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Preparing For Increased Immigration Enforcement Activities

Posted June 19, 2017Matthew MeltzerArticles

Various immigration-related agencies, including USCIS and the Department of Labor seem to be preparing for increased enforcement actions. The USCIS has already re-allocated resources in its site visit program. Below are steps to take to prepare for ongoing and future enforcement actions.

USCIS  Site Visits

The USCIS Fraud Detection and National Security (FDNS) unit conducts unannounced inspections of the worksites of employees on temporary work visas. The purpose of site inspections is to verify the information that employers provide in their immigration petitions and to make sure that sponsored workers are complying with the terms of their admission. FDNS primarily visits worksites of H-1B and L-1A employees. Recently the USCIS shifted resources to focus on worksites where an employee is working at a third-party client site. FDNS completed over 10,000 site visits in 2016.

What to do during a site visit

  1. Ask to see the ID of the officer and make a photocopy for your records
  2. Have a company representative follow the FDNS officer and sit in on all conversations. The company representative take notes on everything that occurs as FDNS statements are sometimes incorrect.
  3. During a visit or in an email request,theFDNS officer usually works from a standard list of questions used for all employers. The officer may ask about:
    1. The employer’s business, annual revenue and the number of employees at a particular location, in the United States or worldwide;
    2. The organization’s immigration program in general, including the number of foreign nationals sponsored for nonimmigrant programs and employment-based green card;
    3. The foreign worker’s job title, responsibilities, salary and work schedule, as well as those of other employees in similar positions;
    4. The foreign national’s education, previous employment, residence, and family members in the United States.
  4. The officer may also ask for documents pertaining to the company and the foreign national, including:
    1. The foreign national’s paystubs and W-2 forms;
    2. Paystubs for employees supervised by the foreign national, if any;
    3. Organizational chart for the U.S. organization;
    4. Organizational chart for the related foreign organization (L-1 site visits);
    5. Company wage and tax documentation;
    6. Contracts, statements of work and/or agreements between the petitioner and an end-client, if the foreign national is placed offsite.
  5. If you do not know the answer to a question ask for permission to answer at a later time in writing. If you receive an inquiry over the phone or in writing speak with your attorney first before responding.

If the work location of an employee will change or if a substantial change will be made to an employee’s position please speak to your Meltzer Hellrung attorney. The best way to pass an inspection is to be proactive in filing the appropriate documentation with the USCIS to accurately reflect changes in employment.

I-9 Audits

At any time Immigrations and Customs Enforcement (ICE) can visit a company unannounced and ask to inspect the company’s I-9 files. The company is generally given three days to respond. Given the fast turnaround time on these requests it is a best practice for employers to perform regular audits and maintenance of their I-9 files. For further guidance on auditing your I-9 files please speak to your Meltzer Hellrung attorney.

Public Access Files

The Department of Labor has indicated that it will be developing new regulations regarding its enforcement of immigration procedures under its jurisdiction. While the DOL does not currently have resources for many investigations it may gain those resources in future Federal budgets. With that in mind, it is best to audit public access files in relation to H-1B petitions and ensure ongoing compliance with H-1B files.

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New Visa Vetting Includes Request for Social Media Handles and Email Addresses

Posted June 5, 2017Kristen KellarArticles

Consular officers may now ask for additional information from visa applicants including social media handles, email addresses and phone numbers used during the last five years in order to further vet applicants. On May 23, 2017, the Office of Management and Budget granted emergency approval allowing the information to be collected from individuals who apply for U.S. visas until November 30, 2017. 

Under the new measure certain applicant may be asked for the following additional information:

  • Travel history during the last fifteen years, including source of funding for travel;
  • Address history during the last fifteen years;
  • Employment history during the last fifteen years;
  • All passport numbers and country of issuance held by the applicant;
  • Names and dates of birth of all siblings;
  • Name and dates of birth of all children;
  • Names and dates of birth of all current and former spouses, or civil or domestic partners;
  • Social media handles used during the last five years; and
  • Phone numbers and email addresses used during the last five years.

While some of this information is already collected on the visa application, such as employment history for the last five years, the change represents an increase in the types of information that officers may collect and the time period in which they can collect it. This new measure only applies to individuals applying for a visa through a U.S. Consulate.

If you are requested to provide this information by an officer on a Supplemental Questions for Visa Applicants form and have questions or concerns about it, don’t hesitate to contact your attorney.

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H-1B Cap Lottery Alternatives

Posted May 4, 2017Karen GillespieArticles, H-1B

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The USCIS announced on Wednesday May 3, 2017, that they had completed data entry for all H-1B Cap Petitions accepted in the lottery. This means that the final receipt notices will trickle out over the next few days. H-1B petitions that were not accepted in the lottery will be returned along with the filing checks over the next few weeks. For companies whose petitions were rejected, the next question is whether any alternative methods of work authorization for their employees are available. Below, we briefly outline some of the potential visa alternatives.

  •  E-1/E-2 Treaty Trader & Investor Visas

The E-1/E-2 Visa can be utilized not only for the primary investor of a US business but also for managerial, executive, and specialized/essential employees with the same nationality as the majority ownership of the company. For companies with foreign ownership or for entrepreneurs, the E-1/E-2 visa remains a viable option. One of the restrictions to keep in mind for the E-1/E-2 visa is that it only applies to certain countries

  • E-3 Certain Specialty Occupation Professionals from Australia

The E-3 visa has identical criteria as the H-1B visa which makes it an ideal alternative if your employee is an Australian citizen. An issue to keep in mind, however, is that the E-3 visa is not dual-intent and moving from the E-3 to a green card requires specific timing considerations.

  • L-1B Intracompany Transferee

The L visa is a viable alternative for companies with foreign offices seeking to transfer employees form a foreign office to the U.S. For an employee to qualify for an L-1B visa they must meet the following criteria: (1) at least 12 consecutive months of employment with a related foreign entity within the last 3 years; (2) have spent at least 12 months with the related foreign entity in a “specialized knowledge” position; and (3) are being sponsored for a “specialized knowledge” position inside the U.S. The definition of specialized knowledge is a gray area in immigration law. However, in recent the USCIS has taken a stricter view of what qualifies as specialized knowledge within a company and generally requires that the employee have knowledge/experience that is beyond the average employee within the company/industry.

  • H-1B1 Free Trade Agreement Professional from Chile or Singapore

As with the E-3, the H-1B1 has the same criteria as the H-1B but applies only to citizens of Chile and Singapore. Employees that qualify can apply directly at a US Consulate or Embassy abroad or can apply directly to the USCIS. The H-1B1 is also not dual-intent so certain considerations must be made if filing for permanent residency. 

  • NAFTA (North American Free Trade Agreement) Professionals

The TN visa is for certain professional occupations and is available to citizens of Mexico and Canada and is defined under NAFTA. A benefit of the TN visa is that employees can apply directly at the US Consulate in Mexico (for Mexican citizens) or directly at the US border (for Canadian citizens). A difficulty of the TN visa, however, is that only certain professions are included in the TN NAFTA list. The list of occupations can be found here.

  • O-1 Individuals with Extraordinary Ability or Achievement

The O-1 visa may be an option if your employee possesses “extraordinary” abilities in their field. An employee can qualify by evidencing a major, internationally recognized award (i.e. Nobel Prize, Academy Award, Olympic Medal), or, more commonly, by proving at least three of the ten criteria listed by the USCIS. 

  • F-1 Student Visa with Optional Practical Training or Curricular Practical Training

If your employee is currently on CPT or OPT training, they can simply continue with their current work authorization and, if possible, extend it. For employees nearing the completion of their F-1 work authorization, they can seek a new academic program and enroll to continue their F-1 status. Many schools require that the candidate complete at least one year of studies before issuing any new work authorization so a gap in work authorization may occur in such cases.

  • J-1 Visas

J-1 visas, especially those for "Interns" and "Trainees," can be an option for some companies. The viability of a J-1 visa is dependent on several factors including the nature of the position, the education and experience of the employee, and the ability of the company to provide a training or internship track within their company. There are also country and work authorization restrictions that may affect a candidate's J-1 eligibility.

  • Entrepreneur Parole for Equity Founders

Beginning in July 2017, a new program for entrepreneurs will begin. For companies formed less than 5 years before the date of filing, equity owners with at least a 10% stake will have the ability to apply for parole and work authorization to work for their company. 

  • PERM/Green Card Application for STEM OPT Employees.

Finally, employees in F-1 status may benefit from beginning the green card process with a PERM application and an adjustment of status. This method of work authorization would not be applicable for employees born in countries with long waiting period for a green card, namely China and India. In order to avoid any gap in work authorization, the employee would need adequate time remaining on their OPT/STEM EAD authorization card. 

 

We encourage employers seeking another method of work authorization to reach out to see if any of the options above would be plausible for their company.

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H-1B Cap Lottery Filing Window Closes

Posted April 7, 2017Karen GillespieH-1B
As expected, the USCIS has announced that it has reached the FY 2018 H-1B Cap. The filing window was open for five business days, from April 3 through April 7. The USCIS has not yet announced just how many petitions were received this year but for reference, the USCIS received the following numbers in the last few years: FY 2017: 236,000 FY 2016: 233,000 FY 2015: 172,500 FY 2014: 124,000 For those who submitted petitions there is now nothing to do but wait for the USCIS to announce the lottery has been completed and then anxiously await a receipt notice in the mail.

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New EAD 180-Day Extensions and Updates to EAD Processing Times

Posted February 28, 2017Kristen KellarArticles

Individuals renewing an EAD based on a pending I-485 case may now be granted a 180-day extension on work authorization. The Department of Homeland Security has begun granting 180-day extensions for certain individuals with pending EAD renewal applications. In addition to those with a pending I-485, it affects those with Temporary Protected Status, refugees, asylees, and others.

Due to this change, DHS is now allowing EAD renewal applications to be filed as early as 180 days in advance of the applicant’s current EAD expiration date. Additionally, an automatic 180-day extension may be provided to applicants who have timely filed their EAD renewal application. The criteria that must be met for the 180-day extension are:

  • The renewal application be for the same employment authorization category as the prior EAD, or for individuals with TPS with an EAD granted under either A12 or C19 category;
  • The category is eligible for a 180-day extension; and
  • The application is considered to be timely filed and still pending.

Processing times for will be set based on workload where previously there was a regulatory provision requiring adjudication within 90 days. If an EAD application based on the above criteria is pending for more than 165 days, applicants or their legal representative may contact USCIS to inquire about the case status.

This change by DHS allows for a decreased risk that applicants will face a gap in employment and provide more certainty to employers. It also provided more consistency across EAD categories, as this benefit was previously only available to certain TPS beneficiaries and some F-1 students.

This new rule applies to EAD renewal applications pending as of January 17, 2017, and those filed on or after that date. USCIS is reissuing receipt notices for cases currently pending EAD applications as some receipts did not specify the EAD eligibility category.

For a full list of eligible categories contact your immigration attorney or visit USCIS’ website.

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