Visas – H-1b, L-1, E, O, TN

Concerns for the H-1b visa under President Trump

Concerns that the H-1b visa will be significantly changed under Trump continue to mount. As articles are published, we will provide links to those that are from reputable sources.

Nov 27th, 2016 Livemint.com

DOL Finds that in Certain Circumstances You Can Deduct H-1B Visa Fees from Employee Paycheck

The U.S. Department of Labor, Office of the Administrative Law Judges (OALJ), has determined that in certain circumstances, an employer can deduct H-1B visa fees from an employee’s final paycheck.

In this case, Matter of Woodmen of the World Life Insurance Society, October 26, 2016, the OALJ determined that Woodmen Life did not violate any DOL regulation by deducting $5800 from the employee’s final payment for reimbursement of H-1B attorney and filing fees pursuant to an agreement which was entered into voluntarily by the employee.

Although the DOL found that §655.731(c)(9), which speaks to “authorized deductions from an employee’s required wage and specifically prohibits an employer from seeking recoupment of H-1B attorney fees and expenses from the required wage, even if the employee consents” was not applicable to this case since the deduction for the attorney’s fees came from the benefits side of the equation and not from the employee’s required wage, the DOL’s stated that the regulation is “far too broad and not supported by the plain language of the regulation.” The DOL further clarified that “an H-1B employer is prohibited from imposing its business expenses on the H-1B worker – including attorney fees and other expenses associated with the filing of an LCA and H-1B petition – only to the extent that the assessment would reduce the H-1b worker’s pay below the required wage, i.e. the higher of the prevailing wage and the actual wage.”

L-1 RFE’s are handed out inconsistently between Service Centers?

The Service’s annual 2016 report to the Ombudsman was recently release and contained concerning information for L-1 visa petitioners. Unfortunately, the RFE rates of L-1 visas appear to continue to have no rhyme or reason.

“L-1A RFE data shows inverse trending between the CSC and the VSC. For example, CSC’s L-1A rates surged to 55 percent in FY 2015, its highest level in 20 years, while in the same period, VSC’s rate dropped dramatically from a high of 44.6 percent in FY 2014, to 29 percent in FY 2015. The number of L-1B RFEs dropped in FY 2015 at both service centers, to 44 percent at the CSC and 33 percent at the VSC.” See Ombudsman Report p. 59.

The L-1 memo, L-1B Policy Guidance Memorandum, was supposed to help alleviate some of this uncertainty. “It does not appear that RFE rates in FY 2015 were affected by this guidance, as it did not become final until August 17, 2015.” See Ombudsman Report p. 59. A very small sample size granted, but this memo was supposed to be seminal in the L-1 category. I’ll be eagerly anticipating next year’s report. What we can take away is that it looks like you’ll have a slightly better chance of getting an L-1A through Vermont and that L-1B’s RFE’s have dropped but not as much as we were hoping for when the L-1B Policy Guidance Memo was released.

Update on Save Jobs USA’s Lawsuit regarding H4 EAD’s

The group of information technology workers know as Save Jobs USA, who claim that they were replaced by H-1B visa holders is now appealing a decision upholding a new U.S. Department of Homeland Security rule that would allow spouses of certain H-1B workers to apply for employment authorization, the H4 EAD rule.

On Wednesday, September 28, Save Jobs filed notice that it’s appealing to the D.C. Circuit, a day after U.S. District Judge Tanya S. Chutkan of the District of Columbia found that Save Jobs lacks standing to proceed with its case. Save Jobs has argued that there isn’t “statutory authorization” for DHS to allow an H-4 visa holder to work, but Judge Chutkan said that despite the group’s lack of standing in the case, the court would likely conclude that the DHS’ interpretation of its authority under the Immigration and Nationality Act is not unreasonable and that the H-4 rule is valid.

Save Jobs basis for their appeal is the Fifth Circuit’s holding regarding the blocking of the expansion of Deferred Action for Childhood Arrivals (DACA). The Court had ruled that immigration law specifically defines the categories of immigrants allowed to work in the U.S. and that an Immigration and Nationality Act provision didn’t give the DHS the power to grant work authorization. This interpretation has been rebutted by DHS, pointing out that the cases address different questions. There appears to be no immediate danger of losing the H4 EAD Rule and those working under this authorization should continue to do so without hesitation.

SIA’s take on H-1b visas

Staffing Industry Analysts (SIA) recently published an in depth article on the H-1b visa and HLG Sr. partner, Mike Hammond was quoted in the article.

Issa Bill Dead

The House Judiciary Committee pulled the Issa bill which would’ve made changes to the H-1b dependency rules. Given such a short legislative season, it is unlikely that the bill will be re-drafted and presented again during this legislative session.

HLG publishes HLG Immigration Advocate

HLG recently published its one year anniversary edition of the HLG Immigration Advocate. Check it out and share with friends. Thanks.

Always Remember to Withdraw the H-1B of Employees Who Leave You

On August 1, 2016, a Dept. of Labor Judge ordered ME Global Inc. to pay a former engineer almost $183,000 in back wages. The Judge determined that the employer did not properly notify immigration officials when it fired the H-1B worker in 2008. As you probably know, immigration laws require employers to notify USCIS of the termination of H-1B employees.

Judge Almanza noted that the statute of limitations clock starts on the last date the employer failed to fulfill a condition of the labor condition application and therefore ME Global had “benched” their employee, placing an H-1B worker in a nonproductive status. This meant there was a continuing violation and the employee’s complaint to the wage and hour divisions was timely as long as it was filed within one year of when he left the U.S.

This holding is just another reminder that when an H-1B employee leaves your employment you must notify USCIS and withdraw the H-1B petition your company filed on their behalf.

Another Immigration Bill Introduced

In a time honored tradition designed to foster votes in the upcoming election, we are seeing yet another immigration bill offered, this time by Rep. Issa from the San Diego area. The bill primarily changes the rules impacting dependent users of H-1b employers and changes the threshold wage for exemption from $60,000 to $100,000. Just like every other immigration bill being introduced, it has no chance at being passed this year. My problem with the bill is not its content. Frankly, no objective person could argue that the exemption salary floor which has been in place since 1998 is at the correct level. My issue is with yet another immigration proposal that will never be debated, never voted on it, and never has a chance to bring about change.

H1-B and L-1 Reform Bill Introduced

On July 8, 2016, Bill Pascrell Jr., Democrat – New Jersey, introduced legislation Thursday designed to “overhaul” the H1-B and L-1 visa programs. H-1B and L-1 Visa Reform Act of 2016, or H.R. 5657. The bill is being introduced under the guise of protecting workers and cracking down on foreign outsourcing companies that “take high-skill jobs away from Americans.”

Two of the more concerning provisions of the bill include: Requiring employers to conduct a labor market test before hiring H-1B workers and prohibiting companies from hiring H-1B employees if they employ more than 50 people and if more than half of their workers are H-1B and L-1 visa holders!

The bill is co-sponsored by Rep. Dana Rohrabacher, R-Calif., who previously introduced a similar version of the measure in 2010. So, hopefully like last time this bill does not gain enough traction in Congress to move forward. Nonetheless, it is still worrisome to hear that these changes are be given any kind of consideration.