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The U.S. Department of Homeland Security (USDHS) recently confirmed its plans to publish a Notice of Proposed Rulemaking by June 2018 to remove from its regulations certain H-4 spouses of H-1B nonimmigrant workers as a class of noncitizens eligible for employment authorization. 

The plans regarding timing were gleaned from documents the government filed on February 28, 2018, in a case pending at the D.C. Circuit Court of Appeals. That case, Save Jobs USA v. DHS, involves a challenge by a group of tech workers to the legality of the original H-4 EAD rule, which became effective on February 25, 2015. 

U.S. employers who sponsor foreign workers for temporary H-1B work visas should start preparing now for the upcoming H-1B cap filing season commencing this year on Monday, April 2, 2018. Employers should start identifying those first-time H-1B workers for which petitions will be filed during the first five business days in April. International students holding F-1 visas are the most common beneficiaries for these "quota subject" H-1B petitions.


On October 2, 2017, the U.S. Citizenship and Immigration Services (USCIS) released a new version of Form I-765, the application used to apply for an employment authorization document (or “EAD” card). Based on a new information-sharing partnership between U.S. Citizenship and Immigration Services (USCIS) and the Social Security Administration (SSA), foreign nationals in certain categories or classifications can now apply for work authorization and a social security number using a single form – the updated Form I-765, Application for Employment Authorization.

The U.S. Citizenship and Immigration Services indicated during a September 27, 2017, call with the American Immigration Lawyers Association (AILA) that it is on track to resume offering its Premium Processing service on or before October 3, 2017, to all H-1B petitions.

While no "official" announcement has been made by the agency, the recent statement during an AILA government liaison meeting is welcome news for employers who have experienced long wait times for adjudication of H-1B petitions filed on behalf of their employees.

VisaOn Monday, September 18, 2017, the U.S. Citizenship and Immigration Services (USCIS) announced that it would resume offering its 15-day Premium Processing service for any H-1B visa petition still pending that had been accepted under this Fiscal Year’s (FY) 2018 cap during the first five business days in April 2017. Premium Processing had been suspended for this and almost all other H-1B work visa categories since April 3, 2017.

The United States Citizenship and Immigration Services (USCIS) recently adopted a new policy for travel document applications that should be taken into account by those applying for green cards. Under the new policy, the agency will deny a request for a travel document, called an Advance Parole (AP), if it discovers that the individual traveled outside the United States after filing the request, but before its approval. AP renewals are sought by submission of Form I-131, Application for Travel Document.

On August 28, 2017, the U.S. Citizenship and Immigration Services (USCIS), the U.S. Department of Homeland Security agency responsible for adjudicating immigration benefits, announced that it will begin expanding the in-person interview requirement for all employer-sponsored permanent residency applications. Effective October 1, 2017, the agency will begin to “phase-in” personal interviews at the nearest USCIS Field Office for all adjustment of status applications based on employment (Form I-485, Application to Register Permanent Residence or Adjust Status).

With no fanfare and minimal notice, the government has significantly increased the penalties that can be assessed for a variety of offenses related to the Employment Eligibility Verification Form I-9.

Now, a “mere” error on the paperwork, such as failure to check a box or confirm that the employee dated the document, can result in a penalty of between $216 and $2,156. Previously, the penalty ranged from $110 to $1,100. This almost doubling of the penalty range is significant because penalties for paperwork errors can be the largest aspect of government fines, even for the best of employers.

It may be surprising, but moving to the U.S. with your foreign-citizen spouse is not as simple as you might imagine.  If you are a U.S. citizen working abroad and considering moving back to the U.S. with your foreign-citizen spouse and/or children, it is never too early to begin planning for return to the U.S.

If you are living outside the U.S. and have a foreign-born spouse and/or children, it may have been quick and easy for them to travel to the U.S. on holiday.  But moving back to the U.S. is an entirely different story, requiring government filings and significant lead time of as much as a year or even more.

AirplacePeople immigrate to the United States for many different reasons. Many come here for work reasons and, somewhere along the way, obtain permanent resident status, otherwise known as holding a “green card.” They may work in the U.S. for most of their careers, raising children and becoming integrated into the social fabric of their community. But for various reasons, some will wish to “go home” when they retire. Maybe the home country offers better healthcare. Maybe even after many years in the U.S., they feel more comfortable speaking their native language. Maybe their closest relatives are in their home country, and they feel that they need a support network as they age. Maybe the food is better.

Whatever the reason, those who have been green card holders for a long time (specifically, 8 out of the previous 15 tax years) need to be mindful of the so-called “expatriation tax.” The Heroes Earnings Assistance and Relief Tax Act of 2008 (the “HEART Act”) imposes a tax at the time of departure on U.S. citizens who have renounced their citizenship and on those who renounce their long-term permanent resident status after June 17, 2008. The HEART Act expatriation rules apply to those who, at the time of expatriation:

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The International Practice Group of Garvey Schubert Barer is a cross-disciplinary group of attorneys practicing in areas ranging from business transactions, immigration, maritime, government regulatory work, transportation and logistics, and estate planning. The group members include bilingual and multicultural attorneys who are well-versed in handling these subject matters in a cross-border context. The firm’s attorneys have been actively practicing in the international arena since the early 1970s. 
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