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E-Verify Requirement for NEW Federal Contractors and subcontractors

Federal contractors and subcontractors with the E-Verify Federal Acquisition Regulation (FAR) requirement must enroll in and use E-Verify. Beginning Jan. 5, 2018, new federal contractors and subcontractors with a FAR requirement must provide their Data Universal Numbering System (DUNS) during the E-Verify enrollment process. Existing E-Verify employers designated as federal contractors with a FAR requirement do not have to provide their DUNS number, but will be prompted to enter it in E-Verify when they update their company profile. To learn more about enrolling in E-Verify, use the E-Verify enrollment checklist and view the enrollment video.

Earlier we had published a detail blog post about E-verify for federal contractors, Notice to DHS Contractors and Subcontractors on Compliance with E-Verify.

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If you want to learn more about E-Verify program or need our legal services for the compliance with e-Verify and I-9 do contact us at (+1) 202 496 1295 or (+1) 888 820 4430 (toll free), or email us at contact@adhikarilaw.com

Impacts of Government Shutdown on mobility and visa matters

Washington, DC.  Due to a failure to pass a relevant funding bill (government budget), a shutdown of the United States federal government began at 12 am EST on Saturday, January 20, 2018. Federal government’s operations will vary by agency, and “non-essential operations” of impacted agencies will be closed because of the shutdown. Following are impacts of government shutdown on immigration matters:

  • U.S. Citizenship and Immigration Services (USCIS): USCIS is funded by fees collected from applications therefore USCIS operations will not be impacted however the E-verify will be unavailable because of shutdown (but employers still must complete I-9 within three days from hire despite shutdown). Also the EB-5 Regional Center Pilot Program (other EB-5 are not affected) will be suspended during the shutdown.
  • U.S. Department of Labor (DoL): DoL operations will be impacted, therefore, Office of Foreign Labor Certification will not process any applications. LCAs, PWDs, and PERM applications will be impacted, and websites of iCERT and PERM will not be working.
  • Department of State: U.S. Consulate operations are generally funded by visa fees therefore visa processing will not be impacted. Similarly, services for U.S. passport will not impacted by government shutdown.
  • U.S. Customs and Border Protection (CBP): Ports of entry will be open and CBP will continue to inspect and enforce customs and visa regulations even during shutdown.
  • Immigration and Customs Enforcement (ICE): ICE will continue its immigration enforcement and removal operations.

We will be closely monitoring the legislative developments and updates from U.S. Senate and House of Representatives about impending shutdown.


For learning more about  this topic do contact our attorneys at (+1) 202 496 1295 or (+1) 888 820 4430 (toll free), or email us at contact@adhikarilaw.com 

 

The Hill: Tech trade groups push Trump to allow H1B spouses work

The Hill: A coalition of major Washington, D.C., trade associations representing technology and other industries is urging the Department of Homeland Security (DHS) to preserve visas that allow spouses of H1B high-skilled workers to also be employed in the U.S. “Individuals looking to obtain H-4 authorization already legally reside in the United States and are on the path to permanent residency. They are also eager to work in order to support their families, contribute to their communities by paying taxes, and utilize their skills to help the U.S. economy grow,” the groups wrote in a letter to Lee Francis Cissna, director of U.S. Citizenship and Immigration Services (USCIS), a component of DHS.

“It is a function of the failure to reform our nation’s immigration system that this group of H-4 spouses — the majority of whom are women — continue to face uncertainty and may be prevented from working while they wait for bureaucratic backlogs to be cleared,” they continued.

Signatories on the letter spearheaded by the Information Technology Industry Council include Silicon Valley-backed immigration advocacy group Fwd.us and other technology trade associations like BSA and TechNet as well the National Association of Manufacturers and the Chamber of Commerce. (more here)

Texas Service Center to Begin Processing Form I-129 for L Visas and Vermont Service Center will no longer process L visa petitions

February 12, 2018, Washington, D.C. The Texas Service Center (TSC) of USCIS will begin processing certain Form I-129, Petition for a Nonimmigrant Worker petitions for L nonimmigrant classification, also known as L visas. The TSC will share this workload with the California Service Center to balance workloads and to provide flexibility as USCIS works towards improving processing times and efficiency.

The Vermont Service Center will no longer process any new Form I‑129 petitions requesting L nonimmigrant classification. Petitioners requesting an L nonimmigrant classification should file their Form I-129 at the address indicated on the Direct Filing Addresses for Form I-129, Petition for a Nonimmigrant Worker page.

Starting March 12, 2018, USCIS may reject any of these applications that are filed at the wrong service center.

Skilled workers and employers should not be alarmed by McClatchy DC’s report that DHS weighs major change to H-1B foreign tech worker visa program

By citing unnamed sources McClatchy DC reports that the Department of Homeland Security (DHS) weighs major change to H-1B foreign tech worker visa program. DHS is considering new regulations that would prevent H-1B visa extensions, according to two U.S. sources briefed on the proposal. The measure potentially could stop hundreds of thousands of foreign workers from keeping their H-1B visas while their green card applications are pending. The proposal, being drafted in memos shared between DHS department heads, is part of President Donald Trump’s “Buy American, Hire American” initiative promised during the 2016 campaign.

Skilled workers and employers should NOT be alarmed by the news report because an executive order or rule adopted by the government cannot re-write a Congressional Act. Executive order can regulate activities within purview of Executive Branch under the constitution, and it could adopt rules based on legal authority from particular Congressional Act(s). The H-1B extensions beyond six years are based on specific Congressional Act, Pub. L. 106-313 American Competitiveness in the Twenty-first Century Act of 2000_(“AC 21”), therefore, it is very unlikely that the government will seek to pursue such an executive action or a rule making as reported by McClatchy DC. Even if the government adopts such a regulation, it still has to pass the muster under the constitution and applicable statutes. It is also likely that such a regulation or executive action may be challenged at the court of law.

It should be also noted that the Congress has the exclusive constitutional authority to regulate U.S. immigration, the executive branch enforces the immigration laws passed by Congress.

Under the Immigration and Nationality Act (INA), there are several provisions which state “Attorney General (now Secretary of DHS pursuant to Homeland Security Act of 2002) may”. This basically means DHS makes a decision on case by case basis and it does not mean that the DHS has the discretion and it could deny the extensions without lawful grounds. For the purpose of extensions beyond 7th years, the Section 104(c) of AC 21 is applicable which states:

“(c) ONE-TIME PROTECTION UNDER PER COUNTRY CEILING- Notwithstanding section 214(g)(4) of the Immigration and
Nationality Act (8 U.S.C. 1184(g)(4)), any alien who–

(1) is the beneficiary of a petition filed under section 204(a) of that Act for a preference status under paragraph (1), (2), or (3)
section 203(b) of that Act; and
(2) is eligible to be granted that status but for application of the per country limitations applicable to immigrants under those
paragraphs, may apply for, and the Attorney General may grant, an extension of such nonimmigrant status until the alien’s
application for adjustment of status has been processed and a decision made thereon.”

The above statutory provisions means that  such an immigrant “may apply” for an extension, therefore, Attorney General too “may grant” such an extension until the alien’s application for adjustment of status has been processed and a decision made thereon. In other words if the alien chooses to apply for an extension then the Attorney General may grant an extension if the following elements are met:

  1. the alien is the beneficiary of a petition filed under Section 204(a) of INA (EB1, EB2 or EB3);
  2. the alien is eligible to be granted that status (i.e. employment-based EB1, EB2 or Eb3 immigrant status) but for per country limitation. (eligibility to apply for immigration visa is based on priority date as published in the Visa Bulletin)

This means the alien has to affirmatively prove above facts with documentary evidence, therefore, the extension is not automatic and the Attorney General will still examine those evidence to ascertain that the alien meets the criteria for extension under AC 21. Therefore, H-1B petitioners often submit copy of I-140 approval notice, copy of passport, and the latest visa bulletin for the H-B extensions based on Section 104(c) of AC21.

While the executive branch may be able to cause some temporary disruption, it cannot adopt executive actions or rules that contravene the statutes promulgated by the legislative branch. Therefore, while employers using the H-1B visa should continue to watch for potential changes to immigration laws, they should not be concerned that their current H-1B employees will be denied extensions beyond 6 years.

 


For learning more about  this topic do contact our attorneys at (+1) 202 496 1295 or (+1) 888 820 4430 (toll free), or email us at contact@adhikarilaw.com instead of falling for unsubstantiated news reports. 

Trump administration may “potentially” end H-4 EAD

On February 25, 2015, DHS had published a final rule extending eligibility for employment authorization to certain H-4 dependent spouses of H-1B nonimmigrants who are seeking employment-based lawful permanent resident (LPR) status.  DHS is proposing to remove from its regulations certain H-4 spouses of H-1B nonimmigrants as a class of aliens eligible for employment authorization.

RegInfo.gov is a United States Government website produced by the Office of Management and Budget (OMB) and the General Services Administration (GSA).

USCIS to Begin Accepting Applications under the International Entrepreneur Rule

WASHINGTON, D.C. —U.S. Citizenship and Immigration Services (USCIS) announced today it is taking steps to implement the International Entrepreneur Rule (IER), in accordance with a recent court decision.

Although the IER was published during the previous administration with an effective date of July 17, 2017, it did not take effect because the Department of Homeland Security (DHS) issued a final rule on July 11, 2017, delaying the IER’s effective date until March 14, 2018.  This delay rule was meant to give USCIS time to review the IER and, if necessary, to issue a rule proposing to remove the IER program regulations.

However, a Dec. 1, 2017, ruling from the U.S. District Court for the District of Columbia in National Venture Capital Association v. Duke vacated USCIS’final rule to delay the effective date. The Dec. 1, 2017, court decision is a result of litigation filed in district court on Sept. 19, 2017, which challenged the delay rule.

USCIS notes the IER was published during the previous administration to provide an unlimited number of international entrepreneurs a new avenue to apply for parole, enter the U.S., and use American investments to establish and grow start-up businesses. Parole is a discretionary grant made by the Secretary of Homeland Security and is granted only on a case-by-case basis for urgent humanitarian reasons or significant public benefit. The rule established new criteria to guide the adjudication of parole applications from certain foreign entrepreneurs, providing them with temporary permission to come to the country. The rule did not afford a path to citizenship, which only Congress can do.


On Jan. 25, 2017, President Trump issued Executive Order 13767, Border Security and Immigration Enforcement Improvements, which requires the Secretary of Homeland Security to ensure that parole authority is exercised only on a case-by-case basis, and only when an individual demonstrates urgent humanitarian reasons or a significant public benefit due to the parole.

Guidance on how to submit IER applications is available on our International Entrepreneur Parole page.

While DHS implements the IER, DHS will also proceed with issuing a notice of proposed rulemaking (NPRM) seeking to remove the Jan. 17, 2017, IER. DHS is in the final stages of drafting the NPRM.

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For learning more about  this topic do contact our attorneys at (+1) 202 496 1295 or (+1) 888 820 4430 (toll free), or email us at info@adhikarilaw.com

VC Group Gets Win In Foreign Entrepreneur Rule Row

A D.C. federal judge on Friday granted a venture capital group’s bid to vacate a Trump administration rule that delayed an Obama-era regulation for international entrepreneurs, finding it unlawful because the government failed to give time for public. (Lexis) (proposed foreign entrepreneurs  program, find here https://adhikarilaw.com/start-upentrepreneur/final-rule-international-entrepreneur-published-federal-registrar/)

News coverage:

SF Chronicle

American Immigration Council

Lexis-Nexis

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SF Chronicle (citing unnamed source): Trump administration has plans to wipe out work permits for H-1B spouses

Citing unnamed source SF Chronicle reports that Trump administration has plans to wipe out work permits for H-1B spouses. The Trump administration plans to stop granting work permits to spouses of H-1B holders, overturning a 2015 rule and affecting thousands of foreigners currently in the United States, according to sources who have spoken to The Chronicle about the move.

About 130,000 spouses and children of H-1B visa holders came to the U.S. on H-4 visas last year, a number that has been steadily increasing since 2012. Before President Barack Obama created a work permit for certain H-4 visa holders in 2015, these foreigners — often women — were not allowed to hold a job here or be issued a Social Security number.

From October 2015 to September 2016, 41,526 people received authorization to work under the program. Complete figures for the most recent fiscal year, which ended in September, are not yet available.


For now this is “just a guess” and we do not know exactly what is going to happen to the rule.

Do contact us at (+1) 888 820 4430 (toll free) or email us at info@adhikarilaw.com if you will have any questions about H-4 EAD or would like to discuss the plan and strategy to pursue in light of possible changes.