Business Immigration Weekly for January 26, 2017

Employers Must Use New Form I-9 by January 22, 2017

The USCIS published a new version of the Form I-9 on November 14, 2016. Employers must begin using the new version, dated November 14, 2016, by January 22, 2017. Employers must stop using the Form I-9 with a revision date of March 8, 2013. by January 21, 2017. The revised Form I-9 is easier to complete on a computer. Enhancements include: drop-down lists and calendars for filling in dates; on-screen instructions for each field; easy access to the full instructions; revisions to Section 1 requesting "other last names used"; streamlined certification for certain foreign nationals; prompts to ensure information is entered accurately; ability to enter multiple preparers and translators; a dedicated area for including additional information rather than having to add it in the margins; and a supplemental page for the preparer/translator.

USCIS Reaches H-2B Cap for the First Half of Fiscal Year 2017

On January 12, 2017, the U.S. Citizenship and Immigration Services (USCIS) reported that it has reached the H-2B cap for the first half of Fiscal Year 2017. The final receipt date for new H-2B petitions was January 10, 2017 requesting an employment start date before April 1, 2017. The USCIS will reject any new H-2B petitions received after January 10, 2017 with an employment start date before April 1, 2017.

USCIS Proposed Rule on Modernization of EB-5 Program

The Department of Homeland Security (DHS) has proposed amendments to the EB–5 immigrant investor classification and associated regional centers to reflect statutory changes and modernize the EB–5 program. In general, under the EB–5 program, individuals are eligible to apply for lawful permanent residence in the U.S. if they make the necessary investment in a commercial enterprise in the U.S. and create or, in certain circumstances, preserve 10 permanent full-time jobs for qualified U.S. workers. This proposed rule would change the EB–5 program regulations to reflect statutory changes and codify existing policies. It would also change certain aspects of the EB–5 program in need of reform. DHS proposes the following major revisions to the EB–5 program regulations.

• Priority date retention - DHS proposes to authorize certain EB–5 petitioners to retain the priority date of an approved EB–5 immigrant petition for use in connection with any subsequent EB–5 immigrant petition.
• Increases to the investment amounts – DHS is proposing to increase the minimum investment amounts for all new EB–5 petitioners. The increase would ensure that program requirements reflect the present-day dollar value of the investment amounts established by Congress in 1990.
  • The DHS proposes to initially increase the standard minimum investment amount, which also applies to high employment areas, from $1 million to $1.8 million.
  • For those investors seeking to invest in a new commercial enterprise that will be principally doing business in a targeted employment area (TEA), DHS proposes to increase the minimum investment amount from $500,000 to $1.35 million, which is 75 percent of the proposed standard minimum investment amount.
• Reforming the Targeted Employment Area (TEA) designation process.
  • The DHS proposes to allow any city or town with high unemployment and a population of 20,000 or more to qualify as a TEA.
  • The DHS proposes to eliminate the ability of a state to designate certain geographic and political subdivisions as high-unemployment areas. Instead, the DHS would make such designations directly, using defined standards
• Changes to the process for removing conditions – The following additional proposals have been made:
  • An immigrant investor's spouse and children would be required to file separate Form I–829 petitions when they are not included in the Form I–829 filed by the immigrant investor.
  • USCIS would be permitted to schedule an interview at the USCIS office holding jurisdiction over either the immigrant investor's commercial enterprise, the immigrant investor's residence, or the location where the Form I–829 petition is adjudicated.
• Revisions to Form I-526, Immigrant Petition by Alien Entrepreneur.