U.S. Citizenship and Immigration Services (USCIS) has published a revised version of Form I-9, Employment Eligibility Verification. Between now and January 21, 2017, employers may choose to use either the current version (dated 03/08/2013) or the new version (dated 11/14/2016). Beginning January 22, 2017, employers must use the new version for all new hires and for reverifications.
Employers must complete a Form I-9 within three (3) days of hire to verify the identity and work authorization of all newly-hired employees, and to re-verify the work authorization of employees whose present work authorization will expire. Employers must use the version of Form I-9 that is current at the time of hire or reverification. Using an expired or invalid version of the form can result in penalties for noncompliance.
The new Form I-9 has several changes, including:
In addition, USCIS has separated the instructions from the form itself, consistent with other recent form revisions. The new separate instructions are more thorough and include specific guidance for completing each field.
The revised Form I-9 is also easier to complete on a computer. Enhancements include drop-down lists and calendars for filling in dates, on-screen instructions for each field, one-click access to the full instructions, and an option to clear the form and start over.
As always, please contact us with any questions.
On Friday, March 11, the Department of Homeland Security (DHS) published a rule expanding Optional Practical Training (OPT) opportunities for F-1 students who have earned a degree in Science, Technology, Engineering, or Math (STEM).
The original rule, published in 2008, granted an additional 17 months of OPT work authorization (for a total of 29 months) to STEM graduates whose employers participate in the E-Verify employment verification program. A Federal court vacated the original rule in August 2015, but delayed the effective date of its ruling until May 10, 2016, to allow DHS to develop a new rule.
The new STEM OPT rule is effective May 10, 2016, consistent with the court’s order. The rule expands OPT opportunities for STEM graduates, and imposes new obligations on both students and employers.
STEM graduates will now be eligible for an additional 24 months of OPT work authorization. Combined with the 12 months of post-completion OPT available to all students, STEM graduates potentially could have 36 continuous months of post-completion OPT work authorization.
To be eligible for the additional OPT, a student must have earned a degree in a field of study designated by DHS as a qualifying STEM field. DHS will revise and update the list of acceptable STEM fields based on the U.S. Department of Education’s categorization. The rule retains the requirement that the student’s STEM OPT employer participate in E-Verify.
The rule clarifies that a student may obtain a STEM OPT extension based on his or her most recent degree or on a previously earned STEM degree. The STEM OPT employment must relate to the STEM degree field. A student may also obtain a second STEM OPT extension if he or she earns another STEM degree at a higher degree level.
In addition to expanding student opportunities for OPT, the rule adds certain reporting requirements for students, places a new focus on the training provided by STEM OPT employers, and adds protections for U.S. workers.
The rule requires students to report their name, address, and employment details to their Designated School Official (DSO) every six months, and must report any changes in employment status or deviations from the employer’s training plan within 10 days of the change. Students also must complete and submit to the DSO two self-evaluations during the STEM OPT period.
STEM OPT employers must implement a formal, individualized training plan (using DHS Form I-983) and have an annual performance evaluation process in place. Employers may rely on existing training and evaluation processes as long as they meet the STEM OPT requirements. The training plan must:
STEM OPT employers must assist students with their reporting requirements and attest that they have sufficient resources to provide the training, that they will not use students to replace U.S. workers, and that the opportunity helps students reach their training objectives. In addition, the terms and conditions of the OPT employment, including salary and benefits, must be commensurate with the employer’s similarly situated U.S. workers.
Finally, the rule authorizes DHS to conduct site visits to ensure that STEM OPT employers are meeting the program requirements. Generally, these site visits will be announced in advance.
We will provide more details about some of these new provisions over the next few weeks. Meanwhile, please contact us with any questions.
Minutes ago, USCIS announced that starting May 26, 2015, it will suspend the "premium processing" service for all H-1B petitions requesting an extension of stay for the H-1B worker.
The announcement states that this action is necessary so that USCIS can efficiently implement the H-4 Work Authorization rule, also scheduled to take effect on May 26.
Since the 90-day processing time for the H-4 work authorization does not begin until USCIS adjudicates the underlying H-1B and H-4 extension, USCIS clearly expects a significant number of concurrently filed H-1B/H-4 extensions requesting premium processing in an effort to expedite issuance of the H-4 Employment Authorization Card (EAD).
According to the announcement, this action only affects extension requests filed on or after May 26, 2015. USCIS will continue to premium process extension petitions file before May 26. The announcement also makes clear that premium processing is still available for all other H-1B petitions, including those requesting a change to H-1B status or consular notification.
As always, please contact us with any questions.
Undeterred by the temporary injunction that delayed the start of the expanded DACA program (which the Justice Department has appealed), the Obama Administration has announced the launch of another key element of its effort to modernize existing immigration laws.
Yesterday, USCIS announced the long-awaited regulatory change that will make certain H-4 spouses eligible for employment authorization (EAD). This extension of EAD eligibility does not apply to all H-4 spouses, nor does it apply to children.
For an H-4 spouse to be eligible for this category of employment authorization, the H-1B spouse must:
Although USCIS will not begin accepting H-4 EAD applications until May 26, 2015, we encourage potentially qualified individuals to contact us to determine whether they meet the eligibility criteria.
News and Updates
Immigration law news and updates from the attorneys at Steel & Glassman