Beginning November 19, 2018, The Department of Labor (DOL) has made several revisions to the Labor Condition Application (LCA) process, including changes to the iCERT system that will impact Form ETA-9035 LCA e-file submissions. Some of the more significant changes include the following categories:
• The DOL will require employers to indicate whether the H-1B, E-3 and H-1B1 workers will be placed at an end-client worksite and disclose the name of the third-party entity;
• Employers must identify all intended places of employment (the form will now accommodate up to 10 additional addresses for worksites) and estimate the total number of workers at each location;
• H-1B dependent employers and willful violators claiming an exemption based on the attainment of a master’s or higher degree must provide additional information (name of the institution, field of study, date degree awarded) and upload documentation at the time of filing which substantiates the academic information provided.
These changes to the LCA form will impact how quickly LCAs can be filed in new cases, especially where this new information is required of certain employers. When beginning a new case in which an LCA is required, we advise our clients to be sure to have this new information ready so that an LCA may be submitted in a timely manner, especially in cases of a Change of Employer for a foreign national that is within the 60 day period after leaving the previous employer. Please consult with your attorney regarding any questions you may have concerning the effects of this change on your company’s immigration cases.
Beginning on November 19th, 2018 USCIS will start implementing Executive Order 13768, Enhancing Public Safety in the Interior of the United States. This Policy Memorandum will supersede the prior PM, Revised Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Removable Aliens, from November 7, 2001. It will allow USCIS to issue NTAs, which is the first step to commence removal proceedings. USCIS will be able to issue NTAs in cases in which the individual is removable in the following categories:
• Cases where fraud or misrepresentation is substantiated, and/or where an applicant abused any program related to the receipt of public benefits. USCIS will issue an NTA even if the case is denied for reasons other than fraud.
• Criminal cases where an applicant is convicted of or charged with a criminal offense, or has committed acts that are chargeable as a criminal offense, even if the criminal conduct was not the basis for the denial or the ground of removability. USCIS may refer cases involving serious criminal activity to ICE before adjudication of an immigration benefit request pending before USCIS without issuing an NTA.
• Cases in which USCIS denies a Form N-400, Application for Naturalization, on good moral character grounds because of a criminal offense [note: it is unlikely USCIS has the authority to remove anyone in this situation].
• Cases in which, upon the denial of an application or petition, an applicant is unlawfully present in the United States.
Again, USCIS has publicly confirmed they will not enforce this memorandum for employment-based petitions at this time and will prioritize criminal records, fraud, and national security concerns for referral removal proceedings. This policy will align with the priorities of the Department of Homeland Security. If interested in obtaining more information on this policy and who may be affected by it, please see the USCIS Policy Memorandum.
A change of address must be completed within 10 days of moving by any individual present in the United States that is not a citizen of the United States. Penalties for Failure to Comply: A willful failure to give written notice to the USCIS of a change of address within 10 days of moving to the new address is technically a misdemeanor crime. If convicted, you (or the parent or legal guardian of an alien under 14 years of age who is required to give notice) can be fined up to $200 or imprisoned up to 30 days, or both. The alien may also be subject to removal from the United States. (INA Section 266(b)). Compliance with the requirement to notify the USCIS of any address changes is also a condition of your stay in the United States. Failure to comply could also jeopardize your ability to obtain a future visa or other immigration benefit. We point this out to again remind clients it is important to ensure USCIS is updated through a timely AR-11 filing, and thankfully such a filing can be done on the uscis.gov website.
While the results of the midterm election were a “split” decision of sorts, from an immigration policy perspective, there is an opportunity to be optimistic.
With the Democratic party taking control of the House of Representatives, they hold the ability to prevent any anti-immigrant legislation from advancing to consideration. They also have the ability to conduct oversight and investigations into USCIS and can help ensure the organization follows its own legislative authority.
While we expect a complete gridlock to endure across all areas of the government given that each chamber of Congress is controlled by a different political party, there is a side-benefit in stopping bad policy.
The December 2018 visa bulletin has made little progress from November 2018. The priority date for EB-1 Worldwide has remained at June 01, 2018, while EB-2 and EB-3 Worldwide are current. EB-1 China and EB-1 India remain at October 01, 2017, and EB-1 Philippines remains at June 01, 2018. EB-2 China has moved to September 08, 2015, while EB-2 India has remained at May 22, 2009; EB-2 Philippines is current. EB-3 China has advanced to December 01, 2015, and EB-3 India has advanced to January 01, 2010, and EB-3 for the Philippines has advanced to August 01 2017.
** This newsletter/memo is provided for informational and discussion purposes only. It does not act as a substitute for direct legal contact on an individual basis **