Recent changes to employing foreign workers

April 2015
Elaine C. Young
Utah Employment Law Letter

This month, we take a survey of recent changes affecting employers’ ability to attract and retain foreign workers.

L-1B visa denials According to U.S. Citizenship and Immigration Services’ (USCIS) data released under a Freedom of Information Act request, the denial rate for L-1B petitions rose to historic highs in federal fiscal year 2014.

The L-1B classification is used by highly skilled intracompany transferees who come to the United States from a foreign affiliate, parent, subsidiary, or branch and possess specialized or advanced knowledge about a company’s processes or procedures. While every business immigration lawyer knows that USCIS reviews L-1B petitions with an unusually high standard of scrutiny, the data were still surprising. Data revealed that the denial rate for L-1B petitions rose from 6% in 2006 to 35% in 2014.

Some practitioners wonder whether there is an element of national origin discrimination or profiling in the adjudication process. The denial rate was higher for Indian nationals (56%) compared to the average denial rate of 13% for all other countries. Chinese nationals suffered a denial rate of 22%. Mexican nationals were denied 21% of the time, while Canadians experienced only a 4% denial rate. The rate of requests for evidence is also much higher now, rising from 2% in 2006 to 45% in 2014.

Suspension of the H-2B program The U.S. Department of Homeland Security (DHS) temporarily suspended adjudication of H-2B petitions for temporary nonagricultural workers while it considered its response to a court order issued on March 4, 2015, in Perez v. Perez, a case arising in northern Florida. Likewise, the U.S. Department of Labor (DOL) stopped accepting and processing requests for prevailing wage determinations and applications for temporary labor certification under the H-2B program, which are prerequisites for the DHS petitioning process. News of the H-2B problems has created chaos in industries that rely on seasonal workers, including the tourism, landscaping, construction, and fishing industries.

The DOL filed an unopposed motion to stay (delay) the Perez order until April 15, and the DHS resumed adjudicating H-2B petitions based on temporary labor certifications issued by the DOL. Expect a joint interim final rule on the H-2B program from the DHS and the DOL by April 30.

Work authorization for H-4 spouses Effective May 26, 2015, the DHS will extend eligibility for employment authorization to some H-4 spouses of H-1B workers who are seeking employment-based green cards. This development has been in the works since before President Barack Obama announced his executive action on immigration reform in November 2014. The change was finalized during the push to implement the Executive Orders.

The change will be an important benefit to H-1B families. To date, H-4 spouses have not been authorized to work. Since the wait time for a green card can be more than five years in addition to the time an H-1B worker is granted for an initial stay, some spouses have waited more than a decade to start employment. We field complaints from many H-1B families about the personal stresses and economic burdens associated with the lack of spousal work authorization.

Eligible applicants will include H-4 dependent spouses of H-1B workers who are the principal beneficiaries of an approved Form I-140 Immigrant Petition for Alien Worker or who have been granted H-1B status under Sections 106(a) and (b) of the “AC-21” legislation, which permits some H-1B workers to extend their stay beyond the normal six-year period.

If you have immigration questions, feel free to e-mail them to Elaine Young or Jacob Muklewicz at newsletter@kmclaw.com. We will try to address them in upcoming “Immigration Alert” columns.