• 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.