Key Immigration Updates Vital for Employers
As we head into March, 2020, there are two key developments in immigration law that all employers should be aware of: 1) The return of the H-1B cap filing season, with a brand new registration process in place; and 2) a new edition of the I-9 form, which goes into effect on May 1, 2020.
H-1B Cap
Once again, we have entered the H-1B cap filing season. The H-1B is a popular nonimmigrant visa category that is available to highly skilled foreign nationals who are offered an H-1B-qualifying position by a U.S. employer. This is also known as a “specialty occupation visa” because in order to be eligible for this visa category, the position that is being offered to a foreign national must require a minimum of a bachelor’s degree in a specific field and the foreign national must meet that requirement. Typical candidates for the H-1B petition include students who are currently working pursuant to a work permit card (OPT or STEM OPT). In some cases, employees in TN status might benefit from switching over to H-1B.
For foreign nationals working in the U.S., one of the biggest advantages to being in H-1B status is that even though it is a non-immigrant visa category (as opposed to an immigrant visa category), you can have an intent to reside permanently in the U.S., which can be convenient when you begin the permanent residence process.
As there are more petitions filed than there are visa numbers available, USCIS conducts a lottery each year to select the ones that it will adjudicate. For the first time this year, U.S. Citizenship & Immigration Services (USCIS) has implemented an online registration process. Instead of filing an H-1B petition on the first week of April, employers will need to register their employees online from March 1 and March 20. This is what USCIS has announced on its website, uscis.gov:
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During this timeframe, H-1B cap-subject petitioners, including those eligible for the advanced degree exemption, seeking to file a FY 2021 H-1B cap petition will be required to first register electronically with USCIS and pay the associated $10 H-1B registration fee for each submission.
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Prospective petitioners or their authorized representatives must electronically submit a separate registration naming each alien for whom they seek to file an H-1B cap-subject petition. Duplicate registrations are prohibited.
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As described in the H-1B registration final rule, if more than a sufficient number of registrations are received, USCIS will randomly select the number of registrations projected as needed to reach the FY 2021 H-1B numerical allocations after the initial registration period closes and notify registrants with selected registrations no later than March 31, 2020.
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Prospective petitioners with selected registrations will be eligible to file a FY 2021 cap-subject petition only for the alien named in the registration and within the filing period indicated on the eligibility notice.
Employers can wait until an employee is selected in the lottery to prepare a complete H-1B petition (however, note that a preliminary review and verification of the position offered and the employee’s qualifications is necessary), so this new process will likely be more economical for employers. On the other hand, this seemingly easy way to enter the lottery might attract more employers to participate, so the chances of being selected might be even more slim than in previous years.
If you have employees who might benefit from participating in this year’s lottery, please contact us immediately.
New I-9 Form Published
In January, USCIS published a new edition of the Form I-9 (this form says 10/21/2019 on the bottom left hand corner). USCIS has made available both a paper version and a “smart” version that can be completed electronically. Employers can continue using the prior version of the I-9 until April 30, 2020, but it is considered a violation to use an expired I-9 form, so be sure to make the transition to the new form sooner than later. We strongly recommend informing the appropriate personnel of this change and switching over to the new form at all of your locations as soon as possible.
There are no glaring changes to the new version, so the best way to know if you are using the most recent edition is to look for the 10/21/2019 date at the bottom of the form. One update to the I-9 instructions worth noting is the following: “You may designate an authorized representative to act on your behalf to complete Section 2. An authorized representative can be any person you designate to complete and sign Form I-9 on your behalf. You are liable for any violations in connection with the form or the verification process, including any violations of the employer sanctions laws committed by the person designated to act on your behalf.” For those employers that have employees who work remotely, you are still required to review their I-9 documents in person – they cannot email, fax, or text over their documents to be inspected. With this update to the instructions, USCIS has clarified that employers can designate an individual to act on the company’s behalf to complete Section 2, but they will remain liable for any violations committed by the appointed individual.
Some employers might be wondering, for whom do employers need to complete a new I-9? It is for any new employees hired beginning on May 1 (or earlier, whenever your company decides to switch over to the new edition). Do not complete an I-9 for current employees who have already completed one. That will cause you to commit other violations such as document abuse.
As a reminder, I-9 compliance is important, as employer I-9 practices are frequently the subject of audits by Immigration and Customers Enforcement (ICE). In a previous post, we discussed what happens next after ICE has selected your company for an audit. If you have questions regarding the proper manner of completing the new I-9 form, please contact us.