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New I-9 Employment Eligibility Verification Form, 07/17/2017

July 17th, 2017


USCIS released a revised version of Form I-9, Employment Eligibility Verification, on July 17. Instructions for how to download Form I-9 are available on the Form I-9 page. Employers can use this revised version or continue using Form I-9 with a revision date of 11/14/16 N through Sept. 17, 2017. On Sept. 18, employers must use the revised form with a revision date of 07/17/17 N. Employers must continue following existing storage and retention rules for any previously completed Form I-9s.

Revisions to the Form I-9 instructions:

  • USCIS changed the name of the Office of Special Counsel for Immigration-Related Unfair Employment Practices to its new name, Immigrant and Employee Rights Section.
  • They removed “the end of” from the phrase “the first day of employment.”

Revisions related to the List of Acceptable Documents on Form I-9:

  • Added the Consular Report of Birth Abroad (Form FS-240) to List C. Employers completing Form I-9 on a computer will be able to select Form FS-240 from the drop-down menus available in List C of Sections 2 and 3. E-Verify users will also be able to select Form FS-240 when creating a case for an employee who has presented this document for Form I-9.
  • Combined all the 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.
  • Renumbered all List C documents except the Social Security card. For example, the employment authorization document issued by the Department of Homeland Security on List C changed from List C #8 to List C #7.

USCIS included these changes in the revised Handbook for Employers: Guidance for Completing Form I-9 (M-274), which is also easier for users to navigate.

Should you have any questions or would like to discuss how your company can establish a culture of compliance, please contact us at

What to Know About the H-1B Cap Gap

March 22nd, 2017

Visa_iStock_000016934361_ExtraSmall (2)By:  Allison McDowell, Content Coordinator

Current federal regulations allow for the automatic extension, if certain circumstances are met, of Optional Practical Training (OPT) time for F-1 students who have a pending or approved H-1B petition.  These “Cap Gap” provisions require that the beneficiary’s petition is subsequently selected and approved in the H-1B lottery.  If approved, Cap Gap helps cover the gap that may otherwise disrupt an employee’s employment authorization, which would occur between when the OPT EAD expires through September 30th, in other words, after the OPT ends and before an approved H-1B petition takes effect.  Any F-1 student with a timely filed H-1B petition and request for change of status will be allowed to extend the duration of F-1 status and any current employment authorization until the first day of the new fiscal year, October 1 st.  If the petition is not selected for processing, the student will have the standard 60-day grace period from the date of the rejection notice or their program end date, whichever is later, to prepare for departing the USA.

Major Criteria

To be eligible for Cap Gap extension, the employer must file the H-1B Change of Status petition with USCIS and have it received prior to the post-completion OPT expiration date.  Or, if received by USCIS after the post-completion OPT expires but during the following 60 day grace period, the beneficiary’s F-1 status and permission to remain in the U.S. are extended, but there is no work authorization.

Effects of Premium Processing Suspension

 USCIS has suspended premium processing for all H-1B petitions for six months, starting April 3, 2017.  This also applies to H-1B quota cases, or “cap cases.”  This suspension could have major effects on those who have a status expiration date earlier than October 1, 2017.  For F-1 OPT beneficiaries, whose employment authorization is only extended until September 30, 2017, there would be a period of lack of employment authorization until the H-1B case is approved.  Similarly, L-1 visa, or other employment visa holders, may have their work authorization set to expire shortly after October 1, 2017 and the H-1B cap case may remain pending past October 1st, therefore leaving a gap in work authorization until USCIS completes processing of the case.

STEM OPT Extension

 Stem Extension could be available to bridge the gap in employment authorization for those that qualify.  Any F-1 nonimmigrant student with a degree in science, technology, engineering, or mathematics (STEM) can apply for a 24-month extension of their post-completion OPT employment authorization.  Students who are eligible for Cap Gap extension of their post-completion OPT can apply for a STEM OPT extension during the Cap Gap.  In order to be eligible, the employer must be enrolled in and in good standing with E-Verify, and the initial grant of post-completion OPT employment authorization must also have been related to the STEM degree.  Note that an application cannot be submitted once the H-1B petition is rejected, denied, revoked, or withdrawn and the 60-day departure prep period has begun.

Additions have recently been made to the list of STEM degrees and can be found at STEM Designated Degree Program List.  Additional information for F-1 students regarding STEM OPT extensions can be found at USCIS’s Optional Practical Training Extension for STEM Students (STEM OPT) page or the STEM OPT Hub.

Travel Outside U.S.

While USCIS is processing the H-1B visa petition, beneficiaries should not travel outside the U.S.  Doing so would void the Change of Status H-1B petition, subsequently turning it into an outside the U.S., Consular Processing H-1B petition.  Similarly, if the practitioner selects consular processing, the H-1B petition will not process under the Cap Gap regulations, which would be disastrous to the case.  Leaving the U.S. while employment authorization is based on Cap Gap voids the Cap Gap authorization.  Therefore, the employee will only be able to re-enter the U.S. up to 10 days prior to the effective date of a subsequently approved H-1B petition.

Practitioners need to be aware of the effects of foreign employees traveling abroad, as many attorneys who are not skilled in business immigration are not aware of the major consequences of visa beneficiaries doing so.


The H-1B Cap Gap authorization also applies to dependents of the visa beneficiary that are in valid F-2 status, including spouses and children.  Keep in mind, however, that the travel restrictions also likely apply to dependent visa holders, whose foreign travel may void the Change of Status petition.




Filing H-1Bs Under the US Master’s Cap

March 7th, 2017

By:  Allison McDonnell | Content Coordinator

Guide to USA_shutterstock_47911780 Converted (2)Non-Profit Institution

Recently, there has been a misunderstanding of the nuances concerning the US master’s cap eligibility.  In order for a graduate to qualify for the additional slots allotted for the US master’s cap, the institution must be either a public or a private non-profit university.  Therefore, if the institution issuing the advanced degree is a for-profit school, one usually in business to make money or turn a profit and pay taxes on those profits, that degree will not meet the master’s cap statutory requirement.

If a school is recognized as proprietary, it is a for-profit institution and, therefore, not eligible under the H-1B master’s cap criteria.  The IRS is the agency that permits qualifying nonprofit organizations to receive 501(c)(3) tax-exempt status and is a reliable source for information.

Accredited Institution

 Those applying for the US master’s cap must also ensure that the advanced degree they received was from a US institution that has national accreditation by a recognized agency or association.  Students should not only verify the accreditation directly with his/her school, but also independently verify these qualifications.  It is not sufficient that the school is SEVP certified.  Generally, state-operated colleges and universities meet the accreditation criteria.  Private institutions’ authorization to operate can be checked with the educational authorities of the state where the institution operates.  Most importantly, the Department of Education’s Database of Accredited Post-secondary Institutions and Programs should be used to verify whether the school is accredited by a nationally recognized accrediting agency.

Currently, USCIS will issue a denial for such cases filed under the master’s cap without a qualifying degree according to the above criteria, rather than consider them under the regular H-1B cap.  Therefore, if the issues were not discovered until after the regular cap is met, the graduate would need to wait an entire year to re-file under the regular H-1B cap.

A word to the wise — do your due diligence carefully before filing under the US Master’s Cap.  Please contact us should you have questions or wish to retain our services to handle your H-1B case filing.

New Administration Indicates Trump is Placing DACA on Backburner for Now

January 26th, 2017

Jobs_iStock_000016785771XSmall (2)By:  Allison McDonnell, Content Coordinator

Despite repeated campaign promises to take immediate action upon taking office, the new administration has now indicated that Present Donald Trump will not be immediately dismantling the Deferred Action for Childhood Arrivals (DACA) program instituted by Barack Obama in 2012.

The administration has been tight-lipped about their intentions with DACA since Trump took office a short time ago.  When asked about when Trump will take action on DACA at a recent press briefing, White House Press Secretary Sean Spicer sidestepped the question and placed little emphasis on DACA as an action item.  Spicer went on to state that the President and administration’s main focus and priority is on immigrants with criminal records and will “prioritize the areas of dealing with the immigration system — both building the wall and making sure that we address people who are in this country illegally.”

Similarly, White House Chief of Staff Reince Priebus failed to clearly expound on the President’s intentions for DACA recipients, known as DREAMers.  Although during the presidential campaign Trump vehemently claimed that he would immediately overturn Obama’s executive action on DACA, Priebus indicated that DACA might not be addressed with a quick fix.  While Priebus failed to make any exacting commitments on the topic, he strongly indicated that Trump will not be signing any executive actions on DACA in the week following his inauguration.

Instead, Trump seems to have pledged to work with Congress to assist DREAMers.  Chief of Staff Priebus has suggested that the administration will work with the House and Senate leaders to build a long-term solution.  This seems to match a statement Trump made late last year during a Time Magazine interview that, while he does intend to overturn Obama’s executive action, he will also be looking for a compromise that will not disadvantage young immigrants.

On a similar positive note, a resolution for immigration reform was approved last week by The United States Conference of Mayors.  This resolution calls for the continuation of programs protecting DREAMers and the need to adopt an approach that welcome immigrants, stating “…we stand united as mayors through the United States Conference of Mayors in calling on Congress to fix our broken immigration system and immediately begin working toward the enactment of comprehensive immigration reform legislation.”

The U.S. Department of Homeland Security (DHS) has articulated enforcement priorities that mirror what Spicer and Priebus have stated – that national security threats and criminals will be priority number one for the time being. And, U.S. Citizenship and Immigration Services (USCIS) continues to process DACA applications without change.  For now, over 741,500 DREAMers who benefit from the DACA program will have to continue to wait to see what their future may hold.






I-9/E-Verify: Q&A – AILA Verification Committee Mtg w/USCIS Verification & ICE Homeland Security Investigation

January 23rd, 2017

Clarification between Hiring site and worksite (page 5 at link)
E-Verify defines a “hiring site” as “the location where employees are hired and where they complete Form I-9.”

E-Verify further states that a “participating hiring site means that an employer will create an E-Verify case for every newly hired employee who is hired and
completes a Form I-9 at that site.”

Lastly, when an employee is hired remotely and visits a third party employer agent to complete Form I-9, for E-Verify purposes, the “hiring site” is the location of the third party employer agent where the Form I-9 was completed, not the home of the employee.

For all Q&A, refer here


Penalties for I-9 Violations: What you need to know

January 23rd, 2017

One group of customers standing on a red target bullseye, with magnifying glass hovering above it

The DOJ announced in August 2016 that it was making significant increases to the schedule of fines imposed for various violations including those associated with compliance with the Immigration Reform and Control Act of 1986 (“IRCA”) imposed sanctions on employers; namely:

Form I-9 Paperwork Violations:
Previous fine per Form I-9 violation: $110 to $1,100
Fine effective August 1, 2016 per Form I-9 Violation: $216 to $2,126

Unlawful Employment of Unauthorized Workers:
First Offense
Previous fine, per worker: $375 to $3,200
Fine effective August 1,2016 per worker: $539 to $4,313
Second Offense
Previous fine per worker: $3,200 to $6,500
Fine effective August 1, 2016, per worker: $4,313 to $10,781
Subsequent Offenses
Previous fine, per worker: $4,300 to $16,000
Fine effective August 1, 2016, per worker: $6,469 to $21,563

Unfair Immigration-Related Practices
First Order
Previous fine, per worker: $375 to $3,200
Fine effective August 1, 2016, per worker: $445 to $3,563 (however repeat offenders could face new maximum penalty of $21,563 per worker.)

These fines also increase per subsequent order and frequent offenders may face a maximum fine of $17,816 per worker.

As reported in one of our previous blog posts concerning employment verification under a Trump Administration:

Considering employment draws immigrants to the United States, it is likely that we will see stricter enforcement of the Form I-9 verification process under Trump’s presidency.  Starting next year, there will likely be more ICE officers and immigration judges hired to expedite cases.  This increase in staff may lead to an increase in the number of worksite inspections for I-9 compliance.  It is also possible that there will be an increase in penalties and fines for any violations uncovered.  Therefore, it is important for employer’s to ensure that their paperwork, policies, and practices are in order in case of an audit.  Given that Trump may overturn President Obama’s Deferred Action for Childhood Arrival (DACA), employers also need to be aware of which of their current foreign-born employees may become immediately undocumented and take proper action.

Trump has consistently applauded the E-Verify process for its systematic ability to filter out unauthorized employment.  In his position paper on immigration, he would mandate that the E-Verify process be used across the U.S.  Although, Trump will likely meet the same resistance as Congress has in the past, when it tried and failed several times to implement mandatory E-Verify.  That being true, Trump may still be able to strengthen or increase the program through unilateral executive orders.

Billions of Dollars Will Be Lost if Trump Ends DACA

January 19th, 2017

DACABy:  Allison McConnell:  Content Coordinator

President-elect Donald Trump is currently preparing to take office on January 20, 2017.  A prominent campaign promise of Trump’s has been to end President Barack Obama’s executive actions on immigration, which includes the 2012 Deferred Action for Childhood Arrivals (DACA) initiative.  The DACA program allows young immigrants who were brought to the United States as a child and who do not hold legal immigration status to apply for deferred deportation and remain in the U.S.  It also allows these individuals to receive work authorization permits.  The end of DACA will mean billions of dollars lost for the U.S.

The Immigrant Legal Resource Center, an organization that seeks to improve immigration law and policy, expand the capacity of legal service providers, and advance immigrant rights, released a report on December 13, 2016 showing that the cancellation of the DACA program will cause immediate job losses for hundreds of thousands of DACA recipients who are currently employed by businesses in the U.S., which will cause losses to the U.S. in the billions of dollars.  DACA benefits have been granted to 741,546 immigrants.  Of those, 645,145 DACA benefits recipients are currently employed by U.S. businesses.  These employees have substantially helped increase payroll taxes, along with Social Security and Medicare contributions.

Ending the DACA program will cause a reduction in Medicare and Social Security tax contributions totaling $24.6 billion by DACA employers and employees over the next ten years.  Specifically, Social Security contributions will reduce by $19.9 billion and Medicare contributions will decrease by $4.6 billion.  In addition, the ending of DACA will cause U.S. employers to sustain needless employee turnover costs in the amount of $3.4 billion.

In total, billions of dollars of revenues will be left on the table, creating a threat to the health of the American economy.  This is in addition to the loss of professional and educational backgrounds and experience that these young immigrants contribute to the community and the industries in which they are employed.  Numerous immigrants who receive DACA benefits have taken advantage of the opportunity, obtaining their driver’s license and first job, contributing additional local, state, and federal taxes, continuing their education, and assisting their family members and communities.

Make your voices heard and contact your local representatives and senators and tell them to leave DACA alone and reference the above information.

Advocates Concerned About Trump’s Nomination of Gen. Kelly to Head DHS

December 22nd, 2016       By:  Allison McDonnell, Content Coordinator

On December 12, 2016, President-elect Donald Trump officially nominated General John Kelly to serve as Secretary of the U.S. Department of Homeland Security (DHS).  General Kelly, after 45 years of service, had retired in January 2016 and is the third retired general picked to lead the Trump administration.  Kelly is also the third  general in charge of U.S. immigration. Trump listed Gen. Kelly’s decades of military service and strong commitment to ending terrorism inside U.S. borders as reasons for his ideal fit for the position.  However, advocates for immigrants’ rights are deeply concerned about the nomination selectee.

Implementing Trump’s Immigration Plans

Trump intends for Gen. Kelly to play a large role in assisting with his presidential campaign promises of ending illegal immigration and strict southern border control.  While Kelly is certainly very experienced in border and law enforcement, advocates are concerned that he will be far too strict and militarized for a democratic society.  As the head of DHS, Gen. Kelly will be in the forefront of implementing policies put in place by the administration, having the ability to marshal the department’s immense resources.  There is worry that, instead of being a mitigating force, he will pair with Trump in Trump’s overzealous and drastic immigration policies.

Advocates’ Concerns Regarding Gen. Kelly

Concern arises from Gen. Kelly’s past experiences and statements, particularly during the time he was overseeing Guantanamo Bay, where he defended force-feeding practices of detainees.  Kelly is known for his blunt and graphic words about believed terrorist and immigrant threats to the U.S.  These instances have indicated that he will only encourage Trump’s harsh promises over immigration.  It is predicted that Gen. Kelly will be at the forefront of deporting millions of immigrants and using military-style enforcement at the expense of Constitutional rights along the U.S.-Mexico border.  There is also concern over his potential implementation of anti-terrorism measures targeted at Muslims.

Potentially Less Drastic Changes

Taking a more optimistic view, there are hints that Gen. Kelly may lean toward moderation on some aspects of immigration.  For example, he has empathized with the thousands of young undocumented immigrant children who find themselves in tough legal positions through no fault of their own.  He has also agreed with statistics that illegal immigration via Mexico is tapering off and that drug-related crimes are a far greater threat to the U.S. than terrorism.  Also, it might be seen that Gen. Kelly will appoint a knowledgeable head of USCIS, one more knowledgeable and experienced in immigration, civilian institutions, and civilian law than he.

Future of Immigration Still Unknown

If Gen. Kelly wishes to end illegal immigration in the U.S., he would be wise to take a lesson from Commissioner Swing, the first general to head immigration.  Swing was highly successful in reducing unlawful immigration by liberalizing and incentivizing the legal migration process, thus utilizing the labor market.  This tactic has proved far more successful than brute military force.  As of now, it is yet to be seen what history and advice will be heeded and what positive or negative changes will come to the department once Kelly and Trump take office early next year.

TN Visa Changes Under NAFTA Upon President-Elect Trump Taking Office

December 21st, 2016

NAFTA USA Canada Mexico - Flag buttons labeled with NAFTA - North American Free Trade Agreement

By:  Allison McDonnell, Content Coordinator

President-elect Donald Trump has made it known that he desires to make changes to the North American Free Trade Agreement (NAFTA) that binds the United States, Canada, and Mexico.  NAFTA permits certain professionals who are citizens of these countries to work in the other signatory countries if they meet the qualifications under the agreement.  Specifically, the TN visa allows professional workers from Mexico and Canada to temporarily stay and work in the U.S. when using NAFTA provisions.  Changes to NAFTA provisions and TN visa policy could potentially mean that literally thousands of Canadian and Mexican workers who are currently employed in the U.S. could face expired statuses.

Advice for Employers

Employers should be cautioned and encouraged to proceed with the green-card process for their eligible employees who currently hold a TN visa.  Employers should first ensure that the employee has the requisite full three years on their TN visa following the PERM approval before filing the I-140 petition.  Once the application is submitted, the TN holder should not contemplate travel outside the U.S. until the green-card is granted upon filing the I-140.

Word of Caution

As of now, it is still difficult to predict whether the NAFTA provisions which provide for the TN visa or TN status will change under the new administration.  However, it is wise for any person or business who currently has TN visa status or plans to apply for such status in the near future to pay special attention to the news for any changes in TN policy.

Dual Intent Leniency

On a positive note, USCIS has taken a more lenient stance regarding dual intent.  USCIS has found that a “mere filing or approval” of an immigrant visa petition does not, in itself, constitute intent on the beneficiary’s part to abandon foreign residence.  There is no abandonment issue as long as the TN applicant’s intent at the time of applying is to temporarily be in the U.S. pursuant to NAFTA and not for permanent residence.  However, this would not be true for a TN principal who is utilizing a spouse’s immigrant petition.  Keep in mind that after submission of an I-140 Immigrant Petition, the TN holder may no longer be able to renew his/her TN visa because submission of the I-140 manifests immigration intent.

Should you wish to discuss your TN transition to permanent residency or any other business-related visa matter, please contact our office.


Extensions for F-1 STEM Students to Remain in the United States

December 13th, 2016

By:  Allison McDonnell, Content Coordinator

Guide to USA_shutterstock_47911780 Converted (2)The F-1 non-immigrant student visa allows talented foreign nationals to pursue academic studies or language training in the United States.  Recently, there have been tougher rules and more scrutiny of these international students’ academic and financial documentation.  Despite this, a new policy has developed to allow and encourage STEM graduates, those that specialize in science, technology, engineering and math, to study and remain in the U.S. to cultivate their knowledge and expertise in these important fields.  In recent news, it was announced that STEM graduates are now allowed an additional seven months to receive training and employment in STEM areas.

STEM OPT extension in detail

The initial length of post-graduate stay for a STEM student on an F-1 visa is 12 months.  On March 11, 2016, the Department of Homeland Security (DHS) published a final rule that allows F-1 STEM students who meet certain requirements an extension of their post-completion OPT (Optional Practical Training).  As of May 2016, STEM graduates are able to extend their stay from an additional 17 months to an additional 24 months to provide an opportunity to gain added exposure and experience in their field directly after graduation.

Foreign students in the United States are, therefore, now eligible to remain for three years directly after graduating if they seek training or employment that is related to their STEM academic studies from an accredited institution.  The employer must also meet specific requirements, including being enrolled in E-Verify.

Role of the DSO in the extension process

DHS intended for the STEM OPT extension to have only a minimum impact on DSOs (Designated School Officials) at the certified schools.  However, DSOs will still play an important role in determining if F-1 visa students are eligible to apply for an STEM OPT extension.

The DSO has the role of recommending OPT extensions and completing the I-20 form, keeping in mind that the extension is only available to those who earned their STEM degree within the ten previous years of the DSO recommendation date.  The new rule requires that the student and the employer jointly prepare a formal training plan that must be submitted to and approved by the DSO (ICE Form I-983 with instructions).

Employers must also prepare and submit to the DSO evaluations of the employee’s performance.  The employee must report to the DSO every six months during the STEM OPT period with a report submittal confirming the validity of the information in the SEVIS record.

The employee must also inform and report to the DSO under special instances, such as if the job position is left for any reason before the STEM OPT period has ended, any material changes are made to the training plan, or there is a change of employer.

The DSO is not required to conduct additional research into an employer before making a STEM OPT recommendation.  In addition, the DSO does not need to possess technical knowledge of the STEM fields of study.  The DSO’s primary duties are to recommend the student, maintain the student’s records, assist with SEVIS tracking, and provide the government with timely access to the information on record.

Action steps for employers

Given this new extension, employers would be wise to review their OPT employee records to determine which employees will be eligible for additional STEM extensions.  An added benefit of the OPT work authorization increase is that the F-1 visa STEM OPT holders will have more chances of being selected for an H-1B visa number in the H-1B annual lottery.  Employers could also use this time to verify if employees should change to an H-1B visa to avoid work authorization interruption beyond the OPT expiration.

Future of the STEM OPT extension

As the new president-elect, Donald Trump, prepares to take office in January 2017, many prospective international students may be wary of submitting college applications for Fall 2017 admission.  It is yet to be seen if the STEM OPT extension will receive any changes in the near future or how Trump will handle STEM students or those who are currently studying with DACA (Deferred Action for Childhood Arrivals) protection.  However, Trump has voiced an opinion on the importance of cultivating superb foreign talent.  Therefore, it is more likely than not that he will advocate for STEM students to remain in the U.S. past their initial F-1 OPT.

Please contact our office for with any questions that you might have on this or any other business-related immigration topic.