A new presidential administration - how much change to expect & how soon?

Given the amount of the rhetoric concerning immigrants that occurred during the 2016 presidential campaign, many members of the immigrant community are nervous about what to expect next. In addition to the foreign nationals living and working in the U.S. feeling uncertain, the companies who employ non-immigrant, professional workers in a variety of employment-based visa categories are also unsure about what the change in presidential administrations will mean for their workforce. 

The U.S. Constitution does not permit a President, acting alone, to repeal or amend laws, statutes, or regulations. A President can, however, undertake actions to reverse some of the policies of his predecessor, particularly if those actions exist only as Executive Actions and are not codified in statutes or agency regulations. The most common types of executive actions include 1) executive orders, 2) discretionary agency directives and guidance, and 3) agency rules. Employers and their foreign national employees should take some comfort in the fact that that agency rules (for example, rules published by the Department of Homeland Security in effect by the time the president-elect takes office) require a significant amount of time to revise or revoke. Agency rules must undergo publication, notice and comment periods before a final rule can take effect, pursuant to the Administrative Procedures Act. Any proposed changes to these rules will be well publicized and the public will have the opportunity to provide input on any changes sought by a new administration, as well as prepare for any ultimate changes to current regulations. On the other hand, discretionary agency directives and guidance do not have the force and effective law, and thus can change with a new president. The same is true of executive orders, written by the President to govern executive branch agencies and officials. 

The president-elect has also made numerous comments criticizing NAFTA, which provides for TN visa status for a number of professionals from Mexico and Canada. While the U.S. has not formally withdrawn from an international trade treaty since the mid-1800s, the NAFTA treaty does contain a provision allowing a country to withdraw from it upon providing 6 months notice to the other parties to the treaty, and the President could do so without consent from Congress. Please stay tuned to our newsletter and our firm's News and Updates section of our website in the coming months for important information regarding any proposed changes or new executive actions that may affect immigrants and work-authorized non-immigrants.

USCIS to use Dates for Filing chart from November Visa Bulletin

Exactly one year after the U.S. Department of State ("DOS") began publishing two charts per visa preference category in its monthly Visa Bulletin, U.S. Citizenship and Immigration Services ("USCIS") announced in September that applicants for Adjustment of Status could use the "Dates for Filing" chart in the October 2016 Visa Bulletin for almost all family-based and employment-based categories. The only notable exception to this change of policy was the 5th preference employment-based category, which must continue to use Final Action Dates. 

When DOS introduced the two chart model in September 2015, USCIS responded by saying each month it would separately indicate whether it would adhere to the Final Dates of Action chart or the Dates for Filing chart for determining whether a foreign national may submit an application to adjust status (commonly referred to as the "green card" application). Between September 2015 and September 2016, USCIS consistently announced that applicants must look to Final Dates of Action before submitting their applications for adjustment of status.  For example in the July 2016 Visa Bulletin, DOS listed the Final Action Dates for the EB-2 category for China as January 1, 2010, meaning Chinese nationals with an approved I-140 listing a priority date of January 1, 2010 or earlier could submit their green card applications. The Dates for Filing in that same visa category was June 1, 2013, but because USCIS did not accept this chart for purposes of filing, applicants had to adhere to the Final Action Dates chart. 

In October 2016, however, USCIS for the first time permitted applicants to look to the Dates for Filing chart for when they could submit green card applications, which has made a significant difference for a number of backlogged categories. In November 2016, USCIS continued this trend, allowing applicants to again refer to the earlier Dates for Filing chart for determining if they may submit their green card applications. This is significant for potential applicants in the EB-2 China, EB-2 India, and EB-3 China categories, who are now eligible to file for green card applications as much as a year and a half earlier than the Final Action Dates charts indicate. For example the November 2016 Visa Bulletin lists EB-2 China Final Action Date as July 15, 2012, whereas the Dates for Filing in the same category is March 1, 2013.  Although applicants are unlikely to see approval of their Adjustment of Status applications prior to the Final Action Dates chart matching their priority date, they still receive some benefits from this earlier filing date. In most circumstances eligible applicants can submit applications for temporary work and travel cards along with their green card applications, and dependent family members may also submit applications, allowing for greater flexibility for work authorization and travel. 

If you have questions about the Visa Bulletin, this recent change of policy by USCIS, or whether you or your company's employees may be affected by this change, please contact one of the attorneys at Iandoli Desai & Cronin P.C. at info@iandoli.com.

New fee schedule form USCIS goes into effect next month

On October 24, 2016, U.S. Citizenship and Immigration Services ("USCIS") published its final rule in the Federal Register announcing the new fee schedule for applications. The new rule increases fees for most applications and petitions by a weighted average of 21%.  Among the most common applications, the fee increases (excluding biometrics fees, in some instances) are:

• I-90 Application to Replace Permanent Resident Card, current fee $365, new fee $455
• I-129 Petition for Nonimmigrant Worker, current fee $325, new fee $460
• I-130 Petition for Alien Relative, current fee $420, new fee $535
• I-140 Immigrant Petition for Alien Worker, current fee $580, new fee $700
• I-485 Application to Register Permanent Residence or Adjust Status, current fee $985, new fee $1140
• I-539 Application to Extend/Change Nonimmigrant Status, current fee $290, new fee $370
• I-601 Application for Waiver of Ground of Excludability, current fee $585, new fee $930
• I-612 Application for Waiver of the Foreign Residence Requirement, current fee $585, new fee $930; and,
• N-400 Application for Naturalization, current fee $595, new fee $640. 

Per the publication in the Federal Register, the new fees are effective for applications received on or after December 23, 2016. Applicants looking to take advantage of the lower, current fees should ensure they submit any relevant applications to USCIS between now and December 22.

CBP procedures after nonimmigrant change of employer

In response to a query by the American Immigration Lawyers Association ("AILA"), Customs and Border Protection ("CBP") recently clarified an important issue regarding the nonimmigrant visa holders who seek to enter the U.S. in H-1B, L-1, O-1, P-1, and R-1 status with visas issued to them before they changed employers. For several years there has been a lack of clarity surrounding whether these nonimmigrants needed to obtain new visas abroad after changing employers, since their unexpired visas listed their first employer ("Employer A"), and the I-797 approval notices they would present to CBP along with their visa at the time of re-entry into the U.S. would list their new employer ("Employer B"). CBP confirmed to the CBP Office of Field Operations Liaison Committee that in most cases applicants do not need to first obtain a new visa annotated with Employer B's name on it -- the applicants may continue to use the visa annotated with Employer A's name, so long as the applicants present a valid I-797 approval notice associated with Employer B at the time of entry.

Although this is the first time CBP has offered this view as an agency, nonimmigrant visa holders should be aware there is still no direct written guidance from CBP on this matter. Despite the lack of official guidance, CBP's offering this view is a positive step perhaps towards a more codified approach that could provide more consistency for nonimmigrants who change employers after first obtaining their visa abroad. If you have questions about visa validity, changes of employer petitions, or CBP procedures, we encourage you to contact us at info@iandoli.com.

USCIS Policy Manual update reflects new HHS rulemaking

On November 2, 2016, U.S. Citizenship and Immigration Services ("USCIS") issued a policy alert on updates the agency is making to its Policy Manual regarding health-related grounds of inadmissibility. These changes are in direct response to the U.S. Department of Health and Human Services ("HHS") rulemaking. This new guidance is retroactive, effective March 28, 2016, and includes several important updates. Most notably, the definition of a Class A condition now includes the failure to present documentation of having received vaccinations against vaccine preventable diseases, the definition of a Class B condition now reflects "health conditions, diseases, or disability serious in degree or permanent in nature," and updates to the definition of physical and mental disorders associated with harmful behavior and the definition of drug abuse and drug addiction. In addition to these updates, the new policy removes 3 medical conditions (chancroid, granuloma inguinale, and lymphogranuloma venereum) from the list of communicable diseases of public health significance that would render an applicant for adjustment of status or an immigrant visa inadmissible on health-related grounds of inadmissibility. 

Electronic Visa Update System becomes mandatory at the end of this month for certain non-immigrant travels to the U.S.

The Department of Homeland Security ("DHS") published its final regulations on October 20, 2016 regarding the Electronic Visa Update System ("EVUS"), a new system for collecting biographic and other information from nonimmigrant aliens coming to the U.S. The nonimmigrant aliens subject to these regulations must periodically enroll in EVUS and obtain a notification of compliance before travel to the U.S., in addition to obtaining a valid visa. The only country / visas the program applies to initially is the People's Republic of China for 10 year B-1, B-2, and combo B1/B2 visas holders, which are general business and tourist travel visas. Before issuing a notification of compliance, the free EVUS system will ask applicants to provide details about their biographical and employment data, travel details, and their contact information in the U.S., as well as questions about public health concern, questions about arrests or convictions for certain crimes, and past history of visa or admission denial.  

The EVUS enrollment will become mandatory on November 29, 2016 and remains valid for two years. This new system requires compliance for both new visa applicants from China, and those already issued B-1, B-2, and combo B1/B2 visas. Travelers who are subject to EVUS requirements but do not have valid enrollments will not be able to obtain a boarding pass or enter through a land port of entry. Please refer to CBP's Frequently Asked Questions on the EVUS system for more details.

Tips for I-9 compliance and new form I-9 update

In a recent Fifth Circuit Court of Appeals case, the Court unanimously held that an employer is permitted to sign Section 2 of Form I-9 based on "corporate knowledge." In the case in question, a recruiter viewed original documentation presented by new hires at a remote worksite in Texas, scanned copies to the corporate headquarters in Minnesota, where a representative completed Section 2, and proceeded to sign and date the document. We note this as a case of interest to many companies, but we caution employers that this decision DOES NOT comport with current U.S. Citizenship and Immigration Services ("USCIS") guidance which affirms that only the individual who has personally reviewed the original documents is permitted to sign Section 2 on Form I-9.

Current I-9 instructions (which were not as clear at the time of the employer action in this case that was before the Fifth Circuit) state "The person who examines the documents must be the same person who signs Section 2." Because the prior version of the instructions did not include this clear wording, the court held the employer did not have "Fair notice" of the agency's interpretation of the regulation.  Employers, particularly those with multiple worksites and remote employees, should continue to adhere to current USCIS guidance. It is important for employers to have a protocol in place for examining original documents with the Section 2 signatory present for I-9 compliance, even in the case of remote employees who work from home or employees who report to locations or company worksites separate from the company's principal place of business.

In other I-9 news, USCIS announced that the current Form I-9 will remain valid until January 21, 2017. Starting January 22, 2017, it will be mandatory for all employers to use the new version of the Form I-9 as they undergo proper employment procedures. In the meantime, employers can continue to use the current version which was last revised on March 3, 2013. We continue to await official publication of the new I-9 and expect to be able to bring you a link to the new form in next month's newsletter. 

Important changes to N-400 filing procedures

In an email to stakeholders, U.S. Citizenship and Immigration Services ("USCIS") recently announced updates to filing procedures for the Form N-400, Application for Naturalization. Per the stakeholder email and the updated version of the N-400 form instructions, applicants in the U.S. no longer need to submit two passport-style photos when filing, as their photos will be taken at their biometrics appointment. Also, regardless of age, all applicants, with the exception of those residing overseas, will be scheduled for biometrics to have their fingerprints, photos, and signature taken. Previously, applicants aged 75 years or older were exempt from the fingerprint requirement but since USCIS is now processing these forms electronically, senior citizens are now also required to appear at an Application Support Center for biometrics.  Applicants exempt from the biometric services fee continue to be exempt from the fee until further notice, but they will be requested to appear for biometrics appointments regardless of age. Applicants should always check the latest form instructions for changes to these procedures.

TPS Extended for Nepal

USCIS recently announced Temporary Protected Status ("TPS") for Nepal will be extended for an additional 18 months, effective December 25, 2016, through June 24, 2018. Current beneficiaries who wish to extend their TPS must re-register during the 60-day period that is open now through December 27, 2016. USCIS will automatically extend current TPS Nepal employment authorization documents (EADs) with a December 24, 2016 expiration date for six months. For more information please visit USCIS's TPS website for more details.

Visa Bulletin update - some good news, finally!

As predicted by many observers, the Department of State's Visa Bulletin for October 2016 shows forward movement on the "Final Action" chart for many employment-based preference categories.  All nationalities will be current for the EB-1 category, which is reserved for Individuals of Extraordinary Ability, Outstanding Professors/Researchers, and Multi-National Executives/Managers.  This category was backlogged in August and September for Chinese and Indian nationals. The EB-2 category, which is for professionals holding advanced degrees, Individuals of Exceptional Ability, and those applying in the National Interest Waiver category, will be current for all nationalities except for China and India. This category was backlogged in August and September for all countries, so although this forward movement does not help Chinese and Indian nationals it does benefit individuals from all other countries in this category.  The EB-3 category remains slightly retrogressed for all nations, with more severe backlogs for nationals of India, the Philippines and China. 

For the first time in Visa Bulletin history, USCIS announced that it will accept applications for Adjustment of Status (also commonly referred to as "green card" applications) from qualified foreign nationals based on the October Bulletin's "Dates for Filing" chart for EB-1, EB-2, and EB-3 categories and all Family Based Categories. This is a significant development and major departure from prior policy where USCIS would only recognize the "Final Action Dates" chart. For example, the Final Action chart lists 15 January 2007 as the current priority date for Indian nationals in the EB-2 category, while the Dates for Filing chart lists 22 April 2009.  To be sure, USCIS use of the Dates for Filing chart will not decrease the oppressively long wait times for green card approval.  This shift in policy should, however, provide individual applicants and their employers with many of the benefits that come with a pending adjustment application-employment authorization cards, advance parole, and the flexibility to change jobs in some circumstances.  

To view a copy of the October Visa Bulletin, visit the U.S. Department of State's website. If you have questions regarding priority dates and eligibility for filing adjustment of status applications, please contact the attorneys at Iandoli Desai & Cronin at info@iandoli.com.