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Update: H-1B Visa, India & China Retrogression and I-9 Inspections

By Janet Cheetham and Joel Paget

Going Fast: H-1B Specialty Occupation Visas

For employers hiring foreign nationals with college degrees, or equivalent experience, the H-1B Specialty Occupation Visa remains popular. Unfortunately, Congress has allotted only 65,000 H-1B visas, plus 20,000 for those holding a Master’s Degree, for the 2013 federal fiscal year. Since USCIS began accepting these petitions on April 2 of this year, 25,600 have already been processed. Because of the time needed to prepare the petition, it is important for employers to begin filing for current employees on student employment status or potential new employees. With such large activity, the numbers could run out as early as July or August 2012. Any delay in submitting your petition could mean waiting until the next fiscal year of October 1, 2013 to hire a potential employee. Act now before it is too late.

India and China Retrogression

Employees from India, China and other countries will be waiting longer for permanent visas and for authorization for their spouses to work. The Department of State notified us that the cut-off date for Employment Based Category 2 applications for permanent residency for persons born in India and China has retrogressed to August 15, 2007. The cut-off date was May 1, 2010 for anyone filing in April 2012. The cut-off date is the priority date which is the filing date of the Labor Certification Application or the Petition for Permanent Residency.

Is an I-9 Inspection Coming Your Way?

USICE continues to carry through with its 1,000 Form I-9 inspections. We have heard of an increase in I.C.E. agents visiting work sites in Washington State to check on I-9 compliance. I.C.E. agents are required to provide employers 72 hours to provide the I-9’s for the agency to review. It is therefore more critical than ever to perform a self-audit on all of your I-9’s now to help avoid potential fines and penalties. If agents from USICE or the Department of Labor show up at your office be sure to contact us immediately.

During an audit, ICE demands the surrender of I-9 forms within three days. Given this short timeframe, employers should make every effort to bring their I-9 forms into compliance by ensuring the following:

1. There is an I-9 for every employee hired after November 6, 1986 who is currently employed or was employed within the last three years.

2. I-9 forms are completed and signed by both the employee and the employer.

3. Expired documents are updated (corrections need to be initialed and dated as of the current date, forms cannot be backdated).

Employers need to be proactive and conduct internal audits to ensure that a meaningful immigration compliance policy is in place

Janet Cheetham and Joel Paget are attorneys in Ryan, Swanson & Cleveland, PLLC’s Immigration Group. Janet can be reached at 206.654.2235 or cheetham@ryanlaw.com. Joel can be reached at 206.654.2215 or paget@ryanlaw.com. This message has been sent to by the Immigration Group at Ryan, Swanson & Cleveland, PLLC to advise you of recent developments in the law. Because each situation is different, this information is intended for general information purposes only and is not intended to provide legal advice on any specific facts and circumstances. Ryan, Swanson & Cleveland, PLLC is a full-service law firm located in Seattle, Washington.


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