On February 9, 2017, a three-judge panel of the U.S. 9th Circuit Court of Appeals ruled unanimously against the Government’s emergency motion to stay the District Court’s Temporary Restraining Order (the “TRO”) halting the implementation of major portions of President Trump’s January 27th Executive Order. (See our previous alerts on the order here, or click here to view a video featuring Susan Cohen, Chair of Mintz Levin’s Immigration Practice.)  Therefore, the TRO remains in effect and travel to the U.S. by individuals from the seven designated countries is governed by the same laws as existing before the Executive Order.

To read the full alert, click here.

At the end of the 2016 calendar year, the Administrative Appeals Office (AAO) published a welcome precedent decision, Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016).  In this case, the AAO has significantly revised the framework for evaluating National Interest Waiver (NIW)-based immigrant visa petitions that had been established in 1998 in Matter of New York State Dep’t of Transp.. (NYSDOT).

Because the NIW route to permanent residence (green card) status avoids the labor certification process (which involves testing the U.S. labor market and proving to the U.S. Department of Labor that there are no U.S. workers, able, willing, qualified and available for the job in question) and allows a foreign national to petition for himself or herself (or to have an employer petition on his or her behalf), it is an attractive immigration option for those who qualify.  However, the adjudication standard set in the NYSDOT case was confusing and restrictive, and deterred many people from utilizing this immigration category as a pathway to achieving lawful permanent residence status.

Matter of Dhanasar breathes new life into this green card category.

Under INA §203(b)(2)(B)(i),  USCIS may grant a national interest waiver of the labor certification requirement, if the petitioner demonstrates that the beneficiary is a member of the professions holding an advanced degree or equivalent (or has exceptional ability in the arts, sciences or business) and will substantially contribute to the U.S.’s economy, culture, educational interests or welfare. The foreign national’s contributions must be in the sciences, arts, professions or business and his or her work must be in the “national interest of the United States”.

Under the prior NYSDOT standard, a petitioner had to meet a three-part test, proving that: (1) the employment is of substantial intrinsic merit; (2) any proposed benefit be national in scope; and (3) the national interest would be adversely affected if a labor certification were required for the foreign national.

Continue Reading Matter of Dhanasar Breathes New Life into NIW Green Card Category

Update –  NEW BOSTON EVENT DATE: Due to safety concerns surrounding the recent snow storm, Mintz Levin rescheduled the Boston Immigration Seminar to Thursday, March 2. To register, please click here or see below. We hope you can join us!

On February 9th (Boston) and February 16th (New York), our very own Kevin McNamaraSusan Cohen, and Bill Coffman will lead a live seminar designed for in-house counsel, immigration specialists, HR professionals, talent managers, and other internal stakeholders to review changes affecting the hiring and continued employment of foreign nationals. Topics will include:

  • Worksite visit preparation
  • Record-keeping requirements
  • The new Form I-9 and the importance of E-Verify compliance
  • How to prepare for increased scrutiny at a US port of entry
  • New high-skilled worker regulations
  • Strategies and alternatives for H-1B visa cap and prospects for FY 2018

Don’t miss this important event.  For additional details and registration, please contact Cassie Bent at CMBent@mintz.com!

In light of the general unavailability of H-1B visas due to the limited and inadequate H-1B visa quota, it is more important than ever that U.S. employers and highly skilled foreign nationals be able to take maximum advantage of exemptions from the quota.  While exemptions to the quota are laid out in the immigration law, until now nuances and variations relating to these exemptions have been discussed only in USCIS policy memoranda and informal guidance.  Programs that facilitate the employment in the U.S. of foreign entrepreneurs such as Global Entrepreneur in Residence (GEIR) programs rely heavily on the exemptions available in the immigration law, as do a myriad of private companies which depend on foreign talent to drive their business in the U.S.  For all employers relying on exemptions from the H-1B quota, it is critical that the rules and parameters be crystal clear.  Therefore, the publication by the Department of Homeland Security (DHS) on November 18, 2016 of a regulation clarifying and crystallizing prior policy and informal guidance is a welcome development.  The regulation comes into effect on January 17, 2017, and I summarize it below.  No one can predict with certainty whether the incoming Trump administration will allow the rule to stand or will take action to rescind it, so stay tuned for future postings on this topic.

In a final regulation published on November 18, 2016 which takes effect on January 17, 2017, DHS has clarified the requirements and parameters associated with cap-exempt employment of H-1B workers by nonprofit entities that are affiliated with or related to an institution of higher education or other cap-exempt institutions. This final regulation also clarifies that governmental research organizations, also exempt from the H-1B cap, include federal, state and local organizations whose primary mission is the performance or promotion of basic or applied research.

Continue Reading Cap-Exempt H-1B Employment Clarified by DHS

Partner Douglas Hauer on our sister blog, EB-5 Financing Matters, provides an update on EB-5 authorization as part of a pending Continuing Resolution.

This afternoon, a draft of the Continuing Resolution (CR) began circulating in Washington, DC. The CR, which Congress will likely pass early next week, will keep the federal government running through the November election. According to Alexander Hecht, Vice President of Government Relations at ML Strategies, upon enactment, the EB-5 Regional Center Program will be extended through December 9, 2016 – the length of this current CR. “Since EB-5 was contained in last year’s Omnibus appropriations bill, it is automatically extended by a Continuing Resolution for its duration. There was no need for legislators to specifically mention EB-5 in this Continuing Resolution,” stated Hecht. Stakeholders should continue to monitor developments related to the CR, but according to Hecht, “passage in both chambers seems very likely early next week, as legislators on both sides of the political aisle are anxious to get home to focus on campaigning for the November elections.”

The UK Home Office has announced plans to offer an optional premium service for requests made through the Sponsor Management System (SMS). This service will allow Sponsors to pay a fee of £200 for expedited processing of certain types of requests including Certificate of Sponsorship allocation and Level 1 user appointment.

This service is being offered in an attempt to address the long processing times that many Sponsors have experienced when making routine requests through the SMS. In some instances, the Home Office has estimated as long as 18 weeks for the processing of requests. Such long wait times can be extremely burdensome on Sponsors who hope to hire recruits from outside of the UK to meet immediate staffing needs.

The law creating this new premium service will go into effect next month. From there, the Home Office will work toward implementation, but a specific timeline for when the service will be available to SMS users has not yet been announced.  We will provide additional information when it becomes available.

Should you have any questions, please contact GlobalVisas@mintz.com.

Practice Chair, Susan Cohen was quoted in the Law360 article, Rule for Foreign Startup Founders Seen as Helpful Stopgap in which she explains the nuances of the UCIS’s proposed entrepreneur rule, which will allow immigrant startup founders to temporarily stay in the U.S. Cohen notes that the rule doesn’t provide actual immigration status and clarifies the impact “parole status” will have on the overall visa process. The article provides an overview of the rule and the challenges non-U.S. entrepreneurs may face in meeting the rule’s requirements.

Susan Cohen was also quoted in the Bloomberg BNA article, Draft Immigration Rule Would Ease Foreign Entrepreneurs’ Entry in which she examines the investment threshold for the proposed entrepreneur rule. The article highlights key components of the rule, such as the two-fold parole period and its requirements, and offers expert insight from various attorneys on the rule’s implications.

As foreign national employees come back from summer vacations and travel abroad, one of the most overlooked immigration documents and pitfalls is Form I-94.  If Form I-94 is issued for a shorter validity period than the maximum allowed or previously approved in a visa category, the traveler will have to travel out of the country or file an extension of status by the date on the I-94.  Either option may be a burden monetarily and logistically.

Continue Reading Back to Work from Travel Abroad? Check Your Form I-94!

Today USCIS released the text of a proposed rule to be published in the Federal Register shortly, that provides temporary immigration relief to qualifying foreign entrepreneurs whose presence in the U.S. would be a public benefit to the country. Continue Reading Immigration Relief for Foreign Entrepreneurs