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Proposed end of H-4 employment authorization likely to affect over 100,000 families

Time appears to be almost up for more than 100,000 foreign citizens working in the United States under an Obama-era special authorization for spouses of foreign workers here on the H-1B visa.

When Congress failed legislatively to address the lengthy wait times for many professionals and their families to be granted resident status, the US Citizenship and Immigration Services (USCIS) in 2015, under the Obama administration, issued a regulation to allow H-4 visa spouses of qualified H-1B professionals to apply for an employment authorization document (EAD). Some members of Congress complained that the executive branch was overstepping its authority by making law—which is Congress’s job—and the regulation was the subject of much debate during the last presidential election. Now the Trump administration is seeking to make good on the President’s campaign promise to eliminate EADs for H-4 spouses.

This change especially impacts US employers of people born in India.

The reason why Indian-born professionals are impacted is because there are numerical limits on the number of green cards granted each year. To promote the diversity of new immigrants to the US, there are quota limits on the place of birth. No more than 7 percent of the total number of family-sponsored and employment-based visas available in a fiscal year may be issued to natives of any one independent country. As the demand for Indian-born professionals is far greater than the annual supply of green cards under the quota, this has created a backlog.

In 2018 for instance, the backlog of Indian-born professionals waiting their turn to get a green card was well in excess of a half million individuals. As a result, it now takes many years for an Indian-born professional to receive his or her green card. As a consequence, Indian-born professionals comprise the bulk of H-4 EAD holders.

Under the current regulation, an H-4 spouse can request an EAD if the H-1B professional is the beneficiary of either an approved employment-based immigrant visa petition, or a Department of Labor alien employment certification application or employment-based immigrant visa petition filed at least 365 days prior to the end of the sixth year of the professional’s H-1B status.

In April 2017, President Trump signed the “Buy American and Hire American” executive order, which, among other things, directed the Department of Homeland Security (DHS), in coordination with other agencies, to review H-1B-related policies. The H-4 EAD regulation was one of the policies reviewed and the result was its proposed elimination.

US employers rely on H-1B professionals to make up for the shortage of qualified American professionals while keeping jobs in the US. CEOs of major US companies, sent a letter to DHS opposing the plan to eliminate the H-4 EAD. The letter pointed out that “[t]hese spouses are often highly skilled in their own rights,” and “revoking their US work authorization will likely cause high-skilled immigrants to take their skills to competitors outside the United States.

These US employers found some support in Congress. Senators Kamala D. Harris and Kirsten Gillibrand sent a letter to DHS and USCIS opposing rescission of the H-4 EAD, pointing out that the proposed change would disproportionately impact South Asian women (in 2017, 94 percent of H-4 EAD were women and 93 percent were from India).

But the administration has not changed its position. In November 2018, DHS published its mid-year regulatory agenda, which included a proposed rule to revoke the H-4 employment authorization final rule. DHS stated that “[s]ome U.S. workers would benefit from this proposed rule by having a better chance at obtaining jobs that some of the population of the H-4 workers currently hold, as the proposed rule would no longer allow H-4 workers to enter the labor market early.” With record low unemployment levels and US employers already complaining of recruiting problems, it is unclear where the DHS thinks employers will find these US workers.

The new rule, if adopted, is expected to become effective in the first half of 2019 and would impact all 100,000+ individuals currently holding an H-4 EAD. Researchers also estimate that the proposed rule will affect entire families, including the H-1B professionals themselves, because many will not be able to afford to live on one income if their dependent spouse is forced to abandon his or her career. This is especially true in areas such as Seattle and the Silicon Valley, which employ high numbers of H-1B workers and have a high cost of living. Entire families may leave the US, taking their job skills to other countries to compete with their former employers—whose only options to remain competitive may be to outsource the jobs or set up their own offshore facilities. Nearshoring to Canada has become increasingly popular, due to the relatively lower cost of doing business there and proximity to the US.

The direct cost of each failed expatriate assignment is estimated to range from $250,000 to $1 million, according to researchers. More important, the departure of these highly skilled workers represents a brain drain and a significant loss of talent for most companies.

Dentons helps employers develop strategies to recruit the world’s best and brightest to fill posts in the US and abroad. For more information, please contact the authors or your Dentons lawyer.

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Proposed end of H-4 employment authorization likely to affect over 100,000 families

USCIS to require applicant’s signature for delivery of green card and EAD

Delivery of alien registration cards (popularly called green cards), employment authorization documents (EADs) and reentry permits will soon require the recipient to present valid photo identification at the time of delivery, with some exceptions.

The US Citizenship and Immigration Services (USCIS) announced on Friday, April 27, 2018, that the agency will soon start using the Signature Confirmation Restricted Delivery service from the US Postal Service. The stated goal is to increase “the security, integrity, and efficiency of document delivery” and provide “better tracking and accuracy of delivery information, improving service to applicants.” This new process applies to the delivery of secure documents, such as green cards, EAD cards and reentry permits. USCIS plans to first roll out the new process to secure documents that were returned as non-deliverable, and to subsequently expand use of signature confirmations to all deliveries of secure documents.

In general, applicants will have to present a valid ID to sign their documents upon delivery. USPS offers several alternatives, including designating another person to sign on the applicant’s behalf, authorizing the hotel or the apartment complex where the applicant resides to accept delivery, etc. Applicants can also sign up for Informed Delivery, an online service from USPS that provides delivery status notifications and allows for parcels to be held for in-person pickup at a USPS post office location.

This announcement comes less than a month after USCIS indicated that it would destroy such secure documents (green cards, EAD cards and travel booklets) after 60 days if returned as non-deliverable by USPS. These two recent announcements serve as a reminder that all foreign nationals are required to keep USCIS informed of their current address, and to report any change of address within 10 days of relocation by filing Form AR-11, either online or by post.

For more information, please contact your Dentons lawyer and for the full text of the agency’s press release can be found at the USCIS website.

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USCIS to require applicant’s signature for delivery of green card and EAD

The travails of the ‘Windrush generation’ and the lessons for EU nationals

UK Minister of State for Immigration Caroline Nokes has set out the government’s commitment to support the “Windrush generation,” immigrants who migrated legally from British colonies or former colonies in the Caribbean between 1948 and 1973. The term “Windrush” derives from the name of the ship, the Empire Windrush, that brought the first arrivals in Britain’s post-war drive to fill a labor shortage. The ship carried 492 passengers, many of them children, from the Commonwealth country of Jamaica. Under the British Nationality Act, they and thousands who followed after, enjoyed British citizenship and full rights of entry and settlement. In 1962, however, British law changed to end the automatic right of entry and, throughout the 1960s and 1970s, as the Caribbean colonies gained independence—and their people different citizenship—a series of British laws further tightened immigration controls.

The story of Caribbean-born Britons took an inauspicious turn in 2012. Changes to immigration law that required documentation to work, rent a property or access benefits, including healthcare, left people fearful about their status. As it turned out, their fears were justified. Recent reports in the British press about longtime legal residents of West Indian and Caribbean ancestry losing their jobs, being denied medical care, being evicted, and even detained and threatened with deportation because they could not prove that they had lived in the country since before 1973 produced a public outcry and, on April 17, 2018, an apology from Prime Minister Theresa May.

The current “hostile environment”—aimed at making it difficult for illegal immigrants to settle in the UK—has meant that many people living in the UK legally are being asked to document their right to stay in the UK when trying to access healthcare, applying for a job, opening a bank account, or renting a property, and some of the Windrush generation who arrived here as children are finding it difficult to do so because they have never had a need to update their passports and immigration documents.

Their plight, however, is not dissimilar to that of EU nationals, who must also think about what documentation they can produce to prove their right to remain in the UK. There are thousands of EU nationals who do not hold passports and/or do not have a paper trail to evidence their nationality or time spent in the UK. Without such documents, they will find it difficult to meet the requirements to apply for residency documentation confirming their status. Such EU nationals will feel the same level of anxiety and experience the same hostile environment that the Windrush generation are contending with. However, for EU nationals there’s the added pressure of having to complete their application within six months of December 31, 2020, being the end of the implementation period. Those who fail to do so enter uncharted territory, as there is no information at present on what will happen to EU nationals who haven’t obtained new residency documents.

Guy Verhofstadt, the European Union’s chief Brexit negotiator, identified this very issue when speaking to The Telegraph for an article that appeared on April 18 on how the UK government’s handling of its Windrush citizens has led to fears that EU nationals could face similar problems. Verhofstadt said, “This could be worrying for millions of EU citizens in the UK who may fear that they could face similar treatment after Brexit.” He added that he expects that MEPs will be looking for safeguards for their constituents.

The UK government has accepted that the Windrush citizens are entitled to reside in the UK and to access public services, and has asserted its commitment to working with any individuals who do not have documentation to prove their right to be in the UK. A new dedicated Home Office team will help such individuals gather the evidence necessary to prove that they have been living or working in the UK, and when such evidence is gathered, will endeavor to resolve cases within two weeks and at no cost to the applicant. Unfortunately, however, while the Brexit talks have gone more smoothly as of late, there is not the same commitment between the UK government and EU governments to help EU nationals. Given the current climate of uncertainty, we are advising EU nationals and employers of EU nationals on their best course of action.

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The travails of the ‘Windrush generation’ and the lessons for EU nationals

Graduation: Time to request post-graduation work permission for foreign students

It’s April. Graduation is just around the corner. International students who are in F-1 status must consider their post-graduation plans. Now is the time to work with foreign student advisors and the USCIS for those seeking to work and gain practical training after graduation.

Optional Practical Training (OPT) is a period of temporary employment in the US that is directly related to an F-1 student’s major area of study. An F-1 student may be authorized 12 months of OPT after completing a degree from a US university. Eligible students must apply within 30 days of the foreign student advisor (known to USCIS as the “designated school official” or “DSO”) for OPT into the Student and Exchange Visitor Information System (SEVIS) record system.

The application time window is only open from 90 days before to 60 days after completing the degree. The latest possible start date for the OPT is 60 days after completing the degree. F-1 students must make sure to submit their applications, with application fee, within the time window. OPT will start after USCIS approves the Form I-765 and issues an employment authorization document (EAD).

An employer is not required when OPT is requested, but the student will need to find work soon or OPT will be lost and the student will need to leave the US if he or she is without work for more than 90 days after OPT is granted. F-1 students on OPT must report employment status to their DSOs, who will then update their SEVIS records. The reporting is important because a student with approved OPT but without current employer information in SEVIS is considered unemployed. This can have serious ramifications on the student’s future immigration opportunities. We are seeing an increasing number of requests from USCIS regarding OPT employment information when the student later applies for the H-1B work visa that is widely used by F-1 students to work in the US beyond OPT.

OPT can be extended by 24 months for F-1 students who graduate with a bachelor’s or higher degree in an eligible science, technology, engineering or mathematics (STEM) field from an SEVP-certified school accredited by an accrediting agency recognized by the US Department of Education. Eligible students must apply before the end of the OPT as indicated on the EAD.

During the STEM OPT period, the permitted unemployment period is 60 days. Unlike the initial OPT, where employer involvement is minimal, STEM OPT requires that the employer enroll in USCIS’ E-Verify employment eligibility verification program. Dentons lawyers guide employers on the E-Verify registration process and advise on compliance issues.

Also, the employer must agree to employ the student for a minimum of 20 hours per week and to provide the student with formal training and learning objectives. To fulfill this requirement, the student and the employer must complete and sign Form I-983, which must explain how the training opportunity has a direct relationship to the student’s qualifying STEM degree. Dentons lawyers assist employers in developing STEM OPT-compliant training programs.

During the STEM OPT extension period, students must report to their DSOs every six months and supply updated information regarding their employment. If an employer terminates a student’s employment or if the student leaves the job, the employer has to report in either situation to the relevant DSO within five business days. STEM OPT students must submit annual self-evaluations and report to their DSOs regarding the progress of their training. Both student and employer must report to the relevant DSO any material changes to the training plan. Reporting and record-keeping are important in case the student applies for H-1B later.

For more information about STEM OPT, please contact your Dentons lawyer and see the USDHS website for additional information.

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Graduation: Time to request post-graduation work permission for foreign students

H-1B blast off countdown 2017

T minus 59 days. The countdown has begun.  The date is coming.  It will be here soon.

It is the biggest event of the year in United States immigration.

Hundreds of thousands will apply, but only a lucky few will be chosen. Employers keen to recruit and employ the best and brightest talent from around the globe to meet American business needs are already gearing up.  Professionals eager to pursue their career in the United States are updating resumes and collecting diplomas and reference letters. This program is not the best way for a country to succeed, but the United States Congress continues to lack the will and wisdom to change a law almost 25 years old.

Are you ready?

April 1, 2017, is the first day that the United States Citizenship and Immigration Services agency (USCIS) will accept new H-1B specialty occupation worker nonimmigrant visa petitions by employers for foreign professionals.  It is important for global mobility and human resource managers to start work now to secure preliminary Department of Labor approvals, foreign degree evaluations, etc., to be ready to file the petition for an April 1 receipt date.

Limited supply

Only a limited number of new H-1B visas are accepted each year due to legal quota restrictions. Every year, 65,000 new H-1B visa petitions can be granted, of which 6,800 are set aside for citizens of Chile and Singapore under free trade agreements with those countries. To the extent there were unused free trade agreement H-1Bs, those are added to the quota for the next fiscal year. There is an additional allocation of 20,000 new H-1B visa petitions that can be accepted if the foreign professional in question earned a graduate degree from a university in the United States.

Not all H-1B visa petitions are subject to numerical limits. Individuals already holding H-1B visas are not counted against the quota, and petitions filed by institutions of higher education or related or affiliated nonprofit entities, nonprofit research organizations or governmental research organizations are exempt from the limits. And H-1B workers performing labor or services in the Commonwealth of the Northern Mariana Islands (CNMI) and Guam may also be exempt from the H-1B cap, provided their employers file the petition before December 31, 2019. Employers may not file a petition or an extension request for an employee more than six months before the employee’s intended start date.

Overwhelming demand

Last year, the USCIS received so many new H-1B visa petitions in the first week of April that the agency ended the application window on April 7. Approximately 236,000 new petitions were received, as compared to 233,000 in the prior year. As the regulations mandate, officers then selected—at random—which envelopes to open, and returned the rest unopened with the government filing fees. Only then did the agency begin the often long process of approving or denying the selected petitions on the merits of eligibility.

This year, the USCIS will once again receive more than it is allowed to accept. Again, the agency will randomly decide which envelopes to open and which to return unopened. The likelihood of a petition being selected in April 2017 is much lower than last year, taking into consideration the current state of the economy, the relatively low rate of American unemployment in typical H-1B specialty occupations, and the labor needs of US employers.

The countdown begins now (download dates directly into your Outlook)

T minus 59 days (February 1):  Start working with legal counsel now. Identify current and prospective employees who will need new H-1B visa petitions.

T minus 44 days (February 15):  By now, you and legal counsel should have requested the labor condition application certification from the Department of Labor.  Employers new to the process or who have not filed recently will need to create the appropriate accounts with the Department of Labor. Because the USCIS relies on Dunn & Bradstreet data (DUNS) as part of its employer background verification process, it is important for employers to create or update the company’s DUNS records to avoid inconsistencies with H-1B visa petition filings.

T minus 31 days (March 1):  Have all the required USCIS forms and supporting documents been signed and filing fee checks prepared?  There is still some time left to get last minute details completed, but this is when it gets very hectic. Government systems often become overloaded and delays at the Department of Labor for late filings are common.

T minus 1 day (March 31):  Envelopes should be properly addressed and delivered to the express service of choice with next business morning delivery instructions.

T minus 0 (April 1):  Just like at NASA ground control, this is the stage in the process where all the hard work resulted in successful delivery of the visa petition and you have to wait for the USCIS to announce whether the petition is selected or returned—usually within 3 weeks or so.

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H-1B blast off countdown 2017

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 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 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

US proposes new immigration status for international entrepreneurs

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 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

H-1B blast off countdown 2016

T minus 72 days. The countdown has begun.  The date is coming.  It will be here soon.

It is the biggest event of the year in United States immigration.

Hundreds of thousands will apply, but only a lucky few will be chosen.  Employers keen to recruit and employ the best and brightest talent from around the globe to meet American business needs are already gearing up.  Professionals eager to pursue their career in the United States are updating resumes and collecting diplomas and reference letters.  This program is not the best way for a country to succeed, but the United States Congress continues to lack the will and wisdom to change a law almost 25 years old.

Are you ready?

April 1, 2016, is the first day that the United States Citizenship and Immigration Services agency (USCIS) will accept new H-1B specialty occupation worker nonimmigrant visa petitions by employers for foreign professionals.  It is important for global mobility and human resource managers to start work now to secure preliminary Department of Labor approvals, foreign degree evaluations, etc., to be ready to file the petition for an April 1 receipt date.

Limited supply

Only a limited number of new H-1B visas are accepted each year due to legal quota restrictions.  Every year, 65,000 new H-1B visa petitions can be granted, of which 6,800 are set aside for citizens of Chile and Singapore under Free Trade Agreements with those countries. To the extent there were unused Free Trade Agreement H-1Bs, those are added to the quota for the next fiscal year.  There is an additional allocation of 20,000 new H-1B visa petitions that can be accepted if the foreign professional earned a graduate degree from a university in the United States.

Not all H-1B visa petitions are subject to numerical limits. Individuals already holding H-1B visas are counted against the quota, and petitions filed by institutions of higher education or related or affiliated nonprofit entities, nonprofit research organizations or governmental research organizations are exempt from the limits. The exemption for petitions filed for jobs only in Guam or the Commonwealth of the Northern Mariana Islands expired on December 31, 2015.

Overwhelming demand

Last year, the USCIS received so many new H-1B visa petitions in the first week of April that the agency ended the application window on April 7.  Approximately 233,000 new petitions were received, as compared to 172,500 in the prior year.  As the regulations mandate, officers then selected—at random—which envelopes to open and returned the rest unopened with the government filing fees.  Only then did the agency begin the often long process to approve or deny the selected petitions on the merits of eligibility.

This year, the USCIS will once again receive more than they are allowed to accept.  Again, the agency will randomly decide the envelopes to open and those to return unopened.  The likelihood of a petition being selected in April 2016 is likely to be much, much lower than last year, taking into consideration the current state of the economy, the relatively low rate of American unemployment in typical H-1B specialty occupations, and the labor needs of United States employers.

The countdown begins now (download dates directly into your Outlook)

launch

T minus 72 days (January 19):  Start working with legal counsel now.  Identify current and prospective employees who will need new H-1B visa petitions.

T minus 45 days (February 15):  By now, you and legal counsel should have requested the labor condition application certification from the Department of Labor.  Employers new to the process or who have not filed recently will need to create the appropriate accounts with the Department of Labor. Because the USCIS relies on Dunn & Bradstreet data (DUNS) as part of its employer background verification process, it is important for employers to create or update the company’s DUNS records to avoid inconsistencies with H-1B visa petition filings.

T minus 30 days (March 1):  Have all the required USCIS forms and supporting documents been signed and filing fee checks prepared?  There is still some time left to get last minute details completed, but this is when it gets very hectic.  Government systems often become overloaded and delays at the Department of Labor for late filings are common.

T minus 1 day (March 31):  Envelopes should be properly addressed and delivered to the express service of choice with next business morning delivery instructions.

T minus 0 (April 1):  Just like at NASA ground control, this is the stage in the process where all the hard work resulted in successful delivery of the visa petition and you have to wait for the USCIS to announce whether the petition is selected or returned—usually within 3 weeks or so.

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H-1B blast off countdown 2016

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

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

New Entrepreneur Immigration Program opens in British Columbia, Canada

opendooroptions

British Columbia’s Provincial Nominee Program (BC PNP) reopened its doors for business immigrants to Canada on July 2, 2015. In a landscape of unfriendly federal business immigration programs and preference for employer-driven individual immigration programs, the new BC PNP Entrepreneur Immigration program is extremely attractive for prospective business immigrants to Canada.

The appeal

  • No minimum English language skills required
  • No age restriction
  • Minimum of 33 percent business ownership only
  • Low thresholds for minimum net worth (CA$600,000) and investment (CA$200,000)
  • Low initial registration fee of CA$300

Looking closer

It may sound too good to be true, because it probably is. BC PNP is attracting as many applications as it can so it can choose the best. In fact, BC PNP will now have a Pool of applicants competing to get as many points (maximum 200) as possible—however, only 200 applicants are accepted into the Pool each month. BC PNP will then make periodic draws from the Pool to award applicants holding the highest scores with an Invitation to Apply for the Entrepreneur Immigration program. So while the bar seems to be set low, applicants will need a competitive score to be successful.

A competitive score can come from increasing individual points as much as possible for each category:

Points category Points
Experience 24
Net Worth 12
Personal Investment 30
Jobs 36
Adaptability 18
Business Concept 80
Total 200

 

This could mean having greater management experience, higher net worth, significant investments, English language skills or even choosing a better business. For instance, an eligible business for the Business Concept must, at minimum, contribute to the province’s economic growth. However, there is also a list of business types that offer significant economic benefits and those would presumably be more valuable on the points system.

Other requirements for the program, like its predecessor, include:

  • Business or management experience;
  • Active management of a new or improved existing business located in British Columbia;
  • Intention to reside in British Columbia; and
  • Introduction of at least one full-time job for a Canadian or permanent resident.

Undoubtedly, the BC PNP Entrepreneur Immigration program will reopen doors of opportunity for prospective business immigrants to Canada.

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New Entrepreneur Immigration Program opens in British Columbia, Canada