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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.

On August 2, 2017 Republican Senators Tom Cotton (AR) and David Perdue (GA) unveiled an immigration bill titled The Reforming American Immigration for a Strong Economy Act (RAISE Act).  While the stated purpose of this bill is to increase skilled immigration to the U.S. and protect the American workforce, it would do neither of these things.  Indeed, the effect of this bill would not be neutral – it would do great injury to the United States.

This bill purports to completely revise the U.S. immigration system by eliminating ALL family-based legal immigration categories except for spouses and minor children of citizens and permanent residents.  Even within this limited category, it would change the cutoff in the definition of a child from 21 to 18 years of age.  It includes an extremely limited grandfather provision for applications previously filed by visa applicants in categories which would no longer be included in the immigration law.   It adds a new temporary visa category for parents of U.S. citizens, but even if the parents were issued temporary visas to come to the U.S. (for up to 5 years) they would not be authorized to work in the U.S. for that entire period.

The categories of family-based immigration that would be completely eliminated by this bill include parents of U.S. citizens, adult, unmarried sons and daughters of U.S. citizens and their minor children, unmarried sons and daughters of permanent residents, married sons and daughters of U.S. citizens, and siblings of U.S. citizens.

The bill would also completely eliminate the Diversity Visa Program, which grants up to 55,000 immigrant visas each year to people from countries around the world whose countries have been underrepresented in our immigrant pool.  The Diversity Visa Program is important because it underscores that we value diversity in our country.  Through this program we have welcomed immigrants from around the world who add greatly to our culture.

The bill also cuts refugee admissions to 50,000 per year.  This is less than half of the number of refugees the United States had agreed to accept in 2016.  How we approach refugee admissions and the manner in which we treat those who have fled unspeakable horrors speaks volumes about who we are as a country.   Our refugee program is extremely strict and refugees must pass extensive background checks before being approved to come to the U.S.   The vetting process typically takes many years.  The combination of the moral and policy imperative to welcome refugees along with the strict vetting process that already exists, is a reason to raise, not lower, the number of refugees admitted to the U.S.

Finally, the bill sets out a points-based system for immigrating to the U.S. that completely ignores the needs and input of U.S. employers.  Individuals would have to submit applications claiming how many points they can prove, and only if they meet the threshold number of points to be “selected” by the government to apply for an immigrant visa, would they then  submit a letter from a potential U.S. employer to verify that a job is waiting for them.   The points that the applicant can prove will also be reduced if the applicant’s spouse would not independently meet the threshold number of points to qualify on his or her own.

This is a punitive system and it does not recognize the reality that U.S. employers typically employ foreign workers on temporary work visas, and once these employees have proved themselves in their jobs, the employers sponsor them for permanent status.

Lower-skilled immigrants would have no chance to immigrate to the U.S. unless they had a qualifying family relationship to a U.S. citizen or permanent resident.  Employers of both high-skilled and lower skilled workers care about the value that an employee can add to their organization and deserve a say in the employment-based immigration process.

Foreign students and those who have graduated from U.S. colleges and universities are ignored in this bill, as are artists, writers, musicians, entertainers and others who under existing law can immigrate if they can show they have risen to the top of their fields.

In this bill, foreign investors would face a higher investment threshold than exists currently and they would be held to a stricter standard for day-to-day involvement in the companies in which they have invested.

While the sponsors of the bill have said that its points-based system is modeled on the immigration programs in Australia and Canada, in fact those countries’ immigration programs are more generous and both Canada and Australia admit a much larger percentage of immigrants relative to the size of their populations.

We admit a tiny percentage of new immigrants to the U.S. relative to the size of our population.  In 2013, new immigrants to Canada equaled .74 percent of Canada’s population.  In the same year, new immigrants to Australia equaled 1.1 percent of the population.   Yet new immigrants admitted to the U.S. in 2013 accounted for just .31 percent of our population.*

If the RAISE Act truly was intended to model Canada’s or Australia’s skills-based immigration systems, then it would need to increase the number of annual employment-based green cards by many hundreds of thousands of green cards per year.

This bill would not strengthen the U.S.   It would weaken our country by separating families, reducing diversity, and turning away the types of immigrants that enhance our society and our economy.

 

* All statistics cited in this post are from Alex Nowrasteh’s articleSens. Cotton and Perdue’s Bill to Cut Legal Immigration Won’t Work and Isn’t an Effective Bargaining Chip,” published by the Cato Institute on August 2, 2017.

The U.S. and worldwide entrepreneur community had been looking forward to July 17th with great anticipation.  This was supposed to be the effective date of the new International Entrepreneur Parole immigration regulation.  This refreshing and innovative immigration option for foreign entrepreneurs would solve an enormous problem in the U.S. immigration system: the non-existence of a visa for start-ups founded by or being driven by talented foreign nationals.  Yet on July 11, 2017 the Department of Homeland Security published a notice in the Federal Register seeking comments on its desire to rescind the rule.

This entrepreneur parole process would not have been a cakewalk for applicants:  only those who could meet the stringent requirements associated with it would be able qualify (to be approved, entrepreneurs would have to own at least 10% of the enterprise and would have to have raised significant capital from established U.S. investors or government grants).  Applications would be very strictly reviewed, and only applicants who clearly qualified and passed required government background checks would be approved for this temporary status.

Yet despite the strict criteria, the entrepreneur community was delighted that the U.S. government (during the Obama administration) had finally rolled out an immigration solution to the enormous talent crisis facing the U.S. technology sector.

The technology industry is fueled in large part by immigration.  As of January, 2016 immigrants had started more than half (44 of 87) of America’s start-up companies valued at $1 billion dollars or more and are key members of management or product development teams in over 70 percent (62 or 87) of these companies.* Immigrants play vital roles in the technology industry in job creation, innovation and leadership.

Continue Reading Opportunity Foreclosed: The International Entrepreneur Parole Rule May Die Before it Gets Out of the Gate

On Monday, June 26th, the U.S. Supreme Court (SCOTUS) issued a mixed decision in the “Travel Ban” litigation, relating to Presidential Executive Order 13780 (“EO”). As explained in more detail below, the SCOTUS decision gave a partial victory to the respondents who had challenged the EO while at the same time upholding the travel ban and related provisions for certain foreign nationals who cannot demonstrate a sufficient nexus to a family member, employer, educational institution or other entity in the U.S.

The Supreme Court granted certiorari and consolidated the two federal court cases from the 9th Circuit Court of Appeals and the 4th Circuit Court of Appeals. It will hear arguments in the consolidated case in the Court’s October, 2017 term.

To read our full alert, click here.

The European Commission is being urged to require U.S. citizens to obtain visas for travel to Europe in an effort to obtain full visa waiver reciprocity for all European Union (EU) nations.

Currently, five EU nations are not eligible to travel to the U.S. under the visa waiver program: Bulgaria, Croatia, Cyprus, Poland and Romania.  Citizens of these countries must obtain visas from a U.S. Consulate or Embassy abroad before visiting the United States.

In response, the European Parliament has approved a non-binding resolution urging the European Commission to temporarily suspend visa-free travel of U.S. citizens to EU countries.  If adopted, U.S. citizens would be required to obtain visas for travel to Europe until the United States extends the visa waiver program to all EU nations.

The resolution cites a rule requiring the European Commission to take action within two years against any country that fails to provide full visa reciprocity for EU nations.  The European Commission notified the U.S. in April 2014, so the two-year “warning period” has expired.  At the same time, Canada, Australia, Brunei and Japan were also notified of their failure to provide full reciprocity.  Australia, Brunei and Japan have since extended visa-free travel to all EU nations, and Canada has agreed to do so later this year.

The European Parliament has urged the Commission to take action to suspend visa-free travel for U.S. citizens within two months, but it remains unclear if this will happen.  The European Commission has apparently expressed concern that imposing visa requirements on American travelers to Europe will negatively affect both tourism and trade and, as a result, the European economy.  If the resolution is adopted within the requested timeframe, it may be just in time for the busy summer travel season.

Mintz Levin will monitor this situation and provide further updates as they become available.

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.