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The third time is the charm for the Trump Administration, for now. On Monday, Dec 4, 2017, the U.S. Supreme Court issued an order allowing President Trump’s third attempt at a travel ban to take full effect while the issue of its constitutionality is litigated in the circuit courts. This decision has the practical effect of lifting hard-fought blocks against the controversial ban.
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Continue Reading SCOTUS allows travel ban 3.0 to take effect

U.S. Citizenship and Immigration Services (USCIS) recently posted notice advising employers of a scam operation requesting I-9 forms. USCIS, as well as any other investigating government agency, will never request I-9 forms by email. There are reports of recent scam operations that appear to come from a government email address requesting I-9 forms for recently…

United States Citizenship and Immigration Services (USCIS) is again releasing a new and updated version of Form I-9, the Employment Eligibility Verification document. Since November 1986, all U.S. employers have been required to complete and retain the I-9 for new employees. The most recent version of the form went into effect on Jan. 22, 2017, but, for some unknown reason, USCIS is now issuing another version. This new version will be mandatory as of Sept. 18, 2017. The easiest way to identify the new form is by the date (07/17/17) noted in the bottom left corner; the prior version was dated 11/14/2016.

A couple of points to bear in mind:

  1. The new I-9 must be used for any new employees hired on or after Sept. 18, 2017. There is no need to complete the new form for any current employees, and employers should continue to follow existing storage and retention rules for all of their previously completed Forms I-9.
  2. The new form has the same expiration date as the prior version—08/31/2019—so employers should be careful to use the proper version of the form with 07/17/17 noted in the bottom left corner.

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Continue Reading Employer alert: Revised I-9 form required beginning Sept. 18, 2017

President Trump issued yet another executive order addressing immigration issues on Tuesday, April 18, 2017. This order, entitled “Buy American and Hire American,” addresses federal procurement policies and reiterates the established policy to purchase goods manufactured in the United States. The order also addresses the H-1B visa. While it does not change any law, regulation or policy, it comes only one day after USCIS once again announced that 199,000 H-1B petitions were received during the first five business days of April to overwhelm the 85,000 limit on visas for the next fiscal year.

Substantively, the executive order merely orders the federal agencies that administer the H-1B program to enforce all laws related to the H-1B visa, something the federal government is already required to do. In addition, the President has ordered these agencies to examine how the program can be improved to protect American jobs. However, the President clearly intends this executive order to focus attention on the H-1B visa. This was made clear in the “Gaggle”[1] published on the White House website earlier the same day. This “Gaggle,” a transcript of a conversation between an anonymous “Senior Administration Official” and reporters aboard Air Force One, was published on the official White House website. It is not clear how a document published on this website is “not for attribution” or aligns with President Trump’s criticism of anonymous sources, but nevertheless, it is a discussion of the executive order and seeks to provide some insight into the thinking behind the order.

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Continue Reading President Trump’s executive order on H-1B visas

On Friday, March 3, 2017, United States Citizenship and Immigration Services (USCIS) announced that it would suspend premium¹ processing for all H-1B petitions filed on or after April 3, 2017. Because April 3 is the first day that cap subject petitions² can be filed for Fiscal Year 2018, this puts a halt on premium processing for all cap subject cases that will be accepted in April, as well as all other H-1B petitions, both change of employer petitions and extensions. According to the notice, the suspension of premium processing may last as long as six months.

Processing times for H-1Bs have grown over the past 2 years, increasing from an average of two months to nearly a year in many instances. USCIS has struggled with an ever-increasing case load, and has tried several strategies to alleviate the long processing delays. Last summer, extension petitions were routed from the California Service Center to the Nebraska Service Center, increasing the offices that process H-1B petitions from two to three. All new cases continue to be processed at either the California or Vermont Service Center, with all cap exempt³ cases filed in California.…
Continue Reading USCIS to suspend premium processing for H-1B petitions

Various news sources have been reporting on certain changes that may be coming to the H-1B program under the new Trump administration.

First, there is a draft copy of an Executive Order titled, “Protecting American Jobs and Workers by Strengthening the Integrity of Foreign Worker Visa Programs.” The draft contains several “orders” directing governmental agencies to propose and develop regulations pertaining to foreign nationals working in the United States. The draft that is currently available does not contain any concrete ideas as to the nature of any proposed or amended regulations. Furthermore, if this Executive Order were to be signed, it would take months for the affected agencies to review, propose and develop such regulations.

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Continue Reading Changes to the H-1B program under the Trump Administration?

President Trump issued three Executive Orders during the first week of his administration to fulfill his campaign promises. During the campaign, President Trump promised to build a wall along the southern border with Mexico and to impose a ban on the admission of Muslims until the new Administration could impose “extreme vetting” of all non-citizens admitted to the United States. A third Executive Order seeks to withdraw federal funding for sanctuary cities. The implementation of these Orders has been uneven, instilling fear and uncertainty among travelers, their employers and families, leading to numerous demonstrations in cities and at airports throughout the country.

While the three orders addressed different aspects of immigration, the most impactful order was the third one signed and immediately implemented on the late afternoon of Jan. 27, 2017. This order, entitled “Protecting the Nation from Foreign Terrorist Entry into the United States” suspended immediately the admission of all refugees for 120 days, Syrian refugees indefinitely and it prohibited the admission of all citizens from seven designated countries (Iraq, Iran, Libya, Somalia, Sudan, Syria and Yemen) with both immigrant and nonimmigrant visas for 60 days. Certain diplomatic visa holders were exempted from the Executive Order. While the Order provided for individual exemptions on a case by case basis, in the national interest, the standards and the procedures to apply for this exemption were not identified in the Order.…
Continue Reading President Trump’s immigration Executive Orders

Now that it is clear that Donald Trump will be the 45th President of the United States, questions are continuously being asked about how the regime change when he takes office in January of 2017 will impact labor and employment law. Acknowledging that any discussion of Trump’s policies before he takes office on Jan. 20, 2017 is purely speculation, it is important for employers to consider the potential implications on labor and employment law.…
Continue Reading November election results likely will significantly impact labor and employment law in coming years

Special thanks to summer associate Sara Schiavone for her work on this blog post.

Human resource professionals who are managing the immigration processing for Indian nonimmigrant employees should be aware of the increased processing times for the visa application at consulates in India. The extraordinary increase in routine processing for nonimmigrant visas requires significantly more planning to avoid long periods of non-productivity while employees are stranded abroad waiting for a visa appointment.

It was not that long ago that one week was seen as a standard timeframe to receive an interview appointment. However, applicants now experience wait times as long as four months. As of July 2016, current wait times for nonimmigrant visa (NIV) interview appointments other than B (visitor), F (student) and J (exchange visitor) at the following consular posts are:…
Continue Reading Long wait times for Indian nonimmigrant visas merit human resources planning