The co-chairs of Fox Rothschild’s Immigration practice group will be making presentations in many Fox offices on Immigration Compliance: What Employers Need to Know over the next few months. These presentations include an overview of immigration and workplace compliance, including Form I-9 and government inspections.

Topics:

  • Specifics about executing the I-9 under current rules
  • Documenting employees without violating anti-discrimination laws
  • Identifying and reviewing documents for authenticity
  • Auditing and correcting I-9 forms
  • Navigating pitfalls in the process
  • Understanding the penalties for noncompliance, including simple clerical errors
  • Handling the receipt of Social Security no-match letters
  • Best practices for developing a companywide compliance program
  • Live Q&A

These Fox offices are currently scheduled for live programs on the following dates:

Ali Brodie            Los Angeles, California                  January 16, 8:30am

Alka Bahal           Princeton, New Jersey                   January 17, 12:00 noon

Alka Bahal           Morristown, New Jersey               January 25, 12:00 noon

Alka Bahal           New York, New York                       January 29, 8:30am

Ali Brodie            Seattle, Washington                       January 31, 8:30am

Follow the links to the cities above to register for these programs. You may also register by calling 1.877.778.7369 or by emailing the events team at events@foxrothschild.com. Check back here for additional dates and times as more programs are added.

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” (December 17, 2018), reflecting his analysis of current trends and future projections for the various immigrant preference categories.

This month, Charlie’s comments on the first quarter of this fiscal year are limited due to insufficient data, but we look forward to more specific predictions on demand trends and date movement in the coming months.    

Check-in with DOS’s Charlie Oppenheim: December 17, 2018

Final Action Date Movements Largely Track Those of Q1 FY2019

With only modest movement in the employment-based preference categories for the first quarter of the fiscal year, we were hoping to see more dramatic forward movement in some of these categories starting with the January 2019 Visa Bulletin.  However, movement tracks similarly to what we experienced during the first quarter.

As of now, Charlie does not have sufficient data to know whether the current demand trend will continue into January so he is unable to comfortably predict final action date movements in the near term.  While Charlie initially hoped to publish specific projections in the January Bulletin, he now expects to publish projections in the February Visa Bulletin.

Since final action dates in several employment-based categories retrogressed during the final months of FY2018, demand in the first quarter was generally high across these categories, and applications which were unable to be processed for a few months are now coming through the pipeline.  Charlie is concerned that demand data may be artificially high and not reflect the true level of future demand.  He will continue to cautiously monitor demand levels over the next few weeks to assess whether this is a true trend and will make predictions accordingly.

Strike While the Iron is Hot!

It has been fortunate that USCIS has decided to accept adjustment of status applications based on the “Dates for Filing” through the first quarter of FY2019. It is Charlie’s understanding that USCIS will announce as early as Monday, December 17, that it will continue to follow the Dates for Filing for applications in January, but that the Final Action Dates may apply as early as February after that.  (Editor’s note: USCIS’ site on dates of filing appears to continue to track the dates for filing in the January 2019 DATES FOR FILING OF EMPLOYMENT-BASED VISA APPLICATIONS.   Therefore, applicants wishing to take advantage of the more liberal “Dates of Filing” should do so while that window of opportunity is open.  Interestingly, for both EB-3 China and India, the Dates for Filing for surpass those for EB-2.  This creates the potential for downgrade filings which may not be available after January.

Note: As always, as final action date movements can be unpredictable, it is critical for clients to file their applications to adjust status or to respond to the NVC Agent of Choice letter as soon as they are eligible to do so.

Programs that Will Sunset if Not Reauthorized

The EB-4 Religious Workers (SR) and EB-5 categories (I5 and R5) will sunset on December 21, 2018 unless reauthorized by Congress.  They are therefore listed as unavailable for January 2019.  The Visa Bulletin lists the final action dates that will apply to these categories, should they be reauthorized.

National Visa Center Filing Statistics Released

The January Visa Bulletin cites to an NVC report of immigrant visa applicants for both family-based and employment-based preference categories that were registered at the NVC as of November 1, 2018.

You may access the December 2018 Visa Bulletin here and the January 2019 Visa Bulletin here.

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Alka Bahal is a Partner and the Co-Chair of the Immigration Practice of Fox Rothschild LLP, specializing in corporate immigration law and compliance.  Alka is situated in Fox Rothschild’s Morristown, 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.

After the USCIS Director L. Francis Cissna revealed that USCIS will end the practice of denying pending I-131 applications when an applicant travels overseas, USCIS recently updated its website with detailed information. Under the “Special Instructions” section of Form I-131, Applications for Travel Document, it states, “an individual may have an approved advance parole document while a second one is pending. Individual may travel on the approved advance parole document, provided the document is valid for the entire duration of the time abroad.” In this situation, USCIS confirms that the pending Form I-131 will not be considered abandoned. However, USCIS also notes that if the individual files Form I-131, Application for Travel Document, to request an advance parole document and departs the United States without possession of a valid advance parole document for the entire period the individual is abroad, the application of I-131 will still be considered abandoned in this situation.

 

Congressional negotiations on federal spending for the remainder of FY 2019 remain very active. If Congress and the President can’t come to an agreement on a spending bill or continuing resolution by midnight Friday, December 21, 2018, approximately 25 percent of government functions will shut down. Such a shut down will impact immigration services across a number of different government agencies, affecting many of the systems and processes employers rely on to facilitate employment, including the Department of Homeland Security and its immigration-related components (CBP, ICE, USCIS, CIS Ombudsman), the Department of Justice (EOIR), and the Department of State. However, unlike years past, the Department of Labor (DOL) would not be impacted by a government shut down because on September 28, 2018, President Trump signed a minibus appropriations bill funding DOL through the end of September 30, 2019.

We will closely monitor the circumstances and provide updates as they become available.  Individuals with pending applications or who are planning to travel abroad to secure a visa should consult with their Fox Rothschild immigration attorney, prior to travel.

Generally, if the government shuts for budgetary reasons, all but “essential” personnel are furloughed and are not allowed to work.

E-Verify

E-Verify, the Internet-based system that allows employers to determine the eligibility of prospective employees to work in the United States, would be unavailable during a shut down.  Although USCIS has not yet confirmed how cases will be processed post-shut down, in the past, U.S. Department of Homeland Security has suspended E-Verify’s 3-day rule and extended the time for responding to Tentative Non-Confirmations due to a federal shut down.  Federal contractors are recommended to contact their contracting officers to confirm time frames.  Employers must still complete the Form I-9 on a timely basis.

U.S. Citizenship and Immigration Services

As a fee-based agency, U.S. Citizenship and Immigration Services (USCIS) will continue to process applications and petitions for immigration benefits during the shut down; however, processing delays are likely, as a certain portion of the staff will be furloughed.  Note, however, that myE-Verify services would be unavailable, including myE-Verify accounts, Self Check, Self Lock, Case History, and Case Tracker. In the past, USCIS has relaxed its rules and accepted H-1B filings without certified LCAs when DOL operations have been suspended or delayed, however, USCIS has not yet announced whether it will do so during the current shut down.

Department of Labor

The Department of Labor (DOL) will continue normal operations as it has been funded through the end of September 30, 2019 by a minibus appropriations bill.

U.S. Customs and Border Protection

The majority of the Department of Homeland Security’s U.S. Customs and Border Protection’s (CBP’s) employees are expected to stay on the job at the borders and ports of entry.  CBP is deemed an essential function and will likely continue operations at near normal capacity, however, there may be delays or other issues with the adjudication of applications/petitions for visa status that are normally processed at the border.

The Department of State

The Department of State’s Visa and passport operations are fee-funded and should not be impacted, however, consular operations may be limited.  It is expected that U.S. Consulates abroad will continue to process visa applications for a limited period, at which point the State Department will likely cease processing visas and focus solely on diplomatic services and emergency services for American citizens.

The Bureau of Consular Affairs/Passport Office U.S. Passports

The Bureau of Consular Affairs is a fee-based agency; therefore, the Passport Office should continue to operate normally during a shut down.  However, some those passport offices that are located in federal buildings, which themselves may have to shut down, restricting access to those passport offices.

Social Security Administration

While The Social Security Administration (SSA) is expected to remain open during a shut down, in the past, it has stopped acceptance or processing of Social Security Number (SSN) applications during the shut down.  Although an employee may begin work without a social security number, the lack of an SSN could affect the individual’s ability to secure a U.S. driver’s license, open a bank account, secure credit or obtain other benefits.

State Motor Vehicle Agencies

Although driver’s license and state identification cards are issued by state governments, applications by foreign nationals could be delayed during the shut down because local agencies must access a federal database to verify the foreign national’s immigration status before it may issue a driver’s license or identification card.  This database, known as SAVE, could be suspended during a shut down.

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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 Morristown, 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.

President Trump signed a spending bill thereby averting a government shutdown.  The continuing resolution (CR) provides for a short-term extension of the EB-5 Regional Center Program through December 21, 2018.  The CR also extends the E-Verify and Religious Workers programs.   The CR extends the EB-5 Regional Center Program without any changes.  We will be closely following activity on Capitol Hill surrounding EB-5 reform and/or extension efforts.

The Department of Homeland Security (DHS) has issued its long-awaited Notice of Proposed Rulemaking (NPRM) to amend USCIS Regulations relating to cap-subject H-1B petitions filed under both the regular cap and advanced degree exemption. Comments from the public may be submitted to the agency within the next 30 days.  This does not affect cap-exempt H-1B petitions.

 While the proposed changes are subject to possible modification, be aware that the upcoming H-1B cap season will likely be dramatically different from past years.  Highlights of the proposed changes include:

Pre-Registration

Electronic Registration/Pre-Registration
There is a proposed requirement that all cap-subject H-1B employers first register each intended petition electronically with USCIS during a designated period rather than directly filing complete H-1B petition packets with USCIS.  Basic information relating to the petitioner and beneficiary would be required in order to register. An employer would be limited to one registration per beneficiary within the same fiscal year.  USCIS does not plan to impose a registration fee at this time.  Only those employers whose registrations are selected (selected registrants) would be eligible to file cap-subject H-1B petitions during the particular filing period. 

Initial Registration/Random Selection 
An initial, time-limited registration period would be created with a start date at least 14 days prior to April 1st, which is the first date when cap-subject petitions may be filed each year. During the initial registration period USCIS would determine whether sufficient employer registrations were received to reach the regular cap for the new fiscal year.

  • If not, USCIS would notify all registrants that they may file their H-1B cap-subject petitions on behalf of the named beneficiaries and registration would remain open to employers.

    • On a rolling basis, USCIS would continue accepting and selecting electronic registrations until the regular H-1B cap is met, checking registration numbers at the end of each day to determine when there are enough to meet the cap.
    • A random selection may or may not be conducted as determined by USCIS.
  • If so, USCIS would close the registration period and randomly select enough registrants to meet the regular cap.
  • USCIS would notify the selected registrants of the applicable H-1B petition filing period and where to file their H-1B cap-subject petitions.
  • After the selection process is completed for the regular cap, USCIS would determine whether there are enough remaining eligible registrants to meet the 20,000 advanced degree exemption.
    • If not, USCIS would notify all registrants that they may file their H-1B cap-subject petitions on behalf of the named beneficiaries and registration would remain open to employers.
    • USCIS would continue accepting and selecting electronic registrations until the advanced degree exemption is met. A random selection may or may not be conducted as determined by USCIS.
  • If so, USCIS would close the registration period and use a computer-generated random selection process to meet the advanced degree exemption.

Petition Filing for Selected Registrants Only
USCIS would notify the selected registrants when and where they may file their H-1B petitions on behalf of the named beneficiaries.  Only the selected registrants would be permitted to file cap-subject H-1B petitions.

  • An employer that registers to file multiple petitions (each on behalf of a different beneficiary) may be selected to file some of its petitions and not selected for others.

Unselected Registrations
Unselected registrations would remain on reserve for the fiscal year so that if USCIS determined that it must increase the number of registrations to meet the regular cap or advanced degree exemption (presumably in case some of the selected registrants fail to file or their H-1B petitions are denied), then USCIS would select from among the reserve registrants and if needed re-open the registration until the regular and advance degree exemptions are met. 

  • If the registration period is re-opened, USCIS would announce the re-opened registration period start date on its website and accept additional registrations sufficient to meet the new projected amount of registrations needed to meet the regular cap and/or advanced degree exemption. 

 Selection Process

Regular Cap Exhausted First
With the goal of maximizing approvals for the most-skilled or highest-paid petition beneficiaries, the proposed regulations would change the sequence for considering petitions filed for beneficiaries counted against the regular cap or beneficiaries counted under the advanced degree exemption.

  • USCIS would select registrants toward the regular cap first until that cap is reached.  This would include all registrants (that is, those seeking to employ beneficiaries with only bachelor degrees or equivalent as well as those with advanced degrees from US education institutions).
  • Only when the projected number of registrations needed to meet the regular cap is reached would USCIS select registrants who are eligible for the advanced degree exemption.

The proposed rule states that by changing the selection order, USCIS believes that the total number of petitions selected under the regular cap for H-1B beneficiaries possessing a master’s or higher degree from a U.S. institution of higher education will increase overall each fiscal year.

If you wish to discuss your plans for the upcoming H-1B cap season or the proposed rule, please contact your Fox Rothschild attorney or any of the firm’s Immigration Practice Group co-chairs.

Employers large and small need to understand how immigration policy updates and enforcement affect their workplace compliance status. In a time of ramped-up government inspections, lack of preparation or information can leave businesses facing penalties. In fact, common structural changes like mergers, reorganizations, downsizing, relocations and layoffs require employers to reassess documentation for visa-holding employees and potentially notify government agencies. Knowing what to do is half the battle.

Immigration Practice Co-Chairs Alka Bahal, Ali Brodie and Catherine Wadhwani offer a free webinar on November 13, Immigration Compliance: What Employers Need To Know, that focuses on key issues facing employers who hire personnel from all corners of the globe.

•   The immigration landscape in 2018 under the Trump administration

•   Current Form I-9 requirements – avoiding potential pitfalls

•   Organizational tips and best practices

•   Proactive steps to improve your compliance program

•   Audits and inspections by ICE and Department of Homeland Security

The event is open for registration through November 11.

Is your company I-9 compliant or complicit?  With governmental workplace audits and raids on the rise, all businesses must be extra vigilant their I-9s are compliant.  Failure to comply subjects a company to massive fines and possible criminal prosecution.  Our attorneys have tremendous expertise auditing hundreds of thousands of I-9s, conducting training for human resource personnel and management, drafting and implanting I-9 compliance programs, and responding to ICE in the event of an inspection.  ICE inspections are expected to continue—this alert provides employers with practical advice as to maintaining I-9 compliance.

On Saturday, September 22, 2018, the Trump administration announced the upcoming publication of a proposed rule designed to redefine a status known as “public charge” — a category used to determine whether someone seeking permanent resident status is “likely to become primarily dependent on the government for subsistence” for those seeking to immigrate to the United States. This rule was signed by Department of Homeland Security Secretary Kirstjen Nielsen on September 21, 2018 and will open for comment on the date of the official version’s publication in the Federal Register. As per past practices, the comment period should last for 60 days from the date of publication.

The 400 page rule expands greatly on how the government proposes to enforce a determination that a foreign national who is seeking a U.S. immigration benefit is or is likely to become a “Public Charge”, which means an individual who is likely to become primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance or institutionalization for long-term care at government expense. Specifically, under Section 212(a)(4) of the Immigration and Nationality Act, an individual seeking admission to the United States or seeking to adjust status to that of an individual lawfully admitted for permanent residence (green card) is inadmissible if the individual, “at the time of application for admission or adjustment of status, is likely at any time to become a public charge.” Public charge does not apply in naturalization proceedings. If an individual is inadmissible, admission to the United States or adjustment of status is not granted. (Note that there are many exceptions in which a public charge finding would not apply, including but not limited to: Refugees and Asylees, those who are victims of violence (VAWA), Special Immigrant Juveniles (SIJ), Temporary Protected Status (TPS) applicants, Amerasians, Afghan/Iraqi interpreters or U.S. Government employees, Cuban Adjustment Act applicants, NACARA applicants, etc.)

Currently, there is no formal definition of a public charge, but DHS states that “A number of factors must be considered when making a determination that a person is likely to become a public charge”. The proposed new rule would define a public charge as “an alien who receives one or more public benefits.” In the past, people have been at risk of being defined a “public charge” if they took cash welfare — known as Temporary Assistance for Needy Families, or Supplemental Security Income — or federal help paying for long-term care. (Immigrants must be in the country legally for five years before being eligible for TANF or SSI.) The new rule would expand the list to include some health insurance, food and housing programs. Specifically, it would penalize green-card applicants for using Medicaid under certain conditions, using food stamps, Section 8 rental assistance, federal housing vouchers and even enrollment in a Medicare Part D program subsidy.

Specifically, pages 95-96 of the proposed Rule lists the following that would be considered Public Benefits:
· Monetizable benefits: – Any Federal, State, local, or tribal cash assistance for income maintenance, including: Supplemental Security Income (SSI), Temporary Assistance for Needy Families (TANF), and Federal, State or local cash benefit programs for income maintenance (often called “General Assistance” in the State context, but which may exist under other names);
– Benefits that can be monetized in accordance with proposed 8 CFR 212.24:
· Supplemental Nutrition Assistance Program (SNAP, or formerly called “Food Stamps”),
· Public housing defined as Section 8 Housing Choice Voucher Program;
· Section 8 Project-Based Rental Assistance (including Moderate Rehabilitation); and
· Non-cash benefits that cannot be monetized:
– Many Benefits paid for by Medicaid;
– Premium and Cost Sharing Subsidies for Medicare Part D; Benefits provided for institutionalization for long-term care at government expense;
– Subsidized Housing under the Housing Act of 1937.

While public charge is an old idea dating back to the 1990s, the proposed changes are unprecedented. Including programs like Medicaid and food stamps, which are much wider in scope, is a significant change.

In the past, DHS has been forgiving regarding the issuance of immigration benefits if someone had obtained government benefits in the past, so long the individual can prove that he or she is not likely to become a public charge in the future. Under the proposed rule as currently envisioned, it is clear that DHS will not be forgiving now looking at multiple factors including age, health, and past employment history, and, most importantly, receipt of past public benefits.

If implemented as contemplated, DHS will look back within a 36 month period of receipt of government benefits in making their decision on admissibility. Immigrants are encouraged to reexamine any currently public benefits that he/she is currently receiving to determine whether in the upcoming months it will be necessary to drop-out of these public benefit programs once the new public charge rule formally goes into effect.

DHS estimates that 2.5 percent of eligible immigrants would drop out of public benefits programs because of this change — which would tally about $1.5 billion worth of federal money per year, but others expect a much larger impact, including a chilling effect on the use of routine health benefits, particularly for children. In the proposed rule, DHS itself notes that the changes could result in “worse health outcomes,” “increased use of emergency rooms,” “increased prevalence of communicable diseases,” “increased rates of poverty” and other concerns.

Fear of being deemed a public charge and being unable to attain lawful permanent residency, and ultimately U.S. Citizenship will necessarily result in a detriment to low-income immigrant populations and eventually, the separation of families.

This is an early step in the complex federal rule-making process and many things could still change. Once the proposed rule appears in the Federal Register, it opens a 60-day public comment period allowing members of the public to provide input. As such, a final rule is unlikely to take effect before 2019.

We recommend that any immigrant, regardless of immigration status, who has previously received a public assistance benefit in the past for themselves, or immediate family members, should contact an immigration attorney for evaluation of their case.

Fox Rothschild immigration attorney, Kristen Schneck will be speaking on this topic as a panelist on Oct 24th, at the DHS Advisory Committee meeting to be held in Pittsburgh hosted by the Allegheny Dept. of Human Services.

Fox Rothschild will continue to monitor and report on activity regarding these rule making efforts. Over the course of the next few weeks, we will publish a series of blog posts with more details and updated regarding the Public Charge proposed rule. As always, please refer to ImmigrationView for the latest information on topics of importance in the immigration law practice.
For questions or more information about this alert, please contact Mark Harley at (412) 391-2418 or mharley@foxrothschild.com, Alka Bahal at (973) 994-7800 or abahal@foxrothschild.com or any member of the firm’s Immigration Practice

 

 

President Trump signed a bill today, H.R. 6157, with a short-term continuing resolution (CR) preventing a government shutdown and extending certain programs, including the EB-5 Regional Center Program, through December 7, 2018.  Without the CR, the EB-5 Regional Center Program would have expired on September 30, 2018.  The CR extends the EB-5 Regional Center Program without any changes.  The spending bill includes funding for the departments of Defense, Education, Health and Human Services, and Labor.  We continue to closely follow activity on Capitol Hill as efforts towards EB-5 reform continue.