Effective upon publication by the Federal Register on Wednesday, July 19, 2017, the Department of Homeland Security (DHS) has authorized the one-time issuance of an additional 15,000 H-2B visas for Temporary Nonagricultural Workers through September 30, 2017. The annual H-2B cap, previously set by Congress at 66,000, had come under fire as being woefully deficient to help American businesses meet their temporary seasonal or short-term surge employment needs. This would include “seasonal workers” such as hotel maids or restaurant workers at summer resort areas such as Cape Cod or the Hamptons. For FY 2017, which expires on September 30, 2017, USCIS received sufficient H-2B petitions to meet the full statutory cap of 66,000 visas on March 13, 2017. In response to numerous reports of such businesses suffering substantial economic hardship due to labor shortages, USCIS, with Department of Labor assistance, is implementing this one-time increase in H-2B visas.

Working with the Secretary of Labor, Secretary of Homeland Security John Kelly authorized the issuance of an additional 15,000 H-2B visas for the remainder of FY 2017 to be given to U.S. businesses that would “suffer irreparable harm” because of the lack of available temporary nonagricultural workers. To qualify for these additional visas, U.S. employers must attest to, under the pains and penalties of perjury, that their business “is likely to suffer irreparable harm if it cannot employ H-2B nonimmigrant workers through September 30, 2017.”

We would usually cheer when we hear that an additional 15,000 temporary work visas will become available in a given fiscal year. But how helpful will these additional visas be to eliminate the current shortage of H-2B nonagricultural workers in FY 2017?

  • A portion of the businesses that have been complaining about the shortage of H-2B visas consists of businesses that thrive during the summer season in resort areas or by the shore. The summer season will be over in little more than a month. In fact, there are children who have to return to school as early as August 10th or 11th. It does not appear that there is sufficient time to process these visas to help any businesses that are tied to the “summer season.”
  • Similarly, FY 2017 will be ending September 30, 2017, approximately 2 ½ months from now. H-2B petitions require an approved mini labor certification demonstrating the unavailability of U.S. workers for the subject position(s). Given this time frame, is it worthwhile to sponsor an H-2B worker for the short time remaining? 

How many companies will actually be eligible for these additional visas if the U.S. employer must attest to and demonstrate “irreparable harm” to their business if they cannot employ H-2B workers in FY 2017?

  • Does “irreparable harm” mean that the U.S. employer must demonstrate that his/her business will be forced to close if H-2B workers cannot be employed during FY2017? Or does it mean that revenues will suffer?

Secretary of Homeland Security John Kelly still has to provide more information as to the eligibility criteria for these visas. Is this another example of providing “too little, too late”?

In another example of increased restriction on the rights of non-U.S. Citizens, on Thursday, April 27, the Department of Homeland Security (“DHS”) published a policy memorandum limiting the privacy rights of immigrants and foreign nationals under the Federal Privacy Act of 1974.  This new guidance was issued to bring DHS policy in line with President Trump’s January 25 executive order.

The Privacy Act was established to govern the collection, maintenance, use and dissemination of personally-identifiable information maintained by federal agencies.  The Privacy Act, with specific exceptions, prohibits disclosure of such records without the consent of the individual.  It also provides individuals a means to access and amend their records.

Previous DHS guidance stated that such personally-identifiable information would be treated the same, regardless of citizenship.  However, consistent with the January 25 executive order, the new guidance provides that immigrants and nonimmigrant foreign nationals may not utilize these provisions and may only access their information through a request made pursuant to the Freedom of Information Act (FOIA).  Additionally, they may not request amendments of their records.  Furthermore, in connection with the new guidance, DHS stated that it permits the sharing of such information about immigrants and nonimmigrant foreign nationals from agency records with federal, state and local law enforcement.

In response to the current Administration’s “citizen-centric” policies, we are seeing an increased interest in applications for naturalization by U.S. Lawful Permanent Residents.

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

As a part of President Obama’s recent announcement regarding his executive action on immigration, Department of Homeland Security (DHS) Secretary Jeh Johnson issued several memoranda to the directors of US Citizenship and Immigration Services (USCIS) and Immigration and Customs Enforcement (ICE).  On November 24th, we posted a comprehensive overview of changes the business community can expect as a result of the executive action. In this post, we focus on one aspect of Secretary Johnson’s memo on “Policies Supporting U.S. High Skilled Businesses and Workers”, namely Optional Practical Training (OPT) for foreign students and graduates of US colleges and universities.

OPT provides a mechanism for foreign students to get experience in their field of study, both during school and after their graduation.  Most foreign students are entitled to post-graduation OPT for only a 12 month period.  However, students who major in Science, Technology, Engineering or Math (STEM) fields and work for employers who are enrolled in E-Verify, can extend their post-graduation OPT for an additional 17 months, resulting in a total post-graduation OPT  period of 29 months.  The STEM OPT extension was designed to solve a fundamental problem resulting from the insufficiency of H-1B visas. Continue Reading President Obama’s Executive Immigration Reform: Shining a Spotlight on Reforming Optional Practical Training “OPT”

On Thursday, November 20th, coinciding with President Obama’s announcement regarding his forthcoming executive action on immigration, Department of Homeland Security (DHS) Secretary Jeh Johnson issued a memo to the directors of US Citizenship and Immigration Services (USCIS) and Immigration and Customs Enforcement (ICE) directing the agencies to take action on the president’s announcements. The DHS memo provides a framework for changes the government wishes to make, relating to skilled immigration, to alleviate some longstanding problems in our business immigration system.

Many of the suggested changes are laudable but regulatory rulemaking will be required for most of these changes to take effect. Unfortunately, whereas President Obama was very clear in his announcement about timelines for the changes he is taking to protect certain undocumented immigrants, timeframes for producing regulations or for most of the business immigration changes are lacking in the secretary’s memo. The business community is left to wonder when these announced changes will materialize and what specific forms they will take.

Modernize the Employment-Based Immigrant Visa System

There are caps (quotas) on various types of immigrant visas (green cards) that result in extremely long backlogs and delays for people born in certain countries such as India and China.  If two software engineers at the same company are sponsored for green cards at the same time, and one of them is from Germany and the other is from India, the German applicant will get his green card in about two years while it will likely take his Indian colleague ten years to conclude the process. During this excruciatingly long waiting period, the Indian software engineer is supposed to remain in the same position for which he was originally sponsored. This benefits neither the employer nor the software engineer. Continue Reading Immigration Developments for Highly Skilled Workers: Changes the Business Community Can Expect as a Result of President Obama’s Executive Action on Immigration Reform

While the three branches of federal government fire off salvos on immigration reform, states are finding ways to tackle challenges to the federal criminal immigration landscape.

Earlier this year, California Governor Jerry Brown signed into law SB 1310, a bill that reduces the maximum possible sentence for a misdemeanor in California from 365 days to 364 days.  Although a seemingly inconsequential change for United States citizens, this single day has the potential to impact to lives of many noncitizens convicted of misdemeanor offenses.

The term “aggravated felony” refers to a subset of federal immigration offenses that will result in deportation.  To qualify as an aggravated felony, a state crime need not be “aggravated” or a “felony” because federal law does not take into account state law distinctions between felony and misdemeanor crimes. Aggravated felonies carry the harshest immigration consequences, including removal from the U.S. without a hearing and outright bars to relief from removal if a hearing is held.  When Congress initially created the term, it included only murder, federal drug trafficking, and illicit trafficking of certain firearms and destructive devices.  However, over time Congress has expanded its reach and today it includes even minor crimes that carry a sentence of 365 days or more. As a result of this expansion, state law misdemeanors with a sentence of 365 days or more may be an aggravated felony under federal immigration law.

Therein lays the difference a day can make.  By reducing the possible maximum sentence to 364 days, noncitizens with minor criminal convictions are no longer subject to the aggravated felony provision and have the opportunity to seek relief from removal or a dismissal of charges altogether.  California is not the first state to make this small but incredibly impactful change.  In 2013, Nevada reduced its maximum sentence for a gross misdemeanor to 364 days, and in 2011 Washington State did the same.

In addition to changing legislation, states are also creating pilot programs to provide representation to individuals in removal proceedings.  In 2013, New York announced the creation of The New York Immigrant Family Unity Project, which will create a position in the New York Public Defender’s Office for an attorney who will only represent noncitizens in immigration court. In October 2014, Santa Clara County in California restored funding for a similar program.

With President Obama’s announcement of prioritizing “felons, not families” for deportation, 364 day sentence limits could become ever more important.

On Tuesday evening, the candidates for Massachusetts governor met in their last debate ahead of Tuesday’s general election. Throughout the campaign season, Massachusetts Gubernatorial candidates Martha Coakley (D) and Charlie Baker (R) have outlined contrasting positions on several state-level immigration issues.

Baker supports allowing immigrants with work permits to obtain in-state tuition at public Massachusetts universities. However, he opposes giving in-state tuition to those without permits to work in Massachusetts after graduation. Coakley, on the other hand, supports extending in-state tuition benefits to the children of undocumented immigrants no matter their work status.

The two candidates also differ on the question of allowing undocumented immigrants to acquire driver’s licenses. Baker does not support providing driver’s licenses to undocumented immigrants, saying “No one’s ever been able to explain how you can document and verify someone who is undocumented.”

Coakley is more open to granting driver’s licenses to undocumented immigrants. She has said, “There are a lot of people who have been here a long time who can’t get to work, to a medical emergency, if they don’t have a license.” She has promised to work with law enforcement and members of the immigration community to resolve this issue.

Employers of foreign nationals working in Massachusetts remain concerned about the driver’s license debate as even those employees working in valid status are often unable to renew their driver’s licenses while waiting for USCIS to adjudicate their extensions.

On October 28th, US Citizenship and Immigration Services (USCIS) issued a new policy, clarifying the definition of “mother” and “parent” under the Immigration and Nationality Act, to include a gestational mother who (a) gave birth to the child and (b) was the child’s legal mother at the time of birth under the law of the jurisdiction where the child was born.

In issuing this new policy, USCIS recognizes and provides a solution to a serious practical problem that has also been recognized and addressed by the Department of State, relating to the transmission of U.S. citizenship to children born abroad pursuant to assisted reproductive technology (ART)(also known as in vitro fertilization).  These births can occur in one of two ways:  either when a woman gives birth abroad after an implantation of an in-vitro embryo or after a birth abroad to a contractually engaged foreign surrogate.  This new policy is designed to ensure that in the former situation, the child born abroad will be eligible for any family-based immigration benefit that the mother is able to provide—including U.S. citizenship.

U.S. law requires a U.S. citizen parent to have a biological connection to a child in order to transmit U.S. citizenship to the child at birth.  In the context of ART, a father or mother must prove that they are the genetic parent of the child.  This can be proved by DNA testing after the baby is born.  The new policy expands the definition of “mother” to include a gestational and legal mother of the child at the time and place of the child’s birth (in addition to a genetic mother).

Until this policy was put in place, occasionally children born abroad pursuant to ART became stateless.  This is because some foreign fertility clinics have on occasion substituted alternate donor sperm and eggs for the U.S. parents’ genetic material, either purposefully when the U.S. citizen’s genetic material became non-viable, or accidentally, due to errors in the lab.  Tragically, sometimes the parents did not learn about these “switches” until they obtained DNA test results after the child’s birth.

In some jurisdictions, the  gestational mother who carried and gave birth to the child is not recognized as the parent of the child under the laws of that jurisdiction.  In this situation, such a child is eligible neither for a U.S. passport nor a passport of the country in which he or she was born, effectively rendering the child stateless or otherwise unable to leave the country of birth.  Today’s expanded definition of “mother” and “parent” is designed with the best interest of the child in mind, so such a child will not be a stateless person.

U.S. citizens who are considering a foreign surrogacy arrangement should carefully review the laws of the country in which the birth will take place to understand whether under local law the surrogate mother will be considered to be the legal mother of the child born through ART.  If the law of the place of birth gives a contracted surrogate any parental rights, it could raise questions about the child’s legal mother and in turn, the child’s citizenship.

Otherwise, mothers who meet the expanded definition but don’t have a genetic relationship with their child (because they became pregnant through an egg donor) will be able to petition for their child; will be eligible to have their child petition for them based on their relationship, and will be able to transmit U.S. citizenship, if they are U.S. citizens and if the other relevant requirements for transmission of U.S. citizenship requirements are met.

It is almost October 1st, when thousands of new H-1B visas will become effective with the onset of the US government’s 2015 fiscal year.  In light of this, here are six little known but important facts about H-1B visas:

  1. H-1B visas are available for part-time as well as full-time positions.
  2. People can hold multiple, concurrent, H-1B positions, as long as each employer has filed and has ultimately received an approval for its petition.
  3. Entrepreneurs can set up companies that can file H-1B visa petitions on their behalf, as long as they can prove they have an arms-length relationship with their company.
  4. If someone has worked in H-1B visa status for less than 6 years, and has taken a number from the H-1B visa quota, he/she is not subject to the quota for subsequent H-1B employment, even following an intervening period in a different visa status (such as a student visa) or following departure from the US.
  5. If someone is the beneficiary of a cap-subject H-1B petition approval effective October 1st, he/she is no longer subject to the quota and is eligible for approval of a new H-1B visa petition filed by a different employer.  This is true regardless of whether the person is inside or outside the US.
  6. Even when the H-1B visa quota has been exhausted, for-profit employers may obtain H-1B visa petition approvals for some employees under certain circumstances. For example, where the individual is also employed in H-1B status by an H-1B quota-exempt employer, such as a university, OR where the work will further the university’s educational purpose and will be performed on campus.