H-2B Visas for Temporary Non-Agricultural Workers

landscape contractorThe H-2B visa permits US employers to bring foreign nationals to the United States for the purposes of filling temporary, non-agricultural jobs.  It is commonly used for occupations in the hospitality (hotels, ski resorts), retail, and service industries (landscape contractors).

Congress has set a numerical limit, or “cap” on the number of H-2B visas to be issued on an annual basis, currently set at 66,000 per fiscal year.  The cap is split into two parts: 33,000 for workers who begin employment in the first half of the fiscal year (October 1 – March 31) and 33,000 for workers who begin employment in the second half of the fiscal year (April 1 – December 31). H-2B visas are valid for a period of 9 months.

Who May Qualify for H-2B Classification?

ski instructorTo qualify for H-2B nonimmigrant classification, the petitioner must establish that:

  • There are not enough U.S. workers who are able, willing, qualified, and available to do the temporary work.
  • Employing H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers.
  • Its need for the prospective worker’s services or labor is temporary, regardless of whether the underlying job can be described as temporary.  The employer’s need is considered temporary if it is a(n):
  • Its need for the prospective worker’s services or labor is temporary, regardless of whether the underlying job can be described as temporary.  The employer’s need is considered temporary if it is a(n):

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All California Employers with 5+ Employees Must Provide Sexual Harassment Training in 2019, Even if Trained in 2018

HARASSMENTOn September 30, 2018, Governor Jerry Brown signed into law S.B. 1343, which now requires that employers with 5 or more employees in California provide 1 hour of sexual harassment and abusive conduct training to non-managerial employees, and 2 hours for managerial employees once every two years. Managerial employees must receive training within 6 months of hire or promotion.

BY WHAT DATE MUST EMPLOYEES BE TRAINED?

calendarAll managerial and non-managerial employees must receive training by January 1, 2020. After January 1, 2020, employees must be retrained once every two years. That means that all employees statewide must be retrained again by January 1, 2022.

WHAT IF MY EMPLOYEES WERE TRAINED BETWEEN JANUARY 1 AND DECEMBER 31, 2018?

The law requires that employees be trained during calendar year 2019. According to the recently released DFEH FAQsemployees who were trained in 2018 or before will need to be retrained.

S.B. 1343 requires that the California Department of Employment and Fair Housing (DFEH) make online training courses available on the prevention of sexual harassment and abusive conduct in the workplace. However, DFEH does not expect to have such trainings available until late 2019. Therefore, in order to ensure that your employees receive the required training by January 1, 2020, it is best to schedule training now to secure the availability of a trainer, account for any employee make-up sessions, and to train in multiple sessions to stagger the number of employees who are taken away from work to attend training. Continue reading

When Is the Best Time to Apply for an H-1B Employee Visa?

H-1B visaThe most highly anticipated visa of the year begins its application season in Q1 2019. The coveted H-1B visa allows companies in the United States to temporarily employ foreign workers in jobs that are “specialty occupation” positions, which involve the theoretical and practical application of a body of highly specialized knowledge.  H-1B visa holders often possess STEM degrees, such as jobs in fields such as science, engineering, logistics, and information technology.  To apply for an H-1B visa, the applicant must have a bona fide job offer from a U.S. employer, a Bachelor’s Degree or higher in their specific specialty or its equivalent, and meet the other requirements of the visa.

The H-1B visa is valid for three years, with an optional three-year extension, and provides the employee with the opportunity to apply for a Green Card if sponsored by the employer.  Accordingly, because the H-1B visa can last for 6 years (and even longer under some circumstances), the H-1B visa is one of the most popular ways for foreign professionals obtain a work visa, and ultimately, a Green Card in the United States. 

US FlagAs H-1B applications require a third-party academic credential evaluation of foreign degrees and the processing of a Labor Condition Application with the Department of Labor before an applicant is eligible to file an H-1B application with the U.S. Citizenship and Immigration Services (USCIS), H-1B applications can take 2-4 months to prepare.  Therefore, a prudent applicant will begin his or her application preparation in December or January because it can take several months to get documentation prepared and signed by the employer, obtain important documents from third parties, and have the application prepared by an attorney. Continue reading

New Year, New Company Policies

business partnersAs companies grow and evolve over time, it soon becomes clear that they will outgrow their employee and operations policies–that is, if they even had any in the first place!  The best time for a CEO, COO, CFO, and Human Resources Department is to reassess these policies is at the end of the year, and to roll out new policies at the start of a new year.  Every January, there are changes that will take place anyway (such as updated IRS mileage reimbursement rates and local minimum wage rates), so it’s a good time to include policy updates when you provide this information to employees all at once.  There are numerous policies you can begin revising now to issue to your staff in January. Read further to begin your end of year action plan:

1. Employee Handbook

EmployeeHandbook_Pop_6467.jpgThe first item that should be addressed is the company Employee Handbook. If your company does not have one, or has not updated an existing one in more than a year, it’s time to speak with an attorney about creating or updating your Handbook.  In fact, for companies that have more than 5 employees, a Handbook is a no-brainer because it will have clauses in it that you are required to provide to employees (for example, Pregnancy Disability Leave is available for employees at companies with 5 or more employees, and the Employee Handbook is the best place to provide this information to employees).  Besides using the Handbook as the opportunity to explain all of the California mandatory leave-laws, paid sick leave time, and cell phone reimbursement policy, you can use this as a forum to explain the company’s social media, use of technology, dress code, tardiness, absentee, and drug/alcohol use policies. You can also outline which behaviors will result in discipline or termination. Continue reading

Will the H-1B Lottery Change in 2019?

H-1B visaIn an attempt to change the lottery system for H-1B applications, The U.S. Department of Homeland Security (DHS) proposed a rule that would require all H-1B petitioners to pre-register online for the H-1B lottery prior to submitting their H-1B filings. According to the proposed rule, only those H-1B petitions that have been selected in the lottery could then be submitted for the adjudication by USCIS. The rule is currently under review at the Office of Management and Budget (OBM), which is the first step toward implementing such changes.

Other proposed changes would benefit applicants with Master’s Degrees by adding them to the initial round of 65,000 Bachelor’s Degree applicant visa spots lottery.  Then, if there are any Master’s Degree applications left over after the initial lottery round, the remaining Master’s Degree applications will be added to the lottery for the remaining 20,000 Master’s Degree cap. Continue reading

When Do I Need a B-1 Temporary Business Visitor Visa? Can I Just use ESTA to Visit the US?

businessman-in-airport-with-smartphone-800x532If you are coming to the United States to establish a U.S. presence of your foreign business; investigate whether you want to open a business in the U.S.; or attend conferences, look for commercial space, or interview potential investors or employees; you may be eligible for the B-1 Temporary Business Visitor Visa.

I. B-1 Temporary Business Visitor Visa

1.  Real Examples of When to Use the B-1 Visa

For example, if you own a business abroad but want to come to the United States to speak at conferences, meet potential clients, and conduct marketing activities, but have no plans to live or work in the U.S., the B-1 visa would be a good option for you.

In addition, if you have a business abroad and are looking to open an office in the United States, you can come to the US for several months to look for an office or warehouse space, interview potential employees, meet with investors, and do research for the business. Continue reading

Diversity Visa Lottery Now Open Until November 6, 2018 for FY-2019

Lottery-Balls-014.jpgFrom October 3 to November 6, 2018, citizens of certain countries may apply for a Green Card though the Diversity Visa Lottery.  Section 203(c) of the Immigration and Nationality Act (INA) provides for a class of immigrants known as “diversity immigrants,” from countries with historically low rates of immigration to the United States. A limited number of visas are available each fiscal year, and there is no cost to register for the DV Program.

Applicants who are selected in the program (“selectees”) must meet simple but strict eligibility requirements to qualify for a diversity visa. The Department of State determines selectees through a randomized computer drawing. The Department of State distributes diversity visas among six (6) geographic regions, and no single country may receive more than seven percent (7%) of the available DVs in any one year.

Who is Eligible?

globeFor DV-2019, natives of the following countries are not eligible to apply, because more than 50,000 natives of these countries immigrated to the United States in the previous five years: Continue reading

Has Your Company Been Reimbursing its Employees for Personal Cell Phone Use on the Job?

by Jennifer A. Grady, Esq.

cell phone 2Since January 1, 2016, California employers must reimburse employees for use of their personal cell phones for mandatory business purposes.  (Cochran v. Schwan’s Home Service, Inc). This ruling affects millions of employers who must update their company policies in order to stay compliant with the new law.  While this law has been on the books for over two years now, it appears as though many companies have not addressed this law or made it part of their employee reimbursement practices.  Is your company reimbursing its employees for their cell phone call and data usage?  Read below for policy suggestions.

What does this mean for employers?

According to Cochran, California employers must indemnify employees for all “necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties, or of his or her obedience to the directions of the employer.” Unfortunately, even four years after this case was decided, the exact measure of reimbursement is still somewhat unclear.  While the court in Cochran determined that employers must consistently reimburse employees a “reasonable percentage,” it did not define what is reasonable. Furthermore, the employer must reimburse the employee even if the employee does not incur any additional expense on his or her cell phone/data plan as the result of using the device for work-related purposes (i.e. if the client has unlimited talk, text, and data plans).

This law is now reflected in California Labor Code section 2082: Continue reading

Must-Read for All Employers: Gov. Brown Further Expands Sexual Harassment Laws in California

Brown lawOn September 30, 2018, California Governor Jerry Brown signed over a dozen bills into law with the intent on making the Golden State the leader in the nation on the much-analyzed and discussed topic of sexual harassment.

Governor Brown signed his last bill on Sunday night.  Over his career, he signed nearly 20,000 bills, including 1,016 this year. The new laws, on a range of issues from climate change to criminal justice to gender issues, place California on the “left coast” politically.  Brown’s ambitions can be summarized by his statement that, “We are going to be the moral compass and the policy trendsetter of the country.”

While these new laws will benefit employees and address serious and relevant issues, they will continue to place more demands on employers across California who attempt to comply with the most legislated corporate territory in the country.

A full list of Governor Browns approvals and vetoes can be found in his Legislative Update.  Of the dozens of bills signed into law on September 30, the most relevant on this topic include the following: Continue reading

California Passes Law Requiring Boards of Publicly-Held Corporations to Include Women by 2019 (SB 826)

woman on boardOn September 30, 2018, California Governor Jerry Brown signed into law a radical initiative to add women to corporate boards of directors for publicly-held corporations headquartered in California.   According to Brown in a letter to the California State Senate, “Given all the special privileges that corporations have enjoyed for so long, it’s high time corporate boards include the people who constitute more than half the ‘persons’ in America.”  The California Senate approved Senate Bill 826 by a vote of 23 to 9 after the State Assembly narrowly passed the proposal with the bare minimum 41 votes a day earlier.  The Bill was then approved by the Governor and filed with the California Secretary of State.

Brown lawIn an effort to “close the gender gap” in business, the new law requires publicly traded corporations whose principal executive offices are headquartered in California to include at least one woman on their boards of directors by the end of 2019.  By December 31, 2021, this requirement will expand to require that a minimum of two women must sit on boards with five (5) members, and there must be at least three women on boards with six or more (6+) members.  The corporations’ SEC 10-K form will be used to determine the location of the principal executive offices.

The bill requires that by July 1, 2019, the Secretary of State publish the number of domestic and foreign corporations whose principal executive offices are located in California and who have at least one female director. The bill also authorizes the Secretary of State to impose fines for violations of the bill, and provides that funds from these fines are to be available, upon appropriation, to offset the cost of administering the bill.

Penalties for non-compliance will be high, including fines of $100,000 for a first violation and $300,000 for a second or subsequent violation.  Companies must demonstrate their compliance by filing their board member information with the Secretary of State by the respective deadlines. Continue reading

USCIS Increases Premium Processing Fee by 15% on October 1, 2018

fee-increaseOn August 31, 2018, U.S. Citizenship and Immigration Services (USCIS) announced that it will adjust the premium processing fee for Form I-129, Petition for a Nonimmigrant Worker and Form I-140, Immigrant Petition for Alien Workers, beginning on October 1, 2018, to “more effectively adjudicate petitions and maintain effective service to petitioners. ” These forms are typically used for H-1B, H-2A, H-2B, H-3, L-1, O-1, O-2, P-1, P-1S, P-2, P-2S, P-3, P-3S, Q-1 or R-1 petitions.

The premium processing fee will increase to $1,410.00, a 14.92 percent increase (after rounding) from the current fee of $1,225.00. This increase, which is done in accordance with the Immigration and Nationality Act, represents the percentage change in inflation since the fee was last increased in 2010 based on the Consumer Price Index for all Urban Consumers. Continue reading

USCIS Temporarily Suspends Premium Processing for Fiscal Year 2019 H-1B Cap Petitions

enter-usa-h1b-visaAs of April 2, 2018, USCIS began accepting H-1B petitions subject to the Fiscal Year (FY) 2019 cap.  This cap was reached in just four days, by April 6, 2018.
USCIS has temporarily suspended premium processing for all FY 2019 cap-subject petitions, including petitions seeking an exemption for individuals with a U.S. master’s degree or higher. This suspension is expected to last until Sept. 10, 2018. During this time, USCIS will continue to accept premium processing requests for H-1B petitions that are not subject to the FY 2019 cap.
USCIS will notify the public before resuming premium processing for cap-subject H-1B petitions or making any other premium processing updates.

During this temporary suspension, USCIS will reject any Form I-907, Request for Premium Processing Service, filed with an FY 2019 cap-subject H-1B petition. If a petitioner submits one combined check for the fees for Form I-907 and Form I-129, Petition for a Nonimmigrant Worker, both forms will be rejected.

Once USCIS resumes premium processing, petitioners may file a Form I-907 for FY 2019 cap-subject H-1B petitions that remain pending.

Requesting Expedited Processing

While premium processing is suspended, a petitioner may submit a request to expedite an FY 2019 cap-subject H-1B petition if it meets the criteria on the Expedite Criteria webpage. It is the petitioner’s responsibility to demonstrate that they meet at least one of the expedite criteria, and USCIS encourages petitioners to submit documentary evidence to support their expedite request. USCIS reviews all expedite requests on a case-by-case basis and will grant requests at the discretion of its office leadership.

The Reason for Temporary Suspension of Premium Processing for H-1B Petitions

This temporary suspension will help USCIS reduce overall H-1B processing times. By temporarily suspending premium processing, USCIS will:

  • Process long-pending petitions, which it has currently been unable to process due to the high volume of incoming petitions and the significant surge in premium processing requests over the past few years; and
  • Prioritize adjudication of H-1B extension of status cases that are nearing the 240 day mark.

Look for USCIS’ updates on the H-1B FY 2019 Cap Season webpage.

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Updates to California Labor Law Posters

CapitolStay up to date with recent changes to California labor law posters!  In order for your business to stay in compliance with these recent changes, the updated posting(s) must be downloaded, printed, and then posted next to your current labor law poster. Remember, labor law posters must be posted in a conspicuous location so that all employees may see them.

1. EDD- Unemployment Insurance, Disability Insurance, Paid Family Leave:

The California Employment Development Department (EDD) has updated its EDD notice regarding Unemployment Insurance, Disability Insurance, and Paid Family Leave. The updated notice reflects a change to the online application platform, as well as formatting changes. The department recommends maintaining updated information, however, this update will not be mandatory until January 1, 2019. The poster revision date is August 8, 2018.

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Clarification of STEM OPT Extension Reporting Responsibilities and Training Obligations

STEM guysCertain F-1 students who receive science, technology, engineering, and mathematics (STEM) degrees may apply for a 24-month extension of their post-completion optional practical training (OPT).  On August 17, 2018, USCIS updated the Optional Practical Training Extension for STEM Students (STEM OPT) page of its website to clarify the reporting responsibilities for participation in the STEM OPT program. Students and employers must report material changes to the Designated School Official (DSO) at the earliest opportunity by submitting a modified Form I-983. Employers must report the STEM OPT student’s termination of employment or departure to the DSO within five business days.  As previously indicated on the webpage, students must report certain changes, such as changes to their employer’s name and address, to their DSO within 10 business days. Prompt reporting ensures that Department of Homeland Security (DHS) is able to exercise effective oversight of the program.

Additionally, DHS is clarified that STEM OPT participants may engage in a training experience that takes place at a site other than the employer’s principal place of business, as long as all of the training obligations are met, including that the employer has and maintains a bona fide employer-employee relationship with the student. DHS will review on a cSTEM OPTase-by-case basis whether the student will be a bona fide employee of the employer signing the Training Plan, and verify that the employer that signs the Training Plan is the same entity that employs the student and provides the practical training experience. Continue reading

Conduct Your Own I-9 Audit Before ICE Does: 6 Tips for Avoiding Costly Mistakes

i-9

U.S. Immigration and Customs Enforcement’s (ICE) Homeland Security Investigations (HSI) conducted a two-phase nationwide operation in which I-9 audit notices were served to more than 5,200 businesses around the country since January 2018. A notice of inspection (NOI) informs business owners that ICE is going to audit their hiring records to determine whether they are complying with existing law.

During the second phase of the operation from July 16 to 20, 2018, HSI served 2,738 NOIs and made 32 arrests. During the first phase of the operation, Jan. 29 to March 30, HSI served 2,540 NOIs and made 61 arrests.

ICE 2While the agency routinely conducts worksite investigations to uphold federal law, HSI is currently carrying out its commitment to increase the number of I-9 audits in an effort to create a culture of compliance among employers, according to Derek N. Benner, Acting Executive Associate Director for HSI. The seriousness of these investigations is described by Mr. Benner: “This is not a victimless crime.  Unauthorized workers often use stolen identities of legal U.S. workers, which can significantly impact the identity theft victim’s credit, medical records and other aspects of their everyday life.

HSI uses a three-pronged approach to worksite enforcement: (1) compliance, from I-9 inspections, civil fines, and referrals for debarment; (2) enforcement, through the criminal arrest of employers and administrative arrest of unauthorized workers; and (3) outreach, through the ICE Mutual Agreement between Government and Employers, or IMAGE program, to instill a culture of compliance and accountability.

From Oct. 1, 2017, through July 20, 2018, HSI opened 6,093 worksite investigations and made 675 criminal and 984 administrative worksite-related arrests, respectively. In fiscal year 2017 (October 2016 to September 2017), HSI opened 1,716 worksite investigations; initiated 1,360 I-9 audits; and made 139 criminal arrests and 172 administrative arrests related to worksite enforcement.

What is the I-9 Form?

The I-9 Form is an instrumental part of the new employee on boarding process, and should be completed within the first 3 days of hire.  This form is used for verifying the identity and employment authorization of individuals hired for employment in the United States. All U.S. employers must ensure proper completion of Form I-9 for each individual they hire for employment in the United States, including both citizens and non-citizens.

To many employers and HR professionals, an I-9 form may appear to be a simple piece of hiring paperwork. However, the one page I-9 form comes with enough rules and regulations to fill a 69-page how-to manual, the M-274 Handbook for Employers.

In order to ensure compliance with the I-9 requirements, it is recommend that employers conduct and audit of their files to ensure that there is a signed I-9 form on file for each employee.  These forms should be stored together in a separate I-9 file, rather than each employee’s personnel file.  This way, in the event USCIS conducts an audit, the employer only has to turn over the I-9 file, as opposed to information about the employee that is outside the scope of the agency’s audit.  Read below for an explanation of the I-9 audits and tips to be prepared in the event you receive a visit from US Immigration and Customs Enforcement (ICE).
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