All applicants for permanent residence are required to submit Form I-693, which is completed by a civil surgeon pursuant to the results of a medical examination.  As an adjustment of status applicant, it is important that you are familiar with the requirements of the medical exam.   Understanding the USCIS medical examination requirements is particularly important for pregnant woman or those individuals that have a history of adverse reactions to medical tests.   Max Sarinsky of our New York office has compiled an important resource for adjustment of status applicants where they can learn more about the medical exam.  To view the resource please visit the following link:  Medical Examination and Vaccination Record: Best Practices and Frequently Asked Questions.

On Aug. 13, 2010, President Obama signed into law Public Law 111-230, which contains provisions to increase certain H-1B and L-1 petition fees. This law requires the submission of an additional fee of $2,000 for certain H-1B petitions and $2,250 for certain L-1A and L-1B petitions postmarked on or after Aug. 14, 2010, and will remain in effect through Sept. 30, 2014.  

These additional fees apply to petitioners who employ 50 or more employees in the United States with more than 50 percent of its employees in the United States in H-1B or L (including L-1A, L-1B and L-2) nonimmigrant status.  Petitioners meeting these criteria must submit the fee with an H-1B or L-1 petition filed:

• Initially to grant an alien nonimmigrant status described in subparagraph (H)(i)(b) or (L) of section 101(a)(15), or 
• To obtain authorization for an alien having such status to change employers. 

The additional fee, if applicable, is in addition to the base processing fee, the existing Fraud Prevention and Detection Fee, and any applicable American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) fee, needed to file a petition for a Nonimmigrant Worker (Form I-129), as well as any premium processing fees, if applicable.

USCIS plans to issue a revised Form I-129, Petition for Nonimmigrant Worker and instructions on how to comply with the new imminently.  KRSS will continue to update our clients on the implementation of the new law.

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Potential investors and entrepreneurs are often faced with deciding which among several possible U.S. immigration options they should choose.  These include visa options, such as the E-2 treaty investor visa and the L-1 company transferee visa.  Permanent resident options generally include the multi-national manager petition, the individual EB-5 and the regional center EB-5.

On our website, www.eb5immigration.com, we have provided a tool to structure further discussions with investors and entrepreneurs to aid them in this decision making process.  Checklist for Prospective Investors and Entrepreneurs under U.S. Immigration Laws includes both a Q&A format as well as a chart highlighting differences between the different options.

Investors should not rely on this posting in finalizing their decision making, but rather may find it helpful in structuring discussions with immigration counsel, who can provide the details relevant to each particular investor and entrepreneur.

One of the hottest issues in EB-5 adjudications, especially relating to condition removal, is when a “material change” has occurred in the investment project such as to necessitate the filing of a new I-526 petition.  “EB-5 Job Creation: What to Do When Plans Change” posted on our website, www.eb5immigration.com, explores the ramifications of the new CIS policy in this area.  The article contains my suggestion that, if there is a material change in the investment, the appropriate procedure is for the investor to file an amended petition, rather than a new petition as suggested by CIS.  The difference is critical in two respects.  First, a new petition would require a new two year conditional residence period.  Second, a new petition would result in any children who have subsequently reached age 21 to lose conditional residence status and the ability to become a permanent resident.  An amended petition, which is consistent with CIS and legacy INS policies in other areas, would result in neither of these negative ramifications.

Although there has been no change in EB-5 law (statute, regulations or precedent decisions), there have been significant changes in, or clarifications of, the USCIS adjudicatory standards relating to EB-5 cases within the last 12 months.  These changes have come about through memoranda (June 17, 2009 and December 11, 2009), as well as through pronouncements at EB-5 stakeholders meetings.

New Developments in EB-5s, posted to www.eb5immigration.com, is a summary of the changes that have occurred in the past year relating to employment creation, interpretation of “new commercial enterprise,” regional centers, targeted employment areas, troubled businesses, the condition removal process, “material change” and other issues relating to investors and investments.

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Before an employer can create a case in E-Verify, both the employer and employee must complete the Employment Eligibility Verification form, or Form I-9. All U.S. employers, regardless of whether they participate in E-Verify, must complete Form I-9 no later than 3 business days after the employee begins work for pay. This is commonly known as the “three day rule.”  According to the Department of Homeland Security (DHS), an E-Verify case is considered late if the employer creates it later than the third business day after the employee first started work for pay. 

Under the recently redesigned E-Verify system, if the case is created late, the program will prompt the employer to explain the reason for the untimely case creation.  The reasons provided are:

• Awaiting Social Security Number;
• Technical Problems;
• Audit Revealed that New Hire Was Not Run;
• Federal Contractor with FAR E-Verify Clause verifying an existing employee; or
• Other.

DHS has stated that it added this screen because recent evaluations of E-Verify found that employers often created cases late.  This partly stems from confusion over how to determine the “date of hire” for the employee.  In a significant change, DHS has stated that “the first day the employee starts work for pay is not included in the three business day calculation.”  Therefore, if the employee starts work for pay on Monday, the third business day after the employee started work for pay is Thursday (assuming all days were business days for the employer).  DHS has created the following chart as an example:

This may come as a surprise to many employers who previously thought that the day of hire should be counted as count Day 1, then Day 2 and then Day 3. DHS, however, now clarified that employers have three days after the date of hire to create a case in E-Verify.  Employers who have questions regarding when to create a case in E-Verify should contact their Klasko Law attorney.