DHS – Duane Morris Immigration Law

September 6, 2024September 16, 2024 by Kristopher Peters

U.S. Immigration Practice 2024: Noteworthy Developments and Possible Changes Ahead

2024 has seen a plethora of developments impacting U.S. immigration. While many developments represent incremental changes to U.S. immigration practice, particularly concerning conventional business and employment-based immigration, more substantial changes to immigration law are only achievable through congressional legislation and, given the current political climate, such congressional action is unlikely. Nonetheless, here are some of the noteworthy developments in 2024 and possible changes in U.S. immigration practice worth watching for the year to come:

1. State Actions/Proposed Actions

- Workplace Enforcement: In August, the Governor of the state of New Jersey signed a law that will levy penalties of up to $10,000 for employers in the state who disclose — or threaten to disclose — a worker’s immigration status to the government to conceal possible violations of state laws on wages, benefits or taxes. The first offense is $1,000, a second violation can be up to $5,000, and subsequent violations can be up to $10,000. The recovered fees would go to the state Department of Labor.

- Pay Transparency: Following a trend in recent years, additional states have implemented or enacted Pay Transparency laws in 2024. States including, but not limited to, Hawaii, Maryland, Massachusetts, and Minnesota enacted or effectuated pay transparency laws requiring certain employers to disclose additional pay information (such as pay ranges, benefits, and other compensation) on job postings and/or other forms of recruitment. Some state pay transparency laws enacting similar rules passed in 2023, like the amendment to the Illinois Equal Pay Act, are also set to go into effect in 2025. As job postings and recruitment are mandated in certain immigration cases, keeping abreast of pay transparency requirements in different locations is crucial to remain compliant with the law.

Continue reading “U.S. Immigration Practice 2024: Noteworthy Developments and Possible Changes Ahead”

June 18, 2024June 20, 2024 by Valentine A. Brown

Biden Administration Announces New Programs for DACA holders and Undocumented Spouses of US Citizens

On June 18, 2024 the White House announced two new programs to address long standing shortfalls in our current immigration law.

Undocumented spouses of U.S. Citizens, who have lived in the US for 10 years or more, will be eligible for work authorization and a three year path to legal permanent reisdence, commonly know as green card status. Thier minor children will also be eligible to apply. Under current law, these applicants have a 6-10 year path to legal permanent residence, that requires them to return to thier home countries for visa processing, without any guarantee of being able to return to the United States. This new program will eliminate the need for them to leave the United States to adjust to legal permanent resident status.

Under the new program, applicants will apply for Parole in Place (PIP), which if approved will give them legal recognition in the United States and a work permit. Once the applicant’s PIP is approved, the US citizen spouse will be able to follow the normal sponsorship process to obtain legal permanent residence for their spouse and minor children under 21 years old.

DACA recipients who have graduated with a bachelor degree or higher from a U.S. university or college will be eligible to seek legal permanent residence through employment. Under current law, there is no legal pathway for these applicants to seek employment-based green cards due to the fact that they entered the United States illegally as children. This new program will provide these applicants and their employers the opportunity to seek employment-based green cards with the catch that the applicant will need to leave the United States, at the very end of the process, to attend their green card interview at the U.S. consulate in their home country.

Court Challenge Likely: Unfortunately, an immediate court challenge to these programs is likely. A similar, but different program was proposed by the Obama administration in 2014 for the undocumented parents of U.S. citizen children. Under that program, the adminstration proposed to offer “Deferred Action” to undocumented applicants, similar to the DACA program, which is also now under attack in the courts. That program was held up in the courts for years, without ever being implemented, before the Executive Order proposing it was finally rescinded by the Trump Administration. The new program, with it’s offer of PIP rather than Deferred Action, has a stronger likelihood to succeed, based upon the PIP programs for military family members, Ukrainians, Afghans and others.

American Business Immigration Coalition and many other business groups support this proposal. This coalition is a bipartisan group of more than 1400 diverse businesses and business associations located throughout the United States. For years, it has been advocating for work permits for long-time undocumented immigrants in the United States. As the coalition states, “sensible immigration reform is economically important, politically smart, and morally right.”

For more information or consultation on eligibility, please contact Valentine Brown at (215) 979-1840 or the Duane Morris immigration attorney with whom you normally work.

February 11, 2024 by Valentine A. Brown

USCIS Premium Processing Fees going up on February 26, 2024

After three years with no increase, Premium Processing fees for all USCIS forms will increase on February 26, 2024. Any Form I-907 requests for premium processing arriving at USCIS on or after that date will need to be submitted with the higher fees. Continue reading “USCIS Premium Processing Fees going up on February 26, 2024”

January 24, 2024January 29, 2024 by Kristopher Peters

New Year, New Opportunities: Trends and Upcoming Developments in Immigration Law

2023 saw the rollout of a litany of administrative, regulatory, and executive updates and changes that touch virtually all aspects of the U.S. immigration system, with the impact of these changes expected to be felt in full force in 2024. Employers who engage in routine visa sponsorship, skilled immigrants with extensive experience in their respective fields, entrepreneurs, and investors all stand to benefit from many if not all of these changes and are well served by familiarizing themselves with these policy and regulatory changes, updated immigration trends, and the new opportunities they present. Continue reading “New Year, New Opportunities: Trends and Upcoming Developments in Immigration Law”

January 22, 2024March 6, 2024 by Valentine A. Brown

H-1B Lottery Begins on March 6, 2024: It’s Time to Prepare

The H-1B Lottery Registration Window Opens March 6, 2024. The ending date of the registration will be March 22, 2024. Employers and potential H-1B workers should determine now, whether they will enter and start preparing the necessary information and documentation for the submission. While an immigration attorney is not required for employers to submit their entries, it is highly recommended to have counsel for the process, as the USCIS online system can be confusing and prone to snafus.

Employers should consider entering any foreign workers who are on Optional Practical Training (OPT), STEM OPT, or who hold other nonimmigrant statuses, such as TN and O-1into the lottery. Evaluating the job description, salary requirements and credentials of each potential entry is important, as well as determining whether the foreign national might qualify for the master’s cap, giving them a better chance of selection. Experienced H-1B counsel can also assist in determining whether a particular candidate in a particular position, will have a successful H-1B application after being selected. Continue reading “H-1B Lottery Begins on March 6, 2024: It’s Time to Prepare”

April 24, 2023May 24, 2023 by Valentine A. Brown

USCIS International Entrepreneur Parole Program Gets Some Guidelines

Written By: Alejandra Vargas, Esq. and Kristopher Peters, Esq.

Some exciting news for Entrepreneurs! As part of an ongoing slate of new agency guidance regarding various immigration programs and visas, USCIS has issued comprehensive guidance regarding the International Entrepreneur Parole Program (“IEPP”). The published guidance introduces criteria for entrepreneurs who have a central and active role in a start-up U.S. company and who are seeking significant public benefit parole. The revival of the IEPP and corresponding agency guidance represents part of a series of ongoing efforts by the Biden Administration to increase and enhance entrepreneurship, innovation, and job creation in the United States.

What is the IEPP? The IEPP was first introduced under the Obama Administration in 2017 as an additional avenue to facilitate the ability of startup founders to begin growing their companies within the United States, contingent on obtaining significant financing from U.S. investors. The stated goal of the IEPP when first announced was to “identify on a case-by-case basis entrepreneurs who would provide significant public benefit, based on factors including the entrepreneur’s ownership stake and leadership role; the growth potential of the startup; competitive research grants from federal, state, and local government agencies; and investment by qualified American investors.”

Under the program, entrepreneurs who own at least 10 percent of a startup and attract at least $250,000 in financing from U.S. investors can remain in the United States for initial period of up to 30 months, with the ability to request one additional period of re-parole of up to 30 months from the date of the expiration of the initial parole period, in the agency’s discretion.

Unfortunately, although the final rule creating the IEPP was published in January 2017, the program was suspended under the Trump Administration. The Biden Administration later resurrected the rule in May 2021, but until now comprehensive guidance regarding the actual criteria for consideration and selection under the IEPP did not exist.

IEPP Criteria for Consideration under new USCIS Guidance: Under the new USCIS Guidance, the agency is updating Volume 3, Part G of the USCIS Policy Manual to describe the eligibility criteria for selection under the IEPP program that was created under the initial IE final rule in January 2017. This includes comprehensive guidance on the criteria for consideration and related definitions for the applicant, the start-up entity, qualified investment grant, or award, as well as relevant evidence that may be submitted.

To qualify for selection under the IEPP, an applicant must satisfy the following criteria:

The applicant must demonstrate that a grant of parole will provide a significant public benefit to the United States based on the applicant’s entrepreneurial role.
The applicant must have substantial ownership in the startup entity (defined to mean at least a 10% ownership interest in the start-up entity).
The applicant must not be primarily engaged in the offer, purchase, sale or trading of securities, futures contracts, derivatives, or similar instruments.
The applicant must demonstrate that the proposed startup entity:
- Has substantial potential for rapid growth and job creation
- Was formed within the five (5) years immediately preceding the date of initial parole application; and
- Has been lawfully doing business during any period of operation since the date of formation.
The applicant must obtain at least $250,000 in U.S. investment, if the application was filed before October 1, 2021, or $264,167 if the application is filed on or after October 1, 2021.
The financing must be good faith investment in the form of lawfully derived capital and specifically excludes investment from the entrepreneur themselves, close family and closely-held corporations.
The investment must come from a “qualified investor”, which is defined as a “U.S. citizen or lawful permanent resident (LPR) of the United States”, or a U.S.-based legal entity that is majority owned and controlled, directly and indirectly, by U.S. citizens or LPRs.

If the initial application is approved, the entrepreneur may be granted parole for both themselves and two other entrepreneurs (total of three entrepreneurs per start-up entity) for an initial period of up to 30 months, with the ability to submit a one-time request for re-parole for up to an additional 30 months from the date of expiration of the initial parole.

Other Highlights Under the New USCIS Guidance : The updated Guidance also addresses the process for the agency to adjudicate IEPP applications, how the agency evaluates whether the application will provide significant public benefit to the U.S., the conditions on parole and basis for termination, and the application process for the entrepreneur’s spouse. This includes detailing how the applicant’s spouse (but not children) may apply for work authorization after being paroled into the United States.

Additionally, the Guidance lays out the criteria for obtaining an additional parole period, including that the entrepreneur demonstrates that the re-parole will continue to provide a significant public benefit to the United States and either: (1) that the entity has received at least $528,293 in qualifying investments, (2) that the entity has created at least 5 qualified jobs during the initial parole period, or (3) that the entity has reached at least $528,293 in annual revenue in the United States and averaged 20% in annual revenue growth throughout the initial parole period.

The revival of the IEPP program and updated Guidance represents an additional avenue by which entrepreneurs can invest, live and work in the United States. This is in addition to, or alongside, other potential options including E visas (for nationals of qualifying treaty countries), O-1 visas (for individuals with an accomplished portfolio in their respective field), and others.

Please contact a member of our Immigration Group for more information about either potential eligibility for parole under the IEPP or other visa options that may be available to you.

January 15, 2021 by Valentine A. Brown

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:

March 29, 2020March 29, 2020 by Valentine A. Brown

USCIS Announces I-9 and E-Verify Timing Waivers and Modifications in the wake of COVID-19

COVID-19 social distancing directives, State and Federal agency closures and remote work requirements have made it impossible for employers to comply with the normal I-9 and E-Verify regulations on timing and review of employee documents. To address these concerns, USCIS has announced several measures to extend time frames and loosen its normally strict requirements. In this blog, we discuss USCIS suspension of the I-9 requirement to review physical documents, an automatic 60 day extension for all I-9 audit responses, acceptance of expired documents for new hires who are unable to update driver licenses and state IDs, as well as E-verify suspension of the 8 day response time for responding to Tentative Nonconfirmations. Continue reading “USCIS Announces I-9 and E-Verify Timing Waivers and Modifications in the wake of COVID-19”

January 28, 2016January 27, 2016 by Valentine A. Brown

USCIS Regulatory Proposals Aim to Improve Immigration Process for High-Skilled Foreign Workers

The White House is continuing to slowly roll out many of the 2014 promised changes to improve the U.S. immigration system. New regulations, published in the Federal Register on December 31, 2015 seek to modernize and improve certain employment-based immigrant and nonimmigrant visa programs for high-skilled foreign workers. Benefits to participants in those programs would include improved processes for U.S. employers seeking to sponsor and retain immigrant and non-immigrant workers; greater stability and job flexibility for such workers; and more transparency and consistency in the application of DHS policy.

Many of these changes are aimed at improving the ability of U.S. employers to hire and retain high-skilled foreign nationals who are already the beneficiaries of approved employment-based immigrant visa petitions and are waiting to become lawful permanent residents (LPRs), while also increasing employment flexibility for such workers. The proposed regulations would increase the ability of such workers to further their careers by accepting promotions, making position changes with current employers, changing employers, and pursuing other employment opportunities in the U.S. job market.

Some of the highlights of the proposed rule include:

Improved Job Portability with an Approved I-140:
The proposed rule would limit the grounds for automatic revocation of approved I-140 Petition for Immigrant Worker. Once an I-140 has been approved for 180 days or more, it will still be valid for purposes of retaining one’s priority date and extending one’s H-1B status, even if the employer subsequently withdraws the petition or the employer’s business shuts down. The exception to this rule would be cases of fraud, misrepresentation, and a few other limited situations.

One-Time Grace Periods
The proposed rule would authorize a one-time grace period for certain nonimmigrant workers of up to sixty (60) days after employment ends, or until the existing validity period ends, whichever is shorter. This grace period would apply to those in H-1B, E, L-1, and TN status. Similar flexibility already applies to F-1 nonimmigrant students and j-1 nonimmigrant exchange visitors.

Eligibility for Employment Authorization in Compelling Circumstances
The proposed rule would allow certain high-skilled individuals in the United States in H-1B, H-1B1, L-1, O-1, or E-3 nonimmigrant status who are the beneficiaries of an approved I-140 petition to apply for one year of restricted employment authorization if they:

are unable to adjust status due to visa backlogs; and
can demonstrate “compelling circumstances” which justify issuing an employment authorization document.

At this time, DHS has not defined the term “compelling circumstances,” however the proposed rule offers possible examples such as serious illnesses/disabilities or cases of employer retaliation. Accordingly, this benefit will likely only apply in very limited circumstances.

Automatic Extensions of EAD Work Authorization in Certain Circumstances
The proposed rule would amend the way USCIS processes applications for employment authorization to help prevent gaps in work authorization that are problematic for foreign nationals and their U.S. employers. Specifically, DHS is proposing to repeal the current regulations that require the issuance of interim EADs if the I-765 application for work authorization (“EAD”) has been pending more than 90 days. Under the new rule, USCIS will automatically extend the EAD for up to 180 days upon the timely filing of a renewal application for applicants who meet certain requirements. To be eligible for this benefit, the renewal application must be based on the same employment authorization category as the expiring EAD, among other requirements.

The proposed rule also clarifies various policies and procedures related to the adjudication of H-1B petitions, including extensions of status, determining cap exemptions, and counting workers under the H-1B visa cap.

USCIS is seeking public comment on the proposed rule through February 29, 2016. The proposed changes would take effect on the date indicated in the final rule once it is published in the Federal Register.

Special thanks to Christina Haines, Esq. for her assistance with this blog post.