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The H-1B Visa Blog by Siliato and Malyk

Considering Signing Up for E-Verify In Lieu of Filing an H-1B for an OPT?

Rating: 16 votes, 5.00 average.

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

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