In a February 28, 2018, status update filing with the U.S. Court of Appeals for the District of Columbia in the matter of Save Jobs USA v. United States Department of Homeland Security, the Department of Homeland Security (“DHS”) stated its inability to issue a Notice of Proposed Rulemaking (“NPRM”)  on the rescission of H-4 EADs by its initial intended timeframe of February 2018.  DHS now expects to issue the NPRM in time for publication in June 2018.

DHS explained that after review of the draft proposal by the United States Citizenship and Immigration Services, a determination was made that significant revisions were required, including requiring a new economic analysis, which could take several weeks to complete. In this status update, DHS reiterated that its intention to publish an H-4 EAD NPRM remains unchanged.

How the rule will immediately affect employers who employ H-4 EAD workers still remains unclear.  DHS may either cancel valid H-4 EADs, render H-4 EADs invalid on a certain date, or prohibit the renewal of H-4  EADs.  Therefore, employers should seek immigration counsel as soon as possible to mitigate any risks from the expected removal of H-4 individuals, who are currently employment eligible, from the class of employment-authorized nonimmigrants.

If 2017 is any indication, the new year will bring a fresh cascade of changes – both announced and unannounced, anticipated and unanticipated – in the business immigration landscape.  Few, if any, of these changes are expected to be good news for U.S. businesses and the foreign workers they employ.

In 2017, while much of the news media focused on the Trump Administration’s draconian changes to practices and policies that affected the undocumented – including ending the DACA Dreamer program, shutting down Temporary Protected Status for citizens of countries ravished by war and natural disaster, and aggressively enforcing at the southern border and in “sensitive” locations such as churches, courthouses, and homeless shelters – relatively less attention has been paid to the steady, incremental erosion of rights and options for legal immigrants, particularly those who are sponsored for work by U.S. employers, under the Administration’s April 2017 “Buy American / Hire American” executive order.  There is no doubt that such restrictions to the legal immigration system will continue to cause business uncertainty and disruption in 2018.  Here’s what to expect:

Continue Reading Buckle Your Seatbelts: 2018 Will Be a Watershed Year in Business Immigration

The United States Citizenship and Immigration Services (“USCIS”) announced today the reinstatement of premium processing for H-1B petitions subject to the Fiscal Year 2018 cap.  USCIS previously reinstated premium processing for H-1B petitions filed on behalf of Conrad 30 waivers recipients and those filed by certain H-1B cap-exempt petitioners.

 USCIS expects to resume premium processing as workload permits, but previously announced a target date of October 3, 2017.

 

Despite earlier hints that the “Dreamers” – undocumented youth who were brought to the United States illegally or lost their status while they were underage – might be allowed to retain their work permits and reprieve from deportation, Attorney General Sessions announced today that the Obama-era Deferred Action for Childhood Arrivals (DACA) program will end on March 5, 2018.  The six-month lag time is intended to allow Congress to codify DACA-like provisions into law.

Continue Reading DACA Dreamers on Life Support

Today, the United States Citizenship and Immigration Services (“USCIS”) announced the reinstatement of premium processing service for H-1B petitions filed by certain cap-exempt petitioners.  In addition to petitioners who seek to employ physicians who are recipients of Conrad 30 waivers, H-1B petitioners who meet the following criteria may now also request premium processing:

  • Institutions of higher education;
  • Nonprofits related to or affiliated with an institution of higher education; or
  • Nonprofit research or governmental research organizations.

USCIS also announced that premium processing will resume for H-1B petitions that may be exempt, if the beneficiary will be employed at a qualifying cap-exempt institution, organization or entity.

We will update this entry as more information is available.

U.S. Citizenship & Immigration Services (“USCIS”) announced today that it has now completed returning all petitions that were not selected in the Fiscal Year 2018 H-1B lottery.  Employers who filed petitions should now have received either a Form I-797 receipt notice indicating the petition was assigned a receipt number, or the original rejected petition including filing fees.  USCIS will take inquiries if employers believe they filed during the required period – April 3 to April 7, 2017 – and have not received either the receipt notice or the rejected petition by July 31, 2017.

 

U.S. Citizenship & Immigration Services (“USCIS”) is scheduled to release a revised Form I-9, Employment Eligibility Verification, on July 17, 2017. The previous version, dated 11/14/16 N, remains valid, but only through September 17, 2017. On September 18, 2017, employers must use the new form.

The new form changes the name of the Office of Special Counsel for Immigration-Related Unfair Employment Practices to its new name, the Immigrant and Employee Rights Section.  In addition, several key changes have been made to the List C, Acceptable Documents to Prove Employment Eligibility:

  1. The Consular Report of Birth Abroad (Form FS-240) is now acceptable and is included on the drop-down menus in “smart” Form I-9 and in E-Verify.
  2. All certifications of report of birth that are issued by the U.S. Department of State (Forms FS-545, DS-1350 and FS-240) are now listed at #2 of List C.
  3. List C documents are now renumbered, except the Social Security card; for example, the EAD is now at #7 instead of #8

USCIS plans to update its “Handbook for Employers: Guidance for Completing Form I-9” (Form M-274) to include these revisions in the near future.  Additional information is available at What’s New | USCIS.

On, March 31, 2017, U.S. Citizenship & Immigration Services rescinded a 17-year-old memorandum issued by the Nebraska Service Center regarding computer-related positions as H-1B “specialty occupations.”  For the last 10 years, all H-1B petitions have been processed at the Vermont and California Service Centers, so the memo has not been in use.  Since NSC recently began accepting H-1B extension petitions again, USCIS has rescinded the memo, stating it is outdated and inconsistent with the agency’s current approach to H-1B petitions for computer jobs.

Continue Reading USCIS Rescinds Old Guidance on H-1B Computer Programmers and Announces Targeted Scrutiny of IT Contractors

DHS Secretary Janet Napolitano announced today that undocumented youth who were brought here as children and who meet certain criteria are now eligible for “deferred action,” a form of long-term relief from deportation that allows employment authorization and college attendance, but does not lead to a green card.  Known as DREAMers (after the Development, Relief and Education for Alien Minors Act, which Congress has failed to pass each time it has been introduced since 2001), these young people have become increasingly vocal and visible in public protests and in the media.

Continue Reading Obama Gives DREAMers Relief from Deportation