Category: Immigration

Federal Judge Determines that California’s Immigration Law Goes Too Far

A federal district judge in California issued a preliminary injunction preventing the State of California from enforcing certain provisions of Assembly Bill (AB) 450, a state statute that, among other things, prohibits private employers from cooperating with federal immigration enforcement agencies in the absence of a judicial warrant or a subpoena. The law, which is also known as the Immigrant Worker Protection Act, went into effect on January 1, 2018. The U.S. Department of Justice (DOJ) filed a lawsuit in March 2018, alleging that AB 450, and two other California immigration statutes, preempt federal law and interfere with the government’s ability to carry out its duties.

In his July 4, 2018 order, Judge John A. Mendez discussed the difficult position of the court in balancing the federal government’s power to determine immigration law against state powers. Judge Mendez determined that three key parts of AB 450 “impermissibly infringed on the sovereignty of the United States” and discriminate against employers that voluntarily choose to work with the federal government. As a result, the judge granted the DOJ’s motion for a preliminary injunction enjoining the enforcement of the three offending provisions. The judge did, however, uphold the law’s notice requirements, finding that the rule did not interfere with the federal government’s ability to enforce immigration laws.

Impact on Employers

Until further notice, private employers in California will not be in violation of state law in the following circumstances:

  • If theemployer voluntarily consents and allows an immigration enforcement agent to enter nonpublic areas of a place of business, even if the agent does not have a warrant.
  • If the employer voluntarily provides an immigration enforcement agent with access to employee records without a subpoena or court order.
  • If the employer reverifies an employee’s eligibility to work even when not strictly required by federal statutory law.

It is important to note that the notice requirements under AB 450 were upheld and are still in effect. The law’s notice requirements are as follows.

Prior to Inspection

  • The law requires employers to notify each current employee, within 72 hours of receiving notice of an inspection, that an immigration agency will be inspecting I-9 Employment Eligibility Verification forms or other records.
  • The law requires employers to post the notice “in the language the employer normally uses to communicate employment-related information to the employee.”
  • The notice must include the following information:
  1. “The name of the immigration agency conducting the inspections of I-9 Employment Eligibility Verification forms or other employment records.
  2. The date that the employer received notice of the inspection.
  3. The nature of the inspection to the extent known.
  4. A copy of the Notice of Inspection of I-9 Employment Eligibility Verification forms for the inspection to be conducted.”
  • The California Labor Commissioner’s Office released a template notice form to help employers comply with the posting requirements.

After Inspection

  • “Except as otherwise required by federal law, an employer shall provide to each current affected employee, and to the employee’s authorized representative, if any, a copy of the written immigration agency notice that provides the results of the inspection of I-9 Employment Eligibility Verification forms or other employment records within 72 hours of receipt of the notice.”
  • Employers must also provide “each affected employee, and to the affected employee’s authorized representative, if any, written notice of the obligations of the employer and the affected employee arising from the results of the inspection of I-9 Employment Eligibility Verification forms or other employment records.
  • This notice is required to be hand delivered directly to the affected employee at the workplace, if possible. If hand delivery is not possible, the notice must be delivered by mail and email to the employee’s email address, if known, and to the employee’s authorized representative.
  • “The notice shall contain the following information:
  1. A description of any and all deficiencies or other items identified in the written immigration inspection results notice related to the affected employee.
  2. The time period for correcting any potential deficiencies identified by the immigration agency.
  3. The time and date of any meeting with the employer to correct any identified deficiencies.
  4. Notice that the employee has the right to representation during any meeting scheduled with the employer.”

Employers that fail to provide the required notices are subject to penalties of $2,000–5,000 for a first violation and $5,000–10,000 for each subsequent violation. AB 450 does not assess penalties against employers that fail to provide notice to employees at the express request of the federal government.

 

© 2018, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.
More immigration news is available on the National Law Review’s Immigration Page.

Some California “Sanctuary State” Employer Obligations Are Struck Down

On July 4th, U.S. District Judge John. A. Mendez issued an order enjoining California from enforcing parts of the California Immigration Workers Protection Act (Assembly Bill 450), a new state law that restricted private employers from cooperating with federal immigration enforcement.

Among other things, the law imposed fines on private employers of up to $10,000 per violation if they “voluntarily consent” to giving federal immigration authorities access to nonpublic areas of a “place of labor” and/or to employee records, and it mandated that the employer insist that the authorities obtain a judicial warrant or subpoena before such information would be turned over. Cal. Gov’t Code §§ 7285.1 and 7285.2. The court sided with the U.S. Department of Justice in finding that several provisions of AB 450 discriminate against private employers who cooperate with the federal government.

In his Order, Judge Mendez stated that “these fines inflict a burden on those employers who acquiesce in a federal investigation but not on those who do not.” Thus, the court found that “a law which imposes monetary penalties on an employer solely because the employer voluntarily consents to federal immigration enforcement’s entry into nonpublic areas of their place of business or access to their employment records impermissibly discriminates against those who choose to deal with the federal government.”

The court also struck down a provision of the law limiting an employer’s ability to re-verify an employee’s employment eligibility unless otherwise required by federal law on the ground that it “frustrates the system of accountability that Congress designed.” Cal. Lab. Code § 1019.2. The court left standing an employer obligation to warn employees in writing of an imminent inspection of I-9 forms by federal immigration authorities. Cal. Lab. Code § 90.2(a)(1).

This decision means that private sector employers may not be prosecuted for: (i) consenting to a federal immigration enforcement agent’s request to enter nonpublic areas in the workplace; (ii) granting federal immigration enforcement agents access to employee records; or (iii) re-verifying an employee’s eligibility to work in the United States. The decision will likely be appealed, which means there may be more twists in store.

 

© 2018 Proskauer Rose LLP.
This post was written by Anthony J Oncidi and Tracey L Silver of Proskauer Rose LLP.

“The Executive Order Has No Clothes!” Lawyer Moms of America Speak Out About Immigration Policy and Plan Action

News of children being taken away from their parents as both are sent to immigration detention centers has dominated the news cycle over the past few weeks, and a group of Lawyer Moms are doing something about it.  Specifically, the group is writing an open letter that demands a “just and humane” resolution to the crisis at the border, and they are planning a day of action to deliver their message directly to elected officials at their offices on June 29th.

The Trump Administration’s “zero-tolerance” policy has resulted in parents and children being separated at the southern border. And the images and audio of the distraught children and parents have prompted both Americans and pundits here and abroad to express their outrage.  The continuous media coverage and wide-spread outcry forced the issue and President Trump bowed to the political pressure, signing an Executive Order on Wednesday, June 20, saying that while the administration will enforce immigration laws “it is also the policy of this Administration to maintain family unity.”

Four self-described lawyer Moms, distraught by the images coming in the media surrounding this crisis, formed the group Lawyer Moms of America on Facebook.  Erin Albanese, one of the founding members says, that it all started with a Facebook posting.  One of the other co-founders, an immigration attorney, posted about her client, who had her child taken away and had not seen nor heard from her child in several weeks.  Albanese, says this story resonated, and she and the other co-founders thought, “there’s got to be something more that we can do.”

It turns out, there was.  The four co-founders, Tovah Kopah, Laura Latta, Elizabeth Gray Nuñez and Albanese started the group on June 7, and this group has grown to about 14,000 members as people are looking for ways to get involved and take action.  The group drafted an open letter to political leaders on the situation and are asking individuals and groups to sign it, they intend to deliver the letter on June 29th. Additionally, Albanese says, “we are working with organizations in this space that are already doing work and trying to amplify their efforts and connect people to places where they could volunteer or donate and get more information as well.”

Lawyers Mom’s Seek More than the Executive Order

The Lawyer Moms of America read the Executive Order and were not impressed.  Albanese says, “our catchphrase is ‘the Executive Order has no clothes’.  The more we look at it, the more unhappy we are.”   The group has determined that their number one concern is getting the families back together, and the Executive Order “EO” does not articulate how that is going to happen.  Albanese says, “The number one glaring issue is that it [the EO] doesn’t mention family reunification at all . . . It seems like there hasn’t really been a system for tracking families that have been separated and bringing them back together.”  This analysis has proven precedent, as of the 2500 children taken away from their parents, as of Saturday only 522 had been reunited.  Additionally, the Executive Order seems to solve the problem of family separation by creating indefinite detention, creating “internment camps” to house families for the foreseeable future, with little idea of when they will be released.  Albanese points out in her criticism of the Executive Order that, “Ending family separation by indefinite family detention is not a great fit.”  Perhaps most problematic, Trump’s Order does not address the root of the problem–the policy of “zero-tolerance” that created this situation in the first place.

This issue has proved a hot-button one for many, as it hits at something fundamental.  Albanese says, “Many have had a visceral reaction to this, because every one of us can put ourselves in that place or that child or that mother.”  With the situation far from resolved, there is still plenty of work to do.  Lawyer Moms of America have created a list of actions concerned individuals can take, and they are asking people to sign their open letter.  The Lawyer Moms of America group is aware that there are a lot of great groups at work on this issue, and they are focused on helping those groups in their respective missions.  Albanese says, “We are mobilizing and using the energy to help make some noise.   We’re trying to funnel resources to the folks that are already doing this and doing it well.”

On June 29, the group is looking to hand-deliver the letter to elected officials across the country, demanding action in a show of unity.  Albanese says, “Our goal would be to, at a minimum,  that we hit somebody’s office in every state. We’d love to hit every member of Congress’s office. But we’ll see if we get there.”

With a track record that includes a Facebook group growing from 4 to 14,000 members in a few days?  There’s a good chance it’ll happen.

 

Copyright ©2018 National Law Forum, LLC
This post was written by Eilene Spear of the National Law Forum, LLC.

Administration Considering New Rule on Lawfully Present Immigrants Who Use Public Benefits?

The Trump Administration reportedly is considering a new rule that would make it easier for the government to deny visas to individuals on “public charge” grounds. This has drawn the criticism of many New York legislators.

The Administration may have been contemplating the move for a while. In January 2017, when the first travel ban was implemented, the Administration reportedly had been working on a draft executive order meant to fulfill some of President Donald Trump’s campaign promises based on the assumption that “households headed by aliens (legal and illegal) are much more likely than households headed by native-born citizens to use federal means-tested public benefits.” That executive order was never signed and never formally released.

More than 70 New York State legislators, headed by Assemblyman Andrew D. Hevesi, sent a letter to Trump on June 8, 2018, opposing the proposed rule because they would “fundamentally and negatively alter who we are as a nation, directly threaten the health and well-being of millions of New Yorkers, and impose a significant economic burden on [New York].”

Under current regulations, the government may deny individuals seeking visas or permanent resident status if they likely will become “primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance, or institutionalization for long-term care at government expense.” That cash assistance includes Supplemental Security Income (SSI), Temporary Assistance for Needy Families (TANF), and state or local cash assistance programs known as “general assistance.” However, according to the USCIS Fact Sheet, simple receipt of those benefits does not necessarily lead to a public charge determination. “Each determination is made on a case-by-case basis in the context of the totality of the circumstances.” USCIS would not consider many government programs, including Medicaid, Children’s Health Insurance Program (CHIP), housing benefits, and unemployment compensation, among many others, in making public charge determinations.

Reportedly, under the proposed changes, programs not previously considered in making a public charge determination will be considered, including:

  • Certain health care subsidies

  • Some educational benefits, including Head Start

  • Affordable Care Act subsidies

  • Food Stamps, now known as Supplemental Nutrition Assistance Program (SNAP)

  • Women, Infants and Children assistance (WIC)

  • CHIP

  • Certain housing benefits

  • Transit vouchers

The New York legislators noted that immigrants, including those with U.S. citizen children, might stop enrolling in healthcare programs to preserve their ability to obtain immigration benefits. “It is not difficult to imagine the dire outcome for New York of hundreds of thousands of children disenrolling from health insurance benefits,” they observed.

The proposal has not yet been approved by Secretary of Homeland Security, Kirstjen Nielsen. The New York legislators have urged the Administration “to reject outright this ill-advised change in policy and recognize that this nation is not strong in spite of immigration; it is strong because of immigration.” States with large immigrant populations (such as New York and California) would be particularly affected by any change.

A Migration Policy Institute study found that almost half of noncitizens legally in the U.S. could be affected by the proposed rule – only three percent are affected by the current rule. Moreover, studies have shown that native-born Americans use public benefits at roughly the same rate as the foreign-born population.

Jackson Lewis P.C. © 2018
This post was written by Enrique Alberto Maciel-Matos of Jackson Lewis P.C.
Read more Immigration news on the National Law Review’s Immigration Page.

Temporary Protected Status for Honduras to End in January 2020

In a not unexpected move, the Secretary of Homeland Security, Kirstjen M. Nielsen, announced on May 4, 2018 that Temporary Protected Status would terminate for Honduras on January 5, 2020. This will give the approximately 60,000 Honduran TPS beneficiaries eighteen months to arrange for their departure or seek an alternative lawful immigration status.  The American Immigration Council has noted that these TPS beneficiaries may have as many as 50,000 children who are U.S. citizens.

TPS for Hondurans began in 1999 as a consequence of Hurricane Mitch. Secretary Nielsen noted that “conditions in Honduras that resulted from the hurricane have notably improved . . . [and] Honduras has made substantial progress in post-hurricane recovery and reconstruction.”

Representative Ileana Ros-Lehtinen (R. Fla.), advocating for legislation that would allow immigrants who received TPS prior to 2011 to apply for legal permanent residence, stated: “Sadly, Hondurans are only the latest group of people in my South Florida community losing their TPS status this year following Haitians, Nicaraguans, and Salvadorians. The administration’s wrongheaded decision to rescind TPS for thousands of Hondurans in the United States will impact their lives in a tragic way. The loss of these hardworking people will have a negative impact on our economy, in addition to disrupting so many lives in our community.”

Other advocates for TPS have noted that Honduras is regularly listed as one of the world’s most dangerous countries and that Honduras is not ready to repatriate the TPS beneficiaries due to poverty, political unrest, a recent three-year drought and widespread gang violence.

Those Hondurans currently in TPS status will be able to re-register and extend their EADs until January 5, 2020. Details about this process will be forthcoming in the Federal Register. Hondurans should not submit re-registration applications until after the announcement appears.

 

Jackson Lewis P.C. © 2018
This post was written by Forrest G. Read IV of Jackson Lewis P.C.

Report: New Internal Oversight Division within USCIS to be Established

The Washington Post has reported that USCIS is establishing an internal oversight division. The new division’s purpose, in part, would be to monitor more closely officers who are too lenient in assessing applications for permanent residence and citizenship, including overlooking negative factors such as misdemeanors and the receipt of government benefits (e.g., food stamps). Employees of USCIS would be encouraged to report any such observed “misconduct” by other staff to the new office, which would report directly to Director Francis Cissna.

Establishing this division follows changes Cissna recently made to the USCIS mission statement. That revised statement emphasizes ensuring that benefits are not provided to those who do not qualify, moving away from prioritizing customer (i.e., applicant) satisfaction.

A USCIS spokesman said the agency has no official announcement to make regarding any reorganization at this time, but did not deny such a division is being considered.

 

Jackson Lewis P.C. © 2018
This post was written by Forrest G. Read IV of Jackson Lewis P.C.

The Four Pillars: Trump’s Immigration Plan

In his first State of the Union address, President Trump described four “pillars” to his immigration plan, with mixed reception. The pillars reinforce his campaign slogan to “Buy American, Hire American” and track with the immigration policy priorities he has previously outlined. These priorities include border security, interior enforcement and a merit-based immigration system.

The first two pillars address building a wall along the Southern border as well as a pathway to citizenship for certain undocumented foreign nationals presently in the United States, including about 800,000 young people (Dreamers) who were granted temporary status through the Deferred Action for Childhood Arrivals (DACA) program, now rescinded by President Trump.

The third pillar would end the diversity visa lottery (DV lottery). This program was established by Congress in 1990 and allocates 50,000 green cards to foreign nationals of countries with historically low U.S. immigration rates. Which countries are eligible can vary from year to year based on government-collected statistics as to how many foreign nationals have immigrated from those countries through other non-DV lottery programs. For example, in FY2018, most African countries were eligible, as were most European countries, except Great Britain. Countries that were not eligible included Pakistan, the Philippines, India, Mexico, Brazil, El Salvador, and Peru. The odds of being chosen are poor. Past data reveals about 14.5 million apply annually.

A common misconception, indeed one articulated by President Trump, is that the DV lottery program “randomly hands out green cards without any regard for skill, merit, or the safety of our people”. In fact, however, DV lottery participants must demonstrate that they meet certain educational or skilled work experience requirements in addition to clearing robust government background and security checks. Those selected in the DV lottery must be screened just like any other green card applicant – including family- and employment-based green card applicants. The process is arduous and can take months to complete. Security screenings include biometrics as well as name and fingerprint checks through multiple interagency government databases to identify potential criminal, national security, terrorism, organized crime, gang and other related issues. Applicants also must attend an in-person interview where they are again screened for potential red flags affecting admissibility.

The fourth pillar addresses family-based immigration and would limit it to immediate family members which include spouses and minor children. Referring to “chain migration”, President Trump stated that “a single immigrant can bring in virtually unlimited numbers of distant relatives.” This misconstrues current immigration law. The United States already limits family-based immigration. Family-based green cards are only available to spouses, children, parents and siblings (for U.S. citizens). Grandparents, aunts, uncles, cousins and other extended family members are ineligible. The number of family-based green cards are limited by annual quotas. For example, siblings of U.S. citizens who filed family-based petitions between 1994 and 2004 are only now current. In other words, the wait is long. Furthermore, sponsors of family-based green card applicants must also demonstrate that they have the financial means to support the intended beneficiary by signing a contract with the government agreeing to reimburse for any means-tested public benefit the beneficiary should receive, until the beneficiary has worked 10 years, becomes a US. citizen, dies or leaves the United States permanently.

U.S. immigration law is complex and a challenge to understand for those who aren’t regularly walking its trenches. For those curious about the Administration’s regulatory agenda, https://resources.regulations.gov/public/custom/jsp/navigation/main.jsp is a good place to start. Those interested in learning more about U.S. immigration facts can also access the American Immigration Council’s resources available at https://americanimmigration council.org/.

 

Copyright © 2018 Womble Bond Dickinson (US) LLP All Rights Reserved.
This post was written by Jennifer Cory of Womble Bond Dickinson.
More on Immigration at the National Law Review Immigration Page.

Trump Administration Releases Framework for Immigration Deal

The Trump Administration has released a new framework containing components of proposed immigration reform.

Not surprisingly, border security is at the top of the list and includes the following components:

  • New $25 billion trust fund for the (southern) border wall system
  • Funds for hiring more enforcement personnel
  • Immigration court reforms
  • Ending the “catch-and-release” policy and establishing an emphasis on the prompt removal of illegal border crossers
  • Ensuring the removal of criminal aliens, gang members, violent offenders and aggravated felons
  • Expedited removal for visa overstays

Legalization for DACA recipients and other DACA-eligible illegal immigrants is next:

  • Increase in the number of eligible individuals to 1.8 million (from 800,000)
  • Provision of a 10-12 year path to citizenship

Ending so-called “Chain Migration”:

  • Limit family sponsorship to spouses and minor children for U.S. citizens and Legal Permanent Resident sponsors
  • Exclude parents and other non-nuclear family members from sponsorship

Ending the Diversity Visa Lottery:

  • Reallocate the 50,000 diversity lottery visas to the family-based and employment-based backlogs. As of November 1, 2017, there were approximately 4 million applicants waiting for green cards, 112,000 are employment-based applicants.

This framework increases the number of “DACA-like” recipients but is otherwise similar to the principles that the Administration offered in October 2017 in exchange for DACA relief. The new proposal, however, does not include all of the earlier proposals such as requiring the use of E-Verify and eliminating federal aid to sanctuary cities.

It is reported that the Administration believes this framework could reach 60 votes in the Senate although its fate in the House is likely more uncertain. Due to the Administration’s DACA rescission in September 2017, Congress has only until March 2018 to find a solution for the future of the “Dreamers.”  More details about the framework are expected from the Administration soon.

Jackson Lewis P.C. © 2018
This post was written by Forrest G. Read IV of Jackson Lewis P.C.
Read more immigration news at the National Law Review’s Immigration page.

Raise Your Hand If You’re Confused about I-9 Reverifications for Employees with TPS

Temporary Protected Status (TPS) is a humanitarian benefit available to foreign nationals who are unable to return to their home countries because of certain temporary conditions including ongoing armed conflict such as civil war, an environmental disaster like an earthquake, hurricane, epidemic, or other extraordinary conditions. During TPS designation, qualifying foreign nationals are not removable from the US and can obtain work authorization and travel permission.

The Department of Homeland Security (DHS) has recently terminated TPS for nationals of El Salvador, Haiti, Nicaragua, and Sudan but has granted a period of orderly departure to allow time for this population to wind up their affairs in the US. This has left employers in a quandary about which TPS holders remain able to work and how to comply with Form I-9 Employment Eligibility Verifications.

To help ease the confusion, the chart below illustrates TPS-designated countries, the dates by which beneficiaries were required to re-register and, for those who do re-register, how long their current Employment Authorization Cards (EAD) are automatically extended pending decisions of EAD renewal applications. The TPS termination dates for El Salvador, Haiti, Nicaragua, and Sudan are also included.

Country

Re-Registration Period Ends

EAD Auto-Extended Until

TPS End Date

El Salvador

03/19/2018

09/05/2018

09/09/2019

Haiti

03/19/2018

07/21/2018

07/22/2019

Honduras

02/13/2018

07/04/2018

–

Nepal

12/27/2016

06/24/2017

–

Nicaragua

02/13/2018

07/04/2018

01/05/2019

Somalia

03/20/2017

–

–

South Sudan

11/20/2017

05/01/2018

–

Sudan

12/11/2017

05/01/2018

11/12/2018

Syria

09/30/2016

03/31/2017

–

Yemen

03/06/2017

09/03/2017

–

As reflected in the chart above, sometimes DHS issues a blanket automatic extension of the expiring EADs for TPS beneficiaries of a specific country in order to allow time for EADs with new validity dates to be issued. The automatic extension periods are available to those TPS beneficiaries who timely re-register and apply to renew their EADs.

Although an employer cannot specify which documents an employee can present in connection with the I-9 Employment Eligibility Verification process, TPS beneficiaries with automatic EAD extensions may present an expired EAD bearing the C19 eligibility code along with a Form I-797C Notice of Action indicating the eligibility category code A12 or C19. The codes need not be the same.

The M-274 Handbook for Employers is an excellent resource in determining how to complete the Form I-9 for those employees with automatic EAD extensions. It specifies that:

“For a current employee, update Section 2 of Form I-9 with the new expiration date as follows:

  • Draw a line through the old expiration date and write the new expiration date in the margin of Section 2;

  • Write EAD EXT in Section 2;

  • Initial and date the correction.”

For TPS beneficiaries, the new expiration date should correspond with the respective date as noted in the chart above. An employee whose employment authorization is automatically extended along with his/her EAD may cross out the “employment authorized until” date in Section 1, write the new expiration date as reflected in the chart, initial and date the change.

A new employee may present the expired EAD and Form I-797C Notice of Action indicating USCIS’s receipt of the employee’s timely filed renewal application. When completing Section 1, the employee should enter the corresponding date from the chart in the “employment authorized until mm/dd/yyyy” field.

When completing Section 2, the employer should enter into the Expiration Date field the date the automatic extension period expires, not the expiration date on the face of the expired EAD. The employer should enter the receipt number from the I-797C Notice of Action as the document number on Form I-9. Note that reverification is required when the employee’s automatic extension ends.

While an employer is not required to be an expert in I-9 documents and review, having access to reliable resources comes in handy and will take you to the head of the class.

 

Copyright © 2018 Womble Bond Dickinson (US) LLP, All Rights Reserved.
This post was written by Jennifer Cory of Womble Bond Dickinson (US) LLP.

Foreign Entrepreneurs – The Facts

The United States has long been attractive to foreign entrepreneurs due to the county’s historically open marketplaces and tolerance for new ideas and new products. Foreign entrepreneurs have come to the United States in many different ways; however, there is still no direct “entrepreneur visa” or immigration status for entrepreneurs looking to come to the United States in order to grow a U.S.-based business enterprise. On this account, oftentimes foreign entrepreneurs will run into roadblocks while in the United States as they seek to both grow their businesses and obtain and maintain lawful immigration status.

More so, with global competition growing, the United States is no longer the default stop for the best and the brightest to set up their shops—in fact, numerous studies have shown that a growing number of would-be entrepreneurs are choosing to start and run their business elsewhere due to financial and societal incentives. Other countries are seeking to prevent their native entrepreneurs from leaving as nations such as China and India set up policies to dissuade would-be entrepreneurial immigrants from leaving their home countries.

Legal Avenues for Foreign Born Entrepreneurs

Entrepreneurial Parole

On January 17, 2017, the Department of Homeland Security (DHS) published a final rule establishing a parole program for international entrepreneurs seeking to improve the ability of certain startup founders to remain in the United States legally in order to grow their companies and help create new jobs for U.S. workers.

On July 11, 2017, less than a week before the final rule was set to take effect, DHS delayed the implementation of the rule, foreshadowing that it would seek to rescind the rule altogether pursuant to an Executive Order (EO) signed by the President on January 25, 2017. DHS originally estimated that approximately 3,000 entrepreneurs will be eligible to apply under this rule annually. If the rule is allowed to take effect, these entrepreneurs would then be granted a stay of up to 30 months, with the possibility of an additional 30-month extension if they meet certain criteria, in the discretion of DHS.

As there are currently limited visa options for international entrepreneurs, this rule would create an avenue in our immigration system for innovators and allow entrepreneurs the opportunity to establish new businesses in the United States, contribute to the economy, and help maintain the United States’ competitive edge in the world marketplace of ideas.

E Visas

Some entrepreneurs may be eligible for an E visa, which is a visa category reserved for nationals of certain countries that have treaties with the United States. Specifically, there is the E-1 and the E-2 visa category—E-1s can be for foreign nationals who conduct “substantial trade” between the United States and their home country, while E-2s can be for foreign nationals who come to the United States in order to develop and direct the operations of an enterprise in which they have invested a “substantial amount” of capital. Also, the E visa applicant must control at least 50% of the company.

E visas are nonimmigrant visas, meaning that they are by nature “temporary”; however, there is no limit to the amount of extensions an applicant may be eligible for, and, in certain instances, it can lead to permanent residence (i.e., a green card).

H-1B Visas

Although most people probably don’t think of the H-1B visa as an “entrepreneurial visa,” with proper planning and advice the H-1B visa category can be a viable option for an entrepreneur looking to start their own company and invest in the United States. For USCIS to grant an individual an H-1B visa they must demonstrate that there is a valid “employer-employee” relationship; this can be an issue with entrepreneurs since they are more often than not their own bosses and therefore will have trouble establishing the requisite employer-employee relationship between themselves and their companies. Even so, one option for the entrepreneur would be to set up an independent board of directors for their company that can exercise control over the entrepreneur’s employment. This requires extremely careful planning and oversight and the assistance of competent counsel. Also, the fact that H-1B visas are statutorily capped at 85,000 per year makes this visa category less appealing for entrepreneurs.

EB-5 Investor Visas

The EB-5 program is a statutory program that allows for investors to obtain conditional permanent resident status (and eventually full permanent resident status) based on a qualifying investment of between $500,000 and one million dollars. The required investment amount is dependent on the type of program in which the investor is participating (whether it be participating in a USCIS-designated regional center, investing in Targeted Employment Area, or direct investment in a new or existing company); however, in any scenario, in order for the investor to eventually obtain their full-fledged permanent residency, they must be able to create at least 10 U.S. jobs within two years. If the investment is successful after the initial 2 year trial period, then the investor may apply for their permanent green card with USCIS.

EB-2 National Interest Waiver

Certain foreign nationals may be eligible for permanent residency pursuant to the National Interest Waiver (NIW) provision of the Immigration and Nationality Act (INA) if they either: (1) are members of the profession holding an advanced degree (or their equivalent); or (2) possess exceptional ability in the arts, sciences, or business, and they will “substantially benefit the national economy, cultural or educational interests, or welfare of the United States.” In most cases, such workers are also required to obtain a Labor Certification from the Department of Labor (DOL) prior to filing their petition with USCIS; however, the INA gives USCIS the authority to waive the Labor Certification requirement, in their discretion, if it is determined that it would be in the national interest to do so. More so, NIW cases allow for so-called “self-petitioners” (meaning that no job offer or employee sponsor is required), which is uncommon in U.S. immigration law. These features therefore make this category extremely desirable as it allows for both skipping the tedious and pedantic Labor Certification process and for petitioning without the sponsorship of an employer (something that is ideal for an entrepreneur seeking to start their own business in the United States).

When a foreign national’s work will be deemed to be in the “national interest” is subject to a three-part test, which includes: (1) the foreign national’s proposed endeavor has both substantial merit and national importance; (2) the foreign national is well positioned to advance the proposed endeavor; and (3) that, on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus a labor certification.  This new standard—which was announced in early 2017—is less demanding than the old standard, but will still undoubtedly provide challenges to immigrant entrepreneurs seeking to utilize the category.

Conclusion

As seen above, there are several solid options for immigrant entrepreneurs seeking to enter the United States in order to start, manage, and run their own businesses. However, petitioning the United States government for any sort of immigration benefit is a complex process which requires competent counsel, proper planning and close oversight.

 

© Copyright 2018 Murtha Cullina
This post was written by Michael J. Bonsignore of Murtha Cullina.
Read more on Immigration Matters at the NLR’s Immigration Page.