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DHS new rule on H-1B lottery process: Who’s the winner?

 

Following President Trump’s “Buy American and Hire American” executive order issued back on April 18, 2017, a long-awaited new rule has been proposed by the Department of Homeland Security (DHS) that would change the existing H-1B selection process, although perhaps not before the April 2019 filing season.

Online registration

The proposed rule would require petitioners seeking to file cap-subject H-1B petitions to first electronically register with US Citizenship and Immigration Services (USCIS) during a designated registration period, which would begin at least two weeks before April 1. The registration would require information about the employer, as well as the individual H-1B beneficiary.

USCIS would then select at random from the online registration database until the limited supply available under the quota (65,000 regular cap and 20,000 US advanced degree holders) is exhausted.

The big change is that US employers would only file complete H-1B petitions for the named beneficiaries who have been selected. Government processing fees would only be paid for selected petitions.

Similar to current processing, DHS would prohibit more than one registration from the same petitioner for the same beneficiary during any given year. Further, the new rule would require petitioners to attest to their intent to file an H-1B petition for the named beneficiary in the position for which the registration is filed.

DHS believes that this will prevent US employers from submitting a large numbers of registrations but not following up with complete filings of H-1B petitions for the selected beneficiaries—something that was not possible under the existing system. The proposed rule states that USCIS would closely monitor whether selected registrations are resulting in the filing of complete H-1B petitions. If USCIS finds that petitioners are registering numerous beneficiaries but are not filing petitions “at a rate indicative of a pattern and practice of abuse of the registration system,” it would investigate and could hold the employers accountable.

Selection process

The proposed rule would reverse the order by which the H-1B cap petitions are selected. Currently, USCIS first selects 20,000 with US graduate degrees, and then allow the unselected to be considered a second time, with the rest of the world, for the 65,000 quota. The proposed rule reverses this order. The proposed rule claims that it would increase the likelihood that a US graduate degree holder would be selected by up to 16 percent, but no explanation for that calculation is provided in the rule.

Petitioners whose petitions are selected will be notified to file complete H-1B petitions for the named beneficiaries within a designated filing period, expected to be at least 60 days.

Dentons analysis

The new rule reduces USCIS’ workload, since it does not have to handle the return of unselected petitions. However, this is not likely to speed up the slow processing of H-1B petitions, since the agency generally relies on contractors to handle mailroom services, rather than the officers who adjudicate petitions.

While the new rule may reduce some paperwork for US employers, it will not likely reduce the costs, since the cost of evaluating potential H-1Bs and registering is still incurred prior to the employer signing the petition. In fact, the extra step of registration creates extra work for employers and lawyers.

The anti-fraud provision of the rule attempts to address some of the realistic problems in the H-1B problem, but at the same time creates uncertainty for US employers and would most likely result in employers that have made bona fide job offers backing out for fear of the heightened scrutiny and potential liabilities.

DHS estimates that it will spend nearly $280,000 to develop the new system and $200,000 per year to maintain it. The proposed rule does not charge employers for the registration. How long the agency will forgo charging employers for registration is hard to predict, but USCIS has very few services that it provides to employers without a fee.

It is clear that this change will detrimentally impact the ability of US employers to continue to employ foreign workers. Current law allows the continued employment of F-1 OPT/STEM OPT and J-1 workers while the H-1B is pending, until their petitions are selected and approved OR even until the government announces they are not selected or not approved. The new rule means that fewer employers will have fewer H-1B petitions pending. The situation will be even worse if the new rule speeds up adjudications, as faster adjudications means faster denials. In sum, the new rule will result in fewer US employers being able to meet their staffing needs with pending H-1B petitions.

The announcement warns that the new rule may not be implemented in time for the April 2019 H-1B filing season, since there may not be enough time to fully test the system. If the new system has not gone into effect at least two weeks prior to the filing deadline, employers should be prepared to submit full H-1B petitions for all candidates on the first business day of April 2019.

Employers and stakeholders have until January 2, 2019 to submit comments on the proposed rule.

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DHS new rule on H-1B lottery process: Who’s the winner?

USCIS to require applicant’s signature for delivery of green card and EAD

Delivery of alien registration cards (popularly called green cards), employment authorization documents (EADs) and reentry permits will soon require the recipient to present valid photo identification at the time of delivery, with some exceptions.

The US Citizenship and Immigration Services (USCIS) announced on Friday, April 27, 2018, that the agency will soon start using the Signature Confirmation Restricted Delivery service from the US Postal Service. The stated goal is to increase “the security, integrity, and efficiency of document delivery” and provide “better tracking and accuracy of delivery information, improving service to applicants.” This new process applies to the delivery of secure documents, such as green cards, EAD cards and reentry permits. USCIS plans to first roll out the new process to secure documents that were returned as non-deliverable, and to subsequently expand use of signature confirmations to all deliveries of secure documents.

In general, applicants will have to present a valid ID to sign their documents upon delivery. USPS offers several alternatives, including designating another person to sign on the applicant’s behalf, authorizing the hotel or the apartment complex where the applicant resides to accept delivery, etc. Applicants can also sign up for Informed Delivery, an online service from USPS that provides delivery status notifications and allows for parcels to be held for in-person pickup at a USPS post office location.

This announcement comes less than a month after USCIS indicated that it would destroy such secure documents (green cards, EAD cards and travel booklets) after 60 days if returned as non-deliverable by USPS. These two recent announcements serve as a reminder that all foreign nationals are required to keep USCIS informed of their current address, and to report any change of address within 10 days of relocation by filing Form AR-11, either online or by post.

For more information, please contact your Dentons lawyer and for the full text of the agency’s press release can be found at the USCIS website.

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USCIS to require applicant’s signature for delivery of green card and EAD

New Form I-9 and E-Verify User Manual for US employers

The US Citizenship and Immigration Services (USCIS) issued a revised Form I-9 and E-Verify User Manual. Employers should use the new Form I-9 for all new hires and for re-verification of current employees when their temporary employment authorization expires.

Form I-9 is used for verifying the identity and employment authorization of individuals hired for employment in the United States. All employers must ensure proper completion of Form I-9 for each individual they hire for employment in the United States, citizens and noncitizens included.

USCIS, which is an agency under the US Department of Homeland Security (DHS), operates the E‑Verify program, an Internet-based system that allows any US employer to electronically verify the employment eligibility of a newly hired employee.

E-Verify is a voluntary program. However, employers with federal contracts or subcontracts that contain the Federal Acquisition Regulation (FAR) E-Verify clause are required to enroll in E-Verify as a condition of federal contracting. E-Verify is also a requirement for employers of F-1 foreign students employed under STEM Optional Practical Training. Further, employers in states that have enacted legislation require some or all employers to utilize E-Verify as a condition of business licensing.

The new Form I-9 is available at the USCIS website. The new E-Verify User Manual is available for download here.

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New Form I-9 and E-Verify User Manual for US employers

Travel ban executive order – the saga continues

The US Departments of State and Homeland Security both issued statements on February 6, 2017, confirming that the government has suspended the implementation of key provisions of President Trump’s travel ban on nationals from seven Muslim-majority countries, and that visas that had been provisionally revoked are now valid for travel and may be used, once again, to come to the US, subject to the normal laws and procedures that existed prior to the President Trump’s executive order dated January 27, 2017.

This action comes as a result of a Ninth Circuit Court of Appeals decision in State of Washington and State of Minnesota v. Trump, denying a US Department of Justice request for an immediate stay of a nationwide injunction granted by a US federal district court judge in Seattle in response to Washington State’s request for a temporary restraining order immediately halting implementation and enforcement of the immigration ban.

The EO initially barred the entry to the United States of lawful permanent residents with green cards, and imposes a 90-day suspension of admission for immigrant and nonimmigrant visa holders, and refugees and passport holders from the seven countries. Soon thereafter, the Department of State issued an urgent notice suspending visa issuance to citizens of those countries. The EO also suspended the resettlement of refugees from all countries to the US for 120 days, and bans Syrian refugees indefinitely.

Previous injunctions had been issued in federal courts in Massachusetts and New York. Those orders temporarily enjoined federal agencies from removing people with approved refugee applications, valid visas and the nationals from the seven Muslim countries. The Seattle court’s decision is the broadest and has the largest impact.

Citizens from these countries are impacted

Nationals from the following countries are detrimentally impacted:

  • Iran
  • Iraq
  • Libya
  • Somalia
  • Sudan
  • Syria
  • Yemen

The EO does not apply to citizens of other countries who merely visited the listed countries. Further, the US Customs and Border Protection Agency has stated that the EO does not apply to citizens of these seven countries, if they are dual citizens and use the passport of a non-affected country to enter the US.

Travel guidance

Nationals from the seven listed countries, including dual citizens traveling with the passport of another country and US permanent residents, may wish to delay travel to the US until the details of the implementation of the EO are more clear, even if they already hold a visa to enter the United States. If in the United States already, they may wish to defer departure as they may not be allowed to return or they may find themselves going through a more lengthy than usual secondary inspection on arrival in the US. There are also reports of airline personnel being understandably confused regarding the status of the EO, with resulting inconvenience to travelers.

Background

On February 4, President Trump tweeted the following about the Hon. James L. Robart, the district court judge who issued the nationwide order. “The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!”

Criticism of the tweet and the EO was immediate and widespread. Senator Patrick Leahy (D-VT) said, “The President’s hostility toward the rule of law is not just embarrassing, it is dangerous. He seems intent on precipitating a constitutional crisis.” Senators John McCain (R-AZ) and Lindsey Graham (R-SC) said: “We fear this executive order will become a self-inflicted wound in the fight against terrorism.”

Broad media coverage of the confusion caused by the uncertainty surrounding the EO’s fate continues. Dentons continues to receive emails and calls from employers who are considering cancelling all travel for employees carrying passports from the impacted countries, including dual citizens and US lawful permanent residents. Similar concerns have been voiced by citizens of many countries that are not listed in the EO but are worried that their country might be next. Due to the reciprocal nature of diplomatic relations, it is likely that US passport holders traveling to the seven countries will experience similar difficulties upon their arrival. Iran, for its part, has said, it would stop US citizens entering the country in retaliation to Washington’s visa ban.

Dentons will issue further information as it becomes available.

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Travel ban executive order – the saga continues

H-1B blast off countdown 2017

T minus 59 days. The countdown has begun.  The date is coming.  It will be here soon.

It is the biggest event of the year in United States immigration.

Hundreds of thousands will apply, but only a lucky few will be chosen. Employers keen to recruit and employ the best and brightest talent from around the globe to meet American business needs are already gearing up.  Professionals eager to pursue their career in the United States are updating resumes and collecting diplomas and reference letters. This program is not the best way for a country to succeed, but the United States Congress continues to lack the will and wisdom to change a law almost 25 years old.

Are you ready?

April 1, 2017, is the first day that the United States Citizenship and Immigration Services agency (USCIS) will accept new H-1B specialty occupation worker nonimmigrant visa petitions by employers for foreign professionals.  It is important for global mobility and human resource managers to start work now to secure preliminary Department of Labor approvals, foreign degree evaluations, etc., to be ready to file the petition for an April 1 receipt date.

Limited supply

Only a limited number of new H-1B visas are accepted each year due to legal quota restrictions. Every year, 65,000 new H-1B visa petitions can be granted, of which 6,800 are set aside for citizens of Chile and Singapore under free trade agreements with those countries. To the extent there were unused free trade agreement H-1Bs, those are added to the quota for the next fiscal year. There is an additional allocation of 20,000 new H-1B visa petitions that can be accepted if the foreign professional in question earned a graduate degree from a university in the United States.

Not all H-1B visa petitions are subject to numerical limits. Individuals already holding H-1B visas are not counted against the quota, and petitions filed by institutions of higher education or related or affiliated nonprofit entities, nonprofit research organizations or governmental research organizations are exempt from the limits. And H-1B workers performing labor or services in the Commonwealth of the Northern Mariana Islands (CNMI) and Guam may also be exempt from the H-1B cap, provided their employers file the petition before December 31, 2019. Employers may not file a petition or an extension request for an employee more than six months before the employee’s intended start date.

Overwhelming demand

Last year, the USCIS received so many new H-1B visa petitions in the first week of April that the agency ended the application window on April 7. Approximately 236,000 new petitions were received, as compared to 233,000 in the prior year. As the regulations mandate, officers then selected—at random—which envelopes to open, and returned the rest unopened with the government filing fees. Only then did the agency begin the often long process of approving or denying the selected petitions on the merits of eligibility.

This year, the USCIS will once again receive more than it is allowed to accept. Again, the agency will randomly decide which envelopes to open and which to return unopened. The likelihood of a petition being selected in April 2017 is much lower than last year, taking into consideration the current state of the economy, the relatively low rate of American unemployment in typical H-1B specialty occupations, and the labor needs of US employers.

The countdown begins now (download dates directly into your Outlook)

T minus 59 days (February 1):  Start working with legal counsel now. Identify current and prospective employees who will need new H-1B visa petitions.

T minus 44 days (February 15):  By now, you and legal counsel should have requested the labor condition application certification from the Department of Labor.  Employers new to the process or who have not filed recently will need to create the appropriate accounts with the Department of Labor. Because the USCIS relies on Dunn & Bradstreet data (DUNS) as part of its employer background verification process, it is important for employers to create or update the company’s DUNS records to avoid inconsistencies with H-1B visa petition filings.

T minus 31 days (March 1):  Have all the required USCIS forms and supporting documents been signed and filing fee checks prepared?  There is still some time left to get last minute details completed, but this is when it gets very hectic. Government systems often become overloaded and delays at the Department of Labor for late filings are common.

T minus 1 day (March 31):  Envelopes should be properly addressed and delivered to the express service of choice with next business morning delivery instructions.

T minus 0 (April 1):  Just like at NASA ground control, this is the stage in the process where all the hard work resulted in successful delivery of the visa petition and you have to wait for the USCIS to announce whether the petition is selected or returned—usually within 3 weeks or so.

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H-1B blast off countdown 2017

Entry to the United States barred for certain passport holders?!

US President Donald Trump issued an executive order delaying the entry to the United States of lawful permanent residents with green cards, immigrant and nonimmigrant visa holders, refugees and passport holders from seven countries. The order, dated January 27, 2017, became effective immediately. Soon thereafter, the US Department of State issued an urgent notice suspending visa issuance to citizens of those countries.

On January 28, 2017, injunctions were issued in federal courts in Massachusetts and New York. The orders enjoin federal agencies from removing people with approved refugee applications, valid visas and others from the seven countries.

How the government is reacting

In a January 29, 2017, press release, the US Department of Homeland Security (DHS) stated that it will continue to enforce all of President Trump’s executive orders. Later that same day, the US Citizenship and Immigration Services (USCIS) agency, which is part of DHS, issued a statement deeming the entry of lawful permanent residents to be in the national interest. The result is to allow lawful permanent residents to return to their homes in the US, absent significant derogatory information indicating a serious threat to public safety and welfare.

Citizens from these countries are impacted

Nationals from the following seven countries are detrimentally impacted:

  • Iran
  • Iraq
  • Libya
  • Somalia
  • Sudan
  • Syria
  • Yemen

The order does not apply to citizens of other countries who merely visited the listed countries.

Travel Guidance

Nationals from the seven listed countries, including dual citizens traveling with the passport of another country, may wish to delay travel to the United States until the details of the implementation of the executive order is more clear even if they already hold a visa to enter the United States. If in the United States already, they may wish to defer departure.

Background

The executive order is reported to have been issued without advance consultation with the agencies charged with its implementation, including DHS and the Department of State.

President Trump stated on January 28 that the travel ban is “working out very nicely.”

That said, there is broad media coverage of the widespread confusion that resulted, not only in the general public, but also at airports, airlines, border crossings, etc. There are reports of detentions of new arrivals at airports and public protest in many American cities. I have had a number of emails and calls from client employers canceling travel for employees carrying passports from the impacted countries, including dual citizens and United States lawful permanent residents. Due to the reciprocal nature of diplomatic relations, it is likely that US passport holders traveling to these seven countries will experience similar difficulties.

The situation remains very fluid. Press Secretary Reince Priebus stated on January 29, 2017, that the executive order will no longer apply to lawful permanent residents, and the USCIS issued its confirming statement mentioned above.

Dentons will issue further information as it becomes available.

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Entry to the United States barred for certain passport holders?!

New national interest waiver ruling

greencard

 

Increased immigration opportunities for individuals of exceptional ability

There are increased opportunities for individuals of exceptional ability to immigrate to the United States based on new national interest waiver rule after the US Department of Homeland Security issued on December 27, 2016, designated the Matter of Dhanasar decision as precedent.

Summary

The new rule means that USCIS may grant a national interest waiver if the petitioner demonstrates:

(1) that the foreign national’s proposed endeavor has both (a) substantial merit and (b) national importance;

(2) that he or she is well positioned to advance the proposed endeavor; and

(3) that, on balance, it would be beneficial to the United States to waive the requirement of a job offer and thus of a labor certification.

The employment-based second preference immigrant visa category (EB2) includes individuals of exceptional ability who can self-petition to immigrate.  That means they sign their own immigrant petition and do not need a sponsoring employer. Further, the normal requirement of an employer obtaining an alien employment certification from the US Department of Labor can be waived on a showing that the waiver is in the national interest.

Analysis

The new rule states that “substantial merit” may be in a range of areas, citing business, entrepreneurialism, science, technology, culture, health, or education, research, pure science, and the furtherance of human knowledge as examples.  Showing the potential to create significant economic impact may be favorable, but is not required.

“National importance” focuses on potential prospective impact, rather than geographic terms.  National or global implications are relevant, but even a ventures that focus on one geographic are of the US may qualify.

The requirement that the immigrant be well positioned to advance the proposed endeavor focuses on the immigrant.  Relevant factors include education, skills, knowledge, and record of success in related or similar efforts, plan for future activities, and the interest of others (e.g., potential customers, users, investors).

The benefit to the US is an analysis of both:

  • Impracticality of securing a job offer or alien employment certification; and
  • Benefit of the immigrant’s contributions to the US warrants foregoing the alien employment certification.

Matter of Dhanasar

The immigrant in Matter of Dhanasar held a PhD in Engineering, as well as Master’s degrees in Mechanical Engineering and Applied Physics. His research focused on hypersonic propulsion systems and computational fluid dynamics.  He developed a validated computational model of high-speed air-breathing propulsion engine and a novel numerical method of calculating hypersonic air flow.  He intended to work in air and space propulsion systems R&D at university, as well as supporting teaching activities in STEM disciplines.

The US Citizenship and Immigration Services denied the immigrant petition, but that decision was reversed on appeal to the Administrative Appeals Office.  The AAO found there was both substantial merit and national importance to the immigrant’s work due to potential use in military and civilian applications, advances to scientific knowledge, and American national security and competitiveness applications.  The high level of accomplishment to date by the immigrant was found to show benefit to the US even assuming that other qualified US workers are available.

Matter of New York State Department of Transportation

The new ruling vacates the AAO’s decision in Matter of New York State Department of Transportation, which had been in effect since 1998.  That case severely limited self-sponsored EB2 due to a restrictive interpretation of the national interest waiver requirements, which was often misinterpreted by the USCIS to require the very labor market test that was intended to be waived.

Impact

The new ruling makes the self-petition EB2 national interest waiver much more widely available.  As a result, we anticipate a significant increase in filings, including in some cases where the self-petition EB1 extraordinary ability immigrant visa category might be in consideration.  On the other hand, the EB2 category remains oversubscribed with long waiting periods for immigrants born in mainland China and India.  These individuals will continue to shun EB2 in favor of the more stringent requirements of EB1.

The complete text of Matter of Dhanasar can be found here.

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New national interest waiver ruling

Important new regulations for immigrant workers

The US Citizenship and Immigration Services (USCIS) published important new regulations for immigrant workers on November 18, 2016. The regulations become effective January 17, 2017.

Summary

The agency has amended its regulations to provide benefits to those in the employment-based first (EB1), second (EB2) and third (EB3) immigrant visa categories and their employers. The agency’s stated goal is to improve processes and increase certainty for employers seeking to employ and retain such workers, provide greater job flexibility for those workers, and clarify relevant Department of Homeland Security (DHS) policies.

New Rules

There are a number of new regulations, some of which adopt current agency policy and others that are new. The following are some of the most important ones.

For occupations in which a license is required (e.g., doctor, lawyer, etc.), the USCIS will grant the H1B visa for up to one year, if the only obstacle to license issuance is lack of a Social Security number.

For the purpose of counting the number of days spent in the US in H1B visa status towards the normal six-year limit, the USCIS will consider any twenty-four-hour period spent outside the US as one day, regardless of the reason for the absence.

A former H1B visa holder who is no longer in H1B visa status, and regardless of whether he or she is in the US or abroad, may seek an exemption from the normal six-year limit. The foreign worker must be otherwise eligible and the beneficiary of an approved EB1, EB2 or EB3 petition for whom the visa is not current under the quota system as of the date that the H1B petition is filed.

Lengthy adjudication delays of permanent resident status will not support an extension of H1B status beyond the normal six-year limit if the immigrant fails to file for permanent residence or an immigrant visa within one year of the visa becoming current under the quota system. If the visa becomes unavailable again, a new one-year period will be afforded when an immigrant visa again becomes available. The USCIS may also in its discretion excuse failure to timely file upon a showing that the failure was due to circumstances beyond the immigrant’s control.

Credible documentation that an H1B visa worker faced retaliatory action from the sponsoring employer regarding a violation of that employer’s H1B labor condition application obligations may be considered by the USCIS as grounds to grant an extension of H1B stay, or a change of status to another visa classification, notwithstanding the worker’s loss of, or failure to maintain, his or her H1B status.

The definition of “same occupational classification” for purposes of establishing the portability of immigrants to new jobs, has been modified to mean an occupation that resembles in every relevant respect the occupation for which the EB petition was originally granted. “Similar occupational classification” is now defined as an occupation that shares essential qualities or has a marked resemblance or likeness with the original occupation. This guidance is similar to what agency memoranda have already stated.

Employment eligibility verification regulations are amended to authorize employers to accept as proof of employment eligibility Form I-797C and also state that the original employment authorization document is automatically extended for up to 180 days. This is a new rule and will help employers.

Background

The US limits the number of employment-based immigrants annually, by both visa category and country of birth. The quota allocation set in 1990 has never been increased. The annual supply for most categories and countries of birth seems sufficient to prevent lengthy waiting periods; the greatest source of delay are USCIS and Department of Labor (DOL) agency processing times.

The most significant exceptions are for immigrants born in India and mainland China. So many employment-based immigrants born in those two countries are in the queue that waiting periods of for most immigrant visa categories now are many years.

Employer-sponsored EB visas tend to be for specific jobs, at specific work sites, with stated duties and compensation. In general, sponsoring employers and immigrant workers must intend after immigration is complete to work in the same job at the same work site with the same duties for the same (or similar) compensation.

Congress addressed this problem in the American Competitiveness in the 21st Century Act of 2000 (AC21). The USCIS (and its predecessor, the Immigration and Naturalization Service) issued implementing policy guidance, which has been clarified and revised over the years.

The lengthy processing delays were also a problem for H1B professional workers, since there is normally a limit of only six years of status. AC21 provided for extensions beyond the six-year limit.

The EB1 immigrant visa category includes individuals of extraordinary ability, outstanding professors and researchers, and multinational managers and executives. The EB2 category is for professionals with advanced degrees and individuals with exceptional ability. The EB3 category is for professionals and skilled workers, while the EB3W category is for other workers in short supply.

Read the full text of the new regulations here.

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Important new regulations for immigrant workers

US green card availability to increase beginning October 1

visa-perm

Effective October 1, 2016, green cards will become more readily available for most people immigrating to the United States on employment-based (EB) immigrant visa categories.

The US State Department announced in the October 2016 edition of its Visa Bulletin that the agency is processing requests under the EB1 category for all countries of birth, effective October 1. This category includes aliens of extraordinary ability, outstanding professors and researchers, and multinational managers and executives, regardless of place of birth. During the summer, the agency reported a lengthy backlog for EB1 immigrants born in mainland China and India.

The EB2 category—for professionals with an advanced degree and aliens of exceptional ability—is also immediately available, except for individuals born in mainland China and India, for whom the category is backlogged to February 15, 2012, and January 15, 2007, respectively.

The EB3 category—for professionals and skilled workers—has limited available for all places of birth. That said, the backlog for most places is to June 1, 2016, and it is not likely to slow the process of immigration, since the Department of Labor generally takes more than four months to grant the alien employment certification application, often referred to as PERM, longer and that is a prerequisite for EB3 immigration.

The EB5 category—for investors—is currently available for all places of birth except mainland China, which continues to be where the majority of EB5 immigrants are born. EB5 is unavailable for China-born investors in projects in Regional Centers, while EB5 is available to China-born investors in non-Regional Center projects who have I-526 immigrant petition receipt dates on or before February 22, 2014.

There is an annual limited supply of immigrant visas in all EB categories that is replenished effective October 1, the first day of the new fiscal year. In categories where the annual demand tends to be greater than the limited supply, the Visa Bulletins issued for October through April often show the most movement. There is often more movement in the dates for individuals born in mainland China and India during these months. The EB1 and EB5 dates that have improved so much since the September 2016 Visa Bulletin are likely to retrogress once again later in the fiscal year, but the State Department did not release a prediction as to when or by how much.

The full text of the October 2016 Visa Bulletin can be found here.

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US green card availability to increase beginning October 1

Byron Burger: A cautionary tale?

UK Border Controls

Popular UK “posh” burger chain Byron Burger has been at the center of a media flurry over the past week or so, as 35 members of its staff were rounded up and arrested in a controversial immigration sting. The controversy largely relates to Byron’s involvement in the sting.

The UK Home Office confirmed that on the morning of 4 July 2016, immigration officers raided Byron branches and arrested 35 “migrant workers” of Albanian, Brazilian, Egyptian and Nepalese nationality. In the initial reports, a senior manager in one of the branches alleged that staff, some of whom had been employed by Byron for as long as four years, had been falsely duped by Byron into attending a health and safety meeting at 9:30 a.m., when immigration officials quickly arrived and started to interview people.

Byron has confirmed that it facilitated the raid at the Home Office’s request but has refused to respond to the claims that it set up the staff meetings on false pretenses. Sometimes silence speaks a thousand words, as they say.

As such, in amongst the few messages of support for Byron, the critics have shouted louder, calling for a boycott of the chain. Two London branches have already been targeted in the backlash, where activists went so far as to release cockroaches and locusts into the restaurants, forcing them to be closed to customers.

But what are the rights and wrongs of this incident? First, the Home Office has acknowledged that Byron complied with its legal obligations, in particular its obligation to carry out “right to work” checks. The Home Office has issued guidance on what checks UK employers need to carry out on new workers (https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/536953/An_Employer_s_guide_to_right_to_work_checks_-_July_16.pdf). Provided that an employer has carried out the appropriate checks, it will have a statutory excuse against liability for a civil penalty if it later comes to light that any worker has been working illegally in the UK. Employers must therefore ensure that the necessary checks are carried out, as the penalty for failure to do so (up to £20,000 for each illegal worker) could be substantial.

The issue with the Byron workers is that, in the course of its own investigation, the Home Office identified that those workers at the center of the alleged immigration breaches had provided false or counterfeit documentation as proof of their right to work in the UK. The Home Office then made a specific request to Byron to assist it with its investigation, which Byron did.

Perhaps, then, the PR nightmare that is the Byron story should be treated as a cautionary tale of how not to assist in a Home Office investigation. The recent trend seems to show that the Home Office is really cracking down on illegal workers and, accordingly, Home Office investigations are likely to become a live issue for a number of employers. Employers need to balance their legal obligations against their more human responsibilities to their staff.

No one is condoning illegal working or the falsification of documentation. However, arguably, if Byron had dealt with the issue more sensitively and compassionately, it could have mitigated the negative press it received. In an era when people have the world at their fingertips, consumers are calling out to see the human face of business.

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Byron Burger: A cautionary tale?