Starting January 1, 2017, all Tennessee employers with 50 or more employees will be required to use the E-Verify system in order to verify the employment eligibility of workers hired on or after that date. Currently, employers with 6 or more employees must either use E-Verify or request and retain certain documents from each employee. For employers with 50 or more employees, the new law will eliminate the document retention option in favor of mandatory E-Verify use.
The USCIS received over 236,000 H-1B petitions during this year’s FY2017 filing period for the annual supply of 85,000 new H-1B visas (65,000 for regular cap plus an additional 20,000 for workers with a U.S. Master’s degree). This year’s number of petitions represents another increase after receiving 233,000 petitions for FY2016, 172,500 for FY2015, and 124,000 for FY2014. On April 12, 2016, the USCIS completed a computer-generated random selection process to select sufficient petitions to meet the 65,000 and 20,000 limits and premium processing will begin on May 12, 2016.
The USCIS issued a Policy Memorandum adopting as binding a USCIS Administrative Appeals Office (AAO) non-precedent decision that provides guidance on evidence considered when determining whether a beneficiary qualifies as L-1A functional manager. The decision clarifies that, when determining whether an L-1A beneficiary will primarily manage an essential function, USCIS officers must weigh all relevant factors including, if applicable, evidence of the beneficiary’s role within the wider qualifying international organization.
The Department of Labor (DOL) has announced that it will continue to accept emergency requests until midnight on April 29, 2016, for H-2B applications filed on or between April 2 and April 29, 2016. This extension is due to continued delays in processing H-2B applications. For full background on the H-2B delays, please see our March 2016 alert. The full text of the DOL emergency processing initiative (including procedures for employers requesting emergency treatment of pending H-2B applications) is available here.
On March 11, 2016, the U.S. Department of Homeland Security (DHS) published its final rule on enhancements to the Optional Practical Training (OPT) program for F-1 international students in science, technology, engineering, and mathematics (STEM) fields. This final rule takes effect on May 10, 2016 and extends the STEM OPT validity from 17 months to 24 months. The additional seven months of employment authorization (allowing at least two more chances for H-1B cap filing success) is a welcome change for foreign students and their employers, but this extension comes with increased reporting, training, and monitoring obligations for the employer and student. Employers hiring STEM OPT workers should carefully review the links below, especially the Form I-983 instructions, to make sure any employment arrangements comply with the new requirements.
USCIS has issued a new policy memorandum (PM) outlining relevant considerations in assessing whether a position qualifies as a “same or similar” occupation to the foreign national’s previously approved job for purposes of portability. Section 204(j) of the Immigration and Nationality Act (INA) was created as part of the American Competitiveness in the Twenty-First Century Act of 2000 and permits applicants for adjustment of status to that of lawful permanent resident who are beneficiaries of approved Form I-140 petitions to change jobs or employers without re-testing the labor market or obtaining new approved petitions under certain circumstances. This PM has been made part of the Adjudicator’s Field Manual and will be used by USCIS officers in making 204(j) determinations for petitions pending or filed on or after March 21, 2016.
Clients who pay attention might worry that they have missed something when they see that the OMB expiration date of March 31 has come and gone. But just like some items in your refrigerator or pantry, the Form I-9 for verification of identity and authorization of every new hire is actually OK to use past the printed expiration date, for now. Continue reading
DHS recently published amended regulations affecting certain highly skilled workers in specialty occupations from Chile, Singapore (H-1B1) and Australia (E-3), nonimmigrant workers in the Commonwealth of the Northern Mariana Islands (CNMI)-Only Transitional Worker (CW-1) classification and applicants seeking immigrant status in the employment-based first preference (EB-1) outstanding professor and researcher classification. The final rule, effective February 16, seeks to minimize the potential employment disruptions for U.S. employers of current employees in the H-1B1, E-3 and CW-1 classifications and to enable recruitment of outstanding professors and researchers by expanding types of acceptable evidence. Continue reading
UPDATE: CBP has announced that Libya, Somalia, and Yemen are now included with Iran, Iraq, Sudan and Syria as countries of concern, so that individuals who have traveled to these countries since March 1, 2011 are not eligible for ESTA travel. Regardless of travel, dual nationals of Iran, Iraq, Sudan, and Syria (not of Libya, Somalia, and Yemen) are ineligible for ESTA travel.
ORIGINAL POST: As reported in last month’s article, the enactment of the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015 will restrict certain travelers from using the Visa Waiver Program (VWP) and require them instead to obtain a nonimmigrant visa from a U.S. embassy or consulate abroad. U.S. Customs and Border Protection (CBP) has published a series of FAQs on the changes to the VWP following the December 18, 2015 enactment.
H-1B Cap season is approaching, and, with a similar flurry to file petitions for eligible specialized knowledge workers expected for April 1 as we experienced in 2015, H-1B employers should carefully consider the obligations of employee sponsorship imposed by the Department of Labor (DOL) and United States Citizenship and Immigration Services (USCIS). Continue reading