Category Archives: Immigration

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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July 29, 2014

Options for Hiring Foreign Workers After H-1B Visa Rejection

Tsai_RBy Roger Tsai 

The U.S. Citizenship and Immigration Services (USCIS) received about 172,500 H-1B petitions this April for the annual allotment of 85,000 H-1B visas (65,000 in the general H-1B category and 20,000 for those with advanced degrees) to be issued this fiscal year.  Businesses use the H-1B Visa program to employ foreign citizens to work in the U.S. in highly specialized fields, such as engineering, science and computer programming.  When the number of petitions exceed the cap, as they do many years including this year, USCIS uses a random, computer-generated lottery to select the petitions that will be processed.  Those petitions not randomly chosen are  returned to the submitting employer along with the filing fees. 

If you need to hire foreign professionals but your H-1B visa petition was not selected, all is not lost.  Numerous alternatives exist that may provide you with the means to hire the specialized foreign workers you need. Consider the following alternative employment visas: 

  1. F-1 OPT STEM Extensions. Science, tech, engineering, and math (STEM) graduates may apply for a 17 month work permit to extend their one year Optional Practical Training (OPT).  The graduate must have applied for the 17 month OPT by filing an I-765 Application for Employment Authorization, which typically takes three months to process.  You, as the employer, must participate in E-Verify in order for the STEM graduate to be eligible for this extension. 
  2. 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. Each TN nonimmigrant worker must demonstrate that he or she will be working in one of sixty TN approved occupations. Occupations include but are not limited to nurses, attorneys, engineers, management consultants, and scientific technicians.  Almost all TN positions require a Bachelor’s degree except for a Scientific Technician or Management Consultant position. Unlike the H-1B, there is no numerical limitation to the number of TN visas issued.  
  3. E-3 Australian Specialty Occupation Visa.  This visa allows Australian citizens to enter the U.S. for a two year period to work in a position that qualifies as a specialty occupation. Specialty occupations are 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).  Roles which are solely managerial or sales do not qualify as specialty occupations.  E-3 visas are limited to 10,000 per year. 
  4. L-1B Specialized Knowledge Worker Visa.  If the worker is currently outside the U.S. working for a foreign parent or subsidiary company related to a U.S. company and has worked for the foreign company for at least one out of the last three years, he or she 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. 
  5. Lateral Hire of H-1B Workers. The H-1B visa cap applies only to new H-1B petitions.  Consequently, employers may be able to hire foreign workers who currently hold H-1B visas through other employers.  Current H-1B employees typically can 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. 
  6. Dependent status. Individuals whose spouse is in the U.S. under F-1, TN, L-1, H-1B or another nonimmigrant status may choose to change to the correlating dependent status (F-2, TD, L-2, H-4) which will allow them to remain in the U.S. but not to work.  To apply for this change of immigration status, the individual must submit an I-539 Application to Change or Extend Status to USCIS.  This typically requires a three month processing time. 
  7. 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. 

Explore Visa Alternatives To Meet Your Employment Needs 

While not an exhaustive list, these are some of the available options that may help you employ the degreed, specialized workers your business needs.  If your H-1B petition wasn’t selected under the cap, consider whether one or more of these alternatives applies.  As always, please feel free to consult us with your immigration and visa questions.

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March 17, 2014

Beat the H-1B Visa Cap By Filing On April 1, 2014

By Roger Tsai 

The U.S. Citizenship and Immigration Services (USCIS) will begin accepting new H-1B visa applications on Tuesday, April 1, 2014 and it is expected that USCIS will receive more than 140,000 petitions for the 85,000 available H-1B visas.  

H-1B Visa Cap Likely to be Reached in First Week 

The number of available new H-1B visas is limited to 65,000 bachelor degreed positions and 20,000 advanced degree positions.  This applies to an immigrant employee who will fill a specialty occupation in the U.S., which is defined as any position with the minimum requirement of a Bachelors degree in a specific major or the equivalent experience.  For example, H-1B specialty occupations include a wide range of high-tech, medical and managerial professionals (i.e., operations engineers, engineering managers, or accountants). The USCIS will accept three-years of experience for each year of education omitted.  If the immigrant employee has a non-U.S. university degree, USCIS requires a third-party educational evaluation. 

An additional 20,000 visas are set aside for graduate degreed positions.  This applies to non-U.S. citizen employees who have obtained a U.S. master’s degree or higher. 

The statutory H-1B cap of 65,000 for the fiscal year will likely be met within the first week of the filing period, which begins on April 1, 2014.  All applications received by the USCIS in the first week of April will be entered into the lottery.  Last April, USCIS received approximately 124,000 H-1B petitions during the filing period and reached the cap within the first five days of accepting petitions.  When it receives more petitions than the cap allows, USCIS uses a computer-generated random selection process known as the “lottery” to select a sufficient number of petitions to fill the 65,000 Bachelor degreed positions and the 20,000 advance degreed positions.  Immigrant employees with a U.S. Masters degree will have an opportunity to be selected under the 20,000 advanced degree cap. This year, the continued economic recovery is causing immigration practitioners to expect even more petitions to be submitted than last year, likely in the range of 130,000 to 150,000. 

H-1B Visa Petition Process 

Employers seeking an H-1B visa for a foreign worker to start work on or after October 1, 2014 should submit their H-1B visa petition as close to April 1, 2014 as possible, but no later than the first week of the filing period.  The petition process includes submitting the following to USCIS: 

1.  All sections of the Form I-129, Petition for a Nonimmigrant Worker, including the H Classification Supplement  and the H-1B Data Collection and Filing Fee Exemption Supplement; and

2.  A signed check or money order with the correct fee amounts (H-1B filing fees, payable to the federal government, are $2,325.00 per petition; and additional $1,225.00 can be paid to expedite the processing time). 

Petitions not selected in the lottery will be rejected and the petition and filing fees will be returned to the employer.  Unfortunately, rejection means that the company may not employ the non-U.S. citizen individual that year and the affected foreign national may need to leave the U.S. 

For accepted petitions, the processing time typically is three to five months, unless the employer submitted a $1,225 expedite fee which reduces the processing time to 15 calendar days.  Upon approval, USCIS will issue an I-797 Approval Notice which authorizes the immigrant employee to begin work immediately. 

Prepare to File At Earliest Date 

To increase your chances of acceptance of your H-1B petitions, plan to get your petitions to USCIS on April 1, 2014, the first day of filing.  Completing the forms takes some time and requires the employer to attest to certain salary requirements and conditions of work.  This means that you must gather the necessary salary, working conditions and other information to get your documents in order now. You have just two weeks before the filing period begins so get your petitions ready. 

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October 28, 2013

E-Verify – Catching Up After the Government Shutdown

By Roger Tsai 

The early October shutdown of the federal government left many employers unable to verify employment eligibility through the government’s E-Verify system.  Employees were unable to resolve Tentative Nonconfirmations (TNCs) and deadlines were missed.  What do you do now that the government has reopened?  How do you catch up and remain compliant with your E-Verify obligations?  Here are tips based on information provided by the U.S. Citizenship and Immigration Services (USCIS). 

  • November 5th deadline for creating E-Verify case for employees hired during the shutdown.  If you hired employees during the government shutdown, you need to create an E-Verify case for each such employee no later than November 5, 2013.  If the system asks why the case is late because it was not entered within three days of the hire, select “Other” from the drop-down list and enter “federal government shutdown.” 
  • Initiate referral process now for employees who decided to contest TNC during shutdown.  If an employee decided to contest his or her TNC while the E-Verify system was unavailable, initiate the referral process in E-Verify now.
  • Add 12 business days for employees to resolve TNC.  If an employee had a TNC referred during the period of September 17 – 30, 2013, the deadline for the employee to contact the Social Security Administration or the Department of Homeland Security to resolve their case fell during the government shutdown.  These employees may add 12 federal business days to the date printed on the “Referral Letter” or “Referral Date Confirmation” to resolve their cases. 
  • Start a new case for any Final Nonconfirmations (FNCs) or No Shows that resulted because of the shutdown.  If an employee received a FNC or DHS No Show because of the government shutdown, you will need to close the case and select “The employee continues to work for the employer after receiving a Final Nonconfirmation (or No Show) result.”  Then enter a new case in E-Verify for that employee so that the employee has an opportunity to contest and resolve the TNC that led to the FNC result.
  • I-9 obligation not affected by the government shutdown.  Because I-9 forms do not require government input, I-9 requirements were not affected by the government shutdown.  You should have properly completed and retained a Form I-9 for every employee, even those hired during the shutdown. 

Employees may be confused about what to do with a TNC or FNC that was due to or affected by the government shutdown. Refer them to the Employee section of the E-Verify website or to E-Verify Customer Support.   Remember that employers may not take any adverse action against an employee because of a TNC and should not take any adverse action due to a FNC or No Show result caused by the shutdown.  By catching up with E-Verify obligations now, your employment eligibility compliance procedures should get back to normal within a few weeks.


Disclaimer:This article is designed to provide general information on pertinent legal topics. The statements made are provided for educational purposes only. They do not constitute legal advice and are not intended to create an attorney-client relationship between you and Holland & Hart LLP. If you have specific questions as to the application of the law to your activities, you should seek the advice of your legal counsel.


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April 1, 2013

Eight Questions to Ask After Filing an H-1B

By Roger Tsai

On April 1, 2013, U.S. Citizenship and Immigration Services (USCIS) began accepting petitions for H-1B visas subject to the cap for next year’s allotment of visas for foreign national professionals.  Only 65,000 H-1B visas are issued for the coming year which begins on October 1, 2013, with an additional 20,000 visas available for foreign nationals who graduated from a U.S. college or university with a master’s degree or higher.  Employers seeking to obtain work authorization for key foreign national employees in specialty positions such as engineering, computer science, accounting, medicine, teaching and other high tech or professional fields need to file their petitions on or shortly after April 1 as the cap on H-1B visas is expected to be reached quickly. 

8 Questions that Help Minimize H-1B Liabilities  

If you filed an H-1B petition, here are eight questions you need to ask to reduce your potential liability: 

1.      Are you properly maintaining a Public Disclosure File? 

When filing an H-1B petition, the sponsoring employer must attest that it will comply with the terms and conditions of the labor condition application (LCA).  Employers must keep a public disclosure file related to each H-1B worker to demonstrate compliance with the LCA terms.  The public disclosure file should be kept for at least one year beyond the LCA expiration date and must include:

  • A copy of the LCA with employer’s signature
  • Documentation of the wage to be paid to the H-1B employee
  • Explanation of wage system
  • Prevailing wage source
  • 10 business day posting
  • Summary of benefits offered to the H-1B employee
  • Evidence of recruitment and additional non-displacement attestations (for employers who are deemed willful violators) 


 

2.      Have you filed an H-1B amendment when a change of employment occurs?

Under applicable regulations, an H-1B amendment must be filed if there has been a material change in the employment terms from that listed on the original H-1B petition.  Material changes may include a significant change in the job duties, a reduction in hours or compensation, or a change in work location. 

3.      Are you ensuring maintenance of immigration status for H-1B transfer workers?

Under the portability provisions of the American Competitiveness in the 21st Century Act, an H-1B worker employed by another company may transfer to a new employer.  The new employer, however, must file an H-1B visa transfer petition with USCIS before the worker begins work for the new employer. The H-1B extension will also require HR to re-verify the employees work authorization in Section 3 of the I-9 before the current H-1B expires. 

4.      Are more than 15% of your workers in H-1B status?

An employer with more than 50 full-time employees of which 15% or more are H-1B employees may be considered to be an H-1B dependent employer.  An H-1B dependent employer has additional attestation obligations related to its recruitment efforts and the displacement of U.S. workers.  For example, each time the employer files an LCA to support an H-1B petition, the employer is required to indicate its H-1B dependency status.  Large employers with more than half of all workers in H or L immigration status are subject to an additional $2,000 filing fee. 

5.      Do you have independent high tech contractors who are really your employees?

Misclassifying workers as independent contractors rather than employees opens the door to a whole host of potential liabilities related to pay practices, tax withholding, etc.  It also raises potential issues related to immigration requirements, including whether you are effectively the employer of the contractor. If you effectively control the work, you are the employer and may have an obligation to file the H-1B petition.  

6.      Have any salary cuts reduced H-1B workers below prevailing wage?

Employers must pay H-1B workers the higher of (1) the actual wage level paid by the employer to all other individuals with similar experience and qualifications for that employment; or (2) the prevailing wage for the occupation in the area of employment.   Employers who decrease pay levels for H-1B workers need to re-evaluate the new pay rate to ensure that they still meet the required salary.

7.      When you terminate an H-1B worker, do you notify the USCIS and DOL and offer to pay for return travel?

Employers who terminate the employment of an H-1B worker prior to the end of the H-1B status immediately end the lawful immigration status for the H-1B worker.  The employer should notify USCIS and DOL of the termination as failure to do so may result in the accrual of back-wages to the H-1B employee.  The employer also must offer to pay the H-1B worker the reasonable costs of return transportation to the foreign worker’s country.

8.      Have you informed your H-1B workers when (and when not) to travel?

H-1B workers need to take appropriate steps when they travel abroad, including obtaining a valid H visa stamp and maintaining an unexpired passport.  H-1B workers generally should avoid travel outside the U.S. during a pending change of status or extension of status because Customs and Border Protection may issue a visa stamp which may not incorporate the extension. Recent international student graduates whose OPT status expires before October 1, 2013 and are in the U.S. under the cap gap regulation may not travel. Married H-1B workers need to extend the H-4 status of their spouse through consular stamping or filing an I-539 with USCIS. 

Additional Information on Hiring Foreign Workers

Hiring foreign nationals for short term employment in the U.S. involves a complex set of immigration laws and regulations.  USCIS provides numerous resources for employers, including a guide called “How Do I Hire a Foreign National for Short-Term Employment in the United States?”  Please do not hesitate to contact Roger Tsai or another member of Holland & Hart’s Labor and Employment practice group if you have specific questions or need help with filing H-1B petitions.

February 15, 2013

Immigration Law Seminars: H-1B and I-9 Compliance

Last month, President Obama and the U.S. Senate announced sweeping changes to current immigration laws. The new proposal would legalize 11 million undocumented workers, radically change the current immigration system, and impose new obligations onto employers. 

Please join us for a discussion on the implications for your business.

Visa Basics for High-Tech Foreign Workers
Healthcare, high-tech, and mining companies are increasingly turning to the global labor market to find the right talent. In 2012, U.S. employers sponsored 85,000 new H-1B workers, including many computer software developers and engineers from China and India. In preparation of the April 1st H-1B filing date, we will discuss the fundamentals of the H-1B visa process, including:

  • Jobs that qualify for the H-1B visa
  • H-1B cap and cap exempt employers
  • Recent changes in the Labor Condition Application process
  • Documents that must be retained after filing an H-1B petition
  • Transitioning H-1B workers to permanent residency
  • Legal liabilities to be aware of in the H-1B process

 

I-9 Audits and Investigations
How will new Congressional immigration reform affect your business? From October 2011 through June 2012 Immigration and Customs Enforcement (ICE) issued 2,600 notices of inspection, issued 275 final orders totaling $6 million in fines, and criminally arrested 91 managers accused of violations related to employment eligibility verification. Join us for discussion on:

  • The federal I-9 immigration audit and investigation process
  • Industries targeted for immigration investigations
  • The effect that deferred action for Dream Act beneficiaries
  • Changes to current immigration enforcement based on Congressional proposals

THREE OPPORTUNITIES TO ATTEND:

February 28, 2013
8:00 – 8:30 a.m. MST:  Breakfast and Registration
8:30 – 10:00 a.m. MST:  Presentation with Roger Tsai and Peter Wingate
10:00 – 10:30 a.m. MST:  Q&A

Holland & Hart Denver Office Click here for a map and directions
555 17th Street, Suite 3200
Denver, CO 80202


March 7, 2013
8:00 – 8:30 a.m. MST:  Breakfast and Registration
8:30 – 10:00 a.m. MST:  Presentation with Roger Tsai and Michael Cousins
10:00 – 10:30 a.m. MST:  Q&A

Holland & Hart Salt Lake City Office Click here for a map and directions
222 S. Main Street, Suite 2200
Salt Lake City, Utah 84101


Via webinar: March 6, 2013
Noon – 1:00 p.m. MST:  Presentation with Roger Tsai
1:00 – 1:15 p.m. MST:  Q&A
Webinar login information will be included in your RSVP confirmation.


SPEAKERS CLICK NAME TO VIEW BIO
Roger Tsai, Of Counsel, Holland & Hart llp
Michael Cousins, ICE Investigator (Speaking in Salt Lake City)
Peter Wingate, Colorado Dept. of Labor Deputy Director (Speaking in Denver)

CLE & HRCI CREDITS PENDING  

Click here to RSVP now.

May 31, 2011

Supreme Court Upholds Arizona’s Mandatory E-Verify Law

By Roger Tsai

May 27, 2011

Yesterday the U.S. Supreme Court upheld the Legal Arizona Workers Act, which requires employers in that state to use E-Verify, an online tool employers can use to verify the immigration status of new hires. The Arizona law also allows state authorities to suspend or revoke employer business licenses for knowingly employing undocumented immigrant workers. 

The Supreme Court’s decision will likely encourage state legislatures to pass more immigration related laws.  Utah, Arizona, Mississippi and South Carolina currently mandate the use of E-Verify by all employers.  Other states such as South Carolina and Arizona have created state Immigrant Worker Compliance Offices to investigate and fine employers who employ undocumented workers.

Employers who are interested in learning more about immigration compliance are invited to attend a two-hour Holland & Hart seminar in Las Vegas on June 26.  Speakers will include Immigration and Customs Enforcement auditors and E-Verify administrators. Additional details will follow.  Please contact us with questions.