Tag: Immigration

July 22, 2018

Ellen Poreda and Stephen Maltby Co-Author Chapter on U.S. Immigration

Immigration Partners Ellen Poreda and Stephen Maltby co-authored the United States chapter of The Corporate Immigration Review.

The chapter provides an introduction to the U.S. immigration framework including legislation and policy, international treaty obligations, employer sponsorships and visas for investors, skilled migrants and entreprenuers. The chapter also includes a year in review.

The Corporate Immigration Review is a guide summarizing key immigration issues from some of the world’s leading immigration lawyers.

View the full chapter here.

 
June 29, 2018

Supreme Court Upholds President’s Travel Ban

On June 26, 2018, the Supreme Court upheld the Trump Administration’s ban restricting nonimmigrant and immigrant entry for certain foreign nationals who are citizens or nationals of seven countries: Libya, North Korea, Syria, Venezuela, Yemen, Iran and Somalia. The decision lifts the temporary injunctions issued by the lower courts, and remands the cases for hearing on the merits subject to the Supreme Court’s interpretation of the Constitution and immigration laws. Key elements of the majority’s decision include the following:

  • The President has lawfully exercised the broad discretion granted to him by Congress to suspend the entry of aliens to the United States for purposes of national security.
  • Plaintiffs have not demonstrated a likelihood of success on the merits of their claim that the
  • Proclamation violates the Establishment Clause (which generally prohibits the government from discriminating on the grounds of religion).

For additional information on the Supreme Court decision, the Presidential Proclamation and designated countries, please see links below:

Please consult with immigration counsel for legal advice. Individuals concerned about the impact of travel restrictions should consult with an attorney before making plans to travel to or depart from the United States or attempting to enter/apply for a visa to enter the U.S.

Gibney will continue to monitor events and how these new guidelines will be implemented at the border and at Consulates abroad. For additional information, please visit Gibney’s Immigration Advisory and FAQs.

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

Creative Solutions

Challenge

U.S. Citizenship and Immigration Services (USCIS) allots a set number of H-1B visas annually. Our client in the health care industry identified a highly skilled foreign national candidate for a critical business position, but was unable to employ the candidate for several months due to the annual limit on H-1B visas for cap-subject (for-profit) companies. This included the period between when the visa petition could be filed (April) and when it would take it effect (October).

Solution

Working closely with the company and the candidate, we leveraged the candidate’s H-1B status with a non-profit institution that was exempt from the visa cap. Our attorneys were mindful of the often overlooked USCIS employment portability provisions. These provisions allow a cap-exempt H-1B worker to begin employment with a cap-subject employer upon filing of the new petition, instead of waiting for approval and the effective validity date.  We structured the filing so that the candidate could begin employment with our client six months earlier than anticipated. This also required ensuring and documenting that certain preconditions were met, including obtaining the required Labor Condition Application to ensure full compliance with USCIS and Department of Labor regulations during all periods of employment.

We have assisted other cap-subject (for profit) clients in navigating the H-1B cap in other creative ways. We work with our clients to understand and develop their relationships with cap-exempt institutions, so that when they identify a foreign national candidate who they are unable to onboard due to the annual H-1B cap, we can explore opportunities for the candidate to work part-time at the cap-exempt institution. This provides cap-subject clients an opportunity to leverage the cap-exempt petition and sponsor the foreign national for concurrent H-1B employment.

Strategic Partnering

Challenge

When the Executive Orders restricting travel were released, our global life sciences client was concerned about the ability of its employees to travel internationally to further its ground-breaking research initiatives. We immediately assembled our team to assess the legal implications of the ban and identify and counsel impacted foreign nationals. We developed a corporate action plan consistent with the message our client wished to convey to its employees.

Solution

Although the population directly impacted by the travel ban was relatively discreet, we recognized that the Executive Orders caused significant concern among the foreign national population at-large. The company’s executives, managers and HR and global mobility professionals were also concerned about the impact on business travel and the ability to attract and retain foreign talent.

We quickly launched a company-wide, global webinar to address employees and engage company stakeholders including leaders, global mobility, travel and security personnel and advocacy partners, to advise on who could travel and what to expect. We also addressed policies on carrying company laptops and equipment and what to expect at U.S. consulates abroad and at immigration inspection upon arrival in the U.S. We supplemented this webinar with ongoing legal updates and travel advisories. Armed with this information and secure in the support from the legal team and the company, the employees were able to resume focus on their important work.

June 8, 2018

Stephen Maltby and David Johnson Co-author Article on Doing Business in the U.S.

Immigration Partners Stephen Maltby and David Johnson co-authored an article in the Trade and Investment Guide to the US for BrtishAmerican Business. The publication was launched at the BABC Conference in Birmingham, United Kingdom on June 6.

The Annual Transatlantic Business Conference brings together 300 Senior Executives throughout the U.S. and U.K. for a 2-day program of high-level business discussions and networking with business executives actively involved in transatlantic business.

The article addressed key immigration issues for foreign businesses looking to establish or grow their presence in the United States, including common nonimmigrant visa categories and business planning best practices.

May 30, 2018

Zarina Syed Speaks on H-1B Specialty Workers

Zarina Syed will speak at the 2018 AILA Annual Conference on Immigration Law “Building Bridges and Standing for Justice” in San Francisco from June 13 – 16. Her presentation is titled “Intro to H-1B Specialty Workers.” The panel will provide a basic overview of the complexities of the H-1B visa category and how the process works, and will identify best practices for avoiding common problems.

Topics include:

  • Does the Foreign National Have a “Specialty Occupation”?
  • Does the Foreign National Qualify? Education and Experience
  • Is the Employer Offering and (Willing to Pay) the Prevailing Wage?
  • Is There an H-1B Visa Number Available?
  • Mechanics of Filing: Labor Condition Application/Form I-129
  • Evidence, RFEs, and Recordkeeping

For more information or to register, visit: http://www.aila.org/conferences/in-person/annual.

May 30, 2018

David Johnson Speaks on Emerging Business Issues

David Johnson spoke at a joint presentation with Innovation Norway and Nordic Innovation House. David discussed key legal issues for Nordic companies to consider when establishing a presence in the United States. Topics included corporate entity formation and tax considerations and visa and immigration matters. David and Stephen are attorneys in Gibney’s Emerging Business Group, focusing on providing comprehensive legal services to foreign companies looking to expand in the U.S.

May 15, 2018

FY 2019 H-1B Cap Random Selection Process Complete

On May 15, 2018, United States Citizenship and Immigration Services (USCIS) announced that it completed the computer-generated random lottery selection process for cap-subject H-1B petitions filed for Fiscal Year (FY) 2019 (October 1, 2018 to September 30, 2019).

The H-1B Cap Lottery Process
USCIS received 190,098 new H-1B petitions for FY2019, exceeding the 65,000 visas allocated under the regular statutory cap for Bachelor’s degree holders and the additional 20,000 visas available under the advanced-degree exemption for U.S. Master’s degree holders. Last year, USCIS received over 199,000 H-1B petitions during the FY2018 H-1B cap filing period. USCIS conducted the lottery selection process for H-1B visa petitions submitted seeking the advanced-degree exemption (U.S. Master’s Cap) first. All unselected U.S. Master’s Cap petitions were then included in the second lottery selection process conducted for petitions filed under the regular Bachelor’s degree statutory cap.

What Employers Can Expect
As previously announced, USCIS has suspended premium processing for all H-1B cap-subject petitions. All selected petitions will be processed under the regular processing timeline and petitioners may not receive notice of selection for several more weeks. Any petitions that are not selected under the FY2019 cap will be rejected and returned by USCIS with the filing fees.

Gibney will work with any impacted clients to explore alternatives and options for employees who have not been able to obtain an H-1B visa number under the FY2019 cap.

Cap-Exempt Petitions
As a reminder, USCIS will continue to accept and process H-1B petitions that are cap-exempt. These include filings for extensions, amended petitions, changes of employer, concurrent employment for existing H-1B workers, and petitions filed by organizations that are cap-exempt. At this time, premium processing remains in place for H-1B petitions that are cap-exempt.

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

May 1, 2018

Chambers USA 2018 Recognizes Gibney’s Immigration Group

Gibney is pleased to announce that the 2018 edition of Chambers USA has recognized the Immigration Practice.

The Immigration Group was recognized for delivering both US and global immigration solutions. Chambers also noted that the firm “Offers an interdisciplinary approach to its immigration services, collaborating with other departments within the firm on issues such as employment, tax and social security.”

Stephen Malby, Head of the Immigration Group, was also recognized as a Leader in the Field of Immigration. His practice includes advising multinational financial services companies on creating and implementing immigration programs.

Chambers USA ranks leading firms and lawyers in a range of practice areas throughout America. Chambers conducts in-depth interviews with lawyers and their clients in the selection process.

April 13, 2018

FY2019 H-1B Cap Random Lottery Selection Process Complete

On April 12, 2018, United States Citizenship and Immigration Services (USCIS) announced that it completed the computer-generated random lottery selection process for cap-subject H-1B petitions filed for Fiscal Year (FY) 2019 (October 1, 2018 to September 30, 2019).

The H-1B Cap Lottery Process
USCIS received 190,098 new H-1B petitions for FY2019, exceeding the 65,000 visas allocated under the regular statutory cap for Bachelor’s degree holders and the additional 20,000 visas available under the advanced-degree exemption for U.S. Master’s degree holders. Last year, USCIS received 199,000 H-1B petitions during the FY2018 H-1B cap filing period. USCIS first conducted the lottery selection process for H-1B visa petitions submitted seeking the advanced-degree exemption (U.S. Master’s Cap). All unselected U.S. Master’s Cap petitions were then included in the second lottery selection process conducted for petitions filed under the regular Bachelor’s degree statutory cap.

What Employers Can Expect
As previously announced, USCIS has suspended premium processing for all H-1B cap-subject petitions. All selected petitions will be processed under the regular processing timeline and petitioners may not receive notice of selection for several more weeks. Any petitions that are not selected under the FY2019 cap will be rejected and returned by USCIS with the filing fees.

Gibney will work with any impacted clients to explore alternatives and options for employees who have not been able to obtain an H-1B visa number under the FY2019 cap.

Cap-Exempt Petitions
As a reminder, USCIS will continue to accept and process H-1B petitions that are cap-exempt. These include filings for extensions, amended petitions, changes of employer, concurrent employment for existing H-1B workers, and petitions filed by organizations that are cap-exempt.

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