April 2013

Immigration News + Analysis

Maggio + Kattar

11 Dupont Circle NW, Suite 775
Washington, DC 20036
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www.maggio-kattar.com

Employers Must Integrate New I-9 Form by May 7, 2013

 

With less than a month before use of the new I-9 form becomes mandatory, employers should be well under way integrating the new I-9 form (released in early March) into their day-to-day processes. Particularly important for those employers that print hard copies of the form and retain them with new hire or orientation files, the old forms should be discarded and replaced with the updated version. In addition, the individuals responsible for the I-9 process should become familiar with the updated format and the new information that is requested on the form.

 

It is important to note that any employee re-verification or update to work authorization MUST be done on the new form - the old form cannot be used even if Section 3 has not yet been completed. To properly document on-going work authorization, prior to the expiration of the current work authorization, the employer should complete Page 2 of the new form and attach it to the previous I-9 form.

 

The transition period is a great time to review your current and prior I-9s to see if any of them can be discarded or if any changes or updates need to be made (not properly completed, forms missing, etc).

 

If you have any questions about the new form and how it might impact you or your employees, please contact the immigration professional that you work with at Maggio + Kattar for further assistance.

U.S. Customs and Border Protection has advised that the roll out of its new I-94 Arrival/Departure record process will now begin on April 30, 2013, rather than April 27 as it had previously indicated. Click here for our recent Special Alert on I-94 automation.

On April 16, 2013, a bipartisan group of eight U.S. Senators introduced proposed legislation to reform the current immigration system. The draft legislation includes sweeping changes to family and employment-based immigration.  

Some of the most significant changes to the current system include the following:

• Border Security: One of the stated goals of the proposed reform is to heighten security along the Southern border. It includes a suggested appropriation of $3 billion in funding to implement this strategy. 

• Path to US Citizenship: The majority of the 11 million plus persons in the United States without documentation would be able to apply for Registered Provisional Immigrant (RPI) status. In order to be eligible for RPI status, applicants would need to demonstrate the following: 1) that they were present in the U.S. prior to December 31, 2011; and, 2) that they have maintained continuous physical presence since that time. Applicants will be required to pay certain fees and assessed taxes. However, the following grounds will bar an individual from RPI status:

• Convicted of an aggravated felony
• Convicted of a felony
• Convicted of three or more misdemeanors
• Convicted of an offense under foreign law
• Unlawfully voted
• Inadmissible for criminal, national security, public health, or morality grounds.  

• Family-based immigration: The draft legislation proposes to eliminate the current backlog for family-based immigrants.  It also modifies the family-based preference system, changing the current four preference categories into two. The revised preference categories will include:   unmarried adult children; married adult children who file before the age of 31; and unmarried adult children of lawful permanent residents. The bill amends the definition of an immediate relative to include the child or spouse of a lawful permanent resident, while also eliminating the preference category for siblings of U.S. citizens within 18 months of passage of the bill.

• Diversity Visa Program: The bill calls for repeal of the Diversity Visa Program.

• H-1B nonimmigrant visas: The number of available H-1B visas would increase from 65,000 to 110,000 annually and a market-based formula would provide annual adjustments to potentially increase the cap up to 180,000. H-1B "dependent employers" would be required to pay higher wages and government filing fees. All employers would be required to recruit American workers by posting job openings on the Department of Labor's website and conducting additional recruitment. Certain H-4 spouses would receive employment authorization.

• W visa for Lower-Skilled Workers:   The W visa would be established to permit foreign nationals to come to the U.S. to work for a "registered" employer in a "registered" low-skilled position. This new visa would replace the current H-2A program.  W visas would become available in 2015 and 20,000 visas would be available during the first year, gradually increasing to 75,000 in 2019. For each year after that, a market-based formula would adjust the number of available visas. A new federal agency, the Bureau of Immigration and Labor Market Research, would be established within USCIS to determine the annual cap of guest-worker visas and supplement employers' recruitment efforts, among other functions.

• Employment-Based Green Cards: The following categories would be exempt from the annual numerical limits on employment-based immigration: derivative beneficiaries (family members); extraordinary ability individuals and outstanding professors and researchers; multinational executives and managers; Ph.D. graduates in a STEM field; and, physicians who have completed the two-year home residence requirement or obtained a waiver. An increased number of green cards would be made available for: professionals holding advanced degrees and working in the sciences, arts, professions, or business; individuals earning a U.S. master's degree in a STEM field within five years of filing the petition; skilled workers, professionals, and other professionals.

• Merit based immigrant visas would become available starting on October 1, 2014 for certain employment-based cases that have been pending for five years, long-term workers present in the U.S. at least 10 years, and other merit-based immigrant workers.

Overall, the draft legislation proposed by the Senate includes common sense reforms that will fix many of the dysfunctional aspects of the immigration system. While much work has to be done to reconcile the different approaches envisioned by the House and the Senate, the draft legislation represents a positive step forward towards resolution of this contentious issue.

U.S. Citizenship and Immigration Services (USCIS) announced on April 5, 2013, that it had received a sufficient number of H-1B petitions to reach the statutory cap for fiscal year (FY) 2014. This was the first time since 2008 that the cap was reached within the first week of the filing period and well in advance of the proposed October 1 start date. As USCIS also received more than 20,000 H-1B petitions filed on behalf of persons exempt from the cap under the advanced degree exemption, it is not accepting any further cap subject petitions.  

 

On April 7, USCIS conducted a computer-generated random selection process ("lottery") for FY 2014 cap-subject petitions. USCIS has noted that the data entry for H-1B cap-subject cases filed via premium processing has been concluded and that it has begun to issue receipts for these applications. Adjudication of the premium processing cases should be completed within the required 15 days of April 15th.  

 

In the meantime, data entry for non-premium processing H-1B cases may continue into the month of May. Cases that are not selected for inclusion in the 2014 H-1B quota will be rejected. However, these cases may not be returned to employers until June. Employers may convert any non-premium processing case to a premium process case, but a request to convert the case can only be made after its receipt notice is issued.

On April 12, 2013, plaintiffs in a class action lawsuit, A.B.T. v. USCIS, filed a proposed settlement agreement with the United States District Court for the Western District of Washington, which will institute several important changes to the management of the asylum clock. The asylum clock refers to the method by which government immigration agencies calculate the 180-day waiting period during which an asylum applicant cannot apply for work authorization.

 

Advocates for asylum seekers are aware of the difficulties of navigating the asylum clock. Generally, the clock starts when an asylum application is filed, either affirmatively with the asylum office or defensively with the immigration court. However, certain activities, when attributed to delay on the part of the applicant, can stop the clock. There are also often problems with starting the clock for asylum applicants filing defensively in removal proceedings. Advocates know how difficult it can be to restart an asylum clock that has been improperly stopped. Issues surrounding the clock can have devastating consequences for asylum applicants, who are often those most in need of employment authorization to support themselves and their families, and to access resources and services in the United States.

 

Under the terms of the settlement agreement, an individual will now be permitted to file an application for asylum at the immigration court window in order to start the clock. Under the current system, an applicant must wait to file the asylum application in open court. Because of the heavy backlogs in immigration court, this may delay the filing of the asylum application for several months. An additional reform includes allowing more time to prepare an expedited asylum case (a case referred to the immigration court from the asylum office) without stopping the clock.   Further, an asylum applicant's clock will be permitted to restart following a successful appeal and remand from the Board of Immigration Appeals to the Immigration Judge. In this scenario, the asylum clock will also be credited with the number of days between the initial denial and the date of the remand.

 

Further reforms include providing notice to the applicant of the right to reschedule a missed asylum interview and providing additional time to show good cause for having missed the interview; providing written notice of the status of the clock in removal proceedings; and the creation of a process for challenging improperly denied employment authorization applications.

 

If approved by the court, these reforms offer tangible benefits to asylum applicants who have suffered for too long under the government's arbitrary application of the asylum clock.

U.S. Citizenship and Immigration Services (USCIS) will implement a Customer Identity Verification (CIV) process across all of its field offices.  Specifically, individuals will now be required to submit

biometric data (fingerprints and photographs) when appearing at USCIS offices for interviews or to receive evidence of an immigration benefit. USCIS notes that it believes that the CIV will help both defend against threats to national security and protect customers from identity fraud by enhancing the agency's ability to verify identity. Currently, USCIS requires applicants and petitioners requesting immigration or naturalization benefits to visit one of it's Application Support Centers (ASCs) to provide biometric data. USCIS uses this data to help determine eligibility for requested benefits. This requirement, along with providing a government issued document for examination, will not change.

 

For CIV, individuals appearing at a USCIS field office for an interview or to be issued evidence of an immigration benefit will have their identity biometrically re-verified. Examples of evidence include temporary travel documents, parole authorizations, temporary extensions of Form I-90, and temporary I-551 stamps on passports or on Forms I-94 to evidence lawful permanent resident status. Individuals coming to USCIS field offices for other purposes, such as an InfoPass appointment or as the guest of an applicant or petitioner, will not submit biometric data.

 

Under this new process, USCIS staff will take two fingerprints and a photograph of the individual and input this information into the United States Visitor and Immigrant Status Indicator Technology's (US-VISIT) Secondary Inspections Tool (SIT).   SIT is a Web-based application that processes, displays, and retrieves biometric and biographic data. US-VISIT also links databases associated with border inspections and security. After identity verification is satisfactorily completed, individuals will proceed to their interviews or be issued their immigration documents.

The Department of Homeland Security has extended temporary protected status (TPS) for eligible nationals of Honduras and Nicaragua for an additional 18 months, beginning July 6, 2013, and ending January 5, 2015.

Current Honduran and Nicaraguan beneficiaries seeking to extend their TPS status must re-register by June 3, 2013. U.S. Citizenship and Immigration Services (USCIS) encourages beneficiaries to register as soon as possible.  

 

The 18-month extension also allows TPS re-registrants to apply for a new employment authorization document (EAD). Eligible Honduran and Nicaraguan TPS beneficiaries who request an EAD and meet the re-registration deadline will receive a new EAD with an expiration date of January 5, 2015. USCIS recognizes that some re-registrants may not receive their new EADs until after their current EADs expire. Therefore, USCIS is automatically extending current TPS Honduras EADs that have a July 5, 2013 expiration date for an additional six months. These existing EADs are now valid through January 5, 2014.

USCIS has temporarily suspended adjudication of certain H-2B petitions for temporary non-agricultural workers while the government considers appropriate action in response to the court order entered March 21, 2013, in Comite de Apoyo a los Trabajadores Agricolas et al. v. Solis.

 

The court granted a permanent injunction against a substantial portion of the 2008 wage rules as it pertains to certain prevailing wage determinations. The court gave the Department of Labor (DOL) 30 days to comply with its order. Following the order, DOL announced that it can no longer make prevailing wage determinations based on the Occupational Employment Statistics (OES) survey four-tier wage system.  DOL noted, however, that it will continue to process prevailing wage requests not subject to the court order, including prevailing wage determinations using applicable collective bargaining agreements, acceptable private wage surveys, Service Contract Act or Davis Bacon Act wages.  DOL is expected to promulgate a revised wage rule in compliance with the court order.

USCIS has temporarily suspended adjudication of H-2B petitions that are accompanied by temporary labor certifications (TLCs) issued by DOL where the TLCs were issued based on OES four-tier prevailing wage determinations. USCIS has also suspended premium processing for all H-2B petitions until further notice. Employers who have already filed H-2B petitions using the premium processing service, and who receive no agency action on their cases within the 15-calendar-day period, will receive a refund of the premium processing fee. Once a revised prevailing wage rule is promulgated, USCIS will resume the adjudication of all H-2B petitions.

Upon review of an H-2B petition, if USCIS determines that it is based on a TLC with an appropriate wage source, it will resume adjudication of the H-2B petition. In addition, USCIS will continue to adjudicate H-2B petitions that are filed with TLCs issued by DOL on or after March 22, 2013.

The United Kingdom has made several key amendments to its immigration system. These changes took effect on April 6, 2013. Among the key changes that have been implemented include changes to salary requirements and changes to the way the Resident Labor Market Test (RLMT) is conducted.

Applicants that fall under the Tier 2 classification are now subject to increased minimum salary levels. The increase in salary levels is a result of inflation. Under the new system, Tier 2 workers will also be subject to a two-tiered minimum salary requirement. Less experienced workers, known as "new entrants," will be subject to a lower minimum salary threshold than more experienced applicants.  

 

New entrants include: (1) workers who are 25 years old or younger when they file their application; (2) recent foreign graduates transferring from the Tier 4 category into the Tier 2 category; (3) graduate recruits whose sponsoring employer advertised at universities to meet resident labor market tests; and (4) applicants sponsored through the Intracompany Transfer Graduate Trainee category.

As part of the recent changes, the UKBA has expanded the locations where employers can advertise positions to include several different media types newspapers, trade journals, and websites.  Under the old system, employers were only permitted to advertise on a Jobcentre Plus online service or JobCentre Online. The purpose of this change is to provide employers with greater choice in advertising positions as part of an RLMT. However, employers will still be required to advertise most vacancies on a Jobcentre Plus online service, unless they are in shortage occupations or the salary is over £71,000.

 

According to the Minister for Immigration, Mark Harper, these changes are "intended to update the system and make it more user-friendly, rather than significantly change the policy".

In addition to these changes, on April 1, 2013, the UKBA was replaced by two successor agencies. One agency will be responsible for immigration and visa processing, while the other agency will focus solely on immigration enforcement. Although the two new agencies will remain under the umbrella of the Home Office, a new Strategic Oversight Board will monitor the performance of the two agencies, along with the Passport Service, the UK Border Force and other immigration policy makers. Among the reasons provided for the replacement of the UKBA is the agency's size, insufficient accountability, IT system inadequacies, and its complex legal framework.  

 

For more information about immigration to the United Kingdom, please contact Anna Gallagher, chair of Maggio + Kattar's global visa practice.

On Tuesday, April 30, John Nahajzer will lead a District of Columbia Bar Association Continuing Legal Education course entitled, " What Every Lawyer Should Know About Immigration Law Series: Employment-Based Immigration U.S. Legal Permanent Residence & Corp. Compliance." To learn more or to register, click here 

 

May 7, 2013 from 5:30 pm to 8:45 pm. The course faculty will include Immigration Judge Phillip Williams and will discuss representation of noncitizens in removal proceedings as well as other humanitarian options.

 

The AILA Executive Committee has selected the Rome District Chapter, chaired by M + K Senior Attorney Stephen Pattison, as the recipient of this year's Sam Williamson Mentor Award.  This award recognizes the Chapter's outstanding efforts in mentoring its members and all AILA members on consular processing issues through its listserv, conferences, and highly successful interactions with consular sections in Europe, the Middle East, and Africa. The award will be given to the Chapter during the AILA annual conference in San Francisco. Congratulations to Stephen and all Rome District Chapter members. 

Maggio + Kattar's June Immigration Community Forum "Legal Strategies and Advocacy Efforts: Immigration and the LGBT Client" will be held on Thursday, June 20, 2013 from 9:00 to 11:00 a.m. The forum will be moderated by M + K Shareholder Jim Alexander and will include speakers from Immigration Equality as well as private practitioners with subject matter expertise. More details and invitation will be forthcoming. To learn more or to receive invitations to future Immigration Community Forums, please email us at events@maggio-kattar.com.

Maggio + Kattar thanks the Corporate and Individual Sponsors as well as our friends, colleagues, and staff who joined us in honoring Empowered Women International (EWI) at our fifth annual Founders Day.  If you missed the event and still wish to support EWI, please

Maggio + Kattar provides Immigration News + Analysis as a service to its clients and friends to highlight and provide opinions on changes within the field of immigration and nationality law. The information contained in this newsletter is not intended as legal advice, and persons receiving this information should not act on it without consulting professional legal counsel.


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