Category Archives: Immigration

March 7, 2017

New Immigration Executive Order Scales Back Earlier Travel Restrictions

By Roger Tsai

On Monday, March 6th, President Trump signed a new, narrower Executive Order (EO) that temporarily restricts travel to the United States by citizens of six Muslim-majority countries. The new EO revokes the administration’s earlier order that was issued on January 27, 2017. Here are the highlights of the new EO and how it may affect employers in the U.S.

Ninety-day Travel Restrictions

The new EO restricts entry into the U.S. of nationals from six countries for 90 days from the effective date of the order, which is March 16, 2017. The six restricted countries are Iran, Syria, Yemen, Libya, Sudan, and Somalia. During the 90-day suspension period, the Secretary of Homeland Security is directed to conduct a worldwide review to identify additional information that is needed from each foreign country to determine whether individuals who apply for a visa, admission, or other immigration adjudication, are a security or public-safety threat. 

Iraq No Longer Subject To Travel Restrictions

As we reported earlier, the administration’s January executive order sought to temporarily restrict travel to the U.S. from seven Muslim-majority countries, and only Iraq has been removed from the list due to the “close cooperative relationship between the United States and the democratically elected Iraqi government, the strong United States diplomatic presence in Iraq, the significant presence of United States forces in Iraq, and Iraq’s commitment to combat ISIS.” The EO further notes that since the January EO was issued, the Iraqi government has taken steps to increase information sharing, travel documentation, and the return of Iraqi nationals who are subject to final orders of removal. Consequently, the temporary travel restrictions will not apply to Iraqi citizens.

Exceptions for Valid Visa Holders and Lawful Permanent Residents

Unlike the confusion caused by the January executive order, the new EO specifies that it does not apply to lawful permanent residents of the U.S. (green card holders) or to foreign nationals of the designated countries who hold a valid visa. The new EO does apply to individuals from the six designated countries who are outside the U.S. and do not have a valid visa on March 16, 2017. In addition, exceptions to the restriction exist for:

  • any foreign national admitted to or paroled into the U.S. on or after the effective date of the order,
  • any foreign national who has a document other than a visa, valid on the effective date of the order or issued any date thereafter, that permits travel to the U.S.,
  • any dual national of one of the designated countries when traveling on a passport issued by a non-designated country, and,
  • any foreign national who has been granted asylum, any refugee who has already been admitted to the U.S., or any individual who has been granted withholding of removal, advance parole, or protection under the Convention Against Torture.

Additional waivers of the suspension of entry from the designated countries may be decided on a case-by-case basis, including when the individual has previously been admitted to the U.S. for a continuous period of work, study, or other long-term activity and seeks to reenter the U.S. to resume that activity. Exceptional waivers may also be granted for spouses, children, or parents of a U.S. citizen, permanent resident, or lawful nonimmigrant where a denial of entry causes undue hardship.

Visa Interview Waiver Program Immediately Suspended

The new EO suspends immediately the Visa Interview Waiver Program, which allows travelers to renew travel authorizations without an in-person interview. Now, all individuals seeking a nonimmigrant visa will have to partake in an in-person interview, unless traveling for certain diplomatic or other excepted purposes. 

Refugee Program On Hold For 120 Days

The new EO suspends decision on applications for refugee status for 120 days after the effective date of the order. Unlike the January order, this EO does not single out refugees from Syria as indefinitely suspended. The EO caps the entry of refugees in fiscal year 2017 at 50,000.

March 16, 2017 Effective Date

The new EO becomes effective at 12:01 a.m. on Thursday, March 16, 2017. This advance effective date allows all agencies, airports, airlines, employers, individuals, and others affected by the order to plan for its restrictions.

What Employers Need To Consider

The suspension of the Visa Interview Waiver Program could result in delays for some foreign nationals traveling to the U.S. who now must undergo an in-person interview. Employers who employ individuals in the U.S. with unexpired visas from the designated countries should not be impacted because the suspension only affects workers currently outside the U.S. without a valid visa on the March 16, 2017 effective date. Employers seeking to employ or otherwise work with foreign nationals without existing visas from the six designated countries may need to seek a waiver under the case-by-case review process. We will continue to monitor this order, including any legal challenges that may be filed.

February 1, 2017

Workplace Implications of the President’s Immigration Executive Order

6a013486823d73970c01b8d1be606f970c-120wiBy Roger Tsai

On January 27th, President Trump signed an Executive Order titled “Protecting the Nation from Foreign Terrorist Entry into the United States” immediately suspending the entry of citizens from Syria, Iran, Libya, Somalia, Yemen, Iraq, and Sudan, as well as the entry of new refugees. Employers with immigrant employees in the affected countries are encouraged to suspend work-related travel into the U.S. for the time being, as they may be unable to enter the U.S. Where possible, immigrant employees currently in the U.S. from the affected countries, even those with valid immigration documentation, such as H-1B visas, should avoid international travel for the next 90 days unless there is more clear indication of enforcement activities, a change to the Executive Order, or court-related clarity.

Who Does The Executive Order Impact?

  • Foreign nationals from the seven affected countries will likely be temporarily prevented from entry at U.S. airports and ports of entry by U.S. Customs and Border Protection for a 90-day period. Similarly, U.S. Embassies abroad are expected to suspend the issuance of temporary nonimmigrant visas and immigrant visas to foreign nationals of the seven countries. The issuance of visas or entry into the U.S. of dual citizens of affected countries will also likely be temporarily suspended. To prevent unnecessary travel, the Department of Homeland Security (DHS) is working with airlines to prevent the selected travelers from boarding international flights. Because the Executive Order also orders DHS to suspend “visas and other immigration benefits” to the citizens of the affected countries, immigrant employees in the U.S. seeking extensions of existing visas through U.S. Citizenship and Immigration Services may potentially be impacted.
  • U.S. permanent residents who are citizens of the affected countries will be allowed to enter the U.S. based on recent updates issued by White House Chief of Staff Reince Priebus and DHS. Initially, the Executive Order only permitted the entry of U.S. permanent residents “when in the national interest” on a case-by-case basis. On January 29th, DHS clarified that lawful permanent resident status will be a dispositive factor in the case-by-case determinations, absent derogatory information indicating a serious threat to public safety and welfare.
  • Newly admitted refugees from any country will be suspended for a 120-day period under the Executive Order. Current employees under refugee status should be permitted to travel internationally but may face additional scrutiny at Customs if they are from the seven affected countries. The entry of new Syrian refugees is indefinitely suspended.
  • Immigrants seeking renewal of their visas through the Visa Interview Waiver Program (VIWP). Previously, the VIWP allowed visitors and other visa holders to renew visas without a consular interview if the immigrant was applying for the same visa category within 12 months of the initial visa expiration. Applicants could simply drop off their application, passport and payment and obtain a renewed visa stamp without undergoing a visa interview. The Executive Order immediately suspends the VIWP and most nonimmigrant visa applicants will be required to attend an in-person interview to renew their visas. The VIWP is separate from the Visa Waiver Program which allows citizens of 38 countries to enter the U.S. as visitors for 90 days without a visa.

Over the course of the next 30 to 120 days, the Department of State and DHS will provide reports to the President regarding the public-security concerns, and we will provide additional alerts as the policy evolves.

November 21, 2016

New Form I-9 Must Be Used By January 22, 2017

6a013486823d73970c01b8d1be606f970c-120wiBy Roger Tsai

This week, the U.S. Citizenship and Immigration Services (USCIS) released a new version of its Form I-9, the Employment Eligibility Verification form. All U.S. employers must begin using the new Form I-9 after January 22, 2017.

Currently, U.S. Immigration and Customs Enforcement conducts over 3,000 I-9 employer audits annually, and immigration enforcement is anticipated to increase due to the Trump presidency. In January, Holland & Hart will host a webinar explaining the changes to the Form I-9 and discussing what immigration reforms employers should expect in a Trump presidency.

Form I-9 Changes

The new version of the Form I-9 includes some clarifications as well as some changes designed to make the form easier to fill out electronically. Completing the Form I-9 electronically will require downloading the latest version of Adobe Reader. Form I-9s completed electronically will still need to be printed and signed by the employee and employer agent by hand. One of the changes is in Section 1 which now asks for “other last names used” rather than “other names used.”

Enhancements for easier completion of the form include drop-down lists and calendars for entering dates, the addition of prompts to help ensure that information is entered properly, on-screen instructions for each field, and easy access to the full instructions. It also includes an option to clear the form and start over. Other changes you’ll find on the new I-9 include:

  • Question regarding whether a preparer or translator was used
  • Space to enter multiple preparers and translators
  • A supplemental page for the preparer/translator
  • Creation of a QR code once the Form I-9 is completed electronically
  • A field to enter additional information such as E-Verify confirmation numbers, termination dates and correction notes, and
  • Separating the full instructions from the form itself.

Reminder of I-9 Process

As you may know, the 1986 Immigration Reform and Control Act (IRCA), prohibits employers from hiring employees, including U.S. citizens, without first verifying their identity and checking that they have proper authorization to work in the United States. The Form I-9 ensures that you have completed this necessary verification for all new hires. The proper timing and process for completing Form I-9s for each newly hired employee is:

  1. Employee accepts offer for employment.
  2. Employee completes Section 1 of the I-9 form no later than the first day of work for pay.
  3. Employee provided documents showing identity and employment authorization to employer.
  4. Employer completes Section 2 of the I-9 form no later than the third business day after the employee starts work for pay.

What You Need To Do

You have just over two months to switch to the new Form I-9, so it is best to put procedures in place now to make that switch for all new hires to ensure compliance.

June 24, 2016

Obama’s Immigration Policy Blocked Due to Equally Divided Supreme Court

Tsai_RBy Roger Tsai

A 4-to-4 decision by the Supreme Court on a challenge to President Obama’s immigration reform policy means that the policy continues to be blocked, disappointing five million undocumented immigrants who had hoped to stay and work in our country. The failure of the Court to come to a majority decision leaves a nationwide injunction by a Texas court in place, preventing implementation of the new immigration policy. United States v. Texas, 579 U.S. ___ (2016). The short nine word opinion fails to provide any reasoning for the Court’s decision or establish clear precedent.

DACA and DAPA Programs

At issue is President Obama’s November 2012 and 2014 immigration programs that would allow more undocumented immigrants to apply for the Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) programs. The pre-existing DACA program granted temporary two-year work permits to 1.2 million young people brought to the U.S. by their parents and remains unaffected. The administration’s new immigration policy sought to expand the DACA program, which allows eligible young people to apply for work permits and deportation deferrals, by increasing the deferral period from two to three years and eliminating the requirement that applicants be under 31 year old. Under the new DAPA policy, which applies to parents of children who are U.S. citizens or lawful permanent residents, undocumented parents would be permitted to stay in the United States for three years and work here legally.

States Sued To Stop Obama’s Immigration Reforms 

Before the President’s policy could go into effect, Texas and twenty-five other states went to court and got an injunction preventing implementation of the policy. The states asserted that the Obama administration did not have the authority to issue new immigration policy, arguing that sweeping immigration policy of this sort must be passed through Congress, not by the executive branch. In early 2015, a federal court in Texas issued an injunction blocking the enactment of the new policy while the legal issues were resolved. An appeals court upheld that ruling, leading to the appeal to the Supreme Court.

Next Steps For Immigration Reform

The federal government has the option of filing a rehearing petition in the Supreme Court, hoping for a different result if, and when, a ninth Justice is seated on the Court. Absent that, the case essentially goes back to the federal district court in Texas for further proceedings on the actual claims in the case. Because that judge had issued the preliminary injunction believing that the states would prevail on their claims, the government will have an uphill battle getting its policy through. In the meantime, the immigration reform is blocked, leaving an estimated five million undocumented workers and their children without relief.

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June 13, 2016

Repeal of Colorado’s Employment Verification Law

Tsai_RBy Roger Tsai

Effective August 10, 2016, Colorado employers no longer need to complete and maintain the state employment verification affirmation form that ensures that new hires are legally eligible for employment in the United States. Gone too will be the state requirement that employers keep copies of the documents provided by new hires to show their employment eligibility and identity in support of the I-9 verification process. Signed into law by Governor John Hickenlooper on June 8, 2016, House Bill 16-1114 repeals the state statutory provisions that duplicated much of the employment verification requirements of the federal I-9 forms.

Legislature Relieves Extra Burden on Colorado Employers

In repealing most of section 8-2-122 of the Colorado Revised Statutes, the Colorado legislature acknowledged that the additional state employment verification affidavit and documentation requirements imposed an extra, redundant burden on employers while doing nothing to further prevent unauthorized individuals from working in our state. With the repeal of the additional state verification requirements, the fines and penalties for failure to comply with those requirements under state law are repealed as well.

Section 8-2-122 does not go away entirely, however, as the legislature kept the provision that permits the director of the Colorado Division of Labor to request documentation from employers to show they are in compliance with the I-9 employment verification requirements. The director, or his/her designee, still may conduct random audits of employers to ensure compliance with I-9 obligations. The legislature also maintained the public policy statement that this statute is to be enforced in a non-discriminatory fashion.

What Colorado Employers Should Do

For new employees hired in the next two months, before August 10, 2016, continue to comply with the Colorado employment verification requirements as well as your federal I-9 obligations.

For new employees hired on or after August 10, 2016, you need only comply with your federal I-9 employment verification requirements. That means newly hire employees must complete and sign Section 1 of Form I-9 no later than the first day of employment, and employers must complete Section 2 of the I-9 and examine evidence of both identity and employment authorization within three business days of the employee’s first day of employment. Federal law does not require you to keep copies of the documents provided by the employee to show identity and employment authorization, but employers may choose to retain these documents at their discretion in case an federal immigration audit occurs.

What should you do with the Colorado employment verification affirmation forms and copies of authorization document for your current employees after August 10th?  Your best practice is to continue to keep those forms for the duration of each employee’s employment since the forms were required at the time you hired them. Once an employee is no longer employed by your organization, you may dispose of the Colorado-specific affirmation forms but continue to retain the I-9 forms for one year after the date employment ends, or three years after the date of hire, whichever is later.

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April 13, 2016

H-1B Visa Submissions Lower than Expected

Tsai_RBy Roger Tsai

The U.S. Citizenship and Immigration Services (USCIS) received over 236,000 H-1B visa applications for fiscal year (FY) 2017 in the first week of April. That number far exceeds the statutory cap of 65,000 H-1B visas under the general category and the 20,000 visas under the master’s degree cap. But, it is only 3,000 more petitions than were filed last year, and substantially less than many attorneys and employers were expecting. That is good news for H-1B petitioners, who face better odds at roughly 36% selection rates, but is a sign that the tech economy may be plateauing or new increased fees for employers submitting high volumes of applications are taking effect.

Lottery System Used to Select Petitions

U.S. businesses use the H-1B program to employ foreign workers in occupations that require highly specialized knowledge in fields such as science, engineering, and computer programming. On April 9, 2016, USCIS used its computer-generated random selection process, or lottery, to select a sufficient number of H-1B petitions to meet the total 85,000 cap. The agency first conducted the selection process for the advanced degree exemption. All unselected advanced degree petitions then became part of the lottery selection process for the 65,000 general category limit.

USCIS earlier announced that it will begin premium processing for selected H-1B cap cases no later than May 16, 2016. No start date has been announced for regular processing cases, although historically regular processing receipt notices have been issued in May. All unselected petitions will be rejected and returned with their filing fees. 

Not Selected? Consider Alternative Visa Options

If you need to hire foreign professionals but your H-1B visa petition was not selected, you may want to explore other popular alternatives. Consider the following alternative employment visas and options:

  1. Lateral Hire of H-1B Workers. The statutory H-1B visa cap applies only to new H-1B petitions, meaning that employers may be able to hire foreign workers who currently hold H-1B visas through another employer. Current H-1B employees generally may extend their visa status for up to six years and in some cases, even longer. In addition, foreign nationals who previously held H-1B status but are not currently employed in the U.S. are exempt from the annual H-1B cap and may be returned to that status for the rest of their six-year H-1B visa period.
  2. F-1 STEM OPT Extensions. Science, tech, engineering, and math (STEM) graduates may apply for an extension to their one year Optional Practical Training (OPT). The extension period soon will be increased from 17 to 24 months. The 17-month extension period under the current STEM OPT rules will apply to applications filed through May 9, 2016, but I-765 Applications for Employment Authorization filed after May 10, 2016 may seek the longer 24-month extension available under the new rule. F-1 employers must participate in E-Verify in order for the STEM graduate to be eligible for this extension.
  3. TN Visa. The TN visa is a three-year nonimmigrant visa for Canadian and Mexican citizens and authorizes the individual to work and live temporarily in the U.S. Almost all TN positions require a Bachelor’s degree except for a Scientific Technician or Management Consultant position, but unlike the H-1B, there is no numerical limitation to the number of TN visas issued. TN nonimmigrant workers must show that they will be working in one of sixty TN approved occupations, such as nurses, attorneys, engineers, management consultants, and scientific technicians. 
  4. E-3 Australian Specialty Occupation Visa. An E-3 visa allows Australian citizens to enter the U.S. for a two-year period to work in a specialty occupation, which is defined as any position which normally requires a Bachelor’s degree in a specific major or concentration (i.e. engineer, nurse, scientist, software developers, and accountants). Solely managerial or sales roles do not qualify as specialty occupations. E-3 visas are limited to 10,000 per year.
  5. L-1B Specialized Knowledge Worker Visa. Workers who currently are outside the U.S. working for a foreign parent or subsidiary company related to a U.S. company and who have done so for at least one out of the last three years may qualify for the L-1B intercompany transfer for specialized knowledge workers. The individual must hold specialized knowledge which is distinguished from knowledge held by others in the company and industry.
  6. F-1 Student Status. Non-U.S. citizens may choose to return to school and change their status to F-1. Depending on his or her degree program, the international student’s office may allow the individual to work off-campus part time under Curricular Practical Training. Students should contact their university’s international student’s office for additional information.

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March 21, 2016

STEM OPT Extension Lengthened to 24 Months

Tsai_RBy Roger Tsai

The Department of Homeland Security’s Final Rule governing STEM Optional Practical Training (OPT) places new obligations on employers of F-1 STEM OPT international students and increases the available STEM OPT extension period from 17 to 24 months. As of September 2015, more than 34,000 students were in the U.S. under STEM OPT. Here are the essential highlights of the final rule you’ll need to know.

STEM OPT Extensions 

The initial OPT period is 12 months but the new rule allows qualifying F-1 STEM students to apply for a 24-month extension of the OPT period, replacing the 17-month extension period previously available. When combined with the initial 12-month standard OPT period, the new STEM extension will allow international students to work in the U.S. for up to 36 months after graduation.

New Form I-983 and Formal Training Plans Required

Under the new rule, employers must work in conjunction with each STEM OPT student to prepare and implement a formal training plan that identifies learning objectives and a plan for achieving those objectives. To fulfill this requirement, the student and the employer must complete and sign a new Form I-983 and submit it to the Designated School Official (DSO). The new formal training plan requirement applies to all students applying for STEM OPT after May 11, 2016.

The Form I-983 requires that the student and employer identify the following:

  • duties and assignments that the student will work on during the OPT training, and how such tasks relate to the student’s STEM degree;
  • the specific skills the student is expected to learn or apply during OPT, including goals and a timeline of the training curriculum;
  • how the employer will offer oversight and supervision, which may include how an existing training program or policy achieves the required oversight and supervision; and
  • mechanisms by which the employer assesses whether the person in the OPT position is actually obtaining new knowledge and skills.

E-Verify, Reporting Requirements and Site Visits

The DHS’s final rule places numerous obligations on employers who employ STEM OPT students. In light of the federal lawsuit filed by the Washington Alliance of Technology Workers challenging STEM OPT, these changes are designed to improve the integrity of the STEM OPT program and ensure that U.S. workers are not displaced or adversely impacted. For instance, as part of the Training Plan, the employer must attest the student will not replace a full or part-time, temporary or permanent U.S. worker, and the F-1 employee will be paid a salary commensurate with similarly situated U.S. workers.

First, employers must be enrolled in and remain in good standing with E-Verify. Second, both the student and the employer have reporting requirements, primarily as follows:

  1. validation of student’s employment status six-months after the start of STEM OPT employment;
  2. a self-evaluation requirement by which the student must report to the DSO on his or her progress with the practical training, which must be signed by the employer;
  3. reports on any changes in employment status must be made by both the student and the employer within five days; and
  4. reports to the DSO must be made by both the student and the employer on any material changes to, or deviations from, the student’s formal training program.

Third, DHS has the discretion to conduct employer site visits with 48 hours of notice to verify whether the employer is meeting the STEM OPT program requirements, including that they have the ability and resources available to provide structure and guided work-based learning experiences.

What Happens To Pending I-765 Applications?

The 17-month extension period under the current STEM OPT rules continue in effect through May 9, 2016. Consequently, I-765 Applications for Employment Authorization requesting a STEM OPT extension filed and approved prior to May 10, 2016 will result in a 17-month extension, not the longer 24-month extension available under the new rule.

Students with a 17-month STEM OPT wishing to request the additional seven-month extension will need to file a Form I-765 on or after May 10 but no later than August 8, 2016 with a new Form I-20 and a completed and signed Form I-983 attesting to the training and monitoring plan. Students must have at least 150 calendar days remaining on their 17-month extension prior to filing the Form I-765 requesting the additional seven month extension.

Students with an I-765 application still pending on May 10, 2016 will receive an RFE (request for evidence) from USCIS requesting documentation to establish that the student is eligible for the 24-month extension under the new rule. This will require filing a new Form I-20, endorsed on or after May 10th indicating that the DSO recommends the student for a 24-month OPT extension, and a completed and signed Form I-983 attesting to the training and monitoring plan.

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June 2, 2015

USCIS Flips Position: Proposes That Amended H-1B Petitions Must Be Filed When Changing Worksite

Tsai_RBy Roger Tsai 

If your H-1B employee changes his or her worksite location, you’ll need to file an amended H-1B petition with a corresponding new Labor Condition Application for Nonimmigrant Workers (LCA) under a proposed guidance recently released by the U.S. Citizenship and Immigration Services (USCIS). This position, consistent with this April’s decision by USCIS’ Administrative Appeal Office in the Matter of Simeio Solutions, LLC, is a complete reversal of USCIS’ long-held position that a geographic move does not trigger the need to file an amended Form I-129 petition. The proposed change will significantly affect employers who have multiple offices or locations, making it more difficult and costly to move H-1B employees from one work location to another. 

Reversal on Need to File Amended H-1B Petition 

Previously, USCIS had informed employers that as long as the LCA has been filed and certified for a new employment location, there was no need to file an amended H-1B petition solely because of the change in worksite location. As long as there were no other material changes in the terms and conditions of the employee’s status or eligibility for H-1B classification, you only needed to post the new LCA in the new worksite location to be in compliance. 

Now, under the proposed guidance and Simeio Solutions decision, an amended H-1B petition will be needed whenever an H-1B employee changes his or her place of employment to a location outside of the county covered by the existing, approved H-1B petition. This applies even if a new LCA has been certified and posted at the new location. USCIS now contends that a change in the H-1B worker’s place of employment is a material change in the terms and conditions of employment which therefore triggers an amended petition. 

USCIS clarifies that you will not need to file an amended petition if your H-1B worker is moving to a new worksite within the same metropolitan statistical area county or “area of intended employment” as in the original petition and LCA. You still must post the original LCA in the new work location, but no amended documents must be filed. Similarly, you would not need to file an amended petition if your H-1B employee will be working at a new location for only a short time, namely up to 30 days (60 days, in some cases), or the employee goes to a “non-worksite” location (e.g., staff seminars, management conferences or other casual, short-term assignments). 

What To Do If Your H-1B Workers Change Worksite Locations 

If your H-1B workers have already changed worksites, you have until August 19, 2015 to file an amended H-1B petition and corresponding LCA. USCIS states it will not take any adverse action against you or your employees as long as you file by the August 19th deadline. If you fail to file an amended petition by that date, you will be out of compliance and both you and your H-1B employee would be subject to adverse action. 

After you file the amended petition, your H-1B worker may begin to work at the new worksite location immediately. You need not wait for a final decision to move the employee to a different worksite. 

If your amended H-1B petition is denied, your H-1B employee may return to work at the location covered by the original petition, as long as the original petition is still valid and the employee is able to maintain valid nonimmigrant status at that location. 

Comment Period Open Until June 26 

USCIS will accept comments from the public and interested parties about its proposed change in position until June 26, 2015. Accordingly, USCIS may change its final guidance based on questions and concerns raised during the comment period. We will keep you posted as this issue gets finalized.

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May 12, 2015

H-1B Visa Applications Hit Record 233,000 In First Week

Tsai_RBy Roger Tsai 

Nearly 233,000 H-1B applications were filed with the U.S. Citizenship and Immigration Services (USCIS) in the first week of April. With only 85,000 H-1B visas available, nearly two-thirds of all applications will be rejected. 

USCIS Lottery to Select Petitions 

By statute, the number of H-1B visas is capped at 65,000 under the general category, with an additional 20,000 for applicants with advanced degrees. After the filing period began on April 1, USCIS received almost 233,000 H-1B petitions – almost three times the cap. To determine which applications will be accepted, USCIS uses a computer-generated lottery system. 

Beginning April 13, USCIS first conducted the random selection process to fill the 20,000 advanced degreed visa allotment. Any advance degree petitions not selected in that lottery were put into the general lottery and became eligible for random selection for the 65,000 general H-1B visas. USCIS then began issuing receipt notices for premium processing cases from April 27th to May 11th. We estimate receipt notices for H-1B petitions filed under regular processing will be issued between mid-May to mid-June. All unselected applications will be rejected and returned to the petitioner along with their filing fees. 

Exempt Petitions Still Accepted 

Certain petitions that are exempt from the cap will continue to be accepted and processed. This includes petitions for current H-1B visa holders who previously were counted against the cap. It includes petitions: 

  • to allow current H-1B workers to change employers
  • to work concurrently in a second H-1B job
  • to change the terms of a current H-1B worker’s employment, and
  • to extend the amount of time a current H-1B worker is permitted to stay in the United States. 

Time to Raise the Cap? 

With record numbers of applications for H-1B visas being filed each year, many organizations believe Congress needs to raise the cap. U.S. businesses, including many high tech companies, who need to hire foreign workers for their science, engineering and computer programming positions are often frustrated when visa applications greatly exceed the cap, leaving their ability to hire highly skilled immigrants up to chance due to the random lottery process. 

According to estimates from Compete America, a coalition representing universities, trade associations and technology industry leaders like Microsoft, Google, Amazon and Facebook, U.S. businesses lose about 500,000 jobs each year because of the visa caps. The organization asserts that for every scientist and engineer who doesn’t get to work in the U.S. because of the visa cap, an additional four jobs for U.S. workers are lost. They argue that the restraint on hiring highly skilled foreign workers limits economic growth and innovation.

Earlier this year, Senator Orrin Hatch, R-Utah, introduced the Immigration Innovation Act of 2015 (also called the I-Squared Act) which would raise the H-1B visa cap to 195,000 annually. Critics of the bill argue that U.S. colleges are graduating more scientists and engineers than can find work in their respective fields each year, so businesses should be looking to hire U.S. citizen graduates rather than foreign guest workers. Opponents also assert that H-1B workers lower the wages in technology and science fields. Given the current political climate in Washington, it is unlikely that the I-Squared Act, or other immigration reform bills, will pass anytime soon.

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September 25, 2014

Colorado Employers Must Use Updated Employment Verification Form Beginning October 1, 2014

Collis_SBy Steve Collis 

The Colorado Department of Labor and Employment (CDLE) recently updated the form that employers must use to comply with the Colorado Employment Verification Law, C.R.S. § 8-2-122.  The new Affirmation of Legal Work Status form must be used for all Colorado employees hired on or after October 1, 2014. 

Form Must Be Completed Within 20 Calendar Days 

The updated form does not differ greatly from previous versions of the Colorado employment verification form.  It does, however, clarify that the form must be completed within 20 calendar days after each new employee is hired.  (The prior form specified that it must be completed within 20 days, but did not specify  whether it was calendar days or business days.)  The new form is available on the CDLE’s website in a fillable PDF format . The revision date on the new form is 09/01/14 with an expiration date of 10/01/17. 

Complying with Colorado’s Employment Verification Law 

Colorado’s Employment Verification Law has been in effect for over seven years, yet many employers remain confused because it differs from federal employment verification requirements. Key details for employers to know in order to comply with Colorado’s law include: 

  • All private and public employers with employees in Colorado must comply with the Employment Verification Law;
  • Use of the Affirmation of Legal Work Status form provided by the CDLE is mandatory;
  • Electronic copies of the affirmation form are acceptable;
  • Employers must make and keep copies of the identity and employment authorization documents used to complete federal Form I-9 for each newly hired employee (Note: this differs from federal law, which does not require employers to retain copies of the identity and authorization documents);
  • Employers may complete the form before the person begins work as long as he/she has been offered and has accepted the job; it may not, however, be used as a pre-screening tool;
  • Employers must retain copies of the affirmation forms and supporting documents for as long as the employee is employed;
  • Employers do not need to submit the forms and documents to the CDLE unless specifically requested; and
  • Compliance with federal Form I-9 or E-Verify requirements is not a substitute for complying with Colorado’s Employment Verification Law. 

The new affirmation form is prefaced with two pages of instructions that offer employers an overview of the Colorado Employment Verification Law as well as instructions regarding how to complete the form.  In addition, the CDLE has updated its Fact Sheet and provided Frequently Asked Questions regarding the Employment Verification Law to help guide employers through the process.  These documents are available on the CDLE website on its Employment Verification Law page.  

Penalties for Non-Compliance 

Fines for failing to complete and retain the required Colorado affirmation forms and copies of new hire identification and authorization documents can mount up quickly.  An employer who, with reckless disregard for the law, fails to comply may be subject to a $5,000 fine for the first offense and up to $25,000 for any subsequent offenses.  The CDLE conducts random audits of Colorado employers and will audit employers upon receipt of a complaint.  Employers should keep their verification documents organized and readily available in case the CDLE requests to examine verification records to determine compliance. 

If in Violation, Don’t Correct—Comply Going Forward 

The CDLE advises that if an employer has not properly completed the affirmation form within 20 calendar days of hiring a new employee or has failed to keep copies of the identification and authorization documents, the employer should not complete the form after the 20-day period has expired.  The CDLE states that backdating or entering false information on the form could result in further fines, depending on the circumstances.  Instead, employers should comply with the Employment Verification Law going forward and properly complete the mandatory forms and retain the necessary documents for all future new hires.  

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