January 30, 2020

U.S. Supreme Court Allows DHS to Implement Public Charge Rule

On January 27, 2020, the U.S. Supreme Court granted the Trump administration’s request to lift the last remaining nationwide injunction blocking implementing of its public charge rule.

The rule, initially published by the Department of Homeland Security (DHS) on August 14, 2019, was set to take effect on October 15, 2019, but was halted by several injunctions prior to implementation. With the Supreme Court’s decision this week, DHS may now temporarily enforce the rule while litigation on the merits of the rule proceeds. For now, the rule is enforceable in all states except Illinois, where a statewide injunction currently remains in place.

Generally, applicants for admission to the U.S. must show that they are not likely to become a public charge primarily dependent on government assistance, with limited exceptions for refugees and some others. The new rule expands the definition of public charge, potentially disqualifying large numbers of currently eligible applicants, while also significantly increasing the burden of proof and evidence of income required for others.

WHAT TO EXPECT

We expect DHS to announce the timing for rule implementation shortly, and to publish new forms to effectuate implementation.

Pursuant to the rule:

  • Individuals applying for U.S. permanent resident status are subject to a new, multi-factored, “totality of circumstances” test to ascertain the likelihood of becoming a public charge in the future. Among the factors considered are the applicant’s age, health, household size, level of education and skills, financial assets and liabilities, and prior use of public benefits. Adjustment of status applicants, including employment-based adjustment applicants, will be required to complete a lengthy Form I-944, Declaration of Self Sufficiency, and must provide extensive financial information and documentation.
  • Nonimmigrants seeing to extend or change status are subject to a more limited public charge inquiry, and will be required to provide additional information as to whether they have received designated public benefits prior to the rule’s implementation date. Receipt of certain benefits over a designated term may disqualify an individual from obtaining status.

LOOKING AHEAD

The new public charge rule is much more restrictive than current policy and adjudicators will have substantial discretion in making public charge determinations. This may result in even longer processing times to adjudicate cases, inconsistent decisions and increased denials of applications on public charge grounds.

Notably, the Supreme Court’s decision to allow DHS to enforce the rule temporarily is not the final decision on the legality of the rule. Litigation on the merits of the regulation is proceeding in several jurisdictions around the country, and the rule could ultimately be struck down as unlawful. Nonetheless, implementation of the rule in the interim, even temporarily, imposes a new hurdle and significant burden on applicants for immigration benefits and the companies that employ them.

Gibney is closely monitoring this matter and will provide updates as they become available. For additional information, please contact your designated Gibney representative or email info@gibney.com.

January 23, 2020

Navigating the Recent Visa Reciprocity Changes

In December 2019 the United States Department of State (DOS) made significant changes to the visa reciprocity fees and validity periods for nonimmigrant visa applicants from certain countries. Nonimmigrant visa applicants from certain countries may be required to pay a visa issuance fee after their application is approved. When a foreign government imposes fees on U.S. citizens for certain types of visas, the U.S. will impose a reciprocal fee for similar types of visas.

Change Highlights

In December 2019 DOS implemented significant changes to validity periods and fees:

  • Australia: Impacted visa types include E-1 and E-2 Treaty Traders/Investors, F-1 Students, H-1B Specialty Occupation Workers, L Intracompany Transferees, R Religious Workers and B-1/B-2 Visitors.
    The visa issuance fee for the E-1/E-2 increased from $105 to $3,574 and the validity period was reduced to 48 months. The H-1B fee increased from $105 to $1,295. The L-1/L-2 fee increased from $105 to $1,790 and the validity period was reduced to 48 months.
  • France: The maximum L-1/L-2 validity period was reduced from 5 years to 17 months and the E-1/E-2 validity period was reduced from 5 years to 25 months. The H-1B fee was increased to $480.00.
  • Israel: The L-1/L-2 visa validity period was reduced to 48 months and the E-2 visa may only be issued for 24 months.

Other countries with recent reciprocity fee and/or visa validity periods updates include: Andorra, Argentina, Austria, Bahrain, Belgium, Bulgaria, Chile, Guinea Bissau, Norway, Malta, Mauritania, Madagascar, Saint Kitts and Nevis and Spain.

Determining Reciprocity Fees
The full DOS reciprocity tables can be viewed here.

What This Means for Employers and Foreign Nationals

  • Visa issuance fees and validity periods should be taken into consideration as part of the planning process
  • Changes may impact the ability for foreign nationals to extend their visa validity period
  • Changes to fees and validity periods are ongoing – review the reciprocity schedule in advance

If you have any questions about this alert, please contact your Gibney representative or email info@gibney.com.

This alert is provided as general information for clients and friends of Gibney, Anthony & Flaherty, LLP. It does not constitute, and should not be construed as, legal advice.  The contents of this alert may be considered attorney advertising in some states.  © 2020 Gibney, Anthony & Flaherty, LLP

January 23, 2020

Treaty Termination Ends E Visa Eligibility for Iranian Nationals

USCIS has announced that Iranian nationals are no longer eligible for E-1 treaty trader and E-2 treaty investor changes or extensions of status based on the treaty. This is a result of the U.S. termination of the 1955 Treaty of Amity, Economic Relations, and Consular Rights with Iran.

The E-1 and E-2 nonimmigrant visa classifications allow aliens of a treaty country to be admitted to the U.S. for the purposes of engaging in international trade or investing a substantial amount of capital into a U.S. business.

E-1 and E-2 nonimmigrant visas are based on trade and investment treaties or specific legislation providing for reciprocal treatment of the respective countries’ nationals. The existence of a qualifying treaty or authorizing legislation is therefore a threshold requirement for issuing an E visa.

What to Expect

USCIS will send Notices of Intent to Deny to affected applicants who filed applications after the Department of State’s announcement of termination on Oct. 3, 2018. Iranians currently holding and properly maintaining E-1 or E-2 status may remain in the U.S. until their current status expires.

If you have any questions about this alert, please contact your Gibney representative or email info@gibney.com.

This alert is provided as general information for clients and friends of Gibney, Anthony & Flaherty, LLP. It does not constitute, and should not be construed as, legal advice.  The contents of this alert may be considered attorney advertising in some states.  © 2020 Gibney, Anthony & Flaherty, LLP

 

January 14, 2020

Plan Now for H-1B Cap Registration

USCIS formally confirmed that it will implement its new electronic registration process for the fiscal year (FY) 2021 H-1B cap season. The initial registration period will run from March 1 through March 20, 2020.

WHAT’S NEW THIS YEAR

  • Cap-subject H-1B employers intending to sponsor H-1B workers must first register each intended beneficiary electronically with USCIS during the registration period.
  • There is a $10 government fee for each registrant.
  • If the number of registrations exceeds the number of H-1B visas available under the annual quota as expected, USCIS will randomly select a sufficient number of registrants projected to reach the FY2021 H-1B cap. The random selection process will occur after the initial registration period closes on March 20, 2020. USCIS intends to notify those selected no later than March 31, 2020.
  • Employers will have a 90-day window during which to file H-1B cap petitions for selected registrants. The petition filing period is expected to start not later than April 1, 2020.
  • Employers may file an H-1B cap petition for selected registrants only; no substitutions are permitted.

REGISTRATION HIGHLIGHTS

  • In completing the registration, employers must identify whether an individual qualifies for an H-1B pursuant to the advanced degree cap (reserved for individuals holding a U.S. master’s degree or higher) or the standard H-1B cap.
  • Employers may register multiple individuals at once, using a single online “batch” submission.
  • An employer may only submit one registration per intended beneficiary in any fiscal year. If an employer registers a beneficiary more than once in the same fiscal year, all registrations submitted by that employer for that beneficiary will be invalidated.
  • The registration may be prepared and submitted by the employer’s authorized representative.

WHAT SHOULD EMPLOYERS DO NOW?

Employers should work with counsel now to identify current or prospective employees who may require an H-1B petition to work in the U.S. and to take appropriate steps to ensure timely online registration of identified candidates. Potential beneficiaries include, but are not limited to:

  • New hires from overseas
  • F-1 students completing a qualifying course of study or currently working pursuant to Optional Practical Training
  • Some L-1 visa holders
  • TN, E-3 and other nonimmigrant visa holders who wish to change to H-1B status in the coming year
  • H-4 dependent EAD holders. As the Administration has indicated that it intends to eliminate work authorization eligibility for the H-4 spouses of certain H-1B visa holders, employers may wish to consider filing cap petitions for these individuals.
  • Some L-2 or E dependent EAD holders

BACKGROUND

H-1B Categories and Annual Quotas

H-1B petitions generally fall within two categories:

  • “Standard” Cap Petitions. The minimum educational requirement for a standard H-1B petition is a bachelor’s degree or its equivalent. Standard cases are capped at 65,000 visas annually with approximately 6,800 reserved for nationals of Chile and Singapore.
  • S. Advanced Degree Petitions. The beneficiary must hold an advanced degree, defined as a master’s degree or higher, awarded by a U.S. university. USCIS allocates an additional 20,000 H-1B visas for U.S. advanced degree holders each fiscal year.

H-1B Petitions Not Subject to the Cap 

As a reminder, certain H-1B petitions are not counted against the annual cap, including:

  • Individuals in H-1B status previously counted against the cap. In most instances, individuals who were counted against the cap in a previous fiscal year are not subject to the current cap. This includes extensions of status for current H-1B visa holders, changes in the terms of employment for current H-1B workers, and most petitions for changes of H-1B employers and petitions for concurrent employment in a second H-1B position.
  • Petitions filed by cap exempt organizations. H-1B petitions for employment at institutions of higher learning or related/affiliated nonprofit entities, nonprofit research organizations, and governmental research organizations are cap-exempt, and may be filed any time throughout the year.

USCIS intends to publish more information about the cap registration process in the weeks ahead. Gibney will provide additional information as it becomes available.

If you have any questions about this alert, please contact your Gibney representative or email info@gibney.com.

December 10, 2019

U.S. Trade Agreement with Mexico and Canada Advances

Today House Speaker Nancy Pelosi announced that Democrats in the U.S. House of Representatives reached an agreement with the administration to proceed with a modified version of the United States-Mexico-Canada Agreement (USMCA).  The modifications relate to additional protective measures for labor and the environment, among others.   Both the U.S. House of Representatives and the Senate must now pass legislation to implement the agreement, which the president must sign. The USMCA must also be approved by Canada and Mexico.

What this Means for Employers

From an immigration perspective, the USMCA represents a repackaging of NAFTA. The agreement retains key immigration benefits of NAFTA, including provisions allowing for the temporary entry without quotas of Business Visitors, Traders and Investors, Intracompany Transferees, and Professionals. With respect to Professional workers, USMCA retains all of the occupations previously designated as eligible for the NAFTA “TN” visa though the new agreement does not add any additional occupations.

For additional information, please contact your designated Gibney representative.

December 9, 2019

USCIS To Implement H-1B Electronic Registration Process for FY2021 Cap Season

U.S. Citizenship and Immigration Services (USCIS) announced it will implement the new electronic registration process for the fiscal year (FY) 2021 H-1B cap lottery. Employers intending to file H-1B cap-subject petitions under next year’s cap will be required to first electronically register each intended beneficiary and pay the associated $10 H-1B registration fee. The H-1B cap lottery will be conducted after the registration period concludes, and employers will then be notified when to submit H-1B petitions for selected beneficiaries.

WHAT EMPLOYERS CAN EXPECT

The initial registration period will take place from March 1 through March 20, 2020. The H-1B random selection process will then be run on those electronic registrations. Only those with selected registrations will be eligible to file H-1B cap-subject petitions. The agency may determine it is necessary to open an additional registration period if it does not receive enough registrations and subsequent petitions projected to reach the annual quota. USCIS is expected to publish additional information about the registration process in the coming weeks, including information about key dates and timelines.  USCIS will also conduct public engagements and other outreach activities to ensure interested parties are familiar with the new registration system.

Gibney will continue to provide updates as they are made available, and will be working with clients to plan for the 2020 registration process.

For additional information, please contact your designated Gibney representative.

November 13, 2019

Plan Ahead for Holiday Travel: A Checklist for Foreign Nationals and Employers

As the holiday season approaches, international travelers should expect busy airports, Consulates and U.S. Ports of Entry. We encourage ALL travelers to plan ahead to minimize delays when traveling abroad and entering the U.S.

U.S. Entry: Status and Documentation Checklist

  • Confirm the validity of passports for all travelers. Valid passports are required for all international travelers and accompanying family members, including U.S. and Canadian citizens. Renew passports in advance to ensure at least six months’ validity at the time of any visa application or entry to the U.S. Many countries allow renewal of passports by mail through their Consulates or Embassies in the U.S.
  • Carry all documents required for admission to the U.S. Upon entry to the U.S., some entrants may need to show additional evidence of work authorization or government approval in addition to a passport and valid visa stamp. Documents vary by visa classification but may include an original I-797, Approval Notice; endorsed Form I-129S; Advance Parole Document, Employment Authorization Document (EAD) and/or endorsed Form I-20.
  • Verify the U.S. admission classification/expiration date. Upon entry to the U.S., foreign nationals should expect a U.S. Customs and Border Protection (CBP) officer to create an electronic I-94 record and issue a passport stamp, annotated with the class and duration of admission. Before leaving the CBP inspection area, verify that the admission classification and expiration date entered in the passport are correct, and immediately alert the CBP officer to any errors.
  • Review your I-94 record. After each entry to the U.S., foreign nationals should access and review the electronic I-94 record available on the CBP website. Expiration dates for the I-94, underlying petition, or work permit may be different from the expiration date on the visa stamp. Send Immigration Counsel a copy of your I-94.

Checklist for Foreign National Employees and Employers

  • Consult with Immigration Counsel in advance. Immigration counsel can help to prepare for enhanced vetting and for the consular interview before you apply for a visa. Schedule consultations 60-90 days in advance whenever possible. Keep in mind that appointment wait times at U.S. Consulates can range from a few days to a few months.
  • Check the Consulate’s website prior to travel. If you require visa issuance at a Consulate abroad, review information on specific procedures regarding booking visa appointments and documentation required for visa interviews. Note: Consular procedures vary widely and are subject to change with little or no notice.
  • Complete Form DS-160. This form is required for all visa applicants including dependent spouses and children of principal visa holders. Retain a copy of the final form at the time of submission. Many Consulates require that the visa application be completed prior to scheduling a visa appointment.
  • Review your visa application/petition. Review the petition prepared by Immigration Counsel on your behalf prior to traveling, to ensure the accuracy of the information reported and consistency with visa applications.
  • Review your online profiles. This includes information in online employee profiles and company pages as well as social media profiles. Government officials at USCIS, Consulates, and U.S. Ports of Entry review online profiles of visitors and foreign workers applying for benefits or seeking entry to the U.S.
  • Update corporate information. Employers should update company pages and sites such as Dunn & Bradstreet that may be referenced by immigration officers to verify employment or business information.
  • Gather employment verification. If you are applying for a temporary work visa, most Consulates require current employment verification letters from employers. Request these letters well in advance of travel to allow adequate time for Human Resources to prepare them. Maintain copies of recent paystubs as evidence of current employment.
  • Disclose any arrests/detainment to Immigration Counsel. Consult with Immigration Counsel if you have been arrested or detained by law enforcement, even if not charged/convicted. Consult with counsel before departing the U.S. or applying for a visa or any other immigration benefit. Citations, arrests or detentions may require disclosure on applications and may impact immigration status and/or eligibility for immigration benefits.
  • Check Consulate wait times. Review the Consulate website for visa appointments and processing times and alert Immigration Counsel immediately if visa issuance is delayed due to security or background clearance issues.
  • Confirm Consulate holiday hours. Consulates abroad observe both U.S. and local country holidays and some offices may be short-staffed due to vacations.

Travel Documents if You Don’t Need a Visa from the Consulate:

  • Visa Waiver Program travelers must have a valid ESTA approval. The Electronic System for Travel Authorization (ESTA) is a mandatory, online pre-screening system for Visa Waiver Program (VWP) travelers. ESTA is only available for travelers who are citizens of recognized VWP countries who wish to enter the U.S. for B-1 business/B-2 tourism purposes. VWP travelers must obtain a valid ESTA approval prior to travel, which may be valid for up to two years. Note that a new ESTA approval is needed when a VWP traveler obtains a new passport and/or changes his/her name or country of citizenship, and when answers to any of the VWP eligibility questions (e.g., regarding an arrest or visa denial) change.
  • Adjustment of Status applicants and Advance Parole travel documents. With the exception of some H and L visa holders, individuals with pending I-485, Adjustment of Status applications must have a valid original Advance Parole travel document issued prior to departing the U.S. Departing the U.S. without Advance Parole may result in denial of the I-485 application.

Helpful Links

November 12, 2019

New EB-5 Program Rules Start November 21: What To Expect

U.S. Citizenship and Immigration Services (USCIS) has made significant changes to the Immigrant Investor Program (EB-5) through their establishment of new EB-5 modernization regulations.  The EB-5 program permits individuals to apply for permanent residence in the U.S. if they make the necessary investment in a new commercial enterprise in the U.S. and create 10 full-time jobs for qualified U.S. workers.   Regional Centers are economic enterprises designated by USCIS for participation in the Immigrant Investor Program.

The new EB-5 regulations will take effect November 21, 2019. Investors seeking to be “grandfathered” in under the old rules must file an I-526 petition with USCIS before the new regulation’s effective date.

New EB-5 Regulations: What to Expect

  • Increases minimum investment amounts: The minimum investment in Targeted Employment Areas (TEAs) increases from $500,0000 to $900,000 and from $1 million to $1.8 million in all standard areas. The final rule also provides that investment amounts are subject to additional increases every five years based on inflation.
  • Changes how Urban TEAs are defined and designated: TEA designations will now be determined by the Department of Homeland Security, and state and local TEA determinations will no longer be accepted.
  • Provides priority date retention for subsequent EB-5 investor petitions: The investor must have a priority date set by a previously approved I-526 Immigrant Petition by Alien Entrepreneur and be reapplying due a failing investment project, termination of a regional center, or a backlog of visa applications.
  • Clarifies procedures for removing conditions on permanent resident status: This includes situations where dependent family members must file their own I-829, Petition to Remove Conditions on Permanent Resident Status.  Entrepreneur investors are initially granted conditional permanent resident status for two years, and must petition to have the conditions on status removed within a prescribed period.

EB-5 Regional Center Program

The current EB-5 Regional Center program has been extended through November 21, 2019, passed by Congress as part of a Continuing Resolution. This program extension date now coincides with the effective date of the new EB-5 regulations as listed above.

Gibney will continue to monitor this matter and advise of developments. For additional information, please contact your designated Gibney representative or email info@gibney.com

November 11, 2019

DHS Finalizes H-1B Cap Registration Fee

The U.S. Department of Homeland Security published a final rule that will require employers to pay a $10 non-refundable fee for each H-1B cap registration submitted, once the electronic registration system is implemented.   The final rule is effective December  9, 2019.

 Background:

The H-1B visa program allows U.S. employers to petition for temporary work authorization for professionals working in specialty occupations. The H-1B visa is subject to an annual quota (or “cap”) of 65,000 visas each fiscal year, with an additional 20,000 visas available to beneficiaries holding a U.S. master’s degree or higher.

In January 2019 USCIS published a final rule introducing an electronic registration requirement for employers seeking to file H-1B cap-subject petitions. Pursuant to the rule, before an employer may file an H-1B cap petition with USCIS, it must first register its intention with USCIS during a designated registration period.  However, USCIS immediately postponed implementation of the registration requirement for fiscal year (FY) 2020 H-1B cap filings in order to create the electronic registration system and perform user testing. Additional information about the proposed electronic registration process is available here.

What Employers Can Expect

Appearing at the Society for Human Resource Management Global Mobility and Immigration Symposium on November 4, 2019, USCIS Acting Director Kenneth Cuccinelli expressed a high degree of confidence that the electronic registration system would be implemented for the FY2021 H-1B cap selection process. He further indicated that a determination of “go” or “no go” would be announced in 2019. USCIS will announce the implementation timeframe and registration period in the Federal Register once a final decision is made to implement the electronic registration system.

Once the electronic registration system is operational, all H-1B cap petitioners will first have to electronically register information related to the company and the intended beneficiary during a designated registration period. The $10 fee will be required when registrations are submitted. Once implemented, the registration system is expected to lower costs for petitioning employers, who will no longer have to prepare and submit full H-1B petitions unless their registration is selected the H-1B cap lottery.

More information on the H-1B visa and program requirements can be found here.  For additional information, please contact your designated Gibney representative.

November 11, 2019

Poland Added to U.S. Visa Waiver Program  

The U.S. Department of Homeland Security has designated Poland as the newest member of the Visa Waiver Program (VWP).

What Employers Can Expect

Effective November 11, 2019, Polish citizens and nationals may apply to travel to the United States for up to 90 days for tourism or business visitor purposes without having to obtain a U.S. visa. Eligible Polish nationals must have an electronically readable passport and must obtain travel authorization from Electronic Screening System for Travel Authorization (ESTA) prior to travel.

Learn more about the Visa Waiver Program requirements and limitations here.  For additional information, please contact your designated Gibney representative.