Blog Posts
Labor and Employment
ICE’s Updated Form I‑9 Inspection Guidance: What Employers Need to Know
For more than three decades, Form I‑9 has been a cornerstone of U.S. employment eligibility verification. Every employer—regardless of size, industry, or location—is required to complete and retain a Form I‑9 for each employee hired after November 6, 1986. While the form itself has evolved over the years, the underlying obligation has remained constant: employers must verify identity and work authorization, maintain accurate records, and be prepared for inspection by U.S. Immigration and Customs Enforcement (ICE). But in 2026, ICE issued updated inspection guidance that significantly changes how the agency evaluates Form I‑9 errors. These updates don’t alter the form or the law, but they do reshape the compliance landscape. Many mistakes that were once considered minor or “technical” are now treated as substantive violations, meaning they can trigger immediate fines with no opportunity for correction during an audit. For HR leaders, compliance teams, and hiring managers, understanding these changes, and adjusting internal processes accordingly, is essential. How ICE I‑9 Inspections Work ICE conducts thousands of Form I‑9 inspections each year. When an employer receives a Notice of Inspection (NOI), they typically have three business days to produce their I‑9s and supporting documentation. ICE then reviews the forms for accuracy, completeness, and compliance with federal regulations. Historically, ICE distinguished between technical or procedural violations, which employers could correct within 10 business days, or substantive violations, which were immediately subject to penalties. This distinction mattered. A missing date, an incomplete field, or a minor oversight could often be corrected during the audit window, reducing or eliminating fines. The new guidance changes that calculus. What’s New in ICE’s Updated Fact Sheet ICE’s updated fact sheet expands the list of substantive violations, errors that cannot be corrected once an audit begins. These include many issues that employers previously treated as minor administrative mistakes. Examples of errors now considered substantive: Missing employee date of birth in Section 1 Missing or incomplete employer attestation information in Section 2 Missing date of hire Missing document title, issuing authority, or expiration date—even if a copy of the document is on file Missing rehire date in Supplement B Improper use of the Spanish‑language Form I‑9 outside Puerto Rico Deficiencies in electronic I‑9 systems, such as incomplete audit trails or signature issues These are critical as they cover all parts of the form including areas completed by the employer and employee. ICE also clarified that employers cannot rely on document copies to cure missing information. If the form itself is incomplete, the violation stands. Why This Matters: Increased Penalties and Higher Risk The consequences of these changes are significant. Substantive violations can result in fines ranging from hundreds to thousands of dollars per error. For employers with large workforces or high turnover, cumulative penalties can escalate quickly. Accordingly, industries at heightened risk include: the hospitality business, retail stores, construction companies, various forms of manufacturing businesses, certain healthcare providers, staffing and recruiting agencies, and federal contractors. These sectors often rely on decentralized hiring, multiple onboarding locations, or large volumes of I‑9s, conditions that increase the likelihood of errors. ICE’s updated guidance signals a stricter enforcement posture and a reduced tolerance for administrative mistakes. Employers can no longer assume that routine errors will be fixable during an audit. What Employers Should Do Now Conduct a proactive internal I‑9 audit. Review all existing I‑9s — especially older forms completed under prior guidance — to identify and correct errors before ICE ever requests them. All covered I-9s that could be audited include terminated employees for the last three years, which underscores how critical record keeping is for I-9 compliance. Employers should work with immigration compliance counsel to ensure corrections are made properly. Strengthen onboarding and I‑9 completion procedures. Ensure HR staff and authorized representatives understand the new classifications and the importance of complete, accurate entries in all sections of the form. Real-time review of the completion of form I-9 is recommended as substantive violations are incorporated into sections completed by the employee as well as the employer. Review your electronic I‑9 system. Confirm that your system meets DHS requirements for: Audit trails Electronic signatures Data integrity Proper indexing and retrieval Auto‑population features should be reviewed to ensure they do not create incomplete or inaccurate fields. Retrain all I‑9 preparers. Training should cover: Proper document review Accurate recording of hire dates and document details Correct use of the preparer/translator section Proper reverification procedures Ensure proper use of alternative verification procedures. If your organization uses DHS‑authorized remote verification, confirm that all eligibility requirements, such as E‑Verify participation, are consistently met. The Bottom Line ICE’s updated Form I‑9 inspection guidance represents a meaningful shift in enforcement. Employers now face higher stakes and less flexibility when errors occur. The organizations that invest in strong I‑9 practices today through audits, training, and system improvements will be far better positioned to withstand increased scrutiny. In the current environment, proactive compliance is not optional. It’s essential risk management. For more information visit: Form I-9 Inspection Under Immigration and Nationality Act § 274A | ICE
May 5, 2026
Immigration Law
Understanding the EB 5 Program’s Critical Deadlines: What Investors Need to Know
The EB‑5 Immigrant Investor Program continues to be one of the most reliable pathways for families seeking permanent residency in the United States through investment. But with the passage of the EB‑5 Reform and Integrity Act (RIA), timing has become more important than ever. Two key dates—September 30, 2026, and September 30, 2027—now shape the strategic landscape for investors. Understanding the difference between these deadlines can help you protect your immigration process, secure your place in line, and avoid unnecessary risk. History of the EB‑5 Immigrant Investor Program The EB‑5 Immigrant Investor Program was created by Congress in 1990 to stimulate the U.S. economy through foreign investment and job creation, offering eligible investors and their families a path to permanent residency in exchange for investing in a new commercial enterprise that creates at least 10 full‑time U.S. jobs. In 1992, Congress introduced the Regional Center Program, allowing investors to participate in pooled, federally designated projects and count indirect job creation, which dramatically expanded the program’s reach and popularity. Over the decades, EB‑5 has undergone significant reforms, most notably the 2022 EB‑5 Reform and Integrity Act, which modernized oversight, increased investment thresholds, and introduced strong integrity measures. September 30, 2026, Grandfathering Deadline Under the RIA, any EB‑5 Regional Center petition filed on or before September 30, 2026, receives powerful “grandfathering” protection. This means: USCIS must continue processing your petition even if the EB‑5 Regional Center Program expires in the future Your case remains valid under the rules in place at the time of filing You are shielded from political uncertainty, program lapses, or regulatory changes that could otherwise disrupt your immigration process For many families, this date represents the safest window to file. Submitting an I‑526E petition before the 2026 deadline locks in today’s requirements and ensures your case cannot be altered by future program interruptions. September 30, 2027, Program Authorization Deadline The EB‑5 Regional Center Program is currently authorized through September 30, 2027. Investors may still file after the 2026 grandfathering deadline and before the 2027 program expiration. However, filings made between October 1, 2026, and September 30, 2027, do not receive the same guaranteed protection. If Congress fails to reauthorize the program after 2027: Petitions filed after September 30, 2026, may be paused or left unprocessed Investors could face delays, uncertainty, or the need to refile under new rules Investment thresholds or program requirements could change In short, you can file until 2027, but only filings made by 2026 are guaranteed protection. Why Investors Should Act Before 2026 Filing before the September 30, 2026, grandfathering deadline offers several advantages: Guaranteed case processing, regardless of future political developments Earlier priority dates, which matter for investors from backlogged countries Protection from future rule changes, including potential increases in investment amounts Reduced risk of delays caused by last‑minute filing surges Given the long‑term nature of the EB‑5 process, securing stability early is often the most prudent choice. Investment total increases and potential fee increase in 2027 January 1, 2027, is another critical date for potential EB-5 investors, as at that point, the USCIS can increase the investment totals under RIA. In addition, new fees and changes to the program are also possible. What This Means for You If you are considering the EB‑5 program, the next 18–24 months represent a uniquely important window. Filing before the 2026 deadline provides the strongest legal protections available under current law. Filing after that date remains possible but carries more uncertainty. Whether you are just beginning your EB‑5 journey or evaluating project options, now is the time to understand your timeline and prepare your strategy.
April 16, 2026
Immigration Law
The Gold Card Gamble: High Stakes for U.S. Residency
The United States Citizenship and Immigration Service has released the brand-new form I-140G – the Immigrant Petition for the Gold Card Program. This form can be used by applicants who have previously registered on www.trumpcard.gov. The form also requires a $15,000 filing fee per applicant. The USCIS also explains the “gift” requirement for the filing. Individuals filing an I-140G must provide a gift of $1 million per applicant. The per-person rule is a significant increase in the program’s anticipated costs since its initial inception. While more details of the process have emerged, significant questions and concerns regarding the program remain. What We Know About the Gold Card The Gold Card offers a $1 million payment to the United States in exchange for legal permanent residence. The 24-page I-140G form lays out the process for potential Gold Card applicants, including biographic information and the usual attestations regarding potential grounds of inadmissibility. The form includes entirely new sections on the applicant’s source of funds and net worth. The source-of-funds instructions lack the complexity of EB-5 applications and are likely to be subjected to additional screening. Further, the form includes a section for corporations to complete if they are the sponsoring entity. Lastly, the G140 form requires a potential recipient to indicate if they are seeking an immigrant visa under one of two categories: the first preference alien of extraordinary ability, or the second preference alien of exceptional ability seeking a National Interest Waiver (NIW). This path was outlined early as the proposed mechanism for gold card applications to be counted with annual immigrant visa limitations imposed by the Immigration and Nationality Act. The form and its instructions state that the entire process will be completed online with biometrics required for all applicants, even if abroad. What We Don’t Know While a form is now available, details are still lacking. Vague instructions regarding filing the case online after paying the substantial filing fee are provided, with no evidence that the online portal at MyUSCIS can actually process the cases. No timelines or processing details are provided. The Department of Homeland Security has indicated that proposed rulemaking for the employment-based immigrant petitions is scheduled for early 2026. It is possible that clarity and the creation of the regulatory framework for the gold card will be included. Significant questions remain regarding the actual program. For example, is the program authorized under the Immigration and Nationality Act? That question is still up in the air. There are some major issues with the current proposed format, as the Executive order that created the program differs from the application process as described. In addition, the authority of the USCIS to create programs is limited by its mandate from Congress. This means that, without a change in the law (not regulation) new programs cannot be created that materially impinge on existing programs such as the EB-5 investment visa. Given the major questions relating to the legal underpinning of the program, as well as the technical details of its processing, any potential applicant should consider whether to proceed very carefully. For example the stated “nonrefundable” filing fee of $15,000 per applicant would be at risk, should the program be found in violation of the will of Congress, not to mention the gifted funds should an applicant progress that far. The examination of the potential risk for loss here is critical, especially when compared to existing programs such as the EB-5 investment visa, which also involves risks but provides for a repayment of investment funds to the intending immigrant.
December 23, 2025
Labor and Employment
Government Shutdown Pauses E-Verify Operations, But I-9 Rules Still Apply
The government shutdown has closed the E-Verify program, meaning employers cannot access their E-Verify accounts. As a result, enrollment, creation of cases, running reports, and terminations are all suspended. Additionally, all customer service channels are closed. Temporary Policies The “three-day rule” for the creation of E-Verify cases is suspended, but the I-9 rules and verification requirements continue. This means that employers must still complete Form I-9 no later than the third business day after an employee starts work for pay and comply with all other Form I-9 requirements. Employers will need to assist employees with completing a paper version of Form I-9, and for any employee whose E-Verify+ cases were “Pending Employee Response” or “Ready for Review” in the E-Verify system. Any pending E-Verify mismatches during the shutdown will not accrue time towards deadlines. If a SSA mismatch has occurred, employees will have to wait until E-Verify is back in operation to correct their mismatch at the SSA. Employers are advised they may not take any adverse action against an employee whose E-Verify case is “Interim case status.” Federal contractors are advised to contact contracting officers regarding deadlines.
October 6, 2025
Labor and Employment
Visa Uncertainty: The Presidential Proclamation on H-1Bs and a $100,000 for New Petitions
On September 19, 2025, the Trump administration issued a Presidential Proclamation “Restriction on Entry of Certain Nonimmigrant Workers,” effective at 12:01 a.m. September 21, 2025. The Presidential Proclamation specifically targets H-1B Visa Holders who are outside of the United States. Any H-1B visa holder attempting to enter the United States after the effective date must be accompanied by proof of payment of an additional $100,000 fee. This action created panic among large H-1B employers and employees as employees scrambled to return to the United States before the effective date and time. The Administration, through United States Citizenship and Immigration Services (USCIS), U.S. Customs and Border Protection (CBP), and the Press Secretary’s office, had to “clarify” that their rule was only effective for new H-1B petitions. USCIS Statement attempting to clarify the situation: This proclamation only applies prospectively to petitions that have not yet been filed. The proclamation does not apply to aliens who: are the beneficiaries of petitions that were filed prior to the effective date of the proclamation, are the beneficiaries of currently approved petitions, or are in possession of validly issued H-1B non-immigrant visas. All officers of the United States Citizenship and Immigration Services shall ensure that their decisions are consistent with this guidance. The proclamation does not impact the ability of any current visa holder to travel to or from the United States. Accordingly, individuals in H-1B status in the United States are unaffected. The vast majority of H-1B cases pending for this cap year will also not be affected. Individuals traveling outside of the country with valid H-1B visas or seeking to obtain renewal of an H-1B visa, will also be unaffected. Instead, the focus will be on certain key groups. The first major group will be the new H-1B cap applicants in 2026. These applicants will be required to demonstrate payment of a $100,000 fee before filing their petition with the USCIS. Also, the effective date of the order will directly impact cap-exempt employers looking to hire new workers in H-1B status. These employers tend to be in research, medical, academia, and related fields. It should be noted that there is currently no guidance on how to make the fee payment. Exemptions are also built into the order, but they are not specific. Currently, it appears that they may exist for an individual, a company, or potentially a whole industry, if DHS determines that it is in the national interest of the United States and does not pose a threat to the security or welfare of the United States. Crucially, the Proclamation does not address whether the fee and restriction apply to cap-exempt H-1B workers outside of the U.S., who are typically exempt from the majority of H-1B fees. What should employers do? We currently believe that international travel will not be affected for the vast majority of H-1B visa holders. We recommend all non-immigrant visa holders consult with counsel before international travel, given the current climate. Employers and individuals looking to apply in the 2026 H-1B lottery or seeking employment with a Cap Exempt H-1B employer should seek legal advice immediately. How long is this effective for? The Presidential Proclamation is effective for a period of 12 months. What Happens in the future? The proclamation is likely to face legal challenges as it directly contradicts the will of Congress in the issuance of the H-1B visa program and its implementing regulations, including the introduction of application fees without notice and comment. Entry of nonimmigrants, however, is controlled by the executive branch, so potentially a modified version of this proclamation will continue.
September 22, 2025
Labor and Employment
Department of State Limits Nonimmigrant Visa Applications
On Saturday, September 6th, 2025, the Department of State announced that, effective immediately, all applicants for U.S. nonimmigrant visas (NIV) should schedule their visa interview appointments at the U.S. Embassy or Consulate in their country of nationality or residence. Individuals who currently have appointments booked are advised that their appointments “generally will not be cancelled” – however, no guarantee is made that their NIV will be issued. This policy changes the current guidance for so-called “third country nationals,” i.e., individuals who apply for a visa outside of their home country. It has been a long-standing policy that individuals can apply for an NIV anywhere in the world. Some embassies have pushed back on third-country nationals due to the overwhelming number of requests. Some examples include Canada, Mexico, and smaller consulates such as the Bahamas. This change drastically affects the visa options for individuals from countries with lengthy wait times and delays in visa processing. Indian nationals can no longer avail of interview waivers, and the current NIV wait times of two-three months are set to dramatically increase. This change underlines the importance of planning ahead for travel and understanding all potential risks. Individuals and employers should carefully consider the implications of travel if an individual would be required to travel to another country for an extended period. Finally, individuals with current visa appointments should consult with an immigration attorney to assess the risks of attending their visa interview. What is residency for NIV purposes? No further guidance is provided on what NIV applicants should provide to demonstrate residence in the country in which they are applying. Accordingly, applicants should carefully assess the totality of evidence that they can provide to an Embassy ahead of their appointment. It is advisable to have as much evidence as possible of residency at the interview to avoid any lengthy administrative processing. Exceptions to the rule? The current guidance states that “rare exceptions may also be made for humanitarian or medical emergencies or foreign policy reasons.” With no further guidance immediately available, it is safe to assume that exceptions will be very limited. Typically, humanitarian exceptions can include family unity reasons, as well as deaths or illness within a family, so applicants can potentially advocate for an exception on these grounds. The risks are substantial as the applicant may only be informed that their visa application is not eligible for processing at the interview. Accordingly, caution is advised when exploring exceptions in this area. But what if there is no US Embassy in my home country? Further guidance was provided for NIV applicants where NIV processing is suspended in their home country; they should make an appointment at their designated NIV consulate or embassy: NATIONAL OF DESIGNATED LOCATIONS(S) Afghanistan Islamabad Belarus Vilnius, Warsaw Chad Yaoundé Cuba Georgetown Haiti Nassau Iran Dubai Libya Tunis Niger Ouagadougou Russia Astana, Warsaw Somalia Nairobi South Sudan Nairobi Sudan Cairo Syria Amman Ukraine Krakow, Warsaw Venezuela Bogota Yemen Riyadh Zimbabwe Johannesburg
September 8, 2025
Labor and Employment
Travel Bans Are Back – Are Exemptions Possible?
Travel bans are back, with an initial list of 19 countries, and that list may be expanded to include an additional 36 nations. This latest round of travel restrictions find their basis in Presidential Proclamation 10949 “Restricting the Entry of Foreign Nationals To Protect the United States From Foreign Terrorists and Other National Security and Public Safety Threats” which has put in place visa and entry restrictions on citizens of Afghanistan, Burma, Chad, Republic of Congo, Equatorial Guinea, Eritrea, Haiti, Iran, Libya, Somalia, Sudan, and Yemen. The proclamation also adds additional suspension of citizens from Burundi, Cuba, Laos, Sierra Leone, Togo, Turkmenistan, and Venezuela as visitors or students. Officials will consider additional restrictions for Egypt. Currently the administration is considering additional restrictions to a larger list of countries including: Angola, Antigua and Barbuda, Benin, Bhutan, Burkina Faso, Cabo Verde, Cambodia, Cameroon, Cote D'Ivoire, Democratic Republic of Congo, Djibouti, Dominica, Ethiopia, Egypt, Gabon, The Gambia, Ghana, Kyrgyzstan, Liberia, Malawi, Mauritania, Niger, Nigeria, Saint Kitts and Nevis, Saint Lucia, Sao Tome and Principe, Senegal, South Sudan, Syria, Tanzania, Tonga, Tuvalu, Uganda, Vanuatu, Zambia, and Zimbabwe. See Trump administration weighs adding 36 countries to travel ban, memo says | Reuters. History Repeating This is not the first set of travel restrictions that we have seen implemented. During the first term of the Trump administration, several travel bans were implemented for a variety of reasons, culminating with COVID-19 travel restrictions. What do the prior travel bans tell us about this latest proclamation? The administration has expanded its travel restrictions to include a broader set of countries, potentially including those that benefit from citizenship-by-investment programs, as well more than 20 African countries. The National Interest Exemption is Back Previous travel bans had allowed for travel in support of specific areas of national interest (NIE), which included crucial infrastructure. Authorities have reinstated the NIE as an option for obtaining an exemption from the travel restrictions. The wording of the current proclamation appears to severely limit NIEs in terms of requirements and processing. The “case by case” language suggests that NIEs will be significantly harder to obtain for individuals affected by the current restrictions. There is currently no procedure for advance application for NIEs; accordingly, they must be requested at an embassy appointment. Applicants must also qualify for the visa they are seeking before the NIE step, which raises the visa interview stakes. Accordingly, significant preparation is recommended for travelers affected by these bans, particularly in terms of visa qualification and NIE qualification. Finally, applicants must be prepared for significant administrative processing as NIEs are reviewed. Applicants seeking NIEs for visa issuance are recommended to consult immigration counsel to conduct an in-depth review of qualifications and supporting evidence. With the 2026 World Cup approaching, we can expect guidance on NIEs to evolve in the coming months.
July 18, 2025
Immigration Law
Top Mistakes That Jeopardize Your Green Card—and How to Avoid Them
As we are currently in a time of extensive scrutiny of immigration actions, individuals must understand their status, rights and obligations. Legal Permanent Residents possess many protections that nonimmigrants do not have, but must carefully maintain their status. One of the key aspects of maintaining a green card is maintaining an existing “intent” to permanently reside in the United States. This is an issue that comes up with green card holders who move abroad or spend significant time outside of the United States. If the Department of Homeland Security (DHS) has reason to believe an individual does not have the intention to reside in the United States, then they can bring proceedings against the individual to remove their green card. The law and policy are summarized by the U.S. Citizenship and Immigration Services (USCIS) as follows: Permanent Resident Cards become technically invalid for reentry into the United States if the holder is absent from the United States for 1 year or more. U.S. permanent residence status may be considered abandoned for absences shorter than 1 year if the green card holder takes up residence in another country. The first point is technical; if one is out of the country for a year or more, their green card is no longer valid for entry. Customs and Border Protection (CBP) will raise this issue at the Ports of Entry to the United States. It can be waived at entry, but the CBP rarely allow that. Instead, they follow a “hawkish” approach to individuals with absences of a year or longer. It should be noted that legal permanent resident status is protected by law and must be removed by legal proceedings. The second point is where individuals can potentially incur CBP scrutiny through a prolonged periods of absence from the United States. For example, if an individual comes into the U.S. twice a year for several years to maintain their green card, questions may arise about the individual’s intent to reside in the U.S., even though that they were technically compliant. Generally speaking, if a legal permanent resident thinks they will spend more than six months outside the United States, they should talk to an immigration attorney. On May 1, 2025, CBP updated its guidance to legal permanent residents returning to the United States. This policy document states that legal permanent residents who have been out of the country for longer than six months will be subject to new immigration inspection procedures. No further details of these new and increased inspections have been released. See Traveling outside U.S. - Documents needed for Lawful Permanent Residents (LPR)/Green Card holders Certain key actions can automatically raise a question of the green card holder’s intent if they leave the United States, specifically: Clearly manifesting an intent of permanently residing in another country (i.e., applying for long-term status in that country. Green card holders must file US taxes on their global income, and they must file taxes as residents for tax purposes; failure to file resident tax returns can be seen as an intentional abandonment of status. Making statements to CBP or DHS that do not support the green card holders’ assertions that their trips abroad are temporary. Accordingly, green card holders who move abroad temporarily must be diligent in maintaining ties to the United States and take proactive steps to protect their green card. They must realize they are jeopardizing their status by extended time abroad. Returning to the United States once a year will eventually draw the ire of the CBP, and the green card holder can expect to receive progressively more intrusive and sustained questioning upon entry to the United States. Steps that green card holders who live abroad could take to protect their status include the following: Travel with evidence of why your trip outside of the US is temporary – temporary job offer, extended care for a family member, explanations for delays, etc. Continue to file US Income taxes. Maintain a residence in the US. Be diligent in not spending 365 days outside of the United States. Registering with the Selective Service is required. Updating their home address with USCIS via Form AR-11. Obtain a Re-Entry Permit:Re-Entry Permits protects a green card holder’s status for two years upon approval. Although not a guarantee of entry, the Re-Entry Permit is excellent evidence to present to CBP that the individual’s absence abroad is temporary. Re-Entry Permits can be renewed depending on the circumstances that the individual faces. Re-Entry Permits must be applied for in person in the U.S.; Having the USCIS receipt notice as evidence of the application is good evidence to demonstrate to the USCIS. Been out of the country for a year or longer?The safest route is to apply for an SB-1 immigrant visa at your local U.S. Embassy to avoid issues entering the country. Lastly, should an individual face potentially denial of entry to the United States for circumstances beyond their control, they can apply for a returning resident special immigrant visa to ensure they can enter the U.S.
May 20, 2025
Immigration Law
Heightened Scrutiny at U.S. Borders: What Travelers Need to Know
There has been a significant increase in media coverage of travelers subjected to increased scrutiny at ports of entry to the United States. In some cases, individuals have been refused entry and detained until sent back home. Furthermore, U.S. Customs and Border Protection have increased their searches of travelers’ electronic devices upon entry to the United States. Is it considered safe for nonimmigrants and legal permanent residents to travel? Increased scrutiny at ports of entry We are now seeing the impact of the implementation of President Trump’s Executive Action: “Protecting the United States from Foreign Terrorists and other National Security and Public Safety Threats”1. There have been media reports of individuals from NATO Allied countries being detained at border crossings and, in some cases, subjected to expedited removal. Aside from the news, we have seen advanced vetting and security screenings reported at the US border. This vetting has included legal permanent residents and non-immigrants. This vetting is likely to continue and may be introduced at U.S. Consulates in the coming months and in the processing of matters with the U.S. Citizenship and Immigration Service. Is it safe to travel on my green card? Legal permanent residents (LPRs) are provided significant protections and rights similar to those of United States citizens regarding international travel. In the last few months, we have seen an increased scrutiny of LPR travel. Certain fact patterns have come to light, including increased interviews of LPRs with active (even if minor) criminal matters or a history of certain immigration violations. In addition, LPRs who spend significant time outside of the United States and who, in previous years, would be let back without issue if they visited every six months are now subject to harsher scrutiny of their ties to the country. Finally, LPRs from countries floated as soon to be subjected to a travel ban have also faced issues coming into the United States. (See Draft List for New Travel Ban Proposes Trump Target 43 Countries - The New York Times.) In light of the above – is it safe to travel on my green card? The answer is generally yes; however, if you fit into one of the above situations we advise consulting with an immigration attorney immediately. Furthermore, your status may be at risk if you have been outside the United States for longer than six months or even a whole year. Lastly, legal permanent residence may only be taken by a legal process initiated in the immigration court system. Travelers should be exceptionally wary of signing any document that purports to surrender their legal permanent residence at a port of entry. Is it safe to travel on my nonimmigrant visa? Non-immigrant visa holders report increased vetting at ports of entry, and US Customs and Border Protection agents possess the power to deny entry to visa holders. Most nonimmigrant travelers should be prepared for additional questions regarding their status and should carry evidence regarding their status. This could include USCIS petition approval notices, evidence of continued employment, and itineraries for travel. Employment-based non-immigrants should inform their HR of international travel if specific immigration advice is needed. We advise all nonimmigrants who are not confident regarding travel to consult an immigration attorney for guidance. Certain nonimmigrants should be especially vigilant now; this includes J1 and F1 scholars and students. Both visa holders should consult with their school Designated School Official (DSO) regarding their ability to travel and travel with up-to-date evidence regarding their status. Student and Exchange Visitor Information System (SEVIS) termination of student status with little to no warning or evidence has been reported, and affected students should contact their DSO and an immigration attorney immediately. Electronic device searches – what you need to know The United States Customs and Border Protection (CBP) has significant powers of search and seizure at ports of entry to the United States. These powers are part of the “border exemption” to the Constitution's Fourth Amendment and have been upheld by the Supreme Court. (See United States v. Ramsey, 431 U.S. 606 (1977)). This power can be used regardless of the nationality of the traveler. Further, this search power has been used by CBP to search the electronic devices of travelers, which can include their social media. Travelers are advised to be exceedingly careful regarding social media usage and content on their mobile devices. By way of example of this vetting, current administration priorities include extreme vetting of individuals supporting designated terrorist organizations, which includes Hamas and the conflict in Palestine. The only exception to this search power that the courts have upheld is attorney-client privilege. Be calm, be courteous, be contrite The process of additional scrutiny at border crossings can be intimidating and stressful. It is important to remain calm during the process. Traveling with evidence of your status and activities in the United States is a good idea to support your statements to upon entry.
April 25, 2025
Immigration Law
Trump’s $5 Million “Gold Card” Visa: What it Means for EB-5 Investors
President Donald Trump recently announced a proposed “Gold Card” visa, sparking speculation about its potential impact on the EB-5 Immigrant Investor Program. While details remain unclear, this proposal raises important questions for current and prospective EB-5 investors. Here’s what you need to know. What is the “Gold Card” Visa? The Gold Card visa would offer U.S. permanent residency to individuals investing $5 million in the country. The proposed program is modeled after similar international investor visa initiatives, such as Dubai’s Golden Visa. Key details include: Investment Requirement: The program would require a $5 million investment—substantially higher than the EB-5 program’s minimum of $800,000. Pathway to Citizenship: This visa would offer high-net-worth individuals a streamlined route to U.S. citizenship. Potential Economic Impact: The Trump administration aims to attract a million investors, potentially raising $5 trillion in revenue. Geopolitical Considerations: Given that over 60% of EB-5 investors come from China, some speculate this is a strategic response to U.S.-China tensions. Can the “Gold Card” Replace EB-5? Initial reports suggested that the Gold Card visa might replace EB-5. The Commerce Secretary even indicated this intention, while the president hinted that companies could use the Gold Card to purchase legal permanent residence for employees. However, eliminating the EB-5 program is easier said than done: Congressional Authorization: The EB-5 program is authorized by Congress through at least September 30, 2027. Any attempt to dismantle it would require congressional approval, which is unlikely given past legislative support. 2022 EB-5 Reform & Integrity Act: This act reinforced protections for investors, ensuring that those who file before September 30, 2026, will be grandfathered into the current system. Legislative Hurdles: Introducing a new visa category requires congressional approval. Lawmakers benefiting from EB-5 investments in their states may resist any changes that could reduce economic contributions to their regions. Key Challenges and Concerns While the Gold Card visa has captured attention, several uncertainties remain: Realistic Demand: Expecting one million investors to each contribute $5 million seems highly optimistic, given that the EB-5 program has attracted only about 70,000 applicants over the past 30 years. Tax Implications: There is speculation that Gold Card holders might avoid U.S. global taxation, which could raise legal and policy concerns. Coexistence with EB-5: Rather than replacing EB-5, the Gold Card visa is more likely to exist alongside it, targeting a different investor demographic. What This Means for EB-5 Investors The key takeaways for those currently navigating the EB-5 process is that EB-5 remains intact and legally protected. Current EB-5 Investors: Your investment remains secure, and your path to a green card is unchanged. Thanks to legislative safeguards, your petition will continue to be processed. Prospective Investors: If you’re considering EB-5, filing before September 30, 2026, ensures your investment is protected under the program’s grandfathering provisions. The Bottom Line While Trump’s Gold Card proposal has generated interest, its viability is uncertain. The EB-5 program remains a structured and legally protected pathway to U.S. permanent residency. Investors should stay informed but proceed with confidence in EB-5’s stability. For those looking to secure U.S. residency, now is the time to act before the 2026 grandfathering deadline.
March 5, 2025
Immigration Law
What to Expect in the 2025 H-1B Season
The 2025 H-1B Cap Season is upon us, along with a new administration. There will likely be numerous changes at United States Citizenship and Immigration Services (USCIS) regarding policy and regulation, but in the immediate term, let’s take a look at the upcoming H-1B lottery and what we can expect. Increased Application Fee The filing fee for H-1B lottery applications has increased significantly for this cap season, jumping to $215 per application. USCIS increased fees across the board last year and has provided a fee calculator to assist petitioners and applicants: Calculate Your Fees | USCIS. Site Visits and Increased Compliance Recent rule changes at USCIS have expanded compliance requirements for H-1B employers. While site visits have long been a part of the H-1B program, the increase in third-party worksites and remote work has prompted USCIS to adjust enforcement accordingly. Additionally, worksite inspections and stricter enforcement of immigration rules are expected to increase under the new administration. Don’t Forget the H-1B for Entrepreneurs Individuals who own more than 50% of the sponsoring H-1B business can now qualify for H-1B status. These new petitions are limited to an initial 18-month validity period but represent a significant opportunity for entrepreneurs who previously would have missed out on the H-1B lottery. Revisions to H-1B Specialty Occupations Regulatory updates to the definition of “specialty occupation” have been implemented by USCIS, tightening key qualification areas related to the proposed position and the employee’s education. Specifically: Positions requiring a general or nonspecific degree will no longer qualify for H-1B purposes. Individuals with a general degree must demonstrate how their coursework directly relates to their proposed position. Employers must justify how each accepted degree is directly related to the role when multiple degree fields are listed as acceptable qualifications. These changes add complexity to certain occupations and underscore the importance of seeking legal advice early in the H-1B lottery process. Expect the Unexpected With a new administration taking the reins, significant changes to legal immigration policies are likely in the coming months and years. While there may not be enough time to implement major changes before this year’s H-1B lottery, we could see slowdowns in USCIS processing and potential disruptions in visa issuance.
February 10, 2025
Immigration Law
What is an H1B and Who Should Know About It?
H1B – Specialty Occupation The H-1B nonimmigrant visa allows companies and other employers in the United States to temporarily employ foreign workers for up to six years in occupations that require the theoretical and practical application of a body of highly specialized knowledge and a bachelor’s degree or higher in the specific specialty, or its equivalent. H-1B specialty occupations may include fields such as architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts. Who Needs to Know About H1B visas? The H1B is a very popular visa category as it can be very useful for a large number of potential applicants. So, who can benefit from this flexible employment-based visa? Students completing their studies in F1 status who are graduating with a bachelor’s or advanced degree are designed to be the typical H1B applicants. Specific provisions exist to assist the transition from OPT to H1B. Students who have multiple years of OPT ahead of them should also look carefully at the H1B visa as it is still a lottery, and they should maximize their attempts to make the lottery; Individuals with other nonimmigrant visas that don’t allow for employment (H4 dependents, etc.) or are running out of validity period (L1B, etc.). Professionals who are working in a status that ties them to a specific employer such as L1 visa holders or E visa holders. Professionals who are abroad – there is no geographic limit on H1B lottery submissions. Individuals who need a visa status that provides “dual intent” to allow them to easily pursue an employment-based green card in the United States. H1B Cap and the Lottery The number of new H1B Nonimmigrant visas is limited by law to 65,000 a year, and they must be submitted before April 1 for jobs that begin October 1 of that same year. In addition, there are an extra 20,000 H1B visas available for beneficiaries who hold a US master’s degree. When there is anticipated demand for more than the 85,000 available H1B visas, the USCIS is required to conduct a lottery for the selection of H1B visas. The current H1B lottery takes place in multiple stages. Initially a lottery for H1B applicants who hold US master’s degrees is conducted. Then, the remaining US master’s degree applicants are added to the larger applicant pool, and a lottery for the remaining 65,000 available visas is conducted. Finally, a lottery is conducted in the summer for any unused H1B visas. This process is conducted electronically, and selected applicants are informed very quickly if they have made the H1B Cap. Cap Exempt Employers H-1B workers who are petitioned for or employed at an institution of higher education or its affiliated or related nonprofit entities, a nonprofit research organization, or a government research organization are not subject to the H1B cap. These H1B petitions may be filed at any time and are not subject to the lottery rules. Key Aspects of H1B Petitions Employers should be informed about all the aspects of H1B nonimmigrant workers as regulations cover their placement, pay, and qualifications. As discussed, H1B workers must hold at least a bachelor’s degree, and they must also be employed in a position that at least requires the equivalent of a bachelor’s degree. The definition of specialty occupation is complex and requires careful review. Dependents of H1B visa holders can also obtain H4 status. However, H4 status does not by itself allow for work authorization. Only the spouses of H1B visa holders with an approved Immigrant Worker Petition that is subject to backlogs in obtaining permanent residence can apply for work authorization in H4 status. Fees H1B Petitions require filing fees to be paid to the Department of Homeland Security. The US immigration service is fee-based and relies entirely on these fees to provide its services. The fees for H1B petitions are complex and they can be significant. Below, please find the current breakdown of H1B petition filing fees; there is also an optional additional premium processing fee should that service be available for the H1B Cap. Below is a list of the current fees with a higher range provided for employers that have more than 25 employees: H1B Registration fee, to participate in the lottery: $210 Base Nonimmigrant petition filing fee: $460 - $780 Asylum program fee: $300 - $600 Fraud prevention and detection fee for all new H1B Petitions: $500 AICWA Fee (Imposed by the American Competitiveness and Workforce Improvement Act of 1998): $750 – for employers with 1 to 25 full-time employees $1500 – for employers with 26 or more full-time equivalent employees Public Law 114-113 Fee, only applicable for employers with 50 or more employees and more than 50% of employees are working under H1B or L1 status: $4,000 Premium Processing Fee, guarantees a response from USCIS on a petition in 15 days: $2,805 The Labor Condition Application H1B petitions must be accompanied by a certified Labor Condition Application from the Department of Labor. This application includes certain attestations, a violation of which can result in fines, bars on sponsoring nonimmigrant or immigrant petitions, and other sanctions to the employer. The application requires the employer to attest that it will comply with the following labor requirements: The employer/agent will pay the H-1B worker a wage that no less than the wage paid to similarly qualified workers or, if greater, the prevailing wage for the position in the geographic area in which the H-1B worker will be working. The employer/agent will provide working conditions that will not adversely affect other similarly employed workers. At the time of the labor condition application, there is no strike or lockout at the place of employment. Notice of the filing of the labor condition application with the DOL has been given to the union bargaining representative or has been posted at the place of employment. Prevailing Wages Pursuant to the Labor Condition Application, the H1B employer must offer to pay the actual wage or the prevailing wage level for the H1B occupational classification in the proposed area of employment, whichever is greater, based on the best information available. For example, a prevailing wage for a computer engineer could be a lower figure in a specific region, but if all similarly placed employees in the company are paid a higher figure that wage must be offered to the H1B worker. Accordingly, the prevailing wage must equal the average of the rate of wages paid to other workers similarly employed in the area of intended employment. Employers must be careful in identifying the specific wage ranges and areas of employment. Material Changes Matter US Citizenship and Immigration Services and Department of Labor regulations of H1B workers are strict and complex, with fines and penalties abound for the unwary. H1B employers must abide by the material terms of the H1B petition that they submit. Changes to job title, job duties, job location, salary, benefits, and any other material changes can have significant consequences. For example, H1B workers cannot be “benched,” and significant penalties can be incurred for violations. Compliance The H1B program has been subject to significant oversight in recent years, and that trend is only set to continue. Current regulations have increased the statutory authority for work site visits and compliance with the terms of H1B vias and the Labor Condition Application. Employers and H1B workers need to be aware that compliance is a key part of the H1B program and should be prepared for potential site visits.
February 5, 2025
Immigration Law
What to Do if ICE Shows Up at Your Workplace
ICE Enforcement Actions The Trump administration has immediately followed through on campaign priorities of aggressive immigration enforcement. The agency in charge of immigration enforcement is the U.S. Immigration and Customs Enforcement agency, otherwise known as ICE. We have seen an expansion of federal deportation actions and the removal of protections for areas previously considered safe spaces from agency actions. ICE enforcement actions can now occur in places of worship, schools, and courthouses. ICE agents can and will detain large numbers of individuals in a single action to determine their immigration status. Finally, the passage of the Laken Rily Act means that convictions of relatively minor crimes, such as shoplifting, could lead to indefinite detention for immigrants. ICE Actions and Deportation Warrants All people living in the United States, including individuals here without status, have certain specific rights protected by the Constitution. Key considerations of ICE enforcement actions are as follows: An ICE deportation warrant is not the same as a search warrant. If the ICE warrant is the only document ICE can show to justify their presence, they cannot legally enter a premises without agreement. You can and should ask for a search warrant signed by a judge and review it outside the premises. Warrants must be facially correct, including the individual’s correct name and address, as well as the Judge’s full name. Worksite Enforcement Given the current increase in ICE enforcement actions, it is clear that there will be additional forms of worksite actions specifically related to legal immigration compliance. These actions may be conducted by U.S. Citizenship and Immigration agents from the Fraud Detection and National Security Directorate, Department of Homeland Security (DHS) Homeland Security Investigators, and/or ICE agents. These actions are described as “worksite enforcement” and cover enforcement of various immigration laws, including but not limited to I-9 compliance, immigration fraud, and compliance under the H1B and L1 visa programs. Typically, these actions are large-scale enforcement actions with warrants, but they can also consist of a smaller team of agents following up on a business that sponsored a single individual. Paperwork compliance is critical for employers, and ensuring I-9 compliance is recommended for all employers. A heavily recommended first step is to conduct I-9 audits. One key consideration is that worksite enforcement actions are in person, and accordingly, it is critical that employers brief team members about how to interact with agents. Finally, these actions are not necessarily entirely immigration-related, and compliance with employment laws generally will be reviewed as well. So, what are the best practices moving forward in another age of enhanced compliance by the DHS? Our five tips would be: Standardize processes for hiring and verification, including immigration compliance, to have a robust compliance program for all hires moving forward. Review I-9 compliance, potentially including an audit of I-9s. Consider moving to E-Verify for compliance purposes. Have a plan in place for federal agents showing up. Designate a point of contact and ensure they are familiar with organizational rights and obligations. Keep informed. Keeping up to date on changes in immigration and enforcement policies is key. We have seen changes to passport issuance for transgender U.S. citizens, as well as the threat of travel bans and further disruption and delay for immigration processes. Courthouse Enforcement Regarding the courthouse memorandum, ICE has been told to generally avoid non-criminal courts for enforcement. Still, such guidance is not binding, and heightened vigilance at all courthouses is recommended for clients. This action is similar to the prior Trump administration’s enforcement priorities. Detainee Locator After apprehension by ICE, it is often exceedingly difficult for employers or loved ones to find an individual detained by ICE. Sometimes detainees may be sent to the side of state or to a different state entirely for processing. ICE does have a robust detainee locator system that can assist in finding individuals caught up in enforcement actions: https://locator.ice.gov/odls/#/search. Resources Please find attached a quick guide produced by the American Immigration Lawyers Association for individuals questioned or detained by ICE. Additional Resources: Protecting The American People Against Invasion – The White House Interim Guidance: Civil Immigration Enforcement Actions in or near Courthouses Misguided Laken Riley Act Does Nothing to Fix the Problems That Plague Our Immigration System | American Immigration Council DOJ threatens to prosecute local officials over immigration: NPR
January 30, 2025
Immigration Law
Exploring Proposed Policies for Mass Deportations and Ending Birthright Citizenship
In a far-ranging interview with “Meet the Press,” President-elect Donald Trump confirmed his intention to begin mass deportations of individuals in the county without status and repeatedly stated a desire to end so-called “birthright citizenship.” Mass Deportations and Efforts to Combat Undocumented Immigrants Undertaking a mass deportation effort would be an enormous challenge, with approximately 13 million individuals living in the United States without lawful immigration status. The American Immigration Lawyers Association submitted a statement to the Senate Judiciary Committee regarding “mass deportations” that highlighted the staggering economic impacts such an initiative would entail: "From an economic perspective, immigrants sustain American businesses through their work in every industry and economic sector. In particular, undocumented individuals represent 4.8 percent of the overall U.S. workforce; in the agricultural industry, 13.7 percent of the workforce; in construction, 12.1 percent; and in hospitality, 7.1 percent. The majority pay taxes that, in turn, fund the local education systems and social services in the communities in which they live. A report by the American Immigration Council concluded that deportation of approximately 13 million people who are likely to be targeted by the incoming administration would result in massive labor shortages and a dramatic reduction in the U.S. gross domestic product by over $1.1 trillion. Furthermore, such widespread enforcement actions would dramatically reduce U.S. tax revenue: In 2022, undocumented individuals paid $46.8 billion in federal taxes and $29.3 billion in state and local taxes." See Statement of the American Immigration Lawyers Association Submitted to the Senate Judiciary Committee for the December 10, 2024 hearing “How Mass Deportations Will Separate American Families, Harm Our Armed Forces, and Devastate Our Economy” December 10, 2024 The economic impact of a mass deportation would also be felt at home. Many individuals, families, and communities rely on jobs and industries sustained by undocumented workers. Removing these workers would disrupt industries critical to the nation's economy and leave countless households and communities facing financial instability and uncertainty – not to mention the human cost. If a full mass deportation plan is extremely difficult—both economically and logistically—what concrete actions can we expect in 2025? An increase in enforcement actions by the Immigration and Customs Enforcement (ICE) service is likely. ICE has broad authority to search for and detain individuals in violation of status, and all indications point to increased enforcement efforts both in homes and workplaces. Can President-elect Trump deport U.S. citizens who have undocumented family members? In short, it would be extremely challenging for President-elect Trump to deport U.S. citizens with undocumented family members. United States citizens cannot be deported; they would first have to have their citizenship taken from them via a court process known as “denaturalization.” The prior Trump administration tried to start denaturalization cases (with limited success) but had larger aims to target over 700,000 individuals. Historically, denaturalization was reserved for individuals who lied about their past to obtain United States citizenship, such as criminals, war criminals, etc. The question is could that power be expanded? In theory, yes, but in practical terms denaturalization remains a limited-in-scope federal judicial proceeding, and it is not currently unlawful to have an undocumented individual living with you. As with all judicial actions, however, individuals without access to counsel would be at greater risk. Birthright Citizenship in the United States Turning to the issue of birthright citizenship, an effort to end birthright citizenship would see the Republican party undermine one of their greatest accomplishments: the passage of the 14th Amendment to the Constitution after the conclusion of the Civil War. Adopted in 1868, the 14th amendment is a critical part of United States civil rights laws that ensures due process and equal protection under the law to all persons. The Citizenship Clause of the 14th Amendment states the following: “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” This provides for all children born in the United States to be U.S. citizens. President-elect Trump’s focus on so called ‘birthright citizenship” has developed from recent narratives of so-called “anchor babies” and “chain immigration.” The various reasoning used to decry the citizenship clause of the 14th amendment fails to consider the reality of the United States immigration system. There is no demonstrable link between birthright citizenship and unlawful immigration. Further, all individuals born to foreign parents on United States soil cannot start the process of sponsoring their parents for legal permanent residence and ultimately citizenship until they turn 21. That is an extremely long time, and under the current law, the United States citizen child must also demonstrate their own income to sponsor their immediate relatives. President-elect Trump also repeatedly stated that the United States is the only country with birthright citizenship. That is incorrect. Among the dozens of countries that provide birthright citizenship are our immediate neighbors: Canada and Mexico. But what can the President-elect do to end birthright citizenship? A President cannot unilaterally amend the Constitution. Further, any attempt to use executive action or orders to restrict the 14th Amendment would likely be struck down by the courts. The 14th amendment does provide some exceptions to the citizenship clause, but the existing exceptions apply specifically to the children of foreign diplomats and could not easily be expanded. By its nature, the 14th amendment is a cornerstone of civil rights in the United States, and any federal court would be at odds with precedent to change it. If the political will continues in this area and repeated challenges are made, it is possible some erosion of the amendment could occur. But any such challenge would take years and would be a political issue the Supreme Court may not want to get involved with. Amendments to the constitution require a two thirds majority vote in the United States House and the Senate. This kind of majority is extremely unlikely to exist given the current very tight balance in the legislature. Amendments also require state legislature support as well. Turning to the States, an unused but possible option is for the states to request a Constitutional Convention in which an amendment could be passed. There has never been a Constitutional Convention, and it requires two thirds of the states to agree. What about stopping pregnant mothers from entering the countries? United States Customs and Border Protection oversees the border and has the discretion to review or deny entry for travelers into the country. We could see increased enforcement in this area and directives for visa issuance for pregnant women. However, in practical terms, nearly all airlines restrict heavily pregnant travelers from flying to the country. The impacts on the immigration system remain to be seen from the above stated political aims. It is likely that actions will be taken to limit and slow legal migration through policy, regulation, and enforcement action. It is imperative to fully understand one’s immigration status and be proactive in protecting it.
December 12, 2024
Immigration Law
Executive Action to Keep Families Together
On June 18th, 2024, the White House has announced a new aimed to provide relief to potentially over half a million immigrants without status as well as children by providing a direct path to legal permanent residence. In addition, the Executive Action will aim to ease the working visa process for Deferred Action for Childhood Arrivals (DACA) recipients and US college graduates who have earned a degree in the United States. The Executive Action lays out the following framework for spouses of U.S. citizens and children to keep their families together. There is a ten-year residence requirement followed by a three-year designated period to apply for legal permanent residency. This temporary period will also allow for work authorization for qualified applicants. We still don’t know exactly how this will be implemented, but it will likely take the form of an immigrant visa petition or temporary status petition, which then provides the three-year window to file an I-485 adjustment of status application. Many questions remain including the required evidence, filing fees, processing times as well as the current backlogs for immigrant visa processing. However, this Executive Action represents a major election-year step to improve the nation’s immigration system at a time when the southern border is subject to intense scrutiny. The exact text of the legal pathway is below: To be eligible, noncitizens must – as of June 17, 2024 – have resided in the United States for 10 or more years and be legally married to a U.S. citizen, while satisfying all applicable legal requirements. On average, those who are eligible for this process have resided in the U.S. for 23 years. Those who are approved after the Department of Homeland Security (DHS)’s case-by-case assessment of their application will be afforded a three-year period to apply for permanent residency. They will be allowed to remain with their families in the United States and be eligible for work authorization for up to three years. This will apply to all married couples who are eligible. This action will protect approximately half a million spouses of U.S. citizens and approximately 50,000 noncitizen children under the age of 21 whose parent is married to a U.S. citizen. The DACA and US College Graduates provision to ease visa requirements are light on details – which is understandable given the nature of Executive Actions – but it is a significant step to recognize the White House’s commitment to DACA as well as college graduates. We can only speculate what form the regulatory improvements will take; there could be special processing time frames for potential regulatory changes to the H1B visa category. The text of the Executive Action is as follows: President Obama and then-Vice President Biden established the DACA policy to allow young people who were brought here as children to come out of the shadows and contribute to our country in significant ways. Twelve years later, DACA recipients who started as high school and college students are now building successful careers and establishing families of their own. Today’s announcement will allow individuals, including DACA recipients and other Dreamers, who have earned a degree at an accredited U.S. institution of higher education in the United States, and who have received an offer of employment from a U.S. employer in a field related to their degree, to more quickly receive work visas. Recognizing that it is in our national interest to ensure that individuals who are educated in the U.S. are able to use their skills and education to benefit our country, the Administration is taking action to facilitate the employment visa process for those who have graduated from college and have a high-skilled job offer, including DACA recipients and other Dreamers. It is an exciting time for immigrants who have lived in this country for some time. It is also potentially a huge benefit to the younger generation who are now graduating from college and trying to build their American Dream. As the White House states in the Executive Action: “Immigrants who have been in the United States for decades, paying taxes and contributing to their communities, are part of the social fabric of our country.” How is an Executive Action different to an Executive Order? Executive Actions are executive branch instructions to implement policies, rules, regulations under existing laws. As opposed to Executive Orders which are legally binding directives to the executive branch that are legally enforceable.
June 20, 2024
Immigration Law
The J1 Foreign Residence Requirement
Medical Training and 212(e) Every year, many foreign medical graduates come to the United States on a J1 visa to complete their medical training as residents or fellows. Foreign medical graduates must pass the U.S. Medical Licensing Examination (USMLE), complete a medical residency in the U.S. and become licensed in a particular state to qualify to practice medicine. J1 visas for medical training are issued by the Department of State with the intent that participants return to their home countries after their training is complete. The J1 visa is, at its core, an exchange visa. J1 medical graduates benefit their home countries with the medical knowledge with the training acquired in the U.S. Accordingly, Physicians with J visas must return to their country for two years before being allowed to obtain either H-1B status or permanent residence in the United States. This two-year home residency requirement is created by section 212(e) of the INA and will be notated as a “212(e) subject” on visas and other government documents. J1 physicians who return home for two years and intend to return to the United States must be careful to fully document their time outside of the country. Waiver of 212(e) Obtaining a waiver of the 212(e)-residency requirement is difficult, but there are various paths for obtaining such a waiver. 212(e) Waivers are processed initially by an Interested Government Agency, and then the Department of State who recommends the case to the U.S. Citizenship and Immigration Services. Hardship or Persecution If a 212(e) subject J1 visa holder can be eligible for a waiver if they can demonstrate that extreme hardship would be inflicted on members of their family who are permanent residents or U.S. citizens if they must return to their home country. Similarly, a 212(e) subject J1 visa holder can be eligible for a waiver if they can demonstrate they will be persecuted if required to return to their home country. Hardship and persecution waivers are rare and require significant supporting evidence to be successful. Interested Government Agency Waivers Independent government agencies may also submit a request to the Department of State to recommend a J1 Waiver. Such waiver requests are discretionary and are subject to internal agency policy. Interested government agencies (IGAs) submit their request to the Department of State who in turn informs the U.S. Citizenship and Immigration Services who ultimately issues the waiver. Agencies that have sponsored J1 waivers include the Department of Health and Human Services, the Department of Defense, and, in limited circumstances, the Department of Veterans Affairs and the Department of Agriculture. DHHS Exchange Visitor Program The HHS has two tracks for J1 waiver recommendations. HHS Research The first track is for individuals who are performing health research in an area of significant interest to the HHS. HHS relies on subject matter experts for its waiver review process and will require detailed information regarding the applicant, the research they are conducting and the institution supporting the waiver. HHS Clinical Care The second track is for clinical care physicians who plan to practice primary care (family medicine, general internal medicine, general pediatrics, obstetrics & gynecology) or general psychiatry at a qualifying health center. The HHS’s most recent guidelines allow physicians to apply under the program who plan to practice at any health facility that has or is in a location that has a Health Professional Shortage Area score of 7. HHS are subject matter experts, and waivers submitted to the HHS require specific evidence regarding the health facility, the patients and the physician. State Waivers and the Conrad 30 Waiver Program The Conrad 30 waiver program aims to address the shortage of qualified doctors in medically underserved areas and allows J-1 foreign medical graduates to apply for a waiver of 212(e), provided they agree to serve for three years in an area with a medically underserved population in H1B status. Each state and the District of Columbia has 30 J1 waiver spots per fiscal year, and they have unique requirements for J1 waiver submission. The Conrad 30 program has certain overall requirements that all potential applicants must meet: The foreign medical graduate must have been admitted to the United States with a J1 visa to receive graduate medical training; The foreign medical graduate must enter into a bona fide, full-time employment contract to practice medicine in H-1B nonimmigrant status for at least three years at a healthcare facility located in an area designated by the U.S. Department of Health and Human Services (HHS) as a Health Professional Shortage Area (HPSA), Medically Underserved Area (MUA), or Medically Underserved Population (MUP) or serving patients who reside in a HPSA, MUA, or MUP. The foreign medical graduate must obtain a “no objection” statement in writing from their home country if they are contractually obligated to return to their home country upon completion of the exchange program. The foreign medical graduate must agree to begin employment at the health care facility specified in the waiver application within 90 days of receipt of the waiver, not the date their J-1 visa expires. Conrad 30 Waiver Process Foreign medical graduates seeking a Conrad 30 waver have three steps to complete: first, they must obtain the IGA sponsorship of a State Health Department, then they must submit a J1 Waiver Application with the Department of State, and finally, they must obtain a cap-exempt H1B visa to begin working in their medically underserved area. Once their three years in H1B status under the conditions of the waiver are complete, the physician would then be eligible to apply for legal permanent residence or a different status. If a physician fails to meet the terms of their three-year waiver, they will be again subject to 212(e). National Interest Waivers for Physicians National Interest Waivers are available for physicians who choose to continue practicing medicine in their J1 waiver area. National Interest Waivers (NIW) are a Petition for Immigrant Worker and can allow for a direct path to a green card. Physicians must practice clinical medicine full-time in a designated shortage area for a five-year period to qualify for the NIW petition. The NIW petition will allow the Physician to adjust their status to legal permanent resident or apply for an immigrant visa.
September 27, 2023
Immigration Law
Government Shutdown and Immigration Impacts 2023
Once again, the federal budget impasse in Congress is getting closer to a Government shutdown if an agreement is not met before September 30, 2023. If no legislation is passed by that date, then another Government shutdown is inevitable. Last-minute deals and short-term funding agreements have been used in recent years to keep the government afloat, but the threat of a full shutdown given the time remaining should not be discounted. What impacts would a government shutdown have on immigration services? Generally speaking, the short-term impact is limited in scope as the United States Citizenship and Immigration Services is fee-based and is able to remain functioning during a shutdown. Likewise, the Department of State is an essential government function and would remain largely unaffected as would Customs and Border Patrol. However, with these large agency’s shutdowns can affect them in various ways. Programs that are not considered essential could be impacted such as trusted traveler programs, specialized processing for Canadian nationals as well as supporting Consular programs. Long-term shutdowns can lead to larger delays and processing bottlenecks as ancillary federal services close. The biggest immediate impact of a government shutdown would be the Department of Labor (DOL) which would cease operations. The closure of the DOL has significant impacts as the processing of employment-based labor certifications under the PERM (now FLAG) system would cease. In addition, Labor Certifications to support H1B petitions would be suspended as well. The immigration court system would also be affected and going by prior shutdowns we could see the courts close except for detained matters. The sheer number of immigration court cases and the stacked docket could lead to further substantial delays. Another large immigration related program that would be affected by the shutdown would be the E-Verify program. E-verify that allows for online registration of the I-9 process would shut down and functions would cease. In the case that E-verify is not working it does not stop employer’s obligation to comply with the I-9 rules. Employers and individuals should keep themselves aware of developments as we edge closer to September 30, 2023. The key considerations for immigration impacts are: H1B transfers and new hires could be affected in October. If possible, employers should aim to file Labor Condition Applications with enough time in September. DOL processing of PERM applications, Prevailing wages, etc. will close, employers and employees should monitor potential impacts for later green card processing and Immigrant Petition filings. Border processing of TN applications could be affected. Delays are likely to increase as staffing and additional DHS support of Agencies will dry up. I-9 obligations remain, even if E-Verify is not working.
September 20, 2023
Immigration Law
Form I-9 Requirement Flexibility to End on July 31, 2023
The U. S. Immigration and Customs Enforcement (ICE) recently announced the end of COVID-19 temporary flexibilities for Form I-9, Employment Eligibility Verification.[1] Starting July 31, 2023, employers must complete in-person physical document inspections for employees whose documents were inspected remotely during the temporary flexibilities. Employers who have been using the COVID-19 flexibilities have until August 30, 2023, to complete the physical inspection of identity documents. The change does not impact the ability of employers to use 3rd party authorized agents to conduct the required in-person inspections.[2] The flexibility provisions allowed employers that are operating remotely to complete Form I-9 Section 2 document review remotely (e.g., electronically over video link, fax, or email) within three business days of hire. The flexibility provisions are for employees who are working remotely due to COVID-19 precautions “until they undertake non-remote employment on a regular, consistent, or predictable basis, or the extension of the flexibilities related to such requirements is terminated, whichever is earlier.” Employers who conducted remote Form I-9 document review are advised to begin implementing the in-person verification of identity and employment eligibility documentation for employees who were hired on or after March 20, 2020, and who presented such documents for remote inspection in reliance on the flexibilities first announced in March 2020. After documents have been physically inspected, the employer should add “COVID-19” and “documents physically examined” with the date of inspection to the Section 2 additional information field on the Form I-9, or to Section 3 as appropriate. A large number of employees now work remotely and are not in proximity to the employer. An authorized representative may be used for completing Section 2 of the Form I-9. Anyone other than the employee may serve as an authorized representative, subject to state law. Once the authorized representative completed Section 2, the employer must ensure that the form appears to be free of errors. The employer has liability for any paperwork deficiencies in the Form I-9 completed by the authorized representative. Immigration laws and regulations may change over time, so it's important to consult with an immigration attorney or refer to the official sources, such as the U.S. Citizenship and Immigration Services (USCIS) website, for the most up-to-date information. The I-9 form is used to verify the identity and employment authorization of individuals hired for employment in the United States. Previously, due to COVID-19 restrictions, the U.S. government temporarily allowed employers to inspect Section 2 documents remotely (e.g., via video conference) when completing the I-9 verification process. Since the remote inspection option will no longer be available, employers will need to resume in-person verification procedures as outlined in the I-9 instructions. Many third-party services are available to employers wishing to conduct inspections outside their geographic reach, employers may also use their law firms to do this.[3] Furthermore, Employers are required to conduct a physical inspection of original documents related to previous remote I-9s. Here are some key points to consider: In-person verification: Employees should present their original, unexpired documents in person to their employers or an authorized representative. The employer or representative must physically examine the documents to determine their authenticity. Timing: Section 2 of the I-9 form must be completed within three business days of the employee's first day of work. During this time, the employer must review and record the information from the employee's documents on the I-9 form. Acceptable documents: The employee must present acceptable documents that establish their identity and employment authorization. The USCIS provides a list of acceptable documents on the back of the I-9 form, which includes items such as a U.S. passport, driver's license, Social Security card, and permanent resident card (green card). Completing the form: The employer or authorized representative should complete Section 2 of the I-9 form, including recording the document title, issuing authority, document number, and expiration date (if applicable). The employer must sign and date the certification section. Annotation of compliance for prior remote I-9s: For prior completed I-9s under the remote rules Employers should annotate forms I-9 to verify the physical inspection.[4] The reverification should be added to the Additional Information field in Section 2. Best practice is to include the date and full name and title of the individual who completed verification. Review of information: Employers should establish a review process of all I-9s to make sure all forms are valid, and information is entered correctly. Errors happen and can be costly for employers, a simple review process can head off a lot of issues early on. Retaining and storing forms: Employers are required to retain I-9 forms for each employee and make them available for inspection by authorized government officials if requested. The forms should be stored securely and maintained for three years after the initial date of hire of the employee, or one year after the date employment ends, whichever is later. Consult the USCIS guidelines for details on retention and storage requirements. It’s important for employers to stay informed about any changes or updates to the I-9 verification process. Checking the USCIS website or consulting with an immigration attorney will help ensure compliance with the latest requirements. [1] https://www.ice.gov/news/releases/ice-updates-form-i-9-requirement-flexibility-grant-employers-more-time-comply [2] https://www.shrm.org/resourcesandtools/tools-and-samples/toolkits/pages/complying-with-i9-and-everify-requirements-in-the-united-states.aspx [3] Many services have sprung up in this space that act as authorized agents for physical inspections - there are many like this out there: https://workforce.equifax.com/solutions/i-9-anywhere?utm_source=google&utm_medium=cpc&utm_campaign=https://workforce.equifax.com/solutions/i-9-anywhere?utm_source=google&utm_medium=cpc&utm_campaign=EWS_ES_I-9-Anywhere_2023&utm_term=&utm_content=&utm_term=&utm_content=&gad=1&gclid=CjwKCAjw04yjBhApEiwAJcvNoXj_RnOCaE4EaXxp9hrUXzgZSubb5HxDKKQypMMQL9nOFRrzZ3TQeBoCXFAQAvD_BwE&gclsrc=aw.ds https://dcmobilenotary.com/i-9. [4] Form I-9 Examples Related to Temporary COVID-19 Policies | USCIS
June 20, 2023
Immigration Law
Policy U-Turn: US Visas to be Issued in DC
On February 9th Bloomberg Law reported on an interview they conducted with Julie Stufft, Deputy Assistant Secretary for Visa Services at the Bureau of Consular Affairs, in which Ms. Stufft outlined a Department of State (DOS) plan to restore stateside visa renewals. Which means that eligible nonimmigrants would be able to renew their visa stamps without leaving the country. This marks the turning point in the DOS policy on stateside visa renewals, which were largely discontinued in 2004 except for diplomats and international organization employees. It is great news for H and L visa holders who will be included in the trial program. Details are currently vague, but it will likely include a limited subset of those visa holders. The Covid-19 pandemic brought the policy into the forefront, with multiple organizations seeking assistance from the DOS in accepting stateside visa renewals. This was requested as the pandemic had led to the global closure of embassies and consulates worldwide, which in turn prevented thousands of individuals from traveling abroad with the fear they would not be able to return as there was no mechanism to renew their visa. Further, The Trump administration policies to ban certain visa issuances and strip the DOS of staff still have legacy impacts to the visa processing process. The many voices calling for stateside visa issuance fail to grasp the reality of implementing such a complex and massive undertaking. The DOS certainly has the capabilities to set up such a program, but the resources and procedures are vast, ranging from detailed security screening to secure document handling, possibly including online visa interviews with applicants and a myriad of additional complexities. Ms. Stufft alluded in her interview that the expansion of stateside visa processing would require setting up a new consular division in Washington, D.C. The main point of contention that ended the vast majority of stateside visa processing was the biometric requirements for visas required in 2004. How the DOS plans to address this is vague right now. Still, there are many national biometric screening centers operated by the United States Citizenship and Immigration Services (USCIS). We could see an expansion of use of these centers or the reliance on previously obtained biometrics – a policy implemented by the USCIS during the Covid-19 pandemic. Although the details provided are vague, this change in policy provides another level of protection for nonimmigrant visa holders and hopefully provide more certainty for international travel as visa wait times continue to suffer worldwide. The DOS has continued to highlight their programs to address worldwide visa backlogs, which have included expanded waivers for interviews, special programs to assist individuals affected by the trump administration policies and increased appointments. Further steps recommended to the DOS by a variety of groups include adding additional missions, allowing online visa appointments and streamlining the interview waiver process to cut wait times. If you’d like to discuss further, please reach out to Michael.Freestone@OffitKurman.com.
February 17, 2023
