On Sept. 19, 2025, President Trump signed a Proclamation, Restriction on Entry of Certain Nonimmigrant Workers, requiring a $100,000 payment with any new H-1B petition filed on or after Sept. 21, 2025, including those for the 2026 lottery. While the restriction does not apply to petitions filed before that date, approved petitions, or valid visa holders, questions remain regarding its impact on extensions and transfers. Given the fluid and evolving nature of these changes, employers and visa holders should exercise caution, particularly with international travel, and consult your Polsinelli Immigration counsel or Polsinelli’s Executive Action Working Group with any questions. Read the full update.

On June 12, 2025, the Department of Homeland Security (DHS) began sending termination notices to foreign nationals paroled into the United States under a parole program for Cubans, Haitians, Nicaraguans and Venezuelans (CHNV). The terminations are legally allowed under a May 30, 2025, decision by the US Supreme Court lifting a federal district court injunction that had temporarily barred the federal government from implementing the revocations. The termination notices inform the foreign nationals that both their parole is terminated, and their parole-based employment authorization is revoked – effective immediately. Employer Obligations The Immigration law provides that it is unlawful to continue to employ a foreign national in the U.S. knowing the foreign national is (or has become) an unauthorized alien with respect to such employment. How will an employer know if an employee has lost work authorization? For E-Verify users, E-Verify is in the process of notifying employers and employer agents that they need to log in to E-Verify and review the Case Alerts on the revocation of Employment Authorization Documents (EADs). The employer is then on notice that an employee has lost work authorization. However, many employers are not enrolled in E-Verify. Those employers may learn of a revocation when an employee presents the termination notice to the employer. Also, as the CHNV revocation is in the news, DHS may consider employers on notice, with an obligation to review the status of its employees to determine whether workers have lost authorization to work. At this point, DHS has not provided guidance to employers on their obligations, but we recommend employers act cautiously and take reasonable steps to determine whether company employees are impacted. We encourage taking these steps: Employers should review their I-9 records and supporting documents to determine if employees have employment authorization cards with the code C11, and that the country of citizenship on the card lists Cuba, Haiti, Nicaragua or Venezuela. When an employer is notified or discovers that an employee's C11 work authorization has been revoked, the employer should not immediately terminate the employee. Certain individuals, even from the impacted countries, may have C11 work authorization separate and apart from the CHNV program. These work authorizations remain valid. When an employer is reasonably certain the employee’s C11 employment authorization has been terminated, the employer should ask the employee if they have other valid work authorization (which is common). If yes, the employer should then reverify the employee's Form I-9 in Supplement B, with the employee presenting new employment authorization documentation. If an employee is unable to provide new employment authorization documentation, the employer should consider terminating employment. In the event of an Immigration & Customs Enforcement investigation, knowingly to continue to employ a foreign national who is not authorized to work in the U.S. can result in a potential charge. When an employer is uncertain regarding the correct course of action, we recommend speaking to Immigration counsel to review and determine the appropriate steps.

Introduction Since President Trump’s inauguration, the administration has underscored its commitment to prioritizing immigration enforcement. This shift includes an increase in U.S. Immigration and Customs Enforcement (“ICE”) raids and the rescission of previous policies that restricted federal immigration authorities from conducting enforcement actions in sensitive locations such as schools, churches and hospitals. Given the new enforcement landscape, it is crucial for employers to be prepared for potential ICE raids or other immigration audits. Preparing for an ICE Raid An ICE raid is an unannounced operation conducted by ICE agents at businesses or homes to apprehend individuals suspected of violating federal immigration law. During a raid, ICE agents may question individuals present and detain or arrest specific persons. However, their authority to search private space is limited without a judicial warrant. Specifically, ICE agents can enter public areas of a business, such as parking lots or lobbies, without restriction. However, they cannot access nonpublic areas without consent or a valid judicial warrant. In contrast, private spaces, such as a private home or office, are not generally accessible to the public and may even have signage indicating that they are intended to be private.  A judicial warrant, issued by a federal or state court and signed by a judge, specifies the search’s scope and location, which may include a private area. Employees must allow access to areas specified in the warrant but can refuse entry to nonpublic areas beyond the warrant’s authorizing scope. In contrast, an administrative warrant, which is not issued by a judge, does not authorize ICE agents to enter private spaces without permission. It directs law enforcement to arrest or detain specific individuals suspected of immigration violations but does not impose a legal duty to comply with ICE demands.  If ICE agents present a warrant, company management should request a copy, verify its type and validity, and proceed accordingly. Legal counsel should be contacted immediately if there is any doubt about the warrant or its validity. It is also important not to interfere with ICE officers or impede their investigation in any way, as obstructing an investigation may result in significant criminal and civil sanctions. To prepare for a potential enforcement action, employees should be trained on how to interact with ICE agents and who to contact if agents arrive. Employees should be counseled on their rights during an enforcement action. Employers should designate a point of contact knowledgeable about employers’ rights and trained to communicate with agents and legal counsel. Nonpublic areas should be clearly marked to delineate private spaces of a business from public areas. Preparing for an I-9 Audit With the heightened focus on immigration enforcement, an increase in I-9 audits and compliance investigations is anticipated. Federal law mandates that employers timely complete an I-9 form for each employee to verify employment eligibility. The Immigration Reform and Control Act of 1986 (“IRCA”) prohibits employing individuals unauthorized to work in the U.S. and requires employers to verify identity and employment authorization. If the federal government initiates an I-9 audit, the employer will receive a notice of inspection (“NOI”) and generally will have three days to produce I-9 forms for review. If ICE determines that certain employees are unauthorized to work, the employer has ten days to provide valid work authorization for the employees, and if the employer is unable to do so the employees will need to be terminated. Affected employees must be notified of the audit findings. To prepare for a potential I-9 audit, employers should ensure the use of the current Form I-9 and confirm all employees have proper work authorization. Conducting an internal audit with legal counsel can help identify non-compliance issues, allow for corrections to the I-9 forms, and demonstrate good faith if an NOI later is issued, which can help limit civil penalties against the employer. Contact legal counsel immediately upon receiving an I-9 NOI for guidance and compliance. Conclusion With the Trump administration’s focus on immigration enforcement, employers must be prepared for potential ICE actions including enforcement raids in their places of business. Polsinelli’s government investigations and immigration teams are available to assist employers in developing response plans and navigating immigration enforcement.

President Trump has issued a new Executive Order extending the current ban on immigrant visas for those outside the United States, as well as barring entry of new classes of nonimmigrant visas, namely H-1B, H-2B, L, and J visas (and their family members). The stated reason for the order is the unemployment of US workers in the United States due to the COVID-19 outbreak. The latest order extends an earlier Executive Order banning the issuance of new immigrant visas to those outside the United States seeking permanent entry to the United States (or a “green card”). The latest order’s provision regarding immigrant visas takes effect immediately, and extends the bar until December 31, 2020 (and allows for a continuation after such date as necessary). In addition, and importantly, the newest order suspends the entry of certain classes of nonimmigrants seeking to work in the United States as well.  The visa suspension applies to individuals outside the US as of June 24, 2020 and not in possession of a current US visa or travel document.  This includes foreign nationals seeking work visas in the H-1B, H-2B, L intracompany transfer, and certain J exchange visitor visa categories.  The spouses and children accompanying such nonimmigrants or following to join in the respective derivative visa categories, i.e., H-4, L-2, and J-2, are also banned (though children who “age out” due to the restriction can be exempted). This nonimmigrant work visa ban will be effective until December 31, 2020, and may be renewed. Under the terms of the Executive Order, the ban will not apply to certain workers including: Food supply chain workers Those “critical to the defense, law enforcement, diplomacy, or national security of the United States” Certain medical professionals who are involved with the provision of medical care to individuals who have contracted COVID-19 and are currently hospitalized COVID-19 Medical researchers at U.S. facilities Those “necessary to facilitate the immediate and continued economic recovery of the United States;” and Others whose entry would be deemed in the U.S. national interest (such determinations will be made in sole discretion of DOS, DHS, or their designees) Beyond the immediate ban on work visas, President Trump also directs the Department of Homeland Security and Department of Labor to promulgate new regulations with regard to the H-1B program, as well as EB-2 and EB-3 employment-based green cards “as soon as practicable,”  to ensure these programs do not disadvantage US workers. Although the new order does not apply to individuals presently in the US, employers may want to discourage employees on work visas from traveling internationally for the time being, particularly if an employee needs to renew a visa to return to the US. Polsinelli attorneys are available to answer your questions regarding the Executive Order and potential impacts on your business or employees.

On April 27, 2020, USCIS released significant new changes made to the Handbook for Employers: Guidance for Completing Form I-9.  The Handbook is a valuable resource for employers regarding questions on I-9 completion and compliance and addresses many commonly asked questions by employers. Notable new guidance includes areas such as: Clarification on which documents may be used as List B and List C acceptable documents. An explanation on who may serve as an authorized representative of an employer to complete Section 2 of the I-9. How to handle document expiration dates based on automatic extensions of employment eligibility documents. How to complete the I-9 with EADs automatically extended by Federal Register notices. Other updates based on recent Form I-9 revisions, major guidance changes, new content, and clarifications are included in the new Handbook. A comprehensive employment verification system is a critical part of protecting a company from liability in the event of an ICE Worksite Inspection. Polsinelli attorneys are available to answer your questions regarding the changes to the Handbook for Employers or regarding Form I-9 compliance.

On March 20, the Department Homeland Security (DHS) announced procedures to provide flexibility for companies navigating Form I-9 compliance in light of the Covid-19 national emergency. All U.S. employers must continue to complete the Form I-9, Employment Eligibility Verification form, as mandated by the Immigration Reform and Control Act of 1986 (IRCA), for all newly-hired employees. Normally the Form I-9 process requires the employer to physically meet with the new hire to conduct an in-person inspection of original identity and employment authorization documents to confirm they appear reasonably genuine and relate to the new hire. However, the emergency DHS guidance allows employers who are implementing distancing precautions to temporarily forego the requirement to physically inspect the employee’s identity and employment authorization documents until May 19, 2020, 60 days from the date of the DHS announcement, or 3 business days after the termination of the National Emergency, whichever occurs first. Completion of Form I-9 for Employers with Closed Offices To avail themselves of this exception, employers with closed offices, must: Inspect the identification and employment authorization documents for Section 2 remotely, using video conferencing technology, fax, email, or other available method. Provide written documentation of their remote onboarding and telework policy for each employee. Employees who are onboarded using remote verification must provide documentation for in-person verification within 3 business days, once normal business operations resume. Companies should note that this flexibility is only provided to those with no employees physically present at the work location. Form I-9 completion for newly hired employees or existing employees subject to COVID-19 quarantine or lockdown protocols will be considered for compliance on a case-by-case basis by DHS. The Form I-9 should be completed via remote verification of documents. At the time that the physical documents can be inspected, the employer representative should enter the text as follows in the additional information box of Section 2 of the Form I-9. In addition to the above procedures for remote verification, employers continue to have the option to designate an authorized representative to conduct verification. The U.S. Citizenship and Immigration Services (USCIS) explains in its M-274 Handbook for Employers: You may designate or contract with someone such as a personnel officer, foreman, agent, or anyone else acting on your behalf, including a notary public, to complete Section 2. Note that anyone else who completes Form I-9 on your behalf must carry out full Form I-9 responsibilities. It is not acceptable for the designated person to physically examine the employee’s employment authorization and identity documents, and leave Section 2 for you to complete. You are liable for any violations in connection with the form or the verification process, including any violations of the employer sanctions laws committed by the person designated to act on your behalf. Employers in California should continue to abide by State law which authorizes employers to only use licensed attorneys, individuals authorized under federal law to provide immigration services, and individuals who are qualified and bonded as immigration consultants under California law (Business & Professions Code, Sections 22440, 22441). Immigration and Customs Enforcement (ICE) Grants Additional Time to Employers for I-9 Audits and Notices of Inspection DHS, through the March 20 announcement, has also granted a 60 day extension to employers issued a Notice of Inspection (NOI) in March of 2020. If the employer has not already responded, the employer has an additional 60 day to respond. At the end of the 60 day period, DHS will assess whether another extension is warranted. Continuing employment verification compliance is a critical part of protecting a company from future liability in the event of an ICE Inspection. Employers must retain I-9 forms for inspection for all current employees, as well as for terminated employees for at least three years past the start date or one year past the termination date, whichever is later. Polsinelli attorneys are available to answer questions regarding Form I-9 compliance.

E-Verify has announced that it is temporarily extending the timeframe to take action to resolve Tentative Nonconfirmations (TNC) from the Social Security Administration or Department of Homeland Security due to office closures to the public. Under the new temporary policies, employers are still required to create E-Verify cases for new hires within three business days from the date of hire.  If the E-Verify case creation is delayed due to the employer’s office closure or other COVID-19 precautions, the employer should select “Other” in E-Verify and enter COVID-19 as the reason. If an employee receives a TNC, the employer must still notify the employee of the TNC result as soon as possible.  If the employee decides to take action to contest the TNC, the employer should notify E-Verify of the employee’s decision. E-Verify works by comparing the information employees provide for Form I-9, Employment Eligibility Verification, against records available to SSA and DHS.  If the information provided by the employee does not match, the case will receive a TNC result, and the employer must give the employee an opportunity to take action to resolve the mismatch.  Employees who choose to take action on a TNC are referred to SSA or DHS. In ordinary times, an employee taking action to resolve a TNC must visit the SSA or DHS office within eight (8) federal government workdays to begin resolving the discrepancy.  Provided the employee has timely visited an SSA field office or contacted DHS, the E-Verify case will be in interim status until a final result is issued. Because of government office closures due to COVID-19, an employee contesting a TNC may not be able to visit an SSA or DHS office within eight business days.  Under the new temporary guidelines, the E-Verify case will then be in an extended interim status.  Once government offices reopen, the employee must then visit the appropriate office to resolve the TNC, ultimately leading to a result that either the employee is authorized or a final noncofirmation result that the employee is not authorized to work. DHS reminds employers not to take any adverse action against an employee because the E-Verify case is in an interim status, including while the employee’s E-Verify case is in an extended interim case status due to COVID-19 precautions. Employers should consider these rapidly developing changes and consult Polsinelli counsel for updated guidance for specific issues related to immigration compliance. Visit Polsinelli’s COVID-19: What Your Business Needs to Know blog for more updates.

The COVID-19 National Emergency has brought a host of challenges to employers in the United States, including travel, compliance with employment verification processes, and hiring and maintaining immigration status for foreign national employees. In the past two weeks we have seen a flood of interim policy changes. We expect the various immigration and enforcement agencies will continue to adapt and provide further guidance. Form I-9 Compliance for Employers with No On-Site Employees The Department of Homeland Security (DHS) announced flexibility for verification of identification and employment authorization documents for completion of Form I-9. DHS has provided remote verification procedures to allow an employer with no employees on-site due to the COVID-19 National Emergency, to review Section 2 documents using virtual review methods such as video conference, fax or email. The remote verification policy is in effect for the next 60 days. ICE Immigration and Customs Enforcement (ICE) has provided a 60 day document production extension for any employer issued a Notice of Inspection (NOI) for Form I-9s during the month of March 2020. ICE will determine if additional extensions are warranted at the end of the 60 day period. United States Citizenship and Immigration Services (USCIS) has suspended in-person services at USCIS Service Centers around the country until at least April 1. This suspension includes final interviews for permanent residency and naturalization. Applicants with interview notices during this time will be automatically rescheduled. Those with InfoPass appointments or other appointments at a field office must reschedule through the USCIS Contact Center. USCIS has suspended premium processing service for I-129 and I-140 petitions filed directly with USCIS until further notice. Form I-129 is utilized for employment-based non-immigrant petitions, including, but not limited to, the H-1B, L-1A/B, E-1, E-2, O-1, and TN statuses. Form I-140 is utilized for employment-based permanent residency applications. USCIS will continue to accept and process all applications in accordance with regular processing guidelines, including filings for those selected in the FY 2021 H-1B lottery, expected to occur before April 1, 2020. USCIS will temporarily accept copies of original signatures. USCIS has provided employers and their legal counsel much needed relief, by accepting reproduced copies of original signatures for filing of benefit forms with USCIS, including Form I-129. For forms that require an original signature, USCIS will accept the reproduced original for the duration of the COVID-19 National Emergency. Originals of the forms must be retained and provided to USCIS at a later date if requested. The Department of Labor (DOL) has issued a FAQ on complying with regulations related to immigration processing services provided by the DOL in light of COVID-19. Notably, companies who sponsor foreign national employees for H-1B, H-1B1 and E-3 visas may need to move their sponsored employees to a different worksite that was stated on the Labor Condition Application (LCA) included in the work visa filing. Companies must still comply with certain posting obligations but will be considered compliant as long as the posting is done within 30 days of the move. In addition, DOL is providing additional time to meet recruitment requirements for the first step of the green card process, the Program Electronic Review Management (PERM) labor certification. Companies will have temporary extensions for recruitment and filing timelines, to allow additional time for the physical posting requirement. The U.S. Department of State (DOS) announced a temporary suspension of routine visa services at all U.S. Embassies and Consulates around the world. All immigrant and non-immigrant visa appointments will be cancelled as of March 20. The DOS will resume visa processing as soon as possible and will continue to provide emergency services as possible. Travel Restrictions continue. Foreign national travelers who have been present in the following countries within the past 14 days are currently restricted from entering the U.S. (U.S. Citizens, Lawful Permanent Residents and their immediate family members are allowed entry to the U.S. with additional screening.) Countries currently impacted by the travel bans include: China, Iran, Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, Switzerland, and the United Kingdom. Canada and Mexico travel restrictions. Further, the U.S. has announced joint border closures with Mexico and Canada, for at least 30 days, limiting cross-border traffic to “essential travel” in an effort to reduce the spread of COVID-19. Both countries have confirmed that truck and train traffic carrying supplies are considered essential travel and will continue. U.S. Citizens warned to not travel. The U.S. Department of State has issued a Level 4: Do Not Travel Warning and Global Health Advisory warning United States citizens to avoid all international travel due to COVID-19. U.S. employers should consider these rapidly developing changes and consult Polsinelli counsel for updated guidance for specific issues related to immigration compliance.

E-Verify has announced that it is temporarily extending the timeframe to take action to resolve Tentative Nonconfirmations (TNC) from the Social Security Administration or Department of Homeland Security due to office closures to the public. Under the new temporary policies, employers are still required to create E-Verify cases for new hires within three business days from the date of hire.  If the E-Verify case creation is delayed due to the employer’s office closure or other COVID-19 precautions, the employer should select “Other” in E-Verify and enter COVID-19 as the reason. If an employee receives a TNC, the employer must still notify the employee of the TNC result as soon as possible.  If the employee decides to take action to contest the TNC, the employer should notify E-Verify of the employee’s decision. E-Verify works by comparing the information employees provide for Form I-9, Employment Eligibility Verification, against records available to SSA and DHS.  If the information provided by the employee does not match, the case will receive a TNC result, and the employer must give the employee an opportunity to take action to resolve the mismatch.  Employees who choose to take action on a TNC are referred to SSA or DHS. In ordinary times, an employee taking action to resolve a TNC must visit the SSA or DHS office within eight (8) federal government workdays to begin resolving the discrepancy.  Provided the employee has timely visited an SSA field office or contacted DHS, the E-Verify case will be in interim status until a final result is issued. Because of government office closures due to COVID-19, an employee contesting a TNC may not be able to visit an SSA or DHS office within eight business days.  Under the new temporary guidelines, the E-Verify case will then be in an extended interim status.  Once government offices reopen, the employee must then visit the appropriate office to resolve the TNC, ultimately leading to a result that either the employee is authorized or a final nonconfirmation result that the employee is not authorized to work. DHS reminds employers not to take any adverse action against an employee because the E-Verify case is in an interim status, including while the employee’s E-Verify case is in an extended interim case status due to COVID-19 precautions. Employers should consider these rapidly developing changes and consult Polsinelli counsel for updated guidance for specific issues related to immigration compliance.

COVID-19 continues to have far-reaching implications for global mobility and the international workforce in the United States. Polsinelli attorneys are closely monitoring travel restrictions and Department of Homeland Security policy implementations for its impact on workforce mobility and immigration status. Travel Restrictions On March 16, the United Kingdom and Ireland were added to the list of countries with entry restrictions to the United States. The travel restrictions, originally enacted on Friday, March 13 for the Schengen area countries is expanded to include the United Kingdom and Ireland. Entry is suspended for most foreign nationals who have been present in one of the countries listed below at any time within the 14 days prior to their scheduled departure to the U.S. As with the initial ban, U.S. citizens, legal permanent residents, and immediate family members will be exempt from the ban on entry. Travelers should review the restrictions carefully to determine their eligibility for re-entry. Countries currently impacted by the travel bans include: China, Iran, Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, Switzerland and the United Kingdom. American citizens, legal permanent residents and their immediate family members returning to the U.S. from the countries impacted will be required to travel through 13 airports within the U.S., including: Boston-Logan International Airport (BOS) Massachusetts Chicago O’Hare International Airport (ORD) Illinois Dallas/Fort Worth International Airport (DFW) Texas Detroit Metropolitan Airport (DTW) Michigan Daniel K. Inouye International Airport (HNL) Hawaii Hartsfield-Jackson Atlanta International Airport (ATL), Georgia John F. Kennedy International Airport (JFK), New York Los Angeles International Airport, (LAX), California Miami International Airport (MIA), Florida Newark Liberty International Airport (EWR), New Jersey San Francisco International Airport (SFO), California Seattle-Tacoma International Airport (SEA), Washington Washington-Dulles International Airport (IAD), Virginia The DHS, is advising that all travelers to the U.S. from the impacted countries may be subject to heightened screening and must self-quarantine for 14 days after arrival. ESTA Warning U.S. Customs and Border Protection announced that any traveler with a valid ESTA who is covered under the Presidential Proclamation on travel restrictions and who attempts travel or entry to the United States during this time will have their ESTA authorization suspended. ESTA (Electronic System for Travel Authorization) is an automated system that determines the eligibility of visitors to travel to the United States from the 39 visa waiver countries. USCIS Cancellations and Closures United States Citizenship and Immigration Services (USCIS) announced closure of all field offices to the public for the period March 18 to at least April 1. All in-person services will be unavailable during this time. Anyone who has an appointment scheduled during this time, including naturalization ceremonies, biometrics appointments, and final permanent residency interviews, will be rescheduled by USCIS for a later date once normal operations resume. USCIS will continue its non-public facing case processing. Department of State Consulate Closures and Visa Appointment Cancellations U.S. Embassies and Consulates around the world are actively cancelling visa non-immigrant and immigrant visa appointments. The U.S. Department of State is maintaining a webpage to the embassy and consulate announcements regarding COVID-19 restrictions in each country.

The H-1B season is in full swing.  Although U.S. Citizenship and Immigration Services (“USCIS”) has proposed changes to the H-1B, the process remains largely the same for this year.  As in past years, the filing window for H-1B both opens and closes on April 1.  Employers looking to hire or retain talented foreign national professionals should begin the application process as soon as possible. Which employees qualify for an H-1B? The H-1B is available to fill a “specialty occupation,”  defined by regulation as a position that requires “(a) theoretical and practical application of a body of highly specialized knowledge, and (b) attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.” The H-1B is the main work visa for highly skilled professional foreign workers, and the H-1B slots are in short supply. A total of 85,000 H-1B visas are available each year, with certain preference given to foreign nationals with Masters Degrees or higher from US colleges. Employers may file H-1B applications six months before the start of the new fiscal year, which means the filing window for H-1B applications opens each year on April 1.  Each year the demand for H-1B visas greatly outweighs the supply, with approximately 200,000 applications filed on April 1.  As more applications are filed than visas are available, USCIS conducts a random lottery to select the applications for consideration. Why begin the application process now?  A proper and well-considered H-1B application takes time to prepare.  First, employers must file a labor condition application (“LCA”) with the U.S. Department of Labor (“DOL”).  The LCA requires the employer to attest 1) to the wages to be paid to the foreign worker; 2) that the employer is providing working conditions that will not adversely affect the working conditions of workers similarly employed; 3) that there is not a strike or lockout in the occupational classification at the place of employment; and 4) that the employer has provided notice of the filing of the LCA.  Although the DOL typically processes LCA applications within seven days, delays can occur, particularly at this time of year when so many employers are preparing to file H-1B applications in the lottery. After the LCA is certified by the DOL, the employer must file a petition with USCIS seeking approval to employ the foreign worker in H-1B status.  An employer cannot file the H-1B petition without first obtaining DOL certification of the LCA. The H-1B application process has become more challenging for employers over the last two years. Under the Administration’s Buy American Hire American Executive Order, USCIS is more likely to question the merits of H-1B filings, particularly focusing on whether a position truly qualifies as a specialty occupation.  This increased level of scrutiny means that employers should take care when preparing and documenting an H-1B application.  Care is needed when analyzing if a position reasonably is a specialty occupation, and then determining the best information and documentation available that an employer may provide to persuade USCIS. The H-1B lottery system, along with a more difficult adjudications environment, present continuing obstacles for employers looking to hire key talent. Although time is running short for this year’s lottery, interested employers have not yet reached closing time. For more information on the H-1B process, contact your Polsinelli attorney or a member of the Polsinelli Immigration practice group.

On July 17, 2017, the U.S. Citizenship and Immigration Services (“USCIS”) released a new version of Form I-9, Employment Eligibility Verification. USCIS reports that employers can use this revised version immediately or continue using the previous Form I-9 (which references a revision date of November 14, 2016) through September 17. Starting on September 18, employers must use the new version Form I-9 (with a revision date of July 17, 2017). Employers must also continue following existing storage and retention rules for any previously completed Form I-9 as well as for the new form. See the new I-9 and completion instructions here. Why This Change is Important In the event of an Immigration and Customs work site investigation, an employer’s failure to record a new hire’s identity and employment authorization on the proper version of Form I-9 may be considered a substantive violation or a technical violation. Substantive violations or uncorrected technical violations can subject an employer to civil fines ranging from $216 to $2,156 per employee. The changes made by USCIS to Form I-9 include minor revisions to the Form I-9 instructions, changing the name of the Office of Special Counsel for Immigration-Related Unfair Employment Practices to its new name, Immigrant and Employee Rights Section, and removing “the end of” from the phrase “the first day of employment.” In addition, several changes were made to the list of Acceptable Documents. The Consular Report of Birth Abroad has been added as a List C document, and USCIS renumbered all List C documents except the Social Security card. For example, the employment authorization document issued by the Department of Homeland Security on List C changed from List C #8 to List C #7. As the Administration is focusing on immigration worksite compliance, we recommend employers review current compliance practices and procedures to ensure that all requirements are being met.

Beginning on April 3, 2017, the United States Citizenship and Immigration Services (USCIS) will suspend processing of all H-1B petitions. USCIS reports the suspension may last up to six months. The suspension applies toallH-1B petitions filed on or after April 3, 2017, and as H-1B petitions filed as part of this year’s H-1B lottery may not be received prior to April 3rd, all H-1B lottery petitions are also included in the suspension. According to USCIS, the suspension is needed to better allocate adjudications resources and help reduce overall H-1B processing times, which are presently running six to eight months. What is Premium Processing? Premium processing service provides expedited processing for certain employment-based petitions and applications. The fee for premium processing is $1,225—which is in addition to the other required government application filing fees. USCIS guarantees 15 calendar day processing to those petitioners or applicants who choose to use this service or USCIS will refund the Premium Processing Service fee. Some Practical Implications of the Suspension Employees in H-1B status are allowed to remain and continue working for up to 240 days while an H-1B extension is processed. However, many states link the expiration date of a driver’s license to the end date of approved H-1B employment, and some of these states will not allow for an extension of the license without an approved (rather than filed) H-1B extension. The premium processing suspension may leave H-1B nonimmigrants without legal driving privileges which could impact their ability to travel to/from work. In addition, H-1B employees traveling outside the United States require a valid H-1B visa stamp issued by a U.S. Consulate to return to the U.S. In order to apply for a visa an H-1B employee must have a current H-1B approval, which means that employees with H-1B extensions on file with USCIS, but not yet approved, will not be allowed to renew H-1B visas. The suspension of premium processing may require employers to defer H-1B employees’ international travel to avoid having employees stranded outside the U.S. waiting for H-1B approval under regular processing. Requesting Expedited Processing During the Suspension While premium processing is suspended employers may submit a request to expedite an H-1B petition if they meet the following criteria: severe financial loss, emergency situation, humanitarian reasons, a nonprofit organization whose request is in furtherance of the cultural and social interests of the United States, USCIS error, or a compelling interest of USCIS. USCIS will review expedite requests on a case-by-case basis and requests will be granted at the discretion of USCIS leadership. The burden is on the applicant or petitioner to demonstrate that one or more of the expedite criteria have been met. At this point, we do not know how generous USCIS may be in granting expedited processing. Steps for Employers to Take We recommend employers immediately review all employees in H-1B status and determine if extensions should be filed under premium processing before the April 3, 2017 suspension takes effect. Employers may file an extension within 180 days from the end date of H-1B status. In addition, employers should review international travel plans for all H-1B employees for the coming year and determine whether travel is advisable or should be delayed. Finally, employers should determine whether H-1B employees may be delayed in renewing driver’s licenses and develop transportation contingencies to ensure H-1B employees are able to make it to work.

On May 4, 2016, U.S. Citizenship and Immigration Services published a notice of proposed rulemaking regarding changes to the USCIS filing fee schedule. USCIS is proposing to raise immigration benefit application filing fees by an average of over 20%. USCIS is primarily funded by immigration benefit request fees charged to the applicants, and these filing fees comprise 94% of USCIS’s annual budget of $3 billion. USCIS last raised immigration filing fees in 2010, and the agency has justified the increase as necessary to fully recover the costs of services, to maintain an adequate service level, and to allow for processing and technological improvements. Over the last six years, USCIS has seen a significant increase in the number of benefits applications filed. While applications filed by employers have remained steady, applications filed by individuals for naturalization have increased 25%, applications for permanent residence by 15%, and applications to replace expiring permanent resident cards by almost 50%. USCIS’s proposal would raise the base filing fees on employers sponsoring work visas between 20-40%. Foreign nationals filing for permanent residence will see the application fee rise to $1,140 from its current $985, a 16% increase. Those seeking US citizenship will pay an additional 8%, from $595 to $640. At the other end of the spectrum, high net worth investors seeking permanent residence through the EB-5 visa program will see the filing fee increase from $1,500 to $3,675, while the fee for entities seeking designation as EB-5 Regional Centers will skyrocket from $6,230 to $17,795, a raise of 186%! The rule increasing the fees is expected to become final later this summer. In this case, time really is money, and we strongly suggest employers and foreign nationals file their benefits applications quickly to avoid the coming price hikes.

On September 25 USCIS rolled back the program granting certain foreign nationals the ability to file to adjust status to permanent resident (Form I-485).  Previously, USCIS had announced a coordinated effort with the Department of State (DOS) to revise the procedures for determining visa availability for applicants waiting to file for employment-based or family-sponsored preference adjustment of status. The earlier pronouncement and announced filing dates would have permitted many employment based Chinese, Indian, and Filipino immigrants to file to adjust status.  A foreign national filing to adjust status is eligible for temporary work and travel benefits while the case is processed, and spouses and dependent children are able to file for these benefits as well.  Over the past two weeks many foreign nationals and their families have been busy preparing applications in anticipation of the I-485 filing window opening on October 1. Unfortunately for many of these individuals, the rollback announced on September 25 will delay their ability to file for permanent residence and to receive work and travel authorization.  For example, the original pronouncement would have allowed Indian nationals with advanced degrees (EB2 category) to file to adjust status if their priority date was prior to October 1, 2011.  Under the new cutoff dates announced on September 25, only those Indians in the EB2 category with priority dates before July 1, 2009 may file.  Similar rollbacks in the I-485 filing dates are present for Chinese and Filipino professionals. Although many employment based immigrants will be disappointed to learn of the filing delay, we are hopeful the filing dates will advance over the coming months as USCIS and DOS work out the kinks in the new program.  Check back with us as we will continue to monitor developments in this important area that impacts so many employees who have been waiting years to complete the permanent immigration process.

As announced on September 9th, effective October 1st U.S. Citizenship and Immigration Services (USCIS) is changing procedures for determining visa availability for applicants waiting to file for employment-based or family-sponsored preference adjustment of status. The revised process will allow many applicants to file applications to adjust status sooner than expected, and enable these applicants to obtain important temporary benefits, such as employment authorization and advance parole. What is Changing: Each month two separate charts per visa preference category will be posted in the Department of State’s Visa Bulletin: Application Final Action Dates (dates when visas may finally be issued); and Dates for Filing Applications (earliest dates when applicants may be able to apply). Applicants can use these charts to determine when to file their Form I-485, Application to Adjust Status with USCIS.  However, once filed the application to adjust status cannot be approved until the Application Final Date is reached. Impact on Foreign Workers: Many foreign nationals have been waiting years for visas numbers to become available so they may file applications to adjust status.  The long wait causes uncertainty and family pressures, and this new initiative will make it easier for foreign workers to remain in and contribute to the US by relieving these tensions.  Not only will qualifying workers be able to file to adjust status, spouses and children under the age of 21 may also file to adjust status along with the principal applicant and obtain work authorization.  Everyday living will become easier for these families, as spouses might choose to enter the workforce and children will find it easier to attend college, obtain driver’s licenses, and have a summer job.   For these workers and families, setting down permanent roots in the US may become a much more attainable reality.

The recent Supreme Court decision in Kerry v. Din places limits on immigrant families’ ability to live together in the United States.  In the Din case, a US citizen, petitioned to have her husband immigrate to the United States from his home in Afghanistan.  The husband’s visa application was denied by the US Consulate in Afghanistan on the basis that he had engaged in terrorist activities, but without providing the husband or Din any details. The Din decision provides another significant hurdle when seeking review of visa decisions made by US Consular officials.  The Court found it legally sufficient that the Consulate denied the husband’s visa application by merely citing to the terrorism bar, but without providing any underlying facts. Din filed an action in federal district court in California, claiming that she was denied due process when her husband’s visa application was rejected without a more detailed explanation regarding his alleged terror activities.  Ultimately, the Supreme Court determined the visa denial neither violated Din’s due process rights nor her implied fundamental liberty rights. Writing for the plurality, Justice Scalia found that there is not a constitutional right for a US citizen to live in the US with his or her spouse.  Rather, Justice Scalia reasoned, the denial of the visa application was nothing more than a deprivation of her husband’s ability to immigrate to the US.  And, according to Justice Scalia, no process is due if one is not deprived of life, liberty, or property under the Fifth Amendment. Moreover, Justice Scalia did not find an implied fundamental right in the unity and happiness of the immigrant family that created a due process right for Din.  In short, the Court found that neither Din’s right to live with her husband nor her own right to live in the US was implicated, and as a result her constitutional claims of violation of due process failed. The Dindecision certainly makes it easier for US Consulates to exclude foreign nationals for claimed national security reasons.  Neither the foreign national nor his or her family has a viable mechanism to appeal a visa denial.  While national security is paramount, the potential exists for families to be kept apart based on faulty or incomplete information that is unchallengeable.  Without the protection of due process, it will take an act of Congress to provide for some form of review of this type of Consular decision making. Perhaps not all is lost for Din and her husband.  Justice Scalia pointed out that the couple is free to live together anywhere in the world where both are permitted to reside.