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Richard A. Gump Jr. P.C. Blog

Significant Changes to L-1 Visa Application for Blanket Employees

August 25, 2016

Filed under: L-1 Visa — drgump @ 1:02 pm

The L-1 visa is a nonimmigrant work visa for managerial or skilled employees, which allows U.S. companies that maintain a qualifying relationship with foreign business entities to transfer workers to the U.S. . Under a traditional L-1 petition application, each petition must be filed with and approved by the USCIS as a precursor to transfer. “Blanket L” petitions allow larger companies to more easily transfer workers to the U.S. more frequently. When a Blanket L approval is obtained, the company and its subsidiaries/affiliates are afforded additional flexibility to transfer eligible employees to the U.S. as they bypass the step of filing the petition with the USCIS.

However, the USCIS is changing the L-1 visa application for those employees who qualify under their company’s Blanket L petition. Beginning on August 29, 2016, the Form I-129S, which is utilized in the visa application process, will contain new information demands and could ultimately hinder the previous quick turnaround in securing an L-1 visa under a Blanket petition. Seen by some as an additional burden to employers, the updated Form I-129S will now require the following:

  • Employee’s employment history
  • Identification of the applicant’s gender and all names the applicant has ever used
  • Listing the percentage of time the person will spend doing job duties on a “daily basis” and the annual wage the person received (in USD)
  • Information regarding third-party worksites (if applicable)
  • Employer signature declaring that the company has reviewed the petition
  • This is a more extensive declaration for the company to attest to and serves as a reminder to the petitioner of the possibility of on-site compliance audits

The Law Offices of Richard A. Gump, Jr., PC is committed to assisting employers with their employment-based immigration matters.

ICE Audited Your Company and Why You Need Us To Help

August 5, 2016

Filed under: ICE — drgump @ 5:46 pm

So your company was hit with an ICE audit, you paid the fine, told ICE you would terminate the unauthorized employees, and now you can relax and move on to concentrate on your core business -right? Not so fast.

Did you make sure the person verifying I-9s was trained and is minimizing the risk of hiring more unauthorized workers using fraudulent documents? Did you make sure the unauthorized workers on the Confirmation of Suspect Documents list were in fact terminated? Most importantly, have all your supervisors and management teams been informed of the necessity of avoiding any direct or indirect recruiting or hiring or retaining of unauthorized workers?

Apparently management at Mary’s Gone Crackers, Inc. decided their ICE Settlement Agreement buried the hatchet and they could go about their business. Such blindness is painful. Now they have to pay $1.5 million and institute a compliance program which will be monitored by the U.S. Attorney’s Office for 2 years. Why?  After telling ICE that 50 employees who were unauthorized to work had quit or would be fired the company continued to employ one individual and rehired many others all under new names. Homeland Security Investigations got wind of the “continuing to hire” violations and started a criminal investigation. Luckily, the company cooperated and was able to obtain a non-prosecution agreement.

“Our agents are determined to hold those who choose to defraud the system accountable in order to reduce the demand for illegal employment and protect employment opportunities for the nation’s lawful workforce,” HIS Special Agent Ryan L. Spradlin said.

Why subject yourself to such bad publicity, cost and disruption at the workplace? Fraud is worse than the original violations and the likelihood of it being uncovered is great. Your supervisors and managers are representatives of your company and they must get on the bandwagon of risk avoidance by understanding that knowingly hiring or continuing to hire unauthorized workers just is not acceptable, especially after an ICE audit!

Employers are between a rock and a hard place when finding new workers in a tight labor market is difficult but it is far worse to spend time in the penitentiary, go bankrupt, face embarrassing publicity, all the while under the radar of government supervision.

If we can help you audit your verification and hiring practices before, during, or after an ICE audit, we would love to be there for you. Auditing, training, and adopting best practices is good business.

 

http://www.sacbee.com/news/local/crime/article91430222.html

H-1B Employers Must Act in a Timely and Appropriate Manner During Economic Downturns

July 19, 2016

Filed under: H1-B — drgump @ 12:59 pm

Any adjustment to the employment of an H-1B employee can lead to issues if the changes are not acknowledged and dealt with quickly and properly. Immigration counsel should be alerted when any one of these three situations occurs: 1) when an H-1B employee will be terminated; 2) when an H-1B employee will be laid off; and 3) when any material or substantive changes to the information stated in the original H-1B petition, including the certified LCA, will be made.  Counsel can then advise as to whether an amended or new H-1B petition should be filed, if the H-1B should be withdrawn, or if any other action needs to be taken. Some examples of a material or substantive change include:

  • An increase or decrease in hours;
  • Adjusting from part time to full time or vice versa;
  • Moving to a different job location;
  • Assigning a new job title; or,
  • Making a significant change in job duties or the type of work being performed.

A recent case decided by the Department of Labor states that poor industrial or national economic conditions do not relieve employers from paying H-1B employees the wages stated in the LCA.  A Florida company was ordered to pay both back wages and a fine for three H-1B workers who had been reduced to part-time employees and paid an hourly wage that was nowhere near the amount they should have received according to the H-1B petitions.  To stay H-1B compliant and avoid paying back wages and fines, employers of H-1B workers must be careful to continue paying the wages outlined in the certified LCA even during times of economic difficulty.  If that is not financially possible, then other immediate action must be taken such as filing an amended H-1B petition.

 

An employer may be excused from their H-1B payment obligations if there is just cause for firing the employee, if the employee is properly laid off, or if an employee asks to be taken away from their duties because of conditions unrelated to his or her employment.  Make sure you are aware of the obligations of H-1B employment before diving in and do not let a lapse in judgment or a failure to act in a timely manner during a time of economic struggle come back to hurt your pocketbook in the future.

U.S. Supreme Court Decision on Immigration

June 24, 2016

Filed under: Immigration — drgump @ 3:44 pm

It is important to take a step back and review what the one sentence tie vote decision leaves open:

1. We don’t have any further clarification on the extent of Executive Action by any President in the future on immigration or any other issue which needs attention as the result of inaction by Congress.

2. States appear to be left with the power to sue the federal government any time they disagree with a federal policy. Will states ramp up such lawsuits in the future?

3. What do we do with the millions of unauthorized aliens currently living in the U.S? Do we try to deport them all regardless of their age when or how they came in, whether they overstayed visas, committed crimes, have a family in the U.S.and/or are gainfully employed? Do we try to categorize these immigration violators by a gradient of punishment  which matches the gravity of the offense (e.g. minor to major fines, incarceration, deportation)? Think of traffic violators, who range from parking tickets to negligent homicide from a DUI.

Perhaps it is best the U.S. Supreme Court has left the issues open for citizens and their elected federal officials to make the hard decisions which will lead to concrete guidelines on who and how foreign nationals get punished for violations and who and how others in the future can visit, work, and/or live in our country.

Senators and Representatives of Congress, are you listening to your people, who are frustrated and mad at your inability and lack of desire to solve problems?

Additional Security Questions Added to the ESTA Application

June 21, 2016

Filed under: Homeland Security,Immigration — drgump @ 12:38 pm

Pursuant to the Secretary of Homeland Security’s announcement in February 2016 naming Libya, Somalia, and Yemen as countries of concern, the U.S. CBP has added additional security questions to the ESTA application.

Nationals of Visa Waiver Program countries who have been present in these three countries at any time on or after March 1, 2011 (with limited government/military exceptions) are no longer eligible to travel or be admitted to the United States under the VWP, absent a waiver issued in the law enforcement or national security interest of the United States.

Individuals who are no longer eligible for travel under VWP may still apply for a visa at U.S. embassies or consulates.

 

Electronic Verification (E-Verify): Good or Bad for Employers?

May 25, 2016

Filed under: E Verify — drgump @ 1:49 pm

Electronic verification continues to grow in popularity, both in private electronic I-9 systems and the government’s E-Verify software system. My prediction is that within 5 years E-Verify will be required of all employers, and many of the private electronic I-9 systems are built to flow into E-Verify very smoothly. Employers have to understand that there is no true electronic I-9 allowed under current law; rather we have the recent government fillable I-9 form (often called a SMART I-9) which must still be printed out and signed in wet ink as well private I-9 systems which must be printable exactly like a paper I-9. If I-9s are to be retained electronically, the employer must follow the regulatory standards for electronic retention of I-9s.

 

Basically, 3 worlds now exist: E-Verify users, private electronic form users, and paper users. The new form creates a 4th group – fillable form users.  Now we have 2 different government I-9 forms: the fillable form with drop down menus and the same old printed paper form. Instead of creating a standardized data entry form for employers we now have confusion. The new fillable form creates material changes to the verification laws and bypasses the APA requirements of rule- making. Smaller firms using paper I-9s have different instructions and lists of acceptable documents from larger firms which may choose to use the fillable I-9 form. For example, the fillable form has an incomplete employment authorization list in content and instructions, and the “additional information” field is confusing.

 

So what should an employer do? We do think E-Verify is going to be the law of the land so it is best to go ahead and use it now regardless of size. The benefits include minimizing the acceptance of fraudulent documents and showing evidence of an intent to develop a culture of compliance. The detriments include a smaller number of applicants, Big Brother having a watchful eye on how you administer E-Verify, data mining the documents you accept, and referring cases over to ICE and OSC for audit and investigation (e.g. a large number of List A documents are accepted which may spur an OSC audit for treating non-citizens differently).

 

However, which is worse: having to work harder to locate and verify legally authorized workers (by using E-Verify) or losing half your workforce from an ICE audit after paying a sizable fine (by not using E-Verify)? Yes, the employer is between a rock and a hard place, but with a plan and training sculpted as a good risk management policy, and with knowledgeable attorneys available to help when needed, employers can weather the storm and the confusion which is equally faced by all.

FOREIGN INVESTMENT AND GREEN CARDS – GREED FOLLOWS THE GOLD

May 18, 2016

Filed under: Immigration — drgump @ 8:17 pm

I’ve worked with foreign investors seeking to live in the U.S. since 1974. The current program, called EB-5, was started in 1990 as a means of promoting economic development. In its early years it was so limited very few investors came forth. When other nations, like Canada, attracted investors and let them live in their country, the U.S. took note and expanded the program. If the rules are followed, it works well – projects get funded (with otherwise unavailable or more expensive alternatives), jobs are created, talented and wealthy individuals come to live in the U.S. However, as is true in many “too good to be true” opportunities, greed begets cheating but it is accepted because “everyone is doing it”. Unfortunately, the flood of developers wanting cheap money and investors needing to move funds broke the dam of the government’s compliance efforts. The government has been overwhelmed, the SEC has gotten under the tent, and investigations appear to be uncovering actors from benign negligence to outright fraud.

 

It will be a shame if the politicians burn down the barn to get rid of rats. The EB-5 program brings in funding for needed projects and creates new jobs. The government’s job should be to create a better set of rules, provide timely service and enforcement, and let entrepreneurs do what they do best. Then everyone wins – the investor, the developer, and the community.

 

Please click here to read the full article – http://abcnews.go.com/US/forget-red-cards-soccers-500k-green-card-wealthy/story?id=39169790

DHS Issues Final Rule on STEM OPT Extensions

March 14, 2016

Filed under: Homeland Security,Immigration — drgump @ 8:16 pm

In the Spring of 2008, the Department of Homeland Security (DHS) implemented a new regulation allowing F-1 students who receive degrees in science, technology, engineering, or mathematics (STEM), are employed by employers enrolled in E-Verify, and who have received an initial grant of post-completion optional practical training (OPT) related to such a degree, to apply for a 17-month extension of their OPT status.

On August 12, 2015, the U.S. District Court for the District of Columbia ruled that the 17-month STEM extension for F-1 students was invalid, as the Department of Homeland Security implemented the rule without going through the regulatory notice and comment period. In light of the substantial hardship that this ruling would cause, the U.S. District Court gave the DHS until February 12, 2016 to go through the proper channels and implement a new rule regarding STEM OPT extensions.

In December 2015, DHS submitted a motion requesting an extension of time to complete the new rule. This motion was granted on January 23, 2016.

On March 9, 2016, DHS announced that the new final rule will go into effect on May 10, 2016. The final rule now allows foreign students with STEM degrees to obtain an additional 24-month extension (instead of the current 17-month extension). This will now provide foreign students with a full three years of OPT. As with the prior STEM OPT rule, extensions are permitted only for students employed by employers who participate in E-Verify.

In addition to the 24 month extension, the new rule includes some additional safeguard such as: requiring individualized training plans developed by the employer and the student; requiring the student to regularly report to the university’s designated school official; requiring the employer to attest that the student will not replace a full- or part-time, temporary or permanent U.S. worker; requiring an employer to offer the same terms, conditions, hours, and compensation to the STEM OPT student as similarly situated U.S. workers; and allowing extensions only to students with degrees from accredited schools.

The new rule also authorizes ICE to perform site visits to verify training plans, compensation, and non-displacement attestations are in place.

U.S. District Court Grants 90-Day Extension to Department of Homeland Security for STEM OPT Rule

February 1, 2016

Filed under: Homeland Security,Immigration — drgump @ 3:45 pm

U.S. District Court Grants 90-Day Extension to Department of Homeland Security for STEM OPT Rule

Upon completion of a U.S. undergraduate or graduate program, students with F-1 status receive 12 months of employment authorization, commonly called OPT (Optional Practical Training) to obtain practical training in their field of studies.

In the Spring of 2008, the Department of Homeland Security implemented a new regulation allowing F-1 students who receive degrees in science, technology, engineering, or mathematics (STEM), are employed by employers enrolled in E-Verify, and who have received an initial grant of post-completion OPT related to such a degree to apply for a 17-month extension of their OPT status.

STEM extensions have been a great backup plan for employers and eligible foreign nationals who are unable to obtain H-1B status due to H-1B cap issues.

On August 12, 2015, the U.S. District Court for the District of Columbia ruled that the 17 month STEM extension for F-1 students was invalid, as the Department of Homeland Security implemented the rule without going through the regulatory notice and comment period. In light of the substantial hardship that this ruling would cause, the U.S. District Court gave the DHS until February 12, 2016 to go through the proper channels and implement a new rule regarding STEM OPT extensions.

In December 2015, DHS submitted a motion requesting an extension of time to complete the new rule, citing the unexpected and unprecedented number (50,500) of public responses received on the proposed rule. The request asked for a 90 day extension, which would provide an additional 30 days to complete the rulemaking and 60 days for a “delayed-effective-date” period, during which time the DHS would complete the required training of agency personnel. During this 60 day period, the agency would also develop guidance and train officers on the new program requirements, as well as develop and distribute training aids and materials to foreign students, U.S. schools and U.S. employers.

On January 23, the Court granted the DHS’s motion for an extension of time to finalize the STEM OPT extension rule. The DHS has been granted a 90 day extension, giving them until May 10 2016, to finalize and implement the new rule, as well as provide training to agency personnel, and develop training aids and materials.

Employers and foreign nationals who miss the H-1B cap filing deadline of April 1, 2016 will be watching for the new regulations to be announced on or before May 10, 2016. If the DHS does not implement a new STEM program before that time, it will be disastrous for employers and foreign nationals alike. Employers will lose their skilled and talented foreign nationals; greatly affecting productivity and profits. Foreign nationals will be forced to decide to remain in the U.S. and return to school to pursue a higher degree program, or if they will have to give up their dream and return to their home country.

Since its implementation in 2008, the STEM program has provided thousands of employers the opportunity to retain talented foreign nationals who were not selected for the H-1B lottery. The loss of the STEM program would be devastating for employers and foreign nationals.

25 Years of McCuistion: Immigration Policy from 1990-2015

December 4, 2015

Filed under: Immigration,Uncategorized — drgump @ 1:29 pm

25 Years of McCuistion: Immigration Policy from 1990-2015

Immigration is part of the founding myth of the United States which has gone through several immigration waves in its short history. Its first; the founding colonial wave, which was largely English. Since, we’ve had the primarily German/Irish wave of 1820-1870 with German immigration the largest to date, comprising 15% of all our immigration. The third wave took place from the 19th century to World War I. During the fourth wave, immigration policies became even more complex; as a human rights issue, jobs and economic issue, welfare issue, a cultural and a national security issue. Despite the succession of laws it still remains problematic. A 1986 law gave 3 million undocumented aliens some legalized status and had provisions to fine employers who abused the system by employing undocumented aliens.

http://www.frtv.org/2015/11/re-air-25-years-of-mccuistion-immigration-policy-from-1990-2015/
Host, Dennis McCuistion, is joined by:

  • Richard A. Gump Jr. PC, Immigration Attorney
  • Pia Orrenius PhD, V.P. and Senior Economist, Federal Reserve Bank of Dallas
  • Adjunct Professor, Hankamer School of Business, Baylor University, Author of Beside the Golden Door: U.S. Immigration Reform in a New Era of Globalization
  • Hipolito Acosta, Former District Director U.S. Citizenship and Immigration, Houston, and Author of The Shadow Catcher

*****

25 Years of McCuistion: Immigration Policy for the Future

http://www.frtv.org/2015/11/re-air-25-years-of-mccuistion-immigration-policy-for-the-future/

This program addresses a huge question regarding immigration policy: what is the one thing we should do today to solve the immigration issue? As you might expect there is no one or simple answer and each of our panelists have diverse solutions.

Host, Dennis McCuistion, is joined by:

  • Rick Gump: Immigration Attorney
  • Professor Neil Foley, PhD: Southern Methodist University, Robert H. and Nancy Dedman Chair in History, Author: Mexicans and the Making of America
  • Pia Orrenius, PhD: V.P and Senior Economist, Federal Reserve Bank of Dallas, Adjunct Professor, Hankamer School of Business, Baylor University, Author of Beside the Golden Door: U.S. Immigration Reform in a New Era of Globalization
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