JANUARY 2018

“Buy American, Hire American”: Impact on H-1B Visa Program

On April 18, 2017, President Donald Trump signed the “Buy American, Hire American” ("BAHA") executive order. The order has directly impacted business immigration cases, as U.S. Citizenship and Immigration Services (“USCIS”) is now applying heightened scrutiny to both new H-1B petitions and H-1B extensions.

In late summer 2017, the USCIS began issuing Requests for Evidence (RFEs) challenging Level 1 petitions. According to statistics released by USCIS, the number of RFEs issued between January and August of 2017 has increased by 44 percent from last year.

The H-1B process has a four-tiered wage system based on the minimum experience, requirements, and skills for a given position. Based on wage surveys for the position within the job location, a Level 1 corresponds to the lowest prevailing wage acceptable for the position, usually for an entry-level position. Many employers have begun receiving RFEs challenging a given position’s classification as Level I (entry level). The RFEs from the government typically assert one or more of the following:

Employers should note that each RFE response should be carefully crafted to tailor the individual facts and issues in their case. If you or an employee has received a RFE , the experienced immigration attorneys at Monty & Ramirez are here to help. Our attorneys have extensive experience drafting RFE responses to USCIS and can help facilitate the process in a timely manner in order to meet the USCIS’s strict deadline for submitting a response.

For more information, please contact the experienced immigration attorneys at Monty & Ramirez LLP at 281-493-5529 or via email at info@montyramirezlaw.com.

“BAHA” Proposed Rule to End Employment Authorization for H-1B Spouses

On December 14, 2017, the Department of Homeland Security (“DHS”), through a notice of proposed rulemaking, proposed eliminating the Obama-era rule that allowed the spouses of H-1B employees to qualify for work authorization by applying for an Employment Authorization Document (“EAD”). The notice cites the administration’s “Buy American, Hire American” (“BAHA”) order as the reason for the proposed amendment. Although the rulemaking process has not been completed, employers should keep up to date on changes that could affect the viability of employing H-1B visa holders and their spouses. Any eligible dependent spouse of a current H-1B worker should timely file H-4 EAD extensions or initial applications now before the program is terminated. The final rule effecting this change is expected to be published in February 2018.

For more information, please contact the experienced immigration attorneys at Monty & Ramirez LLP at 281-493-5529 or via email at info@montyramirezlaw.com.

What Employers Should Know About Termination of TPS

For employers that currently have employees with Temporary Protected Status (TPS) from El Salvador, Honduras or Nicaragua, the government has made several important announcements impacting the employment eligibility of individuals with TPS legally working in the U.S. The information for each country can be found below:

Honduras

On January 8, 2018, the Government announced that it would provide a short extension of TPS to those individuals who currently held TPS status from Honduras as they review the country conditions to determine if the program will continue. A final decision on whether or not the Government will end TPS for Honduras is pending. Accordingly, TPS designation for Honduras was automatically extended to July 5, 2018.

If your employee has an Employment Authorization Document (EAD) with an original expiration date of January 5, 2018 and containing the category code “A-12” or “C-19”, the Government has automatically extended the validity of the EAD issued under the TPS designation of Honduras for 180 days, through July 4, 2018. Employees may continue to work without a new EAD through the end of this extension period. Because the government has decided to automatically extend EADs through this date, employees are not required to file Form I-765 to renew their Employment Authorization unless a new EAD card with a July 5, 2018 expiration date is desired.

El Salvador

On January 8, 2018, the Government announced its decision to terminate TPS for nearly 200,000 nationals of El Salvador. Individuals with TPS who want to maintain their TPS status throughout the expiration date of September 9, 2019 must re-register between January 18, 2018 and March 19, 2018. While the country’s designation for TPS was automatically extended until September 9, 2019 each individual must still personally re-register.

If your employee has an EAD with an original expiration date of March 9, 2018 and containing the category code “A-12” or “C-19”, the Government has automatically extended the validity of the EAD issued under the TPS designation of El Salvador for 180 days, through September 5, 2018. Employees may continue to work without a new EAD through the end of this extension period. Because the government has decided to automatically extend EADs through this date, employees are not required to file Form I-765 to renew their Employment Authorization, unless a new EAD card with a September 9, 2019 expiration date is desired.

Ordinarily, an expired EAD is not a valid document for purposes of confirming employment eligibility. However, due to the special circumstances surrounding employment authorization for TPS beneficiaries of both Honduras and El Salvador, a recently expired EAD in combination with evidence that the validity of the expired EAD has been automatically extending is considered a valid “List A” document for Form I-9 purposes. An employee may prove that his or her EAD has been automatically extended by presenting a copy of the applicable Federal Register notice confirming the extension. If the employee has already applied for a new EAD, he or she may show their existing EAD with a qualifying I-797C, Notice of Action, to confirm the EAD has been automatically extended.

Nicaragua

On November 6, 2017, the Government announced its decision to terminate Temporary Protected Status (TPS) for Nicaragua. Individuals with TPS who want to maintain their status throughout the expiration date of January 5, 2019, must re-register by February 13, 2018. While the country’s designation for TPS was automatically extended until January 5, 2019 each individual must still personally re-register to retain their TPS.

All applicants must submit Form I-821, Application for TPS, and also file Form I-765, Application for EAD. The Government has automatically extended the validity of individual EADs for Nicaragua for 60 days through March 6, 2018. Applicants who timely re-register for TPS status and properly file a request for a new EAD will have the validity of their EAD automatically extended by regulation for up to 180 days through July 4, 2018. We encourage TPS beneficiaries to file EAD applications as early as possible during this 60 day period in order to avoid a lapse in EAD documentation.

For more information, please contact the experienced immigration attorneys at Monty & Ramirez LLP at 281-493-5529 or via email at info@montyramirezlaw.com.

DACA- Federal Judge Impact on Extensions of Stay for Some

As of January 13, 2018, the Government resumed accepting requests to renew grants of Deferred Action for Childhood Arrivals (DACA) in response to the federal court order issued by a Federal Judge in California. The DACA program resumed operating as it did before it was rescinded on September 5, 2017, but with certain requirements. However, please note that the Trump Administration has appealed the Federal court order that requires the Immigration Service (USCIS) to accept DACA renewals, thus there is no clear indication how long USCIS will continue to accept DACA renewal applications.

Employers may continue to employ DACA recipients with valid EADs, and note that extensions are currently being allowed. However, employers should note that DACA recipients are not allowed to work if their current EAD expires, even if they are currently awaiting an approval of an application to extend it.

We recommend that employers review their internal procedures for reverifying 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 info@montyramirezlaw.com.

DHS Reportedly Considering Changes to H-1B Extension Rules

On January 8, 2018, the Department of Homeland Security (DHS), U.S. Citizenship and Immigration Services reported that it is not considering a regulatory change to the H-1B extension rules, as had been previously been reported in a December 30, 2017 article by McClatchy DC news service. DHS stated that it is not considering changing its interpretation of section 104(c) of the American Competitiveness in the Twenty-First Century Act (AC21), which grants H-1B extensions beyond the six-year limit for H-1B workers who:

USCIS further pointed out that even in the event of a regulatory change to 104(c), “such a change would not likely result in these H-1B holders having to leave the U.S. because employers could request extensions in one-year increments under section 106(a)-(b) of AC21 instead”. Section 106(a) of AC21 enables one-year H-1B extension beyond the six-year maximum period if:

USCIS, however, did indicate that the agency is considering a number of policy and regulatory changes to carry out the President’s “Buy American, Hire American” executive order, including conducting a “thorough” review of employment-based visa programs. Our office will continue monitoring related developments and provide updates.

For more information, please contact the experienced immigration attorneys at Monty & Ramirez LLP at 281-493-5529 or via email at info@montyramirezlaw.com.

E-Verify Data Disposal Scheduled

The United States Citizenship and Immigration Services (USCIS) is scheduled to dispose of E-Verify records which is dated on or before December 31, 2007. Employers who have case records on or before that date must retain this case information by downloading and obtaining the new Historic Records Report by February 28, 2018. USCIS has provided employers with instructions on how to download the report on their website.

For more information, please contact the experienced immigration attorneys at Monty & Ramirez LLP at 281-493-5529 or via email at info@montyramirezlaw.com.

Changes to Processing of H-2Bs Due to Unprecedented Number of Filings

On January 17, 2018, the Department of Labor’s Office of Foreign Labor Certification (OFLC) announced it will change its processing procedures for H-2B temporary labor certification applications with a start date of need between April 1 and September 30, 2018. The announcement, posted in the Federal Register, stated that the reason for the process change is to better ensure fairness in the processing of H-2Bs due to the unprecedented volume of applications received on January 1, 2018. The volume of applications has strained OFLC’s processing system and has resulted in delays for a majority of the applications filed.

As of January 17, OFLC is changing the process regarding the issuance of final labor certification decisions to better reflect the sequential order by which employers filed H-2B applications. The new process is, as follows:

OFLC further notes that this process change will allow employers who promptly filed on January 1, 2018 sufficient time to meet regulatory requirements, including the recruitment and hiring of qualified and available U.S. workers, thus preserving the sequential order of filing that took place on January 1, 2018.

Individuals with pending H-2B applications are advised to speak with our experienced immigration attorneys to strategize their cases going forward. Our attorneys understand the impact process changes have on H-2B petitions and are available to assist employers on the implications of this change and what can be done in response to the issue.

For more information, please contact the experienced immigration attorneys at Monty & Ramirez LLP at 281-493-5529 or via email at info@montyramirezlaw.com.

H-1B FY2019 Season is Approaching! Are You Ready?

U.S. Citizenship and Immigration Services (USCIS) will begin accepting H-1B petitions subject to the annual cap for fiscal year 2019 (FY 2019) on April 2, 2018. As the filing window nears, employers are encouraged to identify current and future employees who may require new H-1B visas to work in the U.S.

U.S. Citizenship and Immigration Services (USCIS) confirmed on January 25, 2018 that it will follow the same filing procedures used for FY2018 cap season. Employers are encouraged to mail cap-subject H-1B petitions early in the filing window. March 30, 2018, will be the first day in which employers can mail cap petitions. Petitions filed on the first day can arrive at USCIS on April 2, 2018—the first day of the filing period.

If your organization is considering sponsoring a foreign national on a H-1B visa, the experienced attorneys at Monty & Ramirez are here to help. In order to ensure your H-1B petition is timely filed, we encourage employers to contact us as soon as possible. In light of increased USCIS scrutiny of petitions, employers should allow sufficient time to prepare the H-1B petitions and assure the applications are promptly filed.

For more information, please contact the experienced immigration attorneys at Monty & Ramirez LLP at 281-493-5529 or via email at info@montyramirezlaw.com.

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