Employment Law

Immigration Week in Review: ‘Buy American, Hire American,’ I-9 Form Errors, and an H-1B’s Nest of News

April showers bring May flowers, tax returns, and … immigration enforcement policy? Apparently, it’s true—just as spring finally began springing throughout those colder parts of the country, immigration news also began popping up from the federal agencies like a less colorful bouquet of crocuses, daffodils, and tulips.

immigration

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2018 Fiscal Year H-1B Quota Reached

Let’s start with the short, sweet, and unsurprising—the regular and advanced degree caps for H-1B visa filings for the 2018 fiscal year have been reached and the random selection process (computer-generated lottery) has been conducted. All cap-subject H-1B petitions that were not selected in the lottery will be rejected and returned along with filing fees.

Nearly 200,000 petitions were received between April 3 and 7.

Meanwhile, cap-exempt employers may continue to submit petitions for H-1B workers; however, note that the United States Citizenship and Immigration Services (USCIS) has temporarily suspended premium processing for these petitions—a suspension that may last for up to 6 months.

Alert: Check Recently Completed I-9s for SSN Errors

As we know, it can be difficult enough to fill out Form I-9 completely and accurately in the best of circumstances. Unfortunately, early adopters of the newest Form I-9 may have some additional corrections to make thanks to a glitch in early releases of the newest form.

The USCIS reports that early versions of the new Form I-9 (those downloaded between November 14 and 17, 2016) transposed digits entered in the Social Security number (SSN) field. The error was repaired and corrected on November 17, yet the USCIS only just recently gave the rest of us a heads-up about the issue.

Gee, thanks.

Employers who downloaded the new revision of Form I-9 after November 17, 2016, should be fine, though it doesn’t hurt to double check.

The SSN field is a voluntary field for employers who do not participate in E-Verify; however, because employees fill out Section 1 of the form, most will supply the information anyway. And, voluntary or not, if the information is incorrect, it could result in a technical error in the event of audit. So, it’s worth taking a quick look through any Forms I-9 that may have been completed using the digital version of the new form and verifying that the SSN, if provided, is accurate.

If you discover errors in employees’ Social Security numbers on Form I-9, have the employee draw a line through the transposed digits in Section 1, enter the correct number, then initial and date the change. Employers should then also include a written explanation to explain why the correction was made. (Snarky commentary about certain federal agencies responsible for said correction should probably be withheld.)

Permanent Resident Card (Green Card) Redesign

On May 1, 2017, the USCIS will also begin issuing new, more secure and fraud-resistant Permanent Resident (Green) Cards and Employment Authorization Documents (work permits). The new documents will display the individual’s photo on both sides, will have embedded holographic images to protect against duplication and tampering, and will no longer show the holder’s signature. Additional details on the enhancements are available from the USCIS.

Note: Documents issued with the previous design format will continue to be valid until they expire. As long as the documents are unexpired, all versions will be acceptable for employment verification.

New Executive Order: ‘Buy American, Hire American’

You may also have heard that, on April 18, President Trump signed another immigration-related Executive Order. The “Buy American, Hire American” Order primarily targets federal agencies and federal procurement by requiring the executive branch to “maximize … the use of goods, products, and materials produced in the United States” and to “rigorously enforce and administer” laws relating to foreign workers.

As part of this policy, heads of federal agencies will be called upon to assess current federal agency and contract compliance with existing Buy American rules and to assess government use (and potential abuse) of waivers and other exceptions to those rules. Executive officials will also assess the effect of existing free trade and World Trade Organization agreements on current and future policy efforts to promote the use of American goods and labor.

The order also calls for the development of new rules and guidance “to protect the interests of United States workers in the administration of our immigration system, including through the prevention of fraud or abuse.”

Specifically, reforms to the H-1B visa program—particularly those that will ensure that H-1B visas are awarded only to the most-skilled or highest-paid workers—are to be made. Such reforms may come through a combination of agency initiatives—increased fees, revised prevailing wage requirements, changes to the lottery system, and focus on more aggressive enforcement—and comprehensive legislative efforts.

Speaking of H-1B Reforms …

Meanwhile, some of these reforms may already be underway. On April 3, the USCIS announced several measures and initiatives to help better detect fraud and abuse specific to H1-B visas.

Since 2009, the USCIS has conducted random administrative site visits to ensure compliance with H-1B requirements. These random visits will continue; however, as part of the new initiative, site visits will be “more targeted” and will particularly focus agency resources on certain workplaces and employers that are considered more likely to engage in visa fraud and abuse.

For example, H-1B dependent employers—those with a particularly high ratio of H-1B workers—are more likely to receive a site visit so that the USCIS can ensure these businesses are meeting their obligations to make a good faith effort to recruit U.S. workers first.

Similarly, employers that petition for H-1B workers who work off-site or at another company location will be under closer USCIS scrutiny. The same will be true of employers for which the USCIS can’t validate basic business information through commercially available data—newer and small employers should take heed, here.

Employers that fall into these newly targeted categories should ensure that their documentation and inspection files relative to H-1B workers are accessible, accurate, and complete.

The agency has also launched a new website and e-mail address specific to combating H-1B fraud and abuse. The site provides a concise list of fraud indicators and encourages anyone—foreign or domestic workers, competitors, or simply concerned citizens—to blow the whistle and report suspected abuse.

On the same day, the Department of Justice also reminded employers that national origin discrimination goes both ways—specifically, employers violate the Immigration and Nationality Act if they have a discriminatory hiring preference that favors H-1B visa holders over U.S. workers.

In a press release, employers were cautioned that the department is “wholeheartedly committed to investigating and vigorously prosecuting” claims of employers abusing the H-1B visa process to discriminate against U.S. workers.

But Is It Really A Specialty Occupation?

Finally, in an action that changes little in practice, but is still of some academic importance—the USCIS recently rescinded a dusty old agency memorandum that had automatically classified computer programmers as H-1B “specialty occupations.”

Though it sounds like a big deal to rescind a policy old enough to drive, this particular guidance hadn’t been in recent application because it was specific to the Nebraska Service Center—a location that had not been processing H-1B petitions in at least 10 years.

Yet, because this location resumed H-1B processing last year, the USCIS cleaned house and clarified that its current approach has been (and continues to be) requiring evidence, beyond a mere job title, that certain positions do meet the “specialty occupation” requirements.

To be a specialty occupation, a job must meet one of the four following criteria:

  • A bachelor’s degree or higher degree (or its equivalent) is normally the minimum requirement for the particular position;
  • The degree requirement is common for this position in the industry, or the job is so complex or unique that it can only be performed by someone with at least a bachelor’s degree in a field related to the position;
  • The employer normally requires a degree or its equivalent for the position; or
  • The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree.

The takeaway from this: Just as a job title alone is not sufficient to prove exempt status under the federal Fair Labor Standards Act, nor should a job title (particularly for an entry-level role) be assumed sufficient to prove specialty occupation status for an H-1B visa. Employers should ensure that H-1B workers and the work they perform truly meet the “specialty occupation” standard.

HollyHolly K. Jones, JD is a Senior Legal Editor for BLR’s human resources and employment law publications. She understands the existing and emerging needs and challenges of human resources professionals thanks to several years of experience managing, writing, and editing key legal and compliance publications for BLR. Prior to joining BLR, Ms. Jones worked for the Tennessee Legislature’s Office of Legal Services.

She graduated magna cum laude and Phi Beta Kappa with a BA in English Rhetoric and Writing, Political Science, and Psychology from the University of Tennessee in Knoxville, Tennessee, where she also received a 2001 Citation for Extraordinary Academic Achievement. She received her law degree from Vanderbilt University Law School and is licensed to practice law in Tennessee.

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Questions? Comments? Contact Holly at hjones@blr.com for more information on this topic