Contributed by Jacqueline Lentini McCullough, April 18, 2017
While the H-1B petitions submitted for the lottery this cap season were still in transit to the U.S. Citizenship and Immigration Services (USCIS), both the USCIS and the Department of Labor (DOL) announced several measures aimed at detecting H-1B visa fraud and abuses.
Book with words Immigration Law and glasses
Beginning April 3, 2017, USCIS is taking a more targeted approach when making site visits across the country to H-1B petitioners and the worksites of H-1B employees. The focus will be on the following: (1) cases where USCIS cannot validate an employer’s basic business information through commercially available data; (2) H-1B dependent employers; and (3) employers petitioning for H-1B workers who are off-site at another company or organization’s location. Employers should be prepared to implement internal policies to mitigate risk exposure.
- On March 31, 2017, USCIS issued a memorandum making it harder for companies to bring foreign workers to the U.S. using the H-1B visa. The new guidelines require additional information for computer programmers applying for the work visa to show that the position is a specialty occupation requiring advanced knowledge and experience. The new policy is effective immediately, so it will impact the visas currently in the pipeline for the annual lottery process.
- On April 5, 2017, the DOL announced that it plans to protect American workers from discrimination efforts by abusing or misusing H-1B visas through the following measures:
- Rigorously using all its authority to begin investigations of H-1B program violators by using further investigation and if necessary, prosecution.
- Considering changes to LCA for future application cycles (application may be updated to provide greater transparency to all).
- Continue to engage stakeholders on how the program may be improved to provide better protections for U.S. workers under existing authorities or through legislative changes.
To help detect or prevent abuse, the DOL has also set up an email address which allows anyone to contact them if they feel they or someone they know have been a victim of H-1B fraud. (REPORTH1BABUSE@USCIS.DHS.GOV).
As more information becomes available regarding how these announcements will be implemented, we will keep you abreast of any changes. Under political pressure, the policy direction is for increased scrutiny of the H-1B visa category by both USCIS and the DOL. Internal compliance practices may need to be reviewed to ensure your company is following the most recent guidelines moving forward.
Contributed by Sara Zorich, January 19, 2017
We are now almost three weeks into the New Year and while it might be tempting to ease into 2017, the time is now to ensure that the required compliance updates have been made to your payroll and Form I-9 procedure to comply with the 2017 changes.
The following 21 states have updates to their minimum wage that affect your payroll for 2017:
- Alaska (Effective 1/1/17) – minimum wage increases from $9.75 to $9.80.
- Arizona (Effective 1/1/17) – minimum wage increases from $8.05 to $10.00.
- Arkansas (Effective 1/1/17) – minimum wage increases from $8.00 to $8.50.
- California (Effective 1/1/17) – minimum wage increases from $10.00 to $10.50.
- Colorado (Effective 1/1/17) – minimum wage increases from $8.31 to $9.30.
- Connecticut (Effective 1/1/17) – minimum wage increases from $9.60 to $10.10.
- Florida (Effective 1/1/17) – minimum wage increases from $8.05 to $8.10.
- Hawaii (Effective 1/1/17) – minimum wage increases from $8.50 to $9.25.
- Maine (Effective 1/1/17) – minimum wage increases from $7.50 to $9.00.
- Massachusetts (Effective 1/1/17) – minimum wage increases from $10.00 to $11.00.
- Maryland (Effective July 1, 2017) – minimum wage increases from $8.75 to $9.25.
- Michigan (Effective 1/1/17) – minimum wage increases from $8.50 to $8.90.
- Missouri (Effective 1/1/17) – minimum wage increases from $7.65 to $7.70.
- Montana (Effective 1/1/17) – minimum wage increases from $8.05 to $8.15.
- New Jersey (Effective 1/1/17) – minimum wage increases from $8.38 to $8.44.
- New York (Effective 12/31/16) –minimum wage increases from $9 to $9.70.
- Ohio (Effective 1/1/17) – minimum wage increases from $8.10 to $8.15.
- Oregon (Effective July 1, 2017) – statewide minimum wage increases from $9.75 to $10.25 (Portland Metro minimum wage increase from $9.75 to $11.25).
- South Dakota (Effective 1/1/17) – minimum wage increases from $8.55 to $8.65.
- Vermont (Effective 1/1/17) – minimum wage increases from $9.60 to $10.00.
- Washington (Effective 1/1/17) –minimum wage increase from $9.47 to $11.00.
Employers should ensure that these required changes have been conveyed to your payroll manager and payroll provider and perform an audit to ensure that the change was made effective in your payroll system.
As we reported on November 17, 2016, U.S. Citizenship and Immigration Services (USCIS) released the new version of the Form I-9 on November 14, 2016. NO LATER THAN January 22, 2017, employers MUST use the revised form (dated 11/14/2016 N) for all new hires and any employee that requires reverification of employment eligibility.
Employers should review their Form I-9 practices, ensure they are complying by using the new form by the deadline, and train employees responsible for completing the form regarding the new form requirements.
Contributed by Sara Zorich, November 17, 2016
On November 14, 2016, the U.S. Citizenship and Immigration Services (USCIS) released the new version of the Form I-9. The Form I-9 is the form employers are required to complete for each newly hired employee in the United States to verify the employee’s identity and eligibility to work in the United States.
Employers may continue using the Form I-9 dated 03/08/2013 N only through January 21, 2017. NO LATER THAN January 22, 2017, employers MUST use the revised form (dated 11/14/2016 N) for all new hires and any employee that requires reverification of employment eligibility.
The new Form I-9 contains some revisions that should be noted:
- The instructions are now a separate document containing 15 pages (including more in depth instructions for employees/employers and a list of proper abbreviations for Section 2 documents);
- A field in Section 1 has been changed from “other names used” to “other last names (if any);”
- Section 1 was changed for some foreign nationals to enter EITHER the Alien Registration Number/Form I-94 Number OR Foreign passport number/Country of Issuance (not both);
- New Section 1 requirement for employees – employees MUST indicate whether or not they used a preparer/translator in a new field;
- There is now the ability for multiple translators/preparers if such were used;
- The instructions indicate there should be NO blank fields in Section 1; thus, if an employee does not complete a field in Section 1 because they are not required to or it is not applicable to them they MUST put N/A in the field;
- New Section 2 requirement for employers – employers must complete a new Citizenship/Immigration Status field at the top of Section 2 where the employer needs to input the number corresponding to the employee’s citizenship/immigration status from Section 1 (i.e. #1 = citizenship);
- The new instructions relating to Section 2 indicate that when a document presented by an employee does not contain a document number and/or expiration date, the employer MUST put N/A in the applicable field;
- The new form is a “smart form” with enhanced dropdown features to assist in completion. However note, the new form is NOT an electronic form in compliance with Form I-9 electronic regulations. Thus, anyone completing any part of the new smart form using adobe acrobat will still need to print the form, have the employee/employer provide a handwritten signature and maintain a copy of the original Form I-9. Remember, employees must complete Section 1 and employers complete Section 2. Thus, employers may NOT pre-populate any portion of Section 1.
The revised Form is available here.
Employers should review their current Form I-9 policies and practices to ensure they have proper Form I-9 compliance procedures in place. Furthermore, employers should plan on how and when they will implement the new Form I-9 prior to the January 22nd deadline.
Contributed by Jacqueline Lentini McCullough
U.S. Citizenship and Immigration Services (USCIS) announced on April 7, 2016, that it received significantly more H-1B petitions than allowed under the statutory cap for fiscal year (FY) 2017. U.S. businesses use the H-1B program to employ foreign workers in occupations that require highly specialized knowledge in fields such as science, engineering and computer programming. The number of petitions filed this year, 236,000, exceeded last year’s high of 233,000 petitions.
The USCIS began to issue receipt notices using the random, computer generated selection process or “lottery” for H-1B petitions on April 9, 2016. The random selection process is completed for the two categories of H-1B petitions: (1) U.S. Master’s or higher degree petitions (20,000 petitions accepted) and (2) Regular H-1B cap subject cases (65,000 petitions accepted). The USCIS will reject and return all H-1B petitions not selected in the lottery. The rejected H-1B petitions will be returned with uncashed checks to the employer or attorney of record. For regularly filed H-1B petitions, it will typically take the USICS a few weeks to begin issuing receipt notices in May. USCIS will begin adjudicating petitions filed under the premium processing clock no later than May 16, 2016. Normally, filing a petition with Premium Processing means it will be adjudicated within fifteen calendar days, but for cap subject petitions USCIS cannot honor this time frame.
USCIS will continue to accept and process petitions that are exempt from the H-1B cap. For example, petitions filed on behalf of current H-1B workers who have previously been counted against the cap will not be counted towards the FY 2017 H-1B cap. USCIS will continue to accept petitions filed in the following situations:
- To extend the amount of time a current H-1B worker may remain in the US;
- To change the terms of employment for H-1B workers;
- To allow currently authorized H-1B workers to change employers; and
- To permit current H-1B workers to work concurrently in a second H-1B position.
Contributed by Sara Zorich
Since Congress has recessed for the holiday break, no immigration reform bills and/or comprehensive immigration reform bill is slotted for vote in 2013. It appears that there will be a major push for the topic to be addressed during 2014. We anticipate that mandatory E-Verify will be a component of any immigration bill passed, thus all employers must be cognizant of pending immigration reform. We will keep you updated of the developments in 2014.
December has been a busy month for E-Verify updates. The U.S. Citizenship and Immigration Services (USCIS) issued a number of announcements regarding updates to E-Verify policies and procedures:
- There is a new page for employers on E-Verify that explains the role of E-Verify Monitoring and Compliance. (http://www.uscis.gov/e-verify/employers/monitoring-and-compliance) Employers should review this information and note that their usage of E-Verify is being monitored. Suspected misuse or abuse of the program is being referred to appropriate agencies for enforcement. Misuse/abuse of the program could lead to an employer to incur fines, back wage payments and/or debarment from the program.
- On December 8, 2013, E-Verify released new Memorandums of Understanding (MOU) for those employers participating in E-Verify. The revision date noted on the new MOUs is June 1, 2013. The effective date of the MOU for new users is December 8, 2013. Existing E-Verify employers/users do not need to execute a new MOU but are bound by the new or revised MOU that applies to their access method. The effective date of the new MOU for existing users is January 8, 2014. A copy of the new MOUs can be found at: http://www.uscis.gov/e-verify/publications/memos/publications-memorandums. Employers are encouraged to review the new MOU applicable to them to ensure they are aware of their new and continued obligations under the E-Verify program.
- The E-Verify participation posters have been modified, requiring less ink while printing. Employers currently enrolled in E-Verify do not need to print these new posters so long as they printed and have the prior versions posted in their workplace. New employers signing up to E-Verify will be prompted to download, print and post the English and Spanish Notice of E-Verify Participation and the Office of Special Counsel Right to Work posters after enrollment and completing the online tutorial. Employers can access the posters after logging in to E-Verify.