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As the first day of the new fiscal year, Oct. 1 also marks the date when individuals with approved H-1B cap petitions obtain their new status. Employers should be aware that FICA withholding applies to these employees.
“October 1 is a clean-slate, new day for F-1 students changing to H-1B status and employers need to make sure they are compliant with payroll withholding for H-1B workers,” said Liane Cooney, a partner in the McLean, Va. office of Berry Appleman & Leiden LLP.
Payroll departments should pay special attention to students converting from F-1 status under the Optional Practical Training (OPT) program to H-1B status as of Oct. 1, as these individuals are already working for employers in an exempt status and thus may not be detected. F-1 students are generally exempt from FICA withholding for five years, including students in the fields of science, technology, engineering or mathematics employed under OPT status.
Additionally, employers should make sure that they update the I-9 paperwork for students who were on a “cap-gap” extension of OPT and are converting to H-1B status as of Oct. 1. This is because these F-1 “cap-gap” employees’ employment authorization documents would have expired after April 1 but the “cap-gap” regulations allow those students to remain in OPT status to bridge the interval between the expiration of OPT and the start of their H-1B status on Oct. 1.
Nonresident employees are generally taxed on wages for services performed within the U.S. unless they are exempt. Some nonresidents, such as students and trainees, are exempt from withholding for certain designated periods. Employers should be prepared to justify an exemption or exclusion from withholding.
BAL Analysis: HR managers should communicate with internal payroll departments to be mindful of the FICA withholding rules for new H-1B cap workers and F-1 students converting from OPT to H-1B status.
Copyright © 2016 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com.
IMPACT – MEDIUM
The Australian government has issued a warning about a fraudulent website—work4australia.com—that falsely claims to provide Australian eVisas.
Australia is one in a string of countries that have reported web, email or telephone scams designed either to trick people into thinking they are getting legitimate immigration services or to defraud recent immigrants. Within the last year, a number of U.S. employers have reported similar scams that appear to target employees on H-1B visas. Employees have received phone calls from individuals posing as immigration officials who have obtained their home phone number and other personal information.
The Australian website, meanwhile, purports to offer five-year eVisas for $4,700. It directs users to travel to Thailand where, the site says, a company representative will receive payment and provide travel documents. The Australian government says that the site is a fraud and that no such arrangements exist. The government provides tips on how to identify scams, noting that Australian officials never ask anyone to make payments directly through Western Union, never offer a “resettlement programme” through unsolicited email and never send emails with addresses than end in “.pn.”— a domain that has been used by scammers in Australia.
The fake Australian site is just the latest among myriad attempts in recent years to scam immigrants or would-be immigrants. In 2013, some United Kingdom universities reported that students received suspicious calls from people posing as immigration officers with the U.K. Home Office. French police investigated ongoing telephone fraud involving demands that foreign nationals pay immigration fees for paperwork to be completed. Telephone scams also targeted foreigners in Ireland and New Zealand.
The trend has continued this year. Another reported scam in New Zealand targeted Indian nationals. German officials posted a warning about similar telephone-scam tactics. And officials in Canada issued a warning in March that people coming there by using unauthorized representatives could be refused entry.
In the U.S., scammers have tried to trick foreign investors into buying securities to qualify for investor visas, posed as government officials to extract money from Diversity Visa (Visa Lottery) applicants, and have posed as Internal Revenue Service (IRS) agents demanding payments. The IRS reported in April that “sophisticated and aggressive phone scams” against taxpayers, including immigrants, continued to rise across the country. Media outlets in California, Arizona, Tennessee, Ohio, Michigan and other states have reported this month on the continuation of IRS-scam calls.
This alert has been provided by the BAL Global Practice group and our network providers. For additional information, please contact your BAL attorney.
For the second time in two months, U.S. Citizenship and Immigration Services (USCIS) has sent out duplicate biometrics appointment notices to applicants who had received prior notices and who had already attended biometrics appointments.
A batch of duplicate biometrics notices went out in August when USCIS switched to a new system for sending them. The new system mistakenly sent notices that had already been sent by the old system, USCIS said at the time. The most recent round of duplicate notices appears to have been generated from the USCIS Texas Service Center and is believed to be related to the initial mix-up.
USCIS has indicated that if an applicant receives a duplicate notice after already completing their biometrics, it should not be necessary to attend a second appointment.
BAL Analysis: In some cases, the biometrics provider has confirmed with attorneys that duplicate notices were sent in error and that those individuals do not need to attend a second appointment. Clients who do not receive this confirmation may want to respond to a second notice in writing, stating that they have already submitted biometrics, and include a copy of their initial stamped notice.
Online registration will begin Oct. 1 for the fiscal year 2016 Diversity Lottery, which provides 50,000 immigrant visas to individuals from countries with historically low immigration to the U.S.
Registration begins Wednesday, Oct. 1 at noon EDT (GMT -4) and ends Monday, Nov. 3 at noon EST (GMT -5). Applicants must register online at www.dvlottery.state.gov. The State Department is warning participants not to register during the final week, as last-minute demand may slow web registration.
Nationals of the following countries are not eligible because the number of immigrants to the U.S. exceeded 50,000 in the past five years: Bangladesh, Brazil, Canada, China (mainland-born), Colombia, Dominican Republic, Ecuador, El Salvador, Haiti, India, Jamaica, Mexico, Nigeria, Pakistan, Peru, Philippines, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam. Individuals born in Hong Kong, Macau and Taiwan are eligible.
Registrants must meet two eligibility criteria: They must be born in an eligible country and meet educational or work requirements. Individuals who are not from an eligible country may qualify by claiming the country of their spouse or parents from an eligible country under certain circumstances. Applicants must have a high school degree or equivalent of two years of work experience in the past five years.
Applicants must complete an online form and submit a digital color photo fitting precise specifications for each family member. The State Department selects lottery winners through a random computerized selection process starting May 2, 2015 through June 30, 2016 and later. Lottery applicants can find out if they are selected only by entering their confirmation number on the official E-DV Entrant Status Check website. Lottery winners may apply for their green cards beginning Oct. 1, 2015.
Copyright ©2016 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com.
Starting in mid-September, Canadians applying for TN and L-1 status for the first time may receive faster processing at designated ports of entry set up by U.S. Customs and Border Protection (CBP).
Fourteen ports of entry, including four pre-clearance stations along the Canadian border, have been designated to handle the large volume of TN and L-1 applicants. Applicants are not required to process at these locations, but CBP is steering them to those posts for purposes of streamlining processing.
Trade NAFTA (TN) visas are available to Canadian and Mexican citizens in eligible professions in medical, scientific, teaching and other fields under the North American Free Trade Agreement. Canadian citizens may apply for admission by a CBP officer at a port of entry. L-1 intracompany visas allow a U.S. employer to transfer a manager, executive or specialized-knowledge employee from an overseas affiliate to a U.S. branch or to establish a U.S. branch.
The pre-clearance inspection locations and designated ports of entry for first-time TN and L-1 applicants are:
· Detroit Ambassador Bridge Port of Entry, Detroit
· Peace Bridge Port of Entry, Buffalo
· Rainbow Bridge Port of Entry, Niagara Falls
· Champlain Port of Entry, Champlain
· Derby Line Port of Entry, Derby Line
BAL Analysis: While first-time Canadian TN and L-1 applicants may process at any port of entry, CBP is promising “optimized” processing at the 14 designated ports. We hope that, along with greater efficiency, optimization will mean the stationing of officers trained in TN and L-1 adjudication.
What is the change? A number of European nations in the 26-country Schengen Area are growing increasingly strict about a requirement that foreign passports be valid at least 90 days past a traveler’s intended date of departure.
What does the change mean? Tourists and business travelers with less than six months remaining on their passports beyond intended travel dates should consider renewing their passports as soon as possible.
Background: Non-European nationals (third-country nationals) are permitted to visit Schengen Area countries for 90 days within a 180-day period. Because of a rule requiring that passports be valid at least 90 days past a traveler’s intended date of departure, travelers must have at least six months of validity remaining on their passports on their date of arrival. The U.S. State Department reported Sept. 5 that the requirement “has been more strictly enforced” recently, sometimes resulting in travelers being denied airline boarding or entry upon arrival.
BAL Analysis: The tighter enforcement is not the result of any new rule or regulation, and enforcement levels vary from country to country within the Schengen Area. Non-European nationals planning visa-free travel for either tourist or business purposes within the Schengen Area should make sure they will have at least six months remaining on their passport upon arrival. Some Schengen countries also apply the rule to travelers transiting through an airport for several hours to a non-Schengen destination. Travelers who require a new passport should apply immediately to avoid delays.
This alert has been provided by the BAL Global Practice group. For additional information, please contact your BAL attorney.
Effective immediately, visa numbers in the Employment-Based Second Preference (EB-2) category for India are unavailable for the remainder of the current fiscal year which ends Sept. 30, according to the U.S. Department of State.
The announcement means that there will be no more visa approvals in the EB-2 category for nationals of India this month. Applications may be returned or held by U.S. Citizenship and Immigration Services until new visa numbers become available on Oct. 1, the start of fiscal year 2015. The EB-2 India priority cut-off date will be May 1, 2009 on Oct. 1, according to the October Visa Bulletin. Some immigrant petitions may be approved this month if a visa number has already been allocated. The immediate “unavailability” of visa numbers can happen at this time of year when the current fiscal cycle closes and the cap on available visas has been reached.
In the coming months, EB-2 Indian professionals with advanced degrees or exceptional ability should expect significant retrogression. As early as November or December, the cut-off date may retrogress as far back as early 2005, according to a State Department official. One key reason for this anticipated retrogression is the large increase in EB-3 to EB-2 upgrades for Indian-born applicants.
BAL Analysis: Because of extremely high demand, the forecast for EB-2 India is a sizeable retrogression within the next two months and advancement at a crawl’s pace next year.
The U.S. Department of State has stopped fielding attorney email inquiries regarding administrative processing on behalf of visa applicants.
As a result, visa applicants should be prepared for the possibility of delays in issuance.
Many visa applications require further “administrative processing” after the consular officer interviews the applicant. “Administrative processing” usually means that a security clearance is being performed in Washington, D.C. A clearance is usually required when there is a “hit,” indicating a potential match of a name check or fingerprint scan with a foreign national in a government database. Hits can occur due to name matches on various government lists, prior visa problems such as overstays or denials, or criminal arrests or convictions. Even a name, date of birth, or place of birth that closely matches someone who has a record could cause a hit. A security clearance can also be initiated based on certain answers on the DS-160 form or based on the Technology Alert List (TAL). The TAL is a list of sensitive technologies that have been identified as “dual purpose” technologies, i.e., technologies with both civilian and military applications. TAL security clearances are performed in an effort to prevent the inappropriate transfer of such sensitive technologies or materials.
Administrative processing, or security advisory opinions, are a fairly common feature of H-1B and L-1 applicants from countries such as China, India and Russia. The extra processing can add several weeks to normal wait times. In the past, attorneys could make case-specific inquiries about administrative processing through a dedicated State Department Legalnet email inquiry channel if the processing lasted 60 days or longer.
Elimination of this avenue of inquiry may cause further delays, as these inquiries will no longer be addressed at the Departmental level. Many consular posts are non-responsive to inquiries.
BAL Analysis: Applicants are reminded to apply early for visas and plan for extra time in case the consulate initiates administrative processing. Where applicants are flagged for additional processing, they should work with their BAL attorney to coordinate their communication with the U.S. Embassy or Consulate to carefully track delays and ensure that the proper information is submitted. Unfortunately, there is usually no way to know in advance if further administrative processing will be required and there is no way to expedite the process. Applicants are first advised whether they need administrative processing at the conclusion of the visa interview.
The U.S. State Department has released the October 2014 Visa Bulletin.
The priority dates for nationals of China in the EB-3 (employment-based third preference) category will advance moderately by five months to April 1, 2009. EB-3 priority dates will also advance by five months for workers from Mexico and the Philippines to Oct. 1, 2011 (from April 1, 2011 for both countries), and the priority dates will show a one-week advancement for EB-3 India from Nov. 8, 2003 to Nov. 15, 2003. EB-3 priority dates worldwide will advance by six months to Oct. 1, 2011.
Priority dates will advance slightly for China in the EB-2 category to Nov. 15, 2009 (from Oct. 8, 2009). EB-2 India will remain constant at May 1, 2009. All other countries will continue to be current in the EB-2 category.
The EB-1 category will remain current across all countries.
EB-1 Current across all countries
EB-2 China: Nov. 15, 2009 India: May 1, 2009 All other countries: Current
EB-3 China: April 1, 2009 India: Nov. 15, 2003 Mexico: Oct. 1, 2011 Philippines: Oct. 1, 2011 All other countries: Oct. 1, 2011
The outbreak of the deadly Ebola virus in West Africa has prompted numerous national responses affecting travel and immigration rules and procedures around the world. The disease has infected an estimated 3,685 people and claimed 1,841 lives as of Aug. 31, according to the most recent World Health Organization figures.
BAL Analysis: The Ebola outbreak is beginning to affect worldwide travel and border procedures. BAL will update clients about further changes.