|
April 8, 2008
Hello,
IMMIGRATION LAW UPDATE:
2009 H-1B CAP HAS BEEN REACHED
On
April 8, 2008 the US Citizenship and Immigration Services (USCIS) announced
that for the fiscal year 2009 the agency has received more than enough
applications for new H-1B visas. This includes the normal 65,000 quota
(also called a "cap") and the additional 20,000 quota for persons
who have an advanced degree (more than a bachelor degree) from a US
university. The H-1B is a temporary work status used by US employers for
hiring foreign nationals to perform jobs which require a bachelor degree or
higher (professionals), and the employer must prove it will pay the
employee the same or more than a similar worker for a comparable job in the
geographic location. The government's fiscal year runs from October 1st
until September 30th. H-1B applications can be filed up to 6 months before
October 1st, and accordingly USCIS started to receive thousands of
applications on April 1st. For more on H-1B visas see
the Clark Hill website.
Accordingly, all H-1B applications filed for the 2009 cap will be placed
into a random selection process to determine which cases will be accepted
for processing and which cases will be returned. This process is expected
to take several months to be completed (given the pattern we have seen for
the past several years). Premium processing of H-1B applications, which
ensures adjudication of an H-1B application in 15 days, is believed to
have been suspended until this selection process is complete.
Persons who have been issued an H-1B under a previous cap, for work with a
private employer, and have not used all of their time on an H-1B (generally
limited to 6 years), and persons who work for or in furtherance of a US
university or research organization, are exempt from the H-1B cap.
USCIS Announced a New H-1B
Regulation - No Multiple Filings and a Five (5) Day Filing Window
The US Citizenship and Immigration Services (USCIS) issued
a new regulation on March 19th which made several changes to the H-1B
application process. The stated purpose of the new rule is to promote equal
opportunity among all petitioners for H-1B status. Specifically, the USCIS
will now either deny or revoke any H-1B where the same employer filed
multiple petitions for the same foreign national (approximately 500
duplicate filings were received for the 2008 cap). However, related
employers (e.g. a parent company and subsidiary with different tax numbers)
may file petitions for the same foreign national for different positions,
so long as the petition is based on a legitimate business need for both
entities, and the petition is not in essence a duplicate filing. Also under
the new rule, the USCIS will no longer refund filing fees for duplicate or
multiple H-1B petitions for the same employer.
Under this rule, USCIS will now accept new H-1B petitions that are filed
during the first five business days available for the new fiscal year.
Accordingly, the window to have an H-1B application submitted and received
by USCIS for the 2009 fiscal year was available from April 1st until April
7th (5 business days).
Finally, if a petition incorrectly states that the foreign national is
exempt from any H-1B cap, the petition will be denied if no H-1B visa
numbers are available, and filing fees will not be refunded.
CHANGES MADE TO F-1 STUDENTS AND
OPT WORK AUTHORIZATION
As
described on the Clark Hill website, foreign nationals who attend a US
university, and have temporary F-1 status, may secure temporary work
status, called optional practical training (OPT), for up to 12 months at
the end of a course of study. Under
a new regulation issued by the US Customs Enforcement (ICE), several
changes are made to this program, which are summarized below. USCIS
has issued a brief summary of the new provision. These provisions have
been implemented as an H-1B "cap-gap" protection for these
students.
All F-1 students with OPT work status are allowed to continue working until
October 1, 2008, even if the OPT will expire, as long as the student is the
beneficiary of a pending or approved H-1B application. If the H-1B
application is rejected (due to the cap) or denied, this provision ends for
that foreign national.
In addition, certain students can extend their OPT work authorization for
an additional 17 months, bringing the total to 29 months of OPT work
authorization, if the conditions detailed below are met. The student must:
·
Have completed a degree in
science, technology, engineering, or mathematics (STEM)
·
Be working for an employer
who is registered under E-Verify
·
Be currently participating
in an OPT program
·
Be maintaining F-1 status
·
Apply within 90 days before
the current OPT expires for this special extension
·
Have an employer who will
report to the foreign national's designated school official within 48 hours
if the student stops working
·
Apply for the additional 17
months of OPT work authorization no less than 90 days before the current
OPT expires, and may continue working for 180 days while the application is
pending
· Not
be unemployed for more than 120 days (currently limited to 90 days)
MICHIGAN ATTORNEY GENERAL RULES
ON MARRIAGE LICENSES
Michigan
Attorney General Mike Cox recently issued an opinion that, under Michigan
law, marriage license applicants need not provide a social security number
on the application if he/she agrees to swear to having never been issued a
social security number. The Attorney General's Opinion further states that
while county clerks "are not authorized" to investigate the
reasons why the applicant has failed to offer a social security number,
they may forward "significant information to the appropriate
authorities" if circumstances so warrant. A few Michigan counties were
not issuing marriage licenses if one of the applicants did not have a
social security number. This may have been occurring if an applicant was
not in a lawful US immigration status. Marriage to a US citizen does not
ensure that the foreign national will be issued a US green card, or be
allowed to remain in the US. For more on family based green cards see
the Clark Hill website.
LEGISLATION INTRODUCED
ADDRESSING HIGH-SKILLED EMPLOYMENT VISAS
Several new bills have been introduced to increase the
number of H-1B visas available per year. Clark Hill attorneys were recently
in Washington DC, and while we support an increase in the H-1B quota, these
bills are not expected to be passed. Brief summaries are below.
·
Arizona Democratic House
Representative Gabrielle Giffords introduced the "Innovation
Employment Act (H.R. 5630) which would double the H-1B visa limit for
fiscal year 2008 and each subsequent year thereafter. The bill also
provides for an automatic increase through fiscal year 2015 if the 130,000
cap is reached in 2009.
·
A comparable bill entitled,
the "SUSTAIN" Act, (Strengthening United States Technology And
Innovation Now) was introduced by Texas Republican House Representative
Lamar Smith, and would raise the annual H-1B cap to 195,000 for 2008 and
2009. Smith sees the SUSTAIN Act as an "emergency fix" which will
allow American companies to recruit the best graduates regardless of their
nationality.
· Democratic
Representative Patrick Kennedy and Republic Representative Michael McCaul
introduced the New American Innovators Act (H.R. 5634) which would allow
foreign-born, Ph.D. graduates from US colleges and universities a smoother
path toward obtaining a green card.
U.S. IMMIGRATION AND CUSTOMS
ENFORCEMENT ("ICE") UPDATE
On March 25, 2008, thirty-four foreign nationals accused
of working without authorization were recently arrested in an Immigration and Customs Enforcement (ICE)
raid at the Memphis International Airport as part of an ongoing
criminal worksite investigation. The workers were employed by various
contractors and subcontractors to build the new National Guard Air Base in
Memphis, Tennessee.
MISSISSIPPI GOVERNOR SIGNS BILL
MANDATING USE OF E-VERIFY
Republican Governor Haley Barbour cautiously signed into
law the Mississippi
Employment Protection Act (S.B. 2988) which requires employers to
participate in the US government's employment verification program,
E-Verify, for I-9 and employment verification. See the Department
of Homeland Security website for more on E-Verify.
RICO CLAIM ALLOWED TO PROCEED
A federal judge in Ohio refused to dismiss racketeering
allegations against three freight airline officials of ABX Air, Inc. and
DHL Express. The judge agreed that company officials "approved and
implemented a policy within ABX and DHL to operate an illegal immigrant
hiring scheme," placing thousands of possibly undocumented temporary
workers at ABS and DHL over a six-year period (Hager v ABX Air Inc., S.D.
Ohio, No. 07-00317). A recent case in the Sixth Circuit Court of Appeals
was allowed to proceed to trial under a similar claim, but was later
dismissed for failing to prove that the hiring of illegal workers was the
cause of the plaintiff's alleged harm of lower wages.
CARPENTER'S UNION SUES DEVELOPER
FOR WORKER MISCLASSIFICATION
The
New Jersey Regional Council of Carpenters and Brookside Construction
Corporation have filed a class action against the nation's largest home
builder, D. R. Horton, Inc. and TOSA Construction, Inc. for knowingly
employing "undocumented workers" and intentionally misclassifying
them as independent contractors to cut labor costs. Plaintiffs allege that
the misclassified workers are less likely to apply for workers'
compensation for workplace injuries and engage in organizing activities.
UTAH GOVERNOR SIGN NEW
IMMIGRATION BILL
Governor Jon
Huntsman signed a comprehensive immigration
bill (S.B.81) designed to punish foreign nationals not authorized to
remain in the US and allow local law enforcement agencies to enforce
immigration laws in routine traffic stops. The bill also forces employers
who have contracts with the state to verify the US documentation status of
their workers through E-Verify. The new law goes into effect in early 2009.
See the Department
of Homeland Security website for more on E-Verify.
Clark Hill's 24th Annual Employment Law
Conference
Clark Hill's
Employment Law Group will present its 24th
Annual Employment Law Conference on May 8th in Dearborn, Michigan.
Clark Hill offers this learning opportunity to CEOs, in-house corporate
counsel, human resources professionals and others involved in the
increasingly complex field of employment, labor and immigration law.
|
