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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

Global Employment Lawyer – Volume 2, Issue 2 – Fall 2016

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What Happens If You Really “Break A Leg!?”

According to the Cambridge Idioms Dictionary, “Break a leg!” is something you say to wish someone good luck, especially before they perform in the theatre. Although there are many theories, the derivation of this term is unclear. The expression reflects a theatrical superstition that wishing a person “good luck” is actually considered bad luck. But is it really bad luck if you “break a leg?”

In this month’s edition, we feature articles from eight different countries Australia, Canada, China, France, Germany, Israel, UK and US. As always, we thank you for you readership.

Read the complete issue

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Global Employment Lawyer – Volume 2, Issue 2 – Fall 2016

Disclosing bribery conduct not an easy decision for US companies

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July 8, 2016

Recent non-prosecution agreements between the US Securities and Exchange Commission and two companies—Akamai Technologies, Inc. and Nortek, Inc.—in matters involving FCPA books and records violations stemming from conduct that occurred in China, coupled with corresponding decisions by the US Department of Justice to close its investigations into these two matters, provide some limited insight into how to secure similar resolutions of future investigations. However, the questions that remain regarding the benefits of voluntary disclosure of an organization’s misconduct leave things clear as mud.

Should a US company faced with evidence of bribery by an employee or other agent self report in this post-Yates Memorandum/post-FCPA Pilot Program era? Read more in this client alert by Dentons white collar partners Stephen L. Hill, Michelle J. Shapiro and Brian O’Bleness.

Click to read complete article.

 

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Disclosing bribery conduct not an easy decision for US companies

US Visa Bulletin Update—EB-1 backlogs predicted

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Effective August 1, 2016, the employment-based, first-preference immigrant visa (EB-1) is no longer expected to be immediately available for individuals born in India and China. Availability is predicted by the State Department to retrogress to January 1, 2010, and to not become current again until the new fiscal year begins on October 1, 2016. EB-1 will remain current and immediately available to individuals born in all other countries.

EB-1 includes:

  • EB-1A – Individuals of extraordinary ability
  • EB-1B – Outstanding professors and researchers
  • EB-1C – Multinational executives and managers

EB-1 was created as part of the Immigration Act of 1990. This important visa category has, since its creation, generally been immediately available and without any quota backlog. Employment-based immigration in other visa categories has long been slower for immigrants born in India and China due to the large number of applications filed each year.

Although the backlog is not expected to hit until the last two months of the current fiscal year, it is reasonable to assume that, with the anticipated continued growth of immigration to the US from India and China, it will only worsen in fiscal year 2017. While it is difficult to predict how quickly the wait list will grow, to avoid what may become very lengthy processing delays, your best strategy for securing an early priority date is to file your EB-1 immigrant visa petition as soon as possible.

The EB-2 (for professionals with advanced degrees) and EB-3 (for professionals and skilled workers) visa categories already retrogressed in June for individuals born in China and no forward movement is likely for the rest of the fiscal year, but then resume movement forward in October 2016 – no specific date identified, but I estimate it will be current for at least the first six months of fiscal year 2017 (i.e., until April 2017).

EB-2 worldwide is expected to have a cut-off date in the September Visa Bulletin, but the State Department has not yet predicted a specific date.

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US Visa Bulletin Update—EB-1 backlogs predicted

Global Employment Lawyer – Volume 2, Issue 1 – November/December 2015

Global Employment Lawyer - Nov. & Dec. 2015

 

Look out, beware—it’s holiday party season!

For many companies, having an annual holiday party is part of the culture and tradition of the organization. Company holiday parties provide employees with an opportunity to socialize and celebrate together, and can certainly help boost morale and engender loyalty. At the same time, however, there are risks lurking. Depending on the type of party and the part of the world you are having it in, there are different types of risks that can come into play—and we have some tips to mitigate them.

What’s not risky? Keeping up to date on the hot topics in employment and labor issues from around the globe which could affect your business goals in those regions.

From all of your friends at Dentons, we wish you a happy, healthy and prosperous holiday season!

Read the complete issue

 

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Global Employment Lawyer – Volume 2, Issue 1 – November/December 2015

Global Employment Lawyer – Issue 3

Summer 2015

Global Employment Lawyer

The third edition of the Global Employment Lawyer provides you with practical content to keep you current on developments that effect your business goals around the globe. Our lawyers look at questions of religious accommodation as well as the unpleasant income tax consequences of temporary visas in the US; managing “difficult employees” in Canada; reducing workforce due to redundancies in China; imminent changes to Polish labor law; recruitment of non-resident foreign workers in Angola; employing foreign workers in Israel and whistleblowing in the UK.

Read more

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Global Employment Lawyer – Issue 3

EB-5 China backlog

Now later

The United States State Department announced in the May 2015 Visa Bulletin that conditional resident status based on the EB-5 immigrant investor visa is currently available only to individuals born in China whose I-526 immigrant petitions were received on or before May 1, 2013.  EB-5 remains immediately available to immigrants born in all other countries.  Further, this backlog does not impact pending I-526 and I-829 petitions, regardless of country of birth.

The fiscal year begins on October 1.  According to the State Department’s Visa Control and Reporting Division Chief, 2,525 EB-5 visas remain available this fiscal year to people born in all countries other than China.  China has already used 6,819  or 88.56% of the EB-5 allotment for this fiscal year.  Vietnam is the second largest user this year, with a mere 244 EB-5 visas, followed by Taiwan, India and South Korea.  The State Department anticipates that the other countries will not use up all of the remaining EB-5 visas and estimates about 1,000 more EB-5 visas will be released to immigrants from China before the current fiscal year ends on September 30, 2015.

EB-5 immigrants from all countries can continue to file and obtain approval of I-526 immigrant petitions.  In fact, filing the I-526 as early as possible is more important than ever, since it is the I-526 receipt, also known as the priority date, that is ultimately used for quota purposes.  Approximately 10,000 new EB-5 visas will become available on October 1, 2015, when the new fiscal year begins.

For more information, check out the May 2015 Visa Bulletin.

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EB-5 China backlog

New year, new employment issues

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The mission of Dentons’ Global Employment Lawyer is to keep you informed of significant trends and developments in the area of global employment and labor law, wherever they take place, so that you are in a better position to make educated business decisions. Thank you for helping to make the first edition of the Global Employment Lawyer a huge success!

In this second edition of the Dentons’ Global Employment Lawyer, our lawyers examine:

  • Options for dealing with employee layoffs in China for foreign investors
  • Canada’s recent decision to require employee accommodation for childcare responsibilities
  • Restrictions under Polish law which can affect employment settlements
  • Romania’s recent decisions effecting union standing and disciplinary actions against employees
  • Specific ambiguities in Egyptian labor law on financial entitlements, employment terminations and collective dispute resolution mechanisms
  • UK’s recent employment decision potentially increasing the amount of holiday pay owed to certain overtime workers
  • Current and pending changes to US employment regulations for 2015, including laws affecting paid sick leave, anti discrimination and bullying, social media, severance and more
  • US IRS regulation Section 457A’s effect on deferred compensation for US taxpayers who work for non-US entities
  • Recap of Dentons’ client seminar on critical employment issues for multinationals

Read the complete issue

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New year, new employment issues

One week away: Critical employment issues facing multi-national employers

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With one week left, click here to register for our CLE program on Critical Employment Issues Facing Multi-National Employers.

December 10, 2014
04:00 PM – 07:00 PM EDT
1221 Avenue of the Americas
50th Floor
New York, NY
United States

Dentons Global Employment and Labor group is pleased to invite you to an interactive program bringing together Dentons lawyers from around the globe to present on several critical employment issues facing multi-national employers. The three-panel program will be followed by networking cocktails where you will have an opportunity to mingle and connect with professionals in the industry.

Panel topics and speakers:

Moderated by Brian Cousin

Privacy Panel (4:30 p.m.–5:30 p.m.):
Andy Roth (US), Barbara Johnston (Canada), Michael Bronstein (UK), Katell Deniel-Allioux (France),Todd Liao (China by video), Neil Capobianco (US)

Global Mobility Panel (5:30 p.m.–6:00 p.m.):
Matt Schulz (US), Michael Bronstein (UK), Todd Liao (China by video)

Restrictive Covenants Panel (6:00 p.m.–7:00 p.m.):
Richard Scharlat (US), Adrian Miedema (Canada), Michael Bronstein (UK), Katell Deniel-Allioux (France), Todd Liao (China by video)

Register Now

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One week away: Critical employment issues facing multi-national employers