HLG will be hosting a free teleconference on Thurs. May 14th at 11:00 am eastern to discuss some recent changes in the immigration laws and policies relative to H-1b visas and PERM applications and also to provide updates on several misc. topics impacted by COVID-19. The seminar will specifically focus on the IT and engineering staffing market but, information will be provided that is relevant to all employers that have international workers. Register here.
The Trump Administration has handed down a new policy memorandum targeting international students by changing the definition of unlawful presence to essentially be synonymous with a status violation. The new memo is slated to go into effect on Aug 9, 2018. The penalty for accruing 180 days of unlawful presence is a 3 year bar from the U.S. The application of the memo to actions that occurred prior to Aug 18, 2018 are quite complicated and must be assessed on a case by case basis. However, what is clear, is that any status violations that occur after Aug 9, 2018 will be treated as accruing unlawful presence. For those OPT STEM students working in the staffing industry, it is believed that this new policy change is directed precisely at you to self-enforce the new prohibitions promulgated by a web-site update that all but essentially prohibits OPT STEM students from being employed by staffing firms at 3rd party sites. There is a public comment period that is open until June 11, 2018. Changes to this policy memo based upon public comments are possible prior to Aug 9, 2018. We will update as developments occur.
The USCIS has once again decided to single out the staffing industry, in particular the IT staffing industry and has issued a new policy memorandum designed to make it more difficult for small and medium sized U.S. staffing companies to employ H-1b workers. The new policy specifically notes that it will be more difficult to prove an employer-employee relationship and get an H-1b approved if the 3rd party placement is multi-layered. For many small and medium sized US companies, the way in which they break into the staffing industry is by starting out as sub-contractors.
There are 3 take-aways from this memo:
1. We expect the length of H-1b approvals to be limited to the expiration of the existing PO, JO, SOW, etc;
2. The end client must confirm the details of the job description and corroborate that the position is a specialty occupation; and,
3. We expect an increase in denials over the issue of whether a position is a specialty occupation due to the USCIS “single-degree” rule and the inclusion in many requisitions of language such as “Bachelors degree in Computer science or related degree or relevant experience”
Using the Neufeld memo from 2010 as our guide, it took over a year for many end users of IT staffing services to be willing to provide end client letters, now a common and routine practice and we expect it to take some time for the end users to be willing to modify the language in the end client letters to satisfy the newly imposed requirements.
Although much of the immigration related Trump campaign for Presidency focused on “building a wall” and other enforcement issues, he did make some far-reaching comments such as “the H-1b visa should be eliminated” only to back track on that position later. He has surrounded himself with some immigration advisers, most notably, Senator Sessions who are not only opponents of illegal immigration but, also widespread critics of legal immigration. We must keep in mind not to believe everything we hear but, as information comes out about President-elect Trump’s immigration team and his planned policies on legal immigration, we will share them here. We will also share articles of interest that discuss the impact on IT staffing in general. Today’s article comes from Staffing Talk.
Cadence Moore and Dwight Myfelt will be speakers at the American Staffing Association’s Staffing World in San Diego, CA from October 25th through October 27th. Cadence and Dwight will be speaking about recruiting in social media that will be part of the Thursday afternoon session. If you are attending, please make sure you attend one of their events.
In a decision released last week, the AAO declared that a work-site location change outside of the original MSA requires the filing of an amended H-1b petition. This change will have significant impact on staffing cos., many whom have followed DOL and USCIS HQ guidance which supported the conclusion that only the filing and posting of a new LCA was required when an employee’s work site changed. The I-129 form itself declares that an amended petition is not required when changing the location of an H-1b employee if you have filed and posted an LCA at the new work-site prior to the move. It is not known whether USCIS HQ supports this AAO decision or will issue further clarifying guidance to essentially overturn this decision. In the meantime, this decision leaves employers in an era of uncertainty. HLG will be hosting a teleconference for clients on Fri. April 17th to discuss this topic. More details will be released early this week.
And they say ignorance and poor advice doesn’t pay off ! In this case it sure did. A Federal Judge ruled in favor of an IT Staffing co. and stated that they did not willfully violate the DOL’s posting regulations when they failed to post at 3rd party sites where they placed H-1b workers because they had tried to post at those sites and personnel at the company thought that trying really hard was sufficient. The ruling does NOT stand for the proposition that postings are not required at the actual worksites as the Court acknowledged that is the law. I also think it would be a mistake to think that the ruling stands for the proposition that if you try really hard that you are compliant. Rather, I think this ruling should be viewed in the context of an over-reaching DOL trying to claim bad acts i.e. willful acts when the facts supported negligence or ignorance. As any prosecutor will tell you, don’t over charge or you risk ending up with a not guilty verdict. Did the company clearly violate the DOL regulations by not posting at 3rd party worksites where their H-1b workers were placed ? yes. But, did they deserve a fine of almost $200,000 ? The Court obviously thought no and found a way to serve justice. I also think the facts in this case cry out for a legislative fix. What is the proper course of action when a customer says that, “you can’t place that notice on our premises “? In this case, the company had documented emails and letters to their customers requesting them to post the required notices and yet they were met with refusal after refusal. Many of their customers added to their level of ignorance by telling them that they did not have to post at the work-site location. Surely, the brilliant legislators in Washington can come up with a solution to this problem. Anyone say national registry of postings ?
On Friday, August 23, 2013, Hammond Law Group will be hosting an immigration seminar at the Newark Liberty International Airport Marriott. The seminar will focus on the impact of the new immigration bill on staffing companies and its employees and will also provide an update on BALCA decisions and Service Center policies that impact the processing of H-1b, L-1, and labor certification cases for staffing cos. Mike Hammond and Cadence Moore will be speaking. A full agenda will be released soon.
Senators on the Judiciary Committee have proposed almost 300 amendments to the Senate CIR bill. Many of these amendments would have disastrous effects on IT staffing cos. Senator Grassley, a long-time opponent of the H-1b program and its use by IT staffing cos. proposed 77 himself. A listing of the amendments can be found here at ILW.com.
HLG will be hosting its annual seminar in the NJ/NYC area on Friday, Aug 17th. The seminar will focus on issues impacting IT staffing and consulting firms and their H-1b employees. Check out the full agenda. Both Mike Hammond and Cadence Moore will be in attendance and speaking.