Hiring season is fraught with questions and uncertainties; preparing employment applications; interviewing, drafting offer letters….. What questions can be asked? What questions should be asked? These concerns are even more pronounced when it comes to immigration status, and immigration sponsorship. Those tasked with the hiring process often ask, whether it is legal to ask applicants about their immigration status, how to ask that question, and even more important, “Do we have to sponsor for immigration status if the applicant needs it?”
H-1B Lottery Selection Criteria May Change to Salary-Based Process
The Department of Homeland Security (DHS) has issued a new rule that transforms the random cap H-1B selection process to one that prioritizes registrations and petitions based on the highest Department of Labor (DOL) prevailing wage level met by the offered salary. It is not clear yet whether the incoming Biden administration will implement this rule at all or with modifications. Learn more in our recent client alert.
H-1B Wage Rules Rescinded – Another Win for Employment-Based Immigration
A challenge brought by the U.S. Chamber of Commerce to the new H-1B wage levels and the new definition of “Specialty Occupation” was upheld by the United States District Court for the Northern District of California on December 1, 2020. The plaintiff’s Summary Judgement motion was granted when the Court held that the government failed to demonstrate good cause for not following the normal notice and comment procedures required for immigration regulations. The government’s failure to follow the proper rulemaking procedures makes the new rules invalid and requires them to be rescinded by the government. Continue reading “H-1B Wage Rules Rescinded – Another Win for Employment-Based Immigration”
USCIS gets flexible on I-9 Process, but Employers must stay Vigilant
The I-9 process continues to be the bane of HR existence. Recent accommodations for remote work environments, closed driver’s license agencies, and USCIS delays in printing work permits and green cards are definitely appreciated and helpful, but they also make the process more confusing. Employers are beginning to worry about how they will catch up on viewing all of the original documents they saw remotely during the pandemic, in the USCIS-designated 3-day time frame once their companies return to the office. Meanwhile, I-9 audits and worksite enforcement actions are continuing apace. While following all of the new guidance, employers must also be sure to stick to the basics. Continue reading “USCIS gets flexible on I-9 Process, but Employers must stay Vigilant”
COVID-19 Immigration Agency Suspensions and Cancellations 3/29/2020 Update
The Duane Morris Immigration Team is dedicated to providing the most up to date information and zealous advocacy on behalf of our clients during the COVID-19 emergency. Below we have compiled information from various U.S. agencies on all aspects of travel, USCIS appointments, ICE activities and Removal Proceedings. This post will be updated as changes develop. Duane Morris has developed a COVID-19 Strategy Team which is providing regular updates on all business and employment related matters impacted by the COVID -19 pandemic. A second webinar on Business Continuity Planning for a Pandemic will be held on Wednesday, March 18. To register, click here.
- Topics Discussed Below
Continue reading “COVID-19 Immigration Agency Suspensions and Cancellations 3/29/2020 Update”
USCIS Suspends Premium Processing for all I-129s and I-140s
USCIS announced at 2:19 PM on 3/20/2020 that Premium Processing services for I-129 (E-1, E-2, H-1B, H-2B, H-3, L-1A, L-1B, LZ, O-1, O-2, P-1, P-1S, P-2, P-2S, P-3, P-3S, Q-1, R-1, TN-1 and TN-2.) and I-140 (EB-1, EB-2 and EB-3) is suspended temporarily. Like many of us, USCIS service center operations have gone remote, so it is impossible for the agency to keep up with the demand for premium processing of applications. Continue reading “USCIS Suspends Premium Processing for all I-129s and I-140s”
Proposed First Step Toward Immigration Reform Announced by President
On May 16, 2019, the president announced a plan to reform the U.S. immigration system, with a focus on increased border security as well as a plan to replace the employment-based green card system with a points system modeled on immigration programs in other countries, including Canada and Australia.
While specific details of the plan have not been disclosed, it is to be a merit-based system that would assess permanent residence applicants on the basis of criteria that include age, skills, education level, offer of employment, job creation potential and wage level.
Premium Processing Resumes for FY2019 Cap Subject H-1B Petitions
By: Valentine Brown
On January 26, 2019, USCIS announced that Premium Processing will resume on January 28, 2019 for all cap-subject FY2019 H-1B petitions; in other words, for any H-1B lottery application filed last April that is still pending with the agency. But shouldn’t all of those petitions have already been approved? Well, um…. yes. But wasn’t the employment start for all of those petitions October 1, 2018? Another, Yes. In spite of these facts there are several thousand H-1B cap-subject petitions still un-adjudicated or waiting for a decision months after employers responded to USCIS requests for additional information. Better late than never, as the old adage goes.
The announcement means that employers who have any of those thousands of petitions still at the agency can upgrade them to premium processing and receive a decision or a request for additional information within 15 days. Employers who are currently compiling responses to requests for information can also submit their response with a premium processing upgrade and $1410 to obtain a decision on their petition within 15 days.
The USCIS announcement is only applicable to cap-subject FY2019 H-1B applications. Premium processing remains suspended for the following H-1B categories, at least until February 19, 2019.
- H1B Extension Petitions that include changes to the original position
- H1B Petitions where there is a change of employer
- H1B Petitions that request amendments with changes to the original petition
The continued ban on premium processing, especially for petitions where there is a change of employer is burdensome to both employers and H-1B status holders. With current adjudications taking as long a six months and denial rates higher than ever, it is often too risky for an H-1B nonimmigrant to make an employer switch until the H-1B petition is approved, and for employers waiting six months or more for a new hire to start is untenable.
Premium processing continues to be available for H-1B cap exempt petitions filed by institutions of higher education, government research entities and some qualified non-profit organizations that file petitions at the California Service Center. It is also still available for H-1B extension petitions where there are no changes or amendments. These are applications that are filed with the Nebraska Service Center.
USCIS states that the agency will update the availability of premium processing for other categories once the workload of the agency permits. It is unclear whether the original deadline for the lifting of the premium processing ban of February 19, 2019 will be honored, or whether the ban will be further extended.
USCIS Issues Final Guidance on H-1B Amendments under Matter of Simeio
U.S. Citizenship and Immigration Services (USCIS) has released its final guidance on when to file an amended or new H-1B petition after the Matter of Simeio Solutions, LLC decision.
Change in CIS Policy on worksite/location changes: On April 9, 2015, the USCIS’ Administrative Appeals Office (AAO) issued a precedent decision, Matter of Simeio Solutions, LLC, ruling that when an H-1B employee changes work site locations, it is considered a material change that may require the filing of an amended or new H-1B petition with USCIS.
Previous USCIS Guidance: Under the previous USCIS guidance, if a new Labor Condition Application (LCA) was filed with the U.S. Department of Labor (DOL) prior to the work site location change, no amended or new H-1B petition was required to be filed with USCIS.
New USCIS Guidance: Under the new USCIS Guidance, if an H-1B employee is changing work site locations and the new work site location is not within the same Metropolitan Statistical Area (MSA) as the current worksite location, then an amended or new H-1B petition must be filed with USCIS.
If the worksite change is within the same MSA, no amended or new H-1B petition is required; however, copies of the original certified LCA listing the current work site location will need to be posted at the new work site location prior to the H-1B employee beginning employment at the new location. After the requisite posting period, the posted original certified LCA copies must be placed in the Public Access File notated with the dates and places of posting.
Compliance: If an employer complied with the pre-Simeio decision USCIS Guidance, by completing a new LCA before the worksite change, and the H-1B employee work site changed occurred on or before April 9, 2015, USCIS will not pursue any new adverse actions against the employer after July 21, 2015 that are based solely upon a failure to file an amended or new H-1B petition to address the work site location change. USCIS will however, preserve the right to pursue any adverse actions (related to work site location changes) which have commenced or been completed prior to July 21, 2015, and will also still continue to pursue adverse actions for other violations.
However, USCIS provides a safe harbor, if an employer files amended or new H-1B petitions on or before January 15, 2016 to address prior work site changes for H-1B employees (including cases that followed the pre-Simeio decision USCIS Guidance for work site location changes prior to April 9, 2015, with the filing of new LCAs listing the new work site location). USCIS will consider those filings timely, and not subject to adverse action by USCIS for failure to file an amended or new H-1B petition to address the work site location change.
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.