As of July 2, 2010, approximately 24,200 H-1B cap-subject petitions were receipted. Additionally, USCIS has reported receipting 10,400 H-1B petitions for aliens with advanced degrees.

USCIS has recently announced that, as of June 18, only 22,900 H-1B petitions filed under the regular cap and 9,700 H-1B petitions filed under the Master’s exemption cap have been received.

The new, tiered fee structure was created to cover the higher unit costs for processing certain categories of nonimmigrant visas that tend to be more complicated and require a more in-depth consideration than other categories of nonimmigrant visas.

Therefore, effective June 4, the fee for business (B-1), tourist (B-2), student (F-1), and exchange visitor (J-1) visas was increased to $140. The visa application fee for temporary workers and trainees (H-1), intracompany transferees (L-1), extraordinary ability applicants (O-1), performers (P), cultural exchange participants (Q), and religious workers (R) increased to $150. The visa application fee for treaty traders (E-1) and treaty investors (E-2) increased to $390. The visa application fee for fiances of American citizens (K-1) increased to $350. All other visa categories will have bear the standard application fee of $140.

The new fee schedule is applicable to everyone applying for a visa on or after June 4, 2010. Applicants who have already paid the current visa application fee of $131 for appointments on or after June 4, 2010, will be required to pay the difference.

This interim final rule became effective on June 4, 2010. To read the entire post in the Federal Register, please click here.

U.S. Citizenship and Immigration Services (“USCIS”) has recently launched a redesigned website for employers using USCIS’ E-Verify Program.  According to the USCIS press release, the recent updates include improved navigational tools to enhance ease-of-use, minimize errors, support compliance with the terms of use, and enable real-time validation of employers enrolling in E-Verify against commercial data.

A new home page, along with a new “case alerts” feature, improved case management, and streamlined tutorials are among the purported improvements to the E-Verify website. The new interface also has enhanced security features such as masking Social Security numbers to further protect privacy and ensure that only valid companies enroll in E-Verify.

According to the press release, all current E-Verify enrollees are required to complete an updated tutorial.  There are actually two separate tutorials which take a total of about 20 minutes to complete.  Click here to view the tutorials.

The H-2B cap set by Congress is 66,000 per fiscal year, with 33,000 to be allocated for employment beginning in the first half of the fiscal year (October 1 – March 31) and the same number allocated for employment beginning in the second half of the fiscal year (April 1 – September 30). Any unused numbers from the first half of the fiscal year are made available for use by employers seeking to hire H-2B workers during the second half of the fiscal year. However, there is no “carry over” of unused H-2B numbers from one fiscal year to the next.

The H-2B category is most often utilized to fulfill an employer’s temporary needs of hiring a trainer from abroad to train U.S. workers for seasonal employment, handling peak-load situations or filling a position temporarily left vacant by the absence of a regular employee.  This category has proven particularly useful for companies in the hospitality industry to meet seasonal or peak-load demands.

If the position to be filled is temporary in nature and thus, the need for the foreign national is for a temporary period, an H-2B visa may be a viable option.  The key to the H-2B visa is not only that the employer is seeking to hire foreign nationals on a temporary basis, but that the need of the business is also temporary.  In other words, the employer may not seek to fill a full-time, permanent position with an H-2B worker.

United States Citizenship and Immigration Services (“USCIS”) has recently announced that, as of May 21, 2010, 19,600 H-1B petitions filed under the regular cap and 8,200 H-1B petitions filed under the Master’s exemption cap have been received.

Notwithstanding the job market in the technology sector showing signs of life, U.S. unemployment remains at just under 10% and will likely remain at an inflated rate for years to come.  While employers reportedly added more than 160,000 jobs in the month of March, the biggest monthly gain in three years, a closer look at the numbers reveals roughly one-third of that growth came from the U.S. government’s hiring of 48,000 temporary workers in connection with the 2010 Census.

So what does this recent job growth mean for U.S. employers vis-a-vis the H-1B program? Make no mistake about it, H-1B usage is down drastically from recent years.  Indeed, it is now quite evident that, despite the newly optimistic views of the economy, U.S. companies are more carefully reassessing their recruitment needs (and goals) and processing H-1B petitions only for key personnel.  This change in sentiment appears to be driven by a multitude of reasons, including (i) the high costs associated with of processing H-1B petitions; the increased scrutiny in the adjudication of H-1B petitions and in the admittance of H-1B visa holders by CBP at ports of entry; (ii) the uncertainty regarding availability of H-1B visa numbers and limited period of authorized period of stay in such classification; (iii) the emerging destinations for business other than the U.S. and increased outsourcing of work; (iv) more opportunities in emerging markets  like India and China which  used large numbers of H-1B visas in the past; and, of course, (v) the increased availability of U.S. workers due to unemployment.

In light of all this, U.S. workers stand to gain with a host of job opportunities becoming available as the result of F-1 and H-1B visa holders returning abroad, especially those returning to India and China, who have been presented opportunities outside the U.S. by way of competitive job offers and entrepreneurial ventures.

In sum, as has been suggested many times before by the authors of this blog, let the market drive the H-1B cap; there is no need for an arbitrary cap on H-1B visas.

For many employers in the United States and United Kingdom, talented workers from outside the US or Europe respectively are essential to the continued success of the business.  However, numerous considerations must be taken into account, and sound legal advice taken, each and every time a non-domestic worker is hired, retained, transferred or even terminated, thanks to the various intricacies of current immigration law in both jurisdictions. 

This article aims to provide a brief overview of some of the most important and pertinent issues that must be considered, first for those employers based in the US, and then for their UK counterparts, before commenting on an issue of equal importance in both jurisdictions.

Considerations For US Based Entities

Explore Your Employment Options For Hiring Foreign-Born Individuals

Notwithstanding last year’s lengthened period of H-1B availability under the cap, employers were still left with more than a nine month gap (from December 22, 2009 until October 1, 2010) for new H-1B visas to become available for FY 2011, the filing season for which will begin on April 1.  So what is your business to do in the meantime? While there are a limited number of options presented by the “alphabet soup” of temporary visa categories currently available under the law, there are, indeed, viable alternatives for potential hires for whom you cannot (or will not) wait until October 1, 2010 to employ (e.g. B-1 in lieu of H-1B, O-1, E-2, H-3).

Consider Strategies To Expedite Hiring

The following are strategies that may be available to an employer to expedite the employment of foreign national workers:

• H-1B portability: Visa portability provisions allow a foreign national accorded H-1B status to begin working for a new H-1B employer as soon as the new employer files a “nonfrivolous” H-1B petition on behalf of the foreign national.  Such portability provisions relieve the foreign national from the need to await approval notification from US Citizenship and Immigration Services (“USCIS”) before commencing his/her new H-1B employment.
• The availability of premium processing: USCIS established a premium processing program to expedite the adjudication of certain employment-based petitions and applications within fifteen calendar days upon payment of the premium processing fee.  The following non-immigrant visa categories are eligible for premium processing: E-1/E-2, H-1B, H-2B, H-3, L-1, O-1, P-1/P-2/P-3, Q-1, R-1, and TN.

Plan Ahead For “Administrative Processing” Delays At US Consulates Abroad

When an employee is required to travel outside of the US, it will be necessary for that employee to have the appropriate valid visa prior to re-entering the US.  Such visa must be obtained from a US Consulate abroad after a personal interview. Due to a rise in “administrative processing” delays at US consulates abroad, you should prepare your employee and your business for such a delay.  Indeed, even without an “administrative processing” delay, it could take a month or longer to obtain a visa appointment.  Thus, the employee should plan ahead for their trip abroad. 

While these delays are generally unavoidable, there are a few steps to minimize the work interruption should an employee become subject to administrative processing:

• Confer with immigration counsel to ensure that the written materials the employee will bring to his/her interview are complete and up-to-date and that the employee has completed the necessary steps to schedule the interview at the US Consulate within the appropriate time period;
• Inform the employee’s supervisor of the possibility of a delay in visa issuance on account of security checks; and
• Develop an alternative work plan: With today’s technology, it is often possible for your employee to work abroad during such delays. If your employee has the ability to do so, he/she should bring the necessary devices/materials on his/her trip abroad.

Have A Policy In Place For Terminating The Employment of Foreign Nationals

Of course, lay-offs are a fact of life, especially so in today’s economic environment. In circumstances involving a reduction in force, US company policies typically offer a few weeks of “severance” (with the date of termination effective immediately) in lieu of providing the employee with notice of the actual termination. While such severance packages may be fair, they (often unknowingly) present a unique set of problems to employees working pursuant to a work visa, since most work visa classifications are “employer specific”. This means that the foreign national worker is not only dependent upon his/her employer for wages, but for his/her ability to remain in legal status in the US.  Indeed, the US Department of Homeland Security considers a foreign national worker to be “out of status” as of the date of termination—regardless of the duration or amount of severance.

As such, for a terminated foreign national to remain in the US in an authorized period of stay, an application for an extension of stay (assuming new employment is found) or a change of status to another non-immigrant classification (e.g. B-2 visitor for pleasure) must be filed prior to or contemporaneous with the termination of one’s employment.  This is true not only for the worker, but also for his/her family.  A failure to do so will likely render the entire family “out of status” and subject to removal from the US.

To ameliorate these harsh effects, employers should consider providing their foreign national employees with a fair period of notice before they are actually terminated from employment. 

Considerations For UK-Based Entities

Establish Which Rules Are In Force

Since the UK Border Agency (‘UKBA’) introduced its new points-based system (‘PBS’) in late 2008, there have been several amendments made to both the immigration rules themselves and their accompanying guidance.  Although these have been largely welcomed, there have been ‘teething problems’, and it is sometimes difficult to keep track of which rules are currently applicable to the situation in hand. 

For example, several major changes to the PBS will be taking place on 6 April 2010.  It is therefore important to ensure that relevant staff receive regular and adequate training to avoid inadvertent breaches of the UK immigration rules, and if you are unsure as to the nature or source of the new rules, that specialist legal advice is taken from immigration counsel.

Should The Entity Become A Registered Sponsor?

There are pros and cons to each available route under the PBS, which will require careful analysis before any role is offered to an employee who is not a citizen of a European Economic Area state or Switzerland.  A larger international organisation hiring non-EEA/Swiss employees on a regular basis may prefer to use the Tier 2 sponsorship route, where available, as once the initial administrative hurdle of becoming licensed by the UKBA has been overcome, time will be saved when each qualifying migrant employee is offered a role.

This route is not a method of avoiding the strict points requirements for business migrants however, and the initial registration process can be cumbersome and expensive.  Ongoing sponsor compliance obligations and duties are also onerous and the UKBA will often monitor licensed organisations closely. 

Smaller entities or those offering a one-off role to a non-EEA/Swiss employee should therefore consider other routes.  For example, although the Tier 1 scheme is aimed towards individuals, this can also be very useful for employers not wishing to become registered sponsors. 

What Is Best For The Employee?

A happy workforce is invaluable, and it is therefore not simply the employer’s best interests that will be relevant in most cases.

Communication with the employee in question will often be vital, so that all bases are covered but also to ensure that their family and future needs are considered.   For example, if they wish to eventually settle in the UK, a particular PBS route may facilitate this for them, whilst another PBS route may not.

Keeping Internal Records Up To Date

Finally, whichever route is chosen by the UK organisation to employ foreign workers, essential housekeeping of personnel files must be done on a regular basis.  This means HR organisation in terms of, for instance, keeping track of which employees require visas and the dates on which those visas are due to expire, to avoid any inadvertent breaches of the immigration rules.

The UKBA has powers to issue warnings and both civil and criminal penalties, and fines will be issued of up to £10,000 per illegal immigrant employed by an organisation, which can prove extremely costly.  In addition, sponsorship status will be demoted or revoked, and individuals can be deported and banned from re-entering the UK if found to have breached the immigration rules. 

An Important Consideration For Both US And UK Based Entities

Develop Long-Term Immigration Strategies For Your Workforce

To help accomplish your staffing goals and thus remain competitive in today’s global economy, it is the role of immigration counsel, in partnership with business owners, legal and/or human resources personnel, to focus on “the bigger picture” for key, foreign-born personnel to ensure that those individuals are in a position to gain entry to and then remain in the US or UK for as long as necessary to achieve the goals of the business. Such long-term strategies should be discussed prior to (if necessary), or at the time of, hiring each foreign national (leaving sufficient time to collect relevant documents and submit immigration applications), and should be revisited over the course of the business’ employment relationship with each such employee. These plans should never be left to the eleventh hour as poor planning will likely result in short-changing your long-term employment options with a valuable employee.

After inquiring with CBP headquarters about these incidents, the CBP Liaison Committee of the American Immigration Lawyers Association was advised by CBP that several of these cases involved companies under investigation by U.S. Immigration and Customs Enforcement (“ICE”) and/or U.S. Citizenship and Immigration Services (“USCIS”) for ongoing fraud. 

CBP’s new, unannounced policy involves conducting random checks for returning H-1B, L-1, and other employment-based visa holders.  Based upon the initial check, if the CBP officer determines the foreign national’s admissibility is questionable, then he or she will be sent to secondary inspection for further interview. In some cases, if CBP discovers discrepancies in previously filed petitions, then the applicant may be asked to withdraw his/her application for admission into the United States or be subject to expedited removal.

CBP has claimed that those questioned are offered the opportunity to contact their consulate.  While CBP officers, at times, have contacted the H-1B petitioner and/or current employer when clarification was necessary, they have not permitted the interviewee to contact legal counsel.

With this new policy, CBP officials have been authorized to institute expedited removal when they believe that an individual is entering the U.S. in violation of the terms and conditions of his/her visa. Expedited removal, in which the government covers the costs of the return airline ticket, bars the individual from reentering the U.S. for a period of five years. 

This post serves as a wakeup call for all nonimmigrant workers with upcoming travel plans abroad.  They should prepare for their return trip to the United States in advance by reviewing (and having with them) all pertinent documents to their visa petition.  They should also have with them (on their person or in carry-on baggage) evidence to support the assertions made in the petition  (i.e. current paystubs, a letter from their employer which reflects they are, indeed, employed at the location listed in the petition). Similarly, the employer’s representative (the signatory on the forms) should be notified of the travel plans and thus prepared for telephone inquiries from CBP officers at ports of entry to confirm the assertions made in any nonimmigrant petition and supporting documentation.  Finally, employers should note that the government is entitiled to review information posted in any public media (such as websites and other media) for consistency with the content of the nonimmigrant petition. Thus, keeping such public information accurate and current is essential.

TPS is a temporary designation for qualified nationals of a foreign country who are already in the United States in circumstances where such nationals are unable to safely return to their country of origin due to ongoing armed conflict, an environmental disaster, or other extraordinary or temporary conditions. TPS grants foreign nationals work authorization and protection against deportation for the duration of the protected status. It does not lead to permanent resident status or confer any additional immigration benefit.

There will be a six (6) month window for which you may file an application seeking TPS benefits. As is typical with TPS designations, there is a date by which applicants must have continuously resided in the United States — for Haitian Nationals applying for TPS, applicants must have continuously resided in the U.S. since January 12, 2010.  The date by which applicants must have been continuously physically present will be published in the Federal Register. 

TPS benefits are initially granted for a period of eighteen (18) months.   The typical statutory bars to TPS benefits will apply — a Haitian national will not be eligible for TPS if s/he:

1. Has been convicted of any felony or two or more misdemeanors committed in the United States;
2. Is a persecutor, terrorist or otherwise subject to one of the bars to asylum; or
3. Is subject to one of several criminal-related grounds of inadmissibility for which a waiver is not available.

For more specific information relating to eligibility for TPS benefits, see INA section 244(c)(2) and 8 CFR §§ 244.1 - 244.4

Last night’s 60 Minutes report provided a stark picture of the unparralleled devastation and challenges faced by Haiti in the aftermath of last week’s 7.0-magnitude earthquake.  Our thoughts and prayers are with the people of Haiti. 

If you haven’t already done so, we would strongly encourage you to make a donation to the relief efforts in Haiti. Here are direct links to some of the organizations currently accepting donations: American Red Cross,  UNICEF (1-800-4UNICEF), Yele Haiti, Care, Clinton Bush Haiti Fund, Direct Relief,  Partners in Health, World Food Program, Mercy Corps (1-888-256-1900), Save the Children, Doctors Without Borders, The International Rescue Committee, Feed the Children, and Habitat for Humanity.