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Pennsylvania DOT adds 8 languages to Driver’s License Test- Eliminates Automatic Use of Translators


On July 22, 2013, Pennsylvania joined New Jersey, New York and many other states by making its written driver’s license  test available in multiple languages. The test will now be available in Arabic, Chinese (Mandarin), French, Hindi, Korean, Russian, Ukrainian, and Vietnamese. Prior to this announcement the test had been available only in English and Spanish.

The test will be continue to be administered on the same knowledge testing equipment as before the change and will have both text and audio. The only exception to this policy is the Hazardous Materials Endorsement Knowledge test, which is only offered in English, as required by State and Federal law.

With the addition of these 8 languages, PennDOT has now disallowed the use of translators during the knowledge test as well as for skills tests and special point exams. However, there is still a mechanism available for those who do not speak one of the 10 languages available:  Applicants seeking licenses should have their translator contact PennDOT at 1-800-932-4600 or  717-412-5300 to request a Knowledge Test Translation Authorization Letter and provide contact information as well as the location where the test will be taken and the required language. The translator will be contacted by PennDOT within 5 business days to discuss the request.

PennDOT indicates that it will continue to monitor the languages  customers are requesting and consider offering additional languages if a need is identified.

While this is a positive move for speakers of the 8 additional languages made available, the new no-translator policy without prior approval will be difficult for PennDOT to administer and will delay the licensing process for many. 

A better solution for PennDOT would be to follow New Jersey’s lead and continue to allow translators in the languages in which the test is not available.  New Jersey permits translators if they meet one of the three criteria listed below:

    • A full-time faculty member of a state-accredited college or university with proper identification from the institution
    • A priest, minister, rabbi or other religious leader of a recognized organization with credentials of association with the organization
    • An individual with an interpreter identification card issued by the U.S. Department of State, Office of Language Services

This solution address the problem of having testing results compromised by the use of biased or faulty interpreters, while still permitting test takers easy access to the agency and the test taking process. PennDOT’s  new process, with its pre-approval requirement, forms to be completed and other bureaucratic processes will greatly hamper the test taking process for foreign speakers in languages not currently available.  

In New Jersey the written test is available in English, Arabic, Chinese, French, Spanish, Korean, Polish, Portuguese, Russian and Japanese. In New York the test is available in Chinese, English, Haitian Creole, Italian, Korean, Russian and Spanish.

 
 
 
 

I-94s Go Electronic: What it means for Travelers and Employers


On May 1, 2013 US Customs and Border Protection (CBP) began the roll-out of its new electronic I-94 system. By the end of May, paper I-94s will be eliminated for all foreign national travelers except those entering at land border ports. This means that any foreign national traveler entering the United States at an air or sea port, will receive only a notation in their passport with their entry date, type of status and the expiration date of their stay. Information will be recorded and retrieved by CBP by scanning the traveler’s passport. Upon exiting the United States, travelers do not need to do anything differently.  Those with a paper I-94s will continue to surrender them  to the commercial carrier or CBP upon departure and those who entered with the new process will have their departure recorded via electronic manifest.

Accessing I-94 Records: To verify the information contained in an electronic Form I-94, travelers should go to http://www.cbp.gov/i94  to review their record. Travelers are also advised to  print out a paper copy of the electronic I-94 information for their records. This record will only be available until the traveler’s next entry into the United States, so it is imperative for foreign nationals who intend on seeking visa extensions or legal permanent residence to maintain accurate and complete electronic I-94 records. Any errors discovered should be immediately reported to nearest CBP  office so that they may be quickly corrected.

Maintaining Accuracy: In the new process, CBP will be relying heavily on the manifest arrival and departure records provided by the airlines to record entry and departure information for foreign national travelers. As a result it is imperative to ensure that  personal information such as name and date of birth is correct and consistent throughout the traveler’s documents and travel record.

 I-9 Completion: The new electronic I-94 will make employment eligibility verification and I-9 form completion more complicated.  The new I-9 form with an issue date of March 8, 2013 should be used for all new-hires and re-verifications. On this form, employees with temporary work authorization are now required to include their passport number and the country of issuance on the form. Employers, when completing Section 2, List A should record passport information and visa information.  The expiration date of the employee’s immigration status should be included in the employer’s tickler system so that reverifciation may be completed on time. Be careful not to confuse the expiration date of the passport or visa with the expiration date of the person’s legal immigration status, as these will rarely be the same.

Phased Implementation: Implementation of  electronic I-94s began on April 30, 2013 and will continue through the end of May 2013.  See the Automated I-94 Rollout web page for implementation information and schedules.  During the first week, the system was implemented at Charlotte (NC) International Airport, Chicago O’Hare International Airport, Houston Bush Intercontinental Airport, Las Vegas International Airport, Miami International Airport and Orlando International Airport.  During the second week, CBP expanded into major air and sea ports by region, including the air sea ports in the New York/Newark, NJ area, Boston and ten other cities. Ports in Los Angeles and San Francisco, among other regions, are being implemented the week of May 14, along with pre-flight clearance stations abroad.  The move to an electronic system is estimated to save the government $15.5 million

For more information on this or any immigration topic, please contact Valentine Brown vbrown@duanemorris.com (215) 979-1840.

 

 

 
 
 
 

May Visa Bulletin: Strong Advancement in EB-3 Everywhere except India


The May Visa Bulletin has been released by the Department of State and things are looking up for those in the EB-3 category with large advancements for Chinese, Mexican, and all other chargeability area nationals.

With regard to the EB-2 category, Chinese nationals will experience over a one month advancement from April 1, 2008 to May 15, 2008; while Indian nationals remain at September 1, 2004, which has not changed since the end of 2012.  In the meantime, Mexican, Filipino, and nationals from all other areas of chargeability remain current in EB-2 through May of 2013. 

All of those in the EB-3 category will see advancements in their priority dates.  Chinese, Mexican, and all other chargeability areas will see large advancements of up to eight months, while Indian nationals will an advancement of 14 days.  Filipino nationals will advance six days.  See the chart below:

 

Employment Based Third Preference

All Chargeability Areas Except those listed 

China- mainland born 

India 

Mexico 

Philippines 

April

07/01/2007

04/22/2007

12/08/2002

07/01/2007

09/08/2006

 

May 

12/01/2007

12/01/2007

 

 

12/22/2002

12/01/2007

09/15/2006

 

 As always, due to the fear of retrogression, its vitally important that I-485 applications be filed in the first month of visa availability.  If your priority date is current or will become current based on the May 2013 visa bulletin, please contact our office.

  For additional information regarding the Visa Bulletin, or any other immigration matters, please contact Valentine at 215-979-1840 or at vbrown@duanemorris.com.

 

 

 
 
 
 

H-1B Lottery is Complete: Applicants have 2/3 Chance for Selection


USCIS announced today at 3:00 PM that it had received approximately 124,000 H-1B Visa applications from April 1 through April 5. Because this number exceeded the 20,000 Masters Cap + 65,000 regular Cap, USCIS initiated the lottery procedure. The fact that the lottery has already been completed is a  welcome improvement over past years when the lottery was not completed until much later in April. Having the lottery done early will allow applicants who did not get selected additional time to evaluate thier immigration options and make other plans, prior to the expiration of their current immigration status.

Chance of Success: Based upon the number of applications received, each applicant will have an unscientific 2/3 chance to obtain an H-1B visa number. The chance calculation is not exact as we do not know how many of the 124,000 applications received were persons with a US Masters degrees.  The Masters degree cap lottery was conducted first, with any losers being added to the regular cap lottery.

H-1B applicants will either receive a USCIS receipt notice, signifying that their applications have been successful and selected in the lottery, or they will receive their complete application, including their filing fee checks back in the mail, with a notice indicating that they did not get picked.

Premium Processing: As previously indicated, in a USCIS statement, the agency will begin premium processing H-1B applications on April 15, 2013, thus the statutory 15 day period will commence on that date.

We should start receiving H-1B receipt notices within the next several days. Normally the rejected applications take much longer to be mailed, because they must be handled by humans in the mailroom, whereas USCIS receipts are all system generated.

If you application has not been selected, it is best to consult with your immigration attorney to determine the best options for addressing this disappointing news. Often other options are available, such as a change of status to a different status, or a STEM OPT extension. This is not however, the case for all applicants and some may be required to return home after their current status expires.

Cap Exempt H-1Bs: It is important to remember that the H-1B cap does not affect all  H-1B applicants. As stated in its press release today:  “USCIS will continue to accept and process petitions that are otherwise exempt from the cap. Petitions filed on behalf of current H-1B workers who have been counted previously against the cap will not be counted towards the congressionally-mandated FY 2014 H-1B cap. Accordingly, USCIS will continue to accept and process petitions filed to:

  • extend the amount of time a current H-1B worker may remain in the U.S.;
  • change the terms of employment for current H-1B workers;
  • allow current H-1B workers to change employers;
  • allow current H-1B workers to work concurrently in a second H-1B position.”

 We are hopeful that with the strong likelihood of immigration reform, this might be our last H-1B cap for a while. Proposals currently under consideration would increase the cap to a maximum of 300,000 depending upon prior H-1B usage, economic and unemployment rate factors. We will keep our fingers crossed. 

If you have any questions regarding this information or other options to the H-1B, please contact Duane Morris. 

 

 

 

 

 
 
 
 

Immigration Reform Could End US Employers’ Compliance Nightmares


By Hector A. Chichoni

For quite some time now, the government has been carrying out immigration enforcement actions which have become a nightmare for employers in the United States. Although this nightmare often results from employers’ lack of compliance; the government shares a great deal of the blame for not providing employers with avenues to resolve those problems. In other words, because of political pressure, the government has created an immigration compliance imbalance by enacting laws which only provide for compliance and enforcement, but no solutions. Moreover, this imbalance can only be resolved by business-smart sweeping changes, which will allow employers to meet their human resource needs, avoid fines, and encourage compliance while protecting the domestic work force.

The following hot-off-the-press immigration information quoted directly from The Washington Post, Associated Press, and Politico, seems to suggest that an immigration reform deal being worked out in Congress will contain proposals that could end the nightmare. If these proposals are enacted, a wide variety of industries, such as hospitality, construction, retail, information technology, agriculture, meatpacking, healthcare, and others will be among the first industries to benefit. In his article, Business, Labor Dispute Holds Up Senate Immigration Proposal (Washington Post, March 22, 2013), David Nakamura states that:

"The AFL-CIO and Chamber of Commerce have agreed to a general framework that would add up to 200,000 new visas per year for a new guest worker program for foreigners. The Chamber has pushed for the workers – who would include maids, waiters, child care workers, home nannies and meat packer — to be paid one step below the median hourly wage scale in their respective industries. But the labor union wants them to be paid one step higher than the median. In the case of a waiter, for example, the difference would be between $8.93 per hour (or $18,600 a year) and $10.61 per hour ($22,100), according to the sources … Randy Johnson, the Chamber’s senior vice president of Labor, Immigration, and Employee Benefits, said in a statement: “Our position has consistently been that the wage issue should be resolved by sticking with current law.  Any temporary worker program would require that an immigrant worker be paid the greater of actual wages being paid to comparable American workers or the prevailing wages.  In some cases, the prevailing wage determination by the U.S. Department of Labor concludes that the employer’s actual wages are less than prevailing. If DOL so determines, then the employer must pay the prevailing wages in order to hire a foreign worker. The requirement to rely on a DOL prevailing wage determination has been in US immigration law since 1990. All the business community is saying is that we want to retain this standard.” Erica Werner, in her article Senate Gang Of 8 Close On Immigration Deal (The Associated Press, March 22, 2013) states that:

"A bipartisan group of senators is nearing agreement on a comprehensive immigration bill that would put illegal immigrants on a 13-year path to citizenship, officials with outside groups keeping up with the talks said Thursday. . . .  The legislation also would install new criteria for border security, allow more high- and low-skilled workers to come to the U.S. and hold businesses to tougher standards on verifying their workers are in the country legally, according to outside groups and lawmakers involved. Together, the measures represent the most sweeping changes in immigration law in decades . . . .   Several officials with outside groups said the biggest remaining areas of disagreement dealt with legal rather than illegal immigration. Top among them was a proposed program to bring in tens of thousands of new immigrants to fill low-skilled jobs. It had been the subject of difficult negotiations between the U.S. Chamber of Commerce and AFL-CIO . . . .  The two sides made substantial progress, including agreeing on a cap of 200,000 visas in the new program, but they continued to disagree on wages for the new workers, according to one official. Senators were mediating offers and counteroffers . . . .  The officials described the status of the discussions on condition of anonymity because they were not authorized to speak publicly about them . . .  The new bill would contemplate a 10-year wait for illegal immigrants already in the U.S. before they could get a green card allowing them permanent residency, senators have said. During that time they would be in a provisional legal status and would not have to return to their home countries as current law requires. Once they got the green card, they would have to wait three years to be able to apply for citizenship, compared to the five-year wait that most green-card holders currently have to abide, outside officials say they've been told. The new three-year wait was first reported by The New York Times. The bill will be lengthy and cover numerous other thorny issues, including mandating a currently voluntary program called E-Verify that helps businesses check their workers' papers, as much as doubling visas that go to high-tech workers, and limiting family-based immigration to put a greater emphasis on skills and employment ties instead."

Lastly, Kate Nocera, Manu Raju, and Anna Palmer in their article Senators Hit Late Snag In Immigration Talks (Politico, March 22, 2013), wrote that:

"Under the bipartisan outline of a deal the Gang of Eight reached in January, businesses would be able to hire lower-skilled immigrant workers when Americans were not available or willing to fill jobs. The outline calls for a program for immigrants to fill farm worker positions when Americans are unavailable. It would create a sliding scale based on the economy’s strength, allowing for more lower-skilled immigrants to enter the country in periods of job growth and for fewer foreign low-skilled workers when the economy is sagging."

The reality is that the U.S. Immigration and Customs Enforcement (ICE) will continue to send a very clear message that, for employers, their worst immigration compliance nightmare continues. Therefore, the present immigration compliance situation in our country is unsustainable. As we move towards a solution, Congress and the President will have to forge an agreement on immigration reform.  A reform with sweeping changes, which will try to cure the immigration compliance imbalance that has been created by previous laws and regulations, seems now within reach.  But the devil does not seem to be so much in the detail, but in the deal.

 
 
 
 

Is OCAHO Gone Soft on Fines?


By Hector A. Chichoni

This is a brief report on some of the most recent, and somewhat surprising, decisions issued by the Office of the Chief Administrative Hearing Officer (“OCAHO”)  in connection with the employer sanction provisions of the Immigration and Nationality Act (“INA”), as amended by the Immigration Reform and Control Act of 1986 (“IRCA”).  Although, these decisions do not completely side with employers; they are surprisingly more benign to employers than past decisions. Some of these decisions appear to auger a somewhat “kinder and gentler” course in the application of employer sanction rules and policies with respect to fines. However, the U.S. Immigration and Customs Enforcement (“ICE”)’ continues to initiate high numbers of investigations and audits, and pursue the highest possible fines and penalties available under statute and regulations, regardless of whether such high fines are warranted.

Here are a few examples of recent OCAHO decisions:

In US v. MEMF LLC d/b/a/ Black & Blue Steak & Crab – Buffalo (“MEMF”) (03/01/2013), a case in which a small company had no prior history of violation, no presence of unauthorized workers found at the time of the investigations, ICE determined that the company, although acting in good faith, nonetheless failed to ensure that each of seventy-three hired employees properly completed “section 1 of Form I-9, or failed itself to properly complete section 2.” True to form, ICE sought highest penalties in the amount of $605 for each violation, or a total of $44,165.

In this particular case, OCAHO reduced the fine, finding that:

"MEMF’s point is well taken that most of the statutory factors weigh in its favor. First, the record does not support the government’s finding that the restaurant is a large employer. The memorandum accompanying the government’s submission states unequivocally that the number of employees was 234, but the record makes clear that MEMF never had that many employees during a single time period. Our case law has previously noted the high turnover inherent in the restaurant industry, and in assessing the number of employees has focused on the number that were actually working at a particular time rather than on the aggregate number of total employees and former employees. Cf. United States v. Pegasus Rest., 10 OCAHO no. 1143, 6-7 (2012) (also considering the Small Business Administration standards for code 5812, noninstitutional “eating and drinking places”);United States v. Snack Attack Deli, Inc., 10 OCAHO no. 1137, 7 (2010)." [Emphasis added.]

In other words, the number of employees who must be considered for purposes of calculating fines is the number of employee that actually worked at a particular time rather than “the aggregate number of total employees and former employees.”

OCAHO reduced the fine, concluding that:

"Apart from seriousness, all the other factors are favorable to the employer. The company is small, it acted in good faith, and it had no unauthorized workers or previous history of noncompliance. MEMF did not argue an inability to pay the amount requested but invoked a different nonstatutory factor of equity, and said that the proposed penalty would create an undue hardship for the business and was disproportionate in light of all the favorable factors. Considering the record as a whole in light of all the facts and circumstances, the penalties will be adjusted as a matter of discretion to $450 each or a total of $32,850." [Emphasis added].

In U.S. v. El Azteca Dunkirk, Inc. (“El Azteca”)(03/13/2013), which also involved a small restaurant with no history of prior violations, ICE sought high penalties of $11,000 for twenty violations (substantive violations of failure to enter proper List A, B, or C documents in section 2 and bad faith), for all past and present employees. Moreover, ICE alleged that illegal conduct on the part of the owners had taken place, but offered no evidence.

In this particular case OCAHO stated that “the facts recited in the memorandum may support an assertion that the violations are serious, but they do not support a finding of bad faith.” Moreover, OCAHO further explained that “the government has the burden of proof to demonstrate the existence of any aggravating factor by a preponderance of the evidence, see United States v. Carter, 7 OCAHO no. 931, 121, 159 (1997), and that burden has not been met with respect to the assertion of bad faith.”

OCAHO concluded that:

"The record here does not support enhancement of the government’s baseline penalties on the bases requested. Were I approaching the question de novo, a somewhat higher penalty would be assessed, but here there is no compelling reason not to give the company the benefit of the government’s original baseline penalty without the enhancements. In view of the minimal fine assessed no payment schedule will be established … El Azteca Dunkirk is liable for twenty violations of 8 U.S.C. § 1324a(b) and is directed to pay penalties in the amount of $2200." [Emphasis added.]

In US v. Seven Elephants Distributing Corp. (“Elephant”)(03/18/2013), a case in which OCAHO found that an employer’s copying of documents and attaching them to a form I-9, cannot “substitute for properly completing section 2 of an I-9 form.” Elephant’s failure to complete section 2 of the I-9s, a substantive violation, was aggravated by the fact that seven unauthorized workers were found in connection with the inspection. Yet, OCAHO reduced the fines in its decision stating that:

"The penalties the government requested are very near the maximum permissible, and appear disproportionate to the current size and status of the employer. As explained in United States v. Pegasus Restaurant., Inc., 10 OCAHO no. 1143, 7 (2012), proportionality is critical to setting penalties, and penalties so close to the maximum should be reserved for more egregious violations than are shown here, United States v. Fowler Equipment Co., 10 OCAHO no. 1169, 6 (2013). They will accordingly be adjusted to an amount closer to the mid-range of permissible penalties. For the most serious violation, that in Count I, the penalty will be assessed at $600. For the seven violations in Count II that involve the I-9s of unauthorized workers, the penalties will be assessed at $500 each. For the remaining twenty-six violations in Count II the penalties will be assessed at $400 each. The total penalty is $14,500." [Emphasis added].

In U.S. v. Siam Thai Sushi restaurant, d/b/a Four Siamese Company, Inc. (“Siam”)(03/27/2013), a case in which ICE found the employer had committed serious violations (made substantive errors) and lacked good faith for failing to complete a Form I-9 for each employee, OCAHO decided that “neither the fact that an employer’s I-9s are missing nor that they are defective is sufficient to show a lack of good faith.” And that:

"[The] penalty should be sufficiently meaningful to accomplish the purpose of deterring future violations, United States v. Jonel, Inc., 8 OCAHO no. 1008, 175, 201 (1998), without being “unduly punitive” in light of the respondent’s resources, United States v. Minaco Fashions, Inc., 3 OCAHO no. 587, 1900, 1909 (1993). Here, while Siam Thai’s violations are considered serious, most of the statutory factors weigh in its favor. Yet ICE’s proposed penalty of $935 per violation is close to the maximum permissible fine. Based on the totality of the circumstances reflected in the record as a whole and, in particular, on the respondent’s circumstances and resources, the proposed penalty will be modified to an amount closer to the mid-range of possibilities. The penalties will be set at $500 each for the eleven I-9s prepared in March and April of 2009, $450 for the I-9 prepared in September of 2009, and $400 each for the six I-9s prepared in June and July of 2010, resulting in a total of $8350." [Emphasis added].

In other words, although the government was seeking high fines for “serious violations” due to  incomplete and missing I-9s forms, because Siam is a “mom and pop” operation, OCAHO reduced the fines in accordance to Siam’s “circumstances and resources” to an “amount closer to the mid-range of possibilities.”

Although many employers may be relieved at the OCAHO’s recent willingness to be measured in its application of fines and penalties, or gone soft on fines, it still remains true that compliance is always better.  ICE can be expected to persist in its effort to extract the highest possible penalties.

 
 
 
 

CBP Publishes Interim Rule on Automation of Form I-94 Arrival/Departure Record - Eliminates Paper Forms, Streamlines Admission Process


U.S. Customs and Border Protection (CBP) today published an interim final rule in the Federal Register to automate Form I-94, Arrival/Departure Record. Effective on April 26, 2013, the rule streamlines the admissions process for individuals lawfully visiting the United States.

Readers of our alerts would recall that CBP had announced on 03/21/2013 that it has submitted to the Federal Register a rule that would automate Form I-94 Arrival/Departure Record to streamline the admissions process for individuals lawfully visiting the United States.

Form I-94 provides international visitors evidence they have been lawfully admitted to the U.S. which is necessary to verify alien registration, immigration status, and employment authorization. The automation means that affected visitors will no longer need to fill out a paper form when arriving to the U.S. by air or sea, improving procedures and reducing costs.

It is expected that once the process is fully implemented, it will facilitate security and travel while saving CBP an estimated $15.5 million a year.

Travelers wanting a hard copy or other evidence of admission will be directed to www.cbp.gov/I94* to print a copy of an I-94 based on the electronically submitted data, including the I-94 number from the form, to provide as necessary to benefits providers or as evidence of lawful admission. (www.cbp.gov/I94 ).

CBP’s technology and automation to the passenger processing environment, records of admission will now be generated using traveler information already transmitted through electronic means. This change should decrease paperwork for both the officer and the traveler.

If you wish to obtain additional information in connection with this post, please contact Hector A. Chichoni at: 305.960.2277 or at hchichoni@duanemorris.com.

This post does not constitute legal advice for, or establish an attorney-client relationship with, the reader. 

 
 
 
 

CBP Announces Automation of Form I-94 Arrival/Departure Record - Eliminates Paper Forms, Streamlines Admission Process


On March 21, 2013, the U.S. Customs and Border Protection (USCBP) announced that it submitted to the Federal Register a rule that will automate Form I-94 Arrival/Departure Record. 

This rule should streamline the admissions process for individuals lawfully entering the U.S.  Many readers of this blog would recall that CBP has already eliminated the use of Form I-94 for visitors entering the U.S. under the Visa Waiver Program (ESTA).

Form I-94 provides foreign national visitors and workers entering the U.S. evidence they have been lawfully admitted to the U.S. which is necessary to verify alien registration, immigration status, and employment authorization.

 The automation means that affected visitors will no longer need to fill out a paper form when arriving to the U.S. by air or sea, improving procedures and reducing costs. The change will go into effect 30 days after the rule is published in the Federal Register. 

 Travelers wanting a hard copy or other evidence of admission (which is important to have for those authorized for employment for purposes of Form I-9) will be directed to ww.cbp.gov/I94* to print a copy of an I-94 based on the electronically submitted data, including the I-94 number from the form, to provide as necessary to benefits providers or as evidence of lawful admission. (www.cbp.gov/I94 ).

As part of CBP’s work to bring advances in technology and automation to the passenger processing environment, records of admission will now be generated using traveler information already transmitted through electronic means. This change should decrease paperwork for both the officer and the traveler and will allow CBP to better optimize its resources.

For more information about this post, pleae contact Hector A. Chichoni at: 305.960.2277 or hachichoni@duanemorris.com.

This post does not constitute legal advice and does not establish an attorneyclient relationship.

 
 
 
 

The H-1B Visa Filing Deadline Is Almost Upon Us


The H-1B cap for Fiscal Year 2014 consists of only 65,000 regular visas, and an additional 20,000 are available to only individuals with advanced degrees from American universities.

 H-1B petitions for the 2013 to 2014 Fiscal Year (FY 13-14) must be received by the U.S. Citizenship and Immigration Services (USCIS) on April 1, 2013.

The April 1, 2013, deadline for the filing for new H-1B visas is approaching, and the time for employers needing to hire foreign nationals in specialty occupations in H-1B status is now. If employers do not act, they will be unable to secure an H-1B (subject to the cap) for the October 1, 2013, start date and will have to wait another year until they are able to file for H-1Bs again.

There are many reasons why employers do not meet the H-1B filing deadline. Sometimes employers simply are not acquainted with immigration law intricacies. For example, an employer may be relying on the fact that a foreign national employee in F-1 status working pursuant to Optional Practical Training (OPT) still has “plenty” of time left on his or her employment authorization. Employment authorization under OPT is only good for 12 months (or 29 months if the foreign national has a STEM degree and his or her employer is using E-Verify). Depending on when the 12 (or 29) months of OPT employment authorization cycle ends, the foreign national employee may have to stop working because he or she is unable to continue being authorized for employment until the next fiscal year’s start date. Thus, it is vital for an employer to file the H-1B visa petition under the fiscal year prior to the OPT’s expiration, even though there still may be plenty of time left of employment authorization.

Furthermore, employers often hire foreign nationals in other nonimmigrant classifications whose status may also be soon expiring and whose only option to continue working for that same employer is to file for a change of status to H-1B, subject to the cap now.

Likewise, last year during the “crazy” H-1B filing season, many applicants did not get an H-1B visa because the petitions were not filed in a timely manner. In addition, many H-1B cases failed to make the deadline because they were not “properly filed.”

Every year, many employers experience economic hardship as a direct result of failing to meet the H-1B cap filing deadline. It is impossible to predict when the new FY 13-14 H-1B cap will be exhausted, but it is anticipated to be exhausted very quickly.

The U.S. Department of State’s April 2013 Visa Bulletin provides additional information on the availability of immigrant numbers during April 2013.

For Further Information If you have any questions about this Alert, please contact any Hector A. Chichoni at hachichoni@duanemorris.com or 305.960.2277.

 

 
 
 
 

Revised Handbook for Employers: Instructions for Completing Form I-9 (M-274)


 

The newly revised Employment Eligibility Verification Form I-9 (Rev. 03/08/13 N) is now available for immediate use by all employers. To help inform employers of the revisions, the United States Citizenship and Immigration Services (USCIS)  is also  offering free educational webinars that highlight the new features and changes made to Form I-9, which includes fields and format, and expanded and clearer instructions. The webinars offered by USCIS also include an overview of how to use Form I-9.

USCIS has also published a revised version of the Handbook for Employers (M-274).  The M-274 contains not only the instructions to complete the newly revised Form I-9, but also answers to substantive and procedural Form I-9 questions. The M-274 is available at USCIS’s I-9 Central website (www.uscis.gov). The updated revision of the M-274 is dated: January 5, 2011. The prior M-274 revision was July 31, 2009.

Director Alejandro Mayorkas has stated that the M-274 has been revised and updated with new information about applicable regulations, including new regulations about electronic storage and retention of Forms I-9; it clarifies how to process an employee with a complicated immigration status; and, it addresses public comments and frequently asked questions.

Some of the many improvements, new sections, and tools included in the M-274 are:

New visual aids for completing Form I-9

Examples of new relevant USCIS documents

Expanded guidance on lawful permanent residents, refugees and asylees, individuals in Temporary Protected Status (TPS), and exchange visitors and foreign students

Expanded guidance on the processing of employees in or porting to H1-B status and H2-A status

Expanded guidance on extensions of stay for employees with temporary employment authorization

The Handbook for Employers now also includes information for employers in the Commonwealth of the Northern Mariana Islands (CNMI) who must verify their employees’ employment authorization on Form I-9 CNMI. It also highlights information about documents CNMI employers may accept from their employees.

If you need assistance with Form I-9, we would be happy to assist you.  Please contact Hector A. Chichoni at hachichoni@duanemorris.com or at 305.960.2277. 

This blog should not be construed as legal advice, as pertaining to specific factual situations or as establishing an atttorney-client relationship. 

 
 
 
 

USCIS Announces The Release of a New and Revised Form I-9


On Thursday, March 7, 2013, the U.S. Citizenship and Immigration Services (USCIS) announced that it will release today a new and revised version of Form I-9.  After several rounds of revisions and changes, the new and revised Form I-9 will be made officially available through the Federal Register. As required by the Immigration Reform and Control Act of 1986 (IRCA), the Form I-9 is used by employers to verify a new employee’s identity and to establish and employee’s employment eligibility in the United States. According to USCIS, the new Form I-9 contains formatting changes and the inclusion of additional data fields, including employee’s foreign passport information, telephone number, and email address.  Moreover, the new Form I-9 has been expanded from one to two pages and the form’s instructions provide additional clarifications. USCIS’s notice states that:  

 Employers must use the new Form I-9 immediately; however, USCIS recognizes that some employers may need additional time in order to make necessary updates to their business processes to allow for use of the new Form I-9. USCIS recognizes that modifications to electronic systems may be particularly necessary for employers utilizing electronic Forms I-9.  For these reasons, USCIS is providing employers 60-days to make necessary changes. USCIS believes that the 60-day period will help alleviate the burden that immediate implementation of the newly revised Form I-9 would have imposed on employers. Note that employers do not need to complete the new Form I-9 “(Rev. 03/08/13)N” for current employees for whom there is already a properly completed Form I-9 on file, unless re-verification applies. Unnecessary verification may violate the anti-discrimination provision at section 274B of the INA, 8 U.S.C. 1324b, which is enforced by DOJ’s Office of Special Counsel for Immigration Related Unfair Employment.

USCIS’s notice also contains the dates that employers should begin using the newly revised Form I-9 and announces the date that employers can no longer use prior versions of the form.  The new Form I-9 with a revision date of “(Rev. 03/08/13) N” is available for use beginning from the date of its publication in the Federal Register.  Prior versions of Form I-9 “(Rev. 08/07/09) Y” and “(Rev. 02/02/2009) N” can no longer be used by the public effective 60 days from the publication date of the new Form I-9 in the Federal Register. Failure to use the new and revised Form I-9 can result in the imposition of penalties under the Immigration and Nationality Act.  U.S. Immigration Customs Enforcement will be responsible for enforcing compliance with the new and revised Form I-9.

Employers can obtain the new Form I-9 by calling USCIS’ National Customer Service Center at 1-800-375-5283 or by visiting USCIS’s I-9 Central web page at www.uscis.gov/I-9Central. A Spanish-language version of the new Form I-9 is available at www.uscis.gov for use in Puerto Rico only.

If you need assistance with Form I-9, we would be happy to assist you.  Please contact Hector A. Chichoni at hachichoni@duanemorris.com or at 305.960.2277. 

This blog should not be construed as legal advice, as pertaining to specific factual situations or as establishing an attorney-client relationship.

 

 

 

 
 
 
 

Customs and Border Protection (CBP) Responds to Sequestration Questions


Customs and Border Protection (CBP) The Department of Homeland Security agency resposible for the movement of people and goods across international boundaries has published several statements on how sequestration will affect its operations:

Travel and Trade:

 In a FAQ issued on Saturday, CBP indicates that "under the automatic sequestration cuts, we anticipate reducing agency-wide expenditures significantly during the remainder of Fiscal Year 2013. CBP Field Operations, the office responsible for securing the U.S. border at ports of entry, will experience budget cuts equating to the loss of several thousand CBP officers at these ports of entry, in addition to significant cuts to operating budgets and programs. Stakeholders in the travel and trade industries will see service impacts and CBP employees will be furloughed. Additional information regarding priorities during sequestration, reduced hours of operation at ports and increased airport wait times of up to 50% or more are provided.

Imports:

CBP has issued a FAQ on how the sequestration cuts may affect the movement of imports into the United States.  The agency states that "at the national level, OFO and the Office of International Trade (OT) Headquarters staff will participate in weekly telephone conference calls, coordinated through the Office of Trade Relations, with cargo industry stakeholders to address the impacts of the sequester on imported shipments. As part of the weekly conference call, OFO, OT, and industry stakeholders will discuss modifications to this document to address impacts caused by sequestration." It also answers such questions on port monitors, responses to trade disruptions and whether any special procedures will be put in place for conveyance diversions during sequestration.

Cargo Priorities:

CBP has also issued a framework for cargo priorities under sequestration. CBP states that the following "roadmap" will be used to reduce the impact of sequestration on business:

  • Improving the automated systems and processes for receiving advance information on cargo and passengers and using that information for targeting terrorism risks or other threats;
  • Modernizing our commercial operations, and working with our trade partners to secure the nation and to keep commerce flowing;
  • Integrating other government agencies into our risk-based strategy and into a seamless process that is both efficient and effective; and
  • Working with other countries to secure the global trade lanes and with the World Customs Organization to promote a global and more unified approach to supply chain security

DM Immigration Insider will provide additional updates on agency changes as a result of sequestration as they become avialable.

 
 
 
 

March Visa Bulletin Shows Modest Movement in EB-3


The  March Visa Bulletin has been released by the Department of State. Chinese nationals in the EB-2 category will experience a one month advancement from January 15, 2008 to February 15, 2008; while Indian nationals remain at September 1, 2004, which has not changed since the end of 2012. In the meantime, Mexican, Filipino, and nationals from all other areas of chargeability remain current through March 2013.

All of those in the EB-3 category will see advancements in their priority dates. China, Mexico, and all other chargeability areas will see a two month advancement, while India will advance only eight days. Filipino nationals will advance ten days.

As always, due to the fear of retrogression, its vitally important that I-485 applications be filed in the first month of visa availability. If your priority date is current or will become current based on the March 2013 visa bulletin, please contact our office.

For additional information regarding the Visa Bulletin, or any other immigration matters, please contact Valentine at 215-979-1840 or at vbrown@duanemorris.com.

 
 
 
 

Immigration Innovation Act: Beneficial Changes for EB Immigrants


On January 29, 2013, Senator Orrin Hatch (R-UT) introduced Senate Bill 169, The Immigration Innovation Act of 2012 (“I-Squared Act”). The I-Squared Act includes a number of proposals that if enacted will benefit U.S. businesses and highly-educated and skilled foreign workers by easing many of the most common juggernauts in the current system, including the H-1B cap and backlogs in the EB-2 and EB-3 preferences.

The most fundamental change the I-Squared Act proposes would be to the H-1B category, which is available to those seeking employment in professional positions. The I-Squared Act proposes to increase the H-1B cap from 65,000 to 115,000, with the further option of an increase to 300,000 visas annually. The I-Squared Act would also make individuals with a Master’s degree or higher from an U.S. university completely exempt from the H-1B cap. Additionally, dependents of H-1B workers, those currently holding H-4 status, would be eligible to apply for work authorization.

The I-Squared Act proposes changes to the employment based preference system which could reduce, if not eliminate persistent, unbearably long backlogs. The bill proposes exempting the following individuals from the 180,000 numerical cap on employment-based green cards:

  1. Dependents of employment-based immigrant visa recipients;
  2. Advanced degree holders (from US universities) in the sciences, technology, engineering, or mathematics (STEM) fields;
  3. Persons with extraordinary ability;
  4. Outstanding professors and researchers

Removing these individuals from the quotas would reduce the waiting period for those still subject to limits. Lastly, the Act would abolish the annual per-country limits for employment-based green cards; thus creating an even playing field for all individuals despite their country of origin. This would be especially beneficial for natives of India, China, Mexico, and the Philippines, who must wait years for green cards due to the stong demand from their fellow nationals.

There is no indication yet on how these proposals will fit into the big picture for immigration reform. But whether it is a stand alone bill or included in a comprehensive bill, it will be good news for employers and immigrants who are stuck in our broken system.

For more information or any other immigration matters, please contact Valentine at 215-979-1840 or at vbrown@duanemorris.com.

 
 
 
 

Senate Gang of 8 Offers Bipartisan Framework for Comprehensive Immigration Reform


Democratic Senators Schumer (D-NY), Durbin (D-IL), Menendez(D-NJ), Bennet (D-CO) and Republican Senators Graham (R-SC), Rubio (R-FL), Flake (R-AZ) and McCain (R-AZ), also known as the "Gang of 8" have released a bi-partisan framework for immigration reform.  

The 5 page document, "Bipartisan Framework for Comprehensive Immigration Reform" is an outline of the Senate's requirements for a comprehensive immigration reform bill.  The eight drafters have all agreed to (long, expensive) pathway to citizenship for the 11 million undocumented immigrants living in the country, but only when strict border enforcement measures have been met.

The four basic legislative proposals included in the framework:

A Path to Citizenship:  The legislation will include a tough but fair path to citizenship for unauthorized immigrants currently living in the United States that is contingent upon securing our borders and tracking whether legal immigrants have left the country when required. This proposal requires "registration" of all undocumented immigrants and the approval of some kind of probationary legal status, while waiting for the enforcement goals to be met. During this time, immigrants will have to pay fines, back taxes and will be given work authorization. A Commission of Southwest border leaders will be appointed to monitor and recommend when security measures have been sufficiently met that the second phase of legalization can begin. The second phase requires that all undocumented immigrants go to the back of the line before being approved for legal permanent residence. It is unclear what this will mean in practice as the line for a green card is more than 10 years long in some categories.

Reforming our Current Legal Immigration System: Changes to our current system will reduce backlogs in the family and employment based preferences, and should attract highly skilled foreign nationals to the United States. Foreign  students who achieve an advanced degree in a STEM field will be awarded a green card.  In addition the new system should be rational, and de-incentivize illegal immigration, by streamlining and speeding application processes. 

Employment Verification: "Create an effective employment verification system that will prevent identity theft and end the hiring of future unauthorized workers.  Establish an improved process for admitting future workers to serve our nation's workforce needs, while simultaneously protecting all workers." It is notable that there is no mention of E-Verify, but the proposal is clearly heading toward nationwide-electronic verification.  E-Verify cannot detect identity theft and that is a major complaint of detractors.

New Temporary Work Visa Program & Labor Protections: The proposal will provide businesses with the ability to hire lower-skilled workers in a timely manner after demonstrating that there were no American workers available for the position. This proposal sound much like our current H-2B program, which is onerous and expensive for employers. Hopefully the legislation will propose something new, rather than a rehash of existing policies.

The Senators are participating in a press conference this afternoon to lay out more of the details. Reports are circulating that this is the first time Senator McCain has signed on to an Obama administration-led initiative since 2009. Prospects for a similar broad proposal in the House are not as sunny, but I am an eternal optimist. Stay tuned and DM Immigration Insider will keep you posted.

 
 
 
 
 

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The opinions expressed on this blog are those of the author and are not to be construed as legal advice.