Immigration Law Compliance for 2016

Practice Areas

Quick Announcements

  • With the new year, it is a good time for employers to review immigration-related matters and documents to ensure a great year ahead:
    • H-1B Amendment deadline is January 15, 2016. If an H1B worker has moved to a new location not covered by an existing H1B petition after April 9, 2015, but before August 19, 2015, the employer is required to file an amended petition
    • Reporting Terminated or No-show Employees.Employers have the obligation to report sponsored H-1B employees who fail to report to work, quit or are terminated during the H-1B employee’s validity period.
    • Form I-9 Verifications.Most employers are required to complete form I-9 employment eligibility verification for each employee hired.
    • Be sure to discuss any mergers and acquisitions with your immigration attorney, as it may impact the company structure, affecting non immigrant petitions.
    • With the end of 2015, comes time to hand process W-2s for each employee. Be sure that the W-2s are consistent with each employee’s petition wage.
  • On December 18, 2015, EB-5 Regional Center Program was extended until September 30, 2016 WITHOUT any changes to the existing program.
  • On January 6, 2016, USCIS posted an update to Form I-907, Request for Premium Processing Service.
  • OPT EADs will remain valid until February 12, 2016.
  • Visa Waiver Program may affect those who have visited certain countries.

Detailed Updates

Revised Form I-765 – May Affect Your I-140 Filing

In a draft version of a revised Form I-765, Application for Employment Authorization, recently released by USCIS, the corresponding instructions seem to list the qualifying criteria for I-140 Employment Authorization Document (EAD) regulation.

Per the proposed instructions, one who selects (c)(35), Beneficiary of an approved employment-based immigrant petition facing compelling circumstances, as the eligibility category on Form I-765, will need to show the following proof:

  1. Proof that the Applicant is in the U.S. in E-3, H-1B, H-1B1, O-1, or L-1.
  2. Proof that the Applicant has an approved form I-140.
  3. Evidence of Applicant facing compelling circumstances while he/she await immigrant visa to become available.
  4. Other secondary evidence, where applicable.
  5. Evidence of all convictions. If you were convicted of a felony or two or more misdemeanors committed in the U.S., you may not qualify for employment authorization cannot be granted.
  6. Court disposition records

In addition, spouse or unmarried dependent child of a beneficiary of an approval immigrant petition, who qualifies to apply for EAD under (c)(36), the dependent must submit the following:

  1. Proof of nonimmigrant status.
  2. Proof of relationship to the Beneficiary of the approved Form I-140.
  3. Proof that the parent principal was granted EAD under (c)(35).
  4. Secondary evidence, if applicable.
  5. Felony or misdemeanor records, if applicable.
  6. Court disposition records.

No guidance was provided as to what would qualify as “compelling circumstances.”  Lastly, a foreign national worker’s job flexibility seems to have been severed as the new revision requires that the applicant must be in a valid work-authorized status (such as H-1B, L-1, O-1, etc.) and have a priority date within one year of the visa bulletin cutoff date to renew their EAD.

Unfortunately, questions and concerns regarding the proposal may remain unanswered until the proposed rule is officially published.

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