New Guidance for Employers on Performing Internal I-9 Audits

The Department of Justice's Civil Rights Division and the Department of Homeland Security's U.S. Immigration and Customs Enforcement recently issued a joint guidance memo entitled "Guidance for Employers Conducting Internal Employment Eligibility Verification Form I-9 Audits." Though not required by law, it is advisable to conduct an internal audit of your company's Form I-9 records periodically to ensure compliance with regulations and anti-discrimination provisions of the Immigration and Nationality Act, as non-compliance can result in significant employer sanctions - both civil and criminal. This new joint guidance provides best practices on how employers should launch an internal audit to avoid discrimination or retaliation claims, communicate about the audit process with employees, correct mistakes, properly request alternative documents when necessary, use a third party to conduct the internal audit, and the effect of enrollment in E-Verify on internal audits. 

Iandoli Desai & Cronin P.C. offers several options for conducting I-9 audits, from reviewing a sample of your Form I-9s with supporting documents and highlighting potential issues, to performing a full on-site audit of all records. If you would like to discuss these options or the assistance our firm can provide to avoid costly sanctions, please contact us at info@iandoli.com.

Visit http://www.justice.gov/crt/file/798276/download to read the new joint guidance in its entirety.

SEVP Releases Report on International Student Data

According to a recent report from the Student and Exchange Visitor Program ("SEVP"), there are currently 1.2 million international students using an F or M visa to study in the U.S. across 8,803 certified academic schools and universities, as well as 201,800 J-1 exchange visitors.  Thirty-nine percent of these international students (approximately 466,900 individuals) are enrolled in STEM (science, technology, engineering and mathematics) courses. 

The U.S. maintains the world's largest international student population.  According to a Wall Street Journal article from March 24, 2015, "Amid rising costs, shrinking state support and student resistance to tuition increases, foreign students have become crucial to many public universities. Some hire foreign consultants to recruit students overseas, while others send their own staff on scouting missions. Officials at many state universities say the higher-paying students essentially subsidize in-state students."  The U.S. international student population adds to the vibrancy and diversity of student bodies and college towns and brings in billions of dollars of economic revenue to the U.S. - and not just in terms of tuition dollars, as students in the U.S. also pay for housing, food, household supplies, personal and professional services, and entertainment.

To read more statistics from the SEVP, visit: https://www.ice.gov/news/releases/sevp-releases-quarterly-international-student-data

Begin Your Company's Planning for April's H-1B Lottery Now

With the U.S. economy booming again, employers should begin thinking about their hiring plans for next year and the upcoming Fiscal Year 2017 H-1B visa filing deadlines. Given the high demand for H-1B visas, USCIS is likely to accept H-1B petitions subject to the annual cap only during the first five business days in April: Friday, April 1, 2017 through Thursday, April 7, 2017. This filing deadline means late winter and early spring are often the busiest times of year for immigration practitioners, and we urge employers to contact us in December and January to review the requirements of the H-1B program, discuss the timing for drafting the FY2017 H-1B petitions, and to strategize about other options for employment-based visas for recent graduates and professionals. Please email us at info@iandoli.com or call us at 617-482-1010 with questions about H-1B visas and the application process.

USCIS opens draft Policy Memorandum addressing Immigrant Visa Portability pursuant to I.N.A. Sec. 204(j), 8 U.S.C. 1154(j) for public comment.

On November 20, 2015, USCIS released for public comment a Draft Policy Memorandum (DPM) regarding the employment-based Immigrant Visa Portability provisions of the Immigration and Nationality Act (INA). The Immigrant Visa Portability provisions were first enacted by Congress in October 2000 and allow certain employment-based green card applicants to change jobs or employers provided the applicant continues to work in the same or similar occupation as the originally sponsored petition. The DPM instructs USCIS adjudicators to use the federal government's Standard Occupational Classification (SOC) system to assess whether the two positions are in the same or similar occupation. The SOC system divides all jobs in the U.S. economy into 23 Major Groupings, 97 Minor Groupings, 461 Broad Occupations, and 840 Detailed Occupations. The DPM requires applicants seeking to invoke the Immigrant Visa Portability provisions to demonstrate by a preponderance of the evidence that the new job is in the same or similar occupation, including evidence from the intending employer describing the new position's duties, requirements and rate of pay. Comments on this proposed Draft Policy Memorandum are due January 4, 2016. For more information, visit: http://www.uscis.gov/outreach/feedback-opportunities/draft-memoranda-comment/draft-memorandum-comment

USCIS seeks public comments on proposed revisions to Form I-9

USCIS issued a Notice in the November 24, 2015 edition of the Federal Register seeking public comment on its proposed revisions to the Form I-9, Employment Eligibility Verification. USCIS has proposed extensive revisions to the form's instructions, providing more detailed examples and explanations. For example, the proposed revisions provide far greater detail and guidance to employees in completing Section 1 of Form I-9. Comments are due January 25, 2016. For more information or to submit comments on these proposed revisions, visit: http://www.uscis.gov/laws/uscis-federal-register-announcements

Deadline for H-1B Amendments in the wake of Matter of Simeio Solutions, LLC is approaching

In July, 2015, USCIS published official guidance after the recent Matter of Simeio Solutions, LLC precedent decision by the Administrative Appeals Office. According to USCIS's official guidance, employers must now file an amended or new H-1B petition for any H-1B employee whose place of employment changes to a new geographical area that requires filing of a new Labor Condition Application ("LCA") with the Department of Labor. As part of its official guidance, USCIS announced a safe harbor period through January 15, 2016 in which employers may file new or amended petitions that will be considered timely for purposes of employers maintaining compliance and employees maintaining their non-immigrant status. The risks of non-compliance are substantial - a random site visit could result in revocation of the employer's petition and the employee may be found to not be maintaining his or her H-1B status. If you have questions about H-1B amendments and compliance in the wake of Matter of Simeio Solutions, LLC, please contact us at info@iandoli.com

The Syrian refugee crisis and H.R. 4038

Since 1975 the U.S. has accepted over three million refugees from all over the world seeking protection from violence and persecution in their homelands. In FY2016, the U.S. has committed to accepting 85,000 refugees, including at least 10,000 from Syria. Refugees undergo the most rigorous security screen process of all persons seeking admission to the U.S., but in response to the terror attacks in Paris, Rep Michael McCaul (R-TX) introduced H.R. 4038: American Security Against Foreign Enemies Act of 2015. This bill, which passed the House by a vote of 289 - 137, adds even more layers of certifications and background investigations to the process, including the requirement for each refugee be individually certified as not posing a threat to the security of the U.S. by both the Director of the FBI and the Director of National Intelligence. The Senate has yet to take up the bill. Look for additional updates in our newsletter in the coming months on this and other immigration-related legislation.

Bipartisan Legislation Reforms

Bipartisan Legislation Reforms Employment-Based H-1B and Student Visas, Increases Access to Employment-Based Green Cards, and Promotes STEM Education. More info here.

Editor's Note: Originally Posted on 01/16/2015

Keeping Talent in Boston

Join us Wednesday, February 4th for Keeping Talent in Boston 

Immigration Options for Professionals, Entrepreneurs, Investors, and Recent College Grads.

Click here for more info!

Editor's Note: Originally Posted on 01/15/2015

FUNDAMENTALS OF EMPLOYMENT LAW SEMINAR DATE RELEASED

ID&C is please to announce:

THE FUNDAMENTALS OF EMPLOYMENT LAW SEMINAR

Where: Worcester, MA

When: Wednesday, February 11th 2015

Time: 8:30am-4:30 pm (Lunch 12:15pm)

Hosted by: Sterling Education Services

One of this year’s presenter’s is ID&C’s Prasant Desai.

Register before December 31st and save $30.

PLEASE SAVE THE DATE!

For more information and registration please click here

Editor's Note: Originally Posted on 12/11/2014

Executive Action on Immigration

On November 20, 2014 President Obama announced his plan to provide interim relief from deportation to certain undocumented immigrant families through an exercise of his executive authority.  In addition, the President announced new strategies to increase border security and to retain high-skilled immigrants, recent graduates and entrepreneurs in the U.S.  To carry out these measures, the President directed the Departments of Homeland Security, State and Labor to coordinate the implementation of his directives.  These agencies will announce detailed guidelines in the next several weeks concerning the President’s blueprint, including procedures to request relief, changes to the employment based immigrant visa system effecting highly skilled workers, entrepreneurs, and researchers, the L-1B visa program, and OPT for recent graduates of U.S. universities and colleges. For more information about the President’s plan, please visit <http://www.uscis.gov/immigrationaction>.

It is vital to note that the President’s action does not grant permanent legal status or a pathway to citizenship to undocumented immigrants.  Rather, the executive action provides qualified individuals with interim work authorization and prevents their forced separation form their U.S. citizen or Lawful Permanent Resident children for a three year period.

Editor's Note: Originally Posted on 11/21/2014

Interview with Department of State re: Visa Bulletin

In an interview with Charlie Oppenheim, Department of State, the following are predictions for Forward Movement in the Family & Employment based Preference Categories:

EB-2 India Retrogression
As Charlie predicted, EB-2 India will retrogress to February 15, 2005 as of November 1, 2014. Members who have EB-2 India clients with priority dates earlier than May 1, 2009 should file their adjustment of status applications before the end of October. No forward movement in this category is predicted for the foreseeable future.

EB-5 China
EB-5 China became current at the start of the new fiscal year in October, but as Charlie predicted last month, it will at some point become necessary to establish a cut-off date for EB-5 China, possibly as early as May 2015. Charlie will be speaking at a conference in San Francisco on October 23 and will have additional information to report to the public at that time.

EB-3 China “Downgrades”
The cut-off date for EB-2 China is December 8, 2009, approximately three weeks earlier than the cut-off date for EB-3 China, which is January 1, 2010. Charlie predicts that we are likely to see a cut-off for EB-2 China earlier than EB-3 China for a few months and that this is likely to prompt those with priority dates close to or within the EB-3 cut-off to file I-140s in the EB-3 category. This phenomenon is likely to last for a few months until these cases make it through USCIS, at which time the increased demand for EB-3 China will require a correction to that cut-off date.

As explained in the November Visa Bulletin, modest forward movement in the family-based preference categories of a few weeks to two months per month is possible. These predictions are based on information available in early October and will continue to be updated as the months progress and new information regarding the supply and demand for visas in the family-based categories becomes available.

In the employment-based preference categories, there is currently no movement predicted for EB-2 India, though EB-2 China is expected to progress by three to five weeks per month. Rapid advancement is expected in EB-3 China for the next few months until the correction described above kicks-in. A one or two week movement per month is expected for EB-3 India. EB-3 Mexico is expected to remain at the worldwide cut-off, as is EB-3 Philippines though for the Philippines, a roll-back might be necessary later in the fiscal year should demand increase dramatically.

Member Question Regarding Unused Visa Numbers
An AILA member posed a series of questions following news reports of an estimated 200,000 unused visas which could be recaptured through administrative action.

Charlie agrees that there are approximately 220,000 family and employment-based visas that have gone unused, most of which can be attributed to the period between 1992 and 1997. Prior to the “dot com bubble,” demand was usually insufficient to use all of the available employment-based visa numbers in any given fiscal year. Since then, the increase in demand for labor in the IT sector and improved interagency processes have contributed to greater use of employment-based visa numbers in the fiscal year for which they were allocated. In the past, such unused numbers have only been recaptured through legislative action.

Editor's Note: Originally Published on 10/20/2014