Alka Bahal

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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.

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.

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

 

 

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 13, 2018), reflecting his analysis of current trends and future projections for the various immigrant preference categories.

This month, Charlie comments on the close of this fiscal year and the recovery in certain categories at the start of FY2019, provides his predictions on final action date movement in the coming months, and answers questions from the public.

Check-in with DOS’s Charlie Oppenheim: September 13, 2018

On September 14, 2018, USCIS announced that it would accept adjustment of status applications based on the “Dates for Filing” chart for both family-based and employment-based cases.  Since Charlie sets the “Dates for Filing” based on where he expects the final action dates will be in the next 8 to 12 months, these charts are also helpful in understanding how far the final action dates are likely to advance in the near term.

Family-Based Preference Categories

Since most family-based cases are processed at Embassies/Consulates, Charlie’s visibility into family-based demand is good, which avoids dramatic fluctuations in the final action dates.  These categories are expected to advance modestly or hold steady, except Mexico.  Given lower than anticipated demand members may see the Mexico family-based categories move more rapidly than normal.  Demand from China continues to be relatively low, whereas India demand has rebounded over the past year.

Employment-Based Preference Categories

EB-1:  For October, EB-1 Worldwide along with all other countries except China and India, advances ten months to April 1, 2017.  Charlie remains pessimistic that the EB-1 Worldwide final action date will advance before the end of this calendar year.  He forecloses the possibility of advancement in November and is pessimistic that there will be advancement in December but notes that there will be some forward movement in all EB-1 categories after the beginning of 2019.  Demand is sufficiently high that Charlie is unable to predict at this time whether this category will become current in FY 2019.  Charlie does not expect any advancement of EB-1 China or EB-1 India before January 2019 and believes it is “almost guaranteed” that both categories will be subject to a final action date through the fiscal year.

EB-2 and EB-3 Worldwide:  As previously predicted, EB-2 Worldwide and EB-3 Worldwide will return to current in October and will remain current for the foreseeable future and well into the next calendar year.  Charlie has not seen expected growth in EB-3 Worldwide.

EB-2 China and EB-3 China:  While EB-2 China recovers to April 1, 2015 in October, it will not surpass the EB-3 China final action date, which advances to June 1, 2015.  It is unclear whether EB-3 China’s two-month lead will be significant enough to spur downgrade demand.  If there are not as many downgrades, EB-3 China could advance more rapidly than expected.  Charlie has no visibility into EB-3 China “downgrade” demand until a visa number is requested, so this category may move modestly to avoid future retrogression.

EB-2 India and EB-3 India:  EB-2 India advances to March 26, 2009 in October, with EB-3 India trailing behind by less than three months at January 1, 2009.  Based on the dates for filing and depending on the level of demand in each of these categories, it is possible that EB-3 India may surpass EB-2 India at some point this fiscal year.

EB-3 Philippines and Other Workers Philippines:  As predicted, EB-3 Philippines and Other Workers Philippines will recover to June 1, 2017 in October. Nnly minimal movement during the first quarter of the fiscal year is expected.

EB-4:  As predicted, EB-4 Mexico will fully recover in October to its June Visa Bulletin date of October 22, 2016, EB-4 India will return to current, and EB-4 El Salvador, Guatemala and Honduras remain at February 15, 2016 in October.  There will be forward movement in EB-4 El Salvador, Guatemala and Honduras this fiscal year, but anything more than minimal movement is unlikely in Q1.  Due to visibility into preadjudicated cases filed prior to the imposition of a final action date in May 2016, as well as potential future demand by cases with old priority dates, Charlie is moving this category conservatively to avoid a future retrogression.

EB-4 India:  It is expected that this category will be subject to a final action date again, but that will not likely happen until late in the fiscal year.

EB-5 Non-Regional Center:  for China and Vietnam will advance to August 15, 2014 and January 1, 2016 respectively in October.

EB-5 China:  Demand remains high, so members should not expect much movement in this category throughout the fiscal year.  EB-5 Vietnam, in contrast, is likely to advance modestly early in the fiscal year until it reaches its per country limit, at which time, its final action date will track EB-5 China.

Expiration of Two Visa Categories

Unless reauthorized by Congress, the EB-4 Religious Worker and EB-5 (I5 and R5) categories will be unavailable after September 30, 2018.  If Congress reauthorizes these programs, the EB-4 Religious Worker category will become current in October, except EB-4 El Salvador, Guatemala and Honduras which will have a final action date of February 15, 2016 and EB-4 Mexico, which will have an October 22, 2016 final action date.  If reauthorized, EB-5 Worldwide (I5 and R5) would become current, with EB-5 China (I5 and R5) subject to an August 15, 2014 final action date, and EB-5 Vietnam (I5 and R5) subject to a January 1, 2016 final action date.

QUESTION:  USCIS data from July 2018 indicates that there are only 473 pending applications for EB-3 India.  USCIS notes that this is for service centers only and doesn’t include field offices.  The number of EB-3 China cases is 161.  Do these numbers track to the information DOS is receiving from USCIS about pending demand?

CHARLIE’S RESPONSE: As these are USCIS statistics, I would suggest that you pose your question to USCIS.  However, I am told that the Service Centers have dramatically reduced their inventories as pending adjustment cases which were filed years ago have become current and were approved, and new cases are now being sent to field offices via the National Benefits Center (NBC).  If I were to speculate, the numbers posted likely represent only India and China cases that were pending and subject to a priority backlog on March 6, 2017, when USCIS started sending new cases to the NBC.  Therefore, it should be expected that the number of cases at the NBC and the field offices far exceeds those which remain at the Service Centers.

QUESTION: Can you explain why sometimes final action dates are the same for different countries in a certain preference category and why sometimes they are different?

CHARLIE’S RESPONSE: Whenever the total number of documentarily qualified applicants for an individual country or category exceeds the supply of numbers available for a particular month, it is considered to be “oversubscribed” and a final action date is established.  The final action date is the priority date of the first documentarily qualified applicant who cannot be accommodated for a visa number.  For example, if the monthly allocation target for the China and India EB-2 preference categories were 250, and each country had demand in excess of 500, a final action date would be established so that only 250 numbers would be allocated.  In this case, the final action date for each country would be the priority date of the 251st applicant.  That date could be widely different based on EB-2 demand patterns for each country.

QUESTION: Using the EB-1 patterns we have observed over the past couple of years as an example, can you explain how “otherwise unused” numbers are allocated?

CHARLIE’S RESPONSE: Section 202(e) of the INA says that if there are “otherwise unused” employment numbers under the respective Worldwide preference limit, such numbers may be made available to those countries which have already reached the per-country preference limit.  In the past, EB-1 has been listed as “Current” for all countries for at least the first six months of each fiscal year because the worldwide level of demand at that time was insufficient to use all numbers available under the annual limit.  However, the “otherwise unused” numbers situation is constantly monitored, and subsequent changes in demand patterns can negatively impact the availability of future numbers to countries which had previously benefitted from their use.  Such increases in EB-1 Worldwide demand later in the year have eventually required the imposition of a final action date for EB-1 China and India to allow other countries that had not yet reached the per-country limit to remain “Current.”  Any remaining unused numbers are then made available strictly in priority date order without regard to country, and a single date would be applied.  That has been the case in past years when it has been necessary to apply a final action date to govern the use of a more limited amount of unused numbers (or none) available for use by China and India EB-1 applicants.  This is the reason why the October China and India EB-1 date is earlier than the Worldwide date, with both being required to govern number use within the overall annual limit.

You may access the September 2018 Visa Bulletin here and the October 2018 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.http://www.foxrothschild.com/alka-bahal/

The U.S. Citizenship and Immigration Services (USCIS) announced that the filing fee for premium processing will increase from $1,225 to $1,410, beginning on October 1, 2018.  According to USCIS, this 15% increase in price is in step with inflation since DHS last adjusted premium processing rates in 2010 and will allow USCIS to more effectively adjudicate petitions and maintain service to petitioners.  The new rule was published in the Federal Register on August 31, 2018.

Premium processing is an optional expediting service that is currently authorized for certain employment-based petitioners filing Forms I-129 or I-140.  The premium processing fee is paid in addition to the base filing fee and any other applicable fees, which cannot be waived.  Under premium processing, USCIS has 15 days to process these specific types of employment-based immigration benefit requests.  Without premium processing, adjudication can take upwards of 4 months.

“Because premium processing fees have not been adjusted since 2010, our ability to improve the adjudications and service processes for all petitioners has been hindered as we’ve experienced significantly higher demand for immigration benefits.  Ultimately, adjusting the premium processing fee will allow us to continue making necessary investments in staff and technology to administer various immigration benefit requests more effectively and efficiently,” said Chief Financial Officer Joseph Moore.  “USCIS will continue adjudicating all petitions on a case-by-case basis to determine if they meet all standards required under applicable law, policies, and regulations.”

Premium processing is available for certain employment based nonimmigrant visas, including H-1Bs, L-1s, O-1s and Ps, as well as some employment base permanent residency categories.  Earlier this year, USCIS suspended premium processing for all H-1B petitions subject to the annual quota on H-1 visas (i.e. “cap cases”).  This suspension was initially slated to end on September 10, 2018, but USCIS has now pushed that date back to February 19, 2019.  Additionally, USCIS also announced that, as of September 11, 2018, it will expand the suspension to include H-1B petitions seeking to amend existing H-1B status, to request a change of employer, or to change status.  Only H-1B petitions seeking an extension of status (with no change in circumstances or employer) or H-1B petitions filed under the H-1B Cap Exemption will be able to file under premium processing beginning September 10, 2018.  In the absence of premium processing, USCIS may take four to six months (or longer) to complete the processing of an H-1B petition.

Employers and employees alike will have to take into consideration the impact of processing times and increased fees when planning to file nonimmigrant and immigrant visa petitions.  The unavailability of premium processing can impact the timing of employment and prolong restrictions on international travel.

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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.

Businesswomen filling paperwork for agreement
Copyright: bignai / 123RF Stock Photo

More than 5,200 businesses around the country have been served with I-9 inspection notices since January in a two-phase nationwide operation conducted by U.S. Immigration and Customs Enforcement’s (ICE) Homeland Security Investigations (HSI) in what appears to be the largest I-9 inspection action ICE has undertaken to date.

This latest round of workplace audits on employers clearly indicates that the I-9 inspection is now a top priority in U.S. immigration enforcement policy that targets employers rather than employees via the workplace raids of the past.

This alert outlines the current processes in place for I-9 inspections and includes practical advice on how to respond to an audit as well as steps to take now to ensure that your business is in compliance.

Notice of Inspection – NOI

The inspection process begins with HSI serving a Notice of Inspection (NOI) on an employer, which informs them that HSI will perform a comprehensive review of (i.e. audit) their hiring records (specifically Form I-9s and associated documents) to determine compliance with employment eligibility verification laws.  Upon receiving an NOI, an employer is required to produce the company’s I-9s within three business days, after which ICE will conduct an inspection for compliance.

In Phase I of the current operation, between Jan. 29 and March 30, 2018, HSI served 2,540 NOIs and made 61 arrests.  During Phase II, between July 16 and 20, HSI served 2,738 NOIs and made 32 arrests.

ICE is the federal agency responsible for upholding the Immigration Reform and Control Act (IRCA), a law designed to protect jobs for U.S. citizens and others who are lawfully employed, eliminate unfair competitive advantages for companies that hire an illegal workforce, and strengthen public safety and national security.

Under IRCA, employers are required to verify the identity and employment eligibility of all individuals they hire, and to document that information using the Employment Eligibility Verification Form I-9. ICE/HSI uses the I-9 inspection program to promote compliance with the law, part of a comprehensive strategy to address and deter illegal employment. Inspections are one of the most powerful tools the federal government uses to ensure that businesses are complying with U.S. employment laws.

A ‘Culture of Compliance’

Derek N. Benner, Acting Executive Associate Director for HIS, stated: “Employers need to understand that the integrity of their employment records is just as important to the federal government as the integrity of their tax files and banking records.  All industries, regardless of size, location and type are expected to comply with the law.”

Benner contends that worksite enforcement “protects jobs for U.S. citizens and others who are lawfully employed, eliminates unfair competitive advantages for companies that hire an illegal workforce, and strengthen public safety and national security.”

HSI increased the number of I-9 audits, Benner said, to “create a culture of compliance among employers.”

All employers in the United States are required to have a Form I-9 on file for all employees to verify their identity and authorization to work in the United States. The law requires that employers execute this process upon hire of an employee, review and record the individual’s original, valid identity documents and determine whether those documents reasonably appear to be genuine and related to the individual.

HSI follows a detailed process when conducting a Form I-9 inspection.  Guidance on that process and the associated civil fine structure can be found here.  This guidance outlines ICE’s process for a Form I-9 inspection, the penalties for various related violations, and the factors ICE considers during the course of the inspection and in determining a fine, including mitigating or enhancing factors involved.

Civil Fines and Potential Prosecution

Employers determined not to be in compliance with the law face the likelihood of civil fines and could ultimately face criminal prosecution if it is determined that they were knowingly violating the law. All workers encountered during these investigations who are unauthorized to remain in the United States are subject to administrative arrest and removal from the country.

Failure to follow the law can result in criminal and civil penalties.  In FY17, businesses were ordered to pay $97.6 million in judicial forfeitures, fines, and restitution, and $7.8 million in civil fines, including one company whose financial penalties represented the largest payment ever levied in an immigration case.  (See our earlier post on this topic.)

Monetary penalties for substantive and uncorrected technical violations, errors that the layperson often view as ‘paperwork errors’ range from $220 to $2,200 per violation and penalties for knowingly hiring and continuing to employ violations range from $3,548 to $19,242 per violation. In determining penalty amounts, ICE imposes a higher fine rate on employers with a higher percentage of I-9s with violations and then considers five factors to either enhance or mitigate fine amounts: the size of the business, good faith effort to comply, seriousness of violation, whether the violation involved unauthorized workers and history of previous violations.

What To Do if the Government Wants to Inspect Your I-9s:

  • Call your immigration attorney immediately. The time period for responding to ICE is short and it is critical that documents submitted in response to the notice be well-organized and presented in the best light possible.
  • DO NOT submit any documents to ICE without seeking the advice of counsel.
  • DO NOT consent to an immediate inspection if agents show up without warning. You have up to three days to respond/submit documents.
  • DO NOT submit more than what is asked for (such as expired I-9s for former employees, payroll records listing employees not subject to the inspection, etc.)
  • DO NOT let agents take original records without permitting you to take copies
  • DO NOT allow officers to talk with any employees or company officers before you call your attorney.
  • If Department of Labor agents show up for an inspection without notice, decline the inspection. They will notify USCIS/ICE.
  • DO NOT panic and try to correct or otherwise repair your records without the assistance of qualified immigration counsel. Corrections made or new I-9s prepared after the issuance of an NOI are not accepted by ICE, and may create the appearance of bad faith.

The Tools of Protection

Employers that have not yet received an NOI should take immediate steps to protect against possible future violations.

Two key tools in ensuring IRCA compliance are private internal audits and specialized training. Employers should conduct private internal audits with the assistance of a qualified immigration professional to review I-9 documents and correct any errors in advance of an inspection. This type of periodic audit can not only uncover problems in time to be corrected before the imposition of sanctions, but can also demonstrate the employer’s good faith efforts to comply with IRCA’s verification requirements, a mitigating factor in ICE’s penalty determination process. Because private I-9 audits can be performed over time nd at the employer’s convenience, it is less arduous for a company than the three-day audit period forced by an inspection notice.

Many problems with I-9s stem from simple misunderstandings of the procedures and requirements. This can easily be rectified by having a qualified attorney train your personnel about proper procedures. Because the work environment and employee culture changes with some frequency, along with periodic legal changes impacting the I-9 process, refresher training courses for already “expert” personnel are also recommended.

Although employers can select from a variety of service providers to meet their I-9 audit and training needs, legal professionals with experience with immigration, employment and labor law are better equipped to handle IRCA compliance issues, including audits, training and formal inspections. Fox Rothschild provides companies of all sizes with IRCA compliance training seminars and confidential, internal I-9 audits.

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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.

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” (April 13, 2018), reflecting his analysis of current trends and future projections for the various immigrant preference categories.

This month, Charlie examines the dramatic final action dates movement in the April Visa Bulletin, which hold steady for May, and provides his predictions on final action date movement in the coming months.

Check-in with DOS’s Charlie Oppenheim: June 13, 2017

Given that USCIS takes roughly five months to process I-485 applications to completion, the dramatic final action date advancements in the April Visa Bulletin were not completely unexpected as the objective is to spur more applications in May and June in order to ensure that the full visa numbers will be used by the end of the fiscal year on September 30, 2018.  Since it is unlikely that most May I-485 filings will be processed to completion before the end of the fiscal year, many employment-based preference categories hold their April final action dates in the May Visa Bulletin, with only modest advancements in a few select categories.  These advancements were made in an abundance of caution, based on data Charlie received from USCIS regarding the number of pending cases.

Categories in which final action dates will remain the same include:

  • EB-1 China and India;
  • EB-2 India;
  • EB-3 China and Philippines;
  • EB-4 El Salvador, Guatemala and Honduras, and
  • EB-5 China.

There are only five categories with modest advancements-

  • EB-2 China will move forward one month to September 1, 2014;
  • EB-3 India will advance three months to May 1, 2008;
  • EB-3 Other Workers China and India will advance one and three months respectively, to May 1, 2007 and May 1, 2008; and
  • EB-4 Mexico will advance roughly five weeks to October 22, 2016.

As Charlie predicted, EB-5 Vietnam became oversubscribed, due to high demand, and will assume a final action date of July 22, 2014 in May, tracking to EB-5 China.

 Most family-based preference petitions are processed through the National Visa Center and U.S. consulates abroad, which accept applications based on the “filing date” rather than the final action date.  As a result, Charlie has excellent visibility into demand in these categories, enabling a slow and steady progression of the final action dates with much less volatility than is seen in the employment-based preference categories.  Final action dates advance modestly in May for all family-based preference categories, except FB-1 China, India and Worldwide, which hold at the April dates. T here is no retrogression in any of the family-based preference categories in May.

What can be expected in the coming months?

It is likely that most employment-based final action dates will hold at their May dates for the month of June with some changes possible in July.  What occurs is entirely dependent on demand that may materialize, and continuing consultations with USCIS.  The wildcard this year that could cause unanticipated fluctuations in the final action dates is the pace of USCIS field office processing of I-485s.

With regard to EB-1 China and India, it is too early to know whether the high worldwide EB-1 demand seen over the past few months is the result of a processing glut or sustained demand.  It is likely that EB-1 China and India will hold for at least another month, but Charlie will continue to watch demand to determine whether any advancements may be possible.

While Charlie is hopeful that the advancements made in April to EB-2 China will be sufficient to exhaust the visa numbers in this category, he continues to monitor China EB-3 downgrades and is likely to hold the final action dates in these categories for at least another month.  However, there still remains the possibility of some advancement later this fiscal year if the anticipated demand does not materialize.

As noted above, EB-4 Mexico advanced five weeks in May.  Although Charlie predicted a summer retrogression of this category to track to the final action date of EB-4 El Salvador, Guatemala and Honduras, if demand lightens it may be possible to avoid or perhaps delay retrogression for EB-4 Mexico.

You may access the April 2018 Visa Bulletin here and the May 2018 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.

Congressional negotiations on a federal spending bill remain very active. To avoid a federal government shutdown, a decision or a short-term continuing resolution (CR) to fund the government at current levels must be reached by Friday, January 19, 2017. Until a deal is made or a CR is passed, the threat of a shutdown remains a possibility. Generally, if the government shuts for budgetary reasons, all but “essential” personnel are furloughed and are not allowed to work.

Such a shutdown 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 E-Verify, visa petition processing, labor certifications and other government services that corporations and individuals rely upon.

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.

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 shutdown. Although employers must still complete the Form I-9 on a timely basis, 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. Federal contractors are recommended to contact their contracting officers to confirm time frames.

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 shutdown; however, processing delays are likely, as a certain portion of the staff will be furloughed. Further, delays may occur if adjudication of a petition/application is dependent on support from nonessential government functions that are suspended during the shutdown—for example, if a petition requires a certified Labor Condition Application (LCA) from the Department of Labor (DOL).

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 shutdown.

Department of Labor

The Department of Labor (DOL) will suspend all immigration-related functions during a shutdown, affecting PERM Labor Certifications and Labor Condition Applications. Filed and pending applications will not be processed, nor will filings be accepted during a shutdown.

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, including the adjudication of applications/petitions for TN and L-1 status that are normally processed at the border.

The Department of State

In the past, The Department of State’s (DOS’s) consular operations have remained operational, although services may be limited. It is expected that U.S. Consulates abroad will continue to process visa applications as long as funds are available. This funding is expected to last only for a few days, 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 shutdown. 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 shutdown, it will not accept or processing Social Security Number (SSN) applications. 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 Department of 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 shutdown 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 shutdown.

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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.

Today, January 8, 2018, the Secretary of Homeland Security, Kirstjen M. Nielsen, announced her determination that termination of the Temporary Protected Status (TPS) designation for El Salvador was required pursuant to the Immigration and Nationality Act.  To allow for an orderly transition, she has determined to delay the termination for 18 months, which means the designation will terminate on Sept. 9, 2019.

According to the notification published today, the Department of Homeland Security (DHS) states that the decision to terminate TPS for El Salvador was made after a review of the disaster-related conditions upon which the country’s original designation was based and an assessment of whether those originating conditions continue to exist as required by statute.  The notice explains that the Secretary determined that the original conditions caused by the 2001 earthquakes no longer exist and, therefore, under the applicable statute, the current TPS designation must be terminated.

The Department of Homeland Security conducted extensive outreach to Salvadoran communities throughout the country and made its decision based upon careful consideration of available information, including recommendations received as part of an inter-agency consultation process.  This includes, but is not limited to, community forums on TPS, panel discussions with Salvadoran community organizers, stakeholder teleconferences, regular meetings with TPS beneficiaries, news releases to the Salvadoran community, meetings with Salvadoran government officials, meetings at local churches, and listening sessions.  The Secretary met recently with the El Salvadorian Foreign Minister and Ambassador to the United States, and spoke with President Sánchez Cerén.

Following the 2001 earthquake, Salvadorians were granted Temporary Protected Status (TPS), which has been renewed every 18 months since then.  According to the DHS, many reconstruction projects in El Salvador have now been completed, including the rebuilding or repair of schools, hospitals and homes damaged by the earthquakes, and money has been provided for water and sanitation and to repair earthquake damaged roads and other infrastructure such that that substantial disruption of living conditions caused by the earthquake no longer exist. The DHS statement also noted that the U.S. government has deported more than 39,000 Salvadorans in the past two years, demonstrating, it said, “that the temporary inability of El Salvador to adequately return their nationals after the earthquake has been addressed.”

To allow for an orderly transition, the effective date of the termination of TPS for El Salvador will be delayed 18 months (until September 19, 2019) to provide time for individuals with TPS to arrange for their departure or to seek an alternative lawful immigration status in the United States, if eligible.

Estimates differ for exactly how many immigrants the decision will affect. DHS officials said 262,500 Salvadorans have been granted TPS permits, but activists and experts have put the number of Salvadorans who could lose protections closer to 200,000, noting that official statistics likely include people who are no longer in the program because their immigration status has changed or they have left the United States. Immigrant advocates, Salvadoran government officials and many others had implored Nielsen to extend the TPS designation, citing the country’s horrific gang violence and the potentially destabilizing effect of so many people being sent home. Others urged her to consider the approximately 190,000 U.S.-born children of Salvadoran TPS recipients. Their parents must now decide whether to break up their families, take their entire families back to El Salvador, or stay in the United States and risk deportation.

Senior DHS officials told reporters Monday that the families would have to make that decision, and that the effect on American businesses, among other potential consequences of the TPS decision, were not part of Nielsen’s decision-making process. DHS state that it is up to Congress to determine a remedy.  “Only Congress can legislate a permanent solution addressing the lack of an enduring lawful immigration status of those currently protected by TPS who have lived and worked in the United States for many years,” the DHS statement read. “The 18-month delayed termination will allow Congress time to craft a potential legislative solution.”

Trump administration officials have repeatedly said they considered the TPS program an example of American immigration policy gone awry, noting that when Congress created the designation in 1990, its purpose was to provide “temporary” protection from deportation following a natural disaster, armed conflict or other calamity.

Salvadorans with TPS will be required to re-register for TPS and apply for Employment Authorization Documents in order to legally work in the United States until the termination of El Salvador’s TPS designation becomes effective on Sept. 9, 2019.  The re-registration period is announced through a Federal Register notice.

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.

If Congress cannot resolve FY2018 funding issues by December 8, 2017, it will result in another federal government shutdown. Such a shutdown 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 E-Verify, visa petition processing, labor certifications and other government services that corporations and individuals rely upon.

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.

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 shutdown. Although employers must still complete the Form I-9 on a timely basis, 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. Federal contractors are recommended to contact their contracting officers to confirm time frames.

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 shutdown; however, processing delays are likely, as a certain portion of the staff will be furloughed. Further, delays may occur if adjudication of a petition/application is dependent on support from nonessential government functions that are suspended during the shutdown—for example, if a petition requires a certified Labor Condition Application (LCA) from the Department of Labor (DOL).

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 shutdown.

Department of Labor

The Department of Labor (DOL) will suspend all immigration-related functions during a shutdown, affecting PERM Labor Certifications and Labor Condition Applications. Filed and pending applications will not be processed, nor will filings be accepted during a shutdown.

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, including the adjudication of applications/petitions for TN and L-1 status that are normally processed at the border.

The Department of State

In the past, The Department of State’s (DOS’s) consular operations have remained operational, although services may be limited. It is expected that U.S. Consulates abroad will continue to process visa applications as long as funds are available. This funding is expected to last only for a few days, 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 shutdown. 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 shutdown, it will not accept or processing Social Security Number (SSN) applications. 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 Department of 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 shutdown 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 shutdown.

___________________________

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.