USCIS Releases Policy Memo on L-1 Visa Work Requirement

USCIS has released a policy memorandum clarifying the “one continuous year out of three years” L-1 requirement refers to the time before the individual’s filing.

Eligibility for L-1 status requires the following:

  • The U.S. company has a parent, subsidiary, affiliate, or branch abroad (“qualifying organization”)
  • The U.S. company is or will be doing business in the U.S. and at least one other country through a qualifying organization during the employment of the individual in L-1 status
  • The employee is seeking admission to provide service in an executive, managerial, or specialized knowledge capacity
  • The employee has worked for a qualifying organization abroad for one continuous year within the three years immediately preceding his or her admission to the U.S. in an executive, managerial, or specialized knowledge capacity

This clears up a conflict between the statute and regulations on whether the one-year requirement must be met before seeking admission to the U.S. or before filing the L-1 petition. The statute states, “an alien who, within 3 years preceding the time of his application for admission to the United States, has been employed continuously for one year . . . .” (INA Sec. 101(a)(15)(L)) This is echoed in part of the regulations at 8 CFR Sec. 214.2(l)(1)(ii)(A). However, both 8 CFR 214.2(l)(3)(iii) and 8 CFR 214.2(l)(3)(v)(B) state that the employment abroad must have occurred prior to the filing of the petition. Because of this, there has been inconsistency in approvals of petitions where the one year of employment abroad was met prior to admission to the U.S., but not necessarily prior to the filing of the L-1 petition.

The new policy also makes clear that any time spent in the U.S., while it will not break the continuous employment period, will be subtracted from the one-year requirement. This is a change in policy from precedent for the one year being met with 5 months of training in the U.S. and 7 months of employment abroad. Matter of Continental Grain Co., 14 I&N Dec. 140 (DD 1972).

The new policy memo makes it more difficult to accumulate that one year of continuous employment if the individual has been in the U.S. working for a different company before applying for an L visa or was in a status that was not sponsored by the U.S. petitioner.

The policy memo states:

  1. The usual reference point for determining the one year in three years requirement is the date the petitioner files the initial L-1 petition, not the date of admission.
  2. Time spent in the U.S. working for a qualifying organization in another employment-based nonimmigrant status results in an adjustment of the reference point back to initial date of entry in the other status. For example, if the person worked as an E-2 for the petitioner or a qualifying organization in the U.S. and filed the I-129 L-1 petition, the 3-year period would be the period prior to admission in E-2. Time spent working in the U.S. for an unassociated company does not adjust the reference point. Periods spent in the U.S. working for the qualifying organization but as a dependent or student or any status that is not sponsored by a qualifying organization does not result in an adjustment of the reference point. For example, if the person and her spouse worked for the organization abroad and the spouse was transferred as an E-2 but the person worked as an E-2 dependent, the person working as the E-2 would have the time period adjusted for a future L-1 petition, but the E-2 dependent would not.
  3. If the beneficiary takes a break in employment with, or stops working for, the qualifying organization for more than two years during the three years preceding the petition filing, then he or she cannot meet the one-year requirement. This would bar individuals who have worked for the company within the past three years – just not for the past two years.
  4. Although the continuity requirement is not broken by brief trips to the U.S. for business or pleasure, the one-year foreign employment requirement is satisfied only by the time a beneficiary spends physically outside of the U.S. working full-time. Individuals considering applying for L-1 status must track all time spent in the U.S.

USCIS has noted that these changes will ensure a real continuity of employment for individuals who are being transferred to the U.S. in L-1 status. These changes also will decrease the number of workers who may qualify as L-1 transferees.

If you have questions about how this new policy might affect your employees or your company’s strategies, please reach out to your Jackson Lewis attorney.

 

Proposed ‘Public Charge’ Rule Kicks Up Controversy

The 60-day comment period for the Administration’s new “public charge” rule just closed. There is currently no definition for “public charge” in the rule, but a public charge is understood to be an alien who depends on the government for subsistence, as demonstrated by the receipt of cash assistance for income maintenance or institutionalization for long-term care at the government’s expense. An example of public benefit having this effect is receiving Medicaid while at a nursing home.

The proposed rule actually aims to define public charge and to expand the public benefits that would render an alien a public charge. But even before public comments have been reviewed, the effects of the changes are apparent and controversial. The City of Baltimore is the first to file a lawsuit contesting the new delineation.  Baltimore is not challenging the proposed rule itself, since it has not yet been finalized. It is instead challenging changes that already have been made in the State Department’s Foreign Affairs Manual (“FAM”). These are the instructions that Consular officials use at Consulates and Embassies abroad when granting non-immigrant visas and immigrant visas, the latter of which is also known as “green cards.” Baltimore has requested the FAM changes be rescinded as being “arbitrary and capricious, procedurally infirm, and unconstitutional.”

Immigrant rights advocates have noted that under the revised FAM instructions, which go so far as to assess a sponsor’s use of public benefits, it may be more difficult for potential immigrants to overcome a public charge determination. Baltimore alleges that “the change in the State Department’s manual, along with [President Donald] Trump’s rhetoric, has already affected the city’s immigrant community” and that immigrants have been “chilled” from applying for benefits. The City notes particularly that in “the past few months, enrollment in Head Start early education programs by African immigrants has ‘virtually ceased.’” Indeed, a study presented at the American Public Health Association’s 2018 Annual Meeting and Expo showed that since Trump’s initial announcement on changes in the public charge determination, participation in the federal Supplemental Nutrition Assistance Program (SNAP, formerly known as “food stamps”) has declined by about 10% among immigrants who have been in the U.S. for less than five years.

California community clinics and agencies serving children reportedly are noticing that since the new rule was announced, immigrant parents are taking their children out of health and nutrition programs or not enrolling them at all out of fear that participation could affect their immigration status. In addition, physicians in Illinois have reported that immigrant parents are afraid to enroll in government-sponsored health insurance programs for their children for fear of jeopardizing their own status. The proposed new rule states that the use of benefits by U.S. citizen children of immigrants should not be held against the parents. But immigrant parents are afraid and confused about how that would play out. Immigrant advocates believe the new rule will end up costing the U.S. taxpayer more because the refusal of treatment and services ultimately means preventable problems will turn into larger health problems that will require more costly treatments.

New York Governor Andrew Cuomo has threatened to sue the Trump Administration if the new public charge rule is finalized primarily on account of the negative impact on health care. Other cities and states may join Baltimore in its current litigation. Meanwhile, 100 business executives have submitted a public comment highlighting the wide-ranging effect on the growth of their businesses. Dave Gilboa, CEO of Warby Parker, told the Wall Street Journal that “[i]mposing these excessive and nonsensical boundaries on individuals seeking temporary visas and green cards would drastically narrow the opportunity for brilliant talent to come to the U.S.”

Jackson Lewis will continue to follow and provide updates on the effects of the new FAM instructions, the Baltimore case, and the progress of the proposed rule.

Amendments to H-1B Visa Regulations Proposed

The Department of Homeland Security has published a much-anticipated notice of proposed rulemaking affecting the H-1B visa process. Public comments must be submitted by January 2, 2019.

DHS proposes:

  • Adding a free electronic pre-registration process; and
  • Changing the random selection process in a way that would likely benefit holders of U.S. master’s degrees.

The pre-registration process would involve the following:

  • USCIS would provide 30 days’ notice on its website of the opening of the pre-registration period
  • Pre-registration would begin no later than 14 days before April 1 of each year
  • Basic information would be required for pre-registration, including the job title, the beneficiary’s name and citizenship, and whether the beneficiary has a U.S. master’s or higher degree
  • After the random selection process takes place, notices of selection will be sent out
  • Selection notices will indicate the filing location and the filing period
  • There will be at least a 60-day post-notification filing period
  • Pre-registrations will be maintained until all available H-1B visas are used and, if necessary, the pre-registration process may be reopened
  • Unselected pre-registrations will not carry over to the next fiscal year

With the “Buy American, Hire American” Executive Order, President Donald Trump made it clear that he would like to see “the best and brightest” come to the U.S. through the H-1B process. To this end, DHS proposes to invert the current random selection process through rulemaking, without eliminating random selection altogether. According to DHS, the outcome will be an estimated 16% increase in beneficiaries accepted with a U.S. master’s (or higher) degree. This would make it more difficult for companies to hire individuals into positions that only require a bachelor’s degree.

How will this work?

Instead of first conducting the U.S. master’s degree lottery and then adding any remaining U.S. master’s degree beneficiaries into the “regular” lottery, DHS will:

  • First conduct the “regular” lottery for 65,000 visas with the master’s degree beneficiaries included,
  • Then put the remaining U.S. master’s degree beneficiaries into a lottery for the separate 20,000 U.S. master’s degree allocation

The proposed rule notes that the pre-registration process and the change in the random selection process are severable. In other words, even if DHS does not have sufficient time to institute pre-registration for the upcoming cap season, it still may change the selection process.

Jackson Lewis attorneys are available to help you strategize about how to prepare for possible changes. We will continue to provide updates as they become available.

Irish Government Opposes Restoring Right to Birthright Citizenship, Despite Popular Support

As President Donald Trump talks about ending birthright citizenship with an executive order, the Irish public is talking about restoring birthright citizenship.

Ireland ended the right to birthright citizenship in 2004 with a referendum. A proposed law would give anyone born in Ireland the right to Irish citizenship with one requirement – the individual must reside in Ireland for at least three years after birth. A recent opinion poll shows 71 percent public support in Ireland for the proposed law. Approximately 30 countries (out of close to 200), primarily in North America and South America, recognize birthright citizenship with no additional eligibility requirements.

Despite public support, the Irish government opposes the new law. People living in Northern Ireland (part of the United Kingdom) are entitled to both UK and Irish citizenship. The government fears that individuals living illegally in the UK would move to Northern Ireland, have children, and then parlay their children’s citizenship into obtaining residency in Ireland or even other EU countries post-Brexit. In other words, like Trump, the Irish government appears to fear the pull of “chain migration.”

In the U.S., birthright citizenship is based on an interpretation of the 14th Amendment to the Constitution: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.” Generally, this has been interpreted as a whole-hearted endorsement of birthright citizenship, and birthright citizenship has taken the status of a fundamental tenet in the United States. Some Republican members of Congress, however, following Trump’s lead, have questioned whether birthright citizenship applies to everyone under the Constitution. Senator Lindsay Graham (R-S.C.) is talking about introducing legislation that would limit birthright citizenship to the children of U.S. citizens and legal permanent residents. The argument for the constitutionality of such legislation is that the words “subject to the jurisdiction” in the 14th Amendment actually limit birthright citizenship.

The legislation that Graham is considering has little chance of passage at this time. But, if it were to succeed, it would shut down the so-called “birth tourism” industry in the U.S. Birth tourists are women who come to the U.S. for a “vacation” to give birth to children who will automatically receive the benefits of U.S. citizenship. Coming to the U.S. to have a child is not prohibited by law. Although some women coming to U.S. for this purpose find themselves in the hands of con-artists and scammers in less than ideal situations, many others can afford good medical care and luxurious accommodations.

U.S. May Eliminate Per-Country Caps on Employment Visas

A potentially significant bill eliminating the per-country caps on employment-based visas may become law.

H.R. 392, Fairness for High-Skilled Immigrants Act, first introduced in 2017, had 300 co-sponsors. It is now championed by outgoing Representative Kevin Yoder (R-Kan.) as an amendment to the spending package that Congress likely will pass this year.

The bill means to equalize wait times and eliminate the green card backlog mainly for Indian foreign nationals and, to a lesser extent, Chinese nationals, in about a decade. At the same time, of course, wait times for petitioners and applicants from almost all other countries would increase.

How Would This Be Implemented?

If the amendment passes, most immigrant visas would be allocated to those from India and China until an equilibrium is reached. Recognizing that shutting out everyone else would not be feasible, the bill sets out a three-year transition period during which a certain percentage of immigrant visas would be reserved for those who are not from India or China: 15% in the first year, 10% in the second year, and 10% in the third year. Assuming that the annual number of employment-based immigrant visas remains the same (140,000), the projected average wait time eventually will even out at approximately seven years.

What Does This Mean?

If the bill passes, it will change the settled expectations of many foreign nationals and the companies that employ them. Examples include the following:

  • What has been common for Indian and Chinese foreign nationals will apply to most employment-based green card applicants. Almost anyone who wants to apply for an employment-based green card will have to be in H-1B status to remain in the country, working while waiting for a green card. This likely will put even more pressure on the H-1B lottery system.
  • Individuals from countries other than India and China who are not eligible for H-1Bs (such as some L-1B employees) may no longer be able to remain in the United States long enough to get green cards.
  • While the elimination of the backlog would be good for technology companies that employ many Indian foreign nationals, other industries may suffer.
  • The healthcare industry, for example, is concerned because foreign nurses have to get green cards to work since they are not eligible for H-1B status. Hospitals have relied on the fact that most of the foreign nurses are from countries not subject to long backlogs. The same concern may apply regarding foreign physicians who can be locked out by the H-1B lottery.
  • Others, such as the National Iranian American Counsel, oppose the bill because without green cards, Iranian nationals will continue to be subject to President Donald Trump’s travel ban.
  • Recruiting and retaining foreign nationals from countries other than India and China might be harder.

Jackson Lewis will continue to report any new developments. If you have questions about how these changes will affect your workforce or your overall immigration strategy, please reach out to your Jackson Lewis attorney.

F-1 Student Visa, Optional Practical Training Risks Continue

Although there have been discussions for some time that the Trump Administration would change the rules regarding Optional Practical Training (OPT), OPT did not show up in the most recent “regulatory agenda.”

Nevertheless, the Administration has been putting limits on F-1 students in other ways. Those changes, at least in part, are responsible for a decline in foreign student enrollment at U.S. institutions.  Examples include:

Recent reports reveal that USCIS is denying change of status to H-1B petitions to students who have used more than 12 months of practical training – counting both Curricular Practical Training (CPT) and OPT. Students with these denials would have to leave the U.S. and apply for their H-1B visas abroad. Although this can be quite an inconvenience, the real fear is that the Consulate will decide that the student had accumulated “unlawful presence” (without even realizing it) while working in OPT status and thus become subject to one of the bars on admission.

It is not yet clear what the Department of State will do, but as the Cap H-1B season approaches, it is important to consider all of the possible risks. Jackson Lewis will continue to provide updates as they become available. If you have questions about how to strategize around these risks for students in OPT status, please reach out to your Jackson Lewis attorney.

DHS Issues New Guidance on Temporary Protected Status for El Salvador, Haiti, Nicaragua, Sudan

Following Judge Edward Chen’s preliminary injunction blocking the termination of TPS status for beneficiaries from El Salvador, Haiti, Nicaragua, and Sudan, the DHS has issued guidance regarding its compliance with that Order.

TPS status for beneficiaries from the four countries will continue so long as the preliminary injunction remains in effect.

According to DHS, if the injunction remains in force into March 2019, the agency will issue another notice to extend TPS-related documentation (including EADs) for another nine months. This means that TPS beneficiaries from those countries may have the opportunity to remain in the U.S. to work and continue to pursue other options for maintaining status until January 2020.

If the preliminary injunction is reversed prior to March 2019, DHS states that it will provide for an “orderly transition.” The orderly transition is defined as the later of (a) 120 days after the reversal of the preliminary injunction, or (b) the previously announced termination date. Because of the timing, this effectively means the termination dates for Haiti (July 22, 2019) and El Salvador (September 9, 2019) would remain in effect.

For the moment, however, DHS is automatically extending the EADs for certain individuals from Sudan and Nicaragua until April 2, 2019. This is particularly important because their TPS statuses were scheduled to terminate on November 2, 2018, and January 5, 2019, respectively.

Automatic extensions will not apply if the TPS designation of any individual has been finally withdrawn. Extensions also will not apply if the TPS beneficiary no longer meets the other eligibility requirements for TPS.

Jackson Lewis will continue to provide updates related to these TPS terminations. For information about the automatic extension of TPS EADs, please see our TPS Work Authorization Determination Tool and reach out to your Jackson Lewis attorney for details and specific advice.

 

Department of Homeland Security Fall 2018 Agenda Portends Big Changes for H-1B Visa, Other Programs

The Department of Homeland Security’s latest Regulatory Agenda promises some big changes, especially for the H-1B visa program.

Many of these changes have been proposed before, but have not yet made it to the rulemaking stage.

Among what to expect are the following:

  1. USCIS is planning to release a notice of proposed rulemaking to create a registration requirement for those seeking H-1B cap-subject petitions. The upside is that employers would have to file full petitions only if the case they register “wins” in the annual lottery. The downside is that it is not yet clear how USCIS will decide which cases should be accepted. In keeping with the “Buy American, Hire American” executive order and President Donald Trump’s focus on the “best and brightest,” the lottery may no longer be random. Petitions may be selected hierarchically, with individuals having the most advanced degrees and highest salaries at the top of the list. There is also the possibility that USCIS will decide how many applications to accept from any particular company, which likely will reduce the number of H-1Bs awarded to outsourcing and staffing companies.
  2. USCIS expects to finally release the notice of proposed rulemaking to eliminate H-4 employment authorization documents (EADs) in November. At that time, questions about whether those who currently have H-4 EADs will be able to continue to renew their work authorization will likely be answered. This has been a destabilizing issue for the many spouses of H-1B visa holders, primarily Indian nationals, who have been eligible for H-4 EADs since 2015. Approximately 90,000 spouses currently hold H-4 EADs.
  3. By August 2019, post-H-1B cap filings, USCIS plans to move forward with a rule (“Strengthening the H-1B Nonimmigrant Visa Classification Program”) that would enshrine new definitions of the terms “specialty occupation,” “employment,” and “employer-employee relationship.” USCIS’s definitions (or, at least, hints of them) have already been seen in guidance that has been issued and in Requests for Evidence regarding and denials of H-1B petitions.

Other expected proposed notices of rulemaking include:

  1. Updating the USCIS fee schedule (February 2019)
  2. Mandating electronic submission for all immigration benefit requests (April 2019)
  3. Limiting access to the USCIS Administrative Appeals Office (AAO) for appeals (April 2019)
  4. Eliminating concurrent filings of I-140 petitions and I-485 applications (September 2019)
  5. Updating recruitment requirements for the H-2A and H-2B programs (October 2018), and modernizing the H-2A labor certification process (December 2018)
  6. Raising investment levels and curtailing the designation of Targeting Employment Areas for the EB-5 program (November 2018)
  7. Initiating process changes for EB-5 Regional Center applications (March 2019)
  8. Increasing monitoring of the EB-5 Program (September 2019)

We will continue to keep you updated on these and other new proposals.

Brexit: An Update for Employers

As Brexit negotiations are coming to a head, companies may need to take stock of the current situation and strategize about how to maintain employment of current EU national employees and how to prepare for the post-Brexit landscape.

Jackson Lewis is a founding member of L&E Global, a worldwide alliance of premier firms specializing in counsel to employers. Our UK partner, Clyde & Co, has created a Brexit blog that companies doing business “across the pond” may find helpful. You may also find this article, Brexit – the UK’s draft immigration plans, useful to developing strategy.

As always, please be aware that this information does not constitute legal advice. If you need specific advice, please reach out to your Jackson Lewis attorney and we will be happy to make any needed referral.

Other Countries Lay Out Welcome Mat to International Entrepreneurs as U.S. Draws Back

While the Trump Administration is making it more difficult and less attractive for entrepreneurs to start their businesses in the United States (in the name of “Buy American and Hire American”), other countries are rolling out the welcome mat to entrepreneurs.

In May 2018, the Administration proposed a rule to remove President Obama’s International Entrepreneur Rule (IER). While the IER is still in effect due to litigation brought by the National Venture Capital Association, no applications have been granted under the IER. The Administration likely will eliminate the IER soon after completing review of the public comments it received.

Other countries, including the United Kingdom, China, Japan, Israel, Germany, Estonia, Australia, and New Zealand, are taking advantage of the attitude change in the U.S., offering start-up visas with eligibility requirements similar to the once-touted IER.

For instance, in Canada, founders of start-ups can become permanent residents in as little as 12 months. The key requirement is sponsorship by one of a group of pre-approved Canadian investor organizations. While the application is being reviewed, the entrepreneur may come to Canada and start working in temporary status. Mezyad Almasoud, a Kuwaiti national with a Yale University degree, thought he had “failed” when he realized he would not be able to stay in the United States to build his technology start-up. He moved his family and his business to Vancouver, where he is hiring Canadians.

The United Kingdom will launch its start-up visa in the spring of 2019. There, too, the entrepreneur must be endorsed by a university or an approved business sponsor. The United Kingdom plans to double the number of Exceptional Talent visas available in order to attract more highly skilled individuals.

Israel is offering a 24-month innovation visa that can lead to a special Expert Visa (extendable for another five years) with such perks as a $20,000 relocation bonus and Hebrew lessons.

Australia has a Venture Capital Entrepreneur process for people who have venture capital funding from members of the Australian Venture Capital Association Limited.

Finally, New Zealand offers an Entrepreneur Work Visa that can lead to residence in three years.

Same-sex couples and unmarried couples also are getting a warmer welcome in other countries, which are offering work permits to partners of skilled workers. This is happening just as the United States is cutting down on work authorization for spouses by moving toward eliminating H-4 EADs and denying visa to same-sex partners of U.N officials.

Bipartisan legislation has been introduced in Congress to create a Start-Up visa. To date, those efforts have stalled.

Jackson Lewis will continue to follow Congressional efforts and the final fate of the IER.

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