Tag: Foreign Nationals

Shorter Path to Green Card: New USCIS Guidance for EB-1 Eligibility for Foreign Nationals With Extraordinary Ability

For foreign nationals with “extraordinary ability” in the sciences, arts, education, business or athletics, the path to a green card normally has a much shorter route. The EB-1 extraordinary ability category is a type of employment-based, first-preference visa that has several advantages for a “small percentage of individuals” positioned to prove their expertise within a specific area. As indicated by the elite immigrant visa category, an extraordinary amount of documentation is required to meet the high threshold for EB-1 eligibility.

To provide an example of the evidentiary criteria, this category reserved for individuals with extraordinary ability requires that individuals demonstrate extraordinary ability through sustained national or international acclaim. To do so, applicants must meet at least three of the 10 criteria, or provide evidence of a major one-time achievement, such as a Pulitzer Prize, Oscar, or Olympic medal. In addition, applicants must provide evidence showing that they will continue to work in the area of expertise.

More specifically, the applicant must provide evidence of at least three of the following:

  • Receipt of lesser nationally or internationally recognized prizes or awards for excellence
  • Membership in associations in the field which demand outstanding achievement of their members
  • Published material about the candidate in professional or major trade publications or other major media
  • Judgment of the work of others, either individually or on a panel
  • Original scientific, scholarly, artistic, athletic, or business-related contributions of major significance to the field
  • Authorship of scholarly articles in professional or major trade publications or other major media
  • Display of work at artistic exhibitions or showcases
  • Performance of a leading or critical role in distinguished organizations
  • Command of a high salary or other significantly high remuneration in relation to others in the field
  • Commercial successes in the performing arts

While U.S. Citizenship and Immigration Services (USCIS) has been consistent in detailing the criteria to be demonstrated, the specific evidence deemed acceptable has evolved over the lifetime of this visa category. Last September, USCIS updated its policy manual on employment-based first-preference (EB-1) immigrant petitions in the Extraordinary Ability classification. Specifically, USCIS provided examples of comparable evidence and the way in which USCIS will “consider any potentially relevant evidence.”

To further clarify the acceptable types of evidence, USCIS issued another policy manual update on Oct. 2. The most recent update provided additional clarification, stating:

  • “Confirms that we consider a person’s receipt of team awards under the criterion for lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor;
  • Clarifies that we consider past memberships under the membership criterion;
  • Removes language suggesting published material must demonstrate the value of the person’s work and contributions to satisfy the published material criterion; and
  • Explains that while the dictionary defines an “exhibition” as a public showing not limited to art, the relevant regulation expressly modifies that term with “artistic,” such that we will only consider non-artistic exhibitions as part of a properly supported claim of comparable evidence.”

These clarifications likely will provide more consistency in the adjudication process.

This article was co-authored by Tieranny Cutler, independent contract attorney.

© 2024 BARNES & THORNBURG LLP
For more on EB-1, visit the NLR Immigration section

You Are Sponsoring a Foreign National Employee for Permanent Residency, Can You Clawback Some of the Fees?

Companies usually hire a foreign national who requires visa sponsorship because they cannot find a U.S. worker with those skill sets, which is frequently in the STEM fields. However, visa sponsorship comes with significant costs to the employer. Employers may be able to recover a portion of the immigration sponsorship fees by implementing what are called “clawback” provisions into their employment agreements. Clawback provisions are terms in the employment agreements that, in the event of a resignation by the employee before a certain date, require the employee to reimburse the employer for a portion of the costs or fees associated with his or her visa sponsorship.

Not All Visa Fees Can Be Clawed Back

But first, it’s important to understand which sponsorship fees and costs are potentially recoverable and which are prohibited from being “clawed back.”

  • H-1B Petition: Because these visas have a prevailing wage set by the U.S. Department of Labor (DOL) a H-1B employer may not clawback any attorney fees or government filing fees used to obtain the H-1B petition approval by U.S. Citizenship & Immigration Services (USCIS).
  • Other Visas: The same restriction applies to the Australian E-3 visa and the Singapore/Chile H-1B1 visas as well as the H-2A, H-2B, and J-1 visas.
  • PERM Labor Certification Sponsorship for Permanent Residency: PERM Is the most common method for an employer to sponsor a foreign national employee for permanent residency (green card). It is done by conducting recruitment and proving to DOL that no qualified U.S. worker applied for the position. An employer is required to pay for all of the fees and costs associated with the PERM process.
  • I-140 Immigrant Petition: After DOL certifies the PERM application and agrees that no qualified U.S. worker is available, the employer must file an I-140 immigrant petition with USCIS. The attorney fees and costs for the I-140 may be clawed back. The purpose of the I-140 immigrant petition is for the employer to prove to USCIS that the foreign national has the required education, experience and special skills outlined in the PERM filing with DOL. In addition, the I-140 includes financial documents showing that the employer has the ability to pay the offered wage.
  • I-485 Adjustment of Status to Permanent Resident filing: The employer may clawback the fees and costs associated with the I-485 adjustment of status application (green card).

Practice Pointers

  • Still At Will: The clawback provisions should be in writing. It should also indicate that the employment is still at will, if applicable.
  • Final Paycheck: The majority of states, including California, do not allow an employer to deduct anything from a final paycheck without the express consent of the employee. This includes fees and costs pursuant to the clawback provision.
  • Deterrence: Given that an employer cannot clawback from the final paycheck and suing a former employee to collect the amount in controversy is not always practical, a clawback provision can be used as a deterrence for early departure.

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Copyright © 2024, Sheppard Mullin Richter & Hampton LLP.

US to Expand Vaccination Requirement for Foreign National Travelers to Include All Land Border Crossers from Canada and Mexico in January

Starting Jan. 22, 2022, the Biden administration will require foreign national travelers engaged in essential travel to be fully vaccinated when crossing U.S. land borders or ferry terminals. Essential travel includes travel for work or study in the United States, emergency response, and public health. The new rules apply to foreign nationals; U.S. citizens and permanent residents may still enter the United States regardless of their vaccination status but are subject to additional testing requirements.

The new rules for essential travelers are in line with those that took effect Nov. 8, 2021, when the Biden administration lifted travel restrictions to allow fully vaccinated travelers engaged in non-essential (leisure) travel to enter the United States.

While much cross-border traffic was shut down in the early days of the COVID-19 pandemic, essential travelers have been able to travel unimpeded via land borders or ferry terminals. Starting Jan. 22, 2022, however, all foreign national travelers crossing U.S. land borders or ferry terminals – traveling for essential and non-essential reasons – must be fully vaccinated for COVID-19 and provide related proof of vaccination. Any exceptions to the vaccination requirement available to travelers at U.S. land borders are expected to be limited, just as exceptions currently available for air travel have been limited. See CDC guidance for details.

©2021 Greenberg Traurig, LLP. All rights reserved.
For more on vaccine requirements, visit the NLR Coronavirus News section.

Summary of Executive Order: Protecting the Nation from Terrorist Attacks by Foreign Nationals

President Trump Terrorist Attacks by Foreign Nationals

President Donald Trump signed a third Executive Order (EO) related to immigration on Jan. 27, 2017.  The stated purpose of this EO is to protect the United States from terrorism stemming from foreign nationals of other countries by limiting entry and visas to certain individuals, titled “Protecting the Nation from Foreign Terrorist Entry into the United States.” In practice, it will block admission to the United States for at least 90 days for nationals of seven countries (Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen) who hold nonimmigrant visas, such as H-1Bs and L-1s, and green card holders.

Suspension of Visa Issuance

The text of this EO calls for the suspension of issuance of visas to nationals of certain countries where concerns of terrorism arise. The Secretary of Homeland Security, consulting with the Secretary of State and the Director of National Intelligence, is tasked with the duty to submit a report to President Trump, in 30 days, regarding the review of information necessary for visa adjudications to verify individual identity and a list of countries that are of concern.

To alleviate the burden of investigation by the agencies, and to ensure that review is thoroughly completed with the resources needed, President Trump proclaims in the Executive Order that any immigrant and nonimmigrant entry into the United States shall be suspended for 90 days by persons who are nationals of Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. This 90 day entry ban excludes those traveling to the United States on diplomatic visas, NATO visas, C-2 visas for travel to the United Nations, and G-1, G-2, and G-4 visas, but includes those entering the United States on L-1, H-1B, and most work visas.

The definition of “national” typically refers to a person born in that country, who may or may not be a citizen of the country. In some cases, it can also refer to the children of such individuals born in other countries to parents who in turn were born in one of the listed countries.  Because of the broad way in which the Order appears to reference “nationals,” in the process of enforcement of the Order, it has been interpreted to include all those fitting the definitions outlined above.

Once the report is received by the Secretary of State regarding the information needed to continue adjudication of immigrant and nonimmigrant visas, information shall be requested of all foreign governments that have not supplied such information within 60 days of notification. After the 60 day period has ended, the Secretary of Homeland Security, consulting the Secretary of State, is required to submit to President Trump a list of countries recommended to be put on a list that would prohibit the entry of foreign nationals from the countries that do not supply the required information. The list of countries would exclude its nationals who travel for the same categories as mentioned above. The Executive Order includes language that gives the Secretary of Homeland Security and the Secretary of State the discretion to add additional countries to this list for President Trump’s review. In addition, visas may also be issued on a case-by-case basis to nationals even if their countries are on the list. Four reports, each submitted within 30 days of the Order to President Trump, are required to document the progress.

Implementing New Standards for Screening Those Seeking Immigrant and Nonimmigrant Visas

The Secretaries of State and Homeland Security, the Director of National Intelligence, and the Director of the FBI are tasked with implanting a program that will develop and change the uniform screening standard and procedure at the U.S. consulate, including the following:

  • Establishing a database of identity documents to ensure they are not used by multiple applicants;
  • Application forms with amended questions aimed at identifying fraudulent answers and malicious intent;
  • Questions to evaluate whether the applicant will be a positively contributing member of society;
  • Process to assess whether the applicant has the intent to commit criminal or terrorist acts in the United States.

Suspensions for the Fiscal Year 2017

President Trump, through this Executive Order, is temporarily suspending the following until further review and notice:

  • Suspension of the U.S. Refugee Admission Program (USRAP) for 120 days. During this period, a review will be conducted to determine and change the adjudications procedure. Refugee applicants already in the process may be admitted upon the initiation and completion of the revised procedures. Refugee claims made by individuals on the basis of religious-based persecution (if the religion is a minority religion in the country of nationality) will be made a priority once USRAP is continued;
  • Suspension of Syrian refugees until further determination;
  • Suspension of refugee entry until admissions are permissible, and at that time, such numbers shall not exceed 50,000 per fiscal year; and
  • Suspension of the visa interview waiver program for anyone seeking a nonimmigrant visa.

The Executive Order includes a provision that would allow the admission of refugees on a case-by-case basis, if it is in the national interest, or when the person is already in transit and denying admission would cause undue hardship. A report must be submitted by the Secretary of State on claims made by individuals on the basis of religious-based persecution within 100 days of the Order, and a second report within 200 days of the Order. The Order also includes a provision to assist state and local jurisdictions with their involvement in the resettlement process.

Other Provisions

The Executive Order includes other provisions related to the entry of foreign nationals into the United States. These include the following:

  • Expedited completion of the biometric entry-exit tracking system. Three reports shall be submitted within the first year of the Order, and a report shall be submitted every 180 days until the system is completed and operational;
  • Review and Change of Visa Validity Reciprocity.  The Secretary of State is required to review all nonimmigrant visa reciprocity agreements, including all categories, duration of time, and fees. If the foreign country does not treat the U.S. national in a reciprocal manner, the Secretary of State will adjust the conditions to match;
  • Reports for Transparency. The Secretary of Homeland Security will publish a report for public viewing, every 180 days, a list of foreign nationals who have been charged, convicted, or removed from the United States based on terrorism-related activity; the number of foreign nationals radicalized after entry into the United States; information regarding the number and types of acts of gender-based violence against women; and any other relevant information.
ARTICLE BY Kristen W. Ng of Greenberg Traurig, LLP
©2017 Greenberg Traurig, LLP. All rights reserved.

Customs and Border Protection to Begin Collecting Exit Data on Certain Foreign Nationals

U.S. Customs and Border Protection (CBP) has announced that it will begin collecting biographic and biometric data from some foreign national travelers in a test program when they depart the United States at Atlanta’s Hartsfield-Jackson International Airport

The biometric and departure data will be collected through use of an “enhanced mobile device” that will allow CBP to record exit information efficiently and streamline inspection queries for foreign national travelers. All test passengers will have their fingerprints and passports scanned by a CBP Officer using the mobile device on the loading bridge of selected flights departing the U.S. Each traveler’s departure data will be matched to the digital biometrics information that was collected when he or she arrived in the country. This information will be stored and managed by the U.S. Department of Homeland Security (DHS). Only non-U.S. citizens will have their information collected and processed.

The test program is expected run through June 2016, eventually expanding beyond Atlanta into the following major air travel ports: Chicago, Dallas, Houston, Los Angeles, Miami, Newark, New York, San Francisco, and Washington-Dulles.

ARTICLE BY Sujata Ajmera of Jackson Lewis P.C.
Jackson Lewis P.C. © 2015