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Posts Tagged ‘USCIS’

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 —————-NEW I-9 FORM RELEASED 11/14/2016

Monday, November 14th, 2016

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On Nov. 14, 2016 USCIS released a revised version of Form I-9, Employment Eligibility Verification.  Employers may continue using Form I-9 with a revision date of 03/08/2013N  through Jan. 21, 2017.  By Jan. 22, 2017, employers must use the revised form.

Employers should continue to follow existing storage and retention rules for all of their previously completed Forms I-9. Refer here for more information.

Remember to login to our webinar on Wednesday Nov. 16th, 3pm EST/12pm PST for training on the new I-9 form:  http://www.immigrationcompliancegroup.com/webinars2016/ and save the date for the E-Verify webinar as well on December 15, 2016.

 

 

USCIS Proposes Rule to Welcome International Entrepreneurs

Saturday, August 27th, 2016

USCIS is proposing a new rule, which would allow certain international entrepreneurs to be considered for parole (temporary permission to be in the United States) so that they may start or scale their businesses here in the United States.  Breaking News_iStock_000029532972Large (2)

Read the advance version of the notice of proposed rulemaking: International Entrepreneur Rule. Once the notice of proposed rulemaking is published in the Federal Register, the public will have 45 days from the date of publication to comment. To submit comments, follow the instructions in the notice.

The proposed rule would allow the Department of Homeland Security (DHS) to use its existing discretionary statutory parole authority for entrepreneurs of startup entities whose stay in the United States would provide a significant public benefit through the substantial and demonstrated potential for rapid business growth and job creation.  Under this proposed rule, DHS may parole, on a case-by-case basis, eligible entrepreneurs of startup enterprises:

  • Who have a significant ownership interest in the startup (at least 15 percent) and have  an active and central role to its operations;
  • Whose startup was formed in the United States within the past three years; and
  • Whose startup has substantial and demonstrated potential for rapid business growth and job creation, as evidenced by:
    • Receiving significant investment of capital (at least $345,000) from certain qualified U.S. investors with established records of successful investments;
    • Receiving significant awards or grants (at least $100,000) from certain federal, state or local government entities; or
    • An applicant who partially meets one or both of the above criteria can be considered if he or she provides “additional reliable and compelling evidence” that his or her entry would provide a “significant public benefit to the United States” and which would validate the entity’s “substantial validation of the entity’s substantial potential for rapid growth and job creation.”

Under the proposed rule, entrepreneurs may be granted an initial stay of up to two years to oversee and grow their startup entity in the United States.  A subsequent request for re-parole (for up to three additional years) would be considered only if the entrepreneur and the startup entity continue to provide a significant public benefit as evidenced by substantial increases in capital investment, revenue or job creation.  If an applicant meets these criteria, the applicant, as well as his or her spouse and minor, unmarried children may be considered under this rule for a discretionary grant of parole for up to two years.  Spouses will receive open-market (unrestricted) work authorization.  Applicants will be allowed to be considered for re-parole for an additional period of up to three years if they can show that the start-up has shown signs of “significant growth” since the initial grant of parole and the start-up continues to have substantial potential for rapid growth and job creation.  The grant of additional parole will be to work with the same start-up for 3 additional years, for a total maximum period of parole of five years. No more than three entrepreneurs may receive parole per start-up, including their spouses and children. As with initial parole, the grant is discretionary and may be revoked for the same reasons as an initial grant.

Applicants for this type of parole benefit will file a new type of application form specifically tailored for entrepreneurs along with a proposed application fee of $1200. Applicants would also provide biometrics.  Entrepreneur parolees will be authorized to work incident to status and will be able to work with an I-94 and a passport. The Form I-9 regulations are being changed to recognize this.

More details here

Provisional Waiver of Unlawful Presence Expands to Include Family Members of Legal Permanent Residents as of 08/29/2016

Saturday, July 30th, 2016

Great News! USCIS announced a final rule expanding the existing provisional waiver process to allow certain individuals who are family members of U.S. citizens and NEWS_dreamstime_s_36930151 (2)now  lawful permanent residents (LPRs), who are statutorily eligible for immigrant visas, to more easily navigate the immigration process.

The rule announced today, which goes into effect on Aug. 29, 2016, expands eligibility for the provisional waiver process to all individuals who are statutorily eligible for the waiver of the unlawful presence ground of inadmissibility. USCIS expects to update its Policy Manual to provide guidance on how USCIS makes “extreme hardship” determinations in the coming weeks.

The final rule also makes changes to Form I-601A, Application for Provisional Unlawful Presence Waiver.  These changes will go into effect along with the final rule.  The updated form will be posted on USCIS’ website at uscis.gov/i-601a on August 29, 2016.

Applicants should not submit a request for a provisional waiver under the expanded guidelines until the final rule takes effect on Aug. 29, 2016.  If you do so before that date, USCIS may deny the application.

For more information on USCIS and its programs, please visit uscis.gov or follow us on Twitter (@uscis), YouTube (/uscis), Facebook(/uscis), and the USCIS blog The Beacon.
Federal Register: https://www.gpo.gov/fdsys/pkg/FR-2016-07-29/pdf/2016-17934.pdf

 

DOJ issues interim final rule increasing fines 35-96% for employing unauthorized workers

Friday, July 8th, 2016

Searching for a Niche Group - Magnifying Glass

This rule implements as an inflation adjustment fines for employing unauthorized workers for Form I-9 paperwork violations, and for immigration-related discrimination. These new fines increase the penalties from 35% to 96% depending on the nature and severity of the violation.

We encourage you to review your policies, procedures and your Form I-9 inventory.  Remember, the key to defending any employment related investigation is to evidence that there is and has been a consistent pattern of responsible, good faith effort on the part of the employer in establishing a compliant workforce.

Refer here for the details.