DHS increases fines for I-9 and other immigration violations
As of August 1, 2016, DHS's new rule increasing fines for I-9 and other immigration violations is now in effect. DHS, in cooperation with the Department of Justice ("DOJ") and the Department of Labor ("DOL") has increased civil fines against employers who commit immigration-related offenses, such as Form I-9 and E-Verify violations, H-1B visa program violations, unfair immigration employment practices and unlawfully employing foreign nationals. Although the increased penalties are applicable only to penalties assessed after August 1, 2016, they will apply to violations committed by employers going back to November 2, 2015.
The penalty increases are substantial because the federal agencies are adjusting fines for inflation from the dates of initial enactment of the I-9 rules in 1986. For instance, penalties for violating the Form I-9 identity and employment eligibility verification provisions almost doubled from a range of $110 - $1,100 per violation to a range of $216 - $2,156 per violation. When violations are coupled with multipliers for each offense, the fines can add up to hundreds of thousands of dollars and even into the millions very quickly. If you have questions about I-9 compliance or compliance with temporary worker visa programs, please contact one of the attorneys at Iandoli Desai & Cronin at info@iandoli.com.
USCIS to host a teleconference on Conrad 30 waivers for physicians
USCIS and the Department of State ("DOS") Waiver Review Division will host a teleconference on Thursday, September 8, 2016 regarding the Conrad 30 Waiver Program. This waiver program permits J-1 foreign medical graduates who would otherwise be subject to the two-year home residency requirement to apply for a waiver if they meet the program eligibility criteria. Conrad Waivers are limited in number and are available through sponsorship by state health departments. To be eligible for the waiver, the J-1 medical doctor must agree to be employed full-time in H-1B nonimmigrant status at a health care facility located in an area designated by the U.S. Department of Health and Human Services ("HHS") as a Health Professional Shortage Area ("HPSA"), Medically Underserved Area ("MUA") or a Medically Underserved Population ("MUP"), obtain a no objection letter from his/her home country if the home government funded the J-1 exchange program, and begin the employment pursuant to a contract at a health care facility designated by HHS as a HPSA, MUA or MUP within 90 days of receipt of the waiver.
The teleconference will include an overview of the program, followed by USCIS officials answering non-case specific questions that were submitted in advance. DOS officials will also be on hand to answer non-case specific questions. Finally, the teleconference will include a listening session for taking feedback and suggestions for the program. To register for the program, visit the USCIS registration page.
Lengthy waits for visa appointment times in India continue
In July our newsletter included a warning about lengthy wait times for visas in India in several visa categories, including H-1B and L-1. The delays for visa appointments in India continue with the current wait times listed on the DOS website as:
- 105 days in Chennai (up from 82 days in July)
- 120 days in Kolkata (up from 96 days in July)
- 93 days in Mumbai (up from 67 days in July); and,
- 112 days in New Delhi (up from 90 days in July).
Only one Indian consulate has addressed these substantial backlogs for appointments. Wait times are down to 2 days in Hyderabad (it was 118 days in July). To check the most recent postings for visa wait times, please visit the U.S. Department of State's website. Always remember to plan your visa stamping well in advance of any international travel, and whenever possible take advantage of the interview waiver system available at some consulates abroad for renewing your visa.
Major changes in the August 2016 Visa Bulletin
As of August 1, 2016, foreign nationals from India and China filing in the EB-1 category will be temporarily unable to submit their I-485 Adjustment of Status applications concurrently with their I-140 employment-based immigrant visa applications. According to the U.S. Department of State's ("DOS") August 2016 Visa Bulletin, Indian and Chinese nationals with priority dates of January 1, 2010 and earlier will be eligible to submit their green card applications and those with later priority dates will have to wait until immigrant visas become available in the coming months. The EB-1 category remained current for nationals of all countries except India and China. Charles Oppenheimer, Chief of the Visa Control and Reporting Division with DOS, stated this cut-off date for China and India is expected to end on October 1, 2016 and adjudications can then resume on all EB-1 applications for permanent residence.
The August 2016 Visa Bulletin also has a worldwide cut-off date of February 1, 2014 for EB-2 beneficiaries. EB-2 beneficiaries include those with approved Labor Certifications from the Department of Labor for those with advanced degrees or equivalent and applicants applying in the National Interest Waiver category. This worldwide cut-off is also expected to end on October 1, 2016 making these petitions current and processing of permanent residence applications available for all countries other than China and India. According to Mr. Oppenheimer, significant movement will also be made in October for all countries in the EB-3 preference category. Together, these changes will allow many thousands of EB-1, EB-2 and EB-3 workers to apply for Adjustment of Status or seek consular processing of their immigrant visa applications this fall. If you have questions about the visa bulletin or eligibility for filing for adjustment of status, please contact the attorneys at Iandoli Desai & Cronin at info@iandoli.com.
Reminder: STEM OPT extension deadline fast approaching
F-1 students on 17-month STEM OPT and their employers should be aware of the fast-approaching deadline for applying to extend STEM OPT to the new 24-month maximum. Eligible 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 Department of Homeland Security's ("DHS") final STEM OPT rule. For further details about applying for this STEM extension, please visit our website.
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.