Immigration Highlights

December 18, 2018

NP Immigration Newsletter

Author(s): Courtney H. New, Jason Gerrol

The U.S. immigration landscape continues to shift. This alert contains several updates from the last few weeks.

Law and policy updates

USCIS proposes changes to H-1B lottery

By notice dated December 3, 2018, the Department of Homeland Security (DHS), and U.S. Citizenship and Immigration Services (USCIS) in particular, proposed changes to the process by which H-1B cap subject petitions are selected each fiscal year. Specifically, USCIS has proposed to (1) add a pre-registration process to the H-1B “lottery,” and (2) reverse the order by which H-1B petitions are selected in the “lottery,” thereby increasing the total number of petitions selected for H-1B beneficiaries possessing a master’s degree or higher from a U.S. college or university. The rule is not yet final, and it remains to be seen whether USCIS will have sufficient time to implement the pre-registration requirement prior to April 2019. However, the proposed rule does expressly state USCIS may reverse the order by which H-1B petitions are selected, even if the pre-registration process is delayed. As such, employers should anticipate a final rule and at least a reversed selection process will be in place in time for the April 2019 H-1B filing season and consult with immigration counsel accordingly.

For more information, see our client alert.

Court and legislative updates

DACA program kept alive by Ninth Circuit Court of Appeals

On September 5, 2017, the Trump administration announced the end of the Deferred Action for Childhood Arrivals (DACA) program, which provides protection from removal (deferred action) and employment authorization to unauthorized immigrants who came to the U.S. as children with their parents or guardians. The decision to end DACA was quickly met with legal challenges, and on November 8, 2018, the Ninth Circuit Court of Appeals upheld a lower court ruling requiring USCIS to continue accepting DACA renewal requests from individuals previously granted DACA. The Trump administration had made clear their intentions to seek U.S. Supreme Court review of the ruling, and DACA applicants should consult with immigration counsel regarding the impact of ongoing litigation in this matter.

For more information regarding the DACA application process, see this USCIS page. For information on the last court ruling, see this NY Times article.

Travel updates

CBP encourages Visa Waiver Program travellers to apply early

Citizens of Visa Waiver Program (VWP) countries are allowed to travel to the U.S. without a visa under certain circumstances, but must first apply for VWP travel to the United States using the Electronic System for Travel Authorization (ESTA). On December 11, 2018, Customs and Border Protection (CBP) reminded travellers that due to changes in ESTA application processing, real-time approvals of ESTA applications are no longer possible. As such, travellers are encouraged to submit their ESTA application as soon as possible and no less than 72 hours before their international flight is scheduled to depart.

See the CBP announcement and information regarding travel under the VWP.

Reports and notices

SSA to resume issuing “no match” letters

In August 2018, the Social Security Administration (SSA) resumed sending Employer Correction Request Notices, commonly known as “no match” letters, to businesses and third parties who submitted wage and tax statements containing name and Social Security Number combinations that do not match SSA records. Furthermore, SSA recently announced that in spring 2019 they will begin sending “no match” letters to each employer with at least one W-2 form containing a name and SSN that do not match SSA records.

While DHS attempted to require employers to take certain steps after receiving a “no match” letter in order to avoid a charge of constructive knowledge that an employee does not have proper work authorization, those regulations were rescinded in 2009, leaving employers uncertain as to the immigration implications of receiving a “no match” letter.

Fortunately, the SSA has provided step-by-step instructions for resolving SSN discrepancies. In addition, because an SSN “no match” can result from a variety of causes, including typographical errors or name changes, the Department of Justice, Office of Special Counsel for Immigration-Related Unfair Employment Practices, has strongly cautioned employers not to assume a “no match” letter is reflective of an employee’s immigration status or work authorization, and instead should provide the employee with a reasonable amount of time to address a reported “no match” with the local SSA office. Employers should consult with immigration/employment counsel to ensure any policy for resolving a “no match” is implemented in a non-discriminatory manner.

For more information, see the SSA announcement.

USCIS to expand Information Services Modernization Program

Applicants for an immigration benefit pending with U.S. Citizenship and Immigration Services (USCIS) can schedule an appointment with their local USCIS office via the Infopass scheduling system. In an effort to end the self-scheduling of Infopass appointments, and encourage applicants to instead use USCIS’s online information resources, USCIS has launched the Information Services Modernization Program. The Program has been implemented at USCIS field offices in Detroit, Newark, Chicago, Los Angeles and San Francisco, and will be expanded to all offices by September 30, 2019. According to USCIS, if it is determined that an applicant still needs in-person assistance, USCIS staff will help schedule an appointment for that individual at his/her local USCIS office.

For more information, see USCIS announcement.

The foregoing has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you have any questions or require any further information regarding these or other related matters, please contact your regular Nixon Peabody LLP representative. This material may be considered advertising under certain rules of professional conduct.

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