New Immigration Policies in Today’s Ever-Changing Landscape

Presented to HFTP in January 2020 by:

Fiona McEntee

Founder & Managing Partner, McEntee Law Group

@USVisaLawyer

About Fiona

• Managing Attorney at McEntee Law Group

• Practicing immigration law exclusively for 12+

years

• From Dublin, Ireland & was once on F-1 visa

(foreign student) so immigration is personal

• Founding Member of the O'Hare Airport Attorney

Legal Team re: Travel Ban & sued the

Administration pro bono re: Travel Ban

• National & international media commentator on

immigration issues

• Regularly featured on MSNBC, CNN.com, BBC,

New York Times & other media outlets in US &

abroad

• Recently published a children’s book on

immigration: Our American Dream

About McEntee Law Group• Established in 2010

• Practice immigration law exclusively

• All types of immigration

• Business, entertainment, family, removal &

deportation, waivers, etc.

• Diverse team of attorneys, law clerks,

case managers & legal assistants

• Speak a variety of languages including:

• Spanish, Polish, Arabic, Aramaic, Gujarati,

Japanese

• Headquartered in Chicago

• Satellite office in Dublin, Ireland

• As immigration law is federal, we represent

clients throughout the U.S.

Clients, Industries, Incubators & Universities• Worldwide corporations

• National retailers

• Start-ups

• Fiona is a mentor to many

incubators

• Advisor to many universities

• Top musicians, artists, & actors

• Professional athletes

• Entrepreneurs & investors

• Industries include healthcare,

pharma, technology, agri-food,

consumer goods, retail, hospitality,

insurance, aviation, entertainment,

sports etc.

Today’s

Goals

• Discuss some commonly used visa options

• H-1B

• H-2B

• TN

• O-1

• Identify latest trends, topics & issues with each

option

• Address the new H-1B pre-registration and what

employers need to know

• How to be Audit or Site Visit Ready

• How to best prepare and ease any anxieties

• USCIS’s proposed increased filing fees

H-1B

“Professional” or “Specialty

Occupation” Visa

H-1B Basics

Requirements:

• “Professional” level employees or those in “specialty occupations”

• Position must require a Bachelor’s degree (or higher) in a specific field or its equivalent in experience (12 years)

• H-1B applicant must be qualified for that position

• Must be paid the prevailing or actual wage - determined by job category/location or by wages paid to other workers in similar positions

Duration:

• Initially granted for a 3-year period, can be extended for up to 6 years

• If an individual is in the middle of the green card process, can extend H-1B beyond 6 years

• Especially important for Indian & Chinese nationals

H-1B Cap

• New H-1B visas are limited in number

• Annual cap of 65,000 new H-1Bs, plus 20,000 for those with a U.S. Master's degree or higher

• Generally, demand > supply, so there is a random lottery generated to see which cases will be adjudicated

• In the first week of April 2019, USCIS received about 200,000 applications for the 85,000 numbers available

• If selected & approved, the earliest a H-1B takes effect is October 1st

• If on OPT & certain conditions met, might be able to get "cap gap" work authorization to continue OPT until October 1st

• Some employers (e.g. universities & affiliates) exempt from the cap

• H-1B transfers not subject to “cap” - filed at any time during the year – only subject to cap once

Hot Topic: Recent Changes to the H-1B Cap

Last Year: Cap Selection Order Change

• USCIS reversed selection order based on education

• Gave further preference to those with U.S. Masters Degrees (or higher)

• Estimated increased chance of cap selection by about 16% for those with Masters

This Year: Pre-Cap Registration

• Employers will have to register H-1B candidates online for H-1B cases before the application deadline

• Employers will have to wait to see if their employee is selected before filing the H-1B case with the USCIS

• As always, duplicate petitions filed by the same employer for the same employee prohibited

H-1B Registration Timeline

Step 1:

March 1- 20 2020, file basic info in registry

with $10 reg fee

Step 2:

April 1, 2020, lottery begins

Step 3:

65,000 selected w/ bachelor’s

degree or above

Step 4:

20,000 selected w/ master’s

degree

Step 5:

90 days to file H-1B

application

H-1B Registration Portal & Info

• We are anticipating that the USCIS will use the myUSCIS portal but it’s still not

confirmed – based on info received during the beta-testing

• January 9th, the USCIS published a notice that employers & their attorneys can set up

registration accounts in advance of the registration period BUT we still don’t know

where/how to do this

• Uncertainty even at this late stage is concerning

• Info Needed:

• Employer info, EIN, Signatory

• Beneficiary’s name, DOB, COB, COC, gender, passport #

• Master’s or higher

• Attestation true/accurate and petitioner intends to employ Beneficiary

• BUT… H-1B case should be assessed prior to registration

H-1B Registration: Timeline Considerations

• Should H-1B case be prepared in advance of registration?

• That way it would be ready for filing on April 1st if selected in lottery

• What if registration doesn’t work as the USCIS intended?

• Could they revert back to paper filing system on April 1st?

• When should H-1B be filed, if selected?

• Any cap gap considerations?

• Premium processing available?

• Still unsure

Poll #1

Hot Topic: Other H-1B Issues

1. “Buy American & Hire American” Executive Order signed in April 2017

• Directed DHS to suggest reforms to ensure H-1B visas given to only "most-skilled or

highest paid"

• We have seen increased scrutiny & higher standards in adjudication

2. Increase in RFEs (60%)

3. Increase in denials, especially for new cap cases (33%) – some federal lawsuits

4. Level 1 & 2 Wage Challenges

High % of Request for Evidence in these cases

5. USCIS Policy Memo, March 2017

• “Entry-level” computer programmer position would not qualify for a H-1B visa –

announcement came days before cap

H-1B Visa: Advantages & Disadvantages

• Advantages of H-1B Visa:

• Employees can transfer H-1B from one employer to another

• Employees can have “dual intent” (i.e. allowed to pursue a green card while in H-1B status)

• Disadvantages of H-1B Visa:

• The cap is not available year-round, unless cap exempt

• Application period is March/April

• Limited number of H-1B visas available – likely results in random lottery selection

• H-1B visas are under a heightened level of scrutiny under the current Administration

• Smaller companies face greater scrutiny

H-2B

Temporary Worker

(Non-Agricultural)

H-2B Visa: What is it?

• The underlying job is temporary:

• One-time occurrence

• Seasonal need

• Peak-load need

• Intermittent need

• Not enough qualified US workers

• Typical H-2B positions include:

• Landscaping & Ground-scaping

• Housekeepers & Cleaners

• Waitstaff & other restaurant workers

• Construction laborers

H-2B Cap

• Congressional “cap” on the amount of H-2B visas granted per fiscal year:

• Currently set at 66,000

• Cap opens twice a year, open to 33,000 workers each time

• With the H-2B visa timing is critical

• Jan 1st -> spring/summer season - positions starting April 1st

• Summer -> fall/winter positions starting October 1st

Hot Topic: H-2B in the News

Employers MUST Adhere to the Conditions Outlined in the H-2B Petition

Issues in this case:

• Paid workers less than the required wage

• Failed to notify federal agencies of early separation of six H-2B workers

• Assigned H-2B employees to work in locations outside the certified job location

• Assigned H-2B workers to perform job duties outside the certified job description

• Failed to accurately identify the number of workers needed & the period of need

• Failed to pay workers’ inbound & outbound transportation costs from their home countries as required

• Failed to pay housing & visa costs

• Took impermissible deductions from H-2B workers’ wages

• Failed to post the required H-2B poster

TN Visa

TN Visa

Requirements:

• Individual must be a citizen of Canada or Mexico

• The offered position must fall within one of the specific categories onthe NAFTA list – almost all require at least Bachelor’s degree

• e.g. Architect, Computer Systems Analyst, Industrial Designer

• Must have job offer from a U.S. employer for that specific job/category

• Individual must meet the requirements for that position as outlined inthe NAFTA list (e.g. have a Bachelor’s degree in that field)

O-1 VisaThe ”Extraordinary

Ability” Visa

O-1 Visa Basics

• O-1 visas are reserved for those with “extraordinary ability”

• Extraordinary ability can be in various fields

• Sciences, education, business, athletics, arts, motion picture, or the television industry

• Evidence of sustained national or international acclaim required

• Individual must be coming temporarily to the United States to continue work in the area of extraordinary ability

• We have particular expertise with the O-1 visa:

• Fiona regularly speaks at the national immigration lawyer conference (AILA) on this option

O-1A VisaScience, Education, Business & Athletics

• Evidence that the individual has received a major, internationally-recognized award, such as a Nobel Prize

• Or evidence of at least 3 of the following:

–Receipt of nationally or internationally recognized prizes or awards for excellence

–Membership in associations in the field for which classification is sought which require outstanding achievements, as judged by recognized national or international experts

–Published material in professional or major trade publications, newspapers or other major media about the beneficiary and the beneficiary’s work in the field

–Original scientific, scholarly, or business-related contributions of major significance

–Authorship of scholarly articles in professional journals or other major media

–A high salary or other remuneration for services as evidenced by contracts or other reliable evidence

–Participation on a panel, or individually, as a judge of the work of others in the same or in a field of specialization allied to that field

–Employment in a critical or essential capacity for organizations

and establishments that have a distinguished reputation

O-1 Visa Continued

• Stringent list of evidentiary criteria that must be met - standard is high & scrutiny has increased

• U.S. sponsor or company files the case on employee’s behalf

• Unlike H-1B visa, there is no cap on O-1 visas, so they are available all year

• Great option for rockstar employees or potential employees

T VisaVictim of Trafficking or Unlawful Employment Practices

T Visa: Qualifications

Individual was a victim of a severe form of human trafficking

• Recruiting, hiring, transporting, providing, or obtaining a person for labor or services

• Through the use of force, fraud, or coercion

• For the purpose of involuntary servitude, peonage, debt bondage, or slavery

• Applicants work with law enforcement to report & potentially prosecute traffickers

• Available to people who may not qualify for other visas

T Visa Continued

Red Flags:

• Employee was not paid overtime

• Employee had to work in unsafe conditions

• Employee was threatened with immigration consequences

• Employee was harassed on the job

I-9 AuditsHow to Prepare

How do I prepare for an I-9 Audit?

Conduct a self-audit

• Priority of Audit:

1. Get I-9s for any current employees who are missing I-9s

2. Current Employees

3. Terminated Employees

I-9 Self AuditCurrent Employees who are missing I-9s

• Keep a record of all communication about this

• Follow proper I-9 procedures (e.g. don’t tell employees what

documents to provide)

• Ensure form is completed correctly

• Sign it as of current date, don’t backdate

• Date of hire should be actual hire date not date signed

• Include a memo explaining good faith effort to comply

I-9 Self AuditCurrent Employees

• Review every I-9 on file

• Make sure all information is correct

• Per ICE, incomplete forms are the most common violations

• Make a list of all I-9s that need corrections, initial & date any changes

• Keep a log:

• Employee name

• Error

• Corrective action taken

• Sign form as of date completed, do not backdate

• Date of hire should be actual hire date

• Attach memo saying good faith effort to comply

• See if any re-verification needed for any employees (e.g. EAD or visa)

I-9 AuditTerminated Employees

• Review every I-9 on file

• Make sure all information is correct

• Make a list of all I-9s that need corrections

• Keep a log:

• Employee name

• Error

• Corrective action taken (correct as much as you can, as you may need info that you can no longer get from terminated employee)

• Sign form as of date completed, do not backdate

• Date of hire should be actual hire date

• Attach memo saying good faith effort to comply

• If employee signature missing, explain employee terminated

I-9 Completion & Retention

• Employee: Complete by the end of the first working day

• Employer: Complete by the end of the third business day after employee starts

• Retention: 3 years from date of hire OR 1 year from the date of termination, whichever is later

How to Organize I-9 Files

• Going forward, make sure you use the most updated version of the Form – 07/17/2017

• Keep 2 separate I-9 file groups:

• Current employees

• Terminated

• USCIS recommends keeping I-9 files separate from personnel records to “facilitate an inspection request”

Government Audits & Timing

• I-9 Audit: company given 3 days’ notice

• Fraud Detection & National Security Unit (FDNS)Site Visit

• Generally just stop by without notice

• We have resources on this

• Email for link to article

• Raid would be different, no notice

• Separate training/presentation required for this

USCIS & DOL Site Visits

USCIS & DOL Site Visits

• U.S. Citizenship & Immigration Service (USCIS)

• Specific division within USCIS

• Fraud Detection & National Security Unit (FDNS) • Department of Labor (DOL) – Wage & Hour Division

• Responsible for conducting on site visits for employers & corresponding employees

• Can be for employer of people in H-1B or L status, but also happening for J-1s or H-2Bs visa holders

• The DOL announced a new "education and enforcement" initiative, focused on two of the biggest users of the H-2B visa for seasonal work - hotels and landscapers

• We can help prepare clients for this – We offer on-site or Skype training for HR, Management & other team members

Targeted H-1B USCIS Site Visits

April 2017 Statement by the USCIS

• “Putting American Workers First: USCIS Announces Further Measures to Detect H-1B Visa Fraud and Abuse”

• USCIS will take a more targeted approach when making site visits across the country to H-1B petitioners and worksites of H-1B employees

• Targeted site visits allow USCIS to focus resources where fraud & abuse of the H-1B program may be more likely to occur

• Goal was to increase site visits from 10,000 to 20,000 for some visa types

• Fiona wrote a blog post on site visits (Can email the link upon request)

Poll #2

Proposed Filing Fee Increases

Proposed Filing Fee Increases

• The USCIS reviews their fees every two years

• Some fee increases are normal, however the proposed increases for this year are historically high

• USCIS attribute the proposed increases to the rising costs of processing applications and fighting immigration fraud

• The Trump Administration has said it will also use the extra revenue to bolster ICE Border Security

• The public comment period officially closed on December 30th

2019, so stay tuned for USCIS’s ruling on this

Proposed Filing Fee Increases

The current proposed filing fee increases are:

• I-129 Petition for a Nonimmigrant Worker• H-1B: $460 to $560. A 22% increase

• H-2B: $460 to $860. An 87% increase

• O-1: $460 to $715. A 55% increase

• TN: $460 to $705. A 53% increase

• N-400 Application for Naturalization from $320/640 to $1,170. An 83% increase

• N-470 Application to Preserve Residence for Naturalization Purposes from $355 to $1,600. A 266% increase

Plus Many More!!!

Helpful Resources

• Immigration law/policy is changing constantly Follow me on Twitter for real-time updates!

@USVisaLawyer@McEnteeLawGroup

• Follow our blog at www.McEnteeLaw.com

• Join our email newsletter – on our website• We promise to only send relevant immigration

news/content

Questions?

Contact Us!

Twitter: @USVisaLawyer

Email: info@mcenteelaw.com

Website: www.mcenteelaw.com

Disclaimer & Copyright

• Disclaimer: Information provided here is offered for informational purposes only. No partof this material should be construed as legal advice.

• Copyright: All copyrightable text & graphics, the selection, arrangement, presentation ofall materials & the overall design of this presentation are copyright © 2020, McEnteeLaw Group P.C. All rights reserved. Permission is granted to download & print materialsfor the purpose of viewing, reading & retaining for informational reference. Any othercopying, distribution, display, retransmission, or modification of information or materials,whether in electronic or hard copy form, without the express prior written permission ofMcEntee Law Group is strictly prohibited.