It’s a new year and there are changes, big and small, on the horizon for employers and foreign nationals alike. Some of these changes are mundane and others will have rippling effects across the board for all folks who practice immigration law or are impacted by U.S. immigration policies. Our top 10 immigration updates for January, and beyond ….
1. DHS Responds to Congress
On December 5, 2016, California Congresswoman Judy Chu inquired of President Obama how the Department of Homeland Security intended to handle the data collected from all DACA applicants in light of the new administration’s indication for mass deportation. On January 3, 2017, DHS Secretary Jeh Johnson responded, reassuring members of Congress that “representations made by the U.S. government, upon which DACA applicants most assuredly relied, must continue to be honored.” Congresswoman Chu’s recent response to the new letter continues to ask that President Obama issue an executive order before January 20, 2017 to protect DACA recipients.
2. Form I-9
USCIS issued revisions last November to the Form I-9, making it the 12th revision since its debut in 1987. The latest, revised version, Updated 11/14/2016, must be used starting January 22, 2017 and thereafter. You can download the “smart”, fillable PDF or a regular, paper version here. Or, better yet, if your company is smart and savvy, you can go the route of the electronic I-9 form using software; but choose your I-9 software wisely since non-compliant I-9 software can get your company in more hot water.
3. New Rules for Employment-Based VISAS
On November 18, 2016, USCIS issued a Final Rule, as part of President Obama’s executive action to improve efficiencies in the immigration system. The rule goes into effect on January 17, 2017 and effectively amends USCIS regulations for employment-based visas. In sum, the new regulations are a benefit to employers and foreign nationals. You can read a more specific analysis of the final rule here.
4. New USCIS Forms
USCIS announced updates to numerous forms back in December, giving employers and foreign nationals little warning. Fortunately, USCIS extended its effective date to February 21, 2017. If you’re submitting immigration applications or petitions, make sure the most updated form is submitted. Only updated versions will be acceptable starting February 21, 2017. You can visit the USCIS Forms page to double check if the version being used is the most update version.
5. Bills, bills, bills
You’ll likely see many more immigration-related bills introduced by various Congress members this year – because optics are important. We’ll see a patchwork of bills, bills and more bills.
- HR 170 was recently re-introduced (formerly HR 5801) by Congressman Darrell Issa and others. It impacts only H-1B dependent employers. (Read my analysis on Quora here.)
- Congresswoman Zoe Lofgren indicated she might be introducing another H-1B bill of her own.
- The Bridge Act was introduced by Senator Durbin and others aimed at protecting DACA recipients from being deported once Trump takes over.
6. Accreditation Issues for STEM OPT Students
On December 14, 2016, the U.S. Dept. of Education announced it was no longer recognizing the Accrediting Council for Independent Colleges and Schools (ACICS) as an accrediting agency. More than 160,000 international students are impacted and for those students who were planning on extending their OPT work authorization based on STEM extensions, this might pose a problem because their school must maintain its accreditation at the time the student applies for their STEM extension. Read more here.
7. USCIS Case Processing
It’s long overdue but USCIS announced recently that starting this year, it will be more transparent with how it indicates its case processing times.
Starting on Jan. 4, 2017, we will post processing times using a specific date format rather than weeks or months. This is the first step in providing processing times that are timelier and easier to understand.
We post case processing times on our website as a guide for when to inquire (service request) about a pending case. For the last several years, we have posted case processing times using two different formats:
- For cases that were within our production goals, we listed processing times in weeks or months.
- For cases that were outside of our production goals, we listed processing times with a specific date.
The practical implications for the update to the case processing is minimal. If USCIS could provide an update on a monthly basis, then it may have a bigger impact.
8. AAO Case Processing
In a similar vein, The USCIS Administrative Appeals Office (this is the office that reviews all cases that have been appealed from a USCIS decision), recently announced that it too would present its processing in a date format, rather than average completion times.
9. New National INTEREST WAIVER STANDARD
On December 29, 2016, the AAO issued a precedent decision entirely revising the criteria in which to judge a national interest waiver, clarifying and turning the “NIW” option for the a greencard much more attractive. The case was argued by attorney Gerry Chapman of North Carolina, long-time immigration expert, and a friend. You can read the decision here. The previous standard that was established in the Matter of NYSDOT case was vacated and superseded by Matter of Dhanasar. The new National Interest Waiver criteria will now require the petitioner to prove the following:
(1) that the foreign national’s proposed endeavor has both substantial merit and national importance;
(2) that he or she is well positioned to advance the proposed endeavor; and
(3) that, on balance, it would be beneficial to the United States to waive the job offer and labor certification requirements.
10. Immigration Reform
One way or another, it’s happening. We don’t know the full scope yet and it may come in piecemeal format, but be assured changes are brewing…. Subscribe here to stay tuned…