The H-1B visa category is one of the most used visa classifications by US employers and is available to professionals that will work in a specialty occupation that generally requires a minimum of a bachelor’s degree or its equivalent.

Last year, the number of H-1B visa petitions filed in the first 5 days exceeded the entire H-1B visa allotment.  Hundreds of employers were unable to hire all the foreign-based professional talent that they required, and their petitions went into a lottery pool, left to chance and uncertainty.

Given that we are seeing improvements in the economy, it is anticipated that this filing season will be the most competitive one in many years.  Just to review…There is a limit of 85,000 H-1B visas available each fiscal year, 20,000 of which are reserved for individuals who have graduated with an advanced degree (a master’s or higher degree) from a US college or university that is  accredited by a nationally recognized accrediting agency or association. Pre-accreditation status is also acceptable. Secondly, the school must be a public or other nonprofit institution. If these requirements are not met, the candidate will not qualify for the master’s degree exemption. It is also to be noted that employers stand a stronger chance obtaining advanced degree petition approvals, even if the position being offered only requires a bachelor’s degree or its equivalent.

Our position is that it’s just not too early to start assessing where you’d like to add personnel and to start working with your immigration provider on such important matters as:

1)  Credential evaluations for prospective employees with foreign degrees

2)  Thorough job descriptions indicating the percentage of time spent on core areas of the position

3)  Needed updates to your corporate stats and profile information

4)  Updating intake questionnaires for H-1B employees

5)  For new employers who have previously not filed H-1Bs and are not in the databases accessed by government agencies, be prepared for a request to submit to the Department of Labor iCERT system for Labor Condition Applications (LCA) a copy of your IRS letter confirming your EIN number.  It is also not unusual for them to request your corporate formation documents before they will certify your LCA.  H-1B petitions will be denied if not accompanied by a certified Labor Condition Application.  It might be advisable to file your LCA’s in late January or February even though this will shorten a few months from the 3-year initial approval.

If the prospective employee is a national of Canada, Mexico, Australia, Singapore or Chile you have other options to consider.  Canadian and Mexican professionals qualify for TN status (pursuant to Trade NAFTA).  You can file anytime of the year under this classification; there are no quotas, applicants can apply right at the border, and the 3-year period of stay can be extended indefinitely.  Here is a link to the list of occupations that qualify for TN classification.

Australian nationals are eligible for E-3 status in 2-year increments and can consular process their applications, with unlimited extensions available.  A Labor Condition Application is required for these cases.  Nationals from Singapore and Chile qualify according to Free Trade Agreements for the H-1B1 classification.  There is a quota for this category that has never been reached.

If you are contemplating the hire of a professional who currently holds H-1B status with another employer, they are exempt from the quota and can start working for you immediately even though the petition is pending approval.

We encourage employers to call us with any questions that you might have or if you’d like to retain our firm to handle your H-1B filings.  Our email: info@immigrationcompliancegroup.com or by phone 562 612.3996.

Back in October of this year, President Obama stated “Immigration reform may not pass, but that’s no reason to give up the fight.”

The pro-immigration reform movement has united in a strong front and is the most broad and diverse that we’ve ever observed. The strategic and impassioned outcry from immigration activists are being heard in the hallways of Congress, in state offices across the country, groups fasting for immigration reform, holding prayer vigils, outbursts taking place in the middle of President Obama’s speeches, protestors chaining themselves to gates of federal buildings, and more –  a full court press on the GOP. “The immigration reform movement has emerged as a relentless force that is prepared to hold all parties accountable in 2014,” states Julia Preston in her NY Times article. 

The Background

In June 2013, the Senate passed their version of Comprehensive Immigration that doesn’t please everyone, but its passage was a victory for those who have been working on the issue for years and watched immigration reform fail many times over. It addresses undocumented immigrants, legal immigration, border security, employer hiring and an entry-exit system so the government knows if foreign nationals leave the country when their visa expires. The path to citizenship is long — 13 years or more — and arduous, but advocates are pleased that it would exist at all, given opposition from many Republicans and the failure of bills to carve out such a path in the past. Dreamers, young undocumented immigrants who came to the U.S. as children, would be able to earn green cards in five years, as would some agricultural workers. The bill adds huge increases in border security that catered to unsure Democrats and Republicans.

Although 3 out of 4 Americans want Congress to pass immigration reform with a path to citizenship, Speaker John Boehner and the House Republican Leadership are using stalling tactics and excuses to block reform from getting a vote on the House floor. There’s been no progress – total gridlock in the House of Representatives, while we’re told repeatedly that they are approaching CIR in a piecemeal manner and that all the individual bills will eventually be rolled into one comprehensive bill.  The president recently commented, “If they want to chop that thing up into five pieces, as long as all five pieces get done, I don’t care what it looks like.”  We ask, when will his happen?  Sadly, not this year. 

The question is will the Tea Party continue to set the agenda for the House GOP?   Mounting frustration with the Tea Party may lead mainstream Republicans to move forward on immigration reform without them.  In order for the GOP to win Hispanic and Asian voters, it is mandatory that they address the broken immigration system. There has been little to no (and at times incredibly awkward, contradictory and antagonistic) outreach and messaging to the immigrant community by the Republican Party. At this point in time, there is fear that if 11 million are granted citizenship, they’ll vote Democratic.  We will have to see how this continues to play out moving into 2014.

Recently, On December 3, 2013, Speaker John Boehner announced the hiring of Rebecca Tallent to serve as immigration advisor in his office. Tallent worked as a staffer and later as Chief of Staff for Sen. John McCain. She left McCain’s office earlier this year to become the immigration policy director for the Bipartisan Policy Center where she also chaired the organization’s immigration task force.  She’s helped draft amnesty bills for Sen. McCain in the mid-2000s and, in her role at the Bipartisan Policy Center, helped develop an immigration framework that includes amnesty for illegal aliens and massive increases in legal immigration. Her new appointment in Speaker Boehner’s office does send a positive signal that he’s laying the ground work to pass massive immigration reforms in 2014.  However, NumbersUSA President Roy Beck said. “His new hire has done almost nothing the last decade except work for giant increases in foreign labor. But Boehner still has to persuade at least 118 Republican House Members that their constituents would be okay with an expansion of immigration.  We are hopeful that the appointment of Rebecca Tallent will play an essential role in lifting immigration reform over the finish line in early 2014.

More reading…

Video:  “Congress Fails to Tackle Immigration Reform”

Immigration Reform Advocates Descent on Capitol HIll; visiting 200 Offices

Other Articles on Immigration Reform

The Department of Homeland Security issued an update today that the Department of Homeland Security (DHS) is working to resolve this issue and will have a fix on September 14, 2012.

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Without any advance notice, the CBP has made changes that affect the I-9 form by no longer issuing paper I-94 cards and no longer stamping I-20 forms for F and M student visas, or form DS-2019 Certificate of Eligibility for Exchange Visitors and Foreign Students, affecting both J and F visa holders.

Customs and Border Protection is in the process of automating traveler arrival records (I-94 cards) to streamline passenger processing. The current processing time for entering foreign visitors’ travel information into the I-94 database is 30 days or more. This does not affect the majority of foreign travelers visiting for business or leisure and will not affect any visitor’s record of departure.  But it will greatly influence how you document Section 2 of the I-9 form for the nonimmigrant employee that produces a List A foreign passport with an I-94 entry card.

PLEASE NOTE: With the newly proposed 2-page I-9 form, no guidance has as yet been provided regarding the I-94 card as an acceptable List A document in concert with a foreign passport. We will keep you posted concerning these changes as soon as we receive new guidance. In the meantime, we recommend that you print out this information and attach it to any new employee’s I-9 form who would normally produce an I-94 record (but doesn’t have one and is waiting to access an electronic version) along with a foreign passport as a List A document.

CBP has suggested the following:  Nomiggrants may need to prove their legal-visitor status within the first 30-45 days of their U.S. stay to:

Employers;
Motor vehicle registration or drivers’ licensing agencies;
The Social Security Administration;
U.S. Citizenship and Immigration Services; or
Universities and schools.

If during this timeframe, visitors need to provide evidence of legal status they should include the following:

Unexpired foreign passport; and
Country of Citizenship
CBP Arrival/Departure Record, Form I-94 (if issued)

Contact CBP for more information or with questions.

Tel: (877) CBP-5511
TTD: (866) 880-6582

If a state benefit granting agency rejects an unstamped Form I-20/DS-2019, applicants may make an appointment with USCIS online through InfoPass and take their Form I-20/DS-2019 to their local USCIS office to be stamped. ( InfoPass ) This transitional step will end on Nov. 21, 2012.

International students and scholars who encounter issues with their state or federal benefit applications should continue to contact the Immigration and Customs Enforcement Student and Exchange Visitor Program (SEVP) at (703) 603-3400 or SEVP@dhs.gov.

Please feel free to contact our office should you have questions concerning these changes, 562 612.3996 or email info@immigrationcompliancegroup.com

It was announced that the very successful Global Entry Pilot Program designed for expedited  immigration and customs processing for pre-approved, low risk frequent international travelers in some 20 US international airports, as well as pre-flight inspection stations at selected Canadian airports, will now be a permanent CBP program as of March 7, 2012.  CBP will also expand the program to include children under the age of 14, who were previously ineligible to participate.

US citizens who are members of the CBP Global Entry, NEXUS, and SENTRI Trusted Traveler programs are eligible to participate in TSA’s program, as well as legal permanent residents, Mexican citizens, and Dutch citizens who are members of Privium, the Netherlands’ trusted traveler program. Expansion to other countries is anticipated as a part of President Obama’s recent executive order aimed at spurring U.S. tourism.

At airports, program participants proceed to Global Entry kiosks, present their machine-readable passport or U.S. permanent resident card, place their fingertips on the scanner for fingerprint verification, and make a customs declaration. The kiosk issues the traveler a transaction receipt and directs the traveler to baggage claim and the exit.

Benefits of signing up:

• No processing lines
• No paperwork
• Access to expedited entry benefits in other countries
• Available at major U.S. airports
• Reduced wait times

Should you have any questions or wish assistance with the application process please contact our office.

The Global Entry program has been extremely successful and enables expedited processing of pre-approved, low-risk, frequent travelers arriving in the USA through some 131 kiosks set up at 20 airports. The Kiosks have been used 1.7 million times, saving CBP officers over 36,450 inspection hours—staff hours that CBP has then re-allocated to expedite regular passenger queues.

The program will now expand to 4 more airports:  Minneapolis, Charlotte, Denver and Phoenix, making the Global Entry program and expedited clearance available in airports that service approximately 97% of international travelers.  For more , and here, too

It is not a surprise to see where the priorities are in the spending bill making its way through the House of Representatives.  The House Appropriations Committee passed a Bill this week that will go to the floor of the House possibly next week.  We highlight the money trail here:

USCIS:  Approximately 1/3 of the requested funding was approved

1. Fee Reform: The Administration’s fee reform effort would receive no funding.  The Administration requested $207 million for the processing of refugee and asylum applications, for which there is no charge.
2. Immigrant Integration: The Administration requested $19.75 million for immigrant integration programs and for the operations of the Office of Citizenship.  The Committee rejected the request.  In its report on the bill, the Committee noted that it “supports the efforts of the Office of Citizenship to promote civic education through the naturalization process.”  Not, apparently, enough to provide funding for this purpose.

Enforcement

While the Committee couldn’t find any money for immigrant integration, costs concerns were not a factor in enforcement budgets.  Customs and Border Protection got $8.77 billion—$44 million more than the President asked for in his budget, and more than half a billion dollars more than allocated in FY 2011.  Within that amount, border security between ports of entry gets $3.62 billion, $191 million more than last year—enough to bring the Border Patrol up to 21,370 agents.

ICE was allocated $5.5 billion, $25.6 million more than the President requested and $84.8 million more than in 2011.  Secure Communities got $194 million, $10 million more than the President requested.  ICE Detention and Removal operations were awarded $2.75 billion, $26.7 million more than the President asked for, to raise the minimum number of detention bed spaces that ICE must maintain on a daily basis from 33,400 bed spaces to 34,000—and the Committee directs ICE “to intensify its enforcement efforts and fully utilize these resources.”

As part of his enforcement-only agenda, Representative Lamar Smith (R-TX) is expected to introduce a bill that would make the use of the E-Verify electronic work authorization verification system mandatory for all businesses in the U.S.

There is still no sign that Republicans who now control the Judiciary Committee (having jurisdiction over immigration) will attempt to seriously address any legal or illegal immigration reform to fix the broken system.  Despite billions of dollars being spent on immigration enforcement, and enforcement “benchmarks” set in the last round of immigration reform, legislative efforts having been largely met and the  Republicans continue to call for yet more enforcement.  They continue to move the goalpost.

For more information on this subject, we link to, “E-Verify Without Reform Cannot Succeed,” and listen to a recording of a National Immigration Forum briefing for reporters on the E-Verify program.

For more on this as well as the mandatory E-Verify Bill expected in June, we link to the National Immigration Forum’s Policy Update

One of Mississippi’s most successful and largest private employers pled guilty in federal court last week to knowingly violating federal criminal conspiracy laws in its employment of illegal aliens at the company’s electrical transformer plant in Laurel, MS following an investigation by ICE and Homeland Security Investigations (HSI).  The company agreed to pay a $2.5 million fine, which is larger than normal for such a conviction, the U.S. Justice Department said in a news release.

Immigration agents detained more than 600 illegal immigrants at Howard Industries’ electrical transformer plant during a massive raid on Aug. 25, 2008. Those detained in the raid came from countries including Brazil, El Salvador, Germany, Guatemala, Honduras, Mexico, Panama and Peru, and most of them were deported, though a few were convicted on identity theft charges for using fraudulent documents and providing fake papers to other workers.

The company said in a statement that it was pleased to resolve the investigation “based on the actions of its former human resources manager Jose Humberto Gonzalez.”  Gonzalez is the only company executive who has been charged in the case. He pled guilty in December 2009 to conspiracy and admitted that he hired hundreds of people who he knew were in the country illegally.  

The company had repeatedly denied allegations that it had knowingly hired individuals without work authorization, putting all of the blame on its HR manager, Jose Humberto Gonzalez, who was charged in a 25-count indictment with conspiracy and employee verification fraud.   He faces a maximum of 5 years of imprisonment on the conspiracy charge and on each employee verification fraud count. He also faces a minimum of 2 years imprisonment for the aggravated identity theft charge and possible fines up to $250,000.

Howard Industries was charged with knowingly and willfully conspiring to encourage and induce undocumented workers to reside in the US, and knowingly conspiring to conceal, harbor and shield from detection such workers.  As it turned out, Howard Industries waived indictment and agreed to plead guilty to the one-count felony of  conspiracy to commit offense or to defraud the United States which calls for a term of not less than one and not more than 5 years of probation and a fine of up to $500,000. However, this fine was substantially enhanced to $2.5 million due to the nature of the crime (harboring), the number of workers involved (100 or more), and the size of the company.

Apparently Gonzalez would routinely hire unauthorized workers who presented false identity documents, including green-cards and Social Security cards, and then would complete the I-9 with the fake information.  Gonzalez was also accused of submitting SSNs to the Social Security Administration to verify their numbers and then disregarding the results if they came back as invalid.

E-Verify doesn’t protect against identify fraud: Howard Industries was using E-Verify and ran every applicant through the system, but E-Verify doesn’t detect identify fraud and shouldn’t be used as a substitute for I-9 compliance.  The case at hand teaches a lesson about the E-Verify program, in that using E-Verify doesn’t insulate an employer against penalties and doesn’t provide a safe harbor against worksite enforcement.

So what’s an employer to do?

If you are contemplating ‘going electronic’, whether that be an electronic I-9 system or enrolling in the E-Verify program, it is imperative that you find out what condition your I-9’s are in.  This is done by having a qualified immigration attorney that specializes in compliance issues perform either a partial or full audit on your I-9’s so that the reoccurring errors and violations buried in your paperwork can be identified, corrected, and your staff properly trained.  We additionally encourage our clients to work with us in establishing policies and guidelines as to how they want to process and manage the I-9 function at their organization and document this, and make sure that everyone involved with the process is trained and fully understands your internal policies.

We link to the ICE press release

For more information on our employer compliance services and solutions

During this holiday season when travel increases, it’s important to remember what the process is for international travelers when you’re inspected at the airport or on land by Customs and Border Protection(CBP) officers.  They have posted a very informative list of FAQ’s which we link to.

The most important thing to remember if you are a non-citizen is the CBP Officer must determine why you are coming to the United States, what documents you may require, if you have those documents, and how long you should be allowed to initially stay in the United States. These determinations usually take less than one minute to make. If you are allowed to proceed, the officer will stamp your passport and customs declaration form and issue a completed Form I-94 to you. A completed form I-94 will show what immigration classification you were given and how long you are allowed to stay.

Note that completion of the paper Form I-94W remains a requirement at the port of entry for Visa Waiver Travelers even if a travel authorization has been obtained via the Electronic System for Travel Authorization.  For more information on ESTA visit the Electronic System for Travel Authorization page.

Should you have any questions about business or tourist visas, please contact our office.

In a very interesting Blog post on The Hill (the blog for Congress), Rep Dana Rohrabacher reports that the Obama administration’s reaction to Arizona’s efforts to get an untenable situation under control, has been disappointingly predictable and dismissive of the majority of the American people who support what Arizona is doing.   He further states, “At every turn this administration has attempted to vilify Arizona’s efforts to enforce the law from threats of litigation by the Justice Department to our President allowing Mexican President, Felipe Calderon, to lecture us  about our immigration laws from the floor of the U.S. House of Representatives.”

Rep Rohrabacher asserts that illegal immigration in the US is big business  for Mexico. After oil, the number two source of income  for Mexico is the roughly $25 billion of remittances sent back there from workers in the United States, many of whom are here illegally.

Rohrabacher blogs that one of the tactics used by the Mexican government to help maintain this revenue source is the issuance of what is known as a “Matricula Consular ID Card” to Mexican nationals who do not have proper documentation to be in this country legally. The purpose of this ID card is to help make it easier for illegals to access public services, obtain housing or open bank accounts.

According to a recent report by the Federation for Immigration Reform:

Matricula Consular ID cards — two million of which have been issued in the last two years, have drawn heated criticism because they are issued to illegal aliens who cannot access U.S.-issued identity documents. Because consular ID cards are only needed by people who aren’t legally in the U.S. in the first place, communities and businesses that accept the cards as valid ID are undermining immigration enforcement and compromising U.S. security.

Rohrabacher states that one of the tactics used by the Mexican government to help maintain this revenue source is the issuance of what is known as a “matricula consular ID card” to Mexican nationals who do not have proper documentation to be in this country legally. The purpose of this ID card is to help make it easier for illegals to access public services, obtain housing or open bank accounts.

According to a recent report by the Federation for Immigration Reform:

Matricula Consular ID Cards — two million of which have been issued in the last two years, have drawn heated criticism because they are issued to illegal aliens who cannot access U.S.-issued identity documents. Because consular ID cards are only needed by people who aren’t legally in the U.S. in the first place, communities and businesses that accept the cards as valid ID are undermining immigration enforcement and compromising U.S. security.

“There’s no way around the fact that consular ID cards are only needed by people who aren’t legally in the U.S. in the first place. Indeed, relying on the Mexican Matricula for identification is tantamount to admitting that the bearer is in the U.S. illegally, as no one here legally has a need for one.”

“The FBI and the Department of Justice say that the cards are not a reliable form of identification and pose “major criminal threats” and a “potential terrorist threat.”

For more on this story, go to the the blog link above.

Arizona passes Strict Immigration Act

On 4/13/10, the Arizona state House of Representatives passed a bill (S.B. 1070) directing police to determine the immigration status of non-criminals if there is a “reasonable suspicion” they are undocumented. The state Senate passed a similar measure earlier this year.

A bill creating the country’s strictest immigration stance yet has passed the Arizona House and State Senate, creating a situation where citizens will be subject to random confrontations with police regarding their immigration status.

SB 1070 calls for police to demand proof of citizenship in any situation in which “reasonable suspicion exists that the person is an alien who is unlawfully present in the United States.”

If you can’t present documentation of legal status, the law will allow for an automatic arrest.  Picture it — you go out for your morning run, do you take your driver’s license and your passport with you?  Didn’t think so.

But the means for demanding the documentation concerns immigrants rights groups who fear the draconian law will lead to racial profiling — specifically zeroing in on a Hispanic population that represents 30 percent of the Arizona citizenry.

For the text of the Bill

For more reading

LA Times