Summary of Executive Order: Protecting the Nation from Terrorist Attacks by Foreign Nationals

President Trump Terrorist Attacks by Foreign Nationals

President Donald Trump signed a third Executive Order (EO) related to immigration on Jan. 27, 2017.  The stated purpose of this EO is to protect the United States from terrorism stemming from foreign nationals of other countries by limiting entry and visas to certain individuals, titled “Protecting the Nation from Foreign Terrorist Entry into the United States.” In practice, it will block admission to the United States for at least 90 days for nationals of seven countries (Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen) who hold nonimmigrant visas, such as H-1Bs and L-1s, and green card holders.

Suspension of Visa Issuance

The text of this EO calls for the suspension of issuance of visas to nationals of certain countries where concerns of terrorism arise. The Secretary of Homeland Security, consulting with the Secretary of State and the Director of National Intelligence, is tasked with the duty to submit a report to President Trump, in 30 days, regarding the review of information necessary for visa adjudications to verify individual identity and a list of countries that are of concern.

To alleviate the burden of investigation by the agencies, and to ensure that review is thoroughly completed with the resources needed, President Trump proclaims in the Executive Order that any immigrant and nonimmigrant entry into the United States shall be suspended for 90 days by persons who are nationals of Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. This 90 day entry ban excludes those traveling to the United States on diplomatic visas, NATO visas, C-2 visas for travel to the United Nations, and G-1, G-2, and G-4 visas, but includes those entering the United States on L-1, H-1B, and most work visas.

The definition of “national” typically refers to a person born in that country, who may or may not be a citizen of the country. In some cases, it can also refer to the children of such individuals born in other countries to parents who in turn were born in one of the listed countries.  Because of the broad way in which the Order appears to reference “nationals,” in the process of enforcement of the Order, it has been interpreted to include all those fitting the definitions outlined above.

Once the report is received by the Secretary of State regarding the information needed to continue adjudication of immigrant and nonimmigrant visas, information shall be requested of all foreign governments that have not supplied such information within 60 days of notification. After the 60 day period has ended, the Secretary of Homeland Security, consulting the Secretary of State, is required to submit to President Trump a list of countries recommended to be put on a list that would prohibit the entry of foreign nationals from the countries that do not supply the required information. The list of countries would exclude its nationals who travel for the same categories as mentioned above. The Executive Order includes language that gives the Secretary of Homeland Security and the Secretary of State the discretion to add additional countries to this list for President Trump’s review. In addition, visas may also be issued on a case-by-case basis to nationals even if their countries are on the list. Four reports, each submitted within 30 days of the Order to President Trump, are required to document the progress.

Implementing New Standards for Screening Those Seeking Immigrant and Nonimmigrant Visas

The Secretaries of State and Homeland Security, the Director of National Intelligence, and the Director of the FBI are tasked with implanting a program that will develop and change the uniform screening standard and procedure at the U.S. consulate, including the following:

  • Establishing a database of identity documents to ensure they are not used by multiple applicants;
  • Application forms with amended questions aimed at identifying fraudulent answers and malicious intent;
  • Questions to evaluate whether the applicant will be a positively contributing member of society;
  • Process to assess whether the applicant has the intent to commit criminal or terrorist acts in the United States.

Suspensions for the Fiscal Year 2017

President Trump, through this Executive Order, is temporarily suspending the following until further review and notice:

  • Suspension of the U.S. Refugee Admission Program (USRAP) for 120 days. During this period, a review will be conducted to determine and change the adjudications procedure. Refugee applicants already in the process may be admitted upon the initiation and completion of the revised procedures. Refugee claims made by individuals on the basis of religious-based persecution (if the religion is a minority religion in the country of nationality) will be made a priority once USRAP is continued;
  • Suspension of Syrian refugees until further determination;
  • Suspension of refugee entry until admissions are permissible, and at that time, such numbers shall not exceed 50,000 per fiscal year; and
  • Suspension of the visa interview waiver program for anyone seeking a nonimmigrant visa.

The Executive Order includes a provision that would allow the admission of refugees on a case-by-case basis, if it is in the national interest, or when the person is already in transit and denying admission would cause undue hardship. A report must be submitted by the Secretary of State on claims made by individuals on the basis of religious-based persecution within 100 days of the Order, and a second report within 200 days of the Order. The Order also includes a provision to assist state and local jurisdictions with their involvement in the resettlement process.

Other Provisions

The Executive Order includes other provisions related to the entry of foreign nationals into the United States. These include the following:

  • Expedited completion of the biometric entry-exit tracking system. Three reports shall be submitted within the first year of the Order, and a report shall be submitted every 180 days until the system is completed and operational;
  • Review and Change of Visa Validity Reciprocity.  The Secretary of State is required to review all nonimmigrant visa reciprocity agreements, including all categories, duration of time, and fees. If the foreign country does not treat the U.S. national in a reciprocal manner, the Secretary of State will adjust the conditions to match;
  • Reports for Transparency. The Secretary of Homeland Security will publish a report for public viewing, every 180 days, a list of foreign nationals who have been charged, convicted, or removed from the United States based on terrorism-related activity; the number of foreign nationals radicalized after entry into the United States; information regarding the number and types of acts of gender-based violence against women; and any other relevant information.
©2017 Greenberg Traurig, LLP. All rights reserved.

New Trump Executive Order to Suspend Entry of Persons from Certain Countries Expected

Donald Trump Syrian Refugees“Protecting the Nation from Terrorist Attacks by Foreign Nationals” is expected to be the next Executive Order on immigration from the Trump Administration. This Order is intended to “protect the American people from terrorist attacks” and “ensure that those admitted into our country do not bear hostile attitudes toward our country and its founding principles.”

The Order likely will:

  • Block Syrian refugees from entering the United States for an indefinite period until the President lifts the ban while creating safe zones in Syria to house those awaiting resettlement.

  • Bar other refugees for at least 120 days while the U.S. Refugee Admissions Program for 2017 is reviewed and new vetting procedures are in place.

  • Prioritize claims of religious minorities suffering from persecution (essentially prioritizing claims by non-Muslims).

  • Reduce the overall number of refugees admitted in 2017 to 50,000 (below that proposed by the Obama Administration).

  • Suspend entries and the issuance of visas for at least 30 days from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen while the government reviews its screening processes.

  • Suspend the Visa Interview Waiver Program that allows returning nonimmigrants to extend their visas without appearing for in-person interviews at Consulates abroad.

  • Expedite the completion of a biometric entry-exit tracking system to enable better tracking of foreign nationals in the United States and prevent overstays.

  • Collect and make public information on the number of foreign-born individuals who have been charged with terrorism-related offenses, who have been “radicalized” after entry and engaged in terrorism-related acts, and who have committed gender-based violence against women or “honor killings.”

During the contemplated suspension periods, the Order would direct the Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, to determine what information is needed from applicants’ countries of origin to ascertain whether those foreign nationals would pose a threat to the United States. Further, the Order would direct that foreign nationals from countries that refuse to comply would be prohibited from entry until their country of origin does comply.

ARTICLE BY Forrest G. Read IV

Jackson Lewis P.C. © 2017

Department of State Releases February 2017 Visa Bulletin

immigration policy visa bulletin stampNo change in Dates for Filing chart again; scant advancement in Final Action Dates chart.

The US Department of State (DOS) has released its January 2017 Visa Bulletin. The Visa Bulletin sets out per-country priority date cutoffs that regulate immigrant visa availability and the flow of adjustment of status and consular immigrant visa application filings and approvals.

What Does the February 2017 Visa Bulletin Say?

The February 2017 Visa Bulletin includes both a Dates for Filing Visa Applications chart and an Application Final Action Dates chart. The former indicates when intending immigrants may file their applications for adjustment of status or immigrant visas, and the latter indicates when an adjustment of status application or immigrant visa application may be approved and permanent residence granted.

If US Citizenship and Immigration Services (USCIS) determines that there are more immigrant visas available for a fiscal year than there are known applicants for such visas, it will state on its website that applicants may use the Dates for Filing Visa Applications chart. Otherwise, applicants should use the Application Final Action Dates chart to determine when they may file their adjustment of status applications.

It is not yet clear which chart the USCIS will select for February 2017 filings. To be eligible to file an employment-based (EB) adjustment application in February 2017, foreign nationals must have a priority date that is earlier than the date listed below for their preference category and country (changes from the last two months’ Visa Bulletin dates are shown in yellow). In January 2017, USCIS announced that EB applications should be filed using the Application Final Action Dates chart.

Application Final Action Dates

EB

All Charge-

ability

Areas Except

Those Listed

China

(mainland

born)

El Salvador,

Guatemala,

and Honduras

India

Mexico

Philippines

1st

C

C

C

C

C

C

2nd

C

15 NOV12 (was 15OCT12)

C

15APR08

C

C

3rd

01OCT16 (was 01AUG16)

01Oct13 (was 08SEP13)

01OCT16 (was 01AUG16)

22MAR05 (was 15MAR05)

01OCT16 (was 01AUG16)

15OCT11

(was 22JUL11)

Other Workers

01OCT16 (was 01AUG16)

01DEC05

01OCT16 (was 01AUG16)

22MAR05 (was 15MAR05)

01OCT16 (was 01AUG16)

15OCT11 (was 22JUL11)

Dates for Filing Visa Applications

EB

All Charge-

ability

Areas Except

Those Listed

China

(mainland

born)

India

Mexico

Philippines

1st

C

C

C

C

C

2nd

C

01MAR13

22APR09

C

C

3rd

C

01MAY14

01JUL05

C

01SEP13

Other Workers

C

01AUG09

01JUL05

C

01SEP13

How This Affects You

On the Application Final Action Dates chart, the cutoff dates for EB-1 will remain “current” for all chargeable countries, including India and China.

The EB-2 cutoff dates for the worldwide allotment as well as El Salvador, Guatemala, Honduras, Mexico, and the Philippines will also remain “current.” Cutoff dates will remain at April 15, 2008 for EB-2 India and will advance by one month for EB-2 China to November 15, 2012.

The EB-3 cutoff dates for the worldwide allotment as well as El Salvador, Guatemala, Honduras, and Mexico will advance by two months to October 1, 2016. Cutoff dates will advance by three weeks to October 1, 2013 for EB-3 China. The cutoff date for EB-3 India will advance by one week to March 22, 2005. The cutoff date for EB-3 Philippines will advance by nearly three months to October 15, 2011.

The EB-5 China cutoff date will advance by one week to April 15, 2014.

As confirmed by the DOS, the EB-1 allotment should remain current in the coming months.

Read the February 2017 Visa Bulletin.

Copyright © 2017 by Morgan, Lewis & Bockius LLP. All Rights Reserved.

Employment Based Immigration: New Form I-9, Employment Eligibility Verification

Employment Eligibility VerificationOn November 14, 2016, U.S. Citizenship and Immigration Services (USCIS) published a revised version of Form I-9, Employment Eligibility Verification (“Form I-9”). Employers can continue to use the most recent version dated March 8, 2013 until January 22, 2017. By January 22, 2017, employers must use only the new version or face serious fines.

Form I-9 requirements were established in November 1986 when Congress passed the Immigration Reform and Control Act (IRCA). IRCA prohibits employers from hiring people, including U.S. citizens, for employment in the United States without verifying their identity and employment authorization using Form I-9.

Among the changes in the new version, Section 1 asks for “other last names used” rather than “other names used,” and streamlines certification for certain foreign nationals. The revised Form I-9 is easier to complete using a computer. Enhancements include drop-down lists and calendars for filling in dates, on-screen instructions for each blank item, easy access to the full instructions, and an option to clear the form and start over.

Additionally, prompts have been added to ensure the information is entered correctly, and now employers can enter multiple preparers and translators. There is a dedicated area for including all additional information rather than having to add it in the margins. There is also a supplemental page for the preparer/translator. When the employer prints the completed form, a quick response (QR) code is automatically generated, which can be read by most QR readers and may be used to streamline audit processes.

The instructions have been separated from the form, consistent with other USCIS forms, and include specific instructions for completing each field.

© Copyright 2016 Dickinson Wright PLLC

Reminder: USCIS Fee Increase Effective December 23, 2016

USCIS Fee increaseAny employer anticipating submission of an immigration application or petition should consider filing prior to December 23, 2016, to avoid higher USCIS filing fees.

On October 24, 2016, USCIS announced a final rule that adjusts the required fees for most immigration applications and petitions. This will be the first increase in six years and, according to USCIS, the increase is needed in order to recoup higher costs associated with customer service, case processing, fraud detection, and national security. USCIS is almost entirely funded by application and petition fees.

Another reminder: most nonimmigrant extension requests can be submitted up to 180 days prior to the expiration of the foreign national employee’s current status. Employers may want to consider filing these extension requests prior to December 23, 2016, if the individual is eligible.

Examples of the increased fees:

  • from $325 to $460 for Form I-129 (i.e., nonimmigrant petition filings seeking visa status such as H-1B, L-1, TN),

  • from $580 to $700 for Form I-140 (i.e., immigrant petition for an alien worker), and

  • from $1070 to $1,225 (including required biometrics fee) for Form I-485 (i.e., application to register permanent residence or adjust status).

Immigration applications or petitions postmarked or filed on or after December 23, 2016, without the new increased fees will be rejected. To avoid delay because of insufficient filing fees, new applications or petitions should be sent in well in advance of the scheduled fee increase.

Jackson Lewis P.C. © 2016

New Form I-9 Must Be Used By January 22, 2017

USCIS Form i-9This week, the U.S. Citizenship and Immigration Services (USCIS) released a new version of its Form I-9, the Employment Eligibility Verification form. All U.S. employers must begin using the new Form I-9 after January 22, 2017.

Currently, U.S. Immigration and Customs Enforcement conducts over 3,000 I-9 employer audits annually, and immigration enforcement is anticipated to increase due to the Trump presidency. In January, Holland & Hart will host a webinar explaining the changes to the Form I-9 and discussing what immigration reforms employers should expect in a Trump presidency.

Form I-9 Changes

The new version of the Form I-9 includes some clarifications as well as some changes designed to make the form easier to fill out electronically. Completing the Form I-9 electronically will require downloading the latest version of Adobe Reader. Form I-9s completed electronically will still need to be printed and signed by the employee and employer agent by hand. One of the changes is in Section 1 which now asks for “other last names used” rather than “other names used.”

Enhancements for easier completion of the form include drop-down lists and calendars for entering dates, the addition of prompts to help ensure that information is entered properly, on-screen instructions for each field, and easy access to the full instructions. It also includes an option to clear the form and start over. Other changes you’ll find on the new I-9 include:

  • Question regarding whether a preparer or translator was used

  • Space to enter multiple preparers and translators

  • A supplemental page for the preparer/translator

  • Creation of a QR code once the Form I-9 is completed electronically

  • A field to enter additional information such as E-Verify confirmation numbers, termination dates and correction notes, and

  • Separating the full instructions from the form itself.

Reminder of I-9 Process

As you may know, the 1986 Immigration Reform and Control Act (IRCA), prohibits employers from hiring employees, including U.S. citizens, without first verifying their identity and checking that they have proper authorization to work in the United States. The Form I-9 ensures that you have completed this necessary verification for all new hires. USCIS provides the following useful graphic to show the proper timing and process for completing Form I-9s for each newly hired employee:

Labor, Chart

What You Need To Do

You have just over two months to switch to the new Form I-9, so it is best to put procedures in place now to make that switch for all new hires to ensure compliance.

Copyright Holland & Hart LLP 1995-2016.

DHS to Issue New I-9 Form Following Recent Penalties

i-9 violations, visaJust when employers were becoming more comfortable with the complex and lengthy Form I-9, Employment Eligibility Verification that was issued in 2013, the federal government has decided to turn up the heat. First, the Department of Homeland Security (DHS) and the U.S. Department of Justice recently increased the penalties for I-9 violations. Second, DHS has announced that it will soon issue a new version of the Form I-9. These actions bring significant changes for employers.

Under the new fine schedule, employers face penalties such as the following:

  • I-9 paperwork violations:  $216 – $2,156 per Form I-9

  • Knowingly employing unauthorized alien (first offense):  $539 – $4,313 per violation

  • Knowingly employing unauthorized alien (second offense):  $4,313 – $10,781 per violation

  • Knowingly employing unauthorized alien (third or more offenses):  $6,469 – $21,563 per violation

  • E-verify employers – failure to inform DHS of continuing employment following final nonconfirmation:  $751 – $1,502 per violation

The DOJ also increased the penalties for document abuse and discriminatory practices in addressing I-9 issues. Document abuse usually occurs when an employer asks for specific documents or for more or different documents after the employee has already presented qualifying I-9 documents. This violates the I-9 rules, which require that the employer allow the employee to choose which document or documents to present from the I-9 List of Acceptable Documents. The employer then must review what is presented to confirm whether the document or documents meet the verification requirements.

Unfair immigration-related employment practices may occur when an employer treats job applicants and/or new hires differently based upon their immigration status while implementing I-9 procedures or addressing I-9 issues.

Penalties for document abuse and unfair immigration-related employment practices are now as follows:

  • Document abuse:  $178 – $1,782 per violation

  • Unfair immigration-related employment practices (first offense):  $445 –$3,563 per violation

  • Unfair immigration-related employment practices (second offense):  $3,563 – $8,908 per violation

  • Unfair immigration-related employment practices (third or more offenses):  $5,345 – $17,816 per violation

These new fine levels are effective as of August 1, 2016. During I-9 inspections, DHS’s Immigration and Customs Enforcement and DOJ’s Office of Special Counsel will apply these new penalties to violations that occurred after November 2, 2015.  The increased penalties are a reminder of why I-9 compliance is so important.  Employers should review their I-9 procedures and conduct periodic internal audits to best defend against the risk of I-9 penalties.  For additional tips to achieve better I-9 compliance, as well as for updates on the government’s enforcement activities, please see our prior posts.

As to DHS’s announcement of yet another version of the I-9 form, there have been more than 10 different versions in the nearly 30 years during which the I-9 has been required. DHS expects to issue the newest version of the Form I-9 on or before November 22, 2016. DHS will allow employers to continue using the current version (issued in 2013) through January 21, 2017. Employers should use this two-month period to review and gain an understanding of the new Form I-9 before transitioning to it.

© 2016 Foley & Lardner LLP

Labor Department Announces Procedural Changes to H-2B Visa Program

H2-B VisaIn an effort to further streamline the H-2B application process and make it less burdensome for employers, the Department of Labor has announced procedural changes to reduce the amount of documentation to demonstrate “temporary need.”

To get approval to hire H-2B workers, an employer must establish that the need for H-2B workers is temporary in nature, i.e., “limited to one year or less, but in the case of a one-time event could last up to 3 years.’’ The temporary need must be a one-time occurrence, seasonal, peak load, or intermittent. The DOL H-2B regulations envisage a two-part application process: (1) the agency adjudicates whether the employer has a temporary need through the employer registration process and (2) adjudicates the employer’s actual application to hire H-2B workers. However, as the DOL has not implemented the registration requirements of its regulations, the agency is adjudicating the employer’s temporary need during its review of the actual H-2B labor application.

Employers must complete Form ETA-9142B, Section B, which requires a statement on the nature of the temporary need, duration of employment, number of workers sought, and standard of need. The employer must demonstrate the scope and basis of the temporary need to enable the certifying officer (“CO”) to determine whether the job offer meets the statutory and regulatory standards for temporary need. However, without a registration process, many employers have had to submit additional documentation, such as summarized monthly payroll records, monthly invoices, and executed work contracts with the Form ETA-9142B, to demonstrate temporary need. For recurrent users of the H-2B visa program who receive H-2B labor certification for year-to-year, based on their business cycle, the statement and information on temporary need does not change.

DOL has concluded, “The additional documentation submitted by many employers, which is substantially similar from year-to-year for the same employer or a particular industry, creates an unnecessary burden for employers as well as the CO, who must review all documents submitted with each application.”

The agency announced that, effective September 1, 2016,

To reduce paperwork and streamline the adjudication of temporary need, effectively immediately, an employer need not submit additional documentation at the time of filing the Form ETA-9142B to justify its temporary need. It may satisfy this filing requirement more simply by completing Section B “Temporary Need Information,” Field 9 “Statement of Temporary Need” of the Form ETA-9142B. This written statement should clearly explain the nature of the employer’s business or operations, why the job opportunity and number of workers being requested for certification reflect a temporary need, and how the request for the services or labor to be performed meets one of the four DHS regulatory standards of temporary need chosen under Section B, Field 8 of the Form ETA-9142B. Other documentation or evidence demonstrating temporary need is not required to be filed with the H-2B application. Instead, it must be retained by the employer and provided to the Chicago NPC in the event a Notice of Deficiency (NOD) is issued by the CO. The Form ETA-9142B filing continues to include in Appendix B, a declaration, to be signed under penalty of perjury, to confirm the employer’s temporary need under the H-2B visa classification (Appendix B, Section B.1.).

DOL clarified that its certifying officer would review the employer’s statement of temporary need and recent filing history to determine whether “the nature of the employer’s temporary need on the current application meets the standard for temporary need under the regulations. If the job offer has changed or is unclear, or other employer information about the nature of its need requires further explanation, a NOD requesting an additional explanation or supporting documentation will be issued.”

Jackson Lewis P.C. © 2016

Department of State Releases October 2016 Visa Bulletin

October 2016 Visa bulletinEmployment-based China and India First Preference and Worldwide Second Preference cutoff dates become “current” once again.

The US Department of State (DOS) has released its October 2016 Visa Bulletin. The Visa Bulletin sets out per-country priority date cutoffs that regulate immigrant visa availability and the flow of adjustment of status and consular immigrant visa application filings and approvals.

What Does the October 2016 Visa Bulletin Say?

The October 2016 Visa Bulletin includes a Dates for Filing Visa Applications chart and an Application Final Action Dates chart. The former indicates when intending immigrants may file their applications for adjustment of status or immigrant visas, and the latter indicates when an adjustment of status application or immigrant visa application may be approved and permanent residence granted.

If the US Citizenship and Immigration Services (USCIS) determine that there are more immigrant visas available for a fiscal year than there are known applicants for such visas, it will state on its website that applicants may use the Dates for Filing Visa Applications chart. Otherwise, applicants should use the Application Final Action Dates chart to determine when they may file their adjustment of status applications. It is not yet clear which chart the USCIS will select for October 2016 filings. To be eligible to file an employment-based (EB) adjustment application in October 2016, foreign nationals must have a priority date that is earlier than the date listed below for their preference category and country (changes from last month’s Visa Bulletin dates are shown in yellow).

Application Final Action Dates

Application Final Action Days
EB All Charge-
ability 
Areas Except
Those Listed
China
(mainland 
born)
El Salvador,
Guatemala,
and Honduras
India Mexico Philippines
1st C C (was 01JAN10) C C (was 01JAN10) C C
2nd C (was 01FEB14) 15FEB12 (was 01JAN10) C (was 01FEB14) 15JAN07 (was 22FEB05) C (was 01FEB14) C (was 01FEB14)
3rd 01JUN16 (was 01MAY16) 22JAN13 (was 01JAN10) 01JUN16 (was 15MAy16) 15MAR05 (was 15FEB05) 01JUN16 (was 15MAY16) 01DEC10 (was 01JULY10)
Other Workers 01JUN16 (was 15MAY16) 01JAN05 (was 01JAN10) 01JUN16 (was 01MAY16) 01MAR05
(was 15FEB05)
01JUN16 (was 15MAY16) 01DEC10
(was 01JUL10)

Dates for Filing Visa Applications

Application Filing Dates
EB All Charge
ability 
Areas Except
Those Listed
China
(mainland 
born)
India Mexico Philippines
1st C C C C C
2nd C 01MAR13
(was 01JUN13)
22APR09
(was 01JUL09)
C C
3rd C 01MAY14 (was 01MAY15) 01JUL05 C 01SEP13
(was 01JAN13)
Other Workers C 01AUG09 01JUL05 C 01SEP13
(was 01JAN13)

How This Affects You

On the Application Final Action Dates chart, the cutoff dates for EB-1 will once again be “current” for all chargeable countries, including India and China. EB-2 cutoff dates for the worldwide allotment, El Salvador, Guatemala, Honduras, Mexico, and Philippines will be “current” as well. Cutoff dates for EB-2 India and EB-2 China will advance by slightly more than two years (China to February 15, 2012 and India to January 15, 2007).

EB-3 final action cutoff dates for the worldwide allotment, El Salvador, Guatemala, Honduras, and Mexico will advance by one month to June 1, 2016. The final action cutoff date for EB-3 China will advance by more than three years to January 22, 2013. EB-3 India will advance by two weeks to March 1, 2005, and EB-3 Philippines will advance by five months to December 1, 2010. The EB-5 China cutoff date will remain unchanged at February 15, 2014.

The DOS confirmed that the EB-1 allotment should remain current in the coming months, the allotments for China should see modest advancement of three months, and the allotment for India will advance by up to four months. EB-1 allotments will return to “current” status for October. The EB-3 category may see retrogression in the worldwide classification with advancements of up to three months for EB-3 China and up to one week for EB-3 India.

Read the entire October 2016 Visa Bulletin.

ARTICLE BY A. James Vázquez-Azpiri of Morgan, Lewis & Bockius LLP
Copyright © 2016 by Morgan, Lewis & Bockius LLP. All Rights Reserved.

Increased Penalties for Immigration-Related Violations

increased immigration penaltiesThe U.S. Department of Justice has issued a new rule increasing penalties against employers for various immigration-related violations. The new penalty structure applies to civil penalties assessed after August 1, 2016, whose associated violations occurred after November 2, 2015.

Given the significant increase in penalties for immigration-related violations, employers should use particular care when dealing with I-9 form completion and other immigration-related employment processes and practices. We recommend that all employers perform an annual internal I-9 audit and consider periodic I-9 audits by third parties. Please refer to our prior alert as guidance when performing internal I-9 audits.

The penalty structure for first violations is set forth below. Increased penalties for repeat violations are also in effect.

New and Old Penalty Comparison

Type of Violation

Old Penalty Structure

New Penalty Structure

I-9 Verification Paperwork

$110 – $1,110

$216 – $2,156

Unlawful Employment of Unauthorized Workers

$375 – $3,200

$539 – $4,313

Unfair Employment Practices (Includes Discrimination)

$375 – $445

$3,200 – $3,563

Unfair Employment Practices (Document Abuse)

$110 – $1,100

$178 – $1,782

H-1B Violations (Includes Filing Fees Paid by Employee, LCA Public Access File Violations)

Maximum $1,000

Maximum $1,782

H-1B Violations (Includes Discrimination, Willful Failure Pertaining to Wages/Working Conditions)

Maximum $5,000

Maximum $7,251

H-1B Violations (Includes Certain Displacement of U.S. Workers)

Maximum $35,000

Maximum $50,758

H-2B Violations (Includes Failure to Pay Wages, Unlawful Termination)

Maximum $10,000

Maximum $11,940

© MICHAEL BEST & FRIEDRICH LLP