March 7, 2014 –
H-1B cap, USCIS extension of Haiti Temporary Protected Status and visa waiver for Chile

Reminder: H-1B visa petitions for nonimmigrant workers accepted beginning April 1, 2014 until quota met

This is a reminder that as set out in our previous alert, April 1, 2014, is the first day the United States Citizenship and Immigration Services will begin accepting H-1B petitions filed on behalf of nonimmigrant workers for employment commencing on or after October 1, 2014, i.e. for fiscal year 2015.

In FY2014, H-1B filings exceeded the available statutory quota by June 11. It is unknown at this time how the number of H-1B filings for FY2015 will compare to the number of petitions USCIS received last year. With the economy improving, and more hiring taking place, it is anticipated by many that the statutory quota could again be met soon after the period for filing H-1B petitions opens. A prerequisite to filing an H-1B petition is the filing of a Labor Condition Application with the U.S. Department of Labor. Assuming no backlogs this application takes seven business days for approval. With the April 1st opening of the H-1B cycle soon upon us it is very important that employers who desire to hire H-1B aliens subject to the statutory quota consult with immigration counsel as soon as possible regarding filing on the first day of the H-1B cycle, or as early in the cycle as feasible. Please visit our website to access our previous immigration alert explaining more about the H-1B annual quota and exemptions from the quota: December 2013 Gunster immigration alert.

USCIS extension of Haiti Temporary Protected Status

On March 3, 2014 the Department of Homeland Security (DHS) extended the designation of Haiti for Temporary Protected Status (TPS) for 18 months from July 23, 2014 through January 22, 2016. This extension allows currently eligible TPS beneficiaries to retain TPS through January 22, 2016 so long as they otherwise continue to meet eligibility requirements for TPS. In its Federal Register announcement, DHS set forth procedures for re-registration for TPS, and in certain situations to apply even if a previous application for TPS had not been submitted.

During the TPS designation period, TPS beneficiaries are eligible to obtain work authorization. Whether applying for late initial registration or re-registration, an applicant for TPS under this designation extension that desires an Employment Authorization Document (EAD) must pay the fee for the Application for Employment Authorization (Form I-765). Both completed application forms must be submitted together.

Provided that an employee currently has TPS under the Haiti designation, the employee’s EAD is automatically extended by 6 months if the employee:

1. Is a national of Haiti (or an alien having no nationality who last habitually resided in Haiti);
2. Received an EAD under the last extension or re-designation of TPS for Haiti (the last extension was for 18 months from January 23, 2013 through July 22, 2014); and
3. Has an EAD with a marked expiration date of July 22, 2014 and bears the notation “A-12” or “C-19” on the face of the card under “Category.”

For purposes of employment eligibility verification, a new employee who currently has TPS under the Haiti designation may present any document from the List of Acceptable Documents, which is included in the Form I-9 Instructions, to establish identity and employment authorization. An EAD is an acceptable List A document providing both identity and employment authorization. Pursuant to the automatic extension discussed above, a new employee who currently has TPS under the Haiti designation may choose to present an EAD that contains the above information through January 22, 2015.

The employment authorization of an existing employee who has previously presented an EAD that contains the above information for purposes of employment eligibility verification must be re-verified by the employer once July 22, 2014 is reached. Such an employer does not need a new document to re-verify employment authorization until January 22, 2015, the expiration date of the automatic extension. Both the employee and the employer must make corrections to Sections 1 and 2 of Form I-9. See the link at the bottom of this Alert for the corrections to be made to the Form I-9.

After January 22, 2015, employers may no longer accept the EADs that were automatically extended until that date.

By January 22, 2015, employers must re-verify employment authorization previously based on the automatic extension of an EAD extended until that date. The employee may choose to present any document from the List of Acceptable Documents included in the Form I-9 instructions. USCIS will issue a new EAD to an eligible TPS re-registrant who has requested an EAD with an expiration date of January 22, 2016. Such an EAD is an acceptable document for purposes of employment authorization re-verification.

Haiti TPS Designation Extension

Chile designated into the Visa Waiver Program

The Department of Homeland Security and the Department of State have announced the designation of Chile into the Visa Waiver Program (VWP). Starting on May 1, 2014, eligible Chilean passport holders with both an approved Electronic System for Travel Authorization (ESTA) and an e-passport will be able to visit the U.S. without nonimmigrant visitor visas for 90 days or fewer for business or tourism. Chile joins 37 other participants in the VWP.

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