Form I-9 Update – When I-797 Receipts Are Acceptable

The DHS, in partnership with  ICE and the DOJ’s Immigrant and Employee Rights Section (IER), has announced new guidelines for employers on “acceptable receipts” for Form I-9, Employment Eligibility Verification.

When an employee presents a receipt for the replacement of a List A, B, or C document that was lost, stolen or damaged, they should also present the replacement document for which the receipt was issued.

This, however, may not be possible due to “document delays, changes in status, or other factors.”

Under the new guidelines, if the employee does not present the “original document for which the previously provided receipt was issued,” but presents, within 90 days, a document or documents that proves the employee’s identity, the employer can accept such documentation. The employer should then complete Section 2 and attach it to the “original Form I-9,” with an explanation in the “Additional Information box included on page 2 of the Form I-9 or as a separate attachment.”

The DHS recommends reading I-9 Central Acceptable Documents-Receipts for more information.

Attorney General Merrick Garland Vacates Matter of A-B, and Matter of L-E-A

On June 16 2021, Attorney General Merrick Garland vacated Matter of A-B (“A-B- I;” “A-B- II”), and Matter of L-E-A(“L-E-A- II”). According to a Department of Justice memorandum, the intent of these revocations is to ensure that “asylum claims-including those based on domestic violence, gang violence, or family relationships-are considered fairly, expeditiously, and in accordance with our Nation’s laws.” Matter of A-B limited asylum claims involving gang violence. Matter of L-E-A redefined the circumstances of when a family could be considered a “particular social group” for asylum. This decision was made under the backdrop of pressure by immigration attorneys for review of Trump-era policies and President Joe Biden’s executive order to “develop policies…for the safe and orderly processing of asylum claims.”

Biden Administration Increases H2B Visa Allotment

On May 25, 2021, the DHS and DOL announced a temporary increase of available H-2B Temporary Non-Agricultural Worker Visas. As of June 3, 2021, some of the 6,000 additional visas for Northern Triangle (Guatemala, Honduras, and El Salvador) citizens remain available. The seasonal worker visa increase will expire on October 1, 2021. To qualify for Northern Triangle H-2B visas, employers must apply by July 8, 2021. If there are fewer than 6,000 beneficiaries for the Northern Triangle visas by July 23, 2021, the remaining visas will be available until September 30, 2021, to all beneficiaries under the returning worker limitation. For more information, please see Temporary Increase in H-2B Nonimmigrant Visas for FY 2021 USCIS.

Premium Processing Fees to Increase on Oct. 19, 2020

Form I-907, Request for Premium Processing will increase from $1,440 to $2,500 on October 19, 2020. Any Form I-907 postmarked on or after October 19, 2020 must include the new fee amount. See related USCIS link at https://www.uscis.gov/news/premium-processing-fee-increase-effective-oct-19-2020

Update on Domestic and Gang Violence as Basis for Asylum. Matter of A-R-C-G-, Matter of A-B- and Grace v. Whitaker

On June 11, 2018, Attorney General Jeff Sessions issued his decision in Matter of A-B-, a case that he certified to himself, overruling the ground-breaking, precedential decision of the Board of Immigration Appeals in Matter of A-R-C-G-, a case which took fifteen years to litigate, that was critical to women from Central America seeking protection from domestic violence.  The Attorney General in Matter of A-B-, stated that adjudicators should “generally” deny both domestic violence and gang violence related claims. This move was viewed as an attempt to shut down the claims of most Central American asylum seekers.  On December 19, 2018, in Grace v. Whitaker, Judge Emmet G. Sullivan of the U.S. District Court in Washington D.C., held that such generalized polices are against our immigration laws.  Judge Sullivan stated that “there is no legal basis for an effective categorical ban” on such claims.  Although Judge Emmitt’s decision does not overrule Matter of A-B- per se, it declares unlawful new restrictions imposed by the Trump administration on immigrants seeking asylum on the basis of domestic or gang violence as a result of Session’s decision in Matter of A-B-.

Read more about latest on domestic and gang violence asylum claims at:  https://cgrs.uchastings.edu/news/court-rules-trump-policies-denying-asylum-protections-people-fleeing-domestic-and-gang-violence

USCIS Proposes Pre-Registration Requirement for Employers Filing H-1B Cap-Subject Petitions

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On December 3, 2018, the U.S. Citizenship and Immigrations Services, Department of Homeland Security, issued a proposed rule requiring employers planning to file H-1B cap-subject petitions for the fiscal year 2020 filing season, which begins on April 1, 2019, to pre-register on a short form first. According to the proposed rule, the pre-registration period could occur before the April 1 opening day of H-1B cap filing season. This short form, to include only basic information about the employer, the job opportunity and the foreign national, would then be run through the H-1B cap lottery system for standard and master’s cap cases until enough short forms are selected to meet the total 85,000 H-1B annual quota.

Under this proposed rule, there is no fee required for submitting the pre-registration short form. Full H-1B petitions, supporting documents and filing fees could only be submitted by employers after their short form is selected through the lottery process. The window for submission of full H-1B petitions eligible to be filed based on selection in the pre-registration lottery process will be very short, perhaps fourteen days under the proposed rule.

The proposed rule also includes the possibility of a waiting list being established so additional cases could be filed if the quota is not reached due to case rejections, withdrawals or if an employer decides not to file a petition that was selected in the lottery. Employers should be aware that the proposed rule includes changes to the lottery selection process aimed at increasing the overall number of foreign nationals with U.S. master’s degrees who would potentially be selected.

This change is intended to advance the Trump administration’s “Buy American, Hire American” policy and general policy of stricter enforcement of the H-1B rules steering the H-1B lottery process toward foreign nationals who are more highly paid and who hold advanced degrees from U.S. universities. It is still unknown whether the proposed rule will be finalized and in operation for start of the 2019 H-1B cap-subject case filing season which begins on April 1, 2019. Therefore, employers are advised to plan ahead and start preparing cases now under current rules.

To learn more about the H-1B Visa category see: https://www.uscis.gov/working-united-states/temporary-workers/h-1b-specialty-occupations-and-fashion-models/h-1b-fiscal-year-fy-2019-cap-season

To read the H-1B pre-registration proposed rule go to: https://www.federalregister.gov/documents/2018/12/03/2018-26106/registration-requirement-for-petitioners-seeking-to-file-h-1b-petitions-on-behalf-of-cap-subject

 

U.S. Supreme Court Steps Up for Immigrants in Pereira v. Sessions

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On June 21, 2018, the Supreme Court issued its groundbreaking decision in Pereira v. Sessions which holds that Notices to Appear (NTA) that do not specify the date, time and place of removal proceedings do not meet the statutory definition of an NTA and, therefore, do not cut off a noncitizen’s ability to accrue the time in the United States required to qualify for cancellation of removal.

Since it became common practice over the last several years for USCIS to issue NTA’s without including a date, time and place to appear, the implications of Pereira are wide-ranging and, interpreted most broadly, could mean that anyone in the U.S. more than ten years, who can demonstrate harm to a U.S. citizen relative if deported and good moral character, could be granted cancellation of removal, whether or not they were ever issued an NTA in the past. Furthermore, based on the Supreme Court’s decision, immigration courts might not be able to take jurisdiction in matters unrelated to cancellation of removal and the stop time rule and would have to allow for termination of all removal proceedings pertaining to an NTA that does not contain the statutorily required information. Furthermore, it would mean that final removal orders and expedited removal orders issued and/or executed under such circumstances would be invalid. Pereira literally could affect millions of removal cases initiated by the government over the last several years.

The Board of Immigration Appeals (BIA) did not waste much time weighing in, however, and on August 31, 2018, interpreted Pereira narrowly in its holding in Bermudez-Cota. The BIA, in Bermudez-Cota held that an NTA should not be considered defective, for purposes of the stop time rule, if a subsequent notice of hearing is properly served. In other words, any defective NTA can be cured by a hearing notice which contains the date, time and place of the hearing.

However, it is this author’s position that in Pereira, the Supreme Court, in an 8-to-1 decision, spoke clearly and decisively. It stood up for justice and rebuked the government for the sloppy way in which USCIS carries out its important responsibilities in such a punitive process as removal proceedings where people are deported from the U.S., sometimes for life. It underwent an extensive analysis of the statute and its explicit language which is plain and clearly states that the date, time and place of hearing is an essential element of an NTA. While the Supreme Court did not address all the issues, the implications of Pereira will surely be litigated for some time, and this will be a developing area of immigration law for years to come. Anyone ever issued an NTA without the date, time and place to appear included on its face should contact this office to see how they may be affected by the holding in Pereira.

Read Pereira v. Sessions at: https://www.supremecourt.gov/opinions/17pdf/17-459_1o13.pdf

 

USCIS Currently Accepting DACA Renewal Applications

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On September 5, 2017, Attorney General Jeff Sessions announced that the Deferred Action for Childhood Arrivals (DACA) program was being terminated. The same day, USCIS was ordered to reject all initial and renewal DACA applications and associated work authorization requests. In the days following issuance of the announcement, lawsuits were filed across the country challenging termination of the program. Since then, two U.S. district courts have enjoined the termination of DACA for individuals who have previously held DACA status at any time. These courts have ordered USCIS to continue accepting DACA renewal applications from these individuals. However, for those who have never held DACA status, the courts have not yet required USCIS to continue to accept initial DACA applications, but this issue is still being litigated.

Therefore, if you have ever held DACA status before, you should submit your renewal application between 150 to 120 days before your DACA expiration date, so long as you meet the following criteria:

  • You must not have departed the U.S. on or after August 15, 2012, without first having been granted advance parole.
  • You must have resided continuously in the U.S. from the time you submitted the initial request for DACA up until the present time.
  • You must not have been convicted of a felony, a significant misdemeanor, or three or more misdemeanors, and must not otherwise pose a threat to national security or public safety.

 

If your DACA status has already expired, you can still submit a renewal application but you must fill out your DACA application as if you were applying for the first time and you must submit evidence that you meet each DACA eligibility requirement.

For more on DACA eligibility requirements see: https://www.uscis.gov/archive/consideration-deferred-action-childhood-arrivals-daca

DACA is generally a deferred action program, commenced during the Obama administration, that grants relief from deportation and eligibility for work authorization to approximately one million young adults who entered the U.S. before their sixteenth birthday and who have resided here continuously. DACA does not apply to anyone who has been convicted of a felony, significant misdemeanor, or three or more other misdemeanors, or to anyone who would otherwise pose a threat to national security or public safety.

DACA Renewal Tips

Don’t Let Your Work Permit Expire

Follow These DACA Renewal Tips

Some people wait too long to request DACA renewal or do not correctly submit all the required forms and fees. As a result, their Employment Authorization Documents may expire before USCIS can finish processing their requests for DACA renewal. You can lessen the chance that this may happen if you:

• File on time. Submit your renewal request between 150 days and 120 days before the expiration date listed on your current Form I-797 DACA approval notice and Employment Authorization Document.

• Correctly submit all required forms and fees. USCIS will reject your renewal request unless you properly submit: o Form I-821D, Consideration of Deferred Action for Childhood Arrivals; o Form I-765, Application for Employment Authorization; o Form I-765 Worksheet; and o Required fees of $465

• Avoid processing delays. Be sure to submit: o Any new documents and information related to removal proceedings or criminal history that you have not already submitted to USCIS in a previously approved DACA request, o Proof of advance parole if you have traveled outside the United States since you filed your last DACA request that was approved; and o Proof of any legal name change.

• Respond to Requests for Evidence. USCIS may deny your renewal request if you do not respond to a Request for Evidence in a timely manner. For complete instructions, go to the Consideration of Deferred Action for Childhood Arrivals (DACA) page. Since March 27, 2015, USCIS has been mailing renewal reminder notices to DACA recipients 180 days before the expiration date of their current period of deferred action. Previously, these reminder notices were mailed 100 days in advance. The earlier notices are intended to ensure that DACA recipients are reminded before the start of the recommended renewal period and have sufficient time to prepare their renewal requests. USCIS’ current goal is to process DACA renewal requests within 120 days.

USCIS Issues New L1B Transferee Guidance

This policy memorandum provides guidance on the adjudication of the L-1B classification, which permits multinational companies to transfer employees who possess “specialized knowledge” from their foreign operations to their operations in the United States. It provides consolidated and authoritative guidance on the L-1B program, superseding and rescinding certain prior L-1B memoranda… read more