Increased Demand Should Spur Plans for H-1B Filings and Contingencies

As the economy improves, the demand for H-1B Specialty Occupation visas will continue to increase. The Fiscal Year 2015 (FY15) H-1B filing season begins on April 1, 2014, and employers should plan for it now. In particular, they should expect that the available H-1B visas will run out due to high demand and have contingency plans in place.

The H-1B visa category is essential to many businesses that wish to employ foreign nationals in professional positions. Each year, the government makes available 65,000 new H-1B visas (commonly referred to as the “H-1B cap”) for individuals who do not hold H-1B status. (Current H-1B holders have been counted against prior caps, so status extensions are not subject to the limit.) Under the advanced degree exemption, an additional 20,000 H-1B petitions are available for individuals who have earned a U.S. Master’s Degree or higher. Cases approved under the H-1B cap will have a start date of October 1, 2014, the first day of the U.S. government’s fiscal calendar.

Last year, both the general and the Master’s Degree H-1B numbers ran out within the first week applications were accepted. Of the applications filed in the first week of April 2013, approximately 33 percent were rejected based purely on over-demand following a lottery system administered by U.S. Citizenship and Immigration Services (USCIS). Thus, employers should consider filing H-1B applications on or about April 1, 2014, to maximize the chances of approval. While USCIS has not confirmed if all petitions received during the first week of April will be held (as they did last time), failure to file on or about April 1st could mean employers will have to wait until October 2015 to obtain H-1B status for affected employees or prospective hires.

The H-1B cap applies to individuals who do not hold current H-1B status, such as students in F-1 status completing Optional Practical Training (OPT), TN status holders, L status holders, or job candidates currently residing abroad. It is particularly important for employers of students in F-1 status to seek a switch to H-1B status in a timely fashion.

Options are available to alleviate problems caused by the H-1B limit. For example, by enrolling in the federal E-Verify system, employers gain access to a special 17-month extension of work authorization for foreign students in STEM (Science, Technology, Engineering and Mathematics) fields. In addition, job candidates from Australia, Canada, Mexico, Chile and Singapore have treaty-based nonimmigrant visa options for the same types of positions typically filled by H-1B visa holders. In special circumstances, our attorneys also have filed O-1 petitions for individuals who have demonstrated extraordinary achievement in their fields.

If you have a current or prospective employee who will be subject to the H-1B limit, please contact a trusted immigration advisor for guidance on enrolling in E-Verify or exploring options.

Auditing Form I-9 Verification Compliance: as easy as the government sending your employee an e-mail

The federal government’s updated employment verification Form I-9, which went into use on May 7, 2013, includes two new optional fields in Section 1 calling for the new hire’s personal e-mail address and telephone number. The fields are at the beginning of the new Form (see form on next page). 

New employees routinely complete these additional fields. And why not? After all, this is a government form and there are spaces calling for the information! However, the instructions on the Form for completing these fields make clear the information is not required. They state:

Click here to view the form.

E-mail Address and Telephone Number (Optional): You may provide your e-mail address and telephone number. Department of Homeland Security (DHS) may contact you if DHS learns of a potential mismatch between the information provided and the information in DHS or Social Security Administration (SSA) records. You may write “N/A” if you choose not to provide this information.

The question employers should ask is why would the government want that information?

The answer is plain ... and concerning for employers. This information can facilitate the government’s contacting employees, without the employer’s knowledge, during audits or investigations to inquire about the company’s verification compliance practices. Questions asked by recruiters and managers in hiring, employer requests for forms of identification and work authorization in connection with completion of the Form I-9, and the method (electronic or manual) of completing the Form may be the subject of government inquiries to employees.

The situation can get even more complex for employers that participate in E-Verify, the Internet-based system for verifying the eligibility of new employees to work in the United States. U.S. Citizenship and Immigration Services (USCIS) has stated that it may contact directly employees who provide their e-mail addresses on the Form if the employees’ E-Verify case results in a Tentative NonConfirmation (TNC). It does not plan to copy the employer on such e-mail notifications, USCIS said. Further, the employee may be asked how the employer responded to receipt of the TNC, whether the proper advice was provided to the affected employee, and whether the information resulted in leave, suspension or separation from employment. The answers may set the stage for further investigation.

Additionally, U.S. Immigration and Customs Enforcement (ICE) may find use for employees’ personal contact information. ICE audits no longer involve just a review of an employer’s historical compliance with authorization verification. They look into regulatory compliance in hiring, work authorization verification, payroll and tax reporting. In today’s typical audit, quarterly tax filings, active payroll rosters, lists of subcontracted “workers” and service providers, Social Security “no match” notifications and E-Verify receipts may come under government scrutiny in addition to I-9 forms and supporting documentation. This may be done with a prosecutor’s eye. As is the case of many regulatory reviews, government agents can be far more interested in identifying deficiencies with a view towards a criminal case than they are in educating employers and reviewing on-boarding procedures to assure employer adherence to lawful practices.

If employees elect to include their e-mail address and telephone number, as is their right, the government may contact them about the employer’s verification practices – that much is generally understood. Obviously, as an employer, you cannot instruct an employee to omit data from the optional fields. That could lead to charges of document tampering. A company could find itself in an ugly fight over alleged criminal intent – with bad publicity to match – if it attempted to do so.

An employer’s verification standard operating procedure that outlines and explains the process to new hires can include an explanatory statement regarding the optional fields on the Form I-9. It could be as simple as advising new hires during on-boarding that the information in those two fields is optional and that if they choose to provide the information, under some circumstances, they may be contacted by the government. Make sure your hiring and I-9 verification procedures are lawful and above reproach. Immigration counsel should be consulted if an employer is in doubt about its procedures.

The ABC’s of OCAHO

The U.S. Department of Justice’s Executive Office for Immigration Review (EOIR) administers the nation’s immigration court system. Within the EOIR, the Office of the Chief Administrative Hearing Officer (OCAHO), established by the Immigration Reform and Control Act of 1986, has jurisdiction over three types of cases arising under the Immigration and Nationality Act (INA) that relate to employers: employer sanctions, document fraud, and unfair immigration-related employment practices.

OCAHO’s administrative law judges review Department of Homeland Security (DHS) cases for employer sanctions (8 U.S.C. § 1324a), evaluating: (1) civil penalties against employers who fail to prepare and maintain the required verification paperwork documenting newly hired employees’ identities and legal authorization to work in the United States; (2) civil and criminal penalties against employers who knowingly hire, recruit, refer for a fee, or knowingly continue to employ aliens who do not have legal authorization to work in the United States; and (3) civil penalties against employers who demand money or indemnity bonds from their employees (as a condition for employment) in order to pay for potential employer sanctions fines.

In DHS cases for document fraud (8 U.S.C. § 1324c), ALJs review civil penalties relating to satisfying an immigration law requirement or obtaining an immigration-related benefit.

Regarding employer sanctions and document fraud cases, the ALJs may impose sanctions and penalties, issue cease and desist orders, and award attorney’s fees. Either the Chief Administrative Hearing Officer (CAHO) or the Attorney General may review the ALJ’s decision and:

  • modify the ALJ’s decision and issue a revised decision;
  • set aside the ALJ’s decision and issue a new decision; or
  • send back the case to the ALJ for further proceedings

Individuals who believe they have suffered discrimination in violation of the INA’s unfair immigration-related employment practices provisions initially may file a charge with the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) in the Department of Justice’s Civil Rights Division. If the OSC chooses not to file a complaint with OCAHO, the individual who filed the charge then may file a complaint with OCAHO. In these cases, the ALJs may impose sanctions and penalties, issue cease and desist orders, award attorney’s fees and award back pay.

Once a final agency order has been issued, either by the ALJ or the CAHO, the employer may file an appeal with the appropriate federal circuit court of appeals.