Greenberg Traurig Attorney Jennifer Hermansky was recently selected as one of The Legal Intelligencer’s 2016 ‘Top Women in Law’. The Legal Intelligencer recently interviewed Hermansky to provide insight into her career as an immigration attorney and her success. To read the full interview, click here.
Getting the green card is typically the last step in the Lawful Permanent Resident application process, one that immigrants look forward to for many months or even years. Unfortunately, as confirmed by a recent report by the U.S. Department of Homeland Security (DHS), USCIS has experienced many problems lately with correct and timely green card issuance. Specifically, the report by DHS’ Office of Inspector General (OIG) reviewed USCIS’ improper green card issuance and its plans to prevent such errors in the future.
Many of USCIS’ errors were due to limitations of the Electronic Immigration System (ELIS). ELIS is an online system, originally deployed in May 2012. Through ELIS, the initial processing of the USCIS immigrant fee is paid. Now, ELIS also allows for the processing of new and replacement green cards online.
In its report, the OIG found that over the past three years, USCIS issued at least 19,000 cards that included incorrect information or were issued in duplicate. The majority of errors regarding cards issued with incorrect expiration dates (including the issuance of cards with 10-year expiration dates to immigrants with conditional status who should have been issued cards with 2-year expiration dates), names, birthdates, “residence since” dates, and issuance of duplicate cards were caused by ELIS issues. USCIS has not been effective in its efforts to recover improperly issued green cards, according to the report.
Further, over the past three years, the OIG found that USCIS received over 200,000 reports from approved applicants about missing cards. The report confirms that “complaints regarding the non-delivery of green cards have remained in USCIS’ top 10 most common service requests since FY 2011.” Immigrants may contact USCIS to file a complaint regarding their missing Card if they have not received it after more than 30 days since receiving the welcome notice following Adjustment of Status or after 120 days since paying the USCIS immigrant fee or entering the United States with an immigrant visa (if the fee was paid prior to arrival) following consular processing. They should be sure to keep a record of their IOE number from the ELIS system in order to track the Card production with USCIS.
According to the report, green cards are often lost because they are mailed to the wrong address, which may pose a significant security risk. The errors in mailing address are due in large part to the ELIS system limitation regarding updating addresses. Green cards also go missing due to factors beyond USCIS’ control, such as mail theft or misrouted mail. Per the OIG report, USCIS is considering alternative delivery options to improve the missing card problem, including a 2017 pilot program in which a “hold for pickup” option will be utilized.
The OIG found that USCIS’ efforts thus far to resolve these problems, such as manual review of data accuracy, were inadequate. While ultimately the number of improperly issued green cards is a small percentage of the total number issued, improper green card issuance is not only detrimental to the individual immigrant but also costly and cumbersome to USCIS. In fact, USCIS spent almost “$1.5 million to address card-related customer inquiries in FY 2015 alone,” per the report. The OIG recommends that USCIS improve its ELIS system functionality and develop internal processes to avoid or limit inappropriate green card issuance, standardize green card recovery and tracking efforts, and overall increase security efforts.
The Director of USCIS has generally agreed with the OIG’s recommendations, and a response is included in the report. For updates on USCIS’ efforts to improve green card issuance, please subscribe to this blog.
The Department of Homeland Security (DHS) recently released a final rule updating its Freedom of Information Act (FOIA) regulations. FOIA gives any person the right to request access to federal agency records or information. Each federal agency is required under the FOIA to disclose records requested in writing by any person.
The final rule extends the appeals period from 60 to 90 days, which gives the person requesting information more time to appeal DHS’ response to an information request. The final rule also allows an agency to charge fees even though its response to the information request is untimely under several situations, including: (1) exceptional circumstances that were found by a court, such as unusual circumstances that have been timely advised to the information requester; (2) where more than 5,000 pages are necessary to respond to the request; and (3) when the office that processes FOIA requests has contacted the requester on ways to narrow the scope of the FOIA request. DHS also changed the language regarding a reference to public records in its final rule saying public records must be available “for public inspection in an electronic format.”
DHS receives more FOIA requests than any other federal agency. We expect the final rule to help update and streamline FOIA procedure and improve access to DHS records.
This week the Equal Employment Opportunity Commission (“EEOC”) released guidance regarding national origin discrimination under Title VII of the Civil Rights Act of 1964 (Title VII). The guidance replaces Section 13 of the EEOC’s compliance manual, with a view toward further defining “national origin” and helping employers and employees understand their legal rights and responsibilities. The guidance specifically states that Title VII applies to any worker employed in the United States by a covered employer (employer with more than four employees), regardless of immigration status, as well as any foreign national outside the United States when they apply for U.S.-based employment.
The new guidance defines “national origin” as an individual’s, or his or her ancestors’, place of origin, which can be a country (including the United States), a former country, or a geographic region. In addition, “national origin” refers to an individual’s national origin group or ethnic group, which it defines as “a group of people sharing a common language, culture, ancestry, race, and/or other social characteristics.” Discrimination based on national origin group includes discrimination because of a person’s ethnicity (e.g., Hispanic) or physical, linguistic, or cultural traits (e.g., accent or style of dress). Discrimination based on place of origin or national origin group includes discrimination involving a mere perception of where a person is from (e.g., Middle Eastern or Arab), association with someone of a particular national origin, or citizenship status. Title VII discrimination can take the form of unfavorable employment decisions based on national origin or harassment so pervasive or severe that it creates a hostile work environment.
In addition to clarifying the meaning of “national origin,” the guidance provides examples based on how actual courts have applied Title VII to specific facts. For example, the guidance gives as an example of “intersectional” discrimination a Mexican-American woman who, without explanation, was denied a promotion at a company where she successfully worked for 10 years, despite two non-Mexican women and a Mexican man being selected for the same position. The guidance also provides examples where national origin discrimination overlaps with other protected bases, such as discriminating against people with origins in the Middle East due to a perception that they follow certain religious practices. Further, the guidance gives examples of real cases where employment decisions and harassment constituted Title VII national origin violations, as well as cases where Title VII violations were not found. Finally, the guidance applies Title VII national origin principles to trafficking cases, where employers use force, fraud, or coercion to compel labor or exploit workers, and such conduct is directed at an individual or a group of individuals based on national origin.
Employers of foreign national workers should note that individuals with Title VII claims may also have claims under other Federal statutes, including the anti-discrimination provision of the Immigration and Nationality Act (INA). Form I-9 and the E-Verify program are two areas where discrimination claims could arise under both the INA and Title VII. Employers who are concerned with compliance in either of these areas should consult an immigration attorney.
On Nov. 18, 2016, the Department of Homeland Security (“DHS”) published its final rule to “modernize and improve” employment-based non-immigrant and immigrant visa programs. As stated by DHS, the primary purpose of the improvements is to enhance the ability of U.S. employers to hire and retain specific foreign national employees who are the beneficiaries of approved employment-based immigrant visa petitions. The improved rule puts in writing many DHS policies and practices that DHS has established in response to certain provisions of the American Competitiveness and Workforce Improvement Act of 1998. The final rule is effective on Jan. 17, 2017.
Key improvements, and potential impact to employers and foreign nationals, are listed below broken down by non-immigrant vs. immigrant processes:
- 10-Day Non-immigrant Grace Period for Entering and Departing the United States: Similar to H-1B visa holders, non-immigrants who seek to enter the United States in E-1, E-2, E-3, L-1, or TN classification, may enter the United States as early as 10 days prior to the start of their petition validity. The rule also allows a second 10-day grace period for these non-immigrant visa holders to depart the United States or seek alternative visa arrangements at the conclusion of their petition validity. A 10-day grace period for non-immigrants to enter the United States prior to commencing employment allows non-immigrants to plan and secure housing, and become acclimated to their new environment prior to beginning work in the United States. A 10-day grace to depart the United States allows for non-immigrants to adequately wind down their affairs prior to departing the United States without violating their immigration statuses, and possibly jeopardizing their ability to obtain future immigration benefits as a result.
- 60-Day Non-immigrant Grace Period: Non-immigrants who hold E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, or TN classification in the United States can remain in the United States for up to 60 consecutive days after their employment ends with their current Petitioner/Employer. A 60-day grace period for non-immigrants to remain in the United States allows the non-immigrant to seek alternative employment and visa sponsorship, or wind down their affairs in the United States without violating their immigration statuses, and possibly jeopardizing their ability to obtain future immigration benefits as a result. Non-immigrants who secure employment-sponsorship within the 60-day grace period may begin working for the new employer upon the filing or approval of the non-immigrant petition without first having to travel to a U.S. Consulate abroad for visa activation under a process known as consular notification.
- H-1B Duties Without Licensure: USCIS is permitting H-1B non-immigrants to work in occupations that normally require state licensure to practice fully the occupation under the supervision of a licensed senior personnel employee. For the H-1B non-immigrant to work in an occupation without a license, the Petitioner/Employer must provide evidence that it is fully complying with state requirements regarding licensure.
- USCIS Processing Time for I-765, Application for Employment Authorization: USCIS is eliminating the 90-day processing time for applications for employment authorization documents (“EAD”), or EAD renewal applications, but will continue to process EAD applications within a “reasonable time.”
- Automatic Extensions for EAD Renewals: Upon the timely filing of an EAD renewal with USCIS for foreign nationals who are in the United States under temporary protected status, USCIS will automatically extend the existing EAD for 180 days while USCIS is adjudicating the TPS and EAD renewal applications.
- Priority Date Clarification: The priority date of any petition filed with a labor certification from the Department of Labor (“DOL”) will be the date the labor certification application was accepted for processing by the DOL. For I-140 petitions that do not require a labor certification, the priority date is the date the petition was accepted by the USCIS for processing and was properly filed.
- Priority Date Retention: I-140 petitions that have been approved under the EB-1, EB-2, or EB-3 categories shall accord the beneficiary that priority date for any subsequently filed petitions under the EB-1, EB-2, or EB-3 categories, and the earliest priority date will always be retained, unless the petition was revoked due to 1) fraud, willful misrepresentation; 2) revocation of the approved PERM application; 3) invalidation by USCIS or DOS of the PERM application; or 4) USCIS determination that the I-140 petition was approved based on a material error. In these cases, a denied I-140 petition will not accord a priority date.
- Validity of Approved I-140 Petition: Unless the approval is revoked, an I-140 petition is valid indefinitely.
- Eligibility for EAD Application: For individuals who have an I-140 petition approved pursuant to EB-1, EB-2, or EB-3 classification, the principal beneficiary may be eligible to apply for employment authorization pursuant to the following: 1) the individual is in E-3, H-1B, H-1B1, O-1, or L-1 nonimmigrant status; 2) an immigrant visa must not be available to the principal beneficiary at the time of application based on the priority date; and 3) USCIS determines that the principal beneficiary demonstrates compelling circumstances that justify the issuance of employment authorization. Eligible family members of the principal beneficiary may apply concurrently, but the employment authorization will not be granted until the principal beneficiary’s application is granted. The employment authorization may be renewed so long as the principal beneficiary’s priority date does not become current on the date of the EAD application, he or she is still eligible, and USCIS determines that a compelling reason remains.
- Revocation of I-140 Petitions: If the petitioning employer files to withdraw an approved I-140 petition, the approval remains if it has been approved for 180 days or more, or if an adjustment of status application pursuant to the I-140 petition has been pending for 180 days or more, unless the I-140 petition was revoked on other grounds. If the petitioner’s business has been terminated, and the termination happens 180 days after the I-140 petition approval or 180 days after the associated adjustment of status application has been pending, the I-140 approval remains valid.
- Adjustment of Status and Validity of Petition and Offer of Employment: An I-140 petition is validly filed if there is a valid offer of employment to the beneficiary at the time of petition submission, and at the time of petition adjudication. The applicant must intend to accept the offer at the time of petition adjudication, and USCIS may request evidence to demonstrate the following scenarios: 1) the employment offer from the petitioning employer is continuing; or 2) the applicant has a new job offer from the petitioning employer or a different employer in the same or similar occupational classification, if the applicant’s application to adjust status based on the immigrant visa petition has been pending for 180 days or more and the I-140 petition has been approved or was pending 180 days or more before the new job offer was accepted. The pending I-140 petition must still establish the employer’s ability to pay the proffered wage before the case will be adjudicated.
Greenberg Traurig’s Rebecca Schechter, of counsel, participated in the American Immigration Lawyers Association’s DC Chapter Fall Conference Nov. 16, 2016, held at the University of Maryland, in Rockville, MD. Rebecca was a panelist in the session titled “PERM Best Practices and Hot Topics.” This session addressed drafting job descriptions, prevailing wage requests, common recruitment issues, employer evaluations of applications, among other topics of interest.
The Department of Homeland Security (DHS) released the Fall Unified Agenda, updating the Improvement of the Employment Creation Immigrant Regulations. DHS has now moved the stage of rulemaking from “long-term actions” to “proposed rule stage.” This new release also changes the date of the Notice of Proposed Rulemaking (NPRM) from “to be determined” to January 2017. To read the full text of the release, please view the Spring 2016 update.
In addition, Statement of Need, Summary of the Legal Basis, and Anticipated Costs and Benefits sections have been added. Of note under “Anticipated Costs and Benefits” is that “the rule would benefit entrepreneurs seeking to participate in the program by providing the opportunity to mitigate the harsh consequences of unexpected changes to business conditions through priority date retention in limited circumstances.”
Greenberg Traurig will continue to monitor this activity and will provide an update as soon as the proposed rules are published.
Greenberg Traurig was proud to support and sponsor the National Immigration Forum 2016 Keepers of the American Dream event in Washington, D.C. The National Immigration Forum honored Emilio T. González, Ph.D., Distinguished Veteran and Public Servant, and Wendy Young, President, Kids in Need of Defense (KIND), for their achievements and significant contributions to immigrants in the United States and their leadership.
U.S. Citizenship and Immigration Services has released an updated version of the Form I-9, Employment Eligibility Verification. The new Form I-9, dated 11/14/2016 N, will become mandatory on Jan. 22, 2017, replacing the version dated 03/08/2013 N, which may continue to be used until Jan. 21, 2017. Under federal immigration law, employers must maintain a properly completed Form I-9 for all employees hired in the U.S. after Nov. 6, 1986.
The new Form I-9, which must be used for all newly hired employees and those who require the re-verification of their U.S. employment eligibility, contains a number of new features, including but not limited to:
1) Clarification of the “other names used” field in Section to request only “other last names used” and the numbering of immigration status categories in Section 1;
2) Additional details regarding the preparer/translator category, including the ability to select multiple preparers/translators;
3) A designated area to enter additional information that previously needed to be entered as a margin note, such as the auto-extension of an individual’s work-authorized status, where applicable;
4) A separate page (Page 3) for Section 3 of the Form I-9;
5) Additional prompts and electronic enhancements, such as drop-down lists and calendars, to facilitate the proper entry of required information.
For additional information regarding the publication of the new Form I-9 and how to use the new version of the form, please continue to monitor Inside Business Immigration and consult with your GT attorney.
On November 10, 2016, Laura Foote Reiff, Bob Maples, and Rebecca Schechter presented an Immigration Post-Election Update webinar highlighting some of the anticipated key changes to U.S. immigration policy (click here to listen to the webinar). President-elect Donald Trump will likely begin the change on current U.S. immigration policy as soon as he takes office. Laura Reiff and Rebecca Schechter highlight below what to expect:
- Repealing Executive Orders: President Barack Obama’s Executive Order for Deferred Action for Childhood Arrivals (DACA) will likely be repealed. DACA is not a status, but rather, it allowed certain undocumented persons apply for work authorization. If DACA is repealed, the work authorization is no longer valid, and the question remains as to whether any further actions will be taken for these individuals.
- Mandatory E-Verify: It is likely that legislation will be proposed that makes E-Verify mandatory for employers.
- Increased Enforcement: With President-elect Trump’s stance on immigration, employers will likely see more audits from USCIS and the Department of Labor, as well as more raids. The enforcement will focus on ensuring that employers are not hiring undocumented workers, and that jobs are not taken away from qualified U.S. workers.
- Building the Wall: A constant promise of President-elect Trump’s campaign has focused on building a wall on the U.S.- Mexico border. The wall is part of a larger plan for enforcement and border security, and it remains to be seen how this project will be financed.
- Extreme Vetting for Visitors into the U.S.: President-elect Trump has stated that he will temporarily suspend immigration for those who come from countries deemed dangerous and considered dangerous and volatile. “Extreme vetting” will most likely mean more intense scrutiny of citizens from countries that are considered “high-risk” and a deeper security review.
- H-1B and L-1 Nonimmigrant Visas: Another of President-elect Trump’s focuses during his campaign was on preserving jobs for American workers. To do so, it is anticipated that there will be more vetting and more requirements an employer must meet in order to petition for a foreign worker to work in H-1B or L visa status in the United States. This will most likely include additional scrutiny of the staffing industry’s placement of H-1B and L visa holder’s at third party sites.
- Treaty Visas: President-elect Trump has stated that he will renegotiate a number of treaties, one of which is the North American Free Trade Agreement (“NAFTA”). One provision of NAFTA allows for the movement of Mexican and Canadian citizens, who qualify under certain requirements in specific job categories, to lawfully work in the United States.
- Expiration of Four Immigration Programs: We are currently in a “lame duck” session, and the four programs – E-Verify, the “Conrad Waiver” for Rural Doctors, Religious Workers, and EB-5 Regional Center Program – have been temporarily extended in the Continuing Resolution until December 9, 2016. It is anticipated that there will be another short-term extension into February or March 2017.
Bob Maples, a federal lobbyist for the firm, commented that “for those businesses that have depended on Washington gridlock to protect you, it is time to make new plans as a Republican controlled Administration and Congress have the opportunity to get things done.” These are statements President-elect Trump made during his campaign. His policies and his ability to implement his statements may be different.
Greenberg Traurig will continue to monitor the transition period as well as President-elect Trump’s first 100 days in the White House and will continuously update on important developments.