On December 1, 2017 Judge James Boasberg of the U.S. District Court for the District of Columbia granted summary judgment to the National Venture Capital Association (NVCA) in its challenge to a regulation published by the Department of Homeland Security (DHS) delaying the implementation of the International Entrepreneur Parole (IEP) Rule. The IEP regulation, published in the last days of the Obama administration, aimed to provide an immigration option for foreign entrepreneurs. A summary of the IEP program appears here. The new program was scheduled to take effect on July 17, 2017, but on July 11, 2017, DHS published a rule in the Federal Register delaying the implementation of the program until March 2018, and stating DHS’s intention to rescind the IEP regulation entirely. Judge Boasberg ruled that the government violated the Administrative Procedure Act by summarily delaying the implementation of the program without publishing a full regulation seeking notice and comment from the public.
Continue Reading National Venture Capital Association Wins Lawsuit Challenging Delay of Implementation of International Entrepreneur Parole Rule

Late this spring, two lawsuits were filed against the U.S. Department of Homeland Security and U.S. Citizenship and Immigration Services (USCIS) seeking information about and challenging the administration of the H-1B visa lottery process.

The first lawsuit was filed by two immigration organizations – American Immigration Lawyers Association (AILA) and the American Immigration Council (AIC) – who “teamed up” to file a lawsuit requesting information about the lottery process.

The second lawsuit is a class action filed on behalf of two companies and their employees. This lawsuit claims that the H-1B lottery process is illegal because the language of the statute does not allow for a lottery. Continue Reading Lawsuits Question Procedure and Substance of H-1B Lottery

In an update to our post from January 25, 2016, the U.S. Department of Homeland Security on Thursday further restricted visa-free travel to the U.S. for people who have traveled to Libya, Somalia, and Yemen. If visited in the last five years, since March 1, 2011, an otherwise eligible individual is precluded from using the Visa Waiver Program to enter the U.S. for business or tourism. Those travelers to Libya, Somalia, and Yemen must apply for a nonimmigrant visitor’s visa at a U.S. consular post abroad, where they will be subject to the normal vetting process for U.S. visas. The restriction on people who have visited Libya, Somalia, and Yemen come as part of DHS’s implementation of the Visa Waiver Program Improvement and Terrorist Travel Prevention Act that was enacted as part of the year-end spending bill. Continue Reading Visa-Waiver Program Further Restricted for Travelers of Libya, Somalia, and Yemen

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 third post we will discuss regulatory issues with immigrant visas. 

A proposed USCIS rule could improve flexibility and stability for employment-based immigrant and nonimmigrant visa programs. On December 31, 2015, DHS released a notice of proposed rulemaking in the Federal Register titled “Retention of EB-1, EB-2 and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers.” The proposed rule contains a number of amendments that would modernize the program for foreign workers. Mintz Levin member Kevin McNamara analyzed this rule in two detailed posts earlier in January, here and here.

Continue Reading A Preview of Business Immigration in 2016: Proposed Immigrant Visa Reforms (Part 3/6)

The Supreme Court will hear the Obama administration’s appeal of the 5th Circuit Court’s decision to uphold the nationwide injunction of the expansion of Deferred Action for Children (DACA) and implementation of Deferred Action for Parents of Americans (DAPA) set by federal Judge Andrew Hanen in Texas.

In addition to the procedural issues of comment and potential harm discussed in the lower courts, the Supreme Court asked both, “the federal government and the states suing it to address whether the executive actions on immigration violate the Constitution’s take care clause — an issue that was not definitively decided by lower courts that have ruled on the case.”

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 December 31st, the Department of Homeland Security issued a proposed rule addressing and extending employment flexibility for certain classes of nonimmigrants and prospective immigrants. The new rule proposes to amend current regulations to “clarify and improve longstanding agency policies” related to provisions in both the American Competitiveness in the Twenty-first Century Act of 2000 (“AC21”) and the American Competitiveness and Workforce Improvement Act of 1998 (“ACWIA”). When implemented, the rule has the potential to provide a clear adjudication system for USCIS and benefits for foreign nationals who would like more flexibility in the U.S. job market. While actual implementation is historically varied, we are cautiously optimistic that this rule will provide more standardized guidance for petition and application adjudication at the service centers. This post will examine the benefits for individuals who are already in the permanent residency process. Continue Reading DHS Proposes New Rule for Increased Job Flexibility: Part 1

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?

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.

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.”