What is an H-1B Visa?

Much like when in OPT (Optional Practical Training), an H-1B visa allows you to be employed by the company sponsoring the visa for up to six years (sometimes longer) in what United States Citizenship and Immigration Services (“USCIS”) calls “specialty occupations.” The regulations define a “specialty occupation” as requiring theoretical and practical application of a body of highly specialized knowledge in a field of human endeavor, and requiring the attainment of a bachelor’s degree or its equivalent as a minimum. Although the possibilities are endless, examples of common H-1B eligible positions are accountants, computer programmers, database administrators, general managers, marketing research analysts, medical technologists, software engineers, and teachers.

Is an H-1B Visa Only Used for Full-Time Employment?

No! The H-1B visa can be utilized for both full-time and part-time employment. Although there are wage issues to be considered, “part-time H-1B visas” may be a life saver for both employers under financial restraints and potential employees who are scared the troubled economy will keep them from finding an employer to sponsor their visa. It is also possible to have two companies sponsor an individual for two separate part-time H-1B visas.

When Should You File for Your H-1B Visa?

To be on the safe side, April 1st! Each year, employers begin filing H-1B visas on April 1st of each year for employees who will begin their employment with the company on October 1 of the same year (beginning of the new federal fiscal year). Currently, U.S. law limits the number of H-1B visas to 65,000 per fiscal year (with some exceptions). This limit is called the “H-1B Cap.” Over the past few years (apart from last year) the H-1B Cap was met by petitions filed on the first possible day of filing (April 1). Last year, due to the poor economy and restrictions on employers who received TARP funding, the H-1B Cap was not met until after the beginning of the federal fiscal year. This year is anyone’s guess.

For more information on H-1B visas or any other business, employment, or immigration issues, please contact our offices.

The I-9 system of employment verification, created by the Immigration Reform and Control Act of 1986, is the nation’s sole mandatory employment eligibility verification program. All U.S. employers are responsible for the completion and retention of Form I-9 for each individual hired for employment in the United States, including citizens and non-citizens.

This newest enforcement effort by ICE follows a recent Department of Homeland Security (DHS) announcement that ICE will focus its resources on criminal prosecution of employers who knowingly hire illegal workers and that the agency “will use all available tools, including civil fines and debarment, to penalize and deter illegal employment.”

“Knowingly hiring” can be a tricky legal concept. Employers can also be held liable if they had “constructive knowledge” that a worker wasn’t eligible for employment. Constructive knowledge means that the employer “should have known.” Constructive knowledge has been found where employers did not complete I-9 forms or completed I-9 forms incorrectly.

Many errors on forms result from inadvertent mistakes pertaining to preparation, storage, and retention that can result in civil fines, and even criminal charges. Civil fines for employers can range from $3200 (per violation) for a first offense to $16,000 (per violation) for a third or subsequent offense. All company representatives verifying employment eligibility of employees are potentially liable, both criminally and civilly, for errors in completing I-9 Forms.

So what can U.S. businesses do to mitigate exposure stemming from their I-9 programs? It is imperative, now more than ever, that employers implement I-9 Compliance Plans that include proper training, internal audits, and third-party audits. The voluntary E-Verify program (formerly the Basic Pilot/Employment Eligibility Verification Program), an online system operated jointly by the Department of Homeland Security and the Social Security Administration (SSA), also provides employers with a “safer harbor” within which to operate.

With a few exceptions, the new form is nearly identical to the previous edition. Most notable among the changes to the form is that employees will no longer be able to present expired documents. Previously, employees were allowed to present expired driver’s licenses or U.S. passports. There is also an additional status box in the emloyee attestation in Section 1 of the form. The new I-9 form can be found on the United States Citizenship and Immigration Services’ (USCIS) website.

As I have written in earlier posts, Form I-9 Compliance can be far more complicated than one might assume. With the increased liability of companies for failure to comply with employment eligibility requirements, proper training is imperative.

Previously, various documents, such as U.S. Passports, were acceptable for I-9 purposes, even if expired. The general belief has been that these documents were impossible to fraudulently duplicate and therefore evidence of citizenship, whether expired or unexpired. According to CNN’s Mike Ahlers, this belief has been proven false by a congressional investigation.

According to Mr. Ahlers’ news report, An investigator with the Government Accountablity Office (“GAO”), Congress’ investigative arm, used a false identification to obtain a U.S. passport and then used the passport to get an airline boarding pass and go through an airport security checkpoint. In fact, the investigator was able to receive four different passports using the identities of a man who died 1965 and a five year old child.

Regardless of varying feelings about employment eligibility and undocumented workers, this investigation raises a much more drastic picture of problems with our national security. It has been over eight years since September 11. Does it grind your gears that we are still having these types of national security issues?