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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.

 
 
 
 

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.

 

 
 
 
 

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.

 
 
 
 

January Visa Bulletin: Steady Advancement for Employment Third Preference


The U.S. Department of State has released the January Visa Bulletin and it looks like 2013 is off to a good start, especially with regard to the EB-3 category which will see small advancements in four of the five areas of chargeability.  In the EB-2 category, Chinese nationals will see a two month advancement from October 22, 2007 to December 8, 2007; while Indian nationals will remain at September 1, 2004.  Mexican, Filipino, and nationals from all other areas of chargeability remain current through January 2013.  Those in the EB-3 category, with the exception of Filipino nationals, will all see advancements in priority dates.  Chinese, Mexican, and all other chargeability areas will see a two month advancement, while Indian nationals will an advancement of seven days.  See the chart below:   

 

Employment Based Third Preference

 

All Chargeability Areas Except those listed

China- mainland born

India

 

Mexico 

Philippines 

December

12/22/2006

07/01/2006

11/01/2002 

12/22/2006

08/15/2006 

 

January

02/01/2007

 

09/22/2006

11/08/2002

02/01/2007

08/15/2006

  

As always, due to the possibility 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 January 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.  

 
 
 
 

Taiwan Added to Visa Waiver Program on November 1


Starting on November 1, 2012 Taiwanese passport holders are eligible to visit the United States without a visa for up to 90 days for business or pleasure.  The Department of Homeland Security (DHS) has recently announced the designation of Taiwan into the Visa Waiver Program (VWP), which will allow for the streamlining of travel for eligible Taiwan passport holders.  The announcement supports President Obama’s Executive Order on travel and tourism, directing federal agencies to expand our nation’s ability to attract and welcome visitors, while maintaining strong security standards.

 In deciding to add Taiwan to the program, the White House stated that  the U.S. and Taiwan have a long-standing economic partnership and it expects that Taiwan’s participation in the VWP will not only stimulate tourism, but enable the two to work together to maintain the highest level of security.  During the VWP designation process, DHS has determined that Taiwan is in compliance with key security and information-sharing requirements, such as enhanced law enforcement and security-related data sharing with the U.S., timely reporting of lost and stolen passports, and the maintenance of high counterterrorism, law enforcement, border control, aviation, and document security standards

 The VWP permits visa-free travel to the United States for eligible travelers visiting the U.S. for a time period of 90 days or less for purposes of business or tourism.  There are currently 36 countries that participate in the VWP and have accounted for 18.3 million visits to the U.S. in fiscal year 2011.  In fiscal year 2011, Taiwan nationals alone have accounted for 243,186 of the visitors to the U.S.   To utilize the VWP, eligible travelers are required to apply for advanced authorization through the Electronic System for Travel Authorization (ESTA). 

 VWP entrants should be careful to follow all program requirements as any infraction will cause the VWP entrant to be barred from using the program in the future. Infractions may include overstaying the allowable time period, failing to provide complete immigration and arrest histories on the ESTA application, or working in the US while on VWP.

  For additional information regarding VWP, visit www.dhs.gov or contact Valentine at 215-979-1840 or at vbrown@duanemorris.com.

 

 

 
 
 
 

Visa Office Predicts Significant Movement for EB-2 India & China; But EB-3 India Stuck in Neutral


Last week,  Charles Oppenheim, the man behind the mysterious Visa Bulletin curtain, also known as Chief of the Visa Control and Reporting Division of the Department of State,  made some significant predictions regarding priority date movement in the coming months.

 The best news came for Indian and Chinese nationals in the EB-2 category. For these individuals, Mr. Oppenheim predicted  that priority dates  would be advanced “significantly” over the next few visa bulletins. He indicated that “significantly” could mean a four month jump to March 1, 2008 for the December bulletin, and that this trend could continue into the January and February 2012 bulletins.  He also predicted that EB-2 for the Rest of the World (ROW) category will remain current throughout 2012.

The worst news came for Indian nationals in the EB-3 category. Mr. Oppenheim  predicted that the category will remain stagnant throughout the year. This is due to the per country limitations placed on each visa category, which for Indians in EB-3 amounts to only 3000 green cards per year. The queue in this category is estimated at 210,000, thus making a 70 year wait, “plausible” according to Oppenheim.  There is  some hope on the horizon for persons in EB-3 due to pending legislation, which would eliminate the per country limitation. See my previous blog on this topic for more information.

Although the news is not as bad for Chinese nationals in EB-3,- a steady advancement of one to three weeks per month for the next several months - it still means long waits for visa numbers for applicants in this category.  The wait may be shorter for those EB-3 applicants in the ROW category, as Oppenheim predicts a 3-4 week movement per month for the next several months. The chart below demonstrates what these advancements might look like over the next seven months. Please note that this is only a prediction, but may help applicants prepare their finances, travel plans and documentation for possible filing of adjustment of status applications.

   Dec '11  Jan '12  Feb '12  Mar '12  Apr '12  May '12  June '12
 EB-2 India & China  03/01/2008  07/01/2008  11/01/2008  11/01/2008  11/01/2008  11/01/2008

Possible Retrogression

 EB-3 China  09/12/2004  10/3/2004  10/24/2004  11/14/2004  12/5/2004  12/26/2004  01/15/2005
 EB-3 India  07/22/2002  07/22/2002  08/01/2002  08/01/2002  08/15/2002  08/15/2002  08/22/2002
 EB-3 ROW 01/22/2006  02/15/2006  03/15/2006  04/07/2006  04/21/2006  05/15/2006  06/04/2006

Number crunching by the Visa Office is a difficult business. As explained by Oppenheim, it is a guessing game for several reasons; (1) it is impossible to identify the exact number of people in the queue because the number of spouses and  minor children  who will be counted against the visa numbers are unknown until they actually apply for a visa number. This has been especially the case in EB-3, as the long waits have increased, applicants’ families have grown. (2) Visa numbers are not actually requested until the end of the green card application process, leaving a 6 month lag time between priority date movement and actual visa allocation by the State Department. This problem is what often leads to the retrogression in the priority dates.

Oppenheim stated that retrogression of EB-2 for India and China is a good possibility in the Summer of 2012, due to the inexact science of visa number usage estimation.   Oppenheim’s  theory is that he will advance the numbers significantly in the early part of the Fiscal Year, develop a queue for visa numbers, hold the dates steady from  March 2012-June 2012,  to allow USCIS to catch up with visa allocation then retrogress in June 2012 or later if necessary.  Even though retrogression is unnerving to those affected by it, it is a better result than having precious visa numbers unused and then lost forever if they are not allocated before 9/30/2012.  Based upon this timeline, it is possible that there could be additional EB-2 movement in September 2012 to ensure that all of the numbers are used before the fiscal year ends on September 30, 2012.

With the possibility of retrogression, it is important to get I-485 applications filed in the first month of visa availability.

Just like Dorothy in the Wizard of Oz, we have been fooled before by the Visa Office, so there is no use in getting too excited by the good news, as it means that certain applicants will be able to file their green card applications earlier than they might have previously thought. But for those Indian nationals in EB-3 who have been debating whether to do the necessary to refile in EB-2, this confirms their worst fears, and suggests that all steps necessary to get in to EB-2  be initiated, the sooner the better.

We are prepared to handle the anticipated significant movement in the EB-2 China and India Categories. Please contact us if we can be of any assistance. vbrown@duanemorris.com; 215 979 1840.

 

 
 
 
 

USCIS Moving Toward Electronic Filing....Slowly


DHS recently published its first in an ongoing series of regulations aiming to change immigration benefit filings from paper to electronic.  Finally, the agency will join the 21st Century!. The switch to electronic filing, known for the record as “USCIS Transformation,” will greatly assist the government in its processing of over six million immigrant benefit applications which are filed each year.  Through this electronic system, applicants will be given accounts containing status information regarding various cases they may have; they will also be able to respond to USCIS requests for information through these accounts, receive other communications and decisions from the government, and update their own personal information as needed.

The new regulation implementing the change from paper to electronic applications submission revises over fifty parts of Homeland Security regulations contained in Code of Federal Regulations Title Eight.   The public is invited to comment on these regulations, and may do so until October 28th.  USCIS also extends on its website an invitation to the public to participate in “outreach” engagement sessions to foster communication between the government and the people (especially USCIS customers as well as the agency’s federal partners) regarding this new change. 

The first “transformation” regulation will officially go into effect on November 28th.  And the first application to  be converted is the I-539. This form is used to extend visitor visas, student visas and dependent visas such as F-2, H-4, M-2 and L-2 as well as to change to one of these statuses. However, electronic filing will only be available for B, F, J, and M users of the form at first.  The transformation in this instance will enable e-filing for primary benefit seekers and their dependents as well as for attorneys and other accredited representatives.  It will also enable individual accounts to track multiple cases, facilitate electronic payment and evidence submission, and allow for the checking of one’s case status online. 

USCIS then aims in 2012 to enable online applications for those Forms I-102 (replacement of a lost I-94), I-131 (travel documents), I-765(work authorization documents), I-821, and I-824 (consular notification of visa petitions); customers may also have access to electronic fee waivers, as well as automated eligibility reviews through these applications.  Unfortunately the I-129 is not among one of the forms slated for conversion to electronic filing in 2012, however this may be a good thing as USCIS will have a long opportunity to perfect the system with less complicated application before converting the I-129 with all of its intricacies.

For a prototype view of what the new system will look like, click here.

For more information on electronic filing or any other immigration questions, contact Valentine Brown at 215 979 1840 or vbrown@duanemorris.com

 
 
 
 

USCIS Unveils Proposed Changes to Help Immigrant Entrepreneurs


On August 2nd, USCIS Director Alejandro Mayorkas and Secretary of Homeland Security Janet Napolitano delineated a number of initiative ideas to increase investment and bolster the nation’s economy.  These initiatives aim to streamline visa adjudications for certain categories of immigrant entrepreneurs and to  draw immigrants from around the world to invest their energy, ideas, and talents to work and grow American employment, as well as stimulate entrepreneurship.   

 

It has been about six months since the inception of Startup America, an initiative executed by the White House to accelerate growth for America’s entrepreneurs.  Startup America serves as one key focus of the President’s Council on Jobs and Competitiveness, which seeks to establish the United States as the primary innovator, competitor, and contributor to the world’s economy.  T USCIS has now contributed the following proposals to the Startup America initiative. Many are in the proposal stage and will be made official USCIS policy sometime in the future. We will keep you updated as the various programs come on line. 

EB-2 National Interest Waivers: First, the national interest waiver for the EB-2 visa (which covers aliens of exceptional ability in the arts, sciences, or business) is accessible now to immigrant entrepreneurs who can show  that their business efforts will be in the United States’ national interest. We will have an upcoming blog post on the details of this change, as it may be very beneficial for many immigrants stuck in EB-3 who would like to start their own businesses. 

H-1Bs for Business Owners: Second, H-1B visas are now being made available to entrepreneurs with an ownership stake in their own companies, if an alien in question can show that his company has an independent right to control its employment.  USCIS has provided updated guidance to all of its Service Centers for adjudication of these types of petitions. We will be keeping you updated as the developments and adjudication trends unfold in the coming months.  

More Access for EB-5 Applicants: Third, USCIS  will be streamlining the EB-5 immigrant investor process by extending the availability of premium processing for EB-5 applications, establishing direct lines of communication between the applicants and USCIS, and providing applicants with an opportunity to speak before a panel of USCIS experts to resolve any issues regarding a given application. There is no time line in place for these improvements. We would not advise any investor to hold their breath, as it could be a while to put these proposals into place.

Premium Processing for Intra-Company Transferee I-140s: Fourth,  USCIS is looking to expand its premium processing service to I-140 petitions for multinational executives and managers.  Premium Processing allows employers to expedite the processing of their petitions as long as there exists no fraud, evidentiary deficiencies, or concerns regarding national security.  Unfortunately, there is no date set yet for the implementation of this service.

Finally, the Office of Public Management plans to hold a series of meetings to field issues of importance for foreign entrepreneurs and start-up companies.  Such meetings will give USCIS information regarding how such groups may be eligible for certain employment-based visa categories.  The first of these meetings was held last week on August 11th.  In a similar vein, USCIS is hosting Conversations with the Director, which involves a series of small group meetings with Director Mayorkas to discuss important immigration issues pertinent to communities across the United States.  The first of these meetings occurred earlier this week on August 15th, and addressed economic development and the EB-5 investor program.

For more information on any of these topics, please contact Valentine Brown vbrown@duanemorris.com.

 

 

 

 

 

 

 

 

 

 

 

 
 
 
 
 

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