September 17, 2021

Court Vacates Rule Favoring High-Wage Earners in H-1B Cap Selection Process

A federal district court has struck down a legacy Trump administration rule that would have replaced the annual H-1B cap lottery with a scheme to favor high-wage earners.

If implemented, the rule would have adversely impacted employers wishing to sponsor  H-1B petitions for entry level professionals positions with corresponding entry level wages, including petitions for recent foreign student graduates from U.S. universities.   The rule would have also harmed non-profit institutions, including many hospitals, and small businesses unable to compete with larger enterprises offering higher wages.  Inevitably foreign students graduates, including scientists, heath care professionals, IT professionals and others, would be required to depart the U.S. after graduation  with this key immigration option eliminated.

Notably, the Biden administration did not abandon the rule when it took office, but only delayed its implementation to December 31, 2021.  The U.S. Chamber of Commerce led a group of plaintiffs that included universities other organizations challenging the legality of the rule, and this week, the court agreed with plaintiffs that Acting Secretary of the Department of Homeland Security (DHS) Chad Wolf was not lawfully appointed at the time the rule was promulgated, and thus had no authority to issue the rule.  The court did not address whether the Immigration and Nationality Act allows DHS to prioritize the selection of H-1B visas based on wages or another factor, one of the arguments alleged by the plaintiffs.

Looking Ahead

The rule is not inconsistent with the  Biden administration’s stated aim to incentive higher wages for nonimmigrant and high-skilled workers. The administration does have the option of promulgating another rule – this time with a lawfully appointed Secretary of Homeland Security – but even so, such a rule is unlikely to be implemented before the  fiscal year 2023 H-1B cap registration period which commences in March 2022.  A similar rule favoring high wage earners would also face the same substantive legal challenges, particularly that such a proposal is inconsistent with, and flatly contradicted by, the Immigration and Nationality Act.

The case is U.S. Chamber of Commerce v. Department of Homeland Security, Case No. 20-cv-07331 (N.D. Ca., March 19, 2021).

 

August 25, 2021

New COVID-19 Vaccination Requirement for Green Card Applicants

Effective October 1, 2021, by order of the Centers for Disease Control (CDC),  USCIS and the U.S. Department of State will require individuals applying for permanent resident status to be vaccinated for COVID-19, with limited exceptions.  Refugees are also covered by the order.  Proof of full COVID-19 vaccination will be required along with the other vaccination requirements already in place in connection with green card applications.

Who is Impacted?

If the medical exam is completed before October 1, 2021, and the exam results are within the validity period (typically 2 years from completion with some exceptions), COVID-19 vaccination is not required.

Exemptions

Blanket waivers of the vaccination requirement are available if

  • The vaccination is not age appropriate.  This includes applicants younger than the lowest age limit for the approved COVID-19 vaccine formulations in use.
  • The vaccination is medically contraindicated.
  • The applicant does not have access to one of the approved COVID-19 vaccines in their country.

In all instances, the request for exemption must be documented.

Applicants may also apply for an individual waiver of the vaccine requirement on religious or moral grounds. USCIS will make the determination as to whether an individual waiver will be granted. If the wavier is denied and the individual is not vaccinated, the individual will be deemed inadmissible, and ineligible for lawful permanent resident status.

Proof of Vaccination and Associated Requirements

Approved COVID-19 vaccines  are those authorized for emergency use by the U.S. Food and Drug Administration  or those  listed for emergency use by the World Health Organization.

Written documentation proving vaccination is required. This may include:

  • An official vaccination record.
  • A medical chart with physician entries pertaining to the vaccination.
  • Appropriate medical personnel attestation.

An individual’s personal attestation that they have been vaccinated is not sufficient.  Additionally, an individual may not be exempted from the vaccination requirement on the basis of testing that establishes immunity  or recovery from prior COVID-19 infection.

Finally, keep in mind that proof of vaccination does not exempt international travelers from the requirement to present proof of a negative COVID-19 test prior to boarding an international flight to the U.S.

For additional information about this emerging requirement, please contact your designated Gibney representative or email info@gibney.com.

July 30, 2021

USCIS Selects Additional  FY 2022 H-1B Cap Registrations: What Employers and Foreign Nationals Need to Know

USCIS conducted a second lottery for the fiscal year (FY) 2022 H-1B cap on July 28, 2021 and has notified employers that additional registrations have been selected.  Employers with selected registrations from the second lottery may file an H-1B petition for the beneficiary of a selected registration during the 90-day period running from  August 2, 2021 to November 3,  2021.

USCIS conducted its initial  H-1B cap lottery  in March 2021, and selected employers had a 90-day window during which to file H-1B cap petitions for selected beneficiaries.  The second lottery was conducted because the number of H-1B petitions ultimately submitted and  approved during the initial H-1B filing period (April 1, 2021 to June 30, 2021) were not sufficient to meet the annual statutory H-1B cap.   H-1B cap registrations that were not selected in the initial lottery remained in a reserve and the July lottery was conducted from this reserve. USCIS has not announced how many additional registrations were selected from the reserve.

What This Means for Employers and Foreign Nationals:

  • Employers with selected registrations will see updates in their myUSCIS accounts, including a selection notice and details of when and where to file the H-1B cap petition.
  • Only employers with selected registrations may file H-1B cap-subject petitions for FY 2022 and only for the beneficiary named in the applicable selected registration notice; no substitution of beneficiaries is permitted.
  • An H-1B cap-subject petition for a selected registration must be properly filed at the designated  service center and within the filing period(August 2, 2021 to November 3, 2021)  specified on the relevant registration selection notice.
  • Online filing is not available for H-1B petitions. Petitioners must file by paper and must include a printed copy of the applicable registration selection notice with the FY 2022 H-1B cap-subject petition.
  • Registration selection only indicates that employers are eligible to file H-1B cap-subject petitions; it does not signify that the petition will be approved.
  • Petitioners filing H-1B cap-subject petitions, including those eligible for the advanced degree exemption, must submit evidence and establish eligibility for approval based on existing statutory and regulatory requirements.

For more information, please contact your designated Gibney representative or email info@gibney.com.

July 26, 2021

Understanding Intracompany Transferee Visas and the Associated Green Card Sponsorship Process

Quick Take from Hasta La Visa, Baby Podcast Episode 1: Down The Hall and to the Left: Intracompany Transferees and Home Alone 2

In Episode 1 we discuss the characteristics and differences of L-1A and L-1B Intracompany Transferee visas and the Employment Based First Preference multinational manager green card sponsorship process.

In this quick take article, we break down what employers need to know about these options for transferring and retaining employees from affiliated companies into the U.S.

L-1A Nonimmigrant Visa for Executive or Manager

The L-1A visa status provides a pathway for a multinational corporation to transfer an executive or manager from one of its foreign offices to one of its affiliated U.S. offices. Foreign companies that do not yet have an affiliated U.S. office can also transfer an executive or manager to the U.S. to establish a new office.

L-1B Nonimmigrant Visa for Employees with Specialized Knowledge

The L-1B visa status allows a multinational corporation to transfer a professional employee with “specialized knowledge” from one of its foreign offices to one of its affiliated U.S. offices. Specialized knowledge refers to either special knowledge possessed by an individual of the company’s product, service, research, equipment, techniques, management, or other interests and its application to international markets, or an advanced level of knowledge or expertise in the organization’s processes and procedures.

How can employers apply for an L-1A or L-1B nonimmigrant visa on behalf of an employee?

Employers can file a Form I-129, Petition for a Nonimmigrant Worker on behalf of their employee with the U.S. Citizenship and Immigration Services. They must have a qualifying relationship with a foreign company, and either be actively doing business or planning to do business as an employer in the U.S. and at least one other country for the duration of the employee’s stay in the U.S.

How do employees qualify for an L-1A or L-1B nonimmigrant visa?

  • Employees must have been working for a qualifying organization abroad for at least one continuous year within the three years immediately before admission to the U.S.
  • For the L-1A Intracompany Transferee Executive or Manager visa classification, the employee must be entering the U.S. to provide professional services in an executive or managerial capacity for a branch of the same employer or one of its qualifying organizations in the U.S.
  • For the L-1B Intracompany Specialized Knowledge visa classification, they must have special knowledge of the company product, service, research, equipment, techniques, management, or other interests or expertise in their processes and procedures.

Employment-Based First Preference Multinational Executive or Manager Green Card Sponsorship Process

This is a fast track Green Card sponsorship process, typically applicable to those who are already in L-1A visa status. The sponsored employee must have worked for an affiliate of the sponsoring employer abroad in an executive or managerial capacity and then be working in the U.S. for the affiliate in a similar executive or managerial capacity. Employers must complete and file a Form I-140 Immigration petition on behalf of the sponsored employee with U.S. Citizenship and Immigration Services.

About Hasta La Visa, Baby: This podcast presents real world U.S. immigration law concepts by doing a deep-dive into the relationship between U.S. immigration law and fictitious characters in popular television and film.

July 14, 2021

Understanding Intracompany Transferee Visas and the Associated Green Card Sponsorship Process  

In Episode 1 of the Hasta La Visa, Baby Podcast, we discuss the characteristics and differences of L-1A and L-1B Intracompany Transferee visas. We also highlight the Employment Based First Preference multinational manager green card sponsorship process. In this quick take article, we break down what employers need to know about these options for transferring and retaining employees from affiliated companies into the U.S.

L-1A Nonimmigrant Visa for Executive or Manager

The L-1A visa status provides a pathway for a multinational corporation to transfer an executive or manager from one of its foreign offices to one of its affiliated U.S. offices. Foreign companies that do not yet have an affiliated U.S. office can also transfer an executive or manager to the U.S. to establish a new office.

L-1B Nonimmigrant Visa for Employees with Specialized Knowledge

The L-1B visa status allows a multinational corporation to transfer a professional employee with “specialized knowledge” from one of its foreign offices to one of its affiliated U.S. offices. Specialized knowledge refers to either special knowledge possessed by an individual of the company’s product, service, research, equipment, techniques, management, or other interests and its application to international markets, or an advanced level of knowledge or expertise in the organization’s processes and procedures.

How can employers can apply for an L-1A or L-1B nonimmigrant visa on behalf of an employee?

Employers can file a Form I-129, Petition for a Nonimmigrant Worker on behalf of their employee with the U.S. Citizenship and Immigration Services. They must have a qualifying relationship with a foreign company, and either be actively doing business or planning to do business as an employer in the U.S. and at least one other country for the duration of the employee’s stay in the U.S.

How do employees qualify for an L-1A or L-1B nonimmigrant visa?

  • Employees must have been working for a qualifying organization abroad for at least one continuous year within the three years immediately before admission to the U.S.
  • For the L-1A Intracompany Transferee Executive or Manager visa classification, the employee must be entering the U.S. to provide professional services in an executive or managerial capacity for a branch of the same employer or one of its qualifying organizations in the U.S. .
  • For the L-1B Intracompany Specialized Knowledge visa classification, they must have special knowledge of the company product, service, research, equipment, techniques, management, or other interests or expertise in their processes and procedures.

Employment Based First Preference Multinational Executive or Manager Green Card Sponsorship Process

This is a fast track Green Card sponsorship process, typically applicable to those who are already in L-1A visa status. The sponsored employee must have worked for an affiliate of the sponsoring employer abroad in an executive or managerial capacity and then be working in the U.S. for the affiliate in a similar executive or managerial capacity. Employers must complete and file a Form I-140 Immigration petition on behalf of the sponsored employee with U.S. Citizenship and Immigration Services.

For further information on these visa principles, please be sure to download and listen to:

Hasta La Visa, Baby Episode 1: Down the Hall and to the Left: Intracompany Transferees and Home Alone 2
In this episode, Shai and Roderick discuss the 1992 holiday blockbuster, Home Alone 2: Lost in New York. In this episode, Shai and Roderick explore the character known as Mr. Hector, played by Tim Curry. Mr. Hector is a UK national, the concierge at the Plaza hotel in New York and one of the main antagonists of Kevin McCallister, played by Macaulay Culkin. Shai and Roderick will attempt to solve what Mr. Hector’s visa status may have been and will provide insight into what type of immigration advice they would give Mr. Hector if he visited them for a consultation.

The visa categories they will explore in this episode include L-1A, L-1B, and the I-140 multinational manager process. Plus, what happens when a hotel concierge gets a little too personal and a few takeaways from one of the “greatest” cameos of all time.

 

 

 

July 12, 2021

Ellen Poreda, Stephen J.O. Maltby and Renna Nukta Author Chapter on US Immigration

Immigration attorneys Ellen Poreda, Stephen J.O. Maltby and Renna Nukta authored a chapter on US Immigration for The Corporate Immigration Review.

The chapter provides an overview of US immigration legislation and policy, recent legislative developments, employer sponsorship options, the impact of COVID-19, the impact of the new Administration and an outlook on immigration trends.

Now in its 11th edition, the purpose of The Corporate Immigration Review is to share information across borders, identify global trends and provide practical insights into immigration systems in various jurisdictions.

To view the full chapter on United States immigration, visit The Law Reviews book page.

July 7, 2021

State Department Extends Validity of National Interest Exceptions

The U.S. Department of State has extended the validity of National Interest Exceptions (NIEs) for travelers from China, Iran, India, Brazil, South Africa, the Schengen Area, Ireland and the United Kingdom whose admission to the U.S. is restricted by COVID-related regional travel bans.

Under the new policy, NIEs are now valid for multiple entries during the 12 month period following the date of approval. The policy applies retroactively to NIEs that were previously approved or granted in connection with a visa application. Previously NIEs were valid for one entry within 30 days of approval.

What does this mean for travelers?

Travelers who have been  granted an NIE may be admitted to the U.S. pursuant to the NIE for a period of up to 12 months from the date of approval provided that the travel to the U.S. is consistent with the purpose for which the NIE was originally granted.  If required for the class of admission, the traveler must also have a valid visa along with the NIE.   Travelers without a valid visa will be required to apply for a new visa and a new NIE.

NIE qualifying criteria includes:

  • Providing vital support or executive direction for significant economic activity in the U.S.;
  • Journalism;
  • Travel due to extraordinary humanitarian circumstances; or
  • Travel to support national security or public health.

NIEs have become increasingly difficult to obtain as the U.S. consulates abroad have struggled to meet the demand for consular services due to COVID-related closures, staffing shortages, restrictive qualifying criteria, and backlogged visa and NIE applications. Extending the validity of NIEs, including that of previously issued NIEs, should help to relieve some of the demand for consular services while facilitating critical travel to the U.S.

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

 

 

 

July 7, 2021

Gibney Immigration Article On JD Supra’s June 2021 Popular Reads List

Gibney’s recent immigration article was listed on JD Supra’s Popular Reads List. The list ranks the most widely read articles on JD Supra in June 2021. The article is titled “USCIS Issues Policies to Improve Immigration Services: What Employers and Foreign Nationals Need to Know”.

The article covers the U.S. Citizenship and Immigration Services (USCIS) announcement of three new policy updates to the USCIS Policy Manual aimed at improving access to immigration benefits.

June 16, 2021

USCIS Issues Policies to Improve Immigration Services: What Employers and Foreign Nationals Need to Know

U.S. Citizenship and Immigration Services (USCIS) announced three new policy updates to the USCIS Policy Manual aimed at improving access to immigration benefits. The updated policies:

  • Clarify the criteria for expedited processing of benefit applications;
  • Address guidance regarding Request for Evidence (RFE) and Notice of Intent to Deny (NOID) issuance; and,
  • Increase the validity period for initial and renewal employment authorization documents (EADs) for certain noncitizens with pending adjustment of status applications.

These policy initiatives were taken pursuant to  Executive Order (E.O.) 14012, “Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans.” Issued by President Biden on February 2, 2021, the order directs federal agencies to identify strategies to eliminate barriers that impede access to immigration benefits.

What Employers and Foreign Nationals Need to Know

Expedited Processing

Applicants and petitioners may request that USCIS expedite the adjudication of immigration benefit requests even if premium processing is otherwise available for the application. USCIS reviews these requests on a case-by-case basis. The updated expedite policy clarifies the criteria and circumstances under which USCIS will generally consider expedite requests. It restores the ability of nonprofit organizations to request expedited processing if the beneficiary will further U.S. cultural and social interests. It also clarifies that expedited processing for noncitizens pending removal or in removal proceedings is coordinated between USCIS and U.S. Immigration and Customs Enforcement (ICE).

Requests for Evidence and Notices of Intent to Deny

The updated RFE and NOID guidance rescinds a Trump-era policy that permitted officers to deny certain benefit requests outright instead of first issuing an RFE or NOID.  The updated guidance instructs officers to issue a RFE or NOID when additional evidence could potentially demonstrate eligibility for an immigration benefit, rather than simply denying the benefit request. This practice helps to ensure that those requesting benefits  have an opportunity to correct simple mistakes or unintentional omissions. This was USCIS policy from 2013 until 2018, when it was rescinded by the Trump Administration. With this action, the 2013 guidance is restored.

Employment Authorization Documents

 

Updated policy guidance increases the validity period for initial and renewal Employment Authorization Document (EADs) from one year to two years for certain adjustment of status applicants. The goal is to significantly lessen the number of employment authorization applications filed with USCIS, allowing USCIS to shift limited resources to other priority areas.

Gibney welcomes these developments and will closely monitor their impact. We will continue to report on additional initiatives to improve and modernize the U.S. immigration system.  For additional information, please contact your designated Gibney representative or email info@gibney.com.