News

Matter of Dhanasar – the New NIW Standard

After nearly two decades, the Administrative Appeals Office has eliminated the much-criticized NYSDOT standard for EB-2 National Interest Waiver green card cases and replaced it with a new much more realistic one for applicants. According to the AAO:

USCIS may grant a national interest waiver if the petitioner demonstrates: (1) the foreign national’s proposed endeavor has both substantial merit and national importance; (2) he or she is well positioned to advance the proposed endeavor; and (3) on balance, it would be beneficial to the United States to waive the job offer and labor certification requirements.

The appeal was for Dhanasar, who is an aerospace engineer engaged in research and teaching and who self-petitioned for a National Interest Waiver.

Subparagraph (A) of section 203(b)(2) of the Immigration and Nationality Act (INA) (which creates the EB-2 employment-based green card category) makes National Interest Waiver-based immigrant visas available to “qualified immigrants who are members of the professions holding advanced degrees or their equivalent or who because of their exceptional ability in the sciences, arts, or business, will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States.”

Normally, EB-2 applications must be accompanied by a labor certification documenting that an employer has tested the job market and can show there are no able, willing, qualified and available applicants to fill the position. Applicants must therefore have a willing employer go through the process of advertising the position and meeting prevailing wage requirements and if someone with the minimum qualifications for the job applies, the application will be denied even if the applicant’s qualifications are much stronger.

Under INA Section 203(b)(2)(i) “may, when the [Secretary] deems it to be in the national interest, waive the requirements of subparagraph (A) that an alien’s services in the sciences, arts, professions, or business be sought by an employer in the United States.”

The AAO described the 1998 NYSDOT standard that is being vacated as follows:

The NYSDOT framework looks first to see if a petitioner has shown that the area of employment is of “substantial intrinsic merit.” Id. at 217. Next, a petitioner must establish that any proposed benefit from the individual’s endeavors will be “national in scope.” Id. Finally, the petitioner must demonstrate that the national interest would be adversely affected if a labor certification were required for the foreign national.

In Dhanasar, the AAO notes first that the word “intrinsic” in NYSDOT is too subjective. The AAO also believes the second prong of NYSDOT requiring the benefit to be “national in scope” is construed too narrowly by focusing on the geographic impact of the benefit.

But the AAO found the third prong of NYSDOT – that the petitioner must “demonstrate that the national interest would be adversely affected if a labor certification were required” as being the most problematic. The AAO describes four attempts in NYSDOT to explain the third prong including one stating that applicant must show “influence in the field.” In a footnote, the AAO noted that this “influence” standard looks to past success to predict future benefit, but while stating there is some merit in this, there are some talented individuals for whom past achievements are not the best predictor of future success.

The AAO also found that trying to make applicants show a national interest if they skip a process to recruit unidentified US workers doesn’t make sense – particularly for self-employed individuals such as entrepreneurs. The AAO criticized the concept of showing a harm to the national interest if a labor certification is bypassed, something that it noted is not in the statute and unnecessarily narrows the Secretary of Homeland Security’s discretionary authority under the INA.

Thus, the AAO is vacating NYSDOT and adopting a new framework that it believes “will provide greater clarity, apply more flexibly to circumstances of both petitioning employers and self-petitioning individuals, and better advance the purpose of the broad discretionary waiver provision to benefit the United States.”

Under the new standard, an NIW may be approved if “(1) that the foreign national’s proposed endeavor has both substantial merit and national importance; (2) that the foreign national is well positioned to advance the proposed endeavor; and (3) that, on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.” The AAO does note that USCIS still has the discretion to deny. However, it seems unlikely that one would win the third prong of Dhanasar and lose on a discretionary basis since the third prong is itself a matter of discretion. 

“Substantial merit and national importance” – Prong 1

Under the new NIW first prong, the AAO notes that merit may be demonstrated in a wide range of areas including “business, entrepreneurialism, science, technology, culture, health, or education.” The AAO indicates that showing merit by quantifying economic impact is one way to meet the test, but that it is not required if other evidence of national importance is provided (and providing the examples of research, pure science and the furtherance of human knowledge as potentially enough). Another example offered of merit is where there are national or even global implications in a particular field such as those resulting from improved manufacturing processes or medical advances.

The new standard also deliberately avoids focusing on geographic terms. The AAO is instead interested in “broader implications.” This passage discussing job-creation makes the point and points to much more robust use of the category by entrepreneurs:

Even ventures and undertakings that have as their focus one geographic area of the United States may properly be considered to have national importance. In modifying this prong to assess “national importance” rather than “national in scope,” as used in NYSDOT, we seek to avoid overemphasis on the geographic breadth of the endeavor. An endeavor that has significant potential to employ U.S. workers or has other substantial positive economic effects, particularly in an economically depressed area, for instance, may well be understood to have national importance.

“Well positioned to advance the proposed endeavor” – prong 2

To demonstrate this second prong, AAO will look at factors including, but not limited to “the individual’s education, skills, knowledge and record of success in related or similar efforts; a model or plan for future activities; any progress towards achieving the proposed endeavor; and the interest of potential customers, users, investors, or other relevant entities or individuals.” Importantly, AAO is not expecting petitioners to show that their endeavors are more likely than not to ultimately succeed. Instead, they need only show by a preponderance of the evidence, that they are well positioned to advance the proposed endeavor.

“On balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification” – prong 3 

The AAO is directing USCIS examiners to balance the interests of having a labor certification process to protect domestic workers against other factors deemed to be in the national interest. USCIS should consider factors such as

“whether, in light of the nature of the foreign national’s qualifications of proposed endeavor, it would be impractical either for the foreign national to secure a job offer of or from the petitioner to obtain a labor certification; whether, even assuming that other qualified U.S. workers are available, the United States would still benefit from the foreign national’s contributions; and whether the national interest in the foreign national’s contributions is sufficiently urgent to warrant forgoing the labor certification process. We emphasize that, in each case, the factor(s) considered must, taken together, indicate that on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.”

Key here is that unlike NYSDOT, the applicant need not show a harm to the national interest if a labor certification is not conducted. In a footnote, the AAO significantly notes that because of the nature of the proposed endeavor, it may be impractical for an entrepreneur or self-employed inventor, when advancing an endeavor on his or her own, to secure a job offer from a U.S. employer thus making the labor certification problematic. This observation should greatly improve the outlook for entrepreneurs interested in using the NIW category to pursue a green card.

The AAO then went on to analyze Dhanasar’s work and his experience. The AAO found that the research work met the new standard and that was enough to order the denial remanded back to the Service Center. As an aside, the court declined to sign off on Dhanasar’s argument that his work teaching a STEM field was enough to qualify. 


Greg Siskind is a partner with Siskind Susser PC - Immigration Lawyers. After graduating from Vanderbilt University, he received his law degree at the University of Chicago. He's written four books and currently serves on the Board of Governors of the American Immigration Lawyers Association. He can be reached at (901) 682-6455 or gsiskind@visalaw.com.

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Letter from Editor

I would like to thank Greg Siskind, Terry Olsen and Michael Goode for their insightful articles in this issue. I am always looking for writers; so, if you would like to write an article, please feel free to contact me at bbuchanan@sblimmigration.com or 615-345-0266.

The TBA’s Immigration Law Section will be having its Annual Seminar on April 7 on the topics of “Immigration Benefits, Court, Enforcement and Removal" and “Investment Immigration Government, Company, and Global Perspectives." I hope to see many of you there.

Bruce Buchanan

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ABA Groups Create Website to Respond to Immigration Order

The American Bar Association’s Futures Initiative and Center for Innovation has created a new website to respond to the executive order that bans citizens of seven countries from entering the U.S., the ABA Journal reports. ImmigrationJustice.us is a portal for attorneys interested in volunteering their legal expertise, language experts who can volunteer to translate, as well as members of the public looking to find information on the travel ban and other immigration-related issues. The website was created in just a few hours after an American Immigration Lawyers Association member told the groups that the AILA was struggling to coordinate the flood of pro bono volunteers since the announcement of the order. 
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Independence of Judiciary Not Up for Negotiation, ABA President Says

American Bar Association President Linda Klein today called on lawyers to defend the rule of law despite comments against the judiciary coming from the U.S. executive branch, according to the ABA Journal. “Let us be clear. The independence of the judiciary is not up for negotiation,” Klein said in an address to the ABA House of Delegates. The House later adopted a resolution urging the U.S. government to withdraw the Executive Order barring citizens from seven Muslim-majority countries from entering the United States. Klein also announced the launch of an online portal to coordinate efforts of lawyers helping immigrants affected by the ban.
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Bill Introduced Would Require “Alien” on Immigrant IDs

A bill introduced yesterday would require the Tennessee Department of Safety to label ID cards with “alien” or “non-citizen” for anyone who does not have permanent status to live in the U.S., the Tennessean reports. Rep. John Ragan, R-Oak Ridge, cited terror attacks as the rationale for filing the bill. The legislation also calls for any license, permit or identification to expire when the person’s work visa or temporary authorization expires. Advocacy organizations likely to oppose the legislation say it is unnecessary and will threaten foreign investment in Tennessee. 
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Learn About Immigration Issues That Affect Your Practice at Forum

Dear Section Member,
 
I would like to tell you about the Immigration Law Forum 2017, a program our Executive Council designed in order to assist your practice. The Forum will be held on April 7 at the TBA Bar Center from 9 a.m. to 4 p.m., divided into two separate portions.

The morning program is titled “Immigration Benefits, Court, Enforcement and Removal."  Presentations will focus on family immigration and court issues facing both new and experienced immigration attorneys, family law and criminal law attorneys.  
 
The afternoon program is titled “Investment Immigration Government, Company, and Global Perspectives."  Sessions will focus on U.S. and international business investment immigration issues facing both immigration and non-immigration attorneys such as corporate counsel, employment law attorneys and technology law attorneys.
 
Here is a list of the speakers/panels for this year’s Forum:
 
Lynuel Dennis, Field Office Director for the United States Citizenship and Immigration Services
 
Catherine Chargualaf, Assistant Field Office Director of Immigration and Customs Enforcement-Enforcement and Removal Operations
 
Brandon Josephsen, Deputy Chief Counsel of the Department of Homeland Security/Immigration and Customs Enforcement
 
Clay Banks, Southern Middle Tennessee Regional Director of Tennessee Department of Economic & Community Development (Nashville)
                                                                 
Dale Carroll, CEO of Appalachian EB-5 Regional Center (Asheville, N.C.)
                                                                 
Jeremy Pilmore-Bedford, Consul General of British Consulate General Atlanta (Atlanta)
 
Fadi Abou-Ghantous, Executive and Global Sales Leader of General Electric Power (Chattanooga)
                                                                 
Tom Przybojewski, Owner of Astra Inc. (Miami)
 
Scott Jones, Financial Advisor at Merrill Edge of Bank America (Chattanooga)
                                               
John Anthony Castro, International Tax Attorney & Managing Partner of Castro & Co. LLC (Washington D.C.)
                                               
Marco Scanu, Managing Partner of Visa Business Plans (Miami)
 
Overall, this year will be a very dynamic year for immigration/global law issues, and it is very important that we as attorneys keep aware of the ever changing law environment and assist ourselves in remaining relevant with the changing times, and markets.
 
Sincerely,
 
Terry Olsen, Immigration Section Chair

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Questions Surround Refugee Lawsuit After Executive Order

A planned Tennessee lawsuit to challenge refugee resettlement is up in the air following President Trump's executive order suspending resettlement in the United States, Nashville Public Radio reports. Tennessee Senate Majority Leader Mark Norris, R-Collierville, backed the lawsuit, but now says attorneys are trying to decide whether the state still has a case. "It could mean that our standing is in question, depending on how long the moratorium lasts," Norris said Thursday. "What I may do is ask for a meeting with the new attorney general, with Jeff Sessions." The Tennessean has more
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Judges Block Trump Travel Ban, Tennessee Delegation Split

At least five judges over the weekend partially blocked President Donald Trump’s executive order on immigration, the ABA Journal says. Federal judges in Brooklyn, Boston, Alexandra, Los Angeles and Seattle issued injunctions. In Tennessee, Reps. Jim Cooper and Steve Cohen both say they will join fellow Democrats in sponsoring legislation that would bar the use of federal funds to enforce the travel ban, the Commercial Appeal reports. Tennessee Republicans in Congress defended the actions, calling them a "necessary step" to strengthening national security. Some also admitted the actions were sometimes poorly carried out.
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ABA Urges SCOTUS to Hear Expedited Deportation Case

The American Bar Association is urging the U.S. Supreme Court to hear a case challenging the federal government’s right to deport immigrants without a hearing. Twenty-eight mothers arrested in Texas in 2015 are fighting against the U.S. government’s “expedited removal” process. The families claimed asylum, which would make them ineligible for expedited removal, but authorities deemed they had no credible fear of persecution and ordered their removal. Read more at the ABA Journal.
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Immigration Enforcement and Removal Seminar Set for Nashville

Chattanooga attorney Terrence L. Olsen and Assistant Field Office Director Catherine M. Chargualaf will present a seminar on immigration enforcement and removal processes on Feb. 23 from 11 a.m. CST to noon at the Tennessee Bar Center in downtown Nashville.

Chargualaf will discuss current policies for the apprehension, detention and removal of undocumented immigrants.

Olsen practices immigration and nationality law exclusively. He is currently chair of the Immigration Section of the Tennessee Bar Association. Chargualaf works out of the ICE-ERO-New Orleans Field Office.

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Obama Ends Cuban Refugee Policy, Doctors’ Program

The Obama administration yesterday ended a two-decade-old policy that allowed Cuban refugees to enter the United States without visas. Under the “wet-foot, dry-foot” policy, the United States turned away Cuban refugees who were intercepted at sea but let refugees who made it onto land stay and eventually become legal residents. Under the new policy, any refugee not qualifying for humanitarian relief will be returned to Cuba. National Public Radio also reports that the president ended the Cuban Medical Professional Parole Program, which allowed Cuban doctors and other medical personnel to seek temporary legal status in America.

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Day 2 of Sessions Hearing Offers Conflicting Views

For a second day, the issue of racism was at the center of the confirmation hearing for attorney general designate Jeff Sessions, UPI reports. After questioning Sessions for more than 10 hours yesterday, the Senate Judiciary Committee today turned its attention to testimony from others – including three black lawmakers who all recommended against his confirmation. Sen. Cory Booker, D-N.J., and Reps. John Lewis, D-Ga., and Cedric Richmond, D-La., questioned Sessions’ past views on race and whether he would aggressively pursue civil rights, equal rights and justice for all citizens. Representing a different perspective, Sessions’ former chief counsel, who also is black, told the committee, “I have not seen the slightest hint of racism because it does not exist.”

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Sessions’ Hearing Hits Hot Button Issues

Attorney general nominee Jeff Sessions went before the U.S. Senate Judiciary Committee today and mounted a full-scale response to what he has described as character attacks against him and false charges about his past. The hearing, which was interrupted from time to time by protestors, covered a range of “hot button” issues including civil rights, immigration, a border wall, same-sex marriage and abortion, with Sessions saying he will uphold the law even if he does not agree with it. Sessions also said he would recuse himself from any investigation of Hillary Clinton and the Clinton Foundation given his past comments on those issues. The hearing continues tomorrow with unprecedented testimony by one sitting senator, Illinois’ Cory Booker, against another. Read Sessions’ opening statement.

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TBJ Covers Immigration, Child Sexual Abuse, Family Law, Humor

Companies’ hiring of employees using work visas is a tedious business, but Nashville lawyer Dan E. White details it in the January Tennessee Bar Journal. Since the printing of the issue, the United States Citizenship and Immigration Services (USCIS) increased filing fees by an average of 21 percent. Read the article online, which now includes the specifics on the updated fees. Also in this issue, John Day writes about child sexual abuse victims, and Marlene Eskind Moses and Benjamin Russ explain the doctrine of “inconvenient forum.” Bill Haltom looks at the flip side of “absence of malice.” Read the January TBJ.

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California Dems Hire Holder to Fight Trump Policies

Democratic leaders in the California legislature have hired former U.S. Attorney General Eric Holder to advise them on a legal strategy as they prepare for a fight against President-elect Donald Trump and a number of his policies. The group will pay Holder $25,000 a month plus expenses for three months to develop strategies “regarding potential actions of the federal government that may be of concern to the state of California.” Gov. Jerry Brown and legislative leaders have talked tough since Trump’s election, vowing to confront his campaign promises to repeal “Obamacare” and deport undocumented immigrants. WRCB-TV has the Associated Press story.

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Have You Heard About the TBA Mashup?

Interested in observing a legal hackathon or getting a hands-on demonstration of the new Fastcase 7 platform? Both will be part of the first TBA Mashup, a full-day of activities and free programming set for Feb. 17 at the Tennessee Bar Center in conjunction with the annual TBA Law Tech UnConference CLE program.

In addition to the hackathon and Fastcase 7 demo, the TBA Mashup will feature sessions on: 

  • Current State of Health Insurance for the Small Firms
  • Professional Liability Insurance - What to look for in YOUR Policy
  • A Demo of Fastcase TopForm, a powerful bankruptcy filing software
  • Retirement Planning Guidance from the ABA Retirement Funds
  • Pro Bono in Action: How to help with pro bono events and how to take part in online options

At the annual TBA Law Tech UnConference CLE program, you can take as many or as few hours as you need. Registration will be open all day. Payment will be determined at checkout based on the hours you need. Topics will include: 

  • Bill & Phil Tech Show
  • Ethical Considerations for Cyber Security in Law
  • Evolution of the Legal Marketplace
  • Making e-Discovery Affordable 
  • Drone Law
  • Encryption for Lawyers

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Turn Your Expertise into a Magazine Article

It’s no surprise that some of the best articles in the Tennessee Bar Journal have come from TBA section members. Your membership in this section shows that you have a keen interest in trends, developments and case law in this practice area. Sharing this knowledge with your colleagues is one of the best traits of the profession.
 
How can you become a Journal author? Think of and refine your topic. It should be of interest to Tennessee lawyers, which is a broad criteria. This could mean you might explain a new state law, explain a complicated area of law, or take a larger issue and connect it to what it means for Tennessee attorneys and the justice system. Find a global issue within your particular experience or knowledge and tell about it and how it affects Tennessee law. Then take a look at the writer’s guidelines, which will tell you about length, notes and other details. Once it’s in the proper format, send it in! It goes to the editor, Suzanne Craig Robertson, who will then get it to the seven members of the Editorial Board for review.
 
If you are published, you may apply for CLE credit for your work under Supreme Court Rule 21 Section 4.07(b). For details on claiming the credit, check with the Tennessee Commission on Continuing Legal Education or access an Affidavit of Sole Authorship or an Affidavit of Joint Authorship from the Commission's website.

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Art Exhibit to Benefit Immigrant Legal Services

The #HereToStay: Art of Resilience art show and fundraiser will take place Jan. 13-27 at L. Ross Gallery, 5040 Sanderlin Ave., Suite 104 in Memphis. The show kicks off with a reception on Jan. 13 from 6 to 8 p.m. Tickets are $25 per person and are available online or at the door the night of the event. According to organizers, the event will feature works by local artists that express their support for the immigrant community. A percentage of all proceeds from artwork sold will be used to support a pro bono coordinator who will recruit and manage volunteer lawyers working for the Community Legal Center’s Immigrant Justice Program, Mid-South Immigration Advocates and the Derechos Immigration Program sponsored by Latino Memphis. For more information contact Jerri Green with the Community Legal Center at 901-543-3395.

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Immigration Activists Call for Unified Resistance

Immigration reformers must coordinate their efforts to combat threatening policies from the incoming administration, Democratic federal lawmakers told attendees at the National Immigrant Integration Conference in Nashville. Among those making the case was Illinois Congressman Luis Gutierrez and Pramila Jayapal, the first Indian-American woman elected to the U.S. House of Representatives. Nashville’s Rep. Jim Cooper also made an appearance, during which he called Tennessee a “special state” because both of its senators voted in favor of comprehensive immigration reform in 2013. That measure, which would have offered a path to citizenship for millions of undocumented immigrants, was never taken up for a vote on the floor of the House. Read more from the Tennessean.

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REMINDER: Immigration Enforcement and Removal Seminar Set for Chattanooga

Attorney Terrence L. Olsen and Supervisory Detention and Deportation Officer John Bobo will present a seminar on immigration enforcement and removal processes on Jan. 18, 11 a.m. – noon. Bobo will discuss proposed, current and new policies for the apprehension, detention and removal of undocumented immigrants. The event will be held in Chattanooga at the Olsen Law Firm, located in The James Building, 735 Broad Street, Suite 708. Email Olsen by Jan. 10 if you plan to attend.

Here is information on the two speakers: 

• Terrence L. Olsen is an attorney in Chattanooga who practices immigration and nationality law exclusively. He is currently chair of the Immigration Section of the Tennessee Bar Association.

• Officer John Bobo of ICE-ERO-New Orleans Field Office is the Supervisory Detention and Deportation Officer for Chattanooga and Knoxville.

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National Immigration Conference Coming to Nashville

The Ninth Annual National Immigrant Integration Conference (NIIC) will take place in Nashville next week on Sunday, Monday and Tuesday. The conference will feature leading voices on immigration and civil rights as well as those affected personally by immigration policies. Among those sharing personal stories will be Eddie Huang, who will speak at 2 p.m. Sunday on “Breaking Bread: Food, Culture and Immigration.” Widely known as the chef and owner of a popular Taiwanese restaurant in New York City, Huang also has produced several projects under the moniker "Fresh Off the Boat," including a memoir, a travelogue and a sitcom. Register for the full conference or RSVP for the complimentary Huang presentation.

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9th Annual National Immigrant Integration Conference (NIIC) to be Held in Nashville

Nashville will host the 9th annual National Immigrant Integration Conference (NIIC) Dec. 11-13. Leading voices on immigration policy and civil rights will speak, and you will have an opportunity to hear numerous stories of immigrants, refugees, and their families.  Find out more or register now.

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Senators Planning Bill to Give ‘DREAMers’ Legal Status

Two U.S. senators are working to give young undocumented immigrants legal status, possibly before President-elect Donald Trump takes office, Roll Call reports. Senate Minority Whip Richard Durbin, D-Illinois, and Sen. Lindsey Graham, R-South Carolina, reportedly are drafting legislation to protect the so-called “DREAMERs” – undocumented immigrants who came to the states as children and meet the requirements of federal law. The pair decided to act after President Barack Obama said he would not pardon the young people.

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TBA Activates Disaster Legal Assistance for Wildfires

In response to the wildfire disasters in Gatlinburg and Sevier County, the TBA is partnering with the Tennessee Alliance for Legal Services (TALS), Legal Aid of East Tennessee (LAET) and the Supreme Court's Access to Justice Commission to help those affected with their legal needs. Attorneys who want to help can access training resources and other materials on the TBA's Disaster Legal Assistance page. Legal clinics and outreach related to losses from the fires are anticipated and volunteers will be needed. For more information or to volunteer in the area, contact Kathryn Ellis at Legal Aid of East Tennessee. Those who are not in the area but still want to help can volunteer to answer online questions at TN Free Legal Answers or respond to calls on the HELP4TN helpline. The TBA's Young Lawyers Division Disaster Relief Committee has also been activated and will be assisting with volunteer recruitment and coordination efforts. To volunteer, complete the Disaster Legal Assistance Volunteer Form. If you know someone in need of legal assistance, please have them call the legal helpline at 844-HELP4TN, or visit help4tn.org.

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Immigration Compliance News About I-9 Form

New I-9 Form

On November 14, 2016, the United States Citizenship and Immigration Services (USCIS) finally issued the new I-9 form, effective January 22, 2017. The current I-9 form continues to be in effect; however, during the interim period before January 22, 2017, an employer may use either the current 2013 version or the 2017 version. The new I-9 form has an expiration date of August 31, 2019.

The most significant change is to make the downloadable I-9 form into a “smart” form. What does a “smart” form mean? It is not an electronic I-9 form. The downloadable I-9 form, using an Adobe reader, has been enhanced with error checking which is designed to prevent the most common mistakes. An example is if you fail to fully complete section 1 of the I-9 form, you will receive an alert that you did not enter data into all of the required fields.

Employers filling out the smart I-9 version must still print the form, obtain signatures, monitor reverifications and updates.  Second, if you use the smart form and make a mistake, your company will be held to the same standard of review when faced with an Immigration and Customs Enforcement (ICE) inspection.

With the addition of the “smart” form, there are three types of I-9 forms: paper, “smart”, and electronic.

Some of the other changes are:

(1)  Replacing the “Other Names Used” field in Section 1 with “Other Last Names Used.” This will avoid employees writing their nicknames in this field;

(2)  Modifying Section 1 to request certain employees to enter either their I-94 number or foreign passport information, rather than both;

(3)  Requiring you designate whether the employee’s number is an Alien (A) number or USCIS number, if using the smart form (however the numbers are the same though the more recent green cards refer to the number as USCIS);

(4)  Requiring “N/A” be entered instead of blanks in certain fields;

(5)  Replacing the word “date” to “today’s date”, next to signature boxes (this may help some people from entering their birthdate or from backdating the signature);

(6)  Providing a box for employees to check if they did not use a preparer or translator;

(7)  Modifying the I-9 form by adding a supplemental third page if using multiple preparers and/or translators;

(8)  Adding an area in Section 2 to enter additional information for TPS extensions, OPT STEM extensions and H-1B portability to avoid having to note this information in the margins of the I-9 form; and

(9)  Increasing the pages of instructions from 6 to 15.

USCIS and Pre-Population

In E-Verify Connection, Number 33, released in November 2016, the USCIS re-visited the issue of the “pre-population” or “auto-population” of employee data into section 1 of an electronic I-9 and offered clear guidance.

What is “pre-population” or “auto-population” of employee data? It is when portions of the I-9 form have already been filled out by a computer program before the employee or employer has started to complete the I-9 form.

The E-Verify Connection raised the following question: can Section 1 be auto-populated in the case of an electronically prepared Form I-9? The USCIS answered “Form I-9, Section 1, cannot be auto-populated by an electronic system that collects information during the on-boarding process for a new hire.” However, it also stated the following fields can be auto-populated in Section 2: Employer’s Business or Organization Name, Employer’s Business or Organization Address (Street Number and Name), City or Town, State, and Zip Code.

USCIS’s Positions on Pre-Population

USCIS first addressed the issue in August 2012 and stated they were “not opposed to auto-filling Section 1 of Form I-9 by a company’s human resources system, provided the employee and employer review and complete the attestation. Additionally, if Section 1 of Form I-9 is being completed on behalf of the employee, then the Preparer-Translator section must be completed.”

However, six months later, USCIS said that employers should not electronically pre-populate section 1, even if the employee could review the information before signing. Then, later, the USCIS stated it was not taking a position on the issue. 

ICE’s Positions on Pre-Population

Immigration and Customs Enforcement (ICE) originally stated section 1 pre-population in an electronic I-9 was permissible if the employer also completed the preparer and/or translator section.In early 2013, ICE changed its position to that it was never permissible regardless of whether the preparer and/or translator section was used and regardless of whether the employee inputted the information that is pre-populated into the system. But in October 2013, ICE stated it had no specific position on the issue and advised employers to simply follow the “regulations.” However, the regulations currently do not address the specific issue of pre-population in Section 1. Additionally, it stated it would evaluate the matter on a case by case basis.

Why is the Issue of Pre-Population Important?

In a Notice of Inspection, ICE analyzes an employer’s I-9 forms. If it deems the pre-population of section 1 to be a substantive violation, the employer is subject to a penalty. If all the employer’s I-9 forms were pre-populated, then that would be subject to a penalty of about $2000 (under new increased penalties) per I-9 form in error.

_________________________

* Bruce E. Buchanan is a founding partner of Sebelist Buchanan Law PLLC located in Nashville and Atlanta. He is also “Of Counsel” to Siskind Susser PC on employer immigration compliance matters. Bruce is a graduate of Vanderbilt University School of Law. He is editor of this newsletter and past-chair of the TBA’s Immigration Law Section. Bruce writes a blog on employer immigration compliance located at www.EmployerImmigration.com and is a monthly contributor to HR Professionals Magazine. He may be reached at bbuchanan@sblimmigration.com or (615) 345-0266.

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