HIGHLIGHTS

• The U.S. Departments of Justice and Homeland Security Release Guidance for Employers Performing Internal I-9 Audits
• U.K. Citizens Now Eligible for the Global Entry Program
• UPDATE: L-1B Denial Rates Remain High According to USCIS Statistics
• U.S. House to Vote on Appropriations Bill Affecting Several Immigration Programs
• Proposed U.S. Senate Bill Aims to Overhaul H-1B Visas and Eliminate OPT

The U.S. Departments of Justice and Homeland Security Release Guidance for Employers Performing Internal I-9 Audits

As more employers conduct internal I-9 audits, the U.S. Departments of Justice (DOJ) and Homeland Security (DHS) published joint guidance to ensure audits are lawfully conducted and do not discriminate against employees. The guidance is designed to assist employers in implementing internal audits that are consistent with the Immigration and Nationality Act (INA). Under the INA, employers must use Form I-9 to verify work authorization for their employees to prevent the hiring of unauthorized workers. The joint guidance seeks to inform employers how to avoid conducting internal audits that are discriminatory or retaliatory. Principal Deputy Assistant Attorney General Vanita Gupta, Head of the Civil Rights Division within the DOJ, stated that “clear and effective guidelines” are needed to eliminate obstacles for authorized workers.   The guidance provides employers with information about:

• The purpose and scope of internal audits;
• Concerns before conducting internal audits;
• Information to communicate to employees before and during internal audits;
• Guidance concerning the anti-discrimination mandate;
• Procedures about correcting errors; and
• Other inadequacies that may be found on the Form I-9 and how to address errors related to E-Verify queries.

Publication of this guidance is part of a six-month plan by the Interagency Working Group for the Consistent Enforcement of Federal Labor, Employment and Immigration Laws, which seeks to improve coordination among agencies that regulate labor, employment, and immigration law.

U.K. Citizens Now Eligible for Global Entry Program

The U.S. Customs and Border Protection (CBP) and the U.K. Border Force officials have announced that U.K. citizens are now eligible to register for the Global Entry Program, Trusted Traveler Network. The Program permits expedited clearance for low-risk travelers at U.S. and other international airports to facilitate travel. U.K. travelers eligible for Global Entry will also be able to use the Transportation Security Administration (TSA) Pre-Check program.

The Program went into effect December 3, 2015. To participate, U.K. citizens may apply through the U.K. Home Office website and pay a processing fee. If approved, the applicant receives a “UK Access Code,” which the applicant must enter when applying for Global Entry with CBP. U.S. and U.K.  Border Officials are hopeful that this expansion of the Program will enhance security goals and better facilitate travel between both countries.

UPDATE: L-1B Denial Rates Remain High According to USCIS Statistics

Similar to a previous report, the U.S. Citizenship and Immigration Services (USCIS) published data revealing that L-1B denial rates remain high throughout fiscal year 2015. L-1 nonimmigrant visas enable companies to transfer managers and specialized knowledge employees to the United States. These employees must have worked for the company abroad for least one year out of the previous three years.

Published December 4, 2015, USCIS reported a total of 3,446 denials out of the 13,626 L-1B petitions received and 2,116 petitions still pending adjudication.

EIG can proudly report that we have a 100% approval rate for blanket petitions and a 96% approval rate for individuals filed with USCIS.

U.S. House to Vote on Appropriations Bill Affecting Several Immigration Programs

The U.S. House of Representatives is expected to vote today, December 18th, on an end of year spending bill that will affect a number of immigration programs. The bill contains multiple immigration provisions including doubling visa petition fees for employers of H-1B and L-1 nonimmigrants. If this bill is passed, initial H-1B visa petition fees will increase to $4,000 and L-1 visa petition fees will increase to $4,500. The bill would also require payment of fees for extension petitions. However, visa petition fees will only apply to employers with 50 or more U.S. employees of whom more than 50% are in H-1B or L-1 status. If passed, these changes would remain in effect until September 30, 2025.

Additionally, the funding bill includes the “Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015”, which the House passed in early December 2015. These provisions aim to increase security in the Visa Waiver Program due to recent terrorist attacks. Measures include: barring certain individuals from participating in the program, imposing stricter eligibility criteria and information-sharing obligations on participating countries, and requiring the Department of Homeland Security to enhance the Electronic System for Travel Authorization.

The bill would also reauthorize a number of immigration programs through September 30, 2016 that were scheduled to expire. These programs include the EB-5 Immigrant Investor program, E-Verify, the Special Immigrant Religious Worker Program, and the Conrad 30 Waiver Program for foreign doctors.

Proposed U.S. Senate Bill Aims to Overhaul H-1B Visas and Eliminate OPT

U.S. legislators continue to be active in attempts to reform the H-1B program. The “American Jobs First Act” – a Senate bill introduced by U.S. Senators Ted Cruz and Jeff Sessions – would restrict an employers’ use of the H-1B visa Program by setting a salary threshold of $110,000 for H-1B employees and raising other minimum criteria. This is a separate proposed bill from the one previously reported, which was also co-sponsored by Senator Sessions.

The proposed “American Jobs First Act” also aims to eliminate the Optional Practical Training (OPT) program for foreign students. In addition to new salary requirements, the bill would raise the H-1B eligibility criteria to require a doctorate or post-doctorate degree and two years of work experience. It would also require individuals holding undergraduate or master’s degrees to have a minimum of ten years of work experience. Candidates with doctorate or post-doctorate degrees from universities in the U.S. would be given priority.

Additionally, the bill would require employers to attest that they have recruited U.S. citizens and lawful permanent residents for the jobs and that they will not displace U.S. workers with nonimmigrant workers. In order to boost transparency, employers would be required to disseminate LCA filings to all of their employees and publish them online. In addition, the bill would broaden the Department of Labor’s investigative authority and increase penalties for employer violations such as: criminal prosecution for failure to comply with new recruitment obligations, fines up to $100,000 per violation, and bars of five to ten years from applying for H-1B visas.

Under this proposed bill, foreign students with F-1 status would not be allowed to work, multinational employers would no longer be able to file blanket L-1 petitions, and the Diversity Visa program, which grants 55,000 green cards to individuals from countries with low immigration rates to the U.S., would be terminated.