Category: Alerts

Monday, April 3rd, 2017 marks the first day U.S. Citizenship and Immigration Services (USCIS) will accept H-1B petitions subject to the Fiscal Year (FY) 2018 H-1B cap.  Preparation for H-1B cap season starts much earlier, with the identification of prospective beneficiaries and gathering of supporting documentation.  With increasing demand for H-1B workers, we encourage employers to identify potential H-1B cap cases now and work with immigration counsel to ensure timely filing of cases.

Background:

H-1B cap cases generally fall within two categories:

• “Standard” Cap Petitions.  These are petitions for which the minimum educational requirement is a bachelor’s degree or its equivalent. Standard cases are capped at 65,000 annually, though 6,800 of those visas are set aside for H-1B1 visas for citizens of Chile and Singapore. (Please note that as a practical matter, there is no urgency to file H-1B1 petitions for Chilean and Singaporean citizens by April 1st as, historically, visas for these petitions have remained available throughout the fiscal year due to low demand.)
• U.S. Advanced Degree Petitions.  These are petitions for which the beneficiary holds an advanced degree, defined as a master’s degree or higher, awarded by a U.S. university. USCIS allocates an additional 20,000 H-1B visas for U.S. advanced degree cases each fiscal year.

Potential beneficiaries who should be considered for an H-1B cap petition filing include, but are not limited to: potential new hires from overseas; F-1 students completing a qualifying course of study or working pursuant to Optional Practical Training; some L-1 visa holders; certain J-1 exchange visitors; and TN and other nonimmigrant status holders who wish to change to H-1B status in the coming year.

Last year, the available visa numbers were exhausted very quickly leading USCIS to announce on April 7th – only 5 business days after the filing period had opened — that the annual H-1B limit had been reached. Having received more than 236,000 petitions to surpass the limit of 85,000, H-1B cap petitions were subject to a lottery for the fourth consecutive year.

With employers filing H-1B cap petitions for those employees who missed out in the last few years, as well as new petitions being filed on behalf of recent graduates and new employees, we anticipate that the H-1B quota will again be quickly reached this year.  Accordingly, it is increasingly important to file cap-subject H-1B petitions at the earliest possible date.  Although H-1B cap petitions may be filed as early as April 3rd, 2017, note that employment pursuant to any approved FY 2018 H-1B cap petition may not commence prior to October 1st, 2017.

A Reminder – Who Is Not Subject to the Cap:

As a reminder, certain H-1B petitions are not counted against the FY 2018 annual cap. These include the following:

• Individuals in H-1B Status Previously Counted Against the Cap.  In most cases, individuals who were counted against the cap in a previous fiscal year are not subject to the current cap. This includes extensions of status for current H-1B visa holders, changes in the terms of employment for current H-1B workers, and most petitions for changes of H-1B employers and petitions for concurrent employment in a second H-1B position.
• Petitions for Exempt Organizations.  H-1B petitions for employment at institutions of higher learning or related/affiliated nonprofit entities, nonprofit research organizations, and governmental research organizations are cap-exempt.

Gibney will be closely monitoring any proposed changes to policy or procedure under the new Trump administration, and we will provide updates as needed.

If you have any questions about this alert, please contact your Gibney representative or email info@gibney.com.

USCIS has published the latest version of Form I-9. Employers must use the new version starting January 22, 2017. Employers may continue to use the 2013 version until then.

The new Form I-9 includes minor modifications to the content of certain fields, the addition of “smart” technology to the online PDF version, and significant changes to the Form instructions to accompany the new smart features. For employers who use an electronic Form I-9 system, the impact of these changes will be minimal. For those employers who do not use an electronic Form I-9 system, the addition of smart technology will greatly assist their I-9 compliance efforts.

New Form Changes

• Integration of “smart” technology on the PDF version: For employers who do not use an electronic I-9 system, the smart technology is designed to mimic its compliance features including:
  • Ability to see detailed instructions on completing fields simply by hovering over them.
  • Real-time error notifications to increase compliance; for example users cannot enter expiration dates earlier than the current date or leave mandatory fields blank.
  • Generated QR bar code once the form is completed that can be scanned by auditors from U.S. Immigration and Customs Enforcement.
• Section 1: Content changes include the option for foreign national employees to enter either their I-94 number or their passport number (previously, both numbers were required). Also there now includes a mandatory attestation concerning whether a translator or prepared was used.
• Section 2: Changes include a new field on the top of the section where the employee’s citizenship/immigration status entered on Section 1 must be listed. There is also a new field allows employers to enter “Additional Information,” such as annotations that employers were previously instructed to write in the margins of the Form.

The Form I-9 instructions are now lengthier due to the addition of the “smart” technology features. USCIS is expected to release the new version of its I-9 Handbook for Employers shortly.

If you have any questions regarding this alert, please contact your designated Gibney representative, or email info@gibney.com.

In 2015, Citizenship and Immigration Canada (“CIC”) introduced an Electronic Travel Authorization (“eTA”) Program. The eTA program objective is to establish a uniform process to screen visa-exempt foreign nationals prior to travel to Canada, in order to identify security threats prior to arrival in North America. The eTA program is modelled after the Electronic System for Travel Authorization (“ESTA”), which applies to foreign nationals who enter the U.S. under the Visa Waiver Program.  The government-authorized transition period that allows travelers to board their flight without an eTA ends November 9, 2016.

Effective November 10, 2016, the eTA  will be required for visa-exempt nationals who fly to Canada. Entry requirements will not change for entries made by land and sea. The following foreign nationals will need an eTA prior to entering Canada:

• Visa-exempt foreign nationals
• Foreign nationals who are U.S. Lawful Permanent Residents.
• Foreign nationals who are currently in Canada under a work or study permit must apply for an eTA.
• Foreign nationals applying for a work or study permit after August 1, 2015 will automatically be granted an eTA.

Importantly, U.S. citizens are exempt from the eTA requirement and do not need a visa to enter Canada.

Before traveling to Canada, foreign nationals must apply for an eTA through an online application process. An eTA will be issued within minutes and will be valid for five years or for the validity of the underlying passport, whichever comes first.

For information and application procedures, please visit http://www.cic.gc.ca/english/visit/eta.asp.

If you have any questions regarding this alert, please contact your designated Gibney representative, or email immigrationalerts@gibney.com.

On October 24, 2016, U.S. Department of Homeland Security (“DHS”) published its final rule regarding fee changes for immigration related-filings. The rule will take effect on December 23, 2016. Applications or petitions mailed, postmarked, or filed on or after December 23, 2016 must include the new fees.

Under this new rule, DHS is increasing fees by an average of 21% and establishing new fees for certain processes and forms. This increase is the result of U.S. Citizenship and Immigration Services’ (“USCIS”) comprehensive fee review for the Fiscal Year 2016/2017 biennial period, in which DHS determined that an increased fee schedule is necessary to recover costs and maintain adequate service.

Please see the Federal Register website and below for the complete list of fee increases.

For more information, please contact your designated Gibney representative or email info@gibney.com.

U.S. Customs & Border Protection (CBP) recently released a new format for the Form I-94 retrieval website and I-94 document records. On the CBP website, users can retrieve electronic Form I-94s and view their travel history including U.S. arrivals and departures. While the formats of the website and the electronic Form I-94 record have changed, the basic content has remained the same and the Form I-94 still serves its original purpose – the government’s official record of an individual’s date of entry, class of admission (e.g. visa type), and authorized period of stay. The I-94 may also be required as proof of work authorization by employers or government agencies.

Beginning in April 2013, CBP began implementing a Form I-94 automation process, in which foreign nationals no longer receive a paper Form I-94 as part of the immigration inspection process. Instead, an electronic I-94 record is created by a CBP officer at the port of entry utilizing information from the Department of Homeland Security and Department of State systems that collects advance traveler information. CBP still stamps the foreign national’s passport at the time of inspection and annotates the stamp with the class and duration of admission. At the time of inspection, foreign nationals should check the accuracy of the CBP admission stamp in their passports to help minimize the risk of error in the government database.

For more information, please contact your designated Gibney representative or email info@gibney.com.

What is the Diversity Visa Lottery?
The Diversity Immigrant Visa Program, which is administered by the U.S. Department of State, permits up to 50,000 diversity immigrant visas to be granted for fiscal year 2018 to persons from countries with low immigration rates to the United States. Foreign nationals are selected for eligibility to file an application for permanent residence under this program on the basis of a lottery.

When can I apply?
The U.S. Department of State will accept applications for the 2018 diversity lottery between 12 noon Eastern Daylight Time (EDT) (GMT-4) on Tuesday, October 4, 2016, and 12 noon Eastern Standard Time (EST) (GMT-5) on Monday, November 7, 2016. Applicants are encouraged to apply in the early part of the application period.

Who is eligible?
In order to enter the diversity visa lottery, an individual must be a national of an eligible country and must meet minimum education/work requirements.

Nationality:
No visas may be awarded to foreign nationals of countries that have sent more than 50,000 immigrants to the U.S. over the period of the last five years. For the 2018 diversity lottery, nationals of the following countries are NOT eligible to apply: Bangladesh, Brazil, Canada, China (mainland born), Colombia, Dominican Republic, El Salvador, Haiti, India, Jamaica, Mexico, Nigeria, Pakistan, Peru, Philippines, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam. Persons born in Hong Kong SAR, Macau SAR, and Taiwan are eligible. As of this year, Ecuador is eligible for the diversity visa.
Nationality is defined by the location of a person’s birth. However, if a foreign national is ineligible to apply based on their country of birth, there are two alternate ways to qualify. First, a foreign national whose spouse was born in a country whose natives are eligible to apply may apply provided the spouse is eligible. Second, a foreign national who was born in a country whose natives are ineligible to apply is eligible to apply if neither of his/her parents were born in or legally resided in that country at the time of the foreign national’s birth.

Education/Work:
In addition to meeting the nationality requirement, in order to enter the diversity lottery, a foreign national must have either a high school education or its equivalent, or at least two years of work experience within the past five years in an occupation requiring at least two years training or experience to perform.

How do I Apply?
Diversity lottery submissions are only accepted electronically. The electronic applications are submitted via the U.S. Department of State’s Diversity Visa Lottery website. Applicants may only submit ONE lottery entry; individuals who attempt to submit more than one application will be disqualified from participating in the lottery.
A diversity application must be accompanied by digital photographs of the applicant, the applicant’s spouse (if applicable), and the applicant’s dependent children (if applicable) taken in accordance with specific requirements set forth in detail on the U.S. Department of State’s website. Note: each spouse may submit his/her own application if he/she otherwise qualifies. In completing the electronic entry form, the following data will be required: full name, date of birth, gender, city of birth, country of birth, country of eligibility for the program, photograph(s), mailing address, current country of residence, phone number (optional), email address, educational level, marital status, number of children, and information about spouse and children.

How does the Selection Process Work?
Winners of the lottery will be selected in a random computerized process. After entering the lottery, it is critical to safeguard the confirmation page as it contains information that is needed to check the status of the application. Starting May 2, 2017 (through at least September 30, 2018), applicants can check the status of their application using their confirmation number through the Entry Status Check section of the E-DV website. Lottery winners will not receive correspondence in the mail to confirm the selection of their application; the status of the application can only be checked through the E-DV website.

Selection in the lottery does not automatically confer lawful permanent resident status. In order to become a permanent resident of the U.S., a selected lottery winner’s (and their dependents) application(s) for permanent residence must be filed and approved by September 30, 2018. The permanent residence application may be filed either via adjustment of status (if the foreign national is in the U.S. in a valid nonimmigrant status) or via consular processing.

Finally, please note that more lottery “winners” are selected than there are immigrant visas available because some winners will not be eligible to become U.S. permanent residents of the U.S. Accordingly, some individuals who are selected to apply for diversity visas may ultimately be unable to become U.S. permanent residents if the available diversity immigrant visas are assigned prior to their permanent residence application being adjudicated.

Where Can I Get More Information?
Instructions regarding how to apply for the 2018 Diversity Visa Lottery may be obtained from the U.S. Department of State’s PDF instructions and U.S. Department of State’s website.

For more information or specific legal advice, please contact your designated Gibney representative or email info@gibney.com.

H-1B Cap-subject petitions filed and approved for Fiscal Year 2017 will take effect on or after October 1, 2016.

Change of Status Filings:

For H-1B Cap petitions that were filed as “change of status” effective October 1, 2016, the beneficiary’s status will change from the current nonimmigrant status to H-1B on October 1, 2016, if the beneficiary:

• Was physically present in the U.S. for the entire period from the date the petition was receipted by the U.S. Citizenship & Immigration Services (USCIS) through the date the application was approved; and
• Is physically present in the U.S. on October 1, 2016 for the change of status to take effect.

After October 1, 2016, if the beneficiary departs the U.S., s/he must apply for an H-1B visa at a U.S. Consulate abroad in order to re-enter the U.S. in H-1B status. Most U.S. Consulates require a personal interview to apply for a visa, and most require a number of weeks to schedule an interview. Actual visa processing times vary by Consulate and can be found at the U.S. Department of State website. The beneficiary is advised to check the website of the specific Consulate s/he intends to visit for further information relating to the scheduling of an interview and visa processing information.

Consular Notification Filings:

For H-1B Cap petitions that were filed as “consular notification” effective October 1, 2016, the beneficiary’s status will not automatically change from the current nonimmigrant status to H-1B without further action. In order to activate H-1B status, the beneficiary must depart the U.S. if not already abroad, obtain an H-1B visa at a U.S. Consulate, and re-enter the U.S. utilizing the H-1B visa. H-1B status will take effect upon the date of re-entry into the U.S. Please see comment above regarding the scheduling of an H-1B visa interview and visa processing information. (Note: Canadians are visa exempt.)

Form I-9 Reverification:

Employers are reminded of the obligation to reverify the employment eligibility of all H-1B Cap beneficiaries for whom a change of status filing was requested and approved, through completion of Section 3 of Form I-9. This reverification must be completed on or before commencement of the H-1B period of authorized stay (typically October 1, 2016).

Taxes for F-1 and J-1 Non-Immigrants:

F-1 students and J-1 exchange visitors who are maintaining valid status may be exempt from FICA tax withholding. However, please note that once an F-1 or J-1 foreign national changes status to H-1B, s/he will no longer be exempt from FICA tax.

Pending Petitions:

For H-1B Cap-subject petitions that were filed with regular processing and remain pending with the USCIS, petitioners or beneficiaries may wish to request an upgrade utilizing the Premium Processing method for an additional government filing fee, which ensures adjudication of the petition (or a request for further evidence) within fifteen (15) days of the request.

For more information, please contact your designated Gibney representative or email info@gibney.com.

The U.S. Department of Homeland Security published a Federal Register notice announcing an expansion of Global Entry program eligibility to all citizens of the U.K., effective as of 7/12/2016. Previously, only a limited pilot program allowed certain U.K. citizens to apply for Global Entry. Once a U.K. citizen is enrolled in Global Entry, he/she will also be eligible to participate in the TSA Precheck program.

The Federal Register notice also announces that certain U.S. citizens may apply for membership in Registered Traveler, the United Kingdom’s registered traveler program.

For more information on the Global Entry program, see the U.S. Customs and Border Protection website. Please see here for more information on the Registered Traveler program. If you have any questions, please contact your designated Gibney representative or email info@gibney.com.

On June 24, 2016, the United Kingdom voted to leave the European Union (EU). Pursuant to Article 50 of the EU Treaty, the British government must notify the EU of its withdrawal. Notification is not expected before a new Prime Minister is selected, and once commenced, separation procedures are expected to take at least two years. Until separation is fully negotiated and the United Kingdom exits the EU, EU citizens will retain their right to reside and work in the UK and British citizens will retain their right to reside and work in other EU member states.

The future of UK immigration law is expected to change significantly with separation from the EU. The UK has not decided whether free movement of EU nationals will be limited or cease altogether. In addition, the UK is not a signatory to the Schengen Agreement, which impacts short-term business travel.  After separation, EU nationals may need to apply for an entry visa and vice versa for purposes of business or tourism. Visa waiver programs will also need to be negotiated and this will take additional time to implement fully.

Although there is no immediate impact or action needed for British nationals currently working or residing in an EU member state or for EU nationals working or residing in the UK, employers should commence tracking their EU workforce in the event work authorization and visas should later be required. In advance of the United Kingdom’s separation from the EU, EU nationals may apply for a registration certificate in the UK to document their immigration status.  Also, if otherwise eligible, EU nationals may file for UK permanent resident status or citizenship.

Gibney will continue to monitor this matter and provide updates as they become available. If you have any questions regarding this alert, please contact your designated Gibney representative, or email info@gibney.com.

This article is provided as general information for clients and friends of Gibney, Anthony & Flaherty, LLP. It does not constitute, and should not be construed as, legal advice. The contents of this article may be considered attorney advertising in some states.

The U.S. Department of State (DOS) Visa Office has recently issued new guidance to Consular Officers, instructing them to prudentially revoke visas for individuals in the U.S. who have been charged with a driving under the influence (DUI) related offense, unless the issue was already addressed in the initial visa application. Previously, visa holders who had already been issued visas and were present in the U.S. were not subject to visa revocation after the fact, and there were no consequences for DUI-related offenses until the time of the individual’s next visa application.

DOS receives information on arrests and convictions through U.S. government agencies’ electronic databases. If visa revocation is to occur, DOS is required to notify visa holders in writing where practical, prior to revocation. Visa revocation does not require an individual to immediately depart the U.S., assuming the individual has been admitted to the U.S. in lawful status with a corresponding valid unexpired I-94 arrival/departure record. However, visa revocation would invalidate all of the individual’s currently valid visas for any future travel to the U.S. Further, an individual who departs the U.S. would then need to re-apply for a new visa at a U.S. Embassy or Consulate abroad before being able to return to the U.S. If the individual is currently present in the U.S. when revocation occurs, s/he would need to present the visa at a Consulate abroad so that the visa can be physically cancelled.

It is well established that DOS has the authority to revoke a visa based on an individual’s arrest or conviction related to a DUI offense, as this may be indicative of visa ineligibility for a possible physical or mental disorder with associated harmful behavior (see Immigration and Nationality Act, Section 212(a)(1)(A)(iii)).

As always, it is imperative that clients continue to immediately disclose all criminal-related issues to their legal counsel so that potential immigration consequences and ineligibilities can be analyzed and addressed.

For more information, or if you have any questions, please contact your designated Gibney representative or email info@gibney.com.