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 exapansion. 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.
Change is on the EB-5 horizon. With the Regional Center Program nearing its expiration and recent legislative efforts coming from lawmakers, we may see some action by Congress or the Senate before the end of September. But with the Iran deal taking center stage on Capitol Hill, how much time lawmakers will spend on EB-5 changes is simply up in the air.
One issue that we are asked about every day is whether a project or regional center should consider an exemplar filing for a new deal before September 30th, which is when a new law might take effect. The issue is relevant because any changes to the law will impact the already saturated and competitive EB-5 marketplace. Regional centers and projects are concerned that any new EB-5 legislation that is ultimately enacted might very well contain provisions regarding an increase in minimum per investor amounts for projects. This is a real concern.
Read more on the Mintz Levin EB-5 Financing Matters Blog.
USCIS announced that Deferred Action for Childhood Arrivals (DACA) recipients of employment authorizations documents (EAD) after February 16, 2015, with validity longer than two years, were “likely mistakenly issued and must be returned.” According to a USCIS Factsheet:
“Individuals who are required to return three-year EADs and have not done so will be contacted by USCIS by phone or in-person. For the purpose of retrieving these three-year EADs, USCIS may visit the homes of those individuals who have not yet returned their invalid 3-year EAD or responded to USCIS. When contacting individuals in person, the USCIS employees will show the individuals their credentials. USCIS will make every attempt to call the individual in advance of the visit…
The reason for this action is that, after a court order in Texas v. United States, No. B-14-254 (S.D. Tex.) was issued, USCIS could approve DACA deferred action requests and related employment authorization applications only for two-year periods.”
EADs mailed before February 16, 2015 are not subject to this requirement as they were issued before the court injunction.
Further information and contact details can be found on the USCIS factsheet. Please contact your Mintz Levin attorney if you have any questions as to whether you are affected by the court injunction.
U.S. Citizenship and Immigration Services (USCIS) released final guidance on a recent Administrative Appeals Office (AAO) decision requiring amended or new H-1B petitions for workers who change job sites. These requirements continue to only affect H-1B workers who move to a site outside the “area of intended employment” for which the original petition on their behalf was filed. “Area of intended employment” is the area within normal commuting distance of the worksite where the H-1B is employed.
Guidance on what employers are required to do depends on the date of the employee’s move, which are drawn from the publication dates of the Simeio case and issuance of USCIS policy memos. All changes described below are for changes in the place of employment that require certification of a new Labor Conditions Application (LCA). These actions can be split into three categories by date:
Though employers are not required to file an amended or new petition if the employee’s worksite changed on or before April 9, 2015, they may choose to do so to encourage non-interference by USCIS. All changes in place of employment that occurred after April 9, 2015 and require certification of a new LCA MUST file an amended or new petition.
On July 14, 2015, the House Judiciary Committee met to discuss oversight of the United States Department of Homeland Security (DHS). Immigration was a major topic alongside border security and global threats of terrorism, domestic terrorism and cyber-security.
What’s the temperature right now for immigration reform with the Committee?
Cold. Possibly even a deep freeze.
One congressman stated that we need to take “adult responsibility” to enforcement of immigration laws. That’s not a promising start. The concerns that surfaced involved more enforcement of the H-1B program to prevent abuse, DHS taking more steps to apprehend removable or deportable individuals in sanctuary cities, and more enforcement across the board.
For U.S. employers with very concrete concerns about retaining foreign talent, this perspective could not be more detached. The Committee is flying over this discussion at 35,000 feet, with no compass, no direction and no flight plan. From the notes, one would think that there is chaos, with criminals running the streets and DHS standing on the curb, refusing to engage in any enforcement-related activities. The Committee needs to get into the weeds to understand what needs to be fixed with our immigration system. Business goes on for U.S. employers, but failing to fix our immigration laws is costly. Here is what we lose:
- Emerging companies and start-ups struggle with visa issues and as a result locate R&D facilities abroad
- U.S. employers have insufficient H-1B visa numbers to employ the best and brightest
- We have a green card investment program (EB-5) close to expiration in September 2015, which deters foreign investors from infusing capital into the United States
- We have a clumsy technology platform for issuing visas that resulted, this summer again, in thousands of qualified visa applicants being stranded abroad.
If the notes to the Committee’s meeting are any indication of where we are headed, we should not expect Congress to pass any meaningful immigration-related legislation in the coming year. There is severe mechanical failure on the immigration law reform front.
Expect any congressional progress toward immigration reform to be canceled or at least delayed for some time. Don’t bank on any meaningful changes to the law in the coming year.
US Customs and Border Protection announced the expansion of the Mobile Passport Control Program (“MPC”) to San Francisco International Airport (SFO). MPC is now available at SFO, Atlanta’s Hartsfield-Jackson International Airport, Miami International Airport, Chicago O’Hare International, and Seattle-Tacoma International Airport.
Further information about MPC is available here.
USCIS announced today, July 14, 2015, that it completed the return of rejected fiscal year 2016 H-1B cap-subject petitions.
It was previously announced on May 4, 2015, that USCIS completed data entry of all selected cap-subject petitions.
USCIS advised that all returned cap petitions should be received by July 20, 2015.
USCIS will not accept new cap-subject H-1B petitions until April 1, 2016 for start dates of October 1, 2016 or later.
The Department of State issued an updated Form DS-7002, Training/ Internship Placement Plan for the Student and Exchange Visitor Information System (SEVIS), a web-based information system maintained by the Department of Homeland Security (DHS). The form will now have additional and better organized information about the participant’s training, and this information will be immediately available to U.S. consular posts via the SEVIS database. Form DS-7002 officially outlines the intern/trainee’s training program in the U.S. and is signed by both the intern/ trainee and the program supervisor.
The updated Form DS-7002 should make it easier for host companies to outline a multi-phase training plan with various supervisors. The previous DS-7002 only allowed for one supervisor to oversee and sign-off on the entire training program. In the updated version of the form, the direct supervisor will now need to sign after each phase of the training plan. If different supervisors are responsible for different phases of training, each individual will sign following that phase of the training program.
The second big change is that J-1 program sponsors must enter ALL content on the Form DS-7002 directly into the intern/trainee’s SEVIS record. Consular officials will now be able to view all of the content directly in the SEVIS database, making this information readily available, and accessible for all stages of the adjudicatory process.
While these changes are welcomed to increase the flexibility, depth, and accuracy of the training program outlined in Form DS-7002, every stakeholder, including the trainee/ intern, host company, and sponsor must make sure that all of the information is accurate, as U.S. Consulates/ Embassies will directly check all details from the SEVIS database when adjudicating cases during the J-1 visa interview.
An alert by Douglas Hauer, Member, Alexander Hecht, ML Strategies – Vice President of Government Relations, and R. Neal Martin, ML Strategies – Senior Manager of Government Relations, details proposed legislative reforms to the Immigrant Investor Program, more commonly known as the “EB-5 Program.”
In the current congress, legislation has been introduced in the House of Representatives to make the Regional Center program permanent, and in the Senate to extend the program for five years. Both measures would make reforms to the program. Click here for further details.
Find more information and updates about the EB-5 program from Mintz Levin’s EB-5 Financing Blog.