Changes to National Interest Waiver Standard

The USCIS Administrative Appeals Office (AAO) issued a precedent decision overruling the longstanding standard for EB-2 National Interest Waiver green card cases and creating a more realistic three-part test to demonstrate “national interest.”

USCIS has discretion to grant a National Interest Waiver (NIW) to professionals with an advanced degree or individuals of exceptional ability who are eligible for the second employment-based preference category (EB-2). The NIW allows individuals in the EB-2 category to avoid the labor certification process if they can show their immigration would be in the “national interest.” The term “national interest” remained undefined until the now overruled AAO decision created a confusing standard resulting in inconsistent adjudication.
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New Rule On Unfair Immigration-Related Employment Practices Effective January 18, 2017

On December 19, 2016, the Department of Justice (DOJ) issued a final rule that revises the DOJ’s regulations implementing certain provisions of the Immigration and Nationality Act (INA) related to to unfair immigration related employment practices. The rule introduces no major changes for employers, but it should be a reminder to review Form I-9 employment authorization policies. The final rule is intended to conform DOJ regulations with existing statutory provisions and to update regulations to ensure effective investigations of unfair immigration-related employment practices. Continue reading

USCIS New Rule Implements Old Laws with a Few Twists

USCIS has published a final rule, to take effect January 17, 2017, ensconcing in regulations most of the policies it had long ago worked out in memorandums implementing provisions of 1998 and 2001 laws intended to bridge some gaps in the employment immigration law processes particularly relating to H-1B workers. The regulation also turns a few new twists that employers must be aware of.
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New I-9 Form: Very Different, Many Quirks, Required for Use by January 22, 2017

USCIS finally has published the new Form I-9 that has been in the works for a few years and that all U.S. employers will be required to use in onboarding new hires as of January 22, 2017, although they can choose to use it for new hires before then. Employers should start now to prepare themselves for use of this new version, which involves making several practical choices among confusing options and with unpredictable implications.
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USCIS: New Form I-9 Version Mandatory in January 2017

On September 12, 2016, U.S. Citizenship and Immigration Services (USCIS) announced that the Office of Management and Budget approved a revised Form I-9, Employment Eligibility Verification. USCIS must publish a revised form version by November 22, 2016. Employers may continue using the current version of the Form I-9 with a revision date of 03/08/2013 N until January 21, 2017, when all prior versions of the form will be invalid.
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“No Eyeglasses Policy” Issued by the Department of State

For those renewing passports or visas to gear up for holiday travel, be sure to take those photos without your glasses! Effective December 1, 2016, Consular Affairs will no longer accept photographs of visa and passport applicants wearing eyeglasses, unless rare circumstances make such eyeglasses medically necessary (e.g., recent ocular surgery). This policy goes into effect on November 1, 2016, but with a soft enforcement period until November 30, 2016 during which applications will continue to be processed even with a glasses-wearing applicant. This prohibition is intended to enhance the performance of facial recognition systems and to decrease the likelihood of misidentification of an applicant.
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Entrepreneurs May Have a New Way to Start Up in the United States

The Department of Homeland Security (DHS) published a proposed rule that could provide an unusual type of immigration benefit called “parole” to individuals seeking a key role in start-up entities in the United States backed by experienced venture capital or government grants. An outgrowth of President Obama’s November 2014 executive actions on immigration, the proposed rule was published on August 31, 2016, with comments due on October 17, 2016.
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August 2016 Visa Bulletin: Retrogression in Certain Employment-Based Categories

The Department of State (DOS) has issued its August 2016 Visa Bulletin which reflects retrogression in Employment-Based First Preference (Priority Workers such as Multinational Managers) and Employment-Based Second Preference (Members of the Professions Holding Advanced Degrees) visa applications, and continued high demand in Employment-Based Third Preference visa applications (Skilled Workers, Professionals, and Other Workers).
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Increased Fines for I-9 and Other Immigration Violations Effective August 1, 2016

The U.S. Departments of Homeland Security (DHS), Justice (DOJ), and Labor (DOL) announced increased civil fines against employers who commit immigration-related offenses, such as Form I-9 and E-Verify violations, H-1B visa program violations, unfair immigration employment practices, and unlawfully employing foreign nationals. These increased penalties will be applicable only to penalties assessed after August 1, 2016, but will apply to violations that occurred after November 2, 2015.
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