Fall, 2011
WE ARE GROWING!
The Shpigler Law Firm is pleased to announce the opening of a new office in Woodstock, Georgia. The new office, which is located at 140 Colony Center Drive (off of Highway 92) is at the intersection of Fulton, Cobb, and Cherokee counties. We hope that adding a new location will allow us to better serve our existing clients and new clients who live in Marietta, Canton, Douglasville, and other points north and west of Atlanta.
We are excited about our new office. Please stop by or call us to arrange an appointment.
H-1B CAP REACHED
On November 23, 2011, U.S. Citizenship and Immigration Services (USCIS) announced that it had received a sufficient number of H-1B petitions to reach the limit, or cap, of 65,000 for fiscal year 2012. The final day for submitting cap-subject petitions was November 22, 2011. All cap-subject cases received after that date and before April 1, 2012 will be rejected.
As of October 19, 2011, USCIS had also received more than 20,000 H-1B petitions filed on behalf of individuals who are exempt from the cap under the “advanced degree” provisions of the law. These are people who obtained advanced degrees (master’s degree or higher) from a U.S. educational institution.
As always, USCIS will continue to accept and process petitions that are otherwise exempt from the cap, including petitions filed on behalf of current H-1B workers who have been counted previously against the cap. This means that USCIS will continue to accept and process petitions filed to:
- Extend the amount of time a current H-1B worker may remain in the United States;
- Change the terms of employment for current H-1B workers;
- Allow current H-1B workers to change employers; and
- Allow current H-1B workers to work concurrently in a second H-1B position.
Petitions for new H-1B employment are also exempt from the annual cap if the beneficiaries will work at:
- Institutions of higher education or related or affiliated nonprofit entities;
- Nonprofit research organizations; or
- Governmental research organizations.
Petitions filed on behalf of beneficiaries who will work only in Guam or the Commonwealth of the Northern Marianas Islands are exempt from the cap until Dec. 31, 2014. Employers may continue to file petitions for these cap-exempt H-1B categories for beneficiaries who will start work during FY 2011 or 2012.
Do's and Dont's: Social Security No Match Letters
From time to time, the Social Security Administration (SSA) sends notices to employers that list the names of employees for whom information submitted (typically on an employee wage report) does not match Social Security records. These are called "no match" letters. If you are an employer, what should you do if you receive a social security no match letter?
- DO pay attention to no match letters. Instruct your human resources department not to disregard them.
- DON'T assume that an employee is "illegal" based on the receipt of a no match letter. There are several reasons for gettting a no match letter, many of which have nothing to do with a person's immigration status or authorization to work. For example, the individual's name may have been keyed into a wage report incorrectly, giving rise to the letter. As a result, employers should not take adverse action against an employee simply because the employee is the subject of a no match letter. Indeed, such action could subject the employer to liability under the anti-discrimination provisions of the Immigration and Nationality Act.
- DO make sure that you treat all employees for whom a no match letter has been received in a consistent manner.
- If you receive a no match letter regarding an employee, DO make sure that the designated company representative first checks the company's records to determine if the discrepancy results from a typographical, transcription, or clerical error. If there is such an error, the representative must correct it and inform the SSA.
- If the discrepancy is not the result of an error in the company's records, DO make sure that the designated company official requests, in writing, that the employee confirm the accuracy of the company's records and advise the employee to resolve the discrepancy with the SSA within 90 days of the company's receipt of the letter.
- If the employee resolves the discrepancy, DO correct the information with SSA and retain a copy of the verification from SSA.
- If the discrepancy cannot be resolved within 90 days, DO complete a new Form I-9 within 3 days, without using the questionable social security number and instead using other acceptable documents, including one document that contains a photograph.
- If you are unable to confirm the employee's work authorization using these procedures, DO terminate the employee or risk liability for continuing to employ an unauthorized worker.
The rules regarding no match letters are still in flux and can get rather complicated. You must balance your obligations not to engage in unlawful discrimination with the rules that prohibit unauthorized employment. This means that you must give your human resources personnel clear guidance about how to respond if they receive a no match letter.
We recommend that all employers develop a policy for dealing with social security no match letters. The Shpigler Law Firm has assisted a number of employers in developing these policies. Feel free to contact us if you would like more information about our services.
This Immigration Bulletin is not intended as a substitute for professional legal advice.
Debra R. Shpigler is a member of the American Immigration Lawyers Association.
