As people digest the possible immigration changes of a new administration in Washington, there is an effort to calm the anxiety.

Today, President Obama issued a statement that is aimed at “DREAMers” who have had the opportunity to come out of the shadows, secure a legal status, including employment authorization and a driver’s license by virtue of the DACA (Deferred Action for Childhood Arrivals).   DACA is based on executive action and may be done away with by a new administration.

Mr. Obama said:  “These are kids who were brought here by their parents. They did nothing wrong. They’ve gone to school. They have pledged allegiance to the flag. Some of them have joined the military…By definition, if they’re part of this program, they are solid, wonderful young people of good character. And it is my strong belief that the majority of the American people would not want to see suddenly those kids have to start hiding again.”

Today, USCIS issued a statement that it is continuing to make its decisions based on the current law.  In a stakeholders announcement,  USCIS stated:

“Many USCIS customers have been contacting us with questions regarding current immigration programs and possible future immigration policies. We continue to process all applications, petitions, and requests consistent with current statutory laws, regulations, and policies. USCIS cannot comment on what sort of policies the incoming Administration may choose to prioritize or pursue.  We remain focused on our mission to administer U.S. immigration laws and to provide a high level of service to our customers.”

On November 18th, USCIS published proposed regulations, some of which have been in the works for more than a decade.  These regs, entitled “Retention of EB1, EB-2 and EB 3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers”, contain important clarifications of employment based immigration.  This becomes final on January 17, 2017.  Mr. Trump takes Office on January 20.

We encourage the public to be extra vigilant about immigration scams. Scammers take advantage of times of uncertainty. For information on protecting yourself and your loved ones, visit https://www.uscis.gov/avoid-scams . Remember, “the wrong help can hurt!”

It’s hard to write about the immigration consequences of the election in a non-political way.  Campaign rhetoric makes millions of immigrants and millions more citizens anxious.  The immigrants include people who are undocumented and those who are documented, new arrivals, longtime residents and prospective immigrants to the US.  Most of the immigration-related campaign themes of President-elect Donald Trump concern undocumented and criminal immigrants, refugees and potential terrorists…not employment-based immigration for documented immigrants.   “Building a wall” is both literal and figurative.  A physical wall or fence on our 2000+ mile long border with Mexico and trebling the Border patrol would make unlawful entry across that border more difficult, even though out-migration of Mexicans currently exceeds in-migration. Extreme vetting of refugees, which we already have, could prevent “that one person” from coming who has terrorist ideas while leaving thousands of victims of terrorism in refugee camps outside of their homeland. Deporting criminal immigrants, which the Obama administration pursued more aggressively than any other, is already being done.

Do these have a direct effect on legal, employment based immigration?  Not really.

Congress could change the law that underpins our legal immigration system to make it more restrictive and to limit the number of immigrants admitted for temporary or permanent employment.  Executive action that gave employment authorization to about 800,000 “dreamers”, kids who were brought to the US illegally as minors by family members, could be repealed.  Proposed administrative changes giving parole to entrepreneurs with capital seeking to start new businesses could be delayed indefinitely.

Employment-based immigration could be changed dramatically, but that was not a campaign theme.  Enforcement was.  Employers need to be cautious that their work force is composed of workers authorized to work in the US.  Employers need to make sure that their I-9 processes and forms are in order (and should also be aware that a new Form I-9 will become effective on January 22, 2017).  While immigration raids haven’t been employed since early in the Bush Administration, the theme of enforcement is likely to make inspections and fines more prevalent and more expensive.

The election was only one week ago.  There may be dramatic changes in immigration law and policy; maybe not.  People who have been procrastinating their filing of naturalization are filing now.  Many people seeking immigration benefits will be pushing to file before January 20th.  Employers with sloppy I-9s or a questionable work force would be wise to clean up. As the Trump administration makes good on some of its immigration pledges, we will be vigilant in following those changes.  For now, business as usual – except for the anxiety.

U.S. Citizenship and Immigration Services (USCIS) released a new revised version of Form I-9 on Monday, November 14, 2016.  The previous editions of the Form (with “03/08/13” in the lower left corner) will remain valid until January 21, 2017. After this date, only the new Form (with “11/14/16” in the lower left corner) is acceptable. Both the English and Spanish (available for use only in Puerto Rico) have been revised.

All U.S. employers are required to complete a Form I-9 for every employee hired in order to verify that the individual is authorized for employment in the United States under the Immigration Reform and Control Act of 1986 (IRCA).  IRCA prohibits employers from hiring people, including U.S. citizens, for employment in the United States without verifying their identity and employment authorization on Form I-9.

Per USCIS, the changes in the Form are designed to reduce errors and enhance form completion using a computer. The new Form I-9 has been enhanced for easier completion on a computer with drop-down lists, popup calendars for entering dates, on-screen instructions for each field, easy access to the full instructions, and an option to clear the form and start over. When the employer prints the completed form, a quick response (QR) code is automatically generated, which can be read by most QR readers.

Among the changes in the new version, Section 1 asks for “other last names used” rather than “other names used,” and streamlines certification for certain foreign nationals.

Other changes include:

  • The addition of prompts to ensure information is entered correctly.
  • The ability to enter multiple preparers and translators.
  • A dedicated area for including additional information rather than having to add it in the margins.
  • The preparer/translator information is now on a separate/supplemental page.

The instructions have been separated from the form, in line with other USCIS forms, and include specific instructions for completing each field.

Note that the new form does not require that it be completed on a computer; it only makes it easier if Employers choose to do so. For those who will complete the form manually, there are little to no changes, other than some visual and formatting differences from the prior edition.

As a best practice, employers should begin using the new edition of the form immediately for all new hires and for reverifications of current employees, although the previous editions of the form will remain valid until January 21, 2017. Employers should not execute new Forms for existing employees or prepare new forms to replace existing forms. Employers should use the new version of the form to reverify existing employees.

The new Form I-9 and List of Acceptable Documents, in English and in Spanish, the separate Instructions for Form I-9, and Form I-9 Supplement, Section 1, Preparer and Translator are available on USCIS’ web site. The Spanish version of the Form may only be executed by employers in Puerto Rico. Employers in the 50 states, Washington, DC, and other U.S. territories may use the Spanish version of the Form only as a translation guide and must complete the English version of the Form.

IRCA compliance can be a complicated process, and although employers can select from a variety of service providers to meet their I-9 training needs, legal professionals with experience with immigration, employment and labor law are best equipped to handle IRCA compliance issues.

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Alka Bahal is a Partner and the Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP. Alka is situated in Fox Rothschild’s Roseland, New Jersey office though she practices throughout the United States and at Consulates worldwide. You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.

The Office of Management and Budget (“OMB”) has approved the latest revisions to the current Form I-9, which expired on March 31, 2016 but remains valid until the new edition is released.  The new form will replace the 2013 version and will be valid until August 31, 2019.

The OMB notice indicates that USCIS “may accept the prior version of Form I-9, for 150 days,” however, USCIS has yet to issue any statements or any intended plans on when it will release the new Form I-9 yet.

Although several changes are expected in the new Form I-9, including the application of bar coding technology, there have been no official disclosures of those changes, nor any previews of the new version. Accordingly, all Employers can do at this time is to watch and wait.

Continue using the 2013 version of the Form until the new Form is released. It is anticipated that USCIS will provide some lead time before the new Form is mandatory, as in years past. We’ll keep you apprised as information becomes available, and advise on our schedule of training seminars, once the form is out. Stay tuned.

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Alka Bahal is a Partner and the Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP. Alka is situated in Fox Rothschild’s Roseland, New Jersey office though she practices throughout the United States and at Consulates worldwide. You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.

In our continuing series of reports, Charles (“Charlie”) Oppenheim, Chief of the Visa Control and Reporting Division, U.S. Department of State, shares his most recent analysis of current trends and future projections for the various immigrant preference categories with AILA (the American Immigration Lawyers’ Association).

Below are highlights from the most recent “check-in with Charlie” (September 12, 2016), reflecting his analysis of current trends and future projections for the various immigrant preference categories.

This month, Charlie offers his analysis of current trends and future projections for the various immigrant preference categories for the beginning of the next fiscal year (October 2016) and beyond.

Check-in with DOS’s Charlie Oppenheim: September 12, 2016

EB-4 and Certain Religious Worker (SR) Preference Categories. As predicted last month, the final action dates for EB-4 India and EB-4 Mexico will be current again in October and the priority dates for EB-4 El Salvador/Guatemala/Honduras will advance to June 15, 2015. While Charlie considered establishing a separate final action date for Guatemala and Honduras due to the higher demand for numbers from El Salvador, all three countries are expected to exceed the per country limitation and rely on the availability of “otherwise unused” EB-4 numbers. Thus, Charlie confirmed that the three countries will continue to be reported together throughout FY 2017.

It is expected that EB-4 India and EB-4 Mexico will remain current for the foreseeable future, until at least late spring, early summer 2017. EB-4 El Salvador/Guatemala/Honduras is expected to advance modestly, by no more than two months at a time in a best case scenario. Charlie notes that there is likely more demand in this category at USCIS to which he does not yet have visibility, so his predictions may change depending on the rate at which such demand begins to materialize.

EB-4 religious workers will be unavailable in October, pending congressional action to reauthorize the program beyond September 30, 2016. Should that occur, El Salvador/Guatemala/Honduras would be subject to a June 15, 2015 final action date, and all other countries would be current.

EB-1 China and India. In October, the EB-1 final action date for all countries will return to current. Due to the brief imposition of a final action date in India and China at the end of FY 2016, there will be high usage in these categories in October. EB-1 India and China can be expected to remain current for the foreseeable future. Charlie will continue monitor this category closely during the second half of the fiscal year if demand remains high.

EB-2 and EB-3. As predicted, EB-2 Worldwide will again be current in October and ahead of EB-3 Worldwide which will have a final action date of June 1, 2016. As there is pent up demand in EB-2 Worldwide due to the retrogression, visa usage in this category will be high in October. Charlie will monitor this category closely during the final quarter of the fiscal year.

Consistent with Charlie’s predictions, in October, EB-2 China will have a final action date of February 15, 2012, almost one year behind EB-3 China’s final action date of January 23, 2013. Thus, the EB-3 downgrade phenomenon should once again be expected for FY2017. Charlie did not advance either of these final action date to the full number use target given the likelihood of demand at USCIS that is not yet visible and to minimize the need for corrective action later in the fiscal year. Charlie hopes to keep the final action dates for EB-2 and EB-3 China as close to one another as possible.

Also consistent with Charlie’s predictions, the final action date for EB-2 India will advance to January 15, 2007 in October. Charlie expects this category will advance at a pace of up to four months at a time. Slower movements of up to a week at a time are anticipated for EB-3 India, which will advance to a March 1, 2005 final action date in October. Number usage for EB-3 India is expected to be high in October, which will decrease the amount of numbers Charlie can allocate in November and December and slow the advancement of this category.

The EB-3 Philippines final action date will be December 1, 2010 in October. Charlie expects this category to initially move up to three weeks per month. He hopes that the final action date will move through 2011 as soon as possible and that it will be well into 2013 by the end of the fiscal year.

EB-5 China. EB-5 China non-regional centers will have a final action date of February 22, 2015 in October. EB-5 China regional centers will be “unavailable” in October pending Congressional reauthorization of the program beyond September 30, 2016. Should this category be reauthorized, the final action date will be set at February 22, 2014. So as not to completely halt visa processing in October, DOS has set tentative Immigrant Visa appointments for the second half of October, which will be remain scheduled in the event that Congress reauthorizes the program.

Family-Based Projections. In October, the final action date for F-2A will be December 22, 2014 for all countries except F-2A Mexico, which will be December 1, 2014. As has been the case during FY 2016, F-2A Mexico is expected to lag behind the rest of the world by about 3 weeks for the rest of the fiscal year. China and India’s final action dates track those for the rest of world in all family-based categories with the exception of F-4. Charlie expects F-4 China to catch up to the final action date for F-4 Worldwide within three to four months. The F-4 India final action date will advance into 2013 for November, but unlike F-4 China, will remain behind F-4 Worldwide for the foreseeable future.

Application Filing Dates. Given higher levels of demand in relation to the expected availability of numbers during FY 2017, the Application Filing Dates in several categories, such as EB-5 China and EB-2 India, have retrogressed. Applicants are reminded to refer to USCIS’s website as to whether it will honor the Application Filing Dates for I-485 applications.

You may access the October 2016 Visa Bulletin here and the September 2016 Visa Bulletin here.

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Alka Bahal is a Partner and the Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP. Alka is situated in Fox Rothschild’s Roseland, New Jersey office though she practices throughout the United States and at Consulates worldwide. You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.

 

cropped-cropped-favicon.pngFox Rothschild LLP has formalized its EB-5 Immigrant Investor Services practice, led by Scott Bettridge in Miami and Roy J. Carrasquillo in New York. The national practice boasts a multidisciplinary group of attorneys drawn from its Corporate, Immigration, Government Relations, International, Real Estate, Securities and Tax practices. The firm’s EB-5 team provides an integrated approach for clients with EB-5 matters, particularly in the areas of complex and structured financing, tax credits, bonds, immigration matters, corporate mergers, acquisitions and formation, and alternative financing. The EB-5 practice group members will continue to serve developers, individual EB-5 investors, states and municipalities, EB-5 service providers and established regional centers throughout the United States.

A draft of a Continuing Resolution (“CR”) was filed yesterday by Senate Majority Leader Mitch McConnell which would fund all current US government operations through December 9, 2016. Because last year’s Omnibus appropriations bill included the EB-5 Regional Center Program, the EB-5 Regional Center Program would be extended automatically by the passing of the CR during that period. A cloture vote on the CR is expected early next week and it is expected that the draft CR will be passed by both chambers of Congress. We will continue to monitor any new developments regarding the CR and the EB-5 Regional Center Program.

 

The State Department announced that it will begin accepting applications for the FY 2018 Diversity Immigrant Visa Program—commonly called the diversity visa lottery—beginning Tuesday, October 4, 2016. Applicants who are selected and approved may apply for a green card starting on October 1, 2018.

Each year, the State Department randomly selects 50,000 immigrant visa applications from a pool of foreign national applicants who were born in certain countries with historically low rates of immigration to the United States. The State Department will accept diversity visa applications for FY 2018 beginning on Tuesday, October 4, until Monday, November 7.

Applicants who are selected in the lottery must meet certain requirements before becoming eligible to apply for lawful permanent residency (i.e., apply for a “green card”).

First, applicants must be born in countries that have historically low immigration rates. Individuals born in the following countries are ineligible to apply for a DV for fiscal year 2018:

Bangladesh, Brazil, Canada, China (mainland-born**), Colombia, Dominican Republic, El Salvador, Haiti, India, Jamaica, Mexico, Nigeria, Pakistan, Peru, Philippines, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam. **Note: Persons born in Hong Kong SAR, Macau SAR, and Taiwan are eligible.

Most notably, nationals of Ecuador are eligible to apply in this year’s diversity visa lottery program, a change from being ineligible in years past. Those not born in an eligible country may still be able to apply for a DV through a spouse (if that spouse was born in an eligible country) or, in certain circumstances, through a parent.

Secondly, each DV applicant must have at least a high school education or its equivalent or, alternatively, have two years of work experience in a position that requires at least two years of education, training, or experience to perform.

The State Department encourages applicants to avoid procrastination in applying, as heavy demand in their application system may cause delays or other technical errors. Applicants will be able to check if they were selected in the randomized lottery starting May 2, 2017.

Employers are often interested in having a qualifying employee apply for a diversity visa in order to avoid costly traditional employment-based “green card” applications (such as first conducting mandatory advertisements in connection with a PERM filing with the Department of Labor). Both employers who encourage its foreign employees to apply, as well as any other prospective individual applicants, should be mindful of complex requirements in order to avoid rejection, denial, or other avoidable issues throughout the diversity visa application process.

Statue of Liberty
Copyright: dvrcan / 123RF Stock Photo

On our Emerging Companies Insider blog, Fox associate Alex Radus published an excellent piece covering a proposed new rule by the U.S. Citizenship and Immigration Services (USCIS). The rule would grant limited entrée to entrepreneurs establishing stateside startups. The rule would permit the Secretary of Homeland Security to offer parole (temporary permission to be in the U.S.) to individuals whose businesses provide “significant public benefit.” That means the startup should have a substantial potential for rapid growth and job creation, and that the entrepreneur’s parole would significantly help the startup conduct and grow its business in the U.S.

Alex outlines the qualifications that foreign entrepreneurs will have to meet when seeking to benefit from the program, as well as the investor requirements and timespan involved. He also notes some of the practical concerns surrounding the rule as proposed. We invite you to read his valuable discussion and join the debate during the public comment period provided by DHS.

In our continuing series of reports, Charles (“Charlie”) Oppenheim, Chief of the Visa Control and Reporting Division, U.S. Department of State, shares his most recent analysis of current trends and future projections for the various immigrant preference categories with AILA (the American Immigration Lawyers’ Association).

Below are highlights from the most recent “check-in with Charlie” (August 12, 2016), reflecting his analysis of current trends and future projections for the various immigrant preference categories.

This month, Charlie offers his analysis of current trends and future projections for the various immigrant preference categories through the remainder of this fiscal year (September 2016) and the beginning of the next (October 2016).                                                                                                           

Check-in with DOS’s Charlie Oppenheim: August 12, 2016

EB-2 and EB-3. Presently, the EB-2 Worldwide final action date lags behind EB-3 Worldwide, but this should not create the same EB-3 downgrade phenomenon we have witnessed in recent years in the China EB categories. According to Charlie, members should expect EB-2 Worldwide to become current again in October. Despite the uncharacteristically low demand in EB-3 Worldwide, members should not expect it to become current. Charlie is concerned that there is demand in this category that has not yet materialized.

As predicted last month, the final action date for EB-2 China and EB-3 China will remain the same through the remainder of this fiscal year. In October, EB-2 China is expected to advance to a date in late 2011 or early 2012. EB-3 China’s final action date is expected to reach late 2012 or early 2013. Therefore, it is likely that we will once again see the EB-3 downgrade phenomenon next fiscal year, at least until the increase in EB-3 China demand generated by the downgrades levels out demand between the two categories.

In October, EB-2 India will likely move to a date in early 2007. Slow movements of a few weeks at a time are anticipated for EB-3 India, which is likely to remain at a 2005 date in October. EB-3 India is the last category in which Charlie still has strong visibility (from the summer 2007 adjustment of status filings) into pre-adjudicated demand. As a result, there has not been any erratic movement in the final action date for this category in recent years.

EB-5 China. Charlie is unable to make any predictions at this time as to where EB-5 China dates will fall in the next fiscal year. He expects to have better information by late September to mid-October.

EB-1. It is expected that EB-1 India and EB-1 China, which both had final action cut-off dates imposed late this fiscal year, will become current again in October.

Family-Based Projections. There are some favorable modifications to last month’s predictions for September in the family-based categories. While Charlie thought the final action dates for F-2A and F-4 might require retrogression in September, an increase in returned unused visa numbers in July, and weak demand for these categories has allowed Charlie to hold these dates for the remainder of the fiscal year.

Charlie reports that the infusion of FY 2017 visa numbers will make EB-4 India and EB-4 Mexico current in October. The final action date for EB-4 El Salvador/ Guatemala/Honduras should move to a date sometime in the summer of 2015, and possibly beyond. Given the high applicant demand in this category for El Salvador relative to the other two countries, it is possible that we will see a more advanced final action date for Guatemala and Honduras.

Consistent with Charlie’s predictions last month, F-4 Worldwide advanced slightly. There were also minor advances in all of the family Worldwide categories, and all of the F-2B categories with the exception of F-2B Mexico. F-3 and F-4 Mexico and F-3 and F-4 Philippines also crept slightly ahead to close out the fiscal year.

The family-based categories tend to advance more consistently as the majority of demand in these categories materializes at consular posts. While we expect movements into the next fiscal year to also remain relatively steady, Charlie will continue to comply with the Administration’s Visa Modernization Proposal by advancing the dates as aggressively as possible in the first three quarters of the fiscal year. While doing so helps to ensure that number use is maximized, it also results in few numbers being available for use in the final quarter, which can cause retrogressions, such as those experienced in the F-4 China and India preference categories.

Filing Dates. As we approach the one year anniversary of the new Visa Bulletin format, Charlie did not have any predictions in terms of “filing dates” as he had not yet met with the CIS Ombudsman’s Office at the time of this discussion.

You may access the September 2016 Visa Bulletin here and the August 2016 Visa Bulletin here.

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Alka Bahal is a Partner and the Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP. Alka is situated in Fox Rothschild’s Roseland, New Jersey office though she practices throughout the United States and at Consulates worldwide. You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.