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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:

They are the principal beneficiaries of an approved Form I-140 petition,
An immigrant visa is not authorized for issuance for their priority date, and
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.

ARTICLE BY Victoria M. Garcia & Nelli Nikova of Bracewell LLP

USCIS to Increase Fees for Key Immigration Filings

Effective 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.

ARTICLE BY Brian Graham & Karen E. Spain of K & L Gates

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

This 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.

ARTICLE BY Roger Y. Tsai of Holland & Hart LLP

Form I-924 Regional Center Practice Pointer: USCIS Now Wants All Fields Completed

One of the purposes of Form I-924 is to file an exemplar for a specific EB-5 investment project. In so doing, a Regional Center seeks a preliminary determination of EB-5 compliance for a project prior to the commencement of I-526 filings by individual investors so as to have greater assurance that investors will not encounter issues with the project documents during their individual adjudications.

Part 3 of Form I-924 (excerpted below) solicits information about the Regional Center, its location, its management and administration team, its ownership and management structure, and its corporate history, among other things. In submitting an I-924 for purposes of updating a previously approved exemplar petition, practitioners were able to input “N/A” or “No change from original filing” in these fields when there were no changes to report on that particular point and USCIS accepted such practice for years. However, in recent weeks, USCIS has emailedRequests for Clarification when these fields are not explicitly responded to—irrespective of whether there are no changes to report. This recent change in adjudicatory practice was further confirmed in the USCIS EB-5 Stakeholder teleconference held on Aug. 29, 2016.

Eb-5 form Part 3

Additionally, USCIS is now commonly issuing a Request for Clarification in which it requests the full names and dates of birth for the “management companies/agencies, regional center principals, agents, individuals, or entities who are or will be involved in the management, oversight, and administration of the regional center as requested in Part 3 section D of the Form I-924,” despite the fact that this information had not changed since the prior filing. USCIS has also issued Requests for Clarification seeking this and similar information in connection with new commercial enterprises as well—not just with respect to the Regional Center principals and management teams.

To that end, Regional Centers may receive such a Request for Clarification from USCIS and must respond to USCIS with the information in ten (10) business days or it is likely a Request for Evidence will be sent on the Form I-924 Application. Regional Centers should answer all fields on Form I-924 in order to avoid receiving a Request for Clarification which may delay the overall processing time of their exemplar amendments. This should be done even if there are no changes since the prior filing with USCIS.

ARTICLE BY Shaun K. Staller of Greenberg Traurig, LLP

Proposed Rule to Benefit Certain Immigrant Startup Entrepreneurs

Qualified applicants would be granted parole in United States for up to five years.

On August 26, 2016, US Citizenship and Immigration Services (USCIS) published an advance copy of a proposed rule that would extend discretionary parole (temporary permission to be in the United States) to certain international entrepreneurs to allow them to establish new businesses in the United States.

“America’s economy has long benefitted from the contributions of immigrant entrepreneurs, from Main Street to Silicon Valley,” said USCIS Director León Rodríguez. “This proposed rule, when finalized, will help our economy grow by expanding immigration options for foreign entrepreneurs who meet certain criteria for creating jobs, attracting investment, and generating revenue in the US.”

The rule is expected to be published in the Federal Register on August 31, 2016, after which the public will be invited to comment.

Under the proposed rule, qualified applicants would be granted parole in the United States on a discretionary basis if they can demonstrate that

the startup entity was recently formed (within the three years preceding the date of the filing of the initial parole application;
the entrepreneur applicant is “well-positioned to advance the entity’s business” (as demonstrated by at least 15% ownership and an active and central role in the operations and future growth of the entity); and
the entrepreneur applicant can further validate the entity’s substantial potential for rapid growth and job creation through investments by established US investors such as venture capital firms, angel investors or startup accelerators, government grants, or certain alternative criteria.

Much like the E-1 and E-2 visa classification, passive investors will not qualify under the proposed rule.

No more than three entrepreneurs may receive parole with respect to any one qualifying entity. Qualified applicants, their spouses, and minor unmarried children can be given a discretionary grant of parole initially lasting up to two years. The spouse would also be eligible for employment authorization. Finally, eligible entrepreneurs (and family members) may be considered for “re-parole” for an additional period of up to three years if they can demonstrate that their entities have shown potential for rapid grown and job creation through additional investment, revenue generation, and creation of at least 10 full-time jobs for US workers.

ARTICLE BY Eleanor Pelta & Eric S. Bord of Morgan, Lewis & Bockius LLP

New USCIS Policy Decision Broadens Permissible Bases for Visa Transfer of Multinational Managers

After four years of internal deliberations, U.S. Citizenship & Immigration Services (USCIS) recently issued a policy memorandum binding all USCIS personnel to follow the reasoning of a 2013 USCIS Administrative Appeals Office (AAO) decision. That AAO decision broadened the type of evidence a U.S. employer may cite in support of an L-1A intracompany transfer visa, which is used by U.S.-based entities that seek to transfer employment of a manager or executive from a foreign-based affiliate.

The 2013 AAO decision was petitioned by the U.S. subsidiary of a publically traded Japanese parent company that manufactures packaging solutions for the medical, pharmaceutical, and food industries. Its U.S. subsidiary imports, markets, and distributes the Japanese parent company’s product line in North America. In 2012, the U.S. subsidiary sought to extend the L-1A visa of a transferee employee, who acted as the U.S. employer’s vice president and chief operating officer. The USCIS California Service Center denied the extension request, claiming the transferee was not employed in a managerial capacity because the U.S. employer did not have an organizational structure large enough to support a managerial position. By citing the existence of only two payroll employees besides the L-1A transferee, USCIS denied the visa extension, claiming that in the absence of other employees, the transferee L visa beneficiary was primarily performing sales duties rather than managerial duties. The denial decision gave no weight to the fact that the transferred employee supervised contracted U.S. service providers and a foreign staff of eight employees, which included three sales employees, four engineers, and a shipping clerk.

AAO overturned that California Service Center decision, citing as error the denial’s emphasis on the small size of the U.S.-based operations. As the AAO noted, “That a petitioner may only have a few employees directly on its payroll, although a relevant consideration in the determination of whether a beneficiary qualifies as an L-1A manager, does not necessarily compel a conclusion that the beneficiary primarily performs day-to-day operational duties.”

By adopting as policy the guidance provided by the 2013 AAO decision, USCIS has now made it a requirement that all USCIS employees follow the reasoning of the AAO decision. U.S. multinational employers will be the prime beneficiaries of this reversal in longstanding USCIS practice. Now, even U.S. employers with quantitatively limited organizational structures can benefit from the advantages of the L employment visa category.

ARTICLE BY Roy J. Barquet of Foley & Lardner LLP

USCIS Proposes Immigration Increase . . . in Immigration Fees that is

On May 4, 2016, U.S. Citizenship and Immigration Services published a notice of proposed rulemaking regarding changes to the USCIS filing fee schedule. USCIS is proposing to raise immigration benefit application filing fees by an average of over 20%. USCIS is primarily funded by immigration benefit request fees charged to the applicants, and these filing fees comprise 94% of USCIS’s annual budget of $3 billion. USCIS last raised immigration filing fees in 2010, and the agency has justified the increase as necessary to fully recover the costs of services, to maintain an adequate service level, and to allow for processing and technological improvements.

Over the last six years, USCIS has seen a significant increase in the number of benefits applications filed. While applications filed by employers have remained steady, applications filed by individuals for naturalization have increased 25%, applications for permanent residence by 15%, and applications to replace expiring permanent resident cards by almost 50%.

USCIS’s proposal would raise the base filing fees on employers sponsoring work visas between 20-40%. Foreign nationals filing for permanent residence will see the application fee rise to $1,140 from its current $985, a 16% increase. Those seeking US citizenship will pay an additional 8%, from $595 to $640. At the other end of the spectrum, high net worth investors seeking permanent residence through the EB-5 visa program will see the filing fee increase from $1,500 to $3,675, while the fee for entities seeking designation as EB-5 Regional Centers will skyrocket from $6,230 to $17,795, a raise of 186%!

The rule increasing the fees is expected to become final later this summer. In this case, time really is money, and we strongly suggest employers and foreign nationals file their benefits applications quickly to avoid the coming price hikes.

H-1B Cap: The Receipts Are Trickling In!

The July 2015 Visa Bulletin Brings Little Change On April 7, 2016, the U.S. Citizenship and Immigration Services (USCIS) announced that it received more H-1B petitions than available under the statutory cap of 65,000 general-category visas and 20,000 U.S. Master’s visas for the fiscal year. Another record-breaking year: USCIS received over 236,000 H-1B petitions during the filing period.

This is the fourth consecutive year that the H-1B quota has been reached during the first five business days of April. Before that, the last time the cap had been reached during the first week was in April 2008 for FY 2009. The decreased demand after FY 2009 was due to the effects of the financial crises. H-1B petition submissions have increased each year, as outlined below:

FY 2017	236,000
FY 2016	233,000
FY 2015	172,500
FY 2014	124,000

On April 9, USCIS ran the computer-generated lottery to select enough petitions to meet the 65,000 general-category cap and the 20,000 Master’s cap. As such, USCIS began issuing Receipt Notices for those cases that “won” the lottery this week. They are slowly “trickling” in. Once the case is “receipted” it still must undergo review and adjudication by USCIS. USCIS will begin premium processing for H-1B cap cases no later than May 16, 2016.

Any cases not selected in the lottery will be returned with their filing fees.

We appreciate that, during this period, employers and foreign national employees will be anxious while awaiting the lottery results. Proskauer will continue to update its clients directly and through alerts as to H-1B cap developments.

Article By David Grunblatt, Hallie A Cohen, Erica Loomba, Valarie H McPherson, Praveena N Swanson & Jennifer Wexler of Proskauer Rose LLP

Can USCIS Raise EB-5 investment Amount Without Congressional Intervention?

The July 2015 Visa Bulletin Brings Little Change Since its inception as part of the Immigration Act of 1990, the EB-5 program has had a $1,000,000 threshold capital investment requirement, with that minimum decreased to $500,000 for projects in targeted employment areas. Last year, legislation was introduced and circulated on Capitol Hill that would raise this investment amount in varying proposals and conditions.

Some have argued that raising the amounts is necessary given inflation: $1 million in 1990 has the same buying power as $1,813,443 in 2015. Others argue the investment amounts should remain at their present level to compete with other countries’ investment programs and maximize EB-5 visa usage –which has been quite low for most of the program’s history, spiking to fulfill the ~10,000 annual quota allocation only relatively recently.

Suppose, though, that USCIS wanted to change the investment amount without waiting for Congress to agree on a new bill. Could it do so?

The answer is clearly yes, and there are several ways of so doing. INA § 203(b)(5)(C) provides:

Amount of capital required.–

(i) In general.–Except as otherwise provided in this subparagraph, the amount of capital required […] shall be $1,000,000. The Attorney General, in consultation with the Secretary of Labor and the Secretary of State, may from time to time prescribe regulations increasing the dollar amount specified under the previous sentence.

(ii) Adjustment for targeted employment areas.–The Attorney General may, in the case of investment made in a targeted employment area, specify an amount of capital required […] that is less than (but not less than 1/2 of) the amount specified in clause (i).

(iii) Adjustment for high employment areas.–In the case of an investment made in a part of a metropolitan statistical area that at the time of the investment–

(I) is not a targeted employment area, and

(II) is an area with an unemployment rate significantly below the national average unemployment rate, the Attorney General may specify an amount of capital required under […] that is greater than (but not greater than 3 times) the amount specified in clause (i).

The statute, written in 1990, utilizes the antiquated term “Attorney General;” however, immigration regulatory functions now fall under the purview of the Secretary of the Department of Homeland Security following the dissolution of the INS. Nevertheless, it is clear that Congress has delegated the power to increase the minimum investment amounts in several ways that would not require a statutory amendment:

USCIS, in conjunction with Labor and State, could increase the default $1,000,000 capital amount. Since $500,000 would be less than the increase, the TEA minimum would also need to be increased;
USCIS could change the TEA amount, provided that it remains at least 1/2 of the non-TEA investment amount; and/or
USCIS could increase the investment amount to $3,000,000 presently for projects which are:

a. In metropolitan statistical areas;
b. Not in TEAs;
c. Have unemployment rates which are “significantly below” the national average.

It is worth noting that Form I-526 already takes into consideration investments made in such “upward employment areas” even though they do not presently exist – see Part 2.b.

It is difficult to predict the likelihood of any of these events occurring. Any increase would likely create significant market disruption unless adequately anticipated and planned. Stakeholders would also need to understand and have input on the terms of grandfathering for pending filings, securities offerings, and initial investments so that the transition does not shutter the program.

Finally, it is worth noting that while Congress has delegated the ability to raise the EB-5 investment amount to DHS (through consultation with other agencies were required), its ability to do so is tempered somewhat. The Supreme Court’s Chevron test requires that regulations be “permissible construction(s)” of the statute. Could USCIS legally raise the minimum investment amount to $10,000,000 overnight, or change the TEA minimum investment so that it is only $1.00 less than the base amount? Potentially, but such actions would likely draw a federal court challenge to the limits of USCIS authority on the matter given the underlying legislative intent of the EB-5 program.

Article By Matthew T. Galati of Greenberg Traurig, LLP

USCIS Proposal May Increase Strike Zone for Professional Athletes

The U.S. Citizenship and Immigration Services (USCIS) has proposed new guidance for adjudicating O-1 visa petitions for athletes and other individuals of extraordinary ability in certain fields. If the proposal becomes effective, athletes will have greater flexibility in satisfying the O-1 visa criteria.

Under current USCIS regulations, an athlete may qualify for an O-1 visa by demonstrating extraordinary ability in his or her field in one of three ways: (A) by reason of a nomination or receipt of a significant national or international award; (B) by meeting a certain number of listed criteria; or (C) by submitting “comparable evidence” when the listed criteria in part (B) do not readily apply.

Part (A) is fairly straightforward. For example, winning a Gold Glove award would qualify the athlete. The same goes for league MVP or an Olympic gold medal. If an athlete does not meet Part (A), Part (B) requires meeting at least three of the USCIS criteria, such as receiving lesser but still nationally or internationally recognized prizes or awards, membership in associations requiring outstanding achievements, being written about in major media, making athletic contributions of major significance, being employed in a critical capacity for a prestigious organization, and commanding a high salary.

If an athlete does not meet Part (B), then Part (C), the catch-all “comparable evidence,” aka “alternate but equivalent,” should be considered. But here’s the rub: the regulatory text is not clear as to exactly when comparable evidence may be considered. Can applicants go directly to Part (C) or must they meet a certain number of the Part (B) criteria before comparable evidence could be considered? Moreover, must an athlete show that all or a majority of the Part (B) criteria do not readily apply?

The proposed guidance attempts to clarify this ambiguity, stating that comparable evidence can be considered on a criterion-by-criterion basis. That is, to an athlete need not first satisfy a minimum number of the Part (B) criterion before moving on to Part (C). An athlete must show only that any single criterion does not readily apply to his or her field before offering comparable evidence as to that criterion, as well as why the submitted evidence is “comparable” to the Part (B) criterion listed in the regulations. In addition, a petitioner relying upon comparable evidence still must establish the beneficiary’s eligibility by satisfying at least three separate evidentiary criteria, as required under the regulations.

According to the proposal, even if awards aren’t given for the league’s best on-base percentage or for singlehandedly increasing ticket sales, it’s certainly comparable evidence. It’s time to start thinking outside the batter’s box. This proposed guidance would make the path to an O-1 visa a little clearer.

Article By Gregg E. Clifton of Jackson Lewis P.C.

Tag: USCIS

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

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USCIS to Increase Fees for Key Immigration Filings

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