H-1B Cap Season
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. The CIS will begin accepting petitions for Fiscal Year (FY) 2010 H-1B visas from Wednesday, April 1, 2009. The soonest these visas can be used for work authorization will be October 1, 2009, which is the start of FY 2010. Last year, both quotas were oversubscribed within the first week of the filing season. While more than 98% of last year’s U.S. Master’s cap cases were ultimately successful in obtaining a visa number, only 50% of the regular cap cases received visa numbers.
Based on the number of new cap-based filings that immigration attorneys are seeing throughout the U.S., it is anticipated that this year the cap will remain open past the first week of the filing season, and possibly much longer. Nonetheless, it would be prudent for any employer contemplating sponsoring an employee for an H-1B visa within the next 18 months to open an H-1B case for the employee well in advance of the April 1 deadline, as the exact date of when the filing window will close cannot be accurately predicted.
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 will not be 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, we recommend that you contact an immigration attorney regarding any specific employees you may be considering for H-1B status.
Additional pre-filing steps may apply to companies that receive TARP funding. It is also possible that Congress will move to further limit the H-1B program later this year, in response to the growing unemployment rate and in reaction to perceived abuses of the program by IT subcontractors.
The government has become increasingly aggressive in its enforcement of immigration corporate compliance issues, even asserting criminal charges in some cases. It is likely that the pressure to pursue increased employer compliance with the complex web of laws affecting U.S. employers will continue to grow in the near and long terms horizons. Increased enforcement against employers is likely to be a key component of any attempt at comprehensive immigration reform. Efforts have also been made to tie enforcement related programs to companies doing business with the federal government, any companies receiving federal bailout funds, and companies with offices inside the borders of some states. Even companies that employ no foreign workers have compliance obligations related to immigration. At a minimum, all companies should have in place policies regarding anti-discrimination practices, the correct completion and maintenance of Forms I-9, and policies regarding how to respond to “no-match” letters from the Social Security Administration (SSA). Additional considerations include participation in the government’s e-Verify and IMAGE programs, and record retention policies for documents related to the employment of foreign workers.
Forms I-9 and Related Anti-Discrimination Provisions
Forms I-9 are the documents completed by employers in order to confirm an employee’s ability to work legally in the U.S. While employers can be penalized for incorrectly completing the Form I-9, they should also be aware that liability can be incurred for discriminating by requiring individuals to provide additional documents beyond those required by the Form I-9. For example, many employers are not aware that an Asylee who presents an expired Employment Authorization Document is legally authorized to work in the U.S. [8 CFR Section 274a.12(a)(5).] A refusal to accept such a document could be pursued as a violation. Also, employers may encounter problems if they require all employees to produce the same specific document or documents, such as requiring a driver’s license and social security card from all employees. Instead of asking for specific documents, the appropriate approach is to give the list of acceptable documents to the employee and to ask them to provide one item from List A, or an item from Lists B and C. USCIS has recently updated the Form I-9. The new form must be used from April 3, 2009 but should not be used prior to that date.
Forms I-9 are important and companies should have policies in place for correctly completing them and for reviewing and auditing these files from time to time. One way of minimizing exposure is to purge those Forms I-9 which the company is no longer required to keep. Companies may purge I-9 Forms for employees who are no longer employed 3 years after the employee’s initial hire date or 1 year from their last day of employment, whichever is later.
SSA No-Match Letters
Until about a year ago, the SSA had a practice of notifying employers by letter if the withholding information it received from the employer did not match SSA records. Mis-matches can occur due to name changes, perhaps due to marriage or divorce, or to typographical errors. They can also occur due to the presentation of false documents by unauthorized workers or because of identity theft. For more than one year, an injunction has been in place to prevent the SSA from sending these letters. At some point, the injunction may be lifted which would allow the SSA to resume its previous practice of sending no match letters. These letters are interpreted by the immigration enforcement authorities as providing notice of a potential problem. As the failure to take appropriate steps to address the no match letter may be held against the employer, employers must be prepared to take appropriate action upon receipt of such a letter. The automatic termination of an employee listed in such a letter is not an appropriate action. Employers are expected to take reasonable steps to work with the employee to resolve the matter, including checking the Company’s own records to confirm the accuracy of the information it presented to the SSA, and notifying the employee of the problem so that he or she can take appropriate steps to remedy the problem.
What is E-Verify?
E-Verify is an electronic system established by the Department of Homeland Security and SSA to assist employers in verifying employment eligibility for all new hires. In many ways, the system is the immigration equivalent of voluntarily giving the IRS unlimited access to company financial records and bank account information just in case the agency wants to audit your company. The most controversial aspect of the E-Verify program is the requirement that the company sign a Memorandum of Understanding (MOU) confirming the following:
1.) A promise not to use the program to pre-screen employees prior to hiring;
2.) A promise to enter the SSN and ID information for all new hires within 3 days of hire;
3.) A promise to list the E-Verify case verification number on each new I-9;
4.) A promise to allow employees who experience a verification problem 8 Federal work days (approximately 10 calendar days) to continue working while they attempt to resolve their document problem;
5.) A promise to allow DHS and SSA, or their authorized agents or designees, to make periodic visits to the company for the purpose of reviewing E-Verify related records, and to make these records available to these agencies, their agents or assignees;
6.) A promise to allow DHS and SSA, or their agents or assignees to interview persons acting on behalf of the company, which may include HR and corporate officers, as well as to allow employees hired during the time the company used E-Verify to be interviewed.
E-verify requires steps that would consume additional HR time for all new hires– not just foreign workers. Also, the program has about a 4% error rate, which may be frustrating for U.S. citizen and LPR new hires and their managers. As many readers may know, the DMV, CIS and Social Security Administration are not always able to resolve problems within 10 days. If the employee’s issue is not resolved within the required period of time, the company may not be able to terminate the employee solely on the basis of E-Verify if the employee can document that he or she is actively taking steps to resolve the issue. Thus, the resolution of E-Verify problems may require HR to continue to monitor issues through the time a final resolution can be obtained, which could take many months, or longer, in some cases.
Further, use of the program does not provide the company with a safe harbor from DHS enforcement activities. That may be especially troubling given the specific language in the MOU through which the company would authorized DHS, SSA, its agents and assignees to review documents and to interview HR, possibly company officers, as well as employees who were subjected to the E-Verify system. Agreeing to give any Federal agency open access to the company’s records and its employees carries the potential for significant problems. It is noted that financial penalties exist for overly lax companies judged not to be in compliance with the employment verification obligations as well as for overly strict companies judged to be in violation of anti-discrimination laws. The penalty for a finding of a “knowing violation” can range from $375 to $16,000 per worker unlawfully employed.
A copy of the required MOU can be found at: www.uscis.gov
Additional information on E-Verify can be found on the USCIS and ICE websites.
What is ICE IMAGE?
Immigration and Customs Enforcement (ICE) is the DHS subunit charged with the internal enforcement of immigration laws. It has established the ICE Mutual Agreement between Government and Employers (IMAGE) program to help employers in targeted sectors to develop a more secure and stable workforce. The program requires:
1.) The completion of a self-assessment questionnaire;
2.) Enrollment in E-Verify (see above);
3.) Enrollment in the Social Security Number Verification Service;
4.) Adherence to the IMAGE Best Employment Practices requirements;
5.) Undergoing an I-9 audit conducted by ICE;
6.) Signature of an IMAGE partnership agreement with ICE.
The IMAGE program allows for 2 levels of membership: full Membership and Associate Membership. Associate Members have the option of deferring the required I-9 audit and annual reporting requirement for up to two years.
The program’s Best Hiring Practices include:
1.) Using E-Verify;
2.) Establishing an internal training program covering the correct completion of Form I-9, how to use E-Verify, and how to detect fraudulent documents;
3.) Only allowing the I-9 and E-Verify processes to be completed by individuals who have received the training mentioned above. Also, including a second level of review as a part of the verification process for each new hire to minimize the potential for a single reviewer to subvert the process;
4.) Arranging for annual I-9 audits by an external firm;
5.) Establishing a self-reporting procedure for reporting any violations or discovered deficiencies directly to ICE;
6.) Establishing a protocol for responding to SSA no-match letters;
7.) Establishing an internal tip line for employees to report activity related to the employment of unauthorized workers, and a protocol for responding to employee tips;
8.) Establishing and maintaining safeguards against the use of the verification process for unlawful discrimination;
9.) Establishing protocol for the adherence to the Best Practices guidelines by the company’s contractors and subcontractors;
10.) Submitting an annual report to ICE to track results and assess the effects of participation in the IMAGE program.
File Maintenance Policies
Companies that employ foreign workers normally keep multiple sets of files. This is both advisable and necessary due to differences in retention and disclosure requirements. File systems normally include: HR files, I-9 files, LCA public access files, PERM audit files, and immigration petition files.
HR files include offer letters, performance reviews, non-disclosure agreements, salary and benefit information.
Forms I-9 should be kept separate to facilitate the ease of file maintenance, including updating. ICE, DOL and the Office of Special Counsel (re: discrimination claims) all have the authority to review a company’s I-9s. The company must produce the documents for inspection within 3 days of receiving a request. No subpoena or warrant is required. This can be a nightmare scenario if these documents are intermingled with other company records. Companies may purge I-9 Forms for employees who are no longer employed 3 years after the employee’s initial hire date or 1 year from their last day of employment, whichever is later.
LCA public access files must be made available to ANYONE who asks to see them. Clearly, these are records that should be kept separate from all other HR and immigration related documentation. The public access file must be maintained pursuant the requirements of the labor condition application (the LCA) which is required for all H-1B, H-1B1 and E-3 filings. The required contents include the LCA form, an explanation of the system the employer uses to set wages, salary survey information, internal posting notices, a summary of the benefits offered to U.S. workers, and additional documents in some cases.
PERM audit files are generated in connection with the labor certification application process used to sponsor foreign workers for lawful permanent residence. These files must be kept for 5 years from the date the case was accepted for processing. The files should include a copy of the signed PERM form along with all of the supporting back up documentation for the application.
Lastly, most companies keep foreign worker immigration petition files separate from other records. These files normally contain copies of all of the company petitions filed on behalf of any sponsored foreign workers.
The Department of Labor Employment and Training Administration came to San Diego on February 4 to provide an overview of its new iCERT system. iCERT will provide a single system to consolidate the work currently being performed by the two separate systems that accept PERM labor certification applications used in the permanent residence process and LCA (Labor Condition Application) applications used in the H-1B petition process. Unlike the currentPERM system, the iCERT system should allow attorneys to complete the initial system set-up on behalf of clients.
The LCA part of the system will become operational on April 15, 2009. For 30 days following implementation, both the old and new systems can be used. From May 15, 2009, the old system can no longer be used to create new LCA applications, but will be kept in place to facilitate the on-line withdraw of applications certified under the old system. The PERM part of the system will become operational on July 1, 2009. From August 1, 2009, the old system will no longer be available to accept new filings, but will continue to allow access to users to withdraw previously filed cases or to check on the status of cases filed under the old system.
LCA processing times are likely to increase. The current system normally certifies LCAs in less than a second. The new system will require a longer period of review, perhaps as long as the 7 working days allowed by the DOL regulations. That change will affect both new H-1B cases as well as H-1B “transfer” processing times. The new process may add a week’s delay to the amount of time that it takes for an H-1B worker to move to a new employer.
Currently, DOL is taking an average of more than 8 months to process PERM filings; but there is hope that the DOL will move more quickly to review PERM cases over the summer when it moves to close out the old system and to begin using the new iCERT system. It is likely, however, that a large number of the cases reviewed at that time will be routed to supervised recruitment. This is especially likely in industries and areas of the country that have experienced a large number of lay-offs. Supervised recruitment takes place at the direction of a DOL adjudicator, with specific directives issued to the employer regarding the date and methods to be used for recruitment. In contrast the regular PERM process, through which applicants apply directly to the employer, applicants must submit resumes directly to the DOL, which in turn forwards them to the employer or its representative for review.