2016 Immigration Issues Series

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

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

From proposals to overhaul OPT to decreasing the number of H-1Bs, 2016 is already proving to be an interesting year for business immigration. In a series of posts, the Mintz Levin team will provide an overview of the cases, legislation, and regulations to look out for in the new year. In our sixth and final post we will discuss the potential modernization of PERM, the labor certification process. 

A Brief History of PERM

2015 marked the 10th anniversary of the implementation of the Program Electronic Review Management (“PERM”). The regulations, first published in 2014, govern the labor certification process for the permanent employment of immigrant foreign workers and establish responsibilities of employers who wish to employ these workers permanently in the United States. The Department of Labor (DOL) has not comprehensively examined and modified these certification requirements and process since their inception. In June 2015, however, the DOL made the PERM labor certification process the focus of its Regulatory Agenda. Continue Reading A Preview of Business Immigration in 2016: Modernizing PERM (Part 6/6)

From proposals to overhaul OPT to decreasing the number of H-1Bs, 2016 is already proving to be an interesting year for business immigration. In a series of posts, the Mintz Levin team will provide an overview of the cases, legislation, and regulations to look out for in the new year. In our fifth post we will discuss executive action on the Department of State’s visa bulletin and the related controversy and lawsuit. 

Visa Bulletin Changes: USCIS Gets Involved

In October 2015, the Department of State (DOS) unveiled a significant change to its visa bulletin. The monthly bulletin outlining immigrant visa availability issued by the State Department has two charts: one showing cutoff dates that govern when visas can be issued, and a new chart containing cutoff dates for when applications can be filed. In addition, USCIS now provides information on its website regarding the eligibility of applicants to file applications for adjustment of status US permanent residency, and it cross-references the DOS charts. Continue Reading A Preview of Business Immigration in 2016: Visa Bulletin Controversy Continues (Part 5/6)

From proposals to overhaul OPT to decreasing the number of H-1Bs, 2016 is already proving to be an interesting year for business immigration. In a series of posts, the Mintz Levin team will provide an overview of the cases, legislation, and regulations to look out for in the new year. In our fourth post we will discuss executive action on H-4 EADs and the related lawsuit. 

After DHS announced that some H-4 spouses of H-1B workers would be eligible for work authorization, a group called Save Jobs USA filed suit against DHS to stop implementation of the rule. The battle between Save Jobs USA and DHS over regulations granting work authorization to certain H-4 visa holders continues in the United States District Court for the District of Columbia with both sides having filed motions for summary judgment during 2015.

Continue Reading A Preview of Business Immigration in 2016: H-4 EAD Reforms (Part 4/6)

From proposals to overhaul OPT to decreasing the number of H-1Bs, 2016 is already proving to be an interesting year for business immigration. In a series of posts, the Mintz Levin team will provide an overview of the cases, legislation, and regulations to look out for in the new year. In our third post we will discuss regulatory issues with immigrant visas. 

A proposed USCIS rule could improve flexibility and stability for employment-based immigrant and nonimmigrant visa programs. On December 31, 2015, DHS released a notice of proposed rulemaking in the Federal Register titled “Retention of EB-1, EB-2 and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers.” The proposed rule contains a number of amendments that would modernize the program for foreign workers. Mintz Levin member Kevin McNamara analyzed this rule in two detailed posts earlier in January, here and here.

Continue Reading A Preview of Business Immigration in 2016: Proposed Immigrant Visa Reforms (Part 3/6)

From proposals to overhaul OPT to decreasing the number of H-1Bs, 2016 is already proving to be an interesting year for business immigration. In a series of posts, the Mintz Levin team will provide an overview of the cases, legislation, and regulations to look out for in the new year. In our second post we will discuss regulatory issues with OPT. 

Continue Reading A Preview of Business Immigration in 2016: OPT (Part 2/6)

From proposals to slash the H-1B cap to overhauling the EB-5 investor program, 2016 is already proving to be an interesting year for business immigration. In a series of posts, the Mintz Levin team will provide an overview of the cases, legislation, and regulations to look out for in the new year. In our first post we will discuss the H-1B visa and proposed reforms.  Continue Reading A Preview of Business Immigration in 2016: H-1Bs (Part 1/6)