Immigration News

The Department of Homeland Security is reported to be considering changes to regulations that currently allow certain individuals in H-1B status to extend their status beyond the 6-year limit. The changes being considered would impact individuals who have an approved I-140, but are not yet able to apply for permanent residence (green card) due to the visa backlog. Currently, such individuals are eligible to extend their H-1B beyond the 6-year limit in 3-year increments, which allows them to continue working without interruption for their US employer while they wait for their priority date to become current.  Although no changes to the extension regulations have occurred, DHS is reported to be considering making these extensions discretionary, which would greatly increase the risk of denials.

Importantly, any change to DHS’s interpretation of this regulation would require a formal announcement followed by a 90-day notice and comment period before any changes could be implemented. In addition, any change to DHS’s longstanding interpretation of law would be subject to extensive litigation, which would likely further delay implementation of any change.

While these reported considerations are worrisome, there have not yet been any changes in DHS regulations or policies. We will continue to stay abreast of any changes to this and other DHS policies, and will post updates on our website.

A panel of the 9^th Circuit Court of Appeals yesterday granted a preliminary stay of the lower court’s injunction, which had prevented the administration from enforcing the  latest version of President Trump’s travel ban. The current version of the travel ban applies to nationals from Chad, Iran, Libya, North Korea, Syria, Venezuela, Yemen, and Somalia.

In granting the stay, the court cited the Supreme Court interim decision concerning the previous version of the ban, and created the same exception for persons with a “credible claim of a bona fide relationship with a person or entity in the United States.” Familial relationships under this exception include grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews and cousins, while any relationship to an entity must be “formal, documented and formed in the ordinary course, rather than for the purpose of evading [the ban].” The exceptions do not apply to nationals of North Korea or Venezuelan government officials, for whom the full ban remains in place.

The current travel ban applies differently to nationals from each of the eight countries. If you are impacted by the ban and have plans to travel outside the country, please consult your immigration attorney before making travel arrangements or departing the United States.

USCIS reports that employers are being targeted in an email scam requesting employers to submit I-9 information. The emails are reportedly sent from a fraudulent email, [email protected], and contain USCIS labels, employer addresses, and links to websites that appear government related. If you receive an email purporting to be from USCIS and requesting I-9 information, do not respond or click on any links within the email. If you receive a fraudulent email, you can forward the email to the USCIS webmaster at [email protected].

Employers must complete a Form I-9, Employment Eligibility Verification, for every employee on their payroll, and these forms must be retained for the required period of time. Employers are not, however, required to submit the forms to USCIS.

In a speech to the Heritage Foundation this week, acting Immigration and Customs Enforcement Director Tom Homan stated that ICE will dramatically increase worksite enforcement actions in 2018. When asked whether the agency would do more to target those who employ undocumented workers, Homan said that he has directed Homeland Security Investigations, ICE’s investigative unit, to audit its current worksite enforcement and increase these operations “by four or five times, “ according to an article in the Washington Examiner.

“We’re taking worksite enforcement very hard this year,” stated Homan. “We’ve already increased the number of inspections and worksite operations; you’re going to see that significantly increase this next fiscal year.”

In addition, Homan stated that ICE will not only target the employers who hire undocumented workers, but will also arrest any undocumented workers they encounter during these enforcement operations. This marks a stark deviation from ICE’s previous worksite enforcement strategy, which prioritized employers who knowingly hire large numbers of undocumented workers and engage in trafficking, smuggling, visa fraud, money laundering and other criminal conduct. Under the previous enforcement strategy, these criminal arrests took priority over civil immigration violations of undocumented employees.

In addition to worksite enforcement, Homan stated that ICE will continue its recent trend of arresting undocumented individuals at courthouses and near schools around the country. Churches and hospitals, however, will remain outside the scope of these enforcement operations.

Attorney General Jeff Sessions announced Tuesday that the Trump Administration will end the Deferred Action for Childhood Arrivals Program, or DACA, on March 5, 2018. The DACA program, which President Obama enacted by executive action in 2012, protects approximately 800,000 people who were brought to the United States as children without legal immigration status. In addition to protections from deportation, DACA status also provides these individuals with employment authorization.

As of Tuesday, the Department of Homeland Security will no longer accept new initial DACA applications, though previously approved DACA applications will remain in effect through their current expiration date. Individuals whose DACA status will expire before March 5, 2018 will be allowed to apply for a 2-year renewal as long as the renewal application is submitted by October 5, 2017. Currently pending applications which were received by Tuesday, September 5 will still be adjudicated on a case-by-case basis.

Additionally, DHS will no longer accept requests for advanced parole for DACA recipients, though previously issued advanced parole documents will remain valid. Currently pending requests for advanced parole will not be adjudicated, and fees will be returned to the applicants. Although previously approved grants of advanced parole remain valid, Customs and Border Protection will continue to exercise discretion to determine if individuals presenting at the border are in fact admissible and eligible for parole.

The six month timespan from today until March 5, 2018 will provide Congress an opportunity to enact protections for DACA recipients prior to the program’s termination, but the likelihood of Congress passing such legislation remains uncertain.

Beginning October 1, USCIS will expand the in-person interview requirement to include two new categories of permanent resident applications. The in-person interview requirement will extend to include applicants filing for employment-based adjustment of status, as well as refugee and asylee relative petitions for beneficiaries already in the United States. Notably, both categories are applicants who are physically present in the United States, having already passed comprehensive background checks and U.S. Customs and Border Protection screening.

The expanded interview requirement is an effort to implement President Trump’s Executive Order 13780, “Protecting the Nation From Foreign Terrorist Entry Into the United States,” which suspended the U.S. refugee program, banned entry into the U.S. for foreign nationals of six predominantly-Muslim countries, and called for increased scrutiny in background checks for all immigration programs. USCIS states that although the interview requirement will only extend to two new categories for now, the agency plans an incremental expansion to include other types of immigration benefits in the future.

In an unannounced dramatic change in policy, USCIS has changed how it is handling advance parole applications for adjustment applicants in H or L status.

Previously those applicants with H or L status could freely travel after their adjustment of status application was filed and their application for advance parole was pending with USCIS. Such individuals would return to the U.S. in H or L status and then their advance parole travel document would be approved so that on their next trip they could use advance parole to travel internationally.

USCIS has changed its policy. Adjustment of status applicants may continue to travel if they have H or L status.  However, any adjustment of status applicant who travels while the advance parole application is pending at USCIS will have the advance parole application denied.  Therefore, if an adjustment of status applicant wishes to travel on advance parole, he or she must apply for advance parole and wait until it is approved before leaving the United States.  As always, it is required that the person traveling on advance parole return to the United States during the validity period of the advance parole.

Stated another way, adjustment of status applicants in H or L status have the following options regarding travel:

• Travel in H or L status while the adjustment of status application is pending; or
• Apply for advance parole understanding that you cannot travel until your advance parole is approved. Were you to travel on your H or L visa while your advance parole application remains pending, the advance parole would be denied.

As of September 18, 2017, employers must use a revised Form I-9 (rev. 7/17/17) to verify new employee work eligibility.  The revised document is available here:  www.uscis.gov/i-9. You will also find a copy attached, with the changes highlighted.

This most recent revision was released just six months after employers were required to begin using the 11/14/16 version of the form. We have no idea why USCIS initiated the change.  The good news is that the new form is very similar to the old form.  The bad news is that they both have the same expiration date, so you must pay close attention to the revision date in the bottom left corner to ensure you are using the correct Form I-9.  The new version  date is 07/17/17.

Can I keep using the old form?

No, beginning September 17, 2017, employers must use the new form for any new hires; however, current employees do not need to complete new forms.  Keep the forms you already have for current employees and use the new form for new hires.

What has changed?

The list of acceptable documents to establish employment authorization (“List C”) has been revised and reorganized. In addition, the Consular Report of Birth Abroad (Form FS-240) has been added to that list.  These changes have been highlighted in the attached I-9 form.

Additionally, there are minor revisions to the instructions although they should not affect employer practices. The Handbook for Employers was also revised.  You can obtain the latest version at:  https://www.uscis.gov/i-9-central/handbook-employers-m-274

How long do I keep the form?

The required retention period remains unchanged. Employers must keep the form for the later of three years after date of hire or one year after date of termination.

Feel free to give us a call if you have any questions about the Form I-9 or work eligibility verification.