- DOL's Administrative Review Board Applies "Bona Fide Termination" Rule to E-3 Worker
- Infosys Pays Record $34 Million in Settlement
- New York Federal District Court Awards Undocumented Immigrants FLSA Damages
- California Passes "Immigrant Friendly" Legislation
- OCAHO Provides a Roadmap for Reducing Fines for Form I-9 Violations
- OSC Settles Workplace Discrimination Complaint
- Supreme Court Amends Federal Rule of Criminal Procedure 11 to Include New Immigration Consequences Warning
- New York Requires Trial Judges to Inform Defendants of Deportation Consequences from Guilty Pleas to Felonies
- BIA Finds That an E-2 Dependent Is Not Required to Apply for Employment Authorization
- Important Recent Changes to USCIS M-274 Handbook for Employers
- USCIS Announces Enhancement to E-Verify Program to Help Combat Fraud
- ICE Will Not Use Information Obtained Under Affordable Care Act in Civil Immigration Enforcement Actions
- DOS Issues February 2014 Visa Bulletin
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I. H-1B Nonimmigrant Season Opens on April 1, 2014, for Fiscal Year 2015
As most H-1B employers know, there is an annual quota on the number of new H-1B petitions that can be approved each federal fiscal year. The quota is 65,000 for regular H-1B petitions, plus another 20,000 for H-1B petitions filed for foreign nationals ("FNs") who have obtained a master's degree or higher from an accredited American university. The federal government's fiscal year runs from October 1 through September 30, so fiscal year 2015 will begin on October 1, 2014. Employers are eligible to start filing H-1B petitions for inclusion in the fiscal year 2015 quota on April 1, 2014, but they cannot secure a start date prior to October 1, 2014. If the U.S. Citizenship and Immigration Services ("USCIS") receives more H-1B petitions than these limited quotas allow, it will conduct a random lottery of all petitions filed on or before a specific date. Last year, the USCIS included all new H-1B petitions filed through April 5, 2013, the conclusion of the first week of filing. If this year's program operates in a similar fashion, the USCIS will accept for inclusion in the lottery all new H-1B petitions received between April 1 and April 4, 2014.
As the U.S. economy improves, the likelihood is that more employers will submit H-1B petitions for inclusion in the 2015 H-1B quota. Last year, the quota was reached on April 5, 2013, the end of the first week. This year, predictions are that there will be significantly more applicants for inclusion in the 2015 quota; thus, the probability for acceptance will be even less than last year. Employers need to assess their workforce requirements, determine what H-1B petitions they plan to file, and get them submitted on or shortly after April 1, 2014. They also need to examine contingency plans on how to handle sponsored employees in the likely event that H-1B petitions on their behalf are not accepted in the quota. Finally, employers recruiting potential H-1B candidates need to assess the challenges that the H-1B program poses in deciding whether to extend employment offers to FNs who might require H-1B sponsorship. As we have noted in prior Alerts, there is no legal restriction on asking questions about immigration status and the need for sponsorship as long as the questions are specific and the answers not used in a discriminatory manner.
II. H-1B Petition Amendments May Be Required Due to Changed Job Location
Most H-1B employers know that their H-1B petitions must be amended when there is a "material" change in the terms and conditions of the beneficiary's employment. When only a "minor" change has occurred, the employer can simply notify the USCIS when it files to extend the beneficiary's H-1B status. Historically, the USCIS has always considered a change only in the geographic location of the sponsored position as a minor change as long as a new Labor Condition Application ("LCA") was certified for and posted at the new work site, and the employer satisfied the wage and other terms of that LCA going forward.
Recent developments at the USCIS Regional Service Centers suggest that the agency may be revisiting this longstanding policy and requiring amended petitions whenever a job site changes, even though no formal changes have been announced. This new approach has been brewing since 2009, when the USCIS significantly increased the number of unannounced workplace visits from its Fraud and Detection Agency ("FDNS") to the work sites of H-1B employers. The Form I-129 requires H-1B employers to list the exact address of an H-1B employee's position. The FDNS will conduct site visits at the employment location listed on the H-1B petition. If the FDNS investigator determines that the H-1B beneficiary is no longer working at that work site, it will advise the USCIS Service Center that originally approved the petition. Under current practice, this likely means that the Service Center will issue a notice of intent to revoke ("NOIR") because the H-1B employee was not working at the job location specified in the H-1B petition.
Until recently, employers could rebut the NOIR by showing that a new LCA had been secured and posted in the new location, and that none of the other aspects of the position had changed. In recent months, however, the Service Centers have enforced these NOIRs and suggested that a geographic move in those cases was a material change that required the employer to amend its H-1B petition. While the USCIS policy in this regard appears to be evolving, these recent decisions suggest that employers now should carefully consider whether an amended H-1B petition should be filed when a job location changes or whether simply securing a LCA is acceptable.
III. DOL's Administrative Review Board Applies "Bona Fide Termination" Rule to E-3 Worker
On December 23, 2013, the Administrative Review Board ("ARB"), U.S. Department of Labor ("DOL"), issued its decision in Matter of S.V. Technologies, LLC, ARB Case No. 12-042 (Dec. 23, 2013). In this case, the ARB upheld an award of $30,499.51 in back wages to an E-3 nonimmigrant worker who had not received a "bona fide termination." Those who follow our Alerts may recall that the DOL developed and has applied the "bona fide termination" rule to award back pay to H-1B employees where the employer fails to: (1) perform a proper termination under state law, (2) provide written notice of the termination to the USCIS, and (3) pay the worker the reasonable...
