Category Archives: Immigration

Form I-9 Compliance Update

Contributed by Sara Zorich

Green Cards May No Longer Always Contain a “Signature”

Employers should be aware that some Green Cards (“permanent resident cards”) now have an image stating “Signature Waived” on the front and back of the card where a signature would normally be located instead of the permanent resident’s actual signature. U.S. Citizenship and Immigration Services (“USCIS”) has indicated that these cards are issued to people entering the U.S. for the first time as lawful permanent residents after obtaining their immigrant visa abroad from a U.S. Embassy or consulate. This process began in February 2015. The Green Cards are valid documents and acceptable to support an employee’s authorization to work in the U.S. Employers should train the employees responsible for the Form I-9 process regarding this change.

EADs Come With Varying Expiration Dates Based on Court Injunctiongreen card

On February 16, 2015, a federal district court judge in Texas granted a preliminary injunction temporarily blocking the implementation of President Obama’s Deferred Action for Parents of Citizens and Lawful Permanent Residents (“DAPA”) and the expansion of Deferred Action for Childhood Arrivals (“DACA”). As a result of the injunction, USCIS was ordered to stop issuing 3-year Employment Authorization Documents (“EAD”) for DACA recipients and only issue 2-year EADs going forward.  Approximately 2,100 3-year EADs, issued after February 16th, were required to be returned to USCIS by July 31st. USCIS has indicated that they have issued 2-year EADs to the 2,100 affected persons. Note, the February 16th injunction DOES NOT affect the approximately 108,000 three-year EADs that were issued PRIOR TO the February 16th injunction going into effect. There continues to be ongoing litigation regarding the implementation of DAPA and the extended DAPA which will affect the period of time in which a DACA recipient may receive an EAD.

Employers should be aware that their employees may present EADs with varying expiration periods. Employers need not keep track of the daily process of the ongoing federal litigation but should train their employees responsible for the Form I-9 process that there is no set expiration date for an EAD and the expiration will vary based on the EAD. Remember, employers are not required to be document experts.  During the Form I-9 process, employers are required to accept documents that reasonably appear to be genuine and to relate to the person presenting them. However, if the employee provides a document that does not reasonably appear to be genuine and relate to them during the Form I-9 process, you must reject that document and ask the employee to present alternate documents that satisfy the requirements of Form I-9.

Navigating the H-4 EAD Process: Be Ready to File

Contributed by Jacqueline Lentini

Moments after President Obama announced that he would be expediting H-4 work Visa Stampauthorizations last November, I received a call from a client inquiring about how to start the application process for his wife.  I can understand their desire to jump on the opportunity. The green card acquisition process can drag on for years, testing the patience of many foreign nationals and frustrating their spouses who want to work, but who cannot by law. A dependent spouse’s inability to work can strain the couple’s economic viability and their marriage and prompt them to consider moving to another country.

The prospect of H-4 work authorization has lifted the hopes of many of those couples.  The Department of Homeland Security (DHS) estimated that 179,600 spouses would apply for an Employment Authorization Document (EAD) in first year of availability with 55,000 requests each year afterward.  In February DHS announced that they would begin considering applications for employment authorization for certain H-4 dependent spouses on May 26, 2015. Eligible individuals include H-4 dependent spouses of H-1B nonimmigrants who either:

  1. Are the principal beneficiaries of an approved Form I-140 Immigrant Petition for Alien Worker; or
  2. Were granted H-1B status under sections 106(a) and (b) of the American Competitiveness in the Twenty-first Century Act of 2000. The Act permits H-1B nonimmigrants seeking lawful permanent residence to work and remain in the U.S. beyond the six year limit on H-1B status.

However, on Thursday April 23, three employees from Southern California Edison sued the DHS to stop the work authorization provision, claiming that they had been displaced by H-1B workers and would face increasing competition if H-4 spouses were authorized to work.  Save Jobs USA has also filed a preliminary injunction against the H-4 work authorization rule.

Given that the U.S. has not issued H-4 EADs before, we are in unchartered territory.  It is hard to say how these cases and the H-4 EAD process will go.  Rather than lose hope though, those interested in an H-4 EAD should be ready to file in case the May 26, 2015 date holds or for whenever DHS is able to accept applications.

Taking action to prepare to file will feel better than just waiting and will allow you to file as soon as the window for applications opens.  Here’s what you will need to file an H-4 application for employment authorization:

  1. Form I-765, plus filing fee of $380.
  2. Two passport style photographs.
  3. Proof of your marital relationship.  If your marriage certificate is in a language other than English, you’ll need an English translation for it.
  4. A valid passport.
  5. A copy of your visa stamp.  Make sure that you have a visa stamp and that you have a copy of it to submit with your application.
  6. Your H-4 approval notice if you have one.
  7. Evidence of your I-94 stamp.  The I-94 stamp is the stamp you received in your passport on the day you entered the United States.
  8. A copy of any prior EAD cards that you had.  If you were a student and obtained an EAD card then, you’ll need to submit a copy of that card with your application.

Note: the above list is not meant to be an exhaustive list of documents to include nor is it meant as legal advice for any one specific individual.

Executive Action on Immigration to Affect Millions

Contributed by Jacqueline Lentini McCullough

Did you watch the President address the nation live last week? On November 20, 2014, President Obama announced a series of executive actions, including cracking down on illegal immigration at the border, prioritizing deportation of felons (details of which are still unclear), and requiring certain undocumented immigrants to pass a criminal background check and pay taxes in order to temporarily stay in the U.S. without fear of deportation.

The initiatives include:

Deferred Action for Parents (DAP). Parents of U.S. citizens and legal permanent residents (LPR’s of any age) who have been continuously present in the U.S. since January 1, 2010, who pass background checks and pay taxes are eligible for deferred action (temporary relief from removal for a specified period of time) for a three year period;

Deferred Action for Childhood Arrivals (DACA) to be revised to expand the group it encompasses to include young people who came to the U.S. before turning 16 years old, and have been present in the U.S. since January 1, 2010. It will also remove the 31 year old age cap, paving the way for about 270,000 more people to apply. The work authorization permit will also be increased from two to three years;

-Permit Employment Authorization for H-4 Visa Holders. Currently dependents of H-1B visa holders are not permitted to work. Regulations will be finalized in early 2015;

Optional Practical Training. The length of time in OPT for Science, Technology, Engineering and Mathematics (“STEM”) graduates will be expanded, although no set time frame for this increase and associated regulations have been outlined;

Pre-registration for Adjustment of Status. Individuals with an approved employment immigrant petition who are caught in the quota backlogs will be able to pre-register for adjustment of status to obtain the benefits of a pending adjustment. This change is expected to impact approximately 410,000 people;

-I-601A Waivers. Waivers will be expanded to include spouses and children of LPRs;

Modernization and improvement of immigrant and nonimmigrant programs. Details on this are unclear;

-Enhancements to the Naturalization process; and

-U and T Visas. Three more types of offenses will be added to the list of offenses that can be certified by the Department of Labor.

Preliminary estimates show that approximately 4.9 million individuals may be eligible for the initiatives announced by the President, although there is no way of knowing how many individuals will apply. USCIS won’t begin accepting applications until approximately May 2015, and the new protections could be reversed by a new President. The bottom line is that the only certain provisions will have an immediate impact early next year, such as the DAP and DACA changes. Other proposed changes should be considered more along the lines of “Coming Attractions,” because they require regulations to be implemented. Limited details were offered during the President’s address to the nation, and in his subsequent Memoranda of November 21st.  Since the President’s briefing included business employment immigration reform, there is a reasonable expectation for improvements outside of the undocumented community as well.

 

Court Awards Against National Labor Relations Board for Improper Restriction Regarding E-Verify

Contributed by Michael Hughes and Sara Zorich

On October 30, 2014 in the case of Overstreet v. Farm Fresh Co. Target One LLC, No. 2:13-cv-02358, the Arizona Federal District Court ordered attorney’s fees be paid to Farm Fresh Co. Target One LLC (Farm Fresh) by the National Labor Relations Board (NLRB) due to the NLRB’s demand that Farm Fresh reinstate four employees without following the federal and Arizona state laws governing the use of E-Verify.

In 2013, Farm Fresh was purchased through an asset purchase agreement by a new owner.  The new owner (after receiving advice and guidance from the Dept. of Homeland Security) sought to treat all existing employees as new hires after the company acquisition.  As part of that transition, all employees could be run through E-Verify to confirm their authorization to work in the United States.  On March 1, 2013, it was announced to all employees that due to the acquisition, all employees would be run through E-Verify.  Four days later some employees sought unionization and four employees were terminated.  The employees claimed their termination was in violation of the National Labor Relations Act (NLRA) and an administrative law judge agreed, finding the employees should be reinstated.  Farm Fresh agreed to reinstate the employees but stated that the employees would be required to be run through the Federal E-Verify system which was the process for all other existing and new employees.  The NLRB refused to allow any “conditions” on the reinstatement and sought injunctive relief under Section 10(j) of the NLRA from the Arizona Federal District Court restraining Farm Fresh for the “unconditional” reinstatement of the four employees.  The court, however, sided with the employer and found that the employees, like all other employees of the company, should be treated as “new” employees and processed through E-Verify.  Moreover, the court awarded the company over $55,000 in attorney’s fees under the Equal Access to Justice Act.

Employers should be cautioned that the facts of this case are very fact specific.  In general, employers cannot require employees to go through additional testing or application process when ordered by the NLRB to be reinstated.  It was only because the company through the acquisition was able to treat all employees as “new employees” and process all employees through E-Verify in accordance with federal and Arizona law.  This case shows the important interplay immigration laws can have on both employment and traditional labor disputes.  Further, it highlights that any reinstatement ordered by the NLRB cannot be predicated on terms that are against the law.

E-Verify Update Regarding 10-Year Record Deletion

Contributed by Sara Zorich

Employers who have been using E-Verify for more than 10 years must be aware that as of January 1, 2015, the U.S. Citizenship and Immigration Services (USCIS) will be deleting any transaction records in the E-Verify system that are more than 10 years old.  As of January 1, 2015, employers will no longer have access in E-Verify to any case they created prior to December 31, 2004.  In order to have a record of the cases that are more than 10 years old, employers must download the new Historic Records Report before the December 31, 2014 deadline.  USCIS is encouraging all employers who were using E-Verify on or before December 31, 2004 to download the Historic Records Report and maintain it with the company’s Form I-9’s.  Employers will be advised each year going forward by USCIS when the annual Historic Records Report is available for download.

Spousal H-4 Visa Holders: Important Changes on the Horizon Regarding Employment Authorization for Certain H-4 Dependent Spouses

Contributed by Jacqueline Lentini

In May 2014, the Department of Homeland Security announced a proposed rule to allow for work authorization for certain spouses of H-1B visa holders. The work permit is called an Employment Authorization Document or EAD. No time frame has yet been finalized for this benefit.

Employment authorization could be extended to H-4 nonimmigrant spouses in the following situations:

(1) The principal H-1B spouse is the beneficiary of an approved 1-140 Immigrant Petition; or

(2) the H-1B nonimmigrant’s period of stay is authorized under sections 106(a) and/or (b) of the American Competitiveness in the Twenty- First Century Act of 2000 (AC21). AC21 provides for a one-year extension of H-1B status beyond the six-year limitation if the H-1B visa holder is the beneficiary of a labor certification application or an I-140 petition that has been pending for at least 365 days prior to reaching the end of the sixth year of H-1B status. H-4 spouses of H-1B visa holders who meet these eligibility requirements would still need to apply for an EAD and pay the appropriate fee.

Further implementations to be considered include the following:

1) Expand Eligibility to All H-4 Spouses.  This would make the U.S. a more attractive place to work and set up home, for all H-4 spouses. In turn, it would make highly skilled foreign workers (H-1B’s) much happier in their work and private lives, if spouses are able- or at least have the option- to have a career and generate income for the family unit.

2) Expand EAD Eligibility to H-4 Spouses Where the H-1B Nonimmigrant is the Beneficiary of a Pending Labor Certification Application or I-140 Petition.  This approach towards H-4’s would remain true to the spirit and goal of enhancing the ability of the U.S to attract and more permanently retain highly-skilled foreign workers.

Going, Going, Gone! USCIS’ FY 2015 H-1B Cap

Contributed by Jacqueline Lentini McCullough

U.S. Citizenship and Immigration Services (USCIS) announced on April 7, 2014 that it had received a sufficient number of H-1B petitions to reach the statutory cap for fiscal year 2015, which begins on October 1, 2014. USCIS also received more than the limit of 20,000 H-1B petitions filed under the U.S. advance degree exemption. Approximately 172,500 H-1B petitions were received by USCIS during the filing period, which began on April 1, 2014. On April 10, 2014, USCIS completed a computer generated random selection process, or lottery, to select enough petitions to meet the 65,000 general cap and 20,000 advanced degree cap exemption. For petitions not selected during the lottery, USCIS will return the petitions along with the filing fees. The mad rush for H-1B cap filings highlights the importance of reforms to the legal immigration system to be based on market needs.