Category: Immigration

Department of State Releases June 2013 Visa Bulletin

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EB-2 category for all chargeable areas other than China and India remains current, with considerable forward movement—but continued backlog—in the EB-3 category for a second month in a row.

The U.S. Department of State (DOS) has released its June 2013 Visa Bulletin. The Visa Bulletin sets out per country priority date cutoffs that regulate the flow of adjustment of status (AOS) and consular immigrant visa applications. Foreign nationals may file applications to adjust their status to that of permanent resident or to obtain approval of an immigrant visa at a U.S. embassy or consulate abroad, provided that their priority dates are prior to the respective cutoff dates specified by the DOS.

What Does the June 2013 Visa Bulletin Say?

EB-1: All EB-1 categories remain current.

EB-2: Foreign nationals in the EB-2 category from all countries other than China and India remain current. A cutoff date of July 15, 2008, reflecting minor forward movement, has been imposed for foreign nationals in the EB-2 category from China. A cutoff date of September 1, 2004 remains in effect for foreign nationals in the EB-2 category from India.

EB-3: There is continued backlog in the EB-3 category for all countries, with considerable forward movement for EB-3 individuals chargeable to countries other than India and the Philippines.

The relevant priority date cutoffs for foreign nationals in the EB-3 category are as follows:

China: September 1, 2008 (forward movement of 275 days)

India: January 8, 2003 (forward movement of 17 days)
Mexico: September 1, 2008 (forward movement of 275 days)

Philippines: September 22, 2006 (forward movement of 7 days)

Rest of the World: September 1, 2008 (forward movement of 275 days)

Developments Affecting the EB-2 Employment-Based Category

Mexico, the Philippines, and the Rest of the World

In November 2012, the EB-2 category for individuals chargeable to all countries other than China and India became current. This meant that EB-2 individuals chargeable to countries other than China and India could file an AOS application or have the application approved on or after November 1, 2012. The June Visa Bulletin indicates that the EB-2 category will continue to remain current for these individuals through June 2013.

China

The June Visa Bulletin indicates a cutoff date of July 15, 2008 for EB-2 individuals chargeable to China. This means that EB-2 individuals chargeable to China with a priority date prior to July 15, 2008 may file an AOS application or have the application approved on or after June 1, 2013.

India

Since October 2012, the cutoff date for EB-2 individuals chargeable to India has been September 1, 2004. The June Visa Bulletin indicates no movement of this cutoff date. This means that EB-2 individuals chargeable to India with a priority date prior to September 1, 2004 may file an AOS application or have the application approved through June 2013.

Developments Affecting the EB-3 Employment-Based Category

The May Visa Bulletin announced that the cutoff dates for EB-3 individuals chargeable to most countries had advanced significantly in an attempt to generate demand and fully utilize the annual numerical limits for the category. The June Visa Bulletin indicates that the cutoff dates for EB-3 individuals chargeable to most countries have advanced significantly for a second month in a row. The June Visa Bulletin notes that this forward movement is not indicative of what can be expected in the future, and that rapid forward movement in cutoff dates is often followed by a dramatic increase in demand for numbers within the following three to six months. If such demand materializes, such movement in cutoff dates may slow, or stop, for a period of time.

China

The May Visa Bulletin indicated a cutoff date of December 1, 2007 for EB-3 individuals chargeable to China. The June Visa Bulletin indicates a cutoff date of September 1, 2008 for these individuals, reflecting forward movement of 275 days. This means that EB-3 individuals chargeable to China with a priority date prior to September 1, 2008 may file an AOS application or have the application approved on or after June 1, 2013.

India

Additionally, the May Visa Bulletin indicated a cutoff date of December 22, 2002 for EB-3 individuals chargeable to India. The June Visa Bulletin indicates a cutoff date of January 8, 2003 for these individuals, reflecting forward movement of 17 days. This means that EB-3 individuals chargeable to India with a priority date prior to January 8, 2003 may file an AOS application or have the application approved on or after June 1, 2013.

Rest of the World

The May Visa Bulletin also indicated a cutoff date of December 1, 2007 for EB-3 individuals chargeable to the Rest of the World. The June Visa Bulletin indicates a cutoff date of September 1, 2008 for these individuals, reflecting forward movement of 275 days. This means that individuals chargeable to all countries other than China and India with a priority date prior to September 1, 2008 may file an AOS application or have the application approved on or after June 1, 2013.

How This Affects You

Priority date cutoffs are assessed on a monthly basis by the DOS, based on anticipated demand. Cutoff dates can move forward or backward or remain static. Employers and employees should take the immigrant visa backlogs into account in their long-term planning and take measures to mitigate their effects. To see the June 2013 Visa Bulletin in its entirety, please visit the DOS website here.

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Travel Alert: Students and H-1B Visa Cap

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Now that the stress and anxiety of H-1B cap is over, F-1 students whose H-1B petitions have been selected and are pending (or even approved) are likely wondering if they can travel this summer. It appears that the answer to that question is ‘no’ for F-1 students who are relying on the cap-gap provision. The cap-gap provision automatically extends F-1 status and employment authorization until October 1, 2013 for those F-1 students whose H-1B cap petition was filed before their F-1 status expired.

Current USCIS guidance indicates that F-1 students will lose cap-gap benefits if they travel internationally during the cap-gap period. This means that if an F-1 student travels outside the United States during the cap-gap extension period, he or she will not be able to return to the United States in valid F-1 status and will need to wait until September 2013 to re-enter the United States in H-1B status.

Because an H-1B beneficiary may enter the United States up to 10 days prior to the start date of their approved H-1B visa period, F-1 visa holders who wish to travel may take a trip in September so that they can apply for the H-1B visa at a U.S. consular post abroad and return to the United States on or after September 20. However, it should also be noted that the earliest that the foreign national can start employment in H-1B status is October 1, 2013.

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U.S. Citizenship and Immigration Services (USCIS) EB-5 Engagement with Securities and Exchange Commission

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On April 3, 2013, representatives from the Staff of the Securities and Exchange Commission (SEC) participated with the U.S. Citizenship and Immigration Services (USCIS) in an EB-5 stakeholder conference call opened by Rob Silvers, counsel to the USCIS Director Mayorkas.  Present from the Staff were representatives from four Divisions – Corporation Finance, Trading and Markets, Investment Management and Enforcement.  The call was intended to provide general information to stakeholders.

In general, the Staff members confirmed the application of various securities laws to EB-5 programs.  For many in the EB-5 industry, the views expressed will be unwelcome news, as many have been operating under the assumption that some or all of the securities laws that apply to other investment programs do not apply to EB-5 programs.  For experienced securities lawyers working on EB-5 programs, however, the call broke no new ground but did serve as a confirmation of the advice we have been giving our clients.

Some notes about SEC Staff Interpretations

The Staff members on the call provided the standard disclaimer given in every public talk — that the views expressed represented their own and not necessarily those of the Commission as a whole.  Despite this disclaimer, Staff members are careful in their public speaking, and generally speak only considered views that have been adopted by the senior leadership of the SEC.

When considering Staff interpretations, it is important to note the structure of United States securities laws.  Federal securities laws represent various statutes passed by Congress and amended from time to time.[1] These laws frequently call upon the SEC to adopt formal implementing regulations.  In addition, the SEC Staff routinely provides informal interpretations of the securities laws and the regulations through various means.  In addition, all fifty states have their own securities laws, known as blue sky laws, and except in limited instances of federal preemption, these blue sky laws apply in addition to the federal laws.  Experienced securities lawyers will advise clients based on all of these sources of law.  However, not all of these sources of law have the same legal weight, and in particular, the views of the Staff do not necessarily represent positions that would ultimately prevail in a civil lawsuit brought by the SEC or a private plaintiff, or in a criminal action brought by the Department of Justice.  Nonetheless, the Staff’s views are often persuasive in court, and at a minimum, one can expect substantial legal expenses and regulatory entanglement from operating in a manner contrary to Staff interpretations.

Various speaker notes

The Division of Corporate Finance representative confirmed that federal securities laws apply to transactions in securities.  The SEC noted that the definition of “securities” is very broad, and likely includes most if not all of the investment vehicles used in the EB‑5 program.  The Securities Act of 1933 provides that all offers and sales of securities must be registered with the SEC unless an exemption from registration applies.  EB-5 offerings are frequently conducted in accordance with two exemptions — Regulation D, applicable to private placements of securities, and/or Regulation S, applicable to sales to non-U.S. persons.[2] Each of these exemptions has a number of requirements that must be satisfied.  The representative discussed an important condition of Regulation D – the prohibition on general solicitation (for example, advertising, publicly accessible web sites or conducting seminars where the general public is invited).  The representative noted that the SEC has proposed regulations under the JOBS Act to lift the ban on general solicitation in certain circumstances, but until such regulations are adopted, general solicitation will disqualify an offering from Regulation D.  The representative could not predict when such regulations will be adopted.  The representative noted an important caveat that an exemption from registration requirements does not mean that the offering is exempt from other provisions of the securities laws.  In particular, exempt offerings are subject to the anti-fraud provisions of the securities laws.

The Trading and Market Division representative focused on the laws requiring persons engaged in the business of engaged in the business of effecting transactions in securities for the account of others to register as broker-dealers.  The representative expressed a broad view of the types of conduct that trigger the requirement to register as a broker-dealer.  The representatives stated that in general, if someone is involved in the sale and offering of EB-5 investments and is compensated based on the success of the offering – a “salesman’s interest” in the program – that person is most likely engaging in brokerage activities which trigger the obligation to register as a broker-dealer under the Securities Exchange Act of 1934 (1934 Act).  The representative also provided a very broad view of the jurisdiction of the SEC to enforce broker-dealer requirements for persons soliciting foreign investments.  In the view of the SEC Staff, any activities using United States means of commerce, such as telephone calls made from the U.S., are likely sufficient to invoke U.S. jurisdiction for activities that require broker-dealer registration, regardless of whether the investors are foreign persons.  In response to questions, the Staff representatives noted that:

  • the Staff does not believe that the Supreme Court’s decision in Morrison v. National Australia Bank, Ltd. limiting the extra-territorial application of another section of the 1934 Act is an impediment to their enforcement activities, and
  • the broker-deal registration laws apply equally to solicitation of issuers (as opposed to investors) from within the United States.

The Trading and Market Division representative also discussed the applicability of broker-dealer registration laws to persons employed by Regional Centers to conduct offerings for the account of the Regional Center, and the availability of Rule 3a4-1 as a non-exclusive exemption from registration requirements for such persons.

The Investment Management Division representative addressed applicability of the Investment Advisers Act of 1940 and the Investment Company Act of 1940 to EB-5 programs.  The representative noted that individuals and entities that do not fall into the broker-dealer category will often be required to register under the Investment Advisers Act if they provide investment advice for compensation.  The representative noted that anti-fraud provisions apply to investment advisors, and investment advisers have fiduciary duties to their clients, including the duty to disclose all conflicts of interest.

The representative also stated that Regional Centers which pool investments for third parties and that hold securities likely are investment companies that need to register under the Investment Company Act absent an available exemption.  The representative discussed three exemptions that might be available to Regional Centers:

  • the 3(c)(1) exemption for an investment company with no more than 100 investors that is not making a public offering;
  • the 3(c)(7) exemption for qualified purchases, who must meet a significantly higher net worth standard than accredited investors; and
  • the 3(a)(2) exemption for government securities, which may apply if the Regional Center is sponsored by a governmental agency.

The Division of Enforcement representative discussed the February 2013 enforcement action brought against the Chicago Convention Center project.  The representative focused on the allegations in that case that the defendants made false representations to USCIS as part of a scheme to defraud investors.  He noted that false statements about the ability of a project to create jobs may be fraudulent under the securities laws.  He also noted that anti-fraud provisions apply not only to misstatements but also to omissions of material information.

[1] Examples of amendments include the Sarbanes-Oxley Act of 2002, the Dodd-Frank Wall Street Reform and Consumer Protection Act and the Jumpstart Our Business Startups (JOBS) Act.

[2] The SEC did not speak about state blue sky laws, as those are outside the SEC’s jurisdiction.  However, we note that some states do not have any exemption for programs that are excluded from federal registration requirements under Regulation S.  This is currently a significant issue for programs that do not comply with Regulation D, such as by employing general solicitation in the offer and sale of the securities.

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Automation of U.S. Customs & Border Protection (CBP) Form I-94 and Release of New Immigration Form I-9

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Visitors to the United States May Need to Print Form I-94 Arrival/Departure Records

U.S. Customs & Border Protection (CBP) will begin a new program on April 30, 2013 that will end issuance of paper Form I-94 Arrival/Departure Records for many visitors. Foreign visitors arriving in the United States via air or sea who need to prove their lawful immigration status will be required to access their arrival information online and print their own Form I-94 Arrival/Departure Records (Form I-94). A hard copy of Form I-94 is required to begin employment, apply for a Social Security Number, and obtain a driver’s license or identification document.

CBP indicated that it expects this automation to save the government an estimated $15.5 million per year. Because advance information is transmitted only for air and sea travelers, CBP will continue to issue paper Forms I-94 at land border ports of entry.

CBP will phase in the I-94 automation at air and sea ports of entry in April and May. Foreign visitors will continue to receive a paper I-94 until the automated process arrives at their port of entry. If a visitor does not receive a paper Form I-94 record to verify immigration status or employment authorization, the record number and other admission information will be available here. A CBP officer will stamp the travel document (passport) of each arriving nonimmigrant traveler showing the date of admission, class of admission and the date until which the traveler is admitted. The visitor will not need to print Form I-94 to provide to the government upon departure. A CBP Fact Sheet may be found here.

All U.S. Employers Required to Use New Employment Eligibility Verification Form I-9 as of May 7, 2013

U.S. Citizenship and Immigration Services (USCIS) will require all U.S. employers to use its revised Employment Eligibility Verification Form I-9 as of May 7, 2013. All employers are required to complete an Employment Eligibility Verification Form I-9 (Form I-9) for each new employee hired in the United States. The updated Form (Revision Date 03/08/13) includes new information fields and has been expanded to two pages. USCIS has stated that the new formatting will reduce errors and provide clearer instructions for both employees and employers. The List of Acceptable Documents has not changed.

Employers should NOT require current employees to complete the new Form I-9. The new Form will be used only for new employees or when reverifying the work authorization for current employees. The new employee may complete the Form after acceptance of the job offer, and no later than the first date of hire. The new instructions confirm that an employer has three business days to complete the Form; in the case of reverification, the employer must re-verify the document(s) before the work authorization expires.

The new Form I-9 does NOT change any requirements relating to remote hires. USCIS’s position is that the employer representative who signs the attestation must be the same person who physically examines each original document to determine if it reasonably appears to be genuine and relates to the employee. An employer with remote hires may delegate the verification to a person who serves as an agent of the employer, but that agent must examine the documents and complete Section 2 or Section 3 of the Form I-9. The employer retains the liability for the actions of the agent.

A Spanish language version of the new Form is also available on the USCIS website for use in Puerto Rico only. Spanish-speaking employers and employees in the 50 states, Washington, DC, and other U.S. territories may refer to the Spanish version but must complete the English-language version of the Form.

Employers may receive monetary fines for all substantive and uncorrected technical Form I-9 violations. Penalties for these violations, which include failure to utilize the correct version of the Form I-9, range from $110 to $1,100 per violation.

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New I-9 Form Required by May 8, 2013

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Effective May 8, 2013, employers are required to use an updated version of the I-9 form when verifying employee work authorization. The new I-9s will not be required for previously verified employees, only new hires and employees requiring reverification. Failure to use the updated I-9 form following the implementation date may result in fines ranging from $110 to $1,100 for each incorrect form.

As many employers are aware, I-9 forms must be completed to document the identity and employment authorization of all new hires. Section 1 of the I-9 must be completed by the employee on the first day of employment, and Section 2 completed by the employer within three business days thereof. Section 3 (Reverification and Rehires) need only be completed by the employer when reverifying that an employee is authorized to work or when an employee is rehired within 3 years of the date the I-9 was originally completed.

Revisions to the new I-9 form are threefold: (1) new format, (2) clearer instructions, and (3) additional data fields.

  1. Format: The updated I-9 has a new two-page format, which should be easier for employers to use. The first page of the form relates to employee information and certification, while the second page consists of the employer verification and reverification.
  2. Instructions: Additionally, the updated I-9’s instructions provide a more detailed explanation of the information required of employees and employers to properly complete the form.
  3. Data Fields: Finally, the new I-9 asks for several new pieces of information from employees, including email address, telephone number, and foreign passport information. U.S. Citizenship and Immigration Services’ request for additional employee contact information suggests that the agency may be more inclined to directly contact employees for information moving forward. Employees are not required to provide such information, however. The employee email address and telephone number fields are optional.

The updated I-9 form is available for download here.

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Border Security, Economic Opportunity, and Immigration Modernization Act of 2013

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The first major immigration proposal in several years contains sweeping changes, with the president potentially signing a version by mid-June.

On April 17, a bipartisan group of senators known as the “Gang of Eight” introduced the first major immigration proposal in several years, aimed at comprehensively overhauling the nation’s immigration laws. The group of lawmakers—Senators Charles Schumer (D-N.Y.), John McCain (R-Ariz), Richard Durbin (D-Ill.), Lindsey Graham (R-S.C.), Robert Menendez (D-N.J.), Marco Rubio (R-Fla.), Michael Bennet (D-Colo.), and Jeff Flake (R-Ariz.)—met in numerous closed-door sessions over the last several months to hammer out differences on a wide range of issues, from border security to H-1B program changes. The 844-page proposal, S. 744, can be viewed here.

Hearings on the bill will begin on April 19, and the legislation could be marked up as early as May. Assuming the Senate approves the bill by a sufficiently wide majority, and if there are no major obstacles in the House of Representatives, President Barack Obama could sign a version of comprehensive immigration reform by mid-June. Most of the provisions of the bill would take effect 180 days after the bill is signed by President Obama.

The Senate bill contains sweeping changes that are difficult to distill completely in a summary. Moreover, it is important to bear in mind that any final bill that Congress sends to President Obama for signature may contain major alterations from the Senate proposal. However, some of the major highlights of the Senate bill are provided below.

Border Security and Legalization

  • S. 744 provides for the creation of a registered provisional immigrant (RPI) program to legalize undocumented immigrants who have been physically present in the United States (except for certain absences) since December 31, 2011. Certain individuals who were present in the United States before that date but who were deported for noncriminal reasons may also apply, provided they have family members living in the United States. The spouse and minor children of an applicant for this program may apply, provided they meet the requirements. In order to be eligible, an applicant must not have been convicted of a serious crime, must pass a background check, must pay any assessed tax liability, and must pay application fees and a $500 fine. Initial registration will be valid for six years and subject to renewal. An RPI will receive unrestricted work authorization and travel permission. An employer who knows that an employee has applied for RPI status will not be in violation of the law if the employer continues to employ the applicant while the application is pending.
  • RPIs will be permitted to become lawful permanent residents (LPRs) (green card holders) after 10 years, provided that certain border security milestones are reached and current employment and family immigration backlogs are cleared. The proposal requires the secretary of the U.S. Department of Homeland Security to develop a “Comprehensive Southern Border Security Strategy” and a “Southern Border Fencing Strategy,” and both must be operational before RPIs may become LPRs. RPIs may become citizens after having been LPRs for three years.
  • Undocumented individuals who (i) entered the United States before the age of 16, (ii) completed high school or the equivalent, and (iii) completed at least two years toward a bachelor’s degree or served in the U.S. military for four years may obtain RPI status and apply for permanent residence after five years without penalties or border security triggers. These individuals may also apply for citizenship as soon as they obtain their green cards. This provision is commonly known as the DREAM Act.
  • Undocumented agricultural workers who can demonstrate that they worked a minimum of 100 work days or 575 hours in the two years prior to enactment may be eligible for a “Blue Card,” and undocumented agricultural workers who work for at least 100 days a year for five years or 150 days a year for three years may become LPRs.

Changes to Legal Immigration

  • S. 744 proposes to create two “merit-based” immigration systems. These systems will exist in parallel with the current employment and family-based systems, as amended by the bill. “Merit-based points track one” will set aside 120,000 immigrant or permanent resident visas annually (with a possible increase up to 250,000) for individuals who can demonstrate that they have sufficient points to qualify. Points will be awarded for factors such as education, achievement, employment, family in the United States, and length of residence. Half of the points-based visas will be for high-skilled workers and half will be for lesser-skilled workers. “Merit-based track two” will be a system for allocation of immigrant visas to clear out the backlog of long-pending employment-based and family-based cases filed prior to enactment.
  • S. 744 proposes to eliminate the per country quota limits on employment-based immigrant (green card) visas. This provision will benefit nationals of India and China who are disproportionately affected by these limits due to the large number of immigrants who come to the United States from these two countries. The bill will also increase from 7% to 15% the per country quota limits for family-based immigrants.
  • The diversity visa lottery will be eliminated.
  • Spouses and children of LPRs will be considered to be immediate relatives and will be eligible to immigrate immediately to the United States.
  • The sibling category of family immigration will be phased out in 18 months.
  • A new temporary visa, the V visa, will allow families with approved immigrant petitions to come to the United States temporarily while awaiting final permanent residence processing.
  • Certain categories will be exempt from the annual cap on permanent employment-based immigration. The exempted groups include spouses and children of employment-based visa applicants, foreign nationals with extraordinary ability, outstanding professors and researchers, foreign nationals with doctoral degrees, and certain foreign physicians.
  • Foreign nationals with master’s degrees in science, technology, engineering, or mathematics (STEM) will be exempt from labor certification. Note that the list of STEM degrees in the current proposal does not include the life sciences.
  • The EB-5 program, which grants green cards to certain investors, will be permanently reauthorized. Other special programs for doctors and religious workers will also be reauthorized.

Employment Verification

  • S. 744 provides for the replacement of Form I-9 with a new form, which includes a reduction in the number and types of acceptable identity and employment eligibility documents.
  • A new mandatory electronic Employment Verification System (EVS) based on the current E-Verify system will include an enhanced photo tool that incorporates U.S. Citizenship and Immigration Services, State Department, and enhanced driver’s license photos. Use of the system will be required for all employers, and the system will be phased in over a five-year period, based on the size of the employer:
    • Employers with more than 5,000 employees: two years after regulations are published
    • Employers with more than 500 employees: three years after regulations are published
    • All other employers: no later than four years after regulations are published
    • Critical infrastructure employers: no later than one year after regulations are published
  • S. 744 expands and clarifies employer good-faith defenses for paperwork and de minimis violations. At the same time, the proposal contains significant increases for the following: civil penalties for violations based on knowingly violating the unlawful employment provisions or the employment verification provisions of the act; criminal penalties for egregious violations of the act combined with federal wage and hour or Occupational Safety and Health Administration (OSHA) violations; civil and criminal sanctions for pattern or practice violations combined with federal wage and hour or OSHA violations; and employer sanctions for unlawful discrimination on the basis of national origin or citizenship or for unfair immigration-related employment practices.
  • Most state and local government laws that seek to sanction employers for the employment of unauthorized aliens will be preempted, but states will be permitted to tie licensing authority to the proper use of EVS.
  • The Social Security Administration will be required to develop a new fraud-, tamper-, and identity theft–resistant Social Security card within five years of enactment.

Changes to Temporary Immigration

  • S. 744 will increase the annual cap on new H-1B petitions starting in the 2015 fiscal year from 65,000 to 110,000 and will allow this cap to be increased to a maximum of 180,000 new petitions annually, based on a “high skilled jobs demand index.” The 20,000 cap for holders of advanced degrees from U.S. universities will be replaced with a 25,000 cap for holders of advanced degrees in STEM fields from U.S. universities. The bill also will impose new recruiting and nondisplacement requirements on all H-1B employers.
  • Limits will be placed on the number of H-1B and L-1 workers an employer may employ. If the employer employs 50 or more employees, the percentage of its workforce comprising H-1B workers may not exceed 75% in 2015, 65% in 2016, and 50% after 2016 (“intending immigrants” will not be included in these calculations).
  • H-1B “dependent” employers of H-1B workers (generally, employers whose H-1B workers amount to 15% or more of the total workforce) will have new stringent wage obligations, increased filing fees, additional recruitment obligations, and a prohibition on “outplacement” of H-1B workers.
  • Certain H-4 spouses of H-1B nonimmigrants will be granted employment authorization.
  • “Deference” will be granted to prior approvals of H-1B and L-1 petitions. This means that extension petitions filed by the same petitioners for the same employees should not be denied absent a finding of material error, changed circumstances, or new material information.
  • Terminated H-1B employees will be granted a 60-day grace period from termination, during which they will be considered to be in legal status.
  • Visa revalidation (obtaining a visa renewal) while remaining in the United States will be made available to A, E, G, H, I, L, N, O, P, R, and W nonimmigrants.
  • A new $500 “STEM education and training” fee will be payable for labor certification applications.
  • A prohibition on the “outplacement” of L-1 workers will be introduced.
  • The requirements for approval of an L-1 petition for employment at a “new office” will be significantly heightened.
  • “Dual intent” will be permitted for F-1 students, removing the prohibition on immigrant intent for such students.
  • Portability, or the ability to accept employment with a new employer upon the filing of a nonimmigrant petition, will be made available to O-1 nonimmigrants as it is currently for H-1B nonimmigrants.
  • For most temporary work visa categories, employees in these categories may continue to work for the same employer during the pendency of any extension of stay.
  • S. 744 will extend visa eligibility based on Free Trade Agreements to nationals of Ireland (E-3 visa) and Korea (E-5 visa) and will allow the president to extend eligibility to nationals of other countries upon signing Free Trade Agreements in the future with such countries (E-4 visa). Unlike the E-3 visa classification currently available to nationals of Australia, which is reserved for persons with bachelor’s or higher degrees, the new E-3 visa for Irish nationals will be available to non-degreed individuals. The bill will also provide a special exemption for all E visa applicants who have previously violated U.S. immigration law, making it easier for such persons to obtain a waiver of inadmissibility.
  • A new visa category, W or new worker visa, will be created. This will be available to lesser-skilled foreign workers performing services or labor for a registered employer in a registered position (possibly excluding “computer occupations”) and will be valid for three years, with extensions available in three-year periods. 20,000 W visas will be available initially; this will be increased to 75,000 within four years, with an increase of up to 200,000 being available based on various indices. W workers working in “shortage occupations” will be exempt from the cap. Spouses and children of W nonimmigrants will be granted employment authorization. W-2 and W-3 visa categories will also be created for temporary agricultural workers to replace the H-2A program. These categories will not allow spouses and children to accompany the worker.
  • Special visa categories will be created for Canadian retirees and other retirees who purchase property, but who will not work, in the United States.
  • The INVEST nonimmigrant visa will be created. This will be available to overseas entrepreneurs who plan to start their own companies in the United States and who can demonstrate that at least $100,000 has been invested in the relevant business or that such a business has generated no fewer than three jobs and $250,000 in revenue. The INVEST visa will be valid for three years and may be extended if the entrepreneur can meet certain job creation and revenue benchmarks. An INVEST immigrant visa (green card) will be made available if the entrepreneur can meet certain job creation and revenue benchmarks.

As mentioned above, S. 744 will likely go through many changes as it moves through Congress in the legislative process. We will continue to monitor and inform our clients of new developments on this proposed legislation.

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“Gang of Eight” Senators Introduce Comprehensive Immigration Reform Legislation

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On April 17th, the group of Senators known as the “Gang of Eight” introduced the Border Security, Economic Opportunity, and Immigration Modernization Act of 2013, a comprehensive immigration reform bill, in the U.S. Senate. This bipartisan measure includes significant and wide-ranging changes to the nation’s current immigration system, including a path to citizenship for undocumented immigrants and key structural changes to temporary visas and employment verification requirements, as well as a new visa for low-skilled labor. Below is a summary of the key changes proposed in the new legislation, was also presented by the “Gang of Eight” in a press conference today. Greenberg Traurig will continue to monitor developments surrounding comprehensive immigration reform and provide additional updates about issue-specific proposals as we continue to assess the proposed changes contemplated by this bill.

Legalization for Undocumented Immigrants

The proposed legislation would permit unlawfully present individuals who entered the U.S. on or prior to December 31, 2011 to obtain Registered Provisional Immigrant (RPI) status. Such individuals would need to pay a penalty and back taxes. However, they would be permitted to apply for Legal Permanent Resident (LPR) status after ten years as well as eventual naturalization. Agricultural workers and DREAM Act-eligible applicants would receive the benefit of expedited eligibility for the benefits above.

Family-Based Immigration

The proposed legislation would transfer the FB-2A visa category applicable to the spouses and children of U.S. Legal Permanent Residents to the FB-2A category currently in effect for the immediate relatives of U.S. citizens, eliminate the FB-4 category for the siblings of U.S. citizens, and limit the age of eligibility for the married children of U.S. citizens to 31 years old. The bill would also reinstate the V visa for the spouses and children of Lawful Permanent Residents.

Employment-Based Immigration

The proposed legislation would exempt EB-1 immigrants, individuals with doctoral degrees, physicians who have completed the foreign residency requirements and derivatives from the annual quota. A new EB-6 category for certain classes of entrepreneurs would also be introduced.

H-1B Non-Immigrant Visas

The proposed legislation would increase the current annual quota of 65,000 H-1B visas to 110,000, with a yearly ceiling of 180,000 visas. The bill would increase the number of visas available to holders of advanced degrees from the current 20,000 visas to 25,000, with the caveat that this allotment be allocated toward STEM graduates only. The H-1B application process would also undergo major structural changes, including the introduction of a recruitment requirement for all Labor Condition Applications on a website managed by the U.S. Department of Labor, a non-displacement attestation, and a change to formula for calculating the prevailing wage. Significantly, H-4 dependents would also have access to employment authorization and H-1B holders would enjoy a 60-day grace period to find new sponsorship after termination.

Low and Lesser Skilled Labor

The new legislation aims to create a W visa for lesser-skilled non-agricultural workers (W-1), temporary agricultural workers who perform work under a written contract (W-2), and “at-will” workers who receive a full-time employment offer in an agricultural field (W-3). The new W visa program would supplant the current H-2A agricultural worker program.

Immigration Compliance

The new legislation would make E-Verify, the federal government’s Web-based employment eligibility verification system, mandatory for all employers across the nation. The phase-in period, ranging from 90 days to 4 years, would vary according to the company’s number of employees. In addition, the bill includes language indicating that employers will be presumed to have knowingly hired an unauthorized worker if they do not verify the individual’s work authorization via E-Verify after their mandatory enrollment date. The new bill would also permit employers to utilize a three-day grace period for re-verifying the work authorization of employees with expired work authorization. It also calls for the Social Security Administration (SSA) to create tamper-resistant Social Security Cards to combat document fraud.

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Senate Immigration Bill To Impact Business, Technology and Defense Sectors

Barnes & Thornburg

On April 17, 2013, a bipartisan group of U.S. Senators known as the “Gang of Eight” introduced an immigration bill entitled the “Border Security, Economic Opportunity, and Immigration Modernization Act of 2013.”

The bill includes provisions that substantially increase the number of visas for highly-skilled workers, creates a new visa category for lower-skilled workers, eliminates the backlog for employment-based immigration, and authorizes significant resources to achieve border security.

The bill aims to increase the annual cap of certain employment-based nonimmigrant visas (H-1B) from 65,000 to 110,000 and the number may increase up to 180,000 depending on labor demands and the unemployment rate. In order to ensure that American workers are not displaced by H-1B workers, employers will continue to be required to pay the prevailing wage to H-1B workers and it has been proposed that the prevailing wage system be strengthened. Also in fiscal year 2014, companies will be banned from bringing in additional workers if more than 75 percent of their workers are H-1B or L-1 employees. The bill also provides for dual intent visas for all students who come to the U.S. on a bachelor or advanced degree program.

To ensure the U.S. has sufficient lower-skilled workers, the bill creates a new nonimmigrant category known as the W-Visa. Eligible recipients would be immigrants who come to the U.S. to perform services or labor for a registered employer and for a registered position. Beginning April 1, 2015, unless the Secretary of Homeland Security extends the start date, the maximum cap for four years would be 75,000 visas.

The bill proposes to exempt from the annual numerical limits multinational executives and managers; immigrants of extraordinary ability in the sciences, arts, education, business, or athletics; and doctoral degree holders in the science, technology, engineering and mathematics (STEM) fields.

The bill allocates a significant number of all employment-based visas to individuals holding advanced degrees in STEM fields, in particular. The bill also creates startup visas for foreign entrepreneurs seeking to establish a company in the U.S.

The bill provides $3 billion to implement the Comprehensive Southern Border Security Strategy for achieving and maintaining effective control in all high risk border sectors along the southern border. The funds will be used for acquiring, among other things surveillance and detection capabilities developed or used by the U.S. Department of Defense; fixed, mobile, and agent portable surveillance systems; and unmanned aerial systems and fixed-wing aircraft and necessary and qualified staff equipment to fully utilize such systems.

The bill permits undocumented immigrants, who entered the U.S. before December 31, 2011 and who do not have a serious criminal record, to apply for a Registered Provisional Immigrant (RPI) status. This would permit an individual to work legally in the U.S. for any employer. RPI status would last for a 6-year term that is renewable if the worker has not committed any acts that would render the worker deportable.

The Senate bill is likely to undergo changes as other U.S. Senators and constituents weigh in on this important bill. A House bill is also expected to be unveiled soon. If the bills can pass their respective chambers, then bicameral negotiations would begin in an attempt to pass a final comprehensive immigration reform bill for the President to sign into law.

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Business Groups Applaud Expected Compromise on Comprehensive Immigration Reform

GT Law

The Essential Worker Immigration Coalition (EWIC)*, a coalition of businesses, trade associations, and other industry organizations concerned with the shortage of lesser skilled and unskilled labor, and the TechServe Alliance, an industry group that represents IT & engineering interests before the U.S. Congress and other policymakers, have recently released statements applauding the bipartisan effort to craft a comprehensive immigration reform bill. The Border Security, Economic Opportunity, and Immigration Modernization Act of 2013, which many expect will be formally introduced shortly, was spearheaded by the “Gang of Eight” – namely Senators Rubio, Flake, McCain, Graham, Schumer, Menendez, Bennet and Durbin – and includes proposals for granting legal status to undocumented immigrants, requiring all U.S. employers to use an electronic employment eligibility verification system, creating a new less-skilled worker visa program, and permitting IT staffing firms to retain access to the H-1B visa program.

To view a summary of the provisions included in The Border Security, Economic Opportunity, and Immigration Modernization Act of 2013, please click here. To read EWIC and TechServe Alliance’s statements about the new legislation, respectively, please click here and here.

* Laura Foote Reiff, Co-Chair of Greenberg Traurig’s Business Immigration and Compliance practice, is a co-founder of EWIC.

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U.S. Citizenship and Immigration Services (“USCIS”) Form I-9 Finally Makes Its Appearance

The National Law Review recently published an article, U.S. Citizenship and Immigration Services (“USCIS”) Form I-9 Finally Makes Its Appearance, written by W. Chapman Hopkins of McBrayer, McGinnis, Leslie and Kirkland, PLLC:

McBrayer NEW logo 1-10-13

U.S. Citizenship and Immigration Services (“USCIS”) just announced the long-awaited new Form I-9, Employment Eligibility Verification.  Although the previous form expired on August 31, 2012, employers have continued using the previous form pending the issuance of the revised form.

As before, all U.S. employers must ensure proper completion of Form I-9 for each individual they hire for employment in the United States, including citizens and non-citizens. The form requires input from both the employee and employer (or an authorized representative of the employer). Although the new form is largely substantively the same, several stylistic changes were made in order to make it easier to read and more user-friendly.

For example, the instructions are clearer and there are new distinct data fields for employee information. The entire document consists of nine pages, with only two of these (pages 7 and 8) requiring completion. When providing the form to employees to fill out, however, it is important to provide the entire form so that they may read all instructions.

If your business maintains an electronic I-9 system, you should receive an update from your vendor about implementation. If you use paper versions, you can access the form here. It is a fillable PDF file, but may also be completed by hand. Despite only two pages requiring information, the form in its entirety should be kept on file.

Employers can start using the new form immediately, but must use it after May 7, 2013, as the old form will no longer be accepted after that date. Failure to use the new form could result in fines and penalties. Remember that required government forms are free, so you should never have to pay to be in compliance.

The USCIS provides in-depth detail about Form I-9, however government instruction is not legal advice.

© 2013 by McBrayer, McGinnis, Leslie & Kirkland, PLLC