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  1. SUMMARY OF PROPOSED NO-MATCH RULE

    by , 03-21-2008 at 07:07 PM (Greg Siskind on Immigration Law and Policy)
    In August 2007, a long awaited "no-match
    letter" regulation from US Immigration and Customs Enforcement was
    released. It quickly was challenged in court and the rule was barred from
    taking effect by a federal district court. Today, DHS released a proposed rule that makes very few actual changes to the previously released rule and instead attempts to address procedural questions raised by the court in its preliminary injunction.



    The rule describes the
    obligations of employers when they receive no-match letters from the Social
    Security Administration or receive a letter regarding employment verification
    forms from the Department of Homeland Security.  The rule also provides
    "safe harbors" employers can follow to avoid a finding the employer
    had constructive knowledge that the employee referred to in the letter was an
    alien not authorized to work in the US. Employers with knowledge that
    an immigrant worker is unauthorized to accept employment are liable for both
    civil and criminal penalties.   

    The rule finalized a proposed rule released on June
    14, 2006. The Department of Homeland Security, ICE's parent department, received nearly 5,000
    comments on the rule from a variety of interested parties including employers,
    unions, lawyers and advocacy groups. According to DHS, the opinions were highly
    varied with both strong opposition and support being enunciated. DHS also held
    a meeting with business and trade associations to discuss the proposed rule.
     

     

    Why did the court block the rule from taking
    effect?

    The rule was challenged
    in court prior to it taking effect in September 2007 and a judge issued a
    preliminary injunction on three grounds:

    DHS failed to supply a reasoned analysis justifying what the court thought was a change in DHS' position - that a no-match letter may be sufficient, by itself, to put an employer on notice that its employees may not be work authorized;

    DHS exceeded its authority (and encroached on the authority of the Department of Justice) by interpreting anti-discrimination provisions in the Immigration Reform and Control Act (IRCA); and

    DHS violated the Regulatory Flexibility Act by not conducting a regulatory flexibility analysis.




    How has DHS attempted to address the court's
    objections?

    On March 21, 2008, DHS
    released a supplemental proposed rule designed to address the court's concerns.
    DHS is hoping that the court will overturn the preliminary injunction and allow
    the agency to implement the proposed rule. The agency is also continuing to
    appeal the court's order. The agency is providing 30 days for comments.

    In the proposed rule,
    DHS first addressed the court's concern that that agency had failed to provide
    a detailed analysis explaining the agency's new position that no match letters
    are an indicator of unauthorized status.

    DHS first cites a number
    of sources indicating that Social Security numbers are being used to gain
    employment authorization by people unauthorized to work. It included quotes
    from the 1997 report of the US Commission on Immigration Reform and also cites
    reports issued by the Government Accountability Office and the Inspector
    General of the Social Security Administration. It also notes that the
    industries most affected by the rule have admitted that much of their workforce
    is unauthorized and millions of employees have used false numbers. Finally, the
    agency cites to public and private studies confirming that a sizeable portion
    of employees identified by no-match letters are working illegally in the United States.



    DHS cites two other
    justifications for the law. First, many employers fail to respond to no-match
    letters because they fear being accused of violating anti-discrimination rules
    if they react inappropriately to them. The no-match rule would provide
    protection from such liability if the employer follows the requirements of the
    regulation. Second, many US citizens and aliens would benefit by being notified
    of problems in the Social Security database and being able to get proper credit
    for their earnings. US citizens would also benefit, according to DHS, by seeing an expansion of
    employment opportunities as a result of unauthorized employees being terminated
    for not providing a valid Social Security number.

    DHS then describes in
    the rule a series of rulings and opinions by the agency that it believes show
    the agency has had a consistent position on no-match letters. But the agency
    states that even if it concedes that it is taking a new position, it meets the
    requirement to show a reasoned analysis justifying the chance in policy. In
    this case, it states that the "most basic justification for issuance of this
    rule - and for the "change" in policy found by the district court - is to
    eliminate ambiguity regarding an employer's responsibilities upon receipt of a
    no match letter. Absent this rule, employers have been taking very different
    positions based on DHS' ambiguous statements.

    DHS also defends the
    rule by pointing out that only employers with more than 10 employees identified
    with no-matches get SSA no-match letters and only if the percentage of
    no-matches exceeds .5% of the employer's work force.

    With regard to the
    question of usurping the Justice Department's anti-discrimination enforcement
    authority, DHS insists that its rule does not interfere with "the authority of
    DOJ to enforce anti-discrimination provisions of the INA or adjudicate notices
    of intent to fine employers."

    It also specifically
    rescinded statements from the August 2007 rule's preamble describing employers'
    obligations under anti-discrimination law or discussing the potential for
    anti-discrimination liability. That includes the statement "employers who
    follow the safe harbor procedures...will not be found to have violated unlawful
    discrimination."

    With respect to the
    regulatory flexibility analysis, DHS takes the position that the rule is a
    voluntary safe harbor rather than a mandate. Hence, the rule does not require a
    showing that employers will not be significantly impacted economically.

    However, the agency
    claims it is going to comply with the judge's ruling by providing an initial
    regulatory flexibility analysis (IRFA). They have provided a very cursory summary
    of the analysis in the proposed regulation, but DHS says it will provide a full
    analysis in the docket of the rulemaking.

    DHS claims that it has
    been stymied to some extent in providing a highly specific analysis because the
    Social Security Administration has denied its request for the names and
    addresses of the companies already identified by SSA in its preparation to
    release no-match letters pursuant to the August 2007 regulation. SSA reminded
    DHS that this disclosure would actually be illegal under taxpayer privacy laws.
    SSA did, however, provide more general information including a table showing
    the distribution of employers slated to receive no match letters in 2006. DHS
    estimates it will cost employers anywhere from $3,009 to $33,759 depending on
    the size of the employer and the percentage of current no-match employees
    assumed to be unauthorized. DHS does not believe these costs constitute a "significant
    economic impact."

    DHS notes that the costs
    associated with losing an employee as a result of the rule are due to the
    Immigration and Nationality Act itself and not the new rule. However, the
    agency does not mention "false positives" where employees authorized to work
    are incorrectly identified in a no match letter. The agency did not account for
    costs associated with losing employees not being able to resolve problems
    within 90 days, something that critics fear will become common as hundreds of
    thousands of people attempt to resolve problems at the same time under the new
    rule.

    DHS did site the
    following costs: labor cost for human resource personnel, certain training
    costs, legal services and lost productivity.

     

    Did DHS mention any changes to the August 2007 rule
    in its proposed rulemaking?

    DHS only announced two
    relatively minor changes. First, DHS changed the rule require that employers "promptly"
    notify affected employees after they are unable to resolve a mismatch through
    internal checks. Employers would now be given five business days to notify
    employees.

    Second, DHS makes clear
    that employees hired before November 1, 1986 are not covered by the no-match
    rule since these workers are not subject to IRCA.

     

    --------------------------

    The following is a
    summary of the rule released in August 2007 with notes in brackets showing
    changes made by the March 21, 2007 proposed rule]  

    Why did ICE issue this rule?   

    All employers in the US are required to report social
    security earnings for their workers. Those W-2 form reports listing an
    employee's name, social security number and the worker's earnings are sent to
    the Social Security Administration. In some cases, the social security number
    and the name of the employee do not match. In some of these cases, the SSA
    sends an employer a letter informing the employer of the no-match.   

    In some cases, the no-match is the result of a
    clerical error or a name change. In other cases, it may indicate that an
    employee is not authorized to work.   

    ICE issues similar letters to employers after they
    conduct audits of an employer's Employment Eligibility Verification forms (the
    I-9s) and find evidence that an immigration status document or employment
    authorization document does not match the name of the person on the I-9
    document.   

    To date, there has been considerable confusion and
    debate over an employer's obligations after receiving a letter like this as
    well as whether an employer would be considered to be on notice that an
    employee is not unauthorized to work. This rule clarifies both issues albeit in
    a way that will be very unfriendly to employers and workers.   

    DHS cites the Mester Manufacturing case from the
    9th Circuit Court of Appeals to remind employers that if they will have
    "constructive" knowledge that an employee is out of status, they are
    in violation of IRCA, the statute that punishes employers for knowingly hiring
    unlawfully present workers or violating paperwork rules associated with the I-9
    employment verification form. 

     

    When is this rule effective?   

    It becomes effective September 14, 2007.  [Note that DHS has not stated how much lead time would be provided between release of a new rule and its implementation date].


     

    How has the definition of "knowing"
    changed in the rule?

    Two additional examples of "constructive
    knowledge" are added to the list of examples of information available to
    employers indicating an employee is not authorized to work in the US. First, if
    an employer gets a written notice from the SSA that the name and SSN do not
    match SSA records. And second, written notice is received from DHS that the
    immigration document presented in completing the I-9 was assigned to another
    person or there is no agency record that the document was assigned to anyone.
     

    However, the question of whether an employer has
    "constructive knowledge" will "depend on the totality of
    relevant circumstances." So this rule is just a safe harbor regulation
    telling how an employer can avoid a constructive knowledge finding, but not
    guaranteeing that an employer will be deemed to have constructive knowledge if
    the safe harbor procedure is not followed.   

     

    What steps must an employer take if it gets a no-match
    letter?   

    First, an employer must check its records to
    determine if the error was a result of a typographical, transcription or
    similar clerical error. If there is an error, the employer should correct the
    error and inform the appropriate agency - DHS or SSA depending on which agency
    sent the no-match letter. The employer should then verify with that agency that
    the new number is correct and internally document the manner, date and time of
    the verification. ICE is indicating in the preamble to the regulation that 30
    days is an appropriate amount of time for an employer to take these steps.
     

    If these actions do not resolve the discrepancy,
    the employer should request an employee confirm the employer's records are
    correct. If they are not correct, the employer needs to take corrective
    actions. That would include informing the relevant agency and verifying the
    corrected records with the agency. If the records are correct according to the
    employee, the reasonable employer should ask the employee to follow up with the
    relevant agency (such as by visiting an SSA office and bringing original or
    certified copies of required identity documents). Just as noted above, thirty
    days is a reasonable period of time for an employer to take this step.   

    The rules provide that a discrepancy is only
    resolved when the employer has received verification from SSA or DHS that the
    employee's name matches the record.   

    When 90 days have passed without a resolution of
    the discrepancy, an employer must undertake a procedure to verify or fail to
    verify the employee's identity and work authorization. If the process is
    completed, an employer will NOT have constructive knowledge that an employee is
    not work authorized if the system verifies the employee (even if the employee
    turns out not to be employment authorized). This assumes that an employer does
    not otherwise have actual or constructive knowledge that an employee is not
    work authorized.

    If the discrepancy is not resolved and the
    employee's identity and work authorization are not verified, the employer must
    either terminate the employee or face the risk that DHS will find constructive
    knowledge of lack of employment authorization.   

     

    What is the procedure to re-verify identity and
    employment authorization when an employee has not resolved the discrepancy as
    described above?   

    Sections 1 and 2 of the I-9 would need to be
    completed within 93 days of receiving the no-match letter. So if an employer
    took the full 90 days to try and resolve the problem, they then have three more
    days to complete the new I-9. And an employee may not use a document containing
    the disputed SSN or alien number or a receipt for a replacement of such a
    document. Only documents with a photograph may be used to establish identity.
     

     

    Does an employer need to use the same procedure to
    verify employment authorization for each employee that is the subject of a
    no-match letter?   

    Yes, the anti-discrimination rules require employer
    to apply these procedures uniformly. DHS is also reminding employers about the
    document abuse provisions which bar employers from failing to honor documents
    that on their face appear reasonable. But employers now have the safe harbor of
    a new regulation stating that this provision does not apply to documents that
    are the subject of a no-match letter.   

    DHS notes that if employers require employees to
    complete a new I-9 form, the employer must not apply this on a discriminatory
    basis and should require an I-9 verification for ALL employees who fail to
    resolve SSA discrepancies and apply a uniform policy to all employees who
    refuse to participate in resolving discrepancies and completing new I-9s.
     

    Note that
    under the March 2008 proposed changes to the August 2007 rule, employees hired
    before November 6, 1986 are not subject to this rule.

     

    What if the employer has heard that an employee is
    unlawfully present aside from hearing from SSA or DHS in a no-match letter?
     

    Employers who have ACTUAL knowledge that an alien
    is unauthorized to work are liable under the INA even if they have complied
    with the I-9 and no-match rules. But the government has the burden of proving
    actual knowledge. DHS also notes that constructive knowledge may still be shown
    by reference to other evidence.   

     

    Does DHS have the authority to regulate the
    treatment of notices received by the SSA?   

    A number of comments on the rule questioned this
    issue, but they were dismissed by DHS. Presumably, the issue could be the
    source of litigation. 

     

    Why is DHS issuing this rule when the White House
    supports comprehensive immigration reform that would give employers legal
    options for hiring these workers?   

    DHS indicated in the preamble to the rule that
    while it wants to work with Congress on such legislation, there is no way to
    predict when it will pass and interior enforcement needs to be conducted.
    Others are arguing that the White House is interested in demonstrating to
    Congress that it is "getting tough" on illegal immigration in order
    to increase the likelihood that members of Congress would support CIR.   

     

    Will following the procedures in this rule protect
    an employer from all claims of constructive knowledge, or just claims of
    constructive knowledge base on the letters for which the employers followed the
    safe-harbor procedure?   

    An employer who follows the safe harbor procedure
    will be considered to have taken all reasonable steps in response to the notice
    and the employer's receipt of the written notice will there not be used as
    evidence of constructive knowledge. But if other independent exists that an
    employer had constructive knowledge, the employer is not protected.   

     

    Are there any special rules for circumstances such
    as seasonal workers, teachers on sabbatical and employees out of the office for
    an extended period due to excused absence or disability?   

    No, but DHS has noted that the rule provides a safe
    harbor to prove an employer does NOT have constructive knowledge and that if an
    employer makes a good faith effort to resolve a situation as rapidly as
    practicable and documents such efforts, that would be considered in evaluating
    the question of constructive knowledge.   

     

    What are the time frames required under the rule to
    take each necessary action after receiving the no-match letter?   

    Employer checks own records, makes any necessary corrections of errors, and verifies corrections with SSA or DHS (0 - 30 days)

    If necessary, employer notifies
    employee and asks employee to assist in correction (0 - 90 days) [Note: Under the March 2008 proposed rule, employers have five days to notify employees of the no-match if the employer conducts its internal review]

    If necessary, employer corrects own
    records and verifies correction with SSA or DHS (0 - 90 days)

    If necessary, employer performs
    special I-9 procedure (90 - 93 days)

     

    May an employer continue to employ a worker a
    worker throughout the process noted above?   

    Yes. The only reason an employer would have to
    terminate prior to 93 days if the employer gains actual knowledge of
    unauthorized employment. DHS notes that it is not requiring termination by
    virtue of this rule; rather, they are just providing a safe harbor to avoid a
    finding of constructive knowledge. Employers may be permitted to terminate
    based on its own personnel files including failing to show up for work or an
    employee's false statement to the employer. [Note: SSB always recommends
    consulting labor counsel before terminating employees for such reasons during
    the no-match process].

    Employers may terminate as well if they notify an
    employee of the no-match letter and the employee admits that he or she is
    unauthorized to work.   

     

    What if the no-match letter is sent to the
    employee, not the employer?   

    The new rule only applies in cases where the
    written notice is to the employer.   

     

    Does it matter which person at the employer
    receives the letter?   

    No and DHS will not allow a designated person to
    receive these letters despite concerns raised about a no-match letter not
    making it to the appropriate party for too long. DHS has noted that an employer
    can determine an office within a company that becomes the recipient of all mail
    from DHS and SSA.   

     

    Does verification through systems other than that
    described in this rule provide a safe harbor?   

    No, and this includes instances where SSA provides
    options SSN verification as well as the USCIS electronic employment
    verification system. But DHS does note that DHS may choose to use prosecutorial
    discretion when employers take such steps.   

     

    Does an employer filing for a labor certification
    or employment-based green card application have constructive knowledge constitute
    "constructive knowledge" that a worker is unauthorized?   

    The new rule includes language stating "an
    employee's request that the employer file a labor certification or
    employment-based visa petition on behalf of the employee" may be an
    example of a situation that may, depending on the totality of relevant
    circumstances, require an employer to take reasonable steps in order to avoid a
    finding of constructive knowledge. But DHS notes that some employees are
    work-authorized and are not necessarily unauthorized to work just because they
    request such sponsorship from an employer.   

     

    Does an employer have to help an employee resolve
    the discrepancy with SSA or DHS?   

    No. An employer merely needs to advise the employee
    of the time frame to resolve. They are not obligated to help resolve the
    question or share any guidance provided by SSA.   

     

    In what manner must employers retain records
    required under the new rule?   

    The rule is flexible in this regard and employers
    may use any manner it chooses. The rule permits employers to keep records
    alongside the I-9 form. Employers are encouraged to document telephone
    conversations as well as all written correspondence.

     

    If a new I-9 is prepared based on this rule, does
    that affect the amount of time the I-9 must be retained?   

    No. The original hire date remains the same even
    though the safe harbor procedure is used. So if an employer was hired several
    years ago, for example, has the I-9 form prepared again and then moves on to a
    new employer, the original date of hire applies for purposes of determining
    whether the one year retention requirement still applies.   

     

    Doesn't requiring an employee to fill out a new I-9
    form per this rule constitute document abuse?   

    DHS does not believe this is the case because any
    document presented that contained a suspect SSN or alien number would not be
    facially valid and that it is proper for employers to require new
    documentation.   

     

    Won't this rule lead to massive firings across the
    country?   

    Many people are certainly worried that employers
    won't bother to go through the safe harbor procedures and will just panic and
    fire all workers that are the subject of these notices or will simply decide
    not to spend the effort complying. DHS denies that this is likely to be the
    case and has said the rule is in response to confusion under the current
    process.   

     

    Will an employer be liable for terminating an
    employee who turns out to be work authorized if they get a no-match letter?
     

    If the employee IS authorized to work and an
    employer does not go through the various safe harbor steps in the rule, then
    the employer might be liable in an unlawful termination suit.   

     

    Won't this rule result in a major negative economic
    impact on the country?   

    That is an argument being advanced by many
    opponents of the rule. DHS only responds that this is speculative and also that
    complaints that small firms would be disproportionately affected because of the
    costs in complying are speculative as well.   

     

    What if the employee is gone by the time the
    no-match letter arrives?   

    An employer is not obligated to act on a no-match
    letter for employees no longer employed by them.   

     

    Aren't SSA and DHS databases unreliable?   

    DHS admits that the SSA and DHS databases have
    problems (as evidenced by GAO studies). But they say a no-match letter is
    nothing more than an indicator of a problem and that this does not warrant
    alone stopping the changes proposed in the rule.   

     

    Won't this rule encourage identity theft?   

    DHS denies it, but critics are concerned that the
    only step left for workers is to ensure that a social security number and name
    match and the only way for an unlawfully present worker to ensure this is to
    usurp someone's identity. DHS believes the criminal penalties for identity theft
    will act as a sufficient deterrent.

  2. NEW SOCIAL SECURITY NO MATCH RULE RELEASED

    by , 03-21-2008 at 11:54 AM (Greg Siskind on Immigration Law and Policy)
    Download nomatchsnprm_0308.pdf

    Here it is after months of waiting. I'm pouring through it now and will shortly post a detailed summary.

  3. TIMES REPORTS ON USCIS SEX FOR GREEN CARDS SCANDAL

    by , 03-21-2008 at 11:52 AM (Greg Siskind on Immigration Law and Policy)
    Several of you have linked to this really outrageous story from this morning's New York Times front page. Were it only a one time incident, it would be easy to dismiss as a bad apple. But this is not the first time I've reported on a scandal like this on this blog. And it's just one type of corruption in a broad range. Most examiners at USCIS are decent people just trying to do a difficult job. But there is a subculture at the agency comprised of abusive individuals who probably were bullied themselves at one point in life and now take their revenge on the immigrants who are at their mercy. I don't know how the agency can identify this minority within the agency, but when they don't stories like these become front page scandals. One suggestion - have customer-friendly, well-publicized systems to report abusive behavior by examiners and then take those complaints seriously. Make an anonymous reporting system so people don't feel intimidated in making their complaints (obviously with safeguards to prevent people from being punished based on false reports).
  4. H-1 Season in full swing

    Between the fact that H-1 season is in full swing and Congress is out of session, there isn't anything to update everyone on. We may be quiet until after April 1. But if something of interest breaks, we'll be sure to post it.
  5. MY H-1B CAP FAQ

    by , 03-21-2008 at 05:33 AM (Greg Siskind on Immigration Law and Policy)
    The ABC's of Immigration - The
    H-1B Cap



    It's a rather long post, but here is my detailed FAQ on the new H-1B cap incorporating changes announced March 19, 2008 in a new USCIS regulation.



    On October 1, 2003, the allotment
    of H-1B visas provided annually by Congress dropped from 195,000 to 65,000. Out
    of that number, 6,800 are reserved for the H-1B1 program for nationals of Chile and Singapore. Numbers not used of that 6,800 (which will likely be several thousand) will be made available in the 45 day period beginning October 1st. Congress also has allocated an additional 20,000 H-1B visas for graduates of US masters programs or higher. 

    This week, the H-1B cap for fiscal
    year 2009 is to open up and USCIS is expected to announce almost immediately
    that it has received enough applications to meet the 2009 cap (which covers the
    fiscal year running from October 1, 2008 to September 30, 2009. Numbers in the
    20,000 pool will likely last a little longer, but probably not much more than a
    few days.



    The next allotment of H-1B visas
    in the 65,000 pool will open up on October 1, 2010 with applications being
    accepted on April 1, 2009. Until then, it will be impossible to obtain new H-1B
    visas for cap subject employees except for visas leftover from the H-1B1
    Singapore/Chile program.
     

    Who is actually subject to the
    cap?  

    Not every H-1B applicant is
    subject to the general cap. The cap does not apply to applicants filing
    H-1B visas through institutions of higher education or their related or
    nonprofit entities as well as nonprofit research organizations and government
    research organizations.   

    Visas will still be
    available for applicants filing for amendments, extensions, and
    transfers unless they are transferring from an exempt employer or exempt
    position and were not counted towards the cap previously (such as a physician
    who receives an H-1B for residency training with an exempt hospital and then
    seeks a job in private practice afterwards) 



    Physicians receiving waivers of
    J-1 home residency requirements as a result of agreeing to serve in underserved
    communities are exempt. Also, graduates of US masters and doctoral degree
    programs draw numbers from a "bonus" allotment of 20,000 visas. As noted above,
    nationals of Singapore and Chile draw from a separate cap of 6,800 (5,400
    for Singapore and 1,400 for Chile ). 
     

    Must one be employed by the
    institution by which he or she is claiming the H-1B cap? 

    Note that the statute states that
    applicants who work AT such institutions are covered so individuals employed by
    entities other than these institutions but who provide services at the
    qualifying institution may be cap exempt.   

    In 2006, USCIS released a memorandum
    discussing this question. The agency recognized that the law permitted third
    party employers to obtain a cap exemption, but set a requirement that the
    employment must "directly and predominantly" further the essential purposes of
    the qualifying institution.   



    USCIS has stated that the burden
    is on the petitioner to establish there is a logical nexus between the work
    performed by the beneficiary and the normal primary or essential work performed
    by the institution. They specifically give the example of a physician employed
    by a medical group who serves patients at an exempt university hospital.   

     

    What does it mean to be
    "affiliated" or "related to" for purposes of the H-1B cap exemption? 

    USCIS in the same June 2006
    memorandum noted above has taken the position that "affiliated" for cap
    exemption purposes means the same thing as it does for fee exemption purposes
    (affiliates of institutions of higher education are exempt from worker
    retraining fees) even though the term is defined in the fee exemption statute
    and not in the cap exemption statute.   

    The term in the fee exemption
    context means "a nonprofit (including but not limited to hospitals and medical
    or research institutions) that is connected or associated with an institution
    of higher education, through shared ownership or control by the same board or
    federation operated by an institution of higher education, or attached to an
    institution of higher education as a member, branch, cooperative or
    subsidiary."   



    This relatively restrictive definition
    would seem to eliminate many employers. However, "related to" has yet to be
    defined by USCIS. 
     

    How does USCIS allocate H-1B visas
    for applications received on the day the cap is announced as having been hit?  

    USCIS' policy is to hold a random drawing
    to select the exact number of petitions from the day's receipts needed to meet
    the cap. USCIS announced that for FY2009, if it receives too many applications
    in the first five days, all applications received in those five days will be
    considered together in a random drawing.  This is a change from the
    previous year where just two days' worth of H-1B applications were included
    together.



    All cases filed on that date or
    later that are subject to the H-1B cap will be returned.  Returned
    petitions will be accompanied by the filing fee. 
     

    Can an applicant re-submit an H-1B
    application?  



    Petitioners may re-submit their
    petitions when H-1B visas become available for FY 2010.  The earliest date
    a petitioner may file a petition requesting FY 2010 H-1B employment with an
    employment start date of October 1, 2009 would be April 1, 2009. 
     

    What will happen to the petitions
    that do not count against the cap?  

    Petitions for current H-1B workers
    normally do not count towards the congressionally mandated H-1B cap. USCIS will
    continue to process petitions filed to:   

    ∑        Extend the amount of time
    a current H-1B worker may remain in the United States

    ∑        Change the terms of
    employment for current H-1B workers

    ∑        Allow current H-1B workers
    to change employers (unless the beneficiary is transferring from a cap exempt
    employer to a cap subject employer and was never counted towards the cap- in
    that case the beneficiary will be subject to the cap)

    ∑        Allow current H-1B workers
    to work concurrently in a second H-1B position   

    USCIS will also continue to
    process petitions for new H-1B employment filed by applicants who will be
    employed at an institution of higher education or a related or affiliated
    nonprofit entity, or at a nonprofit research organization or a governmental
    research organization. USCIS will also continue to process H-1B petitions for
    workers from Singapore and Chile consistent with Public Laws 108-77 and 108-78.   

    And doctors working in underserved
    communities as a result of receiving a J-1 home residency requirement waiver
    sponsored by a state or federal agency will also be exempt from the annual cap
    even after they complete their service. Nationals of Singapore and Chile and graduates of US masters and doctoral programs will be counted against caps
    specifically set aside for those groups.   



    Note that beginning in January
    2008, USCIS requires cap exempt cases to be filed at the USCIS California Service Center.

     

    What will happen to F and J visa
    holders who are beneficiaries of an H-1B petition?  

    In the past, INS (now USCIS) had
    safeguards in place for those with F and J visa status.  According to 8
    CFR Section 214.2 (f)(5)(vi), if it can be determined that all of the H-1B
    visas will be used before the end of the current fiscal year, the director of
    USCIS can extend the duration of status of any F-1 student if the employer has
    timely filed an application for change of status to H-1B. However, in recent
    years, USCIS has chosen not to exercise this discretion and no word has been
    given on whether they will or will not do so in the future.   



    8 CFR Section 214.2(j)(1)(vi) has
    similar language regarding those in J status.  If the USCIS director can
    determine that all of the H-1B visas will be used before the end of the current
    fiscal year, the director of USCIS may extend the duration of status of any J-1
    nonimmigrant if the employer has timely filed an application for change of
    status to H-1B. USCIS also declined in recent years to exercise this
    discretion. 
     

    When will the numbers in the new
    20,000 "bonus" cap be filled and who qualifies?  

    For the current fiscal year that
    began on October 1, 2007, USCIS reached the 20,000 cap on just a few weeks
    afterward. However, many believe the cap will be hit even earlier this year.
     



    To qualify in this bonus cap,
    applicants must have earned a US
    master's or higher degree. Graduates of medical residency and fellowship
    programs do not qualify in this category.
     

    What will happen if I am not
    exempt from the cap and my current status expires after the numbers run out?  

    USIn order to deal with the lack of
    H-1B visas, a number of alternate categories may be available including O-1
    visas, TN visas for Canadians and Mexicans, E-1 and E-2 visas, L-1s and J-1
    training programs. Many will look at pursuing graduate education in the United States and then
    will be eligible for the bonus H-1B quota.   

    An option available to many this
    year will be filing for permanent residency. There are many work-related green
    card applications that can be filed without a labor certification. And the new PERM labor certification
    program means that employment authorization can be obtained much earlier. Now
    that concurrent filing of I-140 and adjustment of status applications area
    available, it may be possible to secure an employment authorization document in
    a matter of a couple of months after the green card process is started.
    Furthermore, premium processing of I-140s is now available in several
    categories.   

    Note that green cards are
    backlogged as of April 2007 for numerous categories and nationalities so a
    permanent residency strategy may not work for many.   



    We advise
    people subject to the cap looking for alternative strategies to consult early
    with their immigration lawyers. 

     



    What happens if the 20,000 bonus
    cap for master's degree holders and higher and the general cap of 65,000 are
    reached within the first five days of the fiscal year?
     

    Under a
    rule promulgated in March 2008, If both caps are exhausted within the first
    five days, USCIS will first conduct a random selection process for the master's
    cap cases and then those not selected will be counted in the random selection
    process for the general cap. This is intended to ensure that those not selected
    in the master's cap are treated no worse than those in the general cap. A
    person not selected in either drawing will have his or her application
    rejected.







     
    What happens to petitioners who
    file multiple applications?
     





    Under the
    March 2008 rule released by USCIS, petitioners are barred from filing more than
    one H-1B petition on behalf of the same alien even if the petitions are for
    different positions. If an employer legitimately has two positions it wants an
    alien to fill, it would need to amend the application or file a concurrent H-1B
    application to change the job or add additional duties.  Employers found to have violated this rule
    will have all petitions for an individual worker rejected. Note that the new
    rule does not preclude related employers from filing petitions on behalf of the
    same employer. But in these cases, the related employer may be requested to
    show that it has a legitimate business need for the employee lest employers seek
    to use related employers to improve the chances of an applicant being selected. 



    Will an employer get a refund of the
    filing fees if it files a case claiming to be exempt from the H-1B cap and
    USCIS decides it is subject? 

    Under the
    March 2008 rule, USCIS will now deny the case and keep the filing fees rather
    than reject the case and return the fee. According to USCIS, this is because it
    is necessary for the agency to actually adjudicate the case to determine if it
    is subject to the cap.

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