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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USCIS Returns Unselected Fiscal Year 2017 H-1B Cap-Subject Petitions

Employers with FY 2017 H-1B cap cases not chosen for processing should have received their returned petition packages with fee checks by July 8. The agency continues to process receipted non-premium H-1B cap petitions and premium cases that received requests for evidence. Employers who submitted an H-1B cap-subject petition between April 1 and April 7, 2016 and have not received a receipt notice or a returned petition by July 22, 2016, may contact USCIS for assistance.

Increased Wait Times at U.S. Consular Posts in India

U.S. Consular Posts in India are currently experiencing extraordinary wait times for nonimmigrant visa (NIV) interview appointments. In July 2016, the current wait times for all non-immigrant visa categories (other than Visitor and Student/ Exchange Visitors) are 112 days in Chennai, 116 days in Hyderabad, 104 days in Kolkata, 71 days in Mumbai, and 111 days in New Delhi. The wait times are expected to continue and possibly worsen throughout the summer months.
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USCIS Site Visits for H-1B, L-1, and Religious Worker Petitions

Employers should be aware that USCIS, through its Fraud Detection and National Security directorate (FDNS), may conduct unannounced site visits at the beneficiary’s work location to verify any evidence submitted in support of the petition and compliance with applicable immigration laws and regulations. For religious worker petitions, FDNS conducts site visits on all petitioners before adjudication. FDNS randomly selects petitioners for site visits after adjudication of religious worker, H-1B, and L-1 petitions. These visits are voluntary, but employers should cooperate and contact their immigration attorney immediately. Counsel is permitted to attend in person and possibly via telephone. If counsel is unable to attend, Employers are advised to provide a detailed description about the visit. In order to prepare for a visit, Employers should have copies of the petition and all supporting materials readily available and have policies and procedures for site visits in place.
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USCIS Ombudsman’s Report: Continued High RFE Rates in Employment-Based Petitions; Employment Authorization Document Adjudication Delays

For those noticing an increase in Requests for Evidence (RFEs) issued by USCIS in recent months, you are not alone.  The USCIS Ombudsman’s 2016 Report to Congress confirms continued high rates of Requests for Evidence (RFE) for H-1B (Specialty Occupation Workers), L-1 (Intracompany Transferee Managers and Executives, and Specialized Knowledge Workers), P-1 (Internationally Recognized Athletes), and O-1 (Individuals with Extraordinary Ability or Achievement) petitions.
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Tennessee Employers with 50 or More Employees Will Be Required To Use E-Verify Starting 1/1/2017

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.
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H-1B Cap FY2017 and Aftermath

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.
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Adjudicating L-1A Functional Manager Petition Requires Consideration of Role Within the Wider Qualifying International Organization

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.
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