In this edition
- AAO Guidance Clarifies That Worker Mobility May Come at a Cost
- OSC “Pattern and Practice” Investigations to Continue
- FY 2016 H-1B Cap Petition Not Selected: What Are the Options?
AAO Guidance Clarifies That Worker Mobility May Come at a Cost
By Lowell Sachs, Miguel A. Manna
In a move likely to elicit equal parts appreciation and exasperation among the employer community, U.S. Citizenship and Immigration Services (USCIS) issued guidance on the need to file an amended H-1B petition when there is a change in worksite locations. The guidance, which was issued on May 21, 2015, came six weeks after the USCIS Administrative Appeals Office’s (AAO) precedent decision in Matter of Simeio Solutions, LLC. Given the trend in our economy toward an increasingly mobile workforce and growing reliance on the use of third-party consultants, especially in some sectors, the AAO guidance will leave many employers facing the prospect of additional expense and time to stay in compliance with USCIS policy and regulation.
What Triggers the Need to File an Amended H-1B Petition?
According to the new guidance, employers must file an amended petition if their H-1B employee “changed or is going to change his or her place of employment to a worksite location outside of the metropolitan statistical area (MSA) . . . covered by the existing approved H-1B petition.” It is important to note that not all changes in location will trigger the need for an amended H-1B petition. Instead, the change in worksite location must be to a new site outside of the original MSA. Per the AAO, such a move to a worksite outside the MSA would constitute a “material change” in the terms and conditions of employment. Accordingly a new H-1B petition with accompanying certified Labor Condition Application (LCA) and fee must be filed to notify USCIS of the change.
Whenever such a “material change” occurs, petitioners are required to certify a new LCA with the U.S. Department of Labor (DOL). An approved LCA is required as part of the H-1B application to help protect the interests of U.S. workers. One of the conditions stipulated in the LCA is that the H-1B worker must be paid a wage that is at least as high as the prevailing wage or the actual wage (whichever is higher) for other workers in a similar position in the same area. Logically, the wage threshold that employers must meet to satisfy this part of the LCA will vary based on where the job is located-markets that generally pay higher wages will result in a higher prevailing wage and vice versa. Thus, when you move to a new location that might have a different prevailing wage or actual wage, the employer must certify a new LCA to ensure the H-1B employee’s wage will still be sufficiently high to protect the interests of other workers. The new LCA, in turn, then triggers the need to file an amended H-1B petition.
In Matter of Simeio Solutions, LLC, the petitioner attested in its original H-1B petition as well as the LCA that the H-1B employee would be working on an in-house project at the petitioner’s facility in Long Beach, California. However, upon conducting a subsequent site visit, USCIS officers discovered that the petitioner had left the Long Beach office after just two months. The petitioner then attempted to file a new LCA listing two new worksites in Camarillo, California and Hoboken, New Jersey. However, since neither of the two new worksites was located in the same MSA as the one listed on the original petition, USCIS interpreted this as a material change that required the filing of a new H-1B petition. Because the petitioner had failed to file an amended petition along with its new LCA, USCIS revoked the H-1B visa.
So What Changed?
For more than a decade many employers, relying upon advice provided in a 2003 letter issued by then-Director of USCIS Business and Trade Branch Efren Hernandez believed that, as long as an LCA was certified and all of its obligations met prior to an employee starting work at a new location, no material change would be deemed to exist and, thus, no amended H-1B petition would be required. As a result, prior to the recent AAO ruling and the new guidance from USCIS, a significant number of employers would simply file an amended LCA and provide an internal posting at the new worksite. This was a cost-effective procedure as the LCA does not require a filing fee and is usually adjudicated within seven days. Under the new guidance, this will no longer be sufficient. With only certain exceptions, employers must now incur the additional cost and time required to file an amended H-1B petition (Form I-129) with USCIS and have it adjudicated.
Not All Worksite Changes Require an Amended H-1B Petition
The new USCIS guidance also clarifies a number of exceptions to its general rule.
- If an H-1B employee moves to a new worksite that is still within the same MSA, no new LCA is required and, therefore, there is no need to file an amended H-1B petition. Even in this circumstance, however, employers must still post the original LCA at the new worksite to stay in compliance with USCIS regulations. So, if a company is moving its offices to a new space down the street, or if an H-1B employee will be moved to a team working out of a midtown office location rather than, for example, a downtown headquarters location, or if an H-1B employee is being assigned to a new client site within the same town, then all the employer must do is post the original LCA at the new location.
- If an H-1B employee has a short-term placement at a new location, then there is no need to file an amended H-1B petition. In order for this exception to apply, the placement must be for no more than 30 workdays in a 1-year period at any particular worksite or combination of worksites within the same area. A short-term placement can extend up to 60 days, but only if the employer can show that the H-1B employee is still based at the location listed in the original LCA. Details that could help to substantiate that claim would include proof that the H-1B employee has a dedicated office and phone at the original location and spends considerable time there, or that the H-1B employee’s residence is located near the location listed in the original LCA rather than near the location of the short-term placement.
- If an H-1B employee spends time at a non-worksite location, there is no need to file an amended H-1B petition. Travel for conferences, seminars, or training are prime examples of permissible non-worksite locations. Some technical support positions, such as a software or computer engineer, where an H-1B employee has a primary job at one location, but may be required to travel occasionally to other locations due to the nature of the work, may also qualify for this exception.
Grace Period for H-1B Workers Who Already Changed Worksites
Employers with H-1B workers who changed their worksite to a new location outside the MSA in the originally approved H-1B petition at any point prior to the new guidance in the wake of the AAO’s Simeio Solutions decision have until August 19, 2015 (i.e., 90 days from the issuance of the new guidance) to file an amended petition. After that date, employers that have not filed an amended petition will be out of compliance with USCIS regulations.
Unfortunately, despite the grace period, the requirement to file an amended petition for all H-1B employees who have changed worksites (other than those who fit under one of the above mentioned exceptions) could impose substantial new costs and administrative burdens on employers. One silver lining is that H-1B employees may begin working at their new location as soon as the employer has filed an amended petition. This means that employers do not need to suffer further work delays while awaiting a final decision on the amended petition.
OSC “Pattern and Practice” Investigations to Continue
By Jacob D. Cherry
Over the past few years, the number of employer investigations-and perhaps more noteworthy, the amount of the penalties assessed-by the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) has steadily increased. All indications suggest that this trend will continue for the foreseeable future.
By way of background, OSC is tasked with enforcing the anti-discrimination provisions of the Immigration and Nationality Act. Housed within the Civil Rights Division of the U.S. Department of Justice, OSC investigates claims relating to citizenship status and national origin discrimination in the hiring and firing process, unfair documentary practices during the employment eligibility verification process, and retaliation or intimidation against individuals who bring a charge or otherwise assert their rights in connection with these prohibited practices. The notable rise in investigations appears to be concentrated among claims of unfair documentary practices, also referred to as document abuse.
What Is Document Abuse?
At its core, document abuse occurs when an employer “request[s] more or different documents than are required to verify employment eligibility, reject[s] reasonably genuine-looking documents, or specif[ies] certain documents over others with the purpose or intent of discriminating on the basis of citizenship status or national origin.” This can encompass an exceptionally wide range of situations, some of which are seemingly innocuous, but do in fact have the potential to violate the anti-discrimination regulations. For instance, an employer that utilizes an electronic Form I-9 system that suggests suitable documents based on an individual’s immigration status would likely run afoul of the document abuse provisions. Similarly, an employer that requests to see the permanent resident card to satisfy the Section 2 attestation of Form I-9 for any individual who identifies as a permanent resident in Section 1 would also violate the regulations on unfair documentary practices. Both of these scenarios potentially restrict the option of what form(s) of documentation to present in order to satisfy the Form I-9 requirements, which is a choice that always rests with the employee. Likewise, an employer that requests an employee to present new documentation upon the expiration of a previously-presented permanent resident card also constitutes document abuse (this practice is prohibited under both the I-9 and E-Verify rules, as the expiration of a green card does not signify that a person is no longer a permanent resident). These are just a small sampling of the employment practices that are prohibited under the document abuse provisions of the Immigration and Nationality Act.
The increase in investigations, as well as size of the penalties assessed against employers in document abuse cases, can generally be attributed to two factors. The first factor is the 2010 Memorandum of Understanding (MOU) between OSC and the U.S. Citizenship and Immigration Services (USCIS), which formalized an information-sharing agreement wherein USCIS may refer to OSC information concerning “allegations of discrimination arising out of employer use of E-Verify” and “information regarding the misuse, abuse, or fraudulent use of E-Verify.” Since an analysis of the data collected during the E-Verify process (which also mirrors the data on Form I-9) can provide insight into an employer’s employment eligibility verification practices, the MOU with USCIS (which administers the E-Verify program) provided OSC with access to a wealth of new information.
The MOU is only significant in light of the second factor, which is USCIS’s increased focus on policing the use of the E-Verify system. This is most readily evident in the increased activities of the E-Verify Monitoring and Compliance (M&C) branch, a distinct unit within USCIS that is tasked with protecting the integrity of the E-Verify program. In fiscal year 2011, the M&C branch effectuated 86 “interagency actions,” which consist of referrals to OSC and/or Immigration and Customs Enforcement. By fiscal year 2014, this number increased more than tenfold to 909 interagency actions.
Coinciding with the increase in interagency actions-or perhaps driven by it-OSC changed the focus of its investigations. Instead of conducting investigations based on charges brought by individuals, OSC shifted its investigatory direction to cases involving a pattern or practice of alleged violations. By their very nature, pattern or practice investigations involve multiple alleged violations, thereby leading to a noticeable increase in penalties. For instance, an M&C referral to OSC that indicated an employer was listing a passport on Form I-9 for 95 percent of individuals who identified themselves as U.S. citizens might lead to an inference that the employer was specifically requesting this document, which would constitute document abuse. Armed with a wealth of data from USCIS referrals, OSC was provided with a new source of data that directly enhanced its investigatory capacity, and an examination of recent settlement agreements suggests that the agency is leveraging this new data to its advantage.
In this era of increased data mining and interagency cooperation, employers must remain vigilant to ensure that their employment eligibility verification processes do not trigger an OSC investigation, which could otherwise lead to sizeable penalties and unfavorable publicity.
FY 2016 H-1B Cap Petition Not Selected: What Are the Options?
By Sara E. Herbek, Lowell Sachs
Most “new” H-1B petitions must be counted against an annual H-1B cap. This limit, or “cap,” administered by the U.S. Citizenship and Immigration Services (USCIS), is currently set at 65,000 plus an additional 20,000 reserved for those who hold an advanced degree from a U.S. college or university. Those petitions selected under the cap will have an October 1st start date in H-1B nonimmigrant status.
In a trend that is escalating, the need for H-1B nonimmigrant workers in the United States has grown in the last several years, but this growth has come without a corresponding increase in actual visa numbers available. We have seen approximately 50,000 additional H-1B cap petitions being filed each fiscal year (FY) for the last three years:
FY 2016: 233,000 H-1B petitions received
FY 2015: 172,500 H-1B petitions received
FY 2014: 124,000 H-1B petitions received
The rapidly increasing demand for H-1B visas combined with a static supply means that with each passing year the odds of any particular petition being selected to receive a visa become commensurately lower. The FY 2016 H-1B cap season started on April 1, 2015-the earliest possible filing date for each FY H-1B cap petition-and closed on April 7, 2015. During these five business days, 233,000 H-1B cap petitions were filed with USCIS. This total is unprecedented and resulted in approximately a one in three chance of an H-1B cap petition being selected for processing and adjudication.
The dilemma for employers arises when an H-1B cap petition is not selected, but the employer still needs the foreign employee to continue working lawfully for the company in the United States. To achieve this, the foreign employee will require work authorization through some other means. Fortunately, there are a variety of options, but there are several factors to consider when reviewing which work authorization option may be best for a foreign worker.
One option for foreign employees who are working pursuant to an Optional Practical Training (OPT) Employment Authorization Document (EAD) includes a possible 17-month work authorization extension through STEM (Science, Technology, Engineering, and Math). This option is possible if (1) an employer has enrolled in the E-Verify program, (2) the OPT EAD employee works at a location where employees are verified as part of the E-Verify program, and (3) the employee has a STEM degree. If these facts all apply to the employer and foreign worker, then the employee should be able to benefit from a 17-month extension of work authorization.
Another factor that employers must consider is the employee’s country of citizenship as there are several visa categories set aside for citizens of specific countries. For example, if the employee is a citizen of Singapore or Chile, the employer should be able to pursue H-1B1 nonimmigrant status for these foreign workers under the terms of legislation implementing the U.S.-Chile and U.S.-Singapore free trade agreements. That legislation sets aside up to 6,800 visas from the H-1B cap. If the foreign worker is Australian, an E-3 visa may be another option for ongoing work authorization. The H-1B1 and E-3 nonimmigrant categories are similar to H-1B nonimmigrant status.
If the foreign worker is a Canadian or Mexican citizen, the employer may be eligible to pursue TN nonimmigrant status. TN nonimmigrant status requires the employee to work in a TN professional position. These TN professional positions are limited to those acknowledged by the North American Free Trade Agreement (NAFTA) provisions.
There is also the potential for an employer to pursue work authorization under the O-1 nonimmigrant visa category. This particular visa category may be an option for those employees who have extraordinary ability and recognition in their area of expertise. Areas of expertise vary from arts and motion pictures to science and business. If an employer has an employee who is outstanding, then the O-1 nonimmigrant visa category should be a good fit.
In addition, when a company is a multinational organization, an employer could assign the foreign employee to work for a foreign affiliate for at least one continuous year such that an L-1 intracompany transferee nonimmigrant visa would become an option down the road. The L-1 nonimmigrant visa option is available to foreign employees who have worked for a foreign affiliate for at least one continuous year in the preceding three years in a specialized knowledge, managerial, or executive capacity position and who will enter the United States to work in a specialized knowledge, managerial, or executive capacity position. Pursuing this potential alternative to an H-1B cap petition would require additional coordination within the company.
If an employer’s H-1B petition is not selected under the cap, there are still several options that the employer can pursue to retain its skilled foreign national employees and keep its projects on track.
The information above has been redistributed by Emigra Worldwide with permission from Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
Emigra Ogletree Worldwide combines world class global immigration expertise with outstanding U.S. business immigration legal services in one, client-friendly package. The result – a proven and seamless approach to your business immigration needs. The services and advice you need, where you need them. That is opening your world of immigration. That is Emigra Ogletree Worldwide. Your world is waiting.
The information herein is for general purposes only and not intended as advice for a particular matter. If you have any questions, please do not hesitate to contact the global immigration professional with whom you work.
To sign up to receive Global Immigration eAlerts, CLICK HERE