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Archive for the ‘Immigration & I-9 Services’ Category

Changes May Be Coming for H-1B Visa Program

Posted on: January 12th, 2017

By: Neil Wilcove and Timothy Holdsworth

Recently, Representative Darryl Issa (R-California) re-introduced legislation that would work several significant changes to the H-1B visa program by “closing a loophole” in the current legislation. Currently, Companies must first take good faith steps to recruit and offer a position to an American worker prior to filing an H-1B application unless the H-1B worker receives wages of at least $60,000 or has attained a master’s or higher degree in their field of work. Rep. Issa seeks to increase this threshold to $100,000, with annual adjustments for inflation, and eliminate the masters degree exemption (full bill here).

Rep. Zoe Lofgren (D-California) plans to introduce legislation that also eliminates the master’s degree exemption, but increases the wage exemption to over $130,000. Rep. Lofgren’s bill would also eliminate the lottery system and prioritize allocation of H-1B visas first to employers that hire mainly American workers and then to H-1B-dependent employers based on how much they pay their employees above the prevailing wage for their area of employment. Under the current lottery system, the U.S. Citizenship and Immigration Services performs a computer-generated process to randomly select 85,000 visas to review and rejects the remaining applications outright. Rep. Lofgren’s bill would also set aside 20% of the annual allocation of visas for small and start-up employers (those with 50 or fewer employees).

These proposed changes are not surprising given President-elect Donald Trump’s statement during his campaign that he will “end forever the use of the H-1B as a cheap labor program, and institute an absolute requirement to hire American workers first for every visa and immigration program. No exceptions.”

Although any changes are unlikely to be instituted before this year’s filing period, we will continue to keep you apprised of any modifications to the H-1B visa program and are available to guide you through each step of the current process.

New I-9 Form Takes Effect Next Year

Posted on: December 1st, 2016

U.S. Department of Homeland Security LogoBy: Agne Krutules

U.S. Citizenship and Immigration Services (USCIS) published a revised version of Form I-9, Employment Eligibility Verification. The revision process commenced over a year ago, with the main goal to strengthen the security and integrity of the I-9 Form.

Effective January 22, 2017, employers must use only the new version, dated 11/14/2016. Until then, they can continue to use the version dated 03/08/2013 or the new version.

Among the changes to the I-9 Form, Section 1 asks for “other last names used” rather than “other names used,” and streamlines certification for certain foreign nationals.

Other changes include:

  • The addition of prompts to ensure information is entered correctly;
  • The ability to enter multiple preparers and translators;
  • A dedicated area for including additional information rather than having to add it in the margins;
  • A supplemental page for the preparer/translator.

The instructions have been separated from the form, in line with other USCIS forms, and include specific instructions for completing each field.

The revised Form I-9 is also easier to complete on a computer. Enhancements include drop-down lists and calendars for filling in dates, on-screen instructions for each field, easy access to the full instructions, and an option to clear the form and start over. When the employer prints the completed form, a quick response (QR) code is automatically generated, which can be read by most QR readers.

U.S. Immigration and Customs Enforcement (ICE) imposes hefty fines (raging from $110 to $1,100 per violation) for improperly preparing I-9 Forms.

For any questions you may have, please contact Agne Krutules at akrutules@fmglaw.com.

ICE Reformed: Election of Donald Trump Likely to Affect Federal Immigration Enforcement Priorities

Posted on: November 18th, 2016

us-immigration-lawBy: E. Charles Reed, Jr.

Between 2008-2014, the federal government utilized a program called “Secure Communities” to arrange for the transfer of suspected aliens from local law enforcement custody to federal custody upon receipt of a detainer request from Immigration and Customs Enforcement (“ICE”). In early 2014, courts began holding local law enforcement agencies liable for claims brought by individuals alleging that the Secure Communities program lacked certain due process or other constitutional requirements. More detail on this history and the claims presented can be found here. When local law enforcement agencies asked for direction from the federal government on whether it viewed ICE detainer requests as permissive or mandatory, the federal government remained silent. Local law enforcement agencies across the United States then began either refusing to honor ICE detainers or placing limitations on when they would comply with the request. In November 2014, President Barack Obama announced by executive order that the Department of Homeland Security would discontinue the “Secure Communities” program and, in July 2015, DHS replaced “Secure Communities” with the “Priority Enforcement Program.” Under this program, the Department of Homeland Security has shifted its focus from deporting any and all suspected aliens, including those charged, but not yet convicted of criminal offenses, to focus only on removing convicted criminals, including gang members and others who pose a known danger to public safety.

With the issue of illegal immigration being central to the campaign of then-presidential candidate Donald Trump, many have questioned how immigration enforcement will proceed once Mr. Trump is sworn in as President of the United States. While no one can predict for certain how aggressive President-elect Trump will be on this issue after January 2017, one Forbes author has analyzed Mr. Trump’s campaign promises and presented one scenario concerning the effect of a Trump presidency on illegal immigration and immigration as a whole. The author opines, in part, that the current DHS policy of prioritizing violent criminals for deportation could be revised to include any and all unlawful immigrants. The entire article can be found here. Since the Department of Homeland Security’s priorities can and have been changed by executive order, once Mr. Trump is sworn in as President of the United States, any change to the Department of Homeland Security’s priorities could happen quickly. We will continue to monitor this issue and provide updates as more information becomes available.

For any questions you may have, please contact E. Charles Reed, Jr. at creed@fmglaw.com.

USCIS Increases Fees

Posted on: October 26th, 2016

fees-usciss-fee-increase-blogBy: Agne Krutules

On October 24, 2016, U.S. Citizenship and Immigration Services announced a final rule published in the Federal Register adjusting the fees required for most immigration applications and petitions. The fees increased by a weighted average of 21 percent. For example, application fees to register permanent residence or adjust status increased from $985 to $1,140 (Form I-485), and an immigrant petition by alien entrepreneur increased from $1,500 to $3,675 (Form I-526). The fees were last increased on November 23, 2010. The new fees will become effective on December 23, 2016. Applications and petitions mailed, postmarked, or otherwise filed on or after December 23, 2016, must include new fees. The new fees can be found at https://www.uscis.gov/forms/our-fees.

Challenge to H-1B Lottery Keeps an Eye on the Jackpot

Posted on: October 14th, 2016

1By: Agne Krutules

On September 22, 2016, an Oregon federal judge denied United States Citizenship and Immigrations Services’ (USCIS) jurisdictional challenge to a proposed class action lawsuit brought by two small US businesses and their foreign would-be employees in Tenrec, Inc. v. USCIS, allowing the case to go forward.

The Plaintiffs’ complaint alleges that the USCIS administers its H-1B specialty occupation nonimmigrant visa worker program in violation of federal law. Specifically, under 8 U.S.C. § 1184(g)(3), H-1B visas will be issued “in the order in which petitions are filed for such status or visas.” (emphasis added).  However, in 2008, the USCIS adopted a new procedure for selecting H-1B “cap” petitions for review that the Plaintiffs challenge.  Pursuant to 8 C.F.R. § 214.2(4)(8)(ii)(B), all the applications received within the required five business day window, which opens on April 1, are subject to a random computer selection.  The petitions not selected in this lottery stage are returned to the applicants without any further review. Over the past four years, USCIS has rejected approximately 425,500 filings after conducting a random lottery process without assigning any of these rejected petitions a priority date representing the order in which it was filed.

The lawsuit alleges that there is no legal justification to support the H-1B lottery system and the USCIS’s random selection procedure is arbitrary and capricious. The Plaintiffs believe the statute implementing H-1B requires a system which issues H-1B visa numbers in the order in which H-1B petitions are submitted. The lawsuit seeks class action status, and demands that the current annual five-day filing window be replaced with year-round filing.

This lawsuit could have a dramatic effect on the H-1B process. While the demand for H-1B visas is always extremely high, there is currently a statutory cap on the number of new H-1B visas that may be issued each fiscal year. Currently, only 65,000 new H-1B visas are available each year. There are an additional 20,000 H-1B visas available for foreign nationals with a master’s degree (or higher) from a United States university. In 2016, USCIS received a record 236,000 petitions for 85,000 available H-1B visas.