DECEMBER 2016 – IMMIGRATION UPDATE

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December 2016 Immigration Update

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USCIS Publishes Long-Awaited Final Rule on Certain Employment-Based Visa Programs

U.S. Citizenship and Immigration Services (USCIS) has issued a final rule to provide greater flexibility for high-skilled foreign professionals. The new regulations also codify current informal administrative guidance about statutory provisions added in 2000. The regulations take effect on January 17, 2017.

USCIS previously made many of these clarifications through a series of non-binding policy memoranda over the past 15 years, with no definitive rules in place.

USCIS said the final rule is intended to modernize and improve several aspects of certain employment-based nonimmigrant and immigrant visa programs. USCIS has also amended the regulations to better enable U.S. employers to hire and retain certain foreign workers who are beneficiaries of approved employment-based immigrant visa petitions and are waiting to become lawful permanent residents.

Among other things, the final rule is intended to:

  • Clarify and improve longstanding policies and practices implementing sections of the American Competitiveness in the Twenty-First Century Act and the American Competitiveness and Workforce Improvement Act related to certain foreign workers, which USCIS said will enhance consistency in adjudication.
  • Better enable U.S. employers to employ and retain high-skilled workers who are beneficiaries of approved employment-based immigrant visa petitions (Form I-140 petitions) while also providing stability and job flexibility to these workers. The rule increases the ability of these workers to further their careers by accepting promotions, changing positions with current employers, changing employers, and pursuing other employment opportunities.
  • Improve job portability for certain beneficiaries of approved Form I-140 petitions by maintaining a petition’s validity under certain circumstances despite an employer’s withdrawal of the approved petition or the termination of the employer’s business.
  • Clarify and expand when individuals may keep their priority dates when applying for adjustment of status to lawful permanent residence.
  • Allow certain high-skilled individuals in the United States with E-3, H-1B, H-1B1, L-1, or O-1 nonimmigrant status, including any applicable grace period, to apply for employment authorization for a limited period if:
    • They are the principal beneficiaries of an approved I-140 petition,
    • An immigrant visa is not authorized for issuance for their priority date, and
    • They can demonstrate that compelling circumstances exist that justify the agency’s issuing an employment authorization document in its discretion.

    Such employment authorization may only be renewed in limited circumstances and only in one-year increments.

  • Clarify various policies and procedures related to the adjudication of H-1B petitions, including, among other things, providing H-1B status beyond the six-year authorized period of admission, determining cap exemptions and counting workers under the H-1B cap, H-1B portability, licensure requirements, and protections for whistleblowers.
  • Establish two grace periods of up to 10 days for individuals in the E-1, E-2, E-3, L-1, and TN nonimmigrant classifications to provide a reasonable amount of time for these individuals to prepare to begin employment in the country and to depart the United States or take other actions to extend, change, or otherwise maintain lawful status.
  • Establish a grace period of up to 60 consecutive days during each authorized validity period for certain high-skilled nonimmigrant workers when their employment ends before the end of their authorized validity period, so they may more readily pursue new employment and an extension of their nonimmigrant status.
  • Automatically extend the employment authorization and validity of Employment Authorization Documents (EADs or Forms I-766) for certain individuals who apply on time to renew their EADs.
  • Eliminate the regulatory provision that requires USCIS to adjudicate the Form I-765, Application for Employment Authorization, within 90 days of filing and that authorizes interim EADs in cases where such adjudications are not conducted within the 90-day time frame.

USCIS received nearly 28,000 comments on the proposed rule from a broad range of entities and individuals. Comments submitted by the Alliance of Business Immigration Lawyers are HERE.

The USCIS announcement is HERE. The final rule is HERE.

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USCIS Revises I-9 Employment Eligibility Verification Form

U.S. Citizenship and Immigration Services (USCIS) recently published a revised version of Form I-9, Employment Eligibility Verification. By January 22, 2017, employers must use only the new version, dated 11/14/2016. Until then, they can continue to use either the version dated 03/08/2013 N or the new version.

Among the changes in the new version, Section 1 asks for “other last names used” rather than “other names used,” and streamlines certification for certain foreign nationals.

Other changes include:

  • The addition of prompts to ensure information is entered correctly.
  • The ability to enter multiple preparers and translators.
  • A dedicated area for including additional information rather than having to add it in the margins.
  • A supplemental page for the preparer/translator.
  • The instructions have been separated from the form, in line with other USCIS forms, and include specific instructions for completing each field.

USCIS said the revised I-9 is also easier to complete on a computer. Changes include drop-down lists and calendars for filling in dates, on-screen instructions for each field, access to the full instructions, and an option to clear the form and start over. When the employer prints the completed form, a quick response (QR) code is automatically generated, which can be read by most QR readers.

The announcement is HERE.

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USCIS Announces Final Rule on Fee Increases, Changes

U.S. Citizenship and Immigration Services (USCIS) recently published a final rule to increase the fees required for most immigration applications and petitions. The new fees will be effective December 23, 2016.

Fees will increase for the first time in six years by a weighted average of 21 percent for most applications and petitions. USCIS said these increases include the costs associated with fraud detection and national security, service and case processing, and providing services without charge to refugee and asylum applicants and to others eligible for fee waivers or exemptions.

The final rule includes a table summarizing current and new fees. Applications and petitions postmarked or filed on or after December 23 must include the new fees or USCIS will not accept them.

USCIS said it is also offering a reduced filing fee for certain naturalization applicants with limited means.

Highlights of the fee rule include:

  • A fee increase of $45, or 8 percent, from $595 to $640 for Form N-400, Application for Naturalization.
  • A reduced filing fee of $320 for naturalization applicants with family incomes greater than 150 percent but not more than 200 percent of the Federal Poverty Guidelines. For 2016, this means, for example, that a household of four with an income between $36,000 and $48,600 per year could pay the reduced fee. Those eligible may apply for this option using the new Form I-942, Request for Reduced Fee.
  • A fee increase from $550 or $600 to $1,170 for Form N-600, Application for Certificate of Citizenship, and N-600K, Application for Citizenship and Issuance of Certificate Under Section 322.
  • A new fee of $3,035 for Form I-924A, Annual Certification of Regional Center.

The USCIS announcement is HERE.

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Atlanta NPC To Issue PERM Notifications Via Email Beginning in December

The Department of Labor’s Office of Foreign Labor Certification (OFLC) announced that as of December 1, 2016, the Atlanta National Processing Center (ANPC) has begun issuing PERM notification letters via email. OFLC said this will ensure that PERM stakeholders receive ETA Form 9089 application determination notifications in a timely, cost-effective manner without mail delivery delays.

OFLC said that those awaiting such notifications should add sr.processing@dol.gov and plc.atlanta@dol.gov to the address book or safe list in the recipient’s email system to avoid being filtered as spam. In addition, changes in email addresses for the authorized representative or employer should be emailed to either sr.processing@dol.gov (Supervised Recruitment cases) or plc.atlanta@dol.gov (all other correspondence). Provide the case number along with the updated contact information.

Stakeholders will receive the following letters/notifications via email:

  • Audit Notification Letters
  • Denial Notification Letters
  • Requests for Information Letters
  • Additional Audit Information Requests
  • Withdrawal Letters
  • Notices of Decisions from Appeals

OFLC noted that certified ETA Form 9089 PERM application letters will not be sent electronically due to the certification’s security paper requirements currently in place with U.S. Citizenship and Immigration Services.

Starting December 1, 2016, the ANPC is receiving via email ETA Form 9089 audit responses and responses to Requests for Information, Additional Audit Information Requests, and Notices of Decisions for Appeals. Senders should ensure that each emailed response is no larger than 20MB. Email responses larger than 20MB should be separated into two or more documents of fewer than 20MB in size, indicated on the subject line of the email. For example, <Case Number>_Audit Response_1 of 3.

OFLC offered the following summary of tips:

  • Do not combine multiple audit responses for different cases in one submission packet.
  • Direct any questions via email to sr.processing@dol.gov (Supervised Recruitment inquiries) or plc.atlanta@dol.gov (all other inquiries) and include the case number in the subject line.
  • For audit responses specifically; scan, tab, or clearly identify the documentation into the following categories:
    • Cover Letter
    • Recruitment Report and any other supporting documentation
    • Business Necessity and other supporting documentation
    • Recruitment Content, including copies of newspaper advertisements, Notice of Filing, Job Order, and professional advertisements
    • Copy of Audit Letter (if applicable)
    • Resumes, including any applications, evaluations, and other supporting documentation
    • Prevailing Wage (if applicable)
    • Affidavits (if applicable)
    • Signed ETA Form 9089 (if applicable)
    • Postage Receipt (if applicable)

The notice is at www.foreignlaborcert.doleta.gov/news.cfm (scroll to “November 1, 2016. Electronic Notification of PERM Letters”).

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St. Vincent and the Grenadines Added to H-2A, H-2B Visa Programs

U.S. Citizenship and Immigration Services (USCIS) and the Department of Homeland Security (DHS), in consultation with the Department of State, have added St. Vincent and the Grenadines to the list of countries whose nationals are eligible to participate in the H-2A and 
H-2B visa programs for the coming year.

The H-2A and H-2B visa programs allow U.S. employers to bring foreign nationals to the United States to fill temporary agricultural and nonagricultural jobs, respectively. Typically, USCIS only approves H-2A and H-2B petitions for nationals of countries DHS has designated as eligible to participate in the programs. USCIS, however, may approve H-2A and H-2B petitions for nationals of countries not on the list if it is determined to be in the interest of the United States.

The notice listing the eligible countries was published in the Federal Register on October 26, 2016, HERE.

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IRS Announces Changes to Individual Taxpayer ID Program

The Internal Revenue Service recently announced changes related to revisions to the Individual Taxpayer Identification Number (ITIN) program made under a new law. The changes require some taxpayers to renew their ITINs, which the IRS encourages people to do early.

Under the new law, ITINs that have not been used on a federal tax return at least once in the last three years will no longer be valid for use on a tax return unless renewed by the taxpayer. In addition, ITINs issued before 2013 that have been used on a federal tax return in the last three years must be renewed starting this fall. The IRS is putting in place a rolling renewal schedule.

If taxpayers have an expired ITIN and do not renew before filing a tax return in 2017, they could face a refund delay and may be ineligible for certain tax credits until the ITIN is renewed, the IRS warned.

The IRS emphasized that ITIN holders do not need to take action if they don’t need to file a tax return next year. Two key groups of ITIN holders may need to renew an ITIN so it will be in effect for returns filed in 2017:

  • Unused ITINs. ITINs not used on a federal income tax return in the last three years (covering 2013, 2014, or 2015) will no longer be valid to use on a tax return as of January 1, 2017. ITIN holders in this group who need to file a tax return next year will need to renew their ITINs. The renewal period began October 1, 2016.
  • Expiring ITINs. ITINs issued before 2013 will begin expiring this year, and taxpayers will need to renew them on a rolling basis. The first ITINs that will expire under this schedule are those with middle digits of 78 and 79 (Example: 9XX-78-XXXX). The renewal period for these ITINs began October 1, 2016. The IRS said it is mailing letters to this group of taxpayers to inform them of the need to renew their ITINs if they need to file a tax return and explain steps they need to take. The schedule for expiration and renewal of ITINs that do not have middle digits of 78 and 79 will be announced at a future date, the IRS said.
    How to renew. Only ITIN holders who need to file a tax return must renew their ITINs. Others do not need to take any action.

To renew an ITIN, taxpayers must complete Form W-7, Application for IRS Individual Taxpayer Identification Number, follow the instructions, and include all information and documentation required. To reduce the burden on taxpayers, the IRS is not requiring individuals renewing an ITIN to attach a tax return when submitting their Form W-7. Taxpayers are reminded to use the newest version of the Form W-7 (“Rev. 9-2016”) available at the time of renewal.

There are three methods for submitting an W-7 application package to renew an ITIN:

Family option. The IRS is offering a family option for ITIN renewal. If any individuals having an ITIN middle digit of 78 or 79 receive a renewal letter from the IRS, they can choose to renew the ITINs of all of their family members at the same time rather than doing them separately over several years. Family members include the tax filer, the spouse, and any dependents claimed on their tax return.

The IRS said it is working closely with a variety of groups to share information about the ITIN changes and help raise awareness about the new guidelines. The IRS will be providing additional information and material to share with these groups and taxpayers in the near future.

New requirement for dependents. As of October 1, 2016, the IRS is no longer accepting passports that do not have a date of entry into the United States as stand-alone identification documents for dependents from countries other than Canada or Mexico or dependents of military members overseas. Affected applicants now must submit either U.S. medical records for dependents under age six or U.S. school records for dependents under age 18 along with their passports. Dependents aged 18 and over can submit a passport along with a rental or bank statement or a utility bill listing the applicant’s name and U.S. address.

IRS noted that ITINs are for federal tax purposes only and are not intended to serve any other purpose. ITINs that are only used on information returns filed with the IRS by third parties do not need to be renewed. An ITIN does not authorize a person to work in the United States or provide eligibility for Social Security benefits or the Earned Income Tax Credit. ITINs are not valid identification outside the tax system and do not establish immigration status.

The IRS announcement is HERE. Frequently asked questions are HERE. The ITIN changes are required by the Protecting Americans from Tax Hikes (PATH) Act enacted by Congress in December 2015. These provisions, along with new procedures to help taxpayers navigate these changes, are outlined in IRS Notice 2016-48 HERE. More information is HERE.

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USCIS Updates Guidance on Health-Related Grounds of Inadmissibility

U.S. Citizenship and Immigration Services (USCIS) recently announced that it has updated guidance regarding health-related grounds of inadmissibility in accordance with a final rule updating Department of Health and Human Services regulations published in early 2016.

The guidance in the USCIS Policy Manual:

  • Updates the definition of a Class A condition to include failure to present documentation of having received vaccinations against vaccine-preventable diseases.
  • Updates the definition of a Class B condition to “health conditions, diseases, or disability serious in degree or permanent in nature.”
  • Updates the definition of physical and mental disorders with associated harmful behavior and the definition of drug abuse and drug addiction.
  • Removes three medical conditions (chancroid, granuloma inguinale, and lymphogranuloma venereum) from the list of communicable diseases of public health significance that would render an applicant for immigration benefits inadmissible on health-related grounds of inadmissibility.

USCIS said the guidance in the manual “is controlling and supersedes any prior guidance.”

USCIS’s related policy alert is HERE.

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ABIL Global: United Kingdom

The United Kingdom is changing its immigration rules. Also, the High Court has ruled on a key Brexit case.

Changes to Immigration Rules

On November 3, 2016, a Statement of Changes to the Immigration Rules was set before Parliament. In relevant part, the raft of reforms includes the first stage of a two-phase package of changes to Tier 2 of the Points-Based System (PBS). The majority of these changes affect applications made on or after November 24, 2016, and include:

  • Tier 2 (General)
    • The salary threshold for experienced workers is increasing to £25,000. New entrants will remain at £20,800 and some additional, minor exceptions apply.
    • Individuals sponsored as Tier 2 (General) migrants before November 24, 2016, are only required to meet the previous salary threshold of £20,800.
  • Tier 2 (Intra-Company Transfer)
    • The salary threshold for Tier 2 (ICT—Short-Term Staff) is increasing to £30,000.
    • The salary threshold for Tier 2 (ICT—Graduate Trainee) is decreasing to £23,000, and the number of places allocated per company annually for this subcategory is increasing from five to twenty.
  • Tier 2 (ICT—Skills Transfer) is closed to new applicants.

Ruling Issued on Brexit Case

In the case of R (on the application of Gina Miller and Ors) v The Secretary of State for the European Union, the High Court ruled that the government must first consult Parliament before giving notice of the UK’s withdrawal from the European Union. The government might appeal. If the appeal is denied, it could block or delay the Prime Minister’s proposed timetable of beginning ‘Brexit’ negotiations by March 2017.

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New Publications and Items of Interest

The latest E-Verify webinar schedule from USCIS is available at www.uscis.gov/e-verify/e-verify-webinars/take-free-webinar.

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Government Agency Links

Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State’s latest Visa Bulletin with the most recent cut-off dates for visa numbers:

USCIS Service Center processing times online: egov.uscis.gov/cris/processTimesDisplay.do

Department of Labor processing times and information on backlogs: www.foreignlaborcert.doleta.gov/times.cfm

Department of State Visa Bulletin: travel.state.gov/visa/bulletin/bulletin_1360.html

Visa application wait times for any post: travel.state.gov/visa/temp/wait/wait_4638.html

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