Hello, and welcome back to our Immigration Updates.
 
We are refreshing our updates to ensure that you are up-to-date, in compliance, and to save you time.
 
Immigration remains a hot topic. Our team is privileged to be able to give you advice and guide you in this complex and ever changing process.
 
The first quarter of 2016 and beyond will bring interesting and significant immigration changes.  Below is an outline of what I’m currently following:
 
Mid-January – The U.S. Supreme Court is expected to announce whether it will hear the States’ challenge to President Obama’s executive action on immigration. If the Court takes the case, it will likely issue a ruling in June. 

January 25 - Public comments period ends on the proposed smart Form I-9.  After USCIS reviews the comments, it might make some changes to the form; will publish a second notice in the Federal Register; and the public has 30 days to provide comment before the regulation and form become final.  I provide additional information on the proposed smart I-9 form below. 

February 12 – The federal court’s stay on the vacatur of DHS’ STEM OPT 17 month-extension rule ends.  USCIS received over 50,000 comments to its proposed new STEM OPT rule and has asked the court for an extension on the vacatur until May 10.  If the court does not grant the extension, USCIS might have to return many STEM OPT pending applications.    

February 29 – Public comments period ends on DHS’ proposed rules for employment-based immigration and highly skilled non-immigrant workers visas.   These rules are intended to improve and streamline the immigration process for certain workers.  Some are disappointing.  I provide additional information on the proposed rules below.

April – DOL is expected to publish proposed new PERM regulations to modernize the PERM labor certification process.  The existing PERM regulations were implemented more than 10 years ago and have not kept up with current labor market test practices.
 
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Currently, an approved I-140 petition is automatically revoked if the sponsoring employer withdraws the petition or the sponsor’s business is terminated.  Under the proposed rule, an I-140 that has been approved for 180 days or more would not be automatically revoked solely because of withdrawal by the employer or termination of the petitioner’s business unless there is a finding of fraud, material misrepresentation, revocation of a labor certification or USCIS error.  
 
This is a welcomed benefit for foreign nationals with approved I-140 who will be able to transfer to a new employer and rely on the prior I-140 approval to retain their priority date and extend their H-1B status beyond the statutory six-year maximum.
 

USCIS released a proposed “smart” I-9 form at the end of last year.  This is the 13th edition of the form and it will allow users to complete the form on-line. However, ultimately it is likely that most employers will need to print the form, sign it and store it. The electronic smart features are intended to prevent certain common errors.  The electronic form has a drop-down menu to guide the form completion.
 
Some of the new form features include: help text on the screen for various fields; drop-down lists for the list of acceptable documents in section 2; and a “QR” barcode to facilitate government audits.
 
The current I-9 form expires on March 31, 2016 and it is expected that USCIS will introduce the final new form prior to that date. To read more about the proposed form, click here.
 

This was the question posed and answered by the Office of Special Counsel (OSC) in its December 22, 2015 Technical Assistance Letter (TAL). OSC responded that “except in very narrow circumstances, an employer violates the anti-discrimination provision if it terminates workers or hires their replacements because of citizenship or immigration status.” 

The letter also notes several factors that may be considered in determining whether an employer has violated the anti-discrimination provision. These factors include: (1) whether there is evidence of intentional discrimination in the selection of employees for discharge or rehire, (2) the circumstances surrounding the selection of the third party staffing contractor and (3) the extent to which the original employer could be considered a joint employer of the contract workers. To read the TAL, click here.