Major Changes for Canadians Seeking to Extend Their L-1 Status

Posted in Canada, Customs and Border Protection, L-1

Until recently, Canadians working and living in the United States as L-1 intra-company transferees could extend their L-1 status relatively easily, applying in the same manner they applied for their initial L entry with U.S. Customs and Border Protection (CBP). However, a new interpretation of the applicable regulations adopted by CBP at all ports of entry and pre-clearance locations in Canada has abruptly ended the status quo. Employers of Canadians in the U.S. in L-1 status need to be aware of this and plan accordingly.

Based on the North American Free Trade Agreement (NAFTA), which became effective in 1994, Canadians seeking L-1 status sponsored by a qualifying multinational company in the U.S. can petition for this non-immigrant classification in-person with CBP in Canada at a port of entry or at an airport with Pre-Flight Inspection. CBP adjudicates these petitions same-day, efficiently facilitating the transfer of an employee found to be critical to the sponsoring company’s U.S. operations. This quick and straightforward processing is in line with the objective of NAFTA, to lessen the barriers between the U.S. and Canada to better enable and advance economic activity. Further, NAFTA’s aim to reduce restrictions has further been fulfilled by the United States’ elimination of the visa requirement for Canadian L-1 employees and their dependents in L-2 status to enter the country.

For years, Canadians routinely submitted petitions to renew/extend their L-1 status beyond the initially granted three-year period. Now, CBP is refusing to process any petition that can be considered a renewal or extension, referring to nuances within the controlling regulations that could apply in such instances. While there are legal arguments and sound logic supporting CBP’s authority to adjudicate L-1 renewal or extension petitions for Canadians, the regulations do not prima facie grant CBP this power; conversely, it is explicitly granted to USCIS.

At first, in early 2019, only some ports of entry and pre-clearance locations had adopted this narrow interpretation of CBP’s authority. Now it has been reported in place throughout all of Canada. There has not been an official policy announcement by CBP regarding this drastic departure from how they operated regarding this issue for years.

This is a major change for companies with Canadians working in the U.S. in L-1 status. Instead of sending employees on a quick trip to the border and back for their L-1 petition renewal, employers must now anticipate the more lengthy and involved process for petition extensions submitted to USCIS. Normal adjudication times are between 1.5 to 4.5 months,, according to USCIS’s current estimates. Employers can expedite this by electing premium processing for an additional fee of $1,410 that guarantees adjudication in 15 calendar days. However, this faster method may increase the chance of a Request for Evidence (RFE) being issued for the case.

Although an employee will remain in lawful status to live and work in the U.S. as long as an extension petition has been submitted to USCIS by the status expiration date, employees can face several problems. The validity of critical documents such as drivers’ licenses are often limited to status expiration date and may not be able to be renewed until approval of status extension has been granted. Further, employees may not be able to travel abroad and re-enter with L-1 status if the extension has not been granted.

There are additional complications for companies that routinely have Canadian employees work in the U.S. on an intermittent basis. Consider this instance: An employee could have been working in Canada most recently, but if the employee has been in the U.S. in L-1 status within the past 12-month period, CBP now might consider the submission of an L-1 petition by that employee an extension and refuse to process it. Yet CBP in Canada is not taking this approach uniformly. At some ports and preclearance locations, CBP is processing petitions for L-1 holders who intermittently work in the U.S. as long as they maintain a residence in Canada and spend less than 50% of their time in the U.S.

Finally, this new practice by CBP may be more difficult to navigate for multinational companies that frequently transfer employees to the U.S. based on their Blanket L Approval. A petition under the company’s Blanket L is one that an employee submits to a consular post abroad for adjudication by a consular officer who will also conduct an interview with the employee. The employee needs to wait only a few days before travel to the U.S. to allow the consular post time to issue a visa in the employee’s passport. This process is favored by companies with a Blanket L Approval since it is more simple and efficient than first submitting a petition to USCIS. However, this is not a straightforward option for Canadians. Consular posts in Canada can be hesitant to adjudicate petitions for Canadian citizens submitted under a Blanket L given that: (1) they are unfamiliar with doing so, since these petitions have almost always been submitted to CBP; (2) petitions submitted under a Blanket are always considered “new” petitions, even if a person is extending his/her previously held L-status; and (3) Canadians normally do not require visas to enter the U.S. in L status, and this is a primary function of the consular post.

Greenberg Traurig will continue to monitor this changing situation and provide updates as information becomes available.

For more on L-1 visas, click here.

No-Match Letters Are Back, and They’re No Laughing Matter

Posted in no-match letter, Social Security

The Social Security Administration (SSA) has once again begun notifying employers (and third-party payroll companies) who submitted Form W-2s containing name and Social Security Number (SSN) combinations that do not match the agency’s records, with what are known as “No-Match Letters.” Such discrepancies can arise from commonplace events such as marital name changes, but can also indicate that an individual is using false identification. Accordingly, while not conclusive evidence that an employee is not authorized to work in the United States, No-Match Letters put employers on notice of a possible issue. The SSA began sending these letters in 1993, and ceased the practice in 2012 after a failed attempt to introduce a regulatory “safe harbor” for employers that received these letters and took appropriate measures in response to verify the identity and work authorization of the employees at issue.

Now, with the current administration having pledged to increase workplace immigration enforcement, it is important for an employer to contact an attorney upon receipt of a No-Match Letter. Information regarding No-Match Letters is not automatically shared between the SSA and the agencies that enforce immigration laws. The Court of Appeals for the District of Columbia has ruled that the SSA may not disclose information concerning the names of employers receiving the most no-match employees because the information was derived from a W-2 form, and was therefore subject to confidentiality under tax laws. Judicial Watch v. SSA, 701 F.3d 379 (D.C. Cir. 2012). However, the Department of Homeland Security (DHS) can request information from the SSA for the purposes of identifying and locating aliens in the United States, and enforcing laws. 5 U.S.C. § 552a(b)(7). Accordingly, employers ignore such letters at their peril.

Employers should note that receipt of a No-Match Letter or other no-match notice does not, standing alone, constitute “constructive knowledge” that the affected employee is not work-authorized. Only DHS is legally authorized to determine an individual’s authorization to work. Moreover, employers must be careful to respond appropriately to a No-Match Letter. The U.S. Department of Justice (DOJ) has issued guidance regarding employer action in response to “anonymous tips” reminding employers that requesting excessive or unnecessary documentation from employees can violate the anti-discrimination provisions of the Immigration and Nationality Act. Those provisions prohibit, among other things, unfair documentary practices on the basis of citizenship, immigration status, or national origin relating to the employment eligibility verification (Form 1-9) process. Furthermore, the 9th Circuit Court of Appeals has ruled that receipt of an SSA No-Match Letter about a worker is not, in and of itself, “just cause” for firing the worker when the worker is covered by a collective bargaining agreement. Aramark Facility Services v. SEIU, Local 1877, No. 06-56662 (9th Cir. June 16, 2008). Accordingly, a rash or improper reaction to a No-Match Letter can be as bad as inaction.

Once the proper response to a No-Match Letter has been determined, employers should give affected employees a reasonable period of time to provide required information. DOJ guidance addresses this issue. It states:

There are no Federal statutes or regulations in effect that define a “reasonable period of time” in connection with the resolution of a no-match notice. As a practical matter, a “reasonable period of time” depends on the totality of the circumstances. Of note, in the E-Verify context SSA has the ability to put a tentative non-confirmation into continuance for up to 120 days. This recognizes that it can sometimes take that long to resolve a discrepancy in SSA’s database.

The SSA also has guidance for employers regarding No-Match Letters on its website.

Greenberg Traurig’s experienced immigration attorneys guide employers with respect to all aspects of immigration compliance, including responding to No-Match Letters.

For more on immigration and employers, click here.

Form I-94 is Getting a Makeover

Posted in Form I-94

Beginning in May 2019, Form I-94 will have a new look. The current 11-digit numerical format will be replaced by alphanumeric characters. The new format will include 11 characters, starting with nine digits, a letter in the tenth position, and a digit in the eleventh position. Customs and Border Protection (CBP) indicated that unexpired I-94 Records issued in the current numeric-only format will continue to be valid until the “Admit Until Date” printed on the paper or digital I-94 Record expires. You can continue to retrieve your electronic Form I-94 here.

For more on I-94, click here.

 

May 2019 Visa Bulletin Updates

Posted in EB-1, EB-2, EB-3, EB-4, EB-5 Program, Visa Bulletin

The Department of State May 2019 Visa Bulletin shows movement in employment-based categories. The EB-1 category will advance one month in all countries, moving up the cutoff date to March 1, 2018, except China and India, whose dates remain the same at Feb. 22, 2017. The EB-2 category will remain current for all countries except China, advancing to May 15, 2016, and India, advancing to April 16, 2009. Although most countries will remain current on the EB-3 category, China will advance to August 22, 2015; India will advance to July 1, 2009; and the Philippines will advance to June 1, 2018. Notably, India’s final action date in the EB-3 category continues to surpass the EB-2 category, leaving EB-3 India with a more favorable final action date than that of EB-2 India.

The EB-4 dates will remain current for most countries except El Salvador, Guatemala, and Honduras, which will remain the same at March 8, 2016, and Mexico, which will advance to Aug. 1, 2018. For those in the EB-5 category, the priority date remains current for all applicants except those born in mainland China, where the cutoff date will advance one week from Sept. 15, 2014, to Sept. 22, 2014; Vietnam will move forward one month from Aug. 22, 2016, to Sept. 22, 2016.

For those seeking to adjust status based on employment-based preference filings, The United States Citizenship and Immigration Service (USCIS) website indicates that the department’s Final Action Dates chart must be used for filing Form I-485 for May 2019. In January 2019, USCIS allowed the filing of adjustment of status applications based on the Dates for Filing chart, but has since reverted to the use of Final Action Dates. We will closely monitor the developments and advise once USCIS resumes the use of Dates for Filing chart for employment-based adjustment of status filings.

Final Action Dates for Employment-Based Preference Cases

Final Action Dates for Employment-Based Preference Cases May 2019

 

 

 

 

 

 

 

 

 

Dates for Filing of Employment-Based Visa Applications

Dates for Filing of Employment-Based Visa Applications May 2019

 

 

 

 

 

 

 

 

 

For more Visa Bulletin Updates, click here.

˘ Not admitted to the practice of law.

USCIS Completes the H-1B Cap Random Selection Process for FY2020 and Reaches the Advanced Degree Exemption Cap

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

On April 10, 2019, USCIS announced it used a computer-generated random selection process to select enough H-1B petitions to meet the congressionally-mandated regular cap and U.S. advance degree exemption (Master’s cap) for fiscal year (FY) 2020.

USCIS received 201,011 petitions during the filing period, which began April 1, including petitions filed for the advanced degree exemption. On April 5, USCIS announced it had received enough petitions to reach the congressionally mandated H-1B regular cap of 65,000 visas. After completing the random selection process for the regular cap, USCIS also determined it had received a number of petitions projected as sufficient to meet the 20,000 H-1B visa U.S. Master’s cap.

In accordance with the new H-1B regulation, USCIS first conducted the selection process for H-1B cap-subject petitions submitted on behalf of all beneficiaries, including those who may have been eligible for the Master’s cap. USCIS then selected a number projected to reach the advanced degree exemption from the remaining eligible petitions. USCIS will reject and return all unselected petitions with their filing fees unless the petition is a prohibited multiple filing.

USCIS will continue to accept and process petitions that are otherwise exempt from the cap. Petitions filed for concurrent H-1B workers who have been counted previously against the cap, and who still retain their cap number, are exempt from the FY 2020 H-1B cap. USCIS will continue to accept and process petitions filed to:

  • Extend the amount of time a current H-1B worker may remain in the United States;
  • Change the terms of employment for current H-1B workers;
  • Allow current H-1B workers to change employers; and
  • Allow current H-1B workers to work concurrently in a second H-1B position.

For additional updates, H-1B applicants may subscribe to the H-1B Cap Season email located on the H-1B FY 2020 Cap Season page.

For more on H-1B petitions, click here.

˘ Not admitted to the practice of law.

Phase One of Premium Processing for FY 2020 Cap-Subject H-1B Petitions Begins May 20

Posted in H-1B, H-1B Cap, H-1B Premium Processing

On May 20, 2019, the United States Citizenship and Immigration Services (USCIS) will begin premium processing for FY 2020 cap-subject H-1B petitions that were filed (1) requesting a change of status; and (2) with a Form I-907. To manage high demand during the initial surge of premium processing requests for H-1B cap petitions and to meet the 15-day adjudication timeline, USCIS will implement the following restrictions during the first phase of premium processing, affecting FY 2020 cap-subject H-1B petitions requesting a change of status:

  • From May 20 to June 3, USCIS will not send final notices for premium processing using pre-paid mailers. Final notices for cap-subject, change of status petitions will be sent via regular mail.
  • Petitioners who did not concurrently file Form I-907 with their cap-subject H-1B petitions requesting a change of status must wait until May 20 to request premium processing.

The second phase of premium processing affecting all other FY 2020 cap-subject H-1B petitions will not begin until at least June 2019 (the exact date has yet to be announced). Premium processing for petitions exempt from the cap remains available.

Even with the two-phased approach and additional restrictions on premium processing for this year’s H-1B cap season, USCIS says petitioners can expect more efficient service than previous years, when premium processing was suspended for cap-subject petitions.

For more on H-1B petitions, click here.

Israel to Join Countries Qualified for E-2 Treaty Investor Visa

Posted in E-Visas, Visas

On May 1, 2019, the E-2 Treaty Investor Visa may be available to Israeli citizens wishing to make a substantial investment in or set up a business in the United States. After several rounds of negotiations between the two countries and U.S. citizens already able to obtain a B-5 Israeli Investor visa, the United States is expected to approve the proposed May 1 launch date in early April.

The E-2 Visa grants qualified treaty investors and employees, as well as their dependent family members, a maximum initial stay of two years. Extensions may be granted in increments of up to two years, with no maximum limit so long as the E-2 nonimmigrant maintains an intention to depart the United States when their status expires or is terminated.

To qualify, the United States Citizenship and Immigration Services (USCIS) indicates a treaty investor must show at least 50 percent ownership of the enterprise or possession of operational control through a managerial position or other corporate device. The enterprise must have the present or future capacity to generate more than enough income to provide a minimal living for the treaty investor and his or her family. In addition, the treaty investor must risk a substantial amount of capital with the objective of generating a profit.

Given the flexibility of the E-2 Visa and Israel’s prominent position in the hi-tech sector, this new development has great potential to advance Israeli business interests and streamline entrepreneurial ventures.

For more on E-2 visas, click here.

DHS Grants Additional H-2B Visas for Seasonal Employment

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

Amid a flurry of media reports last week and verified today by U.S. Sen. Chris Van Hollen (D-MD), Homeland Security Secretary Kirstjen Nielsen announced the availability of 30,000 additional H-2B visas for 2019 seasonal employment. Several years ago, Congress gave the DHS Secretary, in consultation with the Department of Labor, the authority to augment H-2B seasonal visas up to a cap (66,000 per/yr). The Secretary has allowed 15,000 additional H-2B visas in the past two years. This doubling of the allotment comes with a returning worker requirement. That means only those H-2B visa holders who previously held visas in the past three years are eligible to participate in the 30,000 allotment.

The Secretary continues to encourage Congress to pass legislation determining the number of seasonal H-2B visa holders per year. In the interim, many in Congress have encouraged the Secretary to use her discretion, as she did today, to increase H-2B visas to eligible individuals.

The number of additional visas and timing pleasantly surprised many observers. The President has discussed the need for additional workers in speeches recently, and his remarks are believed to have had an effect on today’s announcement.

Sec. Nielsen indicated that a formal announcement of this action will be in an upcoming Federal Register.  Please check back, as we will update this and other posts.

For more on H-2B visas, click here.

˘ Not admitted to the practice of law

White House Announces Extension of Deferred Enforced Departure for Liberians

Posted in deferred enforced departure, Department of Homeland Security, Global Immigration, Liberia, President Trump's Administration, Temporary Protected Status, TPS

In a last-minute change, the White House announced an extension of the Deferred Enforced Departure (DED) of Liberians until March 30, 2020. Prior to today’s announcement, the wind-down for DED was March 31, 2019.

Citing foreign policy interests of the United States, the extension was granted with direction for the Congress to consider “remedial legislation.” The Presidential Memoranda directs the Secretary of Homeland Security to take certain actions for implementation (see above link for details).

Please watch this space for further updates.

For more on Liberia, click here. For more on temporary protected status (TPS), click here.

˘ Not admitted to the practice of law

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