60 Day Comment Period Announced: Proposed Changes to Form I-9

Posted in Form I-9, USCIS

On November 24, 2015, USCIS published a notice in the Federal Register [80 FR 73200] of proposed changes to the Form I-9, thereby initiating a 60 day public comment period through January 25, 2015.  The proposed changes aim to reduce the commission of technical errors on the Form I-9 and increase functionality for customers in completing the form on their computer as downloaded from the USCIS website.

Some of the proposed technical changes include preferences whereby the form:

  • Assists the customer by checking the fields to ensure information has been entered properly.
  • Offers additional space to enter multiple preparers and translators; additional space to enter further information that employers are currently required to note in the margins of the form.
  • Features drop-down lists and calendars.
  • Generates a quick-response matrix barcode (or QR code) once the form is printed — this can be used in the audit process.
  • Provides instructions to help the customer complete each field.

Some of the proposed substantive changes include:

  • Section 1:  instead of requiring employees to provide all other names used, only require other last names used.
  • Section 1:  streamline the certification for certain foreign nationals.
  • Instructions:  adhering to USCIS’ practice by separating the instructions from the form itself.
  • Instructions:  revise explanation of purpose of form for employers in the Commonwealth of the Northern Marina Islands (CNMI).
  • Instructions:   clarify instructions for completing the form for both employers and employees and the proper use of the Spanish version of the form.

Stakeholders wanting to submit a comment may do so by following the steps below:

  • Visit the website: http://www.regulations.gov
  • Enter the code in the search box: USCIS-2006-0068
  • Click the button: Comment Now!
  • Note: comments submitted will be posted and will include any personal information provided

At the conclusion of the 60 day public comment period, USCIS may make revisions to the Form I-9 based on comments received and will publish a second notice for comment.  The public will have an additional 30 day period to provide comment on the proposed changes.  USCIS will keep the public apprised of the comment periods and any changes to the Form I-9 through their site: I-9 Central.

U.S. Passport Book Changes

Posted in General, U.S. Department of State ("DOS"), Visas

On Nov. 20, 2015, the U.S. Department of State (DOS) issued a final rule on the elimination of the visa page insert service within U.S. Passports.  Earlier in the year, DOS published a notice of proposed rulemaking that eliminated the visa page insert service for regular fee passport book holders. This rule will become effective on Jan. 1, 2016, and will coincide with the DOS expected issuance of an updated version of the passport book. [80 FR 72591]. The primary reason given for eliminating visa page inserts is to enhance the security of the U.S. Passport, and to abide by international passport standards.

Previously, U.S. Passport holders had the option of paying for the visa page inserts to accommodate their travel needs for entry/exit visa stamps. The DOS explains that, historically, there has been very limited demand for the visa page insert service. Frequent travelers applying from within the U.S. can request a 28-page or 52-page U.S. Passport book. U.S. citizens applying from outside the U.S. will routinely receive 52-page U.S. Passport books.

Additionally, the DOS final rule in the Federal Register provides interesting data relating to U.S. travelers:

  • The average U.S. passport holder uses six or fewer visa pages.
  • 97 percent of all U.S. passport holders will have used 17 pages or less by the time they renew their U.S. passport.
  • Less than one percent of U.S. passport holders will have used more than 32 pages when they renew their passport.
  • On average, applicants for visa page inserts for a U.S. passport do so seven years after the passport was issued, and 17 percent of these travelers had the smaller U.S. passport book to start with.

[80 FR 72591, 11/20/2015]

Office of Special Counsel Settlement Re Immigrant Discrimination

Posted in Immigration and Nationality Act, Lawful Permanent Residents

Recently, the Department of Justice, Office of Special Counsel for Immigration-Related Unfair Employment Practices (‘OSC’) entered into a settlement agreement with a landscaping company following allegations of immigrant discrimination.  The DOJ lawsuit against the company concerned corporate practices requiring Lawful Permanent Residents (green card holders) to produce their green cards in order to prove their work authorization– a practice in direct violation of the law [Immigration and Nationality Act (INA) Section 274B / 8 U.S.C. Section 1324b(a)(6)].

The OSC investigation concluded the landscaping company required Lawful Permanent Residents provide their green cards in order to prove work authorization in the employment verification process whereas US citizens could select whatever valid documentation they wanted to demonstrate work authorization.  The resulting settlement requires the company pay thousands of dollars in civil penalties, undertake training on the anti-discrimination provision of the INA, and undergo monitoring and reporting.

The OSC is responsible for enforcing the federal anti-discrimination provision of the INA. This includes investigating and enforcing the anti-discrimination laws which prohibit citizenship status and national origin discrimination in hiring, firing, recruitment; document abuse, such as unfair documentary practices during the employment verification process/Form I-9; retaliation or intimidation.  Specifically, the anti-discrimination provision of the INA prohibits employers from placing additional documentary burdens on employees authorized to work  because of their citizenship or immigration status.

The Form I-9 requires the employee to submit documentation verifying their identity and authorization to work in the United States.  The Form includes lists of documents the employee may use to satisfy the requirements and it is the employee’s choice alone as to which documents they elect to submit.  For example, a Lawful Permanent Resident is not required to submit their green card to satisfy the Form I-9 employment verification requirements; rather, the Lawful Permanent Resident may elect to submit any of the documents/permissible combination of documents listed on the Form I-9 to establish their employment authorization (no different from a US Citizen completing the Form I-9).  Requiring certain employees to produce unnecessary documentation based on their citizenship or immigration status is discriminatory and actionable.

It is important for employers to remember that Lawful Permanent Residents are issued green cards and have authorization to live and work in the United States permanently.  While the green card generally contains an expiration date, the expiration of the green card does not indicate the holder has lost his or her permanent resident status in the United States.  In other words, simply because the green card expires does not mean the individual has lost their right to work in the US.  However, a Lawful  Permanent Resident cannot use an expired green card for Form I-9 employment verification purposes; generally, an employer may not accept expired documents in the Form I-9 process.

The recent OSC settlements are a reminder to employers across the country of the employment verification requirements and the consequences for engaging in discriminatory practices.  The OSC is committed to protecting all individuals authorized to work in the US from discriminatory practices and this case illustrates they will vigorously investigate and enforce the anti-discrimination provision of the INA.

Greenberg Traurig Immigration Attorneys Present as Guest Lecturers to Wharton School of Business

Posted in Events

This past week, Greenberg Traurig attorneys, Matthew Galati and Shaun Staller, presented to The University of Pennsylvania’s Wharton School of Business as guest lecturers for the institution’s “The Law at Work: Employment Law for Managers” class.

Galati provided an overview of the immigration landscape in the context of employment and the business-related nonimmigrant and immigrant visa categories.  Staller discussed I-9 compliance, anti-discrimination provisions, and the E-Verify program, which are issues central to all employers in the U.S.

The two also fielded questions from students, including recent developments in immigration law and policy, as well as the use of capital under the Immigrant Investor Program.

photo 1

Shaun Staller discusses various immigration matters with Wharton School of Business and University of Pennsylvania students.

Greenberg Traurig Webinar November 2015 Immigration Update

Posted in Firm News, Visa Bulletin, webinar

Greenberg Traurig will provide an informative webinar discussing recent changes to the Visa Bulletin and proposed changes to the STEM OPT program.  Company representatives are encouraged to extend the invitation to foreign national employees within their organization.  To register for this webinar, please click here.

USCIS Provides Guidance on Immigrant Visa Availability and Priority Dates

Posted in Immigrant Visa, Visa Bulletin, Visas

The Basics of Immigrant Visa Availability

The Immigration and Nationality Act (INA) sets a limit on the number of immigrant visas (i.e. green cards) that may be issued to foreign nationals each year, and the U.S. Department of State (DOS) is the agency that allocates the aforementioned immigrant visas.

There are an unlimited number of immigrant visas available each year for “immediate relatives” of U.S. citizens. “Immediate Relatives” include spouses, unmarried children under the age of 21, parents of U.S. citizens at least 21 years old, and surviving spouses of U.S. citizens if the U.S. citizen spouse filed a petition before his or her death, or the surviving spouse files a petition within two years of the U.S. citizen’s death.

There are approximately 226,000 immigrant visas available each year in the family-sponsored preference categories; employment-based preference category immigrant visas are typically limited to 140,000 visas per year. However, these numbers may increase when immigrant visas from the previous fiscal year’s allotment are not used up. DOS further distributes based on preference category, country of chargeability (usually country of birth) and priority date.

Priority Dates

When the demand for immigrant visas exceeds the number of visas available, a waiting list for immigrant visa availability forms and the priority date is used to determine an individual’s place in the visa queue.

The priority date is located on a prospective immigrant’s Form I-797 Notice of Action for the relevant immigrant visa petition filed on their behalf. For most family-sponsored preference categories, the priority date is the date the Form I-130, Petition for Alien Relative is filed with USCIS. For employment-based preference categories that require a labor certification from the Department of Labor (DOL), the priority date is the date that the labor certification application is filed with the DOL, and the petitioner must file an I-140, Immigrant Petition for Alien Worker with USCIS within 180 days from the date the labor certification is approved. For employment-based preference categories that do not require a DOL labor certification, the priority date is the date the immigrant visa application is filed with USCIS for processing.

Only when a prospective immigrant’s priority date is earlier than the cut-off date shown for a given preference category and country of chargeability in the relevant chart of the monthly Visa Bulletin (also known as when the priority date is “current”) is a visa number available. When an individual’s priority date is current, he or she can take one of the final steps in the process of obtaining lawful permanent residence status in the U.S.

Sometimes, the visa cut-off date will move backwards or “retrogress” to an earlier date, and a priority date that is current one month will no longer be current the next month. This occurs when the number of people who apply for a visa in a given category exceeds the number of available immigrant visas that month.

Adjustment of Status Applications

Individuals present in the U.S. can file a Form I-485, Application to Register Permanent Residence of Adjust Status in connection with a family-sponsored or employment-based immigrant visa petition according to the monthly Visa Bulletin published by DOS. The monthly DOS Visa Bulletin indicates the availability of immigrant visas according to “Application Final Action Dates” and “Dates for Filing Applications.” Usually the “Application Final Action Dates” chart will determine when a prospective immigrant is eligible to file an adjustment of status application with USCIS.

When immigrant visas are currently available based on preference category, country of chargeability and priority date, a prospective immigrant can file his or her Form I-485 adjustment of status application concurrently with an underlying family-sponsored or employment-based immigrant petition.

As part of the adjustment of status application, an applicant must submit a Form I-693, Report of Medical Examination and Vaccination Record. However, the Form I-693 has limited validity and thus many applicants choose to wait to provide the Form I-693 until after receiving a Request for Evidence (RFE) or an immigrant visa interview to avoid having to repeat the immigration medical examination.

Along with a Form I-485 adjustment of status application, the applicant can also apply for a combination Employment Authorization Document (EAD)/Advance Parole card, which serves as a prospective immigrant’s work and travel authorization while the adjustment of status application is pending. This EAD/Advance Parole combo card is valid for one year but can be extended until the Form I-485 is processed.  

Finally, a prospective immigrant can request to have a pending I-485 Application for Adjustment of Status transferred from one immigrant visa eligibility basis to another, as long as the applicant is the beneficiary of a pending or approved visa petition in the new preference category. In order to quality, the priority date must be current in the new category and for the prospective immigrant’s country of chargeability on the date the transfer is filed.

Pending Adjustment of Status Applications and AC21

Under Section 204(j) of the American Competitiveness in the Twenty-First Century Act (AC21), a prospective immigrant with employment-based Form I-485 pending for 180 days or more can seek to “port” to a new job in the same or similar occupational classification before final adjudication of the adjustment of status application.

Under AC21 Section 104(c), the beneficiary of an approved I-40 petition can extend his or her H-1B status beyond the six-year H-1B limitation if a he or she is eligible for lawful permanent resident status but a cannot currently file to adjust status due to lack of current availability of a visa number. To determine whether an individual is eligible for this benefit, USCIS relies on the “Application Final Action Dates” chart of the Visa Bulletin: if the priority date is on or after the cut-off date listed in the chart for the individual’s preference category and country of chargeability, then he or she may be eligible for an H-1B extension under AC21 Section 104(c).


Summary of AILA’s Monthly Check-In With Charlie Oppenheim

Posted in Visa Bulletin

On November 9, 2015 the December 2015 Visa Bulletin was released. Immediately following publication of the December 2015 Visa Bulletin, AILA “checked in” with Charlie Oppenheim, Chief of the Visa Control and Reporting Division, U.S. Department of State, for his analysis of current trends and future projections for the various immigrant preference categories. The following are highlights of Mr. Oppenheim’s projections for monthly final action date movement through the first quarter of 2016:

 EB-2 India

Per the December 2015 Visa Bulletin, the final action dates for EB-2 India will advance ten months to June 1, 2007. Mr. Oppenheim projects that EB-2 India may advance monthly by as many as eight months in the upcoming months. He expects that this EB-2 movement may spark EB-3 India upgrades beginning in December 2015/January 2016, which will impact demand and eventually slow EB-2 India advancement in early 2016.

 EB-2 and EB-3 China

The EB-2 China final action date remains unchanged for December 2015 and Mr. Oppenheim expects that this date will remain the same in the upcoming months, given that immigrant visa number use is expected to exceed targeted usage for the first quarter of fiscal year 2016.

The EB-3 China final action date is later than the EB-2 China final action date, and thus Mr. Oppenheim anticipates that some EB-2 China cases will downgrade to EB-3. This may result in an increased EB-3 demand which could slow or even retrogress that category, thereby allowing EB-2 China to advance again. Mr. Oppenheim expects that this rebalancing may occur as early as April 2016

 F-2A and F-2B

Mr. Oppenheim predicts that we will continue to see advancements in family-based 2B and 2A categories. Family-based 2B category dates have advanced to the point where demand is increasing, due to the fact that this category advanced quickly last year when demand did not materialize. Similarly, Mr. Oppenheim expects to see advancements in family-based 2A category dates until sufficient demand materializes.

Impact of New “Filing Dates”

The initial data does not indicate that the new “filing dates” process adopted by USCIS will show enough demand to be meaningful. However, Mr. Oppenheim does not expect that we will have better visibility with regard to immigrant visa demand to even out priority date movement in the employment-based immigrant visa categories until April 2016, when USCIS begins requesting visa numbers based on October 2015 filings.


DOS Cable Update On Personal/Domestic Employees

Posted in Department of State, Foreign Affairs Manual

The Department of State (“DOS”) issued a cable, which updates a provision of the Foreign Affairs Manual that deals with personal/domestic employees of U.S. citizens on temporary assignment in the United States. The cable advises that the length of stay for a qualified employee is increased from FOUR to SIX years.

In general, to qualify, the personal/domestic employee must accompany, or follow to join, a U.S. citizen employer temporarily assigned to the U.S.  Certain conditions must be met to the satisfaction of the consular officer, in order to permit the issuance of the visa, namely:

1. The employee must have a residence abroad to which he/she intends to return;

2. The foreign national has been employed abroad by the U.S. employer for at least six months prior to the employer’s admission to the U.S., OR the employer can show that while abroad he has regularly employed someone in the same capacity;

3. The foreign national can demonstrate at least one year experience as a domestic or personal worker; and

4. There exists an employment contract between the foreign national and the U.S. employer containing certain specified conditions.

To qualify as a U.S. employer, a person must be subject to frequent international transfers, lasting two years or more as a condition of the position, and be returning to the United States for a stay of no more than six years. This visa is used most often by personal/domestic employees of U.S. government personnel subject to foreign assignments, or U.S. employees of global corporations.

December Visa Bulletin Shows Little Movement But Contains Projections for Future Movement

Posted in U.S. Department of State ("DOS"), Visa Bulletin

The Department of State’s (“DOS”) December 2015 Visa Bulletin showed minor movements in the employment-based visa categories.  The most significant movement was in the Indian EB-2 category which advanced  by 10 months to June 1, 2007.  All other employment-based categories showed slow advances by few weeks, except for Mainland China EB-3 and Other Worker categories that advanced by 10 weeks to April 15, 2012, and by 12 weeks to August 1, 2006, respectively.  There was no movement in the Dates for Filing in the employment-based categories.

The December Visa Bulletin contained the following additional information:

  1. The Bulletin advised about the upcoming scheduled expiration of the non-minister special immigrant program and the immigrant investor pilot program (“EB-5 Visas”) on December 11, 2015, unless Congress acts to extended these programs.
  1. The Bulletin contained a prognosis of visa movement in the coming months.  For the employment-based visa categories, possible movements are as follows:
  1. EB-2 China:  Little or no movement
  2. EB-2 India:   Up to eight months
  3. EB-3 China:  Rapid forward movement with possible “corrective” action as early as April, 2016
  4. EB-3 India:  Up to three weeks
  5. EB-3 Philippines:  Four to six weeks
  6. EB-5 China:  Slow forward movement
  1. New 9 FAM-e.  The Visa Bulletin announced that on November 18, 2015, the printed Volume 9 of the Foreign Affairs Manual will be replaced by the 9 FAM-e and as of that date the e-version will become the authoritative source for visa guidance.  The new e-version overhauls language and organization of Volume 9 of the FAM, but does not alter the substance of the old printed version.

Final Action Dates for Employment-Based Preference Cases

chart 1

Dates for Filing of Employment-Based Visa Applications 

chart 2

High L-1B Denial Rates and Inconsistencies in Approval Rates for Indian Nationals

Posted in India, L-1B, USCIS

L-1B petitions for the transfer of specialized knowledge workers continue to receive increased scrutiny from United States Citizenship and Immigration Services (“USCIS”).  As discussed in our blog post on June 5, 2015, the recent years have marked a notable increase in Requests for Evidence and ultimate petition denials for this particular visa category.  USCIS statistics show that in the first quarter of the 2015 fiscal year, the agency processed 3,278 petitions.  Of the petitions processed, a staggering 1,020 petitions (or 31%) were denied.   

One might assume that denial rates are consistent regardless of nationality; however, data from the National Foundation for American Policy indicates that the denial rate for L-1B petitions varies widely depending on nationality of the beneficiary.  Most notably the denial rate for petitions filed on behalf of Indian nationals is significantly higher than that for employees of other nationalities.  While the L-1B denial rate for fiscal years 2012-2014 is 13%, Indian nationals experienced denial rates of 56%. 

These statistics also show the dramatic increase in denials over the past several years.  Denial rates were consistently under 10% before 2008, and reached an all-time high of 35% in fiscal year 2014.  

chart 1

Indian nationals are not the only employees with denial percentages falling outside of the norm.  The denial rates for Canadian nationals historically trend in the opposite direction, as evidenced by a denial rate of only 4% for fiscal years 2012-2014.  Canadians, who do not need visa stamps to enter the United States, generally process L-1B petitions at U.S. ports-of-entry or pre-flight inspection facilities.  This may explain the low rate of denials Canadians experience.  A chart from the National Foundation for American Policy shows the denial rates for several countries below.

chart 2