DHS delays implementation of International Entrepreneur Rule, may ultimately rescind it

Last month the Department of Homeland Security ("DHS") announced by publication in the Federal Register that it would delay implementation of the "International Entrepreneur Rule," a new regulation, promulgated under President Obama's tenure in office, that provided immigration opportunities for a small number of international entrepreneurs who could show that they would provide a significant public benefit to the United States in the form of economic growth and the creation of U.S. jobs.  The International Entrepreneur Rule empowered the Secretary of DHS to grant discretionary parole authority to foreign national entrepreneurs who met certain criteria in order to increase and enhance entrepreneurship, innovation, and job creation in the United States.

This rule was set to take effect on July 17, 2017 but DHS published a final rule with delaying the effective date and requesting comments on July 11, 2017. By this action, DHS has now delayed implementation of the International Entrepreneur Rule until March 14, 2018.  DHS has opened the matter for an extremely brief public comment period and could potentially rescind the program entirely. If you would like to make your opinion on this new rule heard, please ensure you submit a comment through the Federal Register's e-Rulemaking portal or by mail by August 10, 2017. 

USCIS will issue redesigned green cards & EADs

On USCIS recently announced a redesign for lawful permanent resident cards (commonly referred to as "green cards") and employment authorization documents ("EADs") as part of the Next Generation Secure Identification Document project. USCIS began issuing the cards on May 1, 2017 but will continue using existing card stock until depleted. Both existing and new cards are valid until the expiration date noted on the cards. Please visit the USCIS website's announcement for more information and to see images of the newly redesigned cards.

Revised Form I-9 & new regulations concerning re-verification

Effective January 22, 2017, employers must use the revised Form I-9, Employment Eligibility Verification, to verify the identity and work eligibility of every new employee.  Until January 21, employers may continue using the current Form I-9 last revised on March 3, 2013. U.S. Citizenship and Immigration Services ("USCIS") added several enhancements to the revised Form I-9 including:  

• A "smart" feature in the PDF version to help employers reduce technical errors when completing the form on the computer after downloading it from the USCIS website;
• Certain fields will now give an error message when the entered data does not have the correct number of characters (i.e., social security number or date of birth);
• Drop-down lists and calendars have been added for entering dates; and,
• A quick-response matrix barcode ("QR code") will be generated once the form is printed to assist in streamlining audit processes. 

Employers should also be aware that under new regulations by the Department of Homeland Security ("DHS") that became effective January 17, 2017, if an individual's employment authorization is due to expire, employers must re-verify their Form I-9 no later than the date of expiration of their current employment authorization to reflect the individual is still work-authorized in the U.S. in order to continue his or her employment. For persons presenting employment authorization documents ("EAD") for I-9, reverification applies upon the expiration of the automatically extended validity period for the EAD and not the expiration date indicated on the face of the EAD. We expect DHS to issue further guidance on this issue soon in the form of a revised M-274, Handbook for Employers, Guidance for Completing Form I-9. Also, USCIS is hosting a teleconference on Tuesday, January 31, 2017 from 2:00 to 3:30 p.m. EST to discuss the revised Form I-9.  USCIS will review the form's enhancements, discuss employment eligibility verification best practices, and answer questions about each section of the form.  You may sign up for this teleconference on the USCIS website.

The Form I-9 is a notoriously difficult form to execute properly, and yet errors can result in hefty penalties for employers.  Iandoli Desai & Cronin offers internal I-9 Audits and training sessions to ensure your company is compliant.  If you would like more information and/or have questions concerning I-9 procedures and enforcement actions, please contact the attorneys at Iandoli Desai & Cronin at info@iandoli.com. 

USCIS updates FAQs on employment authorization for certain H-4 spouses

On March 10, 2016, USCIS updated its FAQ on employment authorization for certain H-4 spouses. Pursuant to new regulations that went into effect last May, an H-4 spouse whose H-1B spouse is the principal beneficiary of an approved I-140 Petition for Immigrant Worker or whose H-1B spouse has filed for an extension of status beyond the normal six-year limit in accordance with the American Competitiveness in the Twenty-First Century Act of 2000 ("AC21") is now eligible to request employment authorization. In March, 2016, USCIS updated its FAQ on this topic to address several unique issues that arise for H-4 spouses seeking this employment authorization. 

This multi-page FAQ helps applicants determine if they are eligible to file, reviews the application process, explains the basis for adjudication of the applications, discusses the applicant's status while awaiting adjudication, and outlines what happens once employment authorization is received. In particular the FAQ confirms the H-4 spouse must be physically present in the U.S. to apply for employment authorization and additionally confirms that if the applicant's I-765 application is filed concurrently with an I-539 application to change status to H-4, the applicant must remain in the U.S. until the request to change status to H-4 is approved.  USICS will deny both the I-539 and I-765 application for employment authorization if the applicant travels abroad before the change of status is approved.  To read the full FAQ, please visit the USCIS website.