Klasko Immigration Law Partners’s annual spring seminar will be held on Tuesday, April 29, 2014. Join us!
This past fiscal year, H-1B numbers were exhausted within the first five days of filing. The Alliance of Business Immigration Lawyers (ABIL) anticipates that the numbers will run out quickly again this year.
The agency is reviewing extensions of L-1 petitions and L-1 job duties and salaries to determine whether they are consistent with the L-1's classification.
Among other things, the court noted that the Department of Labor is not required to consider employer hardship but instead must balance the interests of ensuring an adequate labor force with protecting the jobs of U.S. workers.
The ARB ordered Greater Missouri Medical Pro-Care Providers, Inc., to pay thousands in back wages to 29 H-1B workers for various violations.
If a student's OPT STEM application was denied solely on the basis that he or she intended to work as a volunteer or unpaid intern, the student should contact the Service Center that issued the denial.
Applicants may use previous versions of the form until May 5, 2014
Rankings, awards, upcoming and recent speaking engagements, publications, and what you may have missed.
1. Save the Date: 2014 Annual Spring Seminar is April 29!
Mark your calendars for Klasko Immigration Law Partners’ annual Spring Seminar to be held on Tuesday, April 29, 2014 from 9:30 am – 1:00 pm at The Union League of Philadelphia.
Topics will include:
Prevailing Wage Determinations and New Issues with PERM
Post-approval, SAVE issues, Social Security, Drivers Licenses
Worksite Enforcement and Avoiding Discrimination Update
And much more!
We invite professionals involved in employment-based immigration to attend! There is no cost for this program. Look for your e-invitation with registration details in mid-March.[Back to Top]
2. H-1B Alert: Filing Starts April 1 for Next Fiscal Year
Congress sets a limit on the number of H-1B visas available each year. This past fiscal year, H-1B numbers were exhausted within the first five days of filing. We anticipate that the numbers will run out quickly again this year, forcing a potential lottery.
If U.S. Citizenship and Immigration Services (USCIS) receives more petitions than it can accept, it will use a lottery system to randomly select the number of petitions filed during that period to reach the numerical limit. USCIS did this last year. The agency will reject petitions that are subject to the cap but not selected, as well as petitions received after it has the necessary number of petitions needed to meet the cap.
Every time an employer hires an individual for a specialty occupation, an H-1B number must be available. (An exception arises where the individual is already with another employer in H-1B status, but this employer cannot be a university/college or a nonprofit government research organization.) When numbers run out, the employer must wait until the next fiscal year to file for an H-1B. In some cases, there may be no other nonimmigrant visa option for the individual and the individual may have to leave the U.S. or, at least, not be able to work for the employer until a year later.
While the H-1B numbers for the next fiscal year do not become available again until October 1, 2014, employers may file petitions to request numbers as early as six months in advance, beginning on April 1, 2014. That date signals the start of what has become an annual race to get petitions filed as early as possible to ensure acceptance before the cap of 85,000 visas is reached. The 85,000 cap includes the basic cap of 65,000, plus an additional 20,000 H-1B visas available to foreign nationals who have earned an advanced degree (master’s or higher) from a U.S. university.
As in past years, some foreign nationals are not subject to the H-1B cap, including individuals who already have been counted toward the cap in a previous year and have not been outside the United States subsequently for one year or more. Also, certain employers, such as universities, government-funded research organizations, and some nonprofit entities are exempt from the H-1B cap. All other employers should be aware of the H-1B cap.
We encourage employers to review their hiring needs and determine whether they should initiate H-1B processing for anticipated hires, or even recent hires in other nonimmigrant status now.
You should consider filing an H-1B petition this April if:
You want to hire an individual who is not in H-1B status already.
You are hiring an individual who is already in H-1B status but is currently employed with a college/university (this situation requires a new H-1B number).
You are hiring an individual who is already in H-1B status but is with a nonprofit government research organization (this situation requires a new H-1B number).
Your employee is in F-1 student status.
Your employee is in L-1B status and is considering seeking legal permanent residence in the United States.
Your employee is in another nonimmigrant status and may want to seek legal permanent residence in the United States.
Clients should keep their attorneys apprised of all new hires needing H-1B status before October 1, 2014. Examples would include F-1 students hired with optional practical training that expires before April 1, 2014, or current L-1B nonimmigrants who will have spent five years in that status as of any date before October 1, 2014.[Back to Top]
3. USCIS Expands Site Visits to Review of L-1 Petitions
USCIS’s Fraud Detection and National Security (FDNS) Directorate has expanded its employer site visits to include review of L-1 post-adjudication petitions. Recent reports indicate that the agency is reviewing extensions of L-1 petitions and L-1 job duties and salaries to determine whether they are consistent with the L-1’s classification as an executive or manager (L-1A) or specialized knowledge worker (L-1B).
USCIS may conduct announced or unannounced site visits as part of the visa petition process. Employers have been reporting that the FDNS inspectors’ queries are similar to those made in H-1B site visits, particularly about whether wages are appropriate for the visa application, visa category, work location, hours, job duties, title, and experience of the employee. The employee may be questioned directly about his or her job duties.
FDNS’s site visits are funded by the $500 anti-fraud fee paid with H-1B and L-1 petitions. Until recently, such compliance audits have primarily involved H-1B employers. More than 17,000 such visits occurred in FY 2011, which was an increase over 2010.
USCIS’s Office of Inspector General in August recommended, among other things, that USCIS make a site visit a requirement before extending a one-year new office L-1 petition. USCIS concurred and said it expected to begin conducting post-adjudication domestic L-1 compliance site visits in FY 2014. The report is available here.[Back to Top]
4. Third Circuit Rules That H-2B Regulation on Minimum Wage Is Valid
The U.S. Court of Appeals for the Third Circuit ruled February 5, 2014, that a Department of Labor (DOL) regulation on the minimum wage required under the H-2B temporary worker visa program was validly promulgated.
The appellants were a group of associations representing employers in nonagricultural industries. Joining them was another group of individuals and organizations representing foreign and U.S. workers affected by the H-2B program who had successfully challenged a predecessor to the current regulation. The appellants argued that the DOL exceeded its authority by enacting the regulation, which governs the calculation of the minimum wage a U.S. employer must offer to recruit foreign workers under the H-2B program. The employers stood to face higher labor costs as a result of the regulation. The District Court granted summary judgment for the DOL and its codefendants (the Secretary of Labor, the Department of Homeland Security (DHS), and the Secretary of Homeland Security).
Among other things, the court noted that the DOL is not required to consider employer hardship but instead must balance the interests of ensuring an adequate labor force with protecting the jobs of U.S. workers. The court also disagreed with appellants’ contention that the DOL must use a four-tier wage methodology from the H-1B program as the prevailing wage calculation mechanism in the H-2B program. The court found the actions of the DOL and DHS reasonable with respect to application of their respective authorities regarding the H-2B program and what constitutes permissible consultation between agencies. The court also noted that the DOL promulgated the wage rule after “reasoned analysis,” which is required. The court noted that the DOL had discussed the 300 comments submitted in an entire section of the final rule.
The related regulations and litigation have a complicated history that is summarized in the Third Circuit’s decision. Among other things, the effective date of the 2011 regulation was moved forward and backward, and its implementation was defunded by Congress. As a result, the DOL fell back on an earlier 2008 rule that a district court had found procedurally invalid. That court had ordered the DOL to vacate the earlier rule and come into compliance. The DOL issued a final interim rule in April 2013, effective immediately, which made some changes to the 2011 rule. Congress later lifted the appropriations ban on the 2011 rule as of January 17, 2014.
The regulation recently declared valid by the Third Circuit was published at 76 Fed. Reg. 3452 (Jan. 19, 2011) (20 C.F.R. § 655.10) is available here. The decision, Louisiana Forestry Association v. Secretary of Labor, is available here. Additional litigation continues regarding whether the DOL has the authority to issue supplemental prevailing wage determinations under the 2013 interim final rule.[Back to Top]
5. DOL Administrative Review Board Partly Affirms ALJ's Decision in H-1B Wage Complaint
In a recent case decided by the Department of Labor’s Administrative Review Board (ARB) on January 29, 2014, the ARB affirmed an administrative law judge’s (ALJ) finding that the scope of a Wage and Hour Division investigation initiated in response to a complaint is not limited to the allegations in that complaint. The ARB also affirmed the ALJ’s evidentiary ruling on the availability of pre- and post-judgment interest on awards in H-1B cases. The ARB reversed the ALJ’s finding that discrete violations occurring outside a 12-month period before the filing of a complaint are actionable. The deputy chief administrative appeals judge concurred in part and dissented in part, agreeing with the majority’s ruling in the case of the initial complainant but dissenting from the majority’s ruling in all other respects.
The ARB ordered Greater Missouri Medical Pro-Care Providers, Inc., to pay thousands of dollars in back wages for various violations to 29 H-1B workers. The case started when an H-1B nonimmigrant employee filed a complaint in 2006 alleging that Greater Missouri failed to pay her the required wages under its labor condition application for time off due to a decision by the employer, had illegally made deductions from her wages, and had required her to pay an illegal penalty for stopping work before an agreed-upon date.
The decision is available here.[Back to Top]
6. ICE Releases SEVP Guidance on Errors in Denials of STEM OPT Extensions
U.S. Citizenship and Immigration Services (USCIS) announced on February 6, 2014, that some optional practical training (OPT) science, technology, engineering and math (STEM) extension applications were denied in error. USCIS said they were not adjudicated in accordance with applicable Immigration and Customs Enforcement (ICE) Student and Exchange Visitor Program (SEVP) OPT policy guidance. USCIS sent the alert to notify affected designated school officials and to provide instructions.
USCIS said that some OPT STEM extension applications were denied in error because the student applicants intended to work as volunteers or unpaid interns during their extension periods. To prevent this problem from happening again, USCIS’s Service Center Operations (SCOPS) instructed all USCIS Service Centers to follow ICE SEVP’s policy guidance regarding work as a volunteer or unpaid intern.
The alert notes that SEVP’s OPT 2010 policy guidance states that a student may work as a volunteer or unpaid intern for at least 20 hours per week. The alert says that if a student’s OPT STEM application was denied solely on the basis that he or she intended to work as a volunteer or unpaid intern, the student should contact the Service Center that issued the denial by emailing the applicable dedicated student emailbox. The student should provide his or her full name and the USCIS receipt number relating to the denied application.
The alert is available here.[Back to Top]
7. USCIS Revises Naturalization Application
As part of its forms improvement initiative, U.S. Citizenship and Immigration Services (USCIS) released a revised Form N-400, Application for Naturalization, on February 4, 2014. The eligibility requirements for naturalization have not changed.
The revised N-400 includes additional questions relating to good moral character and to security, to conform with the Intelligence Reform and Terrorism Prevention Act of 2004 and the Child Soldier Prevention Act of 2008; “clearer and more comprehensive” instructions that highlight general eligibility requirements and provide specifics on how to complete each part of the application; and 2D barcode technology at the bottom of each page to enable USCIS to scan data for direct input into USCIS systems.
Applicants may use previous versions of the form until May 5, 2014, at which time USCIS will begin rejecting and returning previous versions of the N-400.
USCIS will hold a stakeholder engagement on February 20, 2014, about the revised form. For more information on the teleconference, click here.[Back to Top]
8. Government Agency Links
Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State’s latest Visa Bulletin with the most recent cut-off dates for visa numbers:
9. Klasko News
Upcoming Speaking Engagements
On February 28, William A. Stock (Bill) will be participating at the 2014 AILA Federal Court Immigration Litigation CLE Practicum in Las Vegas, NV. Bill, AILA 2nd Vice President, will be a panelist on “Challenging Benefits Adjudications in Federal Court” and will discuss utilizing federal court as a way of challenging erroneous or improper USCIS adjudications on petitions and benefits applications. Topics to be discussed include scope of APA review and standards of review; time for filing; exhaustion of administrative remedies; proper plaintiffs and defendants; and surviving a motion to dismiss.
H. Ronald Klasko (Ron) will speak at the Los Angeles County Bar Association’s EB-5 Symposium in Los Angeles, CA on March 8, 2014. Ron will present “Federal Court Review of I-526/I-924 Adjudications.” For information on the EB-5 visa option, visit www.eb5immigration.com.
Elise A. Fialkowski will be speaking at the AILA Philadelphia Chapter’s 2014 CLE Conference on March 14, 2014. Elise will be a panelist on “Keeping Employers “Compliant”: Preparing for Agency Investigations: FDNS and DOL Wage & Hour.” For more information on this program, write to Elise at firstname.lastname@example.org.
Bill will offer an immigration information session at Temple University on March 31, 2014.
Ron will be speaking at the Wharton School of the University of Pennsylvania on April 3. He will also be conducting a PERM Workshop at the university on the same day.
On April 24 and 25, Elise will attend PBI’s 20th Annual Employment Law Institute seminar at the Pennsylvania Convention Center. Elise will speak on “Immigration Law 101, What Every Employment Lawyer Should Know.” More than ever, immigration is a topic that needs to be addressed by employment counsel. This session will provide an overview of immigration law in the United States including: the US immigration system, current trends and developments; employment based immigration/sponsorship requirements; key visa categories and procedures; nonimmigrant (temporary) visas; immigrant (permanent) visas; naturalization; immigration enforcement and employer sanctions; and corporate immigration policies and best practices.
Recent Speaking Engagements
Bill visited Pennsylvania State University’s University Park campus and Penn State Hershey Medical Center on February 12. He presented on H-1B visas, H-1B quota, options for dealing with H-1B quota, quota-exempt employment, and strategies to enhance chances of getting H-1B, among other topics. To view the PowerPoint presentation used at these programs, see the events calendar on our website.
Ron and Bill spoke at the AILA South Florida Chapter 35th Annual Immigration Law Update in Miami, FL on February 6 and 7. Ron was a panelist in the plenary session “Overview of Recent Developments in Employment Based Visas.” Ron and Bill presented “The Road to Residence: Finding the Path of Least Resistance” and Bill served as co-panelist on “New Teeth: Employer Sanctions and E-Verify.” For more information on these sessions, contact Bill or Ron.
Daniel B. Lundy’s (Dan) recently authored article “Funding Franchises from Abroad: EB-5 Financing for Franchisees and Franchisors” was published in The Legal Intelligencer on February 18, 2014. In this article, Dan examines the use of EB-5 funding in the context of franchise businesses, including some of the benefits and some of the potential pitfalls that a franchise operator might encounter by participating in the EB-5 program. For more information, email Dan at email@example.com.
“India, the Next EB-5 Frontier” written by Rohit Kapuria was published in EB-5 Investors Magazine on February 26, 2014. In this article, Rohit explains how India remains an untapped EB-5 market and articulates challenges that potential EB-5 developers will face in marketing investment opportunities. Rohit argues that these challenges are not, however, insurmountable and that there is a strong opportunity for expanding an EB-5 network to India. To read the full article, see http://www.eb5investors.com/magazine/article/india-next-eb5-frontier.
What You May Have Missed