insulate an employer from errors in transcribing the information, but nothing . . . purports to excuse an employer who fails to transcribe any information at all."

Justice Department Lawsuits for I-9 Discrimination

In the second half of 2011, DOJ filed and/or settled a number of lawsuits against employers all over the country, alleging that the employers had engaged in a pattern or practice of discrimination in the employment eligibilty verification process. Some of the allegations include: demands for specific or excessive documents; specifically requiring newly-hired permanent residents to present their permanent resident cards; and imposing unnecesary documenary requirements on the basis of citizenship status.

The anti-discrimination provision of the Immigration and Nationality Act (INA), as amended, is enforced by the Office of Special Counsel for Immigration-Related Unfair Employment Practices, Civil Rights Division, Department of Justice. This provision prohibits four types of unlawful conduct: citizenship or immigration status discrimination; national origin discrimination; unfair documentary practices during Form I-9 process (document abuse); and retaliation. In short, in the I-9 context, this means that employers are prohibited from requiring, or even requesting, specific documents for I-9 purposes, as this places additional restrictions on the employees that are not required by law. For more information about this provision, and about the I-9 process in general, view the I-9 handbook here, and as always, feel free to contact our office with any questions.

Many of the recent settlements resulted in fines and sanctions against the employers. If you are interested in viewing some of the recent DOJ press releases regarding these lawsuits and settlements, following are some links:

Settlements in cases regarding excessive demands for documents from non-U.S. citizens:

- Univ. of California San Diego Medical Center, January 4, 2012

- Kinro Manufacturing Inc., August 26, 2011

- Summit Steel Fabricators Inc., August 10, 2011

Settlement regarding a subsidiary requiring unnecessary or additional documents from U.S. permanent residents:

- BAE Systems Ship Repair Inc., December 28, 2011

Unsettled Lawsuit regarding unnecessary or restrictive documentary requirements applied to naturalized U.S. citizens and non-U.S. citizens:

- Generations Healthcare, filed September 30, 2011

- Mar-Jac Poultry Inc., filed July 14, 2011

In the News: What's Happening at RS

Ross Silverman LLP named a "Best Law Firm" of 2011-2012 for Immigration Law: U.S. News Media Group and Best Lawyers have once again named Ross Silverman a First-Tier law firm in the area of Immigration Law in Boston in the 2011-2012 U.S. News Best Law Firms rankings.

November 17, 2011: Heidi Snyder spoke on the topic of PERM and employment-based immigrant visa issues at the AILA New England Chapter's new member division monthly meeting.

December 1, 2011: Sharryn Ross spoke on a panel at the AILA New York Chapter Immigration Symposium entitled, "Dealing with PERM Audits and I-140 RFEs."

December 6, 2011: Sharryn Ross spoke on a panel for an AILA Audio Seminar entitled, "PERM Audits Are Coming Back - A Detailed Look at Some Specific Pitfalls to Avoid."

December 12, 2011: Heidi Snyder and Rhonda Tietjen spoke on a PERM panel at the Massachusetts Continuing Legal Education (MCLE) Immigration Law BasicsPlus Conference in Boston, MA.

March 2, 2012: At the 9th Annual AILA New England Immigration Law Conference, Howard Silverman will be moderating a panel entitled, "Advocacy, Prosecutorial Discretion and What Else Can I Do?". Additionally, Ellen Driver will be co-chairing the New Members Division's lunch discussion.

March 30, 2012: Sharryn Ross will be speaking on a DOL panel at the AILA Spring Conference in Washington, D.C., discussing various issues such as recent developments with regard to prevailing wages, PERM audits, and supervised recruitment.

May 18, 2012: Heidi Snyder will be co-chairing MCLE's 11th Annual New England Immigration Law Conference. Rhonda Tietjen will be speaking on a panel at the conference entitled, "Corporate Compliance: Developing Corporate Compliance Policies and I-9 Best Practices."

This newsletter does not constitute legal advice and is not a substitute for consulting with an attorney. Please contact us by phone or email if you have questions about any of the topics discussed here or if you have any other immigration or naturalization questions.