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EIG Week in Review (Oct 3, 2014)

October 3, 2014

Highlights

  • UPDATE:  Indian Prime Minister Announces Visa-on-Arrival Program for U.S. Citizens and Changes to OCI/PIO Program
  • FY2015 H-1B Employees Now Subject to FICA
  • Central American Children Eligible to Apply for Refugee Status
  • Deferred Enforced Departure Extended for Eligible Liberians in the U.S.

UPDATE:  Indian Prime Minister Announces Visa-on-Arrival Program for U.S. Citizens and Changes to OCI/PIO Program

As an update to our article from last week, Indian Prime Minister Narendra Modi announced some changes to immigration policies during his visit to the U.S. this past week. In a speech at Madison Square Garden, the Prime Minister officially confirmed that U.S. nationals traveling to India will be eligible for visa-on-arrival.  Although there is no set time frame for the implementation of this new policy, the changes will affect U.S. nationals making short trips to India, including business travel, and should ease the process.

Prime Minister Modi also announced that Persons of Indian Origin (PIO) cards will soon merge with Overseas Citizen of India (OCI) cards with the establishment of a new comprehensive scheme.  Following the Prime Minister’s remarks, the Indian Union Home Ministry issued a notification earlier this week, which granted PIO cards lifetime validity and eliminated local police registration requirements that were previously associated with PIO.

The Union Home Ministry also clarified that all PIO cards issued prior to September 30, 2013 will automatically deemed to be valid for a lifetime. Details regarding the new PIO/OCI scheme is also expected to be announced soon.  The policy changes should streamline processing and make it easier for U.S. citizens and PIO cardholders to travel to India.

FY2015 H-1B Employees Now Subject to FICA

As of October 1, 2014, foreign nationals with approved FY2015 H-1B Cap petitions are authorized to begin working in the U.S. in H-1B status.  Individuals with H-1B Cap petitions that were approved as a change of status were automatically converted to H-1B status on this date from within the U.S., and individuals with petitions approved for consular processing will be in H-1B status once they have obtained an H-1B visa at a U.S. Consulate abroad and entered the U.S.  Accordingly, employers should be advised that, effective October 1, 2014, H-1B visa-holders are subject to the Federal Insurance Contributions Act (FICA), even if they were previously exempt.

It is important that employers and their respective payroll departments comply with payroll withholding for their H-1B workers.  In particular, employers should pay special attention to those employees transitioning from F-1 OPT status to H-1B status, who are more likely to be overlooked by payroll departments since they may already be working for the company.  Additionally, employers should be sure to update the I-9 forms for those employees who acquired H-1B status on October 1, 2014.

Employers should also be aware that prevailing wage requirements are now in effect for FY2015 H-1B employees.  This means that H-1B employees must be paid the prevailing wage for the position enumerated in the Labor Condition Application (LCA) as part of the H-1B Cap petition filing.  H-1B employees are encouraged to verify with their payroll departments that they are being paid the amount reflected in the H-1B petition.

Central American Children Eligible to Apply for U.S Refugee Status

White House officials confirmed earlier this week that President Barack Obama approved a new plan to allow Central American children to apply for refugee status from within their home countries.  The policy is aimed at discouraging children from making the risky journey across Mexico in an attempt to enter the United States.  Although the number of unaccompanied minors crossing the border has decreased in recent months, the new program seeks to further deter children from making the treacherous journey by assisting them in determining whether they qualify for asylum before fleeing their home countries.

According to a White House spokesman, in-country refugee processing centers will be established in El Salvador, Guatemala, and Honduras.  However, the spokesman stressed, “These programs will not be a pathway for children to join undocumented relatives in the United States.”  Critics have objected to the plan by arguing the scheme could encourage more immigrants to come to the United States and that more people will apply for refugee status if they are able to do so from within their home country. White House officials responded by noting the program will not increase the number of refugee visas that would be approved.  Specifically, 4,000 of the 70,000 available refugee visas will be allocated to foreign nationals from Latin America and the Caribbean.

At this time, there are still several program parameters that are yet to be established, including age limitations and qualifying circumstances that will merit applicant eligibility.  The program is not the first of its kind; similar schemes have been implemented in Haiti, in the 1990s, and in post-war Vietnam, in an effort to provide alternatives to dangerous boat voyages to the U.S. that were rampant during that time.

Deferred Enforced Departure Extended for Eligible Liberians in the U.S.

USCIS recently announced that it will extend the validity of Employment Authorization Documents (EADs) for Liberian nationals currently covered under the Deferred Enforced Departure (DED) program.  Pursuant to this policy, eligible Liberian nationals with EADs expiring on September 30, 2014 will automatically be extended to March 30, 2015.

The extension policy comes at the heels of President Barack Obama’s decision to extend the DED program for qualified Liberian Nationals until September 30, 2016.  The President cited foreign policy interests as the basis for the 24-month deferral, which was originally scheduled to end on September 30, 2014.

President Obama emphasized that the grant of DED only applies to an individual who has continuously resided in the United States since October 1, 2002.  However, Liberian nationals, or persons without nationality who last habitually resided in Liberia, who meet any the following criteria are ineligible:

(1) Individuals who are ineligible for TPS for the reasons provided in section 244(c)(2)(B) of the Immigration and Nationality Act, 8 U.S.C. 1254a(c)(2)(B);

(2) Individuals whose removal is determined to be in the interest of the United States;

(3) Individuals whose presence or activities in the United States the Secretary of State has reasonable grounds to believe would have potentially serious adverse foreign policy consequences for the United States;

(4) Individuals who have voluntarily returned to Liberia or his or her country of last habitual residence outside the United States;

(5) Individuals who were deported, excluded, or removed prior to the date of this memorandum; or

(6) Individuals who are subject to extradition.

For more information regarding the DED Program and the EAD extension policy, please visit http://www.uscis.gov/humanitarian/temporary-protected-status-deferred-enforced-departure/ded-granted-country-liberia/ded-granted-country-liberia.