CBP Announces Electronic Form I-94 Arrival/Departure Record

Form I-94 is the main way in which persons who are not US citizens, and who are not legal permanent residents, demonstrate their legal entry into the US. Customs and Border Protection (CBP) have announced the digital automation of Form I-94 Arrival/Departure, which will standardize travelers’ arrival and inspection processes, and ultimately lower costs and travelers’ wait time. Currently, CBP does not have a fail-safe method of keeping track of non-immigrant departures — an electronic I-94 could eliminate this loophole.

In late March, CBP published an interim final rule to the Federal Register, which redefines the definition of Form I-94 to include the electronic format and will be effective on April 26, 2013. Non-immigrants, who enter the US by air or sea will not have to submit paper Forms I-94.  But those who are subject to secondary inspection and asylees, refugees and parolees, will be required have to submit a paper form given to them by a Customs and Border Patrol officer. Travelers who enter through land border ports of entry will receive paper versions of Form I-94.

CBP will maintain I-94 records for all travelers who require one, but all records will instead be entered into the system in an electronic format and not given to the traveler. CBP will scan the traveler’s passport, creating an electronic arrival record for that person. Travelers will receive a CBP admission stamp on their travel documents, which detail the date and class of admission, and the admitted-until date. Departures will also be recorded electronically — if the traveler has a paper I-94, then he/she must surrender it upon leaving the US.

Some agencies will require a paper copy of Form I-94. USCIS will ask applicants to fill out paper copies when requesting particular benefits; and the State Department of Motor Vehicles (DMVs) will ask for paper copy submissions. In addition, non-immigrants with work authorization can present paper copies of Form I-94 to their employers during the Form I-9 process. If a traveler needs a paper copy of Form I-94, it will be available at www.cbp.gov/I94.

The Takeaway

Since this program is very new, we can expect confusion from all corners for a while, and differences in enforcement and paper documentation requirements from agencies. If you are a non-citizen, who is not a permanent resident, you will not receive a paper I-94 form from CBP as you enter the US, if you come by air or by sea. You will continue to receive a paper I-94 if you come by land from Canada or Mexico, if you require a secondary inspection, or you are a refugee or asylee. The problem is that USCIS and individual state-run agencies, such as drivers licence bureaus, will continue to require the now defunct I-94 form. In addition, it will become important to log onto the CBP website to ascertain that all your details on the electronic record are correct, and to print out a copy for your non-immigrant record. The electronic record will be erased from the system on departure from the US — maintaining a paper copy to prove departure may be useful under these new circumstances.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
Lowenbaum Partnership, LLC
St. Louis, Missouri

The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Tara Mahadevan

Copyright 2013. All rights reserved.

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H1B cap has reached!

USCIS received 124,000 H1B visa applications from Monday April 1, 2013 to Friday April 5, 2013 — the cap has not been filled this fast for about 4 years. The number of applications received includes both cap subject bachelor degree holders and US Master Degree holders for whom a special 20,000 visas are allotted.

US Master degree holders get two bites of the apple, when it comes to ‘cap’ time. All US Master degree applications not counted towards the 20,000 cap will be considered again in the regular cap of 65,000 visas. Master degree applications are subject to the lottery first, before the bachelor degree holders. Please keep in mind also that this 65,000 number is reduced by 5,800 visas set aside for Chile and Singapore, under Free Trade Treaties that the US has signed with these countries. The unused visas from this ‘carve out’ is added back to the general pool of available cap subject visas.

USCIS announced that it conducted a lottery to allot visas using a computer generated selection process on Sunday, April 7, 2013. All those applications not selected will be returned to the employers or attorneys. Of course, the return process may not occur for a while, as applications are vetted for accuracy and correct application fees. Application fees will be returned with the applications if the package is not selected in the lottery.

H1B applications filed with premium processing will be processed in 15 days, if they are selected in the lottery.

No more applications will be accepted by USCIS, but H1B applications to change employers, or extension of visa applications filed by non-profit employers and concurrent H1B employment, can still be filed with USCIS.

The Takeaway

Contact your Senator and Congressional representative to encourage an increase in the number of visas available for H1B visas. H1B visas filed by entrepreneurs are also subject to the cap. Entrepreneurs are employment multipliers for the U.S. economy.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
Lowenbaum Partnership, LLC
St. Louis, Missouri

The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Tara Mahadevan

Copyright 2013. All rights reserved.

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2014 H1B Cap Might Hit in the First Week

Speculation about the H1B visa cap has been all-consuming in the business community. For 2014, USCIS has stated that all 65,000 H1B visas, and 20,000 H1B visas reserved for US Masters degree holders, would be finished in the first 5 days of filing from April 1 (Monday) to April 5 (Friday).

USCIS also stated that it would monitor the number of petitions received and notify the public of the date on which the numerical limit of the H-1B cap had been met, which is called the final receipt date. If USCIS receives more than 85,000 visa application petitions (regular and cap visas, disregarding the carve-outs for Singapore and Chile under Free Trade Agreements signed by the US with those countries), USCIS will use a lottery system to randomly select the number of petitions required to reach the limit of 85,000 visas.

USCIS will reject petitions that are subject to the cap and are not selected. USCIS will also reject any petitions that are received after the necessary number of petitions needed to meet the cap are filled. The last time USCIS conducted a lottery for the H-1B cap was in April of 2008.

The Consequences

Pronouncements like this have led to a frantic need to file on the first day, so that the cap is not missed. The problem is that this artificial season does not necessarily meet the hiring cycles for US business and employers. In other words, US business employment practices are artificially constrained by the necessity to tailor employment hiring practices to coincide with a start on April 1. Depending on the industry, employers hire throughout the year, varying with the ebbs and flow of business.

The Takeaway

Immigration reform proposed by the 8 Senators has a more realistic view of the business world — i.e. releasing visas as the demand grows, in a stepped up basis. Now that we are talking about the ‘reality’ on the ground for employers and business, could we have a more realistic PERM labor system? I know, if wishes were horses…. But I can dream the immigration dream, can’t I?

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
Lowenbaum Partnership, LLC
St. Louis, Missouri

The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Tara Mahadevan

Copyright 2013. All rights reserved.

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Information Sharing Between Canada and the US

On December 13, 2012, US Ambassador to Canada, David Jacobson, and the Canadian Minister of Citizenship, Immigration and Multiculturalism Jason Kenney signed a US-Canada Visa and Immigration Information-Sharing Agreement.

The agreement stipulates that the US and Canada are allowed to share information that concerns third country nationals who are applicants for visa or permit to visit the US and Canada. Such sharing will assist in safeguarding and protecting the security of Canadians and Americans, while promoting travel and business. Additionally, information sharing will cultivate improved decision-making by the two countries: visa applicants will be better screened and risks will be identified more quickly. It will also aid both countries in identifying terrorists, violent criminals and those who are a danger to the respective countries. Officers working in both immigration and refugee protection sectors will be given ample information about all applicants.

The US and Canada have the ability to send an automated request for data to each other, in the even that a third country national applies to either country for a visa or asylum. A request will normally have specific information; biographic information would include name and date of birth, whereas biometric sharing would include an anonymous fingerprint. If any information corresponds with a former applicant, then immigration information — such as if a person already applied for a visa and was refused, or was deported from the country — can be shared between the two countries.

Biographic immigration information sharing will begin in 2013, while biometric sharing will begin in 2014.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
Lowenbaum Partnership, LLC
St. Louis, Missouri

The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Tara Mahadevan

Copyright 2013. All rights reserved.

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The New and Improved I-9 Form

On March 8, 2013, USCIS published a new Form I-9 for employers to use for new hires, which is for immediate use. USCIS received over 6,000 comments on the form and has tried to incorporate some of the suggestions. To ensure that the correct form is being used, look for the form’s date in the lower right-hand corner of the form.

When Should Employers Use the New I-9

The new form is to be used for all new hires. The 3 day rule remains, which is to fill Section 1 within 3 days of starting work. The form can also be filled in advance, as long as an offer of employment has been made and accepted. If the old form was used and the employee has not started work, a new form should be used in lieu of the old form.

The new form should be used for both US citizens and non-citizens, if they are working within the geographical boundaries of the United States of America. If a new office or an employee is hired in Mexico or Canada, there is no obligation to maintain a Form I-9 for the new hire. Employers should use the new Forms I-9 from 8 March, 2013 onwards. Older forms dated 02/02/2009 and 08/07/2009 can be used until May 7th, 2013.

The Spanish version can be filled out by new hires only in Puerto Rico. On the mainland, the Spanish version can be utilized as a translation tool for Spanish speaking new hires, but only an English language version Form I-9 can be filled out by both the employer and employee and retained by the employer.

The New Form

The new form is 7 pages of instruction and two pages of form to be filled. Section 1 occupies its own page, with expanded areas for the employee to fill personal identifying information. The expanded area allows work-authorized non-citizens to complete their information.

Page 2 of the form is divided between Section 2 and 3. Section 2 is renamed to include authorized representative review and Section 3 is now called “Reverification and Rehires”, instead of “Updating and Reverification”. Section 3 is to be used for employees who return to work after an absence of time. Once the initial I-9 is filled out by the employee, the employer cannot ask legal permanent residents or US citizens to present new documents to complete reverification for work authorization.

The Takeaway

The form is more detailed and thus, may have more pitfalls. Print the new form on both sides of the paper to keep both pages together. The 67 page book of “Instructions” is now called “Guidance”. The important step is to start using the new form and to cease using the old form. Section 1 cannot be populated by electronic programs used to ‘onboard’ new hires. Employer liability, audits and monetary fines remain the same under the old and new forms.

We are available to discuss the new form or needs for training and assistance.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
Lowenbaum Partnership, LLC
St. Louis, Missouri

The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Tara Mahadevan

Copyright 2013. All rights reserved.

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The New “Hardship” Filing Rule in Immigration Law

Earlier in January, Secretary of Homeland Security Janet Napolitano announced that on 4 March 2013, USCIS‘s new family unity waiver process will go into effect. The new process will decrease the amount of time US citizens are apart from their immediate relatives — spouse, children and parents — who are in the process of acquiring visas for lawful permanent residency in the US. Particular individuals can fill out a form, called a provisional unlawful presence waiver, before leaving the US and interviewing in their home country.

Final Rule

“This final rule facilitates the legal immigration process and reduces the amount of time that US citizens are separated from their immediate relatives who are in the process of obtaining an immigrant visa,” said Secretary Napolitano.

Current Law

Current law is much different. According to current law, a US citizen’s immediate relatives, who cannot adjust their status to become US lawful permanent residents, must depart the US and acquire an immigrant visa in their country of origin. Those who have unlawfully been in the US for more than six months must obtain a waiver that overlooks their unlawful status and overstay before the can return to the US after going to their home country to appear at  US Embassy or Consulate to be approved for an immigrant visa.  This has  meant that if the waiver was denied by the Consulate abroad, the relative was not allowed to re-enter the United States to be re-united with their family.  A great many people were therefore understandably reluctant to avail themselves of this benefit without a decent chance of a favorable outcome.

Qualifying for a Waiver

In order to qualify for a provisional unlawful presence waiver, the applicant must be an immediate relative of a US citizen, inadmissible only on account of unlawful presence and show that a rejected waiver will end in “hardship” for the applicant’s US citizen relative.  The grounds of waiver remain the same.  The wait time is reduced because the waiver is adjudicated by USICS in the United States and therefore the wait time outside the US is reduced.

The New Process

The new process will have a new form, Form I-601A, Application for a Provisional Unlawful Presence Waiver. Individuals who apply under the new waiver must inform the DOS’s National Visa Center before filing.

The Takeaway

The new waiver process will allow eligible applicants to remain in the US while anticipating the outcome of their application. No more waiting in Ciudad Juarez, where local dangers await the unwary; where being found inadmissible means that families have to make the choice to leave the US, and cannot re-unite with a spouse or parent.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
Lowenbaum Partnership, LLC
St. Louis, Missouri

The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Tara Mahadevan

Copyright 2013. All rights reserved.

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Mandatory E-Verify Bill

Senator Chuck Grassley (R-Iowa) has proposed a new bill to the Senate, The Accountability Through Electronic Verification Act of 2013, that would obligate US employers to utilize E-Verify within 12 months of the bill’s passing. Sen. Grassley is the Ranking Member of the Senate Judiciary Committee, which supervises the Senate’s immigration policy, and is also a member of the Subcommittee on Immigration, Refugees and Border Security. Grassley’s bill was cosponsored by 10 other Republican Senators.

Details of the Proposed Bill

In addition to requiring E-Verify for all American employers, Sen. Grassley’s legislation would:

  • Increases penalties for employers who don’t use the system or illegally hire undocumented workers;
  • Reduces the liability that employers face if they participate in E-Verify when it involves the wrongful termination of an individual;
  • Allows employers to use E-Verify before a person is hired, if the applicant consents;
  • Requires employers to check the status of existing employees within 3 years;
  • Requires employers to re-verify a person’s status if their employment authorization is due to expire;
  • Requires employers to terminate the employment of those found unauthorized to work due to a check through E-Verify; and
  • Helps ensure that the Social Security Administration catches multiple use of Social Security numbers by requiring them to develop algorithms to detect anomalies.

For Employers

In addition to the various labor and employment laws mandated by the States and the Federal Government, mandatory E-verify would impose a larger burden on companies. Perhaps we should address what causes employers to use workers who are not authorized to work, and why these undocumented individuals exist in the workforce despite efforts to root them out!

The Takeaway

Let us emulate Canada, which imports low skilled workers every year — who return to their home countries every winter season. The US needs to increase the number of work visas for both the low skilled, agricultural, hospitality and construction workers. Most of them would like to work legally (less stress) and return. This will reduce ‘coyote’ activity at the border: why would a person risk crossing illegally when they can enter through the border, and return to their homes without the fear of being caught and living in the shadows.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
Lowenbaum Partnership, LLC
St. Louis, Missouri

The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Tara Mahadevan

Copyright 2013. All rights reserved.

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USCIS Enters the Digital Age

In an effort to modernize and systemize immigration policy, USCIS recently launched the USCIS Policy Manual Page. The Policy Manual page will be split into three phases: the first phase is information on USCIS Citizenship and Naturalization policies — following phases will encompass further updates to different areas of immigration law.

USCIS’s new Policy Manual will, at some point, take the place of the current Adjudicator’s Field Manual (AFM). The rejuvenated Policy Manual will digitally streamline most aspects of immigration policy, including policy updates, immigration forms, updated and extended table of contents, and URLs to INA and CFR sections. USCIS will also supply dates for when updates have occurred on the Policy Manual page, which can be found here.

USCIS is making progress towards e-filing and digitizing its data and adjudications. Last May, USCIS introduced its Electronic Immigration System (ELIS) program. The system was created to enable immigration benefit seekers and legal representatives to create an account to file for benefits, and extend visas, online. The program is now moving towards welcoming other visa processes.

Today, immigration law is like a piece of Swiss cheese: if the body of the cheese represents the law, the larger holes are filled in with regulations and the small holes with memos from USCIS Directors. This still leaves some situations unaddressed or ripe for litigation and denials.

The Takeaway

Currently, all the resources for naturalization, laws, regulations, memos and AFM, have been consolidated in the policy manual. We hope highly complex areas, such as H1B visa and L visa filings and adjudications can be consolidated in the policy manual, offering the filer the assurance that all the legal resources related to the filing have been exhausted. This will lend transparency to adjudications and certainty to the law. Dare I dream?

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
Lowenbaum Partnership, LLC
St. Louis, Missouri

The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Tara Mahadevan

Copyright 2013. All rights reserved.

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Why Comprehensive Immigration Reform Has a Chance to Pass This Year

Since President Obama was inaugurated for his second term, he has made Comprehensive Immigration Reform (CIR) a key policy initiative for his administration. Interest groups from the left and right, and even some Republicans, such as Florida Sen. Marco Rubio, are also in support of a comprehensive overhaul of US immigration laws.

Condoleezza Rice (former Secretary of State in the Bush Administration), Henry Cisneros (former Housing and Urban Development Secretary) and Haley Barbour (former Mississippi Governor) are three of 4 leaders spearheading a high profile group by the Bipartisan Policy Center in Washington D.C. The group’s aim is to act as a sounding board, and to assist and shepherd the initiative into law by the summer of 2013.

Bipartisan support continues, as Senators from both parties have also offered Obama a framework of principles that they hope will be included in CIR. This bipartisan group consists of eight senators, four Democrats and four Republicans: Sens. Charles Schumer (D-N.Y.), John McCain (R-Ariz.), Richard Durbin (D-Ill.), Lindsey Graham (R-S.C.), Robert Menendez (D-N.J.), Marco Rubio (R-Fla.), Michael Bennet (D-Colo.), and Jeff Flake (R-Ariz.).

A Round Up of Ideas Offered by Proponents

The draft of the Senators’ proposed bill, entitled the “Immigration Innovation Act”, increases available H1B visas from 65,000 to 115,000 visas every year. It will create a market-based H1B escalator, which will allow for additional visas if the cap is hit early during the filing season, with a ceiling of 300,000 visas. The visas will be adjusted based on market demands.

The 20,000 H1B visa cap for US Masters and PhD students will also be abolished, allowing the US employer to employ foreign students of US universities with advanced degrees without limit.

This bill will provide the ‘plug and play’ workers needed by all sectors of industry, whether it be healthcare or hospitality; workers who are ready to hit the ground running, and keep services for the American consumer consistently available.

In addition, there is a proposal to allow dependents of H1B visas to work on their H4 visas.  Of course, there will be an increase in the filing fee, dedicated to worker re-training at the state level in technical fields.

The senators’ framework stipulates that, before illegal US immigrants can attain “probationary legal status”, they must pass a background check, as well as pay fines and back taxes. Illegal immigrants with serious criminal backgrounds will not be eligible for legal status. Additionally, the framework states that illegal immigrants will not be granted work authorization until the government increases enforcement, such as expanded border surveillance, to protect and secure the nation’s borders.

The President’s Plan Is Not So Differrent

Obama’s proposal for immigration reform comes in four parts:

  1. Strengthen our borders;
  2. crack down on companies that hire undocumented workers;
  3. hold undocumented immigrants accountable before they can earn their citizenship; and
  4. streamline the legal immigration system for families, workers and employers.

Earned Citizenship

Almost 11 million undocumented immigrants live in the US. Obama proposes to give undocumented immigrants the legal means necessary to earn citizenship, which will also persuade them to come out from hiding and pay their taxes and adhere to the rules. Illegal immigrants will be held accountable: before they can obtain citizenship, they must pass national security and criminal background checks, pay back taxes and penalties, learn English, and go to the back of the line. Young people will also have the chance to gain citizenship faster if they seek higher education or serve in the military.

Mandatory E-verify

Sen. Chuck Grassley of Iowa has introduced a mandatory E-Verify bill, which will require all employers to verify the authorized work status of their US workers. Today, the E-Verify system is voluntary; however, Sen. Grassley’s bill requires all employers to comply within 1 year of enactment. The bill will reduce employer’s liability for wrongful termination, and use E-verify to screen an applicant with his/her consent. The bill also imposes a mandate on the Social Security Administration to develop algorithms to detect multiple users of single Social Security numbers.

How will CIR help our economy?

Our economy demands legal immigration that is simple and adept, so that it encourages the best and the brightest to remain in the USA. A shorter wait for permanent resident status for the highly educated immigrants will boost the economy — if it is easier for STEM graduates to stay in the US, they will bolster and create industries, therefore creating jobs.

University education in the US will get a boost from the revenues generated by foreign students and their families; estimates put the revenue generated by foreign students at about $20 to $40 billion dollars every year. Often, American universities spend several hundreds of thousands of dollars educating these students, only to lose them to Canada, Australia, UK and Europe, or the students’ home countries. A chance for these students to remain in the US and pursue their academic and entrepreneurial dreams will add to the economy.

The taxes collected from the highly educated will help ensure that our Social Security and Medicare budgets are met. This revenue stream will be enhanced by offering a chance for a legalized workforce to pay employment-based taxes. These taxes will reduce the strain on American social systems, such as hospitals and schools. A legal workforce will be paid the mandated prevailing wage. Without a Social Security Number, a worker cannot open a bank account, buy car insurance, obtain a driver’s license, or attend school or college. Hence, a legalized workforce will provide a boost to the insurance, banking and finance industries, and increase wages for all, as employers will now pay the legal minimum wage.

The proposals all call for supplemental visas so that foreign entrepreneurs wanting to begin startups, and foreign graduate students with STEM degrees, will either come to the US to work or remain in the US post-graduation. We want, and need, the best and brightest minds for the US to flourish.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
Lowenbaum Partnership, LLC
St. Louis, Missouri

The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Tara Mahadevan

Copyright 2013. All rights reserved.

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Negotiating I-9 Fines

In my previous blog, I wrote about OCAHO negotiating I-9 fines. To negotiate fines either with ICE or OCAHO, the employer must be willing to file a brief with OCAHO to request a hearing, and then ICE may be willing to ‘come to the table’.

Prior to the hearing, the employer and counsel must analyse each count against the company, either to accept or refute and prepare a brief accordingly. Both ICE and OCAHO consider the 5 factor test before negotiating a fine:

  1. The size of the employer’s business,
  2. The employer’s good faith,
  3. The severity of the violation(s),
  4. Whether individuals involved were unauthorized aliens, and
  5. A history of former violations by the employer.

Employers must be careful to tender only Forms I-9, which are for current employees, and refrain from tendering purged documents.

Methodical analysis of the NIF (Notice of Intent to Fine), counts and legal basis is a must in order to be ready to negotiate with ICE and, if necessary, to request a hearing from OCAHO.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
Lowenbaum Partnership, LLC
St. Louis, Missouri

The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Tara Mahadevan

Copyright 2013. All rights reserved.

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