Cap Count for H-2B Non-Immigrants (As of September 12, 2014)

Posted in Visas

On September 12, 2014, USCIS released the updated “Cap Count” for the H-2B Non-immigrant Visa. The H-2B non-agricultural temporary worker program allows U.S. employers to bring foreign nationals to the United States to fill temporary non-agricultural jobs. Currently, the H-2B cap set by Congress is 66,000 per fiscal year, with 33,000 to be allocated for employment beginning in the 1st half of the fiscal year (October 1 – March 31) and 33,000 to be allocated for employment beginning in the 2nd half of the fiscal year (April 1 – September 30). Additionally, any unused numbers from the first half of the fiscal year will be made available for use by employers seeking to hire H-2B workers during the second half of the fiscal year. However, it is important to note that there is no “carry over” of unused H-2B numbers from one fiscal year to the next.

As of September 12, 2014, USCIS has approved 26,193 H-2B beneficiaries for the second half of FY2014, while 229 remain pending. Further, according to the same report, USCIS has approved 5,014 H-2B beneficiaries for the first half of FY2015, while 1,322 remain pending.

DOS Announces Some Visa Reciprocity Updates

Posted in Visas

The Department of State (DOS) announced changes to the Country Reciprocity Tables.  The Country Reciprocity Tables list additional visa fees that must be paid by nationals of certain countries when applying for certain types nonimmigrant visa stamps at US Consulates abroad.  The Tables also list whether applicants of a certain country are subject to a limited number of admissions and/or the validity period of their visa has a limited length of time.  Visa applicants should review these tables closely prior to making a visa application at a Consulate abroad.  The Tables also list country-specific documents that applicants must obtain for immigrant visa cases.  In this regard, the most recent DOS update provides the following country-specific updates:

Area/Country of Change Change
Japan Updated police records information
Macau S.A.R. Updated the cost of obtaining a police certificate
Russia Updated internal residence documents section
Sweden Updated travel document section

Global Employer Alert — Kuwait Authorities Conducting a Wide-Scale Enforcement Action on Alleged Fraudulent Immigration Filings

Posted in Global Immigration

As reported by Kuwaiti media, authorities in Kuwait are cracking down on possible employment-based immigration schemes involving up to 3,000 sham companies that were set up and used as vehicles to obtain work permits for foreign companies.  This has led to 5,000 files of various companies being held and audited by Kuwaiti authorities.  It appears as though the focus of the investigation is on domestic workers following pressure on authorities to reduce this segment of foreign workers.  Authorities are also reviewing misuse of Kuwaiti immigration programs whereby foreign companies incorrectly use third-party entities to secure work permits rather than setting up local corporate entities.  Some foreign companies are willing to cut corners or are poorly guided by local representatives to secure work permits for their foreign workers quickly in an effort to get to a strategically important market as soon as possible.  Because Kuwait’s corporate, immigration and employment laws are challenging and require significant preparation and logistics planning, some foreign employers make rash decisions or don’t perform appropriate risk analysis and use unrelated corporate entities to secure work permits, thereby avoiding incorporating a local entity.  These so called “easy fixes” are often suggested by local “immigration providers” and, as is evidenced with this investigation, can create significant compliance concerns.  This is made worse as most foreign employers in this region do not have significant local resources and are, therefore, trying to manage the problem from the United States.  Bottom line: vet your service providers and conduct a thorough risk analysis on their processes and activities; in the global mobility field many entities are using sub-contractor networks to complete work which can create substantial hidden risk for employers.

Employers Take Note: The Start Date For This Year’s H-1B Cap Cases Is Around the Corner

Posted in Visas

The majority of employees selected for the FY2015 H-1B cap will be changing status on October 1, 2014 and employers should be mindful of the following:

  • Any FY2015 H-1B petition that is still pending approval for an employee who is working pursuant to the F-1/H-1B cap gap provision should be premium processed now. Employers should note that the F-1/H-1B cap gap provision only provides employment authorization until September 30, 2014, so the beneficiary of an H-1B cap-subject petition will need to have the H-1B petition approved on or before that date to avoid any interruption in work authorization.
  • Any FY2015 H-1B petition that is still pending for an employee who is working pursuant to F-1 OPT status and who is eligible for an F-1 OPT STEM extension should consider filing one now. Qualified individuals who timely file Form I-765, Application for Employment Authorization, under the F-1 OPT STEM designation are authorized to work in the United States upon filing an application with U.S. Citizenship and Immigration Services for an additional 17 months. This will avoid the requirement of premium processing the H-1B petition. It will also allow the F-1 student to maximize his or her period of stay in F-1 status, which has the dual benefit of retaining the exemption from Medicare and Social Security tax withholding, as well as delaying the activation of his or her H-1B period of stay that is limited to six years.
  • Employers should ensure that employees working pursuant to F-1, M-1 or J-1 visa status and changing status to H-1B on October 1, 2014 should no longer be claiming exemptions from Medicare and Social Security taxes. All H-1B workers are generally subject to these taxes.
  • H-1B petitions are employer-, location- and position-specific, so it is good practice to remind new H-1B workers of their obligations while holding this status, including no moonlighting for other companies, as well as alerting the employer of any new work sites the H-1B worker may be sent to and changes in their work duties.
  • New H-1B holders will need to be reminded that they will need to secure H-1B visa stamps at Consulates abroad when they travel internationally so that they can re-enter the country in H-1B status. Any employee who is outside of the country at present may secure his or her H-1B visa stamp at a U.S. Consulate abroad now; however, they can only enter the country using their H-1B visa stamp up to 10 days prior to the activation date on their H-1B petition and commence work on the activation date-not before. For example, anyone with an October 1, 2014 activation date may get their H-1B visa stamp now, enter the country no earlier than September 21, 2014 and start working for the company on October 1, 2014.
  • All new H-1B holders should be given a copy of the certified Labor Condition Application used in connection their H-1B filing.

Summary of AILA’s Monthly Check-In with “Charlie”

Posted in Visas

On September 8, 2014, the October 2014 Visa Bulletin was released (previously covered by Greenberg Traurig here). Shortly thereafter, on September 11, 2014, AILA “checked in” with Charles (“Charlie”) Oppenheim, Chief of the Visa Control and Reporting Division, U.S. Department of State, to obtain his analysis of current trends and future projections for the various immigrant preference categories. The checkup is part of an AILA monthly series designed to keep members informed of Visa Bulletin progress and projections. Below are highlights of Charlie’s predictions based on the October 2014 Visa Bulletin:

EB-2 India:

  • The October 2014 priority date for EB-2 India is May 1, 2009. However, Charlie believes that both the current demand increase and the large volume of EB-3 to EB-2 upgrades for Indian-born applicants may lead the priority date to retrogress to early 2005. Accordingly, it may be wise for any eligible EB-2 India clients to file their adjustment of status applications by the end of October 2014.
  • The maximum number of India EB-2 immigrant visas for FY 2014 has been reached. However, USCIS offices may continue to accept and process EB-2 India cases with priority dates earlier than May 1, 2009 during the month of September, but those cases will be held in the Visa Office’s “Pending Demand” file until October 1, 2014.

EB-5 China:

  • The State Department made an announcement that as of August 23, 2014, EB-5 immigrant visa numbers for Chinese nationals in the EB-5 category would be unavailable through September 30, 2014. As expected, the October 2014 Visa Bulletin reflected the EB-5 visa is now current for mainland-born Chinese EB-5 investors. However, Charlie continues to predict that a cut-off date may be imposed at some point during the second half of the fiscal year, possibly as early as May. Charlie hopes that sufficient demand data will be available in January which will help in predicting future movement in this category.

Philippines:

  • The October 2014 Visa Bulletin reflects the decreasing demand for both employment-based and family-based visas for the Philippines, as the priority dates have continued to improve. However, Charlie believes that although demand is low and dates will remain favorable for the foreseeable future, this may change if more applicants come forward to claim immigrant visas.

Preference-Based Visa Process:

  • Charlie provided some additional insight into how the DOS and USCIS coordinate to ensure preference-based visas are processed more efficiently since the DOS’s introduction of a new system in spring 2007. Specifically, as a result of the spring 2007 upgrade, cases that are denied authorization due to a non-current priority date are now accepted by DOS and maintained in a “Pending Demand” file. When the priority date becomes current, DOS automatically authorizes the case and notifies the appropriate USCIS office. Accordingly, the new system encourages greater efficiency and visibility between DOS and USCIS, and enables Charlie to better predict priority date movement.

DOL Report on FY2014 Prevailing Wage Determinations Provides Some Surprising Data for Employers

Posted in Foreign Workforce

The Department of Labor (DOL) has released its FY 2014 statistics on prevailing wage determinations for U.S. employers in connection with the sponsorship for foreign workers. This report provides interesting insight into prevailing wage requests by U.S. employers and their representatives for H-1B petitions, H-2B petitions and PERM labor certifications. It also reveals some broader business immigration trends.

By way of background, all U.S. employers must first establish that the wages it is offering foreign national employees are the same level as or higher than the “prevailing wage” for any given position before securing certain temporary (e.g., H-1B and  H-2B visas) and permanent (e.g., PERM labor certifications) employment-based benefits for them. For temporary visas the employer is given a choice of either performing a self-determination of the appropriate prevailing wage or requesting a prevailing wage determination from the DOL. If the employer receives the determination from the DOL this determination cannot be challenged in a future investigation, providing the employer a “safe harbor”. For the PERM process, however, the employer is required to obtain the prevailing wage determination from the DOL directly and is not permitted to perform a self-determination.  There is no fee to request a prevailing wage determination from the DOL, but the wait time to receive a determination is a burdensome six to eight weeks.

Some highlights of the report include:

PW Determination Requests Received By DOL

Immigration Category FY2014 YTD Percentage Change from FY2013
H-1B 6,894 -15%
H-2B 8,739 55%
PERM 104,309 3%

 

Only 6,894 H-1B-related prevailing wage requests were made by U.S. employers. Therefore, only 1.49 percent of the 464,068 Labor Condition Applications (LCAs) filed by U.S. employers in the same fiscal year were protected by the safe harbor provision. The statistics get worse when you consider that the 464,068 LCAs filed were for a total of 926,332 positions. The vast majority of safe harbor prevailing wage requests were made by universities and research organization that are H-1B cap-exempt.  This number represents a 15 percent drop in requests from last year. Some assumptions and takeaways:

  • A significantly higher percentage of employers that are exempt from the H-1B cap (universities, research organizations, etc.) are benefiting from the DOL’s “safe harbor” provision than cap-subject employers. Many cap-exempt organizations have internal policies mandating that safe harbor prevailing wage determinations be secured from the DOL unless a business necessity requires otherwise. Even among cap-exempt employers, however, the number of institutions benefiting from the safe harbor provision has dropped by 15 percent. This indicates higher compliance concerns in this area for all US employers across all industries.
  • Virtually all cap-subject employers are self-selecting prevailing wage determinations when filing H-1B petitions. In turn, these employers face higher compliance challenges without “safe harbor” protections than cap-exempt employers.
  • The excessive wait time of six to eight weeks to secure a prevailing wage determination from the DOL encourages U.S. employers to perform self-assessed prevailing wage determinations which in turn creates higher risk levels of noncompliance with wage and hour laws. U.S. employers that choose to wait six to eight weeks for the DOL to issue prevailing wage determinations face a competitive disadvantage because they may lose much sought after talent to competitors willing to proceed at a faster pace. Additional adverse consequences include: (a) foreign workers may be unable to renew drivers licenses in a timely manner or travel abroad if another six to eight weeks is added to a process that already takes three to five months to be approved; and (b) increased immigration costs due to premium processing or last minute foreign travel adjustments.
  • The vast majority of law firms assisting employers in the filing of H-1B petitions are self-selecting prevailing wage determinations and not securing “safe harbor” determinations from the DOL. With U.S. employers relying on their outside counsel to file Labor Condition Applications with the correct prevailing wage information, law firms and companies alike must have heightened compliance protocols in place.

Unlike H-1B filings, the PERM process requires U.S. employers to secure prevailing wage determinations from the DOL. Ninety-one percent of prevailing wage requests were made in connection with PERM labor certification filings, totaling 104,309.  However, the DOL’s Office of Foreign Labor Certification only received 67,691 PERM filings in FY 2014, which is 36,618 less than the number of PERM prevailing wage requests.

  • Nearly 10 percent of all PERM-related prevailing wage requests were made by the top 5 volume filing employers.
  • Many large employers use bulk prevailing wage determinations, so the percentage of filings by the top volume filing employers is likely even higher than 10 percent. For example, an employer’s single prevailing wage determination for the occupation of Software Engineer can be used for multiple Software Engineer positions at the employer, so long as the job duties, requirements, and location are the same across the positions. The figures released by the DOL do not provide information about the number of workers covered in each prevailing wage request.
  • The top 5 volume filing employers for PERM labor certifications are all U.S.-based corporations; whereas the majority of the top H-1B volume filers are IT outsourcing companies with their primary base of employment in India.  Based on the DOL report, it appears that U.S.-based corporations invest in the long-term future of their foreign workers much more than Indian IT outsourcing entities, as evidenced by the number of PERM labor certifications filed by U.S.-based corporations in comparison to Indian outsourcing companies.
  • The difference in the number of PERM prevailing wage requests and the number of PERM filings, totaling 36,618, is of concern and is a likely source of delay and inefficiency for the DOL. No doubt some of the 36,618 PERM prevailing wage requests do not result in a PERM filing because the process was stopped by the U.S. employer for a variety of reasons, such as the employee left the company during the PERM process, there was a lay-off in the same occupational classification, or the employee changed positions. However, this is no way accounts for such a large difference between the number of requests made by employers and the number of PERM filings. It is highly likely that the real reason behind this troubling number is because U.S. employers and their representatives file more than one PERM prevailing wage request (in some instances multiple) for the same PERM filing due to one of the following:
    • A disagreement with the DOLs job classification selection. This is particularly true for positions that involve a hybrid of job classifications, such as marketing and information technology. Many US employers and their representatives will submit another prevailing wage request with the job description and minimum requirements slightly modified in the hope of getting a different assessment from the DOL.
    • A prevailing wage that is too high for the position in question. The DOL sometimes makes mistakes and selects the wrong wage level for a position leaving the US employer no choice but to resubmit the prevailing wage request. Unfortunately, in some cases employers will increase the years of experience or minimum education requirements for a position in an effort to appease foreign nationals who want their PERM applications filed under the EB-2 category and avoid EB-3 visa retrogression. This often results in prevailing wage determinations that are higher than the salary being offered to the employee. Unless the employer is willing to pay the higher salary, employers and their representatives will file more than one round of prevailing wage requests and lower the years of experience and/or education with each subsequent request until a suitable prevailing wage is issued. Not only does this practice raise concerns about the integrity of an employer’s overall immigration program as tailoring applications to an individual’s background and/or requiring excessive skills are strictly prohibited by the DOL, but it also creates unnecessary processing delays and over burdens the DOL.
    • Correcting errors caused by the employer and/or the DOL.

Finally, the report indicates a 55 percent increase in prevailing wage requests for H-2B petitions compared with FY 2013. The H-2B visa category is used by U.S. employers to hire lesser-skilled workers in non-agricultural positions in industries like landscaping, construction and hospitality. This sharp increase in usage is likely due to a combination of the hold placed on prevailing wage determinations for H-2B petitions being lifted by the DOL, an improved U.S. economy and more effective enforcement actions by Immigration and Customs Enforcement against employers in these industries for hiring undocumented workers.

CBP Announces Optimized Processing for First-Time Canadian TN and L Applicants

Posted in U.S. Customs and Border Protection (CBP)

U.S. Customs and Border Protection (CBP) has announced optimized processing procedures at fourteen ports-of-entry, including four pre-clearance locations, for Canadian citizens seeking TN or L status for the first time. This initiative is designed to increase customer satisfaction, decrease wait times and allow CBP to effectively deal with increased volume of Canadian TN and L applicants. Although first-time Canadian TN and L applicants may go to other ports for processing, CBP is encouraging applicants to go through one of the designated ports below for optimized processing:

Pre-Flight Inspection Locations

  • Pearson International Airport, Toronto, Ontario
  • Trudeau International Airport, Dorval, Quebec
  • Vancouver International Airport, Richmond, British Columbia
  • Calgary International Airport, Calgary, Alberta

Land Port Locations

  • Highgate Springs Port of Entry, Highgate Springs, Vermont
  • Derby Line Port of Entry, Derby Line, Vermont
  • Alexandria Bay Port of Entry, Alexandria, New York
  • Peace Bridge Port of Entry, Buffalo, New York
  • Rainbow Bridge Port of Entry, Niagara Falls, New York
  • Champlain Port of Entry, Champlain, New York
  • Detroit Canada Tunnel Port of Entry, Detroit, Michigan
  • Detroit Ambassador Bridge Port of Entry, Detroit, Michigan
  • Blaine Peace Arch Port of Entry, Blaine, Washington
  • Sweetgrass Port of Entry,  Sweetgrass Montana

Migration to the UK Increases Despite the Enforcement of Harsher Immigration Laws

Posted in Global Immigration

Over the last several months, the UK government has taken steps to increase immigration compliance in the United Kingdom.  The government passed an immigration bill in May 2014, with many of its provisions scheduled to go into effect throughout the year. The most recent of these provisions impact residential landlords and will go into effect starting December 2014 in Birmingham, Walsall, Sandwell, Dudley, and Wolverhampton. Under this provision, residential landlords will have to check documents of prospective tenants to confirm they are legally present in the United Kingdom. Landlords found in violation of this law could face fines of up to £3000. Like much of the immigration bill, this provision targets immigration offenders and makes it more difficult for offenders to stay in the United Kingdom. Despite the measures taken to reduce the number of immigration offenders and migration as a whole in the United Kingdom, recent government statistics show net migration to the country has gone up by more than 38%, showing a trend of more immigrants arriving to the United Kingdom than people leaving the country. The statistics show that a global economy and marketplace serve as a draw to immigrants, and it will be difficult for the UK government to reduce immigration to the country without enacting drastic measures to serve as a deterrent.

ICE Fines Luxury Hotel $1.9 Million for Undocumented Workers

Posted in Immigration and Customs Enforcement (ICE)

Immigration Customs and Enforcement (ICE) announced yesterday that a Salt Lake City-based hotel was fined $1.9 million in connection with hiring undocumented workers. This case involved an alleged conspiracy between lower-level employees and mid-level managers to hire undocumented workers intentionally by creating temporary employment agencies to rehire 43 undocumented workers. The conspiracy was identified by ICE pursuant to a regular audit of the company’s I-9 forms whereby 133 employees were found to be unauthorized to work in the United States. The company received an ICE warning notice to terminate all of the affected employees which the company claimed it had done. However, ICE later learned that 43 of these workers had returned to the workforce using new names and fake documents through third-party staffing agencies set up by company employees. According to ICE, it will cost the company approximately $500,000 to implement remedial measures that will satisfy ICE’s genuine concerns that the company be fully compliant moving forward. These measures involve standard immigration compliance policies and procedures: training of HR staff, including immigration compliance clauses in labor service contracts, requiring contractors to be enrolled in E-Verify as a condition of doing business, and seeking advice from immigration counsel. Employers are reminded to put such measures in place proactively and as soon as possible to reduce the risk of fines and deeper concerns, particularly if they are in an industry that is predominantly made up of lesser-skilled workers (agriculture, construction, hospitality, etc.). A proactive solution is less costly than a retroactive punishment.

 

 

Africa’s Climb in the World Market and the Ancillary Impact on Immigration Compliance

Posted in Global Immigration, Uncategorized

U.S. exports to Africa have increased substantially over the last several years.  A U.S. Department of Commerce report showing the top U.S. trade partners shows a 27.1% increase in exports to Nigeria in the last year alone.  In contrast, other regions of the world show a negative growth in exports from the U.S., including the United Kingdom (-13.7%) and Japan (-6.8%).  While the report does not specify the products being exported, the dramatic rate of increase may be the result of a rise in Africa’s infrastructure development and its continuing emergence as a consumer market. The increased focus on development in Africa has also resulted in local government interest in developing local workforce participation in major industries.  As a result, companies with a presence in Africa will likely experience higher levels of scrutiny with regard to their immigration activities – particularly as it pertains to foreign work force policies and compliance with regulations.

A recent example of this increased scrutiny occurred in Ghana, when the government enacted more rigorous recruitment requirements for employers in the Oil and Gas Industry in early September.  Employers in this industry will now be subject to more recruitment requirements to justify the need for a foreign worker to fill a position rather than a Ghanaian citizen. The Ghanaian government seeks to increase opportunities for local workers by first requiring employers to recruit qualified local workers before hiring foreigners to fill positions.  Work permit applications and renewals will also require employers to submit succession plans and training plans to demonstrate how positions will be transferred to local Ghanaian workers if and when the foreign workers leave their positions.  Employers in the Oil and Gas Industry have also experience site visits to ensure foreign workers have the proper work permits in Angola.  Companies in the Oil and Gas Industries can expect this pattern of increased scrutiny and enforcement in the form of immigration legislation and site visits to ensure compliance on a broader throughout Africa.

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