Equal Pay Transparency and its Effect on PERM Applications
Equal Pay Transparency (EPT) laws have been expanding in the United States. Currently, Colorado, Connecticut, Maryland, Nevada, New Jersey, and Ohio have EPT laws in effect. New York City’s EPT law goes into effect on November 1, 2022, and Washington, California, and Rhode Island have EPT laws going into effect in 2023. The requirements to publish salary information in job postings will impact employers’ PERM applications. For example, salary information may have to be disclosed in recruitment activities other than the Notice of Filing. The attorneys at Iandoli Desai & Cronin are monitoring these developments and will contact any clients who may be affected by the passage of new EPT laws. If you have employees working in one of the mentioned states and/or have questions about how this could impact sponsoring foreign workers for permanent residency, please do not hesitate to contact our office at info@iandoli.com.
Immigration and Customs Enforcement Extends I-9 Compliance Flexibility to July 31, 2023
On October 11, 2022, U.S. Immigration and Customs Enforcement (ICE) announced an extension of Form I-9 flexibilities first announced in March 2020 and updated in March 2021.
Due to the continued safety precautions related to COVID-19, Form I-9 flexibilities will be extended until July 31, 2023.
The current I-9 flexibilities state that if an employee is hired on or after April 1, 2021 and works exclusively in a remote setting due to COVID-19-related precautions then they are temporarily exempt from the physical inspection requirements associated with the Employment Eligibility Verification (Form I-9) under Section 274A of the INA until they undertake non-remote employment on a regular, consistent, or predictable basis, or the extension of the flexibilities related to such requirements is terminated, whichever is earlier. Employers with employees taking physical proximity precautions due to COVID-19 will not be required to review the employee’s identity and employment authorization documents in the employee’s physical presence. However, employers must inspect the Section 2 documents remotely and obtain, inspect, and retain copies of the documents, within three business days for purposes of completing Section 2. For more information, please see the March 2020 and updated 2021 guidance.
Erroneous Terminations of F and J Students in SEVIS Reported
AILA (American Immigration Lawyers Association) members have reported that some J-1 Exchange Visitors and F-1 Students saw their SEVIS records erroneously terminated due to a change of status to H-1B when there was a consular processing decision instead. Those affected should contact their school DSO/ARO to have this error corrected.
D.C. Circuit Holds that Optional Practical Training (OPT) for F-1 Students is Valid
After eight years of litigation, the U.S. Court of Appeals for the D.C. Circuit held on October 4, 2022, that Optional Practical Training (OPT) – employment authorization for college graduates – is valid and that allowing international students to work in positions connected to their studies was within the Department of Homeland Security’s authority (Washington Alliance of Technology Workers v. United States Department of Homeland Security, et al). The Washington Alliance of Technology Workers commenced litigation against the Department of Homeland Security when OPT was expanded from one to up to three years for STEM degree holders, arguing that DHS did not have the authority to do so. The D.C. Circuit disagreed and pointed out that practical training for international students dates back over 70 years, and Congress has repeatedly acquiesced over the years. In a 2 to 1 decision, Judge Pillard writes:
“History corroborates that Congress meant what it plainly said in the INA when it granted DHS authority in section 1184(a)(1) to set the conditions of F-1 students’ admission…And across decades of the Executive doing so openly, we have explained, Congress has chosen to maintain the relevant provisions of the F-1 student category when it enacted the INA in 1952 and made many ensuing amendments—all of which preserved both the F-1 category and the section 1184(a)(1) authority under which the Executive had long granted work authorizations.”
November 2022 Visa Bulletin
Each month, the U.S. Department of State (DOS) publishes the Visa Bulletin, listing all "preference" categories and states whether a backlog exists for each one. In addition, the categories are folded into two charts: “Final Action” chart and a “Dates for Filing” chart for Family-Based immigration and Employment-Based immigration.
The November Visa Bulletin has been released. There has been no movement in either the Employment-Based or Family-Based Preference Filings from last month. For both categories, you may use the Dates for Filing chart in the Department of State Visa Bulletin for November 2022.The November Visa Bulletin also notes the following:
“Increased demand in the Employment Second category may necessitate the establishment of a worldwide final action date in the coming months to hold number use within the maximum allowed under the Fiscal Year 2023 annual limit. This situation will be continually monitored, and any necessary adjustments will be made accordingly.”
If you have questions about planning, please schedule a consultation with one of the attorneys at Iandoli, Desai & Cronin (info@iandoli.com).
IDC Welcomes Casey Troost to Our Firm
We are excited to announce that Casey Troost has joined our firm as a paralegal. Casey graduated from Oberlin College and previously worked for the Capital Area Immigrants’ Rights Coalition in Washington, D.C. Casey is also fluent in French.
We're Hiring!
Iandoli, Desai, & Cronin has an immediate opening for a Business Immigration Paralegal. We are dynamic eight attorney and twelve paralegal immigration law firm serving professionals, businesses, and academic institutions. Our clients are leaders in medicine, engineering, biotechnology, and academia. The duties and responsibilities include:
Assist attorneys in the preparation and filing of employment-based immigrant (EB-1, EB-2, and EB-3) and nonimmigrant (H-1B, O-1, E-2, E-3, L-1 and TN) petitions and supporting documentation
Assemble petitions and application packages
Communicate with individual clients, HR representatives and government agencies
Help individuals gather necessary information/documents
Use specialized Case Management software to monitor deadlines and expirations and draft petitions and applications
Draft support letters and other documents
Track client communications and government correspondence
Additional administrative duties may include answering phones, scheduling appointments, generating invoices, filing, and other ad hoc tasks.
Must have a bachelor’s degree and excellent writing, computer, interpersonal, organizational, and time management skills. Must be able to meet rigid deadlines and prioritize tasks.
NO JDs, LLBs, LLMs, or current/matriculating law students.
Please email résumé and cover letter to careers@iandoli.com
No phone calls please. Only those candidates selected for an interview will be contacted.
Attorneys Desai and Walsh Present at the NAFSA Region XI Conference
Attorneys Prasant Desai and Mary Walsh presented at the NAFSA Region XI Conference in Manchester, New Hampshire in October. Attorney Walsh chaired a session on Immigration Considerations for Influencers, YouTubers, and TikTok Stars with Andrea Popa, Director of the Office of International Student Affairs at Emerson College. Attorney Desai chaired a session on Employment-Based Visa Policy and Practice in Higher Ed with Patrick Trouve, HR Immigration and Compliance Specialist at University of Massachusetts-Lowell.
Attorney Erin Murphy Receives First International Entrepreneur Parole (IEP) Approval at IDC
Attorney Erin Murphy recently received an approval of our first International Entrepreneur Parole (IEP) application for a client who founded a U.S.-based start-up company. From the date of submission to USCIS, the process took approximately 13 months. The International Entrepreneur Parole program was first introduced by the Obama administration and was put on hold through the Trump administration. Only one IEP application received an approval during the Obama administration.
On May 10, 2021, the Biden administration revived the rule and began accepting applications again. Entrepreneurs applying for parole under this rule must demonstrate that they:
Possess a substantial ownership interest in a start-up entity created within the past five years in the United States that has substantial potential for rapid growth and job creation.
Have a central and active role in the start-up entity such that they are well-positioned to substantially assist with the growth and success of the business.
Will provide a significant public benefit to the United States based on their role as an entrepreneur of the start-up entity by showing that:
The start-up entity has received a significant investment of capital from certain qualified U.S. investors with established records of successful investments;
Qualified investors are defined as U.S. citizen or lawful permanent resident (or organizations owned or controlled primarily by U.S. citizens or lawful permanent residents) that have made investments to start-up entities over the past 5 years totaling at least $633,952; and
Following the investment, at least 2 of these start up entities each created at least 5 qualified jobs or generated at least $528,293 in revenue with average annualized revenue growth of at least 20 percent.
The start-up entity has received significant awards or grants for economic development, research and development, or job creation (or other types of grants or awards typically given to start-up entities) from federal, state, or local government entities that regularly provide such awards or grants to start-up entities; or
They partially meet either or both of the previous two requirements and provide additional reliable and compelling evidence of the start-up entity’s substantial potential for rapid growth and job creation.
Otherwise merit a favorable exercise of discretion.
A grant of International Entrepreneur Parole allows the parolee to travel to the U.S. to work for their start-up company for an initial period of up to 30 months. The parole can be extended for an additional 30 months if the applicant can show continued growth and success of the start-up. More information can be found on USCIS’s web page for the program, and the Federal Register’s notice can be found here.
Public Charge Final Rule Published and will be Effective December 23, 2022
The U.S. Department of Homeland Security (DHS) amended its regulations to prescribe how it determines whether noncitizens are inadmissible to the U.S. because they are likely at any time to become a public charge.
Noncitizens who are applicants for visas, admission, and adjustment of status are required to establish that they are not likely to become a public charge unless Congress has expressly exempted them from this ground of inadmissibility or has otherwise permitted them to seek a waiver of inadmissibility.
Under this rule, DHS will determine that a noncitizen is likely at any time to become a public charge if the noncitizen is likely at any time to become primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance or long-term institutionalization at government expense.
On August 14, 2019, DHS issued a different rule on this topic, Inadmissibility on Public Charge Grounds Final Rule (2019 Final Rule), which is no longer in effect. This rule implements a different policy than the 2019 Final Rule. This final rule is effective December 23, 2022. This final rule will apply to applications postmarked on or after the effective date.
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