There are many ways employers may run afoul of the anti-discrimination provisions in U.S. immigration law. As a very clear starting point, the general rule for a long time has been and remains an employer may not make hiring, firing, or recruitment / referral decisions based on a worker’s citizenship status. However, there are notable exceptions and the one relevant here relates to controlled goods.
For these purposes, the definition of controlled goods includes their documentation – typically referred to as technical data – and means those goods which are subject to either the International Traffic in Arms (ITAR) or Export Administration Regulations (EAR) laws and regulations. ITAR is the export license restrictions which regulate military and defense articles, whereas BIS controls other higher tech exports which are subject to export license restrictions. As part of their regulatory regimes, both agencies (and some others of more limited scope) regulate when and how non-U.S. persons may gain access to either the actual good, the technical data or both, and require some form of notice to and pre-approval by the agency. (more…)
Changes are in the works related to the processing of H-1B visa petitions, and employers intending to file such petitions should be aware. On Monday, December 3, 2018, the U.S. Citizenship and Immigration Services (USCIS) announced a proposal to change the annual cap-subject H-1B visa petition filing system in two significant ways: (1) the establishment of an online H-1B registration system; and (2) a major change in the procedures related to the annual H-1B visa cap lottery.
By law, the number of new H-1B visa petitions for professional worker beneficiaries is capped at 65,000 annually, with an additional 20,000 set aside for individuals with advanced degrees from U.S. universities. Advanced degrees are considered to be master’s degrees or higher. Certain employers, such as hospitals, non-profit research institutions and universities are exempt from this annual cap. As a result of this limitation on H-1B filings, the USCIS receives well in excess of the allowable number of petitions at the beginning of each year’s filing season, April 1. Accordingly, a random lottery has taken place in early April of each year. Employers are notified over the next few months if their petitions are among the lucky 85,000 selected. The numbers are daunting – approximately 198,000 petitions where received in fiscal year 2017, and approximately 236,000 in fiscal year 2016. (more…)
The USCIS announced today that it is extending its ban on premium processing on certain H-1B petitions. Premium Processing allows an employer to seek an adjudication of a visa petition within 15 days upon payment of an additional filing fee, currently $1,225 (increasing to $1,410 on October 1, 2018). Employers should review their current and upcoming H-1B visa needs to determine how the ban will impact their matters, so they can plan accordingly.
To be specific, USCIS estimated earlier this year it would reinstate Premium Processing for H-1B cap cases in September 2018 (in roughly two weeks from now). The suspension of Premium Processing for Fiscal Year 2019 H-1B Cap Petitions is now expected to be extended through at least February 19, 2019. USCIS expects this suspension will help reduce the processing time for H-1Bs by allowing it to process long-pending petitions. In addition, USCIS states that the temporary suspension will allow them to be more responsive to petitions with time-sensitive start dates, as well as to prioritize adjudication of H-1B extension of status cases that are nearing their 240-day work authorization limit dates. (more…)
You did everything right. You got into the best school, you got the necessary work experience, you found an employer willing to sponsor you for an H-1B visa, and you filed on April 1. However, despite all your work, your case was not selected as part of this year’s H-1B lottery. Through forces beyond your control, you are now back to square one, wondering whether you must now leave the United States.
But wait! There may still be an alternative visa option available to you within the alphabet soup of U.S. work visas. So, before throwing in the towel and packing your bags, you may want to consider the list of alternative U.S. work visa categories below. One of these alternative visas may offer you the best chance for future employment in the United States – and while the list is not conclusive, it represents the most likely options for you to secure U.S. work authorization. (more…)
As the Department of Homeland Security continues to phase in the requirements of the REAL ID Act, some domestic airline travelers may be prohibited from using their state-issued driver’s license or ID card in order to board their flight.
After January 22, 2018, state-issued driver’s licenses and IDs may be used for domestic airline travel only if they were issued by a state which is in compliance with the REAL ID Act or has been granted an extension by the Secretary of Homeland Security. Currently, all 50 US states, Puerto Rico, Guam, and the US Virgin Islands are either in compliance with the REAL ID Act or have been granted an extension by the Secretary of Homeland Security. The only US nationals impacted by the January 22, 2018 date are individuals who possess driver’s licenses or IDs issued by American Samoa or the Northern Mariana Islands. (more…)
Many international travelers express surprise when, after arriving at LAX, JFK or other US airports or land borders, the US Customs and Border Protection (CBP) officer directs them to hand over their smartphone, laptop or related electronics device for a search. As disconcerting and invasive as it may be to have a uniformed total stranger work his or her way through one’s e-mails, photos and hard drive, one should be aware that it is generally within the authority of immigration and customs officials to conduct such searches. Just as one’s person and luggage is subject to search upon arrival to the US, so are one’s electronic devices. International travelers should be forewarned that these types of searches may become more commonplace than they already are. CBP reports that in 2017, it conducted more than 30,000 electronics device searches at airports and land borders, almost double the amount of searches it conducted in 2016. Now with a fresh policy in place, it is safe to expect this upward trend to continue. (more…)
California Governor Jerry Brown has signed the Immigrant Worker Protection Act (AB 450), which restricts public and private employers in California from admitting immigration inspectors to the workplace without a judicial warrant. It also requires employers to notify their employees before and after certain immigration inspections take place. The new law, which adds Sections 7285.1, 7285.2, and 7285.3 to the California Government Code, and Sections 90.2 and 1019.2 to the California Labor Code, will take effect on January 1, 2018.
In conflict with the U.S. Immigration and Customs Enforcement’s (ICE) plans to increase enforcement actions under the Immigration Reform and Control Act (IRCA), which includes criminal and civil penalties for employers who knowingly employ unauthorized workers; the new California law seeks to protect foreign workers from unfair immigration-related practices, potentially causing problems for employers who must comply with federal and state laws. (more…)
The Fiscal Year (FY) 2019 Diversity Lottery registration opens on October 3, 2017 and will remain open until November 7, 2018.
WHAT IS IT?
The Diversity Lottery makes available 50,000 immigrant visas (green cards) through random selection. The immigrant visas made available are for individuals from countries with historically low immigration rates. According to the State Department, the diversity visas (DVs) are “distributed among six geographic regions and no single country may receive more than seven percent of the available DVs in any one year.”
WHO IS ELIGIBLE?
Applicants from the eligible countries must submit an application during the entry period and must have: (more…)
Workplace immigration law has been the focal point of increased anxiety and uncertainty because of various changes proposed by Executive Order. Discussions have heated up considerably in the offices of human resources professionals and personnel managers, in the break room, around the water cooler, as well as in the news media and on social media. Because the changes have not come in the form of formal regulatory changes through legislation, which require a prescribed notice and comment period (though those may soon be on the way), changes in enforcement priorities and how existing laws are interpreted create an unclear path about who will be impacted and when the new Executive Order priorities will be instituted.
What are these new priorities? At present they are best explained in Executive Order 13788. (more…)
U.S. Customs and Border Protection Officers at ports of entry to the U.S. routinely question returning lawful permanent residents (“green card” holders) about the length of time spent outside the U.S.A. and the nature of their activities abroad. Generally, an absence from the U.S.A. of six months or longer will result in further inquires and requests for documentation to establish the individual’s intent to retain lawful permanent residence status.
A U.S. “green card” allows the holder to reside in the U.S. as an immigrant as long as the holder’s status does not change. However, that status may be lost if the “green card” holder is deemed to have abandoned his or her U.S. residence or if the individual lacks the requisite ties to the U.S. while living abroad.
The question of whether a “green card” holder has retained his or her status in the U.S. arises when the individual departs from the U.S. for lengthy periods of time usually exceeding one year. The determination of retention of U.S. residence depends upon the circumstances surrounding the individual’s departure and his or her ties to the U.S. Among other factors considered in evaluating retention of U.S. residence are the following: (more…)