Legal Issues Impacting Your Business
In this update:
H-1B Lottery Results Expected within 6 Weeks
"Cap-Gap" Now Available to All H-1Bs Chosen in the LotteryOPT Extension Update
H-2B Program "Fix" Considered in Congressional Hearing
Large "Raid" at Pilgrim's Pride Plants Throughout U.S.
Iowa Anti-Immigration Bill Passes the House
H-1B Lottery Results Expected within 6 Weeks
The H-1B lottery has been conducted. We received a receipt for the one premium processing case we filed. The other receipts are not expected for about 6 weeks. We will get a receipt only if the case has been chosen in the lottery. Other cases will be sent back with the filing fee.
"Cap-Gap" Now Available to All H-1Bs Chosen in the Lottery
As reported earlier, ICE (Immigration & Customs Enforcement) issued a rule that H-1B applicants chosen in the lottery whose status expired before Oct. 1, 2008, could still remain and work in the U.S. until Oct. 1 if they had asked for a "change of status" rather than consular notification.
Now CIS (Citizenship & immigration Services - the agency that adjudicates the H-1B applications) has issued guidance on a procedure to follow if the H-1B was not for change of status, but you would like to change it. A list of emails is provided to notify the Service Center of the change request, and instructions are given about what to say on the email.
We cannot notify the Service Center of this unless your case is chosen in the lottery. We will monitor the receipts and make these notifications for any affected cases.
OPT Extension Update
As reported earlier, some students on OPT ("optional practical training") may extend their work authorization to a total of 29 months if they have a "STEM" (science, technology, engineering or math) degree AND if their employer is signed up for E-Verify.
The list of the acceptable degrees is found at http://www.ice.gov/sevis/stemlist.htm.
E-Verify is an electronic employment verification system. Registration for E-Verify is now required in certain states by state law (not Iowa as yet!) either for all employers or for employers contracting with state government. Otherwise, E-Verify is optional.
We would be happy to discuss whether E-Verify makes sense for your company or is required in any of your company's locations. It is possible to register one work site or office for E-Verify and not register the whole company.
ICE has also updated the SEVIS (the electronic student registration and tracking program) to allow the foreign student advisors to recommend the OPT extension, as required by the regulations. Therefore, we can now submit applications for the OPT extensions if desired (although most people will want to wait to see if they are chosen in the lottery, which would make the extension unnecessary). Please let us know if you would like to pursue this option.
H-2B Program "Fix" Considered in Congressional Hearing
The H-2B program is for seasonal, non-agricultural workers. Like the H-1B program, there is a numerical limitation ("cap") on the program, although it is divided into two parts so that the warmer parts of the U.S. do not have an unfair advantage over us cooler climates.
Every year, the H-2B program is also oversubscribed, harming scores of employers who count on a seasonal workforce.
Last week, the House of Representatives held a hearing on the H-2B program. It was scheduled to last for 1 and half hours, but lasted five hours! More than 300 employers personally came to the hearing, and more than 1,000 letters were submitted to the committee members from employers all over the country. Several Congressmen testified as did two H-2B employers. One person testified against the program, saying that H-2B workers were systematically abused and under paid, but offering no evidence of this.
Although it is far from certain, it looks like we may get some relief in this program - more H-2Bs - if the momentum of the hearing can keep going through Congress.
We know some of our clients are very interested in taking advantage of this program, but have been prevented from doing so because of the nature of the cap and the timing of the work season.
If you are interested in this program, we would be happy to help you contact Congress about it. It is important to keep this on their radar screen so something can be done!
Large "Raid" at Pilgrim's Pride Plants Throughout U.S.
ICE continues to aggressively enforce the immigration laws, and is focusing particularly on ID theft cases. Last week, 280 persons were arrested at Pilgrim Pride plants at various locations. Many were charged with federal ID theft. Interestingly, the investigation started with the Department of Labor. Although the details are not yet known, evidently the government became aware of the problem through use of the labor certification program.
Please contact us if you would like additional information on work site enforcement, I-9s and other compliance procedures.
Iowa Anti-Immigration Bill Passes the House
House File 2686 passed the House last week, but we hope it will stop there. This bill, if passed by the Senate and signed by the Governor, would create additional paperwork burdens for employers and have other unfortunate consequences.
It would require that all new hires in Iowa provide to the employer a driver's license or non-driver's ID issued by Iowa or the contiguous states within 10 days of employment. The employer would be required to sign another form (like an I-9) and keep a copy of the document.
The bill would also criminalize ID "theft" from a fictitious person (a fake ID would become a stolen ID) and would make working under a false or stolen ID "theft" under Iowa law. The value of the theft would be the value of the work done.
The bill would also prevent a person not lawfully present in the U.S. from being released on bail if arrested for any crime.
The bill also contains new rules about whether a worker is an independent contractor or employee in the construction industry. Re-classification of a person as an employee when the employer thought he/she was an independent contractor is a very serious and costly outcome, not to mention that it could lead to an I-9 violation because I-9s are only required for employees - not independent contractors.
You may contact your Iowa Senator to oppose this legislation by going to http://www.legis.state.ia.us.
Lori Chesser
