REMINDER: Required Use of New Form I-9 Began January 22, 2017
The Trump administration has emphasized the need for compliance in the immigration arena. Employers should focus energy on I-9 compliance to meet the obligations set forth in the Immigration Reform and Control Act of 1986 (“IRCA”) to address the likelihood of increased worksite enforcement.
Employers were required to begin using the new version of the I-9 Employment Eligibility Verification Form on January 22, 2017. This new version is computer-friendly and contains prompts, instructions, and drop down selections. However, it is not an “electronic Form I-9” according to applicable regulations. Thus, once the form has been completely and correctly filled out, it must be printed, signed, and dated by the appropriate parties. The new version of the Form I-9 is available here.
Highly Skilled Worker Regulations Go Into Effect
The long-awaited regulations on Highly Skilled Workers, which were published in the Federal Register late last year, went into effect on January 17, 2017.
In many cases, these regulations codify existing policies and practices of U.S. Citizenship and Immigration Services (“USCIS”). However, the regulations do contain some new, noteworthy provisions. For example, foreign nationals in certain, limited categories (including those with pending I-485 Applications to Adjust Status) now receive an automatic 180-day extension of their employment authorization upon the filing of an I-765, Application for Employment Authorization, seeking to extend such authorization. The automatic extension applies to any I‑765 application seeking an extension filed on or after January 17, 2017, by individuals in the categories specified in the regulations. There has been conflicting information regarding whether Applications for Employment Authorization filed prior to that date are eligible for the automatic extension. While the automatic extension of employment authorization is a great benefit for employers and employees, please note that the automatic extension does not apply to Advance Parole. Thus, foreign nationals who travel abroad regularly will need to ensure that they timely file applications to extend their Advance Parole, even if they are eligible for the automatic extension of employment authorization under the new regulations. As in the past, expedited Advance Parole may be available in certain urgent situations.
Please also note that the employment authorization automatic extension does not apply to certain nonimmigrant dependent categories eligible for work authorization unless they also have an adjustment application on file and have obtained work authorization through the I-485 adjustment of status process. For example, L-2 spouses are eligible for employment authorization, but are not included in the automatic EAD extension. In addition, a relatively small percentage of H-4 visa holders have the ability to obtain work authorization when the principal H-1B beneficiary has an approved I-140 immigrant visa petition or has reached 6 years in H-1B status, but USCIS has granted an extension of status pursuant to the American Competitiveness in the 21st Century Act (“AC21”). EADs granted to H-4s in these limited circumstances will not receive automatic extensions under the new regulations.
In addition to the provisions specifically noted above, the new regulations address numerous other issues, including grace periods for certain nonimmigrants, counting against the H-1B annual cap, protections for H-1B whistleblowers, establishment and retention of priority dates, continued validity of I-140, Immigrant Visa Petitions, following employer revocation, green card portability, and employment authorization in “compelling circumstances.” The full text of the new regulations are available here.
New Form for Employees Porting under INA §204(j)
Section 204(j) of the Immigration and Nationality Act (“INA”) allows employment-based adjustment of status applicants (i.e., individuals with pending I-485s, Applications to Adjust Status) to change jobs or employers as long as the new job is in the same or a similar occupational classification as the job for which the I-140, Immigrant Visa Petition, was filed without jeopardizing the green card process if the I-485 has been pending for 180 days or more. This provision is intended to provide job flexibility in light of long processing times, and is often referred to as “porting.”
On January 17, 2017, as part of the new Highly Skilled Worker regulations, USCIS released a new form, the Supplement J, for circumstances where porting under INA §204(j) may be possible. The Supplement J should be used to either confirm that the job offer detailed in the I‑140 remains valid or to notify USCIS that the foreign national changed jobs or employers and intends to port pursuant to INA §204(j). In cases where the I-140 and I-485 are concurrently filed, the foreign national or his/her employer may submit the Supplement J either while the I‑140 is being processed (e.g., in response to a Request for Evidence) or as part of the I‑485 processing. USCIS may also request the Supplement J as part of its final processing of the I-485. In cases where the I-485 is not filed concurrently with the I-140, the Supplement J should be filed with the I-485 in order to confirm that the job offer detailed in the I-140 is still valid.
The newly-released Supplement J and detailed instructions are available here.
Final Regulations Published for International Entrepreneurs
On January 17, 2017, USCIS published a final rule that adds new regulatory provisions on the use of parole with respect to entrepreneurs of start-up entities who can demonstrate that they would provide significant public benefit to the United States. These regulations will be effective July 17, 2017. The full text of the new regulations are available here. However, the new Chief of Staff of the Trump administration issued a Memorandum on January 20, 2017, directing heads of executive departments and agencies to temporarily postpone regulations with future effective dates to allow for further review on questions of fact, law and policy.