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?”
A challenge brought by the U.S. Chamber of Commerce to the new H-1B wage levels and the new definition of “Specialty Occupation” was upheld by the United States District Court for the Northern District of California on December 1, 2020. The plaintiff’s Summary Judgement motion was granted when the Court held that the government failed to demonstrate good cause for not following the normal notice and comment procedures required for immigration regulations. The government’s failure to follow the proper rulemaking procedures makes the new rules invalid and requires them to be rescinded by the government. Continue reading “H-1B Wage Rules Rescinded – Another Win for Employment-Based Immigration”
On September 25, Immigration and Customs Enforcement (ICE), the DHS agency with jurisdiction over F-1 foreign student visa holders, published new proposed regulations that would end the long time U.S. practice of issuing “Duration of Status” to F-1 students. Instead, F-1 visa holders would be limited to 2 or 4 year visa terms depending upon their country of origin, and be required to reapply for F-1 Status through USCIS to obtain extensions, or to leave the United States and apply for an extension . The proposed regulations were immediately criticized by the higher education community. The rules were called ill-conceived, misguided, unnecessary, and a burden to an industry that has already seen a steady decline in international student admissions. Read the full blog post here.
The I-9 process continues to be the bane of HR existence. Recent accommodations for remote work environments, closed driver’s license agencies, and USCIS delays in printing work permits and green cards are definitely appreciated and helpful, but they also make the process more confusing. Employers are beginning to worry about how they will catch up on viewing all of the original documents they saw remotely during the pandemic, in the USCIS-designated 3-day time frame once their companies return to the office. Meanwhile, I-9 audits and worksite enforcement actions are continuing apace. While following all of the new guidance, employers must also be sure to stick to the basics. Continue reading “USCIS gets flexible on I-9 Process, but Employers must stay Vigilant”
On July 14, 2020, the Trump Administration rescinded SEVP guidance issued last week, which forbid F-1 students from attending universities that were planning to be 100% remote during the fall 2020 semester. With the rescission, schools may now revert to following the SEVP March 9 Broadcast Message: Coronavirus Disease 2019 and the March 13 COVID-19: Guidance for SEVP Stakeholders . Read more about this important development in our education law blog, UpdateED.
On July 6, 2020 the Student and Exchange Visitor Program (SEVP) provided long awaited guidance for the fall 2020 semester. In an unexpected about face from guidance issued in March 2020 at the height of the COVID-19 response effort by higher education, SEVP has determined that foreign students on F-1 visas cannot attend universities that will be 100% remote during the fall 2020 semester. Continue reading “ICE Bars F-1 Students from 100% Remote Programs for Fall Semester”
The Duane Morris Immigration Team is dedicated to providing the most up to date information and zealous advocacy on behalf of our clients during the COVID-19 emergency. Below we have compiled information from various U.S. agencies on all aspects of travel, USCIS appointments, ICE activities and Removal Proceedings. This post will be updated as changes develop. Duane Morris has developed a COVID-19 Strategy Team which is providing regular updates on all business and employment related matters impacted by the COVID -19 pandemic. A second webinar on Business Continuity Planning for a Pandemic will be held on Wednesday, March 18. To register, click here.
- Topics Discussed Below
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.
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.