DHS Proposes Expansive Rule Addressing Immigrant & Non-immigrant Employment-Based Categories
In the last Federal Register edition of 2015, the Department of Homeland Security ("DHS") proposed substantial revisions and additions to its rules governing employment-based immigrant and non-immigrant categories. Many of the proposed provisions incorporate and clarify statutory provisions enacted by Congress over a decade ago, while others seek to insulate employers and foreign nationals from recent systemic delays in adjudication at USCIS.
The extensive proposal promises to "provide various benefits to participants in those programs, including: improved processes for U.S. employers seeking to sponsor and retain immigrant and non-immigrant workers, greater stability and job flexibility for such workers, and increased transparency and consistency in the application of agency policy related to affected classifications." Several of the specific changes sought in the proposed regulations include:
- Enabling certain high-skilled, non-immigrant workers with approved I-140 petitions to apply for separate employment authorization for a limited period if there are compelling circumstances for doing so. In the proposed regulations DHS does not define "compelling circumstances" but does cite four examples, including significant disruption to the employer, serious illness and disabilities, employer retaliation, or other substantial harm to the applicant;
- Implementing a one-time 60 day grace period for E-1, E-2, E-3, H-1B, L-1 and TN non-immigrants upon cessation of employment (whether the employment ends voluntarily or the foreign national has been laid off or terminated);
- Automatically extending the validity of certain Employment Authorization Documents ("EADs") for up to 180 days upon timely filing applications to renew the existing EADs; and,
- Eliminating the 90 day processing timeframe for EADs and the requirement for the issuance of interim EADs.
Iandoli Desai & Cronin P.C. will keep you informed of any updates and resulting final rules from these proposed regulations in 2016. To view the proposed revisions and submit public comments by February 29, 2016, visit https://federalregister.gov/a/2015-32666.
DHS requests Court to extend STEM OPT program until May 10, 2016
In August 2015, a U.S. District Court found DHS had failed to provide notice and invite public comment when it promulgated the 2008 STEM OPT extension rule, which to date has enabled thousands of F-1 students with degrees in the STEM fields to receive a 17 month extension to their existing one year of work authorization in the U.S. following graduation. As part of this recent District Court ruling, the judge ordered that the 17 month STEM OPT extension program be vacated as of February 12, 2016 unless DHS corrects its procedural deficiency. In October 2015, DHS published the new proposed STEM OPT rule and has since received an astounding 50,500 comments. On December 22, 2015, DHS filed a motion requesting the court permit the existing STEM OPT extension program to continue until May 10, 2016 to enable the agency time to address a majority of the comments received when publishing its final rule. DHS's request would allow an additional 30 days to complete the rulemaking and 60 days to train agency personnel on the new STEM OPT requirements, as well as prepare training aids and material for foreign students, U.S. schools and U.S. employers.
Iandoli Desai & Cronin P.C. will keep you informed of all updates related to the STEM OPT litigation on our website at www.iandoli.com/newsandupdates.
Major Changes to the Visa Waiver Program
In response to recent terror attacks in Paris, Congress made significant changes to the Visa Waiver Program ("visa waiver") as part of the Consolidated Appropriations Act, 2016 (H.R. 158) on December 18, 2015. Visa waiver allows citizens of certain countries to enter the U.S. as a tourist without a visa for up to 90 days. Such travelers must have authorization under the Electronic System for Travel Authorization ("ESTA") prior to boarding a U.S. bound air or sea carrier as well as meet a few other criteria (i.e., possess a machine-readable passport).
The changes to visa waiver, which took effect immediately, include barring previously eligible persons from using visa waiver if during the past five years they have traveled to Iran, Iraq, Syria, and Sudan, or if they are dual nationals of those countries. Foreign nationals affected by this change will be required to apply for a tourist visa at a local U.S. Consulate or Embassy abroad. Other changes to the Visa Waiver Program include revised conditions for participating countries such as passport security requirements, screening protocols, and information sharing. Congress has also included revocation provisions for participating countries failing to meet the new requirements.
If you have questions about the changes to the Visa Waiver Program, please contact the attorneys at Iandoli Desai & Cronin P.C. at info@iandoli.com.
H-1B Cap Season is upon us!
Employers should begin making plans for the upcoming Fiscal Year 2017 H-1B visa filing deadlines. Given the annual high demand for H-1B visas, USCIS is likely to accept H-1B petitions subject to the annual cap only during the first five business days in April: Friday, April 1, 2016 through Thursday, April 7, 2016. We urge employers to contact us as early as possible in 2016 to review the requirements of the H-1B program, discuss the timing for drafting the FY2017 H-1B petitions, and to strategize about other options for employment-based visas for recent graduates and professionals.
Please contact us at info@iandoli.com or call us at 617-482-1010 with questions about H-1B visas and the application process.
New Guidance for Employers on Performing Internal I-9 Audits
The Department of Justice's Civil Rights Division and the Department of Homeland Security's U.S. Immigration and Customs Enforcement recently issued a joint guidance memo entitled "Guidance for Employers Conducting Internal Employment Eligibility Verification Form I-9 Audits." Though not required by law, it is advisable to conduct an internal audit of your company's Form I-9 records periodically to ensure compliance with regulations and anti-discrimination provisions of the Immigration and Nationality Act, as non-compliance can result in significant employer sanctions - both civil and criminal. This new joint guidance provides best practices on how employers should launch an internal audit to avoid discrimination or retaliation claims, communicate about the audit process with employees, correct mistakes, properly request alternative documents when necessary, use a third party to conduct the internal audit, and the effect of enrollment in E-Verify on internal audits.
Iandoli Desai & Cronin P.C. offers several options for conducting I-9 audits, from reviewing a sample of your Form I-9s with supporting documents and highlighting potential issues, to performing a full on-site audit of all records. If you would like to discuss these options or the assistance our firm can provide to avoid costly sanctions, please contact us at info@iandoli.com.
Visit http://www.justice.gov/crt/file/798276/download to read the new joint guidance in its entirety.
SEVP Releases Report on International Student Data
According to a recent report from the Student and Exchange Visitor Program ("SEVP"), there are currently 1.2 million international students using an F or M visa to study in the U.S. across 8,803 certified academic schools and universities, as well as 201,800 J-1 exchange visitors. Thirty-nine percent of these international students (approximately 466,900 individuals) are enrolled in STEM (science, technology, engineering and mathematics) courses.
The U.S. maintains the world's largest international student population. According to a Wall Street Journal article from March 24, 2015, "Amid rising costs, shrinking state support and student resistance to tuition increases, foreign students have become crucial to many public universities. Some hire foreign consultants to recruit students overseas, while others send their own staff on scouting missions. Officials at many state universities say the higher-paying students essentially subsidize in-state students." The U.S. international student population adds to the vibrancy and diversity of student bodies and college towns and brings in billions of dollars of economic revenue to the U.S. - and not just in terms of tuition dollars, as students in the U.S. also pay for housing, food, household supplies, personal and professional services, and entertainment.
To read more statistics from the SEVP, visit: https://www.ice.gov/news/releases/sevp-releases-quarterly-international-student-data
Begin Your Company's Planning for April's H-1B Lottery Now
With the U.S. economy booming again, employers should begin thinking about their hiring plans for next year and the upcoming Fiscal Year 2017 H-1B visa filing deadlines.
With the U.S. economy booming again, employers should begin thinking about their hiring plans for next year and the upcoming Fiscal Year 2017 H-1B visa filing deadlines. Given the high demand for H-1B visas, USCIS is likely to accept H-1B petitions subject to the annual cap only during the first five business days in April: Friday, April 1, 2017 through Thursday, April 7, 2017. This filing deadline means late winter and early spring are often the busiest times of year for immigration practitioners, and we urge employers to contact us in December and January to review the requirements of the H-1B program, discuss the timing for drafting the FY2017 H-1B petitions, and to strategize about other options for employment-based visas for recent graduates and professionals. Please email us at info@iandoli.com or call us at 617-482-1010 with questions about H-1B visas and the application process.
USCIS opens draft Policy Memorandum addressing Immigrant Visa Portability pursuant to I.N.A. Sec. 204(j), 8 U.S.C. 1154(j) for public comment.
On November 20, 2015, USCIS released for public comment a Draft Policy Memorandum (DPM) regarding the employment-based Immigrant Visa Portability provisions of the Immigration and Nationality Act (INA). The Immigrant Visa Portability provisions were first enacted by Congress in October 2000 and allow certain employment-based green card applicants to change jobs or employers provided the applicant continues to work in the same or similar occupation as the originally sponsored petition. The DPM instructs USCIS adjudicators to use the federal government's Standard Occupational Classification (SOC) system to assess whether the two positions are in the same or similar occupation. The SOC system divides all jobs in the U.S. economy into 23 Major Groupings, 97 Minor Groupings, 461 Broad Occupations, and 840 Detailed Occupations. The DPM requires applicants seeking to invoke the Immigrant Visa Portability provisions to demonstrate by a preponderance of the evidence that the new job is in the same or similar occupation, including evidence from the intending employer describing the new position's duties, requirements and rate of pay. Comments on this proposed Draft Policy Memorandum are due January 4, 2016. For more information, visit: http://www.uscis.gov/outreach/feedback-opportunities/draft-memoranda-comment/draft-memorandum-comment
USCIS seeks public comments on proposed revisions to Form I-9
USCIS issued a Notice in the November 24, 2015 edition of the Federal Register seeking public comment on its proposed revisions to the Form I-9, Employment Eligibility Verification. USCIS has proposed extensive revisions to the form's instructions, providing more detailed examples and explanations. For example, the proposed revisions provide far greater detail and guidance to employees in completing Section 1 of Form I-9. Comments are due January 25, 2016. For more information or to submit comments on these proposed revisions, visit: http://www.uscis.gov/laws/uscis-federal-register-announcements
Deadline for H-1B Amendments in the wake of Matter of Simeio Solutions, LLC is approaching
In July, 2015, USCIS published official guidance after the recent Matter of Simeio Solutions, LLC precedent decision by the Administrative Appeals Office. According to USCIS's official guidance, employers must now file an amended or new H-1B petition for any H-1B employee whose place of employment changes to a new geographical area that requires filing of a new Labor Condition Application ("LCA") with the Department of Labor. As part of its official guidance, USCIS announced a safe harbor period through January 15, 2016 in which employers may file new or amended petitions that will be considered timely for purposes of employers maintaining compliance and employees maintaining their non-immigrant status. The risks of non-compliance are substantial - a random site visit could result in revocation of the employer's petition and the employee may be found to not be maintaining his or her H-1B status. If you have questions about H-1B amendments and compliance in the wake of Matter of Simeio Solutions, LLC, please contact us at info@iandoli.com
The Syrian refugee crisis and H.R. 4038
Since 1975 the U.S. has accepted over three million refugees from all over the world seeking protection from violence and persecution in their homelands. In FY2016, the U.S. has committed to accepting 85,000 refugees, including at least 10,000 from Syria. Refugees undergo the most rigorous security screen process of all persons seeking admission to the U.S., but in response to the terror attacks in Paris, Rep Michael McCaul (R-TX) introduced H.R. 4038: American Security Against Foreign Enemies Act of 2015. This bill, which passed the House by a vote of 289 - 137, adds even more layers of certifications and background investigations to the process, including the requirement for each refugee be individually certified as not posing a threat to the security of the U.S. by both the Director of the FBI and the Director of National Intelligence. The Senate has yet to take up the bill. Look for additional updates in our newsletter in the coming months on this and other immigration-related legislation.
Bipartisan Legislation Reforms
"At last, sensible immigration reform may have a chance in Washington" -Vivek Wadhwa, The Washington Post
Bipartisan Legislation Reforms Employment-Based H-1B and Student Visas, Increases Access to Employment-Based Green Cards, and Promotes STEM Education. More info here.
Editor's Note: Originally Posted on 01/16/2015
Keeping Talent in Boston
Boston is home to world-renowed institutions of higher education and thriving companies in healthcare, technology, biotechnology and professional services.
Join us Wednesday, February 4th for Keeping Talent in Boston
Immigration Options for Professionals, Entrepreneurs, Investors, and Recent College Grads.
Click here for more info!
Editor's Note: Originally Posted on 01/15/2015
FUNDAMENTALS OF EMPLOYMENT LAW SEMINAR DATE RELEASED
ID&C is pleased to announce The Fundamentals of Law Employment Seminar on Wednesday, February 11, 2015.
ID&C is please to announce:
THE FUNDAMENTALS OF EMPLOYMENT LAW SEMINAR
Where: Worcester, MA
When: Wednesday, February 11th 2015
Time: 8:30am-4:30 pm (Lunch 12:15pm)
Hosted by: Sterling Education Services
One of this year’s presenter’s is ID&C’s Prasant Desai.
Register before December 31st and save $30.
PLEASE SAVE THE DATE!
For more information and registration please click here
Editor's Note: Originally Posted on 12/11/2014