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Just when we thought that USCIS could not make H-1B compliance any more difficult, a new twist has been added. Now, aside from (a) the complexities of LCA and public access file compliance, (b) the evidentiary hurdles in placing an H-1B worker at a third party site; and (c) dealing with the H-1B cap, H-1B petitioners now must familiarize themselves with what is and what is not a "deemed export" of certain technologies at the risk of subjecting themselves to potentially severe consequences including those attendant to a finding of perjury.
On November 23rd, USCIS published a revised version of Form I-129, Petition for Nonimmigrant Worker. The new form requires petitioners to take additional steps to ensure that federal export compliance is properly evaluated and that petitioner's attestations are accurate.
With regard to export compliance, the new Form I-129 includes a new Part 6, entitled "Certification Regarding the Release of Controlled Technology or Technical Data to Foreign Persons in the United States" which requires petitioners that seek to employ foreign nationals in H, L, and O nonimmigrant visa status to certify that the company (i) has reviewed the Export Administration Regulations ("EAR") and the International Traffic in Arms Regulations ("ITAR"), and (ii) made a determination as to whether or not an export control license is required to release any controlled technology or technical data to the foreign national.
More specifically, the revised form contains explicit language in Part 6 that requires the petitioner to affirm that, with respect to technology or technical data that the petitioner will release or otherwise provide access to the beneficiary:
(i) A license is not required from the Department of Commerce or the Department of State to release such technology or technical data to the foreign person; OR
(ii) A license is required from the Department of Commerce or the Department of State to release such technology or technological data to the beneficiary and the petitioner will prevent access to controlled technology or technical data by the beneficiary unless and until the petitioner has received the required license or other authorization to release it to the beneficiary.
Clearly, the affirmations in Part 6 require some due diligence which includes the review of the beneficiary's job duties to make sure such position does not require a license (which the employer will otherwise need to obtain) before the beneficiary may commence the position for which he/she is being hired.
If, in fact, an export license is required before making such a release, the employer must attest that the foreign worker will not be exposed to any covered "technologies" without first obtaining the requisite license to cover the foreign worker. It is very important that petitioners not make a misrepresentation on Form I-129 in this regard, which in itself could be construed as a violation of federal law.
Petitioners should consider reviewing the new Form I-129 and its instructions with export counsel to determine whether an export license is required before signing the attestations on Form I-129 under penalty of perjury.
While the new form is effective now, petitioners may continue using the former version of the form (which does not include the reference to export license requirements) until December 23, 2010.
Post Authored By: Anthony F. Siliato, Esq. and Scott R. Malyk, Esq. of Meyner and Landis LLP
Perhaps indicating an upturn in economic news and a sign of good things to come, Google has recently announced that it plans to hire more than 2,000 people around the globe, as it expands into new markets and "wages a war for talent" with its rivals.According to a Google spokesperson, the world's largest search engine company is looking for new opportunities to grow by branching out into a variety of markets, including Android smartphone software, online display advertising and Web-based productivity software. Moreover, according to some media reports, Google internally announced plans to give all of its employees a 10% salary increase in 2011, a move that many in the industry interpreted as an attempt to retain its best workers.* Could this portend into increased usage (indeed, an imminent exhaustion) of the remaining H-1B visa numbers? According to USCIS's most recent count, as of November 12, 2010, approximately 47,800 H-1B cap-subject petitions were receipted. Additionally, USCIS has receipted 17,400 H-1B petitions for aliens with advanced degrees.The current annual cap on the H-1B category is 65,000 although not all H-1B non-immigrants are subject to this cap. Up to 6,800 of these visa numbers, however, may be set aside from the cap of 65,000 during each fiscal year for the H-1B1 program under the terms of the U.S.-Chile and U.S.- Singapore Free Trade Agreements. Unused numbers in this pool are made available for H-1B use for the next fiscal year.* An additional 10,000 H-1B numbers are available to foreign nationals with U.S. advanced degrees.Google announced that its current job openings are primarily full-time positions for engineers and sales staffers, with roughly half of them in the United States. Such job openings provide a window not only into the breadth of Google's operations across the globe, but highlights the need for large multi-national companies based in the U.S. to seek the best and the brightest professionals--many of whom are foreign nationals. While the Google hiring is not necessarily a reflection of the overall employment picture, it may behoove employers who regularly make use of the H-1B program to capture (as soon as practicable) the remaining H-1B visa numbers before the quota is reached. Otherwise such employers will be left to wait until October 1, 2011 before the new H-1B quota becomes available. For additional information and frequent updates on a variety of corporate and business-related immigration law issues, please click here to navigate to Meyner and Landis LLP's Corporate Immigration Law News Blog.Post Authored By: Anthony F. Siliato, Esq. and Scott R. Malyk, Esq. of Meyner and Landis LLP
On August 13, President Obama signed into law Public Law 111-230 which requires the submission of an additional $2,000 in filing fees for some H-1B petitions and an additional $2,250 for certain L-1A/L-1B petitions. The fee increase applies to covered petitions with a postmark date of August 14, 2010 or later.The additional fee applies to H-1B or L-1 petitioners that employ 50 or more employees in the United States with more than 50 percent of those employees working in the United States pursuant to H-1B, L-1A or L-1B nonimmigrant status.H-1B petitioners subject to this new fee are required to submit the fee with any H-1B petition filed (i) to request initial nonimmigrant status for a foreign national employee or (ii) to obtain authorization for a foreign national already in valid H-1B status who seeks to change employers (otherwise known as an H-1B transfer).Similarly, L-1 petitioners subject to the new law must submit the additional fee with an L-1A or L-1B petition filed (i) to seek initial L-1 nonimmigrant status for a foreign national or (ii) to obtain authorization for a foreign national already in valid L-1 status who seeks to change employers.USCIS recently advised that the petitioner, not the beneficiary, should pay the additional fee, in cases where the additional fee is required. How To Determine Whether Your Business Qualifies For The Additional Fees Required By Public Law 111-230:USCIS has advised that all employees, whether full-time or part-time, will count towards the calculation of whether your business is subject to the new fee.When calculating the percentage of employees in H-1B or L-1 nonimmigrant status, USCIS will calculate the percentage of nonimmigrant workers in the petitioning employer's workforce to the number of employees in the United States, not by the number of employees worldwide.* USCIS further advised that all employees in the United States, regardless of whether they are paid through a U.S. or foreign payroll, will count toward this calculation.Finally, USCIS advised that the new fee does not apply to derivatives of H-1B or L-1 nonimmigrant workers.
For additional information and frequent updates on a variety of corporate and business-related immigration law issues, please click here to navigate to Meyner and Landis LLP's Corporate Immigration Law News Blog.Post Authored By: Anthony F. Siliato, Esq. and Scott R. Malyk, Esq. of Meyner and Landis LLP
The GOOD1) H-1B visa numbers are still available!USCIS recently advised that, as of September 3, 2010, approximately 36,600 H-1B cap-subject petitions were receipted. Additionally, USCIS has reported receipting 13,400 H-1B petitions for aliens with advanced degrees. Therefore, more than 35,000 new H-1B visas are still available for fiscal year 2011 (which ends September 30, 2011). Given the current usage and demand, it is anticipated that the H-1B cap will be reached sometime in the first quarter of 2011 (with no new visa numbers available until October 1, 2011).(2) China Reciprocity schedule amendment!Effective July 9, 2010, the Department of State's reciprocity schedule for China has been amended to allow for a 12 month multiple entry visa for qualifying H visa applicants. This is certainly welcome news to Chinese nationals who, on account of the pre-existing reciprocity schedule that has been effect for years, were given only single entry visas valid for 3 months--severely restricting travel of Chinese nationals on H-1B visas. The BAD:USCIS implements fee increase for certain H-1Bs and L-1sOn August 13, 2010, President Obama signed into law Public Law 111-230 to enhance our border security. The new law contains provisions that require petitioners to pay an additional $2,000 for certain H-1B petitions and an additional $2,250 for certain L-1 petitions postmarked on or after August 14, 2010. These additional fees apply to petitioners who employ 50 or more employees in the United States with more than 50 percent of its employees in the United States in H-1B or L (including L-1A, L-1B and L-2) nonimmigrant status. Petitioners meeting these criteria must submit the fee with an H-1B or L-1 petition filed for a new H-1B worker and one changing H-1B employers. USCIS has indicated it expects this additional fee to be paid by the employer.The Administration claims that said fee increase will help raise nearly $550 million out of the proposed expenditure of $600 million on increasing security along the U.S.-Mexico border. As you can imagine, such fee hike will severely impact Indian IT companies doing business in the United States.THE "SOMEWHAT" UGLY:DOL obtains nearly $1 million in back wages and interest for H-1B workers due to alleged violations of the H-1B ProgramA computer consulting company based in Suwanee, Georgia, Smartsoft International Inc., has agreed to pay nearly $1 million in back wages and interest to 135 nonimmigrant workers temporarily employed by the company under the H-1B visa program. DOL reached this agreement following a determination by the department's Wage and Hour Division that the company violated the H-1B program's rules.The Wage and Hour Division investigation resulted in the following findings: (i) that some H-1B employees were not paid wages at the beginning of their employment (ii) that others were paid on a part-time basis despite being hired under a full-time employment agreement; and finally (iii) that several employees were paid less than the prevailing wage applicable to the geographic locations where such employees performed their work. This case demonstrates the basic regulatory protections for H-1B workers inherent in the H-1B program. For example, sponsoring employers are required to attest to the DOL that they will pay wages to H-1B nonimmigrant workers that are at least equal to the actual wages paid to other workers with similar experience and qualifications for the position in question, or the prevailing wage for the occupation in the area of intended employment, whichever is greater. The program also establishes certain standards in order to protect similarly employed U.S. workers from being adversely affected by the employment of the nonimmigrant workers.With H-1B public access file audits and unannounced site inspections increasingly on the rise, it behooves H-1B employers to conduct self-audits of their public access files and insure that its H-1B workers are being paid the proper wage.For additional information and frequent updates on a variety of corporate and business-related immigration law issues, please click here to navigate to Meyner and Landis LLP's Corporate Immigration Law News Blog.Post Authored By: Anthony F. Siliato, Esq. and Scott R. Malyk, Esq. of Meyner and Landis LLP
There is no question that the current economic malaise is a major factor in the current demand being short of the H-1B supply. (As of June 18, 2010, 22,900 regular cap petitions and 9,700 master's degree exemption petitions have been received by USCIS). But, as reported in one of the authors' previous blogs, the state of our economy is but one of the reasons for the decrease in H-1B usage. Perhaps another reason is an employer's ability to make use of a relatively recent DHS rule which permits an F-1 visa holder working pursuant to OPT to extend such OPT for seventeen (17) months beyond the normal one (1) year validity period, thereby obviating the need (or at least delaying the need) for an employer to incur the legal and filing fees, as well as comply with the public access requirements of the H-1B program. Such 17 month extension is available to those OPT workers who have a STEM degree (an acronym for one in a designated science, technology, engineering or mathematics discipline) and work for employers who participate in the E-Verify program. E-Verify is an electronic method of verifying employment with DHS. It supplements the I-9 process of employment verification. Currently, unless the employer engages in federal government contracts or conducts business in certain states which have made E-Verify mandatory, the E-Verify program is voluntary. Those employers who are not required to enroll, but are considering signing up for E-Verify, should carefully consider the pros vs. the cons. The centerpiece of the E-verify program is the requirement that the employer enter into a Memorandum of Understanding (MOU) with DHS, which, in turn, requires, among other things, that the employer: (a) posts certain notices/posters (i.e. E-Verify Poster and the Office of the Special Counsel anti-discrimination poster) in locations that are accessible to prospective applicants and new hires. This applies to electronic media when practical, as well as physical locations; (b) agrees to allow DHS and SSA, or their authorized agents or designees, to make periodic visits to the employer for the purpose of reviewing E-Verify-related records (i.e. Forms I-9 and SSA and DHS confirmation records); and(c) agrees to allow DHS and SSA, or their authorized agents or designees, to interview the employer, employees handling the program (i.e. the Company's Designated Agent), and employees hired during participation in E-Verify concerning their experience with the program.Given the MOU requirement, coupled with the zero tolerance aspect of the program (which is not yet 100% accurate), it would behoove an employer to carefully consider whether "signing up" with DHS and SSA is a fair exchange for avoiding (temporarily) the expense and compliance aspects of the H-1B visa program.For additional information and frequent updates on a variety of corporate and business-related immigration law issues, please click here to navigate to Meyner and Landis LLP's Corporate Immigration Law News Blog.Post Authored By: Anthony F. Siliato, Esq. and Scott R. Malyk, Esq. of Meyner and Landis LLP