Wyatt Employment Law Report

H-2B Random Selection Process to Begin July 2019

By Glen Krebs

The Department of Labor’s (“DOL”) Office of Foreign Labor Certification (“OFLC”) has announced a plan to change the way it handles the ETA-9142B form which begins the H-2B application process.  Beginning July 3, 2019, all H-2B applications submitted to the National Processing Center (“NPC”) in the first three days of the filing period will be collected.  The filing period begins 90 days before the date of need, so for a date of need beginning October 1, 2019, the filing period begins on July 3, 2019.  On the fourth day of the filing period (July 6), the OFLC will conduct a random selection process on all applications collected by the NPC in the first three days.  Applications covering the first 33,000 H-2B workers will be assigned to Group A.  The Group A applications will then be assigned to NPC analysts in the order of the random selection.   If there are applications for more than 33,000 workers, the remaining applications will be assigned to Group B, Group C, etc. after the random selection process is complete.  Each subsequent group will cover 20,000 H-2B workers.  If there are not 33,000 H-2B worker applications in the first three days, after the random selection process is complete, processing will continue in the normal fashion based on when the application is received by the NPC.

Employers will receive either a Notice of Deficiency or a Notice of Acceptance just as in prior years.  It is in the employers’ best interest to be prepared to conduct their recruitment and submit their reports quickly.  That will allow them to receive Temporary Labor Certification and submit the I-129 to the United States Immigration and Customs Service (“USCIS”) before the 33,000 visas allotted in each six-month period are issued to other employers.

For questions or help with H-2B Non-Agricultural Worker visas, please contact Glen Krebs (859)288-7409.

Changes in the H-1B Visa Process

By Marianna Michael

It is time to begin working on your H-1B visa petitions for the fiscal year beginning October 2019.  The H-1B visa offers employers a means to temporarily hire international workers for positions that cannot be filled by U.S. workers.  There is a cap of 85,000 visas which can be issued, of which 65,000 are allocated for individuals who have a bachelor’s degree or its equivalent, and 20,000 are allocated for individuals who have a master’s degree or higher.  The H-1B visa is the method way many companies use to hire individuals with highly technical skills in science, technology, engineering and math.  The United States Citizenship and Immigration Services (“USCIS”) generally receives an overload of applications; 199,000 petitions were filed in 2018.

In addition to the high number of applications, there are other challenges for employers desiring to use the H-1B visas.  First, President Trump issued an executive order, “Buy American and Hire American: Putting Americans First,” which is Continue reading

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Employment Authorization Document for H4 Dependent Spouses

By Barbara W. Menefee

Photograph of a U.S. Department of Homeland Security logo.At long last, the U.S. Citizenship and Immigration Services has announced that it will begin accepting applications for employment authorization documents for the dependent spouses of H1B visa holders (“H4”) under certain circumstances. This news is welcome for the thousands of intending immigrants who are in long lines awaiting a visa to become available so that they can file applications for permanent residence in the United States. For instance, if a person from India begins the employment-based permanent residence process today, he or she can expect to wait at least 10 years before they are eligible to file an application for permanent residence in the United States. For most spouses of these applicants, that has meant ten years without the authorization to work in the United States.

The announcement specifically applies to H4s whose spouses have approved I-140 Immigrant Petitions on their behalf, or whose spouses otherwise qualify for an extension of their H1B status beyond the typical six years. This provision will Continue reading

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President Obama’s Executive Actions on Immigration

By Matthew P. Gunn

November 20, 2014, President Obama announced a series of executive actions aimed at helping to modernize some aspects of the immigration system which would encourage family unity and strengthen immigration options for foreign nationals studying and pursuing work in highly technical fields. At this point, the details for implementation of many of the initiatives outlined by the President are vague, but we will provide guidance here where possible and continue to report new details on the President’s plans as more specifics emerge.


The four main programs outlined in President Obama’s action are:

  1. Cracking Down on Illegal Immigration at the Border: the President’s actions will increase the chances that anyone attempting to cross the border illegally will be caught and sent back to his or her home country. The President’s actions will also centralize border security command-and-control to continue to crack down on illegal immigration.
  2. Deporting Felons, Not Families: the President’s actions focus on the deportation of people who threaten national security and public safety. He has directed immigration enforcement to place anyone suspected of terrorism, violent criminals, gang members and recent border crossers at the top of the deportation priority list.
  3. Accountability — Criminal Background Checks and Taxes: The President is also acting to hold accountable those undocumented immigrants who have lived in the U.S. for more than five years and are parents of U.S. citizens or Lawful Permanent Residents. By registering and passing criminal and national security background checks, millions of undocumented immigrants will start paying their fair share of taxes and temporarily stay in the U.S. without fear of deportation for three years at a time.
  4. Streamline Immigration to Boost our Economy and Promote Naturalization for Those Who Qualify.


We are not going to cover the first two points raised here because border security and removal priorities, while important to the country, are not really the subject of this article. Our purpose is to provide guidance to companies and individuals on options they and their employees have, family members and future job applicants may under the President’s plan to obtain employment authorization and/or permanent residence. Therefore, we will outline the President’s plans for points three and four listed above.


  • DHS will establish a new deferred action program for parents of U.S. Citizens or LPRs who are not enforcement priorities and have been in the country for more than five years. Individuals will have the opportunity to request temporary relief from deportation and work authorization for three years at a time if they come forward and register, submit biometric data, pass background checks, pay fees and show that their child was born before the date of the President’s announcement on November 20, 2014.
  • Under the initial DACA program, young people who had been in the U.S. for at least five years, came as children and met specific education and public safety criteria were eligible for temporary relief from deportation as long as they were born after 1981 and entered the country before June 15, 2007. DHS will expand DACA so that individuals who were brought to this country as children can apply if they entered before January 1, 2010, regardless of how old they are today. Going forward, DACA relief will also be granted for three years.

Streamline Immigration to Boost our Economy

  • Providing portable work authorization for high-skilled workers awaiting LPR status (including their spouses). DHS will make regulatory changes to allow these workers to move or change jobs more easily. Also, DHS is finalizing new rules to give certain H-4 spouses employment authorization as long as the H-1B spouse has an approved LPR application.
  • DHS will expand immigration options for foreign entrepreneurs who meet certain criteria for creating jobs, attracting investment and generating revenue in the U.S., to ensure that our system encourages them to grow our economy.
  • In order to strengthen educational experiences of foreign students studying science, technology, engineering and mathematics (STEM) at U.S. universities, DHS will propose changes to expand and extend the use of the existing Optional Practical Training (OPT) program and require stronger ties between OPT students and their colleges and universities following graduation.
  • DHS will clarify its guidance on temporary L-1 visas for foreign workers who transfer from a company’s foreign office to its U.S. office. DOL will take regulatory action to modernize the labor market test that is required of employers that sponsor foreign workers for immigrant visas while ensuring that American workers are protected.
  • Due to barriers in our system, U.S. citizens and LPRs are often separated for years from their immediate relatives while waiting to obtain LPR status. To reduce the time these individuals are separated, DHS will expand an existing program that allows certain individuals to apply for a provisional waiver for certain violations before departing the United States to attend visa interviews.

It is important to note that at this point none of the President’s new programs are available for filing to obtain benefits. Also, these programs are not an amnesty. Applying for and receiving Deferred Action does not convey legal immigration status to an Applicant. It means that since CIS recognizes you are not a removal priority, CIS will allow you to obtain employment authorization. In other words, “if we’ve agreed not to take steps to remove you, you should be allowed to work and pay taxes like everyone else.” Don’t get me wrong, Deferred Action is a step in the right direction for many millions of unlawful immigrants, but it does not convey any legal immigration status on the Applicant. It remains to be seen how long Deferred Action will remain available for individuals and if Deferred Action being granted will ultimately lead to a path to permanent residence or some form of legal immigration status down the road.

On the business side of things, there was little to no detail as to how any of the President’s plans will be implemented or in what time frame. The grant of employment authorization to H-4 spouses would be a welcomed change. Further benefits for STEM students and graduates would also be a wise move on the part of the government to ensure that the U.S. continues to maintain its position as the global leader in research and development. That said, it may be some time before any of these measures become a reality and what form they will take.

We will provide you with the details as more information emerges . In the meantime, if you have questions or want to know what steps, if any, you might be able to take now to prepare yourself or your employees to obtain future benefits, please contact someone in the Wyatt Tarrant & Combs Immigration Group.

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H-2B or Not to Be: Florida District Court Enjoins DOL H-2B Regulations for Now

By Glen M. Krebs

The United States District Court for The Northern District of Florida (Pensacola Division) in the case of Bayou Lawn & Landscape Services, et al., v. Hilda Solis, et al., has enjoined the implementation of the H-2B regulations which were scheduled to take effect on April 27, 2012.  The new regulations were to change the methods and timing for the labor certification portion of the H-2B process and impose additional requirements on employers with respect to H-2B workers.  Not for a while. 

The plaintiffs are associations, companies, and individuals which participate in the H-2B program or are comprised of members who participate in the program.  They filed the motion for a temporary restraining order and preliminary injunction, seeking to enjoin the Department of Labor (DOL) from enforcing the rules, which were scheduled to go into effect on April 27, 2012.  The court held a hearing on the plaintiffs’ motion on April 24, 2012. Based on the plaintiffs’ complaint, as well as the parties’ memoranda, submissions, and arguments, the court determined that a preliminary injunction prohibiting DOL from enforcing the challenged rules during the pendency of this matter should be issued to preserve the status quo.  The parties now have sixty (60) days to submit their motions for summary judgment and an additional fourteen (14) days to respond to the opposing parties’ motion. 

The following are three basic reasons for the court’s decision to enjoin the implementation of the new regulations, in their own words:

1.         “[F]inding no express grant of Congressional authority, the court finds that the plaintiffs have established a substantial likelihood of success on the merits of their claim that DOL lacks authority to promulgate the rules at issue in this case.”

2.         “The court also finds, based on the declarations submitted by the plaintiffs, that the plaintiffs have demonstrated a substantial threat of irreparable harm. DOL does not dispute that the new rules will result in increased costs to the plaintiffs; rather, DOL argues that the plaintiffs will not immediately realize the effects of the new rules. The plaintiffs, however, have demonstrated that the rules will have an immediate and significant impact on them, including their current bidding processes, and will result in lost revenue, customers, and/or goodwill.”

3.         “The court is aware that permanently enjoining enforcement of the new rules will have serious repercussions insofar as the H-2B program is concerned; notwithstanding, DOL has not articulated any harm it will suffer as a result of a mere delay in the implementation of the rules.”

 And so for the time being, H-2B employers should proceed under the current rules in effect prior to April 27, 2012.

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Inspections of I-9 Forms Are Increasing Nationwide

By Glen Krebs

Several lawyers have indicated that clients have received I-9 audit letters.  It is  estimated that at least 500 employers nationwide will be receiving Notices of Inspection (NOIs) in the coming weeks.  The inspections could lead to civil penalties and even criminal indictments.

NOIs will include requests for hiring, payroll and other records to determine compliance with employment eligibility verification laws. Employers will be expected to produce original I-9s within three days from service of the NOI.  We have previously provided instructions for dealing with Immigration audits.  If you would like additional information, please feel free to contact Glen Krebs at gkrebs@wyattfirm.com or 859-288-7409.

We are also happy to assist you to conduct an internal I-9 audit and develop a basic immigration compliance plan.

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Increased ICE Activity Makes I-9 Audits Prudent Practice

By Allison Grogan

With the current heat wave, anything “ICE”-related seems like a welcome change of pace.  However, this may not be the case where “ICE” stands for the U.S. Immigration and Customs Enforcement.  In the past decade, ICE has steadily increased its activity around the country, making audits of employers’ I-9 hiring records a common – and sometimes costly – occurrence.  In June 2011, ICE announced that it would audit 1,000 employers around theUnited States.  Though these audits will likely focus on industries known for hiring large volumes of undocumented workers, such as the construction, agriculture and hospitality industries, industries whose workers are privy to sensitive government information, such as the financial services, healthcare and transportation industries, are also particularly prone to audit.  Notwithstanding these predictions, no employer is exempt from the hiring records requirements, and as such, every employer is at risk of stiff civil and even criminal penalties should an audit reveal noncompliance.

U.S. law requires that employers complete a Form I-9 for every employee hired after 1986 within three days of the employee’s hire in order to verify such employee’s work authorization.  These forms must be retained for the duration of the employee’s employment, and for at least one year after termination. 

Though the forms are relatively simple to fill out, penalties can add up quickly for mistakes, especially for employers with numerous employees.  ICE generally provides employers with three days’ notice before initiating an I-9 audit.  Each error identified by ICE can lead to a penalty from $110 to $1,100, and where an employer is found to be knowingly employing an unauthorized worker, penalties soar to between $365 and $16,000 per occurrence.  The real danger is that, where an employee’s I-9 is lost or where an employer fails to re-verify a worker’s authorization after its expiration date, ICE assumes that the worker was undocumented, triggering stiffer penalties.

An employer can minimize the risk of penalties by performing regular audits of its I-9 records.  Audits can identify common mistakes, and allow employers to correct these mistakes to minimize penalties prior to being notified of an ICE audit.  If you have questions about completing or storing I-9 forms, the U.S. Citizenship and Immigration Service has launched ‘I-9 Central,’ at www.uscis.gov/i-9central.  I-9 Central includes information about employer and employee rights and responsibilities, step-by-step instructions for completing the form, and information on acceptable documents for establishing identity and employment authorization.  It also includes a discussion of common mistakes to avoid when completing the form, guidance on how to correct errors and answers to employers’ questions about the I-9 process. 

For further guidance, contact Glen Krebs or Allison Grogan of Wyatt, Tarrant & Combs, LLP, at 859.233.2012.