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 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 Compliance Department of Labor News & Updates USCIS

Remote Work, the new norm – What are the immigration considerations?

Following the COVID-19 pandemic, remote work has now become a key talent management, recruiting, and retention tool.  Employers must understand the immigration considerations for employees on various work visas.

 

What to know about H-1B Visas and Remote Work

 

The most popular work visa, the H-1B visa, already has regulations in place regarding a change in work location. An H-1B worker’s employment is specific to the worksite listed on the labor condition application (LCA) and requires notice if the location is to change.

 

To comply with U.S. Department of Labor (DOL) regulations, employers must act prior to changing the worksite location.

  • If there are no material changes to the terms of H-1B employment and the new/home worksite falls within the same metropolitan statistical area limits[1] and normal commuting distance of the original worksite noted on the LCA, then the certified LCA or a posting notice must be posted in two conspicuous places at the new/home worksite for 10 days.
  • If the new/home worksite falls outside of the metropolitan statistical limits and normal commuting distance of the original worksite noted on the LCA, there is a DOL Short-Term Placement Rule whereby employers may place H-1B workers at a worksite not listed on the approved LCA for up to 30 workdays in aggregate each calendar year.
  • If there are material changes to employment, or the COVID-19 quarantine lasts longer than 30 workdays and the short-term placement rule is exhausted, then the employer must file a new LCA, i.e., an H-1B amendment petition to cover the new/home worksite.

 

What to know about Other Work Visas and Remote Work

 

Some of the other common work visas include E-1, E-2, L-1, O-1, TN, and F-1 visas. While these types of work visas do not have the same legal requirements relating to prevailing wages and changes in work locations as H-1B visas, there are important considerations for these employees as well.

 

Due to rise of remote work and hybrid work options, the question that arises is what the employer obligations towards foreign nationals on these work visas are. Generally, E-1, E-2, L-1, O-1, TN, and F-1 visas are not location specific, so there is some flexibility regarding physical work location for these employees.

 

Employers are only required to file a new petition for these employees when there is a material change to the job and a change in work location is typically not considered a material change for the above-mentioned visa holders. If the employees are still in the same position and performing the same job duties from home rather than at a worksite, an amended petition is not likely required.

 

However, while no regulation prohibits L-1 employers from adopting a work-from-home policy, they should be aware that USCIS, through its Fraud Detection and National Security (FDNS) unit, may conduct unannounced site visits to investigate activities at the office listed on the L-1 employer’s visa petitions. For employees in L-1 status, USCIS will likely be forgiving of any remote work arrangements based on the number of policies the agency has relaxed to minimize the impact of COVID-19.

 

USCIS also routinely conducts site visits to ensure compliance with the underlying STEM OPT training plan for F-1 students. For employees in F-1 status, Immigration and Customs Enforcement (ICE) is responsible for the F-1 student program.

  • Students participating in STEM OPT do not need to submit an updated Form I-983 to report remote work. Please see https://www.ice.gov/doclib/coronavirus/covid19faq.pdfFAQ for SEVP stakeholders about COVID-19 released by ICE, updated on May 31st, 2022.
  • In March 2020, ICE had announced its intent to relax its standards and encouraged teleworking as an option. Since the 2020 guidance still holds good for the 2022-2023 academic year, it is unlikely that employers will experience any issues with temporary remote work for F-1 students participating in OPT.

 

What to know about the pending Green Card process and Remote Work

 

When a foreign national whose on-going green card process temporarily moves to a remote work location due to COVID-19, the question is what are the impacts on the impending process?

 

When the labor certification has not yet been filed: PERM (“Program Electronic Review Management”) also referred to as “Labor Certification,” program requires employers to attest, under penalty of perjury, that the employer has engaged in a recruitment effort to locate a minimally qualified U.S. worker for the position to be held by the foreign national employee. This recruitment must sufficiently apprise U.S. workers of where the job must be performed. Therefore, if the labor certification has not yet been filed, it is recommended to update the PERM position description to reflect remote work language. This may involve resubmitting a prevailing wage request or re-running recruitment.

 

In all other situations, if the sponsored employee intends to return to the work location listed on the application once normal operations resume, there will be no impact to the process.

 

Since there is no clear guidance on how remote work should be treated in the PERM context, it is important to consult with an immigration attorney to assess any impact of remote work outside commuting distance of the job location listed on your PERM, to your permanent residency process.

 

If an employee changes work locations after the PERM filed stage and does not intend to return, the process will likely need to be restarted for the new work location.

 

We’re Here to Help

 

While immigration rules are constantly being updated to adapt to situations like the COVID-19 pandemic, it is important for employers to comply with immigration requirements and evaluate situations on a case-by-case basis by consulting an immigration attorney.

 

[1] MSAs are geographic entities defined by the U.S. Office of Management and Budget for use by Federal statistical agencies in collecting, tabulating, and publishing Federal statistics. More information on MSAs can be found at the U.S. Census Bureau at http://www.census.gov/population/www/estimates/metroarea.html

Categories News & Updates USCIS

Expansion of Premium Processing for Certain Immigrant Petitions

Today, United States Citizenship and Immigration Services (USCIS) announced an expansion of premium processing to petitioners with certain I-140 Immigrant Petitions for Alien Workers pending in the EB1 and EB2 preference categories.

 

Starting on June 1, 2022, USCIS will accept I-907 requests for premium processing service of EB1C Multinational Executive and Manager I-140 petitions received on or before January 1, 2021.

 

Starting on July 1, 2022, USCIS will accept requests for premium processing service of EB2 National Interest Waiver petitions received on or before June 1, 2021. USCIS will accept I-907 requests for premium processing service of EB1C Multinational Executive and Manager petitions received on or before March 1, 2021.

 

USCIS will not accept new I-140 EB1C and EB2 NIW I-140 petitions filed in premium processing at this time.

 

In today’s announcement, USCIS also noted that it released a new Form I-907 yesterday, dated 05/31/2022, and will accept both the old 09/30/2020 version and the new 05/31/2022 version until June 30, 2022. Starting July 1, 2022, USCIS will require the new version and will reject requests made on the old version.

 

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