DOL Stakeholder Meeting: no final rule likely before end of Obama's term

As reported in minutes from a recent stakeholders meeting, officials from the Employment and Training Administration's Office of Foreign Labor Certification dashed any hopes for significant change to the current Permanent Labor Certification ("PERM") program.  Publication of a Notice of Proposed Rule Making may be possible before the end of this calendar year, but the Office of Foreign Labor Certificate has indicated it is "highly unlikely" that any final rule could be implemented before the change in administrations. 

The PERM program is the first step in obtaining employment-based permanent resident status for the majority of foreign-born skilled workers in the U.S. The current regulations have not been updated in well over a decade, despite how much has changed in our economy and industry recruitment practices. Many employers criticize the current regulations as out of step with worker or industry needs and conditions. 

In connection with President Obama's Executive Actions on Immigration, originally introduced in November 2014, the Department of Labor ("DOL") announced it would conduct a review of the PERM program and regulations and seek input from stakeholders on how the regulations could be modernized to be more responsive to the realities of our current national workforce. Among the topics discussed at several listening sessions with DOL included the handling of harmless errors, recruitment venues, addressing audit backlogs, and the retroactive application of new policies. We will continue to update you in our newsletter when DOL finally publishes a Notice of Proposed Rulemaking for the modernization of the PERM system.

Form I-9: Change is coming

The August/September edition of E-Verify Connection, an electronic newsletter published by the Department of Homeland Security ("DHS"), provides a schedule for the new Form I-9's roll out. DHS states "On Aug. 25, the Office of Management and Budget (OMB) approved a revised Form I-9, Employment Eligibility Verification. USCIS must publish a revised form by Nov. 22, 2016. Employers may continue using the current version of Form I-9 with a revision date of 03/08/2013 N until Jan. 21, 2017. After Jan. 21, 2017, all previous versions of Form I-9 will be invalid."

Since 1986 U.S. law has required employers to verify worker eligibility and maintain records through the use of Form I-9. In the event of an I-9 audit, employer errors and violations for identity and employment eligibility verification can result in significant fines. When the new form is published, employers will have 60 days to study and develop best practice for use with the new form.  If you have questions about I-9 compliance or how to prepare for an I-9 audit, please contact one of the attorneys at Iandoli Desai & Cronin P.C. at info@iandoli.com

H-1B lottery rules challenged

A Federal District Court in Oregon has denied the Government's request to dismiss a lawsuit brought by employers and several foreign national professionals challenging the random selection process (also referred to as the H-1B "lottery") used by USCIS to select H-1B petitions for adjudication. The plaintiffs allege that the random selection process is unlawful because it violates the express command of Immigration and Nationality Act ("INA)§214(g) which provides that foreign national professionals "shall be issued visas...in the order in which petitions are filed..."  If the plaintiffs are successful, multi-year waiting lists for H-1B visas may develop, much like those for immigrant visas for the preference categories. The case is Tenrec, Inc. v. United States Citizenship & Immigrations Servs., 2016 U.S. Dist. LEXIS 129638 * (D. Or. Sept. 22, 2016).  A copy of this most recent decision can be viewed here and a full copy of the initial complaint can be viewed here. 

TPS update: designation for Guinea, Liberia & Sierra Leone ending

The Department of Homeland Security ("DHS") in coordination with other government agencies recently concluded that conditions in Guinea, Liberia, and Sierra Leone no longer support their designation for Temporary Protected Status ("TPS"). The Secretary of Homeland Security may designate a foreign country for TPS due to conditions in the country that temporarily prevent the country's nationals from returning safely, including in the event of ongoing armed conflict, an environmental disaster or epidemic, or other extraordinary or temporary conditions. Other countries currently designated for TPS include El Salvador, Haiti, Honduras, Nepal, Nicaragua, Somalia, Sudan, South Sudan, Syria, and Yemen.

Pursuant to a DHS Notice in the Federal Register, individuals who obtained TPS based on the designations of Guinea, Liberia, and Sierra Leone have received an automatic but limited extension of TPS until May 21, 2017.  Furthermore, the Notice extends the validity of Employment Authorization Documents ("EAD") issued to those same individuals to May 21, 2017, so affected individuals do not need to file any additional applications to extend their TPS or EAD cards. Foreign nationals in the U.S. from Guinea, Liberia and Sierra Leone who have filed for TPS should seek guidance with immigration professionals now to avoid a potential lapse in status once the period of TPS terminates.  For more information about TPS generally and the termination of TPS for these three countries, please visit the USCIS TPS website.

E-Verify, Conrad 30 Waiver, Religious Worker, and EB-5 program extensions

In the final days of the Government's fiscal year, Congress passed Public Law 114-223, Continuing Appropriations and Military Construction, Veterans Affairs, and Related Agencies Appropriations Act, 2017, and Zika Response and Preparedness Act. This act was signed on September 29, 2019 by President Obama, keeping the government funded and certain programs in place through December 9, 2016. As part of this law, the Religious Worker, Conrad 30 Waiver, EB-5 Immigrant Investor, and E-Verify programs have been extended until December 9, 2016.  Absent Congressional action, each of these programs would have expired at midnight on September 30, 2016. Congress will likely address longer term extensions for these programs in the next two months as part of the larger funding bills to keep the government funded through the balance of Fiscal Year 2017.  We will bring you additional updates on these programs in future editions of our newsletter.

Proposed rule would allow entrepreneurs temporary entry into the U.S.

On August 26, 2016, the Department of Homeland Security ("DHS") announced new proposed regulations to increase and enhance entrepreneurship, innovation, and job creation in the United States. DHS's proposed rule would add new regulatory provisions permitting the use of parole/temporary stay on a case-by-case basis with respect to entrepreneurs of start-up entities whose entry into the U.S. would provide a significant public benefit through the substantial and demonstrated potential for rapid business growth and job creation. The regulations describe several metrics for assessing this potential, including the receipt of significant capital investment from U.S. investors with established records of successful investments or obtaining significant awards or grants from certain federal, state or local government entities. 
 
If granted, parole would provide the entrepreneur a temporary, initial stay of up to 2 years, with the possibility of being extended by up to an additional 3 years, in order to facilitate the entrepreneur's ability to oversee and grow her or his start-up entity in the U.S. DHS would consider subsequent requests for re-parole only when the entrepreneur can demonstrate the start-up entity continues to provide a significant public benefit as evidenced by substantial increases in capital investment, revenue, or job creation.

DHS published its notice of proposed rulemaking in the Federal Register, inviting public comment for 45 days - until October 10, 2016. Once the comment period closes, the agency will review comments received and consider changes to the proposed regulations, publishing a final rule in the Federal Register at a later date. You may submit comments on the proposed rule by e-mail at uscisfrcomment@dhs.gov with DHS docket number USCIS-2015-0006 in the subject line of the message. Iandoli Desai & Cronin P.C. will continue to bring you updates on this new proposed rule in our newsletter and on our website at www.iandoli.com/newsandupdates.

Avoid payment scams: USCIS does not accept payment by phone or email

U.S. Citizenship and Immigration Services ("USCIS") has alerted the public about new scams targeting immigrants and their families in the U.S. The immigrant or the petitioning family members may receive a phone call from someone pretending to be a government official and indicating there is a problem with an application or additional information is required to continue the immigration process. The criminals perpetrating these scams then ask for personal and sensitive information, and demand payment to fix any problems. Please remember USCIS officials will never request payment over the phone or in an email. If USCIS requires a payment, the agency will mail a letter on official stationery requesting payment be sent in the form of a check or money order to an official USCIS address. Applicants can always call USCIS customer service to verify payment receipt information. If you receive a scam email or phone call, please report it to the Federal Trade Commission at http://1.usa.gov/1suOHSS. If you receive an email related to your petition and you are not sure if it is a legitimate request, please forward the suspicious email to the USCIS Webmaster at uscis.webmaster@uscis.dhs.gov. USCIS will review the emails received and share with law enforcement agencies as appropriate. 

Tips for temporary visa holders for entering the U.S.

Each time foreign nationals re-enter the U.S. after temporary travel abroad, they should check their I-94 expiration date online at  https://i94.cbp.dhs.gov. Previously, U.S. Customs & Border Protection ("CBP") officers issued nonimmigrant air travelers a physical Form I-94 card (in the form of a small, white piece of paper) after conducting inspection.  Although physical I-94 cards are still completed at US land borders, CBP has been employing the electronic I-94 system for those traveling by air and sea since April 2013. Foreign nationals should always check their electronic I-94 records to ensure that their name, date of entry and expiration of stay has been properly entered into the U.S. Department of Homeland Security's database correctly to avoid any problems with future legal status in the U.S.  If a foreign national is unable to find her/his I-94 record online after entering their passport details correctly, or if the date displayed for period of admission is incorrect, the foreign national may return to the airport's international section and request to see a CBP officer at the Deferred Inspection office. Some CBP offices will entertain requests via email, while others only accept I-94 corrections in person with an appointment. 
 
With summer coming to a close and October approaching, many international students are returning to classes and soon many new H-1B visa holders will be arriving or looking to travel.  We remind F-1 students to always check with their school's international student office before undertaking any international travel, as they must have an up-to-date I-20, and if in their period of Optional Practical Training ("OPT"), proof they are maintaining their F-1 status by working (with an employment letter and/or paystubs) and not incurring more than the authorized number of days of unemployment. New H-1B arrivals should be reminded they can be admitted into the U.S. no earlier than 10 days before the start date listed on their I-797 approval notices. Those in other non-immigrant status (such as F-1, H-4, or L-1 or L-2), whose employers filed H-1B change of status petitions to take effect October 1 should remember to plan their next international trip carefully, ensuring that once they depart the U.S. they have made arrangements for obtaining a new H-1B visa abroad for re-entry into the U.S.

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.