DHS Proposes EAD for H-4 Spouses

The U.S. Department of Homeland Security (DHS) has proposed a regulation allowing for issuance of an employment authorization document (EAD) for certain H-4 spouses.  It will primarily be used where the H-1B principal already has an approved I-140 immigrant petition and is waiting for their priority date to become current before they can file for permanent residency.  DHS did not advise how long it would take for the proposed regulation to go final.  Most likely, it will be at least several months.  However, this is a good sign for H-4 spouses. The purpose of the rule is to make it easier for talented foreign nationals to remain working in the U.S.  For more information, click here.

Important Employment and Immigration Cross Over Issues

Employers are faced with a plethora of employment and immigration cross over issues.  Here’s a list of 7 important tips:   

  1. Don’t include the I-9 with the job application.  You can only request that the I-9 be filled out once the applicant has accepted a job offer.
  2. Make sure you have a completed I-9 on file for every employee at your company.
  3. Keep the I-9’s in binders rather than the employee’s HR file.  Have one set of binders for active employees and one set for terms.
  4. Employers have begun to see more instances where an employee has recently legalized their status and presented a work permit and new social security number.  When the employee was originally hired they presented what were presumed to be valid work authorization documents. Now the employee comes forward and says my real name is different, and here is my new SSN and work permit.  In such a case, fill out a new I-9, attach a memo explaining the situation and a copy of the new work permit and social security card, and staple all of this to a copy of the old I-9.  Usually, the employer must terminate the old name in their HR information system and process the new one as a new hire.  In such a case, the original old I-9 can go into the term binder along with a copy of the memo as well.
  5. Anytime you are presented with a discrepancy in the employee’s SSN (i.e. a mis-match letter from any government agency), call the employee in to verify there isn’t a simple typographical error on the original hire paperwork.  If not, send them to the Social Security Administration and ask them to bring back verification of their SSN.  If no verification is forthcoming within 30 to 60 days, contact legal counsel re probable termination.
  6. If an undocumented employee files a labor/employment based claim with the employer, and the employer subsequently discovers that the employee is undocumented, the employee must be terminated since they are not work authorized.  However, the employer will be liable for the employment claim that led to the discovery of the undocumented status.
  7. When making a job offer to an H-1B or similar non-immigrant visa holder, indicate on the job offer letter that the job is still terminable at will despite the fact that you are petitioning for them for x number of years on the visa petition.  Also indicate that you are under no obligation to sponsor the employee for permanent residency, but even if you decide to do so in the future, it won’t alter the terminable at will relationship.

For more information, please contact Greg Berk, Chair of the CDF Immigration Practice Group.

H-1B Work Visa Can Be Filed on April 1

The U.S. Department of Homeland Security will accept new H-1B visa filings on April 1 for a start date of Oct 1.  H-1B work visas are for foreign national employees that are college degreed professionals such as software developers, engineers, chemists, scientists, financial analysts, etc.  The annual quota of 85,000 visas applies to first time H-1B’s, not to extensions with the same company or transfers to other companies.

It is suggested that employers query their departments to see if they have a need for such a visa for either a possible new hire or to keep a valued current foreign national employee work authorized.  This year's quota is expected to fill up relatively fast.

Many employers have valued foreign national employees working on a one-year work permit after college (known as Option Practical Training or OPT).  Since the OPT will expire, it’s important that the H-1B visa be explored to allow them to remain work authorized. Some employees are eligible for a one-time extension of their OPT (based on their STEM education in science, technology, engineering, and math), but eventually will still need the H-1B visa.

For more information, please contact Greg Berk, Chair of the CDF Immigration Practice Group.

Impact on Employers of California’s New Law Authorizing Driver Privileges for Illegal Immigrants

Governor Jerry Brown signed AB 60 into law on October 3, 3013.  The law allows individuals without immigration status to obtain driver privileges (DP) and to obtain a DP identification from DMV.  The law goes into effect on January 1, 2015 in order to give DMV sufficient time to publish regulations and procedures and to staff up to meet the expected demand.

CDF reminds employers that the DP identification will not satisfy I-9 requirements.  While a state issued driver license is an acceptable List B document, a DP card will not be.  By definition, anybody who applies for the DP identification is most likely not work authorized.

It is the opinion of this author that Congress will eventually grant employment authorization documents (EAD’s) sometime during the next two years to this same population segment – however it remains to be seen when.  Until then, employers are reminded to remain vigilant regarding accepting proper I-9 documentation for new hires and reverifications.

For more information on the new DP, click here.

For information on other immigration matters, please contact Attorney Greg Berk, Chair of the CDF Immigration Practice Group.

Immigration Consequences of DOMA Decision

The recent U.S. Supreme Court Case regarding the Defense of Marriage Act (Windsor v. Schlain, No. 12-307 (U.S. 2013)) has numerous immigration consequences for certain same-sex spouses that are married.  The June 26, 2013 decision opens the door for many immigration benefits for certain qualifying spouses.  

If the marriage takes place in a state that recognizes a same-sex marriage, then U.S. Citizenship & Immigration Services (US CIS) will allow the U.S. Citizen or permanent resident partner to sponsor their foreign national spouse for permanent residency in the U.S.   Currently, there are 14 states where the marriage will be recognized as valid for immigration purposes, including  California, Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont, Washington, Washington DC.

And the U.S. Citizen spouse could even sponsor the foreign national partner on a fiancé visa if they are overseas and plan to marry within 90 days of entry to the U.S.

In addition, it will allow non-immigrants who are applying for a temporary visa (such as H-1B, L-1, TN, etc.) to have their spouses join them on a derivative visa if their same-sex marriage is recognized as valid in the overseas country where the marriage took place.  Currently, there are 15 countries that recognize same sex-marriages including Argentina, Belgium, Brazil, Canada, Denmark, France, Iceland, Netherlands, New Zealand, Norway, Portugal, South Africa, Spain, Sweden, and Uruguay.

US CIS has indicated that the place of marriage (celebration) will dictate eligibility as opposed to the current place of residency.  For example, if a couple marries in California and then moves to Wyoming, then they will still be able to petition for permanent residency since the location of the ‘place of celebration” of the marriage controls. 

Spouses may also marry overseas in a country that recognizes same-sex marriages and US CIS will recognize that marriage for visa purposes.

US CIS is expected to provide more guidance on this in the months to come.  See here

For more information, please contact Greg Berk, Chair of the CDF Immigration Practice Group.

DHS Issues New I-9 Manual

Following its recent release of a new I-9 form, the U.S. Department of Homeland Security has now announced that a new I-9 manual has been released.  The manual is a useful guide to some of the more obscure procedures involved with the I-9 form.  The manual can be found here

New I-9 Form Released

On Friday, March 8, 2013, the U.S. Department of Homeland Security finally issued the long-awaited updated I-9 Form.  The old form can still be used for two months until May 7, 2013.  The new I-9 form is available here.

The I-9 form is used to verify work authorization of new hires in the U.S. as well to re-verify work authorization of foreign nationals working with temporary work authorization.  The new and old forms are very similar in content.  However, unlike the old one-page form, the new form is 3 pages long and easier to understand and fill out.  The new form also clearly differentiates between employees who only need to be verified once (U.S. Citizens and permanent residents) and foreign nationals who are here temporarily and must be re-verified whenever their work authorization expires. 

Regarding the list of acceptable documents that an employee tenders, the new form emphasizes that if a social security card is selected by the employee as a List C document, only an unrestricted social security card is acceptable.  If the social security card has any restrictive language on it, it cannot be used for I-9 purposes since the individual may have obtained it when they had temporary work authorization and now no longer do. 

Although there is a Spanish version of the I-9 form as well, it may only be used in Puerto Rico. 

As a reminder, at the time of hire, employers must inspect an original document chosen by the employee from List A, or one each from Lists B and C.  It must be done within the first 3 days of hire.  It is recommended that copies of the documents be attached and retained to the I-9 as further proof of the good faith efforts by the Employer to comply with the mandate.  If the documents appear to be authentic, then the employer will not be liable if it later turns out they are not authentic.  The I-9 forms should be retained for 3 years after termination of employment.  Employers who have enrolled in E-Verify must still have a paper or digital I-9 on file for every employee. 

Employers are encouraged to periodically audit their I-9’s and take corrective action where errors are found. 

H-1B Work Visas Can Be Filed on April 1

The U.S. Department of Homeland Security will accept new H-1B visa filings on April 1 for a start date of Oct 1.   H-1B work visas are for foreign national employees that are college degreed professionals such as software developers, engineers, chemists, scientists, financial analysts, etc.   The annual quota of 85,000 visas applies to first time H-1B’s, not to extensions with the same company or transfers to other companies. 

It is suggested that employers query their departments to see if they have a need for such a visa for either a possible new hire or to keep a valued current foreign national employee work authorized.   This year's quota is expected to fill up relatively fast. 

Many employers have valued foreign national employees working on a one-year work permit after college (known as Option Practical Training or OPT).  Since the OPT will expire, it’s important that the H-1B visa be explored to allow them to remain work authorized.  Some employees are eligible for a one-time extension of their OPT (based on their STEM education in science, technology, engineering, and math), but eventually will still need the H-1B visa.

For more information, please contact Greg Berk.

The New Immigration Waiver:  What Does It Really Mean?

The U.S. Department of Homeland Security recently announced that certain foreign nationals who are in the U.S. who either entered the U.S. illegally, or entered legally and overstayed, will be eligible for waivers of the bar to receiving their immigrant visa from abroad.  The program begins March 4, 2013 and only certain individuals will qualify.

As a brief background, most individuals must be in status in order to obtain a green card in the U.S.  However, some individuals who either had no status or were out of status were nonetheless still able to do so if they had immigrant petitions filed by employers or certain family members prior to April 30, 2001.   Individuals who were out of status and had immigrant petitions filed after April 30, 2001 are not eligible to adjust status in the U.S. to obtain permanent residency and must instead obtain an immigrant visa abroad from a U.S. Consulate. 

Complicating matters was that Congress created a "ten-year bar" in 1996 whereby individuals who were out of status and then left the U.S. were not allowed to return for 10 years unless they can show extreme hardship to a U.S. Citizen spouse or parent.  As a result, many people left the U.S. to file their waiver applications from abroad, only to get stuck abroad (usually at Ciudad Juarez, Mexico) for up to a year while their hardship waiver applications laggard in a long queue. 

Fortunately, under the newly announced program, eligible individuals can apply for their waiver state side and then upon approval, they will only need to spend 2 weeks abroad.

Eligible individuals must first have an approved immigrant petition filed by a sponsor and be able to show extreme hardship to a U.S. Citizen spouse or parent if the waiver of the 10-year bar is not approved.  Ironically, a showing of extreme hardship to U.S. Citizen children does not qualify under the law as written by Congress back in 1996.  3Also, if an individual has other grounds of inadmissibility (crimes, prior deportation, misrepresentation etc.) then the I-601A waiver will not apply.

The announcement from Secretary Janet Napolitano can be viewed here.

President Signs Extension of EB-5 Immigrant Investor Program

Last week, President Obama signed a bill extending for another three years the EB-5 Immigrant Investor Program.   The program allows foreign investors to invest $500,000 in an approved Regional Center in exchange for the grant of permanent residency to themselves and their family.  Alternatively, they can invest $1,000,000 in their own business in the U.S. in exchange for permanent residency.  In an age of large backlogs and wait times for permanent residency, the EB-5 Program has become a very popular way to move to the front of the visa line.  For more information, contact Greg Berk.

Editor
Cal Labor Law

Robin E. Largent is a Partner in CDF’s Sacramento office and may be reached at 916.361.0991 or rlargent@cdflaborlaw.com BIO »

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