Compliance Alert: Form I-9

Proposed Changes to Form I-9 have been Approved 

Original Post from Giselle Carson, Shareholder and Immigration Attorney 

Earlier this week, the latest revisions to the Form I-9 were approved. The new form will soon be released to the public.

The current Form I-9 expired on March 31, 2016, but employers have had to continue to use the expired form until the proposed revisions were approved.

USCIS will need to update the online I-9 form available within 90 days to reflect the changes. However, USCIS may accept the expired version for another 150 days (January 22, 2017). The extension is helpful for employers that don’t always receive updates of this nature in a timely manner. USCIS has yet to publish the new Form I-9 and no indication has been given when they will.

The new Form 1-9 will include “smart” features for error checking (when used in Adobe reader). However, this does not mean the new I-9 will be “electronic”. Employers filling out the form will still be required to print the form, obtain signatures, and store in a safe place.

The new form will also include important structural changes as outlined below:

• The USCIS has replaced the “Other Names Used” field in section 1 with “Other Last Names Used” in order to avoid possible discrimination issues and to protect the privacy of transgender and other individuals who have changed their first names.

• Section 1 has been modified to request that certain foreign national employees enter either their Form I-94 number or foreign passport information (rather than both).

• Employees who provide an Alien Registration Number/USCIS number in section 1, must also indicate whether the number is, in fact, an A-Number or a USCIS number (even though currently these are the same).

• If the employee does not use a preparer or translator to assist in completing section 1, he or she must indicate so on a new check box labeled, “I did not use a preparer or translator.” In addition, the form enables the completion of multiple preparers and translators, each of whom must complete a separate preparer and/or translator section.

• The USCIS has added a new “Citizenship/Immigration Status” field at the top of section 2, where the employer is expected to write the number corresponding to the citizenship/immigration status selected by the employee in section 1. For example, if the employee attested to being a U.S. citizen, the employer must write the number 1 in this new field.

• Section 2 has a new dedicated area to enter additional information that employers are currently required to notate in the margins of the form (such as TPS extensions, OPT STEM extensions, H-1B portability, etc.).

• At long last, the mysterious barcode has appeared in the form of a “QR code” that will appear (once printed) and be used to facilitate review by ICE auditors.

Original Post Available on Giselle Carson's Immigration Blog here.

August 2016 Immigration Bulletin is Out!

Immigration Attorney and Shareholder Giselle Carson's August 2016 Newsletter hit inboxes this morning

To read and subscribe to her Immigration Bulletin, click here. 

For more information about your Immigration status or to learn how the Marks Gray Immigration team led by Giselle Carson may assist you today, please email ImmigrationGroup@marksgray.com. 

July 2016 Immigration Bulletin is Out!

DACA(+), DAPA, and Summer Fun - July 2016 Immigration Newsletter

by Giselle Carson

Marks Gray Immigration Attorney

Shareholder 

Original Newsletter and Archived Newsletter can be read here

SCOTUS 4-4 Decision on DACA and DAPA leaves many on hold 

In the United States v. Texas, the case challenging the expanded Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), the U.S. Supreme Court (SCOTUS) affirmed the lower decision 4-4.

This means that the ruling by the Fifth Circuit’s decision stands and there will be no further movement in this proposal possibly until 2018.  This program expansion would have shielded up to 4 million immigrants from potential deportation and make them eligible for work permits.

To see the full story and learn how it may affect you, click here. 

To help you better understand the decision in its entirety we’ve published a list of FAQs. You can read the full list and download here.  

L-1A Manager Petition Approved in 12 Days

We are very proud to be able to assist U.S. employers and immigrants from all over the world achieve their goals.   Here, I share another success story involving an L-1A Operations Manager-Engineering and his family coming to the U.S. as an intra-company transfer. 

For the full story and learn more about how the Marks Gray Immigration team may assist you, click here. 

Employers Risk High Penalties for Hiring Unauthorized Workers 

The U.S. Department of Justice is planning to substantially increase the civil monetary penalties for employers who knowingly employ an unauthorized worker and for other immigration-related violations. The rule will take effect on August 1, 2016, and will apply to violations occurring after November 2, 2016.

Under the new rule, the minimum penalty for a first offense will increase from $375 to $539 per employee. The maximum penalty will increase from $3200 to $4313 per employee. The largest increase raises the maximum penalty for multiple violations from $16,000 to $21,563 per worker. Simple I-9 paperwork violations can now be assessed a maximum penalty of $2156 per individual, which is up from $1100. For unfair immigration-related employment practices, the maximum penalty will increase to $3563 per person, up from $3200.

To read about the new rule and stay up to date on potential changes, click here. 

FAQ: National Visa Center (NVC) Processing 

Many of our clients have to use the NVC to process their green cards.   Here, I answer questions to help you understand this process.  The NVC is a Department of State (DOS) facility that handles immigrant visa processing.  They act as a liaison between USCIS, the green card applicant(s) and the consular post abroad. After USCIS approves your immigrant petition (I-130 or I-140), USCIS will submit your approval to NVC. It is taking NVC 30 to 45 days after they receive the USCIS approval to provide instruction on the next steps.  You must wait to hear from NVC before proceeding. The next steps typically include payment of fees, submission of DS-260, collection, and submission of documents, review and communications from NVC.

Our blog post includes additional information and basic tips regarding this process.

To read and download the full list, click here.  

Is your degree on the STEM designated program list?

For many of our readers, especially foreign students on F-1 status, knowing and understanding if their degree is a STEM designated degree program is critical to plan for their immigration future. 

This designation can determine whether or not an F-1 student can benefit from the new 24-month STEM optional practical training (OPT) extension rule.  If so, the student can remain in the U.S. training and be gaining work experience for a much longer time and have a greater chance at applying for a potential H-1B petition, sometimes two to three times, under the lottery.

To read full blog post and review the list of the latest approved STEM designated program list, click here.

Connect with Giselle on LinkedIn for More Immigration Updates!

Immigration FAQs: DACA, DAPA, and SCOTUS

What You Need to Know about the Supreme Court decision in U.S. v. Texas

by Giselle Carson, Esq. 
Marks Gray Shareholder 
Immigration Attorney 

Full Post on Ms. Carson's blog - U.S. and Global Immigration News 

About the Decision:

On June 23, 2016, the U.S. Supreme Court (SCOTUS) issued a one-sentence per curium ruling in U.S. v. Texas, simply stating “The judgment is affirmed by an equally divided court”. This 4-4 decision left in place the Fifth Circuit ruling blocking the expansion of the Deferred Action for Childhood Arrivals (DACA+) and Deferred Action for Parents of American and Lawful Permanent Residents (DAPA).  

How does the court ruling affect people who are waiting to apply for this benefit and what can they do about it?

They will need to continue to wait for other potential solutions and/or explore other potential immigration options.  Research shows that 14.3% of the DACA-eligible population may also be eligible for other types of immigration benefits.  For example, USCIS is expected to announce the expansion of the I-601A hardship waiver program.

What is the hardship provisional waiver and what are the expected changes?

The provisional waiver allows certain unlawfully present applicants who are immediate relatives (spouses, children, and parents) of U.S. citizens to apply for a provisional unlawful presence waiver before leaving the U.S. for their consular interview to apply for a green card. The waiver allows the applicant to remain in the U.S. waiting on the waiver decision. Among other factors, the applicant needs to establish extreme hardship to a qualifying relative. 

The new rule should clarify the process and standard of adjudication. Some factors that are expected to “strongly suggest and support a finding of ‘extreme hardship’” include: substantial displacement of care of applicant’s children, travel warnings against travel to country of residence, active military duty of qualifying relative, and prior grant of asylum or refugee status. 

The proposed rule would expand who may be considered a qualifying relative for purposes of the extreme hardship determination to include lawful permanent resident spouses and parents. USCIS reports that this expansion would benefit an estimated 10,000 foreign nationals per year.

Does the Court’s ruling impact DACA 2012?

No, the ruling does not directly impact the original program launched in 2012. The Obama Administration is expected to continue with their current policy of using our immigration enforcement resources on persons convicted of crimes, illegal border crossings, and persons who fail to appear at their removal hearings.

Could the benefits of current DACA beneficiaries change in the future?

Yes.  The next Administration can change those benefits including the value of applying for an Employment Authorization Document (EAD). 

Will DACA+ (the proposed enhanced program) and DAPA ever be implemented?

The Supreme Court is not likely to rehear this case or render a new decision until as late as 2018. Prospective applicants will have to wait at least two more years for any potential benefit from this proposal. The future of the program likely depends on who is elected President in November 2016 and whether that person would continue to pursue this strategy or not.

Does DHS still have the authority to grant deferred action?

Yes. Although DACA+ and DAPA are stopped from moving forward in the court system, the Supreme Court’s decision does not preclude DHS from the review and grant of individual requests for deferred action OR to establish a different deferred action initiative that applies to a category of individuals who are not enforcement priorities.

What can individuals who may be eligible for DACA+ or DAPA do in light of this decision?

They should seek advice from an experienced immigration lawyer on any other options for legal status and make a careful determination as to how to proceed. 

For more information about this ruling or to learn how the Marks Gray Immigration team led by Giselle Carson may assist you today, please email ImmigrationGroup@marksgray.com. 

U.S. Supreme Court 4-4 Decision on DACA and DAPA leaves many Immigrants on hold

Shareholder Giselle Carson Shares her Insight on yesterday's United States v. Texas ruling

Original Post published on Giselle's blog here.

by Giselle Carson, Esq. 

Today, in the United States v. Texas, the case challenging the expanded Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), the U.S. Supreme Court affirmed by an equally divided court.

This means that the ruling by the Fifth Circuit’s decision stands and there will be no further movement in this proposal at least during the Obama administration.  The proposed expansion would have shielded up to 4 million immigrants from potential deportation and make them eligible for work permits.

This ruling does not impact the original DACA program launched in 2012.   The decision is disappointing for many immigrant families, workers, and employers.

To read the full decision  and explanation of the ruling, visit The SCOTUS blog.

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Giselle Carson, Shareholder at Marks Gray, P.A. primarily practices in the areas of business immigration, sports immigration, I-9 compliance and audits and litigation. She is a frequent author and speaker on immigration matters. 

Immigration FAQs answered by Giselle Carson

Shareholder Giselle Carson Answers the most Frequently Asked Questions regarding the Immigration process and filings 

In an effort to assist you and save you time during the Immigration process, the Marks Gray Immigration Team has compiled a list of some of the most frequently asked questions on immigration topics. For more detailed information about any of these subject, please contact the Marks Gray team. 

• FAQ: National Visa Center Processing
• Alternatives to Cap-Subject H-1B Petitions
• Document Retention for Employers
• Electronic Travel Authorization (eTA)
• General Instructions for Consular Processing
• H-1B Preparation - Staying Ahead of the Game
• Labor Certification Process:The First Step to an Employment Based "Green Card"
• Perm Recruitment
• Student Options for Visa Extensions 

For the full list of FAQs, visit Giselle's Immigration site. 

June 2016 Immigration Bulletin is Out!

Summer Fun and Success Story: A Green Card for an Athlete

June 2016 Immigration Bulletin

by Giselle Carson

Hello, and Welcome to our June Immigration Update! 

 

In this edition, I review the milestones of the H-1B FY17 and future processing, provide tips for employers’ compliance with the new STEM OPT training plan, review the options for updating your address with USCIS and much more.  

I also share one of our recent success stories and encourage you to kick off the Summer supporting our foreign athletes.  While Jacksonville may not be home to notable immigrants like baseball star Albert Pujols, tennis sensation Anna Kournikova, or basketball giant Yao Ming, we have our own mix of remarkable athletes who've migrated to our great city.  Some of the most recent additions come to us to join our professional soccer team, the Jacksonville Armada, and our Baseball team, the Suns.  I hope that you get a chance to experience the excitement of these games and support our athletes.  

To stay updated on current immigration issues and read more client success stories we invite you to subscribe to our blog.

 

Thank you for your readership, support, and referrals.

 

Cheers!

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Are You Trying to Understand the New STEM OPT Rules? I have Tips for You!

Employers, foreign students, and schools are looking for best practices to complete the new Form I-983, Training Plan. With this in mind, I have published a White Paper to assist. The paper provides examples to complete the training program goals and objectives and measure the training effectiveness and outlines key provisions of the 24-month STEM extension.

To read the paper in its entirety and download a copy, click here. 

 

H-1B FY17 Cap Updates

As per our prior updates which we link to below, USCIS completed the H-1B Cap Random Lottery Selection Process April 9^th, 2016.

Original Article about FY17 Cap Posted Here.

Below is an outline of key events during this process and what to expect for the remainder of this process: 

April 12 - We started receiving the first receipt notices via email from USCIS Premium Processing (PP) about the selected cases.

Original Article regarding completed lottery posted here.

April 21 – We started receiving receipt notices for the cases that were filed using regular processing.

May 2 – USCIS issued a notice indicating that it had completed the data entry for all petitions and we stopped receiving receipt notices.

Original Article Here. 

May 10 to August 8 - The 17-Month STEM OPT extension applications submission.

STEM OPT Extension Update and articles regarding limited filing opportunity original posting here.

May 12 – USCIS started adjudicating Premium Processing (PP) filed petitions.

Information on PP petitions and delayed timeline associated with them here.

May 27 – Our PP filed petitions had all been adjudicated.

June to September – USCIS will return cases not selected in the lottery with uncashed filing fee checks.

June to September 30 – USCIS will process and adjudicate regularly filed cases.

Last year, most cases were adjudicated by September 30.  However, some cases that received requests for additional evidence (RFE) were still awaiting a decision in early October.

We will update our clients with pending petitions that were filed using regular processing as we receive more information from USCIS.

 

 

Notifying USCIS of Address Change

You must notify USCIS of your address changes in one of the following ways:

1. Online: USCIS Online Change of Address (recommended)*

1. By mail: Download Form AR-11 and Instructions (PDF, 1 page - 370 KB) or

1. By calling 1-800-375-5283.  If you call, you will still need to complete and submit the AR-11 form noted above. 

 

How soon after my move should I notify USCIS of my new address?

Most non-U.S. citizens must notify USCIS of a new address within 10 days of moving.

U.S. Citizens are required to notify USCIS of a change of address if they have previously submitted a Form I-864, Affidavit of Support, on behalf of someone who has become a permanent resident. If you have previously submitted a Form I-864 for someone who immigrated to the U.S., and that sponsorship agreement is still in force, you must complete a Form I-865, Sponsor’s Notice of Change of Address, within 30 days of the change in address.

 

Is changing my address with the post office enough?

No. If you only change your address with the post office, you may not receive important notices about your case.   U.S. Postal Service does not forward most USCIS correspondence. 

Do I have to submit a change of address for every pending application or petition?

Yes. To ensure that all USCIS correspondence is sent to your current address, you must submit a change of address for every pending application and/or petition that you have with USCIS. 

 

Where can I find additional information about reporting an address change to USCIS?

Additional details can be found at:  How Do I Report a Change of Address to USCIS?

 

High Demand for EB-1 Visas to Force Cut-Off Date

Because employers and foreign nationals are looking for alternatives to the H-1B cap, the Department of State (DOS) and USCIS have advised that there has been a significant high demand for visas in the EB-1 category.  DOS has said that should the demand continue to remain at the same rate, some form of “corrective action” would be necessary before the close of the fiscal year to regulate worldwide visa numbers. This may require the establishment of a cutoff date or other form of regulation.

Read full blog post here.
 

June Visa Bulletin: EB-2 & EB-3 Retrogression

The demand for the EB-2 employment-based category is also very high.  As a result of the ongoing high demand for visa numbers for EB-2 India and lack of access numbers from EB-2 worldwide which could have been used for India, the EB-2 India final action date retrogressed to October 1, 2004. The DOS expects that the EB-2 India cutoff date will advance slowly for the rest of the fiscal year, at a pace similar to the EB-3 advancement.

Similarly, the EB-2 and EB-3 employment-based for China final action cutoff date have retrogressed to January 1, 2010. The cutoff dates for EB-2 and EB-3 are expected to remain unchanged for the remainder of the fiscal year, therefore, applicants will have no incentive to downgrade from EB-2 to EB-3.

Full blog post here.

 

Success Story: EB-1 Extraordinary Ability Approval for Professional Soccer Player 

Pro L, an Argentinian professional soccer player, came to our office for help obtaining a Green Card based on his “Extraordinary Ability” (an EB-1, I-140 petition) as a soccer player.

We met and reviewed his entire professional career. We carefully organized and identified evidence of his extraordinary roles, sharp and crisp skills under pressure, and employment with distinguished teams. We selected and included evidence of the wins of his teams in sought after championships as a result of his performance.  We also incorporated evidence of the major media coverage he received for his contributions including appearances on ESPN, interviews, and newspaper articles. The filing also contained evidence as to how Pro L’s work as an athlete benefits the ongoing growth of soccer in the U.S.

USCIS agreed with us and his I-140 petition was approved. I’m honored to work with athletes of extraordinary talent and their teams. As a marathoner and Ironman triathlete, I’m inspired by the accomplishments and discipline of these athletes. Despite multiples accolades, Pro L and his family are amazingly friendly and down-to-earth.   We look forward to his ongoing contributions to our country.

Congratulations to Pro L and his family!  

You can view the original newsletter by clicking this link. 

May 2016 Immigration Bulletin is Out!

Shareholder and Immigration Attorney Giselle Carson released her May 2016 Immigration Bulletin - Running on Passion - on Tuesday. 

Hello, and Welcome to our May Immigration Update! As you might know, the stressful and uncertain H-1B lottery process is almost complete and we are grateful to have been able to help many of our clients navigate this process, obtain FY17 cap-subject H-1Bs and strategize alternatives.  This newsletter contains updates on the process and options. Additionally, our team and I have continued to be very involved in the Jacksonville Bar Association and other community activities. As a result, I was selected for a First Coast Success Profile - Running On Passion. You can read more about this profile and other events in this bulletin. Some of you might be in the process of planning a summer vacation or time off.  I wish you happy planning and fun times.     To stay updated on current immigration issues, we invite you to subscribe to our blog.  Thank you for your readership, support and referrals.   Cheers! To read the full article, click here.

April Immigration Bulletin is Out!

H-1B Cap Updates for FY 2017 - Over 236,000 H-1B Petitions Filed and Lottery Completed

Subscribe to stay up to date with immigration alerts!

USCIS just announced that it received over 236,000 cap-subject H-1B petitions. This number is just slightly higher than last year when USCIS received 233,000 petitions. 

 

We don’t yet have the number of U.S. Master’s vs. Bachelor’s degree petitions received.   We know that more than 20,000 U.S. Master’s petitions were received. 

 

USCIS conducted the lottery process April 9^th, 2016 and selected the required 65,000 Bachelor’s and 20,000 U.S. Master’s petitions. Petitions not selected will be returned over the following months. Prior to returning those unselected petitions, USCIS will start issuing receipts for those petitions selected starting with those that were filed via premium processing. 

 

To read USCIS press release click here.

 

As we track the H-1B filings, we will provide updates via our blog and newsletter.  In the meantime, this news alert contains several pieces of information relating to the H-1B process should you not be selected for the H-1B.

 

To stay updated on current immigration issues, we invite you to subscribe to our blog. 

Back Up Plans for Immigrants Who Don't Secure an H-1B Visa

While many foreign nationals might have to wait until next April for another chance at H-1B status, the following options should be considered for affected employees:

H-1B’s that Are Cap-Exempt

These include petitions for employment at an institution of higher education, or a related or affiliated nonprofit entity, nonprofit research organization, or governmental research organization and physicians on J-1 visas who receive H-1B status through the Conrad 30 program on the basis of agreeing to work in medically underserved areas for three years. H-1B visas are also available for beneficiaries filing for amendments, extensions, and certain employment transfer.

STEM/OPT Extension and F-1/CPT

A 24-month optional practical training (OPT) for foreign nationals with advanced U.S. degrees in designated Science, Technology, Engineering or Math (STEM) fields.  A 7-month OPT extension for those currently using the 17-month extension. The new 24-month STEM OPT rule allows DHS to designate "related fields" on the STEM list. 

"In general, related fields will include fields involving research, innovation, or development of new technologies using engineering, mathematics, computer science, or natural sciences (including physical, biological, and agricultural sciences)." To qualify for the STEM/OPT, employers must be enrolled in E-Verify and complete an individualized Form I-983 "Mentoring and Training Plan".  Students must work with their DSO to file for the STEM/OPT benefit.    

Foreign students should also look into continuing in F-1 status and explore with their DSO internship opportunities under curricular practical training (CPT).

Visas for Professionals from Canada, Mexico, Australia, Chile and Singapore

Certain Canadian and Mexican professionals might qualify for a TN visa available under the NAFTA.   To qualify, the foreign national must have the required nationality, be offered a temporary position by a U.S. employer in one of the professions specified in Appendix 1603.D.1 of NAFTA and possess the degree or credentials required under NAFTA for the position.  

Nationals of Australia should consider the E-3 visa and nationals of Chile and Singapore should consider the H-1B1 visa.

Other Work Visa Categories

The L-1 visa, intra-company transferee, is available to certain employees who have worked for a parent, branch, subsidiary or affiliate of the U.S. employer outside of the U.S.   To qualify, the immigrant must have worked for at least one consecutive year full time in the prior three years.  The employer must seek to transfer the employee to the U.S. to work as a manager/executive or specialized knowledge professional.

The O-1A is available to individuals who can demonstrate extraordinary ability in the sciences, education, business or athletics.  The evidence must show that the candidate is among the small percentage of people who have risen to the very top of their field of endeavor, as demonstrated by sustained international or national recognition for their achievements in the field.

The E-1 or E-2 is available to principals and employees of companies whose country of majority ownership has a treaty of commerce with the U.S.  E-1 treaty trader status is available to businesspersons who seek to engage in substantial trade in goods or services.  The E-2 treaty investor status is available to individuals who seek to develop and direct the operations of a business in which the foreign national or his/her employer has invested or is in the process of investing a substantial amount of capital.

Conclusion

Unfortunately, the currently insufficient number of H-1B visas for highly skilled temporary workers and limited number of alternatives is creating significant challenges for U.S. employers that rely on foreign workers, particularly in the high technology and health care industries.  Early planning, creativity, and flexibility are critical.

We will continue to monitor and provide updates on further developments in immigration law, including any potential changes to the H-1B program and visa availability.

Limited Window of Opportunity to File for Seven Month STEM OPT Extension Under Revised Rule

Foreign students currently on STEM OPT may apply for an additional seven months to benefit from the new 24-month period of STEM OPT rule. But, the time frame to apply is limited. According to the latest USCIS update, applicants must submit required paperwork to request the extension between May 10 – August 8, 2016.   

 

To qualify for this seven-month extension, students must have at least 150 calendar days remaining before the end of the 17-month OPT period at the time the Form I-765 is filed. They must also meet all other requirements for the 24-month STEM OPT extension. The 150-day minimum remainder of OPT time is aimed to provide the student with at least one year of practical training under the extension. Any 17-month STEM OPT EAD that USCIS issued on or before May 9, 2016, will remain valid until the EAD expires, is terminated or revoked. 

 

DHS will not automatically convert 17-month extensions into 24-month extensions. Students considering applying for this extension should contact their DSO as soon as possible to obtain additional guidance and authorization to proceed with the application.  

Traveling Abroad While a Change of Status is Pending is Fatal

Often foreign nationals are admitted in one category and apply for a change of status (COS) to another category while in the U.S. For example, we just filed cap-subject H-1B petitions for many immigrants who were in F-1/OPT status requesting a COS to H-1B. If an immigrant applies for a COS and travels abroad while the petition is pending, their application would be considered abandoned and USCIS would issue a denial. Traveling abroad will also result in a denial of any Form I-765, Application for Employment Authorization, filed before the COS is approved. Therefore, traveling abroad can be fatal to your filing.

Expired I-9 Form Currently in Use

The current Form I-9 Employment Eligibility Verification expired March 31, 2016. However, USCIS has allowed employers to continue to use the current version of the Form I 9 until additional comments are received and a new form is finalized and approved.

Public comments may be submitted until April 27, 2016.  In response to the public comments already received, USCIS has made changes to the proposed new form including:

• Validations on certain fields to ensure information is entered correctly;
• Drop-down lists and calendars;
• Embedded instructions for completing each field;
• A dedicated area to enter additional information that employers are currently annotating in the margins;
• A quick-response (QR) code that generates once the form is printed to facilitate audits; and
• Removing the requirement that foreign nationals provide both their Form I-94 number and passport information in Section 1.

Employers should continue to use the current version of the Form I-9 until the new proposed version is released. USCIS will post the final version on its website once it is available. We will post updates on this important issue as they are made available.

March Immigration Bulletin is Out

March 2016 Immigration Bulletin Highlights 

by Giselle Carson, Esq.

Hello, and Welcome to our March Immigration Update!

As an immigration attorney and two-time immigrant, I am often asked to share my thoughts on America’s immigration policies, particularly now, when immigration has been a hot-button issue on the presidential campaign trail. Regardless of your thoughts on the current immigration proposals, the issues and values surrounding immigration frame our nation and affect us all.

Successive waves of immigrants have kept our country young, enriched and innovative. Many of these immigrants give me strength and serve as an inspiration. Celebrate with me the contributions and successes of some of these remarkable people. Read more...

While celebrating inspirational people, we’d like to congratulate one of Marks Gray’s own! We are pleased to announce that Marks Gray attorney, Mary Bland Love, received the 2016 Ehrlich Trial Advocacy Award from the Jacksonville Bar Association. The Award recognizes a lawyer from the local legal community whose career has embodied those qualities to which trial lawyers aspire. Ms. Love is the first woman to ever receive the award. Read more...

To stay updated on current immigration issues, we invite you to subscribe to our blog. 

Thank you for your readership, support and referrals.

Cheers!



Giselle Carson

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DHS Releases New 24-Month STEM OPT Extension Rule

The new 24-month STEM OPT Extension rule is helping employers and students who are trying to secure a new H-1B visa breathe a sigh of relief as they now potentially have 3 years of opportunities for filing. However, this extension comes with new requirements that both employers and students must be prepared to fulfill. Below are some highlights of the rule:

1) OPT STEM increases from 17 to 24 months beyond the 12-month post-graduation OPT generally allowed. (Effectively providing 36 months of OPT.)
2) Students who subsequently enroll in a new academic qualifying program may now earn another 24-month STEM OPT extension.
3) The student must be employed by an E-Verify registered employer.
4) The rule will continue to provide cap-gap relief and enable students to extend their F-1 status and employment authorization until October 1 if they filed a cap-subject H-1B on time.
5) It is only available to students with qualifying STEM degrees from accredited schools.
6) The employer and student must develop formal training plans that identify the objectives to be accomplished during the OPT training period.
7) The F-1 student may only remain unemployed during the initial 12-month for up to 90 days, and the new rule allows for an additional 60 days (for a total of 150 days) for those on STEM OPT extension.

This new rule will replace the existing 2008 interim final rule, and will take effect on May 10, 2016. To stay up to date on this extension rule, visit our blog. 


H-1B Visa Season Fast Approaching

On April 1, 2016, the new H-1B season begins, which means employers can file petitions for professional foreign workers with bachelor’s degrees or equivalent experience.

This year, the demand for new H-1B visas is again expected to be high and the cap is likely to be met. Employers have the first five days following the opening of filing to file their petitions. If you are considering filing a new H-1B petition, please contact us immediately as the timeline is very short and there is a significant amount of work that needs to be done prior to filing.


Proposed Elimination of the 90 Day EAD Adjudication

One of the most concerning proposals of USCIS’ “improvements” affecting high-skilled immigrant workers is the removal of the 90-day time frame for USCIS to adjudicate an Employment Authorization Document (EAD). Instead, USCIS proposes to allow for automatic extension of EAD’s in some limited cases as outlined below.

The proposal provides for the automatic extension of employment authorization for 180 days for certain categories so long as the I-765 application is for the same employment authorization category; the application is filed before the expiration of the EAD; the applicant remains eligible for employment authorization after the expiration of the current EAD; and the employment authorization is not dependent on any other approval/process.

This extension will only be available to 15 categories of employment authorization, including adjustment of status applicants.  However, this extension will not be available to the employment authorized dependent spouse categories, such as H-4, L-2, and E-2/-1.

The comment period for this proposal ended February 29, 2016. USCIS is expected to have received a significant amount of comments which it needs to evaluate. We will continue to follow this proposal and provide updates.


O-1 Extraordinary Ability Memo Provides New Clarity for Professional Athletes and other Qualified Fields

USCIS issued a memo to clarify and expand when an employer may submit comparable evidence for the O-1A Extraordinary Ability work visa. This visa classification is used to provide work authorization to highly qualified individuals in the sciences, arts, education, business or athletics, among other fields.

Before this memo, an employer had to prove that none of the other O-1 qualifying criteria was applicable before the employer could submit "alternative or comparable evidence." Under this memo, the employer "must only show that a particular criterion does not readily apply to the beneficiary’s occupation" before the employer can offer comparable evidence. The employer will not be required to show that all or a majority of the criteria does not apply before comparable evidence may be considered.  However, the employer will need to explain why a criterion does not apply and why alternative evidence is comparable. This clarification will allow professional athletes to have greater flexibility in satisfying the O-1 visa criteria. 

For more information on the visa options for Pro Athletes and other highly skilled professionals, check out our blog.


Visa Waiver Program (VWP) Further Restrictions

The VWP is used by nationals from 38 qualifying countries to travel to the U.S. visa free using the Electronic System for Travel Authorization (ESTA). In 2014, about 20 million people visited the U.S. using the VWP.

However, in mid-February, the Department of Homeland Security announced that it is continuing to make changes restricting the use of the VWP.

The new changes restrict the travel of dual nationals who are citizens of both a VWP country and nationals of Iran, Iraq, Sudan, Syria, Libya, Somalia and Yemen. These individuals will no longer be able to travel to the U.S. using ESTA and will have to apply for a visa at a consular post abroad before traveling to the U.S.

This new rule will also apply to individuals of a VWP country who have traveled to or been present in these seven countries on or after March 1, 2011. 

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