immigration

Immigration Proclamation: What does this mean for your foreign national workforce and hiring?

On June 22, 2020, the White House issued the “Proclamation Suspending Entry of Aliens Who Present a Risk to the U.S. Labor Market Following the Coronavirus Outbreak” which is the latest in a series of U.S. immigration restrictions purportedly tied to the COVID-19 outbreak and its impact on the American economy. READ MORE

COVID-19 Workforce Decision Making: Don’t Forget Your Foreign National Population

Given the current pandemic, companies are tackling an array of business-critical decisions ranging from workplace safety measures to remote working parameters to pay cuts, furloughs and reductions in force. In this mass of competing priorities, employers of foreign national employees should be careful not to overlook any unique impact that their decision making can have on their nonimmigrant employee population and corresponding compliance requirements that may be triggered. The analysis and impact will be highly contingent upon what type of work authorization and nonimmigrant status the employees are working pursuant to (for example: H-1B, O-1, L-1, TN or F-1 OPT EAD holder), and what the corresponding parameters of their status are. READ MORE

Playing the Lottery: The New H-1B Visa Electronic Registration Process

On January 9, 2020, U.S. Citizenship and Immigration Services (USCIS) formally announced that the much-anticipated H-1B electronic registration process will be implemented for this year’s “H-1B cap” cycle. Accordingly, employers and prospective employers of foreign national employees in the U.S. will need to follow a new process in petitioning for H-1B employment visas and must take note of important updates to filing deadlines.

What is an H-1B Visa?

  • In the realm of U.S. nonimmigrant employment visas, the H-1B is perhaps the most common and coveted. This is likely attributed in large part to the very limited number of U.S. employment visa options available to foreign nationals, including recent STEM graduates of U.S. universities who comprise a coveted talent pool.
  • The H-1B is appropriate for foreign nationals who will work in “specialty occupation” positions in the U.S. (i.e. professional-level roles requiring at least a bachelor’s degree or equivalent in a specific field of study). While there is no bulletproof list of qualifying positions, accountant, lawyer and scientist roles (requiring a degree in accountancy, law and science, respectively) might make a strong specialty occupation case; whereas roles in market research, computer programming and management consulting are likely to receive more scrutiny as to whether a specific degree at the bachelor’s level or higher could be considered a bona fide requirement.

The H-1B “Lottery”

  • Each fiscal year there are 65,000 new H-1B visas available plus an additional 20,000 reserved for holders of U.S. Master’s degrees or higher.
  • Given this numerical limitation, the number of annual applications for the visa from petitioning employers for their employees/prospective employees (“H-1B petitions”) typically greatly exceeds the supply. Indeed, for last year’s H-1B cycle, USCIS received over 200,000 petitions for the 85,000 available visas.
  • Accordingly, H-1B petitions are regularly subject to a randomized lottery conducted by USCIS wherein only a portion of petitions received will be selected for further processing. This visa limit and lottery process are also commonly referred to as the “H-1B cap.”
  • H-1B petitions selected for processing in the lottery then need to undergo a formal adjudication process wherein the merits of the H-1B petition—including the qualification of the offered position as a specialty occupation—will be assessed by USCIS under the “preponderance of evidence” standard. Ultimately, petitions selected in the lottery can either be approved or denied; H-1B denials have increased at a significant rate in recent years.

What is Changing?

  • Historically, petitioning employers were required to submit full hard-copy H-1B petition filing packages within the first few days of April to the appropriate USCIS Service Center. Complete H-1B petitions typically consist of government filing fees, numerous forms completed and signed by the petitioner, a detailed supporting statement outlining the specialty position and the employee beneficiary’s qualifications, and a host of supporting documentation. Assuming USCIS received more petitions than visas available during the first five business days in April, the filing window would then close and the lottery would be run. Petitions that were not selected in the randomized lottery would be returned to employers (or their legal counsel) unadjudicated.
  • Now under the new filing scheme, in lieu of mailing complete H-1B petition filing packages to USCIS in early April, employers (or legal counsel) must electronically register each individual H-1B application it seeks to enter into the lottery between March 1 and March 20, 2020. In the unlikely event ample registrations are not received by March 20, the registration window will be extended.
  • The information collected by USCIS during the new electronic registration process will be limited to basic information pertaining to the petitioning company and employee beneficiary.
  • Assuming ample registrations are received within the aforementioned window, which seems likely, the randomized lottery will then be conducted, and only cases selected in the lottery should then be mailed in full to USCIS for adjudication.

Practical Considerations

  • While many employers may have early April engrained in their head as the standard annual H-1B filing deadline, it is most important to mark March 20, 2020 as the likely drop-dead deadline for entry into the H-1B lottery.
  • Employers should also consider at what point within this window to file their registration(s) for applicable employees. While many may rush to file on March 1, government systems are far from immune to standard IT glitches, and some may prefer to take a wait-and-see approach for any issues that may pop up in early March with this new electronic system.
  • It is most common to issue spot any problems with H-1B petitions through the preparation process. For example, if the job duties of the role can realistically be considered “professional” or if the employee possesses the requisite credentials to qualify for the specialty occupation. Given that minimal information will be collected during the electronic registration process, employers will need to consider how much time to invest in diligence upfront prior to submitting the registrations.
  • While one of the clear benefits of the new electronic registration process is that employers may save the time/costs of preparing voluminous H-1B filing packages that would ultimately not be selected in the lottery for review, employers may nevertheless see benefit in preparing the petitions at present in the background, so they are ready to file the petition with USCIS quickly upon learning of a positive outcome from the lottery.

Ultimately preparation is key, and employers should consider this new process and impact to its workforce now in order to determine a plan of action, manage employee expectations and prepare for any hiccups during this inaugural year of the electronic registration process.

California Divide: What California Employers Can Expect In 2017

As California goes, so goes the nation. When it comes to employment law, the Golden State is continuing down a path of increased regulation. With 2017 right around the corner, here are some new laws California employers must prepare for – all effective Jan. 1, 2017 unless otherwise stated: READ MORE

Brexit: What Does it Mean for Employers in the U.K.?

We set out below our best guess on where this leaves employees, management and HR in the UK.

Firstly as we have all heard repeatedly today, nothing is going to change immediately and that is the same for employment law.  It will be years before any changes are made and for the time being, everything remains the same and critically, no one has to leave.

Much of our employment law is just that – employment law driven solely by the UK.  We then have laws that have been enacted into UK law as a result of European directives – so those laws are the ones that may, at some point in the future, be targeted.  Our guess at Orrick is that changes where they happen will be focused on consultation rights, holiday pay and working time.  Worker involvement has never had the same traction in the UK that it has with our European counterparts and the UK has always viewed employee consultation with a degree of skepticism.  For this reason, we think it may eventually be a focus for change.

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California Employers: Test Yourself – Are You Ready for 2014?

Road Signs

If you have employees in California, you are, no doubt, aware that California laws are constantly changing and have a tendency to sneak up on even the best companies. To help prepare you for the year ahead, here are five important questions employers should ask themselves to test whether they are ready for the key changes in 2014: READ MORE