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Richard A. Gump Jr. P.C. Blog

Automatic Extension for Certain EAD Categories

February 10, 2017

Filed under: Uncategorized — drgump @ 5:40 pm

As of January 17, 2017, the U.S. Citizenship and Immigration Services (USCIS) has implemented a new EAD automatic extension for certain EADs. While the automatic extension provision is a welcome relief to many foreign nationals who depend on EADs for documentation of employment eligibility, the new regulation carves out this benefit only to certain employment authorization categories.

The automatic extension takes place if a renewal EAD is not received before the current EAD expires and lasts for a period not to exceed 180 days, provided that the renewal application is:

  1. Properly filed with USCIS before the expiration date shown on the face of the expiring EAD,
  2. Based on the same employment category shown on the face of the expiring EAD, and
  3. Falls into one of the following fifteen eligibility categories:
Eligibility Category Code   

Description

(a)(3) Refugee
(a)(5) Asylee
(a)(7) Aliens admitted as parents or dependent children of aliens granted permanent residence
(a)(8) Citizen of Micronesia, Marshall Islands, or Palau
(a)(10) Withholding of Deportation or Removal Granted
(a)(12) Temporary Protected Status (TPS) Granted
(c)(8) Asylum Application Pending
(c)(9) Pending Adjustment of Status under Section 245 of the Act
(c)(10) Suspension of Deportation Applicants (filed before April 1, 1997)
Cancellation of Removal Applicants
Special Rule Cancellation of Removal Applicants Under NACARA
(c)(16) Creation of Record (Adjustment Based on Continuous Residence Since January 1, 1972)
(c)(19) Pending  initial application for TPS where USCIS determines applicant  is  prima facie eligible for TPS and can receive an EAD as a “temporary treatment benefit”.
(c)(20) Section 210 Legalization (pending I-700)
(c)(22) Section 245A Legalization (pending I-687)
(c)(24) LIFE Legalization
(c)(31) VAWA Self-Petitioners

 

USCIS has provided the following guidance on how employers and employees should complete Form I-9 when this automatic 180-day period takes effect, but they have not yet made any statements on whether an individual will be able to renew an expired driver’s license based on this same principle.

Instructions for an Employee Completing Section 1 of Form I-9

If you are a new employee:

When completing Section 1, new employees should:

  • Select the option “An alien authorized to work until”; and
  • Enter the date that is 180 days from the “card expires” date of their EAD as the “employment authorized until mm/dd/yyyy”

If you are a current employee:

Current employees whose employment authorization was automatically extended should:

  • Cross out the “employment authorized until” date in Section 1;
  • Write the date that is 180 days from the date their current EAD expires; and
  • Initial and date the

Instructions for Employers Completing Section 2 of Form I-9

If your employee is new and presents an automatically extended EAD that is still within the 180-day extension period:

When completing Section 2, the employer should:

  • Enter into the “Expiration Date” field the date upon which the automatic extension period expires, not the expiration date on the face of the expired The automatic extension expiration date is the date 180 days from the “card expires” date on the EAD; and
  • Enter the receipt number in the “Document Number” Note that this expiration date may be cut short if the employee’s renewal application is denied before the 180-day period expires.

If your employee is currently working for you:

For a current employee, update Section 2 of Form I-9 with the new expiration date as follows:

  • Draw a line through the old expiration date and write-in the new expiration date;
  • Write EAD EXT in the “Additional Information” field of Section 2; and
  • Initial and date the

The new expiration date the employer should enter is the date 180 days from the “card expires” date, which is the date on the face of the EAD.

Note: This is not considered a reverification; do not complete Section 3 until either the 180-day extension has ended or the employee presents a new document to show continued employment authorization, whichever is sooner. At the end of the 180-day extension, the employer must reverify the employee’s employment authorization in Section 3 of Form I-9.

Instructions for Employers Completing Section 3 of Form I-9

When the automatic extension of an EAD expires, an employer must reverify the employee’s employment authorization in Section 3. At that time, the employee must present any document from List A or any document from List C, or an acceptable List A or List C receipt described in the Form I-9 Instructions to reverify employment authorization.  Note that employers may not specify which List A or List C document employees must present.

For E-Verify Employers

An employer may create a case in E-Verify for a new employee using the information provided on Form I-9 from Form I-797C. The receipt number entered as the document number on Form I-9 should be entered into the document number field in E-Verify.

Our office is happy to assist any employers or employees who may have questions about this new policy and we will provide updates regarding driver’s licenses and other things impacted by this as they come out in the coming months.

Advice on Dealing with Trump’s Executive Order Travel Ban

January 30, 2017

Filed under: Immigration — drgump @ 7:27 pm

Here are some key things to keep in mind in light of President Trump’s most recent Executive Order regarding immigrant and non-immigrant citizens and refugees of certain countries:

  • The Executive Order applies to all individuals “from” the seven designated countries: Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. That can include Legal Permanent Residents (LPRs), non-immigrant visa holders, immigrant visa holders, refugees, derivative asylees, Special Immigrant Visas (SIVs), etc.
  • Anyone who holds a passport from a designated country is “from” there—this includes dual citizens.
  • Until we have clarity on the ability of a certain person to gain entry, we advise anyone from a designated country not to travel outside the United States.
  • If you, an employee, or someone you know, is from a designated country and is already outside the US, obtain his or her return date and current status and contact us so that we may determine his or her ability to re-enter the US at that time.
  • Further study regarding this new vetting process is needed, and the little information that is available does not allow us to provide answers on the process or timing with much certainty.
  • The order itself and the court cases associated with it are constantly evolving, so please make sure you have the most up to date information prior to making a decision.

We also anticipate another Executive Order to be signed sometime soon that may impact the way in which visas are issued at Consulates. This could include additional vetting as well as prohibiting the waiver of an interview, meaning all applicants may be required to attend an interview at the Consulate. Please be prepared to adapt to these new procedures and reach out to us if you have any questions.

We will provide updates on the ever-changing immigration environment as often as we are able, but please do not hesitate to call or email us if you have any questions, concerns, or issues.

Concerns for Employers of Foreign Workers Heading Towards a Trump Administration

December 8, 2016

Filed under: E Verify,ICE,Immigration — drgump @ 5:42 pm

Assessment of Employer Concerns Over the Next Few years

 

1.  DACA is likely dead. Current work permits may be allowed to expire without being withdrawn, but new and renewal DACA filings can be swept away with the stroke of the President’s pen. This may mean some of your employees may lose their work permits and you will not be able to continue to hire them.

     a.DACA (Deferred Action for Childhood Arrivals) allows certain undocumented immigrants to the U.S. who entered the country as minors to receive a               renewable two-year period of deferred action from deportation and eligibility for work authorization.

     b.DAPA (Deferred Action for Parents of Americans and Lawful Permanent Residents) and expanded DACA programs will likely never be implemented.

2.Unauthorized workers will likely be targeted at the workplace via ICE raids. As employers may recall, prior to 2009 ICE conducted numerous raids on employers as opposed to audits. It is believed that more raids will be forthcoming. Employers should be prepared for these raids by ensuring that a point person exists who can manage the situation and call our office if and when a raid is in progress.  The President can authorized this change of policy without Congress.

3.E-Verify will become mandatory for all employers. While mandatory E-Verify will have to be legislatively enacted, for employers who are already active users of the system it might be less likely that a raid will occur.

4.Deportation may increase. Even though an employer may employ an individual prior to its E-Verify use and who presented what appeared to be a valid work authorization document, this individual could still be arrested and deported if he/she is illegally in the U.S.

 

We believe that President-elect Trump and a Republican Congress will be more business friendly, even in the immigration context. However, persons here illegally and companies that knowingly hire illegals, especially if they have any crimes, will be targets for removal and fines.

Report Finds That Immigrants Make Essential and Beneficial Contributions to U.S. Economy

September 23, 2016

Filed under: Immigration,Uncategorized — drgump @ 2:02 pm

The National Academies of Sciences, Engineering, and Medicine (NAS) released a report, The Economic and Fiscal Consequences of Immigration, that examined a decade’s worth of data to come to the conclusion that immigrants and their offspring make important contributions to economic growth, innovation, and entrepreneurship in the U.S. Immigrant workers will be vital in replacing the tax and economy loss of retiring Baby Boomers and they serve as an essential counterpart to other native born workers. As has been found in a number of other reports before, the NAS report showed that immigrant workers cause little to no negative effects on the wages or overall employment levels of native-born workers and adverse consequences are generally found only for U.S. workers without a high school degree.

The report also found that the estimated GDP growth due to contributions of immigrant workers from 2015 to 2016 amounted to nearly $2 trillion. Children of immigrants continue to be some of the top economic contributors among the U.S. population. While first generation immigrants may be slightly more costly to the government than a native-born American, that is usually due to a lower income and paying less in taxes, not because they are a drain on federally-sponsored programs. Furthermore, Americans now spend less on consumer goods and services like child care, food preparation, house cleaning and repair, and construction thanks to immigrants.

Our immigration system is in dire need of reform; but, even in its current broken state, immigrants continue to have an overwhelmingly positive impact on the U.S. economy. Any reforms that could potentially be passed by a newly elected Congress next year could only continue to provide economic benefits throughout the nation.

 

Fifth Circuit Throws Out Fine Against Staffing Agency That Used Corporate Attestation to Complete Form I-9

September 5, 2016

Filed under: I-9 — drgump @ 6:49 am

The Form I-9 employment verification process can be a thorn in any employer’s side as it seems to force company representatives into the role of “junior immigration officers.” Furthermore, this basic two-page verification document (minus instructions and acceptable documents list) is accompanied by a 70 page instruction manual, which only proves how easy it is for employers to make mistakes if the employment verification process is not fully understood.  

For companies that hire remotely, the I-9 process becomes even more tedious. I-9 regulations state that in order to complete and certify Section 2 of the Form I-9 the company representative must physically examine the employment verification documents. Photocopies, scanned documents, pictures, or even documents viewed via Skype are not appropriate.

But that all changed on August 11, 2016, when the Fifth Circuit threw out a six-figure fine against a staffing agency who’s employment verification process consisted of one company representative in Texas inspecting the employee’s documents while another company representative in Minnesota saw photocopies and certified Section 2 of the Form I-9. According to the Fifth Circuit panel, the most reasonable interpretation of I-9 protocol allowed for corporate attestation.

While the Fifth Circuit’s ruling was the first of its kind, many are skeptical that other courts will follow suit. Therefore, best practice when completing the Form I-9 for remote hires would be that the company representative who looks at the employment verification documents must be the same individual who certifies Section 2.

The full case can be found here: http://www.ca5.uscourts.gov/opinions%5Cpub%5C15/15-60173-CV0.pdf

 

The Law Offices of Richard A. Gump, Jr., PC is committed to assisting employers with their employment-based immigration matters.

Significant Changes to L-1 Visa Application for Blanket Employees

August 25, 2016

Filed under: L-1 Visa — drgump @ 1:02 pm

The L-1 visa is a nonimmigrant work visa for managerial or skilled employees, which allows U.S. companies that maintain a qualifying relationship with foreign business entities to transfer workers to the U.S. . Under a traditional L-1 petition application, each petition must be filed with and approved by the USCIS as a precursor to transfer. “Blanket L” petitions allow larger companies to more easily transfer workers to the U.S. more frequently. When a Blanket L approval is obtained, the company and its subsidiaries/affiliates are afforded additional flexibility to transfer eligible employees to the U.S. as they bypass the step of filing the petition with the USCIS.

However, the USCIS is changing the L-1 visa application for those employees who qualify under their company’s Blanket L petition. Beginning on August 29, 2016, the Form I-129S, which is utilized in the visa application process, will contain new information demands and could ultimately hinder the previous quick turnaround in securing an L-1 visa under a Blanket petition. Seen by some as an additional burden to employers, the updated Form I-129S will now require the following:

  • Employee’s employment history
  • Identification of the applicant’s gender and all names the applicant has ever used
  • Listing the percentage of time the person will spend doing job duties on a “daily basis” and the annual wage the person received (in USD)
  • Information regarding third-party worksites (if applicable)
  • Employer signature declaring that the company has reviewed the petition
  • This is a more extensive declaration for the company to attest to and serves as a reminder to the petitioner of the possibility of on-site compliance audits

The Law Offices of Richard A. Gump, Jr., PC is committed to assisting employers with their employment-based immigration matters.

ICE Audited Your Company and Why You Need Us To Help

August 5, 2016

Filed under: ICE — drgump @ 5:46 pm

So your company was hit with an ICE audit, you paid the fine, told ICE you would terminate the unauthorized employees, and now you can relax and move on to concentrate on your core business -right? Not so fast.

Did you make sure the person verifying I-9s was trained and is minimizing the risk of hiring more unauthorized workers using fraudulent documents? Did you make sure the unauthorized workers on the Confirmation of Suspect Documents list were in fact terminated? Most importantly, have all your supervisors and management teams been informed of the necessity of avoiding any direct or indirect recruiting or hiring or retaining of unauthorized workers?

Apparently management at Mary’s Gone Crackers, Inc. decided their ICE Settlement Agreement buried the hatchet and they could go about their business. Such blindness is painful. Now they have to pay $1.5 million and institute a compliance program which will be monitored by the U.S. Attorney’s Office for 2 years. Why?  After telling ICE that 50 employees who were unauthorized to work had quit or would be fired the company continued to employ one individual and rehired many others all under new names. Homeland Security Investigations got wind of the “continuing to hire” violations and started a criminal investigation. Luckily, the company cooperated and was able to obtain a non-prosecution agreement.

“Our agents are determined to hold those who choose to defraud the system accountable in order to reduce the demand for illegal employment and protect employment opportunities for the nation’s lawful workforce,” HIS Special Agent Ryan L. Spradlin said.

Why subject yourself to such bad publicity, cost and disruption at the workplace? Fraud is worse than the original violations and the likelihood of it being uncovered is great. Your supervisors and managers are representatives of your company and they must get on the bandwagon of risk avoidance by understanding that knowingly hiring or continuing to hire unauthorized workers just is not acceptable, especially after an ICE audit!

Employers are between a rock and a hard place when finding new workers in a tight labor market is difficult but it is far worse to spend time in the penitentiary, go bankrupt, face embarrassing publicity, all the while under the radar of government supervision.

If we can help you audit your verification and hiring practices before, during, or after an ICE audit, we would love to be there for you. Auditing, training, and adopting best practices is good business.

 

http://www.sacbee.com/news/local/crime/article91430222.html

H-1B Employers Must Act in a Timely and Appropriate Manner During Economic Downturns

July 19, 2016

Filed under: H1-B — drgump @ 12:59 pm

Any adjustment to the employment of an H-1B employee can lead to issues if the changes are not acknowledged and dealt with quickly and properly. Immigration counsel should be alerted when any one of these three situations occurs: 1) when an H-1B employee will be terminated; 2) when an H-1B employee will be laid off; and 3) when any material or substantive changes to the information stated in the original H-1B petition, including the certified LCA, will be made.  Counsel can then advise as to whether an amended or new H-1B petition should be filed, if the H-1B should be withdrawn, or if any other action needs to be taken. Some examples of a material or substantive change include:

  • An increase or decrease in hours;
  • Adjusting from part time to full time or vice versa;
  • Moving to a different job location;
  • Assigning a new job title; or,
  • Making a significant change in job duties or the type of work being performed.

A recent case decided by the Department of Labor states that poor industrial or national economic conditions do not relieve employers from paying H-1B employees the wages stated in the LCA.  A Florida company was ordered to pay both back wages and a fine for three H-1B workers who had been reduced to part-time employees and paid an hourly wage that was nowhere near the amount they should have received according to the H-1B petitions.  To stay H-1B compliant and avoid paying back wages and fines, employers of H-1B workers must be careful to continue paying the wages outlined in the certified LCA even during times of economic difficulty.  If that is not financially possible, then other immediate action must be taken such as filing an amended H-1B petition.

 

An employer may be excused from their H-1B payment obligations if there is just cause for firing the employee, if the employee is properly laid off, or if an employee asks to be taken away from their duties because of conditions unrelated to his or her employment.  Make sure you are aware of the obligations of H-1B employment before diving in and do not let a lapse in judgment or a failure to act in a timely manner during a time of economic struggle come back to hurt your pocketbook in the future.

U.S. Supreme Court Decision on Immigration

June 24, 2016

Filed under: Immigration — drgump @ 3:44 pm

It is important to take a step back and review what the one sentence tie vote decision leaves open:

1. We don’t have any further clarification on the extent of Executive Action by any President in the future on immigration or any other issue which needs attention as the result of inaction by Congress.

2. States appear to be left with the power to sue the federal government any time they disagree with a federal policy. Will states ramp up such lawsuits in the future?

3. What do we do with the millions of unauthorized aliens currently living in the U.S? Do we try to deport them all regardless of their age when or how they came in, whether they overstayed visas, committed crimes, have a family in the U.S.and/or are gainfully employed? Do we try to categorize these immigration violators by a gradient of punishment  which matches the gravity of the offense (e.g. minor to major fines, incarceration, deportation)? Think of traffic violators, who range from parking tickets to negligent homicide from a DUI.

Perhaps it is best the U.S. Supreme Court has left the issues open for citizens and their elected federal officials to make the hard decisions which will lead to concrete guidelines on who and how foreign nationals get punished for violations and who and how others in the future can visit, work, and/or live in our country.

Senators and Representatives of Congress, are you listening to your people, who are frustrated and mad at your inability and lack of desire to solve problems?

Additional Security Questions Added to the ESTA Application

June 21, 2016

Filed under: Homeland Security,Immigration — drgump @ 12:38 pm

Pursuant to the Secretary of Homeland Security’s announcement in February 2016 naming Libya, Somalia, and Yemen as countries of concern, the U.S. CBP has added additional security questions to the ESTA application.

Nationals of Visa Waiver Program countries who have been present in these three countries at any time on or after March 1, 2011 (with limited government/military exceptions) are no longer eligible to travel or be admitted to the United States under the VWP, absent a waiver issued in the law enforcement or national security interest of the United States.

Individuals who are no longer eligible for travel under VWP may still apply for a visa at U.S. embassies or consulates.

 

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