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The State Department announced records set by the Bureau of Consular Affairs under the Biden-Harris administration, including U.S. passport and visa services.
Key Points:
Additional Information: The State Department’s Bureau of Consular Affairs has been at the forefront of protecting U.S. citizens, enabling global travel and commerce that powers the U.S. economy, and improving federal customer service while safeguarding national security.
This alert has been provided by the BAL U.S. Practice Group.
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The U.S. State Department released the February Visa Bulletin. U.S. Citizenship and Immigration Services announced filings for employment-based preference categories must use the Final Action Dates chart, which will remain the same as January except for China and India.
Final Action Dates:
EB-1
EB-2
EB-3
Final Action Dates Chart for Employment-Based Visa Applications
Category
The Department of Homeland Security and the State Department announced the designation of Romania as a participating country in the Visa Waiver Program (VWP).
Additional Information: The VWP is a culmination of comprehensive security partnerships between the United States and designated countries that meet strict requirements related to counterterrorism, law enforcement, immigration enforcement, document security and border management.
A recent DHS rule change updates the agency’s practice for notifying the public of countries designated for participation in the VWP. The definition of “designated country” was amended to refer to countries that the Secretary of Homeland Security has designated for VWP participation and remove references to specific countries in the regulations. Notification will be made available on the DHS U.S. Visa Waiver Program website.
As we prepare for President-elect Trump’s second term, we expect to see some of the same policies and immigration trends from his first term. One of those is a significant increase in Form I-9 audits and worksite enforcement investigations.
Employers can best prepare by understanding how to correctly fill out and maintain the Form I-9, conducting internal audits to ensure accuracy and compliance and updating their internal procedures for responding to an audit. As we anticipate these audits and investigations to ramp up in the next few years, it’s beneficial for employers to have clear expectations about why these investigations occur, what happens during them and what rights and obligations they have.
Employers are required by law to use Form I-9 to verify that all employees hired after Nov. 6, 1986, are authorized to work in the United States. Companies must maintain I-9 forms for all current employees as well as former employees for at least three years from the first day of employment or one year from the date employment ended, whichever is longer.
A Form I-9 audit is initiated when the Department of Homeland Security’s Immigration and Customs Enforcement agency (ICE) Homeland Security Investigations (HSI) serves the employer a written Notice of Inspection (NOI).
The NOI generally includes:
HSI may also request that the employer provide supporting documentation, which may include but is not limited to: a copy of the employer’s payroll, a list of active and terminated employees, articles of incorporation and business licenses. Employers have at least three business days to produce the I-9 forms and supporting documents requested in the NOI.
During the Form I-9 audit, HSI will be looking for both technical and substantive violations. Technical violations are typically procedural errors that can be corrected by the employer within 10 business days of the violation being reported by HSI.
Substantive violations are more serious and include failure to complete the Form I-9, failure to complete the Form I-9 within three business days, accepting fraudulent documents and failing to properly verify the documents. These errors are not allowed to be corrected.
A Form I-9 audit may be triggered by complaints from the organization’s current or former employees, whether they observed unfair or questionable hiring practices or believe their job was lost to an undocumented worker.
Many times, an audit is initiated due to potential red flags in data or trends within a particular industry or region. The Department of Homeland Security uses software to analyze their extensive database of immigration and employment verification data, searching for anomalies and inconsistencies that may indicate noncompliance.
Employers should cooperate with ICE agents during a Form I-9 audit. However, they should also be aware of their rights and ensure employees know theirs as well.
Employer rights during Form I-9 audits:
Employers should seek counsel from their immigration attorney if subject to a government audit or investigation.
After conducting the Form I-9 audit, the auditing agency will notify the employer of its findings in writing. A Notice of Inspection Results means the organization was compliant. If any violations were identified during the audit, an employer may receive one of these notices:
A worksite enforcement investigation, sometimes referred to as a “raid,” typically takes place when ICE agents are attempting to detain employees they believe are working in the United States unlawfully. ICE agents may come to a workplace to target specific workers as part of an ongoing investigation or question all workers who are present.
Unlike a Form I-9 audit, ICE does not need to provide the employer with any prior notice. However, ICE does need to provide the employer with a warrant to enter the premises.
Employers and employees still have certain rights during a worksite enforcement investigation.
Whether your organization wants to conduct an internal Form I-9 audit as a precautionary measure, update its site visit protocol or finds itself in the middle of an investigation, BAL is equipped and ready to help. Our immigration legal experts are deeply knowledgeable about Form I-9 requirements and are experienced in navigating changes in policy and government enforcement trends. We have an entire team of professionals who can assist companies in running I-9 compliance and E-Verify programs, as well as manage complex matters such as I-9 audits and investigations.
Contact our team of immigration legal experts to discuss how we can help ensure compliance and a fair investigation.
In this week’s episode, BAL’s Michelle Gergerian and Victoria Ma discuss strategies employers can use to best position themselves for attracting and retaining top talent in the semiconductor industry.
Explore more episodes of the BAL Immigration Report podcast, available on Apple, Spotify and the BAL immigration news page.
This podcast has been provided by the BAL U.S. Practice Group.
Today, the Department of Homeland Security (DHS) announced the extension of Temporary Protected Status (TPS) for 18 months each for El Salvador, Sudan, Ukraine and Venezuela.
Additional Information: These extensions only apply to individuals already in the United States and who are current beneficiaries of TPS for El Salvador, Sudan, Ukraine and Venezuela. Federal Register notices for each respective country explain eligibility criteria, timelines and procedures necessary for current beneficiaries to re-register and to renew their EADs. Federal Register Notices for Sudan, Ukraine and Venezuela were not yet published on the date of this alert.
U.S. Citizenship and Immigration Services (USCIS) has reached the cap for the additional 20,716 H-2B visas made available for returning workers for the first half of fiscal year 2025 with start dates on or before March 31, 2025.
Additional Information: The FY 2025 TFR was published on Dec. 2, 2024, with an immediate effective date. USCIS immediately began accepting H-2B petitions with start dates on or before March 31, 2025, for the 20,716 returning worker allocation for the first half of FY 2025, and the 20,000 allocation for nationals of Colombia, Costa Rica, Ecuador, El Salvador, Guatemala, Haiti and Honduras who are exempt from the returning worker requirement.
The Department of Homeland Security announced a final rule that permanently increases the automatic extension period for employment authorization and Employment Authorization Documents (EAD) that will become effective on Jan. 13, 2025.
Additional Information: More details on the DHS December 2024 announcement can be found here.
On Jan. 8, U.S. Citizenship and Immigration Services (USCIS) issued policy manual guidance to clarify how it evaluates evidence to determine O-1 visa eligibility, including adding examples of evidence for individuals in critical and emerging technologies.
The updated guidance was issued in the USCIS Policy Manual, Vol. 2, Part M.
Additional Information: The updated guidance addresses President Biden’s Oct. 30, 2023, Executive Order on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence, which directs the Department of Homeland Security to modernize immigration pathways for experts in artificial intelligence and other critical and emerging technologies, including for O-1A nonimmigrants.
The Department of Labor (DOL) announced on Dec. 20 additional guidance on the 2024 Farmworker Protection Final Rule.
Additional Information: On November 27, 2024, all initiated but unsubmitted, H-2A job orders and completed Applications for Temporary Employment Certification in FLAG using the forms associated with the Farmworker Protection Rule under the version of 20 CFR part 655, subpart B in effect as of June 28, 2024, were deleted to help prevent accidental submittals using incorrect versions of the forms and ensure DOL compliance with the court orders.
OFLC has ceased further processing of all pending H-2A job orders and Applications for Temporary Employment Certification using the revised forms in effect on June 28, 2024. Employers with pending job orders/applications have the option of requesting withdrawal of their pending H-2A job order or Application for Temporary Employment Certification using either the FLAG System online withdrawal function or submitting a request in writing to the OFLC at tlc.chicago@dol.gov (the unique FLAG H-2A job order or Application for Temporary Employment Certification case number must be used in the subject line of the email).
The preliminary “Yes/No” question put in place by DOL to comply with court orders has been removed from the FLAG System.
The Labor Certification Process for Temporary Agricultural Employment in the United States (H-2A Workers) codified under 20 Code of Federal Regulations part 655, subpart B that went into effect on June 27, 2024 can be found here.