Administration’s Regulatory Agenda Signals Continued Push to Align Visa Programs With “Hire American” Goals

On December 14, 2017, the Office of Information and Regulatory Affairs (OIRA) released the Fall 2017 Unified Agenda of Regulatory and Deregulatory Actions, which is a report on the rulemaking efforts U.S. administrative agencies intend to pursue in the near- and long-term.

If enacted, several items in the agenda have the potential to impact employers’ immigration programs. The relevant proposals include the following items:

  • U. S. Citizenship and Immigration Services (USCIS) is proposing to issue a rule that would eliminate the ability of certain H-4 spouses to obtain employment authorization documents (EADs).
  • USCIS is proposing to issue a rule (originally introduced in 2011) that would establish an electronic registration system for H-1B petitions that are subject to the annual quota (H-1B cap filings). DHS notes that the rule is “intended to allow USCIS to more efficiently manage the intake and lottery process” for these petitions. USCIS notes that this rule may include a provision for a modified selection process, as outlined in the Buy American and Hire American Executive Order, such that “H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.”
  • USCIS is proposing to issue a rule that would revise the definitions of “specialty occupation,” “employment,” and “employer-employee relationship” in the H-1B context. USCIS notes that the purpose of these changes would be to “ensure that H-1B visas are awarded only to individuals who will be working in a job which meets the statutory definition for [H-1B eligibility].” The rule may also contain provisions regarding the payment of appropriate wages to H-1B visa holders.
  • The Department of State is proposing and finalizing several rules that would enact various modifications to the exchange visitor (J-1) program. These changes include arrangements relating to the administration of the J-1 program, provisions to help ensure the safety and well-being of foreign nationals who enter the U.S. as exchange visitors, and efforts to reinforce the cultural exchange and public diplomacy aspects of the program. Changes may also include an expansion of the types of jobs that are prohibited under the summer work travel category.
  • As a “long term action,” U.S. Customs and Border Protection (CBP) is proposing a rule that would clarify the criteria for admission to the United States as a temporary visitor for business (B-1) or pleasure (B-2). CBP also notes that the proposed revisions would “make the criteria [for entry as a temporary visitor] more transparent.”
  • Immigration and Customs Enforcement (ICE) is proposing to issue a rule that would effectuate a comprehensive reform of the practical training options (OPT) available to nonimmigrant students. The proposed provisions include increased oversight over the schools and students participating in the program. The stated purpose is to “improve protections of U.S. workers who may be negatively impacted by employment of nonimmigrant students.”

Employers may want to keep in mind that although the abstracts listed in the agenda seemingly have the potential to impact many areas of the immigration system, it is premature to draw conclusions about the effect of these proposed changes without first seeing the text of the rules themselves—none of which have been released, and some of which may not even be drafted. Additionally, both the agenda itself and the timing for the rules, are aspirational; in prior years, only a select number of proposals have actually turned into rules, and ever fewer have actually followed the stated timelines. As noted previously, for example, a proposed regulation on the electronic registration system for H-1B quota petitions was originally introduced in 2011, but no further action occurred.

Should a proposed rule actually be issued, the agencies must conform to the notice-and-comment protocols of the Administrative Procedure Act. Effectively, this requires the agency to issue a proposed rule that explains the agency’s plan to accomplish a certain goal or address a problem.  This is followed by a comment period, during which time any interested parties can submit comments about the proposed rule. Prior to issuing the final rule, the agency must review all comments and indicate its reasoning for either modifying the rule on account of a comment or explain why the proposed comment does not merit a revision to the rule. Rulemaking is typically a prolonged process that takes a minimum of several months to accomplish. In other words, a proposed rule (which is different than most of the abstracts found in this agenda, which only state the intent to issue a rule) would be the first step in what could be a complex and lengthy rulemaking process that may take many months before promulgation of any final rule.

Finally, employers may want to take note that many of the administration’s prior attempts to enact changes to the immigration system have been subject to lengthy and robust legal challenges. Any such litigation on a proposed rule could increase the timeline for implementation, assuming the rule survives the legal challenge at all.

In summary, although the agenda provides some insight into the goals of the administration on employment-based immigration, the publication of the agenda itself does not alter the status quo.

© 2017, Ogletree, Deakins, Nash, Smoak & Stewart, P.C

This post was written by Jacob D. Cherry of Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

For more information check out the National Law Review’s Immigration page.

DOL Proposes New LCA, H-1B Complaint Form

Following through on its April 3, 2017announcement that it was considering changes to the Labor Condition Application (LCA), the Department of Labor (DOL) published a notice in the Federal Register on August 3, 2017, of its proposed revisions to the ETA 9035 or LCA. A certified LCA must be included with every H-1B petition filed with the U.S. Citizenship and Immigration Services.  DOL’s Employment and Training Administration posted the proposed LCA on its website saying the changes would “better protect American workers, confront fraud, and increase transparency.” DOL said it would accept comments until Oct. 2, 2017.

The revisions in the form reflect the focus of the Trump Administration on increased enforcement of third-party placement and on H-1B dependent employers. The new LCA asks whether the sponsored worker will be “placed with a secondary employer” and, if yes, asks for the legal name of the secondary employer. The new LCA also requires H-1B dependent employers to complete an additional list of questions set out in an appendix if the sponsored worker is exempt from H-1B dependency obligations. In addition, the attestation language in the form is more expansive. For example, the wage attestation in the new LCA specifies that employers may not deduct attorneys’ fees or costs in connection with a visa petition.

At the same time it released its new LCA form, the DOL also posted its revised WH-4, Nonimmigrant Worker Information Form, which is the form individuals may use to submit complaints to DOL about fraud or misconduct in H-1B, H-1B1 or E-3 visa programs. This form is utilized by DOL’s Wage and Hour Division, which is the office that conducts LCA audits.

This post was written byRebecca B. Schechter of  Greenberg Traurig, LLP.
More information on Department of Labor at the National Law Review.

USCIS Releases New Edition of Form I-526 with New Changes and Information Requested From Investors

Form I-526USCIS recently announced the release of a new edition of Form I-526, with the new edition dated 04/10/2017. Starting on June 9, 2017, USCIS will only accept the 04/10/2017 edition.  Until then, investors can use the 12/23/2016 edition. Both editions of Form I-526 are available to download at no cost on the USCIS website.

Investors should be mindful of several substantial changes to the new Form I-526 (04/10/2017 edition). At first glance, the length of the form has noticeably increased: up from 3 pages in the 12/23/16 edition to 13 pages in the new edition. The additional pages include new fields that request information on the investor, dependents, the Regional Center, NCE, and JCE(s). The 04/10/2017 edition includes the following new changes:

  • List of Employment for Last 5 Years: USCIS will now require the investor to certify his/her previous employment history for the last five years, including the employer’s name and address, and the investor’s job title and dates of employment. Therefore, the Form I-526 should accurately reflect the investor’s employment history, and the same should for all employment records, tax returns, and resumes submitted as part of the investor’s source of funds.
  • List of Physical Addresses for Last 5 Years: The investor will need to list all addresses in or out of the United States for the last 5 years.
  • Other Information About the Investor: The new form provides space for the investor to all other names ever used (including aliases, maiden name, and nicknames), place of birth (city/town and state/province), sex, and country of last foreign residence if the investor is a citizen of more than one country or his/her nationality differs from citizenship.
  • Is the Investor Currently in Immigration Proceedings? The investor will be required to certify whether he or she is currently in exclusion, deportation, or removal proceedings before the Department of Homeland Security (DHS) or the Department of Justice (DOJ).
  • Information on Dependent Family Members: This new addition to the Form I-526 requires the name, date of birth, and relationship of the dependent spouse and children applying with the investor. The form also asks the investor to specify whether the dependent will apply for adjustment of status of for a visa abroad.
  • Information about the Investment. A new addition to Form I-526 is that the investor will now need to check off and also describe the source(s) of the investment capital.
  • Information on the Regional Center:  The new form requires information on the Regional Center which prior versions of the form did not request. The new form includes fields for the Regional Center’s name, the Regional Center Identification Number, the receipt number for the approved Regional Center, and the New Commercial Enterprise (NCE) Identification Number.
  • Information on the NCE: The form requests that the investor list the name of any other person or entity that holds a percentage ownership in the NCE, their percentage of ownership, and whether that person has obtained classification or is seeking classification as an alien entrepreneur under INA section 305(b)(5) on the bases of his or her investment in the NCE.
  •  Information on the JCE: There is space to include information on all JCEs involved with the new commercial enterprise, if the JCE(s) differs from the NCE.
  • Interpreter’s Certification: If an interpreter was used by the investor to complete the form, then he or she will need to complete the Interpreter’s Certification section of the form.

Are these new additions to Form I-526 a sign of other changes to come for the EB-5 program?  With the comment period already concluded on the proposed EB-5 Regulations (the deadline to submit comments on the Notice of Proposed Rule Making ended on April 11, 2017 at 11:59pm eastern), it remains to be seen if any of the proposed amendments will be implemented by USCIS. The proposed rules seek to increase the minimum investment amount for high employment areas from $1 million to $1.8 million, and increase the minimum investment amount for targeted employment areas from $500,000 to $1.3 million. On top of this, the Regional Center program is set to expire again on April 28, 2017. It still remains to be seen what changes, if any, will be made by the agency or by Congress in the next few weeks. We will be sure to keep you updated on any developments.

©2017 Greenberg Traurig, LLP. All rights reserved.

USCIS Issues Guidance on H-1B Petition Adjudication, Announces ‘Targeted’ Site Visits

H-1b petitionUSCIS issued a policy memorandum to increase scrutiny of H-1B petitions for computer-related positions and an announcement regarding increased H-1B employer site visits—what will these changes mean for foreign worker visa programs?

In a policy memorandum dated March 31, United States Citizenship and Immigration Services (USCIS) announced that it is formally rescinding the 2000 Immigration and Naturalization Guidance Memo on H-1B Computer Related Positions issued to Nebraska Service Center employees adjudicating H-1B petitions. USCIS considers the 2000 memo to adopt an “obsolete” view of the types of computer-related occupations that qualify as specialty occupations for H-1B purposes (based on the memo’s inaccurate reading of the Occupational Outlook Handbook) and also to not “properly” apply the regulatory criteria that govern qualification for H-1B status. Specifically, the policy memorandum calls attention to the fact that the rescinded memo, while observing that “most” computer programmers hold bachelor’s degrees, did not note in which “specific specialties” such degrees were held. The rescinded memo is also criticized for not mentioning that only “some” computer programmers hold degrees in computer science or information systems, and for inaccurately presenting the fact that some jobs held by computer programmers require only two-year or associate’s degrees. The memo is further criticized for not clarifying that entry-level computer programmers will generally not qualify for H-1B status. Thus, the policy memorandum concludes that an H-1B petitioner cannot rely on the Occupational Outlook Handbook to establish that a computer programmer position is a specialty occupation and that “other evidence” must be provided to establish the specialty occupation.

Several immigration lawyer groups have raised concerns that this new policy memorandum may constitute a first step by the Department of Homeland Security (DHS) to carry out the previously announced intentions of the presidential administration to make foreign worker visa eligibility more restrictive. The new memorandum, by withdrawing a little-known memo, may well make it more difficult for H-1B petitions filed for persons working in computer-related positions to be approved. Its practical effect is that companies in the IT industry seeking H-1B status for their employees will likely have to prove that the positions at issue are not entry-level computer programming positions and that the employees’ degrees and education are specifically related to such positions. Extensive Requests for Evidence (RFEs) seeking such proof are expected to become commonplace, as are denials for failure to offer such proof. As an indication of the scrutiny and limited focus that H-1B petitions for persons working in computer-related positions are now receiving, apparently a number of RFEs questioning the relevance of a degree in electrical engineering to a computer engineer position have been issued recently.

Since the policy memorandum took effect immediately, all H-1B petitions subject to the 2018 fiscal cap will be adjudicated under its provisions, even though no advance notice of its publication was provided.

USCIS Announces ‘More Targeted’ H-1B Site Visits

In a separate announcement issued April 4, USCIS stated that, effective immediately, it will embark upon a “more targeted” campaign of site visits to the worksites where H-1B beneficiaries are employed. Such site visits have been conducted by officers of the USCIS Office of Fraud Detection and National Security since 2009. Under the new initiative, H-1B site visits will focus on three categories of employers:

  • H-1B dependent employers (generally, employers with 51 or more employees with at least 15% of their workforce composed of H-1B beneficiaries)
  • Employers filing petitions for employees who will be assigned to work at the worksites of different companies
  • Employers whose business information cannot be verified through commercially available data (including, primarily, the Validation Instrument for Business Enterprises (VIBE) tool, which is based on a Dun & Bradstreet database

In addition, the announcement notes that “random” site visits will continue to occur.

The practical effect of this announcement may be that site visits to the workplaces of employers that do not fall into one of these categories will diminish, while site visits to employers that do fall into one of these categories will spike sharply and possibly be all but certain. All employers of H-1B beneficiaries are encouraged to adequately prepare for such site visits by ensuring that

  • information contained in H-1B petitions is at all times accurate and up to date, and
  • thorough site visit protocols that govern in detail how such visits will be handled are in place.

The announcement notes that the targeted site visit program is intended to identify employers engaging in fraud and abuse of the H-1B category, not to punish individual H-1B employees. To serve this purpose, USCIS has established an email address, reportH1Babuse@uscis.dhs.gov, that will allow both American and H-1B workers to notify the agency, presumably anonymously, of instances of such fraud and abuse.

What Do These Changes Mean?

On January 24, 2017, a draft executive order titled “Executive Order on Protecting American Jobs and Workers by Strengthening the Integrity of Foreign Worker Visa Programs” was publicly circulated. This draft executive order essentially mandates a top-to-bottom review of all foreign worker visa programs to make certain that such programs are not administered in a way that creates a disadvantage to US workers. Although the order has not been finalized to date, it would appear that the presidential administration has started the process of reviewing certain visa classifications, and it is likely that DHS will issue further guidance on other visa classifications in the near future.

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

You’ve Got Mail … if You’re an Employer: Seventh Circuit Rules Employees Are Not Entitled to Same Visa Revocation Notice

visa revocationOn August 3, 2016, the U. S. Court of Appeals for the Seventh Circuit ruled that only employers are to be provided notice and receive information on decisions on visa petitions issued by United States Citizenship and Immigration Services (USCIS), and reversed in part a lower court ruling that had stopped short of requiring notice to the successor employer. This case has important implications for employers that file employment-based immigration petitions. Musunuru v. Lynch, No. 15-1577 (August 3, 2016).

Srinivasa Musunuru, an Indian national, was employed by Vision Systems Group (VSG) as a programmer analyst in H-1B status. VSG started a green card petition for Musunuru, in which he was assigned a priority date of February 17, 2004, under the employment-based third preference category (the EB-3 category). A priority date controls when an applicant can file an I-485 Adjustment of Status application, the last step in the green card process. Musunuru was eventually able to file his I-485 application in 2007. He subsequently changed employers and was hired by Crescent Solutions in a similar position, which allowed him to “port” or transfer his green card process to his second employer without affecting his original priority date of February 17, 2004, or his pending I-485 application.

Crescent filed another labor certification application and I-140 petition for Musunuru, both of which were approved in the EB-2 category (the employment-based second preference category). USCIS eventually issued an amended I-140 approval notice, reflecting a later priority date of January 28, 2011 (i.e., the date Crescent filed its labor certification application on behalf of Musunuru). This new priority date impacted the ability of his pending green card application to be adjudicated immediately and added several more years of wait time.

Unknown to Musunuru, USCIS had revoked the I-140 petition that VSG had filed on his behalf (and which had established his original priority date of February 2004). USCIS took this action because VSG’s owners pled guilty to fraud in connection with a separate and unrelated H-1B nonimmigrant petition that the company had also filed. As a result, USCIS presumed all visas that VSG filed were fraudulent, including Musunuru’s I-140 petition. USCIS sent notice of its intent to revoke this petition to VSG only. It did not send notice to Musunuru. However, VSG had gone out of business and did not respond to the notice, and Musunuru had already been employed at Crescent for some time so he did not become aware of the revocation.

Both Musunuru and Crescent learned that the underlying VSG I-140 had been revoked only after USCIS sent Crescent a notice of intent to revoke Crescent’s I-140 petition filed on behalf of Musunuru. The notice explained that because of VSG’s fraud charges, Musunuru’s work experience at VSG was not considered legitimate and therefore the approval of Crescent’s I-140 petition, which relied on that work experience, should also be revoked. Crescent and Musunuru, however, were able to overcome these assertions in their response to USCIS, which did not revoke Crescent’s I-140 petition but maintained the January 28, 2011 priority date.

Musunuru filed a lawsuit in district court arguing that USCIS should have sent him the notice about the revocation of VSG’s I-140 petition and an opportunity to respond to that notice. The district court, however, found that Musunuru was not required to receive notice based on existing “porting” regulations, noting that it is the “petitioner” or employer that must receive notice and that, as the employee, Musunuru would not be given an opportunity to challenge the revocation (but the employer is).

In contrast, the circuit court found that that the new employer was the “de facto petitioner” and that Congress, through the port provisions, intended for the successor employer to adopt the ported I-140 petition filed by the beneficiary’s previous employer. Therefore, the court stated USCIS should have given Crescent notice of intent to revoke the approval of the prior employer’s I-140 petition, and Crescent should have been given the opportunity to respond to the change in the priority date. The court, however, agreed with USCIS and the lower court regarding Musunuru’s rights, stating that the employee did not have a right to receive any notice.

The Seventh Circuit recently indicated that it would not rehear its decision (issued in August of 2016) and that Musunuru’s new employer should be given an opportunity to respond to the change in priority dates.

© 2017, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., 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

USCIS Publishes Final Rule for Certain Employment-Based Immigrant and Non-Immigrant VISA Programs

USCIS has published a final rule to modernize and improve several aspects of certain employment-based nonimmigrant and immigrant visa programs and to better enable U.S. employers to hire and retain certain foreign workers who are beneficiaries of approved employment-based immigrant visa petitions and are waiting to become lawful permanent residents. One of the provisions in this rule will automatically extend the employment authorization and validity of Employment Authorization Documents (EADs or Form I-766) for certain individuals who apply on time to renew their EADs in the same employment eligibility category.  In these situations, an employee who has an expired EAD will be able to provide that expired EAD in combination with Form I-797C, Notice of Action, for the renewal application as a List A document for Form I-9. This rule goes into effect on Jan. 17, 2017.

Among other points, DHS is amending its regulations to:

  • Clarify and improve longstanding DHS policies and practices implementing sections of the American Competitiveness in the Twenty-First Century Act and the American Competitiveness and Workforce Improvement Act related to certain foreign workers, which will enhance USCIS’ consistency in adjudication.

  • Better enable U.S. employers to employ and retain high-skilled workers who are beneficiaries of approved employment-based immigrant visa petitions (Form I-140 petitions) while also providing stability and job flexibility to these workers. The rule increases the ability of these workers to further their careers by accepting promotions, changing positions with current employers, changing employers and pursuing other employment opportunities.

  • Improve job portability for certain beneficiaries of approved Form I-140 petitions by maintaining a petition’s validity under certain circumstances despite an employer’s withdrawal of the approved petition or the termination of the employer’s business.

  • Clarify and expand when individuals may keep their priority date when applying for adjustment of status to lawful permanent residence.

  • Allow certain high-skilled individuals in the United States with E-3, H-1B, H-1B1, L-1 or O-1 nonimmigrant status, including any applicable grace period, to apply for employment authorization for a limited period if:

  1. They are the principal beneficiaries of an approved Form I-140 petition,

  2. An immigrant visa is not authorized for issuance for their priority date, and

  3. They can demonstrate compelling circumstances exist that justify DHS issuing an employment authorization document in its discretion.

Such employment authorization may only be renewed in limited circumstances and only in one year increments.

  • Clarify various policies and procedures related to the adjudication of H-1B petitions, including, among other things, providing H-1B status beyond the six year authorized period of admission, determining cap exemptions and counting workers under the H-1B cap, H-1B portability, licensure requirements and protections for whistleblowers.

  • Establish two grace periods of up to 10 days for individuals in the E-1, E-2, E-3, L-1, and TN nonimmigrant classifications to provide a reasonable amount of time for these individuals to prepare to begin employment in the country and to depart the United States or take other actions to extend, change, or otherwise maintain lawful status.

  • Establish a grace period of up to 60 consecutive days during each authorized validity period for certain high-skilled nonimmigrant workers when their employment ends before the end of their authorized validity period, so they may more readily pursue new employment and an extension of their nonimmigrant status.

  • Eliminate the regulatory provision that requires USCIS to adjudicate the Form I-765, Application for Employment Authorization, within 90 days of filing and that authorizes interim EADs in cases where such adjudications are not conducted within the 90-day timeframe.

We will provide information and guidance regarding the automatic extension and other Form I-9 aspects of the rule prior to the effective date.

© 2016 Bracewell LLP

USCIS to Increase Fees for Key Immigration Filings

USCIS Immigration FilingsEffective December 23, 2016, U.S. Citizenship and Immigration Services (“USCIS”) will substantially increase fees for numerous immigration filings. In a final rule published on October 24, 2016, the Department of Homeland Security (“DHS”) announced the new fees, which represent a weighted average increase of 21%. The final rule also establishes a new fee for the Form I-924A EB-5 Annual Certification of Regional Center, creates a three-level fee structure for naturalization applications (Form N-400), and revises regulatory provisions addressing dishonored payments and unpaid biometric services fees.

Background

Following a comprehensive review by USCIS for its fiscal year 2016/2017 biennial period, USCIS determined that its current fees do not recover the full costs associated with processing applications and petitions. DHS published a notice of proposed rulemaking on May 4, 2016, and received 475 comments during the sixty-day comment period. The final rule was published on October 24, 2016, and will go into effect on December 23, 2016, applying to filings submitted to USCIS on or after that date.

Increased Fees

The final rule increases fees by a weighted average of 21% for most immigration benefit requests. All applications or petitions that are mailed, postmarked, or otherwise filed on or after December 23, 2016, must include the new fees in order to be processed by USCIS. In other words the new fees apply on the date of submission by the petitioner or applicant and not on the date of receipt by USCIS.

The following is a list of the fee increases most likely to impact employers. These increases include the fees for Form I-129 (used for H-1B, L-1, O-1, TN, and E-1/E-2 filings), Form I-140 (used for employment-based green card petitions, including those based on PERM labor certification), Form I-485 (for the employee and dependent family members to obtain green cards), and Form I-765 (the work authorization form used by F-1 students as well as pending green card applicants). A more comprehensive list of the new fees can be found on USCIS’s website at https://www.uscis.gov/forms/our-fees.

Immigration Benefit Request

Current Fee ($)

New Fee ($), Effective Dec. 23, 2016

I-129/129CW  Petition for a Nonimmigrant Worker

325

460

I-140  Immigrant Petition for Alien Worker

580

700

I-485  Application to Register Permanent Residence or Adjust Status

985

1,140

I-765  Application for Employment Authorization

380

410

Practical Implications of the New Rule

Petitioners and applicants should take note of the increased fees and revise immigration strategies accordingly. In particular, companies and persons planning to file benefit requests in early 2017 should consider filing before fees increase on December 23, 2016.

Copyright 2016 K & L Gates

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.