Immigration Review: 2013 in a Flash!

[Editor’s Note: Today’s article is courtesy of Giselle Carson, Shareholder at Marks Gray, P.A. in Jacksonville, Florida.]

 
As we prepare for another exciting year of immigration news, we are looking back at 2013 and also giving you a preview on what we are expecting this year.

H-1B Visa Cap Reached in Five Days

The cap was reached in the first five days of filing and USCIS conducted a visa lottery for the first time since 2008 to select the lucky petitions.  This high demand for H-1B visas is expected to continue in 2014 and we encourage those wanting to apply for a new H-1B visa to start planning the filing in February.  USCIS will start accepting petitions for new H-1B visas on April 1, 2014.

Comprehensive Immigration Reform

The passage of a comprehensive bill was promising in June when the U.S. Senate passed bill

iStock_000025413070SmallS. 744 which included a path for legalization for unauthorized immigrants, an expansion of E-Verify, an increase in the number of temporary work visas and a plan to clear the immigrant visa backlogs. This would have been the first overhaul of our immigration system since 1986.  However, a bipartisan solution was not reached as the House was not supportive of a comprehensive plan.

New Form I-9

In March, after about a year working on a suitable form and without significant warning, USCIS released the 7th edition of the Form I-9.  The form was reformatted and expanded to two pages.  During audits, we have found that employers completing the I-9 on paper are forgetting to insert the name of the employee at the top of page 2.  Please plan to review your new I-9 form and make this correction, if needed.

PERM Application Audits Up and Processing Delays

DOL continued to scrutinize, audit and deny a significant number of applications for permanent labor certification (PERM).  Approximately 30% of all cases are being audited and of those, 50 percent are denied.  Processing times have also increased with cases without audits being processed by DOL in about five to six months and audited cases taking about a year.  With these lengthy processing times, it is critical the employers and employees start planning for the “green card process” as early as possible.

The Government Shutdown

The 16-day federal government shutdown led to significant delays and interruption in immigration services particularly the ability of employers to use E-Verify and to file labor conditions applications and permanent labor certifications.  We are still experiencing delays in adjudications as a result.

The End of the Paper I-94
In April, CBP implemented an electronic Form I-94 processing for foreign nationals arriving in the U.S. via air and sea.  CBP is now only issuing paper I-94s to foreign nationals arriving at a land border. Foreign nationals affected by this change are now receiving a passport entry stamp instead of the paper I-94 and are expected to retrieve their electronic I-94 record of admission at www.cbp.gov/I94.

DHS Recognizes Same-Sex Marriages

After many years of resistance, DHS quickly moved to adjudicate same-sex marriage petitions after the U.S. Supreme Court decision in U.S. v. Windsor (2013) to strike the Defense of Marriage Act (DOMA).

What will 2014 bring?

In 2014, we are expecting to see some of the same but also some promising good news.

There are ongoing efforts to reform our immigration laws through a series of incremental bills at the federal and state levels. Last week, Republican House leaders released their standards for immigration reform, which emphasize border security, a fully functional electronic entry-exit system, a workable electronic employment verification system, high-skilled employment-based immigration, a temporary worker program, and a path to legal residence (and in the case of certain young adults, citizenship) once certain enforcement triggers have been met.

The president of the U.S. Chamber of Commerce in his annual “State of American Business” indicated that the Chamber – through grassroots lobbying, communications, politics and partnerships with unions, faith organizations, law enforcement and others will work to get immigration reform passed.

At the state level, we have emerging immigrant-friendly bills in states like California, Oregon and Illinois.  These bills authorize undocumented persons to apply for driver’s licenses, limit who state and local police can hold for deportation at the request of ICE and allow certain undocumented immigrants to pay college in-state tuition.

The Visa Bulletin for February 2014 shows priority dates for EB-2 India at November 15, 2004 and China at January 08, 2009.  It is expected that EB-2 India will not change much until around June.  Other cut-off dates are expected to continue to move slightly forward every month.

We also expect ongoing delays in adjudications by DOL and USCIS and emphasis on employers’ compliance with the employment verification process and expansion of E-Verify.

We look forward to another fascinating year of immigration news and to continue to bring you important updates.

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Ms. Giselle Carson is a Shareholder at Marks Gray, P.A. and practices in the area of U.S. and global immigration.   She represents employers in all areas of immigration law and has experience representing clients in federal and state courts and before federal agencies, particularly in immigration compliance and I-9 audits.   She is AV-rated by Martindale-Hubbell.  She is also the International Chair for the Jacksonville Chamber of Commerce and a Board Member of the Jacksonville Bar Association.