Greenberg Traurig’s Nataliya Rymer, of counsel, and Jordi Bayer, associate, recently authored a New Jersey Law Journal (NJLJ) article, “Guidance for Employers in Age of Increased Immigration Enforcement,” which discusses the uptick in immigration enforcement activity by the Department of Homeland Security (DHS). This uptick includes worksite visits, which are in line with the stated policy of increased enforcement by the current administration. To review the full article, click here.
According to the June 2017 Visa Bulletin released by Department of State and effective June 1, there will be significant retrogression in the EB-1 category for individuals born in mainland China and India. While the current cutoff date for worldwide chargeability in the EB-1 category will remain current, the final action dates for Chinese and Indian nationals will retrogress to Jan. 1, 2012.
The cutoff date for worldwide chargeability in the EB-2 category will be current but for mainland China and India. There is slight movement for mainland China in the EB-2 category which will move from Feb. 8, 2013, to March 1, 2013, and for India, which will move from June 22, 2008, to July 1, 2008.
In the EB-3 category, the cutoff date for worldwide chargeability, as well as for El Salvador, Guatemala, Honduras, and Mexico will move up one month from March 15, 2017, to April 15, 2017. The cutoff date for mainland China is stalled at Oct. 1, 2014. There will be slight movement for India, with the cutoff date advancing seven (7) weeks from March 25, 2005, to May 15, 2005. The cutoff date for the Philippines will advance four (4) months from Jan. 1, 2013, to May 1, 2013.
For those in the EB-5 category, the priority date will remain current for all applicants other than those born in mainland China, which will move merely one week from June 1, 2014, to June 8, 2014. While the cutoff dates for Regional Center program were unavailable in May due to the anticipated program expiration date, the cutoff dates will be available again in June due to the extension of the Regional Center program, and is set at June 8, 2014, for mainland China-born applicants.
For those seeking to adjust status, United States Citizenship and Immigration Service (USCIS) website indicates that the Department’s Application Final Action Dates chart must be used for filing Form I-485 in April and May 2017. While USCIS has yet to announce whether it will accept I-485 applications based on the Dates for Filing Visa Applications chart in June 2017, based on recent trends where Dates for Filing Visa Applications has been consistently disregarded, we anticipate that USCIS will continue to follow Application Final Action Dates for June as well.
Final Action Dates for Employment-Based Preference Cases
Dates for Filing of Employment-Based Visa Applications
Greenberg Traurig Shareholder Kate Kalmykov was recently quoted in The Jerusalem Post’s article, “Trumps Visa Policy May Harm Israeli Hi-Tech Innovators.” In the article, Kalmykov addresses Israeli hi-tech companies options for visas when looking to relocate employees to the United States. To read the full article, click here.
U.S. Citizenship and Immigration Services (USCIS) announced on April 19, 2017 that the agency will begin issuing revamped Permanent Resident Cards (commonly referred to as “green cards”) and Employment Authorization Documents (EAD Cards) as a part of the Next Generation Secure Identification Document Project, a multi-agency initiative aimed at modernizing security measures through advanced biometrics technologies.
The new designs, which use enhanced graphics and fraud-resistant security features, will be less susceptible to tampering and counterfeiting than the current cards. This update is indicative of a larger trend throughout the immigration agencies to crack-down on fraud and to take a tougher stance on vetting and security issues across the board.
USCIS states that the redesigned cards will:
- Display the individual’s photos on both sides;
- Show a unique graphic image and color palette:
- Green cards will have an image of the Statue of Liberty and a predominately green palette;
- EAD cards will have an image of a bald eagle and a predominately red palette;
- Have embedded holographic images;
- No longer display the individual’s signature; and
- Green cards will no longer have an optical stripe on the back.
Importantly, the agency will continue to issue cards in their existing format even after May 1, 2017, stating that it intends to deplete current supplies before transitioning to the new versions. All versions of green cards and EAD cards will remain valid until the expiration date listed on the document. Do note, however, that certain EAD card holders have had their validity automatically extended beyond the listed expiration date. If you are unsure as to whether you are affected, you should contact your immigration lawyer for guidance.
Foreign nationals currently in possession of older green cards not bearing an expiration date—which will remain valid—should nevertheless consider applying for an updated replacement card in order to reduce the likelihood of fraud or issues with document verification and interacting with the government.
Foreign nationals may continue to present any valid green card or EAD card for I-9 verification purposes. Therefore, employers and HR representatives should familiarize themselves with the appearance and features of the redesigned documents so as to be able to navigate the employment eligibility process when onboarding new hires.
On April 18, 2017, President Donald Trump signed an Executive Order (EO) titled “Buy American and Hire American.” The stated purpose of this EO is to protect the American economy by having the U.S. government and agencies focus on purchasing goods made in America, and to also protect American workers. The first part of the EO includes text that focuses on conducting studies and putting forth plans for federal agencies to immediately maximize the use and procurement of materials and products made in the United States—or “Buy American.”
The second part of the EO includes text that focuses on “Hire American,” that is, reviewing current U.S. immigration laws, specifically as they relate to nonimmigrant visa categories. A summary of the second part of the EO is below:
Ensuring the Integrity of the Immigration System in Order to “Hire American”:
- The Secretary of State, the Attorney General, the Secretary of Labor, and the Secretary of Homeland Security are tasked with proposing new rules and issuing new guidance with the intent of protecting U.S. workers and eliminating fraud or abuse.
- In addition, the text of the EO directs that reforms should be focused on ensuring that H-1B status is only granted to those who are the “most-skilled” or the “highest-paid.”
This EO comes only a few weeks after various U.S. federal agencies tasked with administering immigration law issued guidance and decisions with the intent of preventing fraud and abuse in the immigration system, specifically the H-1B program. The United States Citizenship and Immigration Service, the Department of Justice, and the Department of Labor all released statements and/or policy with regard to the H-1B program. To see a summary regarding these statements and/or policies, please visit our previous post.
As this EO is general in nature and does not dictate any specific timelines for the “Hire American” portion, Greenberg Traurig will continue to monitor the conditions and changes. To receive updates, please subscribe to our blog.
Greenberg Traurig’s Business Immigration & Compliance Practice and two of the group’s attorneys were included in the 2017 Chambers Global Guide. The 2017 guide includes 37 Greenberg Traurig attorneys and 23 practice areas.
According to its website, Chambers and Partners selects attorneys and practices for inclusion based on thousands of interviews with practicing lawyers and clients around the world. The Business Immigration & Compliance Practice received recognition by region in the United States. Immigration attorneys Laura Foote Reiff and Martha Schoonover were ranked in the Immigration category by region.
To read the full press release and view the full Greenberg Traurig 2017 Chambers Global Guide rankings, click here.
Greenberg Traurig Shareholder Seth Entin was recently published in WealthBriefing/ClearView Financial Media for an article on pre-immigration tax planning. The article explains the importance of timely pre-immigration U.S. tax planning for high net worth foreigners who are considering moving to the United States and how the failure to plan may have costly consequences. To read the full article, click here.
USCIS announced April 7 that it has received a sufficient number of H-1B petitions to reach the statutory cap for fiscal year FY2018. After today, USCIS will not accept H-1B petitions subject to the FY 2018 cap or the advanced degree exemption. The announcement did not provide details about the total number of H-1B petitions filed on behalf of persons to be counted against the regular H-1B cap or against the 20,000 advanced degree exemption. We anticipate that USCIS will have received a number that is close to or exceeds the 236,000 petitions filed in FY 2017.
A computer-generated random selection process (commonly known as the “lottery”) will be used for all FY2018 cap-subject petitions received through April 7, 2017. The agency will conduct the selection process for advanced degree exemption petitions first. All advanced degree petitions not selected will be part of the random selection process for the 65,000 limit. USCIS has yet to announce the exact day of the lottery.
Petitions that are otherwise exempt from cap, such as H-1B extensions, H-1B ports to new employers or H-1Bs filed for exempt employers, will continue to be accepted and processed by the agency. However, as previously reported premium processing service for all H-1B petitions, including those exempt from cap, remains suspended for up to six months as of April 3, 2017. GT will continue to monitor any announcements made by USCIS.
The U.S. immigration agency’s busiest day of the year was marked with reminders about the dark side of the H-1B visa program. Acceptance of H-1B cap-subject petitions started on April 3, 2017. But the flurry of H-1B filings were met with announcements from agencies involved with the H-1B program about measures designed to tighten policies and further regulate the H-1B program. These agency announcements indicate a coordinated message of cracking down on H-1B fraud in order to protect the U.S. worker.
USCIS Press Release and Policy Memorandum
While some U.S. Citizenship and Immigration Services (USCIS) employees were busy accepting what is expected to be several thousand H-1B petitions at its Vermont and California Service Centers on April 3, 2017, opening day of the 2017 H-1B lottery, other USCIS employees were putting the finishing touches on a press release outlining new plans to combat employer fraud and abuse in the H-1B visa program.
USCIS Press Release:
The release, titled “Putting American Workers First: USCIS Announces Further Measures to Detect H-1B Visa Fraud and Abuse,” was a clear signal by USCIS that it plans to improve the integrity of the H-1B program and ensure that the program is in no way harming U.S. workers. USCIS said that its site visits, operated by its Fraud Detection and National Security (FDNS) directorate, will focus on employers who place employees offsite as well as employers who are H-1B dependent. H-1B dependency, which is defined by statute, means a high percentage of an employer’s workforce is made up of H-1B workers. This initiative is yet more evidence that USCIS is taking aim at third-party staffing companies. The press release also provided a USCIS email address for reporting suspected incidents of H-1B fraud and abuse and also reminded the public about additional ways it can let authorities know about possible misuse of the H-1B program via a Department of Labor form and by contacting Immigration and Customs Enforcement’s Homeland Security Investigations (HSI) unit.
USCIS Policy Memorandum:
On March 31, 2017, USCIS issued a policy memorandum to rescind the Dec. 22, 2000 guidance on H-1B computer-related positions. This March 2017 memorandum includes guidance that the Occupational Outlook Handbook (OOH), a long relied-upon resource for petitioners and attorneys alike to classify jobs and to confirm their status as specialty occupations, should no longer be used as the main resource to determine whether a position is a specialty occupation position. The guidance focuses heavily on the job code for “Computer Programmers,” which it notes may not qualify as a specialty occupation because most programmers have a bachelor’s degree, but some do not. Most notably, this guidance includes discussion about the Wage Level and corresponding prevailing wage, suggesting that a job that is coded at a Level I prevailing wage should be scrutinized heavily because it would “likely contradict a claim that the proffered position is particularly complex, specialized, or unique compared to other positions within the same occupation.”
Department of Justice’s Immigrant and Employee Rights Section
The Department of Justice’s Immigrant and Employee Rights Section (IER), formerly known as the Office of Special Counsel for Immigration-Related Unfair Employment Practices, also chimed in on H-1B cap opening day with a reminder to H-1B employers that they may not discriminate against U.S. workers. IER, which is responsible for enforcing the anti-discrimination provision of the Immigration and Nationality Act (INA), explained in its press release that employers may violate the INA if they prefer to hire H-1B visa holders over U.S. workers.
Department of Labor’s Press Release
The Department of Labor (DOL) is the most recent agency to issue a press release for the purpose of combatting H-1B fraud, expressing support for the efforts of its colleagues at USCIS and DOJ, while adding its own plans. In addition to increasing its coordination with other federal agencies to investigate and prosecute misuse of the H-1B program, DOL said it is considering changes to the Labor Condition Application, which is a required part of the H-1B visa petition process, “to provide greater transparency for agency personnel, U.S. workers and the general public.” The DOL also said it would continue with its stakeholder engagements on how to improve the H-1B program so as to provide greater protections to US workers.
GT will continue to follow and report on and analyze these agency announcements and guidance.
The U.S. Customs and Border Protection (CBP) has announced that its I-94 website will be under maintenance and will not be available during the following periods: (1) March 30, 2017 from 1:30 a.m. to 5:30 a.m. EDT; (2) April 2, 2017 from 1:30 a.m. to 5:30 a.m. EDT; and (3) April 6, 2017 from 1:30 a.m. to 5:30 a.m. EDT. During these times, the ability to view a recent I-94 record, obtain recent travel history, and purchase a provisional I-94 will be disrupted; CBP advises against using the aforementioned functions accordingly.
Foreign nationals present in the United States in nonimmigrant visa status should note the CBP I-94 website maintenance periods mentioned above and may wish to access any relevant I-94 records and/or travel history records prior to these times. Those planning to return to the U.S. from international travel while the site is unavailable, should access the CBP system after site maintenance is complete to ensure the electronic I-94 record is correct and consistent with the relevant passport entry stamp received during the admission process. Greenberg Traurig can assist with any questions regarding corrections to I-94 entry records or the admission process.