Potential Immigration Changes in 2019

 

The Trump administration’s future immigration intentions were recently announced in their semi-annual Unified Agenda. The Unified Agenda lists possible regulations under development by federal agencies for the coming year. The announcement indicates the administration’s plans to impose tighter restrictions on employment-based immigration benefits, such as the H-1B, H-4, and Optional Practical Training (OPT) for F-1 students.

The agenda specifies the administration’s intent to make the following policy changes in connection with Trump’s “Buy American, Hire American” executive order:

  • H-1B Eligibility: Redefining what a “specialty occupation” is for H-1B visa purposes to “increase the focus on truly obtaining the best and brightest.” The proposal would also “revise the definition of employment and employer-employee relationship to better protect U.S. workers and wages.” This includes “additional requirements to ensure employers pay appropriate wages to H-1B visa holders.” The rule would also impose additional restrictions on H-1B dependent employers that rely on large H-1B workforces and those employers who have H-1B employees working off-site.

  • H-1B LotteryRevising the H-1B visa lottery system to establish an electronic pre-registration program for cap-subject H-1B applicants.

  • H-4 Work Authorization: Elimination of the regulation that allows H-4 visa holders (spouses of H-1B visa holders) to apply for work authorization. The Trump administration has already proposed a rule to remove this Obama rule which has provided work permits to thousands of H-4 spouses.

  • Fee Increases:  Increasing USCIS filing fees for employers and applicants filing for employment-based immigration benefits (including H-1B registration fees) and international students and U.S. universities.

  • Periods of Stay for F-1 Students: Limiting the maximum periods of stay for F-1 students and other nonimmigrants.

  • Adjustment of Status: Changing the process and procedures for foreign nationals to adjust from nonimmigrant status to lawful permanent resident status.

  • International Entrepreneur Rule:  Eliminating President Obama’s International Entrepreneur Rule which allowed qualifying foreign startups and entrepreneurs to apply for U.S. work authorization to grow their startup and create jobs.

These announcements do not currently modify or rescind any of the above mentioned immigration programs, and any changes to immigration policy can only be accomplished through notice and comment of proposed rulemaking in the federal register. This means that individuals and companies that may be affected by potential policy changes will have an opportunity to submit comments to the government before the policy becomes effective. 

As always, individuals and employers who may impacted by any of these potential changes should contact us with questions on how to best prepare.

Didn’t Get An H-1B Visa? Here Are Your Alternative Immigration Options.

U.S. Citizenship & Immigration Services (USCIS) has announced that it reached the annual 85,000 H-1B visa cap in the first five days of April 2019.  Specifically, USCIS received 201,011 H-1B cap cases (an increase from last year), which means that once again, USCIS will conduct a computer-generated lottery in the coming weeks to determine which petitions they will process. Employers who have their petitions selected in the lottery will receive a receipt notice from USCIS, and if approved, can have their employees begin working for them in H-1B status on October 1, 2019. Petitions that are not selected in the lottery will be returned to the employers with their money back.

USCIS will continue, however, to accept H-1B petitions year-round from employers who are exempt from the H-1B cap (such as universities, nonprofits affiliated with institutions of higher education, or nonprofit research organizations), as well as petitions to extend the status of those currently in H-1B status or for those in H-1B status seeking to change employers.

While no more new H-1B visas will be available for employers and foreign nationals seeking to apply in 2019, many candidates may be eligible for other alternative visa options. The following visa categories are available throughout the year, without numerical caps, for qualifying foreign nationals:

  • L-1 Visa: For intracompany transferees who have worked for a foreign entity for one year and are seeking to transfer to a U.S. subsidiary, affiliate, parent, or branch office in the U.S. in a managerial, executive, or specialized knowledge capacity

  • E-1/E-2 Visa: For international investors or traders from certain treaty countries looking to engage in substantial trade between the U.S. and their foreign country or to develop and direct the operations of an enterprise in which the foreign national has invested. The E-1/E-2 visa is a great option for foreign entrepreneurs seeking to work in an essential capacity for their U.S. entity.

  • O-1 Visa: For foreign nationals of extraordinary ability who have achieved national and international recognition for extraordinary achievements in their field of endeavor.

  • TN Visa: For Canadian and Mexican citizens employed in certain professional categories seeking to engage in U.S. employment. Examples of qualifying TN professional occupations include, but are not limited to Engineer, Accountant, Architect, Computer Systems Analyst, Geologist, Geophysicist, Graphic Designer, Management Consultant, Scientific Technician, Engineering Technicians, and many occupations in the medical and allied health field.

  • H-3 Visa: For foreign nationals coming to the U.S. to engage in a course of training.

  • E-3 Visa: For Australian citizens who will be employed in a specialty occupation in the U.S. (similar requirements to the H-1B visa).

Watch our immigration videos for additional information on these visas and to learn more about the eligibility requirements. As always, if you have questions about the H-1B visa cap or any of these work visa options, please contact our office.

H-1B Visa Lottery Changes & The Return of Premium Processing

In follow up to last month’s announcement of proposed changes to the H-1B visa selection process by U.S. Citizenship & Immigration Services (USCIS), the Department of Homeland Security has finalized its rule reversing the order in which USCIS will select H-1B cap-subject petitions in the H-1B visa lottery. 

While the H-1B cap will remain at 85,000, this new regulation will reverse the lottery order in which USCIS selects H-1B petitions for adjudication, in order to increase the amount of H-1B visas awarded to foreign nationals with U.S. master’s degrees and higher.  Under the previous lottery system, USCIS would first conduct a lottery for 20,000 H-1B visas for individuals with a U.S. master’s degrees and higher (the “advanced degree cap”), and then those individuals with advanced degrees who were not selected in that lottery were added to the pool of 65,000 H-1B visas (the “regular cap”), for another chance to be selected with individuals who only have a bachelor’s degree.  In accordance with this new rule, USCIS will now conduct the regular cap lottery first and include all advanced degree holders.  Those with advanced degrees not selected in the“regular cap” will thereafter be placed in a second lottery (the “advanced degree cap”), if there are enough advanced degree holders to meet the advanced-degree lottery.

In accordance with the Trump administration’s previous announcements for employment-immigration reforms, USCIS believes this change to the lottery system will increase the chances of H-1B visas being awarded to individuals with U.S. master’s degrees and higher.   

While USCIS announced that this change to the H-1B visa selection process will be implemented for this year’s H-1B visa lottery, USCIS will be postponing its proposed mandatory online registration for U.S. employer’s filing H-1B petitions.  As such, employers and foreign nationals should be preparing their H-1B visa petitions NOW (as they have done in previous years) in order to timely have those petitions filed on April 1st.

Additionally, USCIS announced this week they have resumed “premium processing” for all H-1B visa petitions that remain pending from the April 2018 lottery.  USCIS had temporarily suspended premium processing for most H-1B petitions last year, but has removed the suspension, as of now, for only H-1B visa petitions that remain pending from the April 2018 lottery.  While premium processing is still currently unavailable for H-1B transfers, amendments, and extensions with different employers, we may see premium processing for these cases resume around February 19th.

Employers seeking to hire foreign national employees this year should assess their upcoming workforce needs and identify those who will require H-1B visa sponsorship NOW. These individuals may include:

·       New graduating foreign students in the U.S.

·       Overseas individuals seeking to start work in the U.S.

·       Foreign individuals in the U.S. already working under a different nonimmigrant status for a different employer and are seeking to change jobs

Failure to file your H-1B petition on April 1st may jeopardize your chance at securing an H-1B visa for your employee. After the 2019 H-1B visas are gone, employers will have to wait until April 1, 2020 to file H-1B petitions again, and foreign employees may lose their lawful status and authorization to work. The clock is ticking…don't delay!

If you have any questions about the H-1B visa process, contact me.

Registration Information for Diversity Green Card Lottery

The annual Diversity Immigrant Visa Lottery, which makes available 50,000 permanent resident visas ("green cards") to natives of countries deemed to have low rates of immigration to the U.S., is now open for online registration until November 6, 2018.  The Diversity Lottery is FREE and applications must be filed online through the official Department of State Diversity Lottery website.  Please visit the State Department Diversity Immigrant visa information site for eligibility information and to apply.  

Only applicants from certain eligible countries can apply in the Diversity Lottery, and must meet certain educational or work requirements (i.e. having a high school education or having worked in 2 of the last 5 years in a qualifying occupation).  

Lottery winners will be selected at random next year and can check whether they have been selected starting May 1, 2019.

New Immigration Policy to Deny Cases Without Issuing RFE or NOID

U.S. Citizenship and Immigration Services (USCIS) has released a new policy that gives immigration adjudicators discretion to deny any and all visa applications or petitions without first issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) in cases where initial evidence is missing or does not establish eligibility. This new guidance, which becomes effective September 11, 2018, replaces a prior policy which instructed adjudicators to request additional evidence in a case, unless there was no possible way that additional evidence could fix a deficiency in the case.

The intent of this guidance is to provide immigration officers with more discretion to deny a visa application without requesting further information first. This policy has even greater implications in light of USCIS’ other recent announcement instructing officers to initiate removal (deportation) proceedings if, upon denial of an application or petition an individual is unlawfully present in the United States. 

As USCIS continues to shift away from a focus on immigration benefits to a focus on immigration enforcement and stricter standards for approval of visa petitions, employers and foreign nationals should consider the following strategies to avoid consequences imposed by these new rules:

  • Take all precautions to ensure visa petitions and applications are filed with the requisite documentation and evidence. This includes overdocumenting how the employer and employee meet all of the visa eligibility requirements.
  • Applications to extend nonimmigrant visa status (including H-1B, L-1, O-1, and others) should be filed as early as possible (up to 6 months before expiration) to avoid any lapses in nonimmigrant status.
  • Employer’s should continue to extend the nonimmigrant status of their foreign national employees until their applications for lawful permanent residence are approved, in order to avoid situations where the employee is in unlawful presence and could be deported.
  • Employer’s should consider utilizing USCIS’s “premium processing” program when filing “change of employer” visa petitions to quickly obtain work authorization for a candidate and not have a candidate risk changing employers without an approval.

These new USCIS policies reinforce the importance of ensuring all visa petitions and applications include the required evidence to show the applicant meets the visa eligibility requirements. The chances of having a family or employment-based visa petition or application denied are significantly reduced when working with qualified immigration counsel to prepare a comprehensive application.

For more information or advice on how to navigate these or any other immigration policy changes, please don’t hesitate to contact me.

USCIS Policy Change Regarding Deportation Proceedings for Visa Applicants

U.S. Citizenship and Immigration Services (USCIS) has announced a sweeping new policy, effective immediately, that instructs USCIS officers to initiate removal (deportation) proceedings if, upon denial of an application or petition, an individual is unlawfully present in the United States. This new policy requires USCIS to issue a Notice to Appear (NTA) – a document issued to a foreign national instructing them to appear before an immigration judge for removal proceedings – in the following circumstances:

  • Where fraud or misrepresentation are substantiated or where an applicant abused any program related to the receipt of public benefits;
  • Criminal cases where an applicant is convicted of or charged with a criminal offense, or has committed acts that are chargeable as a criminal offense, even if the criminal conduct was not the basis for the denial or the ground of removability;
  • Where USCIS denies an Application for Naturalization on good moral character grounds because of a criminal offense;
  • Upon the denial of an application or petition, when an applicant is unlawfully present in the U.S.

This new policy is expected to dramatically impact a wide range of foreign workers, students, and U.S. employers. While historically NTAs have rarely been issued to employment-based visa applicant’s after the denial of an application, this policy shift appears to fall in line with President Trump’s executive orders focused on immigration enforcement and prosecution

Examples of employer-sponsored foreign nationals who may now be subject to removal proceedings include:

  • Individuals who have their application to extend or change to H-1B, L-1, or other nonimmigrant visa status denied, and whose visa status has expired while waiting for USCIS to adjudicate their application.
  • Individuals who have their application to change employers denied, and whose visa status has expired while waiting for USCIS to adjudicate their application.
  • Students who have their applications to extend their F-1 status or applications to change status to H-1B denied, and who have now fallen out of status under their student visa.
  • Individuals who have their application for either employment-based or family-based adjustment of status to permanent residence denied, and who now no longer have any nonimmigrant status.

While it is not clear how USCIS will implement these new guidelines, this change will nevertheless likely affect the lives of many individuals who have lived and worked in the U.S. lawfully for years. Foreign nationals that receive an NTA are advised to speak to qualified counsel to handle this sensitive matter. For questions on this or any immigration matter, please feel free to contact me.

Winning The H-1B Visa Lottery

Starting April 2, 2018, U.S. Citizenship and Immigration Services (USCIS) will begin accepting H-1B petitions for Fiscal Year 2019. As in years past, if USCIS receives more than the available 85,000 H-1B visas in the first few days of April, they will use a computer-generated random lottery to select the petitions they will process. Based on the number of petitions received in the first few days of April last year (over 199,000) and the previous year (over 236,000), combined with the current market demand for high-skilled labor and reports of possible changes to visa programs in the future, many our anticipating that USCIS will receive over 200,000 H-1B petitions in the first few days of this April. 

Accordingly, time is running out for employers to timely prepare their H-1B petitions for submission to play in this H-1B lottery on April 2nd. Generally, it takes at least 10-14 days to prepare and file an H-1B petition, due to the prerequisite filing requirements of the Labor Condition Application (LCA), which takes up to 7 business days to certify. Therefore, if you are responsible for your businesses' immigration planning and processing and you have already identified your H-1B candidates, please initiate the H-1B visa process in the next two weeks to ensure it is timely filed. 

In light of recent reports of proposed changes to the H-1B work visa program by the Trump administration, USCIS has confirmed that it intends for the H-1B filing process and procedures to remain the same as it has in previous years.  Nevertheless, as indicated by the massive increase of Requests for Evidence (RFE) and denials of H-1B petitions issued by USCIS over the past year, employers and foreign nationals should be prepared to evidence the following, in order to increase their chances of getting their visa petitions approved:

  1. Document the specific scope and educational requirements for the position to show that the position is one which requires a Bachelor’s degree as a minimum to enter the occupation.
  2. Review the prevailing wage rates for the occupation through the Department of Labor’s Wage Surveys to determine whether the wage level is appropriate for the professional position you are hiring for.
  3. Document the nexus between the foreign national’s degree and the occupation they will be hired for.

WATCH my conversation on how to overcome issues with H-1B RFEs

Needless to say, the H-1B visa petition can be a technical and cumbersome application to file.  Working with qualified counsel will help to ensure technical mistakes are avoided and that a comprehensive petition will have the best chance at winning in the H-1B visa lottery.  If you have any questions about the H-1B visa process, please don’t hesitate to contact me.

Visa Extensions Will Face Higher Scrutiny

U.S. Citizenship and Immigration Services (USCIS) has annouced updated policy guidance, which now instructs immigration officers to apply the same level of scrutiny to both initial visa petitions and visa extension petitions in certain nonimmigrant categories, including the H-1B visa.  This new policy rescinds the current practice which instructs officers to give “deference” to the findings of a prior approved visa petition when adjudicating petition extensions (i.e. visa renewals), as long as the key elements were unchanged and there was no evidence of a material error or fraud related to the prior determination.

This new policy will impact all employers who are seeking to file an extension of a nonimmigrant visa for any of their international employees.  In particular, those individuals who may currently be on an H-1B, L-1A, L-1B, O-1, E-3, or other nonimmigrant visa will likely face increased scrutiny in the adjudication of their petition to extend/renew their visa.  Based on this new USCIS guidance, employers should prepare to demonstrate and document each and every eligibility criteria for a particular visa, as if they are filing a new petition.  This new policy, along with the recent announcement requiring in-person interviews for individuals seeking employment-based green cards, may also continue to lead to delays in visa processing.

This change, once again, appears to fall in line with President Trump’s “extreme vetting” immigration plans.  Nevertheless, it should always be the practice of a qualified immigration attorney to file all visa petitions (including visa extensions) as a standalone petition, evidencing how the Beneficiary and Petitioner meet the eligibility criteria for the visa.  Even more so now that USCIS may use this policy to essentially re-adjudicate the initial visa petition when adjudicating visa extension petitions.  Employers and applicants should therefore work closely with counsel to provide substantial documentation of compliance with the current terms of employment (i.e. worksite information, salary, job duties, etc.), along with evidence of maintenance of immigration status and the job that will be performed during the requested visa extension time period.   Our office will continue to monitor the rollout of this new policy. For questions or help in preparing your visa extension petition, please contact us.

Diversity Visa Green Card Lottery Is Accepting Applications

The annual Diversity Immigrant Visa Lottery, which makes available 50,000 permanent resident visas ("green cards") to natives of countries deemed to have low rates of immigration to the U.S., is now open for online registration until November 7, 2017.  The Diversity Lottery is FREE and applications must be filed online through the official Department of State Diversity Lottery website.  Please visit the State Department Diversity Immigrant visa information site for eligibility information and to apply.  

Only applicants from certain eligible countries can apply in the Diversity Lottery, and must meet certain educational or work requirements (i.e. having a high school education or having worked in 2 of the last 5 years in a qualifying occupation).  

Lottery winners will be selected at random next year and can check whether they have been selected starting May 1, 2018.

Guidance for Trump's New Travel Ban

President Trump has rolled out a new travel ban, after the previous 90-day travel ban expired yesterday.  This new policy continues the existing travel restrictions to the U.S. for most citizens of Iran, Libya, Somalia, Syria and Yemen, and now adds the countries of Chad, North Korea and Venezuela.  The new restrictions range from full travel bans on nationals from countries like Syria, Chad, and North Korea to more targeted restrictions for Venezuela, Iran, Libya, and Yemen.  For example, the suspension of nonimmigrant visas to citizens for Venezuela, applies only to senior government officials and their immediate families.  Iranian nationals will only be allowed to enter the U.S. using valid student and exchange visitor visas, but such visitors will have to undergo "enhanced screening and vetting requirements."

These news restrictions, which will take effect on October 18, 2017 and will be in place for an indefinite period of time.  The order does not apply to lawful permanent residents, existing visa-holders, or foreign nationals currently within the United States.  The Department of Homeland Security may also grant waivers on a case-by-case basis for students and workers with significant U.S. ties who happened to be outside the country when the order was enacted, among others.

Once again, as a result of these actions, many in the immigrant community are confused and scared – I understand!  Despite all that you read or hear in the news or from your friends and family, this is not a time to panic or to make hasty decisions.  It is a time for calm, rational thinking and for informed, conservative and proactive planning.  In that regard, I suggest the following:

  1. If you are a citizen of one of the countries listed in this new travel ban, do not travel out of the U.S.  The Executive Order does not apply to you if you merely visited one of these countries.
  2. If you have a non-immigrant visa and you plan to travel out of the U.S. please consult with an Immigration Attorney first.  In this climate of enhanced enforcement it is prudent to be able to document your status as much as possible in the event you are subject to additional scrutiny by an overly aggressive immigration officer upon your return.
  3. Consideration should be given to accelerating any immigration planning (i.e. extensions of status, green card processing, etc.) in order to take advantage of the existing laws and regulations. It is possible that these policies may continue to become more restrictive.

As evidenced by the prior travel bans, the current administration is intent on restricting travel to the U.S..  Once again, I sympathize with the fear and uncertainty many may be feeling right now - I come from a family of immigrants.  It pains me that the country whose doors gave my family refuge in their time of need is now trying to close those same doors to others.  I believe that these times too shall pass and that better times lie ahead.  Until then I will do everything I can to ease your fears and help you through this difficult period.

Please sign up for updates on the current situation and I will provide you with developments as they take place.  In the interim, please feel free to call me any time to discuss any of your concerns.

New Immigration Interviews for Employment-Based Green Cards

U.S. Citizenship and Immigration Services (USCIS) has announced that beginning October 1st in-person interviews will be required for individuals seeking to adjust from an employment-based nonimmigrant status (i.e. H-1B, L-1, O-1, etc.) to lawful permanent residence (or “green card”) status in the United States.  Interviews will also be required for family members of refugees or asylees who are seeking to join a principal asylee/refugee applicant.  While current policy generally waives interviews for employment-based adjustment of status applications, the new change is part of President Trump’s “extreme vetting” immigration policies.  

According to the USCIS announcement, immigration officers will interview employment-based green card candidates to verify the information provided in their I-140 applications and/or to discover new information and assess the credibility of the applicant in the interview.  In cases where an applicant may have ported his/her employment to a new employer, an immigration officer may seek to confirm whether the new employment is in the same or similar occupational category.

Employers and applicants should prepare for substantial delays in the adjudication of I-485 Applications to Adjust Status as local USCIS offices brace for the surge of now mandatory interviews.  Moreover, employers and applicants may soon see an increase in the costs associated with the permanent residency process, either in the form of increased application fees to cover the costs of hiring more USCIS officers to handle interviews, or through increased legal fees or employees needing to take leaves of absences to handle immigration processing issues.  

Applicants with pending I-485 or I-730 applications should anticipate being called into a local USCIS office for an in-person interview.  Applicants should be prepared in the interview to discuss the immigration benefit they are applying for and should have a complete understanding of the application that was filed on their behalf.  Employment-based green card applicants should be able to discuss the position they are working in, including where they work, what their pay is, and what their specific job duties are.  Family members of refugees/asylees should be prepared to prove their family relationship.  

This new change to the permanent residency process is expected to be onerous.  Employers and applicants should work closely with counsel to prepare for this interview process.  Our office will continue to monitor the rollout of this new policy.  For questions or help in preparing for these interviews, please contact us.

The End of the International Entrepreneur Rule

The Trump administration announced this week their intent to delay and ultimately rescind the International Entrepreneur Rule.  The rule, which was created by President Obama’s administration and which was set to go in to effect on July 17, 2017, would have allowed certain international entrepreneurs to be considered for parole (temporary permission to be in the United States) in order to start or grow their businesses in the U.S..  Applicants would have to show they met minimum requirements for capital investments and demonstrate that their startup would have been of benefit to the public via job creation in the U.S.

While the current administration is delaying the effective date of the International Entrepreneur Rule until March 14, 2018 and taking public comment on the rule, their intention is to rescind the rule.

For questions about this policy change, please feel free to contact us.  Foreign entrepreneurs and startups seeking alternative immigration options to the U.S. should read our article on entrepreneur visa options.  

Diversity Visa Winners Annouced

The 2018 USA Diversity Visa Lottery winners have been announced. If you applied, confirm if you've won a "green card" and lawful permanent residence at dvlottery.state.gov.  You will need your entry confirmation number, last name, and year of your birth to check the results.

If you are selected in the lottery, you will be given instructions in Entrant Status Check about how to apply for your immigrant visa for yourself and family members.

The Diversity Immigrant Visa Program provides U.S. lawful permanent residence to 50,000 individuals each year from countries with historically low levels of immigration to the U.S.  Applications for the 2018 fiscal year were open from October 1 - November 3, 2016.

Increased Visa Scrutiny Announced

The U.S. Secretary of State has directed all U.S. consulates to take all possible steps to increase scrutiny of all visa applications and applicants themselves for security threats.  These diplomatic cables direct officers to ask more detailed questions about the background of all applicants and requires applicants whose nationality or background may raise security concerns to provide additional information, including: travel history over the last 15 years; names of siblings, children and former spouses not already recorded in the DS-160/260 or NIV/IVO case notes; addresses over the last 15 years; prior passport numbers; prior jobs and employers, including brief descriptions if applicable, for the last 15 years; any phone number the applicant has used in the last five years; email addresses and social media handles the applicants has used in the last five years.  The cables also will now limit consular officers to no more than 120 interviews per day, a change that will likely cause backlogs and processing delays.

These additional stricter screening requirements, along with the limits on interviews are likely to result in potential administrative processing delays for some applicants.  Additionally, these new directives will likely cause slowdowns in visa issuance and an increase in visa denials.

Considerations for Applying for Naturalization

Based on the rapid changing immigration landscape many Lawful Permanent Residents (“green card” holders) are seeking to obtain the benefits of U.S. citizenship through the naturalization process.  Lawful Permanent Residents who are eligible for U.S. citizenship are afforded equal protection under U.S. laws regardless of their birth in another country.  

In order to be eligible for naturalization the applicant must:

  1. Be at least 18 years old at the time of filing;
  2. Possess Lawful Permanent Resident status (“green card”) for the last 5 years, or for the last 3 years if married to a U.S. citizen;
  3. Live in a state where you claim residence for at least 3 months prior to filing;
  4. Be physically present in the U.S. for at least half the time of the residency requirement (i.e. 30 of the last 60 months or 18 of the last 36 months if married to a U.S. citizen);
  5. Have no continuous absence of more than one year from the U.S., irrespective of the protection of a re-entry permit or SB-1 visa;
  6. Have filed U.S. income tax returns each year after becoming a lawful permanent resident;
  7. Have basic knowledge of U.S. history and government and the ability to read, write, speak, and understand basic English;
  8. Have good moral character (meaning you are not a habitual drunkard; polygamist; a person associated with prostitution, narcotics, or illegal entry of aliens; convicted of a crime of moral turpitude or of two or more non-political offenses for which the sentence imposed was 5 years or more; a gambler; committed an immigration fraud; convicted of murder or an aggravated felony; a non-support of dependents).

The Future for U.S. Work & Student Visa Programs Under Trump’s Next Executive Order

In follow up to last week’s Executive Orders, President Trump may be gearing up for his next round of Executive Orders which look to tighten U.S. work visa programs (including the H-1B visa), impose stricter limitations on foreign students, eliminate the International Entrepreneur Rule, and enact measures that will severely curtail the options for U.S. employers (especially in the tech sector) to attract the smartest and most innovative minds to our country. These proposed rules do not appear to suspend or terminate any foreign national’s current work authorization or visa status, but it does direct the Department of Homeland Security (DHS) to review all immigration regulations that allow foreign nationals to wok in the United States. Let’s look at what this could mean for visa holders, employers, and all foreign travelers to the U.S. in the future:

How will this impact the H-1B work visa?

The Executive Order does not propose immediate changes to the upcoming (April 3, 2017) H-1B visa program, but it does indicate the administration’s intent to revise the H-1B work visa lottery system in the future to prioritize applications for those who are paid higher wages and/or have advanced education. 

How will this impact the F-1 OPT student programs?

The Executive Order directs DHS to “reform practical training programs for foreign students to prevent the disadvantaging of U.S. students in the workforce, better protect U.S. and foreign workers affected by such programs, … and improve monitoring of foreign students.” While this would seem to indicate that steps will be taken to curtail current Optional Practical Training (“OPT”) programs available to F-1 students, it is not clear how DHS will modify the regulations.

How will this impact current visa-case processing and/or Green Card priority dates?

The Executive Order directs DHS to “restore the integrity of employment based visa programs to better protect U.S. and foreign workers” affected by those programs. While this guidance is vague, this could signal an increase in Requests for Evidence and Notices of Intent to Deny in immigration cases, as immigration officers may begin to apply stricter adjudication standards. This may also mean the introduction of new employer obligations as it pertains to recruiting and/or prevailing wages. Any changes to the Visa Bulletin system could result in a retrogression in Visa Bulletin priority dates.

How will this impact the International Entrepreneur Rule?

While the proposed Executive Order does not single out the recently published International Entrepreneur Rule (set to go in to effect this summer), it does call for the elimination of any use of parole that “circumvents statutory immigration policy,” which essentially would end the rule.

How will this impact L-1 intra-company transferee visa holders?

The Executive Order directs DHS to conduct site visits to all places where L-1 visa holders (international executive and managers) work, including third-party worksites. It also directs DHS to begin conducting site visits for all visa categories within two years.

How will this impact business / tourist (B-1/B-2 visa) visitors?

The Executive Order directs DHS to clarify the types of activities that are and are not permissible for B-1/B-2 visa visitors. Individuals entering the U.S. on B-1/B-2 visitor visas, should anticipate more comprehensive scrutiny at all ports-of-entry.

 

These Executive Orders also direct the Department of Labor to investigate more abuses of work visa categories, and require more employers seeking to sponsor foreign workers to participate in the E-Verify employment authorization program.

Businesses, foreign workers, and international students considering filing for an H-1B work visa this year should begin preparing their H-1B visa petitions NOW. Demand for H-1B visas on behalf of foreign employees is expected to reach record levels this year. Due to lengthy prerequisite filing steps which must be completed before the H-1B petition can be submitted to USCIS on April 3rd, employers should begin preparing their petitions NOW to ensure they are ready on time.

Employers, foreign nationals, and international students who may be impacted by changes to any of these proposed regulations should contact an Attorney immediately to begin evaluating legal strategies.  If you have any other questions, please contact me.

Immigration Guidance for Trump's Executive Orders

Three Executive Orders were issued by President Trump last week – one related to the building of a wall along our border with Mexico, one related to enhanced immigration enforcement and one related to a travel ban for citizens of certain countries and limitations on refugees.  These actions have been drastic in terms of their impact as well as vague in terms of how they will be applied.  As a result of these actions, many in the immigrant community are confused and scared – I understand! 

I am writing this to help you navigate these turbulent waters.  Despite all that you read or hear in the news or from your friends and family, this is not a time to panic or to make hasty decisions.  It is a time for calm, rational thinking and for informed, conservative and proactive planning.  In that regard, I suggest the following:

  1. If you are a citizen of one of the “seven countries” listed on the Executive Order (Iran, Iraq, Syria, Libya, Somalia, Sudan and Yemen), do not travel out of the U.S.  The Executive Order does not apply to you if you merely visited one of the “seven countries”.
  2. If you are a citizen of any other country which has a predominantly Muslim population, do not travel out of the U.S. without consulting with an Immigration Attorney first.
  3. If you have a non-immigrant visa (even if you are a citizen of a country which is not predominantly Muslim) and you plan to travel out of the U.S. please consult with an Immigration Attorney first.  In this climate of enhanced enforcement it is prudent to be able to document your status as much as possible in the event you are subject to additional scrutiny by an overly aggressive immigration officer upon your return.
  4. Consideration should be given to accelerating any immigration planning (eg; extensions of status, green card processing, etc.) in order to take advantage of the existing laws and regulations. It is possible that these may become more restrictive as the policies of the current administration continue to evolve.

It is my belief that more executive orders will be forthcoming - which are likely to add to the fear and uncertainty that you may be feeling.  I sympathize with what you may be feeling right now - I come from a family of immigrants.  It pains me that the country whose doors gave my family refuge in their time of need is now trying to close those same doors to others.  I believe that these times too shall pass and that better times lie ahead.  Until then I will do everything I can to ease your fears and help you through this difficult period.

Please sign up for updates on the current situation and I will provide you with developments as they take place.  In the interim, please feel free to call me any time to discuss any of your concerns.

New Requirements for EB-2 National Interest Waiver Green Card

Last month, U.S. Citizenship & Immigration Services (USCIS) announced new, less subjective, requirements for foreign individuals seeking U.S. lawful permanent residence (“green card”) under the EB-2 National Interest Waiver (NIW) category.  The NIW category allows foreign nationals in the second employment-based immigration category to bypass the lengthy and sometimes difficult “labor certification” process, if they can show that their immigration to the U.S. is in America’s “national interest.”  

In order for a foreign national to prove “national interest” under the new criteria, he or she must demonstrate that:

  1. the proposed endeavor has both substantial merit and national importance;
  2. he/she is well positioned to advance the proposed endeavor; and
  3. on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.

In order to prove these criteria, the foreign national will have to show their work has national or global implications.  One example of this can be proof that the foreign national’s work “has significant potential to employ U.S. workers or has other substantial positive economic effects, particularly in an economically depressed area…”.  The applicant will also have to show that he/she is able to succeed with their plan by demonstrating that they have the ”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."  Lastly, the foreign national will have to prove that “in light of the nature of [their] qualifications or proposed endeavor, it would be impractical either for the foreign national to secure a job offer or for the petitioner to obtain a labor certification."  

This decision is fantastic news for U.S. employers, international entrepreneurs, startups, and professionals, and provides greater flexibility for foreign nationals seeking to qualify for EB-2 National Interest Waivers.

For more information, feel free to contact us.

New Rules For Employment-based Immigrant & Nonimmigrant Visa Programs

The Department of Homeland Security (DHS) has published new regulations to provide greater flexibility for high-skilled foreign workers who have an approved employment-based immigrant visa petition, while they wait for a green card.  The intent of these new rules will better enable U.S. employers to sponsor and retain high-skilled foreign workers, increase the ability of such workers to seek promotions, accept lateral positions, change employers, or pursue other employment options.  

The highlights of this rule change, include:

  • Retention of Approved Immigration Visa (I-140) Petitions:  Immigrant petitions submitted by U.S. employers to request permanent employment on behalf of a foreign national (Form I-140) may no longer be automatically revoked based on a request by the employer to withdraw the petition.  Additionally, the immigrant petition will not be revoked if the the request to withdraw is based on the termination of the employer’s business 180 days after either the I-140’s approval or the filing of an I-485 application for adjustment of status.  While the I-140 would remain valid, the foreign national would need a new job offer or new petition in order to apply for a green card.
  • Nonimmigrant Visa Grace Periods:  A one-time grace period of up to 60 days whenever employment ends, will allow for greater job portability for nonimmigrant workers (especially H-1B, E-1, E-2, E-3, L-1, O-1 and TN visa holders).  During the grace period the nonimmigrant worker may apply for an extension of stay or change of status.  While the nonimmigrant will not be authorized for employment during the grace period, it will provide flexibility to allow for new employment in case of sudden termination.
  • Employment Authorization in Compelling Circumstances:  In compelling circumstances, DHS will allow certain individuals with an approved I-140 petition, who are unable to obtain an immigrant visa because of numerical limits, to apply for a one-year employment authorization document (EAD).  This new rule would only apply to individuals in E-3, H-1B, H-1B1, L-1 or O-1 status.  DHS has identified “compelling circumstances” as serious illness or disabilities, employer retaliation, other substantial harm to the applicant, or significant disruption to the employer.
  • Employment Authorization Document Processing:  Certain individuals may be granted automatic EAD extensions for up to 180 days, so long as they timely renew their EAD and it is based on the same employment authorization category as the existing EAD.  The extension is available only to certain foreign nationals, including adjustment of status applicants and individuals filing for renewal of Optional Practical Training (OPT) based on a degree in a Science, Technology, Engineering, or Math (STEM) field. This provision does not apply to H-4, L-2, or E nonimmigrant spouses seeking an EAD renewal.

The new regulation will become effective January 17, 2017, three days before Donald Trump takes office.  These regulations should remain in place, unless Congress acts to cancel them.  Please contact our office for further questions or clarification.

The Reality of Trump's Proposed Immigration Policies

The dust has still not settled since Donald Trump’s win in the U.S. presidential election last week, but we are already starting to see some details regarding his campaign pledges as it pertains to immigration.  Despite there still be overwhelming uncertainty as to the specifics of his immigration policies, the general cornerstones seem to call for an increase in immigration enforcement and a decrease in the amount of immigration to the United States. That said, how realistic is Trump’s agenda?

Undocumented Immigrants

The deportation of an estimated 11 million undocumented immigrants from the United States is almost impossible. In fact, earlier this week Trump dialed back his campaign rhetoric to express his intention to prioritize the removal of around 2-3 million undocumented immigrants with criminal records, which is a position that is actually in line with the current administration’s priorities.  

Deporting all undocumented immigrants from the U.S. will require incredible amounts of new resources and funding. While many congressional Republicans might support Trump’s policies, would they support the cost?  Politico estimates it would cost $166 billion to deport all of the undocumented immigrants in our country and complete a border wall.  (No, by the way, Trump can’t force a country to spend money on something it does not want).  The Bipartisan Policy Center estimates that Trump’s immigration attrition policies could increase projected deficits by about $800 billion over the next 20 years.  By keeping immigrants in this country working, creating businesses, and making the goods and services that people want to buy we are ultimately increasing wages and employment opportunities.  Would Republicans really be so foolish as to actually spend money on large-scale nationwide attrition programs?

DACA

Trump has pledged to end President Obama’s deferred deportation program (Deferred Action for Childhood Arrivals (DACA)), which has provided “temporary relief from deportation” and work authorization to over 650,000 undocumented immigrants who arrived in the U.S. when they were minors.  While it is certainly possible for the next President to overturn this executive action, it remains unclear whether he would simply prevent future renewals of the U.S. employment authorization documents for DACA individuals, or whether he would cancel and revoke existing employment authorization documents for DACA recipients.  A more substantial concern, is whether DACA recipients would be more vulnerable to deportations based on the personal information they previously provided to the government as part of their application process.

Assuming, as Trump hinted earlier this week, that DACA recipients may not fall under his 2-3 million criminal aliens enforcement strategy, what economic benefit would arise from revoking the work permits of over 650,000 young immigrants who have been residents of the U.S. for decades, who are working and participating in the economy and attending college?  What might be the harm to U.S. employers lawfully employing workers with employment authorization based on DACA?  There may be severe consequences to our economy by eliminating valuable employees from our workforce, not to mention creating a humanitarian crisis by deporting these individuals.  

H-1B Visas

During Trump’s campaign he expressed a desire to make it harder for American companies to obtain employment-based visas for immigrant workers.  In particular, Trump called for policies to increase the regulatory costs for American businesses hiring skilled foreign workers in specialty occupations, particularly in the H-1B visa category.

While it is reasonable to expect that the new administration may add new statutory restrictions, institute stricter U.S. recruitment requirements, or increase USCIS filing fees, it is also possible that they may not make any changes to the existing employment-based visa program.  As U.S. businesses are increasingly in need of high-skilled labor (especially in STEM fields), what benefit would the U.S. achieve by limiting the amount of intelligent, professional-level foreign nationals into this country?

TN Visas

Canceling the North America Free Trade Agreement (NAFTA) treaty with Mexico and Canada was a major talking point in Trump’s campaign.  Doing so would most likely eliminate the TN visa for Canadian and Mexican nationals.  Again, the elimination of a visa, like the TN, for high-skilled immigrants in the U.S. does not seem to be in the best interest of American businesses.  Furthermore, scrapping NAFTA would also eliminate reciprocal visa options Canada and Mexico provide to U.S. workers seeking to engage in professional activities in those countries.

F-1 STEM OPT

Recent changes to the Optional Practical Training (OPT) program for foreign students on F-1 student visas and who graduated with degrees in science, technology, engineering, and mathematics (STEM), allow for an additional two years of U.S. work authorization.  This new rule could be a target under the new President.  Again, though, with U.S. employers in desperate need for STEM employees, cancelling the STEM OPT extension rule, would severely injure American companies.

“Extreme Vetting”

Trump’s most controversial policy called for some type of “extreme vetting” of foreign nationals from certain countries or certain religions.  While it is not clear what he means by this type of vetting, the possibility of increased screening could have serious consequences for U.S. employers and employment-based visa holders, due to stricter scrutiny on visa petitions and longer visa application times.  It might also make it harder for individuals to obtain U.S. citizenship.

In the end, it is realistic to expect some changes to the U.S. immigration system.  Whether all the broad promises of Trump’s campaign will become reality is a different story.  In less than 60 days, though, Donald Trump will take the oath of office as the 45th president of the United States.  Therefore, employers and individuals considering whether to seek certain immigration-related benefits, should act sooner than later.  In the meantime, please visit our website and sign up for our newsletter for the latest news regarding any changes to U.S. immigration laws.