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Posts Tagged ‘Immigration News’

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

Monday, January 23rd, 2017

http://www.dreamstime.com/stock-photo-questions-answers-image5665970

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

Monday, 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

Thursday, 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.

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

Wednesday, 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

Tuesday, 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.

 

 

 

 

 

 

USCIS Publishes Final Rule to Modernize Certain Employment-Based Immigrant and Nonimmigrant Visa Programs

Monday, November 21st, 2016

immigration_2istock_000015278628_large-2The long-awaited final rule to modernize and improve several aspects of employment-based nonimmigrant and immigrant visa programs, in order to retain EB-1, EB-2 and EB-3 immigrant workers and high-skilled nonimmigrant workers, is moving forward and has made it through the OMB review process.  It was published in the Federal Register on November 18, 2016 and will be effective in 60 days.   USCIS has also amended regulations to better enable U.S. employers to hire and retain certain foreign workers who are beneficiaries of approved employment-based immigrant visa petitions and are waiting to become lawful permanent residents. This rule goes into effect on Jan. 17, 2017, just before President Obama leaves office.

Among other things, DHS is amending its regulations to:

  • Clarifies and improves longstanding DHS policies and practices implementing sections of the American Competitiveness in the Twenty-First Century Act and the American Competitiveness and Workforce Improvement Act related to certain foreign workers, which will enhance USCIS’ consistency in adjudication.
  • Better enables U.S. employers to employ and retain high-skilled workers who are beneficiaries of approved employment-based immigrant visa petitions (Form I-140 petitions) while also providing stability and job flexibility to these workers. The rule increases the ability of these workers to further their careers by accepting promotions, changing positions with current employers, changing employers and pursuing other employment opportunities.   This means that you can use the previous employer’s I-140 petition to extend your H-1B with a new employer even if it is withdrawn (as long as it was withdrawn more than 180 days after approval), or in the event of the termination of the employer’s business.  So, there is no I-140 portability; you will still need a new labor certification and I-140 petition to file your adjustment of status application.
  • The final rule provides two grace periods of up to 10 days, consistent with those already available to individuals in 13 some nonimmigrant classifications, to individuals in the E-1, E-2, E-3, L-1, and TN classifications. The rule allows an initial grace period of up to 10 days prior to the start of an authorized validity period, allowing nonimmigrants in the above classifications a reasonable amount of time to enter the US and prepare to begin employment. The rule also allows a second grace period of up to 10 days after the end of an authorized validity period, which provides a reasonable amount of time to depart the US or take other actions to extend, change, or maintain lawful status.
  • Establishes a grace period of up to 60 consecutive days during each authorized validity period for certain high-skilled nonimmigrant workers when their employment ends before the end of their authorized validity period provided their authorized stay is valid for at least 60 days after such cessation. If not, the grace period will end on the date the authorized date is set to expire. This will obviously enable own to more readily pursue new employment and an extension of their nonimmigrant status.
  • The Final rule allows allows certain high-skilled individuals in the United States  to apply for work authorization, given:
  1. They are the principal beneficiaries of an approved Form I-140 petition,
  2. An immigrant visa is not authorized for issuance for their priority date, and
  3. They can demonstrate compelling circumstances exist that justify DHS issuing an employment authorization document in its discretion. Such employment authorization may only be renewed in limited circumstances and only in one year increments.
  • Automatically extends the employment authorization in the same category and validity of Employment Authorization Documents for up to 180 days from the date of the prior EAD’s expiry (EADs or Form I-766’s) or until djudication of the EAD nrenewal application, for certain individuals who apply on time to renew their EADs.  The Form I-9 rule is also updated to permit an I-797 receipt notice to be accepted as a permissible I-9 document, in conjunction with the expired EAD, to re-verify the foreign national’s work authorization. This additional 180-day period will not apply to those categories that first require the approval of an underlying application before the EAD renewal can be adjudicated.
  • Eliminates the regulatory provision that requires USCIS to adjudicate the Form I-765, Application for Employment Authorization, within 90 days of filing and that authorizes interim EADs in cases where such adjudications are not conducted within the 90-day timeframe.
  • Clarifies various policies and procedures related to the adjudication of H-1B petitions, including, among other things, providing H-1B status beyond the six year authorized period of admission, determining cap exemptions and counting workers under the H-1B cap program.

For more information, please refer here for the Final Rule.  If you have any questions, please contact our office.  We will continue to keep you posted on the implementation of these new policies.

 

 

Changes to Business-related Immigration Under Trump’s Administration

Saturday, November 19th, 2016

By:  Allison McDonnell, ICG Content Coordinator

The US President's home at 1600 Pennsylvania Av, Washington DC.

President-elect, Donald Trump, will take office as the United State’s 45th president on January 20, 2017.  Trump ran his presidential campaign from a clear anti-immigration platform.  His ten-point plan, which includes limiting legal immigration, could have substantial effects on business immigration in the U.S.  However, it is still too soon to tell exactly which stances Trump’s administration will, or will be able to, follow through on.  Changes on the business-related immigration side are likely to come in incremental stages and later on, as his first priority will be undocumented immigrants with criminal records.

H-1B Visa Program

Throughout his campaign, Trump spoke out against the H-1B visa program, arguing that it is an abused process used to replace American workers with cheap labor.  He claimed several times that his intentions are to end the program completely.  However, experts say that the program will more than likely not be eradicated, but simply reformed.  For one, Trump, himself, understands the value of high tech global talent.  In addition, the fact that he desires a strong relationship with India, whose tech workers are among the largest group of beneficiaries of the H-1B program, will likely keep him from abolishing the program all together.  With popularity of reform from several congressmen and Trump’s base, it is likely that smaller caps and more stringent qualifications will be imposed.

E-1 and E-2 Treaty Trader and Investor Visas

Trump has been less vocal about planned changes to employment-based visas outside of the H-1B visa.  While it is likely that Trump will make major reforms to the H-1B program, we could also see some changes to the E-1 and E-2 visa classifications, given that they are increasingly the second-best option behind the H-1B visa for many immigrants.  For one, a tougher application of legal standards in immigration court and in consular processing may be applied to all visa categories.  In addition, caps could be implemented, which may be country-specific.  However, since a key part of the E-2 visa program is job creation, it could quite possibly go the other way, with the category growing in number.

Employment Eligibility Verification:  I-9 and E-Verify Programs

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.

In Closing

Although it is still too soon to tell precisely which of Trump’s campaign promises he will have the time, resources, or support to follow through on, it is a good idea to be informed and alert to the timing and the next steps required concerning your immigration matters and remain proactive, both as an employer and employee.  If you haven’t moved forward on a viable case, we would recommend that you meet with immigration counsel to prepare for the upcoming months under the new administration.  You can contact our office here.

 

Breaking News! Obama’s DAPA Appeal to Take Center Stage in Supreme Court

Tuesday, January 19th, 2016

Supreme Court_dreamstime_xs_7835804The Obama administration took the battle over immigration to the Supreme Court on Friday, formally asking the justices to review a federal court decision that left in place a nationwide injunction against President Barack Obama’s sweeping initiative to grant quasi-legal status and work permits to millions of immigrants here illegally.

DAPA would grant deferred action status to those who have lived in the United States for at least 5 years and have not committed felonies or repeated misdemeanors, and have children who are US citizens or lawful permanent residents. Deferred action is not full legal status, but in this case would come with a three-year, renewable work permit and exemption from deportation. The Court will hear arguments in April and rule by June.

Read more here    From Politico here

 

Employment-Based Immigration Proposals Open for Public Comment

Wednesday, January 6th, 2016

USA_shutterstock_modified_worldandflags(2)USCIS is seeking public comments on a proposed rule that would modernize and improve certain important aspects of employment-based nonimmigrant and immigrant visa programs. USCIS is also proposing regulatory amendments to better enable U.S. employers to hire and retain certain foreign workers who are beneficiaries of approved employment-based immigrant visa petitions and are waiting to become lawful permanent residents (LPRs).

Read the notice of proposed rulemaking published in the Federal Register on December 31, 2015: Retention of EB-1, EB-2 and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers. The public has until February 29, 2016 to comment.

Among other things, the DHS proposals to amend its regulations entail the following:

…  To clarify and improve longstanding agency policies and procedures implementing sections of the American Competitiveness in the Twenty-First Century Act (AC21) and the American Competitiveness and Workforce Improvement Act (ACWIA) related to certain foreign workers, which will enhance USCIS’ consistency in adjudication.
…  To better enable U.S. employers to employ and retain certain foreign workers who are beneficiaries of approved employment based immigrant visa petitions (I-140 petitions) while also providing stability and job flexibility to these workers. The proposed rule will increase the ability of such workers to further their careers by accepting promotions, making position changes with current employers, changing employers, and pursuing other employment opportunities.
…  To improve job portability for certain beneficiaries of approved I-140 petitions by limiting the grounds for automatic revocation of petition approval
…  To clarify when individuals may keep their priority date to use when applying for adjustment of status to lawful permanent residence, including when USCIS has revoked the approval of their approved I 140 petitions because the employer withdrew the petition or because the employer’s business shut down.
…  To allow certain high-skilled individuals in the United States in E-3, H-1B, H-1B1, L-1, or O-1 nonimmigrant status to apply for one year of unrestricted employment authorization if they:

1.         Are the beneficiaries of an approved I-140 petition,

2.         Remain unable to adjust status due to visa unavailability, and

3.         Can demonstrate that compelling circumstances exist which justify issuing an employment authorization document.

Such employment authorization may only be renewed in limited circumstances.

…  To clarify various policies and procedures related to the adjudication of H-1B petitions, including, among other things, extensions of status, determining cap exemptions and counting workers under the H-1B visa cap, H-1B portability, licensure requirements, clarification concerning which H-1B nonimmigrants are exempt from the statutory cap to ensure that those who are contributing to US research and the education of Americans may remain in the USA; and protections for whistleblowers.
…  To establish a one-time grace period during an authorized validity period of up to 60 days for certain high-skilled nonimmigrant workers whenever their employment ends so that they may more readily pursue new employment and an extension of their nonimmigrant status.

These proposed changes do not take effect with the publication of the notice of proposed rulemaking. Instead, they would take effect on the date indicated in the final rule when the final rule is published in the Federal Register.  Here is the proposed rule.  To submit comments, follow the instructions.  You may submit comments, identified by DHS Docket No. USCIS-2015-0008, by one of the following methods:

Federal eRulemaking Portal: You may submit comments to USCIS by visiting http://www.regulations.gov. Follow the instructions for submitting comments.  By email: You may submit comments directly to USCIS by emailing them to: USCISFRComment@dhs.gov. Please include DHS Docket No. USCIS-2015-0008 in the subject line of the message.

The Department of Labor:  Modernizing the Permanent Labor Certification Program (PERM)

DOL is engaging in rule making that will consider options to modernize the PERM program to be more compatible to changes in the US workforce, to further align the program design with the objectives of the US immigration system and the needs of workers and employers, and to enhance the integrity of the labor certification process.  This is not expected to be proposed until April 2016.

 

 

Details on the Proposed STEM OPT Rule

Sunday, October 25th, 2015

Passport immigration stampReports are that DHS has begun circulation of one of Obama’s employment-based executive actions which is also in response to a judge’s order that struck down the existing STEM OPT program for a lack of a notice & commenting period with the issuance of the 2008 interim rule.  The public will have 30 days (until November 18) to comment on the proposed rule.  You can view the notice in the Federal Register here

The Rule will make several changes to the F-1 STEM OPT program.  Most importantly, the STEM OPT extensions would increase from 17 to 24 months.

The new rule adds both additional benefits and employer requirements for all individuals and companies utilizing OPT.  Here is an excellent summary of the proposed changes as posted on ILW.com.

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Immigration Compliance Group provides US inbound immigration services to individuals and employers throughout the USA and abroad. We specialize in business immigration and have a depth of experience in the IT, healthcare, arts, entertainment and sports industries, among others. Our services include complex business visas for investors, multinational managers, skilled professionals, outstanding individuals of high achievement (O-1, P visas, EB-1 and EB-2 Exceptional Ability cases) and PERM Labor Certification. Our doors are always open for new clients — we extend a 20% discount on the first case with our firm.  Contact us at info@immigationcompliancegroup.com or call 562 612.3996.  Follow up on Twitter (@immigration_biz) Google Plus and check out our groups on LinkedIn:  I-9E-Verify: Smart Solutions for Employers and Immigration InFocus News.