Legal Blogs and Updates

Please Mark Your Calendar and Join Us On Wednesday, October 18, for an Online Presentation Sponsored by NJBIA:  What Employers Should Know About the Updated Form I-9.  

Neil Dornbaum and Kathleen Peregoy, the Co-Chairs of the Immigration and Practice Mobility Practice Group at Connell Foley, will discuss:  

• What is new on the Form I-9 (including possible pitfalls)?
• Reverification of work authorization with the new form
• The new virtual document inspection option
• How does this relate to the end of COVID-19 flexibilities?
• Recent developments from agencies, such as the Immigrant and Employee Rights Section (IER) and Homeland Security Investigations (HSI) that affect the I-9 process

Registration is available here at no charge. Please join us for this important update.  

DOS Releases the October 2023 Visa Bulletin Showing Some Categories Advanced 

With the start of the 2024 Fiscal Year, the Department of State (DOS) began allocating employment-based visa numbers from the FY 2024 allotment, estimated to be 165,000. All categories previously retrogressed have advanced (or remained the same) from the level reported in September 2023.  

Contact us with questions about visa availability. 

DOL OFLC Issues an FAQ with Information on Moving H-1B Workers to a New Worksite Located Outside the Area of Intended Employment Certified in the LCA 

In a recent FAQ, the U.S. Department of Labor (DOL), Office of Foreign Labor Certification (OFLC) stated that filing a new Labor Conditions Application (LCA) isn’t necessary for an employer with an approved LCA to place an H-1B worker at a new worksite located outside of the area(s) of intended employment certified in the LCA if the move will be a temporary placement.  The conditions for a short-term placement are: 

• The employer is in compliance with wages, working conditions, strike requirements, and notice for worksites covered by the approved LCA;
• The employer’s short-term placement is not at a worksite where there is a strike or lockout;
• For every day the H-1B worker is placed outside the area of intended employment, the employer continues to pay the required wages; and
• The employer pays lodging costs, costs of travel, meals, and expenses (for both workdays and non-workdays).

Under the short-term placement provisions, an employer may place the H-1B worker at the new worksite location for up to 30 workdays in one year and, in certain circumstances, up to 60 workdays in one year. Employers will need to determine on a case-by-case basis whether the 30-workday and/or 60-workday provisions may apply. The short-term placement provisions only apply to H-1B workers, not to H1B1 or E-3 workers.  

Contact us with questions about moving H-1B workers from one location to another. 

U.S. Diversity Visa Lottery for FY2025 Opens Next Week

The Diversity Immigrant Visa Program (DV Program) makes up to 50,000 immigrant visas available annually, drawn from random selection among all entries to individuals from countries with low rates of immigration to the United States. The DV Program is administered by the U.S. Department of State (DOS), which maintains a list of eligible countries.

Most lottery winners reside outside the United States and immigrate through consular processing and issuance of an immigrant visa. However, there are a small number of lottery winners each year who, at the time of “winning the lottery,” reside in the United States in a nonimmigrant or other legal status. For these winners residing inside the United States, USCIS processes adjustment of status application.

The online registration period for the FY2025 U.S. diversity visa (DV-2025) program opens on October 4 and ends on November 7.  It is important to note employees with pending employment-based filings are eligible for the DV program.  For those stuck in long per-country backlogs, winning the lottery could be a fast route to permanent residents. 

The attached flyer includes details on DV-2025. Contact us with questions about DV-2025.

USCIS Issues Policy Guidance on Evaluating Eligibility for EB-1 Petitions 

U.S. Citizenship and Immigration Services (USCIS) updated the USCIS Policy Manual to clarify how it evaluates evidence to determine eligibility for Extraordinary Ability and Outstanding Professor or Researcher first preference employment-based immigrant visa classifications.  The update provides examples of relevant evidence, with a focus on STEM fields, as well as USCIS’ considerations when evaluating the evidence.  The policy manual is quite comprehensive. Here are some highlights in connection with Outstanding Professor or Researcher petitions: 

• Qualifying awards may include awards from doctoral dissertation awards and awards from professional associations.
• When evaluating published material in professional publications written by others about the beneficiary’s work, that work need not be the only subject of the material.  Published material that covers a broader topic but includes a substantial discussion of the beneficiary’s work in the field may qualify.  
• The beneficiary’s participation, either individually or as a panel, as the judge of the work of others includes serving as a member of a doctoral dissertation committee and as a peer reviewer for government research funding programs.

Contact us with questions about an employee’s eligibility for the Extraordinary Ability and Outstanding Professor or Researcher categories. 

USCIS Issues Guidance on Form I-9 and E-Verify for Those Affected by the 2023 Hawaii Wildfire 

USCIS issued a fact sheet applicable to those affected by the 2023 Hawaii wildfire, with information on completing Form I-9 or re-verifying when an employee’s documents are lost, stolen, or damaged. The fact sheet also explains how to recreate destroyed Form I-9 records.  The fact sheet points out that new employees may present receipts showing they have applied for a replacement document.  A receipt fulfills the verification requirements of the List A, B, or C document for which the receipt was issued and is valid for 90 days from the first day of employment.  Receipts may also be used for re-verification.  Employees who cannot present the actual replacement document for which the receipt was issued by the end of the 90-day receipt period may choose to present different acceptable documentation.   

The fact sheet also states that if a current employee’s original Form I-9 was damaged or destroyed in the 2023 Hawaii wildfire, the employer must recreate a new Form I-9.  Employers must annotate the Additional Information field for recreated Form I-9 to read: “Original Form I-9 destroyed in 2023 Hawaii wildfire; replacement created on MM/DD/YYYY.” 

Finally, the fact sheet confirms that E-Verify remains available to employers affected by the 2023 Hawaii wildfire.  Employers cannot create a case in E-verify if the employee presents a receipt showing that he or she has applied to replace a document that was lost, stolen, or damaged.  Employers must wait until the employee presents the replacement documentation (or, if the replacement documentation is not available, other acceptable documentation) for which the receipt was presented to create a case in E-Verify for the employee.  If employers are unable to create a case within three business days of the first day of employment, E-Verify will prompt them to enter the reason for the delay, and employers should select “Other” and type “Receipt provided. Awaiting actual document” in the field provided. 

Contact us with questions about I-9 compliance. 

The Student and Exchange Visitor Program Updated Form I-983 Form, Training Plan for STEM OPT Students, to Remove the Wet Signature Requirement 

The Department of Homeland Security (DHS) requires that the STEM Optional Practical Training (OPT) student and employer work together to complete the Form I-983. Properly completing the form will document the relationship between the STEM OPT opportunity, the academic degree received, and the learning objectives of the F-1 student, enabling Designated School Officials (DSO) to properly recommend the student for his or her STEM OPT opportunity. 

In related news, the USCIS Ombudsman Office provided a tip sheet for F-1 students seeking OPT to help avoid USCIS processing delays with Form I-765, Application for Employment Authorization.  Tips include checking the USCIS website for the most updated form and applying online.  

Contact us with questions about STEM OPT status. 

USCIS Launches Online Appointment Request Form 

United States Citizenship and Immigration Services (USCIS) has launched a new online form for individuals, attorneys, and accredited representatives to request an in-person appointment at their local field office without having to call the USCIS Contact Center. 

This online appointment request form allows individuals or legal representatives to request an in-person appointment at a field office only for ADIT stamps, Emergency Advance Parole, Immigration Judge Grants, and more. While the request form allows individuals to request a specific date and time for an in-person appointment, it is not a self-scheduling tool. USCIS cannot guarantee that the requested appointment date will be scheduled. The USCIS Contact Center will review submitted forms and the availability of in-person appointments at a specific field office. USCIS will confirm and schedule the individual for an available in-person appointment date and time. 

Contact us with questions about online appointment requests. 

Biometric Fee of $85 for Form I-539, Application to Extend/Change Nonimmigrant Status, No Longer Required 

Beginning October 1, United States Citizenship and Immigration Services (USCIS) will exempt the $85 biometric services fee as part of the application process for Form I-539, Application to Extend/Change Nonimmigrant Status (the form is frequently used by dependents of nonimmigrant visa holders in the United States, such as H-1B dependents).  Applicants do not need to pay the fee if their application is postmarked October 1 or later.  

Certain applicants who filed Form I-539 prior to October 1 will still be scheduled for an ASC appointment and should still attend.  In most cases, applicants will not be scheduled to attend a biometric services appointment. However, if USCIS determines that biometrics are required, the applicant will receive a notice with information about appearing for their biometric services appointment.  

Contact us with questions about Form I-539 and/or biometrics. 

The DOS Announces Expiration of COVID-Era Visa Application Fee Receipts 

The Department of State (DOS) announced that Machine-Readable Visa receipts for fee payments issued before October 1, 2022, will expire on September 30, 2023.  There will be no extension of fee validity.  Applicants must have scheduled an appointment or submitted a waiver application before September 30 to avoid paying a new fee, but the interview did not need to have taken place before September 30.  Applicants using MRV fees paid before October 1, 2022, to book appointments are cautioned not to attempt to change their appointment dates after October 1, 2023; doing so will result in forfeiture of both the original appointment slot and the MRV fee receipt. 

Contact us with questions about Machine-Readable Visa receipts. 

USCIS Issues Clarification That Certain TPS Beneficiaries Are Eligible for an Extension of Their EADs for Up to 540 Days 

In a clarification issued on September 8, 2023, USCIS stated that if an individual with Temporary Protected Status (TPS) or a pending TPS application applies to renew their TPS Employment Authorization Document (EAD) on or before October 26, 2023, their TPS EAD is extended for up to 540-days from the date shown on their TPS EAD.  When completing Form I-9, an employee may present a facially expired EAD with a category code of A12 or C19 with a form I-797C that: 

• Has a filing date after the “Card Expires” date on their EAD, and
• Indicates eligibility for automatic EAD extension. 

Contact us with questions about EAD extensions. 

The Latest Court Ruling Against DACA Has Young Immigrants Facing Uncertainty Again

In mid-September, a Texas Federal Judge ruled unlawful the Biden Administration’s recent effort to codify Deferred Action for Childhood Arrivals (DACA) in the Federal Regulations. DACA, which went into effect 11 years ago and has been under constant attack since 2017, protected beneficiaries (young people who arrived in the United States before they turned 16, had enrolled in school, had graduated or been honorably discharged from the military, and had never been convicted of a major crime) from deportation and gave them permission to work lawfully in the United States.  The ruling does not require the government to take any action against current DACA recipients, who may continue to renew every two years.  However, it bars the government from approving new applications.  Advocates have said that it’s likely the Biden Administration will appeal. 

Contact us with questions about the DACA program, including I-9 compliance. 

Immigrants Are Joining the U.S. Workforce at Higher-Than-Normal Levels, Easing Worker Shortages 

Axios reports that immigrants are joining the U.S. workforce at an unusually high rate, rescuing desperate employers.  Between January 2020, which was pre-pandemic, and July 2023, the immigrant labor force grew by 9.5%.  That’s compared to a tiny 1.5% growth rate among the native-born.  It is theorized that this is due to demographic changes in the United States.  The great retirement of the Boomer generation is taking place mainly among the native-born, with most immigrants not yet facing retirement. 

Contact us with questions about nonimmigrant visas for foreign-born workers. 

An Impressive 44.8% of Fortune 500 companies in 2023 Were Founded by Immigrants or Their Children 

Since 2011, the American Immigration Council has published an annual New American Fortune 500 report, which traces the number of immigrant-founded corporations.  The report draws on Fortune Magazine’s annual ranking of the United States’ 500 largest corporations, ranked by revenue, to analyze the share of companies that were founded by immigrants or the children of immigrants.  AIC found that 44% of the companies on the 2023 Fortune 500 list, or 224 companies, were founded by immigrants or their children.  These companies collectively generated $8.1 trillion in revenue in 2022 and employed 14.8 million people.  New York is the state with the most immigrant-founded companies on the 2023 Fortune 500 list, followed by California, Texas, Illinois, Florida, and Virginia. 

Contact us with questions about immigration options available to entrepreneurs.