DHS publishes new International Entrepreneur Rule

On January 17, 2017, the Department of Homeland Security ("DHS") published a final rule in the Federal Register concerning regulations to implement new International Entrepreneur parole authority. DHS lists increasing and enhancing entrepreneurship, innovation and job creation as its goals for this new rule which is scheduled to become effective on July 17, 2017. The rule provides guidance for the use of parole - on a case-by-case basis - for entrepreneurs of start-ups who can demonstrate they would provide significant public benefit to the U.S. through evidence of "substantial and demonstrated potential for rapid business growth and job creation." Among the criteria adjudicators would consider are receipt of capital investment from U.S. investors with established records of successful investments and obtaining significant awards from certain Federal, State or local government entities. A foreign national who receives a grant of parole under this new rule would be permitted an initial stay of up to 30 months in the U.S., with the possibility of an additional 30 month extension to facilitate the applicant's ability to oversee and grow her or his start-up in the U.S.

We expect to bring you a detailed summary of this new rule in our February newsletter.

Visa Bulletin projections according to DOS's Charlie Oppenheim

In hopes of obtaining more in-depth analysis and insight into future immigrant visa availability than that provided in the monthly Visa Bulletin, each month the American Immigration Lawyers Association ("AILA") "checks-in" with Charlie Oppenheim, Chief of the Visa Control and Reporting Division, U.S. Department of State (DOS).  From these discussions, AILA can provide practitioners, employers and foreign nationals better projections so all parties can strategize accordingly.  Highlights from the December 2016 discussions include:

• EB-1: Based on current demand, Charlie predicts that a "final action cut-off date" will need to be imposed for EB-1 India and EB-1 China later this fiscal year.  If this happens, Form I-140 petitions can continue to be filed with USCIS but Form I-485 Adjustment of Status application cannot be filed until the priority date for those preference categories is current.  This could result in several months of delay, as was seen in fall 2016, so applicants who may be affected by this potential retrogression should consider filing their applications as soon as possible. 
• EB-2 Worldwide: Charlie expects to impose a "final action cut-off date" for EB-2 Worldwide at some point due to sizeable demand.  Lingering demand from cases that otherwise would have been approvable in August and September 2016 is partly responsible for this surge in demand, as are EB-3 India upgrades.
• EB-2 China: China has already exceeded its EB-2 quarterly limit, so there is unlikely to be any major forward movement.
• EB-2 India: Charlie continues to hope that EB-2 India will recover to the November 22, 2008 final action date retrogression from May 2015. However, EB-3 upgrades could negatively impact that recovery.
• EB-3 Worldwide: Demand has declined, allowing Charlie to advance this category slightly in January 2017. However, at some point when EB-2 Worldwide becomes subject to a "final action cut-off date", we may see applicants filing petitions to downgrade from EB-2 to EB-3 which will increase demand.

Repeal of National Security Entry-Exit Registration System (NSEERS)

On December 23, 2016, DHS finally repealed its outdated and arguably discriminatory regulations relating to the National Security Entry-Exit Registration System (NSEERS), an obsolete special registration program that required immigrants from 25 Muslim-majority, Arab, and South Asian countries to register their presence in the United States. NSEERS was enacted in reaction to 9/11 and required certain foreign nationals in the U.S. to present themselves for fingerprinting, photos, and interviews at U.S. immigration offices, with further requirements to check-in at designated intervals. This program only applied to men over the age of 16 on non-immigrant visas (including tourism and work visas) from a list of 25 countries the Bush administration considered "havens for terrorists."

In 2011 the Obama Administration removed all 25 countries from the "special registration" list, which essentially suspended the program. In anticipation of the incoming Trump Administration, DHS officially repealed the program from the regulations. Only time will tell if the new administration will move to re-enact similar special registration rules, as the incoming president made campaign promises to that effect. Stay tuned for updates on our website at http://iandoli.com/newsandupdates/.

Reminder: USCIS filing fee increase and new regulations affecting high-skilled workers are now in effect

U.S. Citizenship and Immigration Services ("USCIS") published its final rule in the Federal Register on October 24, 2016 announcing the new fee schedule for applications.  The new rule increases fees for most applications and petitions by a weighted average of 21%. Please refer to our update from November 2016 with examples of the fee increases for some of the most common types of applications and petitions.

In addition, the U.S. Department of Homeland Security ("DHS") published a final rule in the Federal Register on November 18, 2016 announcing a number of important changes and codifying existing agency policy regarding high-skilled non-immigrant workers, EB-1, EB-2 and EB-3 immigrant workers and their employers. A detailed summary of this new rule, which went into effect on January 17, 2017, can be found in the News and Updates section of our firm's website.

DHS announces redesignation of TPS for Yemen & extension for Somalia

USCIS recently announced Temporary Protected Status ("TPS") for Yemen and Somalia will be extended for an additional 18 months. For Yemen, the extension is effective March 4, 2017 through September 3, 2018, and the re-designation allows eligible nationals of Yemen to register for the first time or to re-register for TPS. For Somalia, the extension is effective March 20, 2017 through September 17, 2018, and applicants can re-register for TPS during the 60 days registration period that runs until March 20, 2017.

For more information please visit USCIS's TPS website.

The future of DREAMers- Congressional Action and 14 Mayors urge President-Elect Trump to protect DACA

Unauthorized immigrants covered by DACA (Deferred Action for Childhood Arrivals) face an uncertain future under the new Trump administration.  According to USCIS, more than 750,000 young unauthorized immigrants have received work permits and deportation relief through DACA since it was created by President Obama's executive action in August 2012. On December 7, 2016, fourteen mayors joined Chicago Mayor Rahm Emanuel in sending President-elect Trump a letter urging him to continue the DACA program, which protects DREAMers and grows the economy, at least until Congress modernizes America's immigration system. In addition, on January 12, 2017 a bipartisan group of senators led by Dick Durbin (D-Ill) and Lindsey Graham (R-S.C.) reintroduced the "Bar Removal of Immigrants who Dream and Grow the Economy" or BRIDGE Act, to provide DACA-eligible individuals the chance to apply for "provisional protected presence" and employment authorization. A companion bill was introduced in the House the following day.

We will continue to bring you updates on our website and newsletter on any changes with DACA. In addition, Iandoli Desai & Cronin P.C. has been hosting "Know Your Rights Seminars" across the Boston metro-area. If you wish to host a similar seminar at your institution, please contact us at info@iandoli.com with "Know Your Rights" in the subject line.

DHS publishes new regulations affecting high-skilled non-immigrants, EB-1, EB-2, and EB-3 immigrant workers, and their employers

On November 18, 2016, the Department of Homeland Security (“DHS”) published its final rule affecting high-skilled nonimmigrant workers, EB-1, EB-2, and EB-3 immigrant workers and their employers. This new rule becomes effective January 17, 2017 and contains a number of important changes, as well as codifies a great deal of existing agency policy, including the following provisions:

Immigrant Petitions

• The new rule expands the list of events that can lead to a loss of a priority date. An individual may be stripped of a priority date if the underlying employment based immigrant visa petitions is revoked for fraud, or a willful misrepresentation of a material fact, if DOL revokes an underlying labor certification, if a USCIS or DOS officer invalidates a Labor Certification, or if USCIS determines that the original petition was approved based on a material error.
• Codifies that an approved I-140 remains valid where USCIS determines that a new job offer is in the same or similar occupation as listed in the original approved I-140.
• Explicitly confirms the long-standing policy that an approved petition remains valid indefinitely unless approval is revoked by USCIS or the DOS.
• Provides a new basis for a narrow group of individuals in valid H-1B, L-1, H-1B1, O-1 and E-3 status to obtain employment authorization independent of their current status. A nonimmigrant in one of the aforementioned statuses who is the beneficiary of an approved I-140, is subject to an immigrant visa retrogression, and who can demonstrate “compelling circumstances” may now apply for employment authorization. USCIS has provided examples of compelling circumstances such as serious illness or disability of the nonimmigrant or a dependent family member “that entails the worker moving to a different geographic area for treatment or otherwise substantially changing his or her employment circumstances.” If an individual can establish compelling circumstances, USCIS may in the exercise of discretion issue an Employment Authorization Document or Card (EAD) valid in one year increments. Once the principal worker is granted an EAD under the new rule, his or her spouse and children may also apply. Unfortunately, USCIS makes clear that use of employment authorization granted by the new rule will generally result in a loss of nonimmigrant status and result in, at a minimum, a temporary ineligibility for adjustment of status.
• For renewals for these “compelling circumstance” EADs, the principal worker will need to demonstrate he or she is still subject to an immigrant visa retrogression and compelling circumstances continue to exist. Alternatively, renewals are authorized if the worker’s priority date is one year or less from the Final Action date on the Visa Bulletin in effect at the time the extension application is filed. The principal worker’s spouse and children may apply for a renewal at the same time as the principal worker, but their applications hinge on the principal’s being approved.

Revocation of Approval of Immigrant Petitions

• Modifies the existing revocation rules in light of INA §204(j). The amended revocation rule provides that an employer’s written withdrawal an approved employment based preference petition 180 or more after the petition’s approval or 180 or more days after an associated application for adjustment of status has been filed remains approved for purposes of I.N.A. §204(j).  Prior to this amendment, a written withdrawal would lead to an automatic revocation of the petition.
• Also modifies the existing rule regarding situations where the petitioning employer ceases business.  An approved petition will remain valid if the petitioning employer ceases business 180 or more days after the petition’s approval or 180 or more days after the filing of an associated application for adjustment of status for purposes of 204(j).  Again, prior to this amendment, a petitioning employer’s termination of business was an event that triggered automatic petition revocation.

Non-immigrant Classes

• The new rule allows individuals coming to the U.S. in E-1, E-2, E-3, L-1 and TN nonimmigrant classifications to be admitted up to 10 days prior to the beginning of their authorized employment to permit them sufficient time to arrive, get settled, and begin employment (similar to what is permitted already for H-1B visa holders). These same individuals should also see their admission period include 10 days at the end of their period of authorized employment to permit them time to depart the U.S. or extend, change or otherwise maintain lawful status.
• Establishes by regulation a grace period of up to 60 consecutive days during each authorized validity period for a number of visa categories, including for E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, and TN non-immigrants, in order to permit these high-skilled workers the ability to pursue new employment and an extension of their nonimmigrant status without having to depart the U.S. or needing to file a change of status request to B-2 or dependent non-immigrant status.
• Codifies and expands portability rules previously established under AC21 and subsequent agency guidance, including:
  • An H-1B nonimmigrant may begin concurrent or new employment upon the filing of a non-frivolous H-1B petition on his/her behalf, or at the start date of a requested petition –whichever is later.
  • Successive H-1B portability petitions are allowed – for example, if the H-1B worker was working at Company A, ports to Company B, and while Company B’s petition is still pending, the H-1B worker ports to Company C.
  • Requests to amend or extend any successive H-1B portability petition cannot be approved if a request to amend or for an extension of any preceding H-1B portability petition in the succession is denied, unless the worker’s previously approved H-1B status remains valid.
  • Denial of a successive portability H-1B petition does not preclude an H-1B worker from continuing or resuming working in accordance with a previously approved H-1B petition so long as that prior petition remains valid and the beneficiary has otherwise maintained H-1B status or been in a period of authorized stay and has not work without authorization.
• Explicitly recognizes that some states permit non-licensed individuals to perform work that otherwise requires licensure if they do so under the supervision of a licensed senior or supervisory personnel. The new rule notes that USCIS will consider the nature of the duties, in addition evidence of the identity, physical location and credentials of the person who will be supervising the H-1B worker and the facts must demonstrate that alien will fully perform the duties of the occupation.
• Confirms that DHS may approve, for up to 1 year, an H-1B petition on behalf of a worker who will be employed in a job that requires licensure by a state or local authority if the only things precluding the H-1B worker from obtaining the license are a lack of a social security number or proof of employment authorization, or similar technical requirement. Extensions for these individuals may not be approved unless the petitioner can demonstrate at the time of applying for the extension that the H-1B worker is now licensed in that position, or working in a different position or location that either requires a different license (which the H-1B worker has) or no licensure requirement is applicable in the new location.
• Provides for more consistent adjudication for non-profit employers affiliated with institutions of higher learning and government research organizations filing cap-exempt H-1B petitions, including the potential for non-profit employers and government research organizations to pursue cap-exempt H-1Bs even if they have never previously petitioned for an H-1B employee.
• Prior regs and interim policy memoranda had required cap-exempt non-profits to demonstrate the non-profit was connected to or associated with an institution of higher education through shared oversight or control by the same board or federation, was operated by an institution of higher education, or was attached to an institution of higher education as a member, branch, cooperative, or subsidiary, or proof the organization had been granted a cap-exempt H-1B in the past.  The new rule provides an additional option: proof that the non-profit has entered into a formal written affiliation agreement with an institution of higher education that establishes an active working relationship with the institution of higher ed for purposes of research or education, and that a fundamental activity of the non-profit is to directly contribute to research or education mission of the institution of higher education.
• The new rule also expands cap-exempt status for government research organizations by clarifying that federal, state or local entities whose primary mission is the performance of basic and/or applied research may qualify as cap-exempt. The previous version of the regulations stated a government research organization was a “United States Government entity” so the expansion to state and local government entities engaged in research is notable.
• In addition, an H-1B petitioner who is not a qualifying institution or organization may claim an exemption from the cap for H-1B employees if the majority of his/her duties will be performed at a qualifying institution, organization or entity, and those duties directly and predominantly further the essential purpose, mission or objectives of the organization (higher education or non-profit or government research).
• Clarifies two existing policies of USCIS concerning employees working for cap-exempt and then cap-subjected employers: 1) that an H-1B nonimmigrant working for a cap-exempt organization must be counted against the cap when changing employers to a cap-subject employer if he/she has not previously been counted against the cap within the past 6 years, and 2) concurrent employment with a cap-exempt and cap-subject employer is permitted, but the H-1B nonimmigrant must continue to maintain the cap-exempt employment. Failure to do so may result in USCIS revoking the concurrent, cap-subject petition unless the beneficiary has been counted against the cap within the past 6 years or obtains a new cap-subject H-1B approval.
• Codifies that time spent physically outside the U.S. exceeding 24 hours by an alien during the validity of an H-1B petition approved on the alien’s behalf does not count towards the 6 year maximum. The burden is on the H-1B petitioner to provide evidence in the form of passport stamps, I-94 records, and airline tickets, along with a chart, indicating 24 hour periods spent outside the U.S. when seeking to recapture time and extend the alien’s H-1B status.
• Allows for extension of H-1B status beyond the 6 year maximum under 214(g)(4) when a petitioner can show more than 365 days have passed since it filed a labor cert with DOL under 203(b) or an immigrant visa petition with USCIS under 203(b).  Petitioners may file an H-1B petition seeking a lengthy adjudication delay exemption within 6 months of the requested start date, which may be before 365 days have elapsed since the filing of the Labor Cert or I-140.

Adjustment of Status to that of Person Admitted for Permanent Residence

• EADs may not be issued to an application for adjustment of status under the Haitian Refugee Immigration Fairness Act of 1998 (HRIFA) until the AOS application has been pending for 180 days, with limited exceptions. If USCIS fails to adjudicate the applicants EAD upon expiration of the 180 day waiting period or within 90 days of filing the EAD application (whichever is later), the applicant shall be eligible for an EAD.
• USCIS may require any applicants for adjustment of status based on an approved employment-based immigrant petition to affirmatively demonstrate to USCIS, on Form I-485 Supplement J that the employment offer by the petitioning employer is still valid or the applicant has a new offer of employment from the same petitioner, a new employer, or a new offer based on self-employment in the same or similar occupational classification as the employment offered in the original petition. The qualifying visa petition (the I-140) needs to have already been approved (and not revoked) or still pending when the beneficiary notifies USCIS of a new job offer 180 days or more after he or she filed an I-485 application, and the I-140 is subsequently approved. 

Control of Employment of Aliens

• If an individual’s employment authorization is due to expire, the new regulations require employers to re-verify on Form I-9 (no later than date of expiration of current employment authorization) to reflect the individual is still work-authorized in the U.S. in order to continue his or her employment.
• For persons presenting EADs for I-9, reverification applies upon the expiration of the automatically extended validity period for the EAD (discussed below) and not the expiration date indicated on the face of the EAD.
• EADs that are issued to individuals who are not employment authorized incident to status (and including those filing based on Temporary Protected Status) will have their EADs automatically extended for up to 180 days from the date of their EAD expiration upon timely filing for an extension.
• NOTE: the regulation that provides for automatic extension of EADs also removes the existing regulation requiring USCIS to adjudicate EAD applications within 90 days of receipt. It remains to be seen how this change will affect applicants for initial EADs.

Reminder: new fee schedule from USCIS goes into effect on 12/23

U.S. Citizenship and Immigration Services ("USCIS") published its final rule in the Federal Register on October 24, 2016 announcing the new fee schedule for applications.  The new rule increases fees for most applications and petitions by a weighted average of 21%. Please refer to our update from last month with examples of the fee increases for some of the most common types of applications and petitions. Applicants looking to take advantage of the lower, current fees should ensure any relevant applications to USCIS are filed or postmarked before December 23, 2016. 

New Form I-9 update

In late November, USCIS finally released its updated Form I-9, which will be mandatory for all employers to begin using as of January 22, 2017. Until January 21, employers may continue using the current Form I-9 last revised on March 3, 2013. As they view a revised form in printed format, employers may not notice many differences. The vast majority of the revisions to this recent Form I-9 involve added "smart" features to the PDF version to help employers reduce technical errors when completing the form on the computer after downloading it from the USCIS website. Among a few of the changes employers may see when using the newer, electronic version of the form: certain fields will now give an error message when the entered data does not have the correct number of characters (such as a social security number or date of birth), drop-down lists and calendars have been added for entering dates, and a quick-response matrix barcode ("QR code") will be generated once the form is printed to assist in streamlining audit processes.

 To view the new Form I-9 and see the updated features, please visit the USCIS I-9 Central website. If you have questions concerning I-9 procedures, enforcement actions or preparing to conduct an internal audit of your firm's I-9s, please contact the attorneys at Iandoli Desai & Cronin at info@iandoli.com.

OFLC addressing two major PERM issues

Early last week, the Department of Labor's ("DOL") Office of Foreign Labor Certification ("OFLC") met with the American Immigration Lawyer's Association's ("AILA") DOL Liaison Committee for its quarterly stakeholder meeting. During their meeting, representatives from AILA and OFLC discussed a recent issue plaguing employers filing PERM cases on behalf of employees where the employer has used "competitive", "negotiable", "depends on experience", or similar language in reference to salary in some or all of its advertising, resulting in DOL denying the PERM. DOL's reasoning behind these denials was that U.S. workers might have been dissuaded from applying for these positions by the use of this vague (yet very common) language concerning salary. In its meeting last week, OFLC indicated they are closely reviewing a recent BALCA decision on this point (Matter of TekServices) and in the interim they are suspending denials of pending applications that involve this salary language issue.

At that same meeting, AILA and OFLC discussed recent PERM denials based on non-qualified experience in Section H. 14 of ETA Form 9089. For example, if an employer's minimum requirements for the offered position listed in H. 14 involved 5 years experience in software development, in addition to experience with JAVA and .NET, DOL was determining that "5 years experience" applied to both software development and the experience with JAVA and .NET since the employer did not specifiy a different number of months/years experience with those computer languages. DOL was then denying PERM applications where it appeared the alien worker did not have all the necessary experience based on this standard. During the meeting last week, OFLC indicated they are closely reviewing a recent BALCA decision (Matter of Smartzip Analytics) and they are suspending denials of pending applications that involve this H.14 non-qualified experience issue.