Immigration Law Alert - President Trump's Executive Orders on Immigration

In late January, the Trump Administration published three important Executive Orders on immigration.  Many of the subjects addressed in these Orders have practical ramifications for foreign nationals. While some are policy statements that will require congressional funding, others are projects that the Executive Branch can initiate and report back to the President.  The following is a brief summary of the Executive Orders' objectives:

• Reinstitute a program of engagement between the Department of Homeland Security and local law enforcement to deputize and train local law enforcement officials to perform certain Department of Homeland Security immigration-related functions with respect to identification and detention of foreign nationals who may be out of status in the United States.
• Call for an additional 10,000 immigration officers to perform immigration-related functions, a directive subject to Congressional appropriation. 
• Direct that funding to "sanctuary jurisdictions" be cut off.  Sanctuary jurisdictions are those that refuse to detain individuals targeted by the Department of Homeland Security for potential immigration violations. 
• Terminate the Priority Enforcement Program established by the Obama administration that prioritized criminal aliens for detention and deportation.
• Prohibit admission, for a period of 90 days, of any foreign national from countries known as the "countries of concern." These countries include Libya, Syria, Iraq, Iran, Sudan, Yemen, and Somalia.
• Suspend refugee admissions for 120 days.
• Discontinue the Syrian Refugee Program.
• Limit refugee admission for fiscal year 2017 to no more than 50,000 refugees. The number of refugee admissions is historically determined by the President, and the last administration had been admitting approximately 110,000 refugees per year.
• Direct the Department of Homeland Security to develop and implement a biometric entry/exit tracking system for all foreign travelers to the United States. 

If these Executive Orders are any indication of what is to come, expect further initiatives by the Executive Branch and proposals to Congress to curtail immigration to the United States. Here are some things to watch for in the long term:

• Businesses should be ready for Form I-9 compliance audits, including unannounced inspections in target industries such as hospitality, farming, and food production.
• Congress can require companies to clear all new employees through E-Verify, which is now optional. E-Verify is an internet-based system that determines the eligibility of employees to work in the United States.
• Employers can anticipate a thorough review of the H-1B program, including requirements for dependent employers, the number of available Visas, prevailing wage determinations, adjudications, and site visits.
• Colleges and students should expect increased scrutiny at Consular interviews, SEVIS tracking and enforcement, and proposals seeking to limit employment and training opportunities.
• Families may see increases in the income levels that are required to sponsor a spouse or other family member for immigration to the United States.

In light of these Executive Orders, it is critical for all U.S. employers to review immigration documents, understand the meaning of each document, and know the interplay between the several government agencies that oversee temporary and permanent immigration to the United States.

For more information about the President's Executive Orders on Immigration, please contact Joel Pfeffer, Elaina Smiley, or Gary Sanderson.

This material is for informational purposes only.  It is not and should not be solely relied on as legal advice in dealing with any specific situation.

Break the Immigration Stalemate

Last week, the U.S. Supreme Court joined Congress in letting political stalemate push our country deeper into chaos and further away from addressing the urgent issue of modernizing our immigration system. Click here to Joel Pfeffer's article, "Break the Immigration Stalemate".

Immigration Law Update

On April 9, 2015, the Administrative Appeals Office (AAO) of the U.S. Citizenship and Immigration Services (USCIS) issued a decision in the Matter of Simeio Solutions, LLC, overruling prior USCIS practice permitting employers to file a new Labor Condition Application (LCA) when an employee changed work locations. An LCA, certifying the prevailing wage for each work location, must be filed with all H-1b petitions.

The AAO ruled that it is no longer acceptable to file an LCA containing the new work location that is not covered in the original H-1b petition. The employer must file an amended H-1b petition and pay the filing fees, when the employee's place of employment changes to an area that was not covered by the original petition and LCA.

In this case, which involved a company providing information technology services, the employer represented that the job was an "in-house project" at the employer's facilities in Long Beach, California, and submitted an LCA for the Long Beach area. Two months after the start date of the employee's H-1b employment, the employer left the Long Beach facility and the USCIS showed up for a site visit and found that no company existed at the address indicated on the H-1b petition. The employer filed a new LCA indicating that the employee was working out of his home address, in a different area of California, and a client address in New Jersey. Both of these new work locations had a wage of over $9,000 more than the wage indicated on the H-1b petition and certified in the original LCA. The AAO footnotes that the new LCA "had to be submitted to the USCIS as part of an amended or new petition before the beneficiary would be permitted to begin working in those places of employment."

The AAO ruled that the change in the employee's places of employment constituted a material change to the terms and conditions of employment as specified in the original H-1b petition. Because the employer failed to file an amended petition with a corresponding LCA, the H-1b petition was revoked.

This decision could have significant impact on companies that move employees to various projects, with new work locations, and previously relied upon the filing of a new LCA to cover these work-sites. Under this AAO ruling, this practice is no longer sufficient and an employer should file an amended H-1b petition for the new work sites.

For more information about H-1b visas and other immigration matters, contact Joel Pfeffer, Elaina Smiley, or Gary M. Sanderson.

Certain H-4 Dependent Spouses May Seek Employment Authorization

On February 24th, the U.S. Citizenship and Immigration Services (USCIS) announced that certain H-4 dependent spouses of H-1B non-immigrants who are seeking employment-based lawful permanent resident status are eligible for employment authorization.

Eligible individuals include H-4 dependent spouses of H-1B non-immigrants who:

• Are the principal beneficiaries of an approved Form I-140, Immigrant Petition for Alien Worker; or
• Have extended their stay beyond the six-year limit as the result of seeking lawful permanent residence based on employment.

Eligible individuals must file Form I-765, Application for Employment Authorization, with supporting evidence and the required $380 filing fee in order to receive an Employment Authorization Document (EAD).  USCIS will begin accepting applications on May 26, 2015. The individual may start working in the United States upon USCIS approval of Form I-765 and receipt of the EAD.

For more information about H-1B visas and other immigration matters, contact Joel Pfeffer, Elaina Smiley, or Gary M. Sanderson.

H-1B Visas - Be Prepared To Submit Applications on April 1

Do not delay in preparing your H-1B visa applications as the demand is great, and it is likely that the U.S. Citizenship and Immigration Services (USCIS) will receive more applications than there are available during the first week of April 2015.  There is an annual cap on the number of H-1B visas available: 65,000 for those applicants holding the equivalent of a U.S. Bachelor's degree and an additional 20,000 visas available for foreign nationals with a U.S. Master's degree or higher.  In the past several years, the USCIS has conducted a lottery to determine which applicants would be eligible for an H-1B visa due to the great demand.

It is recommended that employers file on or about April 1, 2015 to secure a slot for employment beginning on the fiscal year 2016 that begins on October 1, 2015.  Employers can file H1-B applications no earlier than six months in advance of the anticipated start date, and therefore April 1, marks the beginning of the race for obtaining an H1-B Visa.  The last two fiscal years have seen the cap be filled within the first week of the filing period, resulting in USCIS conducting a lottery on April 10, 2014 and April 7, 2013.  Companies employing students on Optional Practical Training (OPT) with work visas expiring in the months between April and September 2015, may have the opportunity to extend the work of students until October 1 with a timely filed H-1B visa application.

In addition, every H-1B application requires a Labor Condition Application (LCA) certified by the U.S. Department of Labor (DOL).  The DOL takes approximately one week to certify an LCA.  If an employer has not previously filed an LCA with the DOL, it may take an additional week for the DOL to verify the employer's Federal Employer Identification Number.

It is important for companies to carefully prepare their applications as the USCIS has increased its scrutiny and regularly requests additional evidence from employers.  Employers need to work with counsel to develop detailed explanations as to why the employee qualifies for this visa. 

For more information about H-1B visas and other immigration matters, please contact Joel Pfeffer, Elaina Smiley, or Gary M. Sanderson.  

Joel Pfeffer 412.456.2877 jp@muslaw.com

Elaina Smiley 412.456.2821 es@muslaw.com

Gary M. Sanderson 412.456.2550 gms@muslaw.com

Employing Foreign Workers: What US Companies and Counsel Need to Know

Joel Pfeffer will be presenting “Employing Foreign Workers: What US Companies and Counsel Need to Know” for members of the Association of Corporate Counsel. The webcast is scheduled for Thursday, September 11 at 3:00 pm. More info below:

While Congress continues to debate immigration reform, there are three key issues that US companies employing foreign nationals need to know about and recommendations on how to address them.

• The H-1b Visa: This highly sought after visa is critical to US companies employing foreign professionals, such as engineers, business managers and analysts, or software professionals.  Employers need to work with counsel to develop generously detailed explanations about why the employee qualifies for this visa.
• The L-1b Program: This program permits multi-national companies to transfer executives, managers or certain employees with specialized knowledge of the company's operations to the US.  The Department of Homeland Security carefully examines every petition in this visa category and employers must be aware of the issues that are important to DHS immigration officers.
• Green Card Quotas: Companies employing foreign nationals need to understand the interplay between green card availability and employee retention. Learn how to  work with outside counsel to best complete the applications, understand the pros and of each, and steps to take when applications are challenged to ensure business runs smoothly.

Use this link to RSVP.

H-1B Visa Update

Do not delay in preparing your H-1B visa applications as the demand is great, and it is likely that the U.S. Citizenship and Immigration Services (CIS) will receive more applications than there are available visas during the first week of April, 2014. There is a cap on the number of H-1B visas available: 65,000 for those applicants holding the equivalent of a U.S. Bachelor's degree and an additional 20,000 visas available for foreign nationals with a U.S. Master's degree or higher. In the past several years, the CIS has conducted a lottery to determine which applicants would be eligible for an H-1B visa due to the great demand.

It is recommended that employers file on or about April 1, 2014, to secure a slot for employment beginning October 1, 2014. Companies employing students on OPT (Optional Practical Training) with work visas expiring in the months between April and September, 2014, may have the opportunity to extend the work of students until October 1 with a timely H-1B visa application filing.

It is important for companies to carefully prepare their applications as the CIS has increased its scrutiny and regularly requests additional evidence from employers. Employers need to work with counsel to develop detailed explanations about why the employee qualifies for this visa.

For more information about H-1B visas and other immigration matters, please contact Joel Pfeffer or Elaina Smiley.