New H-1B Visa Lottery Process

U.S. Citizenship & Immigration Services  (USCIS) has announced a proposed rule that will dramatically shift how H-1B visa petitions are selected in its H-1B cap lottery selection system.  The proposed regulation would create a mandatory online preregistration system for employers to register each individual’s H-1B cap petition and reverse the order in which USCIS selects H-1B petitions under the H-1B cap and advanced degree exemptions.

Currently, the H-1B visa allows U.S. employers to temporarily employ foreign nationals with a bachelor’s degree or higher in occupations that require a theoretical and practical body of highly specialized knowledge.  Each year, on April 1st, USCIS makes 85,000 H-1B visas available.  If USCIS received more than 85,000 petitions, they institute a computer-generated lottery system to randomly select the petitions that will be adjudicated. 

Employer Pre-Registration System

Under this proposed rule, USCIS would create a mandatory online preregistration process whereby those employers who intend to file H-1B cap petitions would be required to submit an online registration for each potential H-1B beneficiary, during a designated registration period before April 1st.  USCIS would then conduct a lottery and select registrations to meet the H-1B visa cap.  Those registrations that are selected will be notified and given a 60-day window in which to file their H-1B visa petition on behalf of the foreign worker named in the original registration.  According to the proposal, an employer could potentially wait until they have been notified of selection before filing a Labor Condition Application and preparing the corresponding H-1B petition for the intended beneficiary.

The online registration would request information about the employer (i.e. company name, address, Federal Employer Identification Number, etc.), along with information about the intended H-1B worker (i.e. name, date of birth, citizenship, passport, and education credentials).  There will be no fee to register an H-1B worker, but employers would be limited to one registration per individual per year.

The preregistration period would begin at least 14 days before April 1st and last for at least two weeks.  USCIS would announce the dates for the preregistration period online at least 30 days before it starts.   

New Lottery Selection Process

While the H-1B cap will remain at 85,000, USCIS intends to reverse the lottery order in which it selects H-1B petitions for adjudication, to increase the amount of H-1B visas awarded to foreign nationals with U.S. master’s degrees and higher.  Currently, USCIS first conducts a lottery for 20,000 H-1B visas for individuals with a U.S. master’s degrees and higher (the “advanced degree cap”).  Those individuals with advanced degrees not selected in that lottery are added to the pool of 65,000 H-1B visas (the “regular cap”), for another chance to be selected with individuals who only have a bachelor’s degree.  Under the proposed rule, USCIS would conduct the regular cap lottery first and include all advanced degree holders.  Those with advanced degrees not selected in the regular cap would be placed in a second lottery, if there are enough advanced degree holders to meet the advanced-degree lottery.

In accordance with the Trump administration’s previous announcements for employment-immigration reforms, USCIS believes this change to the lottery system would increase the chances of H-1B visas to be awarded to individuals with U.S. master’s degrees and higher.   

Implementation

Currently, these are only proposed rule changes.  While USCIS has stated their intention to have these new rules in place before the April 1, 2019 H-1B visa season, the proposed regulations also would allow USCIS to temporarily suspend the registration process due to technical challenges with the registration process or online system.  In the meantime, employers and foreign nationals should submit their public comments on this proposal HERE, before January 2nd.

What Employers & Foreign Nationals Should Do Now

Regardless of whether USCIS will be able to implement these changes before the April 1st H-1B filing deadline, employers and foreign nationals should begin preparing H-1B petitions NOW for the possibility that they will need to submit their complete H-1B visa petitions on April 1st.   

For any questions on the H-1B visa process or these changes, please feel free to contact me.

Registration Information for Diversity Green Card Lottery

The annual Diversity Immigrant Visa Lottery, which makes available 50,000 permanent resident visas ("green cards") to natives of countries deemed to have low rates of immigration to the U.S., is now open for online registration until November 6, 2018.  The Diversity Lottery is FREE and applications must be filed online through the official Department of State Diversity Lottery website.  Please visit the State Department Diversity Immigrant visa information site for eligibility information and to apply.  

Only applicants from certain eligible countries can apply in the Diversity Lottery, and must meet certain educational or work requirements (i.e. having a high school education or having worked in 2 of the last 5 years in a qualifying occupation).  

Lottery winners will be selected at random next year and can check whether they have been selected starting May 1, 2019.

Temporary Suspension & Increased Costs for "Premium Processing"​ of Visas

U.S. Citizenship & Immigration Services (USCIS) has announced two major changes to their "premium processing" programs, which allows employers and foreign nationals to pay an optional USCIS filing fee to guarantee a response on their petition within 15 days.  The first announcement is an increase in the premium processing fee.  Beginning October 1, 2018 the premium processing fee will increase from $1,225 to $1,410.  

USCIS' second announcement is an extension of their ongoing suspension of “premium processing” for most H-1B visa petitions until February 19, 2019.  USCIS had previously announced that they were temporarily suspending premium processing for new, cap-subject H-1B visa petitions until September 10, 2018.  This new announcement, however, extends the previously annouced temporary suspension through February 19, 2019.  Additionally, beginning September 11, 2019, USCIS will also stop accepting premium processing for any H-1B petition seeking new employment, transfer (i.e. “change of employer”), or amendment which are filed with either the Vermont or California Service Centers until February 19, 2019.

USCIS will, however, continue to accept premium processing for H-1B petitions filed at the Nebraska Service Center by an employer requesting a “continuation of previously approved employment without change with the same employer,” and premium processing for H-1B cap-exempt petitions (such as university, nonprofit research institutions, government research organizations) which are filed only with the California Service Center.

While this temporary suspension of premium processing now impacts most H-1B petitions, it does not affect premium processing for other nonimmigrant visa petitions (including L-1, O-1, TN, and others).  Additionally, USCIS will continue to accept premium processing for H-1B petitions filed prior to September 11, 2018 (when the suspension goes into effect).

This announcement is likely to have a major impact on U.S. employers, international students, and most immigrants seeking U.S. work visas.  First, this news likely means that USCIS processing times for all USCIS filings may increase, causing delays in visa issuance.  Even though, in cases of an H-1B transfer, an H-1B employee can begin working with a new employer upon the filing of the transfer with USCIS, many H-1B employees prefer to wait until they actually receive their H-1B transfer approval notice from USCIS before starting employment with a new employer.  As a result, this may cause delays for employers seeking to onboard new employees.

Additionally, international students currently availing H-1B “cap gap” extensions of their OPT and still awaiting USCIS approval of their cap-subject H-1B petition will need to be mindful of their authorized stay in light of USCIS’ recent unlawful presence memorandum for foreign students.  

In light of this news, H-1B employers and foreign nationals seeking to file any H-1B petitions should plan accordingly.  For assistance in preparing for these or delays, please feel free to contact us.

New Immigration Policy to Deny Cases Without Issuing RFE or NOID

U.S. Citizenship and Immigration Services (USCIS) has released a new policy that gives immigration adjudicators discretion to deny any and all visa applications or petitions without first issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) in cases where initial evidence is missing or does not establish eligibility. This new guidance, which becomes effective September 11, 2018, replaces a prior policy which instructed adjudicators to request additional evidence in a case, unless there was no possible way that additional evidence could fix a deficiency in the case.

The intent of this guidance is to provide immigration officers with more discretion to deny a visa application without requesting further information first. This policy has even greater implications in light of USCIS’ other recent announcement instructing officers to initiate removal (deportation) proceedings if, upon denial of an application or petition an individual is unlawfully present in the United States. 

As USCIS continues to shift away from a focus on immigration benefits to a focus on immigration enforcement and stricter standards for approval of visa petitions, employers and foreign nationals should consider the following strategies to avoid consequences imposed by these new rules:

  • Take all precautions to ensure visa petitions and applications are filed with the requisite documentation and evidence. This includes overdocumenting how the employer and employee meet all of the visa eligibility requirements.
  • Applications to extend nonimmigrant visa status (including H-1B, L-1, O-1, and others) should be filed as early as possible (up to 6 months before expiration) to avoid any lapses in nonimmigrant status.
  • Employer’s should continue to extend the nonimmigrant status of their foreign national employees until their applications for lawful permanent residence are approved, in order to avoid situations where the employee is in unlawful presence and could be deported.
  • Employer’s should consider utilizing USCIS’s “premium processing” program when filing “change of employer” visa petitions to quickly obtain work authorization for a candidate and not have a candidate risk changing employers without an approval.

These new USCIS policies reinforce the importance of ensuring all visa petitions and applications include the required evidence to show the applicant meets the visa eligibility requirements. The chances of having a family or employment-based visa petition or application denied are significantly reduced when working with qualified immigration counsel to prepare a comprehensive application.

For more information or advice on how to navigate these or any other immigration policy changes, please don’t hesitate to contact me.

USCIS Policy Change Regarding Deportation Proceedings for Visa Applicants

U.S. Citizenship and Immigration Services (USCIS) has announced a sweeping new policy, effective immediately, that instructs USCIS officers to initiate removal (deportation) proceedings if, upon denial of an application or petition, an individual is unlawfully present in the United States. This new policy requires USCIS to issue a Notice to Appear (NTA) – a document issued to a foreign national instructing them to appear before an immigration judge for removal proceedings – in the following circumstances:

  • Where fraud or misrepresentation are substantiated or where an applicant abused any program related to the receipt of public benefits;
  • Criminal cases where an applicant is convicted of or charged with a criminal offense, or has committed acts that are chargeable as a criminal offense, even if the criminal conduct was not the basis for the denial or the ground of removability;
  • Where USCIS denies an Application for Naturalization on good moral character grounds because of a criminal offense;
  • Upon the denial of an application or petition, when an applicant is unlawfully present in the U.S.

This new policy is expected to dramatically impact a wide range of foreign workers, students, and U.S. employers. While historically NTAs have rarely been issued to employment-based visa applicant’s after the denial of an application, this policy shift appears to fall in line with President Trump’s executive orders focused on immigration enforcement and prosecution

Examples of employer-sponsored foreign nationals who may now be subject to removal proceedings include:

  • Individuals who have their application to extend or change to H-1B, L-1, or other nonimmigrant visa status denied, and whose visa status has expired while waiting for USCIS to adjudicate their application.
  • Individuals who have their application to change employers denied, and whose visa status has expired while waiting for USCIS to adjudicate their application.
  • Students who have their applications to extend their F-1 status or applications to change status to H-1B denied, and who have now fallen out of status under their student visa.
  • Individuals who have their application for either employment-based or family-based adjustment of status to permanent residence denied, and who now no longer have any nonimmigrant status.

While it is not clear how USCIS will implement these new guidelines, this change will nevertheless likely affect the lives of many individuals who have lived and worked in the U.S. lawfully for years. Foreign nationals that receive an NTA are advised to speak to qualified counsel to handle this sensitive matter. For questions on this or any immigration matter, please feel free to contact me.

Immigration Policy Changes for Foreign Students & Exchange Visitors

U.S. Citizenship & Immigration Services (USCIS) has recently issued two updates that may have major consequences for foreign students and exchange visitors.

Most recently, USCIS issued a policy memorandum which changes the way USCIS will interpret and calculate unlawful presence for F-1 and J-1 visa holders (including their dependents).  Generally, a foreign national who remains in the U.S. beyond the expiration date of their I-94 Arrival/Departure Record begins to accrue unlawful presence, and in certain circumstances, may be subject to a 3-year or 10-year bar to re-admission to the United States.  Under the previous policy, however, foreign national students and exchange visitors who are granted duration of status (D/S) would not begin to accrue unlawful presence until either USCIS made a formal determination that a status violation had occurred or an immigration judge ordered a foreign national deported.

Under the new policy, starting August 9, 2018, F-1 and J-1 visa holders will begin to accrue unlawful presence on the earliest of the following:

  • The day after the student/exchange visitor no longer pursues the course of study or authorized activity, or the day after the person engages in unauthorized activity
  • The day after the grace period, after completing the course of study, program, or practical training (OPT/CPT)
  • The day after the person’s Form I-94 Arrival/Departure Record expires;
  • The day after an Immigration Judge orders the person deported or removed.

Simply put, this new policy, will have a dramatic impact on F-1 and J-1 nonimmigrants who are not vigilant with respect to maintaining valid status and/or are engaging in “unauthorized activity.”  

Additionally, last month, USCIS updated its website regarding STEM OPT extensions , which allow F-1 STEM gradates to obtain an additional 24 months of Optional Practical Training (OPT) work authorization to work for employers that participate in the E-Verify program.  The new USCIS guidance no longer permits students to engage in STEM OPT at third party worksite locations (even if the employer maintains the requisite employer-employee relationship with the STEM worker).

This new guidance changes previous policy which only required the student be a bona fide employee of the employer signing the I-983 training plan.  Now, any employees performing duties at sites not controlled by the E-Verify employer could risk being in violation of their status.

These updates are very nuanced and complex, especially when it comes to when and whether someone is in violation of their status or engaged in unauthorized activities.  As always, if you have questions on these issues or how to maintain status, please don’t hesitate to contact me

H-1B Visa Cap Met. What Are Your Alternative Immigration Options?

U.S. Citizenship & Immigration Services (USCIS) has announced that it reached the annual 85,000 H-1B visa cap in the first five days of April 2018.  Specifically, USCIS received 190,098 H-1B cap cases (a 4% drop from last year), which means that once again, USCIS will conduct a computer-generated lottery in the coming weeks to determine which petitions they will process. Employers who have their petitions selected in the lottery will receive a receipt notice from USCIS, and if approved, can have their employees begin working for them in H-1B status on October 1, 2018. Petitions that are not selected in the lottery will be returned to the employers with their money back.

USCIS will continue, however, to accept H-1B petitions year-round from employers who are exempt from the H-1B cap (such as universities, nonprofits affiliated with institutions of higher education, or nonprofit research organizations), as well as petitions to extend the status of those currently in H-1B status or for those in H-1B status seeking to change employers.

While no more new H-1B visas will be available for employers and foreign nationals seeking to apply in 2018, many candidates may be eligible for other alternative visa options. The following visa categories are available throughout the year, without numerical caps, for qualifying foreign nationals:

  • L-1 Visa: For intracompany transferees who have worked for a foreign entity for one year and are seeking to transfer to a U.S. subsidiary, affiliate, parent, or branch office in the U.S. in a managerial, executive, or specialized knowledge capacity
  • E-1/E-2 Visa: For international investors or traders from certain treaty countries looking to engage in substantial trade between the U.S. and their foreign country or to develop and direct the operations of an enterprise in which the foreign national has invested. The E-1/E-2 visa is a great option for foreign entrepreneurs seeking to work in an essential capacity for their U.S. entity.
  • O-1 Visa: For foreign nationals of extraordinary ability who have achieved national and international recognition for extraordinary achievements in their field of endeavor.
  • TN Visa: For Canadian and Mexican citizens employed in certain professional categories seeking to engage in U.S. employment. Examples of qualifying TN professional occupations include, but are not limited to Engineer, Accountant, Architect, Computer Systems Analyst, Geologist, Geophysicist, Graphic Designer, Management Consultant, Scientific Technician, Engineering Technicians, and many occupations in the medical and allied health field.
  • H-3 Visa: For foreign nationals coming to the U.S. to engage in a course of training.
  • E-3 Visa: For Australian citizens who will be employed in a specialty occupation in the U.S. (similar requirements to the H-1B visa).

Watch our immigration videos for additional information on these visas and to learn more about the eligibility requirements. As always, if you have questions about the H-1B visa cap or any of these work visa options, please contact our office.

USCIS Will Temporarily Suspend Premium Processing for New H-1B Petitions

U.S. Citizenship & Immigration Services (USCIS) has once again announced that starting April 2nd, 2018 premium processing for new, cap-subject H-1B visa petitions will be temporarily suspended.  With premium processing, employers can pay an optional USCIS filing fee to guarantee a response on their petition within 15 days.  This temporary suspension is expected to last until September 10, 2018. While H-1B premium processing is suspended, petitioners will not be able request premium processing for new, cap-subject H-1B visa cases.

This suspension of premium processing (similar to the one last year) applies only to new H-1B petitions filed, generally, by for-profit companies that are subject to the 85,000 annual H-1B visa cap. Meaning, this will apply to ALL petitions filed for the FY19 H-1B regular cap and master’s advanced degree cap exemption (the “master’s cap”) and any of these petitions filed with a request for premium processing will be rejected.

The premium processing suspension will NOT, however, apply to petitions that may be cap-exempt (i.e. H-1B workers who will work for or at a university or affiliated nonprofit or research institute), nor will it apply to H-1B extension or change of employer petitions. This temporary suspension of premium processing does NOT apply to other eligible nonimmigrant classifications filed on Form I-129, either.

Even though premium processing is temporarily suspended, employers may still submit a request to expedite an H-1B petition if they meet the criteria on the Expedite Criteria webpage.  The reason for the temporary suspension will allow USCIS to reduce overall H-1B processing times. 

If you have further questions on the H-1B visa process, please feel free to contact me.

Winning The H-1B Visa Lottery

Starting April 2, 2018, U.S. Citizenship and Immigration Services (USCIS) will begin accepting H-1B petitions for Fiscal Year 2019. As in years past, if USCIS receives more than the available 85,000 H-1B visas in the first few days of April, they will use a computer-generated random lottery to select the petitions they will process. Based on the number of petitions received in the first few days of April last year (over 199,000) and the previous year (over 236,000), combined with the current market demand for high-skilled labor and reports of possible changes to visa programs in the future, many our anticipating that USCIS will receive over 200,000 H-1B petitions in the first few days of this April. 

Accordingly, time is running out for employers to timely prepare their H-1B petitions for submission to play in this H-1B lottery on April 2nd. Generally, it takes at least 10-14 days to prepare and file an H-1B petition, due to the prerequisite filing requirements of the Labor Condition Application (LCA), which takes up to 7 business days to certify. Therefore, if you are responsible for your businesses' immigration planning and processing and you have already identified your H-1B candidates, please initiate the H-1B visa process in the next two weeks to ensure it is timely filed. 

In light of recent reports of proposed changes to the H-1B work visa program by the Trump administration, USCIS has confirmed that it intends for the H-1B filing process and procedures to remain the same as it has in previous years.  Nevertheless, as indicated by the massive increase of Requests for Evidence (RFE) and denials of H-1B petitions issued by USCIS over the past year, employers and foreign nationals should be prepared to evidence the following, in order to increase their chances of getting their visa petitions approved:

  1. Document the specific scope and educational requirements for the position to show that the position is one which requires a Bachelor’s degree as a minimum to enter the occupation.
  2. Review the prevailing wage rates for the occupation through the Department of Labor’s Wage Surveys to determine whether the wage level is appropriate for the professional position you are hiring for.
  3. Document the nexus between the foreign national’s degree and the occupation they will be hired for.

WATCH my conversation on how to overcome issues with H-1B RFEs

Needless to say, the H-1B visa petition can be a technical and cumbersome application to file.  Working with qualified counsel will help to ensure technical mistakes are avoided and that a comprehensive petition will have the best chance at winning in the H-1B visa lottery.  If you have any questions about the H-1B visa process, please don’t hesitate to contact me.

H-1B Visa Season Starts NOW

In light of recent reports of proposed changes to the H-1B work visa program by the Trump administration, U.S. Citizenship & Immigration Services (USCIS) has confirmed several important details about the upcoming H-1B visa filing season, which will commence on April 2, 2018. Most importantly, USCIS intends for the H-1B filing process and procedures to remain the same as it has in previous years. This is to say that there will be no "preregistration system" and if the petitions received by USCIS exceed the 85,000 numerical cap, a lottery will be used to select the petitions for processing. USCIS also hinted that they may impose a "short" suspension of "premium processing" for H-1B cap petitions (but not non-cap H-1B petitions), as they did last year.

Demand by U.S. employers for H-1B visas on behalf of “highly-skilled” foreign employees was, once again, at high levels last year and is expected to remain high this year. Because it is expected that the 85,000 available H-1B visas will be gone within the first week of April, U.S. businesses should file their H-1B visa petitions on April 2, 2018. Due to prerequisite filing steps which must be completed before the H-1B petition can be submitted to USCIS, however, employers should begin preparing their petitions now to ensure they are ready to submit on April 2nd.

Despite rumors of potential changes to the H-1B visa program, the H-1B filing process and procedures will remain the same as they did in previous years.  Therefore, employers should assess their upcoming workforce needs and identify whether any foreign national employees will require H-1B visa sponsorship. These individuals may include:

  • New graduating foreign students in the U.S.
  • Overseas individuals seeking to start work in the U.S.
  • Foreign individuals in the U.S. already working under a different nonimmigrant status for a different employer and are seeking to change jobs

Failure to file your H-1B petition on April 2nd may jeopardize your chance at securing an H-1B visa for your employee. After the 2018 H-1B visas are gone, employers will have to wait until April 1, 2019 to file H-1B petitions again, and foreign employees may lose their lawful status and authorization to work. The clock is ticking…don't delay!

If you have any questions about the H-1B visa process, contact me.

Potential Changes to High-Skilled Immigration Programs in 2018

The Trump administration’s future immigration intentions were recently announced in their semi-annual Unified Agenda. The Unified Agenda lists possible regulations under development by federal agencies for the coming year. The announcement indicates the administration’s plans to undo Obama administration immigration benefits and impose tighter restrictions on nonimmigrant visa categories, such as the H-1B, H-4, and Optional Practical Training (OPT) for F-1 students.

The agenda specifies the administration’s intent to make the following policy changes in connection with Trump’s “Buy American, Hire American” executive order:

  • H-1B Eligibility: Redefining what a “speciality occupation” is for H-1B visa purposes to “increase the focus on truly obtaining the best and brightest.” The proposal would also “revise the definition of employment and employer-employee relationship to better protect U.S. workers and wages.” This includes “additional requirements to ensure employers pay appropriate wages to H-1B visa holders.” The rule would also impose additional restrictions on H-1B dependent employers that rely on large H-1B workforces and those employers who have H-1B employees working off-site.
  • H-1B Lottery: Revising the H-1B visa lottery system to establish an electronic pre-registration program for cap-subject H-1B applicants, and tweaking the electronic lottery selection process to award visas to the “most skilled or highest-paid petition beneficiaries.”  
  • H-4 Work Authorization: Elimination of the regulation that allow H-4 visa holders (spouses of H-1B visa holders) to apply for work authorization. The Trump administration has previously indicated its intent to remove this Obama rule which has provided work permits to thousands of H-4 spouses.
  • OPT for F-1 Students: Reforming the OPT program for foreign students (which allows international students to work in the U.S.) in order to reduce fraud and improve protections for U.S. workers who may be impacted by employment of foreign students. Plans include limiting student work opportunities and terminating Obama’s STEM-OPT extension rule, which provides extended work authorization for foreign students with U.S. STEM degrees, from 17 months to 24 months.  

These announcements do not currently modify or rescind any of the above mentioned immigration programs, and any changes to immigration policy can only be accomplished through notice and comment of proposed rulemaking in the federal register. This means that individuals and companies that may be affected by potential policy changes will have an opportunity to submit comments to the government before the policy becomes effective. The notice/comment process can typically take in excess of 6 months, which means the administration may not have enough time to enact changes to the H-1B visa program in time for this year’s filing season (which begins on April 2, 2018). 

As always, individuals and employers who may impacted by any of these potential changes should contact us with questions on how to best prepare.

Massive Workforce Compliance Inspections Coming

Immigration & Customs Enforcement (ICE) has ordered the Homeland Security Investigations (HSI) unit to “quadruple to quintuple” the current number of routine workplace investigations of U.S. employers in the coming year.  While the Trump administration’s immigration enforcement efforts have thus far mostly focused on undocumented individuals, the goal of ICE’s new strategy is to target employers.  In particular, these workplace investigations will focus on audits of employers Employment Eligibility Verification, Forms I-9 and other employment records to determine whether employees (be they U.S. citizens or foreign nationals) are lawfully work authorized.  

ICE’s plan to ramp up worksite investigations increases the risk of significant civil penalties and possible criminal prosecution for employers who fail to comply with U.S. employment laws.  Additionally, business owners, executives, and Human Resources staff may personally face increased risk for simple Form I-9 “paperwork” errors.  

All U.S. employers must complete a Form I-9 for all of their employees in order to verify their identity and work authorization.  An employer who fails to properly complete and retain a Form I-9 for each and every employee, faces fines and penalties ranging from $539 to $2,156 for each paperwork violation.  Therefore, employers should take this opportunity to evaluate their current I-9 policies and procedures to ensure they are in compliance with the latest I-9 and E-Verify rules. In particular, employers should:

  • Review current I-9 policies and practices with qualified counsel.  This includes careful analysis of all workforce compliance practices to mitigate errors and mistakes on the form;
  • Develop formal I-9 and E-Verify protocols for detecting, preventing, and improving against I-9 violations.  For example, store an employee’s Form I-9 separate from other personnel records and separate current from terminated employees;
  • Mitigate historical I-9s with qualified counsel to help avoid against fines and penalties for certain technical or procedural errors on the forms.  Only certain I-9 deficiencies can be mitigated, but must be done accurately so as not to make deficiency worse;
  • Develop, implement, and maintain compliance policies for worksite raids and for managing CE Fraud Detection & National Security (FDNS) visits for nonimmigrant visa employees.

For any questions on employment eligibility or workforce compliance issues, please feel free to contact us.

Visa Extensions Will Face Higher Scrutiny

U.S. Citizenship and Immigration Services (USCIS) has annouced updated policy guidance, which now instructs immigration officers to apply the same level of scrutiny to both initial visa petitions and visa extension petitions in certain nonimmigrant categories, including the H-1B visa.  This new policy rescinds the current practice which instructs officers to give “deference” to the findings of a prior approved visa petition when adjudicating petition extensions (i.e. visa renewals), as long as the key elements were unchanged and there was no evidence of a material error or fraud related to the prior determination.

This new policy will impact all employers who are seeking to file an extension of a nonimmigrant visa for any of their international employees.  In particular, those individuals who may currently be on an H-1B, L-1A, L-1B, O-1, E-3, or other nonimmigrant visa will likely face increased scrutiny in the adjudication of their petition to extend/renew their visa.  Based on this new USCIS guidance, employers should prepare to demonstrate and document each and every eligibility criteria for a particular visa, as if they are filing a new petition.  This new policy, along with the recent announcement requiring in-person interviews for individuals seeking employment-based green cards, may also continue to lead to delays in visa processing.

This change, once again, appears to fall in line with President Trump’s “extreme vetting” immigration plans.  Nevertheless, it should always be the practice of a qualified immigration attorney to file all visa petitions (including visa extensions) as a standalone petition, evidencing how the Beneficiary and Petitioner meet the eligibility criteria for the visa.  Even more so now that USCIS may use this policy to essentially re-adjudicate the initial visa petition when adjudicating visa extension petitions.  Employers and applicants should therefore work closely with counsel to provide substantial documentation of compliance with the current terms of employment (i.e. worksite information, salary, job duties, etc.), along with evidence of maintenance of immigration status and the job that will be performed during the requested visa extension time period.   Our office will continue to monitor the rollout of this new policy. For questions or help in preparing your visa extension petition, please contact us.

Diversity Visa Green Card Lottery Is Accepting Applications

The annual Diversity Immigrant Visa Lottery, which makes available 50,000 permanent resident visas ("green cards") to natives of countries deemed to have low rates of immigration to the U.S., is now open for online registration until November 7, 2017.  The Diversity Lottery is FREE and applications must be filed online through the official Department of State Diversity Lottery website.  Please visit the State Department Diversity Immigrant visa information site for eligibility information and to apply.  

Only applicants from certain eligible countries can apply in the Diversity Lottery, and must meet certain educational or work requirements (i.e. having a high school education or having worked in 2 of the last 5 years in a qualifying occupation).  

Lottery winners will be selected at random next year and can check whether they have been selected starting May 1, 2018.

USCIS Resumes Premium Processing for H-1B Cases

U.S. Citizenship and Immigration Services (USCIS) has announced that, it will resume “premium processing” for all H-1B visa cases, including pending H-1B visa cap-subject petitions.  USCIS temporarily suspended premium processing of all H-1B petitions in April 2017, however, this new announcement means that all H-1B cases, including pending petitions pursuant to both the 65,000 “regular” H-1B cap and the 20,000 “advanced degree” cap, H-1B extension petitions, and H-1B change of employer petitions are now eligible to take advantage of premium processing.  

With premium processing, employers can pay an optional USCIS filing fee to guarantee a response on their petition within 15 days.  Employers seeking to expedite the processing of a pending H-1B cap-subject case, including cases which require responses to Requests for Evidence (RFEs) from USCIS, should contact an attorney to take advantage of this program.

Guidance for Trump's New Travel Ban

President Trump has rolled out a new travel ban, after the previous 90-day travel ban expired yesterday.  This new policy continues the existing travel restrictions to the U.S. for most citizens of Iran, Libya, Somalia, Syria and Yemen, and now adds the countries of Chad, North Korea and Venezuela.  The new restrictions range from full travel bans on nationals from countries like Syria, Chad, and North Korea to more targeted restrictions for Venezuela, Iran, Libya, and Yemen.  For example, the suspension of nonimmigrant visas to citizens for Venezuela, applies only to senior government officials and their immediate families.  Iranian nationals will only be allowed to enter the U.S. using valid student and exchange visitor visas, but such visitors will have to undergo "enhanced screening and vetting requirements."

These news restrictions, which will take effect on October 18, 2017 and will be in place for an indefinite period of time.  The order does not apply to lawful permanent residents, existing visa-holders, or foreign nationals currently within the United States.  The Department of Homeland Security may also grant waivers on a case-by-case basis for students and workers with significant U.S. ties who happened to be outside the country when the order was enacted, among others.

Once again, as a result of these actions, many in the immigrant community are confused and scared – I understand!  Despite all that you read or hear in the news or from your friends and family, this is not a time to panic or to make hasty decisions.  It is a time for calm, rational thinking and for informed, conservative and proactive planning.  In that regard, I suggest the following:

  1. If you are a citizen of one of the countries listed in this new travel ban, do not travel out of the U.S.  The Executive Order does not apply to you if you merely visited one of these countries.
  2. If you have a non-immigrant visa and you plan to travel out of the U.S. please consult with an Immigration Attorney first.  In this climate of enhanced enforcement it is prudent to be able to document your status as much as possible in the event you are subject to additional scrutiny by an overly aggressive immigration officer upon your return.
  3. Consideration should be given to accelerating any immigration planning (i.e. extensions of status, green card processing, etc.) in order to take advantage of the existing laws and regulations. It is possible that these policies may continue to become more restrictive.

As evidenced by the prior travel bans, the current administration is intent on restricting travel to the U.S..  Once again, I sympathize with the fear and uncertainty many may be feeling right now - I come from a family of immigrants.  It pains me that the country whose doors gave my family refuge in their time of need is now trying to close those same doors to others.  I believe that these times too shall pass and that better times lie ahead.  Until then I will do everything I can to ease your fears and help you through this difficult period.

Please sign up for updates on the current situation and I will provide you with developments as they take place.  In the interim, please feel free to call me any time to discuss any of your concerns.

What DACA Recipients & Employers Need to Know About The End of DACA

President Trump has announced his plans to terminate the Deferred Action for Childhood Arrivals (DACA) program, which provides “temporary relief from deportation” and work authorization for certain undocumented immigrants who arrived in the U.S. when they were minors. There are over 800,000 DACA beneficiaries across the country, the majority of whom are legally employed by U.S. employers.

As of September 6, 2017, U.S. Citizenship & Immigration Services (USCIS) will no longer be accepting new DACA applications, however, current DACA recipients will be permitted to retain both the period of deferred action and their employment authorization until they expire. Individuals who currently have an initial DACA request pending with USCIS will have their cases adjudicated on a case-by-case basis. Those individuals with their deferred action expiring before March 5, 2018 must apply to renew their DACA (for a two-year period) before October 5, 2017. After March 6, 2018 no more DACA renewal applications will be accepted by USCIS.

WORK AUTHORIZATION

Through the DACA program, beneficiaries receive Employment Authorization Documents (also known as “work permits” or “EAD” cards) which provide lawful work authorization with U.S. employers. These cards are issued for limited periods of time and have expiration dates. Despite this new policy which will terminate the ability to renew EAD cards, current valid EAD cards will continue to provide lawful work authorization for those beneficiaries, until the EAD expires. This means DACA beneficiaries are allowed to legally continue working for U.S. employers with their EAD card until the expiration date on the card. While employers may not be aware of their employees who are on DACA until it comes time to reverify an employee’s work authorization in the Form I-9, Employment Eligibility Verification process, employers are not legally obligated to terminate an employee until after their EAD card has expired. 

SOCIAL SECURITY NUMBERS, DRIVER’S LICENSES, AND ADVANCE PAROLE CARDS

Social security numbers for DACA recipients will remain valid and can continue to be used for banking, education, housing, and other reasons. Driver’s licenses should also remain valid until the expiration date of the card (but double check with your State’s motor vehicle department to confirm). While the Department of Homeland Security (DHS) has indicated they will still honor valid Advance Parole documents, which provide immigration officers with discretionary authority to permit an individual to return to the U.S. after foreign travel, DACA beneficiaries are advised not to travel internationally, due to the risk of being denied re-entry into the U.S. upon return.

IMMIGRATION ENFORCEMENT

Information which DACA recipients provided to DHS in their DACA applications will not be proactively provided to Immigration Customs Enforcement (ICE), Customs and Border Protection (CBP), or shared with other law enforcement entities for the purpose of immigration enforcement proceedings, unless an individual poses a risk to national security or public safety. ICE has said that it has no plans to target DACA holders as their permits expire and that they will continue to remain low enforcement priorities. 

OTHER IMMIGRATION OPTIONS

DACA recipients may be eligible for other immigration relief either through family or employment. Employers with overseas offices may be able to employ affected individuals abroad. DACA recipients may be able to obtain work authorization and/or lawful residence in another country and may even be able to do so from within in the United States. 

Individuals and employers should contact qualified legal counsel to understand their options. As always, we will continue to monitor this recent DACA update and continue to provide additional analysis as information continues to become available. If you have any questions, please feel free to contact us.

New Immigration Interviews for Employment-Based Green Cards

U.S. Citizenship and Immigration Services (USCIS) has announced that beginning October 1st in-person interviews will be required for individuals seeking to adjust from an employment-based nonimmigrant status (i.e. H-1B, L-1, O-1, etc.) to lawful permanent residence (or “green card”) status in the United States.  Interviews will also be required for family members of refugees or asylees who are seeking to join a principal asylee/refugee applicant.  While current policy generally waives interviews for employment-based adjustment of status applications, the new change is part of President Trump’s “extreme vetting” immigration policies.  

According to the USCIS announcement, immigration officers will interview employment-based green card candidates to verify the information provided in their I-140 applications and/or to discover new information and assess the credibility of the applicant in the interview.  In cases where an applicant may have ported his/her employment to a new employer, an immigration officer may seek to confirm whether the new employment is in the same or similar occupational category.

Employers and applicants should prepare for substantial delays in the adjudication of I-485 Applications to Adjust Status as local USCIS offices brace for the surge of now mandatory interviews.  Moreover, employers and applicants may soon see an increase in the costs associated with the permanent residency process, either in the form of increased application fees to cover the costs of hiring more USCIS officers to handle interviews, or through increased legal fees or employees needing to take leaves of absences to handle immigration processing issues.  

Applicants with pending I-485 or I-730 applications should anticipate being called into a local USCIS office for an in-person interview.  Applicants should be prepared in the interview to discuss the immigration benefit they are applying for and should have a complete understanding of the application that was filed on their behalf.  Employment-based green card applicants should be able to discuss the position they are working in, including where they work, what their pay is, and what their specific job duties are.  Family members of refugees/asylees should be prepared to prove their family relationship.  

This new change to the permanent residency process is expected to be onerous.  Employers and applicants should work closely with counsel to prepare for this interview process.  Our office will continue to monitor the rollout of this new policy.  For questions or help in preparing for these interviews, please contact us.

New Employment Eligibility Verification, Form I-9

U.S. Citizenship & Immigration Services (USCIS) has annouced the release of a new version of the Employment Eligibility Verification, Form I-9, which is used to verify the identity and employment authorization of individuals hired to work in the United States. Employers and Human Resources staff may begin using this new Form I-9 or continue to use the current version of the Form I-9 (dated 11/14/16 N) through September 17, 2017.  Beginning September 18, 2017, employers must use the new form.  

The revised form includes some cosmetic changes, along with changes related to acceptable I-9 verification documentation, including Consular Reports of Birth Abroad.  USCIS plans to update its M-274 “Handbook for Employers: Guidance for Completing Form I-9” in the near future.

This change, in addition to the recent increase in penalties for employment verification errors, are of significant importance to employers and Human Resources departments, as all U.S. employers must ensure proper completion of Form I-9 for each individual they hire.  More importantly, as the workforce compliance landscape continues to evolve, employers should take this opportunity to evaluate their current I-9 policies and procedures to ensure they are in compliance with the latest I-9 and E-Verify rules.  As part of this process, employers should:

  • Review current I-9 policies and practices with qualified counsel.  This includes careful analysis of all workforce compliance practices to mitigate errors and mistakes on the form;
  • Develop formal I-9 and E-Verify protocols for detecting, preventing, and improving against I-9 violations;
  • Mitigate historical I-9s with qualified counsel to help avoid against fines and penalties for certain technical or procedural errors on the forms;
  • Develop, implement, and maintain compliance policies for worksite raids.

For any questions on employment eligibility or workforce compliance issues, please feel free to contact us.

The End of the International Entrepreneur Rule

The Trump administration announced this week their intent to delay and ultimately rescind the International Entrepreneur Rule.  The rule, which was created by President Obama’s administration and which was set to go in to effect on July 17, 2017, would have allowed certain international entrepreneurs to be considered for parole (temporary permission to be in the United States) in order to start or grow their businesses in the U.S..  Applicants would have to show they met minimum requirements for capital investments and demonstrate that their startup would have been of benefit to the public via job creation in the U.S.

While the current administration is delaying the effective date of the International Entrepreneur Rule until March 14, 2018 and taking public comment on the rule, their intention is to rescind the rule.

For questions about this policy change, please feel free to contact us.  Foreign entrepreneurs and startups seeking alternative immigration options to the U.S. should read our article on entrepreneur visa options.