Latest Event Updates

The Shutdown is Over, but Expect Immigration Delays

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U.S. Capitol

The partial federal government shutdown has ended and operations have resumed, but immigration-related delays could linger. Following are updates on various government agencies to help navigate the shutdown aftermath.

E-Verify

All E-Verify employers were affected by the E-Verify “blackout” caused by the shutdown, regardless of whether they employ foreign nationals. E-Verify is now back online. USCIS issued a reminder that the Form I-9 requirements were not affected during the shutdown, and offered advice for those affected by the E-Verify shutdown, which can be found at: http://www.uscis.gov/USCIS/Verification/E-Verify/E-Verify_Native_Documents/E-Verify_and_I-9PublicWebsitesStartupMessage.pdf.

Here are the highlights:

  • Employees who received a Tentative Nonconfirmation (TNC)
    If an employee had a TNC referred between September 17, 2013 and September 30, 2013 and was not able to resolve the TNC due to the federal government shutdown, add 12 federal business days to the date printed on the ‘Referral Letter’ or ‘Referral Date Confirmation.’ Employees have until this new date to contact the Social Security Administration (SSA) or the Department of Homeland Security (DHS) to resolve their cases. If you have an employee who decided to contest his or her TNC while E-Verify was unavailable, you should now initiate the referral process in E-Verify. Employers may not take any adverse action against an employee because of a TNC.
  • Employees who received a SSA Final Nonconfirmation (FNC) or DHS No Show result
    If an employee received a Final Nonconfirmation (FNC) or No Show because of the federal government shutdown, please close the case and select “The employee continues to work for the employer after receiving a Final Nonconfirmation result,” or “The employee continues to work for the employer after receiving a No Show result.” The employer must then enter a new case in E-Verify for that employee. These steps are necessary to ensure the employee is afforded the opportunity to timely contest and resolve the Tentative Nonconfirmation (TNC) that led to the FNC result.
  • Creating Cases: Three-Day Rule
    You must create an E-Verify case for each employee hired during or otherwise affected by the shutdown by November 5, 2013. If you are prompted to provide a reason why the case is late (i.e., does not conform to the three-day rule), select ‘Other’ from the drop-down list of reasons and enter ‘federal government shutdown’ in the field.
  • Federal Contractor Deadlines
    During the federal government shutdown, federal contractors could not enroll or use E-Verify as required by the federal contractor rule. If your organization missed a deadline because E-Verify was unavailable or if it has an upcoming deadline for complying with the federal contractor rule, please follow the instructions above and notify your contracting officer of these instructions.

U.S. Department of Labor (DOL)

The DOL shutdown probably had the most direct impact on immigration cases, because the LCA (Labor Condition Application) system and the PERM system for labor certification applications were both out for the duration.

The DOL is now officially open, which means that the following processes will resume: (1) Labor Condition Applications, (2) Prevailing Wage Determinations, and (3) PERM Labor Certification Applications. As a result of the DOL coming back online, H-1B petitions, which must include certified Labor Condition Applications, may now resume as well. However, we expect a significant delay as USCIS officers sift through the backlog, and employers should anticipate longer processing times for the remainder of the year.

US Citizenship and Immigration Services (USCIS)

USCIS was not affected by the shutdown for the most part (with the exception of E-Verify), because the agency was deemed self-funded by filing fees. Practitioners across the U.S. have not experienced any unusual delay during the shutdown and there should be no changes in processing, other than the expected H-1B backlog. USCIS’ Ombudsman Offices were closed during the shutdown, but they have been re-opened. See: http://www.uscis.gov

Department of State (Embassies and Consulates) (DOL)

The shutdown did not affect the operation of US embassies and consulates overseas, and the reopening of the government should likewise have no effect on them. In other words, business as usual for the embassies and consulates. See: http://www.state.gov

Immigration Courts (EOIR)

Immigration Courts were closed for non-detained cases during the shutdown but all courts have been opened today. Cases affected by the shutdown are being rescheduled by their respective courts. Individuals with cases before immigration courts that have been affected by the shutdown should contact the courts and their attorneys for the latest update. We anticipate some delays in the court system for the remainder of the year as they shuffle already overloaded dockets.

Immigration and Customs Enforcement (ICE)

ICE operations were largely unaffected during the shutdown because ICE is a law enforcement agency. The shutdown only affected ICE’s website, as it was not being managed or updated. The website still shows news dated “09/30/2013” and it will be several days or weeks before the website will be up to speed again. See: http://www.ice.gov

Customs and Border Protection (CBP)

U.S. ports-of-entries were not affected during the shutdown. However, CBP’s website was likewise not managed during the shutdown. One entry was posted in its October “Newsroom” today, indicating that updates have resumed. It will be a few days before the website will be fully updated. See: http://www.cbp.gov

Social Security Administration (SSA)

SSA was closed during the shutdown, resulting in delays in processing social security number requests. While its function has resumed, we expect a backlog in social security number requests and increased processing times.

If you have questions about this Alert, please feel free to contact Matt Martinez (602) 916–5446 or Jared Leung (602) 916-5315.

USCIS Stakeholder Message: Recent Telephone Scams

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Dear Stakeholder,

 

In recent weeks, U.S. Citizenship and Immigration Services (USCIS) learned of a new telephone scam targeting USCIS applicants and petitioners. Scammers are using a technique called “Caller ID spoofing” to display a misleading or inaccurate phone number in a recipient’s Caller ID. The scammer poses as a USCIS official and requests personal information (such as Social Security number, passport number, or A-number), identifies supposed issues in the recipient’s immigration records, and asks for payment to correct these records.

 

If you receive a call like that, USCIS urges you to say “No, thank you” and hang up immediately.

 

USCIS never asks for any form of payment or personal information over the phone. Do not give payment or personal information over the phone to anyone who claims to be a USCIS official. In general, we encourage you to protect your personal information and not to provide details about your immigration application in any public area.

 

If you have been a victim of this telephone scam, please report it to the Federal Trade Commission at https://www.ftccomplaintassistant.gov/, or report it to an appropriate state authority. (Visit www.uscis.gov/avoidscams for information on where to report scams in your state.)

 

If you have a question about your immigration record, please call the National Customer Service Center at 1-800-375-5283, or make an InfoPass appointment by visiting our website at http://infopass.uscis.gov/.  

 

Kind Regards,

Public Engagement Division

US Citizenship and Immigration Services

Electronic I-94 Not 100% Reliable

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Electronic I-94 Not 100% Reliable
By Jared C. Leung

Starting on April 30, 2013, the U.S. Customs and Border Protection (CBP) began implementing the electronic I-94 process at air and sea ports of entry.  Instead of providing the nonimmigrant with the traditional paper copy of the I-94 Arrival/Departure Record containing date and class of admission and expiration date of status, the nonimmigrant is given no paper form at all.  The CBP stamps the nonimmigrant’s passport with an entry date and class of admission.  The nonimmigrant can look up his/her I-94 admission record electronically on CBP’s website at www.cbp.gov/I94, using his first and family names, date of birth, passport number and country of issuance, date of last entry into the U.S., and class of admission.

 Sounds efficient, right?  Yes, when it works.  

In the initial days of implementation at a limited number of ports of entry, the general feedback was that the new system was working.  However, as more and more air and sea ports of entry implemented the system and eliminated the old paper-I-94 process, more and more errors emerged. Some of the common errors are: 

  • The electronic I-94 record cannot be located
  • The admission category is not accurate
  • The admission validity period is inconsistent with approved petition
  • Mix-up of admission categories with family members
  • Some family members have electronic I-94 record but some do not
  •  

By far, the most common error is that the electronic I-94 cannot be found in the system.  This presents a problem to nonimmigrants who need to apply for benefits in the future, such as change of status or extension of status.   These applications require the applicant to demonstrate valid nonimmigrant status in the U.S. with the I-94 record.  Further, nonimmigrants entering the U.S. on work visas often need their I-94 records to demonstrate work authorization on the Form I-9.  Without a valid electronic copy of the I-94 admission record, the nonimmigrant has trouble demonstrating his/her valid status.  

Further, any error on the electronic I-94 is more difficult to correct.  In the past, when CBP issued the paper-form I-94, the nonimmigrant could examine the I-94 prior to leaving the checkpoint for any errors or discrepancies, and requested a correction on the spot.  However, with the new system, nonimmigrants cannot tell if their electronic I-94 records are accurate until after they have left the CBP inspection area and have access to the Internet.  Further, nonimmigrants are more prone to forget about verifying their electronic I-94 records after leaving the port of entry.    

We anticipate these initial errors with the electronic I-94 system will improve over time.  However, until then, we strongly advise nonimmigrants to follow these precautionary measures: 

  1. As soon as feasible after entering the U.S., check your electronic I-94 record and ensure that you have been admitted in the proper status, for the proper duration.
     
  2. Print out the electronic I-94, fold it, and keep it in your passport.  I am mindful that this is not a “green practice”, but the I-94 is arguably the most important document evidencing your nonimmigrant status, and is surely worth a piece of paper.
     
  3. If you cannot locate your electronic I-94, or if there is any error on your I-94 record, do not hesitate to correct it.  Find a CBP duty officer at the nearest USCIS office.  Determine his/her hours of availability and visit him/her to correct the error.  Bring your itinerary, boarding pass, and any other evidence of your proper entry into the U.S.
  4.  

If you have any questions, please contact any of the Immigration Attorneys at Fennemore Craig., P.C.  

Uncharted Territories — DOMA and Immigration

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Uncharted Territories — DOMA and Immigration
By Jared C. Leung and Matt J. Martinez

On June 26, 2013, the U.S. Supreme Court ruled in United States v. Windsor that Section 3 of DOMA (Defense of Marriage Act) was unconstitutional.  Section 3 reads: 

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or a wife.

Note that Section 2 of DOMA was not challenged in this case and remains valid law for now.  Section 2 allows states to refuse to recognize same-sex marriages performed under the laws of other States.

The Supreme Court ruling allows individuals to obtain immigration benefits associated with marriage if they were married legally in a State where same-sex marriage is legal.  

Effects on Immigration Benefits

Prior to February 2011, the U.S. Citizenship and Immigration Services (USCIS) routinely denied family petitions or immigration benefits to same-sex couples.  However, after President Obama announced that the Department of Justice would not defend DOMA, USCIS held immigration cases involving same-sex couples in abeyance pending a court ruling.  At the American Immigration Lawyers Association’s annual conference in San Francisco on June 27, USCIS Director Mayorkas announced that the Service was ready to act swiftly on these cases.  Further, Secretary Napolitano of the Department of Homeland Security issued a statement on July 2 indicating that she has directed USCIS to “review immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex couple”.  We anticipate that USCIS will continue issuing instructions in coming days for previously denied, pending, and future cases involving same-sex marriage. 

At first glance, the issue may seem simple.  A homosexual individual can now petition his/her spouse for immigration benefits if they were married in a state in which such marriage is legal.  However, a closer examination reveals many uncertainties.

Bona Fides of the Marriage

Proving that a marriage is truthful is critical in any family case.  Some marriages require little effort to prove their truthfulness because the couple has been married for a long time, and have children and have accumulated extensive documentation.  However, some cases are more challenging.  For example: some marriages are arranged; some couples come from vastly different cultures or have a large age gap; some may have few documents evidencing the relationship due to an abbreviated courtship.  The same applies to same-sex couples.  The question is whether USCIS examiners will look at the evidence presented by same-sex couples with the same standard currently applied to heterosexual couples.

Further, many states and countries continue to reject homosexuality and same-sex marriages.  In places like these, bona-fide same-sex couples may have taken measures to hide their relationship and there may be little objective evidence to prove a genuine union.  Same-sex couples may have additional challenges obtaining affidavits from church leaders or family members, particularly if the same-sex couples have not made their relationships “public” or if church leaders and family members are unsupportive.  Employment, medical, and other relevant records may indicate status as “single” and are therefore inconsistent with a claim of a same-sex relationship.  They may not have evidence that is considered “normal” or “expected” in a heterosexual marriage.  Worse yet, if a married same-sex couple has consistently been indicating his/her marital status as “single” on USCIS documents because USCIS did not recognize same-sex marriage before, would a change to “married” now mean the prior declaration was “fraudulent” or in some way taint the current application because of perceived inconsistency? 

Spouses of employment-based immigrants will receive the same benefits.  If the principal employee/applicant is in a same-sex marriage, does it mean his/her spouse can obtain the green card too?  How would USCIS treat evidence of same-sex marriage in an employment-based case for a derivative beneficiary?

Timing is Everything

Timing is important in obtaining immigration benefits.  A spouse can be included or excluded on a given immigration application based on the timing of the marriage.  It is common for an individual who is in removal or deportation proceedings to marry a U.S. citizen or permanent resident spouse so that he/she can be eligible for immigration benefits.  These relationships are always scrutinized by USCIS because they are perceived as “marriages of convenience.”  They will be looked at even more closely if the relationship is homosexual.  In addition, many couples and USCIS detention centers are located in states in which same-sex marriage are not recognized and where there is no way of getting married legally.  How would USCIS treat them?  Would they be permitted to travel to another state where same-sex couples can be married legally?  Arizona has two large USCIS detention facilities in Eloy and Florence.  Would a detained inmate be allowed to travel to California, a nearby state, in which same-sex marriage is legal so that he/she can be married.  Would a bond be issued on that basis? 

Fiancée Visa

We may need a completely new definition of fiancée visa from this point forward.  However, there are also pressing practical issues as well.  What if a fiancée resides in a country that scorns same-sex relationship and marriage?  Would the fiancée who attends such visa interview be exposed to public ridicule or even mortal danger? 

What about the Children

Immigration benefits extend to children in many cases.  Same-sex couples cannot have their own children biologically.  What about their adopted children?  What about birth children of a person before he or she became homosexual?  Are they included?  What about stepchildren?  How are they defined and would they be included? 

Bad Marriages and Divorces

Some immigration benefits are accorded to individuals who are in bad marriages.  An abused spouse may file for benefits absent the support of the US citizen spouse.  Would the same be extended to same-sex couples?  How is USCIS going to treat same-sex divorces and subsequent re-marriages in a same-sex relationship or heterosexual relationship?

Location and Movement

It should be noted that the Supreme Court only ruled that federal benefits could not be denied to same-sex couples if their marriage is legal in a state in which they live.  Section 2 of DOMA allowing each state to determine whether it would recognize same-sex marriage performed in another state remains fully valid.  What are the effects of same-sex couples who move from state to state which has different legal definition of marriage?  For now, Secretary Napolitano explained that same-sex couples living in a state in which same-sex marriage is not legal may still file family petitions and these cases will be considered on a case-by-case basis.  Additional guidance is anticipated shortly in this area. 

We are in uncharted territory in US immigration benefits.  The implication of the Supreme Court decision is far-reaching and it will probably be years before its full effects will be understood.  However, within the realm of immigration, this Supreme Court decision has immediate consequences to all affected cases, whether they have been denied, pending, or are being contemplated. 

 

H1B Work Status Quotas Exhausted in Five Days

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untitledUSCIS announced on Friday, April 5, 2013, that it received more H1B petitions than the combined annual cap quota of 65,000 regular and 20,000 Master’s degree H1B.  As a result, an “H1B lottery” will be held to determine which petitions would receive a precious H1B number for the upcoming year.

Perhaps the best words came from USCIS’ announcement on Monday, April 8th:

For the first time since 2008, U.S. Citizenship and Immigration Services (USCIS) has reached the statutory H-1B cap of 65,000 for fiscal year (FY) 2014 within the first week of the filing period. USCIS has also received more than 20,000 H-1B petitions filed on behalf of persons exempt from the cap under the advanced degree exemption.

USCIS received approximately 124,000 H-1B petitions during the filing period, including petitions filed for the advanced degree exemption. On April 7, 2013, USCIS used a computer-generated random selection process (commonly known as a “lottery”) to select a sufficient number of petitions needed to meet the caps of 65,000 for the general category and 20,000 under the advanced degree exemption limit. For cap-subject petitions not randomly selected, USCIS will reject and return the petition with filing fees, unless it is found to be a duplicate filing.

The agency conducted the selection process for advanced degree exemption petitions first. All advanced degree petitions not selected were part of the random selection process for the 65,000 limit.

As announced on March 15, 2013, USCIS has temporarily adjusted its premium processing practice. To facilitate the prioritized data entry of cap-subject petitions requesting premium processing, USCIS will begin premium processing for H-1B cap cases on April 15, 2013.  For more information on premium processing for FY 2014 cap-subject petitions, please see the related USCIS Alert.

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 not be counted towards the congressionally-mandated FY 2014 H-1B cap. Accordingly, USCIS will continue to accept and process petitions filed to:

  • extend the amount of time a current H-1B worker may remain in the U.S.;
  • 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.

Employers who have submitted a cap-subject H1B petition must wait and see whether they will receive a large envelope from USCIS containing their returned H1B petition or a “skinny” envelope that would contain their receipt notice signifying that the petition had “won” a number in this year’s visa lottery.  Feels like the anxious delay of college application responses; but with the opposite results.

There have been discussions on whether it is right to use the lottery system for all of the petitions submitted from Monday, April 1st through Friday April 5th.  Shouldn’t employers who planned all year for the H1B filing period whose H1B petitions were received by USCIS on April 1st have priority over employers whose H1B petitions were not received until Friday April 5th?  I believe that would depend on who you ask.

One thing is clear:  The H1B quotas are insufficient to meet the needs of today’s U.S. employers.  Prospective beneficiaries who do not receive an H1B number this filing period might very well think that they should have gone outside the U.S. and explored the immigration options that other countries would offer them.  The current employment-based visa system is simply not helping the U.S. retain talented and U.S. educated global recruits.

To contact Jared Leung please send a message to jleung@fclaw.com or call 602-916-5315

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USCIS Anticipates That the H-1B Cap Will be Reached Within 5 Business Days

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USCIS announced that it anticipates the H-1B quotas of 65,000 for the “Regular Cap” and 20,000 for the “Master’s Cap” to be reached by April 5, 2013.  As a result, it has delayed the adjudication of Premium Processing cases until after April 15, 2013.  (USCIS H-1B Announcement)

Employers should note:

  • The H-1B cap may possibly be reached in less than 5 business days;
  • USCIS will begin adjudicating cases on April 15, 2013;
  • Employers and employees who intended to use Premium Processing to seek early approval of their cases should adjust their expectations and plan accordingly;
  • Please note that it takes approximately 10 days to prepare an H-1B petition because of the LCA certification requirements; and
  • Fennemore Craig has seen a recent surge of requests for H-1B filings.  Employers should contact us immediately if they want to submit an H-1B petition by April 1.

If you have any questions, please do not hesitate to contact the Immigration Team at Fennemore Craig at 602-916-5295. 

To contact Jared Leung please send a message to jleung@fclaw.com or call 602-916-5315.

Subscribe to our blog at: fcimmigration.com 

Follow us on Twitter @phximmigration

New Two-Page I-9 Form to Become Effective on March 8, 2013

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U.S. Citizenship and Immigration Services (“USCIS”) published a new two-page I-9 Form on Friday, March 8, 2013, that is effective immediately.  USCIS has provided a 60-day grace period, until May 7, 2013, in which employers may still use the old I-9 forms.  The new I-9 form is available on USCIS’s website at:  http://www.uscis.gov/files/form/i-9.pdf

What are the differences? 

Other than the obvious expansion of the form from one page to two pages, the following are some of the key differences:

Section 1 

  • Employees may provide email addresses and telephone numbers.  If the employee chooses not to provide such information, he/she may mark “N/A” on the form.  However, the form itself does not indicate that these fields are optional; only the instructions do.
  • A new line asking for the I-94 number has been added, making it easier for individuals with temporary work status to provide that information.
  • Individuals providing an I-94 number also need to provide their passport number and country of issuance information.
  • The section for preparer and translator certification is more prominent than in the old form, illustrating how important USCIS deems this information.
  • A line stating “Employer Completes Next Page” is placed on the bottom of the first page, with the intention to separate the responsibilities between the first page (for the employee) and second page (for the employer).

Section 2

  • Additional and improved boxes have been added to the “List A” documents column.  The new form allows for three documents, whereas the old form barely had room for two.
  • List B and List C columns added clearly distinguishable fields: Document Title, Issuing Authority, Document Number, and expiration date.  These distinct fields should help the employers complete the necessary information more effectively.
  • A line that very clearly asks the employer to provide the first day of employment information is added.  The old form asks for this critical information as well but it was not as obvious.
  • Large boxes are added for employers to provide contact information about the company and the person who certifies the form.  This helps employers avoid inadvertently missing any required contact information.

Section 3 

This section remains similar to the old version, other than some minor format changes made to improve readability and provide clearer instructions on what information is sought.

Significant Changes for Employers?

The form is designed to collect specific information in specific boxes or slots with reduced ambiguity.  Employers will now have less of a chance to claim that they did not know that any given information is required.  In some ways, the new form may reduce the number of “technical violations”, which are mainly violations concerning the proper completion of the form as opposed to the employment authorization of the employee.  Conversely USCIS may be less forgiving when employers do not properly complete what appears to be a “clearer” or ‘better” form.  Employers should note that the process to verify employment authorization has not changed.  Employers must still provide the list of acceptable documents to the employee and allow the employee to provide either a List A document or a List B and List C document to demonstrate work authorization.  The new form does not modify that process.

To-Do List for Employers

We suggest the following “To-Do” list for the employer in response to the new I-9 form.

  • Download the new I-9 form and instructions.  Review them carefully.  Note any questions that you may have.
  • Contact your legal counsel to clarify questions that you have.
  • Educate all employees who have responsibilities of completing the I-9 form or involved in the I-9 process.
  • Decide when to start using the new form. Clearly mark May 7, 2013on your calendar as the “Last Day to Use the Old I-9 Form”. Set additional reminders prior to that date as desired.
  • Evaluate your company’s I-9 practice and policy. Consider engaging legal counsel to conduct internal I-9 audits.

The new I-9 form contains some nice features and should make it more “user-friendly”.  Employers need not to be afraid of using the new form, because it seems to be an improvement over the old version.  However, employers must take smart steps to implement its use prior to May 7, 2013.  The one-page I-9 form was a confusing form.  Let’s hope that this new two-page version of Form I-9 will help employers nationwide comply with the I-9 process with added confidence and ease.

Subscribe to our blog at: fcimmigration.com 

Follow us on Twitter @phximmigration 

To contact Jared Leung please send a message to jleung@fclaw.com or call 602-916-5315.

Alert: H-1B Cap May Be Hit in First Week of April 2013

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MH900300924We wish to provide an update to our alert published on February 5, 2013.  There has been some indication that the quota of 65,000 H-1B for Fiscal Year 2014 will be exhausted earlier than previously expected.  Some have predicted that the quota will be met by the end of the first week of April 2013.

Because it is difficult to predict how many H-1B petitions will be submitted on April 1st (the first day that USCIS accepts cap-subject H-1B petitions), we strongly advise employers to start processing their cap-subject H-1B petitions as soon as possible.

We recommend that employers prepare the following items for an H-1B petition:

  • Company information, such as annual report, financial report, marketing brochure, IRS tax ID documents;
  • Contact information of the company representative who would be signing the petitions;
  • Job title and description for the position offered to the prospective H-1B employee, along with an explanation as to why the position requires at least a Bachelor’s degree in a specific field;
  • Copy of the diploma and academic transcripts of the prospective H-1B employee;
  • Copy of the following documents from the prospective H-1B employee:  passport ID page and pages containing US visas and entry stamps, all current and previously issued I-20 Forms, current I-94 card, and OPT EAD Form (if applicable), previously issued US immigration and work authorization documents;
  • If the prospective H-1B employee needs H4 status for his/her spouse and children, copies of their passport ID pages, visas, I-94 cards, any previously issued US immigration documents, and marriage and birth records with certified English translations.

Each case is different, and additional items may be required.  An H-1B petition must be submitted with a certified LCA (labor condition application) from the Department Of Labor, which takes approximately one week to obtain.  Accordingly, we recommend that employers begin preparing the H-1B petition well in advance for the April 1st filing date.

If you have any questions at all, please do not hesitate to contact us at Fennemore Craig.  Thank you very much.

To contact Jared Leung please send a message to jleung@fclaw.com or call 602-916-5315

Subscribe to our blog at: fcimmigration.com 

Follow us on Twitter @phximmigration

 

 

USCIS to accept H-1B petitions beginning April 1, 2013

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MH900442482U.S. Citizenship and Immigration Services (USCIS) will start new cap-subject H-1B petitions on Monday, April 1, 2013.  Employers not wishing to take any chances will be sending their H-1B petitions on Friday, March 29 to ensure that their petitions will be date-stamped by USCIS on the very first day of the H-1B filing season.  These new cap-subject H-1B petitions will have a start of October 1, 2013.

The H-1B work status is for “specialty occupations”.  These occupations require the employee to have university-level degree or experience to fulfill the position.  Each year, there are 65,000 H-1Bs available for the “regular” quota.   For individuals who have obtained a US master’s degree or higher, an additional 20,000 H-1Bs are set aside for them.  When these additional 20,000 “Master’s Cap” H-1Bs run out, petitions for individuals with a US master’s degree will start using H-1Bs from the “regular” 65,000 quota, quickening the pace by which the quota is exhausted.

Only a first-time H-1B employee will require a new quota number.  An H-1B change-of-employer or an H-1B extension filing is not counted towards the year’s quota numbers.

We anticipate a run for H-1Bs this year starting on April 1, and the quota could be exhausted as early as mid-May, or even the end of April.   H-1Bs have been exhausted earlier increasingly for the past three years, and we anticipate this trend to continue this year.

  • 2012 H-1B quota exhausted on:  June 11, 2012
  • 2011 H-1B quota exhausted on:  November 22, 2011
  • 2010 H-1B quota exhausted on:  January 26, 2011

Employers can ensure that they are ready to submit cap-subject H-1B petitions by April 1 by following these steps:

1.         Educate all recruiters and human resource partners about the H-1B quotas and the small filing window.

2.         Identify all current employees who may need an H-1B cap petition, such as individuals on student status with OPT work permit (F-1) and individuals that are currently employed under other work statuses (TN, L-1, E-3, etc.) who will need to convert to H-1B.

3          Identify any potential new hires that may need a cap-subject H-1B, such as college recruits or lateral hires.  If the company is considering merging with or acquiring another company, an inventory of the people from the acquired company who will need cap-subject H-1Bs is particularly important.

4.         Work closely with your HR business partners and immigration providers to prepare a comprehensive list of everyone who will need a new H-1B cap-subject filing this year, so that it is easy to update the list without letting anyone fall under the radar.

5.         Prepare job titles, job descriptions, work location(s), and salary for each employee – this information is needed for the H-1B filing.

6.         Work closely with your immigration service provider to identify any “problem cases” early on and ensure that all H-1B fillings are ready for submission on April 1.

Although recent immigration proposals have addressed the possibility of increasing the availability of H-1Bs and a market-based adjustment process, such discussion will not affect this year’s H-1B season.  Please note that it takes an absolute minimum of seven days to prepare a new H-1B petition because of the “LCA” certification process.  Unfortunately new H-1B cap-subject cases cannot be prepared and submitted overnight.

Please don’t hesitate to discuss with your Fennemore Craig immigration team if you have any questions or if you need help getting your H-1B cap cases ready by April 1.   Be ready and don’t get left behind!

Complying With I-9 Rules After a Natural (or Man-Made) Disaster

Posted on

Hurricane Sandy wreaked havoc on the East Coast, resulting in a catastrophic loss of lives and property. Our thoughts are with the suffering victims, and we hope everyone can resume their normal lives as quickly as possible.

We often advise employers on how to respond to ICE’s audit letters and we conduct training on completing the Form I-9 properly. However, the issue of I-9 compliance following a major disaster is not something employers typically contemplate, much less prepare for.

The Government’s Advice

Although the M-274 Employer Handbook does not address issues relating to how employers should respond to disasters when it comes to completing a Form I-9, the USCIS’ “I-9 Central” website (last updated 1/12/2012) states the following:

Q. If a natural disaster or any other unforeseen occurrence destroys a company’s stored Forms I-9, what should the company do?

A. Employers whose Forms I-9 are missing and/or destroyed as a result of a natural disaster should complete new Forms I-9 to the extent reasonably possible for those employees and attach a memo stating the reason they were redone.

This answer seems clear enough, but what is considered a “natural disaster”? Hurricanes such as Sandy or Katrina would clearly be considered a “natural disaster,” but must the disaster rise to such an extreme level? Would regional flooding be considered a “natural disaster”? Would “disaster” include a fire or a flooded basement where the I-9s are stored? The “I-9 Central” answer uses the express term “natural” disaster. Are we to assume therefore that “man-made” disasters are excluded? For example, what if the fire were a result of arson? Or what if the flooding were a result of bad plumbing? It is not inconceivable that paper I-9s and their records may become irretrievably lost or damaged. Electronically stored documents that have not undergone the appropriate back-up redundancies may also be at risk if the physical location of the data server is vulnerable to a disaster.

Basic Best Practice Tips

ICE, in our experience, has acted reasonably in these situations. Where the loss of I-9s is caused by circumstances beyond an employer’s control, it is likely that ICE would be willing to work with the employer. Given that the I-9 Central website is merely instructive, and in light of the fact that official regulations are relatively silent on this issue, it is very important for employers to approach the post-disaster process reasonably. The following practice tips can help:

1. Safety Must Come First. Employers should first account for the safety of their employees and ensure that their work place is safe.

2. Return to Normalcy. Getting existing employees back to work is critical, as clients need to be serviced and bills need to be paid. After every worker is accounted for and the normalcy of work is restored, the company can address any missing I-9s and determine which ones (perhaps all) need to be replaced.

3. Clearly Inform Employees. Employers should inform all affected employees and provide clear instructions on why new I-9s need to be completed. Employees should be provided with a list of acceptable identity and employment authorization documents. Work with immigration counsel to establish what kind of notations should be made in Section 2 on the Replacement I-9s.

4. Allow Flexibility When Needed. Employees who need to complete a new I-9 should be given a reasonable amount of time to present Section 2 documents. While a minimum of three days is the normal timeline, some flexibility may be required in cases where employees are experiencing difficulties obtaining documents due to a disaster.

5. The Receipt Rule. Where employees must apply for replacement documents, the “receipt rules” should apply.

6. Fitting in E-Verify. A natural disaster likely will not affect the prior, electronic E-Verify record of existing employees because is it stored with the government. However, new employees should undergo E-Verify case initialization where E-Verify is a required part of an employer’s employment verification process.

7. Preparing a Memorandum. The above-referenced tips are dandy, but in the event of an audit in the future, an auditor will still want to know what happened. Employers should prepare a memo documenting the disaster and describing post-disaster processes. An effective memo will:

- Identify the nature and timeline of the disaster
– Describe the damage to the employer
– Describe specifically what happened to the I-9s
– Describe steps taken to identify and replace I-9s, and to notify affected employees

8. Document Retention. It is a good practice to retain an original copy of the memo while ensuring each replacement I-9 is also affixed with a copy.

9. Documenting the Disaster. Maintain other documentation about the disaster such as insurance claims and payouts, photos, news clips, etc. that can be shown to ICE in the event of an audit.

10. Notify ICE Immediately. If an employer receives an ICE Notice of Inspection after experiencing significant I-9 losses due to a disaster, it should communicate that fact to ICE as early in the investigation as possible. We can assume that ICE will be aware of any recent disasters, and unlikely to undertake any significant I-9 audits while employers are still digging out of the devastation.  However, once the dust has settled and investigations begin again, it is the employer’s duty to bring any resulting I-9 deficiencies to ICE’s attention upfront. Trying to explain missing I-9s on the day ICE comes to collect them is not something we recommend.

Planning and Preparing for the Future

Employers who have already migrated their paper I-9s to an electronic software system may find that physical disasters do not affect their electronic records in the same way. While the market may be populated with many electronic I-9 vendors, a smart electronic I-9 vendor exceeds industry standards for data backup and retention and can easily provide employers with the vendor’s disaster recovery plan for review, upon request.

Planning for disasters is an integral step to mitigating risks. Let’s hope you are well on your way to creating a disaster plan but that you never have to implement that plan.

 

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Contact: Jared Leung, jleung@fclaw.com, 602-916-5315; Matt Martinez, mmartine@fclaw.com, 602-916-5446 

 

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