Tag: visa

Administration’s Regulatory Agenda Signals Continued Push to Align Visa Programs With “Hire American” Goals

On December 14, 2017, the Office of Information and Regulatory Affairs (OIRA) released the Fall 2017 Unified Agenda of Regulatory and Deregulatory Actions, which is a report on the rulemaking efforts U.S. administrative agencies intend to pursue in the near- and long-term.

If enacted, several items in the agenda have the potential to impact employers’ immigration programs. The relevant proposals include the following items:

  • U. S. Citizenship and Immigration Services (USCIS) is proposing to issue a rule that would eliminate the ability of certain H-4 spouses to obtain employment authorization documents (EADs).
  • USCIS is proposing to issue a rule (originally introduced in 2011) that would establish an electronic registration system for H-1B petitions that are subject to the annual quota (H-1B cap filings). DHS notes that the rule is “intended to allow USCIS to more efficiently manage the intake and lottery process” for these petitions. USCIS notes that this rule may include a provision for a modified selection process, as outlined in the Buy American and Hire American Executive Order, such that “H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.”
  • USCIS is proposing to issue a rule that would revise the definitions of “specialty occupation,” “employment,” and “employer-employee relationship” in the H-1B context. USCIS notes that the purpose of these changes would be to “ensure that H-1B visas are awarded only to individuals who will be working in a job which meets the statutory definition for [H-1B eligibility].” The rule may also contain provisions regarding the payment of appropriate wages to H-1B visa holders.
  • The Department of State is proposing and finalizing several rules that would enact various modifications to the exchange visitor (J-1) program. These changes include arrangements relating to the administration of the J-1 program, provisions to help ensure the safety and well-being of foreign nationals who enter the U.S. as exchange visitors, and efforts to reinforce the cultural exchange and public diplomacy aspects of the program. Changes may also include an expansion of the types of jobs that are prohibited under the summer work travel category.
  • As a “long term action,” U.S. Customs and Border Protection (CBP) is proposing a rule that would clarify the criteria for admission to the United States as a temporary visitor for business (B-1) or pleasure (B-2). CBP also notes that the proposed revisions would “make the criteria [for entry as a temporary visitor] more transparent.”
  • Immigration and Customs Enforcement (ICE) is proposing to issue a rule that would effectuate a comprehensive reform of the practical training options (OPT) available to nonimmigrant students. The proposed provisions include increased oversight over the schools and students participating in the program. The stated purpose is to “improve protections of U.S. workers who may be negatively impacted by employment of nonimmigrant students.”

Employers may want to keep in mind that although the abstracts listed in the agenda seemingly have the potential to impact many areas of the immigration system, it is premature to draw conclusions about the effect of these proposed changes without first seeing the text of the rules themselves—none of which have been released, and some of which may not even be drafted. Additionally, both the agenda itself and the timing for the rules, are aspirational; in prior years, only a select number of proposals have actually turned into rules, and ever fewer have actually followed the stated timelines. As noted previously, for example, a proposed regulation on the electronic registration system for H-1B quota petitions was originally introduced in 2011, but no further action occurred.

Should a proposed rule actually be issued, the agencies must conform to the notice-and-comment protocols of the Administrative Procedure Act. Effectively, this requires the agency to issue a proposed rule that explains the agency’s plan to accomplish a certain goal or address a problem.  This is followed by a comment period, during which time any interested parties can submit comments about the proposed rule. Prior to issuing the final rule, the agency must review all comments and indicate its reasoning for either modifying the rule on account of a comment or explain why the proposed comment does not merit a revision to the rule. Rulemaking is typically a prolonged process that takes a minimum of several months to accomplish. In other words, a proposed rule (which is different than most of the abstracts found in this agenda, which only state the intent to issue a rule) would be the first step in what could be a complex and lengthy rulemaking process that may take many months before promulgation of any final rule.

Finally, employers may want to take note that many of the administration’s prior attempts to enact changes to the immigration system have been subject to lengthy and robust legal challenges. Any such litigation on a proposed rule could increase the timeline for implementation, assuming the rule survives the legal challenge at all.

In summary, although the agenda provides some insight into the goals of the administration on employment-based immigration, the publication of the agenda itself does not alter the status quo.

© 2017, Ogletree, Deakins, Nash, Smoak & Stewart, P.C

This post was written by Jacob D. Cherry of Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

For more information check out the National Law Review’s Immigration page.

Sixty-Day Grace Period for Nonimmigrant Workers after Loss of Employment

The U.S. Department of Homeland Security has promulgated a regulation affecting highly skilled foreign workers when they lose their jobs. The stated purpose of the regulation is to improve the ability of U.S. employers to hire and retain highly skilled foreign workers and to increase the ability of those workers to pursue new employment opportunities.

Nonimmigrant workers are individuals who enter the United States for a temporary period of time and are restricted to the activity consistent with their visas (those in E-1, E-3, H1B, H1B1, L-1, O-1 and TN status). Prior to this regulation, a nonimmigrant worker who was laid off or whose employment was terminated would immediately begin to accrue unlawful status. Since the beneficiary of a visa petition must be in valid status at the time of filing, a sudden loss of employment was particularly problematic in terms of transferring the visa to a new employer. While U.S. Citizenship and Immigration Services (USCIS) was somewhat forgiving if a new sponsoring employer was identified quickly, the conventional wisdom was that the USCIS would not approve a transfer petition if the beneficiary was out of work in excess of one month.

The new regulation provides for a 60-day discretionary grace period, during which a nonimmigrant worker does not accrue unlawful status. This allows nonimmigrant workers two months to locate a sponsoring employer to whom the visa may be transferred, to apply for a change of status or to wind up their affairs before departing the United States.

Employment is not authorized during the grace period, but the nonimmigrant worker may begin working with the filing of a transfer petition by a new employer. A worker may use the grace period only once for each validity period. For instance, if a worker loses his job and then uses the grace period to transfer his visa to another employer, he may still be eligible for another 60-day grace period should he lose that job. Unused days in the first grace period cannot be carried over into a subsequent grace period. USCIS has the discretion to deny or shorten a grace period if there are violations of status such as unauthorized employment, fraud or criminal convictions, among others.

The 60-day grace period is a welcome accommodation to nonimmigrant workers who find themselves suddenly laid off or their employment terminated.

© 2017Wilson Elser Moskowitz Edelman & Dicker LLP
Learn more on our Immigration Practice Group page.

The Agricultural Guestworker Act Gaining Ground

In October, the Agricultural Guestworker Act of 2017 (House Resolution 4092), introduced by U.S. Rep. John Goodlatte (R-Va.), was passed by the House Judiciary Committee and sent to the full House. Michigan’s lone representative on the committee, Rep. John Conyers (D), voted against it.

John Kran, national lobbyist with Michigan Farm Bureau, commented that “any farmer who’s dealt with this issue will tell you that the availability of domestic workers continues to decrease. This bill not only deals with the seasonal workforce, but the need for year-round ag workers.” The need for such legislation is clear, at least to farmers. Currently, the only way farmers can have the peace of mind about a legal workforce is to go through the H-2A program, which is so notorious for burdensome paperwork, long lead times and woefully complicated processes that Michigan Farm Bureau established the Great Lakes Agricultural Labor Services (GLALS) to help farmers successfully navigate the process.

Goodlatte’s legislation would create a new H program, called H-2C, under which a new guest-worker program would be established, allowing farmers to hire workers for up to 18 months for seasonal labor and 36 months for year-round labor, such as are needed on dairy farms, other livestock operations, and food processing, including meat packing. “Michigan dairies have a huge need for the longer visa, and poultry and hog operations have trouble finding people too,” Kran said. “The bill isn’t perfect, but it’s a good place to start.” Among the things Farm Bureau would like to see changed in the bill is a mandatory limit on the number of workers allowed in. The bill proposes that the number be capped at 450,000 per year, with an ‘escalator’ for additional need.

 

© 2017 Varnum LLP
This post was written by Aaron M. Phelps of Varnum LLP.
Read more Immigration legal updates.

Revised Travel Ban Coming?

The Trump Administration reportedly may replace the current travel ban with a country-specific set of restrictions.

In June, the Supreme Court allowed the government to begin enforcing the 90-day travel ban against individuals from Iran, Libya, Somalia, Sudan, Syria, and Yemen who had no bona fide relationship to the United States. The 90-day ban will expire on September 24. The 120-day ban on refugees also went into effect in June. The Supreme Court plans to hear the full travel ban case on October 10.

The Department of Homeland Security’s recently finalized classified report on screening foreign travelers may support anticipated changes to the travel ban. Substituting a new ban could change the dynamics, potentially making the case before the Supreme Court moot or leading to a remand of the case for further hearing at the lower court level.

The new restrictions are expected to be open-ended and based upon the DHS review and identification of countries with deficient security standards. More than six countries may have been identified. Additional countries could be added to the banned list, others could be removed, and still others might become subject to certain visa restrictions.

This post was written by Michael H. Neifach of Jackson Lewis P.C. © 2017
For more legal analysis go to The National Law Review

Trump Administration Considers Elimination of J-1 Program for Some Students

The Trump Administration is considering the elimination of the J-1 Summer Work-Travel Program for students who come to tourist areas in the U.S. as temporary summer help and as participants in cultural exchanges. Like the numerical limitations placed on H-2B temporary seasonal visas, the elimination of this J-1 Summer Work-Travel Program would particularly affect the hospitality industry in areas that rely on these students to cook, wait tables, and run amusement park rides in tourist areas during the summer months.

Morey’s Pier Amusement Park in Wildwood, New Jersey, hired more than one-third of its 2017 summer workforce through the J-1 Summer Work-Travel Program. Its Director of Human Resources reported that it makes extensive efforts, including through job fairs, to hire U.S. workers, but cannot find enough people interested in the seasonal work. The Park hired 82 percent of the U.S. applicants who applied for jobs and the remaining 18 percent could not be hired because they were too young to be life guards or to serve alcohol.

Other tourist areas such as Hershey, Pennsylvania, and the Poconos also depend on the J-1 Summer Work-Travel Program. Congressman Bill Keating (D-MA), who represents Cape Cod and the Islands of Nantucket and Martha’s Vineyard, is critical of the reported plan to reduce these visas for students who he believes are vital to his area’s economy.

The review and possible elimination of the J-1 Summer Work-Travel Program arises out of the “Buy American, Hire American” Executive Order. The first hint that the Program might be cut was in a draft executive order that was leaked in January 2017. That draft, “Protecting American Jobs and Workers by Strengthening the Integrity of Foreign Worker Visa Programs,” was never signed or formally released. It included specific provisions questioning the desirability of the J-1 program, the L-1 visa program, the use of parole authority, and the H-1B visa program, among others. To date, the Administration has been achieving some of the goals first set forth in that draft by conducting more L-1 site visits, scrutinizing H-1B and L-1 petitions by issuing a staggering number of post-filing Requests for Evidence (RFEs), postponing (and ultimately planning to eliminate) the International Entrepreneur Rule that relied on parole authority, and, now, focusing on the possible elimination of the J-1 Summer Work-Travel Program.

According to the State Department website, “The J-1 Exchange Visitor Program [overseen by the Department of States] provides opportunities for around 300,000 foreign visitors from 200 countries and territories per year to experience U.S. society and culture and engage with Americans.” There are more than a dozen J-1 programs. Others that are reportedly being reviewed for possible elimination are the J-1 internship and au pair programs.

This post was written by Forrest G. Read IV  of Jackson Lewis P.C. © 2017
For more Immigration News go to The National Law Review

Nonimmigrant Visa Applicants May Have Longer Waits

President Donald Trump has issued an executive order striking the 80-percent/three-week goal for interviewing nonimmigrant visa applicants following submission of applications.

Since September 11, 2001, the State Department has given priority to security over quick visa adjudications. For many reasons, including heightened security, between 2001 and 2010, the U.S. share of the global tourism market had dropped markedly. The Obama Administration, concerned about the effect on the U.S. economy, took measures to “support a prosperous and secure travel and tourism industry in the United States.” The first steps were in 2010, when the National Export Initiative and the Travel Promotion Act became law. They mandated intergovernmental cooperation to work to establish a stronger brand identity for the U.S. and to promote exports. By 2012, President Barack Obama issued an executive order to continue the process of fostering more tourism and travel: Establishing Visa and Foreign Visitor Processing Goals and the Task Force on Travel and Competitiveness Order. One section ordered Consulates to “ensure that 80 percent of nonimmigrant visa applicants are interviewed within three weeks of receipt of application, recognizing that resource and security considerations . . . may dictate specific exceptions[.]”

Although the Obama EO contained a security waiver, on June 21, 2017, Trump signed his own EO, striking the 80 percent/three-week goal. This is being done in conjunction with the travel ban partially reinstated by the U.S. Supreme Court and the extreme vetting procedures instituted by Secretary of State Rex Tillerson.

Pursuant to extreme vetting, if deemed necessary to determine eligibility, visa applicants may be asked to supply:

  • Travel history during the last 15 years, including source of funding for travel;

  • Address history during the last 15 years;

  • Employment history during the last 15 years;

  • All passport numbers and country of issuance held by the applicant;

  • Names and dates of birth for all siblings;

  • Names and dates of birth for all children;

  • Names and dates of birth for all current and former spouses, or civil or domestic partners;

  • Social media platforms and identifiers, also known as handles, used during the last five years; and

  • Phone numbers and email addresses used during the last five years.

Assessing this amount of information and data obviously will take time. A White House spokesman stated that the elimination of the “arbitrary” three-week goal was needed because “[t]he president expects careful, accurate vetting of visa applicants, not a rushed process . . . .”

Business groups already troubled about possible deleterious effects from the travel ban and extreme vetting have expressed concern about additional delays in visa issuance. According to State Department’s own data, the nonimmigrant visa issuance rate has been dropping. In March, 907,166 were issued and the number was down to 735,000 in April.

This post was written by William J. Manning of Jackson Lewis P.C.

US State Department Clarifies Implementation of Travel Ban Exemptions

The diplomatic cable instructs consulates on how to interpret the US Supreme Court’s direction to enforce the restriction only against foreign nationals who lack a “bona fide relationship with a person or entity in the United States.”

This Immigration Alert serves as an addendum to our prior summary of the Supreme Court decision partially granting the government’s request to stay enforcement of two preliminary injunctions that temporarily halted enforcement of Executive Order (EO) No. 13780. As a result of this decision, foreign nationals from six countries (Libya, Somalia, Sudan, Syria, Iran, and Yemen) who cannot show bona fide ties to the United States may be denied visas or entry for 90 days starting Thursday, June 29 at 8:00 p.m. EDT.

The communication from the US Secretary of State’s office enumerates the following situations where the EO’s travel restrictions will not apply:

  • When the applicant has a close familial relationship in the United States, which is defined as a parent (including parent-in-law), spouse, fiancé, child, adult son or daughter, son-in-law, daughter-in-law, or sibling, whether whole or half. This includes step relationships, but does not include grandparents, grandchildren, aunts, uncles, nieces, nephews, cousins, brothers-in-law and sisters-in-law, or any other “extended” family members.

  • When the applicant has a formal, documented relationship with an entity formed in the ordinary course, rather than for the purpose of evading the EO. This includes established eligibility for a nonimmigrant visa in any classification other than a B, C-1, D, I, or K, as a bona fide relationship to a person or entity is inherent in the visa classification.

  • When there are eligible derivative family members of any exempt applicant.

  • When the applicant has established eligibility for an immigrant visa in the immediate relative, family-based, or employment-based classification (other than certain self-petitioning and special immigrant applicants).

  • When the applicant is traveling on an A-1, A-2, NATO-1 through NATO-6, C-2 for travel to the United Nations, C-3, G-1, G-2, G-3, or G-4 visa, or a diplomatic-type visa of any classification.

  • When the applicant has been granted asylum, is a refugee who has already been admitted to the United States (including derivative follow-to-join refugees and asylees), or is an individual who has been granted withholding of removal, advance parole, or protection under the Convention Against Torture.

Applicants admitted or paroled into the United States on or after the date of the Supreme Court decision are also exempted, as are those currently in the United States who can present a visa with a validity period that includes either January 27, 2017 (the day the EO was signed) or June 29, 2017. Any document other than a visa, such as an advance parole document, valid on or after June 29 will also exempt the holder.

As described in the prior alert, any lawful permanent resident or dual foreign national of one of the six named countries who can present a valid passport from a country not on the list is not impacted by the EO. The EO also permits consular officers to grant case-by-case waivers to otherwise affected applicants who can demonstrate that being denied entry during the 90-day period would cause undue hardship, that entry would not pose a threat to national security, and that their admission would be in the national interest.

This post was written by Eric S. Bord and Eleanor Pelta of  Morgan, Lewis & Bockius LLP.

State Department Makes Predictions about EB Cut-Off Date Movement

Notably, the State Department stated with certainty that the EB-2 Rest of the World category likely will retrogress in the coming months.

At a recent American Immigration Lawyers Association meeting, the US Department of State made comments about Employment-Based (EB) cut-off date movement in the final third of the fiscal year. This Immigration Alert summarizes the comments made by the State Department and what they could mean for EB cut-off date movement in the upcoming months.

EB-1: China and India

US Citizenship and Immigration Services announced that the “final action date” of January 1, 2012 will control for the China and India EB-1 categories. These have apparently exhausted close to 50% of the entire EB-1 limit for the 2017 fiscal year. This cut-off date is expected to be maintained until the end of September, when the fiscal year ends. The final action cut-off date for the China and India EB-1 categories may once again become current at the start of the new fiscal year on October 1, 2017, but there is no guarantee that this will happen.

EB-1: Rest of the World

The EB-1 Rest of the World category (i.e., countries other than China, India, Mexico, the Philippines, El Salvador, Guatemala, and Honduras) should remain current for the foreseeable future.

EB-2: India

A slight advancement in the EB-2 India category will occur in June, but it is unlikely that this category will once again reach the most advanced final action cut-off date that was reached last year. The State Department stated that it may maintain the existing final action date through the end of September, but there is no guarantee that this will occur.

EB-2: China

EB-2 China will advance by less than one month to March 1, 2013 in June. The State Department noted that the EB-2 China category should continue to advance slowly and will probably exhaust its per-country limit before the end of the year.

EB-3: China

EB-3 China’s final action date of October 1, 2014 will continue to apply in June. As a result of a significant EB-3 downgrade volume, retrogression in this category is possible in the final months of the fiscal year.

EB-2: Worldwide

The State Department noted that the EB-2 category has experienced significant usage, and stated with certainty that a final action cut-off date will be imposed for the EB-2 Rest of the World category in August—or even as early as July. This cut-off date, once imposed, should remain unchanged through the end of September, with a small advancement possible in September and a return to currency in October.

EB-3: Rest of the World

The EB-3 Rest of the World category will move forward by one month in June to April 15, 2017. The State Department expects further forward movement in this category for the rest of the fiscal year.

EB-3: India

The State Department noted that the EB-3 India category will advance in June from March 25, 2005 to May 15, 2005. Continued forward movement is expected in July and August. The State Department predicts that the July cut-off date for the EB-3 India category will advance to October 15, 2005.

How This Affects You

It is highly likely that the cut-off date movement predicted by the State Department will occur. Persons seeking permanent residence through the EB process should take note of this predicted movement and plan accordingly. In particular, persons in the EB-2 Rest of the World category may wish to consider filing adjustment of status applications before the anticipated retrogression in this category occurs in July or August. Once this retrogression occurs, only persons with priority dates before the new cut-off date will be able to file such applications.

This post was written by A. James Vázquez-Azpiri of Morgan, Lewis & Bockius LLP.

Congress Poised to Extend EB-5 Regional Center Program Until September 30 Without Changes

EB-5 Regional Center Congress is poised to extend the EB-5 regional center program through September 30, 2017, without any changes. Here is how we got to this point:

On April 28, 2017, the U.S. Congress passed a one-week stopgap funding bill to prevent a government shutdown and the expiration of the EB-5 regional center program. The continuing resolution keeps the U.S. federal government open through May 5, 2017, and U.S. Citizenship and Immigration Services continues to accept Form I-526 petitions based on investments through EB-5 regional centers through that date.

Behind the scenes, members of Congress and their staffs are negotiating an EB-5 reform package to include in the larger funding bill. The key issues concern: (1) raising the minimum investment amount from the current $500,000; (2) revising the definition of what constitutes a “targeted employment area” to allow certain investments at the minimum investment level; (3) establishing visa “set-asides” for investments in certain rural and truly distressed urban areas; and (4) establishing effective dates for the changes.

Congress is close on all these issues. Senator John Cornyn (R-Texas) is circulating one discussion draft; Senators Chuck Grassley (R-Iowa) and Patrick Leahy (D-Vermont) have circulated a similar discussion draft. Neither draft has been officially introduced; thus, they are not public.

It appears unlikely that Congress will be able to finalize an EB-5 reform package in time to include in the larger funding bill. On Sunday night, April 30, congressional leaders announced that they have finalized discussions on the key big-ticket items in the government funding bill, including more money for defense spending and border security. The funding bill is technically called an omnibus appropriations bill. The bill, H.R. 244, is available here. Section 542 of the bill includes a clean extension of the EB-5 program until September 30.

The House of Representatives is expected to vote on H.R. 244 on Wednesday. The bill will then proceed to the Senate with time to meet the deadline for approval by midnight Friday.

Given that the omnibus appropriations bill has already been introduced, it is hard to see how an EB-5 reform package could be included as an amendment to H.R. 244. It is more likely that Congress will extend the EB-5 regional center program without changes until September 30, as the bill already provides. During that time congressional negotiators will try to agree on final changes to the EB-5 program. Stay tuned.

© Copyright 2013 – 2017 Miller Mayer LLP. All Rights Reserved.

USCIS Announces FY 2018 H-1B Cap Lottery Completed and Total Filed Numbers

USCIS H1-B capUnited States Citizenship and Immigration Services (USCIS) announced on April 17, 2017, that it had completed its annual H-1B lottery and had selected a sufficient number of H-1B petitions to meet the 65,000 petition bachelor’s degree cap and the 20,000 petition U.S. master’s degree cap. In total, USCIS received 199,000 petitions this year during the filing period that ran from April 3, 2017, until April 7, 2017. On April 11, 2017, the agency completed its random computerized lottery to select the cap petitions. The 20,000 U.S. master’s cap petitions were randomly selected first. All unselected U.S. master’s petitions plus the bachelor’s petitions were then pooled and subjected to the general lottery where 65,000 petitions were selected.

The 199,000 total H-1B petitions filed this year represents 37,000 fewer petitions than were received during last year’s filing period.

USCIS will now begin its process of formally receipting all the selected H-1B petitions, and will reject and return all unelected petitions including filing fees.

Please note that, as of April 3, 2017, USCIS temporarily suspended premium processing on all H-1B petitions, both cap and non-cap cases. Thus, all cases selected under the lottery will be processed under the regular processing timeline.

ARTICLE BY Andrew G. Drozdowski & Amy R. Dalal of Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

© 2017, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.