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October 2012
By Steven H. Garfinkel

     The H-1B visa is often the only nonimmigrant (temporary) visa available to a U.S. company seeking to employ a foreign national in the U.S. To secure approval of an H-1B petition, the company must intend to fill a specialty occupation (a job which normally requires a bachelor’s degree or higher). It must also demonstrate that (i) it will pay required wages, (ii) offer the same working conditions afforded U.S. workers, and (iii) the foreign national’s employment will not adversely affect similarly situated U.S. workers. The H-1B petition may be approved for a maximum initial period of three years and may be extended for an additional three-year period.

     Issuance of new H-1B visas is limited to 65,000 annually, plus an additional 20,000 for those foreign nationals who have obtained a master’s or higher level degree from a U.S. college or university. The HB-1 cap has been reached every year since its implementation in 1990. As the U.S. economy struggled through the Great Recession, H-1B usage slowed, but the cap has been reached every year since—on the first day of the filing period in April 2007; during the first week in 2008; and approximately eight weeks into the filing period this year.

     With 8.2 percent unemployment in the U.S., many may wonder why the H-1B cap is reached so quickly every year. Surely American companies would rather hire U.S. workers than sponsor foreign nationals (less time, hassle, cost, etc.). Surely there are U.S. workers who can fill the jobs that are being taken by foreign nationals on H-1B visas?

     The simple answer is STEM (Science, Technology, Engineering and Math). It is occupations in these disciplines that attract the majority of H-1B visa holders. Until American colleges and universities turn out more U.S. scientists, engineers, mathematicians, analysts, etc., or until changes are made to U.S. immigration laws increasing H-1B visa availability, we will continue to run out of H-1B visas each year.

     U.S. employers who need employees in these disciplines will either need to file H-1B petitions earlier and earlier in the filing period (and hope that a visa will be available), hope alternate visa options are available, struggle to find U.S. workers who meet their requirements, offshore jobs to places where qualified workers can be found, or simply do without critical employees.



I-9 Audits

     Form I-9 Employment Eligibility Verification Audits remain a useful, cost-effective tool in U.S. Immigration and Customs Enforcement’s (ICE) efforts to fight against illegal immigration. In addition to its field auditors, ICE’s Employment Compliance Inspection Center (ECIC) is an important resource serving as the centralized point of contact for I-9 audit issues. It is tasked with assisting field auditors in streamlining and reducing the backlog of I-9 audits.

     As a result, ICE is more current with its inspections and able to “touch more employers and do more inspections.” ECIC is involved in large scale audits (1,000 or more I-9s) and smaller backlogged cases.

     In determining which employers to audit, priority is given to: employers being investigated for criminal I-9 violations, employers in critical infrastructure or involving national security issues, businesses with “national impact” that are too large to audit at the field level, and employers that are egregious violators.

     Employers are urged to learn about their responsibilities to hire authorized workers and how to verify employment eligibility to avoid not only sizeable civil sanctions but criminal prosecutions too.

Steven H. Garfinkel, J.D., is the Managing Partner of Garfinkel Immigration Law Firm.
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