December 2016 Newsletter

In This Issue

USCIS Publishes Long-Awaited Final Rule on Certain Employment-Based Visa Programs

U.S. Citizenship and Immigration Services (USCIS) has issued a final rule to provide greater flexibility for high-skilled foreign professionals. The new regulations also codify current informal administrative guidance about statutory provisions added in 2000. The regulations take effect on January 17, 2017.

USCIS previously made many of these clarifications through a series of non-binding policy memoranda over the past 15 years, with no definitive rules in place.

USCIS said the final rule is intended to modernize and improve several aspects of certain employment-based nonimmigrant and immigrant visa programs. USCIS has also amended the regulations to better enable U.S. employers to hire and retain certain foreign workers who are beneficiaries of approved employment-based immigrant visa petitions and are waiting to become lawful permanent residents.

Among other things, the final rule is intended to:
  • Clarify and improve longstanding policies and practices implementing sections of the American Competitiveness in the Twenty-First Century Act and the American Competitiveness and Workforce Improvement Act related to certain foreign workers, which USCIS said will enhance consistency in adjudication.

  • Better enable U.S. employers to employ and retain high-skilled workers who are beneficiaries of approved employment-based immigrant visa petitions (Form I-140 petitions) while also providing stability and job flexibility to these workers. The rule increases the ability of these workers to further their careers by accepting promotions, changing positions with current employers, changing employers, and pursuing other employment opportunities.

  • Improve job portability for certain beneficiaries of approved Form I-140 petitions by maintaining a petition's validity under certain circumstances despite an employer's withdrawal of the approved petition or the termination of the employer's business.

  • Clarify and expand when individuals may keep their priority dates when applying for adjustment of status to lawful permanent residence.

  • Allow certain high-skilled individuals in the United States with E-3, H-1B, H-1B1, L-1, or O-1 nonimmigrant status, including any applicable grace period, to apply for employment authorization for a limited period if:

    1. They are the principal beneficiaries of an approved I-140 petition,

    2. An immigrant visa is not authorized for issuance for their priority date, and

    3. They can demonstrate that compelling circumstances exist that justify the agency's issuing an employment authorization document in its discretion.

    Such employment authorization may only be renewed in limited circumstances and only in one-year increments.

  • Clarify various policies and procedures related to the adjudication of H-1B petitions, including, among other things, providing H-1B status beyond the six-year authorized period of admission, determining cap exemptions and counting workers under the H-1B cap, H-1B portability, licensure requirements, and protections for whistleblowers.

  • Establish two grace periods of up to 10 days for individuals in the E-1, E-2, E-3, L-1, and TN nonimmigrant classifications to provide a reasonable amount of time for these individuals to prepare to begin employment in the country and to depart the United States or take other actions to extend, change, or otherwise maintain lawful status.

  • Establish a grace period of up to 60 consecutive days during each authorized validity period for certain high-skilled nonimmigrant workers when their employment ends before the end of their authorized validity period, so they may more readily pursue new employment and an extension of their nonimmigrant status.

  • Automatically extend the employment authorization and validity of Employment Authorization Documents (EADs or Forms I-766) for certain individuals who apply on time to renew their EADs.

  • Eliminate the regulatory provision that requires USCIS to adjudicate the Form I-765, Application for Employment Authorization, within 90 days of filing and that authorizes interim EADs in cases where such adjudications are not conducted within the 90-day time frame.

USCIS received nearly 28,000 comments on the proposed rule from a broad range of entities and individuals. Comments submitted by the Alliance of Business Immigration Lawyers.

Read the USCIS announcement.

Read the final rule.

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USCIS Announces Final Rule on Fee Increases, Changes

U.S. Citizenship and Immigration Services (USCIS) recently published a final rule to increase the fees required for most immigration applications and petitions. The new fees will be effective December 23, 2016.

Fees will increase for the first time in six years by a weighted average of 21 percent for most applications and petitions. USCIS said these increases include the costs associated with fraud detection and national security, service and case processing, and providing services without charge to refugee and asylum applicants and to others eligible for fee waivers or exemptions.

The final rule includes a table summarizing current and new fees. Applications and petitions postmarked or filed on or after December 23 must include the new fees or USCIS will not accept them.

USCIS said it is also offering a reduced filing fee for certain naturalization applicants with limited means.

Highlights of the fee rule include:
  • A fee increase of $45, or 8 percent, from $595 to $640 for Form N-400, Application for Naturalization.

  • A reduced filing fee of $320 for naturalization applicants with family incomes greater than 150 percent but not more than 200 percent of the Federal Poverty Guidelines. For 2016, this means, for example, that a household of four with an income between $36,000 and $48,600 per year could pay the reduced fee. Those eligible may apply for this option using the new Form I-942, Request for Reduced Fee.

  • A fee increase from $550 or $600 to $1,170 for Form N-600, Application for Certificate of Citizenship, and N-600K, Application for Citizenship and Issuance of Certificate Under Section 322.

  • A new fee of $3,035 for Form I-924A, Annual Certification of Regional Center.

Read the USCIS announcement.

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USCIS Revises I-9 Employment Eligibility Verification Form

U.S. Citizenship and Immigration Services (USCIS) recently published a revised version of Form I-9, Employment Eligibility Verification. By January 22, 2017, employers must use only the new version, dated 11/14/2016 N. Until then, they can continue to use either the version dated 03/08/2013 N or the new version.

Among the changes in the new version, Section 1 asks for "other last names used" rather than "other names used," and streamlines certification for certain foreign nationals.

Other changes include:
  • The addition of prompts to ensure information is entered correctly.
  • The ability to enter multiple preparers and translators.
  • A dedicated area for including additional information rather than having to add it in the margins.
  • A supplemental page for the preparer/translator.

The instructions have been separated from the form, in line with other USCIS forms, and include specific instructions for completing each field.

USCIS said the revised I-9 is also easier to complete on a computer. Changes include drop-down lists and calendars for filling in dates, on-screen instructions for each field, access to the full instructions, and an option to clear the form and start over. When the employer prints the completed form, a quick response (QR) code is automatically generated, which can be read by most QR readers.

Read the announcement.

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IRS Announces Changes to Individual Taxpayer ID Program

The Internal Revenue Service recently announced changes related to revisions to the Individual Taxpayer Identification Number (ITIN) program made under a new law. The changes require some taxpayers to renew their ITINs, which the IRS encourages people to do early.

Under the new law, ITINs that have not been used on a federal tax return at least once in the last three years will no longer be valid for use on a tax return unless renewed by the taxpayer. In addition, ITINs issued before 2013 that have been used on a federal tax return in the last three years must be renewed starting this fall. The IRS is putting in place a rolling renewal schedule.

If taxpayers have an expired ITIN and do not renew before filing a tax return in 2017, they could face a refund delay and may be ineligible for certain tax credits until the ITIN is renewed, the IRS warned.

The IRS emphasized that ITIN holders do not need to take action if they don’t need to file a tax return next year. Two key groups of ITIN holders may need to renew an ITIN so it will be in effect for returns filed in 2017:
  • Unused ITINs. ITINs not used on a federal income tax return in the last three years (covering 2013, 2014, or 2015) will no longer be valid to use on a tax return as of January 1, 2017. ITIN holders in this group who need to file a tax return next year will need to renew their ITINs. The renewal period began October 1, 2016.

  • Expiring ITINs. ITINs issued before 2013 will begin expiring this year, and taxpayers will need to renew them on a rolling basis. The first ITINs that will expire under this schedule are those with middle digits of 78 and 79 (Example: 9XX-78-XXXX). The renewal period for these ITINs began October 1, 2016. The IRS said it is mailing letters to this group of taxpayers to inform them of the need to renew their ITINs if they need to file a tax return and explain steps they need to take. The schedule for expiration and renewal of ITINs that do not have middle digits of 78 and 79 will be announced at a future date, the IRS said.
How to renew. Only ITIN holders who need to file a tax return must renew their ITINs. Others do not need to take any action.

To renew an ITIN, taxpayers must complete Form W-7, Application for IRS Individual Taxpayer Identification Number, follow the instructions, and include all information and documentation required. To reduce the burden on taxpayers, the IRS is not requiring individuals renewing an ITIN to attach a tax return when submitting their Form W-7. Taxpayers are reminded to use the newest version of the Form W-7 ("Rev. 9-2016") available at the time of renewal.

There are three methods for submitting an W-7 application package to renew an ITIN:
  • Mail the Form W-7, along with the original identification documents or certified copies by the agency that issued them, to the IRS address listed on the form (identification documents will be returned within 60 days);

  • Use one of the many IRS-authorized Certified Acceptance Agents, or Acceptance Agents around the country; or

  • In advance, call and make an appointment at an IRS Taxpayer Assistance Center in lieu of mailing original identification documents to the IRS.

Family option. The IRS is offering a family option for ITIN renewal. If any individuals having an ITIN middle digit of 78 or 79 receive a renewal letter from the IRS, they can choose to renew the ITINs of all of their family members at the same time rather than doing them separately over several years. Family members include the tax filer, the spouse, and any dependents claimed on their tax return.

The IRS said it is working closely with a variety of groups to share information about the ITIN changes and help raise awareness about the new guidelines. The IRS will be providing additional information and material to share with these groups and taxpayers in the near future.

New requirement for dependents. As of October 1, 2016, the IRS is no longer accepting passports that do not have a date of entry into the United States as stand-alone identification documents for dependents from countries other than Canada or Mexico or dependents of military members overseas. Affected applicants now must submit either U.S. medical records for dependents under age six or U.S. school records for dependents under age 18 along with their passports. Dependents aged 18 and over can submit a passport along with a rental or bank statement or a utility bill listing the applicant's name and U.S. address.

IRS noted that ITINs are for federal tax purposes only and are not intended to serve any other purpose. ITINs that are only used on information returns filed with the IRS by third parties do not need to be renewed. An ITIN does not authorize a person to work in the United States or provide eligibility for Social Security benefits or the Earned Income Tax Credit. ITINs are not valid identification outside the tax system and do not establish immigration status.

Read the IRS announcement.

Read the Frequently asked questions.

The ITIN changes are required by the Protecting Americans from Tax Hikes (PATH) Act enacted by Congress in December 2015. These provisions, along with new procedures to help taxpayers navigate these changes, are outlined in IRS Notice 2016-48.

Read more information here.

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USCIS Updates Guidance on Health-Related Grounds of Inadmissibility

U.S. Citizenship and Immigration Services (USCIS) recently announced that it has updated guidance regarding health-related grounds of inadmissibility in accordance with a final rule updating Department of Health and Human Services regulations published in early 2016.

The guidance in the USCIS Policy Manual:
  • Updates the definition of a Class A condition to include failure to present documentation of having received vaccinations against vaccine-preventable diseases.

  • Updates the definition of a Class B condition to "health conditions, diseases, or disability serious in degree or permanent in nature."

  • Updates the definition of physical and mental disorders with associated harmful behavior and the definition of drug abuse and drug addiction.

  • Removes three medical conditions (chancroid, granuloma inguinale, and lymphogranuloma venereum) from the list of communicable diseases of public health significance that would render an applicant for immigration benefits inadmissible on health-related grounds of inadmissibility.

USCIS said the guidance in the manual "is controlling and supersedes any prior guidance."

Read USCIS's related policy alert.

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EVUS Program for Chinese Nationals

Beginning November 29, 2016, Chinese nationals with 10-year visitor visas (B-1/B-2, B-1 or B-2) must have a valid Electronic Visa Update System (‘EVUS’) enrolment in order to be allowed to travel to the U.S. Travellers with visas already issued in their passports may continue using those visas, but they will not be admitted to the U.S. after November 29th without first enrolling in EVUS (enrolments will generally last for two years or until passport expiry).

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USCIS Updates Guidance on Extreme Hardship Waivers

The USCIS has updated its Policy Manual with information about what constitutes ‘extreme hardship’ for the purposes of an application for a waiver of ineligibility filed in conjunction with an immigrant visa application.

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Government Agency Links

Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State's latest Visa Bulletin with the most recent cut-off dates for visa numbers:
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Hodkinson Law Group News

As the weather gets colder and the festive holidays approach we would like to take this opportunity to wish our clients and colleagues a wonderful holiday season filled with happiness, peace and joy. We are now settled well into our new offices which are directly across from London Bridge Station at 6 Hays Lane, London SE1 2HB. Our phone, fax and email addresses remain unchanged. Our offices are more convenient to the new US Embassy, London, which will be moving to Nine Elms next year.

Kehrela Hodkinson moderated a panel for a Web-Seminar on "Hot Topics in Non-Immigrant Visa Consular Processing" for American Immigration Lawyers Association. She has been named one of the 10 most highly regarded corporate immigration lawyers outside of the United States by Who’s Who Legal in its 2016 Corporation Immigration Analysis. Kehrela has been practising US immigration law since 1981 and has been in London since 1994. Her passion for assisting both individual and corporate clients resolve their US immigration issues has never waned in her 35 years of practising law.

Sharon Noble has been practicing U.S. immigration law with Hodkinson Law Group since 1996. Her areas of expertise include non-immigrant and immigrant visa petitions for corporate employees, individual investors and entrepreneurs. Ms. Noble worked with Ms. Hodkinson in London for seven years before returning to the United States in 2003. She is now Of Counsel to Hodkinson law Group, working remotely from California.

Allison Ouvry has practiced business immigration law since 2000. She is a member of the State Bar of Texas and the New York Bar, and a member of the American Immigration Lawyers Association, the American Women Lawyers in London group, and the London Library. Allison works with the firm's corporate clients to find creative solutions to enable the companies' employees to work in the United States on both a short term and long term basis.

Tasha Wiesman has relocated to Chicago from where she remotely continues to assist our clients in the preparation and filing of non-immigrant and immigrant visa petitions and applications of waivers of grounds of inadmissibility. She is a member of the Illinois State Bar and is actively involved in The American Immigration Lawyers Association Military Assistance Program.
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Kehrela Hodkinson has been named as one of the ten most highly regarded immigration lawyers outside of the US by "Who's Who Legal, Corporate Immigration 2016".

Sharon Noble has been practicing US immigration law since 1996. She is Of Counsel to Hodkinson Law Group, working remotely from California.

Allison Ouvry has practiced law since 1996, concentrating in the field of business immigration since 2000.

Tasha Wiesman assists in the preparation and filing of non-immigrant and immigrant visa petitions and applications for waivers of inadmissibility.
Hodkinson Law Group | | +44 (0) 20 7299 2490
6 Hays Lane | London | SE1 2HB | United Kingdom

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