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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 second post we will discuss regulatory issues with OPT. 

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

On November 9, 2015, the United States Court of Appeals for the Fifth Circuit issued their 124 page decision upholding a nation-wide injunction of the Deferred Action for Parents of Americans and Lawful Permanent Residents program (“DAPA”). Based on the 5th Circuit decision, the 2012 DACA program remains intact, however the 2014 expansions are enjoined. The 5th Circuit head oral arguments over six months ago, and the delay in issuing their decision likely forecloses the possibility of a formal appeal being heard by the U.S. Supreme Court before the 2016 presidential elections. However, as the Obama administration filed an appeal today (November 20th), the Supreme could hear the case this term, hold it for next term, or decline to hear the case altogether.
Continue Reading 5th Circuit Upholds Deferred Action for Parents: Next Stop Supreme Court?

Political Theater: President Johnson and the Bully Pulpit

Fifty years ago, President Lyndon B. Johnson gave Representative Michael Feighan (D-OH) his famous “Johnson Treatment”—using his intimidating physicality to persuade—on Air Force One. Feighan, Chairman of the House Immigration Subcommittee, had allied with conservatives on Johnson’s immigration reform bill, refusing to hold any hearings. President Johnson’s persuasion worked, with one key change—Feighan insisted on prioritizing immigrants who already had relatives in the United States, as a family unification preference would preserve America’s “European character.”

Continue Reading Immigration and Nationality Act 50th Anniversary Series: National Origin Quotas to Skills & Family Based Immigration

In the first of a series celebrating the 50th anniversary of the Immigration and Nationality Act of 1965, this post explores the concept of birthright citizenship. 

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President Lyndon B. Johnson signing the Immigration and Nationality Act of 1965 on Liberty Island in New York Harbor. Via the LBJ Library online (LBJLibrary.org)/ Presidential candidate Donald Trump discussing immigration reform. Via CNN.

Election years often revive old bones of contention, and the issue of birthright citizenship is but one of many that comes and goes.  The 2016 presidential election is no different, and thanks to Republican candidate Donald Trump the meaning and appropriateness of birthright citizenship granted under the 14th Amendment has once again come to light.

Continue Reading Immigration and Nationality Act 50th Anniversary Series: Birthright Citizenship?

In 2014, Massachusetts created the Global Entrepreneur in Residence Program (GEIR), a program meant to capitalize on the opportunities provided by concurrent H-1B employment.  Under this program, universities partnered with the Commonwealth to provide foreign entrepreneurs with relevant, part-time employment opportunities that carried cap-exempt H-1B status.  This part-time employment authorization then enabled the entrepreneurs to apply for a concurrent H-1B petition, which would also be cap-exempt, to allow them to work on getting their business off the ground.

Continue Reading H-1B Alternatives Series: Concurrent H-1B Employment

In conjunction with the redesign of the legacy e-filing system and transition to ELIS, USCIS has changed the process for paying the USCIS Immigrant Fee online. The revised payment process aims to “reduce the amount of information an immigrant must provide to USCIS.” In addition, anyone, including a family member, friend, employer, attorney, or accredited representative can pay the fee on behalf of an immigrant. All that is needed is the immigrant’s Alien Registration Number (A-Number) and DOS Case ID.

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In July 2015, the White House announced a series of technology initiatives aimed at modernizing the application process for certain immigration benefits.  As part of this effort, the United States Citizenship and Immigration Service (USCIS) was charged with overhauling their Electronic Immigration System (ELIS).  First released in 2009, ELIS was an aspirational response to meet the growing demand for web-based applications for immigration benefits.  The proposed goal of ELIS was to provide a faster and more reliable adjudication process, however, instead of improved efficiency; a July 2014 audit conducted by the Office of Inspector General concluded that ELIS actually slowed the adjudication of applications by almost 50%. Continue Reading At the edge of a new frontier: USCIS begins transition to Electronic Immigration System

Was your petition one of the estimated 148,000 not selected in this year’s H-1B lottery? In a series of posts we will explore alternatives to the H-1B. 

The B-1 visa category traditionally permits foreign individuals to enter the U.S. for temporary, business-related activities such as meetings with U.S-based colleagues or to attend scientific or professional conferences.  B-1 business visitors may not engage in productive work, which is typically services performed that inure to the benefit of a U.S. employer.

Carved out in the Foreign Affairs Manual (FAM) is a hybrid B-1 called the “B-1 in lieu of H-1B.”  This type of B-1 recognizes that in some situations an individual who would otherwise qualify for an H-1B may more appropriately be classified as a B-1 visa applicant when the applicant is coming to the United States temporarily to perform professional duties related to their overseas employment, will not enter the U.S. labor market, and will remain on their overseas payroll. Continue Reading H-1B Alternatives Series: The little known but useful B-1 in lieu of H-1B

On Wednesday, August 12, 2015, the US District Court for the District of Columbia ruled that the US Department of Homeland Security (“DHS”) did not follow required procedures when it promulgated regulations allowing for certain extensions of F-1 Optional Practical Training (“OPT”) employment authorization. However, in a compromise move, the Court vacated the DHS regulation and all subsequent amendments (“vacatur”), but ordered that the vacatur be stayed for six months to February 12, 2016, to allow DHS time to submit the rule again with appropriate notice and comment. There is no immediate impact on STEM or “cap-gap” OPT extensions.

Background
On April 8, 2008, the Department of Homeland Security (DHS) published an Interim Final Rule (IFR) in the Federal Register titled, Extending Period of Optional Practical Training by 17 Months for F-1 Nonimmigrant Students With STEM Degrees and Expanding Cap gap Relief for All F-1 Students With Pending H-1B Petitions (2008 Rule).

This rule extended eligibility for OPT employment authorization for 17 months for graduates from US educational institutions with degrees in science, technology, engineering or mathematics (“STEM”) fields provided  their employer is enrolled in  E-Verify. The impact of this new rule was to allow a period of OPT employment authorization for qualified foreign nationals for 29 months – the initial 12 months of OPT plus the additional 17 months for those with qualifying STEM degrees and E-Verify registered employers. This rule included the so-called H-1B “cap-gap” extension for F-1s with OPT to extend OPT employment authorization with the filing and eventual acceptance of a cap-subject H-1B petition. This rule was implemented with a comment period, but as an interim final rule under an emergency exception to the usual 60-day full notice and comment period as outlined in the Administrative Procedures Act (“APA”).

In March 2014, the Washington Alliance of Technology Workers filed suit in the United States District Court for the District of Columbia alleging DHS acted arbitrarily and capriciously in promulgating the 2008 rule without first subjecting it to a notice and comment period in violation of the Administrative Procedures Act.  DHS argued that in this particular situation, notice and comment requirements could be bypassed under 5 U.S.C. § 553(b), which allows an agency to dispense with the notice-and-comment requirement “when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.”  DHS promulgated the rule in 2008 just before the filing period for H-1B visas opened.  The timing, they argued, gave rise to an economic emergency of such a degree as to trigger the good cause exemption in 553(b).

Decision
After significant discussion of the standing of the Plaintiffs (Washington Alliance of Technology Workers) to bring suit and the appropriate level of deference that should be given DHS as the government agency vested with the authority over immigration issues, U.S. District Judge Ellen Segal Huvelle concluded that no deference should be afforded DHS with regard to the emergency exception to normal notice and comment. The Court ruled that DHS’s stated reasons for the emergency exception were too general and not specific enough to constitute an emergency. Therefore, the agency acted improperly in promulgating the OPT extension rule without notice and comment from the public.

However, Judge Huvelle decided that immediately vacating the new rule “would be seriously disruptive” to not only thousands of F-1s in the US with currently valid employment authorization who would have to scramble to depart the US, but also to employers if STEM employees have to suddenly leave their employment.

Impact
The judge’s decision jeopardizes the current STEM OPT program, but does not invalidate the employment authorization for current STEM extension holders, nor does it preclude an individual from applying for and being granted a STEM extension up until February 12, 2016. With the six month vacatur, DHS should have sufficient time to issue the rule again for notice and comment and finalization prior to February 12, 2016. If DHS follows the Court’s direction, there should continue to be no impact on STEM or “cap-gap” OPT extensions. We will continue to monitor this important development and provide updates as new information becomes available.