275,000 H-1B Cap Cases Registered

On April 1, 2020, U.S. Citizenship and Immigration Services (USCIS) announced that it had received approximately 275,000 submissions for H-1B applications in the electronic lottery that was conducted at the end of March.  They reported that 46% of applications were for individuals who hold advanced U.S. degrees. This was an increase of approximately 74,000 cases over the number that was received last year in the H-1B cap.

 

In total numbers, this means that beneficiaries had less than a 31% chance of selection. Cases filed under the advanced U.S. degree cap had a higher chance, although we don’t know the total number of these applicants so we cannot say for sure what the likelihood of success was. We estimate that the chances of selection for cases filed under the advanced U.S. degree cap was somewhere between 40% and 50%.

 

It seems that the lower cost threshold of $10 per registration lowered the barrier to entry enough to result in a surge of submissions.

 

Registrations that have not been selected will be held in reserve. Between March 31, 2020 and Oct. 1, 2020, in the event that USCIS needs to select registrations from the reserve to meet the H-1B regular cap and the advanced U.S. degree cap, it may select from registrations held in the reserve to meet such allocations.

 

Graham Adair will be checking unselected cases regularly until USCIS sends out rejection notices. If you have any questions, please contact your Graham Adair representative.

I-9 Compliance During the COVID-19 Pandemic

To comply with the social distancing guidelines to limit the spread of the COVID-19 virus, more employees are working from home. Despite this change, it’s important for HR professionals to help make sure their company stays compliant with employment verification and related requirements – which have not been relaxed (at this time) by the federal government.

 

In fact, there is language on USCIS’s  Special Situations webpage that states, “All requirements for Form I-9, Employment Eligibility Verification, completion and E- Verify remain in place.”

 

Here are 9 of the most important issues and questions U.S. HR departments may have regarding I-9 employees:

 

  1. Has USCIS announced any suspension of Form I-9 or E-Verify requirements?

No. As of this date, the Form I-9 (and E-Verify, if applicable) must still be completed following the existing requirements.

 

  1. What are viable options for completing Form I-9 in remote work scenarios?

Section 1 of the Form I-9 is completed by the employee. Employers should provide the new hire with the Form I-9 and the instructions to complete Section 1 on or before the date of hire. Despite the challenges of remote employment, the employer is still legally required to complete Section 2 of the I-9 within three business days of hire (or on the first day of work for pay if the duration of employment will be three days or less). Re-verification is also required to be completed timely (to ensure that the Form I-9 reflects employment authorization covering every day of employment).

 

One strategy for compliance is to authorize an agent, also referred to as an “authorized representative,” to act on the employer’s behalf to complete Section 2 or re-verify employment authorization. To document that the agent is acting on the employer’s behalf, the best practice is to send clear written instructions for the agent performing this service. To verify the agent is acting appropriately, many employers will have someone on the phone or present via webinar to observe the Form I-9 process. Keep in mind the agent is acting on the employer’s behalf. Therefore, any mistakes made by the agent will be attributed to the employer.

 

The process of verifying original documents must occur in-person. Make sure whoever is tasked with the verifying is following current CDC guidance relating to reduction of the risk of virus transmission.

 

  1. To comply with social distancing recommendations, can a family member already in the household act as a 3rd party?

Yes, but it’s not an ideal situation. If, due to the employee having to self-isolate and/or quarantine, a family member or health care provider acts as the agent, then the employer needs to make sure Section 2 of the Form I-9 has been completed correctly. The employer should review the Form I-9 as soon as possible and take any required corrective action (clearly noting when changes were made and by whom on the face of the document) as quickly as possible.

 

It may be wiser to instead wait to complete Section 2 of the form until the employee is in the office and able to meet with the employer in-person to complete the form. Opting to have a late-completed form for the sake of having more control of verifying that the documents presented appear to be genuine and relate to the employee may pay off in the end.

 

  1. If I cannot find anyone to verify a remotely hired employee, should I verify the documents through Skype or Zoom or some other video communication?

No. As for now, the law still requires physical inspection of documents for I-9 purposes.

 

  1. If we normally use an electronic I-9 system, how should remote I-9s be handled?

It is perfectly fine to maintain the I-9 electronically, providing doing so complies with the applicable regulations for electronic I-9 retention. But remember: the use of electronic on-boarding systems does not excuse physical inspection of I-9 documents.

 

  1. What should my company include in the recommended file memo for forms created in this period?

Per 8 CFR §274a.2(b)(2), the Form I-9 must be retained for the entire duration of each individual’s employment plus at least one additional year (three years from the date of hire or one year from the date of termination, whichever is later).

 

In the event some Form I-9s were completed late or did not have copies of documents attached due to the challenges created by the COVID-19 pandemic, then be sure to write explanatory notes in Section 2. In the event of an inspection or other investigation, those notes and other evidences should confirm your company did all it could to stay compliant despite the trying circumstances.

 

  1. Does suspension of employer operations impact the employment verification requirements?

Yes. If a business is closed, then the Form I-9 requirements are tolled because it is not considered a “business day” for Form I-9 purposes. Again, remember to note this on the Form I-9.

 

  1. How does my company receive copies of the documents if an agent was used?

If sections 2 and 3 of the Form I-9 was completed remotely by an agent, your best practice would be for the person acting as the employer’s agent to make copies and deliver them to you. Or, you can make a copy of the documents as soon as the employee can bring them in. However, then you have the challenge of confirming that the documents presented are the same as those used for Form I-9 completion.

 

  1. How can my company ensure we provide clear communication throughout this outbreak?

Because employers and employees are dealing with many difficult issues during this extraordinary time, clear, concise and frequent communication – along with smart policies and proper procedures – are critical. Here are some tips to keep in mind:

  • Create a file memo. This provides a record for future possible enforcement action.
  • Clearly communicate to employees the steps you’re taking in response to the pandemic and any related changes in procedures. Make sure all your actions are based on valid business and compliance-related factors. This will help to mitigate risk of any discrimination-related claims or enforcement.
  • Do not prescribe which document(s) should be presented by the employee. This will help you avoid violation of the anti-discrimination provisions found in 8 CFR §274b. The employee must choose which documents to present for verification or re-verification purposes. Always provide a copy of the List of Acceptable Documents attached to the Form I-9.
  • Great care should also be taken in how the Form I-9 (and document copies, if applicable) completed by an agent are stored and transmitted to your company so that personally identifiable information (PII) is protected.
  • Be sure to use the new Form I-9 version (10/21/2019 edition date) starting no later than May 1, 2020.
  • Lastly, it’s a good idea to create an action plan of priorities that balances the competing factors and document the same so it’s 1) clear any actions were taken out of both caution and for the sake of I-9 compliance during this global pandemic and 2) the actions you take were deemed in your employees’ best interest during these challenging times.

Please contact your Graham Adair representative with any questions.

RELIEF Act Introduction Brings Both Senate Immigration Bills To Standstill

The journey of H.R.1044/S.386 through the Senate hit another roadblock as S.2603, the Resolving Extended Limbo for Immigrant Employees and Families (RELIEF) Act, was brought up for a vote by unanimous consent. At least one senator objected, blocking the unanimous consent fast-track and stalling both bills for the time being. A unanimous consent vote on H.R.1044/S.386 was originally expected to be held on Thursday, October 17th.

The RELIEF Act was introduced to address the massive green card backlog, with the goal of eliminating the backlog over five years. Building on S.744, the 2013 bipartisan comprehensive immigration reform bill, the bill would clarify spouses and children of Legal Permanent Residents as immediate relatives and exempt “derivative beneficiaries” of employment-based petitions from the annual caps that contribute to the backlog. It would also protect children who qualify based on a parent’s petition from “aging out” while waiting for approval, helping to keep families together.

We will continue to monitor developments and share updates as more information becomes available. If you have any questions, please feel free to contact your Graham Adair representative. For more frequent updates, please follow us on Twitter (@GrahamAdairLaw).

Amended Public Charge Rule Will Not Go Into Effect on October 15th

Earlier this afternoon, a federal judge in New York issued an injunction against the recently amended “public charge” rule. We discussed the amended public charge rule a few weeks ago. People deemed to be a public charge may be prevented from applying for permanent residency. The amended rule altered the definition of “public charge” to include an individual who receives one or more designated public benefits for more than 12 months, in the aggregate, within any 36-month period. Additionally, it was broadened to include many common services, such as public housing assistance, food stamps, supplemental income, and certain Medicaid costs.

The temporary injunction issued today will prevent the amended public charge rule from taking effect on Oct. 15.

The rule is being challenged in several federal courts by immigrants’ rights groups and more than a dozen state attorneys general. While the public charge requirement has been a long-standing rule, it has not previously been defined this specifically.

As the rule continues working its way through the court system, we will continue to monitor it and provide updates. But for now, people filing for permanent residency will not be subjected to the newly amended public charge rule.

For more frequent updates, please follow us on Twitter (@GrahamAdairLaw).

UPDATED: Fairness for High Skilled Immigrants Act Goes Before Senate

UPDATED 9/20/19
H.R.1044/S.386 went before the Senate on Thursday and was blocked by a Senator who expressed unenumerated concerns about how the new rules would impact specific industries. Leading proponents of the bill say they will work to address those concerns and bring it up for a vote again next week. We will continue to monitor developments and share updates as more information becomes available.

9/19/19
After passing the House with 365 bipartisan votes, H.R.1044, the Fairness for High Skilled Immigrants Act will be brought before the Senate today, September 19, 2019 as S.386. U.S. Senators Mike Lee and Kamala Harris have led negotiations with Senator Rand Paul, who agreed to remove his hold on the bill after reaching a reasonable compromise.

H.R.1044/S.386 would remove the per-country quotas for employment-based immigrant visas, reducing the green card backlog. The per-country quota currently remains at 7% of total annual green cards, meaning Iceland (pop. ~338,000) has the same quota as India (pop. ~1.3 billion). The resultant backlog has resulted in extreme wait times and uncertainty for employers that rely on highly-skilled immigrants. Eliminating the quotas and backlog is intended to ensure that the United States continues to attract top talent from around the world.

The bill is expected to be brought up by Unanimous Consent, expediting the process. We will continue to monitor developments and share updates as more information becomes available.

Plan to Terminate H-4 Work Permit Program Delayed, DHS Seeks to Put Lawsuit on Hold

A memo from the U.S. Department of Justice, dated 9/16/19, has indicated that anticipated changes to the visa program which has allowed H-4 visa holder spouses of H-1B workers to obtain Employment Authorization Documents (EADs) will not be issued until the spring of 2020 at the earliest. The plan to eliminate the work authorization for H1-B spouses was formally introduced in February of 2019, with a proposed rule from USCIS and the Department of Homeland Security (DHS) “Removing H-4 Dependent Spouses from the Class of Aliens Eligible for Employment Authorization.” The new regulations, currently under federal review, were initially expected to be published this year.

The U.S. Court of Appeals for the District of Columbia is currently hearing a lawsuit seeking to invalidate the H-4 EAD rule. The suit was filed by anti-immigration group Save Jobs USA, arguing that the DHS had no authority to issue the initial H-4 EAD rule, which was introduced in 2015. DHS lawyers maintain that the suit should be put on hold due to the ongoing efforts by the administration to rescind the program. According to the memo …DHS’s intention to proceed with publication of the H-4 EAD proposed rule remains unchanged. At this point, DHS has informed counsel that it believes the earliest possible publication date for that rule would be in spring 2020. Although that timeframe is aspirational, DHS believes that the September 27, 2019 oral argument should be removed from the calendar and postponed…”

We will continue to monitor developments and share updates as more information becomes available. If you have any questions, please feel free to contact your Graham Adair representative. For more frequent updates, please follow us on Twitter (@GrahamAdairLaw).

 

USCIS Proposes New Rule on H-1B Registration Fee Requirement

On Wednesday September 4, 2019, USCIS published a proposed rule in the Federal Register that would require payment of a $10 fee from all petitioners filing a H-1B cap-subject petition. The rule would apply to each registration submitted for the selection process, and is expected to be applicable to 2021 fiscal year cap filings. The 30-day public comment period is now open, with comments due 10/4/19 via mail or the Federal eRulemaking Portal: www.regulations.gov.

The new fee, which was excluded from the original January 2019 final rule that introduced the new online registration requirement, is expected to result in a marginal increase in costs for selected selected petitioners, and a cost savings for both unselected petitioners and the government. This is one in a series of steps toward implementing the new electronic registration system for H-1B filing. Details remain to be released about the new process, which will be in place for the April 2020 H-1B filing season.

We will continue to monitor developments and share updates as more information becomes available. If you have any questions, please feel free to contact your Graham Adair representative. For more frequent updates, please follow us on Twitter (@GrahamAdairLaw).

BREXIT: Anticipated Changes Under New PM Boris Johnson

Mr. Boris Johnson was elected as the new PM of the UK in July 2019 after former PM, Theresa May, stepped down. Much of the angst surrounding the UK in light of the PM switch has been how Brexit would be handled.

Previously, under PM Theresa May, the UK was set to leave the EU on March 29, 2019. Theresa May’s government had plans in place in the event of a no-deal Brexit allowing free movement of EU nationals until January 2021 and offering an EU Settlement Scheme. After many failed attempts to pass a resolution, the UK leave date was delayed to October 31, 2019 with, or without, a deal.

Former PM Theresa May’s plans in the event of a no-deal Brexit included free movement until January 2021 and a grace period where EU nationals could apply for settled status up until December 31, 2020. The Government’s previous plans in the event of a no-deal Brexit, however, are now being significantly altered by the PM Boris Johnson’s Government signifying that a no-deal Brexit would include ending free movement immediately on October 31, 2019, and that the UK will absolutely leave no matter what. The Government further notes that it does not have an immigration plan in place on how a new system will impact EU national residents before and after exit day– this poses a chaotic scenario for several UK-based companies with international employees from the EU given that there are only 73 days left until the October 31, 2019 deadline.

As of now, there are no signs as to what a new immigration system would look like that will replace free movement, leaving significant unclarity as to how UK-based companies will move EU national employees into the UK after the deadline. The deadline to apply for settled status is still December 31, 2020. However, there will be many EU nationals traveling after October 31, 2019 who will not be able to establish that they have been a resident in the UK before exit day (a key factor and benefit of “free movement”). In addition to the new changes, it is unclear whether new EU arrivals will be able to work in the UK after October 31 meaning UK businesses will have no idea whether they can recruit EU nationals for openings after the exit date. The UK Home Office indicates that new plans will be announced very soon.

In light of this scenario, UK employers are encouraged to have their EU national employees, and their family members, apply for settled status under the EU Settlement Scheme. Those who have lived in the UK for extended periods of time may be able to apply for Permanent Residence or even citizenship, avoiding the requirements of the new system.

We at Graham Adair Inc. are dedicated to helping businesses support employees through Brexit and are closely monitoring the volatile Brexit changes. Please contact us at Graham Adair Inc. as we are closely connected with our UK Local Office and are open to answering questions.

USCIS and DHS Publish Final Rule on Public Charge Grounds for Inadmissibility

On Wednesday August 14, USCIS and DHS published in the Federal Register the new final rule amending the regulations by which DHS determines admissibility on “public charge” grounds. Specifically, this is a change in the rule and a clarification of the definitions of what constitute a “public charge” and “public charge benefits.” The rule will go into effect at 12:00 a.m. Eastern Time on October 15, 2019, and cases filed prior to this date will be adjudicated based on the previous guidelines. The new rule will not affect currently pending cases. If any foreign nationals have received assistance from one of the programs designated below, they should advise our office at the initiation of any nonimmigrant or immigrant process so we can evaluate if the receipt will pose a problem.

The rule defines the term “public charge” to mean an individual who receives one or more designated public benefits for more than 12 months, in the aggregate, within any 36-month period (such that, for instance, receipt of two benefits in one month counts as two months).

The agency considers the following programs as grounds for inadmissibility:

  • Supplemental security income (SSI)
  • Temporary Assistance to Needy Families (TANF)
  • State general relief or general assistance
  • Medicaid programs covering institutionalization for long term care
  • Nonemergency Medicaid
  • Supplemental nutrition and assistance program (SNAP, formerly food stamps)
  • Section 8 Housing Choice Voucher Program
  • Section 8 Project-Based rental assistance
  • Public Housing

The rule will also affect those in nonimmigrant status if they have received any of the aforementioned public benefits above the designated threshold (12 months within any 36-month period). If they do receive such benefits, they will no longer be eligible for an extension or change of state.

The final rule does not include receipt or potential receipt of the following benefit programs as grounds for inadmissibility:

  • Emergency medical assistance
  • Disaster relief
  • National school lunch or school breakfast programs
  • Foster care and adoption
  • Head Start
  • Child Health Insurance Program including Medicaid for Aliens under 21
  • Earned Income Tax Credit or Child Tax Credit
  • Public benefits received by individuals who are serving in active duty or in the Ready Reserve component of the U.S. armed forces, and their spouses and children
  • Public benefits received by certain international adoptees and children acquiring U.S. citizenship
  • Medicaid for pregnant women
  • Medicaid for school-based services (including services provided under the Individuals with Disabilities Education Act)

Benefits received by the applicant’s U.S. citizen children or other family members are not considered in determining whether the applicant is likely to become a public charge. The final rule also clarifies that DHS will only consider public benefits received directly by the applicant for the applicant’s own benefit, or where the applicant is a listed beneficiary of the public benefit. DHS will not consider public benefits received on behalf of another as a legal guardian or pursuant to a power of attorney for such a person.

USCIS will exercise its discretionary authority, in limited circumstances, to offer an otherwise inadmissible foreign national the opportunity to post a public charge bond. The final rule sets the minimum bond amount at $8,100; the actual bond amount will be dependent on the individual’s circumstances.

If a foreign national has received any of the public benefits listed above, we urge them to contact our office so that we can advise on the potential impact and the best possible course of action.

Fairness for High-Skilled Immigrants Act Passes in the U.S. House of Representatives.

On Wednesday, July 11, 2019, the U.S. House of Representatives passed the Fairness for High-Skilled Immigrants Act of 2019 with a vote of 365 to 65. The Bill was introduced by Representative Zoe Lofgren, Representative Ken Buck and 112 other House sponsors and seeks to eliminate per-country numerical limitations for employment-based immigrants and to increase the per-country numerical limitation for family-sponsored immigrants from 7% to 15%.

Currently, the wait for an employment-based green card and a family-based green card for non-immediate family members depends on an individual’s country of birth. This has resulted in significant backlogs for countries with higher numbers of employment-based green card applicants, including India and China, and for countries with higher numbers of family-based green card applicants, including the Philippines and Mexico.

Proponents of the Bill believe that reducing the green card backlog will ensure that the U.S. continues to attract the world’s top talent and will allow close relatives of U.S. citizens from oversubscribed countries to emigrate to the U.S. a lot sooner.

Senator Rand Paul introduced the Backlog Elimination, Legal Immigration, and Employment Visa Enhancement (BELIEVE) Act on the same day that the House passed the Fairness for High-Skilled Immigrants Act. Senator Paul’s proposal will, among other things, eliminate the per-country numerical limitations for employment-based immigrants, increase the number of employment-based green cards available each year, and grant spouses and children of E, H, and L visa holders work authorization. Senator Paul’s Act does not contain any family-based immigration provisions.

We will continue to monitor developments and share updates as more information becomes available.