Tag: green card

EAGLE Act Aims to Reform Employment-Based Green Cards, H-1B Visa Program, and Family-Sponsored Visas

Rep. Zoe Lofgren (D-Calif.), chair of the House Subcommittee on Immigration and Citizenship, and Rep. John Curtis (R-Utah) have introduced the Equal Access to Green Cards for Legal Employment (“EAGLE”) Act. Its reforms focus on employment-based green cards, the H-1B visa program, and family-sponsored visas.

The EAGLE Act

The proposed bill makes it harder for fraud to occur. The bill requires all H-1B job postings to be listed on the U.S. Department of Labor (“DOL”)‘s website for 30 days. Employers are prohibited from employing more than 50% of their workforce through H-1B jobs. The Act also requires employers to adjust wage requirements for H-1B jobs in a way that reflects changes in the cost of living throughout the United States.

The bill’s sponsors strongly feel that the proposed changes will reduce H-1B visa fraud, which will, in turn, allow American employers truly in need of foreign workforce to meet their demands better, even without increasing the H-1B visa cap.

The bill also proposes a remedy to the current green card backlogs. By phasing out per-country caps by 2032, the bill would prevent U.S. Citizenship and Immigration Services (“USCIS”) from being overwhelmed with an enormous number of backlogged applications.

Present Immigration System Requires Reforms

It is widely known that the immigration system has had many setbacks, and reform is long-awaited. The last major reform was in 1990. At least five presidents have channeled their efforts in proposing drastic immigration reforms, but some have seen little success.

The present immigration system has placed caps on many visa programs, restricting the number of visas issued. This restricts employers with an immediate need for workforce, as they cannot find enough workers to employ within the United States. Since the pandemic, the U.S. has seen acute labor shortages, causing employers to lobby for an increase in the employment-based visa cap.

Employment-based permanent resident visas are subject to a 7 percent per-country cap. India and China have the maximum number of skilled workers on employment-based visas, resulting in skilled workers from these countries waiting for decades for permanent residency. As a result, these skilled workers are often unable to immigrate to the United States.

“We are now seeing recruiters from outside America luring those with highest skills away from the U.S.,” Lofgren stated in a press release. Unlike the United States, many countries, like Canada and Australia, use merit-based immigration programs. In the merit-based immigration system, potential immigrants are scored based on language skills, educational degrees, and salary offers. Visas are offered to those who meet the minimum requirements.

Reforms to H-1B Visa Program

One of the most coveted visa programs employers use is the H-1B, an employment-based visa for immigrants in a specialty occupation. Each year, only 85,000 H-1B visas are issued, including 20,000 set aside for applicants with master’s degrees and PhDs from American universities. There are far more applicants each year than the numeric limit allows, so a lottery is held. The H-1B program is also criticized for fraud by employers, some of whom employ foreign workers and pay them less than they would pay equivalent American workers.

©2021 Norris McLaughlin P.A., All Rights Reserved

Article By Raymond G. Lahoud of Norris McLaughlin P.A.

For more articles on green cards, visit the NLR Labor & Employment section.

UK Graduate Visa Application Opened on 1 July 2021

Following the UK’s withdrawal from the European Union and, therefore, the end of free movement, there have been questions as to how and when a postgraduate visa would be available to help international students currently studying in the UK. In September 2019, the UK government announced plans for a post-study work visa for international students as part of a new points-based immigration system. This new route, the Graduate visa, opened on 1 July 2021.

Eligibility

In order to be eligible for the Graduate visa, an applicant must already be in the UK on a Student visa or a Tier 4 (General) Student visa. An applicant must also have successfully completed a UK bachelor’s, postgraduate or other eligible course prior to applying for the Graduate visa.

Duration of Visa

The Graduate visa will last for two years, but an eligible individual with a Ph.D. or doctoral qualification will be granted a three-year Graduate visa. The period of the visa will start from the day that the UK Home Office approves the application.

The Graduate visa is not extendable and time spent on the visa will not count toward settlement in the UK. Once a Graduate visa holder secures employment, the visa holder can extend a stay in the UK by switching to the Skilled Worker visa prior to the expiration of the Graduate visa. The Skilled Worker visa would allow the visa holder to start accruing time toward indefinite leave to remain in the UK (typically five years for a holder of a Skilled Worker visa).

As the Graduate visa permits work at any skill level, it allows greater flexibility than another type of work visa. This means Graduate visa holders can find temporary employment to pay the bills while they secure more suitable long-term skilled roles, or they can enter professions at lower levels, build over two years, and apply for the Skilled Worker visa.

In addition, on the Graduate visa, applicants may look for work, do voluntary work, travel abroad and return to the UK, and be self-employed. It does not permit recourse to public funds, and it is not available to professional sportspeople.

Application Prerequisites

Individuals must apply for the Graduate visa before their Student visa/Tier 4 (General) student visa expires. Due to the requirement of having successfully completed a course of study in the UK in order to be eligible, applicants must wait until they have received confirmation that they have passed their course, but it is not necessary for applicants to wait until they have graduated or received certificates in order to apply for the Graduate visa.

© 2021, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.
For more articles on immigration, visit the NLRImmigration section.

Judge Again Finds DACA Program Illegal, Blocks New Applications, Allows Renewals

The Deferred Action for Childhood Arrival program (DACA) is not legal, U.S. District Court Judge Andrew Hanen has ruled in State of Texas et al. v. U.S. et al.

Judge Hanen issued an injunction preventing the Department of Homeland Security (DHS) from accepting new DACA applications. However, recognizing the substantial reliance interests involved, he allowed current DACA beneficiaries to continue to renew their statuses and their employment authorization – at least while appeals are pending. The Biden Administration immediately responded that it would appeal the decision.

The case is expected to wind its way through the U.S. Court of Appeals for the Fifth Circuit (in New Orleans) and end up at the U.S. Supreme Court for a third time. The first time was when the Supreme Court heard an appeal of Judge Hanen’s earlier decision that the extension of DACA and the creation of the Deferred Action for Parents of Americans and Lawful Permanent Residents were illegal. In that case, the Supreme Court tied, leaving Judge Hanen’s nationwide injunction in place. The second time, the Supreme Court ruled on narrow technical grounds that the Trump Administration had not followed the proper procedures when it attempted to terminate the DACA program.

The question now is whether Congress will pass legislation to protect the “Dreamers” and provide them a path to permanent residence and U.S. citizenship. The American Dream and Promise Act, passed by the House in 2021, provides those paths, but the full bill is not likely to pass in the Senate. A carve-out of the DACA provision might be possible. Otherwise, the thousands of individuals who were brought to the United States by their parents before the age of 16, will remain in limbo.

DACA was put into place by the Obama Administration in 2012 and has been under attack since 2017, when the Trump Administration announced it would terminate DACA. President Joe Biden has stated that Dreamers are “part of our national fabric and make vital contributions to communities across the country every day.” President Biden recognized the Dreamers’ contributions have been particularly evident during the COVID-19 pandemic, as “[m]any have worked tirelessly on the frontlines throughout this pandemic to keep our country afloat, fed, and healthy – yet they are forced to live with fear and uncertainly because of their immigration status.”

Judge Hanen’s decision in State of Texas v. U.S. does not affect the status or employment authorization of any current DACA beneficiaries. DACA beneficiaries who have unexpired employment authorization documents do not need to reverify employment authorization as a result of this ruling (although they will need to reverify prior to the expiration of their employment authorization).

Jackson Lewis P.C. © 2021
For more articles on DACA, visit the NLRImmigration section.

International Travel After the US Travel Ban is Lifted – What Visa Holders Can Expect

At some point this year, we expect that the United States will lift the travel ban that includes all of the Schengen countries, the United Kingdom, China, and others.  While there have been many rumors about when this will happen, the US government remains silent.

When the United States lifts the travel ban, US visa holders in the United States will have many questions about whether they can travel abroad, when they can return, and what impediments they may face.  The following FAQs address these questions.  We will update them as needed.

1. When the United States lifts the travel ban, will I still need a National Interest Exception?

Answer:  No.  If the travel ban is completely lifted and no other restrictions are put in its place, travel will return to pre-pandemic “normal.”  In other words, you will not require any special advance permission to fly directly to the United States from countries that were previously under the travel ban.  You will also not need to show that you are exempt because you have an immediate relative (spouse or child) who is a US citizen.

2. When the United States lifts the travel ban, will I need a Covid vaccination to return after international travel?

Answer:  Possibly. The travel ban may be lifted in phases, allowing first for travel of vaccinated individuals.

3. When the United States lifts the travel ban, will I need a negative Covid test to return after international travel?

Answer:  Possibly. That will be up to the CDC. As of early June 2021, a negative Covid test is required for all US-bound air passengers 2 years of age or older, regardless of where they are flying from. If the CDC decides to change this rule, it will be announced on the CDC website.

4. When the United States lifts the travel ban, can I leave the United States and travel to my home country to see my family and friends?

Answer:  As a US visa holder, you are always free to leave. The issue is when you can return, which may depend on whether you require a US visa in your passport that only US consulates can issue.  (See below.)

5. Will I need a US visa in my passport in order to return to the United States to resume my current nonimmigrant visa status?

Answer:  Except for Canadian passport holders (other than E visa holders), every employment-based nonimmigrant visa holder must have a valid, unexpired visa in their passport that matches their work-authorized status, as indicated on their USCIS approval notice (Forms I-797 or I-129S) in order to return to the United States.  Family members holding dependent status must also have valid, unexpired visas in their passports to return to the United States.

6. My current visa is unexpired and is in the same category as my approval notice.  Will I need a new visa to return to the United States after travel abroad?

Answer: As long as you return with your unexpired, valid visa and your approval notice before either expire, US Customs should admit you in the same visa status through the end date listed on the approval notice.  For example, if you have in your passport an unexpired H‑1B visa that references a prior employer’s name and your most recent H-1B approval notice is for a new employer with a longer expiration date than listed on the visa, the two documents together will allow a US Customs officer to admit you in H-1B status. The visa and the approval notice must be in the same visa classification, however.

7. My current visa has expired, but I have an approval notice extending my status in the same visa classification.  Do I need a new visa to return to the United States?

Answer:  Yes, you will need to use the new approval notice to obtain a new visa at a US consulate abroad.  Your family members will need new dependent visas as well.

8. The visa I used to enter the United States is in a different visa classification than the approval notice my employer obtained for me, which changed my visa classification.  Do I need a new visa in order to return to the United States?

Answer:  If the USCIS changed your status after you arrived in the United States, you will need a new visa in your passport in the same visa classification listed on the new approval notice.  For example, if you entered using an F‑1 student visa, and then a US company filed an H-1B change of status petition for you and approved by USCIS, you will need an H-1B visa in your passport to return following travel abroad.  Your family members will need new dependent visas as well.

9. I heard that if the USCIS extended my status and/or changed my status to a new visa classification, I can travel to Canada or Mexico and back without getting a new visa in my passport.  Is this true?

Answer: Yes, it is true, but only if you are visiting either of those countries for 30 days or less, you do not apply for a US visa while there, and you do not travel to another country in between departing from and returning to the United States.  This process is the “automatic revalidation of visa at port of entry”.  You should consult with an attorney before using this provision of law to make sure that it is still available when you plan to return and that you have the necessary documentation to return after your short trip.

10. I heard that scheduling visa appointments at US consulates has been very difficult during the pandemic and while the travel ban has been in place.  Once the United States lifts the travel ban, will it be easier to schedule visa appointments abroad?

Answer: Possibly, but probably not immediately. We expect lingering backlogs in visa appointments. While we do expect that US consulates will return to pre-COVID appointment scheduling, we do not expect it to happen very quickly.  When the United States lifts the travel ban, the consulates may not be operating at full staff.  Even those that will be fully staffed will not likely return immediately to pre-COVID scheduling, as there is still a risk of COVID transmission in many countries.  As the vaccine rollout becomes more widespread, US consulates are likely to make more appointments available.  For countries with rising COVID cases, appointments will remain hard to secure.  At this time, most US consulates are only scheduling emergency appointments, and those scheduling regular appointments are doing so for late 2021 and early- to mid-2022.

11. I have a visa appointment scheduled for early 2022.  If the consulate opens up more appointments, will my appointment be moved to an earlier date?

Answer:  It may depend on the specific consulate whether it will automatically move appointments to earlier dates, or whether it falls on the applicant to reschedule.  It is advisable to check the consulate’s website often to see if earlier appointments become available.  This may require checking daily.

12. What are the chances that I can secure an emergency appointment to obtain my visa?

ANSWER:  Low. At this time, US consulates are inundated with emergency appointment requests, most of which are denied.  Unless the emergency rises to a life-or-death situation, you can assume that you will not get one.  However, there is no harm in making the request.

13. Can I apply for a US visa at a US consulate in a country other than my home country?

ANSWER: Probably not. Because visa appointments are difficult to schedule, most US consulates are not entertaining visa applications from third-country nationals and are only granting visa appointments to local citizens or long-term residents.

14. Can I renew my visa while I am in the United States?

ANSWER:  Unfortunately no. The ability to apply to the State Department for “visa revalidation” ended after the tragic events of 9/11/2001.  Therefore, you must apply at a US consulate abroad.  There are rumors that the US may reinstate visa revalidation in the United States at some point to relieve the backlogs at US consulates, but we do not know if or when this could become a reality.

15. I have an unexpired B-1/B-2 visitor’s visa in my passport.  Can I use it to return to the United States to continue my employment?

ANSWER: No. You cannot use a B-1/B-2 visa (or any other nonimmigrant visa not related to your work-authorized approval notice) to enter the United States for employment.  Doing so would be visa and immigration fraud, and your US employer would be at risk for employing you when not authorized to do so.  You also should not use it to enter the United States intending to have your employer re-sponsor you for a work-authorized change of status, as you cannot enter as a visitor with the intention of changing status after arrival.

16. I have an unexpired ESTA (Visa Waiver) registration (or can obtain the registration). Can I use it to return to the United States to continue my employment?

ANSWER:   No. You cannot use ESTA to enter the United States for employment.  Doing so would be visa and immigration fraud, and your US employer would be at risk for employing you when not authorized to do so.  You also cannot apply to extend your ESTA visit or to change to a new status while you are in the United States.

17. Can I ask for Congressional assistance to schedule a visa appointment?

ANSWER: You can certainly reach out to your member of Congress for such assistance; however, it is unlikely that you will be successful, as Congressional offices are inundated with such requests.  If you have compelling facts, it may help, but unless you have a life-or-death situation, Congressional assistance is not likely to help.

18. If I depart the United States and cannot get a new visa, can I work from abroad until I can obtain the new visa to return to the United States?

ANSWER:  It depends on your company’s policies. Your employer may not allow you to perform your US position from abroad, as it may raise tax or other legal issues.  This is something you should discuss with your manager, human resources, and/or your global mobility department before making plans to depart.

Copyright © 2021, Hunton Andrews Kurth LLP. All Rights Reserved.
ARTICLE BY Ian P. Band of Hunton Andrews Kurth
For more articles on international travel, visit the NLR Immigration section.

Legislation to Create a Pathway to Legalization Passes House and Goes to Senate

On March 18, 2021, the House passed two bills designed to create paths to legalization for certain groups of immigrants. Both the Dream and Promise Act of 2021 and the Farm Workforce Modernization Act have been sent to the Senate.

American Dream and Promise Act

Legislation that will create a route for legalization for Dreamers (residents who were brought to the United States as children) has passed the House. The legislation received bipartisan support, although a closer battle can be expected in the Senate. The bill passed 228-197, with nine Republicans joining the Democrats.

The bill’s sponsor said that this legislation will bring relief to 2.5 million undocumented immigrants. The legislation covers all the undocumented immigrants who entered the U.S at the age of 18 years or younger. This legislation also includes immigrants who have protection under the Deferred Action for Childhood Arrivals (DACA). It would also provide a path to legal status for individuals with Temporary Protected Status (TPS) as of 2017 and Deferred Enforced Departure (DED), which are the two forms of temporary protection for immigrants from countries that face a crisis.

The bill “eliminates the ambiguity in their lives and recognizes the talents and indispensable contributions Dreamers make to our country,” Rep. Lucille Roybal-Allard, a primary sponsor, said on the House floor. “Some are married or educated, they speak the language, they’re working, they pay the taxes,” said Rep. Fred Upton of Michigan. “When you get to know these people, and I do, it breaks your heart.”

Pathway to Legalization

The Biden administration expressed its support for this legislation in a statement before the vote on March 18. “Americans recognize that our Nation is enriched by the contributions of immigrants. [The bill] is a critical milestone toward much-needed relief for the millions of undocumented individuals who call the United States home,” the statement said.

Farm Workforce Modernization Act

The House also passed the Farm Workforce Modernization Act by a 247-174 vote. Thirty Republicans voted for the bill, while one Democrat voted against it.

The legislation will provide a temporary status, Certified Agricultural Workers, for those who were agricultural workers for at least 180 days during the past two years. Spouses and children of the workers can also apply under the Act. Undocumented farmworkers will have to pay a fine and engage in additional agricultural work depending on their length of period they have performed agricultural labor in the United States.

Those with ten years of previous agricultural experience will be eligible to apply for a green card after working four more years. Those with less than ten years of experience will have to work eight more years to apply.

The legislation also streamlines the process to get an H-2A visa, which is a work visa for foreign citizens to work temporarily in the United States. This bill is seen as a welcome measure for many in the agricultural sector, as there has always been a dearth of farmworkers in the United States. Undocumented farmworkers are especially vulnerable to the COVID-19 virus, as they have limited access to medical facilities and are often underpaid due to their immigration status.

©2020 Norris McLaughlin P.A., All Rights Reserved

ARTICLE BY Raymond G. Lahoud of Norris McLaughlin P.A.
For more articles on immigration, visit the NLR Immigration section.

Delays at USCIS Affecting F-1 Students with Work Authorization

With delays at USCIS lockbox and service centers due to COVID-19 and an unprecedented number of applications, those seeking to apply or renew their Employment Authorization Documents (EAD) have experienced issues in commencing or continuing employment.   One class of impacted nonimmigrants is F-1 students, who may apply for work authorization after graduation, called Optional Practical Training (OPT), and if the student has graduated with a STEM degree, may apply for an additional 24 months of STEM OPT.  Below are outlined issues, USCIS responses, and other considerations for both OPT and STEM OPT EAD applications.

Initial OPT period (12 months)

Issue

For students applying for their initial 12 months of OPT, they must complete the 12 months within 14 months of the end of their program.  Due to delays from USCIS because of backlogs, the EAD applications can take several months to receipt, let alone adjudicate.  A student applying for an EAD may apply up to 90 days before, and 60 days after, their program end date, but it now takes more than 90 days to confirm receipt, and then even more time to receive an EAD, which is necessary to begin employment.

USCIS response

USCIS issued an announcement that allows for flexibilities within the 14 month OPT period.  Because of delays, USCIS will now allow the 14 months’ clock to start ticking when the EAD application (Form I-765) has been approved, and not start the clock from the program end date.  If a student receives an EAD that “shorts” them this time, they may request USCIS to issue a new EAD.  In addition, because USCIS allows 60 days after a program end date to apply for an EAD, the announcement also covers rejections of EAD applications, and the ability to refile the application if it was filed after October 1, 2020, and before May 1, 2021.  In addition, the refiles need not contain a new Form I-20.

Other Considerations

What is not addressed are current backlogs at USCIS that is delaying not only the issuance of receipt notices, but also the adjudication of EAD applications.  Even though USCIS is giving the full 12 months of OPT from the time the EAD application is filed, the delays will still affect graduates and their start dates if they cannot start without an EAD in hand.

STEM OPT Extensions

Issue

Students who graduate with a STEM degree may apply for an additional 24 months of STEM OPT.  The application can be filed up to 90 days prior to the expiration of the initial EAD period, and up to the expiration of the card.  EAD applications filed on time (prior to the expiration of the card) will be granted an automatic 180 day work authorization period.  Traditionally, if the card has expired and the 180 day automatic extension has commenced, the student and employer have confirmation the EAD application was filed timely due to the receipt notice issued by USCIS, even if the application is not yet adjudicated.  Due to delays, a student may not receive the receipt notice even after 90 days of sending in the application.

USCIS response

USCIS reminds its stakeholders that a receipt notice is not indicative of an F-1 student’s ability to remain employed.  In fact, the I-9 rules do not use the receipt notice as proof of work authorization, but dictate that the endorsed I-20 issued by the school, as well as the expired EAD, are the necessary documents to confirm work authorization.  In addition, as with the initial OPT EAD filings, USCIS will allow for refiles if the application is rejected with no penalty, if the STEM EAD extension was filed between October 1, 2020 and May 1, 2021, without requiring a new Form I-20.

Additional considerations

There is more flexibility when the application is a STEM OPT extension because of the 180 day automatic extension.  However, due to the issues of receipt issuance and adjudication, the EAD may not be issued within the additional 180 days, and there is currently no solution to that situation.

USCIS continues to show that it will modify its policies to address the ongoing COVID-19 situation and delays with the lockbox.

©2020 Greenberg Traurig, LLP. All rights reserved.

ARTICLE BY Kristen W. Ng of Greenberg Traurig, LLP
For more, visit the NLR Immigration section.

Visas and Immigration in 2021 Under the Biden Administration

The Biden Administration took office on January 20, 2021. Many executive orders have been executed since that date, some of which directly change the manner of handling immigration matters.  However, the U.S. and the world are still dealing with the global pandemic and this directly affects submissions, filings, and consular appointments.  This update provides a list of the latest updates to U.S. visas and immigration matters, as well as what we forecast for the months to come.

  • Immigrant Visa Ban:  The Immigrant Visa Ban that was imposed last year was revoked on February 24, 2021.  Now employment and family based immigrant visas can again be issued by the U.S. Consulates.  See: A Proclamation on Revoking Proclamation 10014 | The White House
  • Entry to the U.S. via a Land Port of Entry from Mexico and Canada:  The entry via land ports remains restricted to essential travel, those on work visas, U.S. citizens, U.S. permanent residents, and a few other limited exceptions.  The entry restrictions are temporary in nature and as of now are expected to remain in effect through March 21, 2021.  The date has been postponed several times and it is unknown if it will again be postponed.  See:  https://help.cbp.gov/s/article/Article-1694?language=en_US
  • Air Travel from Mexico and Canada into the U.S.: Currently there are no limits to air travel from Mexico and Canada.
  • Covid Travel Ban Restrictions: Any travel from Brazil, China, U.K., Ireland, Schengen Countries, and Iran is subject to a National Interest Exception (NIE) waiver from the U.S. Consulate prior to traveling to the U.S.
  • Negative Covid Test:  All inbound passengers are required to obtain a negative Covid test within 72 hours prior to boarding the flight.  This includes air travel from Mexico and Canada.
  • Local Quarantine Rules in the U.S.:  All travelers must also research local travel rules upon arrival in the U.S.  For example New York City and San Francisco have additional quarantine rules upon arrival.
  • Visa Stamping Ban:  The Visa Stamping Ban that was imposed through an executive order from the prior administration for H-1B, L-1, J-1, and H-2B remains in effect. This ban expires on March 31, 2021.  The Biden administration is not expected to extend this ban.  This ban prevents the U.S. Consulates from issuing new visas in this category.  This ban has prevented many executives and highly skilled workers from being able to enter the U.S.
  • Travel from the Middle East:  The U.S. has canceled the blanket travel ban from select countries in the Middle East.
  • H-1B Lottery:  The selection criteria will be the same as last year.   The lottery starts on March 9, 2021 and goes to March 31, 2021.  Winners will be announced on March 31 and then the employer has until June 30, 2021 to file the H-1B petition.
  • H-1B Adjudications at USCIS:  The H-1B Adjudications at the United States Citizenship and Immigration Services (“USCIS”) are expected to return to 2016 standards,  with deference given to prior adjudications, acceptance of multiple educational pathways to an H-1B occupation, etc.
  • USCIS Operational Efficiency: Expected to be a priority going forward.  The Administration is expected to ensure that USCIS operates at an efficient pace so that the backlogs of prior years are not repeated.
  • DACA: The Deferred Action for Childhood Arrivals (“DACA”) has been reaffirmed for both existing DACA recipients and new applicants.
  • Asylum:  The U.S. will again provide opportunities for applicants to apply and have a credible fear interview at the border. If they pass the credible fear interview, they will be allowed into the U.S. to await for their full asylum merits hearing before an Immigration Judge.
  • Comprehensive Immigration Reform: Under the new Administrations some sort of immigration legislation is expected.  Such new provisions are expected to address both labor market and humanitarian needs.  The Administration announced a draft plan on  February 18, 2021.

E-2 Investor Visas:  In recent months Mexican investors have shown an increased interest in the E-2 non-immigrant visa.  As the pandemic slowly subsides, it is hoped that the U.S. Consulate in Ciudad Juarez will be able to increase their volume of E-2 reviews.  The firm has a robust E-2 visa practice.

NAFTA TN Visas:  The United States– Canada- Mexico Agreement (USCMA) replaced the NAFTA Agreement.  The new USMCA went into effect on July 1, 2020.   However, the TN occupational list and regulations remained the same. Therefore for select occupations, the TN visa continues to be a quick and efficient way for an U.S. employer to get a Mexican or Canadian citizen on the U.S. payroll.    See:  https://www.nafsa.org/regulatory-information/usmca-chapter-16-appendix-2-professionals

Copyright © 2020, Sheppard Mullin Richter & Hampton LLP.

ARTICLE BY Greg L. Berk and Laura M. Nava of Sheppard, Mullin, Richter & Hampton LLP
For more, visit the NLR Immigration section.

Judge Rules Against Another Attempt by Trump to Restrict Legal Immigration

The courts dealt another blow to the Trump administration’s continued efforts to restrict immigration this week, providing relief for companies looking to fill and retain critical positions with foreign talent. On Tuesday, the US District Court for the Northern District of California issued an order setting aside the US Department of Homeland Security (DHS) interim final rule, “Strengthening the H-1B Nonimmigrant Visa Classification Program”, and the U.S. Department of Labor (DOL) interim final rule, “Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States.”

Last month the Northern District Court of California also issued a preliminary injunction of Presidential Proclamation 10052, which would have added restrictions on temporary visa issuance.

Following last month’s preliminary injunction of Presidential Proclamation 10052’s restrictions on temporary visa issuance, wherein the presiding judge stated that Pres. Donald Trump is not a monarch, the US District Court for the Northern District of California has issued another blow to the Trump Administration.  The court issued an order Tuesday setting aside the US Department of Homeland Security (DHS) interim final rule, “Strengthening the H-1B Nonimmigrant Visa Classification Program”, and the U.S. Department of Labor (DOL) interim final rule, “Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States.”

The court found that the government failed to show good cause to excuse public notice and comment for the two rules.  The court recognized the contributions of immigrants concluding:

The COVID-19 pandemic has wreaked havoc on the nation’s health, and millions of Americans have been impacted financially by restrictions imposed on businesses, large and small, during the pandemic; the consequences of those restrictions has been a fiscal calamity for many individuals. However, “[t]he history of the United States is in part made of the stories, talents, and lasting contributions of those who crossed oceans and deserts to come here. The National Government has significant power to regulate immigration. With power comes responsibility, and the sound exercise of national power over immigration depends on the Nation’s meeting its responsibility to base its laws on a political will informed by searching, thoughtful, rational civic discourse.” Arizona v. United States, 567 U.S. 387, 416 (2012).

This is another victory for regulatory process compliance and supporters of employment-based immigration. The Plaintiffs, which include the Chamber of Commerce of the United States of America, National Association of Manufacturers, Bay Area Council, National Retail Federation, American Association of International Healthcare Recruitment, Presidents’ Alliance On Higher Education and Immigration; California Institute of Technology, Cornell University, The Board of Trustees of the Leland Stanford Junior University, University of Southern California, University of Rochester, University of Utah, and Arup Laboratories, filed a Complaint for Declaratory and Injunctive Relief from the DOL IFR effective Oct. 8 and the DHS IFR effective Dec. 7, claiming harm and prejudice to hundreds of thousands of American-based workers and disruption to US employers’ ability to hire and retain critical high-skilled talent. (Chamber of Commerce, et al., v. DHS, et al., 20-cv-07331-JSW, 10/19/20.)  Due to inflated salary requirements, employers would be forced to sever relationships with existing foreign national professionals as well as be precluded from hiring and sponsoring new candidates for temporary work and immigrant visas.

In advance of the Nov. 23 hearing, the presiding judge, the Honorable Jeffrey S. White published specific questions to determine whether the Defendants, the DOL and DHS, properly relied upon the good cause exception to the notice and comment period that is required before a new federal regulation can be implemented.  In the matter before the court, the Defendants took seven months to issue the IFRs that are the subject of this litigation, calling into question their claim that exigent circumstances precluded the need for a notice and comment period.

The DOL IFR at issue changed how prevailing wage levels are calculated resulting in higher wages at every wage level and occupation.  Overnight, entry level wages jumped from the 17th to the 45th percentile. So, for example, the annual salary of $58,802 allocated to a mechanical engineer position in Charleston, South Carolina on Oct. 7 increased to $91,749 overnight.

The DHS IFR among other things: would have revised the regulatory definition of and standards for an H-1B specialty occupation; added definitions for “worksite” and “third-party worksite”; revised the definition of “US employer”; clarified how US Citizenship and Immigration Services (USCIS) will determine whether an “employer-employee relationship” exists between the sponsoring employer and worker; limited the validity period of third-party placements to one year; and codified USCIS’ H-1B site visit authority as well as the consequences of refusing such a visit.

The Defendants are expected to appeal the ruling, although any subsequent decisions may not occur until after the Presidential inauguration.

Copyright © 2020 Womble Bond Dickinson (US) LLP All Rights Reserved.
For more articles on immigration, visit the National Law Review Immigration section.

DHS Expands Use of Biometric Data in Immigration

Last week, the Department of Homeland Security (“DHS”) announced plans to expand the use of biometric data in determining family relationships for immigration purposes. A proposed rule with the new protocols for biometrics use is expected to be published soon. This rule is also said to allow more uses of new technology as they become available.

The Use of Biometric Data in Immigration

The proposed rule will give the DHS the authority to require biometrics use for every application, petition, or related immigration matter. The current practice by the United States Citizenship and Immigration Services (USCIS) requires biometrics only for applications that require background checks. This new rule is intended to give the DHS broad authority to use biometrics technology. The DHS can use voiceprints, iris scans, palm prints, and facial photos, as well as additional technologies developed in the future.

“As those technologies become available and can be incorporated as appropriate, it gives the agency the flexibility to utilize them. And then it also would give the agency the authority down the road, as new technologies become available and are reliable, secure, etc., to pivot to using those, as well,” said one USCIS official. And while children under age 14 are now generally exempt from the collection of biometric data, the proposed rule will also remove the age restriction.

DNA can be collected by the agency to verify a genetic relationship where establishing a genetic or familial relationship is a prima facie requirement of receiving an immigration benefit. Though the raw DNA will not be stored by the DHS, the test results will be saved in the immigrant’s Alien file, also known as the “A-file.” The A-file is the official file that the DHS maintains with all of the immigrant’s immigration and naturalization records. Any such information collected may be shared with law enforcement, but there is no procedural change in other agencies gaining access to the A-files.

Reactions From Immigration Leaders

The additional collection of biometric data will not result in an increase in existing filing fees, as the cost is covered under new filing fees set to go effect October 2, 2020. The DHS has emphasized that the biometrics rule is to be given top priority; nevertheless, it will undergo the standard review process.

This proposed rule quickly drew severe criticism from pro-immigration activists. Andrea Flores from the American Civil Liberties Union called it an “unprecedented” collection of personal information from immigrants and U.S. citizens. She said, “collecting a massive database of genetic blueprints won’t make us safer – it will simply make it easier for the government to surveil and target our communities and to bring us closer to a dystopian nightmare.”

DHS Acting Deputy Secretary Ken Cuccinelli welcomed the rule, stating that “leveraging readily available technology to verify the identity of an individual we are screening is responsible governing.” He added that “the collection of biometric information also guards against identity theft and thwarts fraudsters who are not who they claim to be.”

©2020 Norris McLaughlin P.A., All Rights Reserved
For more articles on DHS, visit the National Law Review Immigration section.

Returning Resident Visas and COVID-19 Travel

With global travel disruptions reaching six months, lawful permanent residents (LPRs) and conditional permanent residents (CPRs) who are abroad and cannot currently travel back to the United States due to the Coronavirus Disease 2019 (COVID-19) pandemic are experiencing extended absences from the United States. Absences from the United States between six months to one year by a permanent resident may result in questioning at the time of reentry to the United States by the inspecting officer. Absences from the United States of more than one year can be more problematic. Those LPRs or CPRs who cannot, for whatever reason, return to the United States within the required timeframe may need to secure a “returning resident visa” from a U.S. consulate or embassy abroad.

LPRs or CPRs who have remained outside the United States for longer than one year, or beyond the validity period of a two-year re-entry permit, may require a returning resident visa to re-enter the United States and resume permanent residence. The returning resident visa is intended for LPRs or CPRs who departed the United States with the intention of returning to the United States, and only prolonged their stay outside the country due to circumstances beyond their control. For an LPR or CPR, qualifying reasons for remaining outside the United States for longer than one year or beyond the validity period of a two-year re-entry permit could include, but are not limited to, severe illness, pregnancy, third-party withholding of passport or travel documents, or government restrictions on outbound international travel such as those that may have been caused by the COVID-19 pandemic. Returning resident visa applicants must be able to justify their excessive absence from the United States due to circumstances “beyond their control” while presenting sufficient support for their continuous desire to promptly resume residence in the United States due to strong and continuous financial, employment, family, and social ties to the country.

LPRs or CPRs abroad with the possibility of remaining outside the United States for longer than one year, or beyond the validity period of a two-year re-entry permit, should be cognizant of the requirement of maintaining and being able to document continuous financial, employment, family and social ties to the United States. Such documents could include copies of U.S. income tax returns, property ownership documentation, employment documentation, and evidence of family and social ties, among other relevant documentation. This documentation will potentially establish that the original intent of the trip was temporary in nature. Due to the infrequent availability of appointment dates as U.S. consulates and embassies worldwide gradually resume routine services following initial closures due to COVID-19, returning resident visa applicants are encouraged to plan their applications sooner rather than later to avoid prolonging their stays abroad even further throughout the application process, which is substantively similar to that of other immigrant visa applications and also requires a medical examination.

*Special thanks to Chris Costa for his valuable assistance with this GT blog post.

©2020 Greenberg Traurig, LLP. All rights reserved.

ARTICLE BY Jennifer Hermansky of Greenberg Traurig, LLP

For more articles on immigration, visit the National Law Review Immigration, VISA, USCIS, ICE, & DHS Legal Updates section.