FBT Immigration Update: November/December 2016

December 7, 2016
Legal update

Impact of the 2016 presidential election

As President-elect Trump made immigration a major campaign issue, it is very likely that we will see changes to the current U.S. immigration system. Unfortunately, we can only speculate now on what changes may occur. We will keep employers updated as the situation develops and we gain more clarity.

New Form I-9 must be used starting January 22, 2017

After a long wait, USCIS finally published the new Form I-9, which must be used after January 22, 2017. Until that date, employers have the option of using the March 8, 2013 version. The new form, which incorporates several “smart” features, should appear more user-friendly to employers. The “smart” features include the use of drop-down menus, instantaneous error-checking, and prompts for pop-up instructions for all fields. While the new Form I-9 may be completed on a computer to take advantage of these changes, it is not to be treated as an electronic Form I-9. Therefore, employers that do not utilize electronic Form I-9 and related procedures, must continue to print, sign, and store and retain each Form I-9. Also, the new Form I-9 does not communicate with the E-Verify system, requiring employers registered with E-Verify to retype the information from the form into the system.

In addition to the changes mentioned above, the form does contain several substantive changes:

USCIS issues final rule on changes to employment-based immigration system

After first releasing a proposed rule in December 2015, USCIS recently issued a final rule that will make significant changes to the employment-based immigration system, effective January 17, 2017. Over 15 years ago, two major laws were enacted that dramatically changed the employment-based immigration system: the American Competitiveness in the Twenty‑First Century Act of 2000 (AC21) and the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA). However, many of the main features of these laws were defined by policy memoranda and not implemented through the formal rulemaking process. The final rule not only brings the regulations in line with current policy, but also implements new changes affecting both the nonimmigrant (temporary) and immigrant (permanent) visa processes. This update will focus on the latter.

While the final rule is set to take effect on January 17, 2017, there has been some speculation that even final rules implemented before President-elect Trump takes office could be undone through the Congressional Review Act (CRA). The Congressional Research Service recently published a memorandum on November 17, 2016, outlining why the CRA may gain more prominence in the next Congress and administration. We will monitor the situation closely and keep employers updated if we sense that the CRA could be utilized to alter the final rule discussed above.

USCIS filing fees will increase on December 23, 2016

Employers should be aware that USCIS filing fees will increase on December 23, 2016, by a weighted average of 21 percent. As USCIS made clear in the recently finalized rule, the last time the fees were adjusted was November 23, 2010, and the current fees do not cover the full cost of services provided.

Employers may review the final rule to see all the fee increases, but below are the increases for the more popular forms/processes:

If employers are in the process of preparing petitions or applications, they may want to try to file affected petitions or applications before December 23, 2016, to avoid the fee increases.

FY2018 H-1B cap opens April 1, 2018

On April 1, 2017, USCIS will begin to accept FY2018 H-1B petitions. While that is several months from now, employers should begin to evaluate whether it should sponsor current employees or potential new hires, specifically those in F-1 status, L-1 status that are approaching the maximum time allowed, or TN status that intend to obtain permanent residence.

The H-1B cap remains at 65,000, and the first 20,000 petitions filed by foreign nationals with at least a U.S. master’s degree will continue to be exempt from the cap. As has been the case since 2013, it is extremely likely the H-1B cap will be exceeded during the first five business days starting April 1, requiring USCIS to resort to a lottery. Under last year’s FY2017 cap, USCIS received approximately 236,000 cap-subject petitions during the first five business days beginning April 1, 2016. When a lottery is triggered, USCIS will include all petitions received during the first five business days.

In the coming months, USCIS should update its annual H-1B cap page for the current cap season (FY 2018), which employers should review for guidance and tips. For now, employers should identify employees or potential new hires that will require sponsorship and begin to take steps so that an H-1B petition can be filed April 1 or no later than the first five business days starting April 1.

New app created to help workers fight violations of wage and hour laws

Several union groups have developed and launched a new app, Jornaler@App, aimed at helping day laborers properly track time in an effort to step up enforcement of wage and hour laws and ensure that day laborers, a group believed to include some undocumented immigrants, as well as permanent residents and citizens, are properly paid for the work they perform. According to statements from the AFL-CIO, the app not only allows individuals to track their time worked (similar to an app created and distributed by the U.S. Department of Labor), but also collects data on specific employers and allows individuals to share that data amongst each other. Federal wage and hour laws apply equally to undocumented workers as well as permanent residents and citizens.