Tag Archives: USCIS

November 21, 2016

New Form I-9 Must Be Used By January 22, 2017

6a013486823d73970c01b8d1be606f970c-120wiBy Roger Tsai

This week, the U.S. Citizenship and Immigration Services (USCIS) released a new version of its Form I-9, the Employment Eligibility Verification form. All U.S. employers must begin using the new Form I-9 after January 22, 2017.

Currently, U.S. Immigration and Customs Enforcement conducts over 3,000 I-9 employer audits annually, and immigration enforcement is anticipated to increase due to the Trump presidency. In January, Holland & Hart will host a webinar explaining the changes to the Form I-9 and discussing what immigration reforms employers should expect in a Trump presidency.

Form I-9 Changes

The new version of the Form I-9 includes some clarifications as well as some changes designed to make the form easier to fill out electronically. Completing the Form I-9 electronically will require downloading the latest version of Adobe Reader. Form I-9s completed electronically will still need to be printed and signed by the employee and employer agent by hand. One of the changes is in Section 1 which now asks for “other last names used” rather than “other names used.”

Enhancements for easier completion of the form include drop-down lists and calendars for entering dates, the addition of prompts to help ensure that information is entered properly, on-screen instructions for each field, and easy access to the full instructions. It also includes an option to clear the form and start over. Other changes you’ll find on the new I-9 include:

  • Question regarding whether a preparer or translator was used
  • Space to enter multiple preparers and translators
  • A supplemental page for the preparer/translator
  • Creation of a QR code once the Form I-9 is completed electronically
  • A field to enter additional information such as E-Verify confirmation numbers, termination dates and correction notes, and
  • Separating the full instructions from the form itself.

Reminder of I-9 Process

As you may know, the 1986 Immigration Reform and Control Act (IRCA), prohibits employers from hiring employees, including U.S. citizens, without first verifying their identity and checking that they have proper authorization to work in the United States. The Form I-9 ensures that you have completed this necessary verification for all new hires. The proper timing and process for completing Form I-9s for each newly hired employee is:

  1. Employee accepts offer for employment.
  2. Employee completes Section 1 of the I-9 form no later than the first day of work for pay.
  3. Employee provided documents showing identity and employment authorization to employer.
  4. Employer completes Section 2 of the I-9 form no later than the third business day after the employee starts work for pay.

What You Need To Do

You have just over two months to switch to the new Form I-9, so it is best to put procedures in place now to make that switch for all new hires to ensure compliance.

April 13, 2016

H-1B Visa Submissions Lower than Expected

Tsai_RBy Roger Tsai

The U.S. Citizenship and Immigration Services (USCIS) received over 236,000 H-1B visa applications for fiscal year (FY) 2017 in the first week of April. That number far exceeds the statutory cap of 65,000 H-1B visas under the general category and the 20,000 visas under the master’s degree cap. But, it is only 3,000 more petitions than were filed last year, and substantially less than many attorneys and employers were expecting. That is good news for H-1B petitioners, who face better odds at roughly 36% selection rates, but is a sign that the tech economy may be plateauing or new increased fees for employers submitting high volumes of applications are taking effect.

Lottery System Used to Select Petitions

U.S. businesses use the H-1B program to employ foreign workers in occupations that require highly specialized knowledge in fields such as science, engineering, and computer programming. On April 9, 2016, USCIS used its computer-generated random selection process, or lottery, to select a sufficient number of H-1B petitions to meet the total 85,000 cap. The agency first conducted the selection process for the advanced degree exemption. All unselected advanced degree petitions then became part of the lottery selection process for the 65,000 general category limit.

USCIS earlier announced that it will begin premium processing for selected H-1B cap cases no later than May 16, 2016. No start date has been announced for regular processing cases, although historically regular processing receipt notices have been issued in May. All unselected petitions will be rejected and returned with their filing fees. 

Not Selected? Consider Alternative Visa Options

If you need to hire foreign professionals but your H-1B visa petition was not selected, you may want to explore other popular alternatives. Consider the following alternative employment visas and options:

  1. Lateral Hire of H-1B Workers. The statutory H-1B visa cap applies only to new H-1B petitions, meaning that employers may be able to hire foreign workers who currently hold H-1B visas through another employer. Current H-1B employees generally may extend their visa status for up to six years and in some cases, even longer. In addition, foreign nationals who previously held H-1B status but are not currently employed in the U.S. are exempt from the annual H-1B cap and may be returned to that status for the rest of their six-year H-1B visa period.
  2. F-1 STEM OPT Extensions. Science, tech, engineering, and math (STEM) graduates may apply for an extension to their one year Optional Practical Training (OPT). The extension period soon will be increased from 17 to 24 months. The 17-month extension period under the current STEM OPT rules will apply to applications filed through May 9, 2016, but I-765 Applications for Employment Authorization filed after May 10, 2016 may seek the longer 24-month extension available under the new rule. F-1 employers must participate in E-Verify in order for the STEM graduate to be eligible for this extension.
  3. TN Visa. The TN visa is a three-year nonimmigrant visa for Canadian and Mexican citizens and authorizes the individual to work and live temporarily in the U.S. Almost all TN positions require a Bachelor’s degree except for a Scientific Technician or Management Consultant position, but unlike the H-1B, there is no numerical limitation to the number of TN visas issued. TN nonimmigrant workers must show that they will be working in one of sixty TN approved occupations, such as nurses, attorneys, engineers, management consultants, and scientific technicians. 
  4. E-3 Australian Specialty Occupation Visa. An E-3 visa allows Australian citizens to enter the U.S. for a two-year period to work in a specialty occupation, which is defined as any position which normally requires a Bachelor’s degree in a specific major or concentration (i.e. engineer, nurse, scientist, software developers, and accountants). Solely managerial or sales roles do not qualify as specialty occupations. E-3 visas are limited to 10,000 per year.
  5. L-1B Specialized Knowledge Worker Visa. Workers who currently are outside the U.S. working for a foreign parent or subsidiary company related to a U.S. company and who have done so for at least one out of the last three years may qualify for the L-1B intercompany transfer for specialized knowledge workers. The individual must hold specialized knowledge which is distinguished from knowledge held by others in the company and industry.
  6. F-1 Student Status. Non-U.S. citizens may choose to return to school and change their status to F-1. Depending on his or her degree program, the international student’s office may allow the individual to work off-campus part time under Curricular Practical Training. Students should contact their university’s international student’s office for additional information.

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June 2, 2015

USCIS Flips Position: Proposes That Amended H-1B Petitions Must Be Filed When Changing Worksite

Tsai_RBy Roger Tsai 

If your H-1B employee changes his or her worksite location, you’ll need to file an amended H-1B petition with a corresponding new Labor Condition Application for Nonimmigrant Workers (LCA) under a proposed guidance recently released by the U.S. Citizenship and Immigration Services (USCIS). This position, consistent with this April’s decision by USCIS’ Administrative Appeal Office in the Matter of Simeio Solutions, LLC, is a complete reversal of USCIS’ long-held position that a geographic move does not trigger the need to file an amended Form I-129 petition. The proposed change will significantly affect employers who have multiple offices or locations, making it more difficult and costly to move H-1B employees from one work location to another. 

Reversal on Need to File Amended H-1B Petition 

Previously, USCIS had informed employers that as long as the LCA has been filed and certified for a new employment location, there was no need to file an amended H-1B petition solely because of the change in worksite location. As long as there were no other material changes in the terms and conditions of the employee’s status or eligibility for H-1B classification, you only needed to post the new LCA in the new worksite location to be in compliance. 

Now, under the proposed guidance and Simeio Solutions decision, an amended H-1B petition will be needed whenever an H-1B employee changes his or her place of employment to a location outside of the county covered by the existing, approved H-1B petition. This applies even if a new LCA has been certified and posted at the new location. USCIS now contends that a change in the H-1B worker’s place of employment is a material change in the terms and conditions of employment which therefore triggers an amended petition. 

USCIS clarifies that you will not need to file an amended petition if your H-1B worker is moving to a new worksite within the same metropolitan statistical area county or “area of intended employment” as in the original petition and LCA. You still must post the original LCA in the new work location, but no amended documents must be filed. Similarly, you would not need to file an amended petition if your H-1B employee will be working at a new location for only a short time, namely up to 30 days (60 days, in some cases), or the employee goes to a “non-worksite” location (e.g., staff seminars, management conferences or other casual, short-term assignments). 

What To Do If Your H-1B Workers Change Worksite Locations 

If your H-1B workers have already changed worksites, you have until August 19, 2015 to file an amended H-1B petition and corresponding LCA. USCIS states it will not take any adverse action against you or your employees as long as you file by the August 19th deadline. If you fail to file an amended petition by that date, you will be out of compliance and both you and your H-1B employee would be subject to adverse action. 

After you file the amended petition, your H-1B worker may begin to work at the new worksite location immediately. You need not wait for a final decision to move the employee to a different worksite. 

If your amended H-1B petition is denied, your H-1B employee may return to work at the location covered by the original petition, as long as the original petition is still valid and the employee is able to maintain valid nonimmigrant status at that location. 

Comment Period Open Until June 26 

USCIS will accept comments from the public and interested parties about its proposed change in position until June 26, 2015. Accordingly, USCIS may change its final guidance based on questions and concerns raised during the comment period. We will keep you posted as this issue gets finalized.

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May 12, 2015

H-1B Visa Applications Hit Record 233,000 In First Week

Tsai_RBy Roger Tsai 

Nearly 233,000 H-1B applications were filed with the U.S. Citizenship and Immigration Services (USCIS) in the first week of April. With only 85,000 H-1B visas available, nearly two-thirds of all applications will be rejected. 

USCIS Lottery to Select Petitions 

By statute, the number of H-1B visas is capped at 65,000 under the general category, with an additional 20,000 for applicants with advanced degrees. After the filing period began on April 1, USCIS received almost 233,000 H-1B petitions – almost three times the cap. To determine which applications will be accepted, USCIS uses a computer-generated lottery system. 

Beginning April 13, USCIS first conducted the random selection process to fill the 20,000 advanced degreed visa allotment. Any advance degree petitions not selected in that lottery were put into the general lottery and became eligible for random selection for the 65,000 general H-1B visas. USCIS then began issuing receipt notices for premium processing cases from April 27th to May 11th. We estimate receipt notices for H-1B petitions filed under regular processing will be issued between mid-May to mid-June. All unselected applications will be rejected and returned to the petitioner along with their filing fees. 

Exempt Petitions Still Accepted 

Certain petitions that are exempt from the cap will continue to be accepted and processed. This includes petitions for current H-1B visa holders who previously were counted against the cap. It includes petitions: 

  • to allow current H-1B workers to change employers
  • to work concurrently in a second H-1B job
  • to change the terms of a current H-1B worker’s employment, and
  • to extend the amount of time a current H-1B worker is permitted to stay in the United States. 

Time to Raise the Cap? 

With record numbers of applications for H-1B visas being filed each year, many organizations believe Congress needs to raise the cap. U.S. businesses, including many high tech companies, who need to hire foreign workers for their science, engineering and computer programming positions are often frustrated when visa applications greatly exceed the cap, leaving their ability to hire highly skilled immigrants up to chance due to the random lottery process. 

According to estimates from Compete America, a coalition representing universities, trade associations and technology industry leaders like Microsoft, Google, Amazon and Facebook, U.S. businesses lose about 500,000 jobs each year because of the visa caps. The organization asserts that for every scientist and engineer who doesn’t get to work in the U.S. because of the visa cap, an additional four jobs for U.S. workers are lost. They argue that the restraint on hiring highly skilled foreign workers limits economic growth and innovation.

Earlier this year, Senator Orrin Hatch, R-Utah, introduced the Immigration Innovation Act of 2015 (also called the I-Squared Act) which would raise the H-1B visa cap to 195,000 annually. Critics of the bill argue that U.S. colleges are graduating more scientists and engineers than can find work in their respective fields each year, so businesses should be looking to hire U.S. citizen graduates rather than foreign guest workers. Opponents also assert that H-1B workers lower the wages in technology and science fields. Given the current political climate in Washington, it is unlikely that the I-Squared Act, or other immigration reform bills, will pass anytime soon.

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March 17, 2014

Beat the H-1B Visa Cap By Filing On April 1, 2014

By Roger Tsai 

The U.S. Citizenship and Immigration Services (USCIS) will begin accepting new H-1B visa applications on Tuesday, April 1, 2014 and it is expected that USCIS will receive more than 140,000 petitions for the 85,000 available H-1B visas.  

H-1B Visa Cap Likely to be Reached in First Week 

The number of available new H-1B visas is limited to 65,000 bachelor degreed positions and 20,000 advanced degree positions.  This applies to an immigrant employee who will fill a specialty occupation in the U.S., which is defined as any position with the minimum requirement of a Bachelors degree in a specific major or the equivalent experience.  For example, H-1B specialty occupations include a wide range of high-tech, medical and managerial professionals (i.e., operations engineers, engineering managers, or accountants). The USCIS will accept three-years of experience for each year of education omitted.  If the immigrant employee has a non-U.S. university degree, USCIS requires a third-party educational evaluation. 

An additional 20,000 visas are set aside for graduate degreed positions.  This applies to non-U.S. citizen employees who have obtained a U.S. master’s degree or higher. 

The statutory H-1B cap of 65,000 for the fiscal year will likely be met within the first week of the filing period, which begins on April 1, 2014.  All applications received by the USCIS in the first week of April will be entered into the lottery.  Last April, USCIS received approximately 124,000 H-1B petitions during the filing period and reached the cap within the first five days of accepting petitions.  When it receives more petitions than the cap allows, USCIS uses a computer-generated random selection process known as the “lottery” to select a sufficient number of petitions to fill the 65,000 Bachelor degreed positions and the 20,000 advance degreed positions.  Immigrant employees with a U.S. Masters degree will have an opportunity to be selected under the 20,000 advanced degree cap. This year, the continued economic recovery is causing immigration practitioners to expect even more petitions to be submitted than last year, likely in the range of 130,000 to 150,000. 

H-1B Visa Petition Process 

Employers seeking an H-1B visa for a foreign worker to start work on or after October 1, 2014 should submit their H-1B visa petition as close to April 1, 2014 as possible, but no later than the first week of the filing period.  The petition process includes submitting the following to USCIS: 

1.  All sections of the Form I-129, Petition for a Nonimmigrant Worker, including the H Classification Supplement  and the H-1B Data Collection and Filing Fee Exemption Supplement; and

2.  A signed check or money order with the correct fee amounts (H-1B filing fees, payable to the federal government, are $2,325.00 per petition; and additional $1,225.00 can be paid to expedite the processing time). 

Petitions not selected in the lottery will be rejected and the petition and filing fees will be returned to the employer.  Unfortunately, rejection means that the company may not employ the non-U.S. citizen individual that year and the affected foreign national may need to leave the U.S. 

For accepted petitions, the processing time typically is three to five months, unless the employer submitted a $1,225 expedite fee which reduces the processing time to 15 calendar days.  Upon approval, USCIS will issue an I-797 Approval Notice which authorizes the immigrant employee to begin work immediately. 

Prepare to File At Earliest Date 

To increase your chances of acceptance of your H-1B petitions, plan to get your petitions to USCIS on April 1, 2014, the first day of filing.  Completing the forms takes some time and requires the employer to attest to certain salary requirements and conditions of work.  This means that you must gather the necessary salary, working conditions and other information to get your documents in order now. You have just two weeks before the filing period begins so get your petitions ready. 

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October 28, 2013

E-Verify – Catching Up After the Government Shutdown

By Roger Tsai 

The early October shutdown of the federal government left many employers unable to verify employment eligibility through the government’s E-Verify system.  Employees were unable to resolve Tentative Nonconfirmations (TNCs) and deadlines were missed.  What do you do now that the government has reopened?  How do you catch up and remain compliant with your E-Verify obligations?  Here are tips based on information provided by the U.S. Citizenship and Immigration Services (USCIS). 

  • November 5th deadline for creating E-Verify case for employees hired during the shutdown.  If you hired employees during the government shutdown, you need to create an E-Verify case for each such employee no later than November 5, 2013.  If the system asks why the case is late because it was not entered within three days of the hire, select “Other” from the drop-down list and enter “federal government shutdown.” 
  • Initiate referral process now for employees who decided to contest TNC during shutdown.  If an employee decided to contest his or her TNC while the E-Verify system was unavailable, initiate the referral process in E-Verify now.
  • Add 12 business days for employees to resolve TNC.  If an employee had a TNC referred during the period of September 17 – 30, 2013, the deadline for the employee to contact the Social Security Administration or the Department of Homeland Security to resolve their case fell during the government shutdown.  These employees may add 12 federal business days to the date printed on the “Referral Letter” or “Referral Date Confirmation” to resolve their cases. 
  • Start a new case for any Final Nonconfirmations (FNCs) or No Shows that resulted because of the shutdown.  If an employee received a FNC or DHS No Show because of the government shutdown, you will need to close the case and select “The employee continues to work for the employer after receiving a Final Nonconfirmation (or No Show) result.”  Then enter a new case in E-Verify for that employee so that the employee has an opportunity to contest and resolve the TNC that led to the FNC result.
  • I-9 obligation not affected by the government shutdown.  Because I-9 forms do not require government input, I-9 requirements were not affected by the government shutdown.  You should have properly completed and retained a Form I-9 for every employee, even those hired during the shutdown. 

Employees may be confused about what to do with a TNC or FNC that was due to or affected by the government shutdown. Refer them to the Employee section of the E-Verify website or to E-Verify Customer Support.   Remember that employers may not take any adverse action against an employee because of a TNC and should not take any adverse action due to a FNC or No Show result caused by the shutdown.  By catching up with E-Verify obligations now, your employment eligibility compliance procedures should get back to normal within a few weeks.


Disclaimer:This article is designed to provide general information on pertinent legal topics. The statements made are provided for educational purposes only. They do not constitute legal advice and are not intended to create an attorney-client relationship between you and Holland & Hart LLP. If you have specific questions as to the application of the law to your activities, you should seek the advice of your legal counsel.


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