Federal Court Vacates OPT 17-Month STEM Extension Rule

Optional Practical Training (OPT) allows certain graduating F-1 students to obtain twelve months of employment in areas related to their academic field of study. The STEM OPT extension allows an F-1 student to extend his or her OPT employment for an additional 17 months if the student’s F-1 program degree was in an appropriate Science, Technology, Engineering, or Mathematics (STEM) field, and if the student has a job or job offer from an employer registered in the USCIS’s E-verify program.

On August 12, 2015, the US District Court for the District of Columbia held that the Department of Homeland Security’s 2008 interim final rule implementing the 17-month OPT STEM extension was invalid, because the Department of Homeland Security (DHS) implemented the rule without proper notice and comment. (Washington Alliance of Technology Workers v. DHS). However, the court also found that vacating the rule immediately would cause substantial hardship for both F-1 students on STEM OPT extensions and US employers in the technology sector. Therefore, the court ordered that the 2008 interim final rule not be vacated until February 12, 2016, and that during this time, DHS may choose to submit the rule for proper notice and comment.

Graham Adair will provide updates as they become available. Should you have questions, please contact your assigned attorney or paralegal.

– By Dena Neese

Big Changes in U.S. Immigration

Last night, President Obama announced some significant changes to U.S. immigration policy that will take effect in coming months.  Some of the items announced, such as suspending deportation proceedings for certain groups of people, will go into effect immediately.  Other aspects of the plan will require input from U.S. Citizenship and Immigration Services, the State Department, and Immigration and Customs Enforcement, among others, and will likely require changes to the current regulations.

 

The biggest takeaways, from a business immigration standpoint, from the President’s speech include:

1. ICE will work to “expand and extend the use of optional practical training (OPT) for foreign students.”

2. The USCIS will provide clearer guidance on adjustment of status (I-485) portability so that individuals with pending applications have greater career and job flexibility during the green card process.

3. The USCIS will look to provide EAD work cards and advance parole travel authorization to those who have approved I-140s with retrogressed priority dates.

4. The USCIS will allow H-4 spouses to seek Employment Authorization Documents if the H-1B holder is “on the path to lawful permanent resident status.”

5. The USCIS will issue more clear guidance with respect to what qualifies as “specialized knowledge” in the L-1B context in an effort to improve consistency and reinvigorate employers’ confidence in the visa status.

6. The USCIS and State Department are seeking a method and means to modernize the Visa Bulletin and allocation process to ensure that backlogs are reduced and the process is workable and usable for all intending permanent residents.

7. The USCIS will enhance the National Interest Waiver process to allow greater flexibility in adjudications and permit foreign inventors, researchers and founders of start-up enterprises to benefit the U.S economy.

8. The USCIS will create a parole system for “eligible inventors, researchers and founders of start-up enterprises who do not yet qualify for a National Interest Waiver, but who: (1) Have been awarded substantial U.S. investor financing; or (2) Otherwise hold the promise of innovation and job creation through the development of new technologies or the pursuit of cutting-edge research.”

Graham Adair will monitor the development of these policies and changes in regulation as they work their way through the various government agencies.

How This Immigration Bill Impacts Employers

The highly publicized bipartisan “Gang of Eight” in the Senate has pushed forward to draft an immigration reform bill that many believe will make it through Congress and result in comprehensive immigration reform. Many of the bill’s provisions impact U.S. employers.

H-1B Visa Reform

Currently, there is a cap of 65,000 H-1B visas allotted every year. This year, the H-1B cap was exceeded during the first five days of the filing period and resulted in a lottery to select which petitions USCIS will accept. Recognizing the need for more visas, this bill proposes to increase the minimum number of H-1B visas to 110,000, with an allowed increase of 10,000 every year depending on demand from the previous year. The maximum allowable number is 180,000 H-1B visas.

Additionally, the number of exemptions for those with advanced U.S. degrees increases from 20,000 to 25,000. However, the bill limits the exemption to Science, Technology, Engineering, and Mathematics (STEM) occupations.

The bill provides a 60-day grace period for H-1B workers who separate from their sponsoring employer. During this time, they can either depart the United States or find a new employer to sponsor their H-1B. A timely filed petition during the 60-day grace period would keep the H-1B worker in valid status while the case is pending.

The bill would allow spouses of H-1B visa holders to work in the U.S. if their home country allows reciprocal employment in similar situations.

However, with some benefits come some costs. As H-1B visas increase, the bill compensates by requiring employers to pay higher wages to H-1B workers based on a new 3-tier wage system to be developed by the Department of Labor. Also, before employers can hire an H-1B applicant, they are required to advertise the position to U.S. workers. Under the bill, the Department of Labor would establish a centralized website where all employers must post H-1B positions for 30 days before hiring an H-1B applicant.

Changes to the Green Card Process

Under this bill, the demand on the limited number of immigrant visas would be greatly alleviated. Cases filed under the EB-1 category would no longer be counted toward the annual limit, nor would cases for those holding doctorate degrees. Cases for dependent spouses and children would also not be counted.

Moreover, the bill establishes a “merit-based points” system that would replace the current Diversity Visa Program. Under Tier 1, beneficiaries can acquire points for factors such as education, length of employment, type of employment, family members in the U.S., and length of residence in the U.S. For the first four fiscal years after the bill’s enactment, merit-based visas will be allocated for skilled workers, professionals, and other workers, who provide non-seasonal and unskilled labor. For the Tier 2 track, employment-based immigrant visas are provided to those with cases pending more than 5 years.

An Increase in Government Oversight

Heightened security is a main focus of this bill. For this reason, the bill envisions 100% employer participation in E-verify by year five of the bill’s enactment.

It is anticipated that the Department of Labor would be more involved in employer enforcement as well. This bill removes the “reasonable cause” requirement and allows the DOL to investigate employers for any reason. The DOL would also conduct annual compliance audits of all employers with over 100 employees if more than 15 percent of them are H-1B workers.

Further, this bill increases fines on employers violating terms of the Labor Condition Application. For mistakes on an LCA, fines would increase from $1,000 to $2,000. For willful LCA violations, fines would increase from $5,000 to $10,000.

Conclusion

The “Gang of 8” bill is currently undergoing mark-up procedures in the Senate. At the same time, a bipartisan group in the House of Representatives in seeking to draft its own immigration reform bill. These bills will then proceed to a vote.

Graham Adair continues to monitor developments on comprehensive immigration reform. We will provide updates as they become available.

If you have any questions, please feel free to contact us at: info@grahamadair.com.

USCIS Issues New I-9

Today, U.S. Citizenship and Immigration Services (USCIS) publishd a revised version of Form I-9.  The new version requires additional information from foreign national employees, including the email address, telephone number, and foreign passport information.

 

The revised form is effective today.  USCIS is providing a 60-day grace period so that employers can update their internal processes. During the grace period, the current version can still be used. After the 60-day grace period, which ends on May 7, 2013, employers must use the new I-9 or be subject to penalties for not using the correct version.

 

Starting today, the new Form I-9 can be downloaded at: www.uscis.gov.

 

If you have any questions about this new process or its impact, please feel free to contact us at: info@grahamadair.com.

Updates on Plan to Eliminate the I-94 Card

It was announced in 2012 that U.S. Customs and Border Patrol would move to eliminate the issuance of I-94 cards to arriving non-immigrants in the near future.  In 2012, I-94 cards were no longer issued to individuals arriving under the Visa Waiver Program.  However, CBP did not announce when or how it would eliminate I-94 cards for other arriving non-immigrants.  This is obviously a significant move for CBP and has ramifications across several branches the Department of Homeland Security and other government agencies, such as the Social Security Administration and many state agencies who issue drivers licenses.

Although there is still no publically available timeline for when changes will happen, these are some of the details of CBP’s plan:

  • I-94 cards will at some point in the near future no longer be issued to passengers arriving at air and seaports with Advanced Passenger Information Systems (APIS) in place;
  • I-94 cards will continue to be issued at land border crossings and seaports not equipped with APIS;
  • In place of the I-94 card, individuals will be given a stamp in their passport that will include a handwritten annotation indicating non-immigrant status and the period of authorized stay in the U.S.; and
  • CBP will record admission to the U.S. in an electronic database; there is some question of whether individuals will be given a receipt confirming their information in the database, and CBP has taken this under consideration.

The eventual elimination of the I-94 card will impact employers when it comes to I-9 verification and participation in E-Verify since a valid passport and I-94 card are currently accepted as evidence of valid work authorization.

The attorneys at Graham Adair will continue to monitor and update our clients as these changes go into effect.  We will work with our clients to make this government process change seamless for our clients.

Employer Alert on Site Visits

Site visits to employers sponsoring H-1B petitions have been increasing recently as USCIS continues to implement changes in response to its H-1B Benefit Fraud Analysis report from September 2008.  As site visits become more common, employers need to become familiar with what to expect and the topics and questions that may be raised by the inspector.

 

The California Service Center (CSC) advised employers that inspections typically check the work location listed on the I-129 petition.  (For employees who work offsite or at multiple locations, an itinerary should be provided in the petition.)  In  ddition to speaking to a company representative – typically the signatory of the  etition – and the beneficiary, the inspector may also ask to review documents related  to the petition and take photos of the worksite.

 

In practice, we have had inspectors:

  • Verify the information submitted with the petition, including supporting documentation submitted by the petitioner, based on a checklist prepared by USCIS;

  • Verify the existence of a petitioning entity;

 

  • Take digital photographs;

 

  • Speak with organizational representatives to confirm the beneficiary’s work location, employment workspace, hours, salary and duties; and

 

  • Speak with employees to confirm job details contained in the I-129 petition.

 

Furthermore, we have had inspectors request general information about other H-1B petitions pending or in process with the employer.  These requests have been made in person, by phone, and by email.

 

Site inspectors will report the results of their site inspections to the Fraud Detection and National Security (FDNS).  An FDNS Officer will review the information and determine whether an official inquiry should be made.  If so, the FDNS will provide an Immigration Services Officer (ISO) with a Summary of Findings (SOF), which may decide to request additional evidence from the petitioner or initiate denial or revocation proceedings.  When indicators of fraud are identified, the FDNS Officer may refer the case to ICE for criminal investigation.

 

If your company is contacted about a site visit, contact your Graham Adair attorney for guidance.

New Combined EAD and AP Card

The U.S. Citizenship and Immigration Services (USCIS) just announced that it will start issuing a new combined employment authorization document (EAD) and advanced parole document (AP) to certain individuals who have a pending employment or family based I-485 application to adjust status. This new combined EAD/AP card will look similar to the current EAD card, but will contain language on the face of the card that states “Serves as I-512 Advanced Parole.” The new card will be issued to individuals who concurrently apply for their EAD and AP documents with their I-485 application. The card will also be issued to applicants who file for extensions of their EAD and AP documents concurrently, so long as their EAD and AP documents expire within 120 days of each other.

The new card will be issued for one to two years at the discretion of USCIS. This new card will allow individuals to carry only a single document for work and travel authorization while the I-485 applications are pending.

Employers will be able to treat this document as a List A document for purposes of I-9 verification.

If you have further questions about this document please contact Graham Adair.

UNITED STATES – ICE Will Serve More Than 500 Notices of Inspection

The American Immigration Lawyers Association (AILA) has reported that U.S. Immigration and Customs Enforcement (ICE) plans to serve more than 500 new Notices of Inspection to U.S. companies within the next few days. According to ICE, the planned audits were triggered by information received about companies that are believed to be engaging in the hiring of unauthorized workers and/or paying unfair wages.

If you receive a Notice of Inspection, please contact us right away at: info@grahamadair.com.

UNITED STATES – Arizona Passes New Immigration Enforcement Provision

On Friday April 23, 2010, Arizona Governor Jan Brewer signed SB 1070 into law.  This law is focused on immigration enforcement and appears to give broad authority to state and local law enforcement agencies to enforce federal immigration provisions.  The bill, among other things, requires law enforcement officers and other agents of the state to inquire about a person’s immigration status under certain circumstances. 

The passage and signing of the new law has pushed Arizona to the forefront of the national debate on immigration issues.  This is a controversial bill and has generated significant media coverage and spurred numerous debates, protests, and demonstrations.  The law will likely be the subject of multiple lawsuits addressing both questions of immigration law and various Constitutional issues.  This law will go into effect 90 days from the date it was signed by the governor.

We are carefully monitoring this situation and will be providing updates on specific actions and precautions that clients should consider taking in the coming weeks and months.

DHS Getting More Customer Service Oriented With E-Verify

The U.S. Department of Homeland Security (DHS) has announced an initiative to enhance customer service in three areas:

1. Telephone hotline;
2. Training videos; and
3. Streamlined adjudication of discrimination complaints for misuse of E-Verify.

Telephone Hotline

On April 5, 2010, a new hotline (888-897-7781) will open for general inquiries, issues and complaints. It will be an automated phone line that will eventually take the caller to a live representative in one of four areas:

1. General E-Verify information;
2. Completing Form I-9;
3. Contesting an E-Verify case; and
4. Filing a complaint regarding possible discrimination or misuse of E-Verify.

The hotline presents a nice first option for those seeking general information or redress for issues raised during the E-Verify process. However, with more than 192,000 participating employers at more than 705,000 worksites nationwide currently use E-Verify, it remains to be seen whether the hotline will be properly staffed. If it is understaffed, long waits could dilute the utility of the hotline.

Training Videos

Training videos have been created by the DHS’s Office of Civil Rights and Civil Liberties and U.S. Citizenship and Immigration Services (USCIS). Each video is set up as re-enactments of real-world hiring scenarios in which the employees’ rights are considered to avoid potential discrimination or misuse of the E-Verify process. For now, there are two videos available. Each video is approximately 20 minutes long and is available for immediate viewing online at: www.dhs.gov/e-verify or
www.youtube.com/ushomelandsecurity. The videos are intended to help employers understand their responsibilities under E-Verify and to inform employees of their rights.

Streamlined Adjudication of Discrimination and Misuse Complaints

The Department of Justice’s Office of Special Counsel (OSC) has begun a two-way referral program with USCIS on claims of E-Verify misuse. When USCIS receives complains of potential discrimination, it will refer them to OSC. And when OSC learns of potential employer misuse of E-Verify that does not fall within its enforcement area, it will refer the complaint to USCIS. This streamlined process is intended to move complaints more quickly to a final determination and, if required, an investigation. OSC may initiate investigations of: (1) discrimination based on citizenship, immigration status, or national origin; (2) document abuse as part of the I-9 process; and (3) retaliation.

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