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Guidance for E-Verify Employers on Completing and Maintaining Form I-983 Training Plan

Posted February 13, 2020Cheryl KilbornArticles

Meltzer Hellrung has prepared updated guidance for preparing Form I-983 for STEM OPT employees and for ensuring consistency and surviving an Immigration & Customs Enforcement (ICE) audit (compliance with the Training Plan). This document is available in your shared folder for current clients.

Current (or prospective) employees who graduated from a US degree program in Science, Technology, Engineering and Mathematics (STEM) fields may be eligible to apply for an additional 24 months of Occupational Practical Training (OPT) beyond the initial 12 months granted after graduation. Employers who wish to sponsor this additional period of work authorization must be E-Verify participants.

E-Verify participants are required to prepare a Training Plan (Form I-983) for each of its STEM OPT employees. The Training Plan includes details about the tasks and assignments the STEM OPT employee will carry out and how those tasks relate to the employee’s STEM degree. It also identifies learning objectives and a plan for achieving those objectives.

While completing the Training Plan is not too complicated, Meltzer Hellrung has prepared some tips for ensuring consistency and surviving an Immigration & Customs Enforcement (ICE) audit (compliance with the Training Plan). Some of our practical tips including:

-          Maintaining a process for reviewing and saving copies of all Training Plans to ensure compliance and appropriate updating (such as a single point of contact within the company or a managed program through your immigration counsel);

-          Ensuring the STEM OPT employee and his or her manager is aware of everything in the Training Plan (e.g. through a targeted annual training); and

-          Maintaining a list of all STEM OPT employees and updating the list as changes occur (e.g. change of status to H1B or termination ahead of the Training Program end date).

If you have questions about the Training Plan or would like more information about how we can help manage your STEM OPT program, please reach out to your designated Meltzer Hellrung attorney.

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New H-1B Cap Procedures Benefit Consulting and Staffing Companies

Posted February 4, 2020Matthew MeltzerH-1B

USCIS has put into effect new H-1B cap procedures for the fiscal year 2021 and its corresponding H-1B cap lottery occurring in March 2020. This year the USCIS will require employers to name each potential H-1B employee in an online lottery registration platform between March 1st and March 20th. USCIS will then conduct a lottery to determine which individuals can have complete H-1B petitions submitted to USCIS.

The registration does not require employers to name the offered position or work location. Rather, all that is required are the following seven facts:

  • Beneficiary’s legal name
  • Beneficiary’s gender 
  • Beneficiary’s date of birth
  • Qualification for Master's cap
  • Beneficiary’s country of birth
  • Beneficiary’s country of citizenship 
  • Beneficiary’s passport number

The results of the lottery will be released by March 31st, but companies will have 90 days to submit the complete petition to the USCIS. This means that petitions do not need to be submitted until the end of June.

This presents a tremendous opportunity for staffing and consulting companies. Rather than searching for client contracts and work opportunities that will take effect in October, but need work orders signed in April, employers will have three additional months to search for client opportunities. In addition, employers will have the benefit of knowing that the person has already been selected in the lottery when marketing their services to prospective clients.

Companies in the consulting and staffing industries should consider submitting as many prospective employees in the lottery as they have available, now that client contracts do not need to be secured just to submit an individual in the lottery. With the benefit of three additional months to secure placement opportunities for employees, the H-1B cap is perilous for consulting companies, and instead presents greater opportunities for success.

For further questions about strategies for this year's H-1B cap, please reach out to your designated Meltzer Hellrung attorney.

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Travel Restrictions for 2020

Posted February 3, 2020Stephanie WedelArticles

On January 31, 2020, President Trump announced the addition of 6 countries to the list for the travel ban – Burma, Eritrea, Kyrgyzstan, Nigeria, Sudan, and Tanzania.  These additional countries will not have a blanket ban on travel to the United States, but rather specific visa types will be restricted.

Burma, Eritrea, Kyrgyzstan, and Nigeria will have restrictions on immigrant visas. Immigrant visas allow foreign nationals to enter the U.S. as legal permanent residents, rather than temporary visitors.

Sudan and Tanzania will have restrictions on Diversity Visas.

These restrictions will take effect on February 21st.  These new restrictions affect only immigrant visa processing for those who have not yet received an immigrant visa.  Intending immigrants who have a valid visa, but have not yet entered the U.S. will still be permitted to do so.  Legal permanent residents from these countries can continue to remain in the U.S. while they continue to meet the terms of their residency.

Nonimmigrant visas will still be issued for these countries.

If you have any questions regarding the impact of the travel ban, please reach out to your designated Meltzer Hellrung attorney.

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New Edition of Form I-9

Posted February 1, 2020Stephanie WedelArticles

Starting January 31, 2020, employers may use either the 07/17/17 N or the 10/21/2019 version of the Form I-9 until April 30, 2020.  Beginning May 1, 2020, only the 10/21/2019 edition will be accepted. The edition date is located at the bottom left-hand corner of the form, as well as in the instructions.

Form I-9 is used to verify the identity and employment authorization of individuals in the United States.  All U.S. employers are required to complete the Form I-9 for all employees, including citizens and non-citizens.

If you have any questions regarding completing I-9s and I-9 compliance, please reach out to your designated Meltzer Hellrung attorney.

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Public Charge Rule to Take Effect Immediately

Posted February 1, 2020Stephanie WedelArticles

On January 27, 2020, the U.S. Supreme Court voted 5-4 to allow the Department of Homeland Security’s public charge regulation to go into effect immediately while the appeals process is ongoing.  This decision will affect all states, except Illinois, who currently is under a separate injunction not at issue before the Supreme Court.  

The updated public charge regulation expands the groups of applicants that are subject to the public charge review to include not only adjustment of status applicants, but also those filing for changes and extensions of nonimmigrant statuses, such as E-3, H-1B, L-1, TN, etc.   

The new regulation also extends officers’ discretion in adjustment of status applications.  Officers will now be permitted to assess whether an adjustment of applicant is likely to become a public charge in the future.  

Public Benefits Included in the Public Charge Final Rule  

  • Cash benefits for income maintenance, including Supplemental Security Income (SSI), and Temporary Assistance to Needy Families (TANF)
  • Supplemental Nutritional Assistance Program (SNAP)
  • Most forms of Medicaid (exceptions below)
  • Certain housing programs, including Section-8 and public housing  

Public Benefits Excluded from the Public Charge Final Rule  

  • Federal or state retirement benefits, including Social Security retirement benefits
  • Social Security disability benefits
  • Unemployment benefits, and other benefits that an individual earns through payroll tax and other tax deductions
  • Medicare benefits
  • Medicaid benefits received by applicants under 21 years of age and pregnant women during pregnancy and during the 60-day period after pregnancy
  • Medicaid Part D Low-Income subsidy
  • Medicaid for school-based services (including services provided under the Individuals with Disabilities Education Act)
  • Medicaid benefits for emergency medical services
  • Benefits received by military service members and their spouses and children Housing programs that provide mortgage assistance or credits. Having a mortgage is not indicative of becoming a public charge.  

Effect of Rule on Nonimmigrants  

Nonimmigrants (individuals who are in the U.S. in a temporary status including H-1B, L-1, E-3, TN, etc.) who have utilized the public benefits included in the Public Charge Final Rule after their admission to the United States may be denied a change of status or extension of status. If a nonimmigrant, including an employee in H-1B and L-1 status, has received one or more of the included public benefits for more than 12 months in the aggregate within 36 month period since obtaining current status, the applications can be denied.  However, nonimmigrant applications will not be reviewed for the likelihood of becoming a public charge in the future.  

Effect of Rule on Adjustment of Status Applicants  

Adjustment of status applicants will need to demonstrate that they have not utilized the public programs for more than 12 months in the aggregate in the last 36 months, but the adjudicating officer will also be looking to determine if the applicant is likely to become a public charge in the future.  Adjudicating officers will be looking at a totality of the circumstances to determine future likelihood of becoming a public charge, including age, health, assets, resources, financial status, education and skills, among others. If an adjustment of status applicant is found to be inadmissible under the public charge final rule, they may be able to post a bond of at least $8,100 to overcome this finding. 

If you have received any public benefit and are applying for an extension or change of your nonimmigrant status, or will be applying for adjustment of status, please reach out to your designated Meltzer Hellrung attorney.

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