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On or before November 22, 2016, the much-anticipated revised Form I-9 will be released. Employers will have until January 21, 2017 to transition to the new form, but after this date, all prior versions of the form will no longer be accepted. Anyone using an out of date Form after 1/22/17 will be subject to substantial fines as we reported in a prior blawg. In addition to modified fields and requirements, the proposed Form I-9 changes are expected to include many “smart” features for when the form is completed electronically. These include:
Safeguards on certain fields to ensure information is entered correctly
Drop-down lists
Embedded instructions
Easy-access buttons that allow users to access the instructions, print the form, and clear the form
A barcode that can be used to streamline audit processes
These “smart” features are designed to aid employers in completing the Form I-9. However, they can also create additional complications. Companies without electronic I-9 processes in place that are simply using the updated PDF version of Form I-9 must be mindful of which sections they are completing. Working with an employee to complete Section 1 on your computer creates a need for completing the Preparer Section of Form I-9. Additionally, companies considering switching to electronic Form I-9 completion need to be aware of the specific rules of use.
Once the revised Form I-9 is released, employers are encouraged to seek training on its proper completion. I-9 Audits are predicted to increase next year to ensure employers are using the new form as mandated. Non-compliant companies can expect hefty fines due to the August 1st U.S. Department of Justice fee increase, which was previously discussed in our August 23rd blawg post.
GoffWilson offers I-9 training in public and private settings several times throughout the year. Upcoming sessions are scheduled for January 12, 2017 in Concord, NH and January 26, 2017 in Burlington, MA. Contact our office today to sign up or for more information! Also stay tuned to our bLAWg for more updates on the new Form I-9 once it is released. I-9 Compliance and keeping your company up to date is what we do!

For many employers, the lack of available H-1B visas is a large obstacle in their path to hiring foreign national professional employees in the U.S. However, it does not have to be a permanent roadblock. There are many alternatives to the H-1B visa that could work for certain employers, such as the L-1B visa.

The L-1B visa is reserved for U.S. employers who wish to transfer a professional employee (who has at least 1 continuous year of employment within the prior 3 years) from a foreign affiliate office to the U.S. company. To qualify, the employee must have specialized knowledge relating to the organization. The possessed knowledge must involve application of the company’s products, services, research, equipment, techniques, management, and/or other interests in the U.S. (i.e. special knowledge), or be at an advanced level pertaining to the company’s processes and procedures (i.e. advanced knowledge). The position being offered by the U.S. employer must also require the specialized knowledge.

In recent years, the unavailability of H-1B visas has led to an increased scrutiny on L-1B visas by the U.S. Citizenship and Immigration Services (“USCIS”). Many problems encountered by employers involve whether the professional employee actually possesses specialized knowledge and/or whether the offered position actually requires this knowledge. Contrary to popular belief, qualifying for an L-1B visa is not as simple as explaining how the employee and position fit into the above-mentioned definitions.  

A little over a year ago, USCIS expanded upon the general specialized knowledge definitions and further explained their applications. Now, not only must special knowledge involve, for example, application of the company’s products and services in the U.S., it must also be distinct or uncommon in comparison to the knowledge generally found in the industry.

Likewise, advanced knowledge must be of a nature not commonly found in the industry and must also be greater developed or further progressed, complex, and understood than what is normally found in the company.

Although the L-1B can be a useful tool for employers and professionals alike, the process involves various complications that can result in denial for the unwary. Due to the recent changes regarding specialized knowledge, USCIS is heavily scrutinizing L-1B petitions.  Prior to filing, performing a multi-step analysis of the employer, employee, and offered position, as well as other petition factors, is necessary. To be successful, it is crucial to have a knowledgeable immigration provider with specific L-1B experience to assist in the process.

Those interested in exploring the L-1B visa or other H-1B visa alternatives can contact GoffWilson for assistance. Tackling tough visa issues is what we do successfully for our clients on all visa types. Contact our office today for more information.

It’s that time of year again—Fall is upon us, which means many lucky H-1B lottery winners will be assuming their new positions on October 1. Due to the record-breaking number of H-1B petitions received by the U.S. Citizenship and Immigration Services (USCIS) this year, chances are that you are not among them. Many individuals believe that this is the end of the road, absent another H-1B filing in April 2017. However, some little-known exceptions in the law could get you an H-1B now.
Most individuals are aware that certain organizations are exempt from the annual H-1B quota (i.e., the “cap”), meaning those employers considered to be an institution of higher education, or an affiliated or related nonprofit entity of such, can petition for employees at any time without regard to the H-1B cap. However, being employed by one of these qualifying institutions is not the only way to get a cap-exempt H-1B.
A separate option would be to have your cap-subject employer petition for you to work at an institution of higher education or a related or affiliated nonprofit entity (i.e., the “cap-exempt employer”). In this scenario, you are not working for the cap-exempt employer; instead, you are working for your cap-subject employer at the location of the cap-exempt employer. How does this work? Obviously, the cap-exempt employer has to be involved to allow this to occur. Besides that, the job duties you are performing have to “directly and predominately further the normal, primary, or essential purpose, mission, objectives or function of the qualifying institution.” (See USCIS memo HQPRD 70/23.12). Thus, the H-1B petition has to establish a nexus between your work and the cap-exempt employer’s work.
Another option would be having the cap-exempt employer file a part-time H-1B petition for you and, once approved, having your cap-subject employer file a concurrent H-1B petition (i.e., a second petition to allow you to work for more than one company at the same time). In this scenario, your job duties at the cap-subject employer do not have to relate to the functions at the cap-exempt employer. You are just performing two separate jobs at different companies, but one of them happens to be cap-exempt.  
A third option is closely related to the second, but with an important distinction. Also, this option only works for entrepreneurs. Instead of using any cap-exempt employer to file your initial H-1B petition, you would file through a university innovation center. This type of innovation center, commonly known as a “Global Entrepreneur in Residence” (or GEIR) Program, aids entrepreneurs by sponsoring them on a cap-exempt H-1B. Once approved, the cap-subject entrepreneurial venture can sponsor the individual for a concurrent H-1B. Although GEIR Programs are a relatively new concept, they are starting to pop up throughout the U.S. to keep international talent in-country.
Are you interested in exploring cap-exempt H-1B options or alternative non-immigrant visas? The team at GoffWilson can review your case and determine the best fit for you. Contact our office today to discuss.

On August 26, 2016, the U.S. Citizenship and Immigration Services (“USCIS”) released an advanced version of its proposed rule, the “International Entrepreneur Rule” (“IER”), which is set to be published for comment in the Federal Register. If the proposed rulemaking is successful, the IER would welcome certain international entrepreneurs to the U.S. on parole (i.e. temporary permission to enter the U.S. for a specific purpose and duration) to start or increase their businesses in the country.
Under the IER, entrepreneurs eligible for parole include those who:

  • Have a significant (i.e. at least 15%) ownership interest in the startup company;
  • Have an active role in the company’s operations;
  • Formed their startup in the U.S. within the past 3 years;
  • Have a startup with substantial and demonstrated potential for job creation in the U.S., as well as rapid business growth. This can be evidenced by:
    • Having at least $345,000.00 of investment capital from qualified U.S. investors with successful investment records;
    • Having at least $100,000.00 of awards or grants from government entities at the federal, state, or local levels; or
    • Having other reliable and compelling evidence of the startup’s potential for job creation and rapid business growth, in addition to partially satisfying one or both of the other 2 mentioned evidentiary criteria.
If an entrepreneur meets all of the above-mentioned qualifications, they may be granted an initial parole stay for up to 2 years to start or increase their startup company in the U.S. After the initial 2 years, the entrepreneur may be eligible for an additional 3 years of re-parole, if the entrepreneur and their company continue to provide a public benefit to the U.S. by way of substantial increases in capital investment, revenue, or job creation.
Once published in the Federal Register, there will be a 45-day public comment period on the IER. After all comments are considered, the final rule will be published in the Register. Until then, the IER is not in effect. We will provide an update once the final IER becomes effective.
Thinking of investing in the U.S.? Other options may already be available to you. GoffWilson can assist in making your entrepreneurial dream a reality! Contact our office today for more information.
On August 1, 2016, an Interim Final Rule (“IFR”) published by the U.S. Department of Justice (“DOJ”) went into effect. The IFR adjusts numerous civil monetary penalties due to inflation, including employer fines for Form I-9 violations. Prior to the IFR becoming effective, the I-9 fines for employers ranged from $110 to $1,100 per form. The new IFR brings steep increases, with the minimum fine increasing from $110 to $216 and the maximum fine increasing from $1,100 to $2,156.
Related to the I-9 fine increase, the IFR also increases the penalty for the unlawful employment of immigrant workers. The minimum fine has increased from $375 to $539, while the maximum fine has increased from $3,200 to $4,313. In addition, there is a new maximum penalty of $21,563 for employers facing multiple violations.
The IFR brings about significant changes regarding certain employment-related civil penalties for employers. To avoid these hefty fines, employers should take action immediately and review existing Forms I-9 and employment records for potential violations. Internal audits are recommended to discover and correct errors in advance of a government audit. This can help to greatly reduce fine amounts for employers post-audit.
Did you know that GoffWilson offers comprehensive Form I-9 audit services for companies of all sizes? Contact our office today for more information!

Last week, I was lucky to be able to arrange a time to sit down with the two Senior Attorneys at GoffWilson. The timing was perfect for a quick interview, as they had just returned from an exciting business trip to India and the sights, sounds, and smells of the country were still fresh in their minds. More than an exciting journey, it was an exciting time for the firm—over GoffWilson’s 30+ years in immigration law, and having worked across the globe (particularly in Europe through GoffWilson’s Paris office), this was the first time the firm had been to India on business. Throughout the firm’s history, it has helped a multitude of Indians come to the United States to study and work. While GoffWilson has developed an incredible reputation for their in-depth knowledge of immigration law, the chance to get a better understanding of the people they help and experience the Indian culture firsthand was an opportunity that they couldn't pass up.  
Below, John Wilson, President of GoffWilson, and Founding Partner Attorney Susan Goff tell us about why they traveled to India, some of the challenges facing Indians hoping to come to the U.S., and some of the experiences they had on their trip. 
Where did you visit?
SG: Over the course of the week, we visited Delhi and Hyderabad, India.
JW: The trip included visits to the United States Embassy in Delhi, the Consulate in Hyderabad, and HITEC City in Hyderabad.
Tell me about visiting the Embassy and Consulate. 
JW: We felt incredibly privileged to be received at the Embassy and the Consulate, and anyone who has ever been fortunate to visit one knows that the experience can be a little surreal. 
SG: Both the United States Embassy in Delhi and the Consulate in Hyderabad are fascinating places to visit. They are self-contained with their own schools, housing, and infrastructure on site, and operate almost as mini-cities in the midst of these giant, bustling centers of Indian life. 
What was the purpose of the trip?
SG: We were retained to travel to India to investigate some perceived unfair visa denials. 
JW: In addition to looking into visa denials, we sought to make connections, discover how to avoid these problems in the future, and ensure that the institutions we represent have access to the best and brightest minds in the world while helping ensure that immigration issues don’t slow down the innovation and progress of these institutions. 
Why are visas denied? 
JW: There can be a variety of reasons, but having the intent to remain in the U.S. following the purpose of the visa is most often the reason. The catchall for declining to issue a non-immigrant visa is a §214(b) refusal.  
Can you explain what a §214(b) refusal is? 
JW: In its simplest form, a §214(b) refusal is issued when a consular official doesn’t believe the visa applicant intends to depart the United States when their visa expires. Because non-immigrant visas are interview-based, the individual seeking the visa must prove that they are intend to only be in the U.S. temporarily, and plan on leaving the country when their job, studies, or visa comes to a conclusion. Furthermore, the applicant must be able to show that they can afford to pay for their trip. Often, the applicant will also be asked to provide documentation supporting their claims such as travel arrangements, employment letters, or financial statements.
SG: Because of the vague guidelines for approval or denial and the enormous amount of discretion placed in the hands of the consular official, there is the opportunity for an individual with the means and desire to come to the U.S. for work or study to be refused. The most common reason cited for refusal is the that the officer decided, based on the individual's interview, that their social, family, economic, and other ties to India are not strong enough to overcome the presumption that the person will stay in the U.S. 
What did you learn about visa denials while in India? 
JW: One of the best things to come from our trip to India was getting an up-close look at the visa process and gaining an in-depth knowledge of the processes’ inner workings. Furthermore, we met with several high-level officials at the U.S. Embassy in Delhi and the Consulate in Hyderabad. From those meetings, we were able to learn what questions to ask when a visa is denied, who to talk to, and what channels to go through for a quick resolution.  
SG: We have a better understanding of what they are looking for in applicants and what signs make them leery. For example, all of the officials we spoke with told us that they didn’t like when applicants sound coached and were suspicious of any answer that sounded too rehearsed or prepackaged. 
How did you find the U.S. officials? 
SG: First and foremost, we understand that these officials have a job to do, and at times it can be a hard job. While at times our opinions differed from the officials, we have the utmost respect for them. All of the officials we met with were extremely courteous. 
JW: We were able to establish a working relationship with these important officials, while gaining key insights into the interview process, what they look for, and how the process works. 
Any other takeaways from your visit to the embassy and consulate or your meetings with officials?  
JW: I think the trip was invaluable in getting a more comprehensive understanding of how the procedure actually works, and learning which questions to ask and whom to ask. 
Are you ready to go back to India? 
JW: I am not ready to tackle the plane ride again...yet. But if business calls, I will happily be back in India. 
SW: I second the plane ride; 16+ hours is a long time to be cooped up! However, India is truly an amazing place and I would welcome the chance to go back and see more of the country. 

On June 22, 2016, a settlement agreement between Macy’s and the Office of Special Counsel (OSC) was formalized pertaining to discrimination of non-U.S. citizens. The matter began back in October 2015, when at least five employees notified OSC of their complaints against Macy’s. The employees, all non-U.S. citizens, were required to produce documents issued by the Department of Homeland Security (DHS) as a condition of employment during the employment eligibility verification process, despite the employees already having satisfied the federal Form I-9 requirements with alternate documentation. Additionally, during the investigation it was discovered that Macy’s did not require U.S. citizen employees to produce specific documents for verification.
During the Form I-9 completion process, an employer cannot require an employee to produce specific documentation, no matter their immigration or citizenship status. The employee is permitted to choose any document or combination of documents specified in the “Lists of Acceptable Documents” attached to the Form I-9. If an employee produces acceptable documents, the employer cannot request additional documents to verify employment eligibility, so long as the documents appear genuine on their face.
As Macy’s did not follow this protocol, OSC concluded that there was reasonable cause to believe that Macy’s committed citizenship status discrimination. As part of its agreement with OSC, Macy’s is now required, amongst other stipulations, to 1) pay back wages to at least one of the employees; 2) pay a civil penalty of $8,700 to the U.S. Treasury; 3) submit information on all Forms I-9 completed during the OSC-determined reporting period to OSC for review; 4) provide Form I-9 training to all Human Resources personnel at its offending location(s) and test them on their knowledge to assess whether further training is required; and 5) revise its internal policies related to discrimination and have them reviewed by OSC. Macy’s essentially remains under OSC scrutiny for the foreseeable future. The new requirements are above and beyond what is normally required for employers, which goes to show how certain form errors can result in major hurdles for an organization.
The Macy’s case is an example of how the actions of Human Resources personnel related to the Form I-9 verification process can affect the entire organization. If you do not want to find your organization under the close watch of the government, you need to ensure that all individuals responsible for Form I-9 completion have thorough knowledge and solid understanding of the process’ requirements and limitations.
GoffWilson offers personalized Form I-9 training depending on an organization’s needs. On our website, you can find a downloadable I-9 Retention Worksheet, Completion Timeline, Acceptable Document List, and more by clicking here. Or contact our office today for more I-9 information. We are here to help!

As we have discussed in this blawg repeatedly, the highly skilled professionals working under an H-1B Visa are a valuable resource for any company. However, employees on H-1B visas are also subject to different rules and restrictions than other US employees. It’s imperative that employers know and follow the law in matters regarding employees on an H-1B visa, or they may face having to pay back wages and legal fees while enduring a wave of negative publicity. 
Highlighting the importance of following the terms of an H-1B visa, and how costly and error can be, is the recent ruling in DeDios v. Medical Dynamic Systems, Inc. On May 17, 2016, the U.S. Department of Labor (DOL) issued a decision in DeDios v. Medical Dynamic Systems, Inc. which awarded more than $59,000 in back wages and fees to a former employee. The employee, who worked as a Nurse Manager on an H-1B visa for Medical Dynamic Systems, Inc., filed a complaint with the DOL against the company due to its failure to pay the offered salary as stated on the Labor Condition Application (LCA) filed with the H-1B visa petition. Upon approval of the employee’s H-1B visa petition, he presented himself to Medical Dynamic Systems as available to work. However, due to a lack of projects, Medical Dynamic Systems did not place him at a healthcare worksite and kept him waiting for a placement without pay, a scenario commonly known as “benching.”
When an employer sponsors an employee for an H-1B visa petition, the accompanying LCA lists the offered salary, a minimum number of hours to be worked, and the work location. Under regulations, an employer is responsible for paying the H-1B worker the offered salary outlined in the LCA and providing the promised employment. “Benching” an employee is not permitted, and can lead to employers having to pay back wages and cover legal fees. If the employee presents himself/herself to an employer as available to work under a valid LCA and H-1B, the employment period begins and the employer is responsible for paying the employee the offered wage.
If your company currently employs H-1B workers and you are not paying them the full salary promised under the LCA and H-1B, the employees could file a complaint with the DOL for back wages, potentially resulting in hefty costs for your organization. Whether the employee is a healthcare employee waiting for their next facility assignment, an IT worker waiting for their next client project, or an in-house employee, “benching” is not permitted. You must pay the offered salary to the employee and provide work as promised in the LCA and H-1B petition.
Concerned over potential back wage issues? Not sure if your business model is causing you to unintentionally “bench” employees? GoffWilson is here to help! With over 30 years’ experience in Immigration Law and an in-depth knowledge of the workings of the H-1B visa, we've helped numerous employers and employees navigate the complexities of the H-1B visa. Click here to contact our office for assistance. Immigration is what we do!

The last few months at GoffWilson have been busy, from the H-1B visa filing frenzy to attending some of our favorite events, such as the Granite State Human Resource Conference, to hosting our own events, like the very popular I-9 and E-Verify Spring Check-Up: What You Need to Know 2016. Throughout it all, we have devoted time to increasing our social media presence to bring our clients and followers the most relevant, insightful, inspiring, and helpful stories from across the web that relate to immigration and immigrants. Of course, if your schedule is like ours, keeping up with every post can be challenging, so here are our five most popular stories from the last month. 
Here’s Everyone Who’s Immigrated to the U.S. Since 1820, an incredible animated map from Metrocosm details where immigrants have come to the United States from since 1820, has been very popular. If you haven’t seen this map yet, click on it now! It’s well worth the 30 seconds. 
Getting a large number of clicks this month has been our YouTube video GoffWilson Attorneys Help Global Employer Land Top Engineers. This video details the success we’ve had helping KBACE Technologies fill critical engineering roles through the H-1B Visa program. At GoffWilson, we love hearing how we’ve helped organizations and people navigate the immigration system. If you think GoffWilson can assist you like we assisted KBACE Technologies, contact us here
The incredible piece from the San Francisco Chronicle, Chasing Dreams and Dollars: India and the H-1B Visa, has garnered lots of attention through our various social outlets over the past month. This in-depth article examines everything from the increasing demand for H-1B visas in the United States to the effort and thought that Indians put into pursuing one and the lasting effects on those lucky enough to secure a coveted H-1B visa. With extensive knowledge and experience working with the H-1B visa, GoffWilson are the go-to immigration lawyers for those looking to navigate the complexities of the H-1B visa. 
We shared the blog post What You Need to Know About Form I-9 and E-Verify from HiredRight leading up to our seminar I-9 and E-Verify Spring Check-Up: What You Need to Know 2016. This post clearly details the differences between Form I-9 and E-Verify while listing the acceptable forms of supporting documentation. Click here to read our Blawg on I-9 compliance and the various ways GoffWilson can help put your organization on the path to I-9 compliance. 
The H-1B visa lottery is an exciting and stressful time for individuals and organizations alike. With hopes, plans, and the future riding on luck in the lottery, many are turning to alternatives to the competitive and capped H-1B visa. In our Blawg post Exploring Alternatives to the H-1B Visa, we examined some of the different ways to avoid the H-1B visa lottery.  
We love interacting with our fans on Facebook, Twitter, Google +, and LinkedIn, if you're not following us, you should start! We love interacting with our clients and followers, so please keep “liking,” clicking, sharing, and commenting on what you see from GoffWilson, and we’ll keep working to bring you the latest news, stories, articles, and immigrant/immigration-related content from around the web. 

Are you ready for an Immigration and Customs Enforcement (ICE) audit of your I-9s? You should be, as the number of I-9 audits ICE is conducting is on the rise. It can be random or it could be based upon a complaint filed by a disgruntled employee.  Regardless of the type, size, or location of your business, you may be called upon to produce your employees’ I-9s and supporting documentation for review. With hefty fines for non-compliance, it’s incumbent on businesses to prepare for this eventuality. Be sure you are on solid ground for employment eligibility verification. If called upon, could you produce these documents for every employee for review by ICE?
  • I-9 Forms for active and terminated employees that are required to be retained
  • Public Access folder for any employee in H status that includes the prevailing wage information and benefits package
  • A copy of the signed Labor Condition Application for each location the H employee works
  • Payroll records
  • Business information such as EIN#, owner’s names, other sites, and the number of H visa employees
  • The Audit Files for any employee for whom resident alien status application has been made
Having concluded our incredibly popular I-9 and E-Verify Spring Check-Up: What You Need to Know 2016 seminar earlier this week, we were reminded of how much there is to comprehend about the intricacies of this very common, yet very important, form. The great thing about our I-9 seminar is that it allows us to teach best practices, deliver up-to-date information on Form I-9, and help people feel comfortable working with a form that every single employee must fill out. Even better is that, before leaving, we walk everyone through the process of filling out a sample I-9 from beginning to end while answering any questions that might pop up along the way, leaving attendees feeling confident working with the form and prepared in case called upon for inspection.
If you missed our I-9 seminar, don’t worry! Providing in-house compliance training for Managers and Human Resource staff is a popular service we provide. Another popular service that we offer is an internal I-9 audit. Our I-9 audit gives us and you a chance to review your compliance, and help with corrective measures. Think you’re compliant? Our experience tells us that you’re probably not. In fact, the overwhelming majority of I-9s we audit contain mistakes.  
At GoffWilson, we have a long and reputable history with Form I-9 and have helped many businesses put the processes in place, fix errors, and develop a culture of I-9 compliance. If you have concerns about how your business handles Form I-9, contact us here and discover how we can help you feel confident in the case of an audit.
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