New Immigration Work Visa Proposals and Updates in 2016

January 2016

Published by the Law Offices of Alena Shautsova, 2908A Emmons Ave, Brooklyn, New York 11235

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― Mahatma Gandhi

New Proposed Rule Regarding Nonimmigrant Work Visas

Author: New York Immigration Lawyer Alena Shautsova

The New Year comes with new proposed changes in work visas regulations. I would like to emphasize that the rule published is a proposed rule. It means it is not the law yet, and we can only speculate what the final resultwould be. However, it is worth it to highlight certain proposed changes just to see the direction in which the DHS is moving.

First, the proposed rule would largely conform DHS regulations as to longstanding agency policies and procedures established in response to certain sections of the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA), Public Law 105–277, div. C, tit. IV, 112 Stat. 2681, and the American Competitiveness in the Twenty-first Century Act of 2000 (AC21), Public Law 106–313, 114 Stat. 1251, as amended by the 21st Century Department of Justice Appropriations Authorization Act, Public Law 107–273, 116 Stat. 1758. In short, it will codify the rules about extensions of status for H1B holders who are being sponsored for permanent residency. Also, it would codify portability rule contained in Section 106(c) of AC21 which provides that certain immigrant visa petitions filed under the EB–1, EB–2, and EB–3 preference categories will remain valid with respect to a new qualifying job offer if the beneficiary changes jobs or employers, provided an application for adjustment of status has been filed and such application has been pending for 180 days or more. It is important to remember that the new job offer must be in the same or a similar occupational classification as the job for which the original immigrant visa petition was filed. In addition, the proposed rule would codify AC21’s cap exemption provisions for individuals employed at an institution of higher education, a nonprofit entity related or affiliated to such an institution, or a nonprofit research or governmental research organization.

The proposed rule will also codify the regulations regarding H1B portability. Congress created such H–1B portability to ‘‘allow an H– 1B visa holder to change employers at the time a new employer files the initialpaperwork, rather than having to wait for the new H–1B petition to be approved. Notably: to be eligible for an extension of status, an individual must file for an adjustment of status or an immigration visa within one year of an immigrant visa becoming immediately available with certain exception. Also, the proposed rule would allow to be self-employed for portability purposes. Importantly, under the proposed rule the approved earlier 140 petition would not be automatically revoked based on withdrawal or termination of the petitioner’s business. As long as there was no fraud involved or there was no revocation of the labor certification, the I-140 approval will remain valid. However, a new immigrant petition will be required.

Second, the rule offers clarifications as to priority date for EB1, EB2 (NIW) and EB5 categories: the priority date will be the date when completed, signed petition is filed with DHS.

The proposed rule offers grace periods to seek new employment opportunities: DHS offers to increase the grace period from 10 to 60 days for H1B and H1B1 cases (currently, 10 days are provided to H1B workers before the beginning of the employment to make arrangements for work, and after the termination of employment to either find a new employer or make arrangements to leave the US), and to extend it for E1, E2, E3, L1 and TN cases.

Finally, the proposed rule would create a new basis for an Employment Authorizations for holders of E-3, H1B, H1B1, O-1 or L1 status, who are the beneficiaries of approved immigrant visa petitions filed by sponsoring U.S. employers and who face compelling circumstances such as serious illness and disabilities, employer’s retaliation. The new EAD would allow to change an employer without waiting for 180 days, change a geographical area of employment or position without jeopardizing underlying immigrant process. Negative: the applicant would have to give up his/her non-immigrant status and this in turn will cause the applicant not to be able to change status or adjust status.

Other proposed changes include automatic extension for up to 180 days of the EADs when request is filed for the same category and prior to the current EAD’s expiration. The receipt of filing for a new EAD coupledwith the old EAD will be treated as unexpired EAD for the I-9 purposes. Also, DHS (probably due to the recent lawsuit) is proposing to eliminate the 90 day deadline for the EAD adjudication.

As mentioned, these are just proposals, and public may comment on them until February 26, 2016.

Recourse for Widow(er)s After the Death of the Beneficiary

Author: Green Card Attorney Alena Shautsova

We all know that life happens, and sometimes it happens unpredictably. It may occur that one who started the immigration process for his/her family members passes away and the beneficiary is left in the middle of a crisis unsure about his/her immigration status.

For situations like that, USCIS created special rules allowing certain beneficiaries who were petitioned by the now deceased persons to be able to continue with the Immigration process. In most such cases, the process would be referred to as Humanitarian reinstatement. Subsequently, the regulations were changed to benefit the requestors, but the process is still routinely called “humanitarian reinstatement” even when the actual standards for the relief are different from the originally outlined.

A humanitarian reinstatement is a reinstatement of a petition filed by now deceased petitioner because the petition gets automatically revoked once the petitioner passes away. What does a beneficiary need in order to be able to adjust status or get a visa even when the person who submitted the petition dies? The DHS establishes the following requirements:

The I -130 petition must be approved. If the petitioner dies while the I 130 is pending, the reinstatement is impossible.

If the I 864 is required, the beneficiary has to find a new sponsor with the following qualifications:

A U.S. citizen, national, or lawful permanent resident;

At least 18 years old; and

Your spouse, parent, mother-in-law, father-in-law, sibling, child, son, daughter, son-in-law, daughter-in-law, sister-in-law, brother-in-law, grandparent, grandchild, or legal guardian.

The requester has to demonstrate that the exercise of favorable discretion is warranted

The DHS regulation is 8 CFR 205.1(a)(3)(i)(C)(2).

Later, under INA 204(l) the petition can be still granted if the petitioner dies while the petition is pending when certain requirements are met, including residency requirement: US must be the requester’s primary home. The requester does not need to be physically in the United States when the petitioner dies.

There is also a special protection for widows and widowers outlines in the USCIS Policy Memorandum “Approval of a Spousal Immediate Relative Visa Petition under Section 204(l) of the Immigration and Nationality Act after the Death of a U.S. Citizen Petitioner.” To wit, the policy states: “…a Form I-130 filed by a U.S. citizen for the U.S. citizen’s spouse becomes a Form I-360 if the U.S. citizen has died. The widow(er) becomes the visa petitioner, and generally does not need to rely on INA 204(l). USCIS has determined, however, that if the widow(er) was the beneficiary of a pending or approved Form I-130 when the original petitioner died and the widow(er) meets the residence requirements in INA 204(l), then INA 204(l) preserves the widow(er)’s ability to have a waiver application approved as if the now deceased U.S. citizen had not died. If the widow(er) remarries and then requests and obtains relief under section 204(l) and Williams v. DHS Secretary, 741 F.3d 1228 (11th Cir. 2014), the remarried widow(er) may also rely on INA 204(l) in seeking a waiver of inadmissibility. As with any other waiver application that is covered by INA 204(l), the fact that the U.S. citizen petitioner has died will be noted in the decision and deemed to be the functional equivalent of a finding of extreme hardship. But the finding of extreme hardship merely permits, and never compels, a favorable exercise of discretion. See Matter of Mendez-Moralez, supra. The widow(er) must still establish that he or she merits a favorable exercise of discretion.”

It means that even in the worst case scenario, a beneficiary still has hope to retain eligibility for immigrant visa/adjustment of status in the U.S.

I-9 Compliance for Employers

I-9 compliance is a necessity nowadays, and if you do not know what I-9 means you should at least read this article: http://www.shautsova.com/immigration-usa/i-9-uscis-forms.html. Today’s article will be focused on internal audit that employers should conduct to avoid penalties for missed compliance. It is important to remember that employers cannot discriminate against employees based on the basis for their employment eligibility and cannot establish restrictions as to how an employee may prove his/her employment eligibility. Having said that, it means, that even an internal audit has to comply with these anti-discriminatory provisions.

An internal audit helps an employer to correct defects in I-9 forms and make sure that the employment force is within the compliance regulations. For I-9 consists of several parts some of which are filled out by an employee. As such, an employer cannot correct information authored by an employee, and has to ask an employee to make corrections. Each correction has to be initialed and dated. If a translator is used, that person has to initial the correction/omission as well.In addition, the preparer/translator has to complete the certification block of the form.

If an employee is no longer with the company, the employer has to attach an explanation regarding this with the corrections. The employer who is correcting section 2 cannot use the white out or concealer. IF there are multiple errors that need to be corrected, an employer should use a new form I-9 and attach it to the old one.

In case an employer discovers an I-9 that was not completed, it has to be completed as soon as possible, but cannot be back dated.

Further, for those employers who are also E-verify participants: those participants that accidently did not create a case for a hired employee can create a new case in the system. However, if the employer did not create cases as a practice, the employer cannot go back and start creating cases unless it is a federal contractor.

As a reminder, an employer may use an outside auditor to conduct an I-9 audit. As the regulations pertaining to I-9 compliance are complicated and constantly changing, the employer should establish a policy for a regular internal audit procedure.

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