Categories News & Updates USCIS

Form I-9 may undergo significant changes soon

United States Citizenship and Immigration Services (USCIS) uses Form I-9 to verify and record employment eligibility for new hires. The current I-9 verification form expires and will be updated on October 31st, 2022. To simplify the form, DHS has proposed several changes to it, including:

 

  • Compressing Sections 1 and 2 from two pages to one page to reduce paper use;

 

  • Moving Section 3 to a separate Reverification and Rehire Supplement, making it a stand-alone section, which only is accessed if needed;

 

  • Updating the List of Acceptable Documents to include a link to List C documents (on the U.S. Citizenship and Immigration Services website) issued by DHS. Some List C documents were previously unlisted, so this will be a helpful resource;

 

  • Reducing and simplifying the form’s instructions from 15 pages to 7 pages; and

 

  • Removing electronic PDF enhancements to ensure that the form can be completed on all electronic devices to reduce software issues.

 

Additionally, while the I-9 form is updated approximately every three years, its submission process is hardly ever altered. However, to adapt to a post-pandemic world where most employers are opting for hybrid working environments, on August 18, 2022, DHS published “Optional Alternatives to the Physical Document Examination Associated With Employment Eligibility Verification (Form I-9)”. The publication discussed the option of making the virtual or remote inspection of employee documents for the Form I-9 permanent.

 

Prior to the pandemic, employers were required to physically (in-person) verify the documents presented by a new hire to prove employment eligibility. However, in March of 2020, DHS announced that employees who worked exclusively in a remote setting due to COVID-19-related precautions, were temporarily exempt from the physical inspection requirements associated with the From I-9. This exemption has been extended until October 31, 2022 and may be made permanent dependent on the DHS Final Rule.

Categories Department of Labor News & Updates

PERM Modernization Project to Improve Case Processing

Authorized by the Modernizing Government Technology Act of 2017, the Technology Modernization Fund (TMF) is an investment program that aims to update government  services in order to enhance customer service, cybersecurity, and governmental entities. The Fund plans on doing this by decreasing the amount of independent data systems used and by transferring all paper files into one system. This will ensure that data can be more easily found, and documents are less likely to be lost.

 

Last month, the TMF announced an $7.2 million investment into the Department of Labor’s PERM Labor Certification system. PERM is the system in place for getting a Labor Certification. It is often the first step for a foreign national to receive an employment-based immigrant visa. The current PERM system has been used for twenty years.

 

TMF’s PERM Visa Modernization project will create a more secure and efficient way of sharing data and will make it faster and cheaper for employers to access services. The faster process will also help foreign nationals to continue work in the United States as they will not have to wait on system delays. This investment will dramatically change the process for PERM filers to submit applications and for PERM analysts to review applications.

 

With the TMF investment, standardized and secure data will be shared and provided throughout the entire immigration process and throughout the process of applications. It will also improve border flow, capacity management, and give decision makers the tools needed to increase flow and timeliness. TMF would streamline modernization and significantly improve immigration processes.

 

To learn more about TMF, visit tmf.cio.gov

Categories Department of Labor Department of State News & Updates USCIS

EB-3 Downgrade I-140 Petitions Guidance

Each month the State Department publishes the Visa Bulletin, which summarizes the availability of immigrant numbers for a particular month. You can track your priority date and your corresponding immigration preference category, and once your priority date is current you can apply to adjust status to permanent resident, which is the last step in the green card process.

Your priority date is the date of filing the Labor Certification. If your I-140 Immigrant Petition for Alien Worker does not require an approved Labor Certification, the priority date is the date of filing the I-140 petition.

The three common employment-based immigration preference categories are as follows:

  • EB-1
    • Individuals with Extraordinary Ability – can self-petition
    • Outstanding Researchers and Professors
    • Multinational managers or executives
  • EB-2
    • National Interest Waiver for individuals with advanced degrees or with exceptional ability – can self-petition
    • Members of professions that require an advanced degree or individuals with exceptional ability in the sciences, arts, or business
  • EB-3
    • A skilled worker (meaning your job requires a minimum of 2 years training or work experience)
    • A professional (meaning your job requires at least a U.S. bachelor’s degree or a foreign equivalent and you are a member of the profession)

In 2015, the State Department began to post two charts on the Visa Bulletin,

  • Final Action Dates (dates when visas may finally be issued); and
  • Dates for Filing (earliest dates when applicants may be able to apply).

After the Visa Bulletin is published each month, USCIS designates which chart to use. When USCIS determines there are immigrant visas available for the filing of additional adjustment of status applications, the Dates for Filing chart may be used to determine when to file an adjustment of status application with USCIS. Otherwise, the Final Action Dates chart must be used to determine when to file an adjustment of status application with USCIS.

If a foreign national has an I-140 approval in the EB2 preference category, it can be advantageous to “downgrade,” or file a second I-140 petition in the EB3 preference category, depending on visa bulletin movement. For example, due to the pandemic, an unprecedented low number of family-based (FB) immigrant visas were issued in fiscal year (FY) 2020, and those unused family-based numbers were added to FY 2021’S employment-based immigrant visa allocation.

This reallocation resulted in rapid advancement in the final action dates and dates for filing of all of the EB categories that were not current, particularly EB3 India and EB3 China. The 2020 October Visa Bulletin presented an unprecedented opportunity for clients who had been waiting years to file adjustment of status applications to finally be able to do so.

The risk of filing an EB-3 downgrade I-140 petition are quite low. When filing an EB-3 I-140 downgrade petition, the PERM Labor Certification from the approved EB-2 I-140 petition will be submitted to USCIS. Practically every PERM that qualifies for the EB2 preference category will qualify for the EB3 preference category. Absent a PERM job opportunity that is no longer valid, or fraud or willful misrepresentation, EB3 I-140 petitions should be successful.

Downgrading from EB2 to EB3 does not create any issues, it actually gives you more options should either category move more favorably than the other. If you choose to file an EB-3 downgrade I-140 petition, your EB-2 approval will remain valid. Once the EB-3 I-140 is approved, you will have two I-140 approvals with the same priority date, one in each category and you can use whichever one will be faster to adjust status when the Final Action Date becomes current. If the EB3 category retrogresses and the EB2 category improves, then you can submit an interfiling request to USCIS, or a request asking that your EB2 I-140 approval be interfiled with your pending I-485 application.

Even if your priority date is only current according to the Dates for Filing chart, it can still prove advantageous to file an EB3 downgrade I-140 petition if it will allow you to apply to adjust status sooner. The Dates for Filing option for the green card process permits applicants to obtain interim benefits, including work authorization and travel documents, and allows them to accept a position with a new employer at an earlier stage in the process:

  • Additional work authorization and travel documents: An individual who submits an application for adjustment of status application can concurrently request an employment authorization document (EAD) and advance parole (AP) travel document, which provides the applicant with additional flexibility in employment and international travel.
  • Work authorization for spouses: Family members can submit an application for adjustment of status and request EAD and AP documents for themselves.
  • Increased worker mobility to new employment: Once the adjustment of status application has been pending for six months, the individual is no longer tied to the sponsoring employer and becomes mobile in the labor market. After six months, most adjustment of status applicants can change employers as long as the new position is “same or similar” to the position for which the green card application was filed.

If you are in H-1B status, you can continue to maintain your H-1B status while the I-485 is pending. We recommend maintaining your H-1B status while the I-485 is pending, in the unlikely event that something happens to your I-485. This is unlikely, but it is a good idea to maintain your H-1B status just in case.

In summary, filing an EB-3 downgrade I-140 petition can be of significant benefit to applicants born in China and India who are subject to the longest priority date backlogs. With an EB-3 I-downgrade I-140 petition, foreign nationals from China and India may be able to file the green card application sooner than anticipated.

As always, we are here to help.  If you would like to reach out you can email us at info@grahamadair.com or call us at (408) 715-7067.

Categories News & Updates USCIS

USCIS Has Reached FY 2023 H-1B Cap

USCIS announced this week that it has received a sufficient number of H-1B petitions needed to reach the 85,000 H-1B visa cap for fiscal year (FY) 2023, which begins October 1. This announcement means that USCIS will not run a second H-1B cap lottery this year.

USCIS has updated the H-1B cap online system, and the status of the remaining registrants’ online accounts has changed from “Submitted” to “Not Selected.”

USCIS will continue to accept and process petitions that are otherwise exempt from the cap. These include H-1B extensions, amendments, changes of employer, and concurrent employment for existing H-1B workers.

If you have any questions about this announcement, please contact your Graham Adair representative or email info@grahamadair.com.

Categories Department of State Immigration and Customs Enforcement News & Updates

Current COVID-related Guidance on Travel to and From the United States

With the constantly changing landscape around COVID-related travel restrictions, is it important to find updated information prior to any international travel. As of right now, our current guidance is as follows:

Before Departing the U.S.

It is recommended to be fully aware of the COVID-19 requirements at your destination as they may differ from U.S. requirements. You can find country-specific guidance on the CDC website. Failing to follow your destination’s requirements can result in denial of entry.

Per CDC guidance, you should refrain from traveling if you have COVID-19 symptoms, you tested positive for COVID-19, you are waiting for results of a COVID-19 test or you had close contact with a person with COVID-19 and are recommended to quarantine.

Vaccination Requirements to Enter the U.S.

As of June 12, 2022, the CDC is no longer requiring air passengers traveling from a foreign country into the U.S. to show a negative COVID-19 test or documentation of recovery from COVID-19.

U.S. citizens, Legal Permanent Residents and Nonimmigrants flying into the U.S. will be required to provide contact information to their airline before boarding a flight to the United States.

Nonimmigrants entering the U.S. through air, land or ferry must be fully vaccinated, with limited exceptions. A person is considered fully vaccinated:

  • 2 week (14 days) after an accepted single-dose vaccine
  • 2 weeks (14 days) after second-dose of an accepted 2-dose vaccine
  • 2 weeks (14 days) after receiving the full series of an accepted COVID-19 vaccine in a clinical trial
  • 2 weeks (14 days) after receiving 2 doses of any “mix and match” combination of accepted COVID-19 vaccines administered at least 17 days apart

Accepted COVID-19 vaccines include the following:

  • Single dose: Janssen/J&J and Convidecia (CanSinoBIO)
  • 2-dose series: Comirnaty (Pfizer-BioNTech); Spikevax (Moderna); Vaxzevria (AstraZeneca); Covaxin; Covishield; BIBP/Sinopharm; CoronaVac (Sinovac); Nuvaxovid (Novavax); Covovax; and Medicago (clinical trial vaccine)

Accepted proof of COVID-19 vaccination must have personal identifiers (full name plus another identifier such as date of birth or passport number), name the official source who issued the record and list the vaccine manufacturer and date(s) of vaccination. Accepted proof of COVID-19 vaccination includes the following:

  • Verifiable records (digital or paper): vaccination certificate with QR code or digital pass via Smartphone application with QR code
  • Non-verifiable paper records: printout of COVID-19 vaccination record or COVID-19 vaccination certificate issued at a national or subnational level or by an authorized vaccine provider
  • Non-verifiable digital records: Digital photos of vaccination card or record, downloaded vaccine record or vaccination certificate from official source

In order to expedite the inspection process, the Department of Homeland Security is encouraging travelers arriving or departing the U.S. to use Simplified Arrival or Mobile Passport Control, which can make the inspection process touchless and more expedient with the use of facial comparison technology.

Please contact your Graham Adair attorney with specific travel questions, or contact us at info@grahamadair.com; +1 408 715 7067.