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Application Final Action Dates for Indian nationals in the EB-2 category will advance six months to Aug. 1, 2008, according to the State Department’s February Visa Bulletin, which was released today. The cutoff date for EB-2 China will advance by one month to March 1, 2012. All other EB-2 categories will remain current.
In the EB-3 category, final action dates for China, India and the Philippines will advance modestly. EB-3 China will advance three months to Oct. 1, 2012; India will advance one month to June 15, 2004; the Philippines will advance by just over two months to Jan. 8, 2008. EB-3 Mexico and all other countries will see no advancement, with the final action date holding at Oct. 1, 2015.
All EB-1 categories will remain current.
Final Action Dates for Employment-Based Preference Cases:
The State Department also released its Dates for Filing chart for February. Those with priority dates earlier than the date listed for their category may be eligible to file for adjustment of status in February. Applicants seeking to file for adjustment of status are reminded that dates for filing do not control the process unless U.S. Citizenship and Immigration Services confirms they do via a web posting in the coming week.
Dates for Filing of Employment-Based Visa Applications:
Copyright © 2016 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com.
Five states may soon be subject to the federal REAL ID Act’s final phase of enforcement, but the Department of Homeland Security (DHS) says it will provide at least 120 days’ notice before anyone is required to show more than a driver’s license for domestic flights at commercial airports.
The REAL ID Act was passed by Congress and signed by President George W. Bush in 2005. Among the law’s provisions is a requirement that driver’s licenses include a machine-readable data chip or magnetic strip. Some states have balked at issuing licenses that comply with the law, citing privacy concerns.
To date, 22 states and the District of Columbia are compliant with the Act. Twenty-three have received extensions. Five states – Illinois, Minnesota, Missouri, New Mexico and Washington – are noncompliant and have not been granted an extension.
DHS says it may continue to accept enhanced driver’s licenses issued by Minnesota. Other than that, the final phase of REAL ID enforcement is set to begin in the noncompliant states on Sunday, Jan. 10. Initially, this means that driver’s licenses will not be accepted forms of ID to enter military bases, nuclear power plants and certain other federal facilities. DHS has said it will give at least 120 days of notice before enforcing the REAL ID Act at airport security checkpoints, however.
“Until otherwise announced, the Transportation Security Administration (TSA) will continue to accept driver’s licenses and state-issued identification cards from all jurisdictions,” DHS says on a REAL ID Frequently Asked Questions site. “DHS will ensure the public has ample advanced notice before identification requirements for boarding aircraft change.”
Should DHS move to enforce the REAL ID Act at commercial airports, acceptable forms of ID for states that are out of compliance would likely include passports, passport cards and green cards. A state-by-state breakdown on REAL ID compliance is available on this DHS website.
BAL Analysis: DHS says it is in the “process of scheduling plans for implementing REAL ID enforcement” at commercial airports, but the agency has made it clear that it will give at least 120 days’ notice before refusing to accept driver’s licenses from noncompliant states at airport security. It is also possible that noncompliant states will move into compliance or receive extensions in the interim. BAL will continue following the implementation of REAL ID enforcement and will update clients if it becomes necessary for travelers to obtain alternate forms of ID before making travel plans.
The Civil Rights Division of the Department of Justice (DOJ) and the Department of Homeland Security’s (DHS) Immigration and Customs Enforcement (ICE) have released joint guidance on how companies can conduct internal Form I-9 audits without running afoul of anti-discrimination and anti-retaliation provisions of the Immigration and Nationality Act (INA).
DOJ and DHS said in a statement that internal I-9 audits are becoming increasingly common as employers aim to ensure that their I-9 employment eligibility verification practices comply with federal law. The agencies highlighted the importance of conducting audits properly and offered recommendations for avoiding potential unlawful practices.
“Internal audits should not be conducted on the basis of an employee’s citizenship status or national origin, or in retaliation against any employee or employees for any reason,” DOJ and DHS said in their guidance, released earlier in December. “An employer should also consider whether the audit is or could be perceived to be discriminatory or retaliatory based on its timing, scope, or selective nature.”
The DOJ-DHS I-9 guidance also contains information on:
The INA requires employers to verify the work authorization of employees and prohibits employers from knowingly hiring unauthorized workers. DOJ and DHS stressed in their guidance, however, that singling out specific employees for additional scrutiny may be unlawful.
This guidance is part of a six-month interagency effort to enhance coordination among federal agencies responsible for enforcing immigration, labor and employment laws. The DOJ Office of Special Counsel for Immigration-Related Unfair Employment Practices enforces the anti-discrimination provision of the INA, while ICE enforces the employer sanctions provision.
BAL Analysis: The INA prohibits employers from employing workers when they have actual or constructive knowledge that the worker in question is not authorized to work in the U.S. Employers sometimes must walk a fine line between adhering to this mandate and inadvertently violating the INA’s anti-discrimination and anti-retaliation provisions. The DOJ-DHS guidance offers employers some helpful recommendations to effectively conduct internal I-9 audits while complying with their legal obligations. Those with additional questions should contact their BAL attorney.
The Department of Homeland Security has proposed long-awaited regulations that implement the American Competitiveness in the 21st Century Act (AC21) and introduce other reforms to employment-based immigrant and nonimmigrant visa programs. The proposed regulation will be published in the Federal Register Dec. 31, after which DHS will accept comments from the public for a period of 60 days.
Background
AC21 was signed into law in 2000. Until now, the government did not issue regulations to implement the law and instead released informal guidance over the years.
Key provisions of AC21 include:
Proposed Regulation
The proposed regulation released today codifies much of the previous guidance issued by U.S. Citizenship and Immigration Services (USCIS) and also makes significant policy changes that will affect foreign workers present in the U.S. on nonimmigrant visas or seeking to obtain employment-based green cards.
The proposed regulation contains the following reforms:
What employers should know
The provisions contained in the proposed regulation are not yet in effect, and any policy changes will not become effective until the regulation is finalized. USCIS is soliciting feedback on the proposed rule for a 60-day period and will accept comments from the public until midnight on Feb. 29, 2016.
If finalized, the regulation would be a significant development and would have far-reaching implications for foreign workers in the U.S. on nonimmigrant visas. BAL is carefully reviewing the proposed regulation and will provide detailed analysis in the coming weeks.
The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) within the Department of Justice has issued a letter that sheds light on the agency’s view of whether an employer commits unlawful discrimination if it terminates U.S. workers and hires contract workers with temporary work visas to perform their work.
The OSC is charged with enforcing the immigration statute’s anti-discrimination provision, which protects U.S. citizens and nationals, U.S. lawful permanent residents, refugees and asylees from being denied or deprived of employment “because of their real or perceived immigration or citizenship status.”
In the letter, OSC stated that “[e]xcept in very narrow circumstances, an employer violates the anti-discrimination provision if it terminates workers or hires their replacements because of citizenship or immigration status.” This principle applies regardless of whether an employer replaces a protected employee with a nonprotected contract employee by directly hiring the replacement itself or by contracting with an outside agency as a joint employer.
In determining whether the anti-discrimination provision has been violated, OSC evaluates the facts of each case and considers several factors, including:
The letter also explained that the immigration statute’s anti-discrimination provision only prohibits intentional discrimination, meaning that the employer must have acted “because of” citizenship or immigration status. However, the letter emphasized that intentional discrimination does not require animus or hostility toward the protected employee. OSC stated that the assessment of whether an employer has engaged in intentional discrimination depends on the facts of each case.
OSC clarified that it is possible to file a charge against a contractor for citizenship-status discrimination and that the agency has authority to independently investigate a contractor if it receives information regarding a possible violation. OSC also provided links to past settlement agreements with companies, as examples of the agency’s “enforcement efforts to stop unlawful employer preferences for temporary visa holders.”
The letter responds to a series of questions about the laws regarding citizenship-based discrimination. OSC frequently publishes letters in response to written requests for technical assistance, in an effort to educate the public.
BAL Analysis: This technical assistance letter does not constitute a binding legal opinion, but does provide general guidelines for employer compliance. Through this letter, the agency provides helpful insight into how it evaluates claims of potential citizenship discrimination. The letter also highlights enforcement efforts by the OSC and reaffirms the agency’s authority to investigate noncompliance.
U.S. Citizenship and Immigration Services (USCIS) has signaled that it intends to create a new basis for employment eligibility for certain nonimmigrant workers and their dependents.
The agency has released a proposed revision of Form I-765, Application for Employment Authorization, which adds a new category of eligibility for nonimmigrant employees who have an approved employment-based immigrant petition and face “compelling circumstances.”
The instructions to the proposed form direct such applicants to file Form I-765 along with documents proving that:
The instructions do not define “compelling circumstances,” but state that applicants may ask USCIS to consider secondary evidence if they do not have the listed items. Additionally, spouses and unmarried dependent children of beneficiaries of approved immigrant petitions would be eligible to apply for an Employment Authorization Document.
The instructions do not specify the validity period of the EAD for this category, but they indicate that in order to qualify for an extension of employment authorization, the applicant’s priority date must be within one year of the cutoff date for visa issuance published in the most current Department of State Visa Bulletin.
The changes may appear in a proposed regulation, “Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers,” that USCIS is expected to publish soon. The Office of Management and Budget concluded its review of the rule on Dec. 22. The summary of the proposal states that the regulation aims to “provide stability and job flexibility for the beneficiaries of approved employment-based immigrant visa petitions while they wait to become lawful permanent residents,” and to implement the American Competitiveness in the Twenty-First Century Act of 2000 and the American Competitiveness and Workforce Improvement Act of 1998.
The proposed changes to the form and its instructions can be viewed here.
BAL Analysis: These proposed alterations to the Form I-765 provide indications of what the highly anticipated regulation will contain, but the text of the proposed regulation has not yet been published in the Federal Register. BAL is monitoring the progress of the regulation and will provide updates and analysis of proposed changes.
The Department of Homeland Security (DHS) asked a federal court this week for an additional 90 days to finalize the regulation allowing for an extension of Optional Practical Training (OPT) for foreign students in science, technology, engineering, and mathematics (STEM) fields.
On Aug. 12, the court issued a ruling invalidating the regulation that authorized the STEM OPT extension, but gave the government until Feb. 12, 2016 to properly issue a new rule. This week, DHS requested that the court extend this deadline to May 10, 2016 to give the agency sufficient time to finalize the regulation, develop guidance, and train officers on the new requirements.
The current STEM OPT regulations remain in place at the present time.
DHS told the court that it put “all hands on deck” to develop and publish a new regulation. The proposed regulation, released in October, aims to reinstate and expand the STEM OPT extension and provided a 30-day public comment period. During that time, DHS received more than 50,000 comments on the proposal. According to the motion DHS filed this week seeking additional time, this volume of comments is “unprecedented” and will require additional time to review.
Meanwhile, the plaintiffs who brought the case to challenge the OPT program are seeking review of the legal issues in this case in the U.S. Court of Appeals for the District of Columbia.
BAL Analysis: The plaintiffs will likely oppose the government’s request for additional time. However, the judge has previously acknowledged the significant disruption that would occur if the regulation were to be invalidated without a replacement rule in place. BAL continues to monitor the progress of this litigation.
Important changes for foreign travelers who use or plan to use the Visa Waiver Program to travel to the U.S. were signed into law Friday as part of the omnibus budget bill.
The changes tighten program requirements and will require some travelers who were previously eligible for the program to apply for and obtain a visa at a U.S. embassy or consulate in order to travel to the U.S. The program currently allows nationals of 38 countries to obtain an online Electronic System for Travel Authorization (ESTA) approval to visit the U.S. for up to 90 days without needing to obtain a visitor visa.
BAL has prepared a summary and analysis of the key provisions, who is affected, and how companies can prepare for the changes. The FAQ can be viewed here. Questions may be directed to your BAL professional.
In anticipation of another busy H-1B cap season, employers are encouraged to begin preparing now to ensure that their H-1B petitions are completed well in advance of the first day of filing season. April 1, 2016 is the first day that U.S. Citizenship and Immigration Services will begin accepting H-1B cap-subject petitions for employees hoping to start work Oct. 1, 2016.
The annual H-1B cap of 65,000 remains in place for undergraduate-degree holders, with an additional 20,000 for individuals holding advanced degrees from U.S. educational institutions. Given the improving economy and strong demand for H-1B high-skilled foreign workers in the last three consecutive years (233,000 petitions were filed last year), the number of H-1B petitions will certainly exceed the caps in the first week of filing, which would require USCIS to conduct a random lottery selection from petitions received in the first week. With early planning, employers can keep their cases on schedule, ensure that they have enough time to address any unexpected issues and feel confident that their petitions will be ready for filing by the end of March.
Employers can take the following five steps now to lay the groundwork for a smooth H-1B cap season:
Employers should assess their workforce needs and identify H-1B cap-subject candidates. H-1B visas are appropriate for foreign workers in specialty occupations that require at least a bachelor’s degree or the equivalent. The numerical cap applies to foreign workers who are seeking new H-1B status, such as newly graduating foreign students in the U.S. or overseas workers who are seeking to start work in H-1B status. The cap does not affect individuals who were counted against the cap during the previous six years or those seeking to extend their H-1B status or change employers.
Employers should work with their recruiters to finalize job offers for H-1B employees planning to start work Oct. 1, 2016. Employers should pay special attention to candidates in the U.S. whose current visa status is due to expire, such as students in F-1/Optional Practical Training status, intracompany transferees on L-1B visas, Australian nationals on E-3 visas, and Canadian and Mexican NAFTA professionals on TN visas.
Before filing an H-1B petition, employers must first submit a Labor Condition Application (LCA) to the Department of Labor declaring that it will pay the H-1B employee at least the prevailing wage for the occupation and geographic area where he or she will work. The prevailing wage is based on the minimum education and experience required for the position.
The Labor Department normally takes seven days to certify an LCA, but delays often occur if a prospective H-1B employee’s salary is lower than the prevailing wage. To reduce this risk of delay, employers should send descriptions of the prospective H-1B employee’s position, including job duties and the position’s minimum requirements, to their BAL attorney as soon as they are complete. This will allow the attorney to flag any issues early enough to seek an alternate wage survey, if possible, and keep the filing schedule on track.
Employers and individuals should not leave document collection and preparation to the last minute. In particular, foreign academic transcripts, certificates, and other educational documents are among the most time-consuming to prepare, because official versions must be obtained, translated and evaluated to show that the candidate has earned the equivalent of at least a U.S. bachelor’s degree. In addition, prospective H-1B candidates who do not have a formal degree must gather and provide evidence of sufficient years of experience so that an official educational equivalency document may be prepared.
If the upcoming cap season resembles recent years, more than half of H-1B cap petitions will not be successful. Last year, USCIS received nearly 233,000 H-1B petitions for the 85,000 visas available. Employers are encouraged to explore potential alternatives to the H-1B category with their BAL attorney early in the season. Planning well in advance gives employers sufficient time to pursue other avenues, such as other visa categories, for workers who do not obtain an H-1B visa. After the close of this cap season, employers must wait until April 2017 to file H-1B cap petitions again.
BAL Analysis: Employers and employees can improve their chances of a successful filing season and avoid the last-minute rush by starting now and submitting all supporting documentation to their BAL teams as soon as possible.
Congress approved a $1.15 trillion spending bill Friday that includes a number of key immigration provisions, including increases in H-1B and L-1 visa fees for certain employers, changes to the Visa Waiver Program, and the reauthorization of E-Verify and other immigration programs.
President Barack Obama has said he will sign the bill.
Introduced earlier this week, the spending bill contains provisions to increase visa petition fees in the H-1B and L-1 programs for employers with 50 or more U.S. employees, of whom more than 50 percent are in H-1B or L-1 status. The fees will rise to $4,000 for H-1B petitions and $4,500 for L-1 petitions and will apply to extensions as well as initial filings. These fees will remain in effect until Sept. 30, 2025.
The spending bill also contains provisions that place new restrictions on the Visa Waiver Program. Nationals of VWP countries who have traveled to Iran, Iraq, Sudan, Syria or other areas of concern designated by the Secretary of Homeland Security since March 1, 2011 will be barred from entering the U.S. without a visa. Nationals of these countries will need to apply for a visa to enter the U.S. even if they also hold citizenship from a VWP country. The bill imposes stricter eligibility criteria and information-sharing obligations on participating countries, including a requirement that VWP countries issue machine-readable e-passports by April 1, 2016 and have the ability to validate them by Oct. 1, 2016. All VWP travelers will be required to have e-passports by April 1. The bill also requires the Department of Homeland Security to enhance the Electronic System for Travel Authorization.
Finally, the spending bill reauthorizes four immigration programs that were scheduled to expire: E-Verify, the EB-5 Immigrant Investor program, the Special Immigrant Religious Worker program, and the Conrad 30 Waiver program for foreign doctors. The programs will be extended without reform through Sept. 30, 2016.
BAL Analysis: While some programs will be extended without reform, the increases in visa fees will impose significant costs on some employers and the changes to the Visa Waiver Program will make it more difficult for certain travelers to enter the U.S. BAL continues to review and analyze the 2,009-page legislation and will continue to provide updates in the coming days. Please contact your BAL attorney if you have any questions regarding this legislation and how it affects your business.