• Can President Trump Unilaterally Change the H-1B Program?

    There’s a lot of chatter about changes to the H-1B program much of which are based on rumors and not facts; these include a rumor about a draft Executive Order that would alter this popular visa program, and various statutes introduced by Congress to revise the H-1B program.  However, as of today, nothing has actually changed about the H-1B program.  In fact, USCIS will be accepting H-1B petitions for the lottery this year starting April 3, 2017.  That’s less than a week away.  So why all the confusion and chatter?

    There’s uncertainty because there’s a grave lack of understanding as to how our immigration rules work, and what powers a President may have to change existing H-1B laws.

    Why the Law Matters

    The H-1B visa’s existence is because of a statute.  Congress passed multiple bills in the last century concerning immigration that eventually became laws of our land.  The last iteration on H-1B visas was revised in 2004, and provided for how many H-1B visas were to be issued, what types of fees would be paid, and what wage requirements would need to be paid to foreign workers.

    If the H-1B visa program exists because a statute was passed and signed into law, then the program shall too be altered or cease to exist by the same method.  Hence, that’s why you have various politicians angling to introduce bills that may someday get passed, signed into law and become a new statute to supersede the latest one.

    Congress creates.  Therefore, Congress must alter or destroy.  (Last time I checked, Congress had a really hard time agreeing on anything much….)

    Then Why the Talk about Presidential Executive Orders?

    Some might wonder why all the talk about Executive Orders if Congress controls what ultimately happens to the H-1B program.

    In any given statute, there will be certain portions that aren’t explicitly written in detail.  When this happens, the statute will typically and explicitly designate a federal authority to “fill-in-the-blanks” by empowering them to establish regulations that will help execute the intent of the law.  It is under this vein, that the U.S. President can provide guidance, priorities, and direction to those designated federal authorities.

    Under the current immigration statute, though, there’s not very much room for maneuvering by the President.  The statute requires employers to pay H-1B workers at least the prevailing wage.  Also, if the prevailing wage is made available to the public (which it is), then the prevailing wage must contain at least 4 levels of wages.

    Theoretically, there could be room to impose a filing fee for the Labor Condition Application (a prerequisite filing with the Department of Labor prior to submitting an H-1B petition to Immigration).  There could also be room for the Department of Labor to require an employer to conduct a labor market test (force employers to advertise to hire U.S. workers only), before it would agree to certify a Labor Condition Application.  Theoretically, the President could impose this in an Executive Order.  Though, both plans may fail if challenged in court, simply because it may exceed the authority of the Agency, since Congress did not contemplate these processes in the statute.

    Therein lies the challenge with the how much power a President could wield through an Executive Order.  The President’s primary role is to guide federal agencies in carrying out the law.  Until Congress can act to reform the laws, we may not see very much change with the H-1B program yet.

  • President Trump Issues Newly Revised Travel Ban

    President Trump signed a revised Executive Order, Protecting The Nation From Foreign Terrorist Entry Into The United States, March 6, 2017.  The Executive Order re-issued a new travel ban for international travelers.  This time, only six countries made it to the list.  Iraq was bumped off due to some heavy political diplomacy and maneuvering on the part of its leaders.

    What Purpose Does the revised Travel Ban Serve?

    The travel ban is meant to put a pause on certain foreigners entering the U.S. from various countries, in order to allow the government a chance to review existing security measures to determine if those measures are adequate to properly screen foreigners for terrorist related activities and their threat to the U.S.

    Which Countries Are Impacted by the Travel Ban?

    Six countries have been outlined to be impacted by the travel ban.  Individuals who are nationals (or citizens) of any of these six countries are impacted: Iran, Libya, Somalia, Sudan, Syria, and Yemen.

    Iraq was removed from this revised travel ban.

    When Does the Travel Ban Go Into Effect?

    This new, revised travel ban goes into effect on March 16, 2017 at 12:01am Eastern Daylight Time.

    Which Individuals Are Impacted by the Travel Ban?

    Individuals who are nationals or citizens of the six countries who meet all three of the following criteria are subject to the travel ban:

    1. Is outside of the United States as of the Effective Date;
    2. Does not have a valid visa at 5:00 p.m., Eastern Standard Time on January 27, 2017; and
    3. Does not have a valid visa on the Effective Date.

    Which Individuals Are Excepted from the Travel Ban?

    The following individuals are NOT impacted by this revised travel ban:

    • Lawful permanent residents in the U.S. (aka greencard holders)
    • Individuals who have been admitted to, or paroled into the U.S. on or after the Effective Date
    • Individuals who have received permission to travel to the U.S. (such as an advanced parole document) issued on or after the Effective Date
    • Dual-national individuals traveling to the U.S. using their non-designated country passports. (For example, an individual who holds a French passport and an Iranian passport who is seeking to enter the U.S. using the French passport is not subject to this travel ban.)
    • Foreign diplomats traveling on a C-2, G-1, G-2, G-3 or G-4 visas
    • Individuals granted asylum status, refugee status, or protection under the Conventions Against Torture are not impacted by this travel ban

    Waivers for the Travel Ban?

    This revised travel ban also carves out areas where consular and customs officers may grant visas/entries to individuals who would otherwise be subject to the travel ban, on a discretionary basis.  The individual must have been determined not to be a national security threat and a denial of entry would otherwise cause undue hardship to the individual.  The waivers may be applicable under the following circumstances:

    1. Previously admitted individuals who were working, studying or conducting other long-term activity in the U.S. prior to the Effective Date of the new travel ban
    2. Foreign nationals entering the U.S. to pursue work, study or other lawful activity
    3. Foreign nationals entering the U.S. to pursue significant business or professional obligations
    4. Foreign nationals entering the U.S. to visit or reside with close family members who are U.S. citizens, lawful permanent residents, or individuals otherwise lawfully admitted to the U.S. in non-immigrant status
    5. Foreign nationals who are young infants or children requiring medical care
    6. Foreign nationals employed by or on behalf of the U.S. government
    7. Foreign nationals traveling to the U.S. for purposes related to an international organization designated by the International Organizations Immunities Act (IOIA)
    8. Landed Canadian immigrants with a valid visa
    9. Exchange visitors sponsored by the U.S. government

    How Long Will the Travel Ban Last?

    The travel ban will last 90 days from the Effective Date.  (There are separate sections regarding refugees on this travel ban that suspends admission of new refugees into the U.S. for 120 days from the Effective Date.)

    Course-Correction For Previously Banned Individuals?

    Fortunately, the revised travel ban clarifies that any individual whose visa was previously revoked as a result of the first travel ban, would be entitled to a travel document to the U.S.  The Executive Order 13769 (the first travel ban) would essentially be revoked on the Effective Date of this revised travel ban.

    ***

    Stay tuned for more details on how Presidential executive power impacts immigration rules, laws, and regulations.

  • NPR Talks H-1Bs with Immigration Attorney Ann Cun

    The topic of H-1B Visas has been on the top of many lawmakers’ minds.  On Monday, February 13, 2017, National Public Radio’s All Things Considered Host Robert Siegel interviewed Immigration Attorney Ann Cun to discuss why U.S. tech employers opt to hire foreign workers.

    Listen to the broadcast below.

    One of the most interesting portions of the conversation, which did not air, occurred when NPR host Robert Siegel inquired about whether NPR had also hired H-1B workers and if there was a way to find this out.  After some research on the internet, it turned out NPR had indeed submitted a few applications in 2016 to the Department of Labor in connection with what would eventually become a part of any H-1B petition that would have been submitted to the U.S. Citizenship and Immigration Services.  This fact was eventually spliced into the segment airing at the very end.

    The ubiquity of the H-1B visa would actually surprise many of its critics.  While many critics bemoan a program that is [allegedly] wrought with abuse by U.S. employers, critics would also be surprised at how entrenched our society has become in our reliance upon technology, therefore necessitating high-tech workers, even if they are foreign-born. These industries include restaurants and hospitality, traditional retailers, news corporations, entertainment companies, as well as the service providers like consulting companies.  In fact, many of the news corporations that often report on the complexities of the H-1B visas also rely on H-1B workers themselves (i.e.: Viacom, CBS, Comcast, Fox, Time Warner, Time Inc., and Hearst).  That’s because technology plays a vital role in how consumers digest information.

  • Four Immigration Bills Impacting H-1B Workers

    The H-1B program as we know it may be changing in the near future but just how quickly those changes occur will depend largely on how quickly Congress can review and vote on the bills.  As of today, four bills have been introduced (and reintroduced) by various congress-people.  As a reminder, a bill has no immediate impact on existing visa programs until the bill has been signed into law.  That, is inherently the challenge with our government.  (Click here for details on how bills become law.)

    Bill #1: H.R.170 Protect and Grow American Jobs Act

    Introduced on January 3, 2017 by Rep. Darrell Issa (R – CA)

    The bill has a limited scope applicable only to H-1B dependent employers.  H-1B dependent employers employ

    • ≤ 25 full-time employees, of whom 8 or more are H-1B workers; or
    • 26 – 50 full-time employees, of whom 13 or more are H-1B workers; or
    • 51 or more full-time employees of whom 15% or more are H-1B workers.

    (Full-time employees are individuals who work 35 or more hours per week according to the rules set by the U.S. Department of Labor.)  Currently, employers who are dependent on H-1B workers must undergo additional recruitment of U.S. workers and attestations in order to continue to hire H-1B workers.  In order to bypass those additional requirements, H-1B dependent employers may attest to paying their H-1B workers $60,000 per year or more, or hire individuals who hold a master’s degree or a higher degree.  Under H.R. 170, the bill would raise the $60,000 minimum to $100,000 and eliminate the master’s degree option entirely.  The impact of the bill is aimed squarely at H-1B dependent employers and would have little impact on most U.S. employers generally.

     

    Bill#2: H.R. 392 Fairness for High-Skilled Immigrants Act of 2017

    Introduced on January 10, 2017 by Rep. Jason Chaffetz (R – UT) and 24 other co-sponsors with a total of 66 co-sponsors to date (as of February 12, 2017).

    Current immigration quotas (as set by Congress) dictate that no more than 140,000 greencard (visas) be issued per fiscal year for those being sponsored through employment, and no more than 226,000 greencards be issued for those being sponsored by family.  In addition, no country may be issued more than 7% of the quota total per fiscal year (this additional rule is called the per country limitation rule).  In practice, the per country limitation rule has created significant backlogs in the “greencard line” for many individuals emigrating to the U.S. from countries like China, India, Mexico and Philippines.  In fact, its not uncommon for a Canadian to be instantly eligible to apply for a greencard whilst their Indian counterparts must wait 8 years or greater for the same employment category.

    H.R. 392 seeks to remove entirely the per country limitations for individuals seeking a greencard based on employment sponsorship.  This would help to speed up the waiting periods for those immigrants who have been waiting for years.  Their ability to obtain greencards would also promote greater job portability.

    For individuals being sponsored by family members, the bill seeks to raise the per country limitation from 7% to 15%, which would also alleviate some of the waiting periods for individuals.

    The bill also removes caps for Chinese Students seeking to immigrate to the U.S.

    Although the bill does not directly seek to change the H-1B program, if passed, its impact would trickle over to H-1B visa holders.  It levels the playing field for all immigrants waiting for their greencards to be approved, regardless of which country they were born.  Rather than having to rely on one employer to sponsor an H-1B for multiple years (8+ years for Indian nationals), workers may have a much shorter waiting period for their greencards.  Faster greencard processing times means greater job mobility for workers means greater competition for skilled labor.

     

    Bill #3: S.180 H-1B and L-1 Visa Reform Act of 2017

    Introduced on January 20, 2017 by Sen. Chuck Grassley (R – IA), Sen. Dick Durbin (D – IL), Sen. Sherrod Brown (D – OH), Sen. Richard Blumenthal (D – CT)

    S.180, as introduced, would revise the H-1B program in many ways.

    1. It would impose priorities on how the H-1B visa is allocated with priority given to advanced degree holders in STEM fields.
    2. All H-1B workers would be required to obtain a U.S. degree (or a foreign equivalent).
    3. Employers would be required to pay a fee to submit a Labor Condition Application to the U.S. Department of Labor. (There is currently no fee.)
    4. The U.S. Department of Labor would be empowered to demand employers comply with the rules (or face penalties) and conduct investigations based on fraud or non-compliance (for both H-1B and L-1 workers) and provide U.S. Citizenship & Immigration Service with any documentation necessary to investigate employer non-compliance.
    5. The U.S. Department of Labor would be required to conduct annual audits of companies with 100 or more employees if more than 15% of those employees are H-1B workers.
    6. The U.S. Department of Labor may hire additional 200 employees to administer its H-1B program.
    7. The H-1B program would be reduced from 6 to 3 years. A 3-year extension would only be allowed for workers who can demonstrate extraordinary ability or have advanced degrees or who are professors.
    8. Consulting companies are specifically excluded from utilizing the H-1B visas for its workers.
    9. Employers would face stiffer penalties for displacing U.S. workers with H-1B workers and face additional penalties for employee lost wages and benefits.
    10. Employers would no longer be able to hire L-1B workers based on specialized knowledge for more than one year, if the worker will be placed at a third-party site rather than the employer’s worksite, unless a waiver has been obtained from the U.S. Department of Labor.
    11. Employers may not replace a U.S. worker with an L-1 worker.
    12. Additional rules will be imposed for L-1 workers, including work location, minimum salary rates, working conditions and employer penalties.

    Of the four bills indicated in our article today, this bill is the most ambitious in revising the H-1B program.  It imposes lots of penalties and changes to both the H-1B program and the L-1 program and seeks to eliminate an entire industry (consulting companies) from existence in the U.S.  Moreover, the attempts to remove as many business operating decisions from the discretion of employers.

    The bill, if enacted into law, would be prospective, but it doesn’t clarify what would happen to the hundreds of thousands of H-1B workers in the U.S. who had previously qualified for H-1B status based on years of experience in the field (or a combination of experience and education).  Moreover, it leaves open as to how foreign degrees would be determined to be the equivalent of a U.S. degree, when many countries operate on a three-year university degree whilst the U.S. uses the four-year standard.

    We’ll dig deeper into some additional questions this bill raises (more than it answers) so stay tuned to this blog.  If you have questions, feel free to leave us a comment.

     

    Bill #4: H.R.670 High Skilled Integrity and Fairness Act of 2017

    Introduced on January 25, 2017 by Rep. Zoe Lofgren (D – CA)

    H.R. 670 also attempts to raise the bar for employers seeking H-1B visas for their workers.  Unlike S.180, which whacks all business necessity rationale out of the H-1B and L-1 programs and imposes heavy-handed rules, H.R. 670 uses a market-based approach. If employers really want to hire a skilled worker, they must pay for it!

    1. Wages for H-1B workers will go up but a lot! Rather than use the 4-tiered system currently in place, the U.S. Department of Labor will be required to conduct a new survey using three tiers.  Based on those three tiers, employers who pay the most (i.e. X% of Tier 3 wages) will receive priority for hiring H-1B workers.  (I’m oversimplifying the math for brevity’s sake.)
    2. The bill also factors in much of what H.R. 170 (above) proposes, by raising the H-1B dependent-employers exemption from $60,000 to almost $130,000 and also eliminating the master’s degree allowance.
    3. The bill also factors in H.R. 392 (above) by removing the per-country limitations as well for employment-based immigrants.
    4. Sets aside 20% of the annually allocated H-1B visas for small and start-up employers (50 or fewer employees) to ensure small businesses have a chance to compete for high-skilled workers.
    5. Removes hurdles to allow F-1 students to apply for a greencard.
    6. Requires employers to legally make available copies of the H-1B petitions to their workers as well as all approval notices.

     

    It will take a long time for Congress to convene and the bills to traverse its way through committees, subcommittees and debates.  In other words, it will be a while before the bills have any actual impact on H-1B workers or U.S. employers but don’t be surprised by surprises.  This year is proving to be very eventful.

    ***

    Some of you might also be pondering the big question of what would happen if President Trump issues an Executive Order that impacts that the H-1B program.  How quickly would the program be revised?  Would salaries be impacted?  Would it impact this year’s H-1B lottery?  Want to learn more?  Stay tuned for an update by subscribing to our blog.

  • Alert: Travel Ban for Citizens of 7 Countries

    [Scroll down to read updates to this post – Travel Ban temporarily halted nationwide by Seattle Judge and upheld by the Ninth Circuit on appeal.]

    On Friday January 27, 2017, President Trump issued an Executive Order (EO), “Protecting the Nation from Foreign Terrorist Entry into the United States.”  *** Update: As of 1/30/2017  17:00 PST – The EO was only recently made available on the White House website, available here, despite its January 27, 2017 date.***

    The EO is meant to “protect our citizens from foreign nationals who intend to commit terrorist attacks in the United States” and “prevent the admission of foreign nationals who intend to exploit United States immigration laws for malevolent purposes.”  One of its provisions suspends the immigrant and nonimmigrant entry of nationals from certain designated countries for 90 days from the date of the order.  Designated countries, thus far, include Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen.

    The impact of this suspension means that individuals from those seven countries will not be allowed to enter the U.S. Reports from news organizations indicate the EO is impacting foreign travelers en route to the U.S.  The Department of Homeland Security has not issued any statements or guidance to the public to clarify the situation.

    The State Department posted instructions to embassies and consular posts worldwide to immediately suspend issuance of nonimmigrant and immigrant visas for nationals of Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen.  Customs and Border Protection (CBP) is preventing entry of foreign nationals, including U.S. greencard holders who are citizens of those seven countries from entering the U.S.

    INDIVIDUALS “FROM” IRAN, IRAQ, LIBYA, SOMALIA, SUDAN, SYRIA, AND YEMEN.

    Lawful Permanent Residents (LPR or green card holders), nonimmigrant visa holders, immigrant visa holders, refugees, derivative (family member) asylees, or those with Special Immigrant Visas (SIVs), have been allowed to enter the U.S. on a case-by-case basis – but reports from various organizations and immigration attorneys indicate otherwise.

    DUAL NATIONALS

    Individuals who are nationals from one or more of the designated seven countries who hold citizenship to another country may still be barred from entering the U.S.

    GREENCARD HOLDERS

    There are varying reports of individuals who are legal permanent residents who are citizens of any of the seven countries being denied entry into the U.S.  DHS is providing conflicting reports at various airports on whether they are enforcing the EO with regards to greencard holders.

    INDIVIDUALS DENIED ENTRY AS A RESULT OF THE EO

    Foreign Visitors attempting to enter the U.S. on a temporary visa arriving at U.S. ports of entry will be allowed to withdraw their application to enter the U.S.  They may return to their countries on their own accord.  Those who refuse will be deported (aka processed for expedited removal).

    UPDATED AS OF FEBRUARY 4, 2017 (16:00 PST)

    On February 9, 2017, the Ninth Circuit issued a denied the President’s appeal to reverse the temporary restraining order imposed by Judge Robart.  The decision allows the travel ban to be halted indefinitely, until the lower District Court can substantively rule on the merits of the case brought by the States of Washington and Minnesota.

    On February 4, 2017, The Department of Homeland Security announced that it has temporarily suspended all enforcement of the Travel Ban imposed by President Trump’s Executive Order as a result of Friday’s ruling by U.S. District Judge James Robart.  Airlines have reportedly been allowing passengers to board flights again.  The Department of State also announced that it had electronically reinstated any visas that were previously revoked as a result of the Travel Ban.

    On February 3, 2017, U.S. District Judge James Robart issued a ruling halting the enforcement of the Travel Bank imposed by President Trump’s Executive Order of January 27, 2017 in the case filed by the State of Washington against the President (at 1:03:00 of the video, text available here.)  The ruling is effective nationwide but temporary.

    On January 31, 2017, DHS Secretary John Kelly is walking back his earlier statements, “clarifying” that the DHS was in full communication with the White House on the EO.  Also, the State of Washington has filed a lawsuit against the President for constitutional violations by this EO.  Its lawsuit is supported by Amazon and Expedia.  California tech giants Google, Netflix and AirBnB also considering filing lawsuits.  Acting U.S. Attorney General Sally had indicated she would decline to enforce the EO in court but was quickly fired by President Trump for these public remarks.

    On January 30, 2017, WhiteHouse.Gov finally published the text of the EO.  There are reports that Greencard holders are being pressured to give up their greencards and sign immigration forms.  It is recommended that greencard holders consult with an immigration attorney before signing any documents presented by U.S. Customs officers; or in the alternative, to refuse to sign any documents to which they may lose their rights.

    On January 29, 2017, DHS Secretary John Kelly confirmed that all Customs Officers will respect the orders from the courts and will allow all greencard holders to enter the U.S. despite the travel ban for individuals from those seven countries in the form of a waiver.  This was published on January 30, 2017

    On January 28, 2017, a federal judge issued an emergency stay, which prevented a portion of the EO from being enforced by DHS Customs Officers.  Essentially, Customs Officers may not prevent refugees, holders of valid immigrant and nonimmigrant visas and other individuals from Iraq, Syria, Iran, Sudan, Libya, Somalia and Yemen legally authorized to enter the United States who were en route to the U.S. at the time the EO went into effect.  At least two similar temporary court orders were by Federal District Courts in Massachusetts and the Eastern District of Virginia.

    The travel ban remains in effect for the next 90 days unless challenged in court.

  • USCIS’ Parole for Entrepreneurs – Your Frequently Asked Questions

    Hurray for USCIS, who worked quickly to release the Final Rule for Parole for Entrepreneurs.  The rule is officially published on January 17, 2017 and will go live in 180 days – July 17, 2017.

    A few highlights and thoughts on the Final Rule before we dig into the common questions that I know are on your minds.

    Overall, USCIS was quite thorough in reviewing over 763 comments (including mine) received over a 45-day comment period.  It took USCIS about three months to review and issue the Final Rule.  USCIS lowered the threshold private investment amount from USD $345,000 to USD $250,000 and expounded on the “alternative” criteria in greater detail.  This was a sticky point on my comment so I’m glad USCIS indulged me.

    In sum, the Parole option will be attractive but only for a small number of entrepreneurs.  Many will not qualify because funding a startup can be tricky and very difficult.  Funding a startup with “qualified” investors is even trickier.  For the brave and lucky, it’s worth a shot.  The fact that the Entrepreneur is required to depart the U.S. (if they are already here), and then reenter the U.S. is inconvenient, but a necessary procedure.  Although USCIS declined to publish its applicant data (minus identifying information), it did take my comments under consideration.  I suspect that the annual number of applications will exceed the estimated 2,940 applicants, but the number of applicants approved will be much lower.

    Parole is but a salve until Congress commits to real meaningful immigration reform.  For now, here are some frequently asked questions (FAQs) about Parole for Entrepreneurs.  We’ll be hosting a webinar, open to all entrepreneurs, interested in learning more.  Sign up here.


    When will USCIS start accepting Parole Applications?

    The rule goes into effect, and USCIS will begin accepting applications on Monday, July 17, 2017.

    What Does Getting “Parole” Actually Mean for an Entrepreneur?

    Parole is the legal immigration term that allows an individual to enter the U.S., with the permission of USCIS, without having to go through the official process of obtaining a visa from the Department of State while bypassing the requirements applicable to Inadmissible Aliens.  Read about the difference between Parole and a Visa.

    I’m Already in the U.S. in Another Nonimmigrant Status; Must I Depart the U.S. and Reenter Seeking Parole?

    Yes, you must depart the U.S.  USCIS had indicated the rules for Parole require applicants to depart and then reenter.  Although USCIS is aware of the “Parole in Place” option, it declined to allow “Parole in Place” for Entrepreneurs.

    What Are the Limitations for Using Parole?

    Yes.  When entering the U.S. on Parole, an individual is not officially “admitted” to the U.S.  There is no “status” issued.  A Parole entry is a legal way to enter the U.S. but it is not considered an official admission to the U.S.  The individual must either renew their parole period prior to its expiration, or depart the U.S. before the parole period ends.  In this sense, travel is somewhat restricted during the parole period.   Entrepreneurs should not depart the U.S. in the middle of the parole period unless they are willing to reapply for Parole in order to reenter the U.S.

    How Does an Entrepreneur Qualify for Parole?

    The Final Rule outlines some changes from the Proposed Rule (released September 2016).  The update criteria are:

    1. Startup Entity must be formed within the last five (5) years
    2. Entrepreneur must own as least 10% of the startup
    3. Entrepreneur must play an active/central role in the startup’s operations (mere passive investor is not sufficient)
    4. No more than three (3) entrepreneurs for any one startup may apply for Parole
    5. The startup must have received significant funding from either:
      • A qualified Investor(s) of USD $250,000 or more, within 18 months immediately prior to application; or
      • Government grant of USD $100,000 or more, within 18 months immediately prior to application; or
      • Alternative criteria that the company will provide a significant public benefit to the U.S.
    What “Alternative Criteria” Can Be Used to Qualify for Parole?

    USCIS has indicated a number of factors, including, but not limited to:

    • The number of users or customers;
    • The revenue generated by the start-up entity;
    • The social impact of the start-up entity;
    • The national scope of the start-up entity;
    • The positive effects on the start-up entity’s locality or region;
    • The success using alternative funding platforms, including crowdfunding platforms;
    • The applicant’s academic degrees;
    • The applicant’s prior success in operating start-up entities as demonstrated by patented innovations, annual revenue, job creation, or other factors; or,
    • The selection of the start-up entity to participate in one or more established and reputable start-up accelerators or incubators.
    Can You Renew Parole for Entrepreneurs?

    Yes, but the total amount of time allotted for one entrepreneur is a total of five (5) years, from the date the first parole period was initially issued.  Any time that is spent outside the U.S. is counted as well.

    What Are the Criteria to Renew a Parole for an Entrepreneur?

    In addition to submitting the appropriate documentation and application fees timely, entrepreneurs must satisfy these criteria:

    • The entrepreneur must continue to operate the startup in an active role
    • The entrepreneur must own at least 5% of the startup
    • The startup must have sustained growth during the Parole period, via
      • Having received additional investments or grants (additional USD $500,000)
      • Generate revenue at least USD $500,000
      • Created at least five (5) full-time jobs in the U.S.
      • Or alternatively, provided a substantial benefit to U.S.
    Can Family Members Apply for Parole as Dependents?

    Yes.  Spouses and unmarried children under 21 years may accompany the Entrepreneur to the U.S. on Parole.  Spouses and children must also submit in advance of entering the U.S., their own applications for Parole.

    May Family Members Work While on Parole?

    After entry into the U.S., spouses may apply for a work permit but children are not eligible to apply for a work permit.

    What Happens When Your Parole Ends?

    Entrepreneurs may extend their parole period for an additional 2.5 years (30 months).  After that period, they must depart the U.S.  Entrepreneurs may apply for a non-immigrant work visa, such as an E-2, E-3, H-1B, O-1 or TN, if eligible.  A departure is most certainly required at some point in the future.

    What Documents Are Needed to Submit a Parole Application as an Entrepreneur?

    USCIS has designated a new form, Form I-941, Application for Entrepreneur Parole.  (This form should not be confused with IRS Form I-941, Employer’s Quarterly Federal Tax Returns.)  Although a draft form was released in September 2016, due to the recent updates in the Final Rule, the new form has not yet been finalized.  Once the form is finalized, it will be available online at USCIS Forms under Form I-941.

    Additional, supporting documentation regarding each criteria will be needed along with an application fee of $1,200 and biometrics fee of $85.

    Additional fees and forms will apply for dependent spouses and children.

    What If I Have More Questions?

    We’re hosting a webinar very soon to answer additional questions on Parole for Entrepreneurs.  Click here to sign up for more information on how to attend the free webinar.

  • The New Dhanasar Standard for National Interest Waiver Greencard

    The Administrative Appeals Office, the office that reviews denials rendered by U.S. Citizenship & Immigration Service (USCIS) gave us a surprising parting gift in 2016 by deciding on a case involving the National Interest Waiver greencard category.

    What is the National Interest Waiver (NIW)?

    It’s one of only a handful of ways for a foreign national who has an advanced degree (master’s degree or higher) to procure a greencard without employer sponsorship and without having an employer conduct a test of the labor market.  It is the second preference category reserved for individuals who want to self-petition for a greencard.  While an actual employment offer is not necessary, it’s extremely helpful in demonstrating the applicant will continue to work in their field of expertise.

    What Happened Recently?

    The NIW standard of eligibility was recently revised by the Administrative Appeals Office (AAO) in late December 2016.  While most decisions from the AAO seldom receive this much attention, the case, Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016), is special because the AAO certified the decision as a precedent.  This meant that the new criteria outlined in this case shall be the new standard in which the government must review all NIW petitions moving forward.  The previous eligibility criteria that was established in the 1998 case (Matter of New York State Dept. of Transportation, 22 I&N Dec. 215 (Comm. 1998) (NYSDOT)) was officially no longer valid.

    Why Was the Eligibility Standard Changed?

    The previous eligibility standards in NYSDOT were “ripe for revision.”  The new framework detailed in Matter of Dhanasar was meant to provide greater clarity, apply flexibility in both employer-sponsored and self-sponsor petitions, and “better advance the purpose of the broad discretionary waiver provision to benefit the United States.”  In other words, the previous framework was too confusing, vague and difficult for employers and individuals to understand how they were supposed to satisfy each criterion.  Under this new framework, the following three prongs are required:

    1) Foreign national’s proposed endeavor has substantial merit and national importance

    2) Foreign national is well positioned to advance the proposed endeavor

    3) The U.S. would benefit by waiving the job offer requirement

    What Is the Impact to Foreign Nationals?

    In practical terms, what does Matter of Dhanasar actually mean for a foreign national?  For most foreign nationals, it means that it will be far easier to understand what types of documents to submit to demonstrate national interest.  The guideposts are much clearer, yet still broad enough to account for potentially all fields of endeavor.  For example, an entrepreneur in the U.S. developing a diabetes monitoring application that syncs with hospital and doctor records can present an equally cogent and compelling case as an immunologist from a leading research university.

    How does this help nationals born in China or India?

    If you’ve read this far, you’re probably wondering how this revised framework helps Chinese or Indian nationals, considering the backlog for an EB-2 category is still at historic lengths.  With a more streamlined framework, foreign nationals from all countries can benefit if their case is approved with greater ease and speed.  An approved I-140 petition means the Chinese or Indian national is eligible to change jobs without the need for their future employer to sponsor them for a greencard.  They retain their I-140 priority date and it’s only a matter of time before they can take that final step to apply for a greencard.

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  • Top 10 Immigration Updates for January 2017

    It’s a new year and there are changes, big and small, on the horizon for employers and foreign nationals alike.  Some of these changes are mundane and others will have rippling effects across the board for all folks who practice immigration law or are impacted by U.S. immigration policies.  Our top 10 immigration updates for January, and beyond ….

    1. DHS Responds to Congress

    On December 5, 2016, California Congresswoman Judy Chu inquired of President Obama how the Department of Homeland Security intended to handle the data collected from all DACA applicants in light of the new administration’s indication for mass deportation. On January 3, 2017, DHS Secretary Jeh Johnson responded, reassuring members of Congress that “representations made by the U.S. government, upon which DACA applicants most assuredly relied, must continue to be honored.”  Congresswoman Chu’s recent response to the new letter continues to ask that President Obama issue an executive order before January 20, 2017 to protect DACA recipients.

    2. Form I-9

    USCIS issued revisions last November to the Form I-9, making it the 12th revision since its debut in 1987. The latest, revised version, Updated 11/14/2016, must be used starting January 22, 2017 and thereafter.  You can download the “smart”, fillable PDF or a regular, paper version here.  Or, better yet, if your company is smart and savvy, you can go the route of the electronic I-9 form using software; but choose your I-9 software wisely since non-compliant I-9 software can get your company in more hot water.

    3. New Rules for Employment-Based VISAS

    On November 18, 2016, USCIS issued a Final Rule, as part of President Obama’s executive action to improve efficiencies in the immigration system.  The rule goes into effect on January 17, 2017 and effectively amends USCIS regulations for employment-based visas.  In sum, the new regulations are a benefit to employers and foreign nationals.  You can read a more specific analysis of the final rule here.

    4. New USCIS Forms

    USCIS announced updates to numerous forms back in December, giving employers and foreign nationals little warning. Fortunately, USCIS extended its effective date to February 21, 2017.  If you’re submitting immigration applications or petitions, make sure the most updated form is submitted.  Only updated versions will be acceptable starting February 21, 2017.  You can visit the USCIS Forms page to double check if the version being used is the most update version.

    5. Bills, bills, bills

    You’ll likely see many more immigration-related bills introduced by various Congress members this year – because optics are important.  We’ll see a patchwork of bills, bills and more bills.

    • HR 170 was recently re-introduced (formerly HR 5801) by Congressman Darrell Issa and others. It impacts only H-1B dependent employers.  (Read my analysis on Quora here.)
    • Congresswoman Zoe Lofgren indicated she might be introducing another H-1B bill of her own.
    • The Bridge Act was introduced by Senator Durbin and others aimed at protecting DACA recipients from being deported once Trump takes over.

    6. Accreditation Issues for STEM OPT Students

    On December 14, 2016, the U.S. Dept. of Education announced it was no longer recognizing the Accrediting Council for Independent Colleges and Schools (ACICS) as an accrediting agency.  More than 160,000 international students are impacted and for those students who were planning on extending their OPT work authorization based on STEM extensions, this might pose a problem because their school must maintain its accreditation at the time the student applies for their STEM extension.  Read more here.

    7. USCIS Case Processing

    It’s long overdue but USCIS announced recently that starting this year, it will be more transparent with how it indicates its case processing times.

    Starting on Jan. 4, 2017, we will post processing times using a specific date format rather than weeks or months. This is the first step in providing processing times that are timelier and easier to understand.

    We post case processing times on our website as a guide for when to inquire (service request) about a pending case. For the last several years, we have posted case processing times using two different formats:

    • For cases that were within our production goals, we listed processing times in weeks or months.
    • For cases that were outside of our production goals, we listed processing times with a specific date.

    The practical implications for the update to the case processing is minimal.  If USCIS could provide an update on a monthly basis, then it may have a bigger impact.

    8. AAO Case Processing

    In a similar vein, The USCIS Administrative Appeals Office (this is the office that reviews all cases that have been appealed from a USCIS decision), recently announced that it too would present its processing in a date format, rather than average completion times.

    9. New National INTEREST WAIVER STANDARD

    On December 29, 2016, the AAO issued a precedent decision entirely revising the criteria in which to judge a national interest waiver, clarifying and turning the “NIW” option for the a greencard much more attractive.  The case was argued by attorney Gerry Chapman of North Carolina, long-time immigration expert, and a friend. You can read the decision here.  The previous standard that was established in the Matter of NYSDOT case was vacated and superseded by Matter of Dhanasar.  The new National Interest Waiver criteria will now require the petitioner to prove the following:

    (1) that the foreign national’s proposed endeavor has both substantial merit and national importance;

    (2) that he or she is well positioned to advance the proposed endeavor; and

    (3) that, on balance, it would be beneficial to the United States to waive the job offer and labor certification requirements.

    10. Immigration Reform

    One way or another, it’s happening.  We don’t know the full scope yet and it may come in piecemeal format, but be assured changes are brewing…. Subscribe here to stay tuned…

  • Summary of Final Rule for Employment-Based Visa Programs Issued by USCIS on November 18, 2016

    USCIS recently issued a Final Rule on its employment-based immigrant and non-immigrant visa programs.  The Final Rule becomes effective on January 17, 2017.  Here are some highlights of the final rule for employers and foreign nationals:

    1. Priority Dates

    Clarified that priority dates are issued at the time it was properly filed. Also indicates that for retention of priority dates from EB-1, EB-2 or EB-3 petitions, employees may now use previously issued priority dates for porting to another employer. Finally, priority dates cannot be transferred to other individuals.

    2. Employment Authorization

    Employees in E-3, H-1B, H-1B1, O-1 and L-1 nonimmigrant status with an approved EB-1, EB-2 or EB-3 I-140 petition may request employment authorization for up to one year, if the priority date is not current, under compelling cases. Spouses and children may also apply. Renewals may also be permitted for both the principal employee and his/her family members.

    3. Revocations

    Approved I-140 petitions will no longer be automatically revoked by USCIS based on a withdrawal from the Petitioner, if the I-140 has been approved for 180 days or more. So long as there was no fraud, material misrepresentation or other invalidating purposes, the approved I-140 petition will be valid for job portability, retention of priority dates and extensions under AC21.

    4. Grace Periods

    E-1, E-2, E-3, H-1B, L-1, and TN nationals and their dependents now get a 10-day grace period. For those holding E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, and TN status whose employment has ended, they may receive a grace period of up to 60 days.

    5. Licensure

    For those H-1B applicants stuck in a catch-22 who cannot obtain a license to engage in the relevant occupation because of a lack of social security number or work authorization, DHS will issue the H-1B petition for up to one-year to facilitate the licensure rule.

    6. H-1B Cap Exempt Employers

    Clear definition for which organizations qualify as an “institution of higher education” and “related or affiliated nonprofit entity.”

    7. H-1B Extensions based on AC21

    Employees may request an extension beyond the six years of H-1B, in one-year increments, if the underlying labor certification application or employment-based immigrant visa petition has been pending for more than one-year. Extension requests may be submitted six-months in advance of the start date. The employee must file for their greencard applications within one year from the date the priority date is current, or they risk losing the ability to seek future H-1B extensions in one-year increments. Employees need not be in H-1B status to be eligible for extending their H-1B for three additional years beyond the six years.

    8. Retaliation

    For employees who reported LCA violations and switched employers, the new employer may attach documentation of these extraordinary circumstances to mitigate failure by the employee to maintain status at the prior job.

    9. Proof of Valid Job Offer

    All greencard applicants with an approved I-140 petition must prove their job offer is valid and pending at the time the application is reviewed by a USCIS officer.

    10. EAD Automatic Extensions

    Applicants of timely filed extensions for EADs requesting the same EAD category, unencumbered by other dependent status petitions or applications, will receive an automatic extension of their EADs for 180 days from the date of the initial EAD expiration. If the EAD application is denied, the 180 days is terminated. USCIS will issue a Notice of Action (Form I-797) granting an additional 180 days employment authorization. This document, along with the expired EAD, may be used as proof of work authorization for Form I- 9 employment verification. Employers should reverify upon expiration of the 180 days. USCIS will no longer be bound by the rule to issue EADs within 90 days.

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    The above summary is for educational purposes only and is not intended to be legal advice. Please be sure to touch base with an experienced immigration attorney for a discussion as to how the new rules may impact you or your company. Subscribe to our blog for more updates and articles!

  • Implications of Retired General John Kelly’s DHS Secretary Nomination

    On December 7, 2016, President-Elect Trump unofficially announced retired Marine General John Kelly as his nominee for the cabinet position of Secretary of the Department Homeland Security (DHS).  Who is John Kelly and what does this mean for immigration in the U.S. for the next four years if he is confirmed as the new Secretary?

    Who Is General John Kelly?

    General John Kelly served in the Marines for over 40 years.  He is a Gold-Star Father who lost his youngest son, Marine 1st Lt. Robert Kelly in 2010 while in Afghanistan during combat.  General Kelly’s last post was serving as U.S. Southern Command in 2012 managing security threats from South and Central America.  He’s also been at odds publicly with President Obama on the handling of Guantánamo Bay operations.

    Based on his history of managing security threats for the U.S. Southern Command, General Kelly is described as vigilant and familiar with the practical threats posed from the south.  He’s pursued strategies described as “soft power” rather than imposing overt military force on security threats like organized crime and drugs to protect the southern borders.  It is this expertise from which General Kelly can draw if he heads up the DHS.

    How Will General John Kelly Lead the DHS?

    The good news is that reports indicate General Kelly has been in contact with the current Secretary of Homeland Security, Jeh Johnson.  The bad news is if the General is confirmed, he’ll inherit a troubled agency comprised of seven different sub-agencies.

    Customs and Border Protection

    One of the promises Trump campaigned on was to build (or extend) a wall between the U.S. and Mexico.  As Secretary, General Kelly will have to explore how this campaign promise can be accomplished.  Which stretches of the U.S.-Mexico border will receive a “wall”?  The Customs and Border Protection agency has been faced with sagging morale and additional walls without strategic interior enforcement efforts may be an exercise in futility.

    Immigration and Customs Enforcement

    In his acceptance for the nomination, General Kelly said

    The American people voted in this election to stop terrorism, take back sovereignty at our borders, and put a stop to political correctness that for too long has dictated our approach to national security. I will tackle those issues with a seriousness of purpose and a deep respect for our laws and Constitution.

    While it is premature to be speculating, it does beg the question where a Muslim Registry would fit into the constitutionality of the laws of this country. Does General Kelly and President-Elect Trump see eye-to-eye with an ethnic registry?  When it comes to national security, would prosecutorial discretion have a place when Immigration and Customs Enforcement is out arresting individuals?  Would our deserts be propagated with an influx of detention centers as a means to house the millions of detained immigrants?  These are the issues General Kelly will inherit and must answer to voters and taxpayers.

    Immigration Benefits and Practices

    Perhaps, most curiously on our readers’ minds are how will existing immigration policies change, if at all, under Secretary Kelly?

    If the General is focused on border security and national security, will he have time to review policies that improve avenues for entrepreneurship; make it easier for foreign students and scholars to obtain greencards; allow employers wider latitude to recruit foreign workers when they have difficulty filling those positions with U.S. workers; and what will become of the nearly one million DACA recipients who may be left unemployed if DACA is disbanded?

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    Stay tuned for future updates on the immigration and how it might impact you, your company or your startup.  Subscribe to this blog to stay updated. Share this article with your friends or colleagues.