USCIS Regulatory Proposals Aim to Improve Immigration Process for High-Skilled Foreign Workers

The White House is continuing to slowly roll out many of the 2014 promised changes to improve the U.S. immigration system.  New regulations,  published in the Federal Register on December 31, 2015 seek to modernize and improve certain employment-based immigrant and nonimmigrant visa programs for high-skilled foreign workers. Benefits to participants in those programs would include improved processes for U.S. employers seeking to sponsor and retain immigrant and non-immigrant workers; greater stability and job flexibility for such workers; and more transparency and consistency in the application of DHS policy.

Many of these changes are aimed at improving the ability of U.S. employers to hire and retain high-skilled foreign nationals who are already the beneficiaries of approved employment-based immigrant visa petitions and are waiting to become lawful permanent residents (LPRs), while also increasing employment flexibility for such workers. The proposed regulations would increase the ability of such workers to further their careers by accepting promotions, making position changes with current employers, changing employers, and pursuing other employment opportunities in the U.S. job market.

Some of the highlights of the proposed rule include:

Improved Job Portability with an Approved I-140:
The proposed rule would limit the grounds for automatic revocation of approved I-140 Petition for Immigrant Worker. Once an I-140 has been approved for 180 days or more, it will still be valid for purposes of retaining one’s priority date and extending one’s H-1B status, even if the employer subsequently withdraws the petition or the employer’s business shuts down. The exception to this rule would be cases of fraud, misrepresentation, and a few other limited situations.

One-Time Grace Periods
The proposed rule would authorize a one-time grace period for certain nonimmigrant workers of up to sixty (60) days after employment ends, or until the existing validity period ends, whichever is shorter. This grace period would apply to those in H-1B, E, L-1, and TN status. Similar flexibility already applies to F-1 nonimmigrant students and j-1 nonimmigrant exchange visitors.

Eligibility for Employment Authorization in Compelling Circumstances
The proposed rule would allow certain high-skilled individuals in the United States in H-1B, H-1B1, L-1, O-1, or E-3 nonimmigrant status who are the beneficiaries of an approved I-140 petition to apply for one year of restricted employment authorization if they:

  1. are unable to adjust status due to visa backlogs; and
  2. can demonstrate “compelling circumstances” which justify issuing an employment authorization document.

At this time, DHS has not defined the term “compelling circumstances,” however the proposed rule offers possible examples such as serious illnesses/disabilities or cases of employer retaliation. Accordingly, this benefit will likely only apply in very limited circumstances.

Automatic Extensions of EAD Work Authorization in Certain Circumstances
The proposed rule would amend the way USCIS processes applications for employment authorization to help prevent gaps in work authorization that are problematic for foreign nationals and their U.S. employers. Specifically, DHS is proposing to repeal the current regulations that require the issuance of interim EADs if the I-765 application for work authorization (“EAD”) has been pending more than 90 days. Under the new rule, USCIS will automatically extend the EAD for up to 180 days upon the timely filing of a renewal application for applicants who meet certain requirements. To be eligible for this benefit, the renewal application must be based on the same employment authorization category as the expiring EAD, among other requirements.

The proposed rule also clarifies various policies and procedures related to the adjudication of H-1B petitions, including extensions of status, determining cap exemptions, and counting workers under the H-1B visa cap.

USCIS is seeking public comment on the proposed rule through February 29, 2016. The proposed changes would take effect on the date indicated in the final rule once it is published in the Federal Register.

Special thanks to Christina Haines, Esq. for her assistance with this blog post.

New Restrictions on the Visa Waiver Program Enacted in the 2016 Omnibus Spending Bill

On December 18, 2015, President Obama signed into law the 2016 Consolidated Appropriations Act (H.R. 2029), which will fund government agencies for at least another year. This omnibus spending bill also includes significant changes to the Visa Waiver Program (VWP) which appear under the Title of “Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015.’’

For more than 25 years, the Visa Waiver Program (VWP) has permitted citizens of participating countries to travel to the United States for business or tourism for stays of up to 90 days without a visa. There are currently 38 countries participating in the Visa Waiver Program, each of which must provide reciprocal travel privileges to U.S. citizens. Since its inception in 1986, the Visa Waiver Program has facilitated tourism and business in the U.S., providing substantial economic benefits. According to the Department of Homeland Security (DHS), VWP travelers injected nearly $231 million a day into local economies across the country in FY 2014.

Last month, the White House announced enhanced security measures to the Visa Waiver Program (VWP), which included modifications to the Electronic System for Travel Authorization (ESTA) applications to capture information from VWP travelers regarding any past travel to countries constituting a terrorist safe haven.

Under the new law, effective as of December 18, 2015, VWP travel will not be possible for:

Travelers to certain countries: Any person who has traveled to Iran, Iraq, Syria or Sudan (or other DHS-designated countries “of concern”) since March 1, 2011. Exemptions are stated for certain military personnel and government employees of VWP countries. In addition, DHS may waive the ban if it would be in the law enforcement or national security interest of the United States. However, no exemptions are made for children, students, researchers, scholars, or humanitarian aid workers.

Nationals of certain countries: Any person who is a dual national of a VWP country and Iran, Iraq, Syria or Sudan (or other DHS-designated countries “of concern”). Nationality is typically determined by the laws of the designated country, which may confer nationality through various means such as naturalization, marriage, or descent. As a practical matter, this means that an individual may be a national of a particular country, even if he or she was not born in that country, has never resided there, and/or does not have a passport issued by that country. For instance, a child born in France to Syrian parents is ineligible to use the Visa Waiver Program under the new law.

In short, these changes mean that travelers from VWP countries who are nationals of Iran, Iraq, Syria or Sudan, or who have traveled to any of these countries within the past five years, are no longer eligible to use the Visa Waiver Program. They will instead be required to obtain visas at U.S. consulates or embassies abroad.

The legislation also imposes new conditions on VWP countries, some of which take effect immediately and others of which must be implemented over the next several months. VWP countries will be required to screen travelers to their country through Interpol, implement certain passport security requirements, and participate in information sharing. Countries which fail to comply with these requirements risk losing their status as participants in the VWP.

The Visa Waiver Program (VWP) is administered by the Department of Homeland Security (DHS) in consultation with the State Department. At this point, these agencies have yet to issue guidance on how the changes announced in the new law will be implemented and enforced.

**Special thanks to Christina Haines, Esq. for assistance with this post.

Duane Morris Pro Bono Attorneys Step Up for Citizenship

On Saturday, September 19, 2015  Duane Morris attorneys in Philadelphia and Boca Raton offices assisted Legal Permanent Residents with their U.S. Citizenship applications. The annual event, Pro Bono Citizenship Day, is organized by the American Immigration Lawyers Association. Duane Morris has participated for the last 6 years.  It is estimated that there are 8.8 million Legal Permanent Residents who are eligible to naturalize in the United States, with 50,000 of those residing in Philadelphia.  To learn more about the Philadelphia event, read Valentine Brown’s article that appeared in the Legal Intelligencer on Friday, September 19, 2015.

New Cut Off Date on Visa Bulletin Brings Welcome Relief for Immigrants

The  recent changes, to  the State Department’s Cut Off Date system for determining who can file their adjustment of status applications and when they can be filed, announced in the October 2015 Visa Bulletin brings welcome relief to many categories of immigrants who often wait in long queues before they are able to submit their adjustment of status applications. Continue reading New Cut Off Date on Visa Bulletin Brings Welcome Relief for Immigrants

Obama Eases Travel and Trade Restrictions with Cuba

The Obama administration announced wide-ranging changes to loosen travel, commerce and investment restrictions on Cuba. The new rules allow American companies to open locations and hire workers in Cuba. U.S. companies will be allowed to establish subsidiaries or joint ventures as well as open offices, stores and warehouses in Cuba. Additionally, the new rules will expand telecommunications services, facilitate financial transactions between the two countries, remove limits on the amount of money that can be brought to Cuba, and allow “certain persons” to open and maintain bank accounts in Cuba.  Read more about the Details of the Changes in this Blog Post by Jose Aquino, Esq.  of the Duane Morris Cuba Practice Group.

Most travel restrictions for US citizens remain in place, but according to the announcement, additional close relatives will be allowed to visit or accompany authorized travelers for certain additional activities. Information about visa requirements and travel restrictions may be found here.

Check back often for updates on this rapidly evolving situation.

USCIS Issues Final Guidance on H-1B Amendments under Matter of Simeio

U.S. Citizenship and Immigration Services (USCIS) has released its final guidance on when to file an amended or new H-1B petition after the Matter of Simeio Solutions, LLC decision.

Change in CIS Policy on worksite/location changes: On April 9, 2015, the USCIS’ Administrative Appeals Office (AAO) issued a precedent decision, Matter of Simeio Solutions, LLC, ruling that when an H-1B employee changes work site locations, it is considered a material change that may require the filing of an amended or new H-1B petition with USCIS.

Previous USCIS Guidance:  Under the previous USCIS guidance, if a new Labor Condition Application (LCA) was filed with the U.S. Department of Labor (DOL) prior to the work site location change, no amended or new H-1B petition was required to be filed with USCIS.

New USCIS Guidance: Under the new USCIS Guidance, if an H-1B employee is changing work site locations and the new work site location is not within the same Metropolitan Statistical Area (MSA) as the current worksite location, then an amended or new H-1B petition must be filed with USCIS.

If the worksite change is within the same MSA, no amended or new H-1B petition is required; however, copies of the original certified LCA listing the current work site location will need to be posted at the new work site location prior to the H-1B employee beginning employment at the new location.  After the requisite posting period, the posted original certified LCA copies must be placed in the Public Access File notated with the dates and places of posting.

Compliance:  If an employer complied with the pre-Simeio decision USCIS Guidance, by completing a new LCA before the worksite change, and the H-1B employee work site changed occurred on or before April 9, 2015, USCIS will not pursue any new adverse actions against the employer after July 21, 2015 that are based solely upon a failure to file an amended or new H-1B petition to address the work site location change. USCIS will however, preserve the right to pursue any adverse actions (related to work site location changes) which have commenced or been completed prior to July 21, 2015, and will also still continue to pursue adverse actions for other violations.

However,  USCIS provides a safe harbor, if an employer files amended or new H-1B petitions on or before January 15, 2016 to address prior work site changes for H-1B employees (including cases that followed the pre-Simeio decision USCIS Guidance for work site location changes prior to April 9, 2015, with the filing of new LCAs listing the new work site location).   USCIS will consider those filings timely, and not subject to adverse action by USCIS for failure to file an amended or new H-1B petition to address the work site location change.

 

No End in Sight to State Department Visa Processing Delays

On June 15, we reported that the State Department computer system used for verifying the personal data of visa applicants and for printing visa stamps was crippled by a “glitch” causing worldwide delays. Today the State Department estimates that it will be at least another week before the problem is resolved.  The agency also confirmed that it was a hardware failure, which has eliminated its ability to process it’s regular volume of 50,000 applications per day. Continue reading No End in Sight to State Department Visa Processing Delays

State Department Computer Problem Causes Worldwide Delays in Visa Issuance at U.S. Consulates

On June 12, 2015 the U.S. State Department announced that a computer glitch has hit the Consular Consolidated Database (CCD) affecting the printing of U.S. visas at all consulates and U.S. embassies worldwide.

On June, 15, 2015 the State Department published the following State Department Update, indicating that there is no resolution to the problem and none in sight as of this writing. Continue reading State Department Computer Problem Causes Worldwide Delays in Visa Issuance at U.S. Consulates

Unfair Immigration-Related Hiring Practices: Employers Beware

In recent years the Department of Justice Office of Special Counsel for Unfair Immigration Related Employment Practices (OSC) has stepped up enforcement against employers who commit violations during the hiring process.  The primary source of information for the commencement of investigations against employers is a Department of Justice Hotline for workers  who believe they have been mistreated by potential employers during the hiring process. Attorneys at the OSC follow up on every hotline call, often contacting employers directly to educate them and obtain additional information.  From its experience on the hotline, the OSC has compiled a list of the most common hiring violations it encounters. While many seem obvious, they are worth reviewing with human resources staff, as they continue to reoccur and cost employers significant civil fines and pack pay awards.

Refusing to hire workers who sound or appear foreign: Employers have been fined and required to pay back wages to non-U.S. citizen workers who were rejected on the basis of employer blanket policies of rejecting applicants who sounded or appeared to be foreign. There are many non-U.S. citizen workers who are authorized to work for any employer in the United States, include Legal Permanent Residents, Asylees,  and Refugees.

Preferring to hire U.S. citizens is also an unfair employment practice,  unless a law, regulation, government contract, or executive order requires that the position be filled by a U.S. citizen. Employers have been prosecuted by the OSC for including  “citizen only” type language in employment advertising or application materials, as well as for communicating this preference to applicants during the hiring process.  Fines for this violation have ranged as high as $100,000 in prior years.

Hiring non-immigrant visas holders while rejecting qualified U.S. citizens and lawful permanent residents who apply for the same jobs. Employers have been subject to investigation and fines during the H-2B application process after they did not hire U.S. citizens and green card holders who applied for the H-2B advertised jobs.  This type of investigation is even more troublesome as it arises out of an information sharing agreement between the Department of Labor and the Department of Justice. Significant back pay awards to the affected workers are common in this type of case.

Hiring undocumented workers instead of employment-authorized individuals. The OSC is vigilant about investigating this type of complaint, which is often presented when a terminated worker complains about being replaced by an undocumented worker.  The typical remedy is reinstatement and back pay for the affected worker.

No Duty to Sponsor: In spite of all of these admonishments, it is important to remember that employers have no obligation to “sponsor” any worker for immigration status under any circumstances.  This means that, there is no obligation to file an H-1B petition or green card application on behalf of any employee. Foreign nationals  who do not have unlimited work authorization to work for any employer in the United States are not protected by anti-discrimination provisions in the Immigration and Nationality Act.  However, employers should  still beware of treating various classes of foreign national employees differently.  Having sponsorship policies in place, which include a time frame for the decision to sponsor as well as specific criteria and manager recommendations, is a best practice that allows employers to have defined criteria  and time frames to review each individual employee  for sponsorship consideration.

The ABCs of Alternatives to the H-1B

The H-1B Cap for the 2016 H-1B Cap Year (October 1, 2015 – September 30, 2016) has been exhausted. 233,000 applications were submitted for approximately 85,000 slots. There is no relief in sight, as stalemate in Congress continues to prevent any meaningful immigration reform. Employers that want to hire professional workers who do not already have an H-1B from a prior lottery, will have to wait until next year or look for an alternative. While the list looks promising, in actuality it is a rare case when one of the alternatives fits an employer’s specific needs. Consulting with experienced immigration counsel is mandatory for finding a suitable alternative. The basic list of alternatives follows: Continue reading The ABCs of Alternatives to the H-1B