On Thursday, December 18th at 4:30pm, Bill Coffman, Of Counsel in our Boston office, will lead a seminar at the Cambridge Innovation Center. Bill’s presentation will cover US work visa options for start-ups and entrepreneurs. He will also discuss how foreign national entrepreneurs can navigate the pitfalls of the current system.
Cambridge Innovation Center
One Broadway, 5th Floor
Cambridge, MA 02142
After arriving at One Broadway, please provide your name to the security desk on the ground floor. Then proceed to the 5th floor Venture Café kiosk to sign in and obtain your name tag. Registration begins at 4:30pm, the seminar will begin at 5:00pm.
To register, click here.
In an unusual weekend session, the US Senate passed the “Cromnibus” government funding bill, providing funding for most government agencies through September 2015. However, the Department of Homeland Security, which includes US Citizenship and Immigration Services and US Immigration and Customs Enforcement, was only funded through February 27, 2015.
The contentious 56-40 vote saw senators from both parties voting against the spending bill. “Liberal Democrats, led by Senator Elizabeth Warren, objected to a weakening of the Dodd-Frank financial reform law, while conservative Republicans, led by … [Senator] Ted Cruz, tried to sink it for failing to stop Obama’s [immigration] order.”
By the end of February, both houses of Congress will be controlled by the Republican Party, which may use its funding authority to try to block implementation of President Obama’s executive order on immigration. Specifically, Republicans are leaving the option open to “try to deny the agency any funds for … easing deportations for millions of undocumented immigrants.”
It’s a little known fact that U.S. Citizenship and Immigration Services (USCIS) won’t approve an employment-based visa petition before checking the company information against the Dun and Bradstreet (D&B) database via the Validation Instrument for Business Enterprises (VIBE) system. If any company information on the petition is not an exact match with D&B, USCIS will issue a Request for Evidence (RFE) regarding the discrepancy, which will delay the approval. Many employers are not aware of this reliance by USCIS on D&B or don’t realize the level of detail checked by USCIS. Even if a company changes office suite numbers or floors in the same building, the petition will likely receive an RFE. Companies seeking approval of an L-1 intracompany transferee visa should make sure the D&B database properly lists all related companies overseas.
Accordingly, before filing a visa petition on behalf of an employee, employers should update D&B with their most up-to-date company information and ensure that there is a perfect match between the information in the petition and the D&B database. This will take them one step closer to have their visa petitions approved in a timely fashion.
As a part of President Obama’s recent announcement regarding his executive action on immigration, Department of Homeland Security (DHS) Secretary Jeh Johnson issued several memoranda to the directors of US Citizenship and Immigration Services (USCIS) and Immigration and Customs Enforcement (ICE). On November 24th, we posted a comprehensive overview of changes the business community can expect as a result of the executive action. In this post, we focus on one aspect of Secretary Johnson’s memo on “Policies Supporting U.S. High Skilled Businesses and Workers”, namely Optional Practical Training (OPT) for foreign students and graduates of US colleges and universities.
OPT provides a mechanism for foreign students to get experience in their field of study, both during school and after their graduation. Most foreign students are entitled to post-graduation OPT for only a 12 month period. However, students who major in Science, Technology, Engineering or Math (STEM) fields and work for employers who are enrolled in E-Verify, can extend their post-graduation OPT for an additional 17 months, resulting in a total post-graduation OPT period of 29 months. The STEM OPT extension was designed to solve a fundamental problem resulting from the insufficiency of H-1B visas. Continue Reading
On Thursday, November 20th, coinciding with President Obama’s announcement regarding his forthcoming executive action on immigration, Department of Homeland Security (DHS) Secretary Jeh Johnson issued a memo to the directors of US Citizenship and Immigration Services (USCIS) and Immigration and Customs Enforcement (ICE) directing the agencies to take action on the president’s announcements. The DHS memo provides a framework for changes the government wishes to make, relating to skilled immigration, to alleviate some longstanding problems in our business immigration system.
Many of the suggested changes are laudable but regulatory rulemaking will be required for most of these changes to take effect. Unfortunately, whereas President Obama was very clear in his announcement about timelines for the changes he is taking to protect certain undocumented immigrants, timeframes for producing regulations or for most of the business immigration changes are lacking in the secretary’s memo. The business community is left to wonder when these announced changes will materialize and what specific forms they will take.
Modernize the Employment-Based Immigrant Visa System
There are caps (quotas) on various types of immigrant visas (green cards) that result in extremely long backlogs and delays for people born in certain countries such as India and China. If two software engineers at the same company are sponsored for green cards at the same time, and one of them is from Germany and the other is from India, the German applicant will get his green card in about two years while it will likely take his Indian colleague ten years to conclude the process. During this excruciatingly long waiting period, the Indian software engineer is supposed to remain in the same position for which he was originally sponsored. This benefits neither the employer nor the software engineer. Continue Reading
While the three branches of federal government fire off salvos on immigration reform, states are finding ways to tackle challenges to the federal criminal immigration landscape.
Earlier this year, California Governor Jerry Brown signed into law SB 1310, a bill that reduces the maximum possible sentence for a misdemeanor in California from 365 days to 364 days. Although a seemingly inconsequential change for United States citizens, this single day has the potential to impact to lives of many noncitizens convicted of misdemeanor offenses.
The term “aggravated felony” refers to a subset of federal immigration offenses that will result in deportation. To qualify as an aggravated felony, a state crime need not be “aggravated” or a “felony” because federal law does not take into account state law distinctions between felony and misdemeanor crimes. Aggravated felonies carry the harshest immigration consequences, including removal from the U.S. without a hearing and outright bars to relief from removal if a hearing is held. When Congress initially created the term, it included only murder, federal drug trafficking, and illicit trafficking of certain firearms and destructive devices. However, over time Congress has expanded its reach and today it includes even minor crimes that carry a sentence of 365 days or more. As a result of this expansion, state law misdemeanors with a sentence of 365 days or more may be an aggravated felony under federal immigration law.
Therein lays the difference a day can make. By reducing the possible maximum sentence to 364 days, noncitizens with minor criminal convictions are no longer subject to the aggravated felony provision and have the opportunity to seek relief from removal or a dismissal of charges altogether. California is not the first state to make this small but incredibly impactful change. In 2013, Nevada reduced its maximum sentence for a gross misdemeanor to 364 days, and in 2011 Washington State did the same.
In addition to changing legislation, states are also creating pilot programs to provide representation to individuals in removal proceedings. In 2013, New York announced the creation of The New York Immigrant Family Unity Project, which will create a position in the New York Public Defender’s Office for an attorney who will only represent noncitizens in immigration court. In October 2014, Santa Clara County in California restored funding for a similar program.
With President Obama’s announcement of prioritizing “felons, not families” for deportation, 364 day sentence limits could become ever more important.
US Citizenship and Immigration Services (USCIS) empowers its Fraud Detection and National Security (FDNS) officers to make unannounced site visits to employers of H-1B and L-1 workers. The stated purpose of these site visits is to ensure the employers and employees in these visa situations are complying with the applicable laws and rules that govern the visa category.
The inspectors conducting these site visits are supposed to limit their inquiries to the facts that relate to the particular visa petition under review. Certainly it is legitimate to check on the existence of the employer and to determine whether the beneficiary of the visa petition is employed in the position described in the petition, at the worksite location identified in the petition, and at (or above) the salary promised in the petition.
But a site visit is not an excuse for an immigration inspector to engage in a fishing expedition or to treat the employer and/or visa beneficiary in a manner that is anything less than civil. Unfortunately, as site inspectors fan out around the country to conduct these site visits, evidence is growing that a subset of the inspectors are using the site visits as an excuse to ask impermissible questions, particularly of the employers in these situations. For example, companies report that inspectors have asked them how many green card holders they employ. This is an inappropriate question. It implies that the employer may lawfully ask the employee to prove his or her status as a green card holder when in fact, under most circumstances, it is not. Asking this question in a site visit is improper for two reasons: it is clearly beyond the scope of the facts relating to a single visa petition, and it could lead an unwitting employer to engage in actionable discriminatory behavior. While the employment laws require that employers confirm through the I-9 process that an employee is authorized to work in the US, it is up to the employee to decide which of the documents listed on the I-9 they use for this purpose and US employers generally may not ask if their employees if they are green card holders. (There is a limited exception for employers whose work requires employees to hold a national security clearance). And most employers’ records will not contain this information. Even if someone had a green card when he or she was hired, whether or not that person is still a green card holder or has since become a naturalized US citizen is none of the employer’s business.
Similarly, reports have surfaced of site visits where inspectors were less than civil in their tone and their questions posed to employers, particularly smaller, start-up companies. This is simply unacceptable. Many new businesses petitioning for an L-1 or H-1B worker face inappropriate hostility from the government – instead of having their petitions approved, they are besieged by unduly burdensome, repetitive requests for information, much of which was initially submitted to the government and conveniently overlooked or ignored by USCIS. By the time USCIS grudgingly approves the visa petition, the company and its visa beneficiary often feel that they have been subject to such unduly heavy scrutiny that it borders on harassment. It only adds insult to injury to follow the visa approval with a site visit where the inspector is not courteous.
There is nothing wrong with conducting site visits to check the facts: let’s keep the visits to that please.
On Tuesday evening, the candidates for Massachusetts governor met in their last debate ahead of Tuesday’s general election. Throughout the campaign season, Massachusetts Gubernatorial candidates Martha Coakley (D) and Charlie Baker (R) have outlined contrasting positions on several state-level immigration issues.
Baker supports allowing immigrants with work permits to obtain in-state tuition at public Massachusetts universities. However, he opposes giving in-state tuition to those without permits to work in Massachusetts after graduation. Coakley, on the other hand, supports extending in-state tuition benefits to the children of undocumented immigrants no matter their work status.
The two candidates also differ on the question of allowing undocumented immigrants to acquire driver’s licenses. Baker does not support providing driver’s licenses to undocumented immigrants, saying “No one’s ever been able to explain how you can document and verify someone who is undocumented.”
Coakley is more open to granting driver’s licenses to undocumented immigrants. She has said, “There are a lot of people who have been here a long time who can’t get to work, to a medical emergency, if they don’t have a license.” She has promised to work with law enforcement and members of the immigration community to resolve this issue.
Employers of foreign nationals working in Massachusetts remain concerned about the driver’s license debate as even those employees working in valid status are often unable to renew their driver’s licenses while waiting for USCIS to adjudicate their extensions.
On October 28th, US Citizenship and Immigration Services (USCIS) issued a new policy, clarifying the definition of “mother” and “parent” under the Immigration and Nationality Act, to include a gestational mother who (a) gave birth to the child and (b) was the child’s legal mother at the time of birth under the law of the jurisdiction where the child was born.
In issuing this new policy, USCIS recognizes and provides a solution to a serious practical problem that has also been recognized and addressed by the Department of State, relating to the transmission of U.S. citizenship to children born abroad pursuant to assisted reproductive technology (ART)(also known as in vitro fertilization). These births can occur in one of two ways: either when a woman gives birth abroad after an implantation of an in-vitro embryo or after a birth abroad to a contractually engaged foreign surrogate. This new policy is designed to ensure that in the former situation, the child born abroad will be eligible for any family-based immigration benefit that the mother is able to provide—including U.S. citizenship.
U.S. law requires a U.S. citizen parent to have a biological connection to a child in order to transmit U.S. citizenship to the child at birth. In the context of ART, a father or mother must prove that they are the genetic parent of the child. This can be proved by DNA testing after the baby is born. The new policy expands the definition of “mother” to include a gestational and legal mother of the child at the time and place of the child’s birth (in addition to a genetic mother).
Until this policy was put in place, occasionally children born abroad pursuant to ART became stateless. This is because some foreign fertility clinics have on occasion substituted alternate donor sperm and eggs for the U.S. parents’ genetic material, either purposefully when the U.S. citizen’s genetic material became non-viable, or accidentally, due to errors in the lab. Tragically, sometimes the parents did not learn about these “switches” until they obtained DNA test results after the child’s birth.
In some jurisdictions, the gestational mother who carried and gave birth to the child is not recognized as the parent of the child under the laws of that jurisdiction. In this situation, such a child is eligible neither for a U.S. passport nor a passport of the country in which he or she was born, effectively rendering the child stateless or otherwise unable to leave the country of birth. Today’s expanded definition of “mother” and “parent” is designed with the best interest of the child in mind, so such a child will not be a stateless person.
U.S. citizens who are considering a foreign surrogacy arrangement should carefully review the laws of the country in which the birth will take place to understand whether under local law the surrogate mother will be considered to be the legal mother of the child born through ART. If the law of the place of birth gives a contracted surrogate any parental rights, it could raise questions about the child’s legal mother and in turn, the child’s citizenship.
Otherwise, mothers who meet the expanded definition but don’t have a genetic relationship with their child (because they became pregnant through an egg donor) will be able to petition for their child; will be eligible to have their child petition for them based on their relationship, and will be able to transmit U.S. citizenship, if they are U.S. citizens and if the other relevant requirements for transmission of U.S. citizenship requirements are met.
On Wednesday, October 29th, Doug Hauer, Member in our Boston office, will participate in a panel briefing for Israeli technology entrepreneurs & executives seeking to relocate employees to the U.S. Yael Biran, Managing Director, Mintz Levin Israel Business, will moderate the panel.
Topics covered will include:
- Developments in visa processing at the U.S. Embassy in Tel Aviv
- Solutions for overcoming B-1 visa challenges at U.S. consular posts in Israel
- Understanding and navigating special administrative processing
- Immigration risks in planning executive leadership teams for a U.S. office
- Strategies for extending ‘New Office’ L-1 petitions for executives and managers, and specialized knowledge experts
- Managing immigration related U.S. government ‘site visits’
- The VC perspective on immigration and visa issues
Who Should Attend?
CEOs, CFOs, entrepreneurs, and investors in technology companies looking to relocate employees into the U.S.
Herzog Fox & Neeman
Conference Center, 1st Floor
4 Weizmann Street
To register, click here.