New Immigration Policies in Today’s
Ever-Changing Landscape
Presented to HFTP in January 2020 by:
Fiona McEntee
@USVisaLawyer
About
Fiona
• Managing Attorney at McEntee Law Group
• Practicing immigration law exclusively for 12+ years
• From Dublin, Ireland & was once on F-1 visa (foreign student) so immigration is personal
• Founding Member of the O'Hare Airport Attorney Legal Team re: Travel Ban & sued the
Administration pro bono re: Travel Ban
• National & international media commentator on immigration issues
• Regularly featured on MSNBC, CNN.com, BBC, New York Times & other media outlets in US & abroad
• Recently published a children’s book on
About McEntee Law Group
• Established in 2010• Practice immigration law exclusively
• All types of immigration
• Business, entertainment, family, removal & deportation, waivers, etc.
• Diverse team of attorneys, law clerks, case managers & legal assistants
• Speak a variety of languages including:
• Spanish, Polish, Arabic, Aramaic, Gujarati, Japanese
• Headquartered in Chicago
• Satellite office in Dublin, Ireland
• As immigration law is federal, we represent clients throughout the U.S.
Clients, Industries, Incubators & Universities
•
Worldwide corporations
•
National retailers
•
Start-ups
•
Fiona is a mentor to many
incubators
•
Advisor to many universities
•
Top musicians, artists, & actors
•
Professional athletes
•
Entrepreneurs & investors
•
Industries include healthcare,
pharma, technology, agri-food,
consumer goods, retail, hospitality,
insurance, aviation, entertainment,
sports etc.
Today’s
Goals
• Discuss some commonly used visa options
• H-1B
• H-2B
• TN
• O-1
• Identify latest trends, topics & issues with each option
• Address the new H-1B pre-registration and what employers need to know
• How to be Audit or Site Visit Ready
• How to best prepare and ease any anxieties
H-1B
“Professional” or “Specialty
Occupation” Visa
H-1B Basics
Requirements:
• “Professional” level employees or those in “specialty occupations”
• Position must require a Bachelor’s degree (or higher) in a specific field or its equivalent
in experience (12 years)
• H-1B applicant must be qualified for that position
• Must be paid the prevailing or actual wage - determined by job category/location or by wages paid to other workers in similar positions
Duration:
• Initially granted for a 3-year period, can be extended for up to 6 years
• If an individual is in the middle of the green card process, can extend H-1B beyond 6 years
H-1B Cap
•
New H-1B visas are limited in number
•
Annual cap of 65,000 new H-1Bs, plus 20,000 for those with a U.S. Master's
degree or higher
•
Generally, demand > supply, so there is a random lottery generated to see
which cases will be adjudicated
•
In the first week of April 2019, USCIS received about 200,000 applications for
the 85,000 numbers available
•
If selected & approved, the earliest a H-1B takes effect is October 1
st•
If on OPT & certain conditions met, might be able to get "cap gap" work
authorization to continue OPT until October 1
st•
Some employers (e.g. universities & affiliates) exempt from the cap
•
H-
1B transfers not subject to “cap”
- filed at any time during the year
–
only
subject to cap once
Hot Topic: Recent Changes to the H-1B Cap
Last Year: Cap Selection Order Change
• USCIS reversed selection order based on education
• Gave further preference to those with U.S. Masters Degrees (or higher)
• Estimated increased chance of cap selection by about 16% for those with Masters
This Year: Pre-Cap Registration
• Employers will have to register H-1B candidates online for H-1B cases before the application deadline
• Employers will have to wait to see if their employee is selected before filing the H-1B case with the USCIS
• As always, duplicate petitions filed by the same employer for the same employee prohibited
H-1B Registration Timeline
Step 1: March 1- 20 2020, file basic
info in registry with $10 reg fee
Step 2: April 1, 2020, lottery begins Step 3: 65,000 selected w/ bachelor’s degree or above Step 4: 20,000 selected w/ master’s degree Step 5: 90 days to file H-1B application
H-1B Registration Portal & Info
• We are anticipating that the USCIS will use the myUSCIS portal but it’s still notconfirmed – based on info received during the beta-testing
• January 9th, the USCIS published a notice that employers & their attorneys can set up
registration accounts in advance of the registration period BUT we still don’t know
where/how to do this
• Uncertainty even at this late stage is concerning • Info Needed:
• Employer info, EIN, Signatory
• Beneficiary’s name, DOB, COB, COC, gender, passport #
• Master’s or higher
• Attestation true/accurate and petitioner intends to employ Beneficiary
H-1B Registration: Timeline Considerations
• Should H-1B case be prepared in advance of registration?
• That way it would be ready for filing on April 1st if selected in lottery
• What if registration doesn’t work as the USCIS intended?
• Could they revert back to paper filing system on April 1st?
• When should H-1B be filed, if selected?
• Any cap gap considerations?
• Premium processing available?
Hot Topic: Other H-1B Issues
1. “Buy American & Hire American” Executive Order signed in April 2017
• Directed DHS to suggest reforms to ensure H-1B visas given to only "most-skilled or highest paid"
• We have seen increased scrutiny & higher standards in adjudication 2. Increase in RFEs (60%)
3. Increase in denials, especially for new cap cases (33%) – some federal lawsuits 4. Level 1 & 2 Wage Challenges
High % of Request for Evidence in these cases 5. USCIS Policy Memo, March 2017
• “Entry-level” computer programmer position would not qualify for a H-1B visa –
H-1B Visa: Advantages & Disadvantages
• Advantages of H-1B Visa:• Employees can transfer H-1B from one employer to another
• Employees can have “dual intent” (i.e. allowed to pursue a green card while in H -1B status)
• Disadvantages of H-1B Visa:
• The cap is not available year-round, unless cap exempt
• Application period is March/April
• Limited number of H-1B visas available – likely results in random lottery selection
• H-1B visas are under a heightened level of scrutiny under the current Administration
H-2B
Temporary Worker
(Non-Agricultural)
H-2B Visa: What is it?
• The underlying job is temporary:
• One-time occurrence
• Seasonal need
• Peak-load need
• Intermittent need
• Not enough qualified US workers
• Typical H-2B positions include:
• Landscaping & Ground-scaping
• Housekeepers & Cleaners
• Waitstaff & other restaurant workers
H-2B Cap
•
Congressional
“cap”
on the amount of H-2B visas granted per fiscal year:
•
Currently set at 66,000
•
Cap opens twice a year, open to 33,000 workers each time
•
With the H-2B visa timing is critical
•
Jan 1
st-> spring/summer season - positions starting April 1
stEmployers MUST Adhere to the
Conditions Outlined in the H-2B Petition
Issues in this case:• Paid workers less than the required wage
• Failed to notify federal agencies of early separation of six H-2B workers
• Assigned H-2B employees to work in locations outside the certified job location
• Assigned H-2B workers to perform job duties outside the certified job description
• Failed to accurately identify the number of workers needed & the period of need
• Failed to pay workers’ inbound & outbound transportation costs from their home countries as required
• Failed to pay housing & visa costs
• Took impermissible deductions from H-2B workers’ wages
TN Visa
Requirements:
•
Individual must be a citizen of Canada or Mexico
•
The offered position must fall within one of the specific categories on
the NAFTA list
–
almost all require at least
Bachelor’s
degree
•
e.g. Architect, Computer Systems Analyst, Industrial Designer
•
Must have job offer from a U.S. employer for that specific job/category
•
Individual must meet the requirements for that position as outlined in
the NAFTA list (e.g. have a
Bachelor’s
degree in that field)
O-1 Visa
The ”Extraordinary
Ability” Visa
O-1 Visa Basics
•
O-
1 visas are reserved for those with “extraordinary ability”
•
Extraordinary ability can be in various fields
•
Sciences, education, business, athletics, arts, motion picture, or the
television industry
•
Evidence of sustained national or international acclaim required
•
Individual must be coming temporarily to the United States to continue
work in the area of extraordinary ability
•
We have particular expertise with the O-1 visa:
•
Fiona regularly speaks at the national immigration lawyer conference
(AILA) on this option
O-1A Visa
Science, Education, Business & Athletics
• Evidence that the individual has received a major, internationally-recognized award, such as a Nobel Prize
• Or evidence of at least 3 of the following:
–Receipt of nationally or internationally recognized prizes or awards for excellence
–Membership in associations in the field for which classification is sought which require outstanding achievements, as judged by recognized national or international experts
–Published material in professional or major trade publications, newspapers or other major media about the beneficiary and the beneficiary’s work in the field
–Original scientific, scholarly, or business-related contributions of major significance –Authorship of scholarly articles in professional journals or other major media
–A high salary or other remuneration for services as evidenced by contracts or other reliable evidence
–Participation on a panel, or individually, as a judge of the work of others in the same or in a field of specialization allied to that field
–Employment in a critical or essential capacity for organizations and establishments that have a distinguished reputation
O-1 Visa Continued
•
Stringent list of evidentiary criteria that must be met - standard is
high & scrutiny has increased
•
U.S. sponsor or company files the case on employee’s behalf
•
Unlike H-1B visa, there is no cap on O-1 visas, so they are available
all year
T Visa
T Visa: Qualifications
Individual was a victim of a severe form of human trafficking
•
Recruiting, hiring, transporting, providing, or obtaining a person for
labor or services
•
Through the use of force, fraud, or coercion
•
For the purpose of involuntary servitude, peonage, debt bondage, or
slavery
•
Applicants work with law enforcement to report & potentially
prosecute traffickers
T Visa Continued
Red Flags:
•
Employee was
not paid overtime
•
Employee had to
work in unsafe conditions
•
Employee was
threatened with immigration consequences
I-9 Audits
How do I prepare for an I-9 Audit?
Conduct a
self-audit
•
Priority of Audit:
1. Get I-9s for any current employees who are missing I-9s
2. Current Employees
I-9 Self Audit
Current Employees who are missing I-9s
•
Keep a record of all communication about this
•
Follow proper I-
9 procedures (e.g. don’t tell employees what
documents to provide)
•
Ensure form is completed correctly
•
Sign it as of current date, don’t backdate
•
Date of hire should be actual hire date not date signed
I-9 Self Audit
Current Employees
• Review every I-9 on file
• Make sure all information is correct
• Per ICE, incomplete forms are the most common violations
• Make a list of all I-9s that need corrections, initial & date any changes
• Keep a log:
• Employee name
• Error
• Corrective action taken
• Sign form as of date completed, do not backdate
• Date of hire should be actual hire date
• Attach memo saying good faith effort to comply
I-9 Audit
Terminated Employees
• Review every I-9 on file
• Make sure all information is correct
• Make a list of all I-9s that need corrections
• Keep a log:
• Employee name
• Error
• Corrective action taken (correct as much as you can, as you may need info that you can no longer get from terminated employee)
• Sign form as of date completed, do not backdate
• Date of hire should be actual hire date
• Attach memo saying good faith effort to comply
