News, commentary and legal updates from Fisher & Phillips attorneys
who assist employers with cross border employment matters.

DHS Extends Employment Authorization Documents For Certain Dependent Spouses of H-1B Visa Holders

February 24, 2015 08:07
by Cynthia J. Yarbrough

U.S. Citizenship and Immigration Services (USCIS) Director León Rodríguez announced today that, effective May 26, 2015, the Department of Homeland Security (DHS) will allow H-4 dependent spouses of certain H-1B nonimmigrants to apply for employment authorization.

Eligible individuals include H-4 dependents where the H-1B spouse:

•Is the principal beneficiary of an approved Form I-140, Immigrant Petition for Alien Worker; or

•Has been granted H-1B status under sections 106(a) and (b) of the American Competitiveness in the Twenty-first Century Act of 2000 (AC21), which permits H-1B nonimmigrants seeking lawful permanent residence to work and remain in the United States beyond the six-year limit on their H-1B status.

Sections 106 (a) and (b) of AC21 apply to H-1B nonimmigrants where 365 days or more have passed since the filing of a labor certification application, Form ETA 9089, or 365 days or more have passed since the filing of the I-140 immigrant petition.

Eligible H-4 dependent spouses will be required to file Form I-765, Application for Employment Authorization, with supporting evidence and the required $380 fee in order to obtain an employment authorization document (EAD). USCIS will begin accepting applications on May 26, 2015. Once USCIS approves the Form I-765 and the H-4 dependent spouse receives an EAD, he or she will be able to apply for a U.S. Social Security Number and may begin working in the United States.

Despite the fact that the USCIS is not currently accepting applications for Employment Authorization under this program, individuals who believe they may be eligible should start to gather evidence establishing identity, spousal relationship to the H-1B nonimmigrant, current status documentation, and eligibility under the program. We will continue to monitor the development of this new policy and provide updates as new information becomes available.

For more information visit our website at or contact any member of our Global Immigration Practice Group at 404-231-1400.

H-1B | H-1B Visa | Immigration


President Obama Announces Executive Action on Immigration

November 21, 2014 00:41
by Kim Kiel Thompson

President Obama has announced his plan for what he says is a partial fix of the U.S. immigration system. Through this Executive Action, more than four million undocumented individuals will get relief from deportation and will have the opportunity to apply for temporary work authorization under what is being called Deferred Action for Parental Accountability (DAPA), expand the Deferred Action for Childhood Arrivals (DACA) program, strengthen border security measures, expand provisional waivers to include spouses and children of lawful permanent residents (LPR), and support high-skilled businesses and workers.  

For more details on the Executive Action on immigration read the Fisher & Phillips Legal Alert of the firm’s website.

Immigration | Reform Law | Work Authorization | Undocumented | Deferred Action | Deportation


Automatic Extension & I-9 Form Verification For Temporary Protected Status in the U.S.

October 27, 2014 07:17
by Kim Kiel Thompson


Temporary Protected Status (TPS) is available in the United States for individuals from foreign states where the U.S. Attorney General (AG) has determined that conditions in that country would result in a threat to the personal safety of individuals if they returned home (e.g., armed conflict, epidemic, or earthquake).   Currently, the following countries have been designated for TPS: El Salvador, Haiti, Honduras, Nicaragua, Somalia, Sudan, South Sudan, and Syria.  Once an individual has been granted TPS, he/she is not removable from the U.S., can apply for an employment authorization document (EAD), and may be granted travel authorization.

Each TPS country has a corresponding expiration date for all TPS EAD cards.  The applicable expiration date can be found on the U.S. Department of Citizenship and Immigration Services (USCIS) website. For example, the current EAD expiration date for El Salvador is March 9, 2015. If threatening conditions continue to exist, the AG may grant an extension of the TPS designation.  When that occurs, the TPS foreign nationals are eligible to apply for an extension of their EAD. 

The U.S. Department of Homeland Security may issue a blanket automatic extension of expiring TPS EADs for a specific country when they anticipate that there will be delays in processing EAD renewal applications.  Automatic extension information may be found on the USCIS website (see above link).   For example, the EADs for Haiti have been automatically extended through January 22, 2015.  An employer in the U.S. may accept an expired EAD that has been auto-extended to complete the Form I-9 Employment Eligibility Verification process for new hires or to re-verify continuing employment if:

  • The category on the EAD is either A-12 or C-19; and
  • The expiration date of the last re-registration period is listed and corresponds to the USCIS information.

For new hires, enter the document name, document number and the auto-extended expiration date under List A in Section 2 of the Form I-9.  For current employees, in Section 2 draw a line through the old expiration date and enter the auto-extended expiration date and write “EAD Ext.” in the margin and initial and date with the current date.  If the employee will continue to work beyond the auto-extended expiration date, the employer must re-verify the employee’s employment authorization no later than the auto-extended expiration date.  

I-9 | Immigration | Temporary Protected Status | Work Authorization

H-3 Visa – Training in the U.S. to Further a Career at Home

November 11, 2013 03:40
by Kim Kiel Thompson

Training in the U.S. may be required to prepare a foreign national for a new position or a new career in his or her home country. The H-3 Trainee visa category may be the perfect option for the foreign national to gain the skills and tools needed to advance in a career or launch a new venture.

The H-3 visa provides foreign nationals with training in the U.S. that is unavailable to them in their native country and will prepare them for work outside the U.S.  The H-3 trainee must not fill a position that results in productive employment (expect where it is incidental and necessary for the training) or be one in which a U.S. worker would normally be employed.  A successful H-3 visa petition will include a detailed training program that includes the structure of the program, time periods for each phase of the training, the kind and percentage of training (classroom instruction, on-the-job training, productive, etc.), how the H-3 trainee will be evaluated as to the successful completion of each phase, a description of the training personnel and facilities available, and goals for each phase. The petition must also describe why the training is not available in the foreign national’s home country, how it will prepare the foreign national for work in the home country, and how the training will benefit the U.S. company providing the training.

The H-3 visa petition first must be approved by the U.S. Citizenship and Immigration Services (USCIS) and once approved, the foreign national may apply for the H-3 visa at an U.S. Consulate.  The H-3 training program may be for a period of up to two years and dependents can accompany the H-3 visa holder to the U.S. (although they will not be authorized to work).  The H-3 foreign national would normally be required to spend at least six months at the conclusion of the training period outside the U.S. before changing status to an H or L visa.

The H-3 Trainee visa may be the solution when other trainee visa categories (e.g., J-1 Exchange Visitor or B-1 Business Visitor) are not suitable – perhaps because the training will be outside the trainee’s field of study, the trainee will be paid on the U.S. payroll, or the training program is for a longer period than granted in the other trainee categories.  The H-3 visa category is not subject to an annual quota or the supplemental USCIS filing fees that can come into play for other temporary work visas, such as the H-1B Professional or L-1 intra-company transfer categories. 

The next time you have a need for training in the U.S., try the H-3 on for size.  It may be the perfect fit.


Immigration | Work Authorization | H-3 | Training | B-1 | J-1 | Trainee

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New Immigration Reform Bill Introduced in United States Legislature

October 10, 2013 02:50
by Jessica T. Cook

On October 2, 2013, members of the Democratic Political Party in the U.S. House of Representatives introduced H.R. 15, “The Border Security, Economic Opportunity, and Immigration Modernization Act”.  H.R. 15 is a comprehensive immigration reform bill mirrored after the U.S. Senate’s immigration reform bill S. 744, which passed the U.S. Senate in June with a bipartisan vote of 68 to 32. 

House Democrats’ immigration bill is essentially the same as the Senate’s bill.  It has the same name and many of the same provisions as the Senate bill, including providing legal status and a pathway to citizenship for undocumented immigrants, making changes to the current immigration system, creating new visa categories and requiring employers to use E-Verify. 

The main difference in the House Democrats’ bill relates to the issue of border security.  The House Democrats’ bill removes the Corker-Hoeven border security amendment, also known as the “border surge” amendment.  The border surge amendment included requirements to increase the number of federal border agents and build a 700 mile fence along the southern border.  In the House Democrats’ bill, the border surge amendment is replaced with Rep. Michael McCaul’s Border Security Results Act, H.R. 1417, which requires the Secretary of Homeland Security to develop a comprehensive strategy plan to gain and maintain operational control of the country’s international borders.

House Democrats are hopeful that introducing this bill will allow the U.S. House of Representatives to move forward with developing and passing comprehensive immigration reform legislation.

Immigration | Legislation


Automatic Visa Revalidation - Skip the Daunting Visa Interview at the U.S. Consulate Abroad

July 24, 2013 23:20
by Shanon R. Stevenson

Many global companies regularly send workers to train or attend meetings in Canada or Mexico.  One issue often facing these employers is having to factor in the time and expense for their foreign workers to attend daunting visa interviews at the U.S. Consulate abroad to renew expired U.S. visas before being allowed back into the U.S. to resume their U.S. responsibilities.  The Automatic Visa Revalidation Rule resolves this issue by permitting foreign nationals with expired nonimmigrant visa stamps to travel to Canada, Mexico or a contiguous territory for thirty days or less without obtaining a new visa for re-entry into the U.S.   

In order to take advantage of the Automatic Revalidation Rule upon re-entry into the U.S., the foreign national employee must show that s/he has:

  • maintained lawful nonimmigrant status in the U.S., such as a H-1B work visa, and intends to resume valid nonimmigrant status in the U.S.;
  • a valid passport with an expired nonimmigrant visa stamp, such as an H-1B;
  • an unexpired I-94 Arrival/Departure record endorsed by the Department of Homeland Security to show an unexpired extension of stay in a nonimmigrant status, such as an H-1B;
  • a flight itinerary showing that s/he is applying for readmission after an absence not exceeding thirty days solely in a contiguous territory;
  • not applied for a new visa at the U.S. Consulate while s/he was abroad;
  • the status of not being a national of a country identified as supporting terrorism (nationals of Iran, Syria, Sudan, and Cuba are not eligible for automatic revalidation);
  • an expired visa stamp (automatic revalidation does not apply to the Visa Waiver Program); and
  • approval notices for extensions of stay to show that s/he is applying for readmission within the authorized period of extension of stay.

In the case of F-1 students and J-1 trainees, automatic revalidation applies to contiguous territory and adjacent islands other than Cuba.  An M-1 student can only apply for automatic revalidation readmission after an absence of less than 30 days solely from contiguous territory. 

Contiguous territories are simply any country sharing a common boundary with the United States.  Therefore, Canada and Mexico are the contiguous territories to the United States contemplated in the automatic visa revalidation regulation.  Adjacent islands, however, are defined by statute and regulation.  The Adjacent Islands are Anguilla, Antigua, Aruba, Bahamas, Barbados, Barbuda, Bermuda, Bonaire, British Virgin Islands, Cayman Islands, Cuba, Curacao, Dominica, the Dominican Republic, Grenada, Guadeloupe, Haiti, Jamaica, Marie-Galantine, Martinique, Miquelon, Montserrat, Saba, Saint Barthelemy, Saint Christopher, Saint Eustatius, Saint Kitts-Nevis, Saint Lucia, Saint Maarten, Saint Martin, Saint Pierre, Saint Vincent and Grenadines, Trinidad and Tobago, Turks and Caicos Islands, and other British, French and Netherlands territory or possessions bordering on the Caribbean Sea.

Although the U.S. Customs and Border Protection officers are trained on the Automatic Visa Revalidation Rule, not all officers apply it correctly.  Therefore, employers should arm their foreign workers with a letter from their immigration attorney explaining the Automatic Revalidation Rule’s application to the specific employee.

Chile | H-1B | H-1B Visa | I-94 Card | ICE | Immigration | Mexico

Healthcare Reform And Seasonal Guest Workers

July 2, 2013 10:20
by Steven A. Witt

Many employers are eagerly watching the U.S. Congress as it debates comprehensive immigration reform legislation.  However, employers of foreign workers need to be aware of another comprehensive reform already enacted—the Affordable Care Act (“ACA”).

As discussed in a previous post, the U.S. Internal Revenue Service (“IRS”) is currently in the process of finalizing its regulations implementing the ACA’s “pay or play” employer obligations, or more commonly, the “Employer Mandate.”  The Employer Mandate, which becomes effective January 1, 2015*, generally requires “large” employers to offer their full-time employees (and their dependents) the opportunity to enroll in “minimum essential coverage” under an eligible employer-sponsored healthcare plan or face a tax penalty. 

The definition of “full-time employee” is not limited to U.S. citizens.  Rather, the primary determination for purposes of the Employer Mandate is based on hours worked by employees for U.S.-source income under the Internal Revenue Code.  Thus, U.S. employers of foreign workers must take them into account for purposes of the Employer Mandate. 

This can be particularly tricky for employers of temporary foreign workers, such as seasonal guest workers in the agricultural industry under the H-2A visa program.  “Full-time employees” are employees who are employed on average 30 or more hours per week with respect to any month (or 130 hours of service in a calendar month), provided the compensation for those hours constitutes U.S.-source income.  A seasonal worker may fall under the definition of "full-time employee," and thus may expose his or her employer to liability should that employer fail to offer requisite coverage.

An employer may ask how it is expected to determine whether a newly-arrived seasonal guest worker should be classified as a full-time employee given the variable nature and hours of the work and the fact that the workers are constantly in flux and often leave the country in-between seasons.  The IRS’s proposed regulations permit the use of “look-back” measurement periods for purposes of determining whether a seasonal worker satisfies the requirements to be considered a full-time employee.  Under this “look-back” analysis, if a new seasonal worker has on average at least 30 hours of service per week during an initial measurement period, the employer must treat the employee as a full-time employee during the corresponding stability coverage period that begins after the initial measurement period has ended.

Agricultural guest workers are, by their very nature and legal status, temporary, seasonal workers.  This makes the analysis much more difficult.  Under the proposed regulations, employers may use up to year-long measurement and stability periods to determine full-time employee classifications.  In so doing many, if not virtually all, guest workers will never remain employed by their employer for a full measurement or stability period.  Even if the employer used shorter measurement and stability periods, many guest workers would still not remain employed for full periods.

Further complicating things is a “break in employment” provision, which lays out that a certain period must elapse before an employee may again be considered a “new employee” following a termination and re-hire or other resumption in service from an absence from that employer.  The reasoning behind the provision is to attempt to prevent employers from manipulating the system by intentionally terminating and then rehiring employees for purposes of restarting waiting periods and measurement periods.  However, for guest workers in the agricultural workers, breaks in employment are dictated by growing seasons, employer needs, and visa restrictions, not for purposes of evading the Employer Mandate.

A number of agricultural interests have requested clarification, delays in implementation, and various exemptions from the IRS regarding guest workers and the Employer Mandate, raising the difficult issues discussed above and many others.  It remains to be seen if the IRS will address such concerns in its final regulations.

Meanwhile, comprehensive immigration reform legislation will also likely have implications for employers and the Employer Mandate.  The bill that recently passed the Senate drastically alters the nation’s immigration laws, including replacing the H-2A visas and instituting a new “non-immigrant agricultural worker” program.  It also adds a “blue card” system for undocumented workers’ path to citizenship.  Some in the U.S. House of Representatives have declared the Senate’s bill “dead on arrival.”  However, given current political realities, it is likely some form of a comprehensive overhaul of the U.S.’s immigration laws will ultimately pass this year.

As a result, employers of guest workers subject to the Employer Mandate should be watching both Congress and the IRS closely in the upcoming months.  The Employer Mandate becomes effective in less than half a year, and clarification in this area is very much needed.

* On July 2, 2013, the Obama Administration issued guidance delaying the effective date of the Employer Mandate from January 1, 2014 to January 1, 2015.

Healthcare Reform | Immigration

FY 2014 H-1B Cap Reached Within the First Week

April 16, 2013 02:35
by Jessica T. Cook

On April 5, 2013, U.S. Citizenship and Immigration Services (USCIS) announced that it had received enough petitions to meet the statutory H-1B cap of 65,000 new H-1B visas to be issued each year.  The H-1B visa category is used by U.S. businesses to employ foreign workers in a “professional” or “specialty occupation” position. USCIS also announced that it received enough petitions to meet the 20,000 advanced degree exemption.  USCIS reported receiving approximately 124,000 H-1B petitions within the first week of the filing period. 

On April 7, 2013, USCIS selected the H-1B petitions to be processed using a computer generated random selection process, known as a lottery.  H-1B cap subject petitions received after April 5, 2013 or not selected for processing in the lottery will be rejected and returned to the petitioner along with the filing fees.  USCIS has started to issue receipt notices for premium processing cases selected for processing.  

H-1B petitions for extensions of stay or change of employer for workers who are currently in H-1B status do not count towards the H-1B cap and USCIS will continue to accept petitions for individuals in those categories.  USCIS will also continue to accept petitions for employers exempt from the H-1B cap, including institutions of higher education, nonprofit entities affiliated with an institution of higher education, and nonprofit research organizations. 

If you missed the H-1B filing window or your petition was not selected for processing, you should contact one of the lawyers in the Global Immigration Practice Group to discuss whether there are other options for employing your foreign national.


H-1B | H-1B Visa | Immigration | Work Authorization


USCIS Finally Releases New Form I-9

March 13, 2013 10:16
by Shanon R. Stevenson

On March 8, 2013, U.S. Citizenship and Immigration Services (USCIS) announced the release of the new I-9 Employment Eligibility Verification Form.  All employers are required to use the new I-9 immediately to verify the identity and employment authorization eligibility of their employees.

Although USCIS requires employers to use the new Form I-9 beginning March 8, 2013, USCIS has provided a 60-day grace period for employers to continue to use the current version of the form issued 08/07/09 (the 02/02/09 version is also still valid) until May 7, 2013.  Failure  to ensure proper completion and retention of Forms I-9 may subject an employer to civil money penalties of up to $1,100 per I-9, and, in some cases, criminal penalties.  Although the new two-page Form I-9 mainly contains format changes, additional data fields, and further instructions to the employer, it increases the administrative burden placed on employers. 

Here is a section-by-section summary of the changes to the Form I-9:

Section 1: Employer Information and Attestation

  • fields are added to list the employee’s email address and telephone number, but are optional; and
  • employees who check “An Alien Authorized to Work Until….” and who were issued an I-94 card, will also need to list the foreign passport number and country of issuance.

Section 2: Employer Review and Verification

  • employers will need to list employee’s full name at the top of Page 2;
  • List A now has room to list three documents, which is helpful to the employer because the prior form only had room for two documents, and there are occasions when three documents are required, e.g., J-1 visa holders or F-1 students completing Optional Practical Training;
  • the certification box adds numbers to the items the HR representative must attest to when reviewing the documents and separates out the place where the employer is required to insert the employee’s first date of work for pay;
  • the List of Acceptable Documents, List A, Number 5 has revised language but essentially includes the same information regarding accepting foreign passports and I-94 cards;
  • the List of Acceptable Documents, List C, Number 1 provides clarification that Social Security  Cards containing restrictions, such as “Not Valid For Employment,” “Valid for Work Only with INS Authorization,” or “Valid for Work Only with DHS Authorization” are not acceptable as List C documents; and 
  • the List of Acceptable Documents includes a reference to Section 2 of the Handbook for Employers regarding information about acceptable receipts.

Section 3: Reverification & Rehires

  • provides clarification that List B identity documents do not require reverification; and
  • adds a field for the Employer representative to print his or her name.

To avoid discrimination claims, do not complete the new Form I-9 for current employees for whom there is already a properly completed Form I-9 on file, unless reverification applies.  Now is the time to ensure that all your personnel  responsible for completing the Form I-9 are trained on the new form.  If you have any questions or need additional information, visit our website at or contact any member of the Fisher & Phillips Global Immigration Practice Group.

'Tis The Season - H-2B Temporary Worker Program Under Fire From the USDOL Wage and Hour Division

December 3, 2012 01:52
by Kim Kiel Thompson

During the holiday season, many companies supplement the year-round workforce with temporary workers, including foreign workers employed under the H-2B temporary worker program.  The United States Department of Labor Wage and Hour Division (USDOL) has been ramping up its investigation and audit process for H-2B program users.  If your company relies on the H-2B program to meet seasonal or peak needs, make sure that you are in compliance with all program requirements.

In order to employ H-2B temporary workers, an employer must prove to the USDOL that the H-2B job is temporary (seasonal, peak-load, intermittent need or a one-time occurrence), that no U.S. workers are available to fill the temporary positions (accomplished by conducting specific recruitment steps), and that the wages and working conditions of U.S. workers will not be adversely affected by the employment of H-2B workers.

Over the last six months, the USDOL has significantly increased the number of audit notifications issued to H-2B program users.  The audit notices seek:

• earnings records for both H-2B and U.S. workers in the temporary position (including the worker’s home address, number of hours worked, rate of pay, total earnings for the pay period, amount and reason for any deductions, and an explanation for any differences in wages between workers performing the same duties);
• an explanation of how you fulfilled your work obligations in the event that you did not employ the number of temporary workers the USDOL certified;
• evidence that the job opportunity was open to qualified U.S. workers and the reason(s) why you rejected any U.S. worker applicant;
• copies of agreements with foreign labor contractors or recruiters showing that you prohibit that entity from seeking or receiving payments from prospective employees (except for deductions that are allowed by law);
• a copy of the job order placed with the State Workforce Agency in the area of intended employment; and
• copies of the required advertisements placed in a newspaper or professional, trade, or ethnic publication.

Failure to provide all of the requested information could result in supervised recruitment for up to two years, revocation of a H-2B certification, and/or debarment from participation in the program for up to five years.  Employers are required to retain H-2B documents for a three year period.

The USDOL also may conduct investigations into a company’s use of the H-2B program (which could result from the audit process or based on a complaint).  If the USDOL finds violations during an investigation, including willful misrepresentation of a material fact during the labor certification process (e.g., misrepresenting the date of need or the number of workers needed), substantial failure to comply with the terms and conditions of the program (e.g., placing workers at locations or in jobs not listed on the labor certification application or failing to notify the USDOL and the U.S. Citizenship and Immigration Services of premature departures of H-2B workers), or willful misrepresentation of a material fact during the visa application process, it could access sanctions for recovery of unpaid wages, for civil money penalties (CMPs) up to $10,000 per violation, and/or debarment for up to five years.  When determining the amount of any CMPS or recommending debarment, the USDOL takes into consideration any history of previous violations, the number of H-2B workers affected by and the seriousness of the violations, and whether U.S. workers were harmed as a result of the violations. 

If your holiday season workforce (or at any other time during the year) includes H-2B temporary workers, it is critical that all program requirements are being met and that you can show good faith compliance.  If the USDOL comes down the chimney this year, make sure you are on their “good” list.




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