Tag: Immigration

Domestic Visa Processing – Application Slots Now Available

On January 29, 2024, the Department of State’s stateside visa pilot renewal program began accepting DS-160s for qualifying individuals seeking to renew their existing H-1B visas while they are in the United States. As discussed in our previous blog post about this new program, the program allows individuals in the United States who are renewing an H-1B visa issued by US consular sections in Canada between 1/1/2020 and 4/1/2023 or one issued by US consular sections in India from 1/2/2021 and 9/30/2023 to do so online through the Department’s CEAC website rather than having to travel outside the US to obtain the visa.

Under the pilot program, each week for five weeks the Department will release 4000 application slots—2000 for applicants whose most recent H-1B visa were issued in Canada, and 2000 for those whose most recent H-1B visas were issued in India. If all designated slots are filled before the next week’s allotment becomes available, the Department will lock the portal until the next group is released. Applications can be submitted online at https://travel.state.gov/content/travel/en/us-visas/employment/domestic-renewal.html, where you can also find program FAQs published by the Department of State.

The first group of application slots was released on Monday, January 29. Later groups will be released on February 5, February 12, February 19, and February 26. The program will end when all available slots are filled or on April 1, 2024, whichever happens first.

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Copyright © 2024, Hunton Andrews Kurth LLP. All Rights Reserved.
For more on Domestic Visas, visit the NLR Immigration section.

January 2024 Update: US Department of State Announces Pilot Program for Stateside H-1B Visa Renewals

On January 18, 2024, the Department of State published an online tool that H-1B visa applicants can use to determine if they are eligible for the stateside visa renewal pilot program. Over time, it is likely that the Department of State will expand eligibility. We expect the online tool for the program described below to be updated as the program expands.

Domestic Visa Renewal Eligibility Assessment

In December 2023, the US Department of State announced a pilot program for stateside renewal of certain visas. For the first time in nearly two decades, a limited number of H-1B nonimmigrants will be able to renew their visas from within the United States.

All nonimmigrant visas are currently issued by US Embassy and Consular officials outside of the United States. Beginning on January 29, 2024, the State Department will begin allowing certain nonimmigrants to renew their expired and expiring visas inside the United States. Applicants meeting the requirements of the program may submit an online application between January 29 and April 1, 2024. This is welcome news as visa processing at Consulates and Embassies abroad has become increasingly unpredictable and fraught with delays.

This is a pilot program that will be available on a very limited basis initially. However, the State Department has indicated a desire to expand the program after the pilot allows for the resolution of any operational issues.

This pilot program will allow for limited renewal of nonimmigrant visas in the United States. Eligibility will be limited to applicants who(se):

  1. are renewing H-1B visas (H-4 and other visa classifications are not part of the pilot program);
  2. prior H-1B visa being renewed was issued by either:
  3. Mission Canada (i.e., US Consular posts located in Canada) with an issuance date from January 1, 2020 through April 1, 2023 OR
  4. Mission India (i.e., US Consular posts located in India) with an issuance date of February 1, 2021 through September 30, 2021;
  5. are nationals of countries which are not subject to reciprocity fees for H-1B visas;
  6. are eligible for a waiver of the usual in-person interview requirement;
  7. have submitted ten fingerprints in connection with a previous visa application;
  8. prior H-1B visa does not contain a “clearance received” notation;
  9. does not have an ineligibility basis that requires a waiver prior to visa issuance;
  10. 10.has an approved and valid H-1B petition;
  11. 11.was most recently admitted to the US in H-1B status;
  12. 12.is currently maintaining H-1B status in the US;
  13. 13.period of authorized H-1B admission has not expired; and
  14. 14.intends to reenter the US in H-1B status after temporary travel abroad.

Beginning January 29, 2024, eligible applicants may submit an application online through the State Department website. The State Department will allow approximately 4,000 applications each week, with 2,000 for applicants whose prior H-1B visas were issued by Mission Canada, and another 2,000 for applicants whose prior H-1B visas were issued by Mission India. Once the application limit has been reached, the application portal will be locked until the next allotment of application slots are released based on the schedule. On each Monday in February, the website will reopen for new submissions. The application period for the program will end the earlier of when all available application slots have been filled, or on April 1, 2024.

Applicants will be asked to complete an online application including:

  • a self-assessment of eligibility for the pilot program;
  • a Form DS-160 online visa application;
  • payment of the $205 non-refundable Machine-Readable Visa (MRV) fee; and
  • required documents, including:
    • a properly completed, electronically filed Form DS-160;
    • one photograph meeting Department of State specifications;
    • original passport, valid for at least 6 months beyond the visa application date;
    • original or copy of current Form I-797 Notice of Action (H-1B approval notice);
    • original or copy of the applicant’s Form I-94 (available online here); and
    • fee payment confirmation.

Processing time is expected to be approximately 6 to 8 weeks, with visaed passports returned to applicants via US postal service or courier. All documents must be submitted by April 15, 2024. The State Department aims to complete processing of all applications under this pilot program by the program’s conclusion date of May 1, 2024.

Prior to 2004, the State Department ran a similar program, allowing for H, L, O, I, E, and P visas to be renewed by mail through a State Department office in Washington, DC. Visa revalidation in the US was terminated in July 2004 due to the State Department’s inability to collect biometric data in the US as required by post-9/11 security enhancements.

The return of this program, and the ability of participants to secure a needed visa before departing the United States, will help alleviate the uncertainty associated with foreign travel for those who must secure new visas while abroad in order to return to the United States.

©1994-2024 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.
For more news on Stateside H-1B Visa Renewals, visit the NLR Immigration section.

Another Government Shutdown Looms: What It Means For Employers With Foreign National Employees

Only two days before the deadline in November 2023, the U.S. Senate passed a temporary budget to fund federal agencies through Jan. 19, 2024, marking the first time since 2012 that Congress entered a holiday season without the threat of a December shutdown. Now, following the start of a new year, lawmakers have less than two weeks to advance a recent spending agreement and reach a more permanent solution.

The November 2023 vote marked the second time Congress extended the budget for fiscal year 2023, which expired in September, to avert a government shutdown.

IMPACT ON IMMIGRATION

For employers, immigration funding and legislation are top of mind whenever a shutdown looms. Each time the government is on the verge of a shutdown, employers must identify cases that are affected and attempt to locate an avenue to mitigate the impact of the potential shutdown. This increases costs and reduces efficiency, among other complex consequences.

During the 2019 government shutdown, the U.S. Department of Justice suspended 60,000 hearings for non-detained migrants, causing significant delays in the immigration system. Rescheduling an appearance on the immigration docket can often take years, leaving migrants and their families to wait in uncertainty in the interim.

On the employment-based side of immigration, a mad dash ensues each time a government shutdown becomes imminent because applications made to the Department of Labor that are critical steps in both nonimmigrant and immigrant visa categories come to a halt. With already lengthy processing times, foreign national beneficiaries and their employers cannot afford to wait 90 days, as we saw in 2019, for government processing to resume.

Employers and their legal teams would be wise to shift their focus during these times to pushing forward the submission of as many Labor Condition Applications (LCAs), permanent labor certification applications (PERM), and prevailing wage determination requests as possible. A missed window of opportunity can result in years-long delays, or worse, the loss of work authorization, for critical foreign national talent in the U.S.

HOW TO PREPARE

With deadline déjà vu, now is the time for employers to prepare. Employers should consider the following three actions:

1) Submit Labor Condition Applications for all foreign nationals with a nonimmigrant visa (NIV) status expiring within the next six months, should the relevant nonimmigrant visa category require an application, such as for H-1B, H-1B1, and E-3 visa classifications

2) Submit Prevailing Wage Requests for all initiated PERM processes

3) File any PERM applications of individuals for whom the requisite recruitment steps and waiting periods have been completed

© 2023 BARNES & THORNBURG LLP
For more on Foreign National Employees, visit the NLR Labor & Employment section.

U.S. Employment-Based Immigration Year in Review: Many Changes Made, Many Changes Promised

Looking back at 2023, many of the employment-based immigration changes proposed and implemented by various U.S. government agencies focused on increasing efficiency and alleviating strain on our immigration system. There was increased focus on creating consistency in adjudications of benefits, new programs aided in the reduction of processing times across all U.S. government agencies and new programs focused on attracting and retaining talent in STEM, artificial intelligence, and emerging technology fields.

Quick Hits

  • In 2023, we saw program-level changes to the content and format of Form ETA-9089 and Form I-9 employment verification procedure for employers. Significant changes to H-1B and F-1 programing as well as for domestic visa processing are proposed and expected in 2024.
  • Combined policy and processing changes that several agencies implemented confirm prioritization of STEM fields and labor market competitiveness. These changes include designation of additional STEM fields, an executive order on artificial intelligence, updated extraordinary ability and outstanding researcher guidance specific to STEM occupations, and expansion of premium processing for OPT/STEM applicants and national interest waiver filings.
  • USCIS significantly updated processing for certain dependents and EAD holders including a return to bundled dependent adjudication, elimination of biometrics fees, decreased automatic extensions for EAD renewals, increased validity periods, and extension of premium processing.

Program Changes to Streamline and Increase Efficiency

U.S. government agencies have prioritized the modernization of the U.S. immigration framework to enhance efficiency, user experience, and overall program effectiveness.

PERMANENT LABOR CERTIFICATION PROCESS AND NEW ETA-9089

U.S. employers rely heavily on the U.S. Department of Labor’s (DOL) permanent labor certification process to sponsor foreign workers for U.S. permanent residency. The online platform and application form transitioned significantly this year. Effective June 1, 2023, a new version of the Form ETA-9089 became effective via the Foreign Labor Application Gateway (FLAG) platform. The new Form ETA-9089 and the transition to the FLAG platform aim to streamline the permanent labor certification process and increase efficiency with the goal of improving lengthy DOL processing times.

FORM I-9 AND VIRTUAL VERIFICATION

In the United States, employers are required to verify an employee’s identity and work authorization at the time of hire and complete a Form I-9. A new version of Form I-9 became effective on August 1, 2023. At the same time, the U.S. Department of Homeland Security (DHS) introduced a new rule allowing certain qualifying employers to complete the Form I-9 process through an alternative virtual procedure. The changes to the I-9 program aim to increase employer compliance given the abundance of post-pandemic dispersed and remote workforces.

PROPOSED RULE TO MODERNIZE H-1B PROGRAM

On October 23, 2023, DHS published a notice of proposed rulemaking (NPRM) to amend various regulatory sections to update the H-1B program. The proposed changes involve setting policies for providing deference to previously approved cases without change, clarifying the requirements for meeting H-1B standards, allowing certain F-1 students to remain in the United States for a longer period of time by extending cap-gap extensions, ensuring the integrity of the H-1B lottery, and safeguarding against H-1B quota misuse through improved verification procedures. Following the close of the public comment period on December 22, 2023, DHS will likely finalize the various updates through one or more final rules. It is possible the H-1B cap provisions may be finalized in time for the fiscal year (FY) 2025 H-1B cap season.

STATESIDE VISA RENEWAL PILOT PROGRAM

The Federal Register notice from State Department was published on December 21, 2023 confirming the roll out of a stateside visa renewal pilot program. The State Department will begin with H-1B visa holders and will allow 20,000 participants to renew their visa stamps in the United States, without traveling overseas to apply at a U.S. embassy or consulate. This program will run from January 29, 2024 to April 1, 2024. A list of specific criteria is outlined in our recent article, “Stateside Visa Renewal Pilot Program Set to Begin in January 2024.”

PREMIUM PROCESSING PROGRAM

Throughout the year, we have seen substantial expansion of the premium processing program. In January 2023, premium processing became available for I-140 immigrant petition filings for multinational managers or executives and those requesting a national interest waiver. On March 6, 2023, USCIS expanded the premium processing program to include I-765 Applications for Employment Authorization filings for F-1 students requesting pre-completion Optional Practical Training (OPT), post-completion OPT, and STEM OPT extensions. On June 12, 2023, USCIS began phasing in premium processing for change of status filings for F-1, M-1, and J-1 students and their dependents. The expansion of this program demonstrates an overall USCIS commitment to reduce processing times for U.S. immigration filings.

Prioritizing STEM Fields

The U.S. government has emphasized the importance of STEM fields and maintaining U.S. global competitiveness through various initiatives and policy updates.

DESIGNATION OF NEW STEM FIELDS

On July 12, 2023, DHS added eight new fields, including Landscape Architecture, Mechatronics, Robotics, and Geospatial Intelligence, to the STEM Designated Degree Program List. F-1 students completing academic programs in the newly designated fields will be eligible to apply for an additional two years of occupational practical training (OPT) to gain practical work experience in the United States.

EXECUTIVE ORDER ON AI

President Biden signed Executive Order 14110 on October 30, 2023, focused on maintaining U.S. leadership in artificial intelligence (AI) and emerging technologies. The executive order directs the various U.S. government agencies to set policies to globally attract and retain talented individuals in these fields. It instructs the State Department and DHS to streamline visa processing for individuals coming to the United States to work or study in these areas and also encourages DHS to streamline the green card process. The executive order urges DOL to address shortages of workers in STEM fields and AI.

EVIDENTIARY GUIDANCE FOR EB-1 EXTRAORDINARY ABILITY AND OUTSTANDING PROFESSOR AND RESEARCHER IMMIGRANT PETITIONS

On September 12, 2023, USCIS updated its policy guidance on Extraordinary Ability and Outstanding Professor and Researcher classifications. The revisions include new examples of evidence, with a notable emphasis on STEM occupations, reflecting a commitment to facilitating immigration pathways for individuals with expertise in science, technology, engineering, and mathematics.

Processing Changes for Dependent Filings and EAD Applications

CONCURRENT ADJUDICATION

The settlement in Edakunni v. Mayorkas brought significant modifications to USCIS adjudication policies for H-4 and L-2 dependents and associated EADs. Effective January 25, 2023, USCIS reverted to bundled adjudication of principal and dependent applications when concurrently and properly filed with the principal H or L applicant. Reviewing these applications together, whether in regular or premium processing, speeds up the approval process for H-4, L-2, and EAD applications, making things more efficient and predictable for families. In alignment with this change, USCIS eliminated the $85 biometric services fee and attendance at a biometrics services appointment for Form I-539 applications, extending relief to various categories where the required biometrics process delayed USCIS adjudication and its final decision on the requested benefit.

AUTOMATIC EXTENSION OF EADS

On October 27, 2023, USCIS stopped automatically extending certain work permits (EADs) for 540 days and went back to the pre-COVID-19 allotment of 180 days. This affects people renewing their work permits as of October 27, 2023. However, those renewals filed prior to this date, or those that had already received a 540-day extension, will continue to be honored.

VALIDITY PERIOD FOR EADS AND ADVANCE PAROLES

On September 27, 2023, USCIS extended the validity period for initial and renewal EADs to five years for certain foreign nationals including those with pending adjustment of status applications under Immigration and Nationality Act (INA) 245. On December 8, 2023, USCIS updated the Retrogression section of its Employment-Based Adjustment of Status FAQs confirming that USCIS will also approve Advance Parole (AP) applications for a five-year period. These changes aim to reduce strain on the immigration system by reducing the frequency of renewal filings and also provide relief and consistency for those impacted by immigrant visa backlogs.

© 2023, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.
For more news on US Employment-Based Immigration Laws, visit the NLR Labor & Employment section.

Business Immigration Could Be Impacted if Congress Fails to Fund Government Through FY 2024

On September 30, 2023, President Joe Biden signed into law stopgap funding legislation that temporarily averted a government shutdown. The legislation, which passed the U.S. Congress with bipartisan support and extended funding for the federal government for a period of forty-five days, will keep the government running through November 17, 2023.

Quick Hits

  • A recently enacted stopgap funding measure has allowed the government to continue operations, including immigration services, through November 17, 2023.
  • If Congress cannot reach an agreement to fund the federal government before November 17, 2023, a partial government shutdown may occur.
  • A government shutdown would disrupt federal agencies that are responsible for immigration-related services and benefits. U.S. Citizenship and Immigration Services (USCIS) is a fee-generating agency; during past government shutdowns, USCIS offices generally continued to operate.
  • The U.S. Department of Labor (DOL) is not fee generating, and, consequently, the department’s operations were significantly hindered during previous government shutdowns. As a result, any immigration petition that requires a DOL pre-filing will likely be impacted.

The most significant business immigration impacts of a government shutdown on U.S. employers may include:

  • the DOL taking the Foreign Labor Application Gateway (FLAG) system offline, resulting in a suspension of new labor condition applications (LCAs) that are required for H-1B, H-1B1, and E-3 nonimmigrant petitions;
    • a DOL suspension of PERM labor certifications and prevailing wage determinations (PWD), which would further extend already lengthy PERM and PWD processing times; and
    • possible visa processing delays at U.S. consulates. While the U.S. Department of State is partially funded by visa application fees, it is possible that nonemergency services could be suspended during a prolonged shutdown.

Next Steps

While Congress temporarily averted a government shutdown, the members of the U.S. House of Representatives and the U.S. Senate have not reached an agreement on an appropriations bill to fund the federal government through the entirety of fiscal year (FY) 2024. The risk of a government shutdown remains if Congress is not able to resolve spending and policy disagreements prior to November 17, 2023.

© 2023, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.
Article by  Katie W. Desmond of Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
For more articles on business immigration, visit the NLR Immigration section.

Health Care Immigration: Alleviating the U.S. Nursing Shortage

The nursing shortage has been a persistent problem in the United States for decades, with experts predicting it will only worsen in the coming years. Many factors contribute to the nursing shortage, including an aging population, the retirement of experienced nurses, and an increasing demand for healthcare services. One potential solution to the shortage is immigration law, which can help bring in qualified nurses from other countries to work in the United States.

The nursing shortage is a complex issue that affects the entire healthcare system. Nurses play a crucial role in providing high-quality care to patients, and their absence can have serious consequences for patient outcomes. According to McKinsey, the United States may have a gap of between 200,000 to 450,000 nurses available for direct patient care by 2025. This shortage is not limited to registered nurses; there is also a shortage of licensed practical nurses, nurse practitioners, and other healthcare professionals.

One way to address the nursing shortage is to attract qualified nurses from other countries. The United States has a long history of welcoming immigrants from all over the world, including healthcare professionals.

Employment Immigration Sponsorship to Meet U.S. Nursing Demands

Several immigration options are available for nurses who wish to work in the United States. The most common options are the H-1B visa, the TN visa, and the EB-3 visa:

  • The H-1B visa is a non-immigrant visa that allows employers to temporarily hire foreign workers in specialty occupations. Registered nurses qualify as workers in a specialty occupation, so they are eligible. The H-1B visa is valid for up to three years and can be extended for an additional three years. However, there is a cap on the number of H-1B visas issued each year and the competition for these visas is often high.
  • The TN visa is a non-immigrant visa available to Canadian and Mexican citizens under the North American Free Trade Agreement (NAFTA). Nurses who are citizens of Canada or Mexico and have the necessary qualifications can apply for the TN visa to work in the United States. The visa is valid for up to three years and can be renewed indefinitely.
  • The EB-3 visa is an immigrant visa available to foreign workers in skilled or unskilled positions. Nurses qualify as skilled workers and can apply for the EB-3 visa. The visa requires an employer to sponsor the nurse, who must have a permanent job offer in the United States. The EB-3 visa is subject to a lengthy application process and may take several years to obtain.

In addition to these options, certain state-specific programs allow foreign nurses to work in those states. For example, the Health Professional Shortage Area (HPSA) program allows foreign nurses to work in areas with a shortage of healthcare professionals. The Conrad State 30 program allows foreign nurses to work in certain states for up to three years if they agree to work in underserved areas.

It is important to note that each immigration option has its own set of requirements and limitations. Nurses who are interested in working in the United States and health care providers seeking foreign talent must consult with an experienced immigration attorney to determine the best option for their specific situation.

Overall, immigration law provides options for foreign nurses who wish to work in the United States. As they take advantage of these options, the nursing shortage in the United States can be alleviated, and patients can receive the high-quality care they need and deserve.

Immigration Policy Updates are Critical to Close the Nursing Shortage Gap

While there exist many employment immigration visas that help alleviate the pressure of the ongoing nursing shortage on the health care industry, immigration laws, regulations, and administrative policies can make it difficult for foreign nurses to work in the United States. Strategic updates to these laws, regulations, and administrative policies are critical to permit foreign nurses to enter the nursing labor market.

One change is to streamline the visa process for foreign nurses. Currently, the process of obtaining a visa to work in the United States can be time-consuming and complicated. Many foreign nurses face significant barriers such as language proficiency exams, educational requirements, and visa quotas. By simplifying the visa process and reducing these barriers, the United States could recruit more foreign nurses to work here.

Another change is to provide incentives for foreign nurses to come to the United States. For example, the government could offer financial assistance to help them cover the cost of their relocation and provide support services to help them adjust to their new home. Additionally, employers could offer signing bonuses, tuition reimbursement, and other benefits to attract foreign nurses.

Finally, immigration agencies can develop partnerships with other countries to increase the number of nurses trained abroad. Many countries, particularly developing nations, have large numbers of qualified nurses who are unable to find work in their home countries. By partnering with these countries, the United States could help train more nurses and provide them with opportunities to work in the United States.

The nursing shortage is a serious problem that requires innovative solutions. Immigration law already plays a crucial role in addressing the shortage. This role, however, can grow through streamlining the visa process, providing incentives for foreign nurses to come to the United States, and creating partnerships with other countries.

Article By Raymond G. Lahoud of Norris McLaughlin P.A.

For more immigration legal news, click here to visit the National Law Review.

©2023 Norris McLaughlin P.A., All Rights Reserved

As White House Loses House Majority, what is Next for H-1B Visa Program?

The H-1B is a popular and highly-sought-after visa category for skilled foreign workers seeking to work in the United States. It has been the subject of much debate and controversy over the years, and recent changes in the political landscape have added new uncertainties and challenges to the H-1B visa process. This blog post explores the impact of the Biden administration on changes to the H-1B visa, as well as the role of the new Republican majority in the House of Representatives in shaping the future of the H-1B visa program.

What is the H-1B Visa?

The H-1B is a temporary, nonimmigrant visa category that allows employers to petition on behalf of highly-educated foreign professionals who work in specialty occupations that require at least a bachelor’s degree. These jobs are generally in the fields of science, technology, engineering, and mathematics (“STEM”), enhancing American competitiveness in the global economy. In fact, in an effort to be even more competitive, the Biden administration recently expanded eligible fields of study that qualify under the program, as described in greater detail on this blog.

The H-1B visa allows U.S. employers to fill critically important jobs in the United States with foreign workers.  While many critics of the H-1B argue that it potentially limits job opportunities for U.S. workers, many others suggest that H-1B workers offer critical support to the U.S. economy. In fact, according to the American Immigration Counsel, H-1B recipients provided critical assistance during the COVID-19 pandemic, with many doctors, scientists, and nurses present in the U.S. on the H-1B visa, including individuals who assisted with the development of vaccines.

Biden Administration and its Relationship with Immigration Reform

One of the key priorities of the Biden administration has been to modernize and improve the U.S. immigration system, including the H-1B visa program. To this end, the Biden administration has taken steps to make the H-1B visa process more accessible and efficient for skilled foreign workers, including increasing the number of visas available, increasing transparency and consistency in the lottery process, and streamlining the application process.

According to a recent article by Forbes, Senator Richard Durbin (D-IL) and Senator Alex Padilla (D-CA) are expected to return as Senate Judiciary Committee chair and immigration subcommittee chair, respectively. It is expected that Sen. Chuck Grassley (R-IA) will no longer be ranking member on the Senate Judiciary; Sen. Lindsey Graham (R-SC) likely will hold that position. Just last year, Senator Grassley blocked an exemption from green card limits for certain foreign nationals with PhDs in STEM fields – a move that frustrated employers and universities alike.

Although Democrats hold the majority in the Senate, the House now features a Republican majority, which may complicate immigration reform efforts on Capitol Hill.

Republicans on Capitol Hill Seek to Counter Democratic Efforts on Immigration

The new Republican majority in the House of Representatives may pose a challenge to the Biden administration’s efforts to reform the H-1B visa program. Republicans have traditionally been more critical program and have pushed for reforms that would restrict the number of visas available and make it more difficult for foreign workers to come to the United States.

Sen. Tom Cotton (R-AR) has been a vocal critic of the H-1B program, stating that it is used to hire cheap foreign labor at the expense of American workers. Similarly, Sen. Grassley has expressed concerns about the impact of the program on American workers, claiming that while the visa was intended to help American businesses recruit the best and brightest talent from around the world, it’s too often been used to import cheaper foreign labor and displace American workers.

Given these differing perspectives, the future of the H-1B visa program will likely continue to be a source of political debate and controversy in the United States. However, it is clear that both sides of the political aisle agree that it needs to be reformed in some way, whether to make it more accessible and efficient for skilled foreign workers, or to better protect the interests of American workers.

Currently, the H-1B process in the United States is in a state of flux, with the Biden administration taking steps to modernize and improve the program, while the new Republican majority in the House of Representatives raises concerns about its impact on American workers. Whether the program will ultimately be reformed to better serve the interests of foreign workers, American workers, or both remains to be seen, but clearly this issue will continue to be a major source of political debate and controversy in the United States for the foreseeable future.

Article By Raymond G. Lahoud of Norris McLaughlin P.A.

For more immigration legal news, click here to visit the National Law Review.

©2023 Norris McLaughlin P.A., All Rights Reserved

Passport Entry Date Stamps to Be Eliminated

U.S. Customs and Border Protection (CBP) plans to eliminate passport entry date stamps in the passports of foreign nationals arriving in the U.S. The new policy measures are already in effect in some ports of entry and CBP will continue to expand the policy at additional ports.

The Form I-94 record of admission will continue to be used as a proof of a foreign national’s travel history and immigration status, which are accessible online. Foreign nationals are strongly encouraged to access and review their I-94 online as soon as they are inspected and admitted. Checking for errors in their I-94 online admission status before they leave the inspection area can help to avoid mistakes that may not be easily fixed after entry.

Since the I-94 governs the foreign national’s immigration status and work authorization for I-9 purposes, employers should also carefully monitor their foreign national employees’ status for Form I-9 employment verification.

© 2023 BARNES & THORNBURG LLP
For more Immigration Law News, click here to visit the National Law Review.

Available Options for Completing Form I-9 in Remote-Work Scenarios

The American Immigration Lawyer’s Association (AILA), through its Verification and Documentation Liaison Committee (“Verification Committee”) recently issued an FAQ compiling updated information related to employment verification (I-9) compliance requirements during the COVID-19 Pandemic.

The FAQ addresses the viable options for completing the Form I-9 in remote-work scenarios and the most current developments in each type of process. Below are the main takeaways:

Process 1: In-person New Employee and HR/Admin Document Review: HR/Admin timely reviews the employee’s identity and employment authorization documents in the employee’s physical presence. Where employers have fully returned to in-office operations, or where they are no longer maintaining COVID-19 precautions, they must complete an in-person review of Form I-9.

Process 2: “Remote Hire” In-Person New Employee & Employer Authorized Representative Document Review: This is the so-called “Remote Hire” process, typically used in situations of on-boarding and new remote employee. Note that this is still an in-person document review conducted by a third party designated by the employer who acts as the agent. Also note that this process is not restricted only to employees based at remote locations but can also be used in any situation. Since the employer bears the liability for the agent’s errors it is best practice for the employer to train and/or provide instructions to the agents as well as perform a detailed review upon receipt of the completed Form I-9.

Process 3: Limited Temporary Option: HR/Adm’s Electronic Document Review: The virtual review option was first implemented March 20, 2020, and has been extended multiple times. The current extension expires July 31, 2023. With this process, HR/Adm timely reviews the employee’s identity and employment authorization documents electronically, not in the employee’s physical presence, but via video link, fax, email, etc.

Who can benefit from this option? The U.S. Immigration and Custom Enforcement (ICE) confirmed to the Verification Committee the general rule in applying this option:

  • Before April 1, 2021, the temporary I-9 option was available if a business was operating 100% remotely as a result of the pandemic. If it was not, the in-person verification for Form I-9 was required. ICE acknowledged, however, that the Agency will handle audits and future enforcement on a case-by-case basis. Employers do not need to have 100% of their workforce working remotely to take advantage of the virtual option if the employer has a record supporting that the virtual review option was necessitated by the pandemic.
  • On or after April 1, 2021, the temporary virtual document review option is available, but only where the remote employment is a result of COVID-19-related precautions. Employers hiring “true remote” employees should conduct in-person reviews as they would have prior to the COVID-19 virtual review option being offered.

While virtual review provides a practical alternative to the in-person review, there are additional requirements in this process in order to maintain compliance:

  • Create and retain a written document that captures the remote onboarding and telework policy in place when this option is used for any Form I-9 created under this process;
  • Retain copies of the documents presented, as per the original guidance issued by ICE Note that security of sensitive personal information must be maintained, and the company should work with its information-security team regarding the transmission and/or capture of personal information in these situations;
  • Add “COVID-19” in the Additional Information field/box on Section 2 of the Form I-9;
  • Tell the employee that no later than three business days of cessation of this temporary electronic document review option or once the employee commences non-remote employment on a regular, consistent, or predictable basis (whichever is earlier), an in-person meeting and physical inspection of the document(s) will occur;
  • Within three business days of such a date, coordinate the in-person meeting and physical inspection of the document(s); and,
  • Add “documents physically examined,” date and initial in Section 2 Additional Information field/box, or to Section 3 of Form I-9, as appropriate.

Importantly, the virtual review process requires the employer to “perfect” the Form I-9 with an in-person meeting at a future date.

The Department of Homeland Security (DHS) is currently reviewing the regulatory framework for document review in considering making virtual review a permanent option for I-9 compliance. DHS published a Notice of Proposed Rulemaking in the Federal Register and, since November 2022, has been reviewing comments. Simultaneously, ICE has ramped up audits and investigations as the pandemic has waned. Therefore, employers should maintain a fluid line of communication with their attorneys and employees to avoid any compliance issues.

Article By Caterina Cappellari of Greenberg Traurig, LLP

For more immigration legal news, click here to visit the National Law Review.

©2023 Greenberg Traurig, LLP. All rights reserved.

DHS Guidelines Give Protection from Deportation to Undocumented Workers Who Report Labor Violations

If an employer hires undocumented workers, are they covered under the U.S. employment laws? Initially, employers must complete Form I-9s for all new employees and cannot hire workers who are unable to establish that they’re authorized to work. But once hired, the script flips and undocumented workers generally enjoy the same legal protections as the rest of the workforce (e.g., Title VII, FLSA, etc.). Undocumented workers, however, are often reluctant to make complaints to or cooperate in investigations with the EEOC, the Department of Labor, or other labor agencies, even when they have a legitimate beef with their employer. Why? It may be at least in part because they fear that they’ll be hauled into immigration court and deported. But now, the Biden administration has given those workers a possible safety valve.

Last month, the Department of Homeland Security released guidelines providing a process for undocumented workers to seek deferred action from removal (deportation) when they report a violation to a labor agency or cooperate in an agency investigation. In some circumstances, the individuals who utilize this process may also be eligible for temporary work authorization. Although each request for deferred action will be decided on a case-by-case basis, it’s clear that the purpose of this new process is to encourage undocumented workers to report labor violations and assist with agency investigations.

How Does the Process Work?

The U.S. Citizenship and Immigration Services (USCIS) will manage the process using a centralized intake system. If an undocumented worker makes a complaint to the EEOC, the DOL, or other labor agency, or assists the agency with an investigation, that worker can request deferred action from removal by submitting certain required documents. Among other things, the worker must submit his or her own statement setting forth the basis for the request, as well as a supporting “statement of interest” from the involved labor agency. According to the guidelines, the agency’s “statement of interest” should provide details about the nature of its investigation, how the worker may be helpful to that investigation, and how granting the worker’s request for deferred action would support the agency’s enforcement interests.

If the worker is already in removal proceedings or subject to an order of removal, the request for deferred action will be forwarded to ICE for determination. Otherwise, USCIS will adjudicate the request. Either way, USCIS or ICE will exercise its discretion on a case-by-case basis. In certain cases, the interested agency may also ask that the worker’s request be adjudicated on an expedited basis.

If an undocumented worker’s request is approved, the grant of deferred action will normally be good for two years, although it is subject to termination at any time. When submitting the request, the worker may also apply for temporary employment authorization on USCIS Form I-765. Approved applications for employment authorization, while not guaranteed, will typically allow the individual to work for the entire period of deferred action. Subsequent requests to extend the worker’s deferred action can be made if the labor agency continues to have an investigative or enforcement interest in the worker’s matter.

What’s the Practical Impact?

This is less clear. Will undocumented workers take advantage of this new process in significant numbers? The guidelines offer some potential protection, but the approval of an individual worker’s request is not automatic and, even if approved, the grant of deferred action is temporary.  Notably, the guidelines do not provide any long-term path to lawful status. And, because the guidelines have been issued without Congressional or regulatory action, they are subject both to being challenged in the courts and to being revoked in two years if there’s a change in the White House. Will undocumented workers feel comfortable using this process in the face of all this uncertainty? Stay tuned.

Article By Keith Covington and Anne R. Yuengert of Bradley Arant Boult Cummings LLP

For more immigration legal news, click here to visit the National Law Review.
© 2023 Bradley Arant Boult Cummings LLP