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‘Hire American’ executive order

End of days—or much ado about nothing?

The visa rules that allow US employers to temporarily hire certain foreign professionals is either going to change dramatically…or not, and there will have been much ado about nothing.

President Trump signed the “Buy American and Hire American” Executive Order (EO) on April 18, 2017. This EO does not change any existing law or regulation. It merely calls on the relevant federal agencies to make changes. This means employers can anticipate more, not less, government regulation and new agency policies, limited by US immigration law made by Congress.

Here is the text of the immigration-related components of the EO:

Sec. 5. Ensuring the Integrity of the Immigration System in Order to “Hire American.” (a) In order to advance the policy outlined in section 2(b) of this order, the Secretary of State, the Attorney General, the Secretary of Labor, and the Secretary of Homeland Security shall, as soon as practicable, and consistent with applicable law, propose new rules and issue new guidance, to supersede or revise previous rules and guidance if appropriate, to protect the interests of United States workers in the administration of our immigration system, including through the prevention of fraud or abuse.

(b) In order to promote the proper functioning of the H-1B visa program, the Secretary of State, the Attorney General, the Secretary of Labor, and the Secretary of Homeland Security shall, as soon as practicable, suggest reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.

It is clear that the EO makes no new rule or change in law, unlike previous EOs like the travel bans. This EO merely instructs the relevant agencies to propose new rules and issue guidance, if appropriate, with the stated goal of protecting US workers and preventing fraud/abuse and suggesting H-1B reforms.

With so little information in the EO, what can employers expect. Limited insights can be gleamed from the backgrounder issued the night before this EO was issued, when the White House held a press briefing.

Enforcement

The EO merely instructs the agencies to issue proposals and guidance to prevent fraud or abuse. The backgrounder does not do much more than explain that the Administration seeks the strict enforcement of all laws governing entry into the US of foreign workers. The EO calls on the Departments of Labor, Justice, Homeland Security and State to take prompt action to crack down on fraud and abuse. The backgrounder states:

And then again, you add that on top of the across-the-board reform process for guest worker and visa programs in general to make sure that they’re strictly complying with all the rules, laws, and protections for American workers, again, which there are many, but there hasn’t been this kind of systematic review. And this is something that the President, if you look, actually promised that he would have the Department of Labor go and do this kind of systematic review and take these kinds of actions.

We will monitor agency actions carefully to see how this develops, but employers are well advised to review the immigration-related records keeping and compliance systems. Annual affirmative audits and trainings are best practices that the Immigration and Customs Enforcement agency looks to when considering whether to reduce fines and penalties for violators. Employers are well-advised to consult with counsel on what steps can be chlamydia and pregnancy – what you need to know | ohnerezeptfreikaufchlamydia in pregnancy treating chlamydia during pregnancy. … to treat chlamydia in pregnancy, common antibiotics such as azithromycin, … taken now, as well as expected changes that can be planned for.

H-1B visa random selection and wages

The EO instructs these agencies to suggest reforms to ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries. The backgrounder says that these agencies are expected to report back on proposed ways to change how new H-1B visa petitions are allocated.

Existing rules allocate the limited annual supply of new H-1B visa petitions for most US employers on a random-selection basis. The EO suggests that the foreign worker’s skills and compensation be taken into consideration. Ironically, this would give preference to requests from employers who pay foreign workers more than the average paid to Americans.

The backgrounder acknowledges that some immigration changes can only be made by Congress. Just like the Obama Administration, however, the Trump Administration seems willing to bypass Congress and act unilaterally and not wait for Congress to act.

From the backgrounder:

But you could be looking at things on the administrative side, like increasing fees for H1B visas.  You could be looking at things like if we could adjust the wage scale—a more honest reflection of what the prevailing wages actually are in these fields. Obviously, taking a more vigorous stance, which various—in the Department of Justice do with respect to enforcing gross and egregious violations of the H1B program. You could see potential—and again, we’ll have to get a full legal analysis and review from all the departments, but right now the lottery system disadvantages master’s degree holders. There’s ways that you could adjust the lottery system to give master’s degree holders a better chance of getting H1Bs relative to bachelor’s degree holders. There’s a lot of possible reforms that you could do administratively in addition to a suite of legislative actions.  

There is no change in the H-1B random selection process, which is already concluded for fiscal year 2018. Changes can reasonably be anticipated for fiscal year 2019 filings in April 2018. What skills, wage offers, or other factors will impact the likelihood of selection remains to be determinedassuming that the status quo changes at all.

We will continue to share more information and analysis as the law evolves.

The full text of the EO is published on the White House web site; click here to read the backgrounder press release. To read the President’s remarks on signing the EO click here.

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‘Hire American’ executive order

Travel ban executive order – the saga continues

The US Departments of State and Homeland Security both issued statements on February 6, 2017, confirming that the government has suspended the implementation of key provisions of President Trump’s travel ban on nationals from seven Muslim-majority countries, and that visas that had been provisionally revoked are now valid for travel and may be used, once again, to come to the US, subject to the normal laws and procedures that existed prior to the President Trump’s executive order dated January 27, 2017.

This action comes as a result of a Ninth Circuit Court of Appeals decision in State of Washington and State of Minnesota v. Trump, denying a US Department of Justice request for an immediate stay of a nationwide injunction granted by a US federal district court judge in Seattle in response to Washington State’s request for a temporary restraining order immediately halting implementation and enforcement of the immigration ban.

The EO initially barred the entry to the United States of lawful permanent residents with green cards, and imposes a 90-day suspension of admission for immigrant and nonimmigrant visa holders, and refugees and passport holders from the seven countries. Soon thereafter, the Department of State issued an urgent notice suspending visa issuance to citizens of those countries. The EO also suspended the resettlement of refugees from all countries to the US for 120 days, and bans Syrian refugees indefinitely.

Previous injunctions had been issued in federal courts in Massachusetts and New York. Those orders temporarily enjoined federal agencies from removing people with approved refugee applications, valid visas and the nationals from the seven Muslim countries. The Seattle court’s decision is the broadest and has the largest impact.

Citizens from these countries are impacted

Nationals from the following countries are detrimentally impacted:

  • Iran
  • Iraq
  • Libya
  • Somalia
  • Sudan
  • Syria
  • Yemen

The EO does not apply to citizens of other countries who merely visited the listed countries. Further, the US Customs and Border Protection Agency has stated that the EO does not apply to citizens of these seven countries, if they are dual citizens and use the passport of a non-affected country to enter the US.

Travel guidance

Nationals from the seven listed countries, including dual citizens traveling with the passport of another country and US permanent residents, may wish to delay travel to the US until the details of the implementation of the EO are more clear, even if they already hold a visa to enter the United States. If in the United States already, they may wish to defer departure as they may not be allowed to return or they may find themselves going through a more lengthy than usual secondary inspection on arrival in the US. There are also reports of airline personnel being understandably confused regarding the status of the EO, with resulting inconvenience to travelers.

Background

On February 4, President Trump tweeted the following about the Hon. James L. Robart, the district court judge who issued the nationwide order. “The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!”

Criticism of the tweet and the EO was immediate and widespread. Senator Patrick Leahy (D-VT) said, “The President’s hostility toward the rule of law is not just embarrassing, it is dangerous. He seems intent on precipitating a constitutional crisis.” Senators John McCain (R-AZ) and Lindsey Graham (R-SC) said: “We fear this executive order will become a self-inflicted wound in the fight against terrorism.”

Broad media coverage of the confusion caused by the uncertainty surrounding the EO’s fate continues. Dentons continues to receive emails and calls from employers who are considering cancelling all travel for employees carrying passports from the impacted countries, including dual citizens and US lawful permanent residents. Similar concerns have been voiced by citizens of many countries that are not listed in the EO but are worried that their country might be next. Due to the reciprocal nature of diplomatic relations, it is likely that US passport holders traveling to the seven countries will experience similar difficulties upon their arrival. Iran, for its part, has said, it would stop US citizens entering the country in retaliation to Washington’s visa ban.

Dentons will issue further information as it becomes available.

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Travel ban executive order – the saga continues

Entry to the United States barred for certain passport holders?!

US President Donald Trump issued an executive order delaying the entry to the United States of lawful permanent residents with green cards, immigrant and nonimmigrant visa holders, refugees and passport holders from seven countries. The order, dated January 27, 2017, became effective immediately. Soon thereafter, the US Department of State issued an urgent notice suspending visa issuance to citizens of those countries.

On January 28, 2017, injunctions were issued in federal courts in Massachusetts and New York. The orders enjoin federal agencies from removing people with approved refugee applications, valid visas and others from the seven countries.

How the government is reacting

In a January 29, 2017, press release, the US Department of Homeland Security (DHS) stated that it will continue to enforce all of President Trump’s executive orders. Later that same day, the US Citizenship and Immigration Services (USCIS) agency, which is part of DHS, issued a statement deeming the entry of lawful permanent residents to be in the national interest. The result is to allow lawful permanent residents to return to their homes in the US, absent significant derogatory information indicating a serious threat to public safety and welfare.

Citizens from these countries are impacted

Nationals from the following seven countries are detrimentally impacted:

  • Iran
  • Iraq
  • Libya
  • Somalia
  • Sudan
  • Syria
  • Yemen

The order does not apply to citizens of other countries who merely visited the listed countries.

Travel Guidance

Nationals from the seven listed countries, including dual citizens traveling https://www.viagrapascherfr.com/comment-se-procurer-du-viagra-en-belgique/ with the passport of another country, may wish to delay travel to the United States until the details of the implementation of the executive order is more clear even if they already hold a visa to enter the United States. If in the United States already, they may wish to defer departure.

Background

The executive order is reported to have been issued without advance consultation with the agencies charged with its implementation, including DHS and the Department of State.

President Trump stated on January 28 that the travel ban is “working out very nicely.”

That said, there is broad media coverage of the widespread confusion that resulted, not only in the general public, but also at airports, airlines, border crossings, etc. There are reports of detentions of new arrivals at airports and public protest in many American cities. I have had a number of emails and calls from client employers canceling travel for employees carrying passports from the impacted countries, including dual citizens and United States lawful permanent residents. Due to the reciprocal nature of diplomatic relations, it is likely that US passport holders traveling to these seven countries will experience similar difficulties.

The situation remains very fluid. Press Secretary Reince Priebus stated on January 29, 2017, that the executive order will no longer apply to lawful permanent residents, and the USCIS issued its confirming statement mentioned above.

Dentons will issue further information as it becomes available.

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Entry to the United States barred for certain passport holders?!

Important new regulations for immigrant workers

The US Citizenship and Immigration Services (USCIS) published important new regulations for immigrant workers on November 18, 2016. The regulations become effective January 17, 2017.

Summary

The agency has amended its regulations to provide benefits to those in the employment-based first (EB1), second (EB2) and third (EB3) immigrant visa categories and their employers. The agency’s stated goal is to improve processes and increase certainty for employers seeking to employ and retain such workers, provide greater job flexibility for those workers, and clarify relevant Department of Homeland Security (DHS) policies.

New Rules

There are a number of new regulations, some of which adopt current agency policy and others that are new. The following are some of the most important ones.

For occupations in which a license is required (e.g., doctor, lawyer, etc.), the USCIS will grant the H1B visa for up to one year, if the only obstacle to license issuance is lack of a Social Security number.

For the purpose of counting the number of days spent in the US in H1B visa status towards the normal six-year limit, the USCIS will consider any twenty-four-hour period spent outside the US as one day, regardless of the reason for the absence.

A former H1B visa holder who is no longer in H1B visa status, and regardless of whether he or she is in the US or abroad, may seek an exemption from the normal six-year limit. The foreign worker must be otherwise eligible and the beneficiary of an approved EB1, EB2 or EB3 petition for whom the visa is not current under the quota system as of the date that the H1B petition is filed.

Lengthy adjudication delays of permanent resident status will not support an extension of H1B status beyond the normal six-year limit if the immigrant fails to file for permanent residence or an immigrant visa within one year of the visa becoming current under the quota system. If the visa becomes unavailable again, a new one-year period will be afforded when an immigrant visa again becomes available. The USCIS may also in its discretion excuse failure to timely file upon a showing that the failure was due to circumstances beyond the immigrant’s control.

Credible documentation that an H1B visa worker faced retaliatory action from the sponsoring employer regarding a violation of that employer’s H1B labor condition application obligations may be considered by the USCIS as grounds to grant an extension of H1B stay, or a change of status to another visa classification, notwithstanding the worker’s loss of, or failure to maintain, his or her H1B status.

The definition of “same occupational classification” for purposes of establishing the portability of immigrants to new jobs, has been modified to mean an occupation that resembles in every https://www.acheterviagrafr24.com/achat-viagra-en-ligne-sans-ordonnance/ relevant respect the occupation for which the EB petition was originally granted. “Similar occupational classification” is now defined as an occupation that shares essential qualities or has a marked resemblance or likeness with the original occupation. This guidance is similar to what agency memoranda have already stated.

Employment eligibility verification regulations are amended to authorize employers to accept as proof of employment eligibility Form I-797C and also state that the original employment authorization document is automatically extended for up to 180 days. This is a new rule and will help employers.

Background

The US limits the number of employment-based immigrants annually, by both visa category and country of birth. The quota allocation set in 1990 has never been increased. The annual supply for most categories and countries of birth seems sufficient to prevent lengthy waiting periods; the greatest source of delay are USCIS and Department of Labor (DOL) agency processing times.

The most significant exceptions are for immigrants born in India and mainland China. So many employment-based immigrants born in those two countries are in the queue that waiting periods of for most immigrant visa categories now are many years.

Employer-sponsored EB visas tend to be for specific jobs, at specific work sites, with stated duties and compensation. In general, sponsoring employers and immigrant workers must intend https://www.acheterviagrafr24.com/achat-viagra-en-ligne-suisse/ after immigration is complete to work in the same job at the same work site with the same duties for the same (or similar) compensation.

Congress addressed this problem in the American Competitiveness in the 21st Century Act of 2000 (AC21). The USCIS (and its predecessor, the Immigration and Naturalization Service) issued implementing policy guidance, which has been clarified and revised over the years.

The lengthy processing delays were also a problem for H1B professional workers, since there is normally a limit of only six years of status. AC21 provided for extensions beyond the six-year limit.

The EB1 immigrant visa category includes individuals of extraordinary ability, outstanding professors and researchers, and multinational managers and executives. The EB2 category is for professionals with advanced degrees and individuals with exceptional ability. The EB3 category is for professionals and skilled workers, while the EB3W category is for other workers in short supply.

Read the full text of the new regulations here.

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Important new regulations for immigrant workers

USCIS fee changes, effective December 23, 2016

Shocked

The Department of Homeland Security (DHS) has published a final rule adjusting the fee schedule for many immigration applications and petitions processed by US Citizenship and Immigration Services (USCIS). The new fee schedule will become effective on December 23, 2016. Applications and petitions postmarked or filed on or after that date must include the new fees.

As determined by DHS, adjusting the fee schedule is necessary to fully recover costs and maintain adequate service. This is the first adjustment in the last six years.

Under this final rule, DHS will increase fees by a weighted average of 21 percent; establish a new fee of $3,035, covering USCIS costs related to processing the employment-based immigrant visa, fifth preference (EB-5) Annual Certification of Regional Center, Form I-924A; establish a three-level fee for the Application for Naturalization, Form N-400; and remove regulatory provisions that prevent USCIS from rejecting an immigration or naturalization benefit request paid with a dishonored check or lacking the required biometric services fee until the remitter has been provided an opportunity to correct the deficient payment.

While the fees for some petitions will remain the same, others will see significant increases. The highest increases are for the visas used by American businesses to bring skilled workers to the United States, immigrant investors creating jobs for Americans and immigrants acknowledged to have extraordinary ability.

The new fee schedule includes increased fee for the Form I-129 to $460 from $325. Form I-129 used for the most common work visas, including H-1B professional, O-1 extraordinary ability, and L-1 intracompany transfer visas, as http://www.cialispharmaciefr24.com/le-tadalafil/ well as E-1 treaty trader, E-2 treaty investor and E-3/FTA H-1B1/TN treaty professional visas processed in the United States rather than at an American consular post or preflight inspection unit abroad.

Fees for the Form I-140 used for EB-1, EB-2 and EB-3 employment-based immigrant visas were increased to $700 from $580.

One of the highest increases is for the Form I-526 required for an EB-5 immigrant investor creating at least ten jobs for American workers. Form I-526 fee was increased to an outrageous $3,675 from $1,500.

Family-based immigration fees are better, with only a 27 percent increase, to $535 from $420, for the Form I-130 used by US citizens and lawful permanent residents to sponsor certain close relatives to immigrate. The Form I-485 required for immigrants who process through the USCIS instead of an American consular post abroad was increased only slightly, to $1,140 from $985.

For a full list of the new fees please visit the USCIS website.

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USCIS fee changes, effective December 23, 2016

US proposes new immigration status for international entrepreneurs

Start up

In addition to the many legal solutions already in place to make visas and other immigration opportunities available to qualified entrepreneurs, there will be an additional way to allow entrepreneurs to live and work in the United States for up to two years if a new rule proposed by the US Citizenship and Immigration Services (USCIS) on August 26, 2016, goes into effect. Savvy entrepreneurs will continue to make use of existing law whenever possible, but the proposed International Entrepreneur Rule could create a much needed important new immigration benefit.

The key provisions of the new rule include:

  • DHS may grant the parole in the exercise of its discretionary authority on a case-by-case basis if the evidence shows that the applicant’s presence in the US will provide a significant public benefit;
  • The applicant must submit biometric information and may be denied if there is any derogatory information, such as criminal activity or national security concerns; and
  • The startup must have been formed in the US within the past three years; and
  • The startup must have substantial and demonstrated potential for rapid business growth and job creation, as shown by any of the following:
    • At least $345,000 in capital investment from certain qualified investor(s) with established records of successful investments within 365 days immediately preceding the parole application; or
    • Receipt of significant awards or grants of at least $100,000 from certain federal, state or local government entities within 365 days immediately preceding the parole application; or
    • Partial satisfaction of one or both of the above, plus other reliable and compelling evidence of the startup’s substantial potential for rapid growth and job creation.
  • The applicant must have an ownership interest in the startup of at least 15% and must maintain at least 10% ownership at all times during the parole; and
  • The applicant must have a role that is both active and central to operations that uses the applicant’s knowledge, skills or experience to substantially assist the startup.

“Qualified investor” includes an investor who is a US citizen or lawful permanent resident, or any organization located in the US that operates through a legal entity organized under the laws of the US or any state and is majority owned and controlled, directly or indirectly, by US citizens and residents, but only if such investor regularly makes substantial investments in startups that subsequently exhibit substantial growth in terms of revenue or jobs creation. Further, the investor must, during the five preceding years:

  • Have made investments in startups, in exchange for equity or convertible debt, in at least three separate calendar years comprising a total of not less than $1 million; and
  • At least two of these startups must each have:
    • Created at least five qualified jobs of at least 35 hours per week, in the US and for a US citizen, resident or other immigrant (not including the applicant and the applicant’s parent, spouse, sibling, son or daughter); or
    • Generated at least $500,000 in revenue with average annualized revenue growth of at least 20%.

Not counted as part of the $345,000 investment requirement is any investment by the applicant, or the applicant’s parents, spouse, brother, sister, son or daughter, or any company in which the applicant or those relatives, directly or indirectly, has an ownership interest.

The applicant entrepreneur and his or her spouse and children would be granted an initial stay of up to two years. An extension of the initial stay of up to three additional years is available, but only if the applicant and the startup continue to provide a significant public benefit as shown by substantial increases in capital investment, revenue or job creation. DHS’s proposed additional requirements for the extension generally require additional qualifying investment, creation of at least 10 qualified jobs, or generation of $500,000 in annual revenue, and annual revenue growth averaging 20%.

The proposed rule expressly states that there is no appeal from a denial, nor will the agency consider a motion to reopen or reconsider a denial decision.

The proposed new rule is not any type of immigrant visa or green card, nor is it a new type of temporary visa. Rather, the DHS is utilizing its discretionary parole authority As a way to authorize qualified foreign nationals to travel in and out of the US without a visa. A grant of parole does not confer immigrant status and does not allow a change to another temporary visa status within the US or an adjustment to a permanent resident (green card) status within the US. Parolees are not automatically authorized for employment in the US, but may apply to the USCIS for an Employment Authorization Document (EAD).

Parole authority to allow temporary entry to the US is not new. It is often used for humanitarian reasons, such as to allow aliens to receive urgent medical treatment, to visit a seriously ill American relative or attend an American relative’s funeral, to cooperate with law enforcement, to participate in a voluntary disaster relief effort, etc. However, given the unusual application of the parole authority to international entrepreneurs instead of creating a new visa classification through legislative action and especially in the current US election period, the future of this proposed application of parole authority is very unclear. Other extraordinary uses of agency authority by https://www.acheterviagrafr24.com/le-viagra-feminin/ the DHS have been delayed and halted by court order. It is disappointing that the agency chose to use this controversial approach to solve the very important need the US has for better immigration solutions for entrepreneurs.

There is a 45-day public comment period from the date that the proposed rule is published in the Federal Register. The USCIS may change the terms of the proposed rule after review of the public comments. The agency did not state when a final rule will be issued, but there is little time in the current administration and the long-term future of this proposal very much depends on the position taken by next Presidential administration.

Read the full proposed rule at the USCIS website.

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US proposes new immigration status for international entrepreneurs

New rule extends US work authorization for certain foreign students

STEM image Professional

Important new US Department of Homeland Security (DHS) regulations allow F-1 foreign student visa holders with degrees from American universities in science, technology, engineering and math (STEM) to extend optional practical training (OPT) for 24 months beyond the 12-month period generally available to F-1 students on OPT. This 24-month extension effectively replaces the 17-month STEM OPT previously available. The new rule is effective May 10, 2016.

Requirements

To qualify:

  1. The employer must be enrolled in the voluntary e-verify program (see USCIS website)
  2. The student must have completed a bachelor’s, master’s or doctoral degree in a STEM field
  3. The job offered must directly relate to the student’s STEM degree

Transition rules

Pending STEM OPT extension applications adjudicated prior to May 10, 2016, will only be valid for 17 months. Beginning on May 10, US Citizenship and Immigration Services (USCIS) will issue Requests for Further Evidence asking students with pending STEM OPT extension applications whether they wish to amend their application from 17 to 24 months—perhaps one of the few times when lengthy government processing times will benefit students.

The new rule gives students with pending applications the option to withdraw now and file a new application with a 24-month request, but with the important reminder that a student can only file for a STEM OPT extension if post-completion OPT has not expired prior to government receipt of a new STEM OPT application.

Also, students who already have received a 17-month STEM EAD will be able to file for a 7-month extension between May 10, 2016 and August 8, 2016, so long as 150 days still exist before the expiration of their 17-month STEM EAD and they file within 60 days of the date their Designated School Official (DSO) enters the recommendation for the 24-month STEM OPT extension into the student’s SEVIS record and other requirements are met, and they meet all other requirements for the 24-month STEM OPT extension.

Background

An August 2015 blog post offers background about F-1 OPT, STEM OPT extensions and the litigation that called into question the validity of the old 17-month rule.

We also addressed this issue in October 2015, when DHS first published the proposed rule to address the litigation.

The new rule was expressly written to resolve the defects found in the administrative procedures used to pass the old rule. In addition to reviving the STEM OPT extension in compliance with required rulemaking procedures, DHS took the opportunity make the validity period even longer. This is certainly not the result desired by those who challenged the original rule in an attempt to limit executive authority to grant US employment authorization to foreign nationals.

Further information

The complete text of the DHS notice of the new rule is available at the Federal Register’s website. Furthermore, DHS has opened a website that contains more information on the new STEM rule.

Dentons lawyers help employers obtain and maintain E-Verify status, as well as regular and STEM OPT employment authorization document applications, employment eligibility verification I-9 records and visas to authorize employment in the US and in the more than 50 countries around the world where Dentons has offices.

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New rule extends US work authorization for certain foreign students

Good news for US employers and foreign students—DHS STEM OPT extension rule published

STEM 2

On October 19, 2015, the US Department of Homeland Security published the much anticipated proposed new regulation authorizing the amendment of F-1 student visa regulations regarding employment authorization for foreign students. This will give much needed relief to US employers and the foreign students who work for them.

Since 2008, F-1 foreign student visa holders who graduate from US universities with a degree in science, technology, engineering or math (STEM) degrees are eligible to apply for 17 months of employment authorization in the US beyond the 12 months normally available. In addition, the 2008 regulatory change allowed F-1 students to apply for optional practical training (OPT) employment authorization up to 60 days after completion of the academic program. Finally, the 2008 change addressed the “Cap-Gap” program by making available additional employment authorization to F-1 OPT holders who are beneficiaries of H-1B temporary worker change of visa status petitions beginning on October 1 whose employment authorization would otherwise expire prior to September 30.

On August 12, 2015, the Washington, DC federal district court in Washington Alliance of Technology Workers v. USDHS found that the DHS violated the Administrative Procedures Act in 2008 when DHS first created the STEM OPT regulation without the notice and comment period required by law. The court stayed its ruling to February 12, 2016, to give DHS time to take corrective action to minimize “substantial hardship for foreign students and a major labor disruption for the technology sector.”

The court effectively gave DHS until December 14, 2015, to publish a final regulation to correct the error (with some exceptions, a proposed regulation must be published a minimum of 60 days prior to a final regulation). That means the DHS should have published the proposed regulation no later than October 15. Failure to do so increases the chance of disruption. That said, the case was appealed to the Court of Appeals for the District of Columbia Circuit and DHS attorneys will likely ask the appellate court to stay the lower court order and suspend the February deadline.

For the complete text of the DHS proposed rule.

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Good news for US employers and foreign students—DHS STEM OPT extension rule published

Much ado about nothing

Work work work

On March 24, 2015, the Department of Homeland Security’s (DHS) Office of the Inspector General (OIG) issued a report critical of former Citizenship and Immigration Services (USCIS) Director and current DHS Assistant Secretary Alejandro Mayorkas’ handling of the EB5 immigrant investor visa program entitled “Investigation into Employee Complaints about Management of U.S. Citizenship and Immigration Services’ EB-5 Program. ”

One would be forgiven for thinking that a great problem with the EB5 program was revealed that needed immediate attention, from some politician press releases and reports from certain news services that seem to have only read these releases and not the 97 page report.

Not true.  Here is what the report concludes:

Mr. Mayorkas’ actions in these matters created a perception within the EB-5 program that certain individuals had special access and would receive special consideration. It also lowered the morale of those involved.

No finding of special access or special consideration, only “created a perception” of this to some USCIS staff who reported that “lowered the morale of those involved.”  I can already predict how John Oliver of Last Week Tonight will lampoon the government for these revelations.

To put this into context, former Director Mayorkas led the USCIS in 2013 when the DHS OIG issued an earlier report recommending that the agency and Congress make a number of changes to the way the EB5 program was handled.  That report is available at the DHS OIG web site.

Mr. Mayorkas led the implementation of those changes, which resulted in the creation of the Immigrant Investor Program Office (IPO) and major changes to the USCIS employees responsible for administering the program, including hiring new staff trained in securities law, fraud detection, and economics, and relocation of the office from California to Washington, which resulted in additional staff changes.  Further, he brought in Nicholas Colucci, then Associate Director at FinCEN – the Financial Crimes Enforcement Network, which is the anti-money laundering regulator for US financial institutions – to serve as IPO Chief instead of promoting from within.

That feathers were ruffled for a small group of 15 miffed USCIS employees comes as no surprise. As the President of the American Immigration Lawyers said in response to the report:

But when have you ever heard of a large organization in which everyone wholeheartedly embraced changes to the way things have “always been done”? Mr. Mayorkas was responsible for leading an agency with some 15,000 employees in 200 offices across the world. The EB-5 program was just one of dozens of programs led by Mayorkas, with many of them troubled by some of the problems that have plagued EB-5. All too often its decisions failed to meet the “fundamental threshold for rational decisionmaking,” in the words of one federal judge overruling a decision denying a visa petition.

The EB5 program creates jobs for American workers, most often in areas targeted for rates of unemployment 150 percent or more above the national average.  For every 10 fulltime-equivalent jobs for American citizens and lawful residents created, an EB5 immigrant makes a minimum $500,000 investment and sometimes more than twice that amount.

USCIS processing of EB-5 cases is slow, very slow.  Slower than any other immigrant visa petition handled by the agency.  While the USCIS processes most petitions within four to five months and even offers a 15-day premium processing service for many, EB-5 petitions on the average languish for three times as long or longer before an officer is assigned and begins work.  And that is just the first step of the multiyear process to obtain permanent resident status, with an immigrant’s invested funds committed to and at risk in the American investment during the entire period, often five years.  It is this slow agency processing that jeopardizes the EB-5 program more than anything else.  Leadership to improve the speed at which USCIS staff work should be encouraged even if it also lowers morale.

Congressional action is needed.  The pilot program portion of the EB-5 program expires September 30, 2015, as it has every three years since enactment.  Every three years, Congress waits until the last minute and then votes to renew the program for another three years, sometimes taking action only after the program expires.  Every three years this creates uncertainty for the American workers whose jobs are created by the EB-5 program, the American businesses that rely on the EB-5 immigrant investors for financing, and the immigrant investors themselves who rely on the EB-5 program to create a new home for their families in the United States.  Congress needs to act quickly to renew the program and not jeopardize this important tool for American job creation.

The full text of the report is available at the DHS OIG web site.

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Much ado about nothing

DHS proposes new rules for professionals and their family

US-VISA-H1B

Last week the U.S. Department of Homeland Security (“DHS”) announced a proposed rule to attract high-skilled foreign workers by allowing spouses of certain H-1B holders to also be eligible to work in the US.  The rule, if enacted, will only help H-4 dependent spouses of H-1B workers who:

  •  Are the beneficiaries of an approved Form I-140, Immigrant Petition for Alien Worker; or
  •  Have been granted an extension of their authorized period of stay in the United States under the American Competitiveness in the Twenty-first Century Act of 2000 (AC21) as amended by the 21st Century Department of Justice Appropriations Authorization Act. AC21 permits H-1B workers seeking lawful permanent residence to work and remain in the United States beyond the six-year limit.

Other H-4 spouses and H-4 children would not be authorized to work.

In addition, the DHS proposes an unrelated change for certain professional visa holders that removes some obstacles to their remaining in the United States.   If passed, this new rule would:

  • Update the regulations to include nonimmigrant high-skilled specialty occupation professionals from Chile and Singapore (H-1B1) and from Australia (E-3) in the list of classes of aliens authorized for employment incident to status with a specific employer,
  • Clarify that H-1B1 and principal E-3 nonimmigrants are allowed to work without having to separately apply to DHS for employment authorization.
  • Allow E-3, H-1B1 and CW-1 nonimmigrant workers up to 240 days of continued work authorization beyond the expiration date noted on their Form I-94, Arrival/Departure Record, while the extension request is pending.

For further information, see the DHS press release.

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DHS proposes new rules for professionals and their family