Tips for I-9 compliance and new form I-9 update
In a recent Fifth Circuit Court of Appeals case, the Court unanimously held that an employer is permitted to sign Section 2 of Form I-9 based on "corporate knowledge." In the case in question, a recruiter viewed original documentation presented by new hires at a remote worksite in Texas, scanned copies to the corporate headquarters in Minnesota, where a representative completed Section 2, and proceeded to sign and date the document. We note this as a case of interest to many companies, but we caution employers that this decision DOES NOT comport with current U.S. Citizenship and Immigration Services ("USCIS") guidance which affirms that only the individual who has personally reviewed the original documents is permitted to sign Section 2 on Form I-9.
Current I-9 instructions (which were not as clear at the time of the employer action in this case that was before the Fifth Circuit) state "The person who examines the documents must be the same person who signs Section 2." Because the prior version of the instructions did not include this clear wording, the court held the employer did not have "Fair notice" of the agency's interpretation of the regulation. Employers, particularly those with multiple worksites and remote employees, should continue to adhere to current USCIS guidance. It is important for employers to have a protocol in place for examining original documents with the Section 2 signatory present for I-9 compliance, even in the case of remote employees who work from home or employees who report to locations or company worksites separate from the company's principal place of business.
In other I-9 news, USCIS announced that the current Form I-9 will remain valid until January 21, 2017. Starting January 22, 2017, it will be mandatory for all employers to use the new version of the Form I-9 as they undergo proper employment procedures. In the meantime, employers can continue to use the current version which was last revised on March 3, 2013. We continue to await official publication of the new I-9 and expect to be able to bring you a link to the new form in next month's newsletter.
Important changes to N-400 filing procedures
In an email to stakeholders, U.S. Citizenship and Immigration Services ("USCIS") recently announced updates to filing procedures for the Form N-400, Application for Naturalization. Per the stakeholder email and the updated version of the N-400 form instructions, applicants in the U.S. no longer need to submit two passport-style photos when filing, as their photos will be taken at their biometrics appointment. Also, regardless of age, all applicants, with the exception of those residing overseas, will be scheduled for biometrics to have their fingerprints, photos, and signature taken. Previously, applicants aged 75 years or older were exempt from the fingerprint requirement but since USCIS is now processing these forms electronically, senior citizens are now also required to appear at an Application Support Center for biometrics. Applicants exempt from the biometric services fee continue to be exempt from the fee until further notice, but they will be requested to appear for biometrics appointments regardless of age. Applicants should always check the latest form instructions for changes to these procedures.
TPS Extended for Nepal
USCIS recently announced Temporary Protected Status ("TPS") for Nepal will be extended for an additional 18 months, effective December 25, 2016, through June 24, 2018. Current beneficiaries who wish to extend their TPS must re-register during the 60-day period that is open now through December 27, 2016. USCIS will automatically extend current TPS Nepal employment authorization documents (EADs) with a December 24, 2016 expiration date for six months. For more information please visit USCIS's TPS website for more details.
Visa Bulletin update - some good news, finally!
As predicted by many observers, the Department of State's Visa Bulletin for October 2016 shows forward movement on the "Final Action" chart for many employment-based preference categories. All nationalities will be current for the EB-1 category, which is reserved for Individuals of Extraordinary Ability, Outstanding Professors/Researchers, and Multi-National Executives/Managers. This category was backlogged in August and September for Chinese and Indian nationals. The EB-2 category, which is for professionals holding advanced degrees, Individuals of Exceptional Ability, and those applying in the National Interest Waiver category, will be current for all nationalities except for China and India. This category was backlogged in August and September for all countries, so although this forward movement does not help Chinese and Indian nationals it does benefit individuals from all other countries in this category. The EB-3 category remains slightly retrogressed for all nations, with more severe backlogs for nationals of India, the Philippines and China.
For the first time in Visa Bulletin history, USCIS announced that it will accept applications for Adjustment of Status (also commonly referred to as "green card" applications) from qualified foreign nationals based on the October Bulletin's "Dates for Filing" chart for EB-1, EB-2, and EB-3 categories and all Family Based Categories. This is a significant development and major departure from prior policy where USCIS would only recognize the "Final Action Dates" chart. For example, the Final Action chart lists 15 January 2007 as the current priority date for Indian nationals in the EB-2 category, while the Dates for Filing chart lists 22 April 2009. To be sure, USCIS use of the Dates for Filing chart will not decrease the oppressively long wait times for green card approval. This shift in policy should, however, provide individual applicants and their employers with many of the benefits that come with a pending adjustment application-employment authorization cards, advance parole, and the flexibility to change jobs in some circumstances.
To view a copy of the October Visa Bulletin, visit the U.S. Department of State's website. If you have questions regarding priority dates and eligibility for filing adjustment of status applications, please contact the attorneys at Iandoli Desai & Cronin at info@iandoli.com.
DOL Stakeholder Meeting: no final rule likely before end of Obama's term
As reported in minutes from a recent stakeholders meeting, officials from the Employment and Training Administration's Office of Foreign Labor Certification dashed any hopes for significant change to the current Permanent Labor Certification ("PERM") program. Publication of a Notice of Proposed Rule Making may be possible before the end of this calendar year, but the Office of Foreign Labor Certificate has indicated it is "highly unlikely" that any final rule could be implemented before the change in administrations.
The PERM program is the first step in obtaining employment-based permanent resident status for the majority of foreign-born skilled workers in the U.S. The current regulations have not been updated in well over a decade, despite how much has changed in our economy and industry recruitment practices. Many employers criticize the current regulations as out of step with worker or industry needs and conditions.
In connection with President Obama's Executive Actions on Immigration, originally introduced in November 2014, the Department of Labor ("DOL") announced it would conduct a review of the PERM program and regulations and seek input from stakeholders on how the regulations could be modernized to be more responsive to the realities of our current national workforce. Among the topics discussed at several listening sessions with DOL included the handling of harmless errors, recruitment venues, addressing audit backlogs, and the retroactive application of new policies. We will continue to update you in our newsletter when DOL finally publishes a Notice of Proposed Rulemaking for the modernization of the PERM system.
Form I-9: Change is coming
The August/September edition of E-Verify Connection, an electronic newsletter published by the Department of Homeland Security ("DHS"), provides a schedule for the new Form I-9's roll out. DHS states "On Aug. 25, the Office of Management and Budget (OMB) approved a revised Form I-9, Employment Eligibility Verification. USCIS must publish a revised form by Nov. 22, 2016. Employers may continue using the current version of Form I-9 with a revision date of 03/08/2013 N until Jan. 21, 2017. After Jan. 21, 2017, all previous versions of Form I-9 will be invalid."
Since 1986 U.S. law has required employers to verify worker eligibility and maintain records through the use of Form I-9. In the event of an I-9 audit, employer errors and violations for identity and employment eligibility verification can result in significant fines. When the new form is published, employers will have 60 days to study and develop best practice for use with the new form. If you have questions about I-9 compliance or how to prepare for an I-9 audit, please contact one of the attorneys at Iandoli Desai & Cronin P.C. at info@iandoli.com
H-1B lottery rules challenged
A Federal District Court in Oregon has denied the Government's request to dismiss a lawsuit brought by employers and several foreign national professionals challenging the random selection process (also referred to as the H-1B "lottery") used by USCIS to select H-1B petitions for adjudication. The plaintiffs allege that the random selection process is unlawful because it violates the express command of Immigration and Nationality Act ("INA)§214(g) which provides that foreign national professionals "shall be issued visas...in the order in which petitions are filed..." If the plaintiffs are successful, multi-year waiting lists for H-1B visas may develop, much like those for immigrant visas for the preference categories. The case is Tenrec, Inc. v. United States Citizenship & Immigrations Servs., 2016 U.S. Dist. LEXIS 129638 * (D. Or. Sept. 22, 2016). A copy of this most recent decision can be viewed here and a full copy of the initial complaint can be viewed here.
TPS update: designation for Guinea, Liberia & Sierra Leone ending
The Department of Homeland Security ("DHS") in coordination with other government agencies recently concluded that conditions in Guinea, Liberia, and Sierra Leone no longer support their designation for Temporary Protected Status ("TPS"). The Secretary of Homeland Security may designate a foreign country for TPS due to conditions in the country that temporarily prevent the country's nationals from returning safely, including in the event of ongoing armed conflict, an environmental disaster or epidemic, or other extraordinary or temporary conditions. Other countries currently designated for TPS include El Salvador, Haiti, Honduras, Nepal, Nicaragua, Somalia, Sudan, South Sudan, Syria, and Yemen.
Pursuant to a DHS Notice in the Federal Register, individuals who obtained TPS based on the designations of Guinea, Liberia, and Sierra Leone have received an automatic but limited extension of TPS until May 21, 2017. Furthermore, the Notice extends the validity of Employment Authorization Documents ("EAD") issued to those same individuals to May 21, 2017, so affected individuals do not need to file any additional applications to extend their TPS or EAD cards. Foreign nationals in the U.S. from Guinea, Liberia and Sierra Leone who have filed for TPS should seek guidance with immigration professionals now to avoid a potential lapse in status once the period of TPS terminates. For more information about TPS generally and the termination of TPS for these three countries, please visit the USCIS TPS website.
E-Verify, Conrad 30 Waiver, Religious Worker, and EB-5 program extensions
In the final days of the Government's fiscal year, Congress passed Public Law 114-223, Continuing Appropriations and Military Construction, Veterans Affairs, and Related Agencies Appropriations Act, 2017, and Zika Response and Preparedness Act. This act was signed on September 29, 2019 by President Obama, keeping the government funded and certain programs in place through December 9, 2016. As part of this law, the Religious Worker, Conrad 30 Waiver, EB-5 Immigrant Investor, and E-Verify programs have been extended until December 9, 2016. Absent Congressional action, each of these programs would have expired at midnight on September 30, 2016. Congress will likely address longer term extensions for these programs in the next two months as part of the larger funding bills to keep the government funded through the balance of Fiscal Year 2017. We will bring you additional updates on these programs in future editions of our newsletter.
Proposed rule would allow entrepreneurs temporary entry into the U.S.
On August 26, 2016, the Department of Homeland Security ("DHS") announced new proposed regulations to increase and enhance entrepreneurship, innovation, and job creation in the United States. DHS's proposed rule would add new regulatory provisions permitting the use of parole/temporary stay on a case-by-case basis with respect to entrepreneurs of start-up entities whose entry into the U.S. would provide a significant public benefit through the substantial and demonstrated potential for rapid business growth and job creation. The regulations describe several metrics for assessing this potential, including the receipt of significant capital investment from U.S. investors with established records of successful investments or obtaining significant awards or grants from certain federal, state or local government entities.
If granted, parole would provide the entrepreneur a temporary, initial stay of up to 2 years, with the possibility of being extended by up to an additional 3 years, in order to facilitate the entrepreneur's ability to oversee and grow her or his start-up entity in the U.S. DHS would consider subsequent requests for re-parole only when the entrepreneur can demonstrate the start-up entity continues to provide a significant public benefit as evidenced by substantial increases in capital investment, revenue, or job creation.
DHS published its notice of proposed rulemaking in the Federal Register, inviting public comment for 45 days - until October 10, 2016. Once the comment period closes, the agency will review comments received and consider changes to the proposed regulations, publishing a final rule in the Federal Register at a later date. You may submit comments on the proposed rule by e-mail at uscisfrcomment@dhs.gov with DHS docket number USCIS-2015-0006 in the subject line of the message. Iandoli Desai & Cronin P.C. will continue to bring you updates on this new proposed rule in our newsletter and on our website at www.iandoli.com/newsandupdates.