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Past Articles

2016 ()

Finally, good news in immigration! While it seemed that the end of 2016 and the beginning of 2017 have been filled with news about the struggles and uncertainty facing immigrants and people involved with immigration under a new presidency, a recent decision from the Administrative Appeals Office (AAO) has made one pathway to a green card easier, that pathway being through a National Interest Waiver (NIW). 
The basic idea of the National Interest Waiver is to allow people with exceptional abilities to qualify for residency in the United States with the presumption that these extraordinary individuals fill valuable roles in technology, engineering, and sciences while working in various sectors such as the medical field, software, and business. Because of the impactful work these individuals do, it’s in the best interest of the country to retain them. 
In spite of our prior successes attaining National Interest Waivers for deserving clients, the standard under prior case law was so high that many deserving people did not want to pursue this path or were denied for not being a strong enough candidate. But now, thanks to the AAO’s new ruling, the standard for a NIW has been lowered and is a viable option for many more deserving individuals!
Under the new framework, you can successfully petition for a National Interest Waiver by meeting a few criteria:
1. Your endeavor will have substantial merit and importance to the United States.
2. Your qualifications will be well positioned to advance the proposed endeavor. 
3. It will benefit the United States to have you here. 
If you are able to meet all the criteria listed above, you may be able to proceed directly to a green card application. This ruling is fantastic news for deserving foreign nationals doing important work in the United States. Do you believe you may qualify for a NIW petition under the new criteria? GoffWilson is ready to review your credentials! Contact our office today for an assessment. Immigration is all we do!

The United States Citizenship and Immigration Services (USCIS) has released a newly revised Employment Verification Form, Form I-9 as of November 22, 2016. Employers are required to use the Form I-9 to verify the identity and employment authorization eligibility of all their employees. The new Form I-9 will become mandatory on January 22, 2017.
On January 12, 2017 at Delta Dental in Concord, NH, we will provide detailed training on how to properly complete each section of the new Form I-9 as well as a review of the requirements for accepting documents as part of the Form I-9 process. We will also discuss how to properly make corrections to the Form I-9.
Session Highlights:
  • Review of all the changes to the Form I-9
  • How to properly complete each section of the Form I-9 with emphasis on the portions of each section that have been changed in the November 22, 2016 version of the Form I-9
  • Proper re-verification procedures
  • How to properly make corrections to the Form I-9 including discussion of December, 2015 guidance from OSC regarding making corrections to the Form I-9
  • Proper procedures for accepting documents in the Form I-9 process including procedures to avoid allegations of discrimination in the Form I-9 process
  • Resources that everyone who completes the Form I-9 should have available to them
  • And much more!
There are only a few good seats remaining—click here to sign up today!

Be sure to register for our I-9 Training in January. Don’t be left out!
Here are some reasons you should register right now:
  1. You want to be current on the new I-9 Form required in January 2017
  2. You need a refresher
  3. You want to know the substantive violations that do not have a 10-day notification/correction period
  4. You want to know the violations subject to a Notice of Intent to Fine
  5. Review common mistakes made in completing I-9s, how to correct flawed forms, and how to avoid them
  6. Your remote hires, recent merger, or federal contracts present considerable challenges that can be met following this informative seminar
  7. You have new staff who need training on best practices for I-9s
  8. HRCI credit and a certificate are provided to you so you maintain your HR accreditation
  9. A delicious complimentary continental breakfast 
Need we say more?
Visit the seminar page for more information or click here to register now.

On November 8, 2016, the U.S. Citizenship and Immigration Services (USCIS) announced the addition of St. Vincent and the Grenadines to the list of 83 countries whose nationals are eligible to participate in the H-2B Temporary Non-Agricultural Labor Certification Program. The H-2B program permits U.S. employers to bring foreign workers into the country to fill temporary jobs in non-agricultural fields. H-2B workers typically fill seasonal jobs lasting less than 9 months in fields such as hospitality, landscaping, food service, and the like; however, they can also supplement a year-round company’s permanent workforce due to “peakload need” or a specific occurrence. The U.S. limits the number of H-2B workers each fiscal year to 66,000, divided into 33,000 workers per 6-month period running from October 1 to March 31, and again from April 1 to September 30. Due to the shortage of available workers for these positions in many areas around the country (such as heavy tourist areas), the annual quotas are often reached well before the end of each 6-month time frame.
In April 2015, the H-2B program was completely overhauled with the introduction of many new rules and processes. With the modified procedure, employers must now complete multiple steps with the U.S. Department of Labor (DOL) prior to filing an H-2B petition with the USCIS, including testing the U.S. labor market to ensure there are no available domestic workers to fill the temporary job. In addition, the timeframe for employers to initiate DOL processing is now 75–90 days prior to the job start date, a reduction from the previous 120-day timeframe. It is important to note that this timeframe begins only after employers have obtained a certified Prevailing Wage Determination from the DOL (an H-2B requirement that takes approximately 60 days to receive). Therefore, employers looking to bring H-2B workers into the U.S. for the Summer 2017 season need to begin now in order to have sufficient time to complete the process and still have the employees arrive in time for the season.
Besides the obvious benefit of the H-2B program supplying U.S. employers with much-needed temporary support, the program also provides companies with a significant cost benefit. By filing a single H-2B petition, an employer can bring multiple foreign workers into the U.S. to fill temporary positions (so long as the workers will be performing the same role at the same location). This makes the H-2B program a great, affordable option for employers needing numerous temporary workers.
Have you thought about how to get workers for your busy summer season? Interested in pursuing an H-2B petition? Have questions about whether the H-2B could be the right fit for your company? GoffWilson is here to help! Contact our office today for more information. It’s what we do!

On or before November 22, 2016, the much-anticipated revised Form I-9 will be released. Employers will have until January 21, 2017 to transition to the new form, but after this date, all prior versions of the form will no longer be accepted. Anyone using an out of date Form after 1/22/17 will be subject to substantial fines as we reported in a prior blawg. In addition to modified fields and requirements, the proposed Form I-9 changes are expected to include many “smart” features for when the form is completed electronically. These include:
Safeguards on certain fields to ensure information is entered correctly
Drop-down lists
Embedded instructions
Easy-access buttons that allow users to access the instructions, print the form, and clear the form
A barcode that can be used to streamline audit processes
These “smart” features are designed to aid employers in completing the Form I-9. However, they can also create additional complications. Companies without electronic I-9 processes in place that are simply using the updated PDF version of Form I-9 must be mindful of which sections they are completing. Working with an employee to complete Section 1 on your computer creates a need for completing the Preparer Section of Form I-9. Additionally, companies considering switching to electronic Form I-9 completion need to be aware of the specific rules of use.
Once the revised Form I-9 is released, employers are encouraged to seek training on its proper completion. I-9 Audits are predicted to increase next year to ensure employers are using the new form as mandated. Non-compliant companies can expect hefty fines due to the August 1st U.S. Department of Justice fee increase, which was previously discussed in our August 23rd blawg post.
GoffWilson offers I-9 training in public and private settings several times throughout the year. Upcoming sessions are scheduled for January 12, 2017 in Concord, NH and January 26, 2017 in Burlington, MA. Contact our office today to sign up or for more information! Also stay tuned to our bLAWg for more updates on the new Form I-9 once it is released. I-9 Compliance and keeping your company up to date is what we do!

For many employers, the lack of available H-1B visas is a large obstacle in their path to hiring foreign national professional employees in the U.S. However, it does not have to be a permanent roadblock. There are many alternatives to the H-1B visa that could work for certain employers, such as the L-1B visa.

The L-1B visa is reserved for U.S. employers who wish to transfer a professional employee (who has at least 1 continuous year of employment within the prior 3 years) from a foreign affiliate office to the U.S. company. To qualify, the employee must have specialized knowledge relating to the organization. The possessed knowledge must involve application of the company’s products, services, research, equipment, techniques, management, and/or other interests in the U.S. (i.e. special knowledge), or be at an advanced level pertaining to the company’s processes and procedures (i.e. advanced knowledge). The position being offered by the U.S. employer must also require the specialized knowledge.

In recent years, the unavailability of H-1B visas has led to an increased scrutiny on L-1B visas by the U.S. Citizenship and Immigration Services (“USCIS”). Many problems encountered by employers involve whether the professional employee actually possesses specialized knowledge and/or whether the offered position actually requires this knowledge. Contrary to popular belief, qualifying for an L-1B visa is not as simple as explaining how the employee and position fit into the above-mentioned definitions.  

A little over a year ago, USCIS expanded upon the general specialized knowledge definitions and further explained their applications. Now, not only must special knowledge involve, for example, application of the company’s products and services in the U.S., it must also be distinct or uncommon in comparison to the knowledge generally found in the industry.

Likewise, advanced knowledge must be of a nature not commonly found in the industry and must also be greater developed or further progressed, complex, and understood than what is normally found in the company.

Although the L-1B can be a useful tool for employers and professionals alike, the process involves various complications that can result in denial for the unwary. Due to the recent changes regarding specialized knowledge, USCIS is heavily scrutinizing L-1B petitions.  Prior to filing, performing a multi-step analysis of the employer, employee, and offered position, as well as other petition factors, is necessary. To be successful, it is crucial to have a knowledgeable immigration provider with specific L-1B experience to assist in the process.

Those interested in exploring the L-1B visa or other H-1B visa alternatives can contact GoffWilson for assistance. Tackling tough visa issues is what we do successfully for our clients on all visa types. Contact our office today for more information.

It’s that time of year again—Fall is upon us, which means many lucky H-1B lottery winners will be assuming their new positions on October 1. Due to the record-breaking number of H-1B petitions received by the U.S. Citizenship and Immigration Services (USCIS) this year, chances are that you are not among them. Many individuals believe that this is the end of the road, absent another H-1B filing in April 2017. However, some little-known exceptions in the law could get you an H-1B now.
Most individuals are aware that certain organizations are exempt from the annual H-1B quota (i.e., the “cap”), meaning those employers considered to be an institution of higher education, or an affiliated or related nonprofit entity of such, can petition for employees at any time without regard to the H-1B cap. However, being employed by one of these qualifying institutions is not the only way to get a cap-exempt H-1B.
A separate option would be to have your cap-subject employer petition for you to work at an institution of higher education or a related or affiliated nonprofit entity (i.e., the “cap-exempt employer”). In this scenario, you are not working for the cap-exempt employer; instead, you are working for your cap-subject employer at the location of the cap-exempt employer. How does this work? Obviously, the cap-exempt employer has to be involved to allow this to occur. Besides that, the job duties you are performing have to “directly and predominately further the normal, primary, or essential purpose, mission, objectives or function of the qualifying institution.” (See USCIS memo HQPRD 70/23.12). Thus, the H-1B petition has to establish a nexus between your work and the cap-exempt employer’s work.
Another option would be having the cap-exempt employer file a part-time H-1B petition for you and, once approved, having your cap-subject employer file a concurrent H-1B petition (i.e., a second petition to allow you to work for more than one company at the same time). In this scenario, your job duties at the cap-subject employer do not have to relate to the functions at the cap-exempt employer. You are just performing two separate jobs at different companies, but one of them happens to be cap-exempt.  
A third option is closely related to the second, but with an important distinction. Also, this option only works for entrepreneurs. Instead of using any cap-exempt employer to file your initial H-1B petition, you would file through a university innovation center. This type of innovation center, commonly known as a “Global Entrepreneur in Residence” (or GEIR) Program, aids entrepreneurs by sponsoring them on a cap-exempt H-1B. Once approved, the cap-subject entrepreneurial venture can sponsor the individual for a concurrent H-1B. Although GEIR Programs are a relatively new concept, they are starting to pop up throughout the U.S. to keep international talent in-country.
Are you interested in exploring cap-exempt H-1B options or alternative non-immigrant visas? The team at GoffWilson can review your case and determine the best fit for you. Contact our office today to discuss.

On August 26, 2016, the U.S. Citizenship and Immigration Services (“USCIS”) released an advanced version of its proposed rule, the “International Entrepreneur Rule” (“IER”), which is set to be published for comment in the Federal Register. If the proposed rulemaking is successful, the IER would welcome certain international entrepreneurs to the U.S. on parole (i.e. temporary permission to enter the U.S. for a specific purpose and duration) to start or increase their businesses in the country.
Under the IER, entrepreneurs eligible for parole include those who:

  • Have a significant (i.e. at least 15%) ownership interest in the startup company;
  • Have an active role in the company’s operations;
  • Formed their startup in the U.S. within the past 3 years;
  • Have a startup with substantial and demonstrated potential for job creation in the U.S., as well as rapid business growth. This can be evidenced by:
    • Having at least $345,000.00 of investment capital from qualified U.S. investors with successful investment records;
    • Having at least $100,000.00 of awards or grants from government entities at the federal, state, or local levels; or
    • Having other reliable and compelling evidence of the startup’s potential for job creation and rapid business growth, in addition to partially satisfying one or both of the other 2 mentioned evidentiary criteria.
If an entrepreneur meets all of the above-mentioned qualifications, they may be granted an initial parole stay for up to 2 years to start or increase their startup company in the U.S. After the initial 2 years, the entrepreneur may be eligible for an additional 3 years of re-parole, if the entrepreneur and their company continue to provide a public benefit to the U.S. by way of substantial increases in capital investment, revenue, or job creation.
Once published in the Federal Register, there will be a 45-day public comment period on the IER. After all comments are considered, the final rule will be published in the Register. Until then, the IER is not in effect. We will provide an update once the final IER becomes effective.
Thinking of investing in the U.S.? Other options may already be available to you. GoffWilson can assist in making your entrepreneurial dream a reality! Contact our office today for more information.
On August 1, 2016, an Interim Final Rule (“IFR”) published by the U.S. Department of Justice (“DOJ”) went into effect. The IFR adjusts numerous civil monetary penalties due to inflation, including employer fines for Form I-9 violations. Prior to the IFR becoming effective, the I-9 fines for employers ranged from $110 to $1,100 per form. The new IFR brings steep increases, with the minimum fine increasing from $110 to $216 and the maximum fine increasing from $1,100 to $2,156.
Related to the I-9 fine increase, the IFR also increases the penalty for the unlawful employment of immigrant workers. The minimum fine has increased from $375 to $539, while the maximum fine has increased from $3,200 to $4,313. In addition, there is a new maximum penalty of $21,563 for employers facing multiple violations.
The IFR brings about significant changes regarding certain employment-related civil penalties for employers. To avoid these hefty fines, employers should take action immediately and review existing Forms I-9 and employment records for potential violations. Internal audits are recommended to discover and correct errors in advance of a government audit. This can help to greatly reduce fine amounts for employers post-audit.
Did you know that GoffWilson offers comprehensive Form I-9 audit services for companies of all sizes? Contact our office today for more information!

Last week, I was lucky to be able to arrange a time to sit down with the two Senior Attorneys at GoffWilson. The timing was perfect for a quick interview, as they had just returned from an exciting business trip to India and the sights, sounds, and smells of the country were still fresh in their minds. More than an exciting journey, it was an exciting time for the firm—over GoffWilson’s 30+ years in immigration law, and having worked across the globe (particularly in Europe through GoffWilson’s Paris office), this was the first time the firm had been to India on business. Throughout the firm’s history, it has helped a multitude of Indians come to the United States to study and work. While GoffWilson has developed an incredible reputation for their in-depth knowledge of immigration law, the chance to get a better understanding of the people they help and experience the Indian culture firsthand was an opportunity that they couldn't pass up.  
Below, John Wilson, President of GoffWilson, and Founding Partner Attorney Susan Goff tell us about why they traveled to India, some of the challenges facing Indians hoping to come to the U.S., and some of the experiences they had on their trip. 
Where did you visit?
SG: Over the course of the week, we visited Delhi and Hyderabad, India.
JW: The trip included visits to the United States Embassy in Delhi, the Consulate in Hyderabad, and HITEC City in Hyderabad.
Tell me about visiting the Embassy and Consulate. 
JW: We felt incredibly privileged to be received at the Embassy and the Consulate, and anyone who has ever been fortunate to visit one knows that the experience can be a little surreal. 
SG: Both the United States Embassy in Delhi and the Consulate in Hyderabad are fascinating places to visit. They are self-contained with their own schools, housing, and infrastructure on site, and operate almost as mini-cities in the midst of these giant, bustling centers of Indian life. 
What was the purpose of the trip?
SG: We were retained to travel to India to investigate some perceived unfair visa denials. 
JW: In addition to looking into visa denials, we sought to make connections, discover how to avoid these problems in the future, and ensure that the institutions we represent have access to the best and brightest minds in the world while helping ensure that immigration issues don’t slow down the innovation and progress of these institutions. 
Why are visas denied? 
JW: There can be a variety of reasons, but having the intent to remain in the U.S. following the purpose of the visa is most often the reason. The catchall for declining to issue a non-immigrant visa is a §214(b) refusal.  
Can you explain what a §214(b) refusal is? 
JW: In its simplest form, a §214(b) refusal is issued when a consular official doesn’t believe the visa applicant intends to depart the United States when their visa expires. Because non-immigrant visas are interview-based, the individual seeking the visa must prove that they are intend to only be in the U.S. temporarily, and plan on leaving the country when their job, studies, or visa comes to a conclusion. Furthermore, the applicant must be able to show that they can afford to pay for their trip. Often, the applicant will also be asked to provide documentation supporting their claims such as travel arrangements, employment letters, or financial statements.
SG: Because of the vague guidelines for approval or denial and the enormous amount of discretion placed in the hands of the consular official, there is the opportunity for an individual with the means and desire to come to the U.S. for work or study to be refused. The most common reason cited for refusal is the that the officer decided, based on the individual's interview, that their social, family, economic, and other ties to India are not strong enough to overcome the presumption that the person will stay in the U.S. 
What did you learn about visa denials while in India? 
JW: One of the best things to come from our trip to India was getting an up-close look at the visa process and gaining an in-depth knowledge of the processes’ inner workings. Furthermore, we met with several high-level officials at the U.S. Embassy in Delhi and the Consulate in Hyderabad. From those meetings, we were able to learn what questions to ask when a visa is denied, who to talk to, and what channels to go through for a quick resolution.  
SG: We have a better understanding of what they are looking for in applicants and what signs make them leery. For example, all of the officials we spoke with told us that they didn’t like when applicants sound coached and were suspicious of any answer that sounded too rehearsed or prepackaged. 
How did you find the U.S. officials? 
SG: First and foremost, we understand that these officials have a job to do, and at times it can be a hard job. While at times our opinions differed from the officials, we have the utmost respect for them. All of the officials we met with were extremely courteous. 
JW: We were able to establish a working relationship with these important officials, while gaining key insights into the interview process, what they look for, and how the process works. 
Any other takeaways from your visit to the embassy and consulate or your meetings with officials?  
JW: I think the trip was invaluable in getting a more comprehensive understanding of how the procedure actually works, and learning which questions to ask and whom to ask. 
Are you ready to go back to India? 
JW: I am not ready to tackle the plane ride again...yet. But if business calls, I will happily be back in India. 
SW: I second the plane ride; 16+ hours is a long time to be cooped up! However, India is truly an amazing place and I would welcome the chance to go back and see more of the country. 
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