Seyfarth Synopsis: On July 24, 2019, U.S. Citizenship and Immigration Services (USCIS), the immigration-benefits component of the Department of Homeland Security (DHS), published a final regulation on “EB-5 Immigrant Investor Program Modernization” (the “Rule”) to reform the EB-5 program in the Federal Register. Absent successful court challenges, or the passage by Congress of EB-5 legislation, the Rule will take effect on November 21, 2019. The Rule makes pronounced changes to the EB-5 program, including a significant increase in the investment threshold, conferral of exclusive authority to USCIS to designate Targeted Employment Areas (TEAs), and retention of priority dates for petitioners. The text of the Rule can be found here.
This blogpost has been updated on July 23, 2019 with information regarding the number of audit notices issued.
Seyfarth Synopsis: The temperature may be heating up in the nation’s capital, but Immigration and Customs Enforcement (ICE) is keeping things cool. ICE Acting Director, Matthew Albence, confirmed that almost 3330¹ Notices of Inspection (NOI) have already been served, across the 50 states and Puerto Rico, initiating Form I-9 audits for companies of all shapes and sizes. It is expected that over 5000 NOIs will be issued before this latest ICE blitz is over. With the current enforcement climate, there may even be a resurgence of pre-dawn enforcement actions – otherwise known as “raids” – to surprise both workers and their employers. Companies should expect penalties to climb sky high, with recent reports of multi-million dollar fines, especially for non-compliant electronic I-9 systems — that’s right, something that has nothing to do with unlawful workers. It is expected that over 5000 NOIs will be issued during this round of audits
What is an NOI?
An NOI initiates a government administrative inspection of a company’s Forms I-9 to determine whether they are complying with existing law. U.S. Immigration and Customs Enforcement’s (ICE) Homeland Security Investigations (HSI) leadership considers civil administrative audits to be just one of many tools that ICE can use to reduce the demand for unauthorized unemployment and to protect opportunities for U.S. workers. The current enforcement strategy includes an expanded use of civil penalties, employer audits, and debarment, as well as the criminal prosecution of employers who knowingly break the law.
Seyfarth Synopsis: On July 10, 2019, the U.S. House of Representatives passed H.R. 1044 – the “Fairness for High-Skilled Immigrants Act of 2019,” on the Suspension Calendar with a bipartisan vote of 365-65. The legislation, originally introduced by Rep. Zoe Lofgren (D-CA), would eliminate the existing “per-country cap” for employment-based immigrants while also increasing the per-country cap on family-based immigrant visas.
The current employment-based system for immigrant visas (i.e. “green cards”) is based on “per-country caps” which set a cap, or quota, per-country at 7% of the total amount of employment-based green cards issued annually by the United States. As one employer-based coalition put it, “[t]his means that India and China, which account for over 40% of the world’s population are allowed the same number of visas as Greenland, a country that accounts for 0.001% of the world’s population.” For more information on the operation of the per-country caps, see the Congressional Research Service’s December 2018 analysis here.
On May 29, 2019, forty-seven members of Congress wrote a letter to Attorney General Bob Barr and Acting Secretary of Homeland Security Kevin McAleenan registering their disagreement with the application of USCIS policy guidance to those who have been employed in the legal cannabis industry.
The letter’s signatories, led by Reps. Joe Neguse, Kelly Armstrong and Hakeem Jeffries, noted that thirty states and the District of Columbia have legalized cannabis for medical and/or recreational purposes. The letter criticizes the policy stating that it “targets naturalization applicants based on lawful employment for an activity that is legal in multiple states and and territories (albeit not under federal law).”
The letter is particularly critical of the potential treatment of naturalization applicants who have not been subjects of marijuana charges or convictions, but whose admissions in the course of immigration adjudications would then expose them to potential federal prosecution and deportation. The letter characterizes the new guidance as “fatally flawed, as it provides no cogent basis for the agency’s apparent conclusion that lawful employment in a state licensed industry could be treated as a negative factor in establishing good moral character.”
The letter concludes by calling on the federal government either to retract the guidance altogether, or to offer more clearly defined standards for obtaining admissions from naturalization candidates disclosing employment in the marijuana industry.
A link to the letter is here.
Whether the letter will result in any modifications of USCIS policy and/or adjudicative processes remains to be seen. Under either outcome, it is likely that marijuana use, possession or distribution by naturalization candidates, even in the course of legal employment, will pose hazards to those applicants for years to come.
Seyfarth Synopsis: As a number of states and the District of Columbia have moved to permit possession, use and sale of marijuana for both medicinal and recreational purposes and the business of legalized cannabis distribution has grown exponentially, federal law banning such activity remains unchanged. Deeming the trend in state law irrelevant, federal immigration authorities have in fact moved in the opposite direction. Last month, on April 19, US Citizenship and Immigration Services announced policy guidance “to clarify that violations of federal controlled substance law, including violations involving marijuana, are generally a bar to establishing good moral character for naturalization, even where that conduct would not be an offense under state law.”
Seyfarth Synopsis: The Social Security Administration has once again resumed issuing No-Match notices to employers. The notices alert businesses that SSA has identified data discrepancies between the agency’s records and employer-provided data submitted for payroll tax reporting to the IRS. Issuance of the notice triggers a duty upon employers to take action. While a No-Match notice may involve an innocent clerical mistake or an unreported name change, it could also offer a clue suggesting that workers named in the notice may lack the right to work in the United States. This blog outlines the risks and the measures prudent employers should take to comply with SSA requirements while avoiding the knowing employment of unauthorized workers and the risk of unlawful discrimination under the immigration laws.
Seyfarth Synopsis: USCIS Announces the FY 2020 H-1B Cap Reached.
On April 5, 2019, United States Citizenship & Immigration Services (USCIS) announced that it received sufficient H-1B petitions to meet the regular H-1B quota (or “cap”) for Fiscal Year 2020, which begins on October 1, 2019. This means that USCIS received more than 65,000 H-1B petitions in the first week of filing (April 1 – April 5). USCIS will next determine if it received a sufficient number of petitions to meet the 20,000 H-1B visa U.S. advanced degree exemption, known as the Master’s cap.
Seyfarth Synopsis: The Deferred Enforced Departure (DED) work authorization for eligible Liberian nationals has been extended automatically until March 30, 2020. While the previous wind-down period for DED was set for March 31, 2019, President Trump, on March 28, 2019, issued a presidential memorandum directing Secretary Nielson to provide continued work authorization for an additional 12-months.
On April 3, the US Citizenship and Immigration Services (USICS) published notice in the Federal Register with information on the six-month automatic extension of employment authorization documents (EADs) through September 27, 2019. The notice also provides guidance for Liberians with DED status on how to apply for their EAD for the full 12 month period, through March 30, 2020. For an employee with a current DED-related EAD with A-11 under “category” that expires on March 31, 2019, employers may rely on the Federal Register notice as evidence of continued work authorization until September 27, 2019 to update the employee’s Form I-9. After this date, the employee should present their new EAD to update their Form I-9.
How to Update an Existing Employee’s Form I-9?
For an existing employee who presented a DED-related EAD that has now been auto extended, the employer must update their Form I-9 to reflect the changes. Employees may choose to present their EADs to their employer as proof of identity and employment authorization for the Form I-9 through September 27, 2019.
In Section 1, the employee should:
1. Draw a line through the expiration date and write a new expiration date. If the Federal Register notice is used for the automatic extension, the new date in Section 1 should be September 27, 2019. If the employee presents an updated EAD, the expiration date in Section 1 should be the expiration date on the document.
2. Initial and date the correction.
In Section 2, the employer should:
1. If the Federal register notice is used:
a. Draw a line through the expiration date in Section 2 and write a new expiration date.
b. Write AUTO EXTENDED UNTIL September 27, 2019.
c. Initial and date the correction.
2. If the employee presents a new EAD or documents showing update in status:
a. Complete Section 3 in the current version of the Form I-9.
It is important to note that the automatic extension is not a reverification. Accordingly, Section 3 is not used in the example above. That said, once Section 3 is completed, an auto-extension could be recorded on the date in Section 3.
How to Complete an New Employee’s Form I-9?
In Section 1, the employee should:
• Check “An alien authorized to work until” and enter September 27, 2019, as the “expiration date”.
• Enter their Alien Registration Number/USCIS Number where indicated.
In Section 2, the employer should:
• Determine if the EAD is automatically extended 180 days by ensuring that it has category A-11 and has a March 31, 2019, expiration date.
• If the EAD has been automatically extended, the employer should:
• Write in the document title.
• Enter the issuing authority.
• Provide the document number.
• Write September 27, 2019, as the expiration date.
What’s Happens After 9/27/19?
Before the start of work on September 28, 2019, employers will required by law to reverify the employee’s employment authorization in Section 3 of Form I-9. If the original Form I-9 was a previous version, the employer must complete Section 3 of the current version of Form I-9 and attach it to the previously completed Form I-
My company participates in E-Verify, how do we verify a new employee whose EAD has been automatically extended?
Employers should use the data from the Form I-9 and record the auto-extension date for the expiration date of the EAD card.
What Else Do Employers Need to Know?
It is critical that those responsible for the Form I-9 process understand how, and when, to record TPS auto-extensions and Sections 2 and 3 updates. This avoids exposure to fines and penalties associated with incorrectly completed I-9s. We’ve written about the tremendous increase in enforcement activity in 2018, and watched the Administration “reduce the demand for illegal employment and protect employment for the nation’s lawful workforce.” It’s clear that Immigration and Customs Enforcement (ICE) plans to continue building on a strategy that includes worksite enforcement actions, the prosecution of employers, and Form I-9 inspections. Be prepared for 2019 as ICE continues using Form I-9 audits and civil fines to encourage compliance. We also anticipate a renewed focus on the IMAGE program and other employer outreach in an attempt to partner with employers acting in good faith and reserve their attention for egregious violators.
The following is directed to organizations with a presence in the UK or who anticipate the need to place talent at a UK work site.
Seyfarth Shaw’s Global Mobility Practice hosts attorneys licensed to practice in the UK, Canada, Ireland and Germany. The group has the capability to assist clients with obtaining work and residence visas for over 70 jurisdictions around the world. If we can assist you in placing talent, please call your Seyfarth attorney. We will be happy to help you.
Seyfarth Synopsis: On March 14th, the UK Parliament voted in favor of an extension to Article 50, which is the legal mechanism to enable the UK’s exit from the EU. The non-binding vote seeks to delay the departure date by three months, from March 29th to June 30th, 2019. However, any extension must be agreed upon by the other 27 EU countries. Continue Reading Brexit: UK Parliament Votes to Delay Departure
Seyfarth Synopsis: On Friday, March 22, 2019, Seyfarth Shaw’s Immigration Compliance and Enforcement Group invites you to join the first webinar in our new Compliance Chatter Series: Inside E-Verify
While, following the federal government shutdown, E-Verify has returned to a modicum of normality, increasing audits and other government oversight activities mean that employers need to pay careful attention to compliance issues in their use of E-Verify. Up until recently there has been little or no oversight of the FAR E-Verify rule; that is expected to change in the coming year. And, growing calls on Capitol Hill for mandatory E-Verify for all employers mean that these issues may affect all employers before long.
Employers need to stay ahead.
In this webinar offered by the Seyfarth Shaw Immigration Compliance and Enforcement Team, we will explore the following topics:
- The role of the US Citizenship and Immigration Service’s (USCIS) E-Verify Monitoring and Compliance program
- What USCIS is looking for when they conduct reviews and what you should be looking for before you are reviewed
- Next steps and timing for mandatory E-Verify web services updates, and the impact on companies using electronic Form I-9 vendors
- Expected E-Verify legislative changes
- Dealing with state and local E-Verify regulations and STEM related mandates
- E-Verify-related considerations when deciding on Electronic I-9 System
Be on the lookout for an invite for the next upcoming webinars in our series:
- Social Security “No-Match” Letters Coming to Your Mailbox Soon
- E-Verify, Government Contractors and the FAR Clause 10 years Later
This program will be moderated by Chair of Seyfarth Shaw’s Government Relations and Policy Group, Randy Johnson.
Cost: While there is no cost to attend, registration is required.
Friday, March 22, 2019
1:00 p.m. – 2:15 p.m. Eastern
12:00 p.m. – 1:15 p.m. Central
11:00 a.m. – 12:15 p.m. Mountain
10:00 a.m. – 11:15 a.m. Pacific
* Connection details will be emailed the day prior to the event
If you have any questions, please contact Cassie Peterson at email@example.com and reference this event.