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

visa processing taking long time
Categories News & Updates

U.S. Immigration and the Backlog of Visa Processing

Imagine being a Brazilian or Colombian citizen hoping to travel to the U.S. on vacation. Make your plans early because it could take six months or longer to get your visas. Likewise for the African business owner looking to travel here to secure important funding. The fact is that America’s backlog of unprocessed visas has become an open secret around the world.

The backlog isn’t helping our national reputation. Whether people come for education, work, business, or leisure, having to wait so long for visa approval is disheartening and discouraging. Those who have opportunities to go elsewhere are more likely to do so.

So what is the problem? Why does it take so long for the U.S. to approve visas? As business immigration attorneys, we can tell you that there are multiple things in play here.

1. The COVID Pandemic

We are all tired of hearing about the COVID pandemic. We are also tired of blaming all of society’s ills on it. But we cannot deny the fact that the pandemic shut down American consulates all over the world. Not only that, but many consulate workers also returned home and did not go back. Consulates are terribly short staffed as a result.

Add to that the fact that there was a surge in visa applications once the government reopened our borders. So now we have a flood of applications and fewer consulate staff members to process them.

2. Government Bureaucracy

Another big issue is bureaucracy. Unfortunately, U.S. immigration law is built on what bureaucracy does best: generate paperwork and involve a lot of people in an otherwise simple process. Bureaucracy has always been an issue where visas are concerned. It only seems to get worse as time goes by.

The amazing thing about bureaucracy is that it doesn’t apply evenly around the world. According to a recent Bloomberg Opinion piece, Australia can approve visitor visas in about six weeks. The UK can do it in seven weeks. It takes the U.S. months. In some cases, tourists can wait years to get their visas.

Our system is not set up to be speedy. It is not set up to be efficient or easy to navigate. As such, bureaucracy slows things down to a crawl. But that’s why we encourage companies looking to bring in foreign workers to work with an experienced business immigration attorney.

3. Skilled Worker Shortage

Yet another contributing factor is a shortage of skilled workers. Companies are having to look outside the U.S. to find potential hires capable of doing the work. Washington knows this, and they are giving priority to business immigration over other immigration needs. Those wishing to come to the U.S. as tourists ultimately end up being put on the back burner.

Even with business immigration though, the backlog is significant. A Graham Adair H-1B visa attorney spends a lot more time on each individual case as compared to just four or five years ago.

We have to assume that Washington’s heavy emphasis on business immigration will continue for the foreseeable future. Assuming the U.S. education system doesn’t step up its STEM game, companies will have to continue going overseas for skilled workers.

Don’t Wait Too Long

If your company is hoping to bring immigrant workers into the U.S., we urge you not to wait too long to initiate the visa process. Work with your prospective hires to get the process rolling as soon as possible. You are going to need some time to get it done. Of course, call on Graham Adair for legal representation and assistance navigating what can be a particularly challenging process.

semiconductor companies green card reform
Categories News & Updates

U.S. Semiconductor Sector Wants Green Card Reform

A number of companies in the semiconductor industry are grateful to Congress for getting a bill that strengthens domestic chip processing passed and off to the president’s desk. That’s a good step, but now they want Congress to start working on reforming green cards. The industry says it needs access to more highly skilled foreign workers in order to meet semiconductor demand.

They envision an overhauled green card system that, among other things, creates new exemptions that would make more foreign-born workers eligible for permanent worker status. Semiconductor companies want cap exemptions for STEM workers with master’s degrees.

Limited Green Card Approvals

As things currently stand, U.S. law caps the number of green cards issued every year. There are only limited approvals to work with. That means a lot of different things to both foreign workers and law firms like Graham Adair.

An immigrant worker without a green card must have an H-1B work visa, or a similar visa pertaining to their particular type of work. But there is no guarantee a work visa can be renewed when the time comes. A green card would obviously solve that problem. Yet until Congress overhauls the system, limits on annual green card approvals will remain. Executives in the semiconductor industry do not think that this is acceptable.

Enhancing Education at Home

Making it easier for certain types of foreign-born workers to obtain permanent resident status would make life easier on semiconductor manufacturers. And by their own admission, there may not be enough highly skilled immigrants to do all the work. So the industry is also calling for efforts to enhance education at home.

They are urging Congress to find ways to invest in STEM programs. They say the government can do more to develop strategic research and development that will help companies keep up with demand and simultaneously improve national security. Finally, the industry is hoping that America’s colleges and universities will begin developing degree programs specific to semiconductor design and manufacturing.

More Than Just Money

Look below the surface of press releases and media reports and it becomes clear that the semiconductor industry wants more than just money. The CHIPS and Science Act leverages some $280 billion to help the U.S. industry be more competitive. But government money is only as helpful as the number of skilled workers the industry can bring in.

Our current H-1B worker visa program gets the job done. But it is highly inefficient. It takes a lot of time, effort, and help from an experienced immigration attorney to ensure that foreign-born workers get their visas prior to entering the country.

An extra layer of bureaucracy is added when H-1B workers attempt to apply for green cards. Another option is to apply for citizenship, but most foreign-born workers don’t want to give up natural citizenship in order to become U.S. citizens.

Inhibiting Unnecessary Barriers

It is clear that our green card system is necessary to help control the immigration process. We understand the government’s role in preventing a large influx of green card applicants who don’t have the education, training, and skills to support themselves. But the types of workers needed within the semiconductor sector are already highly skilled. There are plenty of jobs here for them.

It is highly unlikely that green card cap issues will be taken up this year. Even next year is a long shot. But should Congress eventually decide to reform the process for obtaining a green card, at least one industry wants highly skilled workers capable of designing and manufacturing computer chips exempt from annual green card caps. They make a compelling case.

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.