USCIS Changes Position on Nurses and H-1Bs

USCIS just issued a new menurse-shortage-immigrationmo that opens up the possibility for more Nurses to qualify for H-1B status.  The memo, dated July 11, was issued but he Office of Policy and Strategy, Business and Foreign Workers Division, Office of the Director, USCIS.

Prior to this memo, USCIS view was that RN positions simply could not qualify for an H-1B as a bachelor’s degree was not normally required as the minimum entry into those particular positions.  While not couched as a blanket rule, that was effectively how it was treated.  USCIS, however, did concede that some advance practice registered nurses may qualify for the H-1B visa.

The new memo significantly changes this position.  While USCIS still feels that Registered Nurses, in general, do not qualify for the H-1B visa, they are now open to the fact that, in many cases, they MAY qualify, if sufficient evidence is provided.  USCIS pointed out that Bachelor’s degrees are becoming more prevalent for RN’s and are being required more frequently.  USCIS particularly pointed to the American Nurses Credentialing Center (ANCC) Magnet Recognition Program.  This program requires of the organizations that are certified through it (and it is a mark of excellence for the organization) that 100% of RN Managers working at the organization and that at least 80% or ALL RN’s have bachelor’s by 2020 at the latest.  The organizations are also encouraged to move towards that goal as quickly as possible.  They also pointed to specialty RN Positions, such as rehabilitative nurses, pediatric nurses, peri-operative nurses, emergency room nurses as possible types of RNs that may require bachelors degree because of the complexity of the positions, etc. and, therefore, could qualify for the H-1B visa as well.

Lastly, USCIS looked at Advance Practice Registered Nurses and affirmed that these positions will usually be found to qualify for H-1Bs as long as it can be shown that a bachelors in a particular field is required.  USCIS also recognized that there may be many names for these type of nurses depending on the state, such as Certified Nurse-Midwife, Certified Nurse Practitioner, Certified Clinical Nurse Specialist, etc.

The factors laid out by USCIS to look at in all of the above cases (RN’s and Advance Practice Registered Nurses) includes:  a detailed description of the duties to be performed, and advanced certification requirements, clinical experience requirements, training in the specialty requirements, nature of the petitioners business, industry practices, ANCC Magnet Recognition status and the wage rate of the position relative to otherwise within the occupation, among others.

This will allow at least some hospitals and organizations to more easily bring in needed nurses on H-1Bs and ease the nursing shortage, in our view.  If you feel that you can benefit from this new standard please contact us or your attorney to discuss the matter.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

USCIS Meets H-1B cap – Lottery Will be held

UnknownAs expected USCIS announced today that it has received sufficient H-1B application to meet the H-1B cap as well as the Master’s Cap.  Therefore USCIS will conduct a lottery later this month to determine which cases will be accepted for the cap, and which will not, and will be returned with their fees.   All application received by the close of business today will be accepted into the lottery.  USCIS will finish processing all cases received before proceeding with the lottery.  Unfortunately, according to USCIS, because of the high numbers received, USCIS is not sure when they will finish processing the cases.   Here is hoping it will not take them to long.  We will update you as soon as we hear anything additional.

H-1B Extensions and RFEs

Maybe this scenario sounds familiar:  You file for an H-1evidenceB for an employee, and get it  approved for them to work for you for 3 years. At the end of the 3 years you file a renewal for your employees H-1B.  Instead of a straight approval this time, however, USICS requests additional evidence as, according to the Request, they do not believe that you qualify for the position or that the position itself is a specialty occupation.  We have seen this happen recently even and, whenever it does, we cannot but help feeling confused.  Why would USCIS approve the application once and then, all of a sudden and out of the blue on a renewal demand documentation about entitlement to the visa classification?  It makes little to no sense.

In fact, in the Field Officers Operating Manual, USCIS itself states:

Issues surrounding the alien’s original entitlement to nonimmigrant status were explored by INS or CBP and Department of State officials at the time of initial admission and visa issuance (or, in the case of visa exempt aliens, by INS or CBP alone). Absent gross error, changed circumstances or new information, these should not be revisited in extension proceedings. However, if the adjudicator has strong reason to believe that the alien was not entitled to a nonimmigrant status in the first place, he or she may seek clarification from the applicant through correspondence or by requiring an interview at the appropriate local office.

Despite this, some officers will still insist on revisiting entitlement to status in subsequent renewals.  What can you do if this happens to an application for one of your employees?  The most important thing to do is to immediately start collecting the documentation requested.  The reason for this is twofold:  Fipreponderance-of-the-evidencerst, USCIS does have the right to ask for additional evidence regardless of the above procedure manual.  You also have the responsibility to meet your burden of proof – and to show by a preponderance of the evidence that the beneficiary is qualified for the position.  Second, USCIS does not like to admit they made a mistake.  By requiring you to respond no matter what, they can sooth their pride by saying it was because of the new evidence that the case became approvable.  So assume that, no matter what else you try, you will have to respond.  That way you will always be able to get the documents in a timely manner and will not run out of time.

It should also be noted that the overall RFE and denial rate has dramatically increased for H-1Bs over the years.  In 2009 it was around 8-10%.  In 2012, the denial rate was approximately 29.5% – almost a third of H-1B cases submitted in 2012 were denied.  This is a huge increase in a short period of time.  It also means that a larger percentage of cases were RFE’d (if almost 1/3 were denied) as they certainly did approved some cases that received an RFE.

So what can you do to prevent RFEs and denials in the first place?  Plan carefully – include documents showing ability to pay, include documents such as a transcript, showing the employee has learned the specific skills needed for the position through their eduction, include documentation of the complexity of the job duties so there is no question regarding the need for a bachelor’s degree.  In short, do not skimp on documentation for the initial H-1B OR the H-1B renewal.  Include everything.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

 

H-1Bs: Can an Employment Contract Termination clause require the Employee to pay H-1B fees?

punitive-damages

Here is the scenario:  An H-1B employee works for Employer A.  The employee receives a better off from Employer B, and Employer B files an H-1B transfer for them.  When the employee informers Employer A about the new filing, Employer A tells them that, per their employment contract, since they left prior to two years expiring they need to reimburse Employer A for a certain sum of money.  Sometimes the employer specifically requires employees to repay H-1B visa fees, sometimes it is a more general liquidated damages clause.

The big question is, Is this Legal?

Before proceeding let me say that I am not an employment law attorney and, in general, I cannot tell you if a specific liquidated damages clause is valid or not.  What I can say is that any clause that would require the employer to pay back H-1B fees is, in almost every circumstance, invalid and illegal.  As stated in a previous blog post, the Employer is required to pay certain fees, no matter what.  This includes the training fee, which is usually $750 or $1500 depending on the size of the employer.  There is no doubt that this fee CANNOT be reimbursed to the employer in any way, shape or form.  If the clause includes reimbursement for that fee, it would be considered illegal.  What about the other H-1B visa fees and the attorney fee?  Could the employer get reimbursed for those?

It is good to recall here that the justification given by the DOL for requiring an employer to pay all fees is that such fees are a “cost of doing business” and, therefore, not a legitimate deduction from the employees pay.  Therefore, the payment of such fees could bring the salary of the employee below the required wage.  Therefore, I think it is clear that if the employees repayment of the fees brings their salary below the prevailing wage (this would be their yearly salary minus the amount they are repaying, not their entire salary for the entire time they worked), it is against the regulations and the DOL would have an action against the employer.

The trickier situation is where the re-payment of such fees would not bring the employees salary below the prevailing wage.  First, if the LCA lists just a static wage, and the re-payment of the fees would bring the wage below that level, I again feel that it is clear that the DOL would consider that a violation of the LCA as the employer is no longer paying the promised wage.  If the LCA lists a wage range, and the re-payment of the fees would keep the wage in that range, I still believe that the DOL and USCIS would both have issues with the re-payment of the fees.  DOL seems to think that there is no situation in which it is ok for the employer to require an employee to pay such wages.  It is certainly not worth the risk in my mind to tempt fate and try to enact or enforce such a provision.

As always, remember while blogs are good at disseminating general information, you can only get good legal advice by contacting and discussing your specific case with a qualified attorney.

H-1B Process: The LCA

wwwdoletagov-regions-reg05-Documents-eta-9035pdf

Every employer who wants to sponsor an immigrant for an H-1B has to file, and get certified, a Labor Condition Application (LCA).  But what is the LCA and why is it important?  The LCA has two specific purposes.  First, it is there to make sure that foreign workers are not paid wages that are lower than US Citizens and Permanent Residents, thereby depressing wages for everyone.  Second, it is there to make sure that foreign workers and US workers are treated fairly and equitably.  In short, the LCA is a series of attestations of the employer.  Specifically, the employer is attesting that:

  1. The employer will pay the required wage, which is the greater of the prevailing wage or the actual wage paid to other employees in the same position
  2. The employment of H-1B workers will not adversely effect the working conditions of US workers
  3. When the LCA was filed, there was no strike, lockout or other work stoppage because of a labor dispute
  4. The H-1B worker will be given a copy of the LCA, and the employ
    er has notified the bargaining representative if the job is unionized, or if not, has posted in a conspicuous place notice that an LCA was filed

The last attestation needs some elaboration.  Under the regulations, the employer must provide the employee with a copy of the LCA within 1 day of the employee starting work.  This must be documented (get the employee to sign a form that they received a copy and put it in the employees file).  In addition, if there is a union, the union must notified of the LCA filing by providing them a copy of the LCA (same documentation requirement).  If there is no union, then the employer must post the LCA in 2 conspicuous locations at the place of employment for 10 days.  The employer should then sign a notice that they did post the notices and where and place that in the employees file.

In addition to the above, the employer must, within one business day of filing the LCA, establish a public access file that may be viewed by any person.  This file must include a copy of the LCA, a statement of the actual wage received by the H-1B worker, the prevailing wage, including its source, whether the state or a private survey is used, a memo from the employer explaining the actual wage determination, and evidence that the LCA has been filed.

In addition, the employer must keep other information that need not be made available to the public.  This includes payroll data for all employees in the same occupations as the H-1B worker, a calculation of the actual wage paid the H-1B worker, the raw data behind the prevailing wage determination, documentation of any fringe benefits provided workers, evidence that the H-1B worker has been given a copy of the LCA, and evidence that the LCA was given to the Union or posted as required.

There are additional attestations for those employers who are deemed to be H-1B dependent.  H-1B dependence is determined as follows: If the employer has 25 or fewer employees, if more than 7 are on H-1Bs, if the employer has 25-50 employees and more than 12 are H-1B employees, or if the employer has more than 50 employees and more than 15% are on H-1Bs.  For those employers who are H-1B dependent they must also attest about the recruitment of workers as well as that they are not displacing US workers in their company OR in other companies by hiring the H-1B employee.

The LCA is an important part of the H-1B process and the above steps need to be filed in all H-1B cases.  As always, remember while blogs are good at disseminating general information, you can only get good legal advice by contacting and discussing your specific case with a qualified attorney.

H-1Bs: Is there a minimum wage I need to pay my employees?

Under the H-1B statutes and regulations there are two concepts related to the wages that are required to be paid:  The “prevailing wage” and the “actual wage”.  The “prevailing wage” is general determined by the Department of Labor (DOL) through a prevailing wage request submitted online which details the job duties, educational and experience requirements, travel requirements, etc.  the DOL then fits the position in a job classification in its online wage database and determines the wage level.  The wage levels are from 1 (entry level) to 4 (fully independent) and the level selected depends upon the required education, experience, etc. and how that compares to what the DOL would consider “normal” for that position.

The “actual wage” is calculated by the employer.  For this calculation, the employer looks at the range of salaries being paid all other similarly employed individuals with similar experience and qualifications.   To be safe, the employer should show that the employee is being paid the higher of that salary range.  However, remember, only employees with “similar experience and qualifications” are included in this range – this includes time worked for the company, experience, education, skills, etc.  If there are no other similar employees the actual wage would be the wage paid to the H-1B employee.  It should be noted that, as part of the H-1B process ALL employers need to make a written actual wage determination and keep it in the employee file. They also need to put the wage range for the actual wage in the public file.

To bring all the above together – the employer must pay the H-1B employee the higher of the prevailing wage or the actual wage.  As you can tell from the above, with immigration even the simplest questions can have complicated answers.

H-1Bs – Who has to pay?

Money

Many employers would prefer not to pay for the H-1B process for their employees that they agree to sponsor.  It can be an expensive process, and it would ease the concern of many employers if they did not have to foot all of the bill.  Alternatively, some employers want to be able to recoup those fees if the employee leaves their employment.  The question then is “Is it legal for an employee to pay for thH-1B process or to re-pay the employer for such process?”  The short answer to this will almost always be No.

The Department of Labor regulations lay out two important factors in this regard.  First, the DOL has determined what “authorized” deductions from an employees pay are allowed.  This includes things such as tax payments, health insurance, etc.  The DOL has also determined what “unauthorized” deductions are, and this does include “necessary business expenses” which the DOL states included all fees associated with the H-1B and LCA process.  Unauthorized deductions are not allowed to depress the wage paid to the foreign worker below the “required” wage level.
 What is the “required wage”?.  According to the DOL, the wage the employer is “required” to pay is the HIGHER of the prevailing wage (which is what the DOL determines is the minimum wage that should be paid for that position) or the “actual” wage.  The actual wage is the wage paid to other similarly qualified employees in the same or similar position to the alien being sponsored.  So if the alien has a Master’s degree, you would be looking only at other employees in similar positions with Master’s degrees, etc.  However, if there are no similar qualifies employees in similar positions, the actual wage is the wage that is being paid to the alien as listed on the LCA and I-129.
Putting all the above together, in almost every case, the foreign worker will not be making more than similarly situated employees, therefore theH-1B fees could not be paid by the employee.  What if though, for some reason, the foreign worker WAS being paid more than their US counterparts, could they pay the wage then?  Judging from the reactions of the DOL to employees paying such fees while it may not violate the above principles, it is not preferred and could still lead to fines, etc.  Why?  The DOL has stated that requiring the employee to pay the H-1B fees is considered by them to be “fraud” in the LCA process.  In addition, the DOL also feels that if by paying the fees, it brings the wage below the level that the employer stated that they would pay in the H-1B forms and the LCA, it is still a violation, and back wages, at a minimum, could still be due.  Lastly, it should be noted that the training fee, by law, is ALWAYS required to be paid by the employer, no exceptions allowed.
Best practice as an employer is to just pay the fees and not worry about H-1B or DOL audits.    As always remember while blogs are good at disseminating general information, you can only get good legal advice by contacting and discussing your specific case with a qualified attorney.
Image courtesy of khunaspix – free digitalphotos.net

USCIS begins returning H-1B applications not Selected in Lottery

USCIS has begun returning H-1B application for cases that were not lucky enough to be picked for the random audit. If you do not recall, USCIS received more application in the first week of H-1B availability than it had visas for. Therefore, USCIS pooled all applications received during the first 5 business days and conducted a random audit to select the requisite number of cases.

We began receiving receipts within 2 weeks of the end of the lottery. However, it has taken until today, more than a month after the lottery was conducted for USICS to send back petitions that were not selected. At this point we would certainly state that if you have not heard about your petition the most likely scenario is that your application was not accepted and you will be receiving it back shortly.