Vedder Price Business Immigration Alert - September 2017

by Vedder Price
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In this issue:

  1. September 18, 2017: Employers Must Use New I-9 Form.
  2. Administration Rescinds Deferred Action for Childhood Arrivals (“DACA”) Policy on September 5, 2017.
  3. Premium Processing Resumes for FY 2018 H-1B Cap Cases.
  4. USCIS Denies Pending Advance Parole Applications for H-1B and L Applicants Traveling Outside the United States.
  5. Change in Policy for Employment-Based Cases.
  6. The J-1 Visa Programs May Receive Significant Cuts.
  7. E-Verify Participation Poster Redesigned.
  8. Global Entry Expanded.
  9. The U.S. Department of Homeland Security Delays and Plans to Propose Rescinding International Entrepreneur Rule.
  10. Proposed Immigration Legislation.

1. September 18, 2017: Employers Must Use New I-9 Form.

As you may recall, the U.S. Citizenship and Immigration Services (“USCIS”) recently released yet another revised version (edition 07/17/17) of Form I-9, Employment Eligibility Authorization, with minor changes to the Form’s instructions and List of Acceptable Documents. Beginning September 18, 2017, only the 07/17/17 edition will be valid. It can be found at https://www.uscis.gov/i-9.

In addition to some technical changes, the latest edition modifies the Form’s instructions with regard to completing Section 1. Previously, Section 1 had to be completed by “the end of the first day of employment.” USCIS now clarifies that the employee should “complete Section 1 at the time of hire (by the first day of their employment for pay).”

Although USCIS has not provided guidance as to the effect of this change, employers may want to revisit their onboarding practices to ensure that Section 1 of Form I-9 is completed after an offer is made and no later than when the employee starts work for pay, rather than by the end of the first day of employment.

The new edition also makes the following changes to List C of the List of Acceptable Documents:

  • Adds Consular Report of Birth Abroad (Form FS-240);
  • Combines certifications of report of birth issued by the Department of State (Form FS-545, Form DS-1350 and Form FS-240) into selection C.2 in List C; and
  • Renumbers all List C documents, except the Social Security Card.

The new document also changes the name of the Office of Special Counsel for Immigration Related Unfair Employment Practices to its new name, “Immigrant and Employee Rights Section.”

2. Administration Rescinds Deferred Action for Childhood Arrivals (“DACA”) Policy on September 5, 2017.

Implemented in 2012 during the Obama administration, DACA provided temporary relief from deportation and temporary work authorization to those children brought to the United States before they were 16 years old and who resided in the United States for at least five years before June 15, 2012. Applicants also needed to be under the age of 31, be enrolled in school or have already graduated, and have no criminal record.

Receiving “deferred action” did not provide lawful status, but it was a form of prosecutorial discretion to defer removal (deportation) action against an individual for a certain period of time. This, therefore, allowed applicants to remain in the country without fear of deportation and with the ability to enroll in school, seek employment and serve in the military. Status was granted in two-year increments. Currently, there are approximately 800,000 DACA recipients in the country. Here’s what we know at this point:

  • Extensions for expiring Employment Authorization Documents (“EAD cards”) must be filed by October 5, 2017;
  • Only those DACA recipients whose current EAD cards expire before March 5, 2018 may file to extend their status/EAD cards. Current beneficiaries of the program may continue to benefit from the deferment for six months, until March 5, 2018. Employment authorization will remain valid until the EAD card expires; and
  • Effective as of September 5, 2017, no new applications for relief under the program will be accepted.

Based upon comments from the Trump administration, the expectation is that Congress now has a window of opportunity to create legislation covering DACA recipients. This announcement serves as a reminder for employers to review their Forms I-9 and ensure that they are properly tracking all employees’ expiring employment authorization documents. Employers may want to post a general notice that DACA recipients should file their extension applications before October 5, 2017.

3. Premium Processing Resumes for FY 2018 H-1B Cap Cases.

H-1B petitions are filed by employers to sponsor individuals for a temporary position in the United States, provided that such employment is for professional and/or specialty occupations such as information technology, engineering, accounting, etc. and the individual has the required degree for the position. When a petitioner requests USCIS’s Premium Processing Service (“PPS”), USCIS guarantees a 15-calendar day processing time. This service was suspended on April 3, 2017 for all new H-1B cases, and, therefore, was not available for H-1B cases subject to the annual cap of 85,000 new H-1B Petitions.

On September 18, 2017, USCIS announced that it is resuming PPS for all H-1B Petitions subject to the Fiscal Year (FY) 2018 H-1B cap of 85,000 visas. The H-1B “cap” Petitions are to sponsor individuals for employment beginning October 1, 2017.

Previously, USCIS had resumed PPS for H-1B Petitions filed on behalf of certain physicians as well as interested government agency waivers and for certain H-1B petitions that are not subject to the H-1B cap.

PPS for all other H-1B petitions, such as extensions of stay, remains temporarily suspended. USCIS plans to resume PPS for all other remaining H-1B Petitions not subject to the FY 2018 cap as permitted by USCIS workloads. We will provide additional notifications when USCIS begins to resume PPS for other H-1B Petitions.

4. USCIS Denies Pending Advance Parole Applications for H-1B and L Applicants Traveling Outside the United States.

“Advance parole” allows people in the process of obtaining U.S. permanent resident (“LPR” or “green card”) status to travel abroad. USCIS has recently begun denying pending advance parole applications as “abandoned” when applicants travel outside the United States in H-1B, H-4or L status. The reason USCIS gives is that the instructions to the Form I-131, Application for Travel Document, state that if the applicant leaves the United States before the advance parole document is issued, his or her application for an advance parole document will be considered abandoned. For the past 15 years, USCIS has approved these applications for individuals traveling abroad with a valid advance parole document or a valid H-1B, H-4 or L visa while their adjustment of status applications are pending. If an applicant receives a denial, a new application may be submitted with USCIS. However, processing of a new application takes 60 to 90 days, unless the applicant qualifies for emergency Advance Parole. We advise H-1B, H-4 and L clients to avoid traveling internationally while their advance parole applications are pending.

5. Change in Policy for Employment-Based Cases.

On August 28, USCIS announced that it will begin phasing in in-person interviews for employment-based applicants for LPR status as early as October 1, 2017. Employment-based applicants may elect to complete the last step of the LPR process in the United States through the adjustment of status process, which has not required applicants to appear for an interview for a number of years. Applicants may also apply through consular processing abroad, which has consistently had an interview component. The re-introduction of the interview during the adjustment of status process may impact up to 125,000 employment-based adjustment of status applications each year and could further delay an already slow process.

Employment-based applicants are those who are sponsored for LPR status through an employer’s immigrant visa petition, including persons sponsored via the PERM process, Multinational Managers/Executives, and Persons with Extraordinary Ability. For the last several years, USCIS has customarily waived the interview requirement for employment-based applicants absent special circumstances. Other applicants for adjustment of status, including family-based applicants, were already subject to the interview requirement.

Employers and their immigrating employees will likely experience increased processing time for adjustment of status applications. Employers may now be required to pursue multiple extensions of underlying nonimmigrant status (e.g., H-1B), as well as several extensions of temporary employment and travel authorization (EAD/AP), to accommodate their immigrating employee’s need to maintain work authorization during a lengthened wait for LPR status. Employers’ budgets for this step of this process may also need to be adjusted to accommodate the additional steps needed to keep the immigrating employee and family in status during the wait. Despite a strong preference for adjustment of status in past years, consular processing at a U.S. Consulate abroad may become a quicker and more preferred route to reach permanent resident status for employment-based cases.

6. The J-1 Visa Programs May Receive Significant Cuts.

The J-1 Exchange Visitor Programs (“J-1”) are intended to allow foreign nationals to come to the United States temporarily to benefit from experiences with American people and culture, which they can then share with their colleagues upon returning to their home countries. The Trump administration is reportedly reviewing this popular cultural exchange program run by the U.S. Department of State, with the intention of making major reductions in the J-1 visa program. Following President Trump’s “Buy American and Hire American” Executive Order, issued April 18, 2017, the administration has been reviewing U.S. immigration laws and policy with a view towards protecting American workers from foreign competition. The administration is reportedly leading an interagency review of the J-1 visa program focusing on five program categories, including interns, trainees, the summer work travel program, the au pair program, and programs designed for camp counselors. The other categories that do not involve “work” are reportedly not affected.

The programs under review provide internships for new graduates from abroad and more experienced trainees planning to gain practical experience by working temporarily for a U.S. organization. J-1 programs also provide childcare services for American host families and seasonal labor for the hospitality industry and vacation destinations such as ski resorts, campgrounds, amusement parks, and resorts.

While no action on the part of employers is yet necessary, employers using the J-1 Exchange Program may nevertheless want to consider other visa options for J-1 employees and other immigration programs and contingency plans in case the J-1 program becomes unavailable.

7. E-Verify Participation Poster Redesigned.

On September 5, 2017, USCIS and its E-Verify division released a redesigned participation poster. The new poster informs current and prospective employees of their legal rights, responsibilities and protections in the employment eligibility verification process.

The poster is now available in English and Spanish as one poster. As stated in the E-Verify User Manual, employers must replace their participation posters when updates are provided by the U.S. Department of Homeland Security (“DHS”).

Employers may also display any of 16 foreign-language versions of the poster. The new posters can be downloaded when participants log into E-Verify. Employers are still required to display the Immigrant and Employee Rights (IER) Posters in English and Spanish.

8. Global Entry Expanded.

In addition to citizens or permanent residents of the United States, citizens of Colombia, Singapore and Switzerland may now apply for Global Entry, the U.S. Customs and Border Protection (“CBP”) “trusted traveler” program that provides expedited entry through U.S. immigration inspection via automatic kiosks at select airports. All Global Entry applicants submit to a comprehensive background check as well as an in-person interview before being accepted into the program. Use of Global Entry has great benefits for employers and their employees, as it allows users to enter the United States at most airports by skipping the long lines for non-U.S. visitors.

Colombia, Singapore and Switzerland join India, the United Kingdom, Germany, Panama, South Korea, and Mexico as countries that have arrangements with CBP regarding international trusted traveler programs, allowing their citizens to apply for Global Entry. Canadian citizens who are members of the Canadian trusted traveler program, NEXUS, are also eligible for Global Entry.

Global Entry members who are neither U.S. citizens nor U.S. permanent residents are reminded to provide updated visa information to CBP. If the visa information in the Global Entry account is incorrect, the Global Entry kiosk may admit the traveler in the wrong visa classification and/or incorrectly calculate the traveler’s I-94 expiration. To add or update visa information to their Global Entry account, travelers must visit a Global Entry enrollment center in person; visa updates cannot be completed online.

9. The U.S. Department of Homeland Security Delays and Plans to Propose Rescinding International Entrepreneur Rule.

The DHS has delayed the effective date of the International Entrepreneur Rule that was scheduled to take effect July 17, 2017. The Federal Register notice, published on July 11, 2017, states that this delay “will provide DHS with an opportunity to obtain comments from the public regarding a proposal to rescind the rule pursuant to Executive Order (E.O.) 13767, ‘Border Security and Immigration Enforcement Improvements.’” The new effective date for the final rule, with one exception, is March 14, 2018.

The final rule amended DHS regulations to include criteria that would guide the implementation of the Secretary of Homeland Security’s discretionary case-by-case parole authority as applied to international entrepreneurs. Specifically, the notice states, it applied to international entrepreneurs who can demonstrate that their parole, or entry, into the United States would provide a significant public benefit to the United States. In accordance with the final rule’s criteria, such potential would be indicated by, among other things, 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. In addition to defining criteria for the favorable exercise of the Secretary’s discretionary parole authority, the final rule established a period of initial parole stay of up to 30 months (which may be extended by up to an additional 30 months) to facilitate the applicant’s ability to oversee and grow his or her start-up entity in the United States.

10. Proposed Immigration Legislation.  

Almost 200 pieces of immigration-related legislation have been introduced into Congress since January 2017. They range from legal relief for DACA recipients to legislation that would effectively end any type of entry into the country for employment purposes, including legal immigration. On August 2, 2017, Senators Tom Cotton (R-AR) and David Perdue (R-GA), with the endorsement of President Trump, proposed new legislation that would change the eligibility requirements for legal employment-based permanent resident status. The new bill, known as the Reforming American Immigration for a Strong Economy Act (“RAISE Act”), would replace the current employment-based system for permanent resident status with a points-based system similar to the ones used by Australia and Canada.

Under the new bill, the DHS would not increase the number of green cards available based on employment sponsorship, keeping the cap at 140,000 per fiscal year. The new system would award points to applicants based on various factors such as age, education, English-language ability, high-paying job offers, and entrepreneurial initiative.

The bill also proposes to eliminate the Diversity Visa program and redefine “immediate relative” for the purpose of immigrant (“permanent”) sponsorship for LPR status. While immigrant visas for spouses and minor children of U.S. citizens would continue to be available, immigrant visas for parents would be eliminated. The family preference categories would also be amended to include only spouses and children of U.S. permanent residents. This change would eliminate the sponsorship of siblings and adult children. The bill also proposes to reduce the age eligibility for minor children from 21 to 18.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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