2019 Summer Immigration Updates Employers Need to Know
High Price To Pay for Failing to Pay Required Wages
Following an investigation by the Department of Labor’s Wage and Hour Division, an American employment service company agreed to pay $1.1 million in back wages to 594 H-1B employees. The investigation found that Populus Group, based in Troy, Michigan, failed to pay H-1B employees, including many highly-skilled IT professionals, the required wages when worksites were shut down during the holidays. The company is also required to review past and current payroll records to ensure it is not committing other violations in the payment of H-1B workers.
The H-1B category allows American businesses to employ foreign workers in specialty occupations, such as software developers. The law requires that “H-1B workers must be paid the required wage rate for all nonproductive time caused by conditions related to employment, such as lack of assigned work, lack of a permit, or studying for a licensing exam.”
Premium Processing Now Available for Remaining H-1B Petitions
As of June 10, 2019 the U.S. Citizenship and Immigration Services (USCIS) began accepting filings to upgrade all remaining FY 2020 H-1B cap-subject petitions to premium processing. As discussed in a previous update, USCIS had previously announced that premium processing would be offered in a “two-phased” approach during the FY 2020 cap season. The first phase opened premium processing to H-1B requests for change of status, and premium processing for these requests remains available.
This second phase makes premium processing available for H-1B cap cases where the beneficiary requested consular notification.
New Zealand Added to Countries Qualified for E-1 and E-2 Treaty Visas
As of June 2019, New Zealand citizens are now eligible to apply for E-1/E-2 trade and investor visas. This change is the result of implementing the Knowledgeable Innovators and Worthy Investors (KIWI) Act, which passed in August 2018.
The E-1 trade visa is available to New Zealand citizens who desire to come to the U.S. to engage in substantial trade. To qualify for the E-1 trade visa, you must meet the below requirements:
- the applicant must be a citizen of New Zealand;
- the trading firm for which the applicant is coming must have the nationality of the treaty country;
- international trade between the U.S. and New Zealand must be “substantial;”
- the trade of the U.S. enterprise must be principally between the U.S. and New Zealand; and
- the applicant must either be employed in a supervisory capacity or possess a highly specialized skill essential to the efficient operation of the firm.
The E-2 investor visa is available to New Zealand citizens who have invested substantial capital in a U.S business. To qualify for the E-2 investment visa, you must meet the following requirements:
- the investor, either a person, partnership, or a corporate entity, must have New Zealand citizenship;
- the investment must be substantial, and the funds must be “irrevocably” committed;
- the investment must also be a non-marginal investment in a real operating enterprise,
- the funds must be at risk in a commercial sense, and the investor must have control of the funds; and
- the investor must be coming to the U.S. to develop and direct the enterprise.
The application process will be initiated online, and the applicant will be prompted to mail in all relevant documentation after successfully completing the online process. The final interview, however, will occur in person at the consulate in Auckland, New Zealand. If an E-1 or E-2 visa is granted, it will be valid for five years.
DHS Updates APEC Business Travel Card Program Regulations
On June 14, 2019, the Department of Homeland Security (DHS) updated the regulations to the U.S. Asia-Pacific Economic Cooperation (APEC) Business Travel Card Program to conform with the APEC Act of 2017. The most significant change is the removal of the sunset provision, which makes the program ongoing.
APEC is a 21 member economic forum whose main goal is to support economic growth in the Asia-Pacific region by facilitating a favorable business environment and promoting regional connectivity. The APEC Business Travel Card (ABTC) program was established by the APEC Act of 2011. It permits qualified U.S. business travelers to access simple, streamlined entry procedures at participating foreign APEC member airports. The recent DHS update to the ABTC regulations makes the program ongoing beyond the September 2018 expiration date.
To qualify for the ABTC program, applicants must:
- be a U.S. citizen;
- have no criminal convictions;
- hold a valid passport;
- be engaged in business that requires frequent short-term trips within the APEC region; and
- be a member of a U.S. Customs and Broder Protection (CBP) Trusted Traveler Program
Senior government officials may also qualify for the program, but the regulation specifically excludes professional athletes, news reporters, entertainers, musicians, artists, and similar occupations.
To apply for the ABTC program, applicants must go to the Trusted Traveler Program website. If the applicant satisfies the requirements, DHS will grant conditional approval. Applicants must then visit a CBP Trusted Traveler enrollment center for signature collection.
USCIS May Require Naturalization and Adjustment of Status Interviews in Different Jurisdictions
On June 17, 2019, USCIS announced the implementation of a national strategy to decrease varying processing times. These changes may require applicants for both Form N-400, Application for Naturalization, and Form I-485, Application to Register Permanent Residence or Adjust Status to travel to a different jurisdiction for their interviews.
Application processing has been slower due to a higher-than-expected increase in volume, and the increase has affected certain field offices disproportionately. The USCIS aims to alleviate the delays by distributing interviews more evenly among field offices. However, that may require that some interviews take place outside of the typical jurisdiction for an applicant’s residence. For example, an applicant for Adjustment of Status in Cincinnati may be required to travel to the USCIS Columbus, Ohio field office, if the USCIS Cincinnati field office does not have the capacity to handle the large number of interviews. However, all biometric appointments will still occur at the nearest application support center based on the applicant’s address listed on the application forms.
USCIS will No Longer Accept Form I-407 Abroad After July 1, 2019
USCIS announced on June 17, 2019, that it will no longer accept Form I-407, Record of Abandonment of Lawful Permanent Resident Status, at international field offices. Form I-407 notifies UCIS that an individual is voluntarily abandoning their status as a lawful permanent resident of the United States.
In March 2019, the USCIS Director announced plans to shut down all international offices and shift duties to domestic offices and U.S. Department of State embassies and consulates. Accordingly, USCIS no longer accepts Form I-407 at international USCIS offices as of July 1, 2019. Instead, green card holders voluntarily abandoning their status must mail Form I-407 to:
USCIS Eastern Forms Center
Attn: I-407 unit
124 Leroy Road
P.O. Box 567
Williston, VT 05495
Once USCIS accepts, records and acknowledges the I-407 abandonment, the individual no longer needs to maintain residency requirements in the U.S. An individual that renounces lawful permanent residence in the U.S. may still be liable for paying their respective expatriation taxes if they qualified as a long-term resident. Although abandonment of legal permanent residency status is irrevocable, an individual may still immigrate to the U.S. in the future. However, that individual will need to begin the process anew and apply through the regular application process.
Form I-129 Petitions will be Rejected by USCIS if Missing Name & Address Information
As of August 5, 2019, USCIS announced that it will begin rejecting petitions that do not include the petitioner’s or applicant’s name and primary U.S. office address in Part 1 of Form I-129. USCIS currently rejects Form I-129 petitions for several reasons, including lack of signature, incorrect fees, or an unauthorized third-party signature on behalf of the petitioner.
Rejected I-129 petitions may be refiled once the required information is complete. However, a rejected petition could still cause problems. For example, if an employer relied on the delivery of an H-1B petition in order to start employment under H-1B portability, and the H-1B petition is rejected, then the employee would not have the proper work authorization. He or she would need to cease working for the new employer immediately until such time that the petition is refiled. Another example with more dire implications is when an H-1B beneficiary files an H-1B extension within days of their current status expiration date. Normally, the H-1B beneficiary would rely on the pending, timely filed H-1B to remain in the U.S. and continue working. However, if the H-1B extension filing is rejected then the H-1B beneficiary would be out of H-1B status and would most likely need to stop working and depart the U.S. until a new H-1B is approved.
New Restrictions for U.S. Citizens traveling to Cuba
On June 4, 2019, the U.S. Treasury Department announced new travel restrictions for U.S. citizens visiting Cuba. The new rules target the primary ways for U.S. nationals to travel to Cuba, especially cruise ship travel under the popular “people-to-people” category. The now banned “people to people” category served as the main legal basis for cruise ships traveling to Cuba, effectively making cruise ship travel to Cuba “illegal” according to the Cruise Lines International Association (CLIA). However, travelers who booked a trip prior to June 5 under the “people to people” category will still be able to travel to Cuba.
Travel to Cuba under the “people-to-people” category became popular after the previous administration loosened sanctions and travel restrictions with Cuba in 2016. It allowed U.S. citizens to travel to the nearby island for educational and cultural purposes. The CLIA issued a statement noting that its members would immediately eliminate all Cuba destinations from their itineraries.
According to the U.S. Embassy in Cuba, U.S. citizens can still travel to Cuba by securing a general license under one of the following twelve categories: family visits; official business of the U.S. government, foreign governments, and certain intergovernmental organizations; journalistic activity; professional research and professional meetings; educational activities; religious activities; public performances, clinics, workshops, athletic and other competitions, and exhibitions; support for the Cuban people; humanitarian projects; activities of private foundations or research or educational institutes; exportation, importation, or transmission of information or informational materials; and certain authorized export transactions.