Good USCIS News: Policy Pronouncements Recognize Real-Life Customer Service Issues and try to Fix Them

New polices going into effect today will address application processing delays and their negative impacts on applicants, including loss of work authorization due to USCIS processing delays; delayed foreign national start dates due to USCIS adjudication delays and RFEs; and giving more applicants more opportunities to request that their applications be expedited.

Work Permit Validity Extended: from 1 year to 2 years for Adjustment of Status Applicants (Category C-09). This will greatly reduce the inconvenience or applying for new permits and job loss due to expiring permits; Continue reading “Good USCIS News: Policy Pronouncements Recognize Real-Life Customer Service Issues and try to Fix Them”

What is the International Entrepreneur Parole Rule and What Does it Mean for Foreign Entrepreneurs in the U.S.?

Are you a foreign national interested in starting or growing a business in the U.S.? If so, we have good news for you, as you may now qualify for a temporary permission to stay and work in the United States under the recently revived International Entrepreneur Rule (IER).  On May 10, 2021 the Department of Homeland Security (DHS) announced it is withdrawing a 2018 proposed rule to eliminate the IER in response to the President Biden’s Executive Order, (EO 14012, “Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans”.

Under the IER, the  DHS  may use its parole authority to grant a period of authorized stay up to 30 months, on a case-by-case basis, to foreign entrepreneurs who demonstrate that their stay in the United States would provide a significant public benefit through their business venture and who merit a favorable exercise of discretion.   This form of parole does not require that the entrepreneurs invest their own money, or that they possess certain nationality (unlike the E-2 investor visa).  Entrepreneurs granted parole will be eligible to work only for their start-up business, and  may be accompanied by their family members.  Importantly, the spouses of the foreign entrepreneur may also apply for a temporary work permit once in the U.S.

To qualify for the parole, the entrepreneurs must show that they :

  1. Possess a substantial ownership interest in a start-up entity created within the past five years in the U.S. that has substantial potential for rapid growth and job creation.
  2. Have a central and active role in the start-up entity such that they are well-positioned to substantially assist with the growth and success of the business.
  3. Will provide a significant public benefit to the United States based on their role as an entrepreneur of the start-up entity by showing that:
    • The start-up entity has received a significant investment of capital from certain qualified U.S. investors with established records of successful investments;
    • The start-up entity has received significant awards or grants for economic development, research and development, or job creation (or other types of grants or awards typically given to start-up entities) from federal, state, or local government entities that regularly provide such awards or grants to start-up entities; or
    • They can provide additional reliable and compelling evidence of the start-up entity’s substantial potential for rapid growth and job creation.

The parole is temporary and discretionary and may be renewed for an additional 30  months, or revoked by DHS, in their discretion.   To apply, you must file Form I-941, Application for Entrepreneur Parole, with the required fees , and supporting documentation with U.S. Citizenship and Immigration Service.

The international entrepreneur parole may be the best (or in some cases, the only available) option for foreign entrepreneurs seeking entry to the United States to work for a business venture.  We can help assess the interested entrepreneur’s eligibility or assist with the process.

Creativity and Talent Can Clear the Way to the United States – Common U.S. Visa Categories for the Fashion and Design Industries

The fashion and design industries employ individuals in various fields of specialization, both in “back office” design and production and “front office” presentation and merchandising, marketing/advertising and sales. Following is an overview of common nonimmigrant and immigrant visa categories allowing employers in these industries to hire and retain foreign talent:

For Design/Production Staff & Marketing/Advertising/Merchandising Staff – Temporary Work Visas:

  • For foreign students: F-1 curricular practical training (CPT; on-the-job training that is part of the curriculum; F-1 pre- or post-adjudication optional practical training (OPT; for up to 12 months – very useful for design, and marketing/advertising students)
  • For foreign trainees and interns: J-1 intern up to 12 months (for those currently pursuing post-secondary education outside the U.S. or who graduated no more than 12 months ago) OR J-1 trainee up to 18 months (for those with a foreign degree + 1 year of work experience or 5 years of work experience abroad) – run through U.S. Department of State; H-3 Trainee for up to 24 months (for those seeking training that is not available in the home country, and which will benefit the individual’s career abroad) – run through U.S. Citizenship & Immigration Services.
  • For degreed professionals (at least U.S. or equivalent foreign bachelor’s degree in a related field):  TN U.S.-Mexico-Canada Free Trade Agreement professionals in increments of up to 3 years (no max) for enumerated occupations such as Architect or Landscape Architect, Graphic Designer, Industrial Designer and Interior Designer; H-1B1 Chile or Singapore or E-3 Australia professionals in up to 2 years increments (no max); H-1B specialty occupation (most common, might be subject to annual lottery) for up to 6 years max in up to 3-year increments (with exceptions to max based on pending green card process).
  • For degreed or non-degreed workersL-1A intracompany transferee (manager/executive) for up to 7 years; L-1B intracompany transferee (specialized knowledge) for up to 5 years – however, L-1B individuals applying abroad based on the employer’s blanket L petition must be degreed professionals (very common for transferring employees of global fashion enterprises of any size, in design and non-design roles, to apply knowledge of the brands, products and/or processes in the United States).
  • For nationally or internationally renowned professionals: O-1 person of extraordinary ability for initially up to 3 years and then in 1-year increments, with the ability evidenced by awards, publications and published material about the individual, and similar evidence such as published design work (very common in the  design field).
  • Via a commercial treaty between the United States and the country of citizenship of the investor and/or employee – the U.S. business must share that nationality:  E-1 treaty trader or E-2 treaty investor, either as the investor or as a managerial or specialist employee (similar to L-1 but no experience with foreign affiliate per se required; document-wise complicated and therefore likely underused; no max, admission in up to 2-year increments with visa stamp permitting travel usually valid for 5 years).

For Fashion Models – Temporary Work Visas:

  • H-1B for fashion models of distinguished merit and ability = prominent in the field and coming to work in a position that requires prominence.
  • O-1 person of extraordinary ability (this can also be used for support staff such as hair stylists and make-up artists).

Permanent (Green Card) Work Visa Categories for All of the Above, as Feasible:

  • For multi-national managers/executivesEB-1-3 (similar to L-1A; no test of the U.S. labor market required).
  • For nationally or internationally renowned professionals: EB-1-1 person of extraordinary ability (self-petition possible) or EB-1-2 outstanding researcher/professor in the design or fashion field (both similar to O-1 but higher standard; no test of the U.S. labor market required); EB-2 advanced degree holder or person of exceptional ability + national interest waiver (where the design or fashion work would have substantial merit and national importance – likely challenging for these industries, but not really relevant given the EB-1-1 category; no test of the U.S. labor market required; self-petition possible).
  • For those not qualifying under the aboveEB-2 advanced degree holder or person of exceptional ability or EB-3 professional or skilled worker PERM application for labor certification = test of the U.S. labor market with U.S. Department of Labor prior to filing petition with U.S. Citizenship & Immigration Services.

Immigration counsel can help fashion and design employers and individuals determine what options are feasible, and advise on expected timing and cost.

Passport Validity at the Time of Entry into the U.S. and Status Renewal: Plan Early and Often

Foreign national individuals coming to the United States or in the process of filing a nonimmigrant petition or application should make sure they have a sufficiently valid foreign passport to avoid problems due to past or upcoming passport expiration.

U.S. Customs & Border Protection (CBP) rules require most nonimmigrant visa applicants for admission to the United States to have a passport that is valid for at least 6 months beyond the individual’s anticipated period of stay. While CBP can consider the passport validity as automatically extended for at least 6 months beyond the expiration date for foreign nationals from many countries (see https://www.ustraveldocs.com/ci/9-FAM-41.104-Exhibit-I.pdf), CBP does not always follow this guidance, and may admit the individual only until the passport expiration date, which can be considerably earlier than the end of the period of stay for which the individual is eligible. Foreign nationals who overlook that their Form I-94 – the document generated electronically by the CBP system that shows the authorized period of stay – was limited to the expiration date of their passport, risk unknowingly being unlawfully present, and, in turn, becoming deportable. Continue reading “Passport Validity at the Time of Entry into the U.S. and Status Renewal: Plan Early and Often”

Immigration Agency Interviews in COVID-19 Times

If you are applying for certain immigration benefits, for example U.S. citizenship or a marriage-based green card, the last step of your immigration journey is an interview with a U.S. Citizenship and Immigration Service (USCIS) Officer held at a local USCIS field office.  Needless to say, you should be well prepared for your interview and in many cases, it is recommended that you have an attorney accompany you to the interview.  These interviews are meant to be non-adversarial, with the goal of completing the adjudication of your immigration benefit application.  There are certain procedural requirements to be met, including regarding the interview environment, your right to privacy, and your right to counsel, which have recently been changed given the COVID pandemic to ensure the safety of the officers, the applicants, and the general public.  These changes bring up some strategic considerations for your preparation or legal representation at interview.

In today’s COVID times, the immigration interviews present new challenges, so here is a brief general summary of what you can expect.  The USCIS outlines the specific CDC mandated safety measures before you can even go to the interview. There are restrictions regarding who may accompany you, and if you have traveled outside the U.S. in the past 14 days immediately preceding the interview, you will not be allowed to proceed with the interview, which will be rescheduled.  Generally, you may not enter a USCIS facility, if you: (1) have any symptoms of COVID-19, including recently developed cough, fever, difficulty breathing, changes in smell or taste or fatigue (list is not all-inclusive); (2) have been in close contact with anyone known or suspected to have COVID-19 in the last 14 days; (3) have been instructed to self-quarantine or self-isolate by a health care provider, public health authority or government agency within the last 14 days; or (4) are awaiting the results of a COVID-19 test.

Further, you may not enter the facility more than 15 minutes before your appointment (30 minutes for naturalization ceremonies), and you must wear face coverings that cover both the mouth and nose (masks with exhaust valves, neck gaiters or bandanas are not allowed). You will have to follow social distancing guidelines and may have to answer health screening questions before entering a facility.  The immigration agency also encourages bringing your own pens.  These are some of the general office requirements but you should check your interview appointment notice for any additional instructions, as the practice of each USCIS field office significantly vary.

If you are represented by counsel, the above rules apply equally to you as the applicant, and to your attorney.  You should also note that some field offices may conduct interviews at the window, which raises privacy concerns if the are other persons waiting in the area.  Other field offices conduct interviews via video, which may impact the ability of the officer to obtain accurate information during the interview and for the applicant to understand the officer, particularly if there are issues with audio or video quality.  Attorneys may raise concerns regarding those issues by citing the relevant agency guidance, but accommodations are entirely within the Officer’s discretion.

It is also possible that USCIS separates the petitioner and applicant due to new room occupancy limits.  This means that a USCIS interview may be conducted where the attorney and clients are in one room and the officer in another, connected via iPad.  In that situation, you should assume that information shared in that setting is not confidential even if it appears that the iPad is “off”. Due to COVID-19 limitations on room occupancy, some field offices are now limiting the number of persons in the room to three, which results in the separation of the petitioner and applicant if an attorney attends in person. In this scenario, you may have the choice of being separated, or have your attorney appear by telephone or video.  However, some USCIS officers may give you an option of proceeding without an attorney, and you should be well-prepared to insist on calling your attorney and refuse to waive counsel, unless your attorney and you have already decided that you can proceed with the interview on your own.

All of these practices vary at the local USCIS field offices and pose concerns, so it is important that you discuss the best plan of action for you and your case with your attorney.  If you do not have an immigration counsel, you may wish to secure one for the interview, or at least speak to one who can prepare you for the interview, as the attorney will likely be more familiar with the local office procedures and able to advise you.  Feel free to reach out to us, if you have any questions about your upcoming immigration interview, or any other immigration concerns.

Temporary and Permanent U.S. Immigration Options for Information Technology Workers

U.S. employers seeking to bring foreign information technology (IT) talent to the United States, and IT workers seeking ways to obtain authorization to work in the United States, have several options.  Some of these are geared at college students or recent graduates seeking temporary training, and others are more suitable for degreed professionals,  with increased options for senior or well-established members of the profession. Here is an overview of the most common U.S. visa categories for the IT industry:

Temporary Work Visa Categories:

  • For foreign trainees and interns: J-1 intern up to 12 months (for those currently pursuing post-secondary education outside the U.S. or who graduated no more than 12 months ago) OR J-1 trainee up to 18 months (for those with a foreign degree + 1 year of work experience or 5 years of work experience abroad) – run through U.S. Department of State; H-3 Trainee for up to 24 months (for those seeking training that is not available in the home country, and which will benefit the individual’s career abroad) – run through U.S Citizenship & Immigration Services.
  • For foreign students in the United States: F-1 on-campus employment; F-1 curricular practical training (CPT; i.e., on the job training that is part of the curriculum); F-1 pre-or post-graduation optional training (OPT) for up to 12 months; and F-1 STEM OPT extension for up to an additional 24 months (for those with a U.S. degree major in a STEM field and whose employer is enrolled in E-Verify).
  • For degreed professionals (at least U.S. or equivalent foreign bachelor’s degree in an IT or closely related field):  TN U.S.-Mexico-Canada Free Trade Agreement professionals in increments of up to 3 years (no max), for computer systems analysts and possibly software engineers under “engineers”; H-1B1 Chile or Singapore or E-3 Australia professionals in up to 2 years increments (no max); H-1B specialty occupation (most common, might be subject to annual lottery) for up to 6 years max in up to 3-year increments (with exceptions to max based on pending green card process).
  • For degreed or non-degreed IT workers: L-1A intracompany transferee (manager/executive) for up to 7 years; L-1B intracompany transferee (specialized knowledge) for up to 5 years – however, L-1B individuals applying abroad based on the employer’s blanket L petition must be degreed professionals (very common for large, global IT service providers).
  • For nationally or internationally renowned professionals: O-1 person of extraordinary ability for initially up to 3 years and then in 1-year increments, with the ability evidenced by awards, publications and published material about the individual, and similar evidence such as patents (not impossible, but challenging in the IT industry as employer-independent awards are rare).
  •  Via a commercial treaty between the United States and the country of citizenship of the investor and/or employee – the U.S. business must share that nationalityE-1 treaty trader or E-2 treaty investor, either as the investor or as a managerial or specialist employee (document-wise complicated and therefore likely underused; no max, admission in up to 2-year increments with visa stamp permitting travel usually valid for 5 years).

Permanent (Green Card) Work Visa Categories:

  • For multi-national managers/executives: EB-1-3 (similar to L-1A; no test of the U.S. labor market required).
  • For nationally or internationally renowned professionals: EB-1-1 person of extraordinary ability (self-petition possible) or EB-1-2 outstanding researcher/professor (both similar to O-1 but higher standard; no test of the U.S. labor market required); EB-2 advanced degree holder or person of exceptional ability + national interest waiver (where the IT work would have substantial merit and national importance; no test of the U.S. labor market required; self-petition possible but challenging in the IT industry).
  • For those not qualifying under the above: EB-2 advanced degree holder or person of exceptional ability or EB-3 professional or skilled worker PERM application for labor certification = test of the U.S. labor market with U.S. Department of Labor prior to filing petition with U.S. Citizenship & Immigration Services.

Immigration counsel can help IT employers and individuals determine what options are feasible, and advise on expected timing and cost.

Hiring and Immigration: Questions to Ask and Factors to Consider

Hiring season is fraught with questions and uncertainties; preparing employment applications;  interviewing, drafting offer letters….. What questions can be asked? What questions should be asked? These concerns are even more pronounced when it comes to immigration status, and immigration sponsorship.  Those tasked with the hiring process often ask,  whether it is legal to ask applicants about their immigration status, how to ask that question,  and even more important,  “Do we have to sponsor for immigration status if the applicant needs it?”

Read the full post here: 

International Travelers to the US must present Negative COVID Test Results

The Centers for Disease Control and Prevention (CDC) has issued a new rule requiring that all air passengers arriving to the United States from a foreign country provide documentation of a negative COVID-19 test or documentation that the passenger has recovered from COVID-19.  Passengers may satisfy this rule by either getting tested no more than three days before their flight departs and providing proof of the negative result to the airline before boarding, or providing documentation of having recovered from COVID-19 and that a licensed healthcare provider has cleared the passenger for travel. Learn more about this new requirement in our recent client alert.

H-1B Lottery Selection Criteria May Change to Salary-Based Process

The Department of Homeland Security (DHS) has issued a new rule that transforms the  random cap H-1B selection process to one that prioritizes registrations and petitions based on the highest Department of Labor (DOL) prevailing wage level met by the offered salary. It is not clear yet whether the incoming Biden administration will implement this rule at all or with modifications. Learn more in our recent client alert.

Planning to register for the H-1B cap season this spring but will you have a chance of being selected based on this new DHS Rule?

As many of you know, the most common H-1B professional worker visa category is subject to an annual quota/ cap per fiscal year (with some exceptions) and historically, the demand for initial H-1B numbers significantly exceeds the numbers available.  So last year, employers and foreign nationals welcomed a new H-1B registration rule, whereby employers seeking to file H-1B cap-subject petitions had to first register electronically with the U.S. Citizenship and Immigration Service (USCIS) during a designated registration period.  And at the end of the initial registration period, USCIS received more registrations than needed to reach the H-1B cap, so it randomly selected, through a computer generated lottery a sufficient number of registrations who were then notified to submit their H-1B cap petition filings to USCIS. Continue reading “Planning to register for the H-1B cap season this spring but will you have a chance of being selected based on this new DHS Rule?”