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The USCIS recently finalized a new regulation to benefit high-skilled workers which will go into effect on January 17, 2017 – just three days before President-Elect Trump is inaugurated. The regulation was purposely timed to precede the new Trump administration. Opinions are mixed on whether the new regulation will stay in effect, or will be immediately revoked or rewritten when President Trump takes office.
Some important highlights of the regulation are:
New 60 Day Grace Period. H-1Bs, L-1s, Es, TNs, and Os and their dependents will have a 60 day grace period in the event that the principal visa status holder loses his/her job. The grace period will allow these nonimmigrant visa holders to remain in the US and find a new job. The 60-day grace period may be provided to an individual only once per authorized validity period. An individual may be provided other such grace periods if he or she receives a new authorized validity period in one of the eligible nonimmigrant classifications.
Flexibility for H-1B licensed occupations. The USCIS will approve H-1B petitions for a validity period of up to one year where the applicant can prove that the H-1B employee does not have a US professional license due to the State’s requirement of a social security number, US employment authorization, or a similar technical requirement. This has been USCIS policy, but is now officially law. Unfortunately, the USCIS still has much discretion in this area to interpret local state licensure law.
EAD extensions. An EAD will automatically be extended for 180 days, as long as an EAD extension was filed before the expiration of the current EAD. This will provide needed certainty of continued work authorization.
Cap-Exempt Employers. The new rule reworks the H-1B cap-exempt employers rule for employers who are affiliated with an institute of higher education in two ways.
o DHS is replacing the term ‘‘primary purpose’’ with ‘‘fundamental activity.” This is a less-restrictive standard than the current “primary purpose” rule. Going forward, ‘‘a fundamental activity’’ of the nonprofit entity must be to directly contribute to the research or education mission of the institution of higher education.
o A non-profit that has a formal written agreement that establishes an “active working relationship” with a University, no longer has to have shared ownership and control. This is also a lesser standard than at present.
Retention of I-140 in almost all situations. This new rule clarifies existing USCIS policy that allows Beneficiaries to generally retain their I-140s even if the prior employer revokes the I-140. This will allow these Beneficiaries to (i) recapture the I-140 priority date in future green card applications and (ii) take advantage of spousal work authorization rules without fear of an underlying I-140 revocation.
Please read the Musillo Unkenholt Healthcare and Immigration Law Blog at www.musillo.com and www.ilw.com. You can also visit us on Facebook and follow us on Twitter.
Updated 01-07-2017 at 01:24 PM by CMusillo
Via Fox 5's Ronica Cleary:
"A story first reported on FOX 5 found that there were a shocking number of individuals waiting for immigration hearings in Arlington Immigration Court. We found there were thousands of hearings waiting in the system, with 380 of them scheduled as far out as 2023 and 2024."
Updated 12-16-2016 at 09:21 AM by MKolken
By: Bruce Buchanan, Sebelist Buchanan Law
In new ALJ James McHenry’s first decision, U.S. v. International Packaging, Inc., 12 OCAHO no. 1275a (Nov. 2016), the Office of Chief Administrative Hearing Officer (OCAHO) reduced the penalties proposed by Immigration & Customs Enforcement (ICE) from $88,825 to $38,050 for the 94 Form I-9 violations committed by International Packaging, Inc. (IPI).
Notice of Inspection and NIF
IPI was served with a Notice of Inspection and subpoena on February 17, 2011. On February 23, 2011, IPI produced some but not all its I-9 forms, inadvertently failing to produce 21 Form I-9s. ICE states it did not even learn of the existence of more employees until it examined IPI’s payroll records. After ICE requested nine of the 21 Form I-9s – all current employees – IPI complied.
On August 16, 2011, ICE issued a Notice of Intent to Fine (NIF). ICE alleged in Count I that IPI failed to produce 21 Form I-9s, and in Count II alleged that on 73 occasions, the company failed to enter certain data, such as document title, identification number or expiration date, in Lists A, B or C of Section 2. IPI failed to present any documentation attached to the I-9 forms. Thus, ICE asserts these are substantive errors, not technical ones, citing the Virtue Memorandum. IPI asserts that the supporting documentation was requested in a cover letter, not a subpoena; thus, ICE had “insufficient process” to allege these violations where the documentation, if presented, would have established these errors were technical.
For the 94 Form I-9 violations, ICE asserted a baseline penalty of $935 with a 5% mitigating factor due to IPI’s small size and a 5% aggravating factor for the seriousness of the offenses; the remaining three statutory factors were treated by ICE as neutral.
Earlier OCAHO Decision
In an earlier decision, U.S. v. International Packaging, Inc., 12 OCAHO no. 1275 (Apr. 2016), OCAHO sided with ICE and found nothing in the Virtue Memorandum requires an employer to copy and provide documents; rather, it is simply an affirmative defense. OCAHO found there was no conflict between 8 C.F.R. § 1324a.(b)(3) and the Virtue Memorandum. In this case, the employer did not provide the supporting documentation with the I-9 forms to ICE; therefore, the errors in Lists A, B and C were substantive. Furthermore, OCAHO found ICE is not required to ask for any supporting documentation; it is up to the employer to provide such and raise as an affirmative defense.
IPI asserted it demonstrated good faith before, during and after ICE’s audit. It specifically referenced IPI’s consultation with an immigration attorney several years before the audit on how to ensure compliance with the law. OCAHO found this reliance may have inadvertently caused subsequent confusion in ICE’s investigation – by failure to supply the backup supporting documentation for the I-9 Forms, which contributed to some of the violations. However, such reliance did demonstrate good-faith, which warrants some mitigation of the penalty.
Furthermore, IPI asserted through affidavits and financial documents that it could not afford to pay the proposed penalties and remain in business. Despite unclear financial records regarding the company’s financial condition and conclusory testimony, ALJ McHenry took the company’s finances into account because calculation of penalties is to be sufficiently meaningful for future compliance, not to force an employer out of business. Finally, ALJ McHenry cited IPI’s small size and the public policy of leniency toward small businesses.
Based upon these factors, OCAHO determined the penalty for failure to prepare and/or present I-9 Forms should be set at $500 per violation, rather than $935. As for the 73 substantive paperwork violations, OCAHO assessed those violations at $350 each.
IPI’s willingness to litigate the matter was advantageous from a financial perspective as it reduced the penalties by $50,000 or over 50%. This was despite losing on the initial legal issue of not being required to produce supporting documentation because it was not subpoenaed.
In view of recent news reports indicating that the connection between America's incoming president, Donald Trump, and Russia's dictator, President Vladimir Putin, may be even closer than previously thought, see:
it is instructive to take a overview of Russia's immigration policies as a possible guide to what might be in store for immigrants in America under the Trump administration.
While this may not necessarily be totally up to date, as it appeared in 2013, an article published by the Russian Legal Information Agency (RAPSI), which appears to be an authoritative, though evidently independent (judging from some of its criticism of Putin's policies - see below) source of information about legal developments in Russia, provides some useful insights into immigration policies in Vladimir Putin's Russia today.
The article, dated August 19, 2013, is entitled: Russia's New Migration Policy
According to RAPSI, there are three main elements to the "massive reforms" in immigration which were announced by Putin leading up to the 2013 elections.
1) Immigration document checks,
2) A network of holding centers for immigrants awaiting deportation
3) Employer sanctions for those hiring immigrants illegally.
RAPSI reports that with regard to the first feature, checking immigrants' legal documents:
"Migrants in Russia are being subjected to legal checks on a mass scale in Moscow and other regions."
Of course, America has already led the way in this advanced innovation, with Sheriff Joe Arpaio's raids and roundups of Latino immigrants under Arizona's SB 1070 law, before most of that law was thrown out by the US Supreme Court in 2012 (and Sheriff Joe himself was thrown out by the voters in this year's election).
But Russia is already planning to so this nationwide. Certainly, Donald Trump would not want to let himself be outdone by Vladimir Putin.
With regard to the second feature, RAPSI advises:
"In a total of 81 cities, 83 holding centers for deportable migrants should start operating soon. One such center was already established in Moscow shortly after the police beating incident.
This would, one could argue, represent a considerable humanitarian advance from the Soviet era, when people whom the government didn't want around in society were sent to a network of gulags in far off Siberia and other remote areas.
Now, it appears, every major city in Russia will have its own immigrant detention center located close by. Perhaps President Trump, taking a cue from President Putin, might wish to make sure that each American city will have its own immigrant detention camp as well, rather than relying on just a handful of remote locations as is the case now.
This would certainly be a boon to the private prison industry and would be consistent with Trump's promise to create more American jobs. It would also be a useful antidote to the Sanctuary Cities movement.
The Trump administration might even want to consider making these immigrant detention camps into tourist attractions, so that people can see for themselves what happens to immigrants who violate our laws - and to Americans who help them - who might well usefully be sent to the camps themselves - after all, don't we have Senator Jeff Sessions as our incoming Attorney General, and is INA Section 274, which makes it a crime to "harbor" or "assist" an unauthorized immigrant, not already on the books and waiting to be enforced?
Why should Vladimir Putin be allowed to win the prize for locking up the most immigrants (or immigrant-lovers too -see below)? Let's Make America Great Again!
In a further example of how Russia may be adopting a "Made in America" immigration policy, but on a much larger scale, and in a throwback to measures that were initially proposed in Hazelton PA, and championed by Republican Congressman Lou Barletta (who was reportedly once under consideration by Trump for the Secretary of Labor Poat before Trump finally chose someone with a more immigrant friendly reputation - fast food CEO Andrew Puzder) RAPSI reports:
"[Putin's] bill requires property owners to report any unregistered person living in the premises. In this case there is no distinction between foreigners and Russian nationals. The bill further permits the authorities to deport Russian nationals that are unregistered in the city they're presently residing in. For instance, if a man from the Dagestani capital of Makhachkala were to live and work in Moscow without proper registration, he could be placed in a deportation center pending being shipped back to Makhachkala, the place where he is properly registered.
Quite possibly Russia might slide back to the notorious 'propiska' system of the Soviet times."
To be continued in Part 2.
Roger Algase is a New York immigration lawyer and a graduate of Harvard College and Harvard Law School. For more than 35 years, Roger has been helping mainly skilled and professional immigrants from diverse parts of the world obtain work visas and green cards.
Roger believes that there is an unbreakable connection between protecting immigrants of all backgrounds and nationalities from discrimination and persecution, and preserving freedom and democracy for American citizens. His email address is email@example.com
Updated 12-13-2016 at 01:16 PM by ImmigrationLawBlogs
A meeting with the Department of Labor was held on December 6, 2016. The meeting provided an opportunity for stakeholders to pose questions regarding the PERM process. A wide range of topics was discussed.
1. Processing times. In 2016, there was a significant slow-down in prevailing wage determinations. While requests used to take one month, a backlog of almost six months developed in the second half of the year. DOL explained that because they have limited resources, they had to transfer examiners from the permanent program (PERM) to adjudicate temporary labor certification requests for agricultural workers. The need for agricultural workers is seasonal, so backlogs vary at different times of the year.
2. Tools for Prevailing Wage Requests. The Prevailing Wage Center uses the same tools as stakeholders, such as the O*Net database of occupations, information about commuting found in the Metropolitan Statistical Areas, and wage surveys. DOL advised that attachments with documentation should not be uploaded, because examiners do not have time to review the material. Instead, documentation should be summarized somewhere on the prevailing wage form 9141. Attachments would only be used if the employer asks DOL for redetermination or reconsideration.
3. Combinations of Job Duties. DOL recognizes that many occupations share similar job duties. When this occurs, the prevailing wage should be increased to a higher level (there are four levels in all). Where an occupation has shared duties, OFLC will assign the higher of the two wages.
4. Two Or More PERM Filings for the Same Job. OFLC can detect multiple filings by searching for the name of the employer and comparing the SOC codes in their applications. Stakeholders report that if two applications are filed for the same job, employers may expect a denial instead of an opportunity to withdraw. This is a change in policy, because in the past employers normally received an opportunity to withdraw one of the duplicate applications.
5. ACWIA. The American Competitive and Workforce Improvement Act applies to prevailing wage determinations for institutions of higher education, related or affiliated nonprofit entities, nonprofit research organizations, or governmental research agencies. Requests for prevailing wage subject to ACWIA take into consideration the type and size of employer and not just the type of job. Because DOL may not always recognize that a prevailing wage request is one which should be determined under ACWIA, employers may place an asterisk in the title field to correspond with a written explanation regarding ACWIA in another box.
6. Prioritizing Adjudications. The Atlanta Processing Center does not adjudicate applications for PERM based on first in, first out. Difficult cases take more time than others.
7. Unquantified Special Requirements and Skills. Specials skills are usually placed on the PERM Form 9089 in Box H-14. Terminology used in H-14 often includes words and phrases like “knowledge of,” “proficiency in,” or similar terminology. These special requirements should be quantified, but there is no DOL guidance on this subject. DOL has been denying applications that do not include quantification, but a recent decision from the Board of Alien Labor Certification (Smartzip Analytics, 2016-PER-695, November 9, 2016) has held that DOL should explain to employers how they may meet the requirement to quantify rather than deny applications for lack of guidance. In view of this important BALCA decision, OFLC has agreed to stop issuing denials and to provide guidance in the form of an FAQ.
8. Salary Range. OFLC has often denied PERM applications where employers listed salaries with phrases like “competitive salary,” “DOE [Depends on experience],” or “negotiable.” Many State Workforce Agencies have job order templates that do not permit employers to state wage ranges in a manner consistent with the PERM Rules. In Matter of Tek Services, LLC (2016-PER-207, (November 16, 2016), the Board reversed a denial where the employer advertised “competitive salary” instead of the one in the Prevailing Wage Determination. Based on this decision, DOL stated that it would approve cases that utilize salary ranges for job bank orders.
9. Harmless Error. Although harmless error does not exist in the PERM Rule, the Board has carved out exceptions which in some cases may include corrections for simple, typographical errors like the one where an employer typed the wrong date for the second Sunday ad. Both Sunday ads were properly placed on Sunday, but one of the dates reported by the employer on the PERM form was in error. DOL does not agree that changes on the form may be made to correct harmless errors. Instead, corrections may be made only after denial and appeal to BALCA.
10. Digitalized Signatures. DOL requires original signatures and does not accept electronic or digitalized versions of signatures.
11. Electronic Notification of PERM Letters. On December 1, 2016, the Board began to utilize electronic notification for audits, denials, requests for information, confirmation of withdrawals, and decisions from appeals, instead of hard copy notifications.
Updated 12-13-2016 at 10:27 AM by JStewart