CLIENT UPDATE: REVISED I-9 FORMS MUST BE USED STARTING 9/18/2017

Earlier this year we reported that the Office of Management and Budget approved a revised Form I-9, Employment Eligibility Verification, which employers were to begin using in January.

Further revisions to the new form were announced on July 17, and go into effect on September 18, 2017, at which point all previous versions of the Form I-9 will be invalid. Details about the additional revisions and the updated I-9 forms are available at: https://www.uscis.gov/i-9-central/whats-new.

As a reminder, all employers have an obligation to verify the identity and employment eligibility of all newly-hired employees through the completion of the Employment Eligibility and Verification Form I-9. The Form I-9 contains the signature of the employer and the employee, and it records the relevant data from the documents that the employer inspected to confirm the employee’s authorization to work in the United States. It is important that the employer clearly identify the reviewed documents and their identification numbers. It is not necessary to retain copies of these documents. Employers are required to maintain for inspection the original Form I-9 for all current employees. In the case of former employees, retention of Form I-9 is required for a period of at least three years from the date of hire or for one year after the employment relationship terminates, whichever is longer.

The U.S. Department of Labor and the Department of Homeland Security through its U.S. Immigration and Customs Enforcement Bureau (ICE) are the government agencies with authority to audit I-9 compliance. ICE is committed to increased work-site enforcement, particularly in cases of low skill and high turnover industries. Employers should regularly audit their I-9 procedures, compliance, and recordkeeping, as well as establish a protocol at the “front desk” to identity persons responsible to deal with government inquiry; Employers should also be sure that all policies and protocols relating to recordkeeping and government compliance are current and understood by key employees.

For more information about the new I-9 forms, or any other Immigration Law matter, please contact Elaina Smiley, Joel Pfeffer or Gary Sanderson.

This material is for informational purposes only. It is not and should not be solely relied on as legal advice in dealing with any specific situation.

Immigration Law Client Update: E-3 Visas Exclusive to Australian Citizens

The E-3 visa is a special visa category available exclusively to the citizens of Australia.  The initial period of stay under the E-3 category visa is two years. E-3 visas are eligible for an unlimited number of two year extensions, provided that the individual is able to demonstrate that s/he does not intend to remain in the United States on a permanent basis. The spouse and unmarried children under 21 of an E-3 recipient are also granted E-3 classifications, called "E-3D" for "dependent." Spouses, but not children, are entitled to work authorization in the United States.

An E-3 visa holder may work either full or part time. To be eligible for an E-3 Visa, an applicant must meet the following criteria:

1. The individual is an Australian citizen; 
2. S/he possesses a bachelor's degree or equivalent in the field of employment;
3. S/he is seeking to enter the United States pursuant to an offer of employment; and 
4. The employment position qualifies as a "specialty occupation." 

A "specialty occupation" is one that requires:

1. Theoretical and practical application of a body of specialized knowledge; and
2. The attainment of a bachelor's or higher degree in a specific specialty as a minimum for entry into the occupation in the United States.

To qualify, an E-3 employer must submit a Labor Condition Application (LCA) that attests that it will pay the employee at least the employer's "actual" wage (the wage and benefits paid by the employer to U.S. employees) and the "prevailing" wage (the wage paid to U.S. employees in the local area) for that occupational classification.

A maximum of 10,500 E-3 visas can be issued annually. Any unused E-3 visas are forfeited and do not carry over to the next fiscal year. As long as the applicant has worked and continues to work for the employer who submitted the original LCA, E-3 renewals are not counted against the annual numerical limit. Spouses and children of E-3 principals do not count toward the annual numerical limit.

For more information about E-3 visas or any other Immigration Law matter, please contact Joel Pfeffer, Elaina Smiley, or Gary Sanderson. Contact information is listed below. (*The authors thank Danielle Scalise, Summer Associate, for her research and assistance on this Client Update.)

This material is for informational purposes only.  It is not and should not be solely relied on as legal advice in dealing with any specific situation.

Immigration Law Client Update: Work Options for Foreign Students

F-1 Visas are issued to international students enrolled in a U.S. post-secondary educational institution to attend an academic program. F-1 students are required to maintain full-time student status and may remain in the United States for up to 60 days beyond the completion of their program. F-1 students may extend their stay in the United States through the Optional Practical Training (OPT) or Curricular Practical Training (CPT) programs. For F-1 students in a STEM program of study, there is a special extension available following completion of an OPT program.

CPT experiences must be part of a program of study and can be either part-time or full-time work. F-1 students are eligible for CPT off-campus, study-­related employment after completing one year of an academic program. At the graduate level, a designated school official authorizes this employment. Additionally, CPT requires a signed cooperation agreement from an employer. F-1 students who complete 12 months or more of full-time CPT employment are ineligible for OPT. However, part-time CPT students are still eligible for OPT.

OPT experiences must relate to an F-1 student's major or course of study. At each level of education (i.e. bachelor's, master's, etc.), an F-1 student may apply for 12 months of OPT. A designated school official recommends an F-1 student for this employment. Following recommendation and successful application, U.S. Citizenship and Immigration Services provides the F-1 student with an Employment Authorization Document (EAD), permitting the student to begin work. OPT can be pre-completion (while still attending school), post- completion (after graduation), or a combination of the two. Work is capped at 20 hours per week while school is in session. OPT must be completed within 14 months of graduation.

F-1 students currently enrolled with OPT in a Science, Technology, Engineering, and Mathematics (STEM) program of study may be eligible for an additional 24 months of OPT (STEM OPT). STEM fields are further defined to include actuarial science, computer science, engineering, engineering technologies, biological and medical sciences, mathematics and statistics, military technologies, physical sciences, science technologies and health professions, and related clinical sciences. Additional requirements mandate that the STEM degree come from an accredited Student and Exchange Visitor Program (SEVP) certified college or university, and the employer sought uses the E-Verify program. While awaiting the approval of a timely filed application, an F-1 student currently on OPT may remain in the United States for 180 days. STEM OPT students may work part-time or full-time, as long as the work is related to the field of study and comparable to the student's level of education.

During the CPT, OPT, and/or STEM employment, the employer may apply for an H-1B visa for the employee to continue working in the United States. Because of the limited number of H-1Bs available, the individual with the best chances of selection is a U.S. master's degree graduate.

 

For more information about foreign student work options or any other Immigration Law matter, please contact Joel Pfeffer, Elaina Smiley or Gary Sanderson. Contact information is listed below. (*The authors thank Danielle Scalise, Summer Associate, for her research and assistance on this Client Update.)

This material is for informational purposes only.  It is not and should not be solely relied on as legal advice in dealing with any specific situation.

Supreme Court travel ban could have 'marginal effect' on Pittsburgh

Meyer Unkovic & Scott’s Immigration Practice Group Chair Joel Pfeffer weighs in with the Pittsburgh Business Times about the Supreme Court’s recent ruling on President Trump’s travel ban. Please click here to read the complete article.

Supreme Court reinstates travel ban: Here’s what you need to know

The Supreme Court reversed actions of the lower federal courts on June 26, after allowing President Trump to reinstate his immigration travel ban. According to the ruling, foreign nationals from six majority-Muslim countries – Syria, Sudan, Yemen, Libya, Somalia and Iran – “who lack any bona fide relationship with a person or entity in the United States,” will be denied entry to the United States for the next 90 days.

Though this updated order is far less restrictive than the president’s initial version, many immigrants looking to gain access to the United States will still be impacted.

Who is affected:

• Foreigners applying for a visa as a visitor to the United States without a direct tie to the country
• Foreigners applying through the diversity visa program
• Foreigners who have no ties to the United States and therefore are not protected by the Constitution

Who is not affected:

• Foreigners who have been accepted to a U.S. university
• Foreigners who have been claimed by a close relative who is a U.S. citizen. According to a recent update posted on the State Department website, “a close familial relationship is defined as a parent (including parent-in-law), spouse, child, adult son or daughter, son-in-law, daughter-in-law, sibling, whether whole or half, and including step relationships. ‘Close family’ does not include grandparents, grandchildren, aunts, uncles, nieces, nephews, cousins, fiancé(e)s, brothers-in-law and sisters-in-law, and any other ‘extended’ family members.”
• Foreigners who are applying for entry through a work visa program

By Joel Pfeffer, Pittsburgh Immigration Lawyer and Chair of Meyer, Unkovic & Scott’s Immigration Group

How the Trump Administration is Changing U.S. Immigration

Meyer, Unkovic & Scott immigration attorney Joel Pfeffer will be the featured presenter during a webinar scheduled for this Wednesday, June 21st at 2 p.m. EDT on the topic of: How the Trump Administration is Changing U.S. Immigration – A Sixth Month Look Back. The webinar will address the following issues:

• What to expect in the future including the call for changes in screening and vetting for visa issuance and entry to the United States;
• What changes can be anticipated for the H-1B specialty occupation program; and
• What employers can do now to prepare for changes in policy, adjudications and enforcement.

Mr. Pfeffer is a Pittsburgh-based immigration attorney and Chairs the firm’s Immigration Practice Group. He is also a member of the firm’s Corporate & Business Law and International Law practice groups.

For more information about the webinar and to register, please visit: http://www.jdsupra.com/legalnews/webinar-how-the-trump-administration-is-12229

Immigration Law Alert - Companies Should Prepare for an Increase in I-9 Audits

In President Trump's recent Executive Orders, he directed executive agencies to prioritize the enforcement of immigration laws and proposed an increase in the budget for the hiring of additional immigration officers. Such enforcement efforts will likely include a surge in I-9 audit compliance.

All employers have an obligation to verify the identity and employment eligibility of all newly-hired employees through the completion of the Employment Eligibility and Verification Form I-9. This verification process must take place within 3 days of the start of employment. The Form I-9 records the relevant data from the documents that the employer inspected to confirm the employee's authorization to work in the United States. It is important that the employer clearly identify the reviewed documents and their identification numbers. It is not necessary to retain copies of the documents.

The U.S. Department of Labor and the Department of Homeland Security through its U.S. Immigration and Customs Enforcement Bureau (ICE) are the government agencies with authority to audit I-9 compliance. Prior to conducting an I-9 audit, the agency normally sends a Notice of Inspection for production of I-9s; then, businesses will have 3 business days to provide the requested documents for inspection. The Notice of Inspection may also list other business records for inspection such as payroll records, a list of employees, Articles of Incorporation and business licenses.

If technical or procedural violations are found, the employer is given 10 business days to correct the violation. Companies can receive monetary fines for substantive and uncorrected technical violations. Fines for failing to comply with I-9 employment verification requirements can range from $216 to a maximum of $2,156 for each form.

Any employer who knowingly hired or continued to employ an unauthorized worker may be criminally prosecuted, and the company can be debarred from participation in federal contracts. Civil fines for knowingly hiring an unauthorized alien for employment can range from $539 to a maximum of $21,563 for each unauthorized alien.

ICE is committed to increasing work-site enforcement, particularly in cases of low skill and high turnover industries. Employers should regularly audit their I-9 procedures, compliance, and recordkeeping; establish a protocol to identify persons responsible for dealing with a government inquiry; and be sure that all policies and protocols relating to recordkeeping and government compliance are current.

For more information about I-9 Audits or any other Immigration Law matter, please contact Joel Pfeffer, Elaina Smiley, or Gary Sanderson.

This material is for informational purposes only.  It is not and should not be solely relied on as legal advice in dealing with any specific situation.

Don’t delay in preparing H-1B applications

Various factors may affect the H-1B visa program this year, including potential changes by the new administration and a pending lawsuit related to H1-B visa lottery procedures. Read more in this article by Gary Sanderson, "Don’t delay in preparing H-1B applications."

Immigration Law Alert - H-1B Visa Applications Can Be Filed On April 3

Do not delay in preparing your H-1B visa applications as the demand is great, and it is likely that the U.S. Citizenship and Immigration Services (USCIS) will receive more applications than there are available H-1B visas. There is an annual cap of 65,000 for foreign national employees holding the equivalent of a U.S. Bachelor's degree and an additional 20,000 visas available for employees with a U.S. Master's degree or higher. Because of the increased demand, in the past several years the USCIS has conducted a lottery to select an appropriate number of applications for consideration of H-1B eligibility.

To be selected in the lottery, employers must file on or about April 3, 2017 for employment beginning on October 1, 2017, the first day of the government's fiscal year. Traditionally the filing date is April 1;  however, that date is a Saturday this year, which results in USCIS accepting applications on Monday, April 3rd, 2017. Employers can file H-1B applications no earlier than six months in advance of the anticipated start date; therefore, April 3, 2017 marks the beginning of the race for obtaining an H-1B visa. The USCIS will announce in advance how many days following April 3 it will accept applications. Last year, the USCIS received nearly 236,000 applications during the filing period. Companies filing for students on Optional Practical Training (OPT) with work authorization expiring after April 1 secure an automatic extension of the student's work authorization until there is a decision on whether the case is selected, and, if selected, the extension continues until October 1, 2017.

Employers need to be aware that every H-1B application requires a Labor Condition Application (LCA) certified by the U.S. Department of Labor (DOL). The DOL takes approximately one week to certify an LCA. If an employer has not previously filed an LCA with the DOL, it may take additional time for the DOL to verify the employer's Federal Employer Identification Number. Companies need to consider the lead time necessary to prepare an H-1B application.

It is important for companies to carefully prepare their applications as the USCIS has increased its scrutiny and regularly requests additional evidence from employers. Employers can work with counsel to develop detailed explanations as to why the employee qualifies for this visa.

Lastly, it is possible that USCIS may make changes to the H-1B visa program this year, given the change in the Executive Branch. As of the date of publication, no official changes have been proposed or adopted. In addition, there is a pending lawsuit related to the H-1B visa lottery procedure, which could have an impact on this year's H-1B visa process. Meyer, Unkovic & Scott will continue to monitor these matters and issue an updated alert if there are any changes.

For more information about H-1B Visas, or any other Immigration Law matter, please contact Joel Pfeffer, Elaina Smiley, or Gary Sanderson.

This material is for informational purposes only.  It is not and should not be solely relied on as legal advice in dealing with any specific situation.

Immigration Law Alert - President Trump's Executive Orders on Immigration

In late January, the Trump Administration published three important Executive Orders on immigration.  Many of the subjects addressed in these Orders have practical ramifications for foreign nationals. While some are policy statements that will require congressional funding, others are projects that the Executive Branch can initiate and report back to the President.  The following is a brief summary of the Executive Orders' objectives:

• Reinstitute a program of engagement between the Department of Homeland Security and local law enforcement to deputize and train local law enforcement officials to perform certain Department of Homeland Security immigration-related functions with respect to identification and detention of foreign nationals who may be out of status in the United States.
• Call for an additional 10,000 immigration officers to perform immigration-related functions, a directive subject to Congressional appropriation. 
• Direct that funding to "sanctuary jurisdictions" be cut off.  Sanctuary jurisdictions are those that refuse to detain individuals targeted by the Department of Homeland Security for potential immigration violations. 
• Terminate the Priority Enforcement Program established by the Obama administration that prioritized criminal aliens for detention and deportation.
• Prohibit admission, for a period of 90 days, of any foreign national from countries known as the "countries of concern." These countries include Libya, Syria, Iraq, Iran, Sudan, Yemen, and Somalia.
• Suspend refugee admissions for 120 days.
• Discontinue the Syrian Refugee Program.
• Limit refugee admission for fiscal year 2017 to no more than 50,000 refugees. The number of refugee admissions is historically determined by the President, and the last administration had been admitting approximately 110,000 refugees per year.
• Direct the Department of Homeland Security to develop and implement a biometric entry/exit tracking system for all foreign travelers to the United States. 

If these Executive Orders are any indication of what is to come, expect further initiatives by the Executive Branch and proposals to Congress to curtail immigration to the United States. Here are some things to watch for in the long term:

• Businesses should be ready for Form I-9 compliance audits, including unannounced inspections in target industries such as hospitality, farming, and food production.
• Congress can require companies to clear all new employees through E-Verify, which is now optional. E-Verify is an internet-based system that determines the eligibility of employees to work in the United States.
• Employers can anticipate a thorough review of the H-1B program, including requirements for dependent employers, the number of available Visas, prevailing wage determinations, adjudications, and site visits.
• Colleges and students should expect increased scrutiny at Consular interviews, SEVIS tracking and enforcement, and proposals seeking to limit employment and training opportunities.
• Families may see increases in the income levels that are required to sponsor a spouse or other family member for immigration to the United States.

In light of these Executive Orders, it is critical for all U.S. employers to review immigration documents, understand the meaning of each document, and know the interplay between the several government agencies that oversee temporary and permanent immigration to the United States.

For more information about the President's Executive Orders on Immigration, please contact Joel Pfeffer, Elaina Smiley, or Gary Sanderson.

This material is for informational purposes only.  It is not and should not be solely relied on as legal advice in dealing with any specific situation.

Pittsburgh Business Times Looks At Immigration Executive Order

Joel Pfeffer was recently interviewed for this article by the Pittsburgh Business Times, “Pittsburgh schools, lawyers discourage travel for those affected by Trump order.” Use this link to read more.

New I-9 Forms Must Be Used Starting 1/22/2017

IMMIGRATION LAW REMINDER

On August 25, 2016 the Office of Management and Budget approved a revised Form I-9, Employment Eligibility Verification. It is expected that the United States Citizenship and Immigration Services (USCIS) will publish a revised form by November 22, 2016.  Many of the proposed changes to Form I-9 were designed to reduce technical errors and help employers electronically complete the form after they have downloaded it from uscis.gov. Employers may continue using the current version of Form I-9 with a revision date of 03/08/2013 until January 21, 2017. After January 21, 2017, all previous versions of Form I-9 will be invalid.

All employers have an obligation to verify the identity and employment eligibility of all newly-hired employees through the completion of the Employment Eligibility and Verification Form I-9.  The Form I-9 contains the signature of the employer and the employee, and it records the relevant data from the documents that the employer inspected to confirm the employee’s authorization to work in the United States.  It is important that the employer clearly identify the reviewed documents and their identification numbers. It is not necessary to retain copies of these documents.  Employers are required to maintain for inspection the original Form I-9 for all current employees.  In the case of former employees, retention of Form I-9 is required for a period of at least three years from the date of hire or for one year after the employment relationship terminates, whichever is longer.

The U.S. Department of Labor and the Department of Homeland Security through its U.S. Immigration and Customs Enforcement Bureau (ICE) are the government agencies with authority to audit I-9 compliance.  ICE is committed to increased work-site enforcement, particularly in cases of low skill and high turnover industries. Employers should regularly audit their I-9 procedures, compliance, and recordkeeping, as well as establish a protocol at the “front desk” to identity persons responsible to deal with government inquiry; Employers should also be sure that all policies and protocols relating to recordkeeping and government compliance are current and understood by key employees.

For more information about the new I-9 forms, or any other Immigration Law matter, please contact Elaina Smiley, Joel Pfeffer or Gary Sanderson.

Client Alert - New I-9 Forms To Be Used Starting 1/22/2017

On August 25, 2016 the Office of Management and Budget approved a revised Form I-9, Employment Eligibility Verification. It is expected that the United States Citizenship and Immigration Services (USCIS) will publish a revised form by November 22, 2016.  Many of the proposed changes to Form I-9 were designed to reduce technical errors and help employers electronically complete the form after they have downloaded it from uscis.gov. Employers may continue using the current version of Form I-9 with a revision date of 03/08/2013 until January 21, 2017. After January 21, 2017, all previous versions of Form I-9 will be invalid.

All employers have an obligation to verify the identity and employment eligibility of all newly-hired employees through the completion of the Employment Eligibility and Verification Form I-9.  The Form I-9 contains the signature of the employer and the employee, and it records the relevant data from the documents that the employer inspected to confirm the employee’s authorization to work in the United States.  It is important that the employer clearly identify the reviewed documents and their identification numbers. It is not necessary to retain copies of these documents.  Employers are required to maintain for inspection the original Form I-9 for all current employees.  In the case of former employees, retention of Form I-9 is required for a period of at least three years from the date of hire or for one year after the employment relationship terminates, whichever is longer.

The U.S. Department of Labor and the Department of Homeland Security through its U.S. Immigration and Customs Enforcement Bureau (ICE) are the government agencies with authority to audit I-9 compliance.  ICE is committed to increased work-site enforcement, particularly in cases of low skill and high turnover industries. Employers should regularly audit their I-9 procedures, compliance, and recordkeeping, as well as establish a protocol at the “front desk” to identity persons responsible to deal with government inquiry; Employers should also be sure that all policies and protocols relating to recordkeeping and government compliance are current and understood by key employees.

For more information about the new I-9 forms, or any other Immigration Law matter, please contact Elaina Smiley, Joel Pfeffer or Gary Sanderson. Contact information for Elaina, Joel and Gary is available by clicking on the links below.

Please click here for a .pdf of the article.

Practical Tips: How to Comply with Recent Changes to Employment and Immigration Policies

Hosted by:  

MUS's Employment Law and 

Employee Benefits Group

Date - Thursday, October 15
Time - 8:30 - 10:30 am
Location - The Rivers Club

This seminar will discuss the following topics in employment and immigration laws, and what you and your company need to do to ensure you are in compliance:

• Affordable Care Act Reporting Requirements 
• New Standards for Fiduciaries of 401(k) Plans 
• FLSA Proposed Amendments 
• Expanded Protections Based on Sexual Orientation
• Handling Transgender Issues 
• Pregnancy Accommodations 
• Dress and Appearance Policies 
• City of Pittsburgh Paid Sick Leave Ordinance 
• Practical Tips for Employing Foreign Nationals

Please join us to learn tips necessary for your company to keep up with the most recent changes to employment and immigration laws.

RSVP by October 8

Please register early, as space is limited to 50 attendees

To register, email us at:

rsvp@muslaw.com

Presenting Attorneys

Elaina Smiley 

es@muslaw.com

Jason Mettley

jm@muslaw.com

Joel Pfeffer

jp@muslaw.com

Kathryn M. Kenyon

kmk@muslaw.com

Tony J. Thompson

tjt@muslaw.com

Antoinette C. Oliver

aco@muslaw.com

Lance A. Woods

law@muslaw.com

Transferring L-1B Workers Easier with New Guidance

Joel Pfeffer’s article, “Transferring L-1B Workers Easier with New Guidance” recently appeared in the Pittsburgh Post-Gazette. You can access the online version here.

"E" Category Trader or Investor Visas

By: Elaina Smiley, Joel Pfeffer, Gary M. Sanderson

Foreign nationals seeking to sell products in the U.S. market or investing in a U.S. business need to consider whether they qualify for the “E” visa category. E visas are available to nationals of one of 82 countries that have treaties with the U.S. for either trading or investing.

The trading visa is available to companies owned by a national of a treaty country and planning to sell goods and/or services in the U.S. An investor visa is available to nationals of a treaty country who invest in a U.S. enterprise or who manage a U.S. enterprise for an investor of the same nationality. The investment must be significant with a potential for a return on the investment that goes beyond the investor’s salary for working the investment.

In the case of a company selling its products to the U.S. market, the application will require a business plan that outlines the company’s history, product, sales force and how it will develop trade to the U.S. It is often helpful to supply letters or purchase orders from U.S. customers.

In order to apply for an E investor visa, the applicant must be in the process of investing in or establishing a U.S. business or office. A detailed business plan is critical to the process. The business plan will show how the business will make money; how the foreign national applicant is qualified to manage the business; and how the investment will generate more income than the applicant needs to make a living through growth in value or employment of U.S. workers. The business plan must include financial projections for at least three years. The process also requires a showing that funds have been transferred to the U.S. If an existing business is being purchased the funds may be deposited to an escrow account with the condition that it will be returned if the visa is not issued. One question that needs to be considered is how much money must be invested. There is no single answer. The required amount is what is normal for the type of business that is being started or purchased. If it is a manufacturing business it will require a greater investment than a service or retail business. An expert opinion may be necessary.

For most countries, the E visa can be approved for up to five years. Often the consulate will approve a start-up business for less time and the applicant will need to apply again for another visa after a few years. At that time the consulate will want to see U.S. tax returns as evidence of the profit and health of the business. The visa can continue to be renewed as long as the applicant is managing the business and the business is profitable. This visa does not lead to a green card or permanent status in the U.S. Other types of investment visas are available for permanent (green card) status for investments of $500,000 or $1,000,000. E visas can be obtained for smaller investments.