Reminder: USCIS Fee Increase Effective December 23, 2016

Any employer anticipating submission of an immigration application or petition should consider filing prior to December 23, 2016, to avoid higher USCIS filing fees.

On October 24, 2016, USCIS announced a final rule that adjusts the required fees for most immigration applications and petitions. This will be the first increase in six years and, according to USCIS, the increase is needed in order to recoup higher costs associated with customer service, case processing, fraud detection, and national security. USCIS is almost entirely funded by application and petition fees.

Another reminder: most nonimmigrant extension requests can be submitted up to 180 days prior to the expiration of the foreign national employee’s current status. Employers may want to consider filing these extension requests prior to December 23, 2016, if the individual is eligible.

Examples of the increased fees:

  • from $325 to $460 for Form I-129 (i.e., nonimmigrant petition filings seeking visa status such as H-1B, L-1, TN),
  • from $580 to $700 for Form I-140 (i.e., immigrant petition for an alien worker), and
  • from $1070 to $1,225 (including required biometrics fee) for Form I-485 (i.e., application to register permanent residence or adjust status).

Immigration applications or petitions postmarked or filed on or after December 23, 2016, without the new increased fees will be rejected. To avoid delay because of insufficient filing fees, new applications or petitions should be sent in well in advance of the scheduled fee increase.

USCIS Publishes Final Job Flexibility Rule for Employment-Based

The U.S. Citizenship and Immigration Services has published the long-anticipated final rule, “Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers.” The rule will take effect on January 17, 2017, before President Barack Obama leaves office.

The rule codifies existing policies in establishing job portability and flexibility for certain nonimmigrants, including foreign nationals in H-1B status as well as applicants whose Adjustment of Status (AOS) applications have been pending for at least 180 days.

The rule also adds the following new provisions and benefits to the employment-based immigrant and nonimmigrant landscape:

  • Provides for retention of I-140 Priority Dates and petition approvals under certain conditions. Beneficiaries of I-140 petitions can retain their Priority Date as long as the I-140 is not revoked for fraud, willful misrepresentation, invalidation or revocation of the underlying Labor Certification, or material error by USCIS. Additionally, I-140 petitions approved for at least 180 days are no longer subject to automatic revocation due strictly to employer withdrawal or termination of the business. This new provision, however, does not eliminate the need for a beneficiary to have an I-140 approved by the intending employer before adjusting status.
  • Allows certain nonimmigrants to apply for a 1-year period of separate employment authorization if they can show compelling circumstances. The individual must be in E-3, H-1B, H-1B1, O-1, or L-1 status, have an approved I-140, be subject to immigrant visa backlog, and meet the “compelling circumstances” standard. This new benefit is intended to be a stopgap measure for high-skilled nonimmigrants who have initiated the green card process and abruptly stop working. Examples of “compelling circumstances” are serious illness or disability, employer retaliation, “other substantial harm,” or significant disruption to the employer. Renewal of this work authorization is allowed in certain circumstances, and beneficiaries will be considered in a period of authorized stay, though they will not be allowed to adjust status until returning in proper nonimmigrant status.
  • Provides grace periods for individuals in certain nonimmigrant status. Nonimmigrants in E-1, E-2, E-3, L-1, and TN status are afforded a 10-day grace period on the front and back end of their status validity period (this rule extends to those visa classifications the grace period already provided to H-1B, O, and P nonimmigrants). Additionally, nonimmigrants in E-1, E-2, E-3, H-1B, H-1B1, L-1, and TN are afforded a grace period of up to 60 days (or until their petition expires, whichever is shorter) when their employment ends before the end of their authorized validity period, so they may more readily pursue new employment and an extension of their nonimmigrant status. This grace period is intended to give nonimmigrants flexibility in changing jobs or employers without suffering negative immigration consequences.
  • Codifies USCIS policy on H-1B cap and fee exemption for nonprofits related to or affiliated with institutions of higher education, while expanding “affiliation” to arrangements in which there is a written affiliation agreement and one of the nonprofit’s “fundamental activities” is contributing directly to the institution’s research or education mission. This new rule replaces USCIS’s “interim guidance” on this ground for H-1B cap exemption — accordingly, the agency will no longer provide “deference” to prior cap exemption adjudications based on affiliation with an institution of higher education.
  • Provides an automatic extension of work authorization in certain circumstances based on the timely filing of an employment authorization document (EAD) renewal application. Eligible applicants may apply up to 180 days prior to expiration of their EAD, doing so will extend work authorization automatically for up to 180 days pending the issuance of the new EAD. The renewal application must be requested on the same basis as that designated on the initial EAD. Further, the EAD must be in a category that does not rely on adjudication of an underlying benefit, such as employment authorization based on the pendency of an AOS application — thus, an EAD based on L-2, J-2, H-4 status, for example, will not qualify for automatic extension.

The new rule is expansive and includes multiple provisions that affect businesses and their employees. Jackson Lewis is available to answer inquiries about these new regulations.

New Form I-9 Issued

The United States Citizenship and Immigration Services (USCIS) has published the long awaited new Form I-9, Employment Eligibility Verification. The prior form expired on March 31, 2016. The Immigration and Nationality Act requires that employers complete a Form I-9 for all new hires after November 6, 1986, to verify employment authorization.

The new form, released on November 14, 2016, with a revision date of 11/14/2016, must be used by January 22, 2017. Until then, the prior form remains acceptable.

The new form, which has many of the same features as the prior version, contains the following updates:

  • The preparer and translator section is slightly different
  • Each form has a unique QR code
  • The instructions are separate from the form
  • The new electronic version features new drop down menus and added security

Jackson Lewis is providing a complimentary, one-hour webinar to discuss the new form on November 30, 2016. You can register at http://www.jacksonlewis.com/event/get-ready-new-i-9.

 

California Passes Law Expanding I-9 Controls

An amendment to California law expands state prohibitions against “unfair immigration-related practices” related to the hiring of foreign nationals. SB-1001 goes into effective on January 1, 2017.

According to the preamble of the bill, it is “unlawful for an employer to request more or different documents than are required under federal law, to refuse to honor documents tendered that on their face reasonably appear to be genuine, to refuse to honor documents or work authorization based upon the specific status or term of status that accompanies the authorization to work, or to reinvestigate or reverify an incumbent employee’s authorization to work, as specified.” Moreover, the statute gives aggrieved employees and applicants for employment a cause of action with the California Labor Commission’s Office.

SB-1001 expands existing prohibitions against unfair immigration-related practices under California law. First, the new law protects applicants for employment in addition to employees, thereby expanding punishable hiring practices beyond retaliatory acts against employees for attempting to exercise legal rights. Now, document abuse at the point of application for hire is included in punishable activity.

Second, SB-1001 prohibits employers from refusing to honor documents based on specific status or term of status and from attempting to reinvestigate or reverify the work status of a current employee unless by request of the federal government.

Finally, it expands enforcement by creating a new state remedy. Under the new law, aggrieved individuals can file a complaint with the California Labor Commission’s Office, which can penalize employers up to $10,000 per violation. By creating a state remedy, SB-1001 expands California’s previous system of enforcement through the U.S. Department of Justice (OSC) and federal appeals process, which the California Senate called “an overly cumbersome process.”

California employers should be alert of the new restrictions in conducting hiring procedures, including I-9 and E-Verify, and understand that document abuse is no longer limited to instances of “retaliation” against incumbent employees.

The California Assembly Committee on Labor Employment offered the following examples of employer document abuse:

  • Demanding to see a worker’s U.S. passport;
  • Asking for an Employment Authorization Document when the worker has already shown a state ID and “unrestricted” Social Security card;
  • Refusing to accept an EAD because it contains a future expiration date;
  • Asking to reverify work documents of an employee who presented a Green Card at the point of hire; and
  • Demanding to see an employee’s renewed driver’s license because the previous license used for the I-9 expired.

Hence, employers should cautiously avoid making document requests or other activities considered “unfair immigration-related practices” under the statute when dealing with new applicants as well as current employees.

Jackson Lewis is available to answer inquiries about this and other developments.

Physical Therapists Must Meet New Educational Requirements To Obtain Health Care Worker Certifications from FCCPT

Under Immigration and Nationality Act (INA) Section 212(a)(5)(C), health care workers (except physicians) who seek employment in the United States must obtain a health care worker certification from an approved independent credentialing organization. Physical therapists are among those allied health professionals subject to this requirement and commonly obtain the required certification from the Foreign Credentialing Commission on Physical Therapy (FCCPT). Until September 2016, physical therapists who possessed a bachelor’s degree in physical therapy were able to submit their credentials, including evidence of their bachelor’s degree, to FCCPT and obtain the certificate. That standard has changed, effective immediately.

For the remainder of this calendar year, all applications filed with FCCPT by September 15, 2016, that are “in review” (all documents in support of the applications have been received) or “pending” (additional documents are required to complete the applications) must show substantial equivalence to a master’s degree or higher in physical therapy in order to obtain the required certification. Applications filed after September 15, 2016, must include evidence of a master’s degree or higher in physical therapy in order to obtain the required certification. The previously issued certifications to applicants who applied based on a bachelor’s degree prior to this new rule becoming effective remain valid and applicants may obtain subsequent renewals of those certifications (if the currently valid certifications are set to expire) for the remainder of 2016 without meeting the new master’s degree or higher standard.

As of January 1, 2017, applicants for FCCPT certification must meet an even higher educational standard. They must possess a doctorate in physical therapy in order to obtain certifications from FCCPT. Here again, applications for renewals of previously issued certifications would not need to include evidence of this heightened standard in order for renewals to be issued.

This new rule dramatically changes the standards for physical therapists seeking to obtain health care worker certifications from FCCPT. All new applications for the remainder of 2016 must have evidence of a master’s degree or higher in physical therapy and all new applications starting in 2017 must have evidence of a doctorate in physical therapy. It is unclear as of this writing whether the Commission on Graduates of Foreign Nursing Schools (CGFNS), which also is authorized under INA to issue certifications to physical therapists, will change its standards similar to FCCPT’s changes.

Jackson Lewis will monitor any further developments with respect to health care worker certifications for U.S. employment.

U.S. Customs and Border Protection Rolls Out New Provisional I-94 Program

Travelers arriving at U.S. land-based ports of entry now can apply online for an I‑94 in advance of their arrival in exchange for a $6 fee under a new program U.S. Customs and Border Protection announced on September 29, 2016.

The foreign national enters into the application all necessary data for I‑94 processing (including biographical information, passport details, visa details, and petition/SEVIS number) that ordinarily is collected in-person by CBP at the port of entry. The Commissioner of CBP said the new program “increases the efficiency of the entry process and reduces administrative duties for CBP officers—ultimately resulting in shorter waits for travelers requiring an I-94.”

Under this new system, an applicant can apply up to seven days in advance of arrival and, upon paying the fee, receive a “provisional I-94,” which will become effective after being presented at the land port of entry and being processed by CBP. If the applicant fails to process their I-94 within 7 days of submitting the application, the provisional I-94 will expire and the fee will be forfeited.

Compared to CBP’s normal I-94 system, travelers should expect fewer typographical errors on the I-94 under the new system, including name spelling, birth date, and passport number, and quicker land border processing times, though that remains to be seen. Finally, whereas travelers entering from the U.S.-Canada border are occasionally admitted without receiving an I-94 or an entry stamp in their passport, they will now have a better opportunity to create a formal record of admission to the U.S., which is recommended as best practice for acquiring later U.S. immigration benefits.

There are limitations to the new program. Only travelers entering through land ports of entry can apply—those entering by air or sea will not be eligible. The new program, moreover, will not solve what is regarded as the most significant flaw of the current I-94 system: the issuance of improper expiration dates (“Admit Until” date on the I-94). The new I-94 application does not give the traveler an opportunity to state or request the proper duration of status under the requested visa classification. The current process will continue in which the CBP officer adjudges the expiration date in-person based on a review of the traveler’s documents, which will result in erroneous expiration dates to be issued as before.

Jackson Lewis is available to answer inquiries about this and other developments.

 

Supreme Court Denies Rehearing Request on Immigration Executive Action

On the first day of its new term, the U.S. Supreme Court dealt another setback to the Obama Administration’s executive actions on immigration. The Court denied the Administration’s request for a rehearing on its deferred action programs for undocumented immigrants. United States v. Texas, No. 15-674 (June 23, 2016), reh’g denied (Oct. 3, 2016). The denial comes months after the Supreme Court deadlocked 4-4 over the expansion of the Deferred Action for Childhood Arrivals (DACA) and creation of the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) programs. This decision means that millions of undocumented immigrants will continue to be in limbo, without legal work authorization in the United States or protection from deportation.

After the Court’s deadlock in June effectively blocking expansion of DACA and creation of DAPA programs, the U.S. Department of Justice requested a rehearing before nine justices. The death of Justice Antonin Scalia in February left the Court without a ninth justice. While President Barack Obama nominated Merrick Garland in March, the U.S. Senate has not scheduled any confirmation hearings. Senate Republicans have refused to consider the nomination until the next president is elected. The Court’s denial of the Administration’s request is not the end of the case. The parties will continue their fight in the Texas court.

The fate of the programs may be up to the next president. Democratic presidential nominee Hillary Clinton supports the Obama Administration’s executive actions. Republican presidential nominee Donald Trump does not and has said he would end all of President Obama’s executive actions on immigration.

We will continue to monitor developments. For more information, see Supreme Court Tie Blocks Expansion of DACA and Creation of DAPA and Supreme Court’s Decision on Future of DACA and DAPA.

 

 

H-1B Lottery Class Action Lawsuit Says System Should be Scrapped

Employers needing foreign talent to fill professional positions obtain work authorization for these individuals most frequently by applying for an H-1B visa. Individuals from across the globe may be sponsored for this type of visa if the position requires a minimum of U.S. Bachelor’s Degree or equivalent. The H-1B visa is often the only way that an individual can work in the United States for a U.S. entity. Unfortunately, there are only 20,000 visas available for people that have a Master’s degree from the U.S. and 65,000 for all other applicants each fiscal year. Demand has far exceeded the supply for years, resulting in a computerized lottery system to obtain the visa.

Opponents of the system believe it is unfair because some companies and individuals allegedly have found ways to circumvent it by filing multiple petitions for the same person or convincing several companies to apply for the H-1B visa for the same person. This can result in some individuals applying year after year and not obtaining an H-1B number and others receiving it on the first attempt. These and other issues have led to calls to eliminate the lottery system.

A class action lawsuit has been filed in the U.S. District Court for the District of Oregon (Tenrec Inc. et al. v. U.S. Citizenship and Immigration Services, Case No. 3:16-cv-00995) to set aside the lottery process. The suit alleges that the lottery system is inconsistent with the statutory law and fraught with problems. The remedy proposed in the lawsuit calls for a better system of assigning priority dates for individuals that allow employers investing in multiple yearly filings to be assigned a priority date based on the initial filing date that progresses every year. This would allow those with rejected H-1B petitions to re-submit petitions and receive a place in line ahead of individuals filing for the first time.

Significantly, the Court denied the government’s motion to dismiss on September 22, 2016, and allowed the plaintiffs the chance to amend the complaint to make explicit allegations that the employer-plaintiffs continue to want to employ the individual plaintiffs with rejected H-1B petitions and those individuals still want to be employed by those employers. A Second Amended Complaint filed on September 26, 2016, made those allegations. Next, the plaintiffs will file a brief in support of their motion for summary judgment and the government will respond. A hearing has been set for December 19, 2016, to hear the merits of the motion. It is unlikely the Court will make a ruling on the day of the hearing, but will do so at a later date.

If the Court issues a decision prior to April 1, 2017 resulting in the elimination of the lottery, it would be a monumental task for USCIS to put new systems in place prior to the FY2018 H-1B cap filing season.

 

Labor Department Announces Procedural Changes to H-2B Visa Program

In an effort to further streamline the H-2B application process and make it less burdensome for employers, the Department of Labor has announced procedural changes to reduce the amount of documentation to demonstrate “temporary need.”

To get approval to hire H-2B workers, an employer must establish that the need for H-2B workers is temporary in nature, i.e., “limited to one year or less, but in the case of a one-time event could last up to 3 years.’’ The temporary need must be a one-time occurrence, seasonal, peak load, or intermittent. The DOL H-2B regulations envisage a two-part application process: (1) the agency adjudicates whether the employer has a temporary need through the employer registration process and (2) adjudicates the employer’s actual application to hire H-2B workers. However, as the DOL has not implemented the registration requirements of its regulations, the agency is adjudicating the employer’s temporary need during its review of the actual H-2B labor application.

Employers must complete Form ETA-9142B, Section B, which requires a statement on the nature of the temporary need, duration of employment, number of workers sought, and standard of need. The employer must demonstrate the scope and basis of the temporary need to enable the certifying officer (“CO”) to determine whether the job offer meets the statutory and regulatory standards for temporary need. However, without a registration process, many employers have had to submit additional documentation, such as summarized monthly payroll records, monthly invoices, and executed work contracts with the Form ETA-9142B, to demonstrate temporary need. For recurrent users of the H-2B visa program who receive H-2B labor certification for year-to-year, based on their business cycle, the statement and information on temporary need does not change.

DOL has concluded, “The additional documentation submitted by many employers, which is substantially similar from year-to-year for the same employer or a particular industry, creates an unnecessary burden for employers as well as the CO, who must review all documents submitted with each application.”

The agency announced that, effective September 1, 2016,

To reduce paperwork and streamline the adjudication of temporary need, effectively immediately, an employer need not submit additional documentation at the time of filing the Form ETA-9142B to justify its temporary need. It may satisfy this filing requirement more simply by completing Section B “Temporary Need Information,” Field 9 “Statement of Temporary Need” of the Form ETA-9142B. This written statement should clearly explain the nature of the employer’s business or operations, why the job opportunity and number of workers being requested for certification reflect a temporary need, and how the request for the services or labor to be performed meets one of the four DHS regulatory standards of temporary need chosen under Section B, Field 8 of the Form ETA-9142B. Other documentation or evidence demonstrating temporary need is not required to be filed with the H-2B application. Instead, it must be retained by the employer and provided to the Chicago NPC in the event a Notice of Deficiency (NOD) is issued by the CO. The Form ETA-9142B filing continues to include in Appendix B, a declaration, to be signed under penalty of perjury, to confirm the employer’s temporary need under the H-2B visa classification (Appendix B, Section B.1.).

DOL clarified that its certifying officer would review the employer’s statement of temporary need and recent filing history to determine whether “the nature of the employer’s temporary need on the current application meets the standard for temporary need under the regulations. If the job offer has changed or is unclear, or other employer information about the nature of its need requires further explanation, a NOD requesting an additional explanation or supporting documentation will be issued.”

For more information on H-2B visas, H-2B labor certification applications, DOL H-2B audits or investigations, please contact your Jackson Lewis attorney or any member of the Jackson Lewis Immigration Practice Group.

 

Department of State Accepting Applications for Diversity Immigrant Visa Lottery

The U.S. Department of State has announced that applications for the upcoming Diversity Visa (DV-2018) Lottery will be accepted electronically between noon EDT, October 4, 2016, and noon EDT, November 7, 2016.

The Diversity Immigrant Visa Lottery is administered annually by the Department of State and provides up to 55,000 Diversity Visas each fiscal year to persons from countries with low rates of immigration to the United States. For fiscal year 2018, 50,000 Diversity Visas will be available.

Persons seeking to apply must register electronically during the registration period. Paper entries and mail-in requests for Diversity Visa Lottery registration are not accepted. There is no registration fee for the DV Lottery. Applicants will be able to check if their entries have been selected from May 2, 2017, through September 30, 2018.

For DV-2018, nationals of the following 18 countries are not eligible to apply because they sent a total of more than 50,000 immigrants to the U.S. in the previous five years: Bangladesh, Brazil, Canada, China (mainland-born), Colombia, Dominican Republic, 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 SAR, Macau SAR, and Taiwan are eligible. Ecuador has been added to the DV-2018 list of eligible countries.

For more information on how to apply electronically for the DV-2018 lottery, please contact the Jackson Lewis Immigration Practice Group.

 

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