State Department Computer Problem Causes Worldwide Delays in Visa Issuance at U.S. Consulates

On June 12, 2015 the U.S. State Department announced that a computer glitch has hit the Consular Consolidated Database (CCD) affecting the printing of U.S. visas at all consulates and U.S. embassies worldwide.

On June, 15, 2015 the State Department published the following State Department Update, indicating that there is no resolution to the problem and none in sight as of this writing. Continue reading State Department Computer Problem Causes Worldwide Delays in Visa Issuance at U.S. Consulates

Unfair Immigration-Related Hiring Practices: Employers Beware

In recent years the Department of Justice Office of Special Counsel for Unfair Immigration Related Employment Practices (OSC) has stepped up enforcement against employers who commit violations during the hiring process.  The primary source of information for the commencement of investigations against employers is a Department of Justice Hotline for workers  who believe they have been mistreated by potential employers during the hiring process. Attorneys at the OSC follow up on every hotline call, often contacting employers directly to educate them and obtain additional information.  From its experience on the hotline, the OSC has compiled a list of the most common hiring violations it encounters. While many seem obvious, they are worth reviewing with human resources staff, as they continue to reoccur and cost employers significant civil fines and pack pay awards.

Refusing to hire workers who sound or appear foreign: Employers have been fined and required to pay back wages to non-U.S. citizen workers who were rejected on the basis of employer blanket policies of rejecting applicants who sounded or appeared to be foreign. There are many non-U.S. citizen workers who are authorized to work for any employer in the United States, include Legal Permanent Residents, Asylees,  and Refugees.

Preferring to hire U.S. citizens is also an unfair employment practice,  unless a law, regulation, government contract, or executive order requires that the position be filled by a U.S. citizen. Employers have been prosecuted by the OSC for including  “citizen only” type language in employment advertising or application materials, as well as for communicating this preference to applicants during the hiring process.  Fines for this violation have ranged as high as $100,000 in prior years.

Hiring non-immigrant visas holders while rejecting qualified U.S. citizens and lawful permanent residents who apply for the same jobs. Employers have been subject to investigation and fines during the H-2B application process after they did not hire U.S. citizens and green card holders who applied for the H-2B advertised jobs.  This type of investigation is even more troublesome as it arises out of an information sharing agreement between the Department of Labor and the Department of Justice. Significant back pay awards to the affected workers are common in this type of case.

Hiring undocumented workers instead of employment-authorized individuals. The OSC is vigilant about investigating this type of complaint, which is often presented when a terminated worker complains about being replaced by an undocumented worker.  The typical remedy is reinstatement and back pay for the affected worker.

No Duty to Sponsor: In spite of all of these admonishments, it is important to remember that employers have no obligation to “sponsor” any worker for immigration status under any circumstances.  This means that, there is no obligation to file an H-1B petition or green card application on behalf of any employee. Foreign nationals  who do not have unlimited work authorization to work for any employer in the United States are not protected by anti-discrimination provisions in the Immigration and Nationality Act.  However, employers should  still beware of treating various classes of foreign national employees differently.  Having sponsorship policies in place, which include a time frame for the decision to sponsor as well as specific criteria and manager recommendations, is a best practice that allows employers to have defined criteria  and time frames to review each individual employee  for sponsorship consideration.

The ABCs of Alternatives to the H-1B

The H-1B Cap for the 2016 H-1B Cap Year (October 1, 2015 – September 30, 2016) has been exhausted. 233,000 applications were submitted for approximately 85,000 slots. There is no relief in sight, as stalemate in Congress continues to prevent any meaningful immigration reform. Employers that want to hire professional workers who do not already have an H-1B from a prior lottery, will have to wait until next year or look for an alternative. While the list looks promising, in actuality it is a rare case when one of the alternatives fits an employer’s specific needs. Consulting with experienced immigration counsel is mandatory for finding a suitable alternative. The basic list of alternatives follows: Continue reading The ABCs of Alternatives to the H-1B

J-Visa Program Changes Now In Effect

The J-Visa International Exchange Visitor Program is designed to foster international exchange between the United States and the world. The program has categories for scholars, trainees, college interns, camp counselors, au pairs and many others. In spite of its original intentions, the program has gotten increasingly complex, expensive and difficult to use for employers and international visitors. This is due to stricter requirements and scrutiny now required of and by J-Visa program sponsors. The latest changes to go into effect now include the following: Continue reading J-Visa Program Changes Now In Effect

Avoiding Immigration-Related Employment Discrimination: Best Practices from the DOJ

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. Continue reading Avoiding Immigration-Related Employment Discrimination: Best Practices from the DOJ

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: Continue reading E-Verify Capabilities Continue to Expand

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

Valentine BrownOn 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. Continue reading USCIS Now Accepting Work Authorization Applications for Some H-4 Spouses