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.


New Form I-9 Update

The Office of Management and Budget (“OMB”) has approved revisions to the Form I-9 to be released to the public within 90 days. The exact date of release has not been announced. The new form will include much-needed technology features to assist employers in identifying errors. The new form will replace the 2013 version and will be valid until August 31, 2019.

The OMB notice also indicates that U.S. Citizenship and Immigration Services (“USCIS”) “may accept the prior version…for 150 days.” Critically, USCIS has not published the form or commented on the OMB notice. It is not yet clear how USCIS intends to roll out implementation of the new I-9. Employers will continue to wait patiently as they have been doing since November 24, 2015, when USCIS published a notice in the Federal Register of proposed changes.

To prepare for the changes to the form, employers should conduct an internal audit to determine if there are mistakes in form completion due to lack of training or misunderstanding of the basic procedures of completing the form. Employers should train employees on the new Form I-9 once it is released. The number of changes to the form and the ability of U.S. Immigration and Customs Enforcement to use the barcode to identify errors, which can lead to increased fines and penalties for both paperwork and substantive errors, mean this step is more important than ever.


Administration Welcomes Foreign Entrepreneurs with Proposed Rule

The Department of Homeland Security has closed out the summer with an encouraging proposal designed to allow certain founders of start-up companies from abroad to come to the U.S. for an initial stay of up to two years to build their business here. In a move recognizing the entrepreneurial spirit embodied by the many foreign individuals who have contributed to making the United States a beacon of innovation and creative ambition, the service released an advance copy of the proposed “International Entrepreneur Rule.” The drafters of the proposal lay out the intended benefits in their introduction: “to increase and enhance entrepreneurship, innovation, and job creation in the United States. The proposed rule would add new regulatory provisions guiding the use of parole on a case-by-case basis with respect to entrepreneurs of start-up entities whose entry into the United States would provide a significant public benefit through the substantial and demonstrated potential for rapid business growth and job creation.”

Under the current framework, foreigners wanting to build businesses in the United States must navigate a complex set of visa categories, each of which contains significant limitations. For example, B-1 business visitor status allows foreign businesspeople to enter the country for a much shorter timeframe (typically six months, extendable), and restricts them to non-employment activities; the E-2 investor visa category is only available to individuals holding select nationalities where a bi-lateral treaty exists with the U.S.; and the EB5 “green card investor” visa category requires the foreign individual to put from $500,000-$1,000,000 at risk to qualify. If implemented, the proposed “International Entrepreneur Rule” would provide two years (extendable to five years) of stay in the U.S. to establish and grow a business with a much lower financial commitment ($345,000 capital requirement, which may include investment from qualified U.S. persons or government grants of at least $100,000, or some combination thereof). Under the rule, international entrepreneurs must maintain an active role in the business and at least 15 percent ownership of the enterprise, two requirements that should not present an issue for most new company founders.

While the public must await publication of the proposal in the Federal Register to submit comments within the 45-day comment window, immigration and business advocates can together celebrate the agency’s attention to this fundamental component of maintaining America’s competitive advantage, today and into the future.

Jackson Lewis will continue to monitor developments of this exciting new initiative.


L-1 Visa Applicants on Blanket L Petition Must Use of New Form I-129S starting August 29, 2016

The Department of State reportedly has confirmed that starting August 29, 2016, U.S. consular posts (i.e., embassies, consulates general, and other U.S. missions abroad) will accept only USCIS’s new, June 2, 2016, version of Form I-129S from L-1 nonimmigrant intracompany transferees. This is in line with USCIS’s prior announcement, at www.uscis.gov: “Starting 08/29/2016, USCIS will only accept the 06/02/16 edition. Until then, you can use the 06/12/13 edition.”

This means that all employers who have employees or prospective transferring employees making applications abroad for blanket-based L-1 visas must ensure that such applicants appearing at the relevant consular post on or after August 29th present the June 2, 2016, edition of Form I-129S with their petition or application package. As usual, the form is presented in triplicate. Any applicant appearing before August 29th can continue to use the June 12, 2013, edition.

This change affects only blanket-based L-1 applications. Workers applying for visas based on an approved individual L-1 petition do not use Form I-129S and are not subject to this requirement.

Please contact your immigration counsel at Jackson Lewis with any questions.



5th Circuit Throws Out I-9 Fines Against Employer for Alleged Section 2 Attestation Deficiencies

Vacating a $226,000 fine against Employer Solutions Staffing Group for alleged Form I-9 violations, the Fifth Circuit Court of Appeals has ruled that it was not a violation for employer to have one of its agents inspect original employee documents in Texas and have another person in Minnesota complete the employer attestation in Section 2 after reviewing photocopies of the documents sent by the Texas person reviewing the forms. Employer Solutions Staffing Group v. OCAHO, No. 15-60173 (5th Cir.  Aug. 11, 2016).

In February 2013, ICE alleged that ESSG failed to ensure that 242 employees completed properly Section 1, or failed to complete properly Section 2 or 3 of the I-9 Form, thereby committing substantive paperwork violations. Further, ICE claimed ESSG violated the Immigration and Nationality Act and ordered ESSG to pay fines totaling $237,162.75. An administrative law judge ruled for ICE in a Summary Decision, finding ESSG failed to complete properly Section 2 of the I-9 Form for 242 employees. The ALJ fined ESSG $226,270 for these violations. The employer appealed.

The Court said the INA provides for attestation by a “person or entity” and is unclear whether the person who reviews the documents and completes the attestation has to be the same person. Therefore, it was reasonable to interpret the attestation as valid as long as the same “entity” both reviews the documents and completes the attestation. Likewise, neither the relevant regulations nor the Form I-9 provided that the same individual who inspected the employee documents must complete the employer attestation. Therefore, the Court found that it was not a violation for ESSG to complete its Forms I-9 in the manner that it did and vacated the ALJ’s order.

This decision is unlikely to change the best practice and advice that the person reviewing the original documents should be the same person that signs the attestation. Indeed, after fining ESSG, but before the Court made its decision, ICE changed the I-9 instructions to make clear that the same person who examines the document must be the same person that signs the form.

Employers facing fines for the same issue as ESSG, and where the Forms I-9 were completed prior to 2013, should determine with the assistance of counsel whether the Fifth Circuit decision affects their situation.

Department of Justice, California Employer Reach Non-Prosecution Agreement over Potential Criminal Violations of Immigration Laws

Gridley, California-based natural food company Mary’s Gone Crackers Inc. agreed and consented to payment of $1.5 million and establishment of a corporate compliance program under a non-prosecution agreement reached with the U.S. Attorney’s Office for the Eastern District of California on July 19, 2016. The agreement requires the company to establish a corporate compliance program covering its I-9 procedures and its E-verify system, in addition to requiring complete disclosure of immigration violations within 24 hours of discovery. The company also agreed to provide corporate compliance reporting to the U.S. Attorney’s Office for two years. In exchange for compliance, no federal charges will be brought against the company. However, if the company fails to perform or to fulfill completely each of its obligations under the agreement, regardless of whether the U.S. Attorney’s Office becomes aware of the breach after the Term of Agreement is complete, the company will be subject to prosecution for any federal criminal violation of which the U.S. Attorney’s Office has knowledge.

The alleged violations date back to March 2012, when U.S. Immigration and Customs Enforcement (ICE) audited the company’s I-9 immigration forms for its employees and notified the company that 49 of its employees did not appear to have valid U.S. work authorization.

Mary’s Gone Crackers Inc. subsequently informed ICE that 48 of the employees had resigned or had been terminated and that one employee had provided corrected documents. Within weeks, however, the company rehired, under new names, at least 13 of the employees who were terminated or resigned. One such undocumented employee never actually stopped working for the company at all, but continued to work under an assumed name and received payment as an independent contractor – thereby avoiding being listed on the company’s payroll.

In January 2013, federal law enforcement (Homeland Security Investigations) executed a search warrant at the company’s Gridley facility and discovered that at least 12 of the 13 rehired individuals were still working at Mary’s Gone Crackers Inc. Following the January 2013 search warrant the company cooperated with the Department of Justice’s investigation and took remedial measures that included terminating employees, stopping use of outside counsel involved in the alleged violations, and taking steps to ensure compliance with immigration laws and I-9 regulations.