DOL Proposes New LCA, H-1B Complaint Form

Posted in Department of Labor, H-1B

Following through on its April 3, 2017, announcement that it was considering changes to the Labor Condition Application (LCA), the Department of Labor (DOL) published a notice in the Federal Register on August 3, 2017, of its proposed revisions to the ETA 9035 or LCA. A certified LCA must be included with every H-1B petition filed with the U.S. Citizenship and Immigration Services.  DOL’s Employment and Training Administration posted the proposed LCA on its website saying the changes would “better protect American workers, confront fraud, and increase transparency.” DOL said it would accept comments until Oct. 2, 2017.

The revisions in the form reflect the focus of the Trump Administration on increased enforcement of third-party placement and on H-1B dependent employers. The new LCA asks whether the sponsored worker will be “placed with a secondary employer” and, if yes, asks for the legal name of the secondary employer. The new LCA also requires H-1B dependent employers to complete an additional list of questions set out in an appendix if the sponsored worker is exempt from H-1B dependency obligations. In addition, the attestation language in the form is more expansive. For example, the wage attestation in the new LCA specifies that employers may not deduct attorneys’ fees or costs in connection with a visa petition.

At the same time it released its new LCA form, the DOL also posted its revised WH-4, Nonimmigrant Worker Information Form, which is the form individuals may use to submit complaints to DOL about fraud or misconduct in H-1B, H-1B1 or E-3 visa programs. This form is utilized by DOL’s Wage and Hour Division, which is the office that conducts LCA audits.

September 2017 Visa Bulletin Update

Posted in China, EB-3, Mexico, Philippines, U.S. Department of State ("DOS"), USCIS, Visa Bulletin

The Department of State (DOS) recently released the September 2017 Visa Bulletin.  The charts show movement in some employment-based categories, with no movement in other employment-based visa categories. According to the September Visa Bulletin, the following are updates to Final Action Dates:

EB-1: The Worldwide EB-1 category for India and China remains stalled at Jan. 1, 2012, while the other categories are current.

EB-2: The cutoff date for worldwide chargeability in the EB-2 category moved from April 1, 2015, to Jan. 1, 2016, with the same movement for El Salvador/Guatemala/Honduras, Mexico, and the Philippines. India EB-2 has moved forward by one month to August 22, 2008, and EB-2 for China moved by almost one month to May 15, 2013.

EB-3:  In the EB-3 category, the cutoff date for worldwide chargeability remains current; as are the El Salvador/Guatemala/Honduras and Mexico categories. The cutoff date for mainland China remains stalled at Jan. 1, 2012. The Philippines moved five months, to Nov. 1, 2015. India moved three months, from July 15, 2006, to Oct. 15, 2006.

For those in the EB-5 category, the priority date remains current for all applicants other than those born in mainland China, where the cutoff date has not moved and remains at June 15, 2014.

For those seeking to adjust status, The 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. This has not yet been updated with the August 2017 dates; however, we anticipate that USCIS will continue to follow Application Final Action Dates for August as it has to date.

Final Action Dates for Employment-Based Cases

Dates for Filing Employment-Based Visa Applications

Arizona, Maryland, and Wyoming To Participate in E-Verify Ride Program

Posted in Driver’s License, E-Verify, USCIS

As of July 31, 2017, Arizona, Maryland, and Wyoming are official participants in the federal government’s E-Verify enhancement program, RIDE.

The Record and Information from DMVs for E-Verify (RIDE) verifies the validity of state-issued driver’s licenses and ID card information by matching data entered by employers into E-Verify against state departments of motor vehicles records. This partnership enables E-Verify to validate the authenticity of state-issued driver’s licenses and state ID cards when provided by an employee to prove identity when completing the I-9 process.

According to USCIS, approximately 80 percent of all documents presented by employees as proof of identity during the I-9 process are driver’s licenses or ID cards. Further, USCIS states that the RIDE program helps to reduce document employment eligibility verification fraud in E-Verify.

Ten states currently participate in the RIDE program (Arizona, Florida, Idaho, Iowa, Maryland, Mississippi, Nebraska, North Dakota, Wisconsin, and Wyoming). While the RIDE program has grown slowly over the past six years, continued adoption of mandatory E-Verify use suggests further expansion of the RIDE program in years to come.

Employers participating in E-Verify will now be prompted to enter document information, which will be verified against state records, when presented with a state driver’s license or ID card (from the above listed states) as a List B document. For example, if an employer in Georgia who uses E-Verify is presented with a driver’s license from Wyoming as a List B document, E-Verify will prompt the employer for additional information. Fact Sheets for each state participating in the RIDE program can be found on the USCIS website.

Employers are reminded that this update will only impact newly hired employees in those states now participating in the RIDE program.  Employers must not use E-Verify to verify existing employees (with the exception of federal contractors).

President Trump Endorses New Bill Addressing ‘Green Card’ Immigration

Posted in Green Card, Immigration Law, President Trump's Administration, The U.S. Citizenship and Immigration Services, USCIS

Today, President Trump joined Senator David Perdue (R-GA) and Senator Tom Cotton (R-AR) announcing the introduction of a bill titled “Reforming American Immigration for a Strong Economy Act,” known also as the “RAISE Act.”  The president praised the work of the senators and in a statement added, “We want a merit-based system. One that protects workers, our workers, our taxpayers, and one that protects our economy. We want it merit-based.”

Highlights from the bill are included below:

  • Eliminates the diversity visa program.
  • Sets the maximum number of refugee admissions to 50,000 per fiscal year.
  • Worldwide level of family sponsored immigrants is 88,000. The number of humanitarian paroles, if the individual has not departed or has not adjusted status, will be counted against that number.
  • A new classification is created for the alien parents of adult U.S. citizens for admission for five years, but will not be able to receive public benefits or work authorization.
  • A person cannot naturalize if the person who executed an affidavit of support failed to reimburse the Federal Government for all mean-tested public benefits received by the person during the 5-year period.
  • Annual and quadrennial reports will be required to monitor the progress and numbers.
  • The creation of an immigration points system to replace the employment-based immigrant visa categories.
  • Effective date will be the first day of the first fiscal year that begins after the date of enactment.  Those exempt are those who have been granted admission prior to enactment, but he or she will need to enter within one year of enactment.

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USCIS Posts Comprehensive Reports Containing H-1B and EAD Data

Posted in Employment Authorization, Executive Order, H-1B, USCIS, Visas

Under the heading “Transparency for U.S. Workers,” the U.S. Citizenship and Immigration Services (USCIS) uploaded five reports today containing comprehensive data regarding its H-1B and Employment Authorization Documents (EAD) adjudications. The H-1B reports “provide information about the hiring practices of employers who petition for foreign national workers.” The H-1B trend report contains statistics about the H-1B program from 2007 through 2017. The data listed in this report includes H-1B beneficiary country of birth, age, occupational category, industry, compensation, and education level. The other two H-1B reports are nearly 1,000 pages each and list every company with approved H-1B petitions in fiscal years 2015 and 2016. These reports contain the employers’ total number of approved H-1B petitions, and the average salaries and types of degrees held by the H-1B beneficiaries. The EAD reports list the total number of approved EADs for each immigration category where employment authorization is available to foreign nationals. The reports are separated into immigration classes that are employment-authorized by statute and those immigration classes that are employment-authorized at the discretion of the Secretary of Homeland Security.

The release of these reports coincided with a USCIS teleconference listening session today on the April 17, 2017, Presidential Executive Order, Buy American and Hire American. To review a discussion of this EO, please see our previous post. During the session, USCIS encouraged participants to share their ideas on how to make sure employment-based visa programs are not negatively affecting U.S. workers. USCIS said it was especially interested in feedback regarding the H, L, and E visa classifications and how to utilize those visa programs to protect U.S. workers and wages. USCIS also solicited ideas as to how to ensure H-1Bs (which are subject to an annual quota) are awarded to the best and the brightest.

USCIS announced that DHS and USCIS were working on memoranda to provide new guidance to protect the interests of U.S. workers, including through the prevention of fraud and abuse. USCIS emphasized that all employment-based programs are under review and that the goal was to ensure that these programs are designed to serve U.S. interests and are prioritizing the interests of U.S. workers.

The H-1B and EAD reports are available on USCIS’s website at https://www.uscis.gov/buy-american-hire-american-putting-american-workers-first.

USCIS to Resume Premium Processing for Certain Cap-Exempt Institutions

Posted in H-1B, H-1B Cap, USCIS

On June 20, the USCIS Ombudsman office held a teleconference on H-1B petition processing to discuss various topics, including premium processing.  Premium processing for H-1B petitions had been suspended in mid-March of this year so that resources could be focused on processing current petitions.  During the call, USCIS stated that it would bring back premium processing incrementally.  On June 26, it resumed premium processing for all H-1B petitions filed for medical doctors under the Conrad 30 Waiver program.

Just today, USCIS announced that it would resume premium processing for certain cap-exempt petitions, effective immediately.  Premium processing will resume for the following petitions, if the H-1B petitioner is:

  • An institution of higher education;
  • A nonprofit related to or affiliated with an institution of higher education; or
  • A nonprofit research or governmental research organization.

Premium processing will also resume for petitions that may also be exempt if the beneficiary will be employed at a qualifying cap-exempt institution, organization, or entity.  This is a further step in USCIS “incrementally” bringing back premium processing for H-1B petitions.

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USCIS Issues New Visa Bulletin Tutorial for I-485 Applications

Posted in Adjustment of Status, Green Card, Immigrant Visa, USCIS, Visas

USCIS has issued a new online tutorial for immigrants that will help determine when a Form I-485, Application for Adjustment of Status, can be filed with USCIS.  For those immigrants who have a family-based or employment-based immigrant petition filed or approved on their behalf, the new Visa Bulletin tutorial details how to determine your priority date and how to use the USCIS charts for determining when the Form I-485 can be filed with USCIS.

The tutorial explains that green cards and immigrant visa numbers for immediate relatives (spouses of U.S. citizens, unmarried children under 21 of US citizens, and parents of U.S. citizens) are unlimited, and therefore an I-485 can be filed at the same time the qualifying relative files Form I-130, Immigrant Petition for Alien Relative.  It also explains that green cards for family-sponsored and employment-sponsored green cards are limited each year, and thus the Visa Bulletin must be consulted to determine when the I-485 Application can be filed.  The key to determining when the I-485 Application can be filed with USCIS is understanding the “priority date,” which is the date that either the immigrant petition is filed with USCIS or the date that the labor certification application was filed with the US Department of Labor (if applicable).

USCIS’ webpage also explains when to use the “Final Action Date” chart and when to use the “Dates for Filing Visa Applications” chart to determine when the I-485 Application can be filed based upon the immigrant’s priority date.  If USCIS determines that there are more immigrant visas available for a fiscal year than there are known applicants for such visas, USCIS will state on this page that you may use the Dates for Filing Visa Applications chart. Otherwise, USCIS will indicate on this page that you must use the Application Final Action Dates chart to determine when you may file the I-485 Application.  The State Department updates the Visa Bulletin on a monthly basis, and USCIS also will update its charts on a monthly basis accordingly, so immigrants are encouraged to check these charts monthly to determine if the I-485 Application can be filed with USCIS.

USCIS Confirms all 2018 H-1B Cap-Subject Petitions Returned

Posted in H-1B, H-1B Cap, USCIS

Today, USCIS announced that it has now returned all cap-subject H-1B petitions to employers or their representatives that were not selected in fiscal year 2018 following the lottery process.  Any employer that hasn’t received a receipt notice or returned H-1B petition by July 31, 2017, should contact USCIS for assistance.

The H-1B cap for fiscal year 2019 will open on April 2, 2018.  It will remain open for a mandated period of five business days.  We anticipate that demand for H-1B petitions will be very high again next year requiring USCIS to close the cap after the five-business-day period is completed.  All filed petitions will then be subject to a computer-generated random selection process shortly after the cap closes.

Employers should assess alternative visa options for any employee who wasn’t selected in this year’s H-1B cap. Please reach out to your GT contact for more information.

The Department of Homeland Security Adds an Additional 15,000 Visas to the H-2B Program

Posted in Department of Homeland Security, Department of Labor, H-2B, Visas

The Department of Homeland Security (DHS) and The Department of Labor (DOL) have submitted a final rule to the Federal Register, which will be published on July 18, 2017, increasing the number of H-2B visas by 15,000. DHS Secretary John Kelly determined, along with DOL Secretary Alexander Acosta, that there are not enough qualified and willing U.S. workers available to U.S. businesses for the remainder of the fiscal year and that these businesses may suffer “irreparable harm” if they are unable to hire additional workers.

The annual cap for H-2B visas is 66,000, with half available during the first half of the fiscal year, and the remainder available during the latter half. The annual cap of 66,000 was reached on March 13, 2017, and in May 2017 Congress delegated authority to the DOL to determine whether the numbers should be increased. With the additional 15,000 visas added, employers, who can begin submitting petitions this week, will need to attest, under penalty of perjury, that their business is likely to suffer irreparable harm if it cannot employ H-2B workers for the 2017 fiscal year. This attestation will appear on the form that will be filed with the petition. There has also been a new tip line to report general H-2B abuse and employer violations and the information can be submitted to ReportH2BAbuse@uscis.dhs.gov.

Update On FAQs After Hawaii District Court Decision

Posted in Customs and Border Protection, Department of State, Executive Order, Supreme Court, Travel

On July 14, 2017, Judge Derrick Watson from the Hawaii District Court expanded the definition of “close familial relationship” to include grandparents, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins.

In addition, Judge Watson ruled that for refugees, a bona fide relationship with an entity can include a U.S. resettlement agency that has issued a “formal assurance.”  In this situation, the U.S. cannot block entry of a refugee.

To read previous alert, click here.

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