• 20Apr
    H-1B Visa News Comments Off on President Trump’s “Buy American, Hire American” Executive Order – Its Impact on the H-1B Program

    On April 18, 2017, President Trump signed a new Executive Order, “Buy American and Hire American.”  In the “Hire American” portion of the order, Trump announced he was directing DOL, DOJ, DHS, and DOS to review the current laws governing the H-1B program and suggest changes to prioritize the most skilled and highest paid positions. The issuance of such Executive Order is on the heels of the government’s announcement that it had received 199,000 H-1B petitions during the April 2017 filing period (compared with 236,000 petitions filed last year).

    The President also indicated he was directing federal agencies to review all visa programs and take prompt action to crack down on fraud and abuse in order to protect U.S. workers.

    Although it was signed with ceremonial flair, the Executive Order will have no immediate impact on H-1Bs. Many of the changes to the H-1B program contemplated by the Administration would require legislative action or rulemaking and would take time to go through the necessary processes.

    As a prelude to the Executive Order, the U.S. Department of Labor recently announced plans to protect U.S. workers from H-1B program discrimination by providing greater transparency and oversight.  As to such point, it is important to keep in mind that so long as an employer does not discriminate against U.S. workers (e.g., having a policy to only hire H-1B workers to fill certain positions), an employer may choose to hire foreign workers despite U.S. workers being qualified and available for work – so long as the appropriate wage is paid to the foreign nationals and the employment of H-1B foreign nationals will not adversely affect the working conditions of U.S. workers similarly employed in the area of intended employment.

    The DOL, however, is now cautioning employers who petition for H-1B visas not to discriminate against U.S. workers, and is supporting the U.S. Department of Homeland Security’s measures to further deter and detect H-1B visa fraud and abuse.

    DOL advises that it will protect American workers against discrimination through the following actions:

    • Rigorously use all of its existing authority to initiate investigations of H-1B program violators. This effort to protect U.S. workers will also involve greater coordination with other federal agencies, including the departments of Homeland Security and Justice for additional investigation and, if necessary, prosecution.
    • Consider changes to the Labor Condition Application for future H-1B application cycles. The Labor Condition Application, which is a required part of the H-1B visa application process, may be updated to provide greater transparency for agency personnel, U.S. workers and the general public.
    • Continue to engage stakeholders on how the program might be improved to provide greater protections for U.S. workers, under existing authorities or through legislative changes.

    To further deter and detect abuse, U.S. Citizenship and Immigration Services (USCIS) has established an email address which will allow individuals (including both American workers and H-1B workers who suspect they or others may be the victim of H-1B fraud or abuse) to submit tips, alleged violations and other relevant information about potential H-1B fraud or abuse. Individuals also can report allegations of H-1B violations by submitting Form WH-4 to the department’s Wage and Hour Division.

    WHAT DOES THIS MEAN FOR U.S. EMPLOYERS WHO RELY ON THE H-1B PROGRAM?

    Employer compliance with the rules governing the H-1B program is now paramount.  In this regard, employers should adopt the following best practices:

    • Anticipate (and, thus, be prepared for) an increase in unannounced H-1B site visits by DOL and USCIS, especially if the employer is an H-1B dependent employer or places H-1B workers off-site at client locations, or if the government is unable to verify the employer’s business information using commercial sources such as the Validation Instrument for Business Enterprises (VIBE) Program.  Such site visits will most likely involve questioning of the H-1B worker to confirm employment in the position offered and salary paid as set forth in the H-1B petition.
    • Conduct a self-audit of your H-1B Public Access Files in anticipation of increased audits by DOL and/or USCIS.
    • Expect some changes to the Labor Condition Application (LCA) process.  The LCA is the form submitted to DOL which, among other things, contains the rate of pay, applicable prevailing wage, period of employment and work location.  It also contains attestations by the employer regarding working conditions of the H-1B worker.
  • 20Apr
    H-1B Visa News Comments Off on USCIS advises on number of H-1B cap petitions filed and Completes Lottery Process

    USCIS announced on April 7, 2017, that it has received enough H-1B petitions to reach the statutory cap of 65,000 visas for fiscal year (FY) 2018. USCIS has also received a sufficient number of H-1B petitions to meet the U.S. advanced degree exemption, also known as the master’s cap.

    USCIS received 199,000 H-1B petitions during the filing period, which began April 3, including petitions filed for the advanced degree exemption. On April 11, USCIS used a computer-generated random selection process, or lottery, to select enough petitions to meet the 65,000 general-category cap and the 20,000 cap under the advanced degree exemption. USCIS will reject and return all unselected petitions with their filing fees, unless the petition is found to be a duplicate filing.

    The agency conducted the selection process for the advanced degree exemption first. All unselected advanced degree petitions then became part of the random selection process for the 65,000 cap.

    As announced on March 3, USCIS has temporarily suspended premium processing for all H-1B petitions, including cap-exempt petitions, for up to six months. USCIS will continue to accept and process petitions that are otherwise exempt from the cap. Petitions filed on behalf of current H-1B workers who have been counted previously against the cap will also not be counted towards the congressionally mandated FY 2018 H-1B cap. USCIS will continue to accept and process petitions filed to:

    * 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; and

    * Allow current H-1B workers to work concurrently in a second H-1B position.

  • 09Apr
    Firm News Comments Off on SHRM Morris County April Dinner Meeting: Corporate Immigration Issues

    shrm-affiliate-logoTony Siliato and Scott Malyk look forward to meeting with the H.R. professionals at Morris County SHRM on Wednesday, April 12 from 6:00pm to 8:00pm in Morristown, New Jersey. We are adding updates and putting the finishing touches on our corporate immigration presentation: “Tips to Effectively Recruit, Retain and Terminate Foreign Workers.”  This presentation is designed to provide up-to-date information, answer questions, and receive feedback from SHRM members as they navigate the changing landscape of immigration issues in the workplace. For registration information and additional details click here. Please register early, space is limited.

  • 07Apr
    H-1B Visa News Comments Off on USCIS Reaches FY 2018 H-1B Cap

    USCIS LogoUSCIS announced today that it has reached the congressionally mandated 65,000 visa H-1B cap for FY2018. USCIS has also received a sufficient number of H-1B petitions to meet the 20,000 visa U.S. advanced degree exemption (master’s cap). USCIS will reject and return filing fees for all unselected petitions.

    USCIS will continue to accept and process petitions that are otherwise exempt from the cap. However, please keep in mind USCIS suspended premium processing April 3 for up to six months for all H-1B petitions, including cap-exempt petitions. Petitions filed on behalf of current H-1B workers who have been counted previously against the cap, and who still retain their cap number, will also not be counted toward the congressionally mandated FY 2018 H-1B cap. USCIS will continue to accept and process petitions filed to:

    • 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; and
    • Allow current H-1B workers to work concurrently in a second H-1B position.

    If you have any questions in connection with any of the foregoing, please contact our firm’s Immigration Law Group at (973) 602-3455.

  • 08Mar
    USCIS Policy Updates Comments Off on USCIS Temporarily Suspends Premium Processing for All H-1B Petitions

    To the surprise (and chagrin) of many, United States Citizenship and Immigration Service (“USCIS” or the “Service”) recently announced that it will temporarily suspend premium (expedited) processing for all H-1B non-immigrant visa petitions for a period of six months, effective April 3, 2017.   The premium processing service allows a petitioning employer to receive an adjudication of an H-1B petition (either a request for additional evidence or an approval) within 15 calendar days of filing of the Form I-907 and payment of an additional filing fee to USCIS of $1,225.

    Since Fiscal Year 2018 (FY 2018) cap-subject H-1B petitions cannot be filed before Monday, April 3, 2017, the Service’s suspension of premium processing will apply to all cap-subject petitions filed for the FY 2018 H-1B cap — this includes cases filed under the standard H-1B cap and the advanced degree cap exemption, more commonly known as the U.S. Master’s Cap.

    In addition to cap-subject petitions, the suspension of the premium processing service will also apply to H-1B petitions that are exempt from the annual quota, such as extensions of stay, requests to amend existing H-1B status and requests for changes of employer.

    USCIS has cited the reason for the suspension as an opportunity for the Service to catch up on the backlog of pending H-1B petitions that are nearing 240 days past expiration of the current period of authorized stay at which point continued employment authorization can be impacted.

    How does this impact H-1B Foreign National Employees?

    The premium processing suspension will have a significant adverse effect on H-1B workers wishing to engage in international travel. Since a foreign national needs a valid visa to return to the U.S. from a trip abroad, and such visa may not be obtained without an H-1B approval notice, the foreign national, in many cases, will either have to delay trips abroad – or remain abroad if a trip is necessary – until the H-1B petition is approved and a visa application may be made at a U.S. Consulate. Under current “normal” processing of H-1B petitions, such approval may take up to 11 months!

    If you have any questions in connection with any of the foregoing, please contact our firm’s Immigration Law Group at (973) 602-3455.

  • 07Mar
    Global Immigration Comments Off on President Trump’s New Executive Order On Immigration

    On March 6, 2017, President Trump signed a new Executive Order (EO) — replacing the previous Executive Order of January 27, 2017 which had imposed a travel ban on seven (7) designated countries. The new EO imposes a 90-day suspension of entry to the United States of nationals of Sudan, Syria, Iran, Libya, Somalia, and Yemen who (i) are outside the United States on the effective date of the EO; (ii) did not have a valid visa as of 5:00 EST on January 27th, 2017; and (iii) do not currently have a valid visa on the effective date of the EO. Thus, any individual who had a valid visa on January 27, 2017 (prior to 5:00 PM) or holds a valid visa on the effective date of the EO (March 16, 2017) is not barred from seeking entry.

    The EO does not apply to (i) lawful permanent residents of the United States; (ii) foreign nationals admitted or paroled into the United States after the effective date of the EO; (iii) foreign nationals with a document that is valid on the effective date of the EO or any date thereafter which permits travel to the United States, such as an Advance Parole document; (iv) dual nationals when travelling on a passport issued by a non-designated country; (v) foreign nationals traveling on diplomatic, NATO, C-2 for travel to the United Nations, or G-1, G-2, G-3, or G-4 visas; or (vi) foreign nationals already granted asylum or refugee status in the United States before the effective date of the EO.

    In addition, the EO suspends refugee resettlement to the U.S. for 120 days and suspends the Visa Interview Waiver Program indefinitely.

    The Department of Homeland Security has posted a Q&A: Protecting the Nation From Foreign Terrorist Entry To the United States with respect to the Executive Order.

    If you have any questions in connection with any of the foregoing, please contact our firm’s Immigration Law Group at (973) 602-3455.

  • 07Mar
    Firm News, Uncategorized Comments Off on Bridge the Divide between Global Business and Geographic Boundaries

    shrm-affiliate-logoCorporate immigration law will be the topic when the Gateway SHRM Chapter in Jersey City meets on the evening of March 22nd. Partners from Meyner and Landis LLP, Scott R. Malyk and Anthony F. Siliato, will present “Tips to Effectively Recruit, Retain and Terminate Foreign Workers”. This program will provide timely and practical information for human resource professionals. For location and additional details please click here.

  • 24Feb
    Uncategorized Comments Off on Tips to Effectively Recruit, Retain and Terminate Foreign Workers

    The February 2017 issue of New Jersey Lawyer magazine, published by the New Jersey State Bar Association, is focused exclusively on U.S. Immigration Law. Meyner and Landis LLP is pleased that its article on employment-business immigration law, entitled, “Tips to Effectively Recruit, Retain and Terminate Foreign Workers”, by partners Scott R. Malyk and Anthony F. Siliato, is included in that issue. The full text of the article is available here: Tips on Foreign Workers.

     

  • 07Feb
    Global Immigration Comments Off on Trump Executive Order Update

    On February 3, 2017, the United States District Court for the Western District of Washington issued a temporary restraining order, prohibiting the federal government from enforcing President Trump’s January 27th Executive Order on a nationwide basis; specifically, the 90-day travel ban on “immigrants and nonimmigrants” from designated countries, the 120-day ban on the U.S. refugee program, and the indefinite suspension of Syrian refugee admissions. All U.S. land and air ports of entry are prohibited from enforcing these portions of the EO until further order from the court.

    DOS: DOS has confirmed that assuming there are no other issues in the case, provisionally revoked visas have been reversed and are once again valid for travel.

     CBP: All CBP Field Offices have been instructed to immediately resume inspection of travelers under standard policies and procedures. All airlines and terminal operators have been notified to permit boarding of all passengers without regard to nationality.

    Individuals who arrived last weekend and had their visas physically cancelled as a result of the EO will not need to reapply for a new visa and absent any other admissibility issues will receive an I-193 waiver (Application for Waiver of Passport and/or Visa) upon arrival to the U.S. For those traveling by air, airlines have been instructed to contact CBP to receive authorization to permit boarding.

    The Trump administration declared its intention to file an emergency stay of the order “at the earliest possible time.”

  • 31Jan
    H-1B Visa News, L-1 Visa News, L-1 Visas, O-1 Visas Comments Off on INTERNATIONAL TRAVEL ALERT: President Trump’s Executive Order On Immigration

    On late Friday afternoon, January 27th, President Trump issued a controversial Executive Order entitled, “Protecting The Nation From Foreign Terrorist Entry into the United States” (hereinafter “the Order”). The Order calls for an immediate ban on entry for all foreign nationals from seven (7) countries: Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen. The Order provides that the travel ban will remain in place for a period of 90 days, while reserving the right to extend such ban beyond 90 days. The Order, as written, applies to refugees, nonimmigrant visa holders (e.g.; H-1B, L-1A, L-1B, E-3, TN-1, TN-2, O-1), U.S. lawful permanent residents (green card holders) and dual nationals (excluding, however, those foreign nationals traveling on diplomatic visas, North Atlantic Treaty Organization visas, C-2 visas for travel to the United Nations, and G-1, G-2, G-3, and G-4 visas). The Order also serves to halt all visa issuance to citizens of the seven (7) enumerated countries as well.

    Interpretations and clarifications of the Executive Order are constantly evolving each day and hour as we receive news as to how the Order is being followed by the State Department and the U.S. Customs and Border Protection (“CBP”) ports of entry.

    DHS Update Provides Some Clarification

    The Department of Homeland Security (“DHS”) posted an Update on January 29 stating that the ban will only apply if traveling with a passport from one of the 7 countries. As such, being a dual citizen of one of the banned countries alone will not subject the individual to an entry bar if such individual travels with a passport from a country other than one of the listed 7. The same Update advises that the ban does not apply to U.S. permanent residents – even if they were born in one of the 7 countries or may have a claim to citizenship in one of the 7 countries.

    What Does This Mean For The U.S. Employer?

    • Employers should immediately suspend all business-related international travel from/to the United States for any non-U.S. citizen employee who is only a citizen of one of the enumerated countries and not a U.S. permanent resident.
    • Employers should advise any non-U.S. citizen employee who is only a citizen of one of the enumerated countries and not a U.S. permanent resident to remain in the United States and to not engage in any personal international travel.
    • Given the uncertainty created by the Order, and (notwithstanding the recent DHS Update) the conflicting reports we are receiving from some CBP offices, we would strongly encourage employers to suspend all business-related international travel for any non-U.S. citizen employee who is a citizen of one of the enumerated countries — even if he/she has (a) passport from a non-banned country, together with a valid non-immigrant visa, advance parole travel document or re-entry permit or (b) a green card.
    • Along those same lines, if you employ individuals who are citizens of any of the seven (7) countries listed in the Order and who are already outside of the United States, such employees may encounter difficulty at some CBP ports of entry at the present time – even if they travel with (a) passport from a non-banned country, together with a valid non-immigrant visa, advance parole travel document or re-entry permit or (b) a green card.
    • For all other foreign national employees (i.e.; citizens of countries not covered in the Order), the conservative approach is to postpone all visa appointments at U.S. Consulates abroad for the time being unless absolutely necessary. Based on the suspension of the Visa Interview Waiver Program included in the Order, we anticipate visa wait times to increase significantly at all U.S. Consulates abroad, but especially at the consular posts closest to the United States in Canada and elsewhere. If you feel a visa application is absolutely necessary, please be prepared for unexpected delays (i.e.; administrative processing delays) which may require your employees to remain outside of the United States for an extended period of time.
    • Please also advise all foreign national employees seeking to re-enter the United States from a trip abroad to carry all the necessary paperwork (i.e., copy of most recent approval notice, copy of most recent petition, employment verification letter and some recent paystubs). They should expect to experience delays and heightened scrutiny by CBP Officers during the inspection/admission process. If they have been charged with any criminal matters, including a DUI (either in the U.S. or abroad), they should carry original certified copies of the court disposition providing details on the charges, the resolution, and evidence that the matter was satisfactorily resolved.
    • If, upon attempting to enter the United States, an employee is detained by CBP and CBP refuses to admit the employee into the Unites States, the employee should be given the option to withdraw his/her application for admission or to consult with an immigration attorney.

    As one might expect, there exists much confusion among CBP Officers as to the enforcement of the Executive Order, specifically as to who should be kept out of the country. We will provide updates on the implementation and/or interpretations of the Executive Order as they arise, as well as anecdotal evidence as we become aware of the same through our national association AILA and our colleagues.

    If you have any questions in connection with any of the foregoing, please contact our firm’s Immigration Law Group at (973) 602-3440.

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