Dear Friends:
As we approach the beginning of a new year, it is our hope that 2016 brings increased opportunities for everyone who would like to call the United States their home. We pledge to keep you informed regarding the most important updates in the constantly changing immigration landscape, and wish you all the best during the holiday season and in the year ahead.
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Holiday Travel Reminder
Over the holiday season, many U.S. citizens and foreign nationals will travel abroad to visit family and friends. To avoid aggravation and delays upon re-entry to the U.S., travelers should be certain that they possess the necessary documents to present upon readmission. Visit U.S. Customs & Border Protection's website for details on documentary requirements.
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Note to Employers: Planning for the Upcoming H-1B Filing Period Should Start Now!
As previously noted, USCIS will begin accepting H-1B applications for the new fiscal year on April 1, 2016. Demand for H-1B visas this year is expected to be high! In the likely event the USCIS receives enough applications to meet the quota during the first five business days in April, the agency will run a random lottery to determine which applications will be accepted for processing. Otherwise, applications received will be processed until the quota is reached. Last year the H-1B quota was reached during the initial filing period, resulting in a lottery. The earliest start date for new H-1B employment is October 1, 2016.
In light of the high demand expected for H-1B visas next year, we recommend that an employer's resolutions for the New Year include early identification of employees that might need an H-1B visa. As a reminder, the annual quota does not apply to individuals currently working in H-1B status in the U.S. who need to extend their stay or change employers, or to individuals seeking employment with institutions of higher education, nonprofit research organizations, government research organizations and certain related entities. Please contact our office if you would like to discuss the H-1B application process and filing requirements.
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Visa Waiver Program Changes Signed into Law
On December 18, 2015, the 2016 Consolidated Appropriations Act (H.R. 2029) was signed into law. In addition to funding the government through September 30, 2016, the bill includes provisions that change the Visa Waiver Program (VWP) some of which take effect immediately. Though at this point it remains unclear how Customs and Border Protection (CBP) will implement and enforce the new provisions, effective December 18, 2015, individuals who are nationals of Iraq, Syria, Iran, or Sudan are not eligible to participate in the VWP. In addition, individuals who have been present in Iraq, Syria, Iran, or Sudan (or other countries designated by DHS as supporting terrorism or "of concern") at any time on or after March 1, 2011, will also be ineligible to participate in the VWP, with certain exceptions.
The new law also includes new conditions for participating countries such as passport security requirements, screening protocols, and information sharing, including provisions for revoking VWP status for countries failing to comply with the VWP's new requirements. See the Fact Sheet recently released by the White House for additional information.
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Spotlight on I-9 Compliance
Since 1986, employers have been required to verify that their employees are authorized to work in the United States by completing the Form I-9. Over the past decade there has been a dramatic increase in the number of I-9 on-site inspections/audits conducted by the government, and we expect this trend to continue into 2016, especially given the current political climate.
During this era of enhanced workforce enforcement, every employer - regardless of size, location or industry - must be able to document the legality of its workforce and compliance with all applicable employment laws. Proper and timely recordkeeping is essential, as are regular reviews of the company's immigration-related policies, procedures and documentation.
Our Immigration Practice Group is available to conduct a spot check of your I-9 forms to make certain that the forms are being correctly completed and that the procedures in place for maintaining them meet all regulatory requirements. We can also review your H-1B files and visit your workplace to provide training to human resources and other staff on relevant issues, including best practices for I-9 completion and maintenance, document retention, and off-site employee procedures.
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Immigration Reform Update
Immigration remains a central campaign issue during the 2016 presidential race, while refugees and more recently the fiancé visa program (in the wake of the San Bernardino shootings) continue to make headlines. In this time of immigrant bashing and fear, it seems unlikely that Congress will consider any major, benefit-granting legislation before next year's election. If Congress does act, it will likely be to restrict - rather than to expand - immigration.
In the meantime, the Supreme Court will soon decide whether to hear the appeal of the decision of a federal court in Texas to block 1) the expansion of President Obama's Deferred Action for Childhood Arrivals (DACA) program, a program granting work permits to undocumented immigrants who were brought to the U.S. at an early age, and 2) the creation of a new Deferred Action for Parental Accountability (DAPA) program for certain undocumented parents of U.S. citizen or permanent resident children. Should the Supreme Court take the case this term, it will likely make its decision in June - right in the midst of the presidential campaign. We will keep you updated on these and other important developments in upcoming newsletters.
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