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. USCIS announced that as of January 7, 2011 it had received 20,000 master’s cap filings as well as 58,700 filings for the other cap. While it is impossible to know how much longer H-1B visas will remain available for Fiscal Year 2011, it is estimated that the visas could become unavailable in the next few weeks.
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 who may be affected by the cap when it is reached 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 FY2012 cap on April 1, 2011, which is 6 months prior to the start of the new Federal fiscal year on October 1, 2011. 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, 2011. USCIS may soon adopt a new e-based registration process for the next H-1B cap cycle. Additional details will be provided as they become available. The notice confirming that this is under consideration can be found at: www.reginfo.gov
The release of technology or source code (with an exception for certain encryption code) to a foreign national in the U.S. is a deemed to be an “export” per 15 CFR §734.2(b)(2)(ii). Release includes visual inspection and oral exchanges regarding the technology. The deemed export rules do not apply to U.S. citizens, lawful permanent residents, or certain refugees and asylees.
Rooted in the Export Administration Act of 1979, the current rules evolved over time and have been in their current form for more than 5 years. These rules are not new. What is new is the USCIS requirement that employers certify that they are aware of the applicable rules and that they have determined that an export license is not required or that if required, the necessary license will be obtained prior to the release of restricted technology to the foreign worker. This attestation requirement applies to H-1B, L-1, and O-1A petitions. Additional information on technologies controlled by these regulations can be found at the Export Administration Regulations (EAR) found at: 15 CFR §770-774 and the International Traffic in Arms Regulations (ITAR) found at 22 CFR Parts 120-130. It is also noted that the EAR publishes a Commerce Control List (CCL) of “dual use” items that can be found at: www.gpo.gov. ITAR publishes a list of restricted defense related technologies that can be found at: www.pmddtc.state.gov. Determinations can only be made on a case by case basis. It is noted that while most commercially available technologies are not subject to these restrictions, some advanced scientific and manufacturing equipment, as well as certain computer software and hardware systems, may fall within the realm of restricted technologies.
This area of law is separate from immigration law. Employers that do not have in-house legal capabilities to address questions in this area may need to consult and work with an export control attorney, or obtain an advisory opinion from the U.S. Department of Commerce, which administers these regulations. The Department of Commerce Bureau of Industry and Security contact information can be found at: www.bis.doc.gov. However, persons directly contacting any government agency with enforcement responsibilities should always be aware that communications create a record with the agency which could later be used against the employer if a violation is deemed to have occurred. Working through an attorney comes with the benefit of the attorney-client privilege, which may be an important tool in defending the company against an enforcement action. Obtaining attorney assistance can also help to demonstrate a company’s good faith efforts in performing due diligence to come into compliance with the deemed export rules.
Immigration and Customs Enforcement (ICE) posts the results of recent enforcement efforts on its website. ICE has been especially active in I-9 enforcement actions. While the overall number of companies audited remains small, each year ICE has been doubling and redoubling its efforts in this area. Recent postings include:
ICE distributes $2.3 million to state and local law enforcement in New York. This money is a part of IFCO Systems North America’s $20,697,317.51 forfeiture for hiring and employing illegal workers for commercial advantage. See: www.ice.gov
$1,047,110 fine against Abercrombie & Fitch for “numerous technology-related deficiencies” in its electronic I-9 verification system. Employers can incur substantial fines for having incorrect I-9 paperwork, even if no unauthorized workers are found. See: www.ice.gov
Owner and 3 employees of a San Diego area bakery are facing federal conspiracy charges for harboring illegal aliens. The bakery’s clients included military bases, prisons, and downtown federal buildings making it a priority enforcement target. See: www.ice.gov
Owner of Schlotzky’s Deli sentenced to 2 years probation and ordered to pay an $18,000 fine for employing 6 unauthorized individuals. See: www.ice.gov
Chinese restaurant owner sentenced to 3 years in prison, 2 years of supervised release, and a $10,000 fine for one count of concealing illegal aliens from detection and one count of mail fraud. See: www.ice.gov
An USCIS memo obtained through the FOIA (Freedom of Information Act) process confirms that the FDNS (Fraud Detection and National Security) unit is actively monitoring social networking sites in its efforts to detect fraud. While the memo is focused on detecting marriage fraud, the same principals may be applied to investigate employment based cases as well. The memo state that “narcissistic tendencies in many people fuels a need to have a large group of ‘friends’ link to their pages and many of these people accept cyber-friends that they don’t even know. This provides an excellent vantage point for FDNS to observe the daily life of beneficiaries and petitioners who are suspected of fraudulent activities.”
Both petitioners and beneficiaries should be aware that any information posted online may ultimately be viewed by the government. This may be the case despite efforts made to filter or block out uninvited access to one’s online information. It is important for persons to be aware of their online identity and takes steps to protect their personal information. False or misleading information can have severe consequences. It should be remembered that embellishments, exaggerations, and information not consistent with what is written in immigration related documents filed with the government may cause significant case complications. More specifically, obtaining or attempting to obtain an immigration benefit through fraud is wrong and can lead to penalties including 5 years in jail and a $250,000 fine as well as deportation and a permanent ineligibility from being able to return to the U.S.