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 ...
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 ...
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 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 ...
Over the past year, several Presidential Proclamations have restricted travel to the United States by foreign nationals physically present in China, Iran, the Schengen Region, the United Kingdom, Ireland, Brazil, South Africa, and India during the fourteen-day period prior to U.S. entry. The travel restrictions were put into place as a measure to prevent further spread of COVID-19. Those subject to the regional travel restrictions were required to obtain a National Interest Exception ("NIE") from the Department of State ("DOS") each time they planned to enter the United States ...
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 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.
- H-4 EAD is Here to Stay: Despite being in a constant state of flux over the ...
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 ...
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 ...
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 ...
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 ...
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 ...
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 ...