Immigration Law Insights

USCIS recently implemented a new temporary rule that reinstates the opportunity for a 540-day Automatic Employment Authorization Document (EAD) extension for certain foreign nationals seeking to renew their EAD. USCIS had implemented a similar automatic EAD extension in May 2022 but reverted back to a 180-day automatic extension period on October 26, 2023. The new rule took effect on April 8, 2024. 

USCIS announced the temporary rule to prevent gaps in employment authorization and documentation during the renewal process. The increased extension is welcome news for many foreign ...

Cost increases due to inflation have become a norm over the last two years, and immigration fees are no exception. USCIS announced that effective April 1, 2024, fees for certain immigration benefits will be adjusted for the first time since 2016. The agency is 96% funded through filing fees, and USCIS anticipates the increases will assist with operational costs to avoid the accumulation of future backlogs in case processing.

Of particular note is the increase in filing fees for nonimmigrant work visa petitions. I-129 filing fees for a typical H-1B petition will increase from $460.00 ...

Employers wishing to sponsor a candidate for an H-1B visa in Fiscal Year (FY) 2025 are approaching an important time of year. United States Citizenship and Immigration Services (USCIS) recently announced the H-1B cap lottery registration period will open on March 6, 2024, at noon Eastern Standard Time and close on March 22, 2024, at noon Eastern Standard Time. USCIS also announced several changes that will implemented in this year’s registration process.

H-1B cap lottery registration was introduced in FY 2021 and is an annual electronic process through which USCIS receives ...

United States Citizenship and Immigration Services (USCIS) recently announced all available visas in the Fiscal Year 2024 H-1B lottery program have been utilized. Each year, 65,000 H-1B visas are available for positions requiring at least a U.S. Bachelor’s degree. An additional 20,000 visas are available to foreign nationals who have earned at least a U.S. Master’s degree and are sponsored for an H-1B eligible position. Registrants were selected at random for an opportunity to fill one of the H-1B cap positions. The H-1B program is regularly used by U.S. employers to ...

Foreign nationals often coordinate travel abroad to coincide with the holidays. December can be one of the busiest times of year for visa processing at U.S. Consulates and Embassies abroad. Here are a few helpful considerations to make foreign national holiday travel a little less stressful. 

Do I have a valid passport?

While seemingly obvious, an immediately expiring passport can cause a multitude of issues for foreign national travelers. Initially, U.S. Consulates and Embassies may require a passport to have a specific amount of validity in order to issue a visa. Additionally ...

The Department of State (DOS) appears primed to renew the practice of domestic visa renewal for at least some foreign nationals in 2024. DOS sent a Federal Register notice titled Pilot Program to Resume Renewal of H-1B Nonimmigrant Visas in the United States for Certain Qualified Noncitizens to the White House for review last month. While the full scope of the program will not be known until publication, the notice is expected to outline criteria for participation in a pilot program that would allow some H-1B workers to renew their visas without exiting the United States. Employers can ...

United States Citizenship and Immigration Services (USCIS) has instituted a revised Form I-9 that is mandatory for all employers, starting November 1, 2023.

USCIS announced the new version in August, in part to aid with the implementation of the new alternative I-9 remote document verification procedures. More information on the new remote document verification procedures is available here. Moving forward, use of the prior I-9 version, dated October 21, 2019, may subject an employer to penalties. Employers that utilize an electronic I-9 system should contact their provider to ...

In an effort to address the ongoing Employment Authorization Document (more commonly known as an “EAD”) processing backlog, USCIS recently announced it would lengthen the maximum validity period for certain EAD categories to five years. The change is welcome news to many employers and foreign nationals who may have experienced gaps in work authorization due to processing delays over the last several years.

One of the EAD categories affected by the change is pending Adjustment of Status Application beneficiaries. Adjustment of Status is the final step in the Green Card process ...

On May 4, 2022, the Department of Homeland Security (“DHS”) issued a rule temporarily increasing the Employment Authorization Document (“EAD”) automatic extension period for certain renewal applicants. Under the temporary rule, the automatic extension was increased from 180 days to up to 540 days to address historically long processing times. 

USCIS recently announced plans to revert back to 180-day automatic extensions, starting October 26, 2023. The following criteria must be satisfied to qualify for the automatic extension:

• The applicant must be renewing their ...

Last month, DHS announced E-Verify employers would be eligible to utilize an alternative remote document verification procedure when completing Section 2 of Form I-9, starting August 1, 2023. Only a few days later, DHS published a Federal Register notice requesting comments on a pilot program that would allow employers not enrolled in E-Verify to utilize remote examination procedures as well.

The proposed new rule would largely track the new rule for E-Verify employers, details of which are available here: DHS Announces Remote I-9 Document Procedure for E-Verify Employers | Burr ...

In implementing its first new COVID-19 travel restriction in months, the U.S. Centers for Disease Control and Prevention (CDC) recently issued guidance requiring all persons traveling from mainland China, Hong Kong, and Macau, to provide a negative COVID-19 test or documentation of COVID-19 recovery within two days of departing for the United States. The policy went into effect January 5, 2023, and applies to airline passengers two years of age or older. The requirement also applies to passengers traveling through Incheon International Airport, Toronto Pearson International ...

On February 14, 2023, U.S. Citizenship and Immigration Services (USCIS) made a small change in the Child Status Protection Act (CSPA) that will have a significant impact on the lives of many immigrant families.

To understand how this works, take the example of an employer sponsoring a foreign national for lawful permanent resident status - the foreign national’s spouse and children, under the age of 21, are also eligible to participate in the process to receive residency. However, the application process can take years, and in many cases, children have turned 21 during the process ...

USCIS recently announced the annual registration period for the FY2024 H-1B cap will open at noon (ET) on March 1, 2023, and remain open until noon (ET) on March 17, 2023. Registration is an annual electronic process through which USCIS receives registrations from employers seeking to sponsor a foreign national for an H-1B visa. USCIS has historically utilized the registrations to conduct a random H-1B lottery because more visas are requested each year than are available. Registrants are selected at random for an opportunity to fill one of the H-1B cap positions.

The number of H-1B ...

It is no secret that certain sectors of U.S. employers have engaged in significant layoffs over the last six months. Meta—the parent company of Facebook, Instagram, and WhatsApp—laid off more than 11,000 employees in November alone. Meta and other tech companies regularly use the H-1B visa program to sponsor foreign national workers. In fact, Meta is listed as an H-1B dependent company, meaning at least 15% of its workforce is employed by virtue of nonimmigrant work visas. Many economic experts expect the layoff trend to continue in 2023, but demand for workers remains generally ...

Employers wishing to sponsor a candidate for an H-1B visa in Fiscal Year 2024 are approaching an important time of year. United States Citizenship and Immigration Services (USCIS) is expected to announce the H-1B cap registration period for FY2024 in the coming weeks. Last year, the registration period opened on March 1, 2022, and closed on March 18, 2022. USCIS will likely announce a similar registration period this March.

H-1B Registration is an annual electronic process through which USCIS receives registrations from employers for the H-1B lottery. USCIS has historically ...

The Department of Homeland Security (DHS) recently issued a new “public charge” final rule that will go into effect December 23, 2022. The new rule will apply to all permanent residency (Green Card) applications filed on or after the effective date. The new rule is a marked change from the strict President Trump-era public charge rule that spent several years in litigation and was ultimately withdrawn by the Biden administration.

Pursuant to the Immigration and Nationality Act, any noncitizen who, in the opinion of DHS, is likely at any time to become a “public charge” is ...

U.S. Citizenship and Immigration Services (USCIS) recently announced an extension to its waiver of the civil surgeon signature validity requirement for Form I-693. Form I-693 is the Report of Medical Examination and Vaccination Record which must be submitted with an Application for Adjustment of Status to Lawful Permanent Residency. The report is completed by a civil surgeon to confirm a foreign national is not inadmissible (and therefore ineligible to receive a Green Card) based on health and/or vaccination grounds.

The immigration regulations generally require Form I-693 to ...

Since its introduction in 2001, the Premium Processing service offered by the U.S. Citizenship and Immigration Services (“USCIS”) has seen notable changes. Premium Processing was originally introduced as an option for certain immigration benefit applicants and petitioners to request expedited 15-day processing for an additional fee. The fee to request Premium Processing was originally set at $1,000 but has increased several times since the program’s inception, and was most recently elevated to $2,500.

On March 30, 2022, USCIS published a final rule outlining numerous ...

U.S. Citizenship and Immigration Services (“USCIS”) announced a Temporary Final Rule that will increase the 180-day automatic extension period for some Employment Authorization Documents (“EADs”) to 540 days beyond the EAD’s expiration date. The rule, which was published as a response to massive USCIS delays in processing EAD renewal applications, became effective immediately on May 4, 2022, and will remain in effect until October 27, 2023.

In order to benefit from the new rule, an applicant must have timely filed an EAD renewal application and fall within an eligible ...

On January 22, 2022, the Department of Homeland Security (DHS) began requiring all non-U.S. individuals entering the United States by land or ferry across the U.S./Mexico or U.S./Canada borders to be fully vaccinated against COVID-19. The new guidance applies to those non-U.S. individuals who are traveling for both essential and non-essential reasons but will not apply to U.S. citizens, Lawful Permanent Residents, or U.S. nationals.

Any non-U.S. individual entering the United States through land point of entries or ferry must provide proof of a CDC-approved COVID-19 ...

Last week, USCIS announced the H-1B visa cap registration deadlines for FY2023. Registration is mandatory for employers wishing to sponsor a candidate for an H-1B visa in the FY2023 H-1B cap cycle. Registration is an annual electronic process through which USCIS receives registrations from employers for the H-1B lottery. USCIS has historically conducted a random H-1B lottery because more visas are requested each year than are available. Registrants are selected at random for an opportunity to fill one of the H-1B cap positions.

The H-1B cap registration period for Fiscal Year 2023 ...

Effective December 31, 2021, the United States began permitting noncitizen arrivals from Botswana, Eswatini, Lesotho, Malawi, Mozambique, Namibia, South Africa, and Zimbabwe. A Presidential Proclamation went into effect on November 29, 2021, suspending entry into the United States for individuals who were present in the aforementioned Southern Africa countries within a 14-day window before their planned date of entry. The Presidential Proclamation was a result of the World Health Organization’s report identifying an area of increased presence of COVID-19 variants in ...

Employment Authorization Document (EAD) processing times have been severely delayed in recent years, rendering certain dependent nonimmigrants temporarily ineligible to work and causing gaps in some U.S. employers’ workforces. An EAD can take over 12 months for adjudication under current processing times. Recently, USICS issued guidance expanding its automatic EAD extension rules to apply to additional foreign nationals. The agency further confirmed L-2 and E-2 dependent spouses are considered eligible to work “incident to status,” meaning they no longer require ...

On October 25, 2021, President Biden announced plans to revoke the current country-by-country travel restrictions to the United States which have been in place since January 2020. The order outlines new air travel policies for foreign travelers seeking to enter the United States as nonimmigrants, which relies primarily on COVID-19 vaccination status and effectively revokes Presidential Proclamations 9984, 9992, 10143, and 10199, all of which restricted entry to the United States from Brazil, China, South Africa, the United Kingdom, the Schengen countries in Europe, Ireland ...

The White House recently announced that travel restrictions for all international travelers entering the United States by air will change in early November 2021.  Since 2020, several Presidential Proclamations have instituted regional COVID-19 travel bans by restricting travel to the United States for international travelers physically present in China, Iran, the Schengen Area, the United Kingdom, Ireland, Brazil, South Africa, and India during the fourteen-day period prior to U.S. entry with limited exceptions. With holiday travel fast approaching, the White House will ...

Beginning October 1, 2021, United States Citizenship and Immigration Services (“USCIS”) will require COVID-19 vaccinations for all applicants applying for lawful permanent residence (i.e. green card) with some exceptions. Specifically, all green card applicants who receive their medical examination from a designated civil surgeon/panel physician (“Physician”) on or after October 1, 2021 must complete the COVID-19 vaccine series and provide documentation of vaccination. This change will impact applicants who have their Physician complete Form I-693 ...

On October 7, 2020, the Department of Labor (“DOL”) announced an Interim Final Rule titled, “Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States” would go into effect on October 8, 2020. The rule would have amended the regulatory scheme used to calculate prevailing wages for foreign workers being sponsored for an employment-based Green Card through the PERM process as well as the H-1B, H-1B1, and E-3 nonimmigrant visa programs. In effect, the rule would have resulted in significant increases to the mandatory ...

While the United States has seen a drastic drop in COVID-19 cases as vaccinations become more prevalent, other countries continue to see significant infection rates.  Travel restrictions aimed at curbing the spread of COVID-19 remain in place.  Currently, foreign nationals who have been present in China, Iran, India, Brazil, South Africa, the Schengen region, the United Kingdom, or Ireland within fourteen days of attempting entry into the United States will generally be refused.  In order to avoid disruptions, businesses employing foreign nationals on H, L, O, and other temporary ...

Last month, President Joe Biden (“President Biden”) wrapped up his first 100 days as President of the United States – focusing on a myriad of issues from the Coronavirus pandemic (“COVID-19”) to America’s immigration system. Inasmuch as immigration affairs remained at the forefront under the previous administration, America’s immigration system continues to be a pressing topic for the Biden administration. President Biden has taken various actions and positions on key immigration issues, many of which could significantly impact businesses that regularly ...

On March 30, 2021, USCIS announced completion of the initial FY2022 H-1B Cap-Subject lottery selection process.  Beginning April 1st, those selected were eligible to start filing.  But what if your employee was not selected? Even without an H-1B selection, there are numerous options still available so businesses can continue to employ valuable foreign national workers.

Optional Practical Training (“OPT”)

Foreign national college students seeking to gain practical experience in their field of study have the opportunity to apply for twelve months of work authorization in the ...

On June 22, 2020, the Trump Administration announced Presidential Proclamation 10052 (“PP 10052”), which suspended the issuance of many H, J, and L visas at U.S. Embassies and Consulates. The ban was originally set to expire on December 31, 2020, but the Trump Administration extended the effective date through March 31, 2021. PP 10052 was implemented as a measure to protect workers in the United States amid high unemployment rates caused by the COVID-19 pandemic. As a result, many foreign nationals were prevented from applying for a visa to enter and work in the United States ...

On January 25, 2021, Presidential Proclamation (PP) 10143 extended PP 9993, which had suspended certain travel from those physically present in the Schengen Area and other countries since March 2020.  PP 10143 restricts entry into the U.S. for non-U.S. citizens physically present in certain countries (Schengen Area, United Kingdom and Ireland, Brazil and South Africa) for the 14-day period prior to U.S. entry.  The PP initially included a limited number of national interest exceptions (NIE) to the travel ban for certain technical experts and specialists, senior-level managers ...

Since its 2012 inception, the Deferred Action for Childhood Arrivals ("DACA") program has survived various lawsuits challenging its constitutionality as well as an attempt by the Department of Homeland Security ("DHS") to rescind the program. Despite its checkered history, DACA looks poised to continue into the future after the Biden administration recently issued an Executive Order directing the Attorney General to "take all actions he deems appropriate, consistent with applicable law, to preserve and fortify DACA."

DACA provides protection from removal as well as work ...

From regulations designed to significantly alter the H-1B program to travel and visa bans, the immigration landscape has changed at a fast and furious pace over the last four years. Many legal practitioners expect more of the same during the Biden administration. After the November elections, comprehensive immigration reform and a path to citizenship for DACA beneficiaries are suddenly back on the political agenda. Here are the top five immigration expectations employers should have over the next four years.

1. H-4 EAD is Here to Stay: Despite being in a constant state of flux over the ...

After federal courts blocked their first attempt in December, the U.S. Department of Labor ("DOL") recently published a new final rule seeking to again increase the minimum wage paid to foreign workers when sponsored for an H-1B visa or green card. The DOL issued the rule on January 14, 2021 with an effective date of March 15, 2021. The DOL announced the new rule just six (6) days before the Biden administration took office. The increased wages will go into effect in a staggered manner between the effective date of the rule on July 1, 2024. The new rule could significantly impact the strategy ...

Earlier this year, President Trump issued a Presidential Proclamation restricting foreign nationals from entering the United States on certain temporary work visas through at least December 31, 2020 (“the Proclamation”).  On October 1, 2020, a California District Court issued an order barring the government from enforcing the visa ban, but only against several large corporate associations and their members.  The associations include the National Association of Manufacturers, the Chamber of Commerce of the United States of America, Technet, Intrax, Inc., and the National ...

COVID-19 has affected nearly all areas of immigration, including the speed at which the United States Citizenship and Immigration Services (“USCIS”) is able to produce the Employment Authorization Document (“EAD card”).  Thousands of foreign nationals must typically have the EAD card “in hand” to begin or continue lawful employment. In a settlement reached last month (Subramanya v. USCIS, 7/22/20), up to 75,000 foreign employees may find relief from the delayed card production.

USCIS has historically printed and mailed EADs within 48 hours of approval; however, in ...

The Student Exchange Visitor Program (SEVP) announced July 6, 2020 that the flexibility granted to nonimmigrant students in F-1 or M-1 status to continue their studies online due to the COVID-19 crisis will be modified for the fall 2020 semester.  Federal regulations normally allow students to take one class or three credit hours online per full course load with limited exceptions.  When schools had to close in the spring and/or summer terms to comply with state or local regulations, SEVP provided guidance in March on how to proceed with online or alternative learning procedures for ...

The White House recently issued a Presidential Proclamation restricting foreign nationals from entering the United States on certain temporary work visas.  The original Proclamation provided the suspension and limitation on entry would apply to foreign nationals attempting to enter the United States on (1) an H-1B or H-2B visa; (2) a J-1 visa if participating in an intern, trainee, teacher, camp counselor, au pair, or summer work travel program; and (3) and L-1 visa (both managerial/executive and specialized knowledge).  On June 29, 2020, the administration issued a second ...

On June 22, 2020, President Trump issued a Presidential Proclamation restricting foreign nationals from entering the United States on certain temporary work visas.  Just two months earlier, on April 22, 2020, the administration temporarily suspended the entry of most foreign nationals seeking to enter the United States as Lawful Permanent Residents (also known as Green Card holders).  The articulated reason for both directives is to protect U.S. workers from job competition during the economic recovery related to the COVID-19 pandemic.

Who is Restricted?

The Executive Order ...

On May 29, 2020, U.S. Citizenship and Immigration Services (“USCIS”) announced the phased resumption of Premium Processing.  Premium Processing allows employers to obtain expedited decisions on certain immigration filings by paying an additional $1,440.00 fee.  Because USCIS can take months to process petitions, Premium Processing is heavily utilized by many employers to avoid delays in employing specialized foreign national workers.  USCIS suspended Premium Processing in March 2020 due to the COVID-19 pandemic.

Effective June 1, 2020, USCIS began accepting Premium ...

On May 24, 2020, President Trump issued a proclamation restricting travel from Brazil, which now has the second-highest number of confirmed coronavirus cases after the United States.  The restrictions mirror those already in effect for China, Iran, UK, Ireland, and Europe’s Schengen Area (which includes 26 European countries).

Specifically, the order restricts and suspends the entry into the United States for individuals “who were physically present within the Federative Republic of Brazil during the 14-day period preceding their entry or attempted entry into the United ...

The COVID-19 crisis has strained the field of medicine in the United States more than any other time in the last 100 years.  In an effort to provide some relief for nurses and doctors, legislators recently proposed The Healthcare Workforce Resilience Act on April 30, 2020.  The Act seeks to recapture up to 40,000 (15,000 for doctors and 25,000 nurses) unused green card numbers from the prior fiscal year and make them available to nurses (25,000) and doctors (15,000). Families of the medical workers would be included and would not count against the 40,000 allotment.  Importantly, green ...

On April 22, 2020, President Trump signed an Executive Order restricting immigration to the United States with the stated intent of protecting U.S. citizens from job competition and preserving medical resources as the economy aims to reopen following the COVID-19 crisis.  The President initially indicated an intent to suspend all immigration, but the final Executive Order was much more limited.

Effective April 23, the order temporarily suspends the entry of those seeking to enter the United States as new Lawful Permanent Residents (more commonly known as Green Card holders) for 60 ...

There are many COVID-19 challenges facing employers in the current environment, including how to properly handle H-1B employees working from home or another remote work location.  There are special notice and posting obligations associated with H-1B sponsorship, and an employer must comply with these obligations when the employee’s work location changes and/or expands.

When an H-1B employee's remote work location falls within a normal commuting distance from their primary work location, a new Labor Condition Application (LCA) and amended H-1B petition are not generally ...

Effective March 20, 2020, USCIS announced it has suspended all I-129 and I-140 Premium Processing requests. Petitions not receipted in by March 20th will have the I-907 Premium Processing application and $1,440.00 fee returned, although properly submitted I-129 and I-140 petitions will continue to be processed.  This announcement follows the suspension of Premium Processing on all FY 2021 Cap-Subject H-1B petitions just days earlier.  In recent years, it is not uncommon to see several categories, including H-1B Cap-Subject petitions, H-1B extensions, and other non-immigrant ...

It is no secret that teacher shortages are proving to be a significant challenge for school districts across the country.  The Learning Policy Institute estimates the country-wide shortage was at as many as 110,000 teachers by the end of the 2017-2018 school year.   In its annual report on the number of teachers leaving the classroom in South Carolina, the South Carolina Center for Educator Recruitment Retention and Advancement (“CERRA”) confirmed more than 6,500 teachers left their positions during the 2018-2019 school year.  While the number of teachers leaving the profession ...

It’s official, almost. Implementation of the new H-1B filing process for 2020 is fast approaching and more details have been released.  DHS published a notice in the Federal Register on January 9, 2020, which officially announced the process.

Under the new system, employers, or their legal representative, will complete an online registration process, at a cost of $10.00 per petition, which requires basic information about the company and the requested H-1B beneficiary.  Information such as employer legal name, employer identification number, country of birth and citizenship ...

As 2019 draws to a close and millions of people contemplate their resolutions for the new year, USCIS made good on their promise and announced the implementation of a new H-1B filing process for 2020.  USCIS originally announced the change in early 2019, but delayed implementation.  The new process significantly changes the H-1B petition timeline and requires employers to prioritize foreign national hiring decisions earlier than previous years.

In the past, employers seeking to sponsor foreign nationals for H-1B visas prepared and filed full visa petitions in the first five ...

On August 7, 2019, U.S. Immigration and Customs Enforcement’s (ICE) Homeland Security Investigations (HSI) conducted a raid of seven Mississippi food processing plants, arresting 680 employees suspected of working without proper documentation. Since the Trump administration came into office, ICE has significantly stepped up worksite enforcement by ramping up the number of I-9 audits. In Fiscal Year 2018, HSI conducted 5,981 I-9 inspections, compared to 1,360 in Fiscal Year 2017.

Increase in Form I-9 Penalties – How Small Mistakes Can Cost You Big Money

A recent Department ...

The Social Security Administration (SSA) resumed sending Employer Correction Request Notices, more commonly referred to as “No-Match Letters”, to employers in the Spring of 2019, following a seven-year period with no issuance of no-match letters. The SSA issues letters to businesses that have submitted a wage report containing a reported name, Social Security Number (SSN) or a combination thereof for an employee which do not match SSA’s records. From an employee misentering their SSN on Form I-9 or unreported name changes, to typographical errors or inaccurate employer ...

The second installment of the Summer Green Card Series explained the function of the Visa Bulletin.  In the third installment, we cover how to read the Visa Bulletin and answer some common Visa Bulletin-related questions.

How to Read the Visa Bulletin

The above figure is the Visa Bulletin’s Final Action Date Chart for July 2019, which USCIS indicated should be used to determine whether a foreign national is subject to a filing backlog.  Applicants must first determine their employment-based category.  The applicant must then look to their corresponding country of origin.  The ...

Often times, the first question asked by employment-based Green Card beneficiaries during an initial strategy consultation is, “How long until I have my Green Card in hand?”  While the answer varies depending on the particular Green Card strategy and the candidate’s country of birth, the Visa Bulletin is always a factor that must be considered.  Particularly for Indian and Chinese nationals, Visa Bulletin backlogs can delay issuance of a Green Card for many years.  In some cases, the wait can be nearly a decade.  In this post, we explain the Visa Bulletin’s function.  In our third ...

PERM can be one of the most confusing and frustrating portions of the employment-based Green Card process for employers.  PERM is driven by numerous regulatory requirements and the slightest mistake can doom a Green Card sponsorship.  As Part One of Burr and Forman, LLP’s Summer Green Card Series, we look at the PERM process so employers can understand what to expect and how to successfully prepare applications.

What is PERM?

PERM stands for Program Electronic Review Management and is the web-based program operated by the Department of Labor (“DOL”) for obtaining Labor ...

Now that the April 1, 2019 H-1B visa deadline has passed, thousands of employers may find themselves looking for an alternative to employ valuable foreign workers.  While not receiving as much media popularity as the H-1B program, there are various alternative approaches to avoid disruption with respect to foreign labor such as the E-2 and L-1 visa.  Each visa program has separate requirements that are important to keep in mind when establishing an appropriate immigration strategy.

The L-1 Intracompany Transferee

The L-1 Intracompany Transferee visa is available to employers with ...

While students across the country are getting ready for spring break, school districts are already preparing to hire teachers for the next academic cycle.  Many districts are suffering from a nationwide teaching shortage and are increasingly turning to foreign nationals to fill open positions.  Federal immigration laws now permit certain school districts to file H-1B petitions throughout the year which has drastically reduced some of the challenges of hiring and retaining qualified teachers.

School districts have long utilized the H-1B visa to employ foreign nationals because ...

With April 1, 2019 and the H-1B cap deadline quickly approaching, employers seeking to use H-1B workers in third-party worksite arrangements will likely continue to see increased scrutiny from USCIS.  Third-party worksite scenarios often arise where the company that petitions for an H-1B beneficiary places the beneficiary at a client’s place of business to complete projects for the client or as part of a joint project between both entities. In 2018, USCIS released a policy memorandum specifically aimed at reeling in employers who were stretching the limits on the H-1B ...

In early January, the Burr & Forman, LLP immigration team outlined a major change to the H-1B visa lottery system proposed by the Department of Homeland Security ("DHS").  Last week, DHS issued the final H-1B rule, which is effective April 1, 2019.

The most drastic change to the H-1B lottery system is the electronic registration requirement.  Importantly, DHS has suspended mandatory electronic registrations until the FY 2021 H-1B period (which begins April 1, 2020) to ensure the system is fully functional before the requirement goes into effect.  As a result, H-1B lottery filings will ...

The current government shutdown does not affect the vast majority of USCIS's activities. Their offices are open, and interviews and appointments are proceeding as normal. USCIS continues to accept petitions and applications for benefit requests with only a few exceptions.  The USCIS programs that will face disruption until they receive appropriated funds or are reauthorized by Congress are the EB-5 Immigrant Investor Regional Center Program (not the EB-5 Program, it continues to operate), E-Verify, Conrad 30 Waiver Program for J-1 medical doctors (not a shutdown of the program ...

Recent ICE activity has demonstrated the importance of properly completing Form I-9 and the consequences that result from not doing so.  One of the best ways for a company to feel confident upon receipt of an audit notice from DHS, DOL, or DOJ is to develop a habit of routine internal or self audits.

Follow these key guidelines to a successful audit outcome:

1) Review all I-9 forms or a representative sample selected on non-discriminatory grounds to determine I-9 opportunities and correction areas.

2) Communicate with employees regarding the audit to ensure a culture of open ...

Every January, employers begin making preparations for the H-1B visa filing season so they will be ready for the H-1B cap filing deadline on April 1^st.  Filing H-1B petitions typically come with a degree of anxiety given the visa category has historically been oversubscribed resulting in petitions selected in a random lottery in order to have a chance at approval.  On November 30, 2018, the Department of Homeland Security announced plans to drastically change the H-1B lottery system, which should have H-1B employers making preparations earlier than in prior years.

The Current H-1B ...

Employers who use E-Verify to confirm their employees are eligible to work in the United States will be required to reset their E-Verify password, security questions, and answers when they log in to the system on or after December 16, 2018. The E-Verify system will be making changes to its user interface to give more self-service options such as automatic password resets. E-Verify is required for employers with certain federal contracts and is mandatory for many employers in certain states, including South Carolina and Georgia. More than 40 million E-Verify queries were run during ...

Even the simplest tasks tend to be chaotic around the holidays, and a trip to the U.S. Consulate for a visa interview is no exception. With no school for children and a desire to be with extended family during the holidays, thousands of foreign nationals will exit the United States in mid-December. For many of those foreign nationals, traveling outside the United States will necessitate a trip to the U.S. Consulate in order to renew their visa. The following tips may help ease the stress of a holiday visa interview at the U.S. Consulate.

Schedule Your Interview Early

Because the holidays ...

USCIS has implemented a new Policy Memorandum affecting foreign national students (F-1 and M-1) and exchange visitors (J-1). The memo, "Accrual of Unlawful Presence and F, J, and M Nonimmigrants," became effective on August 9, 2018, and could have a significant effect on nonimmigrants (and in certain cases, immigrants) who hold or have held F, J, or M visa status and who have violated that status since their most recent entry into the U.S. The policy may also impact nonimmigrants who exit the U.S. and who, whether knowingly or not, violated their F, J, or M status and attempt re-entry to ...

Every year, U.S. employers seeking highly skilled foreign professionals submit their petitions to U.S. Citizenship and Immigration Services (USCIS) with the hope of receiving an H-1B number. Since 1990, Congress has limited the number of H-1Bs made available each year. The current annual statutory cap is 65,000 visas, with 20,000 additional visas for foreign professionals who graduate with a Master's degree or Doctorate from a U.S. college or university. However, this cap has been reached quickly in recent years.

The H-1B is a temporary (nonimmigrant) visa category that allows ...

Immigration and Customs Enforcement (ICE) is planning a nationwide increase of Form I-9 audits this summer, and employers should prepare for the increased possibility of a government audit.

ICE is the federal agency responsible for enforcing the laws established by the Immigration Reform and Control Act (IRCA) of 1986, which requires employers to verify the identity and work eligibility of all individuals hired after November 1986 using the I-9 Form. According to an ICE recent news release, less than seven months after U.S. ICE Deputy Director Thomas Homan issued a directive that ...

After months of anticipation, it appears the first major H-1B program-related change will be the recession of employment authorization for certain H-4 spouses. The change should have the largest effect on Chinese and Indian nationals who comprise the highest percentage of current H-4 work authorized beneficiaries.

Spouses and children of H-1B visa holders receive H-4 status so they can remain in the United States with their H-1B beneficiary relative. Historically, individuals in H-4 status were not granted work authorization. In 2015, the Obama Administration implemented a ...

With changes in late 2017, many employers are gearing up for H-1B season on April 1, 2018. The H-1B visa allows foreign nationals to work in occupations that require at least a U.S. Bachelor's Degree (or foreign equivalent) in a specific academic field. The H-1B visa is one of the most sought after employment visas because it provides a natural spring board to an employer-sponsored green card.

Immigration regulations limit the number of H-1B visas available each year to 85,000 with 20,000 available slots set aside for individuals holding at least a U.S. Master's Degree. The H-1B visa is ...

While students across the country are heading back to finish the school year, school districts are already preparing to hire teachers for the next academic term. Districts are suffering from a nationwide teaching shortage and are increasingly turning to foreign nationals to fill open positions. A fairly new immigration rule effective January 2017 provides certain school districts with unlimited access to the H-1B visa throughout the year and has drastically reduced some of the challenges of hiring and retaining qualified teachers.

School districts have long utilized the H-1B ...

Qualifying dependent spouses of certain H-1B visa holders (H-4 spouse) have enjoyed the benefits of applying for work authorization since 2015 when the United States Citizenship and Immigration Services (USCIS) implemented a rule supported by the Obama administration permitting them to obtain employment authorization documents.

Since then, USCIS has approved more than 100,000 work authorization applications for H-4 spouses. However, the "Buy American, Hire American" initiative signed under the Trump administration may soon bring an end to the popular benefit, and this ...

E-Verify undergoes an early 'spring cleaning' each year when USCIS disposes of E-Verify records more than 10 years old. E-Verify users who have been using the online employment verification system for 10 years or more should take action as soon as possible. USCIS has announced that employers have until February 28, 2018 to download a Historic Records Report in E-Verify which contains information such as company name and location, initiated date and verification case number, employee name and date of initial resolution, date of additional resolution and final status, and case ...

On October 1, 2017, United States Citizenship and Immigration Services ("USCIS") began phasing-in interviews for all employment-based green card applicants. Interviews have always been mandatory, but historically USCIS has waived the interview requirement for employment-based petitions when the beneficiary applies for a green card while already lawfully admitted in the United States.

The interview mandate is directly related to President Trump's "Protecting the Nation from Foreign Terrorist Entry Into the United States" Executive Order and applies to all ...

The H-2B visa program allows businesses in the United States to sponsor foreign nationals for a temporary visa to work in nonagricultural jobs. The H-2B program is popular among employers in the hospitality, tourism, and landscaping industries to fill positions that would otherwise remain vacant due to U.S. labor shortages during times when employers are particularly busy. There is a Congressionally mandated limit of 66,000 H-2B visas available each year. Historically, a legal provision known as the "Returning Worker Exemption" allowed foreign nationals counted towards the ...

On September 5, 2017, the Department of Homeland Security ("DHS") issued a memorandum rescinding an Obama-era program known as Deferred Action for Childhood Arrivals ("DACA"). DACA permits certain undocumented aliens that came to the United States before their sixteenth birthday to remain in the United States and apply for renewable two (2) year periods of work authorization. DACA does not provide beneficiaries with lawful immigration status, but many view the program as the first step on the path to citizenship for "Dreamers." DHS will "wind down" DACA over the next six (6 ...

In early August, President Trump voiced support for a bill introduced earlier this year by Senators Tom Cotton (R-AR) and David Perdue (R-GA) to effectively overhaul the current immigration system. The Reforming American Immigration for Strong Employment (RAISE) Act has similarities to other points-based immigration systems, such as those in Canada, Australia, or the newly implemented system in China. The RAISE Act is "merit-based," focusing heavily on advanced-level, skills-based employment and education (with financial investments also a consideration), and a ...

Most employers have now implemented the use of the highly publicized, newly revised Form I-9 which United States Citizenship and Immigration Services (USCIS) mandated as the only acceptable Form I-9 version (rev 11/14/16) effective January 22, 2017. Another change is around the corner, however, and USCIS released another Form I-9 version on July 17, 2017. The newest version of Form I-9 must be used beginning September 18, 2017.

Initially, some thought the changes to the most recent version would pertain to a new Department of Homeland Security rule proposed by the Obama ...

Corporate mergers and acquisitions are typically complex and expensive transactions. While financial matters typically comprise the core of an acquiring company's due diligence efforts during a merger or acquisition, immigration compliance should also receive increased attention before a transaction closes, particularly in light of recent enforcement efforts in the area of immigration compliance. Generally speaking, the entity surviving after a merger or acquisition remains liable for I-9 violations caused by the acquired entity. Having solid knowledge of and ...

he United States Supreme Court recently stayed portions of two (2) U.S. Circuit Court opinions and allowed parts of President Trump's travel ban to go into effect. Foreign nationals from Iran, Libya, Somalia, Sudan, Syria, and  Yemen may be affected by the Supreme Court's order.

The Supreme Court's order relates to the second of two (2) Executive Orders ("EO"), both of which banned nonimmigrants from several predominately Muslim countries from entering the United States for ninety (90) days. The first EO was blocked by federal courts, and the President decided to rewrite the ...

The Trump administration has not been reserved in its mission to not only reinforce but to heighten and enhance current immigration regulations. The President has quickly tried to implement measures to increase national security and border protection and has tasked federal agencies with a series of mandates to review current practices and recommend changes. The U.S. Department of State, for example, has recently implemented tougher vetting of U.S. visa applicants, including a new "Supplemental Questions for Visa Applicants" questionnaire that asks applicants about their ...

For many, the summer is a time for relaxation. For HR professionals, it can be a time of flux. In an academic setting, for example, students and teachers who worked on campus during the fall and spring semesters may be leaving for the summer break. Alternatively, student workers and temporary faculty may come in to fill summer-only positions. Also, students taking a break from classes may be getting summer internships or off-campus jobs to earn extra money. As employers gear up for the summer, it is important to distinguish between a rehire and continuing employment for purposes of I-9 ...

With the increased focus on foreign language programs-particularly the popularity of immersion programs in which the foreign language is used for instruction rather than as the subject of instruction-schools districts are increasingly turning to foreign nationals in order to fill employment needs. There are other hard-to-fill positions in school districts where foreign national hires are more prevalent as well. While positions such as teachers normally qualify for H-1B visas, the uncertainty surrounding whether a petition will be selected in the annual 85,000 H-1B visa ...

The United States Citizenship and Immigration Services (USCIS) continues to take action in its efforts to deter fraud. Lawful Permanent Resident cards, more commonly referred to as "Green Cards," have undergone at least 5 changes since their post-World War II debut, and Employment Authorization Cards ("EADs") have borne at least as many. On May 1, 2017, USCIS began issuing redesigned cards with enhanced graphics and fraud-resistant security features that should be generally agreeable to HR staff, yet an impediment to would-be scammers.

The new features on the cards include the ...

USCIS has concluded the H-1B lottery and data entry operations for FY2018. Many hopeful petitioners and beneficiaries have already received the coveted I-797C Receipt Notice confirming their selection; however, some do not yet know their fate. Students on F-1 visas who have neither received a Receipt Notice nor a rejected petition may feel they are at an impasse. For these cases, qualifying students may continue to benefit from the automatic "Cap-Gap" extension until a rejection notice, or, more hopefully, a Receipt Notice, is received.

The Cap-Gap rule allows F-1 students for ...

Each year, thousands of employers file H-1B visa petitions for foreign nationals seeking to obtain temporary work authorization in professional jobs which requires at least a Bachelors' Degree in a specific field. On April 7, 2017, the Department of Homeland Security (DHS) announced it reached the congressionally mandated cap for H-1B visas for the 2018 fiscal year and would institute a lottery to select petitions for adjudication. The number of H-1B petitions filed in 2017 declined for the first time since 2013, but the number of filings were still more than double the number of ...

On March 3, 2017, the United States Citizenship and Immigration Services (USCIS) announced it would suspend premium processing, often referred to as fast tracking, for all H-1B petitions. The suspension takes effect on April 3, the start date of the new fiscal year filing period.

What has changed
The H-1B visa program is one of the most popular and scrutinized visa classifications used for professionals. This fiscal year, the USCIS received nearly 233,000 H-1B petitions for 65,000 available H-1B slots.

The program enables U.S. companies to tap into a global network of foreign ...

While the Executive Order ("the Order") issued by President Trump on January 27, 2017, and temporarily halted by the District Court in the Western District of Washington and subsequently by the Ninth Circuit Court of Appeals, has been highly publicized for temporarily banning certain foreign nationals from the United States, it could also could impact business travelers from a variety of countries in a number of ways. Foreign nationals often use the business visitor (B-1) visa to enter the United States for short periods to engage in business activities that do not rise to the level of ...

Advocates, employers, and employees are in a state of suspense in anticipation of potential changes to the H-1B program. The H-1B visa allows foreign workers to be employed in certain "specialty occupations," which are generally defined as positions requiring, at a minimum, a U.S. Bachelor's degree (or the foreign equivalent) in a specific academic field. Congress has established a limit of 65,000 H-1B visas per fiscal year, with an additional 20,000 H-1B visas reserved for candidates with U.S. advanced degrees (such as a Master's degree or higher). This does not include H-1B ...

One of the biggest drawbacks for employers trying to utilize the H-1B visa program is the numerical cap. The current law limits the number of H-1B visas available to 65,000 annually with an additional 20,000 available to those with a U.S. Master's Degree. USCIS regularly receives more than triple the cap number in H-1B petitions each year, resulting in the implementation of a random lottery system to determine who receives a visa. Despite the odds, the H-1B continues to be the visa classification of choice for many employers due to the advantages it provides for foreign national ...

One of the first things that may come to mind when thinking about the Trump Immigration Plan is the promise to build a Mexican-financed physical wall on the southern border of the United States. While the wall was certainly the President-elect's most publicized immigration stance during the campaign, he has proposed a number of other actions that could directly affect employers. Here is a quick synopsis of five (5) immigration policy changes which could significantly impact U.S. employers.

1. Canceling the Deferred Action Executive Orders (DACA & DAPA)

In June 2012, President Obama ...

The United States is facing a monumental physician shortage. According to The Washington Post, our aging population may need as many as 90,000 additional physicians by 2025.

In an effort to ameliorate the problem and combat the shortage of physicians in Medically Underserved (MUA) and Health Professional Shortage Areas (HPSA), Congress passed the Conrad 30 Program. Conrad 30 makes it easier for foreign nationals with foreign medical degrees, also known as foreign medical graduates (FMG), to stay and work in the United States after completing their medical residency.

Every year ...

Now that the weather is warming up and the school calendar is winding down, millions of people across the country are planning their summer excursions. For employees that work on a non-immigrant visa, that summer holiday might include a trip to the "Not-So-Happiest Place on Earth." Navigating the practices and procedures of consulates and embassies can induce anxiety for employees and employers alike. Here are a few tips that can make obtaining a visa at the consulate or embassy easier than a day with your toes in the sand.

1. Plan Ahead

The summer months are some of the busiest for the ...

On November 20, 2014, President Obama announced an executive action program on immigration that will likely impact businesses and families in the coming months. Key provisions of the program are summarized below.

Deferred Action

The President expanded and modified the Deferred Action for Child Arrivals (DACA) program. Under the new Deferred Action for Parental Accountability (DAPA) program, undocumented parents of children who are either United States citizens or lawful permanent residents as of November 20, 2014 may apply for work authorization for a three year period. To ...

There have been significant updates to the I-9 Form that was proposed last year. This article summarizes the new updates to the I-9 Form, M-274 Handbook and ICE Audit Update.

New I-9 Form

On March 8, 2013, the Department of Homeland Security, United States Citizenship and Immigration Services (USCIS) published the long-awaited, revised Form I-9. USCIS initially proposed the new form in March 2012 and has spent the past several months reviewing thousands of comments about the proposed changes. The key changes on the new form include expanding the form from one to two pages; a slightly ...

There have been significant and recent developments in immigration law that will likely impact businesses in South Carolina and North Carolina in 2013. This article summarizes both federal and state immigration developments.

On the Horizon - Will There Be a New I-9 Form in 2013?

In March 2012, U.S. Citizenship and Immigration Services (USCIS) proposed a new I-9 form and invited public comments until Fall 2012. USCIS continues to review thousands of comments and will likely release final changes to Form I-9 in the coming months. The most significant proposed changes include ...