DHS Provides Employers with Fact Sheet on I-9 Fine Calculations
Form I-9 is used by employers to verify that employees are legally authorized to work in the US; compliance requires new hires to provide documentation of the right to work in the United States. As we have reported in earlier newsletters, the Department of Homeland Security (DHS) aggressively enforces the Form I-9 regulations.
The fines that DHS imposes for substantive and uncorrected technical violations of Form I-9 regulations can result in fines that now range from $272 to $2,701 per individual for a first offense and $5,404 to $27,018 for subsequent offenses. A fact sheet provided by DHS explains how these fines are calculated, outlining factors that the Department considers such as the business’ size, good faith or lack thereof, the seriousness of the offense, and the employer’s compliance history. Click here to view a copy of the fact sheet.
Please contact us with questions about I-9 compliance.
For Mexican TNs, Changing or Adding an Employer at the Border May Be a Risky Proposition
Federal Regulations 8 CFR §214.6(i)(2), which apply to Customs and Border Protection (CBP), indicate that Mexican citizens with a valid TN visa “may” present documentation of a “different or additional employer” to a consular officer, and may also apply for readmission by presenting documentation from a “different or additional” employer at the border. In contrast, the Foreign Affairs Manual (9 FAM 402.17-5), which applies to the Department of State (DOS), recites an option to change or add employers by departing the United States and applying for readmission at the border for Canadian citizens only. Accordingly, it is unclear whether the DOS recognizes a change (or addition) of employer for a Mexican processing at the border.
This situation has resulted in uncertainty. Some ports of entry reportedly refuse to apply the regulations to allow Mexican TNs to add or change employers at the border. They have instead admitted Mexican citizens seeking TN admission in B visitor status (not work authorized), refusing to review documentation related to a change or addition of employers.
Even when Mexican TN holders are permitted to process a change or addition of an employer at the border, there is no way to know for sure that the CBP officer recorded the information. This creates I-9 compliance concerns that risk-adverse employers may want to avoid.
Contact us with questions about the best course of action when a hire is in TN status with a new employer.
Biden Administration Announces Path for Some DACA Recipients and DREAMers to Receive Work Visas
Many U.S. employers have one or more DACA (Deferred Action for Childhood Arrivals) recipients in their workforces. Pursuant to a recent announcement from the Biden Administration, DACA recipients who qualify for nonimmigrant status, such as an H-1B specialty occupation visa, may be eligible for a temporary visa more easily if they:
- have a degree from an accredited U.S. institution of higher education, and
- have an offer of employment from a U.S. employer in a field related to their degree.
This announcement also applies to “DREAMers,” DACA recipients and DREAMers are not interchangeable terms. DACA refers only to those who applied for and received DACA status through the Obama-created program. DREAMers refer to the larger population of unauthorized migrants who arrived in the United States as minors.
It is important to note that details have yet to be announced, and the program has not yet begun. Details on how to apply are expected to be released by the end of the summer through a Federal Register notice. Click here to view a helpful flyer that explains the Biden Administration’s announcement.
We will keep readers of this newsletter apprised of developments in this area. Contact us with questions.
DHS Proposes Regulatory Change to Clarify When 9-11 Biometric Fee Applies to H-1B and L-1 Visas
The 9-11 Response & Biometric Entry-Exit Fee for H-1B and L-1 Visas (9-11 Biometric Fee) applies only to entities that employ 50 or more people in the United States, with more than 50% of the U.S. employees in H-1B or L-1 status. DHS has proposed regulatory changes that would clarify the department’s interpretation of ambiguous statutory language to require that covered employers submit the 9-11 Biometric Fee for all extension-of-stay petitions, regardless of whether a Fraud Fee applies. Under this interpretation, covered employers include extension-of-stay petitions that do not involve a change of employer.
The 9-11 Biometric Fee would continue to apply unchanged to petitions seeking an initial grant of status. DHS maintains that the proposed changes will help the department to comply with its congressional mandate to implement a biometric entry-exit data system.
Contact us with questions about H-1B and L-1 fees.
DOS Issues July 2024 Visa Bulletin Showing Some Improvement
U.S. Citizenship and Immigration Services (USCIS) determined that, for July 2024, all employment-based preference categories must use the Final Action Dates chart. The chart shows advancements of one or two months for Indian nationals in all three preference categories, and similar advancements for Chinese nationals in the Employment-Based (EB) 2nd and 3rd preference categories. For Indian nationals in the EB 1st preference category, the improvement was better, showing an 11-month advancement.
Unfortunately, one category, EB3 worldwide, saw a backwards slip in the priority date, with the backlog being approximately 11 months longer compared to the June 2024 visa bulletin.
Contact us with questions about priority dates and the visa bulletin.
PartnerAbigail Walsh has over 20 years’ experience in a wide range of immigration matters. She represents multinational and domestic corporations, their employees and private individuals in business immigration matters before U.S ...
PartnerVictoria Donoghue has an extensive background in immigration law, advising clients on the full range of issues related to employment-based immigrant and nonimmigrant visas. Her experience includes handling complex Requests for ...