05.26.2011 May 2011 Immigration Update
Employers Should be Mindful of Potential Visa Pitfalls – Visas are “Category-Critical”. According to news sources on May 25, 2011, Infosys Technologies Ltd., a large Indian software concern known as an outsourcing company that provides India-based computing and other technology services, is apparently being investigated by U.S. Immigration and Customs Enforcement with respect to its use of B-1 business visas. The company has stated that it has received a subpoena from a grand jury in the United States District Court for the Eastern District of Texas requiring it to provide information regarding its sponsorship for, and use of, B-1 business visas. The investigation appears to have been prompted by a lawsuit filed in an Alabama state court by an Infosys employee alleging that the company misused the B-1 visa program. At the heart of this investigation is the fact that U.S. visas are category-critical, meaning that each visa category is intended for a separate and distinct purpose. In the case of Infosys, the company is alleged to have supported B-1 visa applications by its employees to come to the United States for purposes more suited to another employment-authorized category known as the H-1B visa category.

Whereas an H-1B visa category permits U.S. employment, it is more costly and harder to obtain, and is limited by an annual quota of 65,000 available visas (plus an additional quota for persons with advanced degrees). The B-1 visa category, on the other hand, is cheaper and faster to obtain and is not subject to a quota, but does not authorize employment in the United States. More specifically, the B-1 visa category is intended for foreign nationals who are seeking to enter the United States for relatively short periods of time to engage in commercial transactions, such as negotiating contracts, litigation, and consulting with clients or business associates; to participate in various types of conventions and meetings; and to engage in certain other activities, none of which amount to gainful employment. Given the rigorous demands of business and the need to keep visa costs and processing times down, there is sometimes a temptation to characterize a foreign national’s intended activities in a manner that, on the surface, may appear to fit the B-1 visa category, when such intended activities, on closer scrutiny, amount to gainful employment. The lesson here for HR professionals and others is that great care should be taken to match a person’s proposed visa category with such person’s intended duties while in the United States. With greater scrutiny by consular and immigration officials and as the Infosys case illustrates, it is better to follow a more measured course and stay as clearly as possible within the activities permitted for a given visa category. Decisions driven by cost savings and expediency can land a company in hot water.

Additional Immigration Updates and Alerts.

H-1B Count and Usage for FY2012. USCIS has been accepting H-1B petitions for FY2012 since April 1, 2011. H-1B petitions are filed to obtain visas for individuals who are entering the United States to engage in a ‘specialty occupation’ (i.e., professionals). As of May 20, 2011, 12,300 petitions have been filed towards the quota of 65,000 regular cap cases, and 8,500 petitions have been filed towards the quota of 20,000 master’s cap cases. We are now 55 days into the filing season. To gauge the current rate of H-1B quota usage, it is helpful to note that H-1B visa slots were all used up within a day or two of the opening of the filing season (i.e., on April 1st) for FY2008 and FY2009. H-1B visa slots were used up within 264 days of the opening of the filing season for FY2010, and within 300 days of the opening of the filing season for FY2011. At the current rate of use, regular cap slots may be used up within 290 days of April 1st, and master’s cap slots may be used up within 129 days of April 1st. However, given that the rate of H-1B visa usage is entirely unpredictable and may accelerate as the economy improves, these estimates should not be relied upon. The wiser and safer course of action by every employer is to identify its workforce needs and to file H-1B petitions as soon as such needs are determined.

USCIS has Issued a Final Rule on Employment Eligibility Verification Questions and Answers. According to an April 14, 2011 U.S. Citizenship and Immigration Services (USCIS) release, a final rule has been adopted, without change, for the interim rule (which has been in effect since April 3, 2009) to improve the integrity of the Employment Eligibility Verification (Form I-9) process. Employers and others are required by the process to verify the identity and employment authorization of each person they hire for employment in the United States (see section 274A(a)(1)(B) of the Immigration and Nationality Act, 8 U.S.C. 1324a(a)(1)(B)). The main changes made to the Form I-9 process by the interim rule and adopted by the final rule include prohibiting employers from accepting expired documents for completion of Form I-9 and adding and modifying several documents on the Lists of Acceptable Documents. The final rule became effective on May 16, 2011. According to the USCIS release, the final rule confirms that no new Form I-9 is being issued, and that employers may continue to use the current version of the Form I-9 (Rev. 08/07/2009), or the previous version (Rev. 02/02/2009). 

For more information about this topic, please contact the author or any member of the Williams Mullen Immigration Team.

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