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”

Filing Guidance Now Available for Applications for Parole in Place for Certain Noncitizen Spouses and Stepchildren of U.S. Citizens

The Department of Homeland Security recently announced the implementation of the Biden-Harris administration’s Keeping Families Together Program, which allows certain noncitizens present in the United States for at least 10 years and married to U.S. citizens on or before June 17, 2024, (and qualifying stepchildren) to apply for parole without leaving the U.S. and being separated from their families. Some DACA and TPS recipients who are spouses or stepchildren of U.S. citizens may also be eligible. Parole in place has already been available for certain military service members and their family members.

Read the Alert on the Duane Morris LLP website.

USCIS Publishes Filing Guidance for Applications for Form I-131F, Parole in Place for Certain Noncitizen Spouses and Stepchildren of U.S. Citizens

DHS recently announced the implementation of the Biden-Harris’ administration’s “Keeping Families Together” program, which allows certain noncitizen spouses and stepchildren of U.S. citizens to apply for parole without leaving the U.S. and being separated from their families. Some DACA and TPS recipients who are spouses or stepchildren of U.S. citizens may also be eligible. DHS has the sole discretion to approve parole and can terminate it at any time.

If granted parole, the noncitizen spouse or stepchild’s parole period will be valid for 3 years from the date of approval, allows them to apply for an Employment Authorization Document (EAD) by filing Form I-765, and may make them eligible to apply for adjustment of status to become lawful permanent residents. Continue reading “USCIS Publishes Filing Guidance for Applications for Form I-131F, Parole in Place for Certain Noncitizen Spouses and Stepchildren of U.S. Citizens”

USCIS to Conduct 2nd H-1B Lottery

On July 30, 2024, USCIS announced that it will be conducting a second H-1B lottery “soon.” We anticipate that this second round will occur on or about August 1.  Employers who submitted entries in March 2024 and were not selected in the first round will remain eligible for the second round and will be automatically entered into the second round.

USCIS has confirmed that the Masters Cap has been completely filled, so the second round lottery will be for all remaining applicants , regardless of their degree level or graduation country.

If an entry is selected in the second round, employers will receive an email from their My USCIS account notiftying them that there has been a change in their account.  Once they log in, they will be able to see the additional selections and retrieve the offical selection notice from their site.  These notices contain important information about where the application should be submitted as well as required deadlines. Continue reading “USCIS to Conduct 2nd H-1B Lottery”

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.

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”

H-1B Domestic Visa Validation Pilot Starts on January 29: How To Manual

Overview

On December 21, 2023 the Department of State published information on a pilot project to provide visa renewals in the United States.  Currently, any foreign national who needs to obtain a new U.S. visa must leave the United States to have their passport processed by a U.S. consulate abroad.  This costly, inconvenient, and unpredictable process has long been a source of frustration for visa holders, and their employers.  Below we provide details on this long awaited pilot. As strong advocates for our clients, we sincerely hope that it will be a success and will be rolled out for everyone during 2024. Continue reading “H-1B Domestic Visa Validation Pilot Starts on January 29: How To Manual”

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.

 

 

Premium Processing Expanded to Initial NIW and Multinational Manager I-140s on January 30, 2023

USCIS has announced the final phase of Premium Processing expansion for EB-1 I-140 petitions. Starting on January 30, 2023, USCIS will accept Form I-907 applications for all pending multinational manager and executive petitions as well as National Interset Waiver (NIWs) petitions AND all initial filings for these categories. USCIS has also announced that additional Premium Processing expansions will be announced in March for F-1 students seeking work authorization throuhg Optional Practical Training (OPT) and STEM OPT. 

These announcements continue the slow roll out of addtional categores of USCIS applications in which the Premium Processing service is available.  This service costs $2500 and guarantees the applicant that USCIS will take some action on a petition with in 15 calendar days for most petitions, including I-129s and many I-140s. For NIWs and Multinational Manager I-140s USCIS has increased the time frame to 45 days.  

This is a welcome announcement for applicants and employers alike. Current procesing times for NIWs and Multinational Manager petitions can run upwards of 18 months leaving applicants in bureacratic limbo for long periods of time. However, careful consdideration must be given when deciding whether to opt for the Premium Processing Service.  Immigration practitioners and hard data both confirm that applicants who choose Premium Processing are much more likely to receive Requests for Evidence (RFE) on their petitions from USCIS.  Once an RFE is recieved, the clock stops, and does not restart again until the applicant responds to the RFE. 

More information on Premium Processing and application eligibility can be found here

Options for H-1B Workers after Employment Termination

With recent layoffs in the tech industry, H-1B and other nonimmigrant workers may find themselves stranded in the US with no work and potentially no legal immigration status.  USCIS has issued detailed information for these workers, explaining their options and some relief that may be available in certain circumstanes:

60-Day Grace Period:  Regulations permit a discretionary grace period that allows workers in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, or TN classifications (and their dependents) to be considered as having maintained status following the cessation of employment for up to 60 consecutive calendar days or until the end of the authorized validity period, whichever is shorter.  During this period, workers may be able to maintain their nonimmigrant status if a new employer timely files a petition on their behalf with an extension of stay request (e.g., an H-1B change of employer petition for a worker in H-1B status).

Portability:  Portability rules permit workers currently in H-1B status to begin working for a new employer as soon as the employer properly files a new H-1B petition with USCIS, without waiting for the petition to be approved.  Also, a worker with an adjustment of status application (Form I-485) that has been pending for at least 180 days with an underlying valid immigrant visa petition (Form I-140) has the ability to transfer the underlying immigrant visa petition to a new offer of employment in the same or similar occupational classification with the same or a new employer.

Change of Status and/or Employer: Workers may use the up to 60-day discretionary grace period to apply to change their nonimmigrant status, which may include changing status to become the dependent of a spouse (e.g., H-4, L-2). Some individuals in a dependent nonimmigrant status may be eligible for employment authorization incident to status, including spouses of E-1, E-2, E-3, or L-1 nonimmigrants.

There are other options available as well, depending upon individual circumstances. It is highly advisable for anyone who finds themself terminated from the employment that is underlying their nonimmigrant visa status to contact immigration counsel to review all of the legal options, and  immigration consequences of the termination.

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The opinions expressed on this blog are those of the author and are not to be construed as legal advice.

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