USCIS provides details on its new policy to interview employment-based green card applicants

As we described in a prior update, USCIS announced it will begin to phase in interviews for employed-based adjustment of status ("green card") applicants effective October 1, 2017.  The USCIS press release left a lot of questions unanswered, including whether every applicant for a green card based on an employer's petition would be interviewed, whether this would apply for only applicants who file after October 1, 2017, and how USCIS would be managing these interviews in a timely manner based on current staffing levels.  Last week the Office of the Citizenship and Immigration Services Ombudsman hosted a stakeholder call and answered some questions about these new interview requirements.

The CIS Ombudsman's office clarified that cases filed before March 6, 2017 will be adjudicated by USCIS Service Centers under prior procedures, so while it is possible for those cases to receive interviews, applicants who filed before that date only have a 5-10% chance of being called for an interview, as was customary before the new interview policy took effect. For applicants who filed on or after March 6, 2017, USCIS notes it is taking an "incremental approach" to maximize the number of visas allocated this fiscal year. USCIS Field Operations Directorate Dan Renaud did not state each and every case would receive an interview, nor are any categorically exempt, as he noted both principals and derivatives will be required to appear, though USCIS will consider waiving interviews in cases where applicants are under age 14.

In the stakeholder call, the CIS Ombudsman's office described how it is undertaking training for field officers on Supplement J and how to coordinate with Department of State to manage visa numbers. The agency has instructed and trained officers not to adjudicate I-140 petitions but will assess validity of supporting documentation to ensure it was accurate, bona fide and credible. Applicants should expect to answer questions regarding admissibility and eligibility for a green card, including details about where they work, what they do, and educational background to ensure it matches information previously disclosed to USCIS. Dependents should expect questions regarding their relationship to the principal and should plan to bring evidence of the bona fide nature of their relationship to the interview, as USCIS states the purpose of these interviews is to ensure integrity of the immigration system.

Finally, the CIS Ombudsman's office touched on processing times, noting it expects employment-based adjudications to comprise approximately 17% of Field Operations workloads. In the short-term, USCIS stated it expects processing times will be affected with the greatest impact felt among family-based petitions and applications for naturalization, particularly for cases filed in the top ten busiest field offices: Atlanta, Chicago, Dallas, Houston, Los Angeles, New York, Newark, San Jose, San Francisco, and Seattle. 

Alert: USCIS reverses decades-old policy of waiving interviews for employment-based green card applicants.

U.S. Citizenship and Immigration Services ("USCIS") has announced a major change of policy that will impact employment-based green card applicants. According to its announcement dated August 28, 2017, USCIS will phase-in interviews for adjustment of status applications based on employment. Adjustment of status is the final step in green card sponsorship for individuals already in the U.S. in some form of non-immigrant status. Typically these individuals are on valid work visas when they are sponsored by their employers for green cards. During this final step, USCIS reviews the individual's personal and immigration history, conducts background checks and ensures the applicant is eligible for permanent residence in the U.S.

While it has been standard agency practice for marriage-based applicants and several other types of applicants to be called for interviews, for more than two decades USCIS has waived interviews for individuals applying for permanent residence in employment-based categories. Per this recent shift in policy, effective October 1, 2017, applicants for adjustment of status based on employment may receive notices from USCIS requesting them to appear for in-person interviews. Immigration officers conducting these interviews will likely seek to verify information provided by the applicants during the process to ensure they continue to be eligible for a green card.

It is unclear from the USCIS announcement whether this change will impact applicants who have already submitted their Forms I-485 based on employment for processing, or whether only future applicants in those categories may expect interview notices. Also, the wording of the announcement that USCIS "will begin to phase-in interviews" does not clearly indicate all applicants will be called for interviews. We will provide future updates when USCIS provides additional details on this significant change in policy. Without question, however, applicants in all green card categories (both employment and family-based) should prepare for delays in adjudication, as the local USCIS offices will see a significant increase to caseloads without an accompanying increase in staffing.

Revised Form I-485 - now 18 pages in length with expanded inadmissibility questions - becomes mandatory on August 25, 2017

On June 26, 2017 USCIS released an updated version of Form I-485, Application to Register Permanent Residence or Adjust Status. This form is commonly referred to as the "green card" application, whereby an applicant requests USCIS adjust his or her non-immigrant status to that of permanent resident or "green card" holder based on meeting certain criteria. USCIS will continue to accept current version of I-485 (revision date of 1/17/2017), totaling 6 pages, until August 24, 2017. The new version of Form I-485 (revision date of 6/26/2017) is now 18 pages long, and USCIS described as "substantially updated to reduce complexity after collecting comments from the public and stakeholders."  In addition USCIS notes the revised form has "better flow and organization of questions to make it user-friendly for both applicants and USCIS" and that "readability has significantly improved due to new spacing columns, flow, white space, and formatting."

In a teleconference on August 3, 2017, USCIS representatives specifically noted that applicants using the new version of the form no longer need to complete and submit a separate Form G-325A, as that data regarding address and employment history and family biographical information is now incorporated into Form I-485. USCIS also revised Supplement A and Supplement J to Form I-485, so applicants must ensure they are using the correct supplements (if applicable) when filing their green card applications on or after August 25, 2017.

One of the most significant differences between the current and revised Form I-485 is the length of the section regarding inadmissibility questions. The updated Form I-485 contains 80 questions, many with sub-questions, covering issues of general eligibility and inadmissibility. Applicants should review these questions carefully and consider whether working with a qualified immigration attorney may help them proceed with confidence during this important process.

National Interest Waiver adjudications resume

On March 8, 2017, USCIS confirmed to the American Immigration Lawyers Association ("AILA") that it had resumed adjudication of National Interest Waiver ("NIW") petitions using the new standard imposed by a precedential decision, Matter of Dhanasar.  Adjudications had been temporarily halted while USCIS was awaiting further internal guidance before training its adjudicators and familiarizing them with the new standard. NIWs are a pathway to lawful permanent resident status if an applicant can show his or her work is in the national interest. Under Dhanasar, an NIW applicant must show that the proposed endeavor has both substantial merit and is national in scope, that the applicant is "well-positioned" to advance the proposed endeavor, and that on balance the U.S. would benefit from waiving the job offer and labor certification requirements of the EB-2 category. This new standard significantly eases the NIW process for many applicants, making this a more viable option than it had been under the old standards.

The latest on the President's Executive Order impacting non-immigrants, immigrants and U.S. businesses

On Friday January 27, 2017, President Donald J. Trump signed an Executive Order that contained sweeping changes to processing arrivals at our nation's airports and land borders of non-immigrants with a variety of work and travel visas, immigrants, lawful permanent residents, and refugees. Although styled as imposing temporary measures, it is having a dramatic impact on thousands of individuals in the U.S. and abroad, and contains language that suggests long-lasting changes to the visa application process abroad and the adjudication of immigration-related applications within the U.S. This news release summarizes the Executive Order, the litigation that has followed, and the Order's effect on individuals and employers in the coming weeks.

What is in the Executive Order?

• Major items in the Executive Order include a temporary suspension of visa issuance abroad and entry into the U.S. for individuals from 7 countries, a temporary suspension of admission of all refugees, an indefinite suspension of refugees from Syria, and suspension of the Visa Interview Waiver Program for all non-immigrant visa renewals (by citizens of all countries).
• The Order covers "immigrants and non-immigrants" and includes anyone with a valid visa (including professional work visas, student visas, and tourist visas) and returning lawful permanent residents. The Department of Homeland Security ("DHS") later released a statement indicating the entry of lawful permanent residents would be considered in "the national interest" but it did not assure their entry. Rather, the statement included the caveat "absent derogatory information indicating a serious threat to public safety and welfare, lawful permanent resident status will be a dispositive factor in our case-by-case determinations."
• Section 5 of Order directs the Secretary of State to suspend the U.S. Refugee Admissions Program ("USRAP") for 120 days, and specifically states that the entry of nationals of Syria as refugees is suspended indefinitely, with exceptions for 1) if admitting the individual would be in the national interest; 2) if the person seeking admission is from a religious minority facing religious persecution; 3) to conform to international agreement; or 4) if the person is in transit and there would be undue hardship if he/she were denied admission to the U.S.
• Section 8 of the Order requires the Secretary of State to immediately suspend the Visa Interview Waiver Program ("VIWP"), a worldwide program which allows U.S. consuls to waive in-person visa interviews for nationals of any country who have been recently vetted for security clearances and who seek a visa renewal.

What is the status of litigation regarding the Executive Order?

• Attorneys with the American Immigration Lawyers Association ("AILA") and the American Civil Liberties Union ("ACLU") have filed lawsuits on behalf of affected individuals in federal district courts in New York, Massachusetts, Virginia, and Washington state. Judges in those federal courts have issued Temporary Restraining Orders ("TROs") based on plaintiffs' likelihood of success on Constitutional grounds.
• New York's TRO provides a nationwide stay of removal preventing deportation for individuals with valid visas and approved refugee applications affected by the Executive Order.
• Massachusetts' TRO has barred federal officials from detaining or removing anyone affected by the Executive Order for 7 days (until February 4), and further instructs Customs and Border Protection ("CBP") to notify international airlines that passengers flying into Boston's Logan Airport will not be subject to the Executive Order. Airlines had been refusing to board affected individuals.
• Virginia's TRO specifically orders federal officials to allow lawyers access to "all legal permanent residents detained in Dulles International Airport."
• Washington state's TRO bars federal officials from deporting two unnamed individuals in the U.S.
• Judges in the federal district courts in these jurisdictions will hold hearings this week on these pending suits to determine whether to extend, modify or cancel the TROs. The outcomes are difficult to predict. If the judges are persuaded on the merits of the case, it is possible the TROs may be converted into preliminary injunctions while awaiting further judicial review, effectively stopping the Executive Order or parts of it from taking effect until the matter can be argued and decided by the court. Alternatively, attorneys for the Trump Administration may succeed in their argument that the President's broad discretion on matters of national security permits the actions contained in the Order. If a judge permits the TROs to expire without issuing a preliminary injunction, the Executive Order would be in effect until either a successful appeal by the immigrants to a higher court or possibly an ultimate decision by the Supreme Court.
• In addition, Massachusetts Attorney General Maura Healey announced she is filing a lawsuit today to challenge the Executive Order as unconstitutional.

What are the consequences of this Executive Order on individuals and employers?

• Foreign nationals from one of the seven countries affected by this Executive Order -- either lawful permanent residents or holders of valid visas -- should not travel. There is no guarantee these individuals will be permitted back into the U.S. after travel abroad. This could have disastrous consequences for individuals, their families, and their employers, as they risk being unable to re-enter the U.S. for at least 90 days, if not longer based on how quickly they might be able to obtain a new visa (if needed). 
• For those foreign nationals affected by this Executive Order who are currently outside the U.S., they should consider returning to the U.S. immediately via a direct flight into Boston's Logan Airport if possible before February 4 when the TRO expires.
• If foreign nationals are asked to relinquish U.S. permanent residence, the returning lawful permanent residents should be aware they have a right to request a hearing before an immigration judge. Green card holders should not sign a Form I-407 to relinquish their residence if they desire a hearing.
• Credible reports indicate that applications by nationals from these seven countries for immigration benefits with U.S. Citizenship and Immigration Services ("USCIS") such as Adjustment of Status, Petitions for Non-Immigrant Workers, Applications for Employment Authorization, etc. have been suspended. Currently, issuance of visas abroad for these foreign nationals is also suspended, and sources indicate USCIS will accept but not complete final adjudication until further notice of applications filed by or on behalf of foreign nationals from those seven countries.
• Employers should be aware of both the risk for delays with adjudication of applications and the risk travel presents for any employee needing to apply for a visa abroad. The suspension of Visa Interview Waiver Program will affect students and professional visa holders across the globe, as appointments for visa renewals in all countries will likely experience increased wait times since all visas applicants are now required to attend an in-person visa interview. There is also a greater likelihood of administrative processing (security) delays, given the additional information the Department of State will be seeking as contemplated by the Executive Order.
• In addition, the broad language in Section 3 of the  Order states that the Secretary of DHS and the Secretary of State shall conduct a review to determine the information needed from any country to adjudicate any visa, admission or other benefit under the Immigration and Nationality Act ("INA"), including adjudications. This language suggests a full revisiting of the current processing procedures, which may also result in delays.

We will bring you further updates on this and other immigration-related news in our February newsletter next week. 

Breaking news! Executive Order expected later today may affect travel for thousands of non-immigrant visa holders and immigrants

According to a draft Executive Order obtained by major media, including the New York Times and the Washington Post, President Trump seeks to suspend immigrant and non-immigrant entry into the U.S. by foreign nationals from countries referenced in the 2016 Consolidated Appropriations Act. That Act, passed in December 2015, included a provision that restricted the use of the visa waiver program by dual nationals of certain countries and by persons who had recently visited certain countries. According to CBP, the countries on the list (and those we expect to be affected by this Executive Order) include: 

• Iraq
• Syria
• Iran
• Sudan
• Libya
• Somalia; and,
• Yemen.

Accordingly, any foreign nationals from those countries, whether in the U.S. on temporary visas (including but not limited to F-1 students, E-1 and E-2 treaty traders/investors, E-3 Australians, H-1B professionals, J-1 exchange visitors, L-1 intercompany transferees, O-1 aliens of extraordinary ability, R-1 religious workers), or as permanent residents should be aware that if they travel outside the U.S., they risk not being re-admitted to the U.S. 

In addition to not granting re-entry into the U.S. for visa and green card holders from the countries listed above, the proposed Executive Order references the suspension of issuance of visas and other immigration benefits to nationals of those countries. It remains unclear how long delays will be for those seeking adjudication of a visa, admission to the U.S. or other benefit under the Immigration and Nationality Act ("INA"). 

Although it has been widely circulated in the press, the proposed Executive Order is not yet final. The wording could be changed and it is also possible that such an order ultimately may not be implemented. We share this information with you so can be prepared for the actions the new administration is considering taking imminently. We encourage you to visit our website for further updates and details. 

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. 

Reminder: USCIS filing fee increase and new regulations affecting high-skilled workers are now in effect

U.S. Citizenship and Immigration Services ("USCIS") published its final rule in the Federal Register on October 24, 2016 announcing the new fee schedule for applications.  The new rule increases fees for most applications and petitions by a weighted average of 21%. Please refer to our update from November 2016 with examples of the fee increases for some of the most common types of applications and petitions.

In addition, the U.S. Department of Homeland Security ("DHS") published a final rule in the Federal Register on November 18, 2016 announcing a number of important changes and codifying existing agency policy regarding high-skilled non-immigrant workers, EB-1, EB-2 and EB-3 immigrant workers and their employers. A detailed summary of this new rule, which went into effect on January 17, 2017, can be found in the News and Updates section of our firm's website.

DHS publishes new regulations affecting high-skilled non-immigrants, EB-1, EB-2, and EB-3 immigrant workers, and their employers

On November 18, 2016, the Department of Homeland Security (“DHS”) published its final rule affecting high-skilled nonimmigrant workers, EB-1, EB-2, and EB-3 immigrant workers and their employers. This new rule becomes effective January 17, 2017 and contains a number of important changes, as well as codifies a great deal of existing agency policy, including the following provisions:

Immigrant Petitions

• The new rule expands the list of events that can lead to a loss of a priority date. An individual may be stripped of a priority date if the underlying employment based immigrant visa petitions is revoked for fraud, or a willful misrepresentation of a material fact, if DOL revokes an underlying labor certification, if a USCIS or DOS officer invalidates a Labor Certification, or if USCIS determines that the original petition was approved based on a material error.
• Codifies that an approved I-140 remains valid where USCIS determines that a new job offer is in the same or similar occupation as listed in the original approved I-140.
• Explicitly confirms the long-standing policy that an approved petition remains valid indefinitely unless approval is revoked by USCIS or the DOS.
• Provides a new basis for a narrow group of individuals in valid H-1B, L-1, H-1B1, O-1 and E-3 status to obtain employment authorization independent of their current status. A nonimmigrant in one of the aforementioned statuses who is the beneficiary of an approved I-140, is subject to an immigrant visa retrogression, and who can demonstrate “compelling circumstances” may now apply for employment authorization. USCIS has provided examples of compelling circumstances such as serious illness or disability of the nonimmigrant or a dependent family member “that entails the worker moving to a different geographic area for treatment or otherwise substantially changing his or her employment circumstances.” If an individual can establish compelling circumstances, USCIS may in the exercise of discretion issue an Employment Authorization Document or Card (EAD) valid in one year increments. Once the principal worker is granted an EAD under the new rule, his or her spouse and children may also apply. Unfortunately, USCIS makes clear that use of employment authorization granted by the new rule will generally result in a loss of nonimmigrant status and result in, at a minimum, a temporary ineligibility for adjustment of status.
• For renewals for these “compelling circumstance” EADs, the principal worker will need to demonstrate he or she is still subject to an immigrant visa retrogression and compelling circumstances continue to exist. Alternatively, renewals are authorized if the worker’s priority date is one year or less from the Final Action date on the Visa Bulletin in effect at the time the extension application is filed. The principal worker’s spouse and children may apply for a renewal at the same time as the principal worker, but their applications hinge on the principal’s being approved.

Revocation of Approval of Immigrant Petitions

• Modifies the existing revocation rules in light of INA §204(j). The amended revocation rule provides that an employer’s written withdrawal an approved employment based preference petition 180 or more after the petition’s approval or 180 or more days after an associated application for adjustment of status has been filed remains approved for purposes of I.N.A. §204(j).  Prior to this amendment, a written withdrawal would lead to an automatic revocation of the petition.
• Also modifies the existing rule regarding situations where the petitioning employer ceases business.  An approved petition will remain valid if the petitioning employer ceases business 180 or more days after the petition’s approval or 180 or more days after the filing of an associated application for adjustment of status for purposes of 204(j).  Again, prior to this amendment, a petitioning employer’s termination of business was an event that triggered automatic petition revocation.

Non-immigrant Classes

• The new rule allows individuals coming to the U.S. in E-1, E-2, E-3, L-1 and TN nonimmigrant classifications to be admitted up to 10 days prior to the beginning of their authorized employment to permit them sufficient time to arrive, get settled, and begin employment (similar to what is permitted already for H-1B visa holders). These same individuals should also see their admission period include 10 days at the end of their period of authorized employment to permit them time to depart the U.S. or extend, change or otherwise maintain lawful status.
• Establishes by regulation a grace period of up to 60 consecutive days during each authorized validity period for a number of visa categories, including for E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, and TN non-immigrants, in order to permit these high-skilled workers the ability to pursue new employment and an extension of their nonimmigrant status without having to depart the U.S. or needing to file a change of status request to B-2 or dependent non-immigrant status.
• Codifies and expands portability rules previously established under AC21 and subsequent agency guidance, including:
  • An H-1B nonimmigrant may begin concurrent or new employment upon the filing of a non-frivolous H-1B petition on his/her behalf, or at the start date of a requested petition –whichever is later.
  • Successive H-1B portability petitions are allowed – for example, if the H-1B worker was working at Company A, ports to Company B, and while Company B’s petition is still pending, the H-1B worker ports to Company C.
  • Requests to amend or extend any successive H-1B portability petition cannot be approved if a request to amend or for an extension of any preceding H-1B portability petition in the succession is denied, unless the worker’s previously approved H-1B status remains valid.
  • Denial of a successive portability H-1B petition does not preclude an H-1B worker from continuing or resuming working in accordance with a previously approved H-1B petition so long as that prior petition remains valid and the beneficiary has otherwise maintained H-1B status or been in a period of authorized stay and has not work without authorization.
• Explicitly recognizes that some states permit non-licensed individuals to perform work that otherwise requires licensure if they do so under the supervision of a licensed senior or supervisory personnel. The new rule notes that USCIS will consider the nature of the duties, in addition evidence of the identity, physical location and credentials of the person who will be supervising the H-1B worker and the facts must demonstrate that alien will fully perform the duties of the occupation.
• Confirms that DHS may approve, for up to 1 year, an H-1B petition on behalf of a worker who will be employed in a job that requires licensure by a state or local authority if the only things precluding the H-1B worker from obtaining the license are a lack of a social security number or proof of employment authorization, or similar technical requirement. Extensions for these individuals may not be approved unless the petitioner can demonstrate at the time of applying for the extension that the H-1B worker is now licensed in that position, or working in a different position or location that either requires a different license (which the H-1B worker has) or no licensure requirement is applicable in the new location.
• Provides for more consistent adjudication for non-profit employers affiliated with institutions of higher learning and government research organizations filing cap-exempt H-1B petitions, including the potential for non-profit employers and government research organizations to pursue cap-exempt H-1Bs even if they have never previously petitioned for an H-1B employee.
• Prior regs and interim policy memoranda had required cap-exempt non-profits to demonstrate the non-profit was connected to or associated with an institution of higher education through shared oversight or control by the same board or federation, was operated by an institution of higher education, or was attached to an institution of higher education as a member, branch, cooperative, or subsidiary, or proof the organization had been granted a cap-exempt H-1B in the past.  The new rule provides an additional option: proof that the non-profit has entered into a formal written affiliation agreement with an institution of higher education that establishes an active working relationship with the institution of higher ed for purposes of research or education, and that a fundamental activity of the non-profit is to directly contribute to research or education mission of the institution of higher education.
• The new rule also expands cap-exempt status for government research organizations by clarifying that federal, state or local entities whose primary mission is the performance of basic and/or applied research may qualify as cap-exempt. The previous version of the regulations stated a government research organization was a “United States Government entity” so the expansion to state and local government entities engaged in research is notable.
• In addition, an H-1B petitioner who is not a qualifying institution or organization may claim an exemption from the cap for H-1B employees if the majority of his/her duties will be performed at a qualifying institution, organization or entity, and those duties directly and predominantly further the essential purpose, mission or objectives of the organization (higher education or non-profit or government research).
• Clarifies two existing policies of USCIS concerning employees working for cap-exempt and then cap-subjected employers: 1) that an H-1B nonimmigrant working for a cap-exempt organization must be counted against the cap when changing employers to a cap-subject employer if he/she has not previously been counted against the cap within the past 6 years, and 2) concurrent employment with a cap-exempt and cap-subject employer is permitted, but the H-1B nonimmigrant must continue to maintain the cap-exempt employment. Failure to do so may result in USCIS revoking the concurrent, cap-subject petition unless the beneficiary has been counted against the cap within the past 6 years or obtains a new cap-subject H-1B approval.
• Codifies that time spent physically outside the U.S. exceeding 24 hours by an alien during the validity of an H-1B petition approved on the alien’s behalf does not count towards the 6 year maximum. The burden is on the H-1B petitioner to provide evidence in the form of passport stamps, I-94 records, and airline tickets, along with a chart, indicating 24 hour periods spent outside the U.S. when seeking to recapture time and extend the alien’s H-1B status.
• Allows for extension of H-1B status beyond the 6 year maximum under 214(g)(4) when a petitioner can show more than 365 days have passed since it filed a labor cert with DOL under 203(b) or an immigrant visa petition with USCIS under 203(b).  Petitioners may file an H-1B petition seeking a lengthy adjudication delay exemption within 6 months of the requested start date, which may be before 365 days have elapsed since the filing of the Labor Cert or I-140.

Adjustment of Status to that of Person Admitted for Permanent Residence

• EADs may not be issued to an application for adjustment of status under the Haitian Refugee Immigration Fairness Act of 1998 (HRIFA) until the AOS application has been pending for 180 days, with limited exceptions. If USCIS fails to adjudicate the applicants EAD upon expiration of the 180 day waiting period or within 90 days of filing the EAD application (whichever is later), the applicant shall be eligible for an EAD.
• USCIS may require any applicants for adjustment of status based on an approved employment-based immigrant petition to affirmatively demonstrate to USCIS, on Form I-485 Supplement J that the employment offer by the petitioning employer is still valid or the applicant has a new offer of employment from the same petitioner, a new employer, or a new offer based on self-employment in the same or similar occupational classification as the employment offered in the original petition. The qualifying visa petition (the I-140) needs to have already been approved (and not revoked) or still pending when the beneficiary notifies USCIS of a new job offer 180 days or more after he or she filed an I-485 application, and the I-140 is subsequently approved. 

Control of Employment of Aliens

• If an individual’s employment authorization is due to expire, the new regulations require employers to re-verify on Form I-9 (no later than date of expiration of 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 EADs for I-9, reverification applies upon the expiration of the automatically extended validity period for the EAD (discussed below) and not the expiration date indicated on the face of the EAD.
• EADs that are issued to individuals who are not employment authorized incident to status (and including those filing based on Temporary Protected Status) will have their EADs automatically extended for up to 180 days from the date of their EAD expiration upon timely filing for an extension.
• NOTE: the regulation that provides for automatic extension of EADs also removes the existing regulation requiring USCIS to adjudicate EAD applications within 90 days of receipt. It remains to be seen how this change will affect applicants for initial EADs.

OFLC addressing two major PERM issues

Early last week, the Department of Labor's ("DOL") Office of Foreign Labor Certification ("OFLC") met with the American Immigration Lawyer's Association's ("AILA") DOL Liaison Committee for its quarterly stakeholder meeting. During their meeting, representatives from AILA and OFLC discussed a recent issue plaguing employers filing PERM cases on behalf of employees where the employer has used "competitive", "negotiable", "depends on experience", or similar language in reference to salary in some or all of its advertising, resulting in DOL denying the PERM. DOL's reasoning behind these denials was that U.S. workers might have been dissuaded from applying for these positions by the use of this vague (yet very common) language concerning salary. In its meeting last week, OFLC indicated they are closely reviewing a recent BALCA decision on this point (Matter of TekServices) and in the interim they are suspending denials of pending applications that involve this salary language issue.

At that same meeting, AILA and OFLC discussed recent PERM denials based on non-qualified experience in Section H. 14 of ETA Form 9089. For example, if an employer's minimum requirements for the offered position listed in H. 14 involved 5 years experience in software development, in addition to experience with JAVA and .NET, DOL was determining that "5 years experience" applied to both software development and the experience with JAVA and .NET since the employer did not specifiy a different number of months/years experience with those computer languages. DOL was then denying PERM applications where it appeared the alien worker did not have all the necessary experience based on this standard. During the meeting last week, OFLC indicated they are closely reviewing a recent BALCA decision (Matter of Smartzip Analytics) and they are suspending denials of pending applications that involve this H.14 non-qualified experience issue.