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‘Hire American’ executive order

End of days—or much ado about nothing?

The visa rules that allow US employers to temporarily hire certain foreign professionals is either going to change dramatically…or not, and there will have been much ado about nothing.

President Trump signed the “Buy American and Hire American” Executive Order (EO) on April 18, 2017. This EO does not change any existing law or regulation. It merely calls on the relevant federal agencies to make changes. This means employers can anticipate more, not less, government regulation and new agency policies, limited by US immigration law made by Congress.

Here is the text of the immigration-related components of the EO:

Sec. 5. Ensuring the Integrity of the Immigration System in Order to “Hire American.” (a) In order to advance the policy outlined in section 2(b) of this order, the Secretary of State, the Attorney General, the Secretary of Labor, and the Secretary of Homeland Security shall, as soon as practicable, and consistent with applicable law, propose new rules and issue new guidance, to supersede or revise previous rules and guidance if appropriate, to protect the interests of United States workers in the administration of our immigration system, including through the prevention of fraud or abuse.

(b) In order to promote the proper functioning of the H-1B visa program, the Secretary of State, the Attorney General, the Secretary of Labor, and the Secretary of Homeland Security shall, as soon as practicable, suggest reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.

It is clear that the EO makes no new rule or change in law, unlike previous EOs like the travel bans. This EO merely instructs the relevant agencies to propose new rules and issue guidance, if appropriate, with the stated goal of protecting US workers and preventing fraud/abuse and suggesting H-1B reforms.

With so little information in the EO, what can employers expect. Limited insights can be gleamed from the backgrounder issued the night before this EO was issued, when the White House held a press briefing.

Enforcement

The EO merely instructs the agencies to issue proposals and guidance to prevent fraud or abuse. The backgrounder does not do much more than explain that the Administration seeks the strict enforcement of all laws governing entry into the US of foreign workers. The EO calls on the Departments of Labor, Justice, Homeland Security and State to take prompt action to crack down on fraud and abuse. The backgrounder states:

And then again, you add that on top of the across-the-board reform process for guest worker and visa programs in general to make sure that they’re strictly complying with all the rules, laws, and protections for American workers, again, which there are many, but there hasn’t been this kind of systematic review. And this is something that the President, if you look, actually promised that he would have the Department of Labor go and do this kind of systematic review and take these kinds of actions.

We will monitor agency actions carefully to see how this develops, but employers are well advised to review the immigration-related records keeping and compliance systems. Annual affirmative audits and trainings are best practices that the Immigration and Customs Enforcement agency looks to when considering whether to reduce fines and penalties for violators. Employers are well-advised to consult with counsel on what steps can be taken now, as well as expected changes that can be planned for.

H-1B visa random selection and wages

The EO instructs these agencies to suggest reforms to ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries. The backgrounder says that these agencies are expected to report back on proposed ways to change how new H-1B visa petitions are allocated.

Existing rules allocate the limited annual supply of new H-1B visa petitions for most US employers on a random-selection basis. The EO suggests that the foreign worker’s skills and compensation be taken into consideration. Ironically, this would give preference to requests from employers who pay foreign workers more than the average paid to Americans.

The backgrounder acknowledges that some immigration changes can only be made by Congress. Just like the Obama Administration, however, the Trump Administration seems willing to bypass Congress and act unilaterally and not wait for Congress to act.

From the backgrounder:

But you could be looking at things on the administrative side, like increasing fees for H1B visas.  You could be looking at things like if we could adjust the wage scale—a more honest reflection of what the prevailing wages actually are in these fields. Obviously, taking a more vigorous stance, which various—in the Department of Justice do with respect to enforcing gross and egregious violations of the H1B program. You could see potential—and again, we’ll have to get a full legal analysis and review from all the departments, but right now the lottery system disadvantages master’s degree holders. There’s ways that you could adjust the lottery system to give master’s degree holders a better chance of getting H1Bs relative to bachelor’s degree holders. There’s a lot of possible reforms that you could do administratively in addition to a suite of legislative actions.  

There is no change in the H-1B random selection process, which is already concluded for fiscal year 2018. Changes can reasonably be anticipated for fiscal year 2019 filings in April 2018. What skills, wage offers, or other factors will impact the likelihood of selection remains to be determinedassuming that the status quo changes at all.

We will continue to share more information and analysis as the law evolves.

The full text of the EO is published on the White House web site; click here to read the backgrounder press release. To read the President’s remarks on signing the EO click here.

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‘Hire American’ executive order

New H-1Bs for 2018 are gone

 

US employer demand once again greater than limited supply

United States Citizenship and Immigration Services (USCIS) once again received more H-1B visa petitions (for professional workers) from US employers than the limited supply allocated by Congress for fiscal year 2018.

The agency reported receiving 199,000 petitions during the first five business days of April—37,000 fewer than last year—the first time in years that the number of petitions has fallen.

The selection process was completed on April 11, but the agency did not announce by what date all accepted petition fee receipts would be issued, unselected cap-subject petitions returned with the uncashed filing fee checks, and approval notices for granted petitions sent.

As in years past, USCIS will reject and return filing fees for all unselected petitions that are not duplicate filings. Last year, most returns were received by June.

Congress authorizes USCIS to granted 65,000 H-1B visa petitions per fiscal year, plus an additional 20,000 petitions earmarked only for foreign nationals who earned a graduate degree from an American university. FY2018 starts October 1, 2017. For both of these quotas, the demand was greater than the supply, but USCIS has not provided a breakdown for each.

Certain H-1B visas remain available and USCIS will continue to accept and process petitions to:

  • Approve H-1B status to an individual coming to work for an employer that is exempt from quota limitations—generally the US government, American universities and certain related or nonprofit organization
  • Approve H-1B status to an individual counted previously against the cap and who is not subject to the FY2018 cap
  • Extend the amount of time a current H-1B worker may remain in the United States
  • Change the terms of employment for current H-1B workers
  • Allow current H-1B workers to change employers
  • Allow current H-1B workers to work concurrently in a second H-1B position

The full text of the agency’s press release can be found at the USCIS website.

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New H-1Bs for 2018 are gone

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

UK Employment Law Round Up, Volume 1, Issue 10 – 2016


UK Employment Law Round-up

In this issue we look at recent case law decisions which have provided a useful reminder of the position when dealing with contracts tainted by illegality and taking prior disciplinary warnings into account. We also bring you up to date with the latest thoughts on calculating holiday pay, and the scope of ACAS Early Conciliation certificates. We review the new judicial assessment procedure in the employment tribunal, along with proposals to inspect corporate governance and to ask employers to disclose employed foreign nationals.

Read the full newsletter here.

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UK Employment Law Round Up, Volume 1, Issue 10 – 2016

USCIS fee changes, effective December 23, 2016

Shocked

The Department of Homeland Security (DHS) has published a final rule adjusting the fee schedule for many immigration applications and petitions processed by US Citizenship and Immigration Services (USCIS). The new fee schedule will become effective on December 23, 2016. Applications and petitions postmarked or filed on or after that date must include the new fees.

As determined by DHS, adjusting the fee schedule is necessary to fully recover costs and maintain adequate service. This is the first adjustment in the last six years.

Under this final rule, DHS will increase fees by a weighted average of 21 percent; establish a new fee of $3,035, covering USCIS costs related to processing the employment-based immigrant visa, fifth preference (EB-5) Annual Certification of Regional Center, Form I-924A; establish a three-level fee for the Application for Naturalization, Form N-400; and remove regulatory provisions that prevent USCIS from rejecting an immigration or naturalization benefit request paid with a dishonored check or lacking the required biometric services fee until the remitter has been provided an opportunity to correct the deficient payment.

While the fees for some petitions will remain the same, others will see significant increases. The highest increases are for the visas used by American businesses to bring skilled workers to the United States, immigrant investors creating jobs for Americans and immigrants acknowledged to have extraordinary ability.

The new fee schedule includes increased fee for the Form I-129 to $460 from $325. Form I-129 used for the most common work visas, including H-1B professional, O-1 extraordinary ability, and L-1 intracompany transfer visas, as well as E-1 treaty trader, E-2 treaty investor and E-3/FTA H-1B1/TN treaty professional visas processed in the United States rather than at an American consular post or preflight inspection unit abroad.

Fees for the Form I-140 used for EB-1, EB-2 and EB-3 employment-based immigrant visas were increased to $700 from $580.

One of the highest increases is for the Form I-526 required for an EB-5 immigrant investor creating at least ten jobs for American workers. Form I-526 fee was increased to an outrageous $3,675 from $1,500.

Family-based immigration fees are better, with only a 27 percent increase, to $535 from $420, for the Form I-130 used by US citizens and lawful permanent residents to sponsor certain close relatives to immigrate. The Form I-485 required for immigrants who process through the USCIS instead of an American consular post abroad was increased only slightly, to $1,140 from $985.

For a full list of the new fees please visit the USCIS website.

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USCIS fee changes, effective December 23, 2016

US green card availability to increase beginning October 1

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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

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

US government immigration fee increase proposed

Rising Prices ahead

On May 4, 2016, the US Citizenship and Immigration Service (USCIS) published notice of a proposal to increase certain government filing fees and create a new fee. The average increase is 21 percent, but the highest increases are for the visas used by American businesses to bring skilled workers to the United States, immigrant investors creating jobs for Americans and immigrants acknowledged to have extraordinary ability.

A 42 percent increase is proposed for the Form I-129 used for the most common work visas, including H-1B professional, O-1 extraordinary ability, and L-1 intracompany transfer visas, as well as E-1 treaty trader, E-2 treaty investor and E-3/FTA H-1B1/TN treaty professional visas processed in the United States rather than at an American consular post or Preflight Inspection Unit abroad. A 42 percent increase is also proposed for the Form I-140 used for EB1, EB2 and EB3 employment-based immigrant visas.

If 42 percent seems outrageous, the increase proposed for the Form I-526 required for an EB5 immigrant investor creating at least 10 jobs for American workers is 145 percent.

Family-based immigration fares better, with only a 27 percent increase proposed for the Form I-130 used by United States citizens and lawful permanent residents to sponsor certain close relatives to immigrate. The Form I-485 required for immigrants who process through the USCIS instead of an American consular post abroad is proposed to increase only 16 percent.

The USCIS explains that the fee increases are required to recover costs for their services and to maintain adequate service. Current service is far from adequate. Although Congress mandated USCIS processing timelines in the American Competitiveness of the 21st Century Act of 2000 (AC21), almost 16 years later the agency continues to consistently fail to meet the standards set by law.

AC21 set 30-day processing times for most employer-sponsored nonimmigrant visas and 180-day processing times for most employer-sponsored immigration. Processing times tend to be at least twice as long or worse. Instead of 30 days, five months is the processing time currently reported for Form I-129 H-1B visa extensions, for example, and the USCIS California Service Center reported that as of February 29, 2016, the agency was currently processing Form I-485 immigrant applications received before May 17, 2014!

The agency has not increased fees in many years. Proposed fee increases usually become final fee increases without significant, if any, change—most likely later this summer.

There is a 60-day comment period. Guidance on how to submit comments is in the notice. The full text of the USCIS notice can be found online at the Federal Register.

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US government immigration fee increase proposed

USCIS received 233,000 FY 2016 H-1Bs: 148,000 more than the maximum quota

visa image

The US Citizenship and Immigration Services agency (USCIS) announced that the agency received nearly 233,000 new H-1Bs subject to the 85,000 quota limit for fiscal year 2016. The agency also announced that no later than May 11, 2015, the agency will resume the optional 15-day, $1,225 premium processing of quota-subject H-1Bs.

US law allows for the approval of up to 65,000 new H-1Bs subject to quota limits for each fiscal year, plus an additional 20,000 new H-1Bs that are only for individuals who earned an advanced degree from an American university. When more than the authorized number are received during the first five business days of April, the agency then randomly selects the lucky winners, choosing first 20,000 from those with advanced degrees. All unselected advanced degree petitions are then part of the selection process for the 65,000 quota. The USCIS has not yet announced how many of the petitions received were for individuals with advanced degrees.

The agency did not announce when fee receipts would be issued for the H-1Bs selected or when the non-selected petitions would be returned. Based on prior years, this seems likely to happen during the  last week of April and through May.

The full text of the USCIS announcement can be found at the USCIS web site.

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USCIS received 233,000 FY 2016 H-1Bs: 148,000 more than the maximum quota

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

Labour-2-(ThinkStock)

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