Mr. Chairman, I’m pleased to provide my testimony today as a follow-up to previous appearances before this committee. I’ve testified on two other occasions to explain the need for a more certain and predictable way to attract and retain the talent my company and others need—even if that means foreign talent. However, it is apparent that my previous testimony fell on deaf ears. If anything, my explanation of the need for visa availability for high skilled workers has met with more resistance due to political posturing for the 2016 presidential election. Continue Reading
In July 2015, the White House announced a series of technology initiatives aimed at modernizing the application process for certain immigration benefits. As part of this effort, the United States Citizenship and Immigration Service (USCIS) was charged with overhauling their Electronic Immigration System (ELIS). First released in 2009, ELIS was an aspirational response to meet the growing demand for web-based applications for immigration benefits. The proposed goal of ELIS was to provide a faster and more reliable adjudication process, however, instead of improved efficiency; a July 2014 audit conducted by the Office of Inspector General concluded that ELIS actually slowed the adjudication of applications by almost 50%. Continue Reading
Was your petition one of the estimated 148,000 not selected in this year’s H-1B lottery? In a series of posts we will explore alternatives to the H-1B.
The B-1 visa category traditionally permits foreign individuals to enter the U.S. for temporary, business-related activities such as meetings with U.S-based colleagues or to attend scientific or professional conferences. B-1 business visitors may not engage in productive work, which is typically services performed that inure to the benefit of a U.S. employer.
Carved out in the Foreign Affairs Manual (FAM) is a hybrid B-1 called the “B-1 in lieu of H-1B.” This type of B-1 recognizes that in some situations an individual who would otherwise qualify for an H-1B may more appropriately be classified as a B-1 visa applicant when the applicant is coming to the United States temporarily to perform professional duties related to their overseas employment, will not enter the U.S. labor market, and will remain on their overseas payroll. Continue Reading
On Wednesday, August 12, 2015, the US District Court for the District of Columbia ruled that the US Department of Homeland Security (“DHS”) did not follow required procedures when it promulgated regulations allowing for certain extensions of F-1 Optional Practical Training (“OPT”) employment authorization. However, in a compromise move, the Court vacated the DHS regulation and all subsequent amendments (“vacatur”), but ordered that the vacatur be stayed for six months to February 12, 2016, to allow DHS time to submit the rule again with appropriate notice and comment. There is no immediate impact on STEM or “cap-gap” OPT extensions.
On April 8, 2008, the Department of Homeland Security (DHS) published an Interim Final Rule (IFR) in the Federal Register titled, Extending Period of Optional Practical Training by 17 Months for F-1 Nonimmigrant Students With STEM Degrees and Expanding Cap gap Relief for All F-1 Students With Pending H-1B Petitions (2008 Rule).
This rule extended eligibility for OPT employment authorization for 17 months for graduates from US educational institutions with degrees in science, technology, engineering or mathematics (“STEM”) fields provided their employer is enrolled in E-Verify. The impact of this new rule was to allow a period of OPT employment authorization for qualified foreign nationals for 29 months – the initial 12 months of OPT plus the additional 17 months for those with qualifying STEM degrees and E-Verify registered employers. This rule included the so-called H-1B “cap-gap” extension for F-1s with OPT to extend OPT employment authorization with the filing and eventual acceptance of a cap-subject H-1B petition. This rule was implemented with a comment period, but as an interim final rule under an emergency exception to the usual 60-day full notice and comment period as outlined in the Administrative Procedures Act (“APA”).
In March 2014, the Washington Alliance of Technology Workers filed suit in the United States District Court for the District of Columbia alleging DHS acted arbitrarily and capriciously in promulgating the 2008 rule without first subjecting it to a notice and comment period in violation of the Administrative Procedures Act. DHS argued that in this particular situation, notice and comment requirements could be bypassed under 5 U.S.C. § 553(b), which allows an agency to dispense with the notice-and-comment requirement “when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.” DHS promulgated the rule in 2008 just before the filing period for H-1B visas opened. The timing, they argued, gave rise to an economic emergency of such a degree as to trigger the good cause exemption in 553(b).
After significant discussion of the standing of the Plaintiffs (Washington Alliance of Technology Workers) to bring suit and the appropriate level of deference that should be given DHS as the government agency vested with the authority over immigration issues, U.S. District Judge Ellen Segal Huvelle concluded that no deference should be afforded DHS with regard to the emergency exception to normal notice and comment. The Court ruled that DHS’s stated reasons for the emergency exception were too general and not specific enough to constitute an emergency. Therefore, the agency acted improperly in promulgating the OPT extension rule without notice and comment from the public.
However, Judge Huvelle decided that immediately vacating the new rule “would be seriously disruptive” to not only thousands of F-1s in the US with currently valid employment authorization who would have to scramble to depart the US, but also to employers if STEM employees have to suddenly leave their employment.
The judge’s decision jeopardizes the current STEM OPT program, but does not invalidate the employment authorization for current STEM extension holders, nor does it preclude an individual from applying for and being granted a STEM extension up until February 12, 2016. With the six month vacatur, DHS should have sufficient time to issue the rule again for notice and comment and finalization prior to February 12, 2016. If DHS follows the Court’s direction, there should continue to be no impact on STEM or “cap-gap” OPT extensions. We will continue to monitor this important development and provide updates as new information becomes available.
In our latest alert, attorney Michele Frangella discusses the September visa bulletin and movements in the employment based categories. A major retrogression for second preference (EB-2) India and mainland China born applicants occurred. However, EB-3 categories all moved forward.
More details here.
The Department of Homeland Security (DHS), Public Safety Canada, and the Secretariat of Governance of Mexico announced the planned expansion of the existing trusted traveler programs. This expansion is the first step toward the creation of a North American Trusted Traveler network and will be rolled out at the beginning of 2016.
The agreement signed by DHS Secretary Jeh Johnson and his Mexican and Canadian counterparts stipulates:
- Mexican nationals who are members of Mexico’s Viajero Confiable program will be able to apply for the US – Canada NEXUS trusted traveler program
- Canadian citizens who are members of NEXUS will be able to apply for Viajero Confiable
US citizens are already eligible to apply for the NEXUS and Viajero Confiable trusted traveler programs through existing partnerships between U.S. Customs and Border Protection (CBP), Public Safety Canada and Mexico’s National Institute of Migration.
The expansion of these programs should create increased mobility and efficiency for current members. It will also provide an attractive option for NAFTA-based employees, given the growth of business throughout North America. This new network will provide a collaborative-based traveler model system for other regionally clustered countries, particularly given the heightened international cross-border exchanges for business and cultural transactions.
For additional information on US Trusted Traveler programs, click here.
On August 3, USCIS published updating processing times for EB-5 immigration benefits. The summary: it’s bleak, with processing times at a year or more. Read more from Member Douglas Hauer on Mintz Levin’s EB-5 Financing Matters Blog.
A New York federal court recently said that the plaintiff-employees involved in a wage and hour lawsuit are not required to produce their immigration documents and information. The case is important because it limits an employer’s ability to defend against such claims based on their workers’ potential illegal immigration status.
In Rosas et al. v. Alice’s Tea Cup, the employer-defendants requested that the plaintiff-employees produce evidence of their immigration status, their work authorization documents, tax returns, and their current employers’ identity in connection with their overtime claims under the Fair Labor Standards Act and the New York Labor Law. They also sought admissions to the workers’ use of false or fictitious Social Security numbers. The plaintiff-employees told the court this information was irrelevant to whether the defendant-employers failed to pay them correctly. The defendant-employers argued that the workers’ immigration status and work authorization documents were relevant to a determination of the workers’ ability to recover under the FLSA and NYLL, their credibility, and would explain the absence of some payroll records that should have been kept by the employer.
U.S. Magistrate Judge Francis concluded that the risk of injury to the workers and the “danger of intimidation” that such request would have on any worker outweighed the probative value of such evidence in showing the plaintiffs’ credibility and the absence of payroll records. Most importantly, Judge Francis dismissed the defendant-employers’ argument that the workers’ immigration status and work authorization were germane to workers’ ability to recover under the FLSA and NYLL. Judge Francis held that “Federal courts have made clear that the protections of the FLSA are available to citizens and undocumented workers alike.”
What This Means for You
This case underscores that all workers are protected by the FLSA and NYLL for work performed, whether the workers are authorized to work or not. As a result, any information or request for immigration documents will likely be quashed by the courts (especially in California and New York), as irrelevant and/or undiscoverable.
Moreover, the U.S. Department of Labor and its local counterparts have consistently advised that wage and hour laws apply to all workers without regards to their immigration status. For instance, the respective agencies in New York, California, and the District of Columbia specifically state on their websites that wage and hour laws protect “all workers, even undocumented workers” or “whether or not they are legally authorized to work in the United States.” Furthermore, the U.S. Department of Labor affirms the above and specifically addresses the inapplicability of the Immigration Reform and Control Act (IRCA) to wage and hour cases under its jurisdiction.
In addition, employers are reminded that IRCA prohibits: (1) the knowing hiring of persons not authorized to work in the United States; (2) the continued employment of persons not authorized to work (though persons previously employed are not subject to these restrictions); and (3) the hiring of an individual without verifying or correctly documenting the person’s identity and eligibility to work legally in the United States (i.e. completing Form I-9).
In sum, a worker’s immigration status is not relevant in wage and hour suits and provides no defense in such suits. Employers should also be mindful of complying with IRCA and I-9 rules regarding employment eligibility verification obligations.
Many US employers are exploring opportunities to expand globally. Due to the English-speaking special relationship between the US and the UK, employers may first look to the UK to for international expansion. However, companies should keep in mind the current difficulty for employers to secure valid work visas.
In both June and July, the cap on Tier 2 visas in the United Kingdom was reached and over 1,300 visa application by companies were rejected. The cap was reached for the first time since it’s 2011 introduction in June.
Tier 2 Visas are available to skilled workers with an offer of employment from a government certified employer. This category includes workers falling under the UK’s skills “shortage occupation list” as well as intracompany transfers. Shortage occupations to date include engineers and scientists. The UK Migration Committee has opened a comment period for recommendations as to which additional occupations should be added to the skills shortage or which occupations require highly specialized experts.
To use a favo(u)rite British phrase being repeated about the situation, the arbitrary cap is “not fit for purpose.” We expect employers will find it increasingly difficult to bring the skilled workers they need to the United Kingdom from outside the European Economic Area.
On July 8, 2015, the Office of the Chief Administrative Hearing Officer (OCAHO), issued a decision finding Hartmann Studios, Inc. “liable for 808 violations of 8 U.S.C. § 1324a(a)(1)(B)”, namely hiring workers in the United States without properly examining and documenting the employees’ identity and immigration documents. Immigration and Customs Enforcement (ICE) argued that Hartmann engaged in 818 violations; requesting $812,665.25 in civil penalties.
Many employers don’t realize the importance of the I-9, or Employment Eligibility Verification form, which has been required since 1986 as part of the Immigration Reform and Control Act. Since the I-9 form was revised in 2013, I-9 scrutiny has been on the rise and employers need to prioritize compliance by having a complete understanding of the requirements and following them to the letter of the law. Depending on the type of I-9 violation and the number of offenses, penalties can range from $110 per violation to $16,000 per violation and six months in prison.
In the Hartmann case, Judge Ellen K. Thomas found that “employment verification procedures are sufficiently defective to foreclose a claim of either good faith or substantial compliance”. In a small consolation for the company, Judge Thomas determined some of the violations were not as grievous as argued by ICE, and downgraded the financial penalty. Hartmann was fined $605,250.