Photo of Susan J. Cohen

Susan Cohen is founder and Chair of the Immigration Practice and is based in the firm’s Boston office. She frequently speaks and writes about immigration topics for legal and immigration-related organizations. Susan contributed to the US Citizenship and Immigration Services regulations implementing the Immigration Act of 1990, the Department of Labor regulations implementing changes to H-1B visas, and the PERM labor certification regulations. She is listed in the Best Lawyers in America, International Who’s Who of Corporate Immigration Lawyers, Chambers Global Guide, and Massachusetts Super Lawyers.

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

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 a result of the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, higher immigration fines and penalties will go into effect on August 1, 2016.   The fines and penalties cover Form I-9 paperwork violations, the unlawful employment of immigrant workers, certain temporary work visa programs, and immigration-related discrimination in hiring and employment. While these fines come into effect on August 1, they will be used for violations that occurred after November 2, 2015, the day the bill was signed into law.

Continue Reading Higher Immigration Penalties for I-9 and Other Violations Going Into Effect August 1, 2016

From:  Ned Help

To:  Carrie Counselor

June 29, 2016

Carrie,

I appreciate the guidance you have provided regarding the documents the company needs to have in place when sending an employee on an assignment abroad.

Now I have a related question about immigration risks and responsibilities:  where do we draw the line between the company’s obligations and assumption of risks in these scenarios and the employees’ obligations and assumptions of risks with respect to securing and maintaining visas and work permit approvals for our employees?

Thanks for helping me think through this thorny issue.

Ned


 

Continue Reading Innocents Abroad: Creating a Company’s Global Mobility & Immigration Policy