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 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)

This is part 2 of our analysis of the proposed rule published by DHS on December 30, 2015, addressing and extending employment flexibility for certain classes of nonimmigrants and prospective immigrants.

Proposed Rule Focus: Nonimmigrant Visas and EADs

In the previous post we focused on the potential benefits and consolidation of current policy for individuals already in the permanent residency process. This post will focus on the proposed policies for nonimmigrant visa holders who are not currently sponsored for an immigrant visa and employment authorization document changes. Many of the details in the proposed rule are currently executed under individual memos or practice. This rule addresses several of individually small issues, but taken together is intended to constitute an overall policy of increased flexibility and fairness in the U.S. job market for immigrant and nonimmigrant workers. Continue Reading DHS Proposes New Rule for Increased Job Flexibility: Part 2

On Tuesday, December 1, the U.S. Supreme Court handed the Obama administration a “small procedural vactory” and refused the request of Texas and other states for a 30-day extension to file briefs in support of the lawsuit blocking the Obama administration’s immigration executive action on DACA and DAPA. Instead, the Court accepted the Justice Department’s eight day extension request. The Supreme Court will likely decide in January whether or not to hear the case this term. If the Supreme Court hears the case during the current term, the decision would likely be published in June, providing quite the fan-flaming event during the 2016 presidential election.

Continue Reading Supreme Court Rejects States’ Request for 30 Day Filing Extension on DACA, DAPA

Exciting news from U.S. Citizenship and Immigration Services (USCIS) and the Department of State (DOS) this week. The agencies announced that beginning with the visa bulletin effective October 1, 2015, USCIS will accept for filing I-485 applications to adjust status to Permanent Resident according to a separate filing date chart.

Continue Reading USCIS To Accept Certain I-485/AOS Applications Before Priority Date Becomes Current

Mr. Chairman, I’m pleased to provide my testimony today as a follow-up to previous appearances before this committee. I’ve testified on two other occasions to explain the need for a more certain and predictable way to attract and retain the talent my company and others need—even if that means foreign talent. However, it is apparent that my previous testimony fell on deaf ears. If anything, my explanation of the need for visa availability for high skilled workers has met with more resistance due to political posturing for the 2016 presidential election. Continue Reading A HYPOTHETICAL: Testimony of a U.S. Business Owner Before the U.S. House of Representatives Subcommittee on Immigration and Border Security

On July 14, 2015, the House Judiciary Committee met to discuss oversight of the United States Department of Homeland Security (DHS). Immigration was a major topic alongside border security and global threats of terrorism, domestic terrorism and cyber-security.

What’s the temperature right now for immigration reform with the Committee?

Cold. Possibly even a deep freeze.

One congressman stated that we need to take “adult responsibility” to enforcement of immigration laws. That’s not a promising start. The concerns that surfaced involved more enforcement of the H-1B program to prevent abuse, DHS taking more steps to apprehend removable or deportable individuals in sanctuary cities, and more enforcement across the board.

For U.S. employers with very concrete concerns about retaining foreign talent, this perspective could not be more detached. The Committee is flying over this discussion at 35,000 feet, with no compass, no direction and no flight plan. From the notes, one would think that there is chaos, with criminals running the streets and DHS standing on the curb, refusing to engage in any enforcement-related activities. The Committee needs to get into the weeds to understand what needs to be fixed with our immigration system. Business goes on for U.S. employers, but failing to fix our immigration laws is costly. Here is what we lose:

  • Emerging companies and start-ups struggle with visa issues and as a result locate R&D facilities abroad
  • U.S. employers have insufficient H-1B visa numbers to employ the best and brightest
  • We have a green card investment program (EB-5) close to expiration in September 2015, which deters foreign investors from infusing capital into the United States
  • We have a clumsy technology platform for issuing visas that resulted, this summer again, in thousands of qualified visa applicants being stranded abroad.

If the notes to the Committee’s meeting are any indication of where we are headed, we should not expect Congress to pass any meaningful immigration-related legislation in the coming year. There is severe mechanical failure on the immigration law reform front.

Expect any congressional progress toward immigration reform to be canceled or at least delayed for some time. Don’t bank on any meaningful changes to the law in the coming year.

Republican leaders and both branches of Congress failed Friday to come to a long-term agreement to provide fiscal year funding for the Department of Homeland Security (“DHS”) and provide confidence that a DHS shutdown will be avoided. A one-week funding extension was passed, and now DHS is poised to run out of money at midnight on March 6th. Both Republicans and Democrats in the House expressed displeasure with the bill. Republicans want the funding legislation to address President Obama’s recent immigration related executive action and Democrats want a bill that will fully fund DHS through the end of the fiscal year (September 30, 2015). US Citizenship and Immigration Services (“USCIS”) is one of the many agencies under the umbrella of the DHS.

USCIS grants affirmative immigration benefits based on user fees. As discussed in our alert, as a fee-funded agency, USCIS will be minimally impacted by any “shut down”. However, in previous government shut downs, such as the one in late 2013, we observed a general slowdown in petition and application processing times.

Unlike in the full government shut down of 2013, non-DHS agencies that process other types of immigration related applications and identity documents, such as the Department of Labor, Department of State, and the Social Security Administration, will continue operating under fully funded budgets. We therefore do not expect any impact on the processing times for H-1B Labor Condition Applications, PERM Labor Certifications or visa applications at U.S. Embassies or Consulates abroad regardless of what happens with DHS funding bills.

Today’s failure to pass a long-term bill in the House only serves to heighten funding uncertainty for DHS. If sticking points in the House involve Obama’s immigration related executive action, surely it is time for Congress to revisit legislative immigration reform.

On January 13, 2015 Senators Orrin Hatch (R-UT), Amy Klobuchar (D-MN), Marco Rubio (R-FL), Chris Coons (D-DE), Jeff Flake (R-AZ), and Richard Blumenthal (D-CT) introduced the Immigration Innovation Act of 2013 into the Senate.  This bill, known as S. 169 or “I2”, clearly has bipartisan support, and aims to broadly reform high skilled immigration.  The bill was originally introduced by Senator Hatch in January, 2013 but it was quickly overshadowed by the Senate’s comprehensive immigration reform bill, and neither bill made any headway in Congress.  Perhaps this year the result will be different.

The bill contemplates reforms that are long overdue, including the following:

  • A market-based adjustment to the H-1B visa cap with a new floor of 115,000;
  • Elimination of the existing 20,000 cap on the U.S. advanced degree exemption for H-1B visas;
  • Authorization of employment authorization for spouses of H-1B visa holders (not limited to spouses of H-1B visa holders being sponsored by their employers for green cards);
  • Elimination of the requirement in the immigration law that foreign students prove they intend to return to their home countries following graduation;
  • Recapture of green card numbers previously approved by Congress, but unused;
  • Exemption from the employment-based green card cap of dependents of employment-based immigrant visa recipients, US STEM advanced degree holders, persons with extraordinary ability and outstanding professors and researchers;
  • Elimination of outdated per-country limits for employment-based visa petitions and adjustment of per-country caps for family-based immigrant visas; and
  • Establishment of a grant program using funds from new fees added to H-1B visa petitions and employment-based green card petitions, to further needed STEM education and worker retraining.

For years business groups across the country have been clamoring for the types of reforms reflected in this bill.  The big question is whether the current Congress is capable of enacting stand-alone immigration legislation that focuses only on skilled immigration.  If the House introduces similar legislation in the foreseeable future it will be a good sign that a joint bill may be in the offing.

In an unusual weekend session, the US Senate passed the “Cromnibus” government funding bill, providing funding for most government agencies through September 2015. However, the Department of Homeland Security, which includes US Citizenship and Immigration Services and US Immigration and Customs Enforcement, was only funded through February 27, 2015.

The contentious 56-40 vote saw senators from both parties voting against the spending bill. “Liberal Democrats, led by Senator Elizabeth Warren, objected to a weakening of the Dodd-Frank financial reform law, while conservative Republicans, led by … [Senator] Ted Cruz, tried to sink it for failing to stop Obama’s [immigration] order.”

By the end of February, both houses of Congress will be controlled by the Republican Party, which may use its funding authority to try to block implementation of President Obama’s executive order on immigration. Specifically, Republicans are leaving the option open to “try to deny the agency any funds for … easing deportations for millions of undocumented immigrants.”