Human Resources (HR) Tip of the Month:
We have noticed a slowdown in the processing of Employment
Authorization Documents (EAD) and Advance Parole (AP) for employees
who are waiting for approval of their Green Cards. U.S. Citizenship
and Immigration Services (USCIS) is taking the full ninety (90)
days to approve the EAD and AP. This can complicate compliance,
work authorization and travel for foreign employees. Typically,
these employees have filed for adjustment of status (Form I-485)
and renew annually their EAD and AP, without which they cannot work
or travel. In many cases, their H-1B temporary visas have long
expired. Note that employers who want to plan ahead still cannot
file the renewal applications for the EAD and AP any earlier than
120 days prior to expiration. Finally, under immigration employment
enforcement rules governing I-9s and E-Verify, the employee cannot
continue working without actually having the new EAD card in hand.
The receipt notice is not sufficient. Further, an employee who is
no longer in H-1B status and who travels without the AP due to a
family emergency back in his home country risks being found to have
abandoned his Green Card application when the case is finally
adjudicated.
Our HR Tip of the Month:
(1) Change your tickler system so that your renewals are filed
119 days in advance of expiration. (2) After 75 days have expired
and you still have not received the EAD or AP, look into available
procedures for monitoring or expediting the process. Do not wait
until the EAD card has expired to initiate an inquiry. (3) Many
employees are responsible for paying for renewal of the EAD and the
AP under company policies. The danger is that employees may try to
save money by renewing the EAD and not the AP, assuming that they
will not be travelling. Invariably, a relative becomes ill
requiring an emergency trip and costly intervention by legal
counsel who spends hours trying to get USCIS to make an exception
and expedite the AP. Do not allow your employees to remain in the
United States in your employ without having in hand at all times a
valid AP as well as the EAD.
PRESIDENT OBAMA SIGNS FEE INCREASES FOR CERTAIN H-1B and L-1 PETITIONS
On Aug. 13, 2010, President Obama signed into law Public Law
111-230, which contains provisions to increase certain H-1B and L-1
petition fees. Effective immediately, Public Law 111-230 requires
the submission of an additional fee of $2,000 for certain H-1B
petitions and $2,250 for certain L-1A and L-1B petitions postmarked
on or after Aug. 14, 2010, and will remain in effect through Sept.
30, 2014. These additional fees apply only to petitioners who
employ 50 or more employees in the United States with more than 50
percent of their employees in the United States in H-1B or L
(including L-1A, L-1B and L-2) nonimmigrant status. It is likely
that only a very small number of U.S. employers will have to pay
the new fees. To avoid confusion and rejections in the mail room at
USCIS, we think it would be useful to mark petitions with the
words: [ADDITIONAL H-1B/L-1 FEE UNDER PUBLIC LAW 111-230 NOT
REQUIRED].
August 13, 2010 H-1B Cap Count As of Aug. 13, 2010, approximately 29,700 H-1B
cap-subject petitions were receipted. In addition, USCIS
has receipted 12,300 H-1B petitions for aliens with advanced
degrees. In short, based upon current numbers, the caps for H-1Bs
will not be reached until December 2010 at the earliest.
DOL ENFORCEMENT OF H-1B PREVAILING WAGE RULES
Although the H-1B cap favors employers hiring professionals under
the program, employers must be aware of the compliance risks. The
current enforcement initiatives include closer scrutiny of use of
the H-1B program. The Aug. 18, 2010 DOL news release announced that
Smartsoft International Inc., a computer consulting company based
in Suwanee, Ga., has agreed to pay nearly $1 million in back wages
and interest to 135 nonimmigrant workers employed under the H-1B
visa program. See link at http://www.aila.org/content/default.aspx?docid=
32910
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