Best Practices to Avoid Immigration Related Discrimination During Hiring

The Department of Justice Office of Special Counsel for Unfair Immigration Related Employment Practices has been actively investigating and prosecuting employers for large and small violations. While fines can be minimal, the intrusion into a company’s day-to-day operations as well as the strong likelihood of a follow-on I-9 Audit and multiple years of re-auditing by both the DOJ and the USCIS should be deterrent enough to encourage employers to get their policies and practices in order.

The Office of Special Counsel recommends the following best practices  during the hiring and I-9 verification process:

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E-Verify Capabilities Continue to Expand

E-Verify is an electronic employment eligibility verification system administered by the federal government. It is voluntary for most employers, but is required to be used by  federal contractors and is mandated by several states.  In spite of its voluntary nature, many employers  choose to use the system in addition to the required I-9 process in order to verify the work authorization of their employees.  The E-Verify system has continually been improved since its inception with new capabilities regularly being added.  Three recent add-ons are discussed below:

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USCIS Now Accepting Work Authorization Applications for Some H-4 Spouses

On May 26, 2015, USCIS began accepting work authorization applications for certain H-4 dependent spouses of H-1B nonimmigrants who are seeking employment-based lawful permanent resident (LPR) status. This is a key element of President Obama’s Immigration Accountability Executive Action initiative announced on November 20, 2014. Extending eligibility for employment authorization to certain H-4 dependent spouses of H-1B nonimmigrants is one of several initiatives underway to modernize, improve and clarify visa programs to grow the U.S. economy and create jobs. USCIS estimates the number of individuals eligible to apply for employment authorization under this rule could be as high as 179,600 in the first year and 55,000 annually in subsequent years.

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H-1B Lottery Season Approaches: “Luck is not as Random as You Think”*

Each year, on April 1st, the U.S. Citizenship and Immigration Service (“USCIS”) begins accepting H-1B applications for the upcoming fiscal year.  H-1Bs are available for professionals in specialty occupations holding a bachelor’s degree or higher. There are 65,000 new H-1B visas available each year plus an additional 20,000 for those who have obtained a U.S. master’s degree or higher.

While it may seem that Wednesday, April 1, 2015 is far-off, there is never enough time to prepare, so it is highly recommended that employers and potential H-1B applicants begin the process of preparing their petitions as early as possible.  Starting the process now has the following benefits:

  • Sufficient time for the necessary document gathering,
  • Preparation of the application without a last minute frenzy,
  • Time to identify and address any potential problems, and the
  • Ability to consider and strategize on other immigration benefits that may be available, should the application not be selected in the lottery.

Our office is happy to accept H-1B cap-subject cases for Fiscal Year 2016 (“FY16”) at this time.

The Inevitable H-1B Lottery:  There are 65,000 regular H-1B visas plus 20,000 more available for those applicants with advanced-degrees earned in the United States.  H-1B cap-subject cases are filed beginning on the first business day in April and under USCIS regulations, the minimum filing period for the H-1B lottery  is five business days.  If the H-1B cap is reached or exceeded within the first five days, USCIS stops accepting H-1B petitions and conducts a lottery. During the lottery, USCIS will first divide the applications into two categories: those with US advanced degrees and those without. Then it will select 20,000 random applicants from the advanced degree category. Any applications not selected, are then added to the other category, and a second lottery for 65,0000 applicants is selected. Applicants will know the end results of the lottery by mid May, 2015..

This year, we expect that the cap will be reached within the first five days of filing and a lottery is likely to take place.  Since 2008, the number of cap-subject filings has steadily increased each year and we  expect that trend to continue and worsen this year.  In FY14, USCIS received over 120,000 H-1B filings in the first five days and in FY15, that number increased to 170,000 filings in the first five days. Between the pent up demand from last year and an improving job market, we expect the number of H-1B applications this year to be over 200,000.

For Employers:  We recommend that employers begin to review which of their employees that may need to be included in the upcoming H-1B cap-subject filing as early as possible. The following categories should be considered:

  • Recent college graduates who are employed pursuant to F-1 Optional Practical Training (OPT).
  • L-1B Workers at Multinational companies who are nearing their five-year limit on stay in the U.S.
  • L-2 employees working on EADs who would like to hold their own non-immigrant status
  • New hires from abroad who are not eligible for any other employment based non-immigrant status

For Foreign Nationals:  It is important that everyone involved in the H-1B process begin to prepare early.  Foreign national workers should contact their employer to initiate discussion about H-1B cap-subject filings as to prepare for the process, collect documents, and ensure the proper course of action.  In the event that an employer is unfamiliar with the H-1B filing and process, this will provide them with time to seek legal guidance.

Getting Started:  To begin the H-1B process for a foreign national, it is helpful to have as much information and documentation as possible, so that it can reviewed thoroughly.  Generally speaking, the following is required from the employer: job title, job description, salary, and location.  From the employee, the following is required; a copy of  the passport identification page, any visas, I-94 records, educational documents, curriculum vitae, and, evidence of any immigration status held in the U.S.

With the help of an experienced immigration attorney, getting a head start on the H-1B cap season can mean the difference between being granted an H-1B or trying again next year.  If you have any questions regarding the H-1B visa requirements, the  lottery process or require representation in H-1B matters, please contact us as soon as possible.

* “Luck is not as random as you think. Before that lottery ticket won the jackpot, someone had to buy it.”  – Vera Nazarian, The Perpetual Calendar of Inspiration.

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Department of Labor Starts PERM Modernization Project (Wahoo!!!)

The Department of Labor (DOL) has taken a first step in the PERM Modernization Project, mandated by the President’s Executive Action on Immigration announced on November 20, 2015. On January 22, 2015, the DOL will hold a “Public Listening Session” from 4:30-5:30 PM, EST. The session is by telephone and in person and is open to the public. Registration instructions for the event, can be found here.

PERM is the acronym that refers to the labor certification process that many employers must go through in order to sponsor a foreign national employee for legal permanent residence. During the PERM process, the employer must undertake a set of DOL prescribed recruitment steps to demonstrate that there is no American worker who is ready willing or able to fill the position, that they foreign national employee is filling.

The PERM process is notoriously difficult for the DOL’s lack of forgiveness for any mistake or typographical error no matter how unintentional or small.  For example, an obvious typo on the application form of a date of a particular recruitment step is likely to cause a denial of the application, but only after DOL has had the application in process for over 12 months and the employer has spent thousands of dollars on required newspaper print ads. Because there is no way in the DOL PERM process to correct the mistake, the employer and the employee must start over from the beginning.

Immigration advocates hope that the PERM modernization project will address issues such as the inability of employers to correct obvious errors, the use of outdated and expensive modes of recruitment, such as newspaper print ads.  Currently there is no application fee for a PERM application, but the project requires the DOL to consider a “premium processing fee” to speed up application processing. A program to fast track certain PERM applications is long overdue, as a PERM approval is often the key to eligibility for extensions of a foreign national’s H-1B status beyond the 6 year minimum. This type of benefit, would assist employers in keeping essential employees working in the United States, instead of having to send them abroad as is often the case now, when PERM applications are delayed by denials and long DOL processing times.

According to the DOL, the project will consider the following:

  • Options for identifying labor force occupational shortages and surpluses and methods for aligning domestic worker recruitment requirements with demonstrated shortages and surpluses;
  • Methods and practices designed to modernize U.S. worker recruitment requirements;
  • Processes to clarify employer obligations to insure PERM positions are fully open to U.S. workers;
  • Ranges of case processing timeframes and possibilities for premium processing; and
  • Application submission and review process and feasibility for efficiently addressing nonmaterial errors.

To read more about the DOL’s PERM Modernization Project, click here.

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Immigration Innovation Act -Reintroduced for 2015 Congress

On January 13, 2015, U.S. Senators Orrin Hatch (R-Utah), Amy Klobuchar (D-Minn.), Marco Rubio (R-Fla.), Chris Coons (D-Del.), Jeff Flake (R-Ariz.), and Richard Blumenthal (D-Conn.)introduced the Immigration Innovation (“I-Squared”) Act of 2015.  This bill had had been previously introduced in 2013, and blogged about on this site.

According to Hatch,”This bill is a common sense approach to ensuring that those who have come here to be educated in high-tech fields have the ability to stay here with their families and contribute to the economy and our society.”  I agree.

The bill proposes the following:

Employment-Based Nonimmigrant H-1B Visas

  • Increase the H-1B cap from 65,000 to 115,000
  • Allow the cap to go up (but not above 195,000) within any fiscal year where early filings exceed cap and require the cap to go down in a following fiscal year (but not below 115,000) if usage at the end of any fiscal year is below that particular year’s cap
  • Uncap the existing U.S. advanced degree exemption (currently limited to 20,000 per year)
  • Authorize employment for dependent spouses of H-1B visa holders
  • Increase worker mobility by establishing a grace period during which foreign workers can change jobs and not be out of status and restoring visa revalidation for E, H, L, O and P nonimmigrant visa categories

Student Visas
Allow dual intent for foreign students at U.S. colleges and universities to provide the certainty they need to ensure their future in the United States

Green Cards

Enable the recapture of green card numbers that were approved by Congress in previous years but were not used, and continue this policy going forward through the roll-over of unused green cards in future fiscal years to the following fiscal year

Exempt certain categories of persons from the employment-based green card cap; including Dependents of employment-based immigrant visa recipients; U.S. STEM advance degree holders; Persons with extraordinary ability; and Outstanding professors and researchers

Eliminate annual per-country limits for employment based visa petitioners and adjust per-country caps for family-based immigrant visas U.S. STEM Education & Worker Retraining Initiative

Reform fees on H-1B visas and employment-based green cards; use money from these fees to fund a grant program to promote STEM education and worker retraining to be administered by the states

Unfortunately, the likelihood of the House taking up this bill is slim, especially in the current immigration climate. But stranger things have happened, so we will continue to wait, advocate and work toward some meaningful immigration reforms.

To read the full text of the bill, click here.

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Valentine’s Law 360 Article on Executive Action

Check out my recent article on Executive Action on Immigration, published in Law 360 on January 2, 2015. On November 20, 2014, President Obama announced numerous executive actions on Immigration, including many policy and procedure changes that will speed up and improve immigration processing for employment-based immigrants and their employers. This article discusses those measures, timing of implementation and their effects on business.


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