On September 22gavel-3-1236445, 2016, Judge Michael H. Simon, of the U.S. District Court of Oregon, ruled that Tenrec, Inc. v. U.S. Citizenship & Immigration Servs., a class action lawsuit challenging the annual H-1B lottery process, may proceed.

The H-1B visa allows United States companies to employ foreign workers in jobs that require at least a bachelor’s degree. It is the most popular non-immigrant visa for bringing foreign workers to the United States.

While the demand for H-1B visas is always extremely high, there is currently a statutory cap on the number of new H-1B visas that may be issued each fiscal year. Currently, only 65,000 new H-1B visas are available each year. There are an additional 20,000 H-1B visas available for foreign nationals with a master’s degree (or higher) from a United States university.

Small business ownerOn August 26, 2016, U.S. Citizenship and Immigration Services (“USCIS”) proposed a new rule to allow certain foreign national entrepreneurs to be considered for parole (temporary permission to be in the United States), in order to start or grow a business in the United States. On August 31, 2016, the proposed rule was published in the Federal Register, and the public was given 45 days (till October 17, 2016) to provide comment on the proposed rule. Once the 45-day comment period closes, USCIS will address the comments received and issue a final binding rule. USCIS currently hopes to have the final rule in place by the end of the year.

The proposed rule would allow the U.S. Department of Homeland Security (“DHS”) to use its existing authority to parole foreign nationals into the United States, to issue parole to foreign entrepreneurs of startup companies, whose stay in the United States would provide a “significant public benefit through the substantial and demonstrated potential for rapid business growth and job creation”.

Under the proposed rule, DHS may parole entrepreneurs into the United States if they meet the following eligibility requirements:

Picture of a happy family.On July 29, 2016, the U.S. Department of Homeland Security announced a final administrative rule that will significantly expand the availability of provisional unlawful presence waivers (commonly known as I-601A waivers). The new rule goes into effect on August 29, 2016.

Foreign nationals who enter the United States illegally, are barred from becoming lawful permanent residents (“LPRs”) through the adjustment of status process. Instead, in order to become LPRs, they must leave the United States and apply for an immigrant visa at an American embassy or consulate.

However, by leaving the United States, these individuals become inadmissible to the United States based on the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”). Under IIRIRA, foreign nationals who voluntarily depart the United States after being unlawfully present for more than 180 days, are barred from re-entering the country for a period of either 3 or 10 years. (The time period is determined based on whether or not the foreign national was unlawfully present for more than one year.)

Effective August 1, 2016, the U.S. Department of Homeland Security (“DHS”), significantly increased civil fines for employers who commit I-9 and other violations of the Immigration Reform and Control Act (“IRCA”). The increased fines are a direct result of the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Sec. 701 of Public Law 114-74) (“the Inflation Adjustment Act”). The Inflation Adjustment Act, required all federal agencies to increase civil fine penalties to adjust for inflation.

Enacted on November 6, 1986, IRCA requires all employers to verify both the identity and employment eligibility of all employees. 8 U.S.C. § 274a.2 created Form I-9 as the way employers must document their compliance with IRCA. All employers are required to complete Form I-9 within three days of an employee’s first paid day of work.  In addition, employers are required to retain all Form I-9s for a period of three years after an employee is hired, or for one year after the employee is no longer employed (whichever is longer). Penalties for failing to comply with IRCA and 8 U.S.C. § 274.a.2 can range from civil fines, disqualification from government contracts, and criminal penalties.

Effective August 1, 2016, DHS increased civil fines for IRCA violations occurring after November 2, 2015. A breakdown of the new fines is set forth below:

Contact Information