WHAT HR PROFESSIONALS MAY NEED TO KNOW ABOUT BUSINESS IMMIGRATION COMPLIANCE UNDER THE BIDEN/HARRIS ADMINISTRATION Presented by: David H. Nachman, Esq. and Ludka Zimovcak, Esq.

Nachman, Phulwani, Zimovcak (NPZ) Law Group, P.C. (VISASERVE) IMMIGRATION POLICY Trump vs. Biden • Restricting Immigrants vs. Welcoming Immigrants • Family Separation vs. Family Reunification • Restrict Employment Visas vs. Clear Backlogs • Border Wall vs. Border Security BIDEN/HARRIS ADMINISTRATION DAY 1 – key policy changes

Revocation of the Muslim and African Travel bans 100-day pause on deportations Preservation of and plans to “fortify” DACA Declaration of the end of the “national emergency” at the southern border Halt in border wall construction Halt Trump’s plan to exclude undocumented from the census Suspension of new enrollments in the Migrant Protection Protocols program (remain in Mexico) Extension of Deferred Enforced Departure (DED) for Liberians for 18 months 60 Pause on Pending Regulations BIDEN/HARRIS ADMINISTRATION

MORE EXECUTIVE ACTION UNDERTAKEN BY BIDEN

1/25/21 – Reinstates travel restrictions scheduled to be lifted by 1/26/21; Restrictions on individuals from Schengen Area, UK, Ireland, Brazil, South Africa due to covid-19 1/26/21 – All international travelers to the US must provide proof of a negative covid-19 test to airlines within 3 days prior to their departure 1/26/21 – Rule to terminate H-4 EAD’s was withdrawn by Biden Administration What has not changed (yet)

Trump Extended until 3/31/21

Nonimmigrant Visa Ban (NIV BAN) . Suspends H-1B, H-2B; J-1, L-1 and their derivatives . National Interest Exceptions available Immigrant Visa Ban (IV BAN) . Restricting entry of certain immigrants . Exceptions

Both claim to protect US labor market due to Covid-19 pandemic Despite the NIV Ban you can still file with USCIS (Change of Status) BIDEN/HARRIS immigration bill U.S. Citizenship act of 2021

President Biden Sends Immigration Bill to Congress “U.S. CITIZENSHIP ACT OF 2021” “New system to responsibly manage and secure our border, keep our families and communities safe, and better manage migration across the Hemisphere”

Sponsored by: Senator Menendez (D-NJ) & Congresswoman Sanchez (D-CA) BIDEN/HARRIS immigration bill U.S. Citizenship act of 2021 KEY POLICY CHANGES

LEGALIZATION AND PATH TO CITIZENSHIP FOR UNDOCUMENTED IMMIGRANTS REFORMS TO THE FAMILY-BASED IMMIGRATION SYSTEM REFORMS TO THE EMPLOYMENT-BASED IMMIGRATION SYSTEM DIVERSITY VISA PROGRAM REFORMS TO THE IMMIGRATION COURTS No Status Nonimmigrant Immigrant Naturalization

DACA B Visitors EB-1 Outstanding Research & Professors E Treaty Trade / Investor EB-2 Advanced Degree Professionals After 245(i) benefit F Student EB-3 Bachelors Degree & Skilled Workers 3 or 5 Asylum, etc. H Specialty Workers EB-4 Religious Workers

J Trainees EB-5 Investors years

L Intercompany Transferee Family Based Immigration

O Extraordinary Ability

P Performing Artists

R Religious Workers H-1B Visas Temporary Professional Visas

 For Professional-Level workers who are coming to the US to work for a US employer in a specialty occupation

◦ Alien must possess at least the equivalent of a US Bachelor’s degree AND

◦ Job offer must require at least a Bachelor’s

◦ “Three for One Rule”- 3 yrs of work experience can be substituted for 1 yr of academic study in order to equate the work experience to a Bachelor’s Examples of Specialty Occupations  Some occupations in the regulations: Chemist, biologist, engineers, physicists, software developers, system analysts, accountants, economists, teachers, architects, lawyers, graphic designers

If an occupation is not in the regulations, is a Bachelor’s degree normally required? The H-1B Lottery Process

Need to identify people early Master’s cap and regular cap numbers Pre-registration process Electronic submission $10 fee for each beneficiary March 9 – March 25 Post-registration process Notification of selection through account File petitions only for selected beneficiaries Lessons Learned From 2020 Season

Importance of account creation and approval by employers Multiple registration problems Notification timing Premium processing of cap and other H’s Second lottery process (August) How many filing do we expect? Status of Regulatory Changes Post- Election DOL Prevailing Wage Rule (DOL proposal to delay until May 14, 2021) DHS Wage-Based H-1B Selection Rule (will not happen this year) Likely Cancelled by Biden Administration: Redefining H-1B “specialty occupation” and “employer-employee” Status of Travel Bans New Executive Order “Ensuring the Future is Made in All of America by All of Americas Workers” revoking BAHA Filing and Start Date

March 9th – March 25th H-1B registration

April 1st filing for cap cases

October 1st – H-1B start date

Consider gap filler for non F-1 cases Period of Validity

Generally valid for a total of 6 years

Time spent outside of the US can be recaptured

Some exceptions available where additional time in H-1B status will be granted in 3 year increments beyond the 6 year period Employer Specific

H-1Bs are employer specific, but

Concurrent H-1Bs are permitted, and

H-1Bs are portable

Part-time employment is permitted Cap on H-1B Visas

Numerical Limitation: 65,000 annually.

Additional 20,000 visas for those with US advanced degrees.

Cap was met during the registration period for FY 2021 receiving over Approximately 275,000 registrations for both advanced and Bachelor’s degrees.

Roughly 46% (123,750) of all registrations were for prospective beneficiaries with U.S. advanced degrees. Exemptions from the H-1B cap

Current H-1Bs seeking extensions or transfers to another employer (the cap limits the number of requests for initial employment that CIS may approve each year)

Statutorily exempt employers such as institutions of higher education and nonprofit research organizations The Labor Conditions Application (LCA)

Attestations made to the US Department of Labor (DOL) by an employer seeking to hire employee(s) as an H-1B worker(s).

Sets forth the number of workers sought, the occupational classification, the prevailing wage, the method used to determine the prevailing wage, and the actual wage rate paid

LCA must be available for public inspection within one day of filing the LCA with the DOL H-1B Alternatives & Strategic Advice

• Requesting more information upfront. • Set expectation with employer • Prepare Plan-B (backup plan), - H-1B Alternatives E Visa L Visa P Visa B-1 Visa TN Visa E-3 Visa U Visa Employment Based Permanent Residence Requirements: Full-time employment Attainment of DOL Labor Certification Ability to pay Availability of Immigrant visa number 1st Preference (EB-1): No Labor Certification Required

Aliens of Extraordinary Ability - self-petition possible

Outstanding Professors & Researchers

Multinational Managers EB-1 Evidence

Publications Presentations at International Symposia Judging the Work of others International Prizes Patents Contribution of Original Research in the field 2nd Preference (EB-2): Labor Certification Usually Required

Advanced Degree Professional - Job requires a degree beyond a BA

Three types of green card routes:  Labor Certification (PERM)  National Interest Waiver (NIW)  Schedule A Group II Procedure for PERM

Position & Prevailing Wage Determination （PWD）

Posted Notice, In-house Media, Job Order, & Advertisements

Recruitment Report

Filing

DOL Process

DOL Notice （Approval or Audit Request）

Response to Audit Request from DOL

Final Approval or Denial National Interest Waiver: NO Labor Cert Required (Cont.) Seeking employment in an area of “substantial intrinsic merit”

The benefit will be national in scope

The national interest would be adversely affected if a labor cert were required

Blog Link: US eases tests for Green Cards - http://visaserve.com/lawyer/National-Interest- Waivers_cp15054.htm#niwupdate EB-2 National Interest Waiver Green Card  Implemented under IMMACT’90.  Mississippi Phosphate Case.  N.Y. State Department of Transportation. Prong # 3 – The National Interest would be adversely affected if a labor certification were required.  AAO Precedent Decision in Dhanasar liberalizes legal standard. EB-2 National Interest Waiver Green Card OUT WITH THE OLD

Old subjective test (NYSDOT New tests Impact case) (Dhanasar case) The applicant’s area of The applicant’s proposed Removal of the term ‘intrinsic’ employment is of substantial endeavor has both substantial will reduce subjectivity ‘intrinsic’ merit merit and national importance

Proposed benefit from the The applicant is well It is a test focused on skills and applicant’s endeavor (activity) positioned to advance the qualifications of the applicant is ‘national in scope’ proposed endeavor and offers more clarity

National Interest would be On balance, it would be A more balanced approach, adversely affected if a labor beneficial to the US to waive which favors entrepreneurs certification was required the requirements of a job offer and qualified applicants & Labor Certification 3rd Preference (EB-3): Labor Certification Required Aliens who hold Bachelor’s degrees and are members of the professions

Aliens capable of performing skilled labor

Aliens capable of performing unskilled labor Immigration Reform and Control Act of 1986 (“IRCA”) 11/6/1986 – Passage of balanced bill granting Amnesty and implementing Form I-9.

Requires that all employers complete Employment Eligibility Form (I-9) for ALL newly hired employees.

Designed to control the problem of illegal immigration New Revised M-274 Handbook for Employers New and improved and updated M-274 handbook for employers - handbook and training manual that explains the I-9 form rules and regulations.

Link here: https://www.uscis.gov/i-9-central/handbook-employers-m- 274 New I-9 Form May 1, 2020

I-9 revision with date (10/21/2019) on bottom left corner of all pages is now current. Important to Reverify using updated Form. New version contains minor changes to the Form and its instructions. Employers may continue using the prior version of the Form until 10/21/22. Changes to Current I-9 Version Revised the Country of Issuance field in Section 1 and the Issuing Authority field (when selecting a foreign passport) in Section 2.

Other changes associated with the Instructions • Clarified who can act as an authorized representative on behalf of an employer • Updated the USCIS website address • Provided clarifications on acceptable documents for Form I-9 • Updated the process for requesting paper Forms I-9 • Updated the DHS Privacy Notice I-9 Updated Due to Covid-19

3/20/20: DHS Announces Flexibility related to Form I-9 Compliance

3/21/20: E-Verify Extends Timeframe for taking action to resolve TNCs

4/3/20: USCIS FAQs Related to Temporary Policies for Form I-9 and E-Verify

5/1/20: Covid-19 Temporary Policy for List B Documents

DHS Extends Form I-9 Requirement Flexibility until 3/31/2021 Covid-19: I-9 Completion

Option 1: I-9 Form process in person

Option 2: Virtual Verification – Virtual followed by in-person review of documents w/in 90 days

Option 3: Remote Agent Verification – authorized representative designated to complete the I-9 on the employer’s behalf COVID-19 Impact on I-9 Program

• Starting 3/20/2020, Department of Homeland Security (DHS) started exercising discretion to defer the physical presence requirements associated with Employment Eligibility Verification (Form I-9) under Section 274A of the Immigration and Nationality Act (INA).

• Temporary Policy for List B Identity Documents - Beginning May 1st, identify documents found in list B set to expire on or after March 1, 2020 and not otherwise extended by issuing authority, may be treated the same as if the employees presented a valid receipt for an acceptable document for I-9. COVID-19 Impact on I-9 Program

Form I-797 Use for Employment Eligibility Verification on the I-9 Form.

USCIS announced that due to EAD production delays, employees may use Form I-797, Notice of Action, with a notice date on or after 12/1/19 through 8/20/20 informing approval of an Application for Employment Authorization (Form I- 765) as a list C #7 document for Form I-9 compliance until 3/31/21. Ensure Employees Choose the Correct Attestation on Form I-9 When reviewing an employee’s completed Form I-9, Employment Eligibility Verification, USCIS recommends that employers closely review the Employee Information and Attestation area in Section 1 for two common mistakes employees make:

Falsely attesting to being a “citizen of the .” Employees may be subject to imprisonment, fines and even removal from the United States for making this false statement.

Choosing “noncitizen national of the United States.” Only individuals born in American Samoa, certain former citizens of the former Trust Territory of the Pacific Islands, and certain children of noncitizen nationals born abroad should choose this attestation. Options for LPRs Seeking Documentation for Form I-9 Verification

Lawful Permanent Residents seeking to obtain documentation needed to comply with the Form I-9 verification process are experiencing unprecedented delays due to resident alien card production delays.

Options Available to address the issue,

Call the USCIS Contact Center at (800) 375-5283 and request an appointment at a USCIS Field Office to obtain a temporary Form I-551 stamp as evidence of lawful permanent resident status.

USCIS Ombudsman is assisting individuals whose applications have been approved but whose cards have not yet been produced, by sending weekly spreadsheets to USCIS to verify card requests are in line to be processed

The Department of Justice Immigrant and Employee Rights Section may be able to provide assistance through its hotline at 1-800-255-7688 (the IER worker hotline) or 1-800-255-815 (the IER employer hotline). IER may be able to help identify other documentation that will satisfy the I-9 IMAGE

10 Steps of IMAGE: Enroll in E-Verify. Anti-Discrimination Awareness Training. I-9 Training for Hiring Staff. Independent Dual Review of I-9 Forms. Resolution of SSA No Match Letters. Implementation of Internal Tip Line (encourage employees to inform employers of what is going on inside the company). Self-Reporting Procedure to Disclose Any Deficiencies to ICE. Annual Independent I-9 Process Audit. Encourage Contactors and Business Partners to Implement the Same Programs. Annual Report to ICE with results of program participation. Any Questions?

Feel free to contact David H. Nachman, Esq. and Ludka Zimovcak, Esq. for more information at: 201-670-0006 [email protected] Or visit us on the web at: www.visaserve.com