In a recent stakeholder message, a copy of which can be found here, USCIS has confirmed that the COVID-19 pandemic will cause delays in data entry and notice generation for CAP cases. Even though cases could be filed starting April 1, 2020, USCIS does not expect to be able to get notices out for cases filed until May 1, 2020. Cases will still retain their original receipt date for petitions that have time sensitive issues and USCIS notes that they are mindful of these time sensitive cases. However, USCIS still expects this to cause a delay in adjudication of CAP cases this year. USCIS will not extend the original filing window in the registration notice and there is no new update on when premium processing will be reinstated. As more updates become available we will share with our clients.
On Jan. 31, 2020, USCIS published the Form I-9 Federal Register notice announcing a new version of Form I-9, Employment Eligibility Verification. This new version contains minor changes to the form and its instructions. Employers should begin using this updated form as of Jan. 31, 2020. Employers may continue using the prior version of the form (Rev. 07/17/2017 N) until April 30, 2020. After that date, they can only use the new form with the 10/21/2019 version date. The version date is located in the lower left corner of the form. The major changes are to the form's instructions, which include: 1. Clarified who can act as an authorized representative on behalf of an employer 2. Updated USCIS website addresses 3. Provided clarifications on acceptable documents for Form I-9 4. Updated the process for requesting paper Forms I-9 5. Updated the DHS Privacy Notice
At a recent stakeholder phone conference, USCIS has confirmed that because of the new version of Form I-539 and the addition of the bio-metric appointment for dependent applications, USCIS will no longer offer premium processing as a courtesy to these types of applications. Even when filed concurrently. This is a huge hit for anyone on H-4 working on an H-4 EAD. Those that fall into this category should be prepared for lengthy delays (average processing time for H-4's posted by USCIS at VSC is 6 Months to 8 Months, which better reflects the realities of longer processing times) and gaps in their ability to work as the adjudication of their H-4 EAD will also be delayed.
On February 20, 2019, USCIS again submitted to The Office of Management and Budget their proposal for "Removing H-4 Dependent Spouses from the Class of Aliens Eligible for Employment Authorization." This rule proposal was also published in the Fall 2018, Spring 2018 and Fall 2017 reports. The current administration has been maligning the H4 EAD program for that long. The final rule has not been published yet and will need to go through a public comment period. As the process develops we will update our clients. In case USCIS is actually serious this time, we recommend that any current employees on H4 EAD be included in this year's H1b cap filings in order to minimize any potential gaps in their ability to work. If you have specific questions, please contact your HLG attorney.
Beginning April 30, 2018, U.S. Customs and Border Protection (CBP) will no longer adjudicate L-1 intracompany transferee petitions for Canadian citizens at the Blaine, Washington ports of entry. Canadians seeking L-1 status who wish to enter the United States through Blaine must first file their petitions with the USCIS California Service Center for processing. This will apply to both L-1 admissions based on an employer’s previously approved blanket petition and individual L-1 petitions. Once an approval notice is issued, the beneficiary may use it at any northern border port of entry to request admission. It has been strongly advised that applicants wait for the USCIS approval notice before applying for admission at the border. However, USCIS has indicated that applicants could be able to bring the filing receipt to the border for entry, at which point CBP would contact USCIS to verify whether the case would be approved, and then act on the admission request accordingly. USCIS is expected to provide further information on the pilot program as the implementation date nears and HLG will provide updates as they are available. Initially, the pilot program will operate only at Blaine, Washington ports of entry. CBP is expected to continue to adjudicate Canadian L-1 applications for admission at other ports of entry until further notice. USCIS also has indicated that the program could be implemented across the northern U.S. ports of entry, and may also be extended to other immigration categories, such as the TN! If you are a Canadian planning to apply for admission at the Blaine ports of entry for an L-1 visa, you need to take the upcoming pilot program into account when planning your travel.
As if they needed to make it any more clear that USCIS is taking a more combative stance against any benefits sought, USCIS has updated its mission statement. The old mission statement was: "USCIS secures America's promise as a nation of immigrants by providing accurate and useful information to our customers, granting immigration and citizenship benefits, promoting an awareness and understanding of citizenship, and ensuring the integrity of our immigration system." The new Mission statement reads: "U.S. Citizenship and Immigration Services administers the nation's lawful immigration system, safeguarding its integrity and promise by efficiently and fairly adjudicating requests for immigration benefits while protecting Americans, securing the homeland, and honoring our values." They don’t consider you a customer even though providing Services is in their title! They don’t believe the United States is a country of immigrants anymore, one of our founding principles. I would be prepared for the culture of NO to intensify and that every little thing will be a battle with them.
I have been fielding a lot of question recently regarding the current administrations intentions regarding H-1B extensions beyond the 6th year. In the face of the uproar and uncertainty that was caused when the current administration let it be known that this was possibly on the chopping block, it now appears to be out of the cross-hairs. Detailed article from McClatchy.com here. We will continue to monitor the situation but for now everyone can let out a collective sigh of relief.
On December 15, The Department of Homeland Security announced that it is proposing a rule which would end the H-4 EAD (employment authorization document). See the official notice of proposed rulemaking here. The rule must still be entered into the Federal Register and undergo a comment period before it is enacted but other than formalities there is not much standing in its way. The publishing of the proposed rule and its final passing will make the lawsuit brought by the Save Jobs USA organization against DHS moot even though the case was dismissed by the Federal Circuit courts and is now on appeal. India-West did an excellent article regarding how the H4 EAD helps create jobs and does not take them away from America workers. The article can be found here. Those relying on H4 EADs for work authorization will need to prepare for the inevitability of losing their ability to work in the U.S. Options to consider going forward may include an H-1b cap filing in this year’s lottery or other work visas for which one may be eligible. Individual assessment with you and your employer will be necessary. We will know more details once the rule is finalized.
On August 7, 2017, the Ninth Circuit upheld charges against DLS Precision Fab LLC, a now bankrupt sheet metal company, which resulted in $305,000 in penalties for employing unauthorized immigrants. In this decision the court rejecting the company’s arguments that a rogue HR director was to blame. DLS was found to have failed to comply with the INA’s worker verification requirements and employed more than a dozen individuals known to be ineligible to work in the U.S. DLS attributed its failure to properly vet employees on a rogue HR director who, unbeknownst to it, shirked compliance to the point “of literally stuffing the government’s correspondence in a drawer and never responding.” The Court was not persuaded by this argument. The bulk of the charges stem from I-9 violations. I-9 violations are not merely violations when filed but remain continuing violations until DLS is no longer required by law to retain them (three years from the date of hire or one year after termination). As for retaining eligible employees, the clock starts upon termination. DLS was therefore not able to use the statute of limitations as a defense. While these appear to be a pretty blatant violations, it is still a good reminder that properly vetting your employees and maintaining your I-9 records is very important.