On December 18th, the Senate passed the FY2016 omnibus spending package on the heels of House passage the day before and sent the bill to the White House. President Barack Obama is expected to sign the bill, making it law.

The bill includes the following immigration-related provisions:

  • Department of Labor funding would increase by 2%–we expect increase wage-and-hour and worksite audits by the agency
  • DOL is directed to make changes to the H-2B Visa program, including wage determinations, enforcement provisions, and definitions, and to cap exemptions for returning H-2B workers. The Legislature demanded:
    • Greater flexibility for H-2B workers in the seafood industry regarding when they can start working;
    • That the agency permit the use of private wage surveys even where Occupational Employment Statistics (OES) data is available (the current DOL regulations limit the use of private wage surveys only to when OES data is not available);
    • An expansion of the definition of “seasonal” to ten months (instead of the nine months under the current DOL regulations);
    • Further limitations on the DOL’s ability to implement certain parts of its interim final rule (DOL will not use appropriated funds to implement its H-2B rules on corresponding employment and the three-fourths guarantee – Congress has effectively rendered these provisions unenforceable by DOL); and
    • An exemption for H-2B returning workers from the 66,000 annual cap for FY2016; and
  • Authorization to USCIS to continue the EB-5 (foreign Investor), Conrad 30 (foreign doctors), Special Immigrant Religious Worker, and E-Verify programs (supplemental verification compliance).

Predictions that the bill may provide an avenue to restrict refugee admission, defund or harm “sanctuary” cities, or block provisions of President Obama’s DACA and DAPA Executive Orders did not come true.

Periodic internal I-9 audits are considered an employer “best practice” by Immigration and Customs Enforcement (ICE). Before conducting an internal I-9 audit, however, employers need to understand how to address a range of issues likely to be identified.

In a Technical Assistance Letter (dated October 23, 2015), the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) discussed whether an employer may lawfully request alternative documentation for employment verification purposes if, during the course of an internal audit, an employer finds documentation that does not appear genuine. Particularly where affected employees share the same national origin, OSC was asked whether requesting follow up from employees implicates the Immigration and Nationality Act’s anti-discrimination provisions (INA Section 274b, 8 U.S.C. 1324b).

OSC advised that in the context of an internal audit, so long as the employer treats all similarly-situated employees the same, regardless of citizenship status or national origin, an employer’s request for alternative documentation likely would not violate the anti-discrimination provisions of the INA. OSC warned employers against basing selection of I-9s for review on employees’ citizenship status or national origin. OSC also stated that an employer should apply the same level of scrutiny to its review regardless of the employees’ citizenship status or national origin.

Because the employment verification requirements under the INA must be balanced against the INA anti-discrimination provisions, employers must be mindful of all requirements before conducting an internal audit and should consult with counsel prior to initiating or relying on an I-9 review.

A bill that would drastically reshape the H-1B visa program and effectively end the Option Practical Training (OPT) program, both of which employers use to hire foreign national employees in skilled positions, has been introduced in the Senate.

Presidential candidate Senator Ted Cruz (R-Texas) and Senator Jeff Sessions (R-Alabama), Chairman of the Senate’s Subcommittee on Immigration and the National Interest, co-sponsored the American Jobs First Act to do away with program

The H-1B program allows employers to hire foreign national employees in specialty occupations that require completion of at least a Bachelor’s degree. The OPT program allows employers to hire foreign nationals in positions related to the foreign nationals’ Bachelor’s level (or higher) field of study, giving the students-turned-employees an opportunity to have hands-on training in that field.

Arguing that employers’ current use of the H-1B program strays from the original intent of the program, Senator Cruz stated this bill would ensure employers cannot use the program to replace qualified and willing U.S. workers with what he calls “cheaper foreign labor.” Accordingly, the bill would establish a minimum wage for H-1B workers and require employers seeking H-1B visas to commit to paying the foreign workers the higher of:

  • what a U.S. worker who did identical or similar work earned two years prior to the hire of the foreign worker, or
  • $110,000 annually.

In addition to an H-1B minimum wage, the bill would establish a “cooling off” period which would prevent an employer from hiring an H-1B visa-based foreign worker within two years of layoffs, an employee strike, an employer lockout, furloughs, or other involuntary terminations, excluding for-cause separations. This period is intended as a disincentive for H-1B employers to replace U.S. workers with foreign national employees.

The bill also would eliminate the continued use of the OPT program. Senator Cruz and other detractors argue the OPT program does not offer a legitimate opportunity for student training. Instead, in their opinion, it affords employers an opportunity to hire foreign workers more cheaply than qualified and willing U.S. workers, thus displacing or leading to the non-hire of such U.S. workers. The bill would also seek to ensure that no similar programs resulting in the displacement or non-hire of U.S. workers could be created.

While the bill, as drafted, may not pass or become law, its introduction by a presidential candidate and sponsorship by a subcommittee chairman put a popular employment visa program “in play” as we approach a presidential election year. It is clear that employment-based immigration issues likely will stay in the national spotlight as politicians debate the current use and future reshaping of these visa programs.

For its proposed 13th iteration, the I-9 form is getting “smart” new features. The suggested changes to the form from the Department of Homeland Security include:

  •  Validation of certain fields to ensure the entered information is correct;
  • Helpful on-screen text for various fields;
  • Space to enter more than one preparer or translator;
  • Drop-down menu for the list of acceptable documents to cut down on entry errors;
  • A dedicated notes area for information employers now have to note in the margins;
  • A QR code to facilitate ICE audit reviews;
  • Replacement of the “other names used” field with “other last names” used; and
  • Provision of either I-94 or foreign passport, instead of both.

While the “smart” form will facilitate on-screen data entry and completion of the Form I-9, it is not an electronic form. After completion, employers not using an electronic I-9 system will have to print out the Form I-9 for signature by the foreign national and the employer.

Public comments on the revisions will be accepted through January 25, 2016, here. After USCIS reviews the comments and makes changes it deems appropriate, it will publish a second notice in the Federal Register. After that, the public has 30 days to provide comment before the regulation becomes final.

The current I-9 form expires on March 31, 2016. After that date, USCIS will have to extend the validity of the current form or introduce its new form.

Employers using E-Verify may mistakenly believe that once a record is created, it will be stored forever in the E-Verify system. Effective January 1, 2016, E-Verify transaction records more than 10 years old will automatically be deleted from the E-Verify system. That means that employers will no longer have access in E-Verify to cases created prior to December 31, 2005. This action is being taken to comply with the National Archives and Records Administration’s retention and disposal schedule.

E-Verify records for active employees and terminated employees within the retention timeframe must be retained; therefore, if employers have not printed out the records, they could be lost once they fall outside the 10 year window.

If an employer wants a record of its cases that outside the 10 year- old window, it must download the new Historic Records Report before December 31, 2015. The report will include all transaction records for cases more than 10 years old. Instructions to download the report are available when the employer logs into E-Verify. The report is only available until December 31, 2015.

It is a best practice to record the E-Verify case verification number on the related Form I-9. Employers are encouraged to retain the Historic Records Report with the I-9s also.

USCIS has announced that beginning with the November 2015 Department of State (DOS) Visa Bulletin it will issue a determination within approximately one week following the publication of the Visa Bulletin whether individuals may use the Dates for Filing Visa Applications chart. If USCIS does not post such a determination, individuals should continue to refer exclusively to the Application Final Action Date chart on the USCIS website. This monthly announcement from USCIS can be found at www.uscis.gov/visabulletininfo.

The Visa Bulletin is published on a monthly basis by DOS and indicates when statutorily limited visas are available to prospective immigrants based on their individual priority date. In the employment-based Adjustment of Status context, the priority date is generally the date when the labor certification (PERM) was accepted for processing by the Department of Labor, or, if no labor certification was required, then the date of filing of the Form I-140, Immigrant Petition for Alien Worker. When an immigrant visa is available, eligible individuals may submit their Form I-485, Adjustment of Status application.

Jackson Lewis will provide updates on any new policies from the Department of State and USCIS on the Visa Bulletin.

The U.S. Department of Homeland Security’s has proposed amending its regulations on the optional practical training (“OPT”) program to allow international F-1 students with U.S. degrees in the sciences, technology, engineering, or mathematics (“STEM”) – attained from accredited institutions – to extend by 24 months the standard 12-month OPT period available to them to remain in the U.S. to pursue degree-related work experience. This proposal would supersede the 17-month extension currently available to STEM degree holders. In addition, F-1 students may qualify for the extension based on a previously attained U.S. STEM degree from an accredited institution of higher education.

The new proposal responds to a court decision vacating a similar 2008 DHS regulation based on procedural grounds. See “2008 STEM Extension Dealt a Setback”.

The extension comes with some conditions, including increased oversight over the employment of STEM OPT beneficiaries. Employers must be enrolled in the E-Verify employment eligibility verification program. Employers also must implement formal mentoring and training plans, and make certain attestations, similar to those required of other employment-eligible visa categories. An employer must attest that: (1) the duties, hours, and compensation are commensurate with those applicable to similarly situated U.S. workers; (2) there are sufficient resources and equipped personnel available to provide appropriate mentoring and training; (3) there will be no lay-offs or furloughs of any U.S. workers arising from the STEM student’s training; (4) the opportunity advances the student in attaining his or her training objectives; and (5) ongoing reporting requirements will be observed.

Additionally, the proposal provides continued Cap-Gap relief. Where an F-1 student is named the beneficiary in a timely filed H-1B cap petition, his or her duration of status (“D/S”) and any current employment authorization/OPT would be extended until October 1st of the fiscal year for which the H-1B visa is being requested.

DHS’s proposed regulations improve the integrity of the STEM OPT program by encouraging students to gain valuable, practical STEM experience, while preventing adverse effects to U.S. workers. By enhancing their functional understanding of how to apply academic knowledge in a work setting, students will be better qualified to embark on careers in their respective fields of study. These on-the-job experiences would be obtainable only with employers committed to developing students’ knowledge and skills through practical application. Moreover, the proposed rules aim to maintain our competitive edge in attracting international STEM students to study and lawfully remain in the United States.

The proposal is available at http://federalregister.gov/a/2015-26395. Public comments are being accepted through November 18, 2015. We will continue to keep you updated on these proposals as they proceed through the rulemaking process.

On September 9, 2015, US Citizenship and Immigration Services (“USCIS”) and the Department of State (“DOS”), announced new procedures for determining visa availability for applicants waiting to file adjustment of status applications. These revisions are intended to implement executive actions by President Obama.

Prior to this change, DOS had published a single chart in its visa bulletin each month indicating “Final Action Dates For Employment-Based Preference Cases.” This chart determined both when an application could be filed as well as when pending applications could be adjudicated. Commencing with the October 1, 2015 visa bulletin, there will be a second chart published each month, which relates to existing DOS procedures for processing immigrant visas abroad. This second chart will now govern which cases are eligible to file for adjustment of status in the US.

These new procedures will allow individuals to apply for adjustment of status much earlier than would normally be the case, and with those applications, obtain ancillary benefits for themselves and their families such as work authorization and travel permission. The second preference category for India and the third preference category for the Philippines highlight the significance of this change, with the dates for each of those advancing by several years.   Excerpts from both bulletins follow:

Application final action dates for employment-based preference cases (normal chart):

Employment- Based All Chargeability Areas Except Those Listed CHINA – mainland born INDIA MEXICO PHILIPPINES
2nd C 01JAN12 01MAY05 C C
3rd 15AUG15 15OCT11 08MAR04 15AUG15 01JAN07

Dates for filing of employment-based visa applications (new chart):

Employment-
Based		 All Chargeability
Areas Except
Those Listed		 CHINA-
mainland
born		 INDIA MEXICO PHILIPPINES
2nd C 01MAY14 01JUL11 C C
3rd 01SEP15 01OCT13 01JUL05 01SEP15 01JAN15

As with prior visa bulletins, dates may change on a monthly basis as DOS calculates visa demand. Individuals whose priority dates are close are advised to monitor the bulletin each month and be prepared to file when their dates become current on the new chart.

The U.S. Court of Appeals, in Denver, has issued an opinion putting the entire H-2B labor certification and visa process in jeopardy.

The Tenth Circuit found that the U.S. Department of Labor is not a subordinate agency of the U.S. Department of Homeland Security, and, therefore, could not promulgate H-2B regulations. Only DHS, as administrator of the Immigration and Nationality Act, has the authority to propose and implement regulations that govern the issuance of H-2B visas. Because DOL is not a sub-delegate of DHS, it did not have the power to issue H-2B-related regulations.

The Court’s decision puts the agency’s April 2015 H-2B regulations at jeopardy. The agency has not made any statements about the decision. Industries that rely upon temporary foreign labor (e.g., commercial landscaping, oil-and-gas craft services, and sea farming) should expect stop-gap, then long-term rule-making that will result from the Court’s decision. Labor certifications that either have been issued or are in process for the October 1, 2015 visa allotment may be invalid.

We will report on the agency reaction to the Court’s opinion.

The SEC has sued Seattle developer Lobsang Dargey, alleging that he misappropriated $17 million from investors in his EB-5 program, and announcing a freeze of Dargey’s assets at the same time.

The EB-5 program allows foreign nationals who invest $1,000,000 ($500,000, in certain high unemployment or rural areas) in qualifying businesses in the U.S. and create 10 jobs for U.S. workers to obtain permanent residence in the U.S.

A “qualifying business” means:

  • The creation of an original business;
  • The purchase of an existing business with simultaneous restructuring or    reorganization such that a new commercial organization results; or
  • Expansion of an existing business created after November 1990 through the investment of the required amount such that the net worth is increased by at least 40%.

The EB-5 program has drawn much interest from Chinese investors over the last several years looking for business opportunities. Unfortunately, it also has drawn interest from individuals, who seek to take advantage of EB-5 investors, as Dargey is alleged to have done.

According to the SEC, Dargey raised at least $125 million from 250 Chinese nationals seeking permanent residence through the EB-5 program. The money was to be used in two of Dargey’s Seattle-area real-estate projects, but he misappropriated millions for his own use. Whether or not the investors will be able to process their permanent residence or recoup their investment is yet to be determined. The SEC’s civil suit was filed August 25 in federal court in Seattle.

Dargey’s case is similar to a 2013 case in which the SEC alleged that Anshoo Sethi, a Chicago area real estate developer, “fraudulently sold more than $145 million in securities and collected $11 million in administrative fees from more than 250 investors primarily from China.” As with the Dargey case, the investors were seeking permanent residence in the U.S. through the EB-5 program. Fortunately, the SEC was able to facilitate the return of the invested funds.

While the SEC investigates such cases and is working diligently to prevent the type of fraud alleged, potential EB-5 investors should exercise proper due diligence and engage knowledgeable counsel to ensure that they do not fall victim to these schemes.

Jackson Lewis attorneys are available to provide counsel to anyone interested in the EB-5 program.