Tony Siliato has been selected for recognition in the forthcoming 2019 edition of Who’s Who Legal: Corporate Immigration – a guide to the world’s pre-eminent corporate immigration lawyers. Since 1996 Who’s Who Legal has identified the foremost legal practitioners and consulting experts in business law based upon comprehensive, independent research.
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30NovFirm News Comments Off on Tony Siliato is Recognized by Who’s Who Legal
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28SepUSCIS News Comments Off on USCIS to Begin Implementing New Policy Memorandum on Notices to Appear
U.S. Citizenship and Immigration Services (USCIS) will begin implementing the June 28 Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens Policy Memorandum (PM) (PDF, 140 KB) on Oct. 1, 2018. USCIS will take an incremental approach to implement this memo.An NTA is a document that instructs an individual to appear before an immigration judge. This is the first step in starting removal proceedings. Starting Oct. 1, 2018, USCIS may issue NTAs on denied status-impacting applications, including but not limited to, Form I-485, Application to Register Permanent Residence or Adjust Status, and Form I-539, Application to Extend/Change Nonimmigrant Status.
USCIS will send denial letters for status-impacting applications that ensures benefit seekers are provided adequate notice when an application for a benefit is denied. If applicants are no longer in a period of authorized stay, and do not depart the United States, USCIS may issue an NTA. USCIS will provide details on how applicants can review information regarding their period of authorized stay, check travel compliance, or validate departure from the United States. For further details visit the USCIS web site here.
If you have questions in connection with any of the foregoing, please contact Anthony F. Siliato and Scott R. Malyk of our firm’s Immigration Law Group.
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31AugUSCIS News Comments Off on DHS Announces Adjustment to Premium Processing Fee
The Department of Homeland Security (DHS) is increasing the premium processing fee charged by U.S. Citizenship and Immigration Services (USCIS) for employment-based petitions and applications. DHS is increasing the fee by 14.92 percent, the percentage change in inflation since the fee was last adjusted in 2010 according to the Consumer Price Index for All Urban Consumers (CPI–U). The adjustment increases the fee from $1,225 to $1,410.This rule is effective on October 1, 2018. Applications postmarked on or after that date must include the new fee. Additional information can be found on the Federal Register web site here.
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29AugH-1B Visa News Comments Off on USCIS Extends and Expands Suspension of Premium Processing for H-1B Petitions to Reduce DelaysUSCIS is extending the previously announced temporary suspension of premium processing for cap-subject H-1B petitions and, beginning Sept. 11, 2018, will be expanding this temporary suspension to include certain additional H-1B petitions. USCIS expects these suspensions to last until Feb. 19, 2019, and will notify the public via uscis.gov before resuming premium processing for these petitions.
While H-1B premium processing is suspended, USCIS will reject any Form I-907, Request for Premium Processing Service filed with an affected Form I-129, Petition for a Nonimmigrant Worker. If a petitioner submits one combined check for the Form I-907 and Form I‑129 H-1B fees, both forms will be rejected. For additional details and further information on this topic visit the USCIS web site here.
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26JulI-9 Compliance Comments Off on ICE delivers more than 5,200 I-9 audit notices to businesses across the US in 2-phase nationwide operation
WASHINGTON — U.S. Immigration and Customs Enforcement’s (ICE) Homeland Security Investigations (HSI) announced Tuesday the results of a two-phase nationwide operation in which I-9 audit notices were served to more than 5,200 businesses around the country since January. A notice of inspection (NOI) informs business owners that ICE is going to audit their hiring records to determine whether they are complying with existing law.From July 16 to 20, the second phase of the operation, HSI served 2,738 NOIs and made 32 arrests. During the first phase of the operation, Jan. 29 to March 30, HSI served 2,540 NOIs and made 61 arrests. Additional information on this subject can be found on the ICE web site here.
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25JulI-9 Compliance Comments Off on ICE Raids and Audits Shift into High Gear as Summer Rolls Along
In line with the “warning shot” fired by Immigration and Customs Enforcement (ICE) in its May 14 press release threatening a two-fold increase in I-9 audits over the summer — as discussed in our May 25 alert — ICE visits and raids on unsuspecting employers in Newark, New Jersey and other jurisdictions designated to have “sanctuary status” across the country, have resulted in a substantial increase in the issuance of Notices of Inspection (ICE subpoenas) leading to a concomitant increase in I-9 audits. Indeed, ICE is carrying out its promise to throw a hot blanket over the local business community to make a hot summer even hotter. Thus, an employer’s focus on worksite compliance (i.e.; I-9 compliance) has never been more important, especially for businesses in Newark, New Jersey and its surrounding areas, especially those businesses in the labor, manufacturing and food service/packaging industries.As we close out the month of July and move into August, ICE is actively engaged in a second wave of summer audits, with an overall goal of doubling the number of Notices of Inspection served on employers from 2,281 year-to-date to 5,000 by September 30, 2018. It should also be noted that employer arrests (through the I-9 audit process) are up 91% year-over-year and administrative (alien) arrests are up 255% over the same period. ICE has long term goal to increase the number of ICE audits from 5,000 per year to 15,000 in the coming years.
ICE recently changed the way it calculates civil penalties which, in effect, doubled the amount of fines imposed for I-9 violations. In the wake of those increases, in Fiscal Year 2017, employers were ordered to pay $97.6 million in judicial forfeitures, fines and restitution, and $7.8 million in civil fines. The combination of a substantial increase in the number of I-9 audits and related arrests by ICE, coupled with the doubling of civil penalties assessed, makes this a very credible threat to employers across the United States, but especially those in the labor, manufacturing and food service/packaging industries in sanctuary jurisdictions like Newark, New Jersey.
On that basis, it is imperative for employers to conduct a self-audit of I-9 records and correct any errors or omissions that may be found — once a Notice of Inspection issues, it is generally too late. By taking affirmative steps now, employers can limit the downside risks associated with an I-9 audit. Here are four steps employers should take now as a self-audit to reduce potential risk and exposure to civil (and possibly even criminal) penalties should ICE make a visit to your business and issue a Notice of Inspection:
1. Gather all I-9 forms in one, centralized location: Employers should have an original copy of the Form I-9 on file for every current employee who performs work for the employer in the United States (who was hired after November 6, 1986). Under the retention requirements of the I-9 regulations, employers are also required to maintain original I-9 forms for former employees for a period of three years after the date of hire, or one year after the date employment ended, whichever is later. Use payroll records to ensure that you have all I-9 forms required for current employees or former employees – that is what ICE will do once a Notice of Inspection issues!
2. Create a list of current employees for whom you do not have a Form I-9 on file: Current employees who do not have an I-9 on file will need to be contacted and instructed to bring documentation from List A or Lists B and C of Form I-9 by a date certain. These Forms should be completed properly and dated contemporaneously – never backdate.
3. Review I-9 forms and correct errors (self-audit): As employers work through each Form I-9, to the extent there are errors, use the USCIS Handbook for Employers to determine how to correct each error. According to the Handbook, the best practice in correcting a Form I-9 is to strike a line through the portions of the form that contain incorrect information, then enter the correct information. The reviewer/auditor should also initial and date the correction. To the extent errors are found in Section 1 of the Form I-9, the employee (not the employer’s representative) should be instructed to make those corrections, in the same fashion.
4. Purge I-9 forms of former employees who fall outside of the retention requirements: Destroy all Forms I-9 for former employees who fall outside of the I-9 record retention requirement which is, again, three years after the date of hire, or one year after the date employment ended, whichever is later. Also, create a spreadsheet of former employees to provide you with an overview of when the business can purge those records.
In addition to conducting an initial self-audit, it is also a good practice to train your Human Resources and/or Recruiting staff and managers on how to properly complete a Form I-9, and what actions they should take when they are made aware that an employee may not be authorized to work in the U.S. It is also a good practice to retain outside immigration counsel to conduct staff trainings and periodic I-9 self-audits.
If you have any questions in connection with any of the foregoing, please contact Anthony F. Siliato and Scott R. Malyk of our firm’s Immigration Law Group.
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19JulH-1B Visa News, USCIS Policy Updates Comments Off on USCIS Memos Continue the “Just Say NO” Policy Shift to Non-Immigrant WorkersTwo recent policy memos from U.S. Citizenship and Immigration Services (USCIS) will adversely affect the ability of non-immigrant workers (such as H-1B workers) to remain in the United States legally.
USCIS has instructed its adjudicators to deny visa petitions (including extensions of stay) on certain cases without seeking further information or stating a reason for the denial. This will permit USCIS to deny visa petitions without issuing requests for more information (i.e., Requests For Evidence (RFEs) which are becoming more commonplace). In a memo issued on July 13 announcing the change, USCIS said it was intended to prevent frivolous filings and incomplete filings intended as “placeholders.” The memo applies to most visa petitions (e.g., H-1B, L-1, TN-1, O-1), but not to Deferred Action for Childhood Arrivals (DACA) applications.
Such policy memo arose after the publication of another USCIS memo stating that USCIS would start referring people for deportation when it denies a visa petition and that denial leaves the foreign national with no legal immigration status.
These changes are likely to result in more deportation proceedings. This is so because USCIS may start responding to more and more visa petitions by denying them, perhaps resulting in the foreign national being placed in deportation proceedings if his/her authorized stay has expired while the petition was pending.
As a result of the foregoing, the adjudication process of non-immigrant visa petitions is now more unforgiving than ever and employers are cautioned that no petition may be considered routine.
Indeed, the concert of these two memos makes it incumbent for both employers and their immigration counsel to prepare the most thorough non-immigrant visa petition as possible (whether it be a transfer or an extension) and evaluate whether premium processing (at an additional filing cost) is warranted so the foreign national remains in valid immigration status at all times pending final adjudication.
The memos come after a series of other policy changes that scrutinize H-1B petitions for not only H-1B workers who are placed at third party client locations, but also H-1B petitions for many job classifications that previously were not questioned as being specialty occupations (e.g., Computer Systems Analysts, Management Analysts and Operations Research Analysts), making it more difficult than ever for employers to sponsor qualified H-1B workers.
In light of the foregoing, now more than ever, it behooves employers to engage experienced immigration counsel when seeking to employ (or continue to employ) foreign national workers.
If you have any questions in connection with any of the foregoing, please contact Anthony F. Siliato and Scott R. Malyk of our firm’s Immigration Law Group.
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27JunGlobal Immigration Comments Off on Supreme Court Upholds Trump Travel Ban
The Supreme Court of the United States upheld President Trump’s September 24, 2017 Proclamation (Travel Ban 3.0), which currently excludes nationals from seven countries, stating that the proclamation was “squarely within the scope of Presidential authority under the INA.” (Trump v. Hawaii, 6/26/18). Chief Justice Roberts delivered the opinion of the Court, and Justices Kennedy, Thomas, Alito, and Gorsuch joined. Justice Breyer filed a dissenting opinion, in which Justice Kagan joined. Justice Sotomayor filed a dissenting opinion, in which Justice Ginsburg joined. The Court’s opinion in this case can be found on the SCOTUS web site here.If you have any questions in connection with the foregoing, please contact our firm’s Immigration Law Group at (973) 602-3455.
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25MayI-9 Compliance Comments Off on Immigration Crackdown: Substantial Increase In I-9 Audits Anticipated Over The Summer And Beyond
An employer’s focus on worksite compliance (specifically I-9 compliance) has never been more important than it has become under the new administration. The combination of a substantial increase in the number of I-9 audits and related arrests by U.S. Immigration and Custom’s Enforcement (ICE), coupled with the doubling of civil penalties assessed, makes this a very credible threat to employers across the United States.Linked here is a recent Press Release from ICE, dated May 14, in addition to a companion article published in the NY Times the same day.
The information contained in ICE’s Press Release is unprecedented and should serve as a stark warning to U.S. employers — ICE will be engaging in a second wave of ICE audits over this summer, with an overall goal of doubling the number of Notices of Inspection (ICE subpoenas) served on employers from 2,281 year to date to 5,000 by September 30, 2018. You should also note from the links above that employer arrests (through the I-9 audit process) are up 91% year-over-year and administrative (alien) arrests are up 255% over the same period.
ICE also has longer-term plans to increase the number of ICE audits from 5,000 per year to 15,000 inthe coming years.
On that basis, it has never been more important to conduct a self-audit of your Company’s I-9 records as, once a Notice of Inspection issues, it is generally too late.
Learn from the example made of Asplundh Tree Experts, Co., one of the largest privately-held companies in the U.S., in which ICE levied the largest civil settlement in its history of $95 Million for knowingly [engaging in a pattern and practice of] hiring unauthorized employees.
If you have any questions in connection with any of the foregoing, please contact Anthony F. Siliato and Scott R. Malyk of our firm’s Immigration Law Group.
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15AprH-1B Visa News Comments Off on USCIS Completes the H-1B Cap Random Selection Process for FY 2019
On April 11, USCIS used a computer-generated random selection process to select enough H-1B petitions to meet the congressionally-mandated cap and the U.S. advanced degree exemption, known as the master’s cap, for fiscal year (FY) 2019.
USCIS received 190,098 H-1B petitions during the filing period, which began April 2, including petitions filed for the advanced degree exemption. USCIS announced on April 6, that it had received enough H-1B petitions to reach the statutory cap of 65,000 and the master’s cap of 20,000. USCIS will reject and return all unselected petitions with their filing fees unless the petition is a prohibited multiple filing.
USCIS conducted the selection process for the master’s cap first. All unselected master’s cap petitions then became part of the random selection process for the 65,000 cap.
USCIS will continue to accept and process petitions that are otherwise exempt from the cap. Petitions filed for current H-1B workers who have been counted previously against the cap, and who still retain their cap number, will also not be counted towards the FY 2019 H-1B cap. USCIS will continue to accept and process petitions filed to:
• Extend the amount of time a current H-1B worker may remain in the United States;
• Change the terms of employment for current H-1B workers;
• Allow current H-1B workers to change employers; and
• Allow current H-1B workers to work concurrently in a second H-1B position.
For additional details on the H-1B visa cap visit the USCIS web site here.
If you have any questions in connection with the foregoing, please contact our firm’s Immigration Law Group at (973) 602-3455.
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