Immigration Law

Innovative thinking and practical solutions

USCIS Regulations Slowly Catching up/Catching on to Current Immigration Realities

Posted in Employment Law, H-1B, Immigration Policy, Immigration Reform, USCIS ELIS

Written by Susan Cohen

In recent days, the Department of Homeland Security (“DHS”) has published several proposed rules in the Federal Register, which, if adopted, will bring welcome and much needed regulatory changes.

Authorizing  Employment Authorization for Spouses of Certain H-1B Workers

On May 12, 2014 DHS published a proposed rule to allow the spouses of certain H-1B temporary workers the right to work in the United States.  Continue Reading

What F-1 Students Need to Know About Work & Travel Before October 1

Posted in H-1B, Immigration Policy

By Susan Cohen and Bill Coffman

If you are an F-1 student with OPT employment eligibility and your H-1B filing has been accepted by USCIS, visa petitions will be adjudicated over the next few months, and approved petitions will have an October 1, 2014 start date. Whether you can travel and return to work before October 1 depends on your specific situation.

We list our recommendations for these common scenarios in our recently published advisory, “Work and Travel Guidance for F-1 Students with Pending H-1B “Change of Status” Applications and “Cap-Gap” Employment Authorization.”

  • My OPT employment card has not expired and my H-1B petition has been accepted, but not yet approved.
  • My OPT employment card has not expired and my H-1B has been approved.
  • My OPT employment card has expired.
  • I need to depart the US and will not return until October 1 or later and will apply for the H-1B visa
  • My H-1B petition was denied by USCIS


Free Employment Law Webinar: Tips on Drafting Restrictive Covenants – May 28, 2014

Posted in Employment Law

Join two of our colleagues from the Employment, Labor & Benefits Practice for this free webinar on drafting restrictive covenants, to be held on May 28th. The panelists include Mintz Levin attorneys Bret Cohen and Mitch Danzig, and Jeff Lambert, the Chief Legal Officer of our client The Active Network. They will discuss the importance of getting the right restrictive covenant in protecting your trade secrets and restricting competition. The invitation with registration info is here.

To follow all posts from our employment attorneys, check out the Employment Matters blog.

Changes for H-1B tech workers and their spouses on the horizon?

Posted in H-1B, Immigration Policy, Immigration Reform

The Obama administration has proposed changes to regulations regarding spouses of people who are working under H-1B high-skilled employment visas. The changes, which will appear in the Federal Register later this week, are intended to attract people who work in science, technology, engineering, and mathematics to the U.S.. In this Fox News Latino article, I comment on the merits of the proposal. Also discussed are criticisms of the proposed changes and their effect on the American workforce.

U.S. Customs and Border Protection Rolling Out Electronic Travel Records

Posted in CBP News, I-94, Immigration Policy

Written by Maryanne Kline

In April 2013, U.S. Customs and Border Protection (CBP) introduced electronic Forms I-94, enabling nonimmigrants entering the U.S. via air and sea to easily access their Form I-94 Arrival/Departure Records online.  As of  May 1, 2014, this electronic system has been expanded to provide access to an individual’s full arrival and departure history for the past five years. Continue Reading

The Start-up Chile visa program: Chile’s gain is our loss

Posted in Emerging Companies, Immigrant Entrepreneurs, Immigration Policy, Immigration Reform

The following opinion piece by Susan Cohen appeared in the December 20, 2013 issue of VentureBeat and is reprinted here with permission.

The U.S. market is a magnet for foreign entrepreneurs. Yet the U.S. immigration system throws up roadblocks to entrepreneurs. There is no “startup” visa, and the visa options that exist are unwieldy and often impractical.

Contrast that with the Chilean government’s Start-up Chile program. Nicholas Shea, a Stanford MBA and a Chilean citizen, began this program in 2010, when he realized that there were no viable visa options for the Chilean friends he wanted to start a company with in Silicon Valley. Since 2010, the Start-up Chile program has awarded over 1,000 startup visas and millions of dollars of funding to those who win the country’s business plan competition. Continue Reading

Holding the DOL Accountable in PERM Labor Certification Adjudications

Posted in Immigration Policy, PERM Labor Certification, U.S. Department of Labor

We applaud Microsoft Corporation and the numerous parties, including the American Immigration Council and the Chamber of Commerce, who filed amicus briefs last week in a consolidated Board of Alien Labor Certification (BALCA) case involving PERM labor certifications filed by Microsoft Corporation on behalf of several of its employees. When the Department of Labor (DOL) oversteps its authority in deciding PERM cases, it is imperative to hold the agency accountable.

The single issue in this case is the requirement in the DOL’s PERM regulations that if an employer has had a layoff within the 6 month period prior to filing a PERM labor certification the employer must “notify and consider” potentially laid off workers in the same geographic area of intended employment of the PERM job opportunity. The reason for this requirement is that employers may not file a PERM labor certification application on behalf of an employee unless the employer is able to attest that it has not found any able, willing, qualified and available U.S. workers. If a laid-off worker could adequately perform the duties of the PERM position, and if the individual is able, willing and available, then the employer would not be permitted to file the PERM application.

Microsoft sought to satisfy the “notify and consider” requirement by informing its terminated employees that they could visit the company’s careers website and apply for any open positions. Since the PERM job opening is posted on the company website, if a former Microsoft employee applied for the PERM position, the individual’s application would then be “considered” by the company. Many companies use the above-described “notify and consider” method.

Apparently the analyst at the DOL who decided the Microsoft PERM applications in question did not believe that Microsoft properly notified and considered laid off workers. Yet, Microsoft had previously filed 200 similar PERM cases before filing the applications which are the subject of the litigation, and all the prior applications had been certified, even though the company used the same method of “notification and consideration” in those cases.

Not once since this broadly written “notify and consider” regulation was issued in 2005 has the DOL provided guidance to employers as to what methods of notification and consideration would be acceptable and what methods would not be acceptable.  The business community has been grappling and struggling with this issue since the regulations first came out as there are so many potential methods for notifying and considering workers. Practices among employers range from notifying terminated workers in their termination letters that they can apply for future positions on the company website, and considering those who apply for the PERM position, to sending letters to potentially qualified workers who have been terminated in the last 6 months, notifying them of the specific PERM job opportunity.

The DOL routinely publishes FAQ’s on its website to provide specific guidance to employers filing PERM applications. Employers have begged the DOL to issue guidance and provide clarity to the business community on this “notify and consider” issue. This requirement has been a major concern in PERM cases especially since the recession in 2008, as RIFs and layoffs unfortunately have been a common occurrence over the last five years. In July, 2008 the American Immigration Lawyers Association and other stakeholder organizations asked the DOL to issue an FAQ on this subject. The DOL responded: “This is in line to be drafted but DOL has other priorities.” As of November, 2013, no FAQ on this subject has been published by the DOL on its website.

When a regulation implementing a statute is written in a broad fashion, yet other regulations implementing the same statute are written much more specifically, courts typically rule that the affected parties should be free to interpret the broadly written regulation in a variety of reasonable ways. To rule otherwise would unjustly punish the affected parties who used their best efforts to interpret the requirement, in the absence of any guidance by the government agency which issued the regulation.

Employers throughout the United States who file PERM cases certainly hope that the BALCA will make the right decision in the Microsoft case and overturn the PERM denials that were based on DOL’s view that Microsoft did not properly notify and consider laid off workers. It would be a manifest injustice for the DOL to hold employers to a standard that was never articulated to the public.