Alternatives to H1B visas

The H1B visa season is upon us, the filing date was on April 1, 2014, and like last year is expected to be oversubscribed. What visas can a company consider once the H1B visas are exhausted for the season?

This year, let us consider non-H1B countries, where alternative visas are available for skilled workers.

For Mexicans and Canadians

The TN visa under the North American Free Trade Agreement (NAFTA). Until this time, only Canadians could apply directly to the consulate or embassy or enter through the Canadian/US border with the proper credentials.

On February 10th, 2014, the US Department of State published a final rule that Mexicans applying for a TN visa could apply at the consulate or embassy in the US without first seeking approval from USCIS, or before applying for a TN visa at the US embassy or consulate in Mexico.

This is a giant leap forward for immigration, according similar trusted status for citizens south of the border.

Of course, applicants must be sponsored by an employer with a genuine job offer, and job duties must conform to the NAFTA guidelines.

While TN visas require non-immigrant intent—which means the applicant cannot apply for a green card from a TN visa status—the visa allows renewal in the US, and under tax treaties, allows the worker to accumulate the equivalent of Social Security in their country of origin.

There used to be a ceiling on admissions of TN, but that is not the case anymore.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney St. Louis, Missouri

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The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Tara Mahadevan
Copyright 2014. All rights reserved.

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E-Verify returns!

E-Verify has resumed operations following the federal government shutdown. All E-Verify features and services are now available.

Information for Employers

Form I-9
The Form I-9 requirements were not affected during the federal government shutdown. All employers were required to complete and retain a Form I-9 for every person hired to work for pay in the US during the shutdown.

E-Verify
Employees who received a Tentative Nonconfirmation (TNC):
If an employee had a TNC referred between September 17, 2013 and September 30, 2013, and was not able to resolve the TNC due to the federal government shutdown, employers must add 12 federal business days to the date printed on the ‘Referral Letter’ or ‘Referral Date Confirmation’. Employees have until this new date to contact the Social Security Administration (SSA) or the Department of Homeland Security (DHS) to resolve their cases. If employers have an employee who decided to contest his or her TNC while E-Verify was unavailable, an employer should now initiate the referral process in E-Verify. Employers may not take any adverse action against an employee because of a TNC.

Steps to take if an employee has received a SSA Final Nonconfirmation (FNC) or DHS No Show result:
If an employee received a Final Nonconfirmation (FNC) or No Show because of the federal government shutdown, please close the case and select “The employee continues to work for the employer after receiving a Final Nonconfirmation result,” or “The employee continues to work for the employer after receiving a No Show result.” The employer must then enter a new case in E-Verify for that employee. These steps are necessary to ensure the employee is afforded the opportunity to timely contest and resolve the Tentative Nonconfirmation (TNC) that led to the FNC result.

Creating Cases: Three-Day Rule
You must create an E-Verify case for each employee hired during or otherwise affected by the shutdown by November 5, 2013. If you are prompted to provide a reason why the case is late (i.e., does not conform to the three-day rule), select ‘Other’ from the drop-down list of reasons and enter ‘federal government shutdown’ in the field.

Federal Contractor Deadlines
During the federal government shutdown, federal contractors could not enroll or use E-Verify as required by the federal contractor rule. If your organization missed a deadline because E-Verify was unavailable, or if it has an upcoming deadline for complying with the federal contractor rule, please follow the instructions above and notify your contracting officer of these instructions.

Information For Employees

If the federal government shutdown prevented you from contesting a Tentative Nonconfirmation (TNC), you will be allowed additional time to contact the Social Security Administration (SSA) or Department of Homeland Security (DHS). If your TNC was referred between September 17, 2013 and September 30, 2013, and you were not able to resolve the mismatch due to the federal government shutdown, you should:

  • Add 12 federal business days to the date printed on the ‘Referral Letter’ or ‘Referral Date Confirmation’ that your employer gave you after you contested the TNC. Federal business days are Monday through Friday, and do not include federal holidays.
  • Contact SSA or DHS by the new date to resolve your TNC.
  • If you received a Final Non-Confirmation (FNC) because you could not contact DHS or SSA during the federal government shutdown, or because you could not contact DHS or SSA in the first ten days after the government reopened, please contact your employer and request that the employer re-enter your query. For more information about contesting your TNC or FNC, please refer to Employee section of the E-Verify website.

Customer Support

E-Verify Customer Support expects an increase in requests for assistance. Due to this increase, customers may experience longer than normal delays and response times. We apologize for any inconvenience and appreciate your patience.

For any questions or additional information about how the federal shutdown affects E-Verify, please email E-Verify@dhs.gov. For questions about Form I-9, please visit I-9 Central or email I-9Central@dhs.gov. Employers and employees may also contact E-Verify at 888-464-4218. Customer Support representatives are available Monday through Friday 8:00 am to 5:00 pm local time.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
St. Louis, Missouri

The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Tara Mahadevan

Copyright 2013. All rights reserved.

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Government Shutdown Affects Employers with Foreign Workers

We sent an alert to our clients a couple of days ago when we felt that the Federal Government shutdown was imminent. We didn’t really expect it to happen but it did! The shutdown is unfortunately affecting US immigration services, so writing about action to be taken or postponed for pending immigration applications became imperative.

The websites of the US Department of Labor (US DOL) are no longer functional because it is considered a non-essential service. For employers, this means that if there is a current or potential employee who has to start, extend or transfer to a new employer, the employer will not be able to file a labor condition application for an H1B visa. The implication is that no application for the H1B visa can be filed with USCIS because that application has to be supported by a certified labor condition application (LCA). In the past, when there was a prolonged outage of the US DOL website, USCIS allowed employers to file with uncertified LCAs. We hope this happens with this shutdown, if it is prolonged.

For employees whose cases are pending audit on a PERM case; or if a prevailing wage determination or Form 9089 (PERM application) is either to be filed, or has been filed or is pending with the US DOL, no action will be issued by the agency until the shutdown has been terminated.

USCIS is functional because it is a fee-for-service agency. Biometrics collection is used for many immigrant applications, as well as for re-entry permits required for multinational employees who have a green card through employment but are currently stationed overseas. Biometric services for employees are also still being collected.

US Department of State consulates are currently functional, processing visa stamps and interviews. These services are supported by a mix of fees and federal budget allocation: if the shutdown is prolonged, or if there is a budgetary crisis, then there may be a suspension of services at the consulates for both US citizens and non-citizen consular services. The budgetary crisis could impact both employment-based and other categories of visa issuance, including visitor and business visas. If business travelers want to attend or plan to attend meetings and conferences in the US, please plan to obtain a visa while consular services are still available.

The Social Security Administration is open with limited service; issue of Social Security cards has been suspended. Hence, new visa-based employees will be unable to obtain new social security numbers, which could impact I-9 forms. Although collection of social security numbers is optional, if the employer is an E-verify employer, the employer is required to collect a social security number for work authorization verification. Certain federal and state contractors are also mandated to collect this information. To alleviate this problem, the 3-day rule for E-verify is suspended for those cases affected by the shutdown. Employers may not take adverse action against employees because of the employee’s E-verify interim status.

Wage payments to some new non-immigrants may be a problem because of the non-availability of the social security number. New J non-immigrant visa holders who cannot obtain social security numbers should approach their sponsoring agency for direction.

E-verify is unavailable during the shutdown. Consequently, USCIS, which administers the program, will not be issuing non-confirmation letters (TNC), and employers will be unable to verify work authorization of new employees. Current time to process TNCs has been extended; but the obligation to collect, maintain and process Form I-9 continues as an employer mandate.

Border security is an essential service – there will be no shutdown of services at the border, but travelers are expected to face slowdowns in screening and higher security.

US Passport services, which are a fee-for-service program, are not affected by the slowdown. Of course the severity of the impact will depend on the length of the shutdown. We will post updates as they become available.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
St. Louis, Missouri

The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Tara Mahadevan

Copyright 2013. All rights reserved.

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Identity Theft

Was a victim of identity theft


I met a friend yesterday who told me that his identity was stolen a few weeks ago. Then a friend’s daughter from Cleveland told me the same thing.  I too was a victim of identity theft a few years ago. The thief changed my address and charged 20K to my card. Not a pleasant experience. The bank seemed to think it was my fault. I had to file an affidavit that I had not stolen my own credit card!! Recently, I was at a gas station when I noticed the customer in front of me open their wallet and had their social security card and driver’s license on either side of their wallet in all its shiny glory! I have read recent reports that affluent consumers and people with excellent credit could be at higher risk for identity theft. So here are my thoughts on the subject of what to do and how to prevent it.

Of course, please do not carry your social security (SS) card in your wallet, nor a copy of the card. If your SS # has been lifted, get a new SS # from the Agency. See Social security and Identity Theft, for more information on this subject. Don’t write your PIN number on your check cards. Find a number you can remember and memorize it. Don’t use your birthdate or your anniversary or your children’s birthdays as PIN numbers. Thieves find these easy to locate. Make photocopies of your credit cards. If your wallet is stolen or your identity stolen, make a police complaint and obtain the complaint number.  Report it to the credit reporting agencies at Experian fraud alert, Equifax, and Transunion.  Their phone numbers are Phone: 800-525-6285 or: 404-885-8000 (Equifax); and Phone: 888-397-3742 (Experian) and Phone: 800-680-7289 (Transunion). In general, a fraud alert for 90 days or 7 years is a good start to prevent further thefts or even to prevent one. You can also freeze your credit, so that no one including you can open a new credit card or other line of credit without alerting you. Your financial institution also has paid services to alert you to changes. If you are going out-of-town, don’t alert your followers on Twitter, Facebook and other social media! Thieves are followers too! Military active duty personnel can make an active duty fraud alert posted to their file. File a security alert or victim statement with all national credit bureaus; inform each creditor, document all the contacts (names, telephone numbers, dates, times, subject/details of your talk with the creditor’s representative). Every creditor has a different process, so make sure you understand what is expected of you. Above all make a note of the details. Follow up on the phone calls and keep the notes in a file so that you can monitor your credit cards and accounts when a new fraud shows up. You can add an Extended Fraud Victim Alert to your report by submitting a copy of a valid identity theft report that you have filed with a Federal, State or local law enforcement agency. An Extended Alert will remain on your report for seven years. When you get mail, shred or tear up credit card solicitations, review your credit report every 6 months, pay attention to your credit card transactions, do not leave your mail unattended in a public place, keep track of when statements arrive, better yet, let your statements come to your email inbox. Don’t give out personal information over the phone, and don’t list your phone number. Electronic: Install firewalls and internet anti virus software, don’t open emails from unknown senders, don’t use public computers to search your personal email accounts and bank accounts. Change your passwords periodically. At work, avoid leaving your handbag or wallet on your desk or unsecured, sensitive documents like bank and pay stubs should not be placed in plain view for all to see. Above all, do not send your social security number over email.

Be safe, and see you in my next post.

Nalini S Mahadevan, JD, MBA

Attorney at Law

www.lawyersyoucantalkto.com

Copyright 2010.  All rights reserved.

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