Employers now have a narrow window of opportunity to prepare timely H-1B work-visa petitions by the April 1, 2008 deadline. On the I-9 compliance front, a federal court injunction provides much-needed breathing room for employers to reconcile name/social security mismatches before harsh penalties are brought back online. Finally, a recent rule change provides employers the incentive to centralize labor certifications for permanent residence with preferred providers.

H-1B Blackout. Last April, the demand for new employee H-1B work visas outstripped the annual supply on the first day of filing. Employers filed 120,000 petitions against approximately 65,000 available H-1Bs. Since Congress failed to pass H-1B reform, the dash is on again. Any petitions for new non-exempt H-1B workers must reach USCIS on April 1, 2008 to be eligible for available H-1Bs in fiscal year 2008. If the petitions filed exceed the cap, USCIS is expected to hold a lottery to select petitions for adjudication. Employers can’t win it if they are not in it. It is imperative for employers to identify their H-1B needs now and to prepare filings to reach USCIS on April 1.

No-Match Enforcement. Last August, ICE (Immigration and Customs Enforcement) and the Social Security Administration issued a revised “No-Match” regulation. Under the rule, failure to resolve name/social security number mismatches in a short safe-harbor timeframe would have forced employers to choose between terminating employment or being charged with constructive knowledge of employing an unauthorized employee. Either outcome carried potential liability. At the eleventh hour, an injunction was obtained against issuance of some 140,000 no-match letters. An appeal is pending, and it’s likely only a matter of time before a similar rule is promulgated. This is the golden moment for employers to identify and resolve issues arising from I-9 audits, free from the narrow time constraints and punitive measures of the next “no-match” rule.

Employers Mandated to Pay “PERM” Labor Certification Fees. Since July 2007, all PERM labor certification legal fees may only be paid by the employer. As the paying party, employers now have an incentive to centralize their work with select immigration professionals in connection with this vital first step in the permanent residence process. Compared with the prior practice where employees selected their own attorney, centralizing this function creates several advantages for the employer, such as single point of access, transparent case tracking and management, cost control, and uniformity of policies.

If you have any questions relating to this topic, please contact Russell W. Roberts at (585) 419-8767, Karlee Bolaños at (585) 419-8742, or the Harris Beach attorney with whom you usually work.

This Legal Alert provides a summary of immigration law requirements and does not purport to be a substitute for advice of counsel on specific matters.

Harris Beach has offices throughout New York state in Albany, Buffalo, Geneseo, Ithaca, New York City, Niagara Falls, Rochester, Syracuse, and Yonkers, as well as Newark, New Jersey.