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 When an employer is notified or discovers that an employee's C11 work authorization has been revoked, the employer should not immediately terminate the employee.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 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.

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.

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.

On Wednesday, March 11, 2020, President Trump signed an Order that prohibits foreign nationals from traveling to the U.S. if they have the have been physically in the European countries making up the Schengen area within the 14 days prior to departure.  These countries include: Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, and Switzerland.   It should be noted that the United Kingdom is currently excluded from the list of countries.  The ban will take effect on Friday, March 13, at 11:59 P.M EDT. Exceptions to the travel ban include: U.S. Citizens, U.S. Permanent Residents (LPR), and Spouses of U.S. Citizens and LPRs. However, they may be subject to additional screening upon arrival.  Additional exceptions are included in the Proclamation, and we encourage anyone who is or has been present in the Schengen area in the previous 14 days and needs to return to the U.S. to read the Proclamation carefully to determine the applicability of the exceptions and restrictions.  Travelers should contact their airline regarding return to the U.S. Those planning to return to the U.S. must be traveling on a flight that departs before 11:59 P.M. EDT on Friday. Companies with foreign workers based in the U.S. who may be traveling overseas should take action immediately to assess the legal status of the workers and determine if emergency relocation back to the U.S. is needed.  Those returning from overseas should be advised to expect additional screening upon re-entry, and if necessary, heightened monitoring or quarantine for a period of at least 14 days after re-entry. Polsinelli attorneys are closely monitoring the effects of the Covid-19 virus spread on the global mobility needs of U.S. employers.  Should you have any questions, please reach out to your Polsinelli immigration attorney.

A new version of the Form I-9 has been released by U.S. Citizenship and Immigration Services (USCIS). Employers may choose to use either the prior version (marked with a 7/17/17 revision date) or the new version (revision date of 10/21/19) until April 30, 2020 but must begin using the new version by May 1, 2020. The new Form I-9 has no substantive changes; however, the instructions now clarify the definition of an authorized representative. The Form I-9 instructions state: “You may designate an authorized representative to act on your behalf to complete Section 2. An authorized representative can be any person you designate to complete and sign Form I-9 on your behalf. You are liable for any violations in connection with the form or the verification process, including 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.” The instructions also further clarifies the use of N/A in Section 2. An employer does not need to write N/A in columns that are not being used for documentation. Form I-9 Completion and Retention – Form I-9s are subject to Inspection All U.S. companies must complete and retain the Form I-9 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. Companies’ I-9 forms are subject to inspection, and, notably, U.S. Immigration and Customs Enforcement (ICE) audits have increased nationwide. In FY2018, ICE Homeland Security Investigations (HSI) an investigative unit of Department of Homeland Security (DHS), opened 6,848 worksite investigations compared to 1,691 in FY17; initiated 5,981 I-9 audits compared to 1,360 the year before; and made 779 criminal and 1,525 administrative worksite-related arrests compared to 139 and 172, respectively. The current administration has increased staffing of ICE HSI to conduct comprehensive I-9 audits with increased issuance of “Notices of Inspection” (NOIs) under a directive by the current administration.  Last year, ICE announced that over 3,000 NOIs were expected as part of a nationwide surge in ICE investigations in worksite enforcement. NOIs are civil administrative audits that can carry fines from $230-$2,292 per form for substantive and technical uncorrected violations. In some cases, these civil audits can lead to worksite investigations that are criminal in nature, resulting in the more severe “raids” on employers as well as increased monetary penalties and potential imprisonment. During the NOI process, the company only has three business days to turn over their I-9 forms, supporting documents, company information, ownership and payroll records, any applicable E-Verify account information and any SSN no-match letters, and contractor or staffing agency information, for review by ICE. These NOIs are a primary tool for ICE to conduct thorough investigations and are impacting a wide range of employers from small to large companies across all industries. What an Employer needs to know for I-9 Compliance - before receiving a Notice of Inspection As background, it is unlawful for an employer to knowingly employ an unauthorized worker, and the completion of the Form I-9 is a legal requirement for all new employees hired since November 6, 1986. All U.S. employers are required to verify that the individuals they hire are authorized to work in the United States, including citizens and noncitizens, under the Immigration Reform and Control Act ("IRCA") of 1986 by completing the Form I-9. The Form I-9 is a required form used to verify employment eligibility for individuals hired within the United States.  Failure to comply with these laws and regulations may result in ICE imposing criminal and civil sanctions upon employers. Proactive steps for staying I-9 compliant Employers should be diligent in having systems in place which address I-9 training, completion, storage, audits, and re-verification. More importantly, compliance training on how to conduct inspection of original, unexpired documents with a new hire is essential to fully train hiring managers, HR staff, supervisors, recruiters and anyone else involved in the hiring and onboarding process. In addition, employers should implement an onboarding process that includes strict timeframes for timely completion of the Form I-9. Late completions will likely result in high fines: Section 1 must be completed by the first day of work, and Section 2 must be completed within three business days of the start date. Quick tip: the Form I-9 can be completed before the start date as long as there has been an official offer and acceptance by the new hire. Going green with paperless electronic I-9 systems Many employers are becoming more sophisticated with using electronic I-9 forms instead of paper forms. However, they should carefully vet systems for compliance with the electronic I-9 regulations, including review of the system’s security, indexing capability, audit trails and electronic signature requirements, and utilize a well-designed electronic I-9 system which will enable employers to ensure forms have been filled out properly and are up-to-date. https://www.federalregister.gov/documents/2010/07/22/2010-17806/electronic-signature-and-storage-of-form-i-9-employment-eligibility-verification An electronic I-9 system can reduce the retention of paper I-9s as well as make the process more efficient for many employers. Even with an electronic I-9 System, it is critical for employers to conduct regular training sessions with individuals responsible for the completion and retention of I-9 forms. ICE may also request access to a company’s electronic system through an I-9 Demo to confirm compliance. Self-audits with outside counsel with I-9 expertise Due to the uptick in I-9 audits and investigations, employers should conduct internal audits of their I-9 records on a regular basis. Internal audits help employers stay in compliance with the laws and regulations set forth by the government.  It is a best practice for employers to conduct self-audits under the guidance of experienced counsel who can assist with answering questions related to employment verification, spot and address recurrent issues, and develop a remediation plan if errors are present. A remediation plan can help employers address critical issues on I-9 forms and limit exposure in the future. Being proactive can help alleviate serious penalties and fines in the event of an ICE audit. What to expect once you have received a NOI? ICE can compel a review of an employer’s I-9 forms and related documents by serving the employer with a NOI.  Generally a NOI will seek production of all I-9 forms for current and terminated employees, any policies and procedures in place related to employment eligibility verification (I-9/E-Verify), list of current and terminated employees (ICE may ask for a specific date range), business licenses, payroll data, and copies of correspondence from the Social Security Administration office regarding any mismatched or no-matched social security numbers. Once the employer has been served a NOI, the employer will usually be provided three days to respond to the government’s request. The employer should contact their counsel immediately.  NOIs should be taken with the utmost priority and their response submission should be well-organized for the government. Failure of compliance may result in hefty fines. What is a SSN No-Match Letter? Employers should also be on the alert for SS No-Match letters which have re-emerged last year as part of an increased focus on compliance. In early 2019, the Social Security Administration (SSA) office resumed the process of sending letters to employers to advise if an employee’s Form W-2 did not match the SSA’s records. Approximately 575,000 employers have received these no-match or correction request notices. A no-match letter, formally known as an Employer Correction Request (EDCOR), informs an employer where at least one name and Social Security Number (SSN) combination on a W-2 submitted by the employer do not match SSA’s records. The letters do not identify by name specific employee(s) who have incorrect information within the system. If an employer receives a no-match letter, it must first register for the SSA’s Business Services Online (BSO). Once registered with BSO, an employer can log on to view and correct the name and SSN errors. The employer should take these necessary steps to correct the information: Check the reported no-match against personnel records; Inform the employee of the notice; Ask employee to confirm his or her name and SSN. If the exact name or SSN was not previously reported, correct it on a Form W-2C; Advise employee to contact SSA and accordingly update their SSA records to resolve the issue. Have the employee notify you once it has been resolved; If an employee can’t resolve the no-match error for his or her name or SSN, consult legal counsel about how to proceed. For any I-9 compliance questions, please reach out to your Polsinelli attorney or a member of our Immigration Practice Group.

The New Year will bring significant changes to the H-1B lottery selection process and  employers can look forward to a more efficient H-1B cap selection process. USCIS has announced the “Registration Requirement for Petitioners Seeking to File H-1B Petitions on Behalf of Cap-Subject Aliens” will be fully implemented for the Fiscal Year 2021 H-1B cap filing season. The initial registration period will open from March 1, 2020 to March 20, 2020.  During this period of time, employers or their authorized representatives will submit an individual registration for each foreign national it wishes to sponsor for an H-1B for a fee of $10 per registration. Once the registration period closes, USCIS will randomly select the number of registrations necessary to fulfill the H-1B visa quota allotment.  Consistent with last year’s changes, USCIS will select 65,000 H-1B petitions from all cases received, inclusive of regular cap cases and advanced degree exception cases. USCIS will then select from the remaining advanced degree exception cases to fill the remaining 20,000 available H-1B slots. USCIS has indicated they will be posting step-by-step instructions informing registrants how to complete the registration and announcing key timelines on the USCIS website, and we will continue to provide updates as these become available. Given the anticipated changes, we encourage employers to start now in identifying employees or anticipated employees who wish to be sponsored for the H-1B. Potential applicants and positions should be vetted for H-1B eligibility prior to the pre-registration deadline. Please contact your Polsinelli attorney for assistance or more information.

United States Citizenship and Immigration Services (USCIS) is reminding E-Verify users that they will purge historical E-Verify records on January 2, 2020.  As of this date, companies will no longer have access in E-Verify to records more than 10 years old.   USCIS conducts this annual purge to reduce security and privacy risks associated with government retention of personally identifiable information. E-Verify, as a term of participation, requires participants to record or print and file the E-Verify case verification number associated with each corresponding form I-9, Employment Eligibility Verification.To ensure compliance, prior to January 2, 2020, employers should download a Historical Records Report which encompasses cases more than 10 years old. The Historical Records Report will contain the following information: Company Name and Location Initiated dated and corresponding verification case number Employee Name and Date of Initial Resolution Date of Additional Resolution and Final Status Case Closure Date and Case Closure Description In addition to downloading and saving the Historical Records Reports, employers should use this opportunity to review I-9 and E-Verify records to ensure every I-9 record has a corresponding E-Verify verification case number recorded or printed and filed with the I-9.  Any deficiencies in documentation should be rectified prior to January 2, 2019.  As a reminder, the ten year purge will only affect companies who have been registered E-Verify users for more than 10 years and only employees who would have been subject to E-Verify at the time of hire. If you have any questions about E-Verify and I-9 Compliance or becoming an E-Verify employer, we encourage you to contact your Polsinelli counsel.

The Equal Employment Opportunity Commission (“EEOC”) recently announced that EEO-1 Reporting will open in early March 2019, and covered employers must submit their EEO-1 reports on or before May 31, 2019.  The EEO-1 filing deadline was extended due to the lapse in the EEOC’s appropriations.  According to the EEOC, more specific information about EEO-1 filing will be published “in coming weeks.” What is the EEO-1 report? The EEO-1 report is conducted annually under the authority of Title VII of the Civil Rights Act of 1964 (as amended). Covered employers must file this report annually, which includes, among other things,  a count of employees by establishment and job category, with race and gender information for every employee. Which employers must file an EEO-1 report? All private employers with 100 or more employees that are subject to Title VII of the Civil Rights Act of 1964, as amended. Some private employers with fewer than 100 employees, if the employer is owned or affiliated with another employer -- or there is centralized ownership, control or management -- so that the employers together legally constitute a single enterprise, and the entire enterprise employs a total of 100 or more employees. Federal contractors that employ 50 or more employees and are prime contractors or first-tier subcontractors and have a single contract, subcontract or purchase order amounting to $50,000 or more. Who are considered “Employees”? The EEO-1 instruction booklet defines “Employee” as any individual on the payroll of an employer who is an employee for purposes of the employer’s withholding of Social Security taxes. This includes full and part-time employees. The definition of “Employee” does not include individuals who are temporarily hired on a casual basis for a specified time, or for the duration of a specified job. How is this data used? The Office of Federal Contract Compliance Programs (OFCCP) reviews EEO-1 data when selecting employers to audit, and may further cross-reference EEO-1 data with a contractor’s affirmative action plan.  Accordingly, federal contractors and subcontractors should pay careful attention to how their EEO-1 is completed. What are common errors with EEO-1 reports? Not preparing a separate report for each establishment, or reporting all employees in the “Headquarter Report.” Not providing notice to the EEO-1 Joint Reporting Committee that the filing employer experienced a merger, acquisition, or spinoff. Failing to include employees who chose not to self-identify race or gender.  An employer is required to report on all “Employees.”  Even if an employee declines to self-identify, the employer must still report both race and gender for that employee.  There is no “unknown” race or gender category.  While self-identification is the preferred means for obtaining race and gender information, employment records or visual identification may be used. Polsinelli continues to monitor the opening date for the EEO-1 and whether there are modifications to the report.Stay tuned to Polsinelli at Work for further updates.

With the H-1B cap season upon us, the government continues to churn out substantial updates and changes that impact how this year’s H-1B cap season will progress, including new impacts on the foreign workers’ family members. As discussed in greater detail in our recent blog post, U.S. employers seeking to fill a position requiring a bachelor’s degree (or higher) in a specific field can file an H-1B visa application with U.S. Citizenship & Immigration Services (USCIS) on behalf of a foreign worker who meets those credentials. The number of H-1B visas issued annually is limited to 65,000, with 20,000 additional visas for those with U.S. master’s degrees.  The filing window opens on April 1 each year for an October 1 start date, and USCIS runs a random lottery selection system in early April to select cases for processing. Traditionally, USCIS selected 20,000 cases from the U.S. master’s degree pool and then selected another 65,000 cases from the pool at large.  Beginning this year, however, USCIS will reverse the order in which applications are drawn, choosing 65,000 cases from all applications first, and then picking 20,000 cases from U.S. master’s degree only cases.  This change is mostly welcomed by U.S. employers, especially those with many U.S. master’s degree applicants, as it is intended to increase the number of master’s cases selected. The selection reversal is a result of the newly promulgated H-1B rules, which include a new electronic pre-registration system for H-1B cap cases.  USCIS has postponed the roll-out of the registration process until after this cap season, to the relief of many employers and immigration practitioners throughout the country. However, still in time for this year’s H-1B lottery, USCIS has announced changes to the process by which spouses and children of H-1B workers (those applying for H-4 status) file for their immigration status.  This development has been met with less optimism, and the changes signal longer processing times and expected delays for dependent spouses and children of H-1B workers. Effective March 11, 2019, all H-4 applicants (as well as others using Form I-539) must use the new version of Form I-539, which will be released that day.  The new version of Form I-539 will include a separate I-539A supplement for each additional applicant (e.g., minor child).  In addition, each family member must attend a biometric screening appointment and pay an additional fee of $85.  The new biometric screening requirement means that H-4 spouses and children will have to wait for appointments for fingerprints/photographs/iris scans before their applications can progress.  Moreover, those H-4 spouses who are eligible to work may experience corresponding delays in their applications for employment authorization (EADs). These new changes bring more uncertainty to the timeline and process by which these cases will be adjudicated, and may also bring about travel and work delays. As a result, working with legal counsel to navigate these issues is strongly recommended.

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.

In any merger and acquisition or other business reorganization, one critical piece should not be MIA: the consideration of immigration issues. If a purchaser ignores or postpones immigration issues until after closing, it can result in very serious consequences, ranging from losing critical employees to visits, fines or penalties from the USCIS (United States Citizenship and Immigration Service) or worse, from ICE (Immigration and Customs Enforcement). Immigration related issues should be addressed before closing, with time to correct any problems. A purchaser’s due diligence should include: Understanding the type of transaction and the difference it makes in certain types of visas. Reviewing the acquired company’s I-9s to find out if it has been complying with the  law, if it has any foreign national employees and, if so, their immigration status. If the acquiring company is assuming the liabilities for I-9 violations it must know, at a minimum, if there is an I-9 for each employee and if the I-9s are completed correctly. So-called “paperwork” I-9 violations, which can occur even if the acquired company never employed a foreign national, carry penalties ranging from $110 - $1,100 for each employee. There are also significant civil and criminal penalties for unauthorized employment of foreign nationals. Identifying the immigration status of every foreign national the acquired company employs to determine what needs to be done to keep them employed by the new company. For example, a common visa, the H-1B, requires that the employee only work for the sponsoring employer. Even if the new company qualifies as a successor in interest -- and under some types of reorganization it may not -- there are steps to be taken to protect the right of a foreign national to work for the new employer and to easily travel. Another visa, the L, is used for the transfer of international company employees and only continues to be valid if the overseas company from which the employee came is part of the acquisition. If not, the new company cannot employ that person. In addition, some foreign national employees may be at various stages of the permanent resident process, the green card, and are being sponsored by the company to be acquired. It is critical that the issues surrounding that process be identified and addressed before the closing. Considering whether the issues of successor in interest and/or the assumption of immigration liabilities, to maintain the immigration status and employment authorization of the acquired employees, require inclusion in the terms of the controlling document. Immigration issues are not second-class or post-closing issues. They need to be identified early in the acquisition process to assure that the new employer, on day one, post-closing, is not saddled with potential liabilities or does not lose valuable employees.

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 April 7, 2016, the U.S. Citizenship and Immigration Service (USCIS) announced that it had received “enough” H-1B petitions to reach the statutory cap – 236,000 for the combined 65,000 visas for fiscal year 2017 and the 20,000 additional petitions filed under the advanced degree exemption. On April 9, the lottery process – the computer-generated random selection system – selected the 85,000 and receipts are now being received for those petitions selected. The statistics are stark: there were, once again, more than three times the number of H-1B petitions submitted than will be selected.Multiple employers in nearly every professional field are waiting to find out if their lottery ticket is a winner: if their engineer, health care analyst, accountant, winemaker, international financial analyst, IT genius, etc. that they need for their business can be hired. Over two thirds will be very disappointed. While there is no perfect solution, there are 6 visa options that, depending on the facts, may be at least a temporary solution. 1. Cap Exempt H-1Bs/“At” Exemption/Concurrent H. Certain entities and certain foreign nationals are exempt from the H-1B caps and may provide a way to avoid the cap. These examples are: employees of institutions of higher education; employees of nonprofit affiliates of institutions of higher education ( including some hospitals); employees of government or non-profit research organizations; employees who are employed by a for-profit entity or a non-profit non-affiliated entity, but who are placed “at” an exempt entity, such as an affiliated hospital, university or research facility, to perform work “directly and predominately to further the essential purposes of the qualifying exempt institution;” employees who have an H-1B for part-time work for an exempt entity may also work for a non-exempt employer who has filed a concurrent H petition for the employee; that concurrent H-1B petition is exempt from the cap; an employee who was counted against the H-1B cap for a job in the last 6 years and has not been outside the U.S. for one year. 2. F-1 Optional Practical Training (OPT). Graduates from U.S. universities qualify for one year of work on their student visa in their field on OPT. Those who have a STEM degree may work in their field for an additional 17 months if the employer is enrolled in E-Verify. Effective in May, those with a STEM degree may work an additional 24 months; those on a current 17 month STEM extension may have it increased to 24 months if they still have 5 months remaining on the original extension. More employers may benefit not only due to the extension, but also because prior degrees may be considered, not just the most current degree. This may enable a STEM extension for a foreign national with, for example, an MBA (not a STEM), and a prior STEM (engineering) bachelor’s degree. 3. NAFTA Visa (“TN”). A TN is an excellent option for a Canadian or Mexican professional. Jobs that qualify are listed in Appendix 1603.D.1 to NAFTA and include most jobs that are typical for H-1Bs. A TN is good for 3 years, is renewable and is an economical, efficient solution for these nationals. 4. O-1A Visa: Extraordinary Ability. Certain foreign nationals who qualify for an H‑1B specialty occupation may qualify for the O-1A if they have “extraordinary ability or achievement” in science, arts, education, business, athletics or the motion picture/television industry. There is no quota for Os and if your candidate has an advanced degree and national or international recognition, an O can be a viable alternative and is worth exploring. 5. J-1 Visa for Intern or Trainee.Foreign national employees on a J visa are typically brought in through an umbrella organization that serves as the sponsor and the employer is the host company. While these are short-term visas (12 months for an intern, 18 for trainee), and typically require a training program, some employers have found them very useful, particularly if the specific J does not require the person to return to their home country for two years. 6. Country Specific Visas: E-3/H-1B1. An E-3 visa is available to Australian nationals for work in a specialty occupation, just like those for an H-1B. While there is a quota, it almost never fills. The H-1B1 visa is available for professionals from Chile (1,400 annually) and Singapore (5,400 annually). In addition to these 6 options, there may be others, such as Curricular Practical Training for part-time work if your proposed employee can enroll in a new degree program as an F-1; an L visa, if the desired employed is employed by an affiliate of your company overseas; or even an E-2 investor or trader visa. All of the visa options are fact-specific and the utility and efficacy of each is driven by the needs of the employer and the country and abilities of the foreign national. The key for the employer is to make that evaluation with an immigration lawyer, exploring all options before deciding to give up on hiring a very desirable employee.

The Department of Homeland Security has released a much anticipated final rule, amending regulations on the F-1 nonimmigrant student visa optional practical training (“OPT”), for certain students with U.S. degrees in science, technology, engineering, or mathematics (STEM) fields. Significantly, the final rule allows qualifying F-1 STEM students who elect to pursue 12 months of OPT employment to extend that OPT period by an additional 24 months. Previously, such students could only apply to extend their initial OPT period by 17 months. The extension will be available for applications filed on or after May 10, 2016. One advantage of the new rule for STEM OPT students and their U.S. employers is the additional opportunities they will gain to submit petitions in the annual H-1B lottery, to obtain H-1Bs for the students. The extension recognizes American businesses’ need for STEM OPT students to fill skills gaps in the United States. In addition to the longer extension, the final rule also improves and increases oversight over STEM OPT extensions by, among other things, requiring employers to implement formal training plans, adding wage and other protections for STEM OPT students and U.S. workers, and allowing extensions only to students with degrees from accredited schools. As with the prior 17-month STEM OPT extension, STEM OPT extensions are only available for students employed by employers who participate in E-Verify. Under the new regulations, before applying for a STEM OPT extension, a STEM OPT student must work with his or her employer to complete and submit the new Form I-983. The form contains questions that determine a student’s eligibility for the extension, and requires that the employer outline the training plan for the OPT student. Specifically, the form requires: A description of the student’s role in the organization and how that role is related to enhancing the student’s knowledge obtained through her STEM degree; An explanation of how the assignments the student will receive will help the student meet his or her specific objectives for work-based learning; An explanation of  how the employer will provide oversight of the individual, with copies of training or other policies that guide such oversight and supervision included; and A description of how the employer will measure whether the student is acquiring the desired skills. Employers must also certify that the terms and conditions of employment (including compensation) for OPT students are commensurate with the terms and conditions of employment offered to similarly situated American workers. Employers are encouraged to consult their immigration attorneys to determine whether students on existing their OPT programs are eligible to apply for the extension and to ensure compliance with the new requirements.

Many of us like to make New Year’s resolutions, and I am no exception. This year I have resolved to dust off all of the exercise equipment in my house and get into shape. I seem to have this resolution every year (with not the greatest success!), and for the last several years I have offered the same New Year’s resolution to employers, which is to get ahead of the curve on the H-1B visa process rather than waiting until the last minute. The H-1B is the main work visa for U.S. employers to employ highly skilled foreign professionals. The filing window for H-1Bs opens each year on April 1, and this past year on the first day of filing, employers filed 235,000 applications for the available 85,000 H-1Bs. The demand for H-1Bs in 2015 was unprecedented, with employers having less than a 40% chance of winning the H-1B lottery and securing H-1B visas for essential employees. As the economy continues to improve we expect an even greater demand for H-1Bs in 2016, so we again suggest that employers begin planning now to maximize their chances of winning the lottery and to explore other possible work visa options. Why now? The H-1B application process involves two distinct steps. First, the employer files a labor condition application (“LCA”) with the U.S. Department of Labor. The LCA requires the employer to attest to the wages to be paid to the foreign worker, that the employer is providing working conditions that will not adversely affect the working conditions of workers similarly employed, that there is not a strike or lockout in the occupational classification at the place of employment and that the employer has provided notice of the filing of the LCA. Second, after the LCA is certified by the DOL, the employer files a petition with U.S. Citizenship and Immigration Services 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. Delays often occur in the LCA process. Although the DOL generally adjudicates LCA applications within seven business days, the sheer number of LCA applications filed at the start of the H-1B filing window often stresses the DOL’s systems. Some employers have been completely shut out of the H-1B lottery due to delays in obtaining LCA approval which prevents the timely filing of the H-1B petition. Getting started on the LCA and H-1B process well in advance of the April 1 filing date, rather than waiting to start until the last two weeks in March, allows employers to overcome potential DOL processing delays. Because employers’ odds of winning the H-1B lottery continue to shrink, we also suggest exploring other work visa options. For example, many foreign students in the U.S. obtain 12 months of employment authorization upon graduation from college. In certain circumstances, foreign students with STEM degrees from a U.S. college are eligible for an additional 17 months of employment authorization (a total of 29 months). Moreover, under a proposed regulation currently being reviewed, the STEM work authorization would be extended to 24 months, providing qualified foreign students a total of 36 months of uninterrupted work authorization. Such a lengthy term of work authorization would provide employers several attempts in the H-1B lottery. Another option to explore is the TN visa, which is available to Canadian and Mexican citizens working in a professional occupation covered by the NAFTA Treaty. The H-1B cap remains a continuing challenge for employers looking to lock up key talent to help their company grow its business. With some advance planning, companies can at least try to tilt the odds a little in their favor.