Greenberg Traurig Honored as National Law Review ‘Go-To Thought Leader’ on Business Immigration

Posted in Awards & Recognitions

Based on an analysis of more than 100,000 pieces of thought leadership, legal publisher The National Law Review (NLR) recognized global law firm Greenberg Traurig, LLP as a 2018 “Go-To Thought Leader” for its coverage of business immigration changes and immigration law in general.

According to the NLR website, the “‘Go-To-Thought Leadership Awards’ recognize 65 exceptional authors and legal organizations for their reporting of complex legislative and litigation news, as well as their strategic insight and overall legal industry knowledge.” These 65 honorees represent less than one percent of contributors to NLR’s daily legal news service. NLR states that Greenberg Traurig produces “some of the best content [they’ve] seen,” noting that with “immigration issues being top of mind for many, Greenberg Traurig’s attorney-authors provide the information NLR Readers want, and in a timely manner, ensuring their articles are well-read and frequently cited by other publications.”

To read the full press release, click here.

E-Verify and the Government Shutdown

Posted in Department of Homeland Security, E-Verify, government shutdown

We have received many client inquiries relating to E-Verify and the government shutdown. In short, E-Verify is unavailable, as the program’s authorization lapsed Dec. 22, 2018.

The Department of Homeland Security, which oversees the program, announced that the website http://www.e-verify.gov/ will not be actively managed and will not be updated until after funding is restored. DHS reported: “Information on this website may not be up to date. Transactions submitted via this website might not be processed and we will not be able to respond to inquiries until after appropriations are enacted.”

During the shutdown, employers will not be able to enroll in the program; access their E-Verify accounts; create a case; view or take action on any case; add, delete, or edit accounts; reset passwords; edit company information; terminate accounts; or run reports.

Workers will not be able to resolve E-Verify Tentative Nonconfirmations (TNCs) during the shutdown. In addition, myE-Verify will be unavailable, and employees will not be able to access their myE-Verify accounts.

To minimize the burden on both employers and employees, DHS announced the following:

  • The three-day rule for creating E-Verify cases is suspended for cases affected by the unavailability of the service.
  • The time period during which employees may resolve TNCs will be extended. The number of days E-Verify is not available will not count toward the days the employee has to begin the process of resolving their TNCs.
  • Additional guidance regarding the three-day rule and time period to resolve TNC deadlines will be provided once operations resume.

Federal contractors with the Federal Acquisition Regulation E-Verify clause should contact their contracting officer to inquire about extending federal contractor deadlines. Should a state agency reach out about the usage of E-Verify, please contact your immigration counsel.

PLEASE TAKE NOTE: Employers must still complete the Form I-9 no later than the third business day after an employee starts work for pay, and comply with all other Form I-9 requirements.

E-Verify is a voluntary business tool to meet business and government employment eligibility determination needs; it is gaining in utilization. Please check back, as updates will be provided as to the shutdown and the re-starting of such critical programs such as E-Verify, EB-5, Conrad 30 J-1 visa and others.

˘ Not admitted to the practice of law.

UPDATE: The iCERT Portal System is currently unavailable

Posted in Department of Labor Immigration Compliance, H-1B, H-2B, iCert

The Department of Labor provided an iCERT update this afternoon:

IMPORTANT ANNOUNCEMENT (Updated January 2, 2019, 12:00PM EST):

Within the first five minutes of opening the semi-annual H-2B certification process on January 1, 2019, the U.S. Department of Labor iCERT system had an unprecedented demand for H-2B certifications with more than 97,800 workers requested in pending applications for the 33,000 available visas. With more than thirty-times the user demand on the iCERT system compared to last year on January 1, the iCERT system experienced a system disruption. The Employment and Training Administration, working with the Department of Labor’s Office of the Chief Information Officer, is working diligently to have the system ready within a few days to accept a record number of H-2B applications. Enhancing system capacity and dealing with other factors such as the possible use of automated script programs during the application process are being addressed in iCERT to ensure certifications can be processed. As previously stated, the Department will be giving at least 24 hours’ notice before the iCERT system is re-opened. A further update will be provided on Thursday, January 3, 2019. https://icert.doleta.gov/

We will continue monitoring and posting relevant updates and analysis. Please check back.

˘ Not admitted to the practice of law.

The iCERT Portal System is Currently Unavailable

Posted in Department of Labor, Department of Labor Immigration Compliance

The Department of Labor announced an iCERT service interruption on Jan. 1:

IMPORTANT ANNOUNCEMENT:

We sincerely apologize for the major service interruption in the iCERT System early in the morning of January 1, 2019. Due to overwhelming filing demand, the Department’s technology staff is working diligently to investigate the cause of the system outage and has temporarily taken the iCERT System down for the remainder of January 1st and until further notice. The Department will provide another update on the status of the iCERT System around 12:00PM EST, January 2nd, and separate advance public notice regarding when the iCERT System will be operational once again.

We understand there were H-2B groups and Sen. Thom Tillis (R-NC) engaged with DOL during this event. They report the system “crashed sometime after midnight on January 1,” preventing H-2B, H-1B, and other filings.

As of this writing, the entirety of the legal and policy implications of this disruption are not fully known. Please check back, as we will be adding updates.

˘ Not admitted to the practice of law.

January 2019 Visa Bulletin Updates

Posted in EB-1, EB-2, EB-3, EB-5 Program, U.S. Department of State (DOS)

The Department of State (DOS) January 2019 Visa Bulletin has resulted in mixed bag of retrogression for some and advancement for others. The EB-1 category moved forward approximately 3 months across the board. EB-3 China and India are both now at Dec. 15, 2016.  The EB-2 category showed minor improvement for China to Aug. 1, 2015, but no movement at all for India, which is still set at April 1, 2009. It was a similar result in the EB-3 category, with China and India holding the same dates as last month’s Visa Bulletin. As mentioned in our November blog post, the EB-3 India final action date moved very rapidly over the past year, advancing almost a year and a half. The static nature of the past two months may reflect the continued processing of EB-3 India visa applications. In the EB-5 category the date for the non-regional center categories of China advanced to Sept. 1, 2014, and Vietnam advanced to June 1, 2016. The date for Vietnam in the EB-5 category has now advanced in this fiscal year from Jan. 1, 2016, in October 2018 to June 1, 2016, in this visa bulletin.

As has happened repeatedly in the recent past, the EB-4 religious workers and regional center EB-5 categories are listed as unavailable because the laws authorizing those categories are due to expire after midnight Dec. 20, 2018, and Dec. 21, 2018, respectively. Accordingly, no EB-4 religious workers visa may be issued, or a final action taken on an adjustment of status application, after midnight Dec. 20, 2018. Further, individuals seeking admission in this category must be admitted into the United States no later than midnight Dec. 20, 2018. If Congress, reauthorizes this category as is expected, the final action date would be current for all countries except El Salvador, Guatemala, and Honduras, which will be set at Feb. 22, 2016, and Mexico, which will be set at April 15, 2017.

Similarly, no EB-5 regional center visas may be issued, or a final action taken on an adjustment of status application, after Dec. 21, 2018. If Congress, reauthorizes this category as is expected, the final action date would be current for all countries except China and Vietnam. The China and Vietnam dates would be set at the same date as the nonregional center category, which is listed above. GT will be closely monitoring these advancements as they unfold.

Final Action Dates for Employment-Based Preference Cases

 

USCIS’ Policy Memorandum on ‘Revised Interview Waiver Guidance for Form I-751, Petition to Remove Conditions on Residence”

Posted in Form I-751

USCIS’s Policy Memorandum on ‘Revised Interview Waiver Guidance for Form I-751, Petition to Remove Conditions on Residence” went into effect on Dec. 10, 2018. The memorandum fully replaces the June 24, 2005, “Revised Interview Waiver Criteria for Form I-751, Petition to Remove the Conditions on Residence.” These guidelines apply to I-751 cases filed as a joint petition or as a waiver of the joint filing requirement. Per the new memorandum, an officer may consider waiving an interview if they are satisfied that:

  • They can make a decision because the record contains sufficient evidence about the bona fides of the marriage (that the marriage was not entered into in order to evade U.S. immigration laws);
  • USCIS has previously interviewed the principal petitioner (for forms filed on or after Dec. 10, 2018);
  • There is no indication of fraud or misrepresentation in the Form I-751 or the supporting documentation; and
  • There are no complex facts or issues that require an interview to resolve.

For more on USCIS Policy Memorandums, click here.

Notice of Proposed Rule for H-1B Cap Season: Summary and Real-World Implications

Posted in Department of Homeland Security, H-1B, H-1B Cap, USCIS

On Nov. 30, 2018, the Department of Homeland Security issued the notice of proposed rulemaking to amend its H-1B cap-subject lottery process that USCIS conducts every year. The proposed rule seeks to amend the way H-1B cap-subject petitions are submitted for the lottery, and also the way H-1B cap-subject petitions are randomly selected. USCIS proposes a 30-day comment period that makes comments due on the proposed rule by or on Jan. 2, 2019. As of this writing, no group has formally requested an extension of the comment period, although it is widely believed that interested parties will request an extension of comment time. An extension, if granted, would lengthen the regulatory process time and make implementation by Q2 2019 (as stated) uncertain. As such, it is unclear whether this rule can be implemented for the H-1B cap season beginning April 1, 2019, for fiscal year 2020.

Background

The government’s fiscal year begins each year on Oct. 1. The soonest an H-1B petition can be filed is 180 days prior to the start date, and as Oct. 1 is the first possible start date, the petition cannot be filed until April 1 of each year, hence the H-1B lottery “opening” every year for filing. The H-1B cap each year allows for 20,000 slots for those who have a U.S. Master’s degree (or higher), and another 65,000 for everyone else. If USCIS receives more than 85,000 total petitions on April 1, it will conduct a random lottery to first select the 20,000 petitions that fall under the Master’s degree cap, then conduct a second lottery to select the remaining 65,000 numbers. In years past, the following number of petitions have been received*:

Year Number of H-1B cap subject petitions received
2017 198,460
2016 236,444
2015 232,973
2014 172,581
2013 124,130

*Courtesy of DHS

The proposed changes will alter the manner H-1B cap-subject petitions are received, and the way they are counted, as explained below:

Electronic Pre-registration

The proposed rule will change the way H-1B petitions are filed. Instead of employers and/or their attorneys submitting an H-1B petition for every beneficiary, USCIS is proposing that employers first electronically register with the agency. Under the proposed rule, there would be a designated registration period before the petitions can be received. Once all employers electronically register the beneficiaries for which they wish to file H-1B petitions, USCIS will run a lottery system to meet the cap if the number exceeds 85,000. If the number of electronic preregistrations does not reach 85,000, USCIS will notify all petitioners that they may file the petitions. Otherwise, if USCIS runs a random lottery on the pre-registered names, petitioners will be notified whether their names have been selected and whether they may file H-1B petitions within a designated time frame.

Running the Lottery

In previous years, the lottery was conducted first for all U.S. Master’s degree (or higher) recipients to meet the 20,000 quota. After the Master’s cap lottery was run, USCIS would move the remaining U.S. Master’s petitions with all other petitions to select the remaining 65,000 petitions. USCIS is now proposing that through the electronic preregistration, the 65,000 “all” petitions lottery would be run first; then, to select the 20,000 Master’s petitions quota, only the remaining U.S. Master’s petitions would be run. USCIS reasons that this will give U.S. Master’s petitions a higher likelihood of being selected.

DHS also proposes to include a severability clause, where DHS would be able to implement either the electronic pre-registration or change how the lottery is run, independently, if they cannot be done together for any reason.

Implications

What does this mean for employers, USCIS, and law firms? For USCIS and employers, this proposal will drastically cut legal fees and costs. Petitioners will only be filing petitions that have already been “pre-selected,” and USCIS will not be returning a hundred thousand petitions, or more, by U.S. Postal Service. Employers will also be able to make alternate plans for their employees at an earlier date because the electronic lottery will be faster, instead of waiting until well into summer for a petition to come back as not selected in the lottery. Law firms will also be able to plan better for their clients in terms of alternative work authorization paths, should the petitioner not be selected in the electronic lottery.

It is unclear how long the processes will last, including the electronic pre-registration period, the selection period, or the filing period for selected beneficiaries. The proposed rule states that the filing period for H-1B cap-subject petitions will be at least 60 days. Greenberg Traurig will continue to monitor news in this area.

Greenberg Traurig’s Laura Reiff and Martha Schoonover Listed as 2018 Washingtonian Top Lawyers

Posted in Awards & Recognitions

Laura Foote Reiff and Martha J. Schoonover, shareholders in global law firm Greenberg Traurig LLP’s Northern Virginia office, were again listed in Washingtonian magazine’s 2018 “Top Lawyers” list. They are recognized in the magazine for their immigration work and will be featured in the Dec. 2018 issue.

According to the Washingtonian, this biennial list features approximately 700 attorneys across 21 practice areas. The list is compiled through research and nominations vetted by the publication’s editorial staff.

To read the full press release, click here.

DOL Implements New LCA Form Effective Nov. 19, 2018

Posted in H-1B, LCA, Non-Immigrant Visas, U.S. Department of Labor, Uncategorized, Visas

The Labor Condition Application (LCA) Form, ETA 9035, is a required form for non-immigrant visa categories including the H-1B, H-1B1 (Chile/Singapore) and E-3 (Australia). Pursuant to The Department of Labor’s plans to better protect American workers, confront fraud, and increase transparency, a new version of the LCA form took effect on Nov. 19, 2018. This form includes several new key revisions: (1) Disclosing all places of employment for H-1B workers, including periods of short duration; (2) Providing the estimated number of H-1B workers at each place of intended employment; (3) Requiring the clear identification of secondary entities who are using H-1B workers; and (4) Requiring H-1B dependent employers who are claiming an exemption solely on the basis of education, such as a master’s degree, to provide documentation of the degree. It is recommended that all U.S. employers revisit and review their contracts in place for third-party placement of their own employees as well as their vendor agreements, which may place workers at their work locations.

The new LCA form and instructions are available here.

 

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