H-1B Cap and I-9 Audits
Employers who intend to hire an individual needing H-1B sponsorship should initiate that process and file those H-1B petitions immediately. U.S. Citizenship and Immigration Services (USCIS) is coming very close to reaching the cap on the number of new H-1B petitions that can be filed this fiscal year (October 1, 2010 to September 30, 2011).
The most recent announcement from USCIS, effective December 24, 2010, reflects that 55,800 H-1B petitions have been filed counting toward the H-1B cap of 65,000 petitions. In addition, 20,000 petitions have been filed counting toward the U.S. advanced degree exemption (this exemption applies to 20,000 petitions but USCIS accepts more than 20,000 petitions based on the estimated number of rejections and denials). We expect that the cap will be reached very soon, possibly during January 2011.
The cap applies only to petitions for new H-1B employment, not to H-1B extensions or an H-1B change of employer.
OFCCP Will No Longer Inspect I-9s
The OFCCP, Office of Federal Contract Compliance Programs, has announced that it will cease inspecting I-9 forms as part of its worksite investigations.
Previously, the OFCCP, a division of the Department of Labor (DOL), conducted I-9 inspections pursuant to a Memorandum of Understanding between the DOL and the Department of Homeland Security through its Immigration and Customs Enforcement division (ICE). However, the OFCCP did not have authority to impose fines or penalties. If the OFCCP found I-9 violations, it could refer such matters to ICE if financial penalties were warranted.
Although the OFCCP is no longer planning to conduct I-9 reviews, ICE has substantially increased the number of I-9 audits it conducts. Therefore, employers should continue to be vigilant about their I-9 compliance and conduct periodic self-audits.
By way of background, all employers are required to complete and retain I-9 forms for new hires. ICE audits focus not only on the employment of unauthorized workers, but also on technical compliance with the I-9 requirements. Fines imposed for multiple technical violations can range from thousands to even millions of dollars, depending on the number of employees and number of deficiencies. For this reason, all companies should be vigilant about I-9 compliance and should not be under the mistaken impression that audits only penalize those with undocumented workers.
If you have any questions about the information in this advisory, please contact any member of the Immigration Group.