• 28Jan
    Uncategorized Comments Off

    In a largely anticipated move, the US District Court for the District of Columbia granted DHS’ motion to extend the Stay Order of the STEM OPT program, permitting the program to continue to exist under its current regime for an additional 90 days.

    In August 2015, the STEM OPT program, which allows foreign national graduates of U.S. universities to extend their post-graduate work authorization an additional 17 months if (i) the graduate’s degree falls within the list of approved STEM disciplines and (ii) the STEM employer is enrolled in E-Verify; was dissolved by the District Court on procedural grounds. Such dissolution, however, was initially stayed for six (6) months to allow DHS time to fix the program’s procedural deficiencies. With the recently granted extension of the stay, the District Court has now ensured that the current STEM OPT regulations will remain in effect until May 10, 2016, and has further given DHS some additional time to vet the overwhelming volume of public comments it received about the existing program and to make any necessary changes.

    While this decision was not a surprising one, it does come as welcome news to the more than 23,000 STEM OPT participants currently working in the United States. In particular, if the stay was not granted beyond April 1, many of the STEM OPT graduates would no longer have been eligible to apply for H-1B visas under this year’s H-1B cap as many would no longer be work authorized leading up to the April 1 filing date and, thus, would no longer be eligible for the automatic OPT extension provided by the “Cap Gap” measure initiated by USCIS.

    This process, however, is far from over, as DHS will still need to review the public comments on its newly proposed STEM OPT amendments and implement a final rule by May 10, 2016. Our firm will continue to monitor the progress of the STEM OPT program and will keep you updated on any new developments. Stay tuned!

  • 12Jan
    H-1B Visa News Comments Off

    It’s that time of year again!  The April 1, 2016 “deadline” for the filing of H-1B cap cases for Fiscal Year 2017 is rapidly approaching, and given pent-up demand, we fully expect the H-1B cap to be reached on opening day.  As usual, USCIS will continue to accept petitions during the first five (5) business days; i.e., through Thursday, April 7, 2016.  However, once the H-1B cap has been reached, employers will be unable to file new cap-subject H-1B petitions for a full year, until Monday, April 3, 2017. As such, we strongly encourage you to identify any employees who may require H-1B sponsorship and contact us as soon as possible to begin preparing your H-1B petitions for a timely April 1 filing.

    HR ACTION NEEDED:  Assess Your Cap-Subject H-1B Needs:

    H-1B visas are available for specialty (professional) occupations requiring at least the attainment of a bachelor’s degree or its equivalent in a relevant discipline. For current or transferring employees, U.S.-based employers should take the time to consider who the Company may need to sponsor for an H-1B for Fiscal Year 2017.

    Here are some of the most common candidates for an H-1B under the annual cap:

    • F-1 visa holders (student interns / recent graduates) who are working for you pursuant to an Employment Authorization Document issued in connection with an approved period of post-grad Optional Practical Training (OPT);
    • F-1 visa holders (student interns) who are working for you while in school pursuant to  university-approved Curricular Practical Training (CPT); J-1 visa holders (interns/trainees) whose training programs will expire and who will need a change their status from J-1 to H-1B in order to continue working for you;
    • TN employees (Canadian and/or Mexican NAFTA professionals) who may require an H-1B to be eligible to apply for adjustment of status to that of a lawful permanent resident;
    • L-1B visa holders (intra-company transferees with specialized knowledge) approaching the end of their 5 years of L-1B eligibility who may need to switch to an H-1B to gain an additional year of work authorization and for whom a change of status is a necessary component to planning your long-term strategy of pursuing lawful permanent residence for that employee;
    • O-1 visa holders who are coming up for expiration within the next year as O-1s are renewable in only one year increments (as compared to a 3 year period for an approved H-1B); and
    • Potential candidates who are living and working abroad and have not been previously counted against the H-1B cap.

    PLEASE NOTE: the H-1B cap applies only to “new” H-1B petitions. As such, current H-1B workers seeking to file an extension of stay or a transfer petition are not subject to the H-1B cap.

    The Importance of Early Preparation:

    Cap-subject H-1B petitions are accepted by USCIS on a “first-come-first-serve” basis. Any petitions filed after the cap is met will be returned and cannot be re-filed until the following year.

    To assure a timely filing, Labor Condition Applications (“LCAs”) should be submitted to Labor Department by the beginning of March, and petitions should be ready for filing before April 1, 2016.  With that said, gathering the necessary supporting documentation and preparing the H-1B visa filing materials can be time consuming. Preparation includes assembling background and educational documents, drafting and signing letters and forms, and submitting an LCA with the Labor Department for certification. Early preparation is therefore essential.

    If you have any questions about the H-1B visa cap, or would like to discuss appropriate alternatives to the H-1B category, please do not hesitate to contact us.

    Please follow us on Twitter @ML_Immigration to stay tuned for further developments with the H-1B cap filing season.

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  • 30Sep

    In a largely unanticipated move, the State Department (“DOS”) announced on Friday that it significantly rolled back the Adjustment of Status (“AOS”) application filing cut-off dates it established under the Obama Executive Action less than three (3) weeks ago. Specifically, on September 25, DOS released a revised visa bulletin for October 2015, superseding the bulletin that was originally published on September 9. The revised October Visa Bulletin contains new and earlier filing cut-off dates than those dates contained in the original October Visa Bulletin issued on September 9.

    These revised filing cut-off dates are apparently a response to USCIS concerns over the Service’s ability to process such a huge volume of AOS applications. In response to such concerns, the “Dates for Filing Visa Applications” for certain visa preference categories, particularly the employment-based second preference (EB-2) category for China and India, have been significantly rolled back.

    The retrogression of these filing cut-off dates will serve to dramatically reduce the number of individuals permitted to pre-file for Adjustment of Status on October 1 based on the originally published October Visa Bulletin. This sudden reversal of filing cut-off dates is a great disappointment to employers, their foreign national employees, and immigration professionals alike, all of whom had already begun the process of preparing a number of filings in reliance upon the anticipated October 1 filing date.

    Litigation has ensued against the Federal Government – only time will tell if such litigation will yield a positive outcome.

    Stay tuned!

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  • 09Sep

    Today, the U.S. Department of State (DOS) announced a significant reform to the way the agency forecasts green card availability (through the issuance of a monthly Visa Bulletin) for employment-based green card applications. This reform now makes it possible for eligible employer-sponsored foreign nationals to file the third and final step of the green card process, the Application for Adjustment of Status to permanent residence (Form I-485), before an immigrant visa number otherwise becomes available to them. Based on this key development, the foreign national employee (and his/her eligible dependents) will be eligible to apply for interim employment authorization (Form I-765) and travel documents (Form I-131) during the often lengthy wait for a green card.

    Up until yesterday, under the previous (broken) regime, a foreign national was only eligible to file an application to adjust status (or an application for an immigrant visa abroad) when his or her “priority date” became “current”, as specified in the monthly Visa Bulletin issued by DOS. By way of background, a foreign national’s priority date is the date on which a labor certification (if required) or a Form I-140 immigrant worker petition was filed on his/her behalf. The priority date becomes is current if it falls before the cut-off date listed in the monthly Visa Bulletin.

    Under the new, revised procedures, the Visa Bulletins going forward will now provide 2 different charts, which charts list two critical cut-off dates for each backlogged employment-based preference category and country. The first chart (which is the same chart that has always appeared in the Visa Bulletin), has not changed as it simply lists the cut-off date for actual immigrant visa availability. This chart is now referred to as the “Application Final Action Dates”, which chart provides dates when green cards / immigrant visas may finally be issued. The second chart is the new addition to the Visa Bulletin that provides a new cut-off date for eligibility to file an Application for Adjustment of Status or, alternatively, apply for an immigrant visa abroad. This chart is referred to as “Dates For Filing Applications”, which provides the earliest dates when applicants may be able to apply for adjustment of status, despite no immigrant visa number being available.

    To illustrate the stark benefits of the revised procedures, according to the October 2015 Visa Bulletin, the Application Final Action Date for the Employment-Based Second Preference (EB-2) Category for Indian Nationals is May 1, 2005. This translates to a backlog of more than ten (10) years for Indian nationals filing advanced-level positions to become eligible to file the third and final step of the green card process. Simply stated, the employers of these Indian EB-2 candidates must have commenced the green card process (generally by filing a labor certification) more than 10 years ago for them now to be eligible to apply for the third and final step of the green card process in October 2015.

    Under the new, revised procedures, Indian EB-2 candidates with a priority date of July 1, 2011 or earlier may now file an Application for Adjustment of Status, as set forth in the second chart of the October 2015 Visa Bulletin. To be clear, those who qualify under this second cut-off date will not be able to receive a green card until an immigrant visa number becomes available to them, as reflected in the first chart. However, by filing an Application for Adjustment of Status, these foreign nationals and their respective dependents will be able to file concurrent applications for interim work and travel benefits, as stated above.

    This new, revised procedure is welcome news to many employer-sponsored foreign nationals, particularly those from India and China, who are most significantly affected by green card backlogs. Now that the new Visa Bulletin has been released, we expect the State Department and U.S. Citizenship and Immigration Services to answer the unresolved questions presented by this new filing opportunity, including how long it will remain available and how to submit applications.

    This was a centerpiece of President Obama’s executive action on immigration which will certainly help to alleviate the hardships that employment-based immigrant visa backlogs can cause.

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  • 28Jul

    The H-1B visa is, by far, the most sought-after temporary work visa in the United States for foreign national workers. It requires sponsorship by a U.S. employer and is limited to specialty occupation positions which generally require the candidates to hold at least a bachelor’s degree (or the equivalent) in a relevant discipline.

    Despite its demand, the H-1B visa category is not without its drawbacks. For one, new H-1B visas are subject to an annual quota of 85,000, with 20,000 of those set aside for advanced degree graduates with a U.S. Master’s degree or higher. (The H-1B quota applies only to petitions for new employment and not to beneficiaries of H-1B extensions and transfers from one U.S. employer to another. Nor does the quota apply to employees of qualified institutions of higher education and certain non-profit or government research organizations.)

    For fiscal year (FY) 2016, a record-breaking 233,000 H-1B cap petitions were filed with USCIS, representing a 35% increase from the prior fiscal year. Based on such an overwhelming increase in filings, H-1B candidates were faced with a 1 out of 3 chance of a petition being selected in the H-1B lottery. In other words, approximately 2/3 of all petitions submitted were summarily rejected for lack of quota numbers.

    So what is a U.S. employer to do when a foreign national is not selected in the H-1B lottery? While there are a limited number of options presented by the “alphabet soup” of temporary visa categories, there are some viable alternatives for obtaining valid work authorization for such foreign nationals. The following list includes some of those alternatives.

    1. B-1 (in lieu of an H-1B): While the B-1 is not a traditional work visa, if applied for properly, this sub-classification is a viable alternative for multinational employers as it will allow foreign nationals to temporarily engage in professional-level employment in the U.S. for short-term periods (up to 6 months) provided the foreign national does not receive a salary or any other remuneration from the U.S. employer. Rather, the foreign national must be placed and remain on the payroll of a foreign entity;

    2. O-1: This visa classification is generally associated with nationally or internationally acclaimed scientists, researchers, athletes or artists; however, this category can also be utilized for business personnel who can establish they have risen to the top of their respective fields by demonstrating he/she satisfies at least 3 out of 10 threshold criteria provided in the regulations. See 8 C.F.R. § 214.2(o)(3)(iii);

    3. L-1: This visa classification is commonly used by multinational employers to transfer executive, managerial or “specialized knowledge” personnel to the U.S. from abroad. It requires a common ownership and control of the sending and receiving entities by way of a parent, subsidiary, affiliate or branch relationship. In addition, qualifying candidates must have been continuously employed for at least 1 year with the foreign affiliate within the preceding 3 years;

    4. TN-1 (Canada) and TN-2 (Mexico): This visa classification is available only to citizens of Canada and Mexico who are coming into the U.S. to engage in professional-level activities as defined by NAFTA, which activities specifically require “at least a baccalaureate degree or appropriate alternate credentials demonstrating status as a professional.” The TN employment must fall within a NAFTA Schedule 2 profession. 8 C.F.R. § 214.6(b); 8 C.F.R. § 214.6(c);

    5. H-3: This visa classification may be utilized by a U.S. business or individual seeking to bring foreign nationals into the U.S. for the purpose of engaging them in an established training program for up to 2 years. The U.S. employer must demonstrate that similar training programs are not available in the foreign national’s home country. Although the training program may consist of a combination of classroom and on-the-job training, any productive employment must be “incidental” to the training program. 8 C.F.R. § 214.2(h)(7)(ii)(A);

    6. E-1: This is a visa classification available to applicants from one of the enumerated countries with which the U.S. maintains a treaty of trade. Applicants must be sponsored by a U.S. employer which is owned at least 50% by national(s) of the foreign national’s treaty country. (A publicly traded company is generally considered to have the nationality of the country in which its stock is listed and traded on a public stock exchange.) The U.S. employer must demonstrate substantial trade in services or technology between the home country and the U.S., while the employee must be entering the U.S. to perform supervisory or executive duties or have skills which are “essential to the operation of the enterprise.” 8 C.F.R. § 214.2(e)(3);

    7. E-2 (commonly known as an Investor Visa): Like the E-1, this is a visa classification available to applicants from one of the enumerated countries with which the U.S. maintains a treaty of commerce. Applicants must be entering the U.S. to develop and direct the operations of an enterprise in which the individual has substantially invested (or is in the process of investing) monies to create a business in the U.S. that is not marginal and has a reasonable growth trajectory.

    As set forth above, the H-1B visa category, in its current form, is not without its issues. Until such time that Congress realizes that the arbitrary quota on H-1B visas serves no useful purpose, U.S. employers, including in-house counsel and human resources departments, should consider more creative, perhaps less conventional alternatives, to retain and attract a more diverse, intelligent and energetic workforce.

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  • 03Feb
    H-1B Visa News, OPT, USCIS News Comments Off

    H-1B “cap season” is upon us! This alert is a reminder of the rapidly approaching April 1, 2015 “deadline” for the filing of H-1B for Fiscal Year 2016 which starts on October 1, 2015.

    Given the pent-up demand, we fully expect the cap to be reached on the first day of April. USCIS will, as usual, accept petitions during the first five (5) business days; i.e., through April 7, 2015. Once the H-1B cap has been reached, employers will be unable to file new cap-subject H-1B petitions for a full year, until April 1, 2016. As such, we strongly encourage you to identify any employees who may require H-1B sponsorship and contact us as soon as possible to begin preparing your H-1B petitions for a timely April 1 filing.

    ACTION NEEDED: Assess Your Cap-Subject H-1B Needs:

    H-1B visas are available for specialty occupations requiring the attainment of a bachelor’s degree or its equivalent. For current or transferring employees, employers should consider who might need to file an H-1B for Fiscal Year 2016:

    • Identify F-1 or J-1 employees (working under their Optional Practical Training Employment Authorization Document) who will need a change of status to H-1B;
    • Determine whether any TN employees (NAFTA professionals) might want an H-1B to be eligible to apply for adjustment of status to a permanent resident;
    • Consider whether you employ someone in L-1B status (intra-company transferees with specialized knowledge) who might need to switch to an H-1B to gain an additional year of status and
    for whom a change of status is a necessary component to planning your business’ long-term strategy of pursuing lawful permanent residence for that employee;
    • Review those employees who are on expiring O visas which are renewable in only one year increments (as compared to the three year visa period under an H-1B); and
    • Identify potential candidates who are abroad and have not been previously counted against the H-1B cap.

    PLEASE NOTE: the H-1B cap applies only to “new” H-1B petitions. As such, current H-1B nonimmigrant professionals seeking to file an extension of stay or a transfer petition are not subject to the cap.

    The Importance of Early Preparation:

    Cap subject petitions are accepted on a “first-come-first-serve” basis. Any petitions filed after the cap is met will be returned and cannot be re-filed until the following year.

    To assure a timely petition filing, Labor Condition Applications (“LCAs”) should be submitted to the DOL by the beginning of March, and petitions should be ready for filing before April 1, 2015. Gathering the necessary supporting documentation and preparing the H-1B visa filing materials can be time consuming. Preparation includes assembling background and education documents, drafting and signing letters and forms, and submitting an LCA with the Department of Labor for certification. Early preparation is therefore essential.

    If you have any questions about the H-1B visa cap, or would like to discuss appropriate alternatives to the H-1B category, please do not hesitate to contact us.

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  • 24Dec

    On Thursday, November 20, along with President Obama’s announcement regarding his Executive Action on Immigration, Department of Homeland Security (“DHS”) Secretary Jeh Charles Johnson issued a memo to the Directors of U.S. Citizenship and Immigration Services (“USCIS”) and Immigration and Customs Enforcement (“ICE”) directing the agencies to take action on the President’s announcements to improve the employment-based immigration system. The DHS memo provides a general overview of proposed changes the government wishes to implement, relating to skilled immigration, in order to address some longstanding issues and problems in our antiquated business immigration system. For purposes of this article, the authors will focus on the proposal to increase foreign worker portability by permitting certain skilled workers to pre-register for adjustment of status.

    Under Secretary Johnson’s directive, USCIS is expected to develop new regulations or otherwise issue guidelines that will allow foreign nationals with an approved second step (employment-based immigrant visa petition, Form I-140) to pre-register for adjustment of status in order to obtain the benefits of a pending Application for Adjustment of Status (Form I-485) even if an immigrant visa number is not currently available for the foreign worker. This proposal will not only benefit the employee who is the principal green card applicant by permitting the principal to apply for an employment authorization document and travel document, but it will also enable his/her dependents to obtain employment authorization and immediately enter the U.S. labor market.

    Of equal or greater importance, once the last step (Form I-485) has been pending for at least 180 days, the principal is then permitted to move into another position with his/her employer and even port to another employer so long as the move is to a similar occupation. In anticipation of pre-registration of adjustment of status, applicants should gather the documentation required to be filed with the I-485 application:

    1.) Birth certificates for the principal and each dependent family member. Affidavits of birth (in lieu of birth certificates) may be used for those instances when a birth certificate is not obtainable from the applicable government authority;

    2.) Marriage certificate (if a spouse is applying); and

    3.) Copy of most recent tax return and paystubs of principal applicant for the last 2 months.

    In addition, once the guidelines are issued and the filing of Form I-485s are permitted, each applicant and family member should arrange for a medical examination by a civil surgeon appointed by DHS.

    Stay tuned for further developments relating to the implementation of the Executive Order.

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  • 03Dec

    On Thursday, November 20th 2014, along with President Obama’s announcement regarding his Executive Action on Immigration, Department of Homeland Security (“DHS”) Secretary Jeh Charles Johnson issued a memo to the Directors of U.S. Citizenship and Immigration Services (“USCIS”) and Immigration and Customs Enforcement (“ICE”) directing the agencies to take action on the President’s announcements to improve the employment-based immigration system (hereinafter “DHS memo”). The DHS memo provides a general overview of proposed changes the government wishes to implement, relating to skilled immigration, in order to address some longstanding issues and problems in our antiquated business immigration system. The following is a brief overview of the most pertinent of the proposed measures:

    1. Reform Optional Practical Training (“OPT”) for Foreign Students and Graduates of U.S. Colleges and Universities: Most foreign students on F-1 (student) visas are eligible for 12 months of post-graduate OPT work authorization as long as the work experience that they seek is in a field that relates to their program of study. Under current regulations, OPT can be extended an additional 17 months for a total of 29 months of work authorization for U.S. college graduates with degrees in designated science, technology, engineering and mathematics (“STEM”) fields. The proposed regulatory changes will seek to expand the degree programs eligible for OPT and extend the time period and use of OPT for foreign graduates. Finally, it is proposed that certain labor market protections, which could include a prevailing wage requirement, will be imposed in order to safeguard the interests of U.S. workers in related fields.

    2. Pre-Registration for Adjustment of Status: With the emphasis on facilitating foreign worker portability, USCIS is expected to develop new regulations that will allow foreign nationals with an approved employment-based immigrant visa petition (Form I-140) who are caught in the immigrant visa quota backlogs to pre-register for adjustment of status in order to obtain the benefits of a pending Application for Adjustment of Status (Form I-485), notwithstanding that their respective priority dates are not current. This proposal will not only benefit the employee who is the principal green card applicant by permitting the principal to apply for an employment authorization document and travel document (while also allowing the principal to port to another employer after the I-485 is pending for 180 days), but it will also enable his or her dependents to obtain employment authorization and immediately enter the U.S. labor market.

    3. Expanded Green Card Portability: USCIS is expected to provide additional guidance regarding the definition of a “same or similar” job for purposes of expanding eligibility for a green card applicant to be promoted to a new job within the same company or, alternatively, to port to a new job with a new employer. This guidance will help not only those in the green card process who wish to change employers, but also those employees who move to a different job with the same employer.

    4. Proposed Rule to Extend Work Authorization to Certain H-1B Spouses: While this was not specifically addressed in the DHS memo, it is rumored that the proposed rule published in the Federal Register in May 2014 to extend work authorization to the H-4 spouses of H-1B specialty occupation workers with an approved employment-based immigrant visa petition (Form I-140) may also be finalized in the next few months.

    5. Bringing Greater Consistency to the L-1B Visa Program: The L-1 visa program is a common vehicle used by multinational companies to transfer executive, managerial or “specialized knowledge” personnel to the U.S. from locations outside of the U.S. Noting the “vague guidance and inconsistent interpretation” of the term “specialized knowledge,” Secretary Johnson directed USCIS to issue a policy memorandum that provides clear, consolidated guidance on what constitutes “specialized knowledge” for L-1B visa eligibility.

    6. Promoting Research and Development in the United States: The DHS memo recognizes that the current immigration laws do not meet the needs of foreign entrepreneurs and calls for enhanced and expanded options under the law to encourage foreign entrepreneurs to invest, create jobs and generate revenue in the U.S., including a broader application of the “public interest” parole authority and “national interest” waiver of the labor market test and job offer requirements for green card status.

    It is important to note that the details and timing for implementing many of the above measures remains uncertain, since many of them may require a change in regulations with a notice and comment period. It also remains to be seen whether Congress will act on comprehensive immigration reform, which could have the effect of preempting some of the executive actions taken by President Obama.

    Please stay tuned for additional information on the pursuit of President Obama’s Executive Order as we plan to issue additional advisories in the future as key components of the executive action are implemented.

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  • 25Jun

    The Fraud Detection and National Security (“FDNS”) unit of USCIS recently announced plans to expand its worksite inspection program to include L-1 employers, likely in response to the 2013 report by the Department of Homeland Security (“DHS”) that addressed fraud and abuse in the L-1 program.

    In a typical FDNS audit, DHS inspectors (or third party government contractors) will conduct pre- and post-adjudication site inspections, usually without notice, at the petitioning employer’s principal place of business and/or at the work location set forth in the petition documents. The purpose of the site inspection is to verify the validity of the information submitted to USCIS with the nonimmigrant petition and ensure compliance with the terms and conditions of the relevant nonimmigrant status. This may include an audit of any of the following information: (1) that the petitioning employer exists and is engaged in the operations set forth in the petition, (2) that the stated job duties are in line with the employee’s classification as either a manager or executive (L-1A) or specialized knowledge employee (L-1B), and (3) the company is paying the employee the wage indicated in the petition and that the wage is consistent with the listed duties and level of experience.

    During the audit, FDNS inspectors may seek to review documents, speak with company representatives, and interview L-1 employee(s). Inconsistencies between the petition and the actual worksite conditions could trigger a Notice of Intent to Revoke (“NOIR”) the approval of the subject L-1 petition(s).  Moreover, the employer’s failure to provide the appropriate documentary evidence requested in the NOIR also could lead the USCIS to revoke the petition.

    To date, USCIS has provided little guidance regarding L-1 regulatory compliance.  As such, sending FDNS officers to company worksites to investigate a petitioning employer’s compliance with the L-1 program raises significant questions.

    With or without additional guidance from USCIS, L-1 employers should be prepared for FDNS site visits (and take them seriously should such a visit occur). In advance of an FDNS site visit, L-1 employers should conduct an internal audit of all L-1 employees to ensure that their job duties, worksites and salaries are readily available. Employers should also retain complete copies of all I-129 petitions and paperwork filed with USCIS. Additionally, employers should ensure that L-1 employees and their managers are aware of the content of the I-129 petition(s) and supporting documentation. While there is currently no requirement under the regulations to file an amended L-1 petition due to minor changes in employment, employers are required to file an amended petition if there has been a substantial change in employment (e.g., full-time to part-time, change in job location outside of MSA), or if it has been determined, post-filing, that there is a material fact provided in the petition documents that is false.

    Here are some practice pointers in dealing with an FDNS site visit:

    • The company representative should request the name, title, and contact information for the site investigator. There are multiple governmental agencies that may audit different nonimmigrant programs (e.g. the H-1B program), including ICE, the USCIS Department of Labor’s Wage and Hour Division, and/or the USCIS’ National Threat Assessment Unit. Therefore, it is critical that the company representative determine which agency he/she is providing information to in the event follow up is necessary.
    • If the investigator identifies him/herself as a USCIS FDNS contractor, the company’s representative should request a business card with a toll free number to obtain confirmation of his credentials prior to providing any information.
    • Legal counsel for the L-1 employer should be advised of the visitation prior to the start of any interviews of company representatives and should attend in person or by phone, if possible.
    • A company representative and/or counsel should accompany the FDNS officer during his/her review of the facility and request to be present during the interviews of any of the company’s employees. (This request may be denied in order to obtain the most candid responses from the employee).
    • The company representative should take notes of all information requested, and provided to, the FDNS officer – both verbally or in writing, including the locations visited, the pictures taken (obtain copies), and/or any other relevant information from the site visit.
    • Always provide complete and accurate information whether requested to do so onsite or subsequently via email.
    • If the FDNS officer has not gathered the required information, the officer will follow up with the L-1 employer via telephone or email to obtain additional information to complete the compliance review. (Counsel may assist with preparing such response).

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  • 06May

    While it’s not “news” that the Form I-94 Arrival/Departure Record system is now automated, on May 1, U.S. Customs and Border Protection (“CBP”) launched a new function to the existing Form I-94 website that permits all temporary (nonimmigrant) workers/visitors access not only to (i) one’s most recent Form I-94 Arrival/Departure Record, but also to (ii) one’s Form I-94 arrival/departure history for the past five (5) years from the request date.

    To do so, travelers should visit the same I-94 webpage (www.cbp.gov/I94) and enter the required name, date of birth, and passport information.

    By clicking on the “Get Most Recent I-94” button, as it has done in the past, the site will provide a printable copy of the most recent I-94 record, including the I-94 number, most recent date of entry, class of admission and the expiration or “admit-until” date.  (Keep in mind that this information will not reflect a change of status, extension of stay, or an adjustment of status granted by the USCIS).

    The new addition to the site includes the “Get Travel History” button.  By clicking on that button, the site should provide a printable five-year travel history based on one’s I-94 arrival/departure records.

    This electronic travel-history function means that travelers may no longer need to file Freedom of Information Act (“FOIA”) requests with CBP in order to obtain their arrival/departure history, greatly speeding up their process.  As such, CBP has added a function to allow travelers to cancel pending FOIA requests for travel history information – after they have received the information from the new website – by adding their FOIA Request Number and clicking on the “Request FOIA Cancellation” button.

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