Hiring season is fraught with questions and uncertainties; preparing employment applications; interviewing, drafting offer letters….. What questions can be asked? What questions should be asked? These concerns are even more pronounced when it comes to immigration status, and immigration sponsorship. Those tasked with the hiring process often ask, whether it is legal to ask applicants about their immigration status, how to ask that question, and even more important, “Do we have to sponsor for immigration status if the applicant needs it?”
As many of you know, the most common H-1B professional worker visa category is subject to an annual quota/ cap per fiscal year (with some exceptions) and historically, the demand for initial H-1B numbers significantly exceeds the numbers available. So last year, employers and foreign nationals welcomed a new H-1B registration rule, whereby employers seeking to file H-1B cap-subject petitions had to first register electronically with the U.S. Citizenship and Immigration Service (USCIS) during a designated registration period. And at the end of the initial registration period, USCIS received more registrations than needed to reach the H-1B cap, so it randomly selected, through a computer generated lottery a sufficient number of registrations who were then notified to submit their H-1B cap petition filings to USCIS. Continue reading “Planning to register for the H-1B cap season this spring but will you have a chance of being selected based on this new DHS Rule?”
COVID-19 social distancing directives, State and Federal agency closures and remote work requirements have made it impossible for employers to comply with the normal I-9 and E-Verify regulations on timing and review of employee documents. To address these concerns, USCIS has announced several measures to extend time frames and loosen its normally strict requirements. In this blog, we discuss USCIS suspension of the I-9 requirement to review physical documents, an automatic 60 day extension for all I-9 audit responses, acceptance of expired documents for new hires who are unable to update driver licenses and state IDs, as well as E-verify suspension of the 8 day response time for responding to Tentative Nonconfirmations. Continue reading “USCIS Announces I-9 and E-Verify Timing Waivers and Modifications in the wake of COVID-19”
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:
- are unable to adjust status due to visa backlogs; and
- 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.