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Articles Posted in Business Immigration

President-elect Joe Biden’s plans for immigration are expected to be a stark contrast to the Trump administration agenda.  Some of President-elect Biden’s stated priorities are:

  1. Reinstating the Deferred Action for Childhood Arrivals (DACA and Temporary Protected Status (TPS)

The Trump administration has relentlessly attached the DACA program.  President-elect Biden has promised to fully reinstate DACA and will seek to make its protections permanent.  President-elect Biden has also stated that he intends to review TPS designations to ensure people are not returned to unsafe countries.

Throughout his campaign, Donald Trump referenced his tearing up of NAFTA as a positive change of policy for border city voters who have long feared the effects of globalization on their local economies.  Now that the end of NAFTA could, in fact, become reality, many residents and lawmakers living in border cities, such as Laredo, El Paso, and Nogales, have come forward in support of the 1994 treaty, citing examples of its positive effect on their booming economies.

Local officials in Laredo, Texas say roughly 1 in every 3 jobs benefits from international trade.  Laredo, which is the nation’s busiest inland port, sees an average of 14,000 tractor-trailers cross the border daily; it is also the only city along the U.S.-Mexico border that the President-elect visited during his campaign.  Although President-elect Trump’s assessment of NAFTA may have resonated with voters in the Midwest, who lost their jobs after several factories were moved to Mexican border cities following the passage of NAFTA, it did not have the same effect on the inhabitants of such border cities, who for years have witnessed their cities flourish under the precepts of the treaty.

The mayor of Laredo, Pete Saenz, described the border city as “NAFTA on wheels,” claiming that the backbone of the city is free trade across the border.  Laredo is an exemplary city for viewing the effects of the trade treaty.  Busy industrial parks show the pipeline for imported and exported goods.  Just four years after NAFTA was signed by President Bill Clinton and approved by the then Republican-controlled Congress, the Census Bureau named Laredo the country’s second-fastest growing area. 

Happy New Year!  It’s never too early to start preparing for the H-1B Cap for Fiscal Year 2018, and our immigration attorneys are happy to aid your in the process.  Demand for the H-1B visa has steadily increased over the years; last year for instance, only about 36% of the H-1B petitions were selected in the lottery.  Employers should expect this trend to continue and be prepared to file their H-1B petitions on the earliest possible date, which is April 3, 2017 this year.

The H-1B is a significant visa category as it allows qualified professionals to enter the U.S. for employment in a specialty occupation.  Due to the ever-increasing demand for the visa, it is important the employers evaluate their employee populations early to ensure that all petitions are submitted by the earliest possible date.  Some of the different types of employees eligible for H-1B visas are F-1 Students and L-1B visa holders.

Students, particularly those on F visas, currently working for you pursuant to an approved Optional Practical Training (OPT) should be the first group of employees to consider for filing an H-1B petition.  The reason being that if you do not file H-1Bs for these employees, they will lose their employment authorization at the conclusion of their OPT.  Even when employees may extend their OPT, the employer is still advised to file an H-1B for the 2018 fiscal year, giving the employees two opportunities to obtain the H-1B.  In the event that more applications are filed than visas available and student employees do not obtain the H-1B this year, then the OPT extension will serve as a back-up and the employer may file for the H-1B again next year.

The United States Citizenship and Immigration Services (USCIS) published a final rule to improve aspects of certain employment-based immigrant and nonimmigrant visa programs.  Preexisting regulations have been amended to enable US employers to hire and retain foreign workers who are beneficiaries of approved employment-based visa petitions as they wait to become lawful, permanent residents.  The rule positions nonimmigrant workers to further their careers by accepting promotions, changing positions within current employers, and pursuing other job opportunities.

These changes will expand the class of workers eligible to apply for an Employment Authorization Document (EAD), setting guidelines on when an employment-based immigrant may retain his or her “priority date” after departing from their employers. Among the more notable provisions, the rule permits persons of E-3, H-1B, H-1B1, O-1, or L-1 nonimmigrant status to apply for an EAD, provided they meet certain conditions:

  1. Applicant is the beneficiary of an approved employment-based immigration visa petition

US Immigration AttorneyIn an indication that President Obama is seeking to use his executive powers to implement more far-ranging immigration reform, the Administration has been meeting with leaders in the construction, agricultural and tech industries to discuss possible reforms it can make without Congress.

Sources told the Wall Street Journal (WSJ) that the business leaders have discussed “recapturing” unused green cards from previous years, which could add up to 200,000 additional green cards each year. The sources also told the WSJ that those involved in the discussions were willing to exclude spouses of workers who have received skilled visas. Those visas are currently capped at 140,000 per year.

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When terminating an H-1B employee, employers must be careful to follow strict compliance rules in order to avoid penalties. Those penalties can include payment of back wages, monetary fines and even debarment from the H-1B program.

In order to properly let an H-1B employee go, employers must follow a three-step process known as a “bona fide termination.” These three steps are:

1. Employee notification that employment has ended: It must be clear to the employee that the employment relationship has ended. This means a notice in writing should be presented to the employee and all records of correspondence with the employee should be kept on file. You must be clear that you will also be notifying the U.S. Citizenship and Immigration Services (USCIS) concerning the termination. Continue Reading

If you employ foreign nationals at your company, you should know that you can be subjected to an immigration-related government audit or investigation at any time. Knowing and understanding Department of Labor (DOL) and Department of Homeland Security (DHS) requirements and procedures is essential if you want to save time and avoid fines and other sanctions.

The government has taken particular interest in H-1B non-immigrant professional and specialty worker visas; the I-9 process; and the new Labor Certification Application Program called “Permanent Electronic Review Management (PERM).

For the sake of brevity, the immigration attorneys at Lubiner, Schmidt & Palumbo in New Jersey are going to concentrate on the I-9 process and what you need to know as an employer. Obviously, in the wake of 9/11, DHS has taken great interest in security and identity in the workplace when it comes to foreign nationals. President Obama also placed greater emphasis on finding and penalizing companies that hire illegal immigrants, making that one of the pillars of his immigration policy.

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