Massachusetts Governor signs into law legislation to make drivers' licenses compliant with the REAL ID Act

In an action that could significantly impact many immigrants, Massachusetts Governor Charles Baker signed legislation in July requiring all applicants for a Massachusetts Driver's License to provide evidence that they have the legal right to be in the United States. A copy of the Governor's press release regarding the REAL ID Act is available on the Commonwealth's official website. According to the new legislation, duration of the license will not exceed the period of authorized stay, meaning that many immigrants who traditionally are granted short stays but who routinely have their authorized stay extended may face difficulties renewing and extending their driver's licenses. For example, a holder of H-1B status that is valid for just a one-year period will be issued a driver's license for only one year. At the time for renewal, the applicant will need to provide proof of an approved extension and it is unclear whether proof of a timely filed extension (but not an approval notice) will be sufficient for a driver's license renewal.

Over the coming months we expect further developments on this issue as advocates for immigrants will be working to educate authorities within the Registry of Motor Vehicles and other interested state agencies about the intricacies of what constitutes legal status in the United States. In the meanwhile, the Registry will update Massachusetts licensees throughout its compliance efforts and anticipates the REAL ID compliant licenses will begin to be issued in the fall of 2017. We will provide future updates on these efforts in our newsletter and on our website at http://www.iandoli.com/newsandupdates.

Temporary Protected Status extended for El Salvador and Syria

On July 8, 2016, Secretary of Homeland Security Jeh Johnson announced that Temporary Protected Status ("TPS") for El Salvador has been extended for an additional eighteen-month period. The new period will now expire on March 9, 2018.  Applications for TPS extension must be received between July 8, 2016 and September 6, 2016. Salvadorans who already have TPS and who also have employment authorization will receive an automatic extension to their Employment Authorization Document ("EAD") for an additional six months upon applying for a new EAD. In order to qualify for TPS, applicants must prove they are Salvadoran nationals and that they have continuously resided in the United States since February 13, 2001.
 
Similarly, Secretary Johnson announced on August 1, 2016 that TPS for Syria has been re-designated and extended. Re-designation means that nationals of Syria may register for TPS for the first time if they have continuously resided in the U.S. since August 1, 2016 and will be able to show they have been physically present in the U.S. since October 1, 2016 (the effective date of the re-designation). USCIS will accept initial applications from Syrian nationals for TPS from August 1, 2016 until January 30, 2017. Syrian nationals who have already been granted TPS may extend their TPS for an additional eighteen months but must apply for the extension during the re-registration period that runs from August 1, 2016 through September 30, 2016. A complete explanation of the eligibility requirements can be found on the USCIS TPS website. 

DHS expands provisional waivers

The Department of Homeland Security ("DHS") published a final rule on July 28, 2016 that expands provisional unlawful presence waiver eligibility. Generally, individuals who are in the U.S. and seek lawful permanent resident ("LPR") status (commonly referred to as "green card" status) must either obtain an immigrant visa abroad through consular processing with the Department of State ("DOS") or apply to adjust their status to that of an LPR while they remain in the U.S. Individuals present in the U.S. without having been inspected and admitted or paroled, or who have overstayed a previously valid visa are typically ineligible to adjust status and instead have to depart the U.S. to process their immigrant visas abroad. However, once these individuals depart the U.S., if they have been present in the U.S. without having been inspected and admitted or paroled, or if they overstayed a previously valid visa, they may trigger a 3 year or 10 year bar to re-admission into the U.S. based on accrual of unlawful presence. The Secretary of Homeland Security has had discretion to waive this ground of inadmissibility if the individual can demonstrate that refusal of his or her admission into the U.S. would result in extreme hardship to his or her U.S. citizen spouse or parent. Previously, the foreign national would have to attend his or her immigrant visa interview abroad, and then submit a Form I-601 and evidence of the hardship to USCIS for adjudication. This process resulted in foreign nationals being separated from their family members in the U.S. for extended periods of time while awaiting adjudication of the Form I-601. 
 
In 2013 DHS implemented a final rule that allowed certain immediate relatives of U.S. citizen spouses and parents to submit a Form I-601A while still in the U.S., accompanied by evidence of extreme hardship their family would face if they were unable to return to the U.S. after immigrant visa processing. USCIS adjudicates the Form I-601A prior to the foreign national departing the U.S. to attend his or her visa interview, thereby reducing the amount of time families are separated from one another while awaiting immigrant visas. The 2013 final rule permitted only immediate relatives - certain parents, spouses and children of U.S. citizens - to request the waiver. By granting the waiver prior to the foreign national departing the U.S., families experienced reduced hardships and lower processing costs for DHS and DOS. In 2015 DHS published a proposed rule to expand the class of individuals who could be eligible for provisional waivers to all statutorily eligible individuals regardless of their immigrant visa classification. The final rule, published August 1, 2016, expands consideration of hardship to include both U.S. citizen and LPR spouses and parents, and is now available to all preference category immigrants, individuals with approved employment-based immigrant visa petitions, and diversity lottery immigrants. A full copy of the rule can be viewed on the Federal Register website and newly eligible individuals may begin submitting Form I-601A beginning August 29, 2016.

Tips for H-1B and L-1 FDNS site visit compliance

Since 2009, the Fraud Detection and National Security directorate ("FDNS") of USCIS has conducted site visits at employer worksites to ensure compliance with all terms as stated in the I-129 for approved H-1B and L-1 petitions. FDNS operations are funded with the $500 Fraud Prevention and Detection Fee that accompanies initial H-1B and L-1 petitions by employers. If FDNS conducts a site visit and the officer's Compliance Review Report contains indicators of fraud, USCIS will then assess whether further investigation is warranted and, if necessary, alert Immigration and Customs Enforcement ("ICE").

Compliance with the H-1B and L-1 regulations remains essential for employers who submit petitions on behalf of professional workers in these visa categories, and employers should keep in mind a few important points concerning FDNS site visits. If an officer from FDNS arrives at your worksite, remember that FDNS site visits are voluntary, though employer cooperation is strongly recommended. More importantly, employers and their HR representatives should always contact their immigration attorney ASAP in the event of an FDNS site visit. During these site visits, which are typically unannounced, employers may be requested to provide paystubs and W-2s for H-1B and L-1 employees. These figures will then be matched with the amount stated in the I-129 petition and compared to the beneficiary's 1040 tax return to ensure compliance. Employers who are not able to immediately address all the issues raised by the inspector may request additional time to respond.

To avoid any discrepancies in the event of a site visit, employers should make certain that all information provided in the I-129 petition is 100% accurate and that any significant changes to the conditions of employment are brought to the attention of their immigration counsel who can advise on filing an amended petition.  For more information about FDNS and site visit compliance, visit USCIS's website.  

Supreme Court ruling on DACA does not impact current DACA recipients

On June 23, 2016, the U.S Supreme Court issued a 4-4 split decision upholding the injunction against implementation of President Obama's actions to provide safe haven and work authorization to thousands under the Deferred Action for Parents of Americans and Legal Permanent Residents ("DAPA") program and to extend eligibility for Deferred Action for Childhood Arrivals ("DACA") to additional thousands who are currently without any form of legal status. It is important to note that although the President's expanded DACA program will not be expanded at this time, the Supreme Court's decision does not affect anyone who is currently enrolled in DACA. Individuals who meet the 2012 DACA guidelines may continue to come forward and file an initial or renewal request for DACA under those guidelines. For more information, visit the USCIS DACA website.

Lengthy wait times for visa appointments in India

U.S. Consular Posts in India began reporting lengthy wait times for nonimmigrant visa interview appointments in June.  These substantial waiting periods continue and affect all nonimmigrant visa applicants other than B1/B2 visitors, F-1 students, and J-1 exchange visitors and their dependents.  Current wait times for appointments (as listed on the Department of State's website) for H-1B, L-1, O-1, and other affected nonimmigrant visa categories are:

• 82 days in Chennai;
• 118 days in Hyderabad;
• 96 days in Kolkata;
• 67 days in Mumbai; and,
• 90 days in New Delhi.

F-1 student visa appointments at some of the above-listed offices are taking as long as 36 days for scheduling. Accordingly, F-1 students should make visa appointments as early as possible to ensure timely visa processing for arrival to the U.S. for the fall semester.

The Department of State ("DOS") reports that demand for U.S. visas has increased by 80% since 2011 and DOS is currently requesting approval to add consular positions in an effort to decrease visa wait times. Until wait times subside, Indian nationals in the U.S. with expiring or expired visas should keep in mind the lengthy periods for obtaining an appointment and plan accordingly - perhaps even deferring international travel unless absolutely necessary to avoid extended waiting time abroad.  Although expedite requests are available for humanitarian issues and business emergencies, such requests should be made sparingly and with sufficient documentation to demonstrate the exigent circumstances. Additionally, visa applicants should also consider Third Country National (typically, Canada) processing (particularly for H-1B and L-1 visa holders) as a more efficient alternative.  Please note that Indian nationals require a Canadian visitor visa to enter Canada.

STEM OPT deadline

F-1 students on 17-month STEM OPT and their employers should be mindful of the upcoming August 8, 2016 deadline for applying to extend their STEM OPT to the new 24-month maximum. The Department of Homeland Security's ("DHS") final STEM OPT rule, published in March, allows many F-1 students with STEM degrees to take advantage of a two-year extension to their Optional Practical Training ("OPT"). As stated in the new rule, any 17-month STEM OPT Employment Authorization Document ("EAD") issued on or before May 9, 2016 will remain valid until the EAD's expiration date. However, students should keep in mind DHS will not automatically convert 17-month STEM OPT EADs to 24-month EADs. Instead, F-1 students with at least 150 days of OPT remaining have until August 8, 2016 to apply for the additional 7 months of work authorization permitted under the new rule. 

Eligible F-1 students, along with their employers, will need to complete and sign the new, required STEM OPT Training Plan when requesting the OPT extension from their schools' international student offices. Once students obtain the updated Form I-20 from their schools, they will then need to file a new Form I-765 with USCIS before the August 8, 2016 deadline.

Before signing the Training Plan, employers should be aware of the attestation and reporting requirements under the DHS's new rule. Please contact the attorneys at Iandoli Desai and Cronin by email at info@iandoli.com if you have questions regarding STEM OPT extension requests, the upcoming deadline, or the new employer reporting and attestation requirements.

Nebraska Service Center now accepting some H-1B extension requests

Effective July 1, 2016, the Nebraska Service Center ("NSC") has begun accepting certain types of H-1B and H-1B1 (Chile / Singapore Free Trade) petitions. Employers may file H-1B and H-1B1 petitions with the NSC where they are requesting a "continuation of previously approved employment without change of the same employer" (per Part 2, Question 2, Box b. on Form I-129) and if the employer is requesting an extension of the beneficiary's current H-1B or H-1B1 status or notification of a consular office or port of entry (per Part 2, Question 4, boxes a., c., or e.). The NSC will also accept any concurrently filed H-4 Form I-539 Applications to Exchange/Change Nonimmigrant Status and any I-765 Application for Employment Authorization for eligible H-4 spouses.

The alert from USCIS, issued on June 1, 2016, indicates the California Service Center ("CSC") and the Vermont Service Center ("VSC") may continue to accept H-1B and H-1B1 petitions during this transition period, which ends August 31, 2016. Cap-exempt employers should continue to file their H-1B petitions with the CSC, and petitioners requesting premium processing should continue to file their H-1B petitions with either the CSC or the VSC according to the Form I-129 Direct Filing Addresses page until further notice.

Comment period closes for proposed USCIS fee increases

On May 4, 2016, the Department of Homeland Security ("DHS") published a proposed rule to increase USCIS filing fees an average of 21% across all application types and to add a few new fees to its existing fee schedule. USCIS indicated it was seeking fee increases for the first time in 5 years in order to cover its current costs for processing a variety of applications. A full copy of the notice and proposed fee changes can be found on the Federal Register website, and a summary of a few of the proposed fee changes can be found on our website. The notice and comment period, originally set to close on July 5, 2016, was extended to July 6, 2016, with DHS having received at least 340 public comments.

Changes to E-Verify accounts

Effective August 1, 2016, the Department of Homeland Security ("DHS") announced that users of its E-Verify program who have not accessed E-Verify for 270 days or more will begin to see their user IDs deactivated. To avoid deactivation, employers who use E-Verify will want to ensure they log into their E-Verify account regularly - and at a minimum employers should set reminders to log in at least once every 9 months.

E-Verify is a free, internet-based system offered by DHS to allow employers to determine the eligibility of their employees to work in the U.S. Since 1986 U.S. law has required employers to verify worker eligibility and to maintain records through the use of form I-9. E-Verify was officially introduced in 2007 after a pilot program that allowed employers to electronically verify worker eligibility in the U.S. The program has grown to over 602,000 participating employers verifying over 13 million employees each year. While E-Verify is an optional program for most employers, it is a required program for certain federal contractors and for any employer who seeks to employ F-1 students during their additional two years of work authorization in the U.S. following graduation as part of the STEM OPT program.