Monday, August 18, 2014

I-9 Central: I-9 Policy for Volunteers, Trainees and Interns

What is the USCIS policy on whether employers must verify  I-9s for volunteers or other unpaid individuals (student trainees, interns, residents) that receive job training and experience but receive no form of payment?

I-9 Central provides the following answer: "In general, Forms I-9 are not required for unpaid individuals unless the individuals will receive something of value in exchange for their labor or services, also referred to as remuneration.  Remuneration can come in many forms, such as money, meals, lodging and other benefits, but does not include gifts.  If your company determines that unpaid individuals will receive something of value in exchange for labor or services, your company should complete Form I-9."

Monday, May 12, 2014

STEM OPT Extensions Need to be Timely

Optional Practical Training (OPT) for F-l students is limited to 12 months and must be completed within 14 months of the student's graduation. However, some students may be eligible for an additional 17 months of OPT following the initial 12-month period based on a STEM (Science, Technology, Engineering, Mathematics) extension.
The STEM subject must be in the major or dual-major of the student's most recent degree received. It also is important to remember that the F-l student may request the 17-month STEM extension up to 120 days prior to the end of post-completion OPT and employment authorization will be automatically extended for a period of 180 days. Form 1-765, Application for Employment Authorization for the STEM extension, must be received by USCIS before the expiration of the current OPT period. USCIS recommends filing the STEM extension between 90 and 120 days prior to the expiration of the student's current OPT.
In order to obtain an STEM OPT extension for more than a 12 month period, the following criteria must be met:
  • The student must currently be participating in a 12 month period of approved OPT;
  • the student must have been enrolled on a full-time basis for at least one full academic year in a college, university, conservatory or seminary in an ICE certified program;
  • the student must have obtained a degree in a science, technology, engineering or mathematics (STEM) area of study as listed on the Department of Homeland Security (DHS) STEM designated Degree Program List;
  • the student must be working for an employer in a job directly related to the student’s major area of study;
  • the student must be working for, or be intending to work, for an employer enrolled in the USCIS E-Verify program, and
  • the student must properly maintain F- 1 status.
The Designated School Official (DSO) at the college or university must recommend the 17-month OPT extension in SEVIS, after verifying a student’s eligibility, certifying that the student’s major/dual major is on the STEM Designated Degree Program List,  endorsing the recommendation on Form I-20.  The student must then apply for the 17-month extension on Form I-765, together with the timely (within 30 days) endorsed I-20, a copy of their degree with the valid E-Verify Client Company Identification Number for the employer with whom they are seeking the 17-month OPT STEM extension.
The CIS has indicated that that an expired EAD (Form I-766) issued for post-completion OPT, combined with a Form I-20 endorsed by the F-1 student’s DSO recommending the STEM extension and the CIS receipt notice (Form 1-797) showing timely filing of the STEM extension application will serve as a temporary List A employment authorization and identity document.
Students who timely file an application for the 17-month OPT extension will be able to continue employment white the extension application is pending until a final decision is made on the Form I-765 extension or for 180 days, measured from the EAD expiration date, whichever comes first.

Friday, April 11, 2014

2015 H-1B Lottery Held; Winners get Receipt Notices Not Rejection

On April 10, 2014, the USCIS randomly selected 85,000 H-1B petitions in what is popularly called the H-1B lottery.    The random selection was necessary because the agency received approximately 172,500 new H-1B petitions.  The U.S. advanced degree petitions were selected first.  Any advanced degree petition that was not selected in the first round was placed in the general pool for the selection of the remaining randomly chosen 65,000 H-1B numbers.  The petitions not chosen in the lottery will be mailed back with their uncashed filing fee checks.
-Arnulfo Sanchez

Wednesday, April 9, 2014

2015 H-1B Cap to Be Determined By Lottery

On April 7, 2014, the USCIS  announced that the heavy volume of cap-subject H-1B petitions for fiscal year 2015, has required that the filing period close after five business days of receipts.  Due to the large number of cases received, the agency will complete a list of all filings received as of that date before placing them in a random selection process.

The H-1B petition cap is presently limited to 85,000 petitions, with 20,000 slots allotted to employer-sponsored individuals with U.S. advanced degrees and 65,000 petitions under the general cap for individuals with a bachelor’s degree or the equivalent.  The U.S. advanced degree petitions will be assigned to the lottery first.  Any advanced degree petition that is not selected in the first round will be placed with the general pool for the selection of the remaining randomly chosen 65,000 H-1B numbers.  The petitions not chosen in the lottery will be mailed back.  The agency has not released the date of the selection process. 

-Arnulfo Sanchez

Sunday, March 2, 2014

Book Excerpt: Employers sponsor foreign employees using the PERM application process

Foreign workers applying for permanent resident (green card) status under certain classifications, such as the employment based third preference classification (EB-3) and employment based second preference classification (EB-2), except for those filing under the National Interest Waiver provision, will require an approved labor certification.

We provide employers with an overview of the PERM process for that necessary labor certification with an excerpt from the CCH book Immigration Law in the Workplace ,  the leading national resource book for both immigration employment benefits and compliance information.

The distinguished attorney authors, Charles M. Miller, Marcine A. Seid, and S. Christopher Stowe, Jr. provide you with clear, concise explanations of the benefits that foreign employees may qualify for.

Tuesday, February 25, 2014

E-Verify fact sheet covers how to correct immigration records to resolve a TNC

On Feb. 23, 2014, E-Verify released an updated Department of Homeland Security (DHS) Tentative Nonconfirmation (TNC) Further Action Notice to include information on correcting immigration records. The Further Action Notice directs employees to the Fact Sheet: How to Correct Your Immigration Records after Resolving a Tentative Nonconfirmation in E-Verify for more detailed instructions. The Fact Sheet is available in 18 languages.
Please share the Fact Sheet with employees who receive a DHS Tentative Nonconfirmation (DHS TNC). However, do not reissue the DHS TNC Further Action Notice to an employee who previously received a DHS TNC.

Tuesday, December 31, 2013

Employment Authorization for E-2 Spouses does not require EAD

In an unpublished decision, the Board of Immigration Appeals reversed the immigration judge's denial of an adjustment of status application for unauthorized employment under INA 245(c).  The Board found that the E-2 dependent spouse did not engage in unauthorized employment.  

The Board found that INA §214(e)(6) of the Act, 8 U.S. C. § 1184(e)(6), provides that in the case of an E-2 dependent spouse who accompanies or follows to join the E-2 principal alien the "Attorney General shall authorize the alien spouse to engage in employment and provide the spouse with an "employment authorized" endorsement or other appropriate work permit (Emphasis added). 

The Board ruled that the DHS employment authorization regulation, 8 C.F.R. § 274a.12(c)(2), entitled "Aliens who must apply for employment authorization," provides that an alien spouse or unmarried dependent son or daughter of a nonimmigrant treaty trader (E-1) must apply for work authorization. However, the regulation does not specifically state that the spouse of a treaty investor (E-2) must do the same.   Do Kyung Lee, A089 047 352 (BIA Nov. 5, 2013).