NEWSLETTER: December 21, 2016

NEWSLETTER: December 21, 2016 – It’s Time to Prepare For H-1B Filing on April 1, 2017

THE EB-5 REGIONAL CENTER PROGRAM HAS BEEN EXTENDED THROUGH APRIL 28, 2017

The U.S. House of Representatives and Senate have passed the Continuing Resolution legislation to keep the government open through April 28, 2017. The legislation extends the EB-5 Regional Center Program for the duration of the time period with no changes to the current program policy. The investment amount is still “$500,000 for a targeted employment area” including many parts of New York City.

PRESIDENT-ELECT DONALD TRUMP PLANS VISA PROGRAM INVESTIGATIONS IN FIRST 100 DAYS

Donald Trump says he will investigate employers for potential visa abuse as part of his plan for his first 100 days in office. This comes after Mr. Trump released a short video where he stated, “I will direct the Department of Labor to investigate all abuses of visa programs that undercut the American worker.” Mr. Trump’s transition team has stated that they are developing a series of executive actions that the President-elect can take on day one that will advance “the core principle” of “putting America first.”

NAFTA AND TN STATUS UNDER PRESIDENT-ELECT DONALD J. TRUMP

During his campaign for president, President-elect Donald J. Trump promised repeatedly to renegotiate or withdraw from the North American Free Trade Agreement (NAFTA), a 1993 free trade accord between Canada, Mexico, and the United States. Because the President is authorized by Congress to negotiate and enter into tariff and non-tariff agreements for limited periods, he is also allowed to withdraw from such trade agreements. Article 2205 of NAFTA allows any member of the agreement to withdraw from NAFTA 6 months after giving written notice to the other parties. It is generally accepted that only the U.S. President is authorized to give notice on behalf of the U.S. to terminate a trade agreement. Therefore, while litigation could ensue, the U.S. President does likely have the authority to unilaterally withdraw from NAFTA which would also likely mean the end of TN visas, a component of NAFTA. TN is a work visa category that allows citizens of Canada and Mexico to seek temporary employment in the U.S. if they are offered jobs that fall within a certain list of occupations. This would therefore mean that a withdrawal from NAFTA will likely mean that TN visas are no longer valid. Nevertheless, it is still speculative what the President-elect will actually do once in office. While campaigning, Mr. Trump stated that his primary goal was not to withdraw from NAFTA, but to renegotiate its terms.

THE U.S. DEPARTMENT OF HOMELAND SECURITY HAS ISSUED A FINAL RULE FOR IMMIGRANT WORKERS PROVIDING GRACE PERIODS

The United States Department of Homeland Security has recently issued a final rule aimed at boosting job flexibility for certain skilled immigrant workers that will go into effect on January 17, 2017. Among other details, the rule will allow employers to submit additional H-1B portability petitions for foreign workers, will allow workers to keep their priority dates and essentially transfer them to new Form I-140 applications, and will contain a provision for temporary work authorization for certain foreign nationals who possess approved employment-based visa petitions but are stuck in the visa backlogs and are dealing with “compelling circumstances.”Lastly, the new provisions, which is does not work retroactively, will give high-skilled workers certain extended grace periods to seek new jobs. Below are these grace period provisions:

  • 8 CFR §214.1(l)(1): New provision provides 10-day grace period to individuals in E-1, E-2, E-3, H-1B, L-1, and TN classifications and their dependents. While the final rule says individuals “may” be admitted or otherwise provided such status, 8 CFR §214.2(h)(13)(i)(A), states that H-2B beneficiaries “shall” be provided a 10 day grace period before and after the petition validity period.
  • 8 CFR §214.1(l)(2): New provision authorizes a grace period, up to 60 days, during the period of petition validity (or other authorized validity period) for E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, and TN nonimmigrants whose employment has ended. This includes family member dependents. It must be emphasized that the 60 day grace period is permitted one time per authorized validity period. However, DHS may shorten the validity period as a matter of discretion.

PRESIDENT-ELECT DONALD TRUMP’S PLAN TO DEPORT 2 MILLION IMMIGRANTS WILL FACE ROADBLOCKS

While Mr. Trump has stated he plans on deporting 2 million to 3 million unauthorized immigrants with criminal records, there are several obstacles he will likely face. First, such number is likely inflated since President-elect Trump is probably relying on a 2013 fiscal year report by U.S. Immigration and Customs Enforcement (ICE) which estimated 1.9 million “removable criminal aliens” in the United States. However, “removable criminal aliens” generally refers to any non-citizen convicted of a crime, which can range from murder to stealing a pack of gum at a local grocery store. This number therefore likely goes beyond the number of unauthorized immigrants in the U.S. that Mr. Trump mainly wishes to target and also includes green card holders and visa recipients. According to the Migration Policy Institute, a nonpartisan research group, there are only about 690,000 unauthorized immigrants who have been convicted of felonies or serious misdemeanors. Thus, since the pool of 2-3 million immigrants with criminal records that Mr. Trump wishes to deport encompasses some immigrants who in fact hold some kind of lawful immigration status, Mr. Trump will likely face due process obstacles when attempting to deport them. This is because most non-citizens, even unauthorized immigrants, who have committed crimes are entitled to a hearing before a judge prior to being deported. As such, the massive backlog in immigration courts will be a major obstacle for Mr. Trump’s plans. As of October 2016, there were 521,676 pending cases in immigration court according to the Transactional Records Access Clearinghouse at Syracuse University. Another issue will be locating immigrants who have committed crimes given the fact that several cities, including New York, have continuously vowed to remain as “sanctuaries” for immigrants. This generally means that such cities will not honor detainer requests by the U.S. Immigration and Customs Enforcement (ICE), who are in charge of removing individuals. Lastly, it is unclear that ICE has the manpower to find and deport millions of these targeted immigrants.

MAYOR DE BLASIO VOWS TO SHIELD NEW YORKERS FROM TRUMP’S POLICIES

Mayor Bill de Blasio has drawn his own hard lines on immigration by vowing to mount a legal challenge to protect immigrant families threatened with deportation, to prevent an aggressive stop-and-frisk policing policy from ever returning to New York, and to protect Muslims if the federal government tries to create a registry of the nation’s Muslims. Governor Andrew M. Cuomo has also echoed a similar message by stating that he would create a new unit of the State Police to investigate hate crimes, move to expand state human rights laws, and seek new funds to provide legal representation to immigrants.

CHICAGO AND OTHER MAJOR CITIES PLEDGE TO REMAIN SANCTUARY CITIES AMID TRUMP PLANS

Chicago is the latest city to pledge its commitment to remain a sanctuary for immigrants despite President-elect Donald Trump’s plans to deport or jail 2 to 3 million people who are in the country illegally. Chicago’s sanctuary status includes a policy against complying with U.S. Immigration and Customs Enforcement requests to hand over people in city custody whose immigration status is suspect, unless the person is determined to be a danger to the public. Chicago’s policy also includes preventing law enforcement officers from asking city residents about their immigration status during routine interaction or traffic stops. This comes even after Mr. Trump has pledged to ensure that federal funding be taken away from cities that circumvent immigration laws. Chicago is just the latest city to vow to remain a sanctuary as mayors of New York and Los Angeles have also reiterated their cities’ commitments since the presidential election.

THE FUTURE FOR IMMIGRANTS WHO ARRIVED IN THE U.S. AS CHILDREN

While President-elect Donald J. Trump previously promised to terminate President Barack Obama’s program that protects more than 740,000 young, undocumented immigrants known as Deferred Action for Childhood Arrivals (DACA), he recently indicated that he may seek to work something out” for this class of young, undocumented immigrats often referred to as “DREAMers.” This was seen in a Time Magazine article regarding Mr. Trump’s designation as Person of the Year where he stated, “we’re going to work something out that’s going to make people happy and proud. . . They got brought here at a very young age, they’ve worked here, they’ve gone to school here. Some were good students. Some have wonderful jobs. And they’re in never-never land because they don’t know what’s going to happen.” The 2012 DACA initiative is a deferred deportation program for immigrants who entered the U.S. as children. Those who qualify are also able to receive renewable work permit, and over 741,500 people have benefited from the program. Most recently, Senator Dick Durbin announced a bipartisan legislation, co-sponsored by Senator Lindsey Graham, on the Senate floor that would provide work authorization and temporary relief from removal to young unauthorized immigrants who were brought to the U.S. as children. The proposed bill is known as the Bar Removal of Individuals who Dream and Grow our Economy.

REPUBLICANS URGE PRESIDENT OBAMA TO PROTECT DREAMERS BEFORE LEAVING OFFICE

Three Republican lawmakers have urged President Obama to use his constitutional authority to pardon young people who were brought to the U.S. without authorization as children, known as DREAMers, and now fear being deported under the incoming Donald Trump administration. Nearly 1 million of these DREAMers signed up for the Deferred Action for Childhood Arrivals program that President Obama made possible through a June 2012 Executive Action that granted them work authorization and shielded them from deportation. These DREAMers now fear deportation after having exposed their personal information to the federal government, including their fingerprints and home addresses. These lawmakers have urged President Obama to take action before the incoming administration takes office by citing that some DREAMers have taken their own lives as a result of the unknown circumstances they face. Mr. Trump’s campaign promise to reverse President Obama’s administrative actions on his first day in office has subjected nearly one million DREAMers into fear, stress, and psychological issues such as depression, anxiety, and an increased risk of suicide. These lawmakers have deemed this “literally a matter of life and death.”

PRESIDENT-ELECT TRUMP NAMES GENERAL KELLY TO HEAD THE DEPARTMENT OF HOMELAND SECURITY

Donald J. Trump has officially nominated retired General John Kelly to serve as secretary of the U.S. Department of Homeland Security after praising the former U.S. Marine Corps General for his decades of military service and deep commitment to fighting the terrorism threat inside the nation’s borders. The selection becomes the third military general chosen for the Trump administration, following the selection of Lieutenant General Michael Flynn as National Security Adviser, as well as former U.S. Marine Corps General James Mattis as Defense Secretary. Mr. Trump has stated that General Kelly is the right person to spearhead the “urgent mission” of halting illegal immigration, in addition to securing the nation’s borders, streamlining the Transportation Security Administration and improving coordination between the country’s intelligence and law enforcement agencies.

U.S. CITIZENSHIP AND IMMIGRATION SERVICES’ GREEN CARD ERRORS GETTING WORSE

According to the Department of Homeland Security Office of Inspector General, the U.S. Citizenship and Immigration Services (USCIS) handed out 19,000 green cards over the past 3 years that either had incorrect information or were issued duplicate. A report by the Office of Inspector General (OIG) identified 12 incidents between July 2013 and May 2016, where USCIS issued incorrect green cards, and where the number of incorrect cards ranged from 19 to 5,434 on each of those 12 incidents. Additionally, USCIS issued more than 5,400 duplicates in June 2015, alone and sent more than 6,200 duplicate cards to customers over the past year. The report attributed much of the problems to USCIS’s Electronic Immigration System, the agency’s automated system for processing immigration benefits, which has been plagued by errors and cost overruns for years.

THE TRUMP EFFECT

Nawlaw has observed a surge in foreign nationals applying for greencards and greencard holders applying for naturalization since the results of the recent election. However, we believe this will result in USCIS processing delays, and will keep our readers posted.

PRACTICE UPDATE

According to the United States Citizenship & Immigration Services’ September 30, 2016, update, the Vermont Service Center is currently processing (non-premium) H-1B extensions filed last October 5, 2015, while the California Service Center is currently processing H-1B extensions filed last March 16, 2016. Hence there are now significant delays affecting non-premium processed extensions.

USCIS & START-UPS

Nawlaw has observed that the United States Citizenship and Immigration Services (USCIS) is still very hostile to start-up companies because of their size and is likely to challenge H-1B petitions in many instances. This is based on the Neufeld Memo of October 31, 2008, which states that there is a presumption of fraud involving U.S. petitioners with a gross annual income of less than $10 million which employ 25 employees or less whose business was established within the last 10 years.

SOCIAL MEDIA ALERT

In connection with O-1B changes of employer and/or extensions, Nawlaw has recently observed that USCIS is currently checking social media in connection with O-1 visa petitions to determine if the employer listed on the petition forms is still in business. If the employer is no longer in business, this could jeopardize an extension of stay or change of employer.

NEW ASSOCIATES AT NAWLAW

  • Mika B. Kozar is an experienced Associate Attorney with Neil A. Weinrib and Associates. She holds a JD from Seton Hall University School of Law in New Jersey; a Master’s degree, summa cum laude, in Human Resource Management from Rutgers University in New Jersey; and a Bachelor’s degree, summa cum laude, in Business Management with a Minor in Psychology from Rutgers University in New Jersey. Ms. Kozar is admitted to the State Bars of New York and New Jersey. She has extensive experience with employment-based temporary and permanent visa categories, as well as experience preparing family-based immigrant petitions and applications for adjustment of status, naturalization, and expedited naturalization pursuant to INA 319(b). Ms. Kozar focuses her practice on petitions for individuals of extraordinary ability in the O-1 and EB-1 categories, as well as National Interest Waiver petitions. She previously provided strategic corporate immigration counsel to clients ranging from Fortune 100 companies to small and medium-sized organizations at the world’s largest global immigration law firm.
  • Elektra B. Yao is an experienced Associate Attorney at Neil A. Weinrib and Associates. She holds a JD from the Lewis and Clark Law School in Oregon, a Master’s Degree in Spanish Law from the Universidad de Salamanca in Spain, and a Bachelor’s in Communication Arts from Marymount Manhattan College in New York. She also holds a certificate in Chinese Civil Law from the University of Beijing in China. Ms. Yao has broad experience in both family and employment based immigration cases and focuses on O-1 and EB-1 “Extraordinary Ability” petitions. Ms. Yao has lived international in Italy, France, Spain, and the UK. She is fluent in French and Italian, and is proficient in Spanish. She previously worked for several immigration law firms.
  • Linda Foster is an experienced Associate Attorney at Neil A. Weinrib & Associates with more than 30 years of experience in immigration law, real estate law, and business transactions. She holds a JD from New York Law School, a Bachelor’s Degree in History from the State University of New York at Stony Brook, and in 1981 was awarded a certificate from the East China School of Law and Politics in Shanghai, China, where she studied Chinese law and language. Ms. Foster has extensive experience in asylum and employment-based immigration, and she is now part of the H-1B team at our office. Linda Foster is the co-author of an article on recent developments in American immigration law, published by and presented at the International Congress of Comparative Law held in Vienna, Austria in May 2014. In addition to her experience in law, for the past 20 years Ms. Foster has been on the Board of Directors and Executive Committee of QSAC, Inc. an award-winning not-for-profit agency serving the needs of the autistic community in the Metropolitan New York area.

SAMPLING OF RECENT NAWLAW ACCOMPLISHMENTS

  • O-1 extension for a Brazilian national working as a Computer Graphic Artist
  • O-1 extension for a Belgian national working as a Singer, Songwriter and Performer
  • TN-1 approval for a Canadian national working as a Management Consultant
  • I-601A Provisional Unlawful Presence Waiver approval for a Mexican National
  • L-1A approval for a French national working as a Vice-President & Regional Controller
  • L-1A extension for an Indian national working as a Vice-President of Operations & Product Development
  • H-1B extension for an Indian national working as a Financial Analyst
  • H-1B extension for an Indian national working as a Systems Analyst
  • H-1B extension for a Japanese national working as an Assistant to the Producer
  • H-1B extension for a Chinese national working as a Software Developer
  • H-1B extension for an Indian national working as an Accountant
  • PERM (Labor Certification) approved for an Indian national working as a Vice President Equity Researcher
  • PERM (Labor Certification) approved for a Chinese national working as a Research Associate
  • PERM (Labor Certification) approved for an Indonesian national working as an Accountant
  • PERM (Labor Certification) approved for a Filipino national working as an Accountant

RECENT CLIENT QUERIES

  1. Potential E-2 visa client from Spain asks, “I would like to make an investment of around $1 million in publicly traded stocks. Is that enough or do I also have to make a real estate investment?” Ans. The E-2 investment visa requires an “active” rather than a passive investment in stocks or securities for personal reasons.
  2. Scandinavian national who received an H-1B visa but then left the U.S. company to work abroad now wants to visit the U.S. for the holidays and asks, “Will I have a problem returning to the U.S. for a brief visit considering that I still have a valid H-1B visa in my passport?” Ans. You should explain to the CBP officer that you are coming to the U.S. as a visitor for a short visit (must have a return ticket) and that you are not returning to the H-1B employer.
  3. L-1 visa applicant from Brazil seeking to set up a U.S. company asks if there is any exposure or liability if his brother, currently in the U.S. on an L-1 visa with another entity, becomes a temporary officer and uses his social security number to set up the U.S. bank account? Ans. No, there is no regulation prohibiting either an F-1, H-1B or L-1 visa holder from setting up a U.S. company and a bank account – this is not considered “employment” according to federal regulations.
  4. Client asks, “I was previously on an H-1B for a non-profit, cap-exempt institution and am wondering if I can migrate this H-1B to a for-profit company?” Ans. Unfortunately, since you have not been counted towards the annual H-1B cap of 85,000 you will need to seek a new H-1B in April, 2017.
  5. E-2 investment visa holder from Belgium has a growing start-up business and asks if he is required to hire a U.S. national in lieu of a Belgian national? Ans. The regulations do not expressly require the hiring of a U.S. national. You can hire either an executive, manager or person with essential skills from Belgium.
  6. Former J-1 visa holder from Ukraine changed her status to F-1 student visa and graduated with a Master’s degree on May 13, 2017, although her classes ended on May 2nd. She asks if she is eligible for the U.S. Master’s degree cap (which provides for additional H-1B visas) since her current employer is willing to apply for an H-1B visa. Ans. Unfortunately not since she must have completed her coursework by April 1st to qualify.