Highlights from 2016’s Numerous Business Immigration Changes

Wednesday, January 11, 2017 - 22:28

With the Trump administration vowing to make major changes to U.S. immigration law and policy, it is worth looking back at what has happened in these areas over the past year. Without considering what changes may be made going forward, below are some of the highlights in employment-based immigration law in 2016.

Employment of Immigrant and Nonimmigrant Workers

Job Portability Rule. In November 2016, U.S. Citizenship and Immigration Services (USCIS) published a new regulation that is intended to ease restrictions on job mobility for foreign workers awaiting employment-based permanent residence. The new rule, which takes effect on January 17, 2017, also establishes grace periods for nonimmigrant workers before and after their employment, and it provides automatic work authorization extensions to adjustment applicants and certain other classes of foreign nationals who have made timely filings for renewals of employment authorization documents (EADs). 

The rule codifies USCIS’s interpretations of two key statutes: the American Competitiveness in the Twenty-First Century Act (AC21), enacted in 2000, and the American Competitiveness and Workforce Improvement Act (ACWIA), enacted in 1998. Publication of the rule fulfills one of the Obama administration's key goals with respect to employment-based immigration, and it is intended to help enable U.S. businesses retain and develop highly skilled foreign workers and reduce the burdens of lengthy immigrant visa backlogs on employment-based adjustment applicants.

Broadened STEM OPT Rule. In March 2016, the Department of Homeland Security (DHS) published a significantly revised and broadened STEM optional practical training (OPT) program that went into effect on May 10. Under the new rule, more F-1 STEM students are eligible for an extension of their OPT, and those who qualify will be granted a longer period of employment authorization. But their employers are subject to stringent new requirements, including an obligation to prepare a detailed training plan for each STEM OPT candidate. They are also required to comply with more extensive reporting requirements and to undergo worksite inspections conducted by U.S. Immigration and Customs Enforcement (ICE) officials. These requirements apply only to extensions of OPT for F-1 students with a qualifying U.S. science, technology, engineering or math degree; the standard 12-month OPT program is unchanged.

Automatic Extension of Work Authorization for Certain H-1B1s and E-3s. Pursuant to a regulation published in January 2016, Chilean and Singaporean H-1B1 and Australian E-3 nonimmigrants who are being sponsored for an extension of their stay may now benefit from extended work authorization benefits. The new rule gives eligible H-1B1s and E-3s an additional 240 days of work authorization beyond the expiration date of their Form I-94 arrival record, provided that a timely USCIS petition to extend status has been filed by the employer that sponsored the most recent period of stay. The work authorization extension is also available to those in the CW-1 category for foreign workers in the Commonwealth of the Northern Mariana Islands. This extension has long been available to qualifying H-1Bs and L-1s, among others.

OFLC Addresses Definition of “Worksite” for H-2B Purposes. The Department of Labor’s Office of Foreign Labor Certification (OFLC) issued guidance clarifying issues related to H-2B positions involving work at multiple locations. For purposes of the H-2B program, the new guidance states that a “worksite” is any location where the worker performs one or more duties of the job specifications (including third-party work locations). A position may involve performing duties at multiple worksites. Occupations that often perform duties at multiple worksites include landscapers, tour guides and truck drivers. The issue is important because the rules state that when the job opportunity involves work at multiple locations, a separate labor certification application will be required if all of the worksites are not within a single area of intended employment. See 20 CFR 655.15(f).

The agency does acknowledge one exception to this policy. Specifically, the OFLC recognizes that some job opportunities involve infrequent or occasional travel outside the usual area of intended employment. The guidance states that for such positions, the agency will consider the primary location where the work is performed as the official worksite and will permit certification of the job opportunity in a single application. The agency explains that certification is permissible in these cases because “travel is the exception not the norm.” OFLC cautions that the travel outside the area of intended employment must be “minimal in relation to the amount of time spent at the location where the work is generally performed.”

Employers Subject to Broadened Liability for Immigration-Related Employment Discrimination Claims. Pursuant to a final rule published in October 2016 that takes effect on January 18, 2017, the Department of Justice (DOJ) has made significant changes to the way it enforces federal immigration-related antidiscrimination laws. The new rule means that employers have greater exposure to immigration-related discrimination claims and increased liability. The rule broadens the definition of discrimination to include any intentional treatment that differentiates between employees because of national origin or citizenship status, regardless of the reason for difference. It also broadens the definition of “hiring” to include actions taken during the recruitment process. It gives the DOJ up to five years from the time of an alleged violation to file a complaint or conduct an investigation. Previously, the DOJ was limited to 180 or 210 days to bring a complaint or investigate one. Under this rule, the DOJ gives itself the authority to waive the 180-day limit for an individual employee to file a discrimination charge against an employer. The rule also gives the DOJ expanded investigative powers, both in terms of what information it may access and from whom it may obtain the information.

Adjudications

USCIS Ombudsman Highlights Adjudication Delays and Other Problems. The USCIS Ombudsman issued a report in June 2016 that characterized processing delays in H-1B extensions and employment authorization document (EAD) applications as among the most significant problems facing the agency today. The report also extensively analyzed persistent delays in issuing EADs. Lengthy processing delays often mean an interruption in employment authorization and other consequences. Though foreign nationals with H-1B status receive a 240-day automatic extension of status and work authorization following the timely filing of an H-1B extension petition with USCIS, processing times frequently extend beyond this grace period, forcing employers to remove foreign nationals from their payroll and benefits programs on the 240th day. Processing delays also impede a foreign national’s ability to renew a driver’s license if the prior H-1B period of stay has expired, regardless of whether a timely extension was filed.

The report also highlighted the continued significantly high rates of requests for evidence (RFE) from petitioners seeking highly skilled foreign workers, inconsistent adjudications across agency Service Centers, and lengthy delays in employment authorization processing. The Ombudsman called on USCIS to be more transparent regarding RFE rates, especially concerning processing disparities among Service Centers and the issuance of overly burdensome requests for evidence, and it also called on the USCIS to institute supervisor review for evidence requests.

Admission of Foreign Nationals into the United States

New Electronic Visa Update System (EVUS). DHS and the Department of State (DOS) published final rules establishing the Electronic Visa Update System (EVUS). The EVUS is now operational. (See https://www.evus.gov.) The EVUS program collects biographic and other information from holders of specified categories of nonimmigrant visas from identified countries. Affected travelers will need to enroll in the system, pay an $8 fee and update their biographic information in order to enter the United States for business or tourism. Enrollment remains valid for two years or until the traveler’s passport or visa expires, whichever occurs first. Those who fail to enroll in EVUS will not be issued an airline boarding pass or admitted at a U.S. land border, and they could have their visa revoked as well. DHS also published a notice identifying the People’s Republic of China (PRC) as an EVUS country and designating maximum validity B-1, B-2 and B-1/B-2 visas as designated visa categories, effective October 20, 2016. Chinese nationals holding a People’s Republic of China passport containing a 10-year B-1/B-2 nonimmigrant visa will be the first required to enroll in the online system, effective November 29, 2016. DHS is expected to require additional classes of nonimmigrants to register in the system before travel to the United States in the near future.

Proposed Parole Program for Foreign Entrepreneurs. A USCIS proposal would create a mechanism to allow up to five years of temporary stay, on a case-by-case basis, for qualifying foreign entrepreneurs who establish a U.S. startup entity that has substantial U.S. investment and the potential for rapid growth and job creation. The long-awaited proposed regulation was first announced in November 2014 as part of President Obama’s planned executive actions to encourage innovation and support U.S. high-skill businesses and workers. The purpose of the program is to fill a gap in the U.S. immigration system and allow promising foreign entrepreneurs who might not meet the eligibility criteria of existing visa programs to remain in the United States to grow their businesses and make contributions to the U.S. economy. The program would not provide an immigration status to approved applicants. Rather, qualifying entrepreneurs could receive parole – discretionary permission to remain in the United States – but would not be eligible for permanent residence unless they qualified under another U.S. immigration program.

U.S. Government Broadens Visa Waiver Program Restrictions. Nationals of Visa Waiver Program (VWP) countries who have traveled to Iran, Iraq, Libya, Somalia, Sudan, Syria or Yemen since March 1, 2011 are prohibited from using the program unless they qualify for an exemption or obtain a waiver. The restriction also applies to dual nationals of a VWP member country and Iran, Iraq, Sudan or Syria. However, DHS has elected not to impose travel restrictions on individuals with dual nationality in Libya, Somalia or Yemen and a VWP member country. Individuals subject to VWP travel restrictions must obtain a B-1/B-2 visa from a U.S. consulate to visit the United States for business or tourism, with very limited exceptions. DHS is authorized to grant an exemption from the travel restrictions to those who have traveled to a country of concern in the course of diplomatic or military service on behalf of a VWP member country. The agency is also authorized to grant waivers on a case-by-case basis to those who have traveled to a country of concern on official duty for an international or nongovernmental organization or as a journalist for reporting purposes, or those who have traveled to Iran or Iraq for legitimate business purposes in limited circumstances.  However, official procedures for obtaining a waiver or exemption have not yet been announced.

Procedural Changes

DHS Launches Known Employer Pilot Program. DHS started testing a new Known Employer program in 2016. The aim of the program is to streamline the adjudication of some types of employment-based benefit requests. Working with a group of five U.S. employers, the agency is piloting a process by which participating organizations can apply to have USCIS predetermine that they meet certain corporate requirements before they submit some types of immigration petitions and applications. Under the pilot program, participating employers will be vetted by USCIS, U.S. Customs and Border Protection (CBP), and U.S. Immigration and Customs Enforcement (ICE). Those admitted to the program will submit corporate documentation and other evidence to an online library, which USCIS, CBP and State Department officers will use to adjudicate the employer’s petitions and applications, rather than having to resubmit company documents with each individual petition or application. H-1B, L-1 and TN nonimmigrant classifications and EB-1 outstanding professors/researcher and multinational manager immigrant classifications will be covered by the predetermination. At the close of the yearlong pilot, DHS is expected to issue an assessment of its effectiveness and a plan for permanent implementation if the pilot is deemed successful.

USCIS Issues Interim Guidance on Signatures and Powers of Attorney. Pursuant to an interim guidance memorandum issued in June 2016, USCIS has officially recognized the use of powers of attorney (POAs) to authorize outside counsel to sign immigration benefit requests on behalf of entities and individuals. It also explicitly permits the use of scanned and photocopied signatures on immigration filings, and sets forth the agency’s policies on authorized signatories for corporations and other legal entities.

USCIS Increases Immigration Filing Fees. Effective December 23, 2016, the filing fees for many USCIS petitions and applications were increased. Fees for employment-based petitions and applications rose by an average of 21 percent, though increases for some filings – notably, Form I-129 nonimmigrant worker petitions and EB-5 immigrant investor cases – are significantly higher. There has been no increase in the premium processing fee. According to DHS, the higher fees reflect the current cost of processing immigration applications and petitions. Some portion of the increased fees will provide additional funding for refugee and citizenship programs as well as system support for interagency immigration status verification databases. The last comprehensive increase in USCIS filing fees took place in 2010.

New fees for key employment-based petitions and applications are as follows:

Form I-129 Petition for Nonimmigrant Worker – old fee: $325; new fee: $460.

Form I-140 Petition for Alien Worker – old fee: $580; new fee: $700.

Form I-485 Application to Adjust Status – old fee: $985; new fee: $1,140. (Both the old and new I-485 fees include the cost of concurrently filed Forms I-765 (for employment authorization) and I-131 (for advance parole/travel authorization.)

Form I-765 Application for Employment Authorization – old fee: $380; new fee: $410.

Form I-131 Application for Travel Document – old fee: $360; new fee: $575.

Form I-539 Application to Extend/Change Nonimmigrant Status – old fee: $290; new fee: $370.

Form I-526 Immigrant Petition by Alien Entrepreneur – old fee: $1,500; new fee: $3,675.

Form I-924 Application for Regional Center Designation under the EB-5 Immigrant Investor Program – old fee: $6,230; new fee: $17,795.

Form I-924 Annual Certification of EB-5 Regional Center – old fee: $0; new fee: $3,035.

Form I-90 Application to Replace Permanent Resident Card – old fee: $365; new fee: $455.

Biometrics Fee – old fee: $85; new fee: $85. 

Careen Shannon is a partner in Fragomen, Del Rey, Bernsen & Loewy, LLP’s New York office, and she also serves as the firm’s Director of Communications. She can be reached at cshannon@fragomen.com.