H-1B Cap Reached for FY2010
The H-1B visa is the visa category most used by companies to obtain work authorization for professionals coming from other countries. Under the current law, 20,000 visas may be issued to persons who have obtained a master’s or higher degree from a U.S. university. 65,000 visas are allocated to other professionals, with 5400 of these visas set aside for Singapore and 1400 for Chile. The result is that only 58,200 regular track H-1B visas are available to most H-1B applicants. USCIS announced that as of December 21, 2009 it had received more than 20,000 master’s cap filings as well as more than 58,200 filings for the other cap.
Please note that the cap only affects H-1B visa petitions filed on behalf of a foreign worker for the first time. H-1B extension cases, H-1B change of employer cases, or initial cases acknowledged as received by USCIS are not affected. Further, some employees affected by the cap may have additional work visa options including F-1 practical training, TN, E, J, L, O-1 and even permanent resident visas. Other foreign workers may need to wait outside of the U.S., possibly at a foreign subsidiary, until new H-1B visas become available. As the available case options will be unique to each individual employee, it is important to contact an immigration attorney regarding any specific employees you may be considering for H-1B status. USCIS will begin accepting H-1B petitions for the FY2011 cap on April 1, 2010, which is 6 months prior to the start of the new Federal fiscal year on October 1, 2010. As the required H-1B pre-filing steps can take several weeks to complete, employers who may want to sponsor a foreign worker under the H-1B program should begin that process at least 6-8 weeks prior to when the filing season opens on April 1, 2010.
On November 19, 2009, U.S. Immigration and Customs Enforcement (ICE) Assistant Secretary John Morton announced that an additional 1,000 employers would be audited for I-9 compliance, with a focus on “critical infrastructure.” Given the significant expansion of the E-Verify monitoring program, and the new requirement that it be used by most federal contractors and subcontractors, the immigration compliance web appears to be expanding to include a larger variety of industries. Companies are becoming increasingly aware that in severe cases, the government has moved beyond fines to pursue criminal penalties and debarment from participation in future government acquisition contracts and subcontracts. With the government’s stepped up enforcement efforts, many companies have begun to take proactive steps to establish and support in-house compliance programs. This is especially helpful for companies tasked with the difficulty of having multiple personnel completing I-9 documents on its behalf in multiple worksite locations.
An established compliance program provides the employer with a framework within the context of its own business for addressing compliance situations in an effective and consistent manner without having to invent ad hoc solutions each time a new problem arises. Consistency and clarity on compliance issues can mitigate the possibility interruptions to regular business operations, or interruptions to the continuing employment of foreign workers due to a failure to develop an appropriate visa strategy. Hiring outside counsel to draft a compliance policy, audit the employer’s Forms I-9, review its documentation procedures regarding the sponsorship of foreign workers, and conduct training, avails the company of the attorney client privilege. This can be invaluable in protecting communications from unwanted disclosure to third parties and to the government. After the fact damage control is always much more expensive than proactive compliance management. In addition, Form I-9 corrections made in the wrong way can result in increased civil liabilities, and even criminal liability in severe cases.
With specific regard to the Form I-9, checking boxes and filling in blanks is not so hard, but doing so correctly can be a challenge even for the most astute studies of I-9 procedures. Additional complications can arise when the employer receives information that is inconsistent with what is reflected on its Forms I-9. For example, an employer may need to determine what actions should be taken when a company receives an anonymous “tip” that a current worker may be illegal, or when a company receives an angry phone call from a person claiming that a company employee is using his or her social security number, and that he or she is unable to collect full Social Security benefits because the SSA database lists the person as still employed. Examples of additional potential problems include what types of issues need to be disclosed by a company to its shareholders in a 10-K or 10-Q report, and what to do when the E-Verify photo tool fails to show a photo for a new employee who swears he has a valid green card.
Each company must make its own informed business decision about how best to proceed with the above mentioned issues in terms of the extent to which a formal immigration policy is needed. Factors to consider in assessing the Company’s immigration exposure would include: type of industry; annual employee turn-over rate; number of foreign workers as a percentage of the total work force; operations at multiple work sites; previous problems with mismatched employee Social Security Numbers; participation in E-Verify; work in economic sectors involving critical technology or infrastructure, including power plants, air and sea ports, commercial aviation, chemical plants, road and bridge construction, high speed computer chips, satellite communications; infectious disease research; or government contracts – especially with the military.
While there is no substitute for the guidance of competent immigration counsel, some companies do still choose to go it alone. Some minimum steps that employers may be able to take on their own include:
1.) Matching the names of all persons listed on current payroll to a Form I-9. The company should have a Form I-9 for every employee hired after November 6, 1986;
2.) Confirming that all required sections of the form have been completed and that required sections are not left blank. Note that citizenship discrimination penalties can apply to companies that are overzealous in pushing employees for too much information, but that employer sanctions penalties can apply to employers that are too lax. Any late corrections should be made in a different color pen (possibly red or green) and initialed and dated by the person who makes the change. Only employees should write in Section 1 and only employers should complete sections 2 and 3;
3.) Maintaining strict control over who has authority to complete the company portion of the I-9 on behalf of company. Ideally, control of forms I-9 would be limited to trained personnel in the HR department or possibly in-house counsel;
4.) Training ALL persons who complete Sections 2 and 3 of the Forms I-9 on behalf of the company. These persons should read the USCIS M-274 Handbook for Employers from cover to cover. The handbook is available at: www.uscis.gov.
A certified Labor Condition Application (LCA) must be obtained from the U.S. Department of Labor (DOL) as a prerequisite to filing a petition to sponsor an H-1B nonimmigrant worker. The LCA confirms that the foreign worker will not be paid less than similarly situated U.S. workers within the company or the broader area of intended employment, and that U.S. workers are not adversely affected by the employment of a foreign worker. Previously, the DOL processed LCA documents through a web-based system within seconds of filing. In the summer of 2009, the filing system was changed to require the review of a DOL adjudicator prior to certification. This has resulted in processing delays that average 5 days, or sometimes longer in a limited number of cases. This change is important to keep in mind in the context of potential new H-1B petitions, including H-1B transfer cases for lateral hires. Although it was previously possible to prepare and to file a new H-1B petition within 48 hours of opening the file, it can now take a week or longer.
The DOL has also become involved in the determination of the required wage for PERM labor certification applications. PERM is the first step of the 3-step employer sponsored lawful permanent residence (green card) process. Prior to January 1, 2010, the PERM wage determinations were made by the state departments of labor. At this time, wage requests for the entire U.S. must be sent to the U.S. Department of Labor National Prevailing Wage Center in Washington, D.C. Unfortunately, this new system is not web-based or even fax-based. Instead, all requests must be submitted by U.S. mail or express courier service. Again, this change will make the process take longer. Further, in recent liaison meetings with the DOL, they specifically made clear that the new department tasked with wage determinations will not answer its phone to discuss cases, which is a change from the common practice at the state labor departments. It is likely that the more formalized process will increase the importance of good case drafting and advocacy, and that the pre-filing preparation time for PERM cases may take longer.
In a letter dated November 10, 2009, USCIS Director Mayorkas responded to correspondence from Senator Charles Grassley of Iowa by outlining steps that USCIS will take in conducting additional oversight of the H-1B program. Those steps include conducting more than 25,000 worksite visits and inspections in FY2010. Additional steps outlined in the letter include:
1.) Issuing additional guidance to case adjudicators to clarify the evidence required to confirm lawful employment at third-party worksites;
2.) Revising the I-129 nonimmigrant worker petition form to include additional attestations related to third-party placement and offsite employment;
3.) Launching a new program titled VIBE (Verification Initiative for Business Enterprises), which will allow case adjudicators to access Dunn & Bradstreet data to compare information contained in the petition with D&B records.
In related developments, Representative Luis Gutierrez of Illinois introduced an immigration reform bill on December 14, 2009 that included provisions specifically targeting perceived fraud and abuse in H-1B and L-1 programs. Further, on December 18, 2009, the AFL-CIO Department for Professional Employees issued a report asserting fraud and abuse in the H-1B program. The core requirements of the H-1B program now in place have remained largely unchanged for approximately 20 years. The winds of political change, channeled by Grassley, Gutierrez and pro-labor forces, are pushing for changes that may make the H-1B process more like the current PERM labor certification process, which requires burdensome pre-filing procedures to confirm an unavailability of willing, qualified, and able U.S. workers prior to allowing the employment of a foreign worker.