Change is coming – there were announced changes recently and there are anticipated changes given the recent election. To ensure we keep clients apprised of these changes we would like to invite you to the following speaking events and webinars hosted by Managing Partner David Z. Brown:
In Person Events –
In the Bay Area – offering free SHRM/HRCI Credit – David Z. Brown will be speaking for Visa Solutions LLC on the impact of a Trump Presidency and common immigration practice issues of concern to all companies who hire foreign workers. Three Bay Area locations available – December 7 and 8th. Space is limited, and events are only open to HR professionals. Please visit the Visa Solutions event page for more information and to register.
David is also doing the same talk the week prior on November 29th in Chicago for those clients who may wish to attend. Register here.
November 30th at 12 PST/3pm EST – David will focus on the Election’s impact on business immigration and discuss important compliance steps to pay attention to in light of a new Administration.
December 15 at 12 PST/3pm EST – David will focus on our firm’s efforts to “hack” the immigration process and make it more friendly for our clients by taking advantage of a full range of immigration options.
January 12 at 12 PST/3pm EST – David will speak on the new I-9 form that has recently been introduced and how to ensure continuing compliance with U.S. hiring requirements.
Registration for all Webinars is located on the Brown Immigration Law website, here.
As we previously noted in an email blast to all clients, we do expect significant changes and challenges on the immigration front. Since we first commented, Senator Lindsey Graham has publicly confirmed he will never permit eliminating the filibuster – which is perhaps the minority’s strongest weapon to limit legislative consideration of bills proposed by the majority party. This public stance by Senator Graham is meant to notify President Elect Trump that he will need to advance reasonable legislation if he wants positive legislative outcomes. On the immigration policy debate, the existence of the filibuster can have a profound impact on slowing detrimental legislative attempts, if the Democrats view them to be problematic. However, it is anticipated that all of President Obama’s Executive Actions related to immigration face reversal, and we anticipate there will be a review of more recent regulatory policy by the new Administration. Additionally, Republican legislators have attempted to pass a whole slew of restrictive immigration measures in prior congresses and we anticipate those bills will be reintroduced for consideration.
We expect more regulation/restrictions, more deportations, more enforcement, mandatory eVerify, additional border fencing, and the end of DACA – for those clients we represent who are on DACA we will discuss alternative options if they exist. And while NAFTA trade provisions are squarely in the President Elect’s crosshairs, it is hard to know how he plans to achieve his promise in this area, and if any move against the tariff provisions will impact individuals who qualify for TN status. We do know that any negative action taken against NAFTA will take at least six months to take effect, most likely longer.
At this point we anticipate much will change, and will do our best to separate fact from fiction after the President Elect and the new Congress start their term.
Effective December 23, 2016, USCIS will significantly increase its fees for the majority of applications they process. This final rule is the result of a prior fee increase proposal that received comments over the summer. Below is a chart that includes the fee changes for the applications and petitions most relevant to our clients. Note – an I-129 is the main form we file for any H/L/TN/O petition. The fee changes for other forms are available at uscis.gov.
|Immigration Benefit Request||New Fee||Old Fee|
The Board of Alien Labor Certification Appeals (“BALCA”) upheld the denial of a PERM application filed by Dell Marketing after it failed to include a resume received in response to its recruitment efforts in its audit response. BALCA reasoned that an officer’s ability examine a U.S. applicant’s resume “goes to the very purpose” of the PERM program, as it is necessary for the determination of whether any U.S. workers are available. Dell was unsuccessful in its argument that the missing resume was an “inadvertent omission” and ultimately a harmless error since it did not change the outcome of its recruitment efforts. BALCA stood firm on the denial, stating it was Dell’s responsibility to ensure compliance with the relevant regulations, which includes maintaining all resumes to produce in the event of an audit. This decision simply underscores the importance that any audit response is 100% complete, and that all necessary PERM related steps are followed with every submission.
On October 26, 2016, U.S. Department of Labor Administrative Law Judge (ALJ) Jonathan C. Calianos clarified rules in Administrator v. Woodmen of the World Life Society that regulate an employer’s ability to deduct visa fees from the employee’s wages. The ALJ emphasized the current regulation that an employer can deduct H-1B visa fees from their employees’ wages so long as the deductions do not cause the wage to fall below the prevailing wage based on the certified Labor Condition Application (LCA). In this case, the ALJ ruled that Woodmen of the World Life Insurance Society did not have to pay $5,800 in back wages that were originally deducted from an H-1B software engineer’s paycheck to pay the cost of the H-1B legal fees. Specifically, the ALJ explained that the employer did not violate any law when it deducted the $5,800 from the employee’s unused vacation pay after he voluntarily resigned from his position with the company because the employee’s benefits were offered on the same basis and in accordance with the same criteria as offered to U.S. workers. Judge Calianos explained, “An H-1B employer is prohibited from imposing its business expenses on the H-1B worker – including attorney fees and other expenses associated with the filing of an LCA and H-1B petition – only to the extent that the assessment would reduce the H-1B worker’s pay below the required wage.” Because the employee’s wage was not affected by the deduction, there was no violation.
Please remember, however, that an H-1B visa employee can never be required to pay any penalty for failure to complete the full employment period; the H-1B employee must never pay the USCIS education and training fee; and if the employee’s wage is under a collective bargaining agreement, the employer must pay all legal and filing fees associated with the H-1B visa application. Please contact your counsel to confirm that proposed fee-sharing between employer and employee comply with US regulations.
Beginning December 1st, the Department of Labor (DOL) will begin issuing all PERM correspondence via email in an effort to conserve time and resources. This means all audit, denial, request for information, withdrawal, and decision from appeal notifications will be emailed to the representative and employer contact listed on the PERM. In addition, audit-related responses and responses to requests for information will be submitted electronically rather than through mail/courier. There may be some initial delays as the DOL implements the new notification system and we will monitor any pending PERM filing to ensure we receive any necessary notification.
On October 24, 2016, the Department of Homeland Security submitted new proposed regulation related to portability for highly skilled immigrants to the Office of Management and Budget for review so the final version may be published. Among the many changes that would seek to increase job stability and flexibility, the regulation notably will eliminate automatic revocation of immigrant petitions in cases where the immigrant petition has been approved for more than 180 days and the petitioner seeks to withdraw. The regulation would also facilitate the ability to accept new jobs, allowing for a one-time grace period of up to 60 days for E-1, E-2, E-3, H-1B, H-1B, H-1B1, L-1, and TN visa holders whose job ends. Furthermore, the regulation would also allow those with approved immigrant petitions in L-1, O-1, H-1B, H-1B1, or E-3 status to apply for work authorization for one year if an immigrant visa is not available and the applicant can prove “compelling circumstances.” The review process typically takes at least 90 days before a final regulation can be shared. We’ll monitor this proposal closely to see if the change in administration has any impact on this.
DOS released the December Visa Bulletin. For the Application Final Action Dates, there is little movement across the board. For EB-2 and EB-3 China, EB-3 remains ten months ahead (July 1, 2013 versus September 22, 2012) of EB-2. EB-2 India made modest gains, moving forward three months up to February 1, 2008 and EB-3 only to seven days to March 15, 2005. EB-3 Philippines inched two months forward at June 1, 2011. EB-1 remains current across all chargeability areas and EB-3, all other remains unmoved since last month at July 1, 2016. Again, USCIS has said they will accept the Dates for Filing Visa Applications, which allows for March 1, 2013 and May 1, 2014 priority date filings for EB-2 and EB-3 China, respectively. EB-2 India priority date holders with a April 22, 2009 or earlier date could file, as could EB-3 priority date holders with a July 1, 2005 date or earlier. The filing date for EB-3 Philippines also remains unmoved from last month at September 1, 2013.
** This newsletter/memo is provided for informational and discussion purposes only. It does not act as a substitute for direct legal contact on an individual basis **