Legally Speaking Introduction

May 2008Newsletters Legally Speaking

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Immigration developments this spring show the tensions between compliance and enforcement. Employers and foreign workers who want to comply with the law are thwarted by a lack of available visas, while federal and state governments, as well as individuals who insist on compliance, pursue new enforcement strategies.

An example of the tension is this year’s H-1B race and lottery. Close to 200,000 applications were filed on April 1, 2008, April Fool’s Day, by employers seeking temporary worker visas for new professional hires. Fewer than 80,000 visas are available for these workers. For the winners, there is a visa that allows employment for an initial period of three years, beginning October 1, 2008. For the losers, both employers and their potential foreign workers, there is frustration, to say the least.

Even some of the winners find themselves in an uncomfortable immigration posture. Students working on grants of Optional Practical Training (OPT) may have employment authorization that expires before October 1, leaving a gap in their authorization to work, known as the “cap-gap.”

After the running of FY 2009 H-1B race and lottery, Immigration released an Interim Final Rule (Federal Register: April 8, 2008 - Vol. 73, Number 68, pages 18944-18956) to address the “cap-gap” problem. Combining compliance with enforcement, the rule addresses the "cap-gap" for this year's visa winners and, for the losers, offers to extend the period of OPT from 12 to 29 months for qualified F-1 non-immigrant students with a degree in science, technology, engineering, or mathematics and who are working for employers enrolled in the E-Verify program.

E-Verify has been criticized for its inaccuracy. It requires the employer to enter into a Memorandum of Understanding with the Department of Homeland Security and the Social Security Administration. Employers should only enroll in E-Verify after careful consideration.

This Newsletter tracks the progress of the “No-Match” rule, informs readers of new threats to immigration violators and explains the requirements for deferred compensation plans for foreign workers working legally in the U.S. for foreign or domestic businesses. We will have more to say about E-Verify in future publications, and, of course, are available to discuss it individually with clients.