Computerworld reported on a discussion in the House on major changes to the H-1b visa and immigrant visas. No bill has been released yet and we are obviously a long way from any change but, at least people known for reasonable stances on business immigration are putting forth ideas. We will keep you updated as information becomes available.
On May 5, 2016, in a California federal court, four people have been charged with conspiring to submit more than 100 fake H-1B visa applications. The prosecution alleges that, “the defendants … knew, these purported end-client companies did not have jobs for the defendants’ H-1B workers, the defendants did not intend to place those workers at those end-client companies, and none of those workers were placed at those end-client companies.” The Department of Justice goes on to say that between 2010 and 2014, a husband and wife used their employment-staffing companies DS Soft Tech and Equinett to sponsor temporary nonimmigrant workers for fraudulent H-1B applications for placements at companies that either didn’t exist or never received the proposed temporary workers and submitted fake documents to government agencies including the Department of Homeland Security and the Department of Labor. The maximum prison term for visa fraud is 10 years, while mail fraud and witness tampering both hold a maximum penalty of 20 years. While this is an extreme example, it is a good reminder that those that don’t follow the rules eventually get caught.
Yesterday, the Department of Labor’s Office of Foreign Labor Certification (“OFLC”) announced that it is experiencing problems with its iCERT system. While the iCERT Systems’ application and database are working correctly, the network infrastructure that supports the system is having performance issues that are causing delays in processing cases. These delays are currently impacting H-1B, H-2A, and H-2B cases. OFLC has not stated when it expects these problems to be resolved. The Hammond Law Group will keep you updated as further announcements are made on this issue.
The Consolidated Appropriations Act, 2016 (Public Law 114-113) was signed into law on December 18, 2015 and increased the fee for certain H-1B and L-1 petitioners. USCIS issued a web alert today that the additional fee now applies when a petitioner employs 50 or more individuals in the United States, with more than 50% of those employees currently in H-1B or L (including L-1A and L-1B) nonimmigrant status.
The additional fee must be included (1) with new petitions seeking H or L status or (2) when the petitioner seeks to have the nonimmigrant in H or L status change employers.
This is a departure from what the previously published regulations on the topic indicated, which also required the additional fee for extensions of H or L status. As things stand today, these are the only types of petitions that requires the additional fee but based on the back and forth that has surrounded this rule’s roll out, we will not know for sure until USCIS revises its instructions for the Form I-129.
The DHS has released the long anticipated proposed regulation which promised to provide greater portability to H-1b workers with approved I-140’s. A copy of the complete rule can be found here. Comments on the proposed rule are due on Feb 29, 2016 and the rule is not in effect until it becomes final, sometime after the comment period. Our office will be providing a detailed summary to clients next week. I hate to throw cold water on what should be a day of celebration but, a quick read through does not indicate that the portability provisions are as gracious as promised. There are however, other really good provisions which will be very positive for international professional workers and their employers. Happy New year and we wish everyone a great 2016.
Buried in the Omnibus Appropriations Bill that Congress is currently considering is a provision that would re-instate and double the “penalty” filing fee imposed on employers with 50 or more employees where 50% of those employees are H-1b or L-1b visa holders. The new fee would also apply to extensions. The new penalty fee for H-1b petitions would be $4,000 and for L-1 cases, $4500.
On October 1, 2015, Congress failed to extend the additional filing fees for petitioners whose workforces are heavily reliant on H-1B and L-1 employees. The law, known as Public Law 111-230, required an extra $2,000 fee for certain H-1B petitions, and a $2,250 fee for L-1A and L-1B petitions, whose company had 50 or more employees in the U.S., with over half of those workers on H-1B or L-1 visas.
All H-1B and L-1 fees, filed on or after October 1, should still include the base I-129 fee, Fraud Prevention and Detection Fee, and American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) Fee, when applicable. Petitions with incorrect fees may be rejected. However, unless this fee gets reauthorized, petitions should enjoy the reprieve.
The “3-for-1 Rule” states that three years of work experience is equal to one year of education in the H-1B context. This rule has been followed for years without question but now the rule might not be as straightforward as it used to be. The Rule was routinely applied to cases where a beneficiary had only completed part of a bachelor’s degree program and was using years of experience to cover the remaining years. After the AAO’s recent decision, the rule should no longer be considered an uncomplicated 3:1 ratio. While this a non-precedential decision, the results could have far reaching effects, especially on how RFE’s are issued and responded to.
The AAO begins by stating that the 3-for-1 rule has been misapplied and is exclusively reserved for use by USCIS agency-determinations of educational equivalency. This means that going forward, technically the Service is the only one that can apply the rule.
Next, the AAO points out that not all years of experience are equal. The requirements for RFE’s are about to become very high. Petitioner’s will be required to “clearly demonstrated” that a beneficiary’s years of experience include the theoretical and practical application of specialized knowledge required by the specialty occupation, that it was gained while working with peers, supervisors, or subordinates who have a degree or its equivalent in the specialty occupation and that the alien has recognition of expertise in the specialty. In short, letters of experience will now need to be very detailed and contain specific elements.
However, you also need to show that the beneficiary has expertise in the specialty. This is most easily demonstrated by recognition of expertise in the specialty occupation by at least two recognized authorities in the same specialty occupation. This will result in letters from experts becoming a requirement if you would like experience considered. The decision also outlined who can be considered an “expert” for these letters. Remember, even if you obtain great letters USCIS can still determine that those years don’t equal a year of baccalaureate experience.
Finally, the AAO found that only reliable credentials evaluation services that specializes in evaluating foreign education credentials can evaluate a foreign national’s education. So, the submission to the USCIS must now include an evaluation from a foreign credentials evaluation service, expert letters can only be used to show recognition of expertise not educational equivalency.
In sum, the 3 for 1 rule should not be considered the simple 3:1 ratio it has been in the past. Going forward, proving that a beneficiary meets the H-1B educational requirements through years of experience is a completely new animal.