December 2018
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TN Visas Survive Rebrand of NAFTA

Immigration provisions contained in the North American Free Trade Agreement (NAFTA) survived the renegotiated U.S. Mexico Canada Agreement (USMCA). Those currently on TN Visas, and those hoping to obtain work authorization pursuant to the trade agreement, can continue to do so but should be wary that uncertainties remain.

With very minimal changes, the USMCA adopted the immigration provisions establishing visa eligibility previously set forth in NAFTA. Currently, NAFTA includes provisions allowing citizens of Mexico and Canada to enter the U.S. to perform services in a list of approved occupations if the citizen holds the designated minimum requirements. Despite recommendations to modernize and update the list of occupations, occupations were not added nor removed in the new agreement.

Despite the lack of major substantive changes to the TN Visa program, effects on procedural processes remain uncertain. Under the new agreement, it is unclear if Canadian nationals will be allowed to continue to apply for admission as a TN Professional directly at U.S. ports of entry. Further, no confirmation of potential revamped applications for the TN Visa and/or how existing TN Visa holders will be moved under the new enforced program was made.

As of now, the most notable impact on the existing visa category seems to be a potential change in name. Currently, eligible individuals are granted Trade NAFTA Professional “TN” visas. Now, it seems that individuals will be granted Trade USMCA Professional work visas, i.e. “TU” visas. Despite a new name, and despite potential future procedural changes, immigration provisions in the agreement were essentially repackaged but preserved.

The final version of the agreement is yet to be published. However, employers wishing to sponsor an individual to obtain TN work status should continue to do so, as no changes directly affecting visa eligibility were made and are to be expected. However, employers are still advised to stay on top of the latest developments to ensure the proper procedure is followed. To receive guidance on the immigration implications of the new trade agreement, contact the experienced immigration lawyers at Monty & Ramirez LLP.
For more information, please contact the experienced immigration attorneys at Monty & Ramirez LLP at 281-493-5529 or via email at .
DHS Proposes Changes to H-1B Visa Lottery Process 

On December 3, 2018, the Department of Homeland Security (DHS) published a proposed rule in the Federal Register, proposing changes as to how H-1B cap-subject petitions are counted and introducing a pre-registration process.

According to the proposed rule, DHS will require H-1B petitioners seeking to file cap-subject petitions to first electronically register with the U.S. Citizenship and Immigration Services (USCIS) during a registration period. Further, USCIS also proposes to reverse the order by which the Service selects petitions under the H-1B cap and the advanced degree exemption, likely increasing the number of H-1B beneficiaries with advanced degrees to be selected for an H-1B cap number and thus, according to the Service, introducing a “more meritorious selection of beneficiaries”.

This rule is a proposal and is not yet in effect. The Service has stated that they are actively working on developing the electronic registration process, pending a Final Rule, however, they have additionally indicated that FY 2021 cap season may be the first time the process is required. Public comments for the proposed rules may now be submitted and must be received before January 2, 2019. Our office will continue to monitor the proposed rule and provide updates as they become available.

For more information, please contact the experienced immigration attorneys at Monty & Ramirez LLP at 281-493-5529 or via email at .
Surge in FY18 ICE Worksite Investigations

In FY 2018, worksite enforcement investigations, business audits, arrests and criminal investigations by the U.S. Immigration and Customs Enforcement (ICE) and Homeland Security Investigations (HSI) surged by 300 to 750 percent compared to the prior fiscal year. In FY 2018, HSI:

  • Opened 6,848 worksite investigations compared to 1,691 in FY17;
  •  Initiated 5,981 I-9 audits compared to 1,360; and
  • Made 779 criminal and 1,525 administrative worksite-related arrests compared to 139 and 172, respectively.
Criminal prosecutions of employers who “knowingly break the law” remain the focus of HSI’s worksite enforcement strategy, while I-9 audits and civil fines encourage HSI’s compliance with the law. Due to the severe consequences of a potential worksite enforcement investigation and/or audit, employers are encouraged to reach out and speak to our experienced attorneys to review their internal compliance procedures.

For more information, please contact the experienced immigration attorneys at Monty & Ramirez LLP at 281-493-5529 or via email at .
DOL Implements New ETA Form 9035 Effective November 19, 2018

As of November 19, 2018, employers sponsoring foreign nationals for H-1B, E-3 or H-1B1 nonimmigrant status are required to use a new version of the ETA Form 9035/9035E to file Labor Condition Applications (LCA) with the U.S. Department of Labor (DOL).

The following are notable changes to the new form:

  • Employers are required to disclose all anticipated places of employment for the nonimmigrant workers. The new form will allow the employer to list up to ten (10) worksites;
  • Employers are required to provide the estimated number of nonimmigrant workers at each place of intended employment listed on the new form;
  • Employers are required to clearly identify whether the nonimmigrant worker will be placed at a third-party worksite and must list additional information of the entity, including the legal name and worksite address;
  • H-1B dependent employers and/or willful violators who are claiming an advanced degree exemption must now complete “Appendix A” to the new form, requiring employers to indicate the name of the accredited institution that awarded the advanced degree, the field of study and date which the degree was awarded. Further, the employer will also be required to provide documentation of the advanced degree.

Various technical issues after implementation of the new form have been recently addressed by the DOL. Employers are advised to contact the experienced immigration attorneys at Monty & Ramirez should they have any questions about the newly revised form.

For more information, please contact the experienced immigration attorneys at Monty & Ramirez LLP at 281-493-5529 or via email at .
Fall 2018 Regulatory Agenda Proposes Further Changes to H-1B and H-4 Programs

The Department of Homeland Security (DHS), Department of Labor (DOL) and Department of State (DOS) released their Fall 2018 Regulatory Agendas. The Regulatory Agendas are issued twice per year and propose new regulations, update projection publication dates and prioritizes goals. Specifically, the Agendas describe and propose regulations expected to be introduced between October 2018 and December 2019.

Changes to H-1B Eligibility Criteria: Through a proposed rule anticipated for August 2019, USCIS seeks to re-define terms establishing eligibility for the H-1B petition process. Specifically, the rule anticipates revisions to the terms “specialty occupation,” “employment” and “employer-employee relationship.” DHS additionally proposes additional wage requirements on employers seeking to petition for H-1B workers, further restricting the current eligibility criteria.

Termination of H-4 Employment Authorization: A proposal to eliminate current regulations that allow certain H-4 spouses to apply for employment authorization was initially set to be published in November 2018. A final regulation may be published by mid-next-year. Further details were not included or have not been made public.

The above are proposed rules and changes that are not yet in effect. We will continue to monitor these proposals and provide additional updates regarding the H-1B and H-4 programs as soon as additional details emerge.

For more information, please contact the experienced immigration attorneys at Monty & Ramirez LLP at 281-493-5529 or via email at .
Current Status of DACA

The current fate of the Deferred Action for Childhood Arrivals (DACA) continues to be complicated and unknown. The DACA program is currently being litigated in different parts of the country. Just recently, the U.S. District Court for the Northern District of California issued an injunction requiring the federal government to maintain the program.

At this time, employers may continue to employ DACA recipients with valid Employment Authorization Documents (EAD) and note that due to nationwide injunctions, USCIS is still required to accept, and is currently processing, DACA renewal applications. However, employers should also be reminded that DACA recipients are not allowed to work if their current EAD expires, even if they are currently awaiting approval of an application to extend it.

We recommend that employers review their internal procedures for re-verifying expiring employment eligibility for their DACA recipient employees.

For more information, please contact the experienced immigration attorneys at Monty & Ramirez LLP at 281-493-5529 or via email at .
The January 2019 Visa Bulletin has arrived!

The Visa Bulletin for January 2019 has been released by the Government. For more details, go to

If you have questions about the January 2019 Visa Bulletin, contact the experienced immigration attorneys at Monty & Ramirez LLP at 281-493-5529 or via email at .

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