E-1/E-2 Treaty Visas Option for New Zealanders

The U.S. Ambassador to New Zealand, Scott P. Brown, has announced that eligible New Zealand nationals may apply for E-1/E-2 Treaty Investor Visas:

“We’ve listened. And as of June 10, New Zealand business owners and New Zealand citizens essential to those companies are going to be able to reside and work in the United States like never before.”

The E-1 visa is for Treaty Traders and allows a national of a treaty country (or countries that have otherwise been approved for this status) to be admitted to the U.S. to engage in international trade. An E-2 visa, for Treaty Investors, allows a national of a designated country to be admitted to the U.S. when investing a substantial amount of capital in a U.S. business. Certain employees of such a person or qualifying organization also may be eligible for this classification if they are nationals of the same country.

E-1/E-2 status for New Zealanders has been in the works for some time. On August 3, 2018, President Donald Trump signed the KIWI (“Knowledgeable Innovators and Worthy Investors”) Act that would add New Zealand to the list of 80-plus countries that may apply for E-1/E-2 status, assuming New Zealand provided reciprocal treatment for United States nationals. The idea is that this will make it easier for New Zealanders to do business in the United States, easier for United States nationals to do business in New Zealand, and will be economically advantageous for both countries.

At a time when H-1B visas can be hard to come by, joining the group of countries that have another option is particularly beneficial. E-1/E-2 nonimmigrant visas are generally open to nationals of countries that have a treaty of commerce and navigation or similar agreement with the U.S. In the case of New Zealand, however, with the KIWI Act, Congress has opened the door to New Zealand nationals.

The benefits of E-1/E-2 include:

  • E visas may be applied for directly at a U.S. embassy or consulate abroad – no USCIS petition is required.
  • If an individual is already in the U.S. in another status and does not wish to travel abroad, a change of status may be filed with USCIS. Applying at a consulate or embassy abroad, however, is usually preferred as it results in the issuance of a visa stamp, generally with a validity of five years, as contrasted to the two-year duration of USCIS approval.
  • Although the original registration for E-1 or E-2 status may require extensive documentation, a company registered at the consulate as eligible may transfer executives, managers, or specialized-knowledge professionals easily.
  • Once in the U.S., spouses of E-1/E-2 professionals can apply for work authorization.
  • E visas are nonimmigrant visas, but may be extended indefinitely (although children will age-out at 21).

While an individual may remain in the U.S. in E-1/E-2 status for as long as the person remains eligible for that status, the visa is not a “dual intent” visa. There is no direct path to a green card. Applying for permanent residence from E-1/E-2 status is possible, but it may present complicated intent or tax issues.

Jackson Lewis attorneys are available to assist you in determining whether E-1/E-2 status will achieve your immigration goals.

 

New DS-160 Form Seeks Social Media Information, Affecting Millions of Visa Applicants


Two years ago, then-Secretary of State, Rex Tillerson, proposed collecting 15 years of travel, address and employment history and 5 years of social media platforms, identifiers, phone numbers and emails from visa applicants selected for “extreme vetting.” It was predicted that this would affect only 0.5% of all visa applicants – approximately 65,000 annually. As of June 1, 2019, with the introduction of a new DS-160 Form, some of this information will be collected from all visa applicants – affecting approximately 15 million foreign nationals planning to come to the U.S.

The new DS-160 Form, the on-line form used for immigrant and non-immigrant visa applications, requires, among other things, that applicants list any of the following that they have used in the five years preceding the application:

*             Social media platforms with user names (not passwords);

*             Phone numbers;

*             Email addresses;

*             International travel and deportation status; and

*             Information on whether any family members have been involved in terrorist

activities.

The form contains a drop down menu of approximately 20 social media accounts including the very popular Facebook, Google+, Instragram, LinkedIn, Myspace, Pinterest, Twitter and Youtube. Failure to disclose might be construed as a misrepresentation and could, according to a State Department official, lead to serious consequences.

The State Department reported that the agency is “constantly working to find mechanisms to improve [its] screening processes to protect U.S. citizens, while supporting legitimate travel to the United States.”

The ACLU commented that the requirement to provide social media information will “infringe on the rights of immigrants and U.S. citizens by chilling freedom of speech and association, particularly because people will now have to wonder if what they say online will be misconstrued or misunderstood by a government official.” The new requirements could also chill the desire of highly-skilled foreign nationals to come to the United States.  Indeed, it has been reported that the U.S. no longer ranks as a top destination for such workers. Australia, Sweden, Switzerland, New Zealand and Canada are all moving up in the rankings in part because of their more attractive stances on immigration for highly skilled workers.

If you have questions on filling out the new Form DS-160, please reach out to your Jackson Lewis attorney.

 

UPDATE: House Passes Bill on DACA, Unlikely To Be Taken up by Senate

We wrote yesterday on the U.S. Supreme Court declining to expedite review of DACA, as well as the recent and current legislative activity regarding the program. Later in the day on June 4th,  the U.S. House of Representatives passed the Dream and Promise Act which would grant permanent residence status and a path to citizenship for “Dreamers” as well as for beneficiaries of the Temporary Protected Status (TPS) and Deferred Enforced Departure (DED) programs. The bill had some bi-partisan support. Because of White House opposition, however, the bill is unlikely to be taken up by the Senate in its current form.

Jackson Lewis attorneys will continue to provide updates as more information become available.

DACA Program Continues as U.S. Supreme Court Declines to Expedite Consideration of Cases

The “Dreamers” have received another reprieve from the U.S. Supreme Court.

DACA litigation has been in the news since September 2017, when then-Attorney General Jeff Sessions announced the DACA program would be terminated. In response to that announcement, multiple lawsuits were filed in federal courts in California, New York, Maryland, Texas, and the District of Columbia, resulting in multiple nationwide injunctions blocking the termination of the program. Indeed, the injunctions have forced USCIS to continue granting DACA renewals.

According to Vice President Mike Pence, the Trump Administration is looking for a way to prevent U.S. District Courts from imposing nationwide injunctions. In a speech in May, he said these injunctions are “judicial obstruction.” Absent relief from these injunctions, the Administration is attempting to expedite review of pending cases that are blocking its policies.

For instance, the Administration attempted to force the Supreme Court’s early consideration of the DACA cases in early-2018, which the Court rejected. At the end of May 2019, the government again sought to expedite the case by filing a brief urging the Court to decide whether to grant review by the end of this term, i.e., by June 24, 2019. The Administration argued, “The very existence of this pending litigation (and lingering uncertainty) continues to impede efforts to enact legislation addressing the legitimate policy concerns underlying the DACA policy.” But that argument did not prevail. On June 3, 2019, the Court rejected the Administration’s request.

The Court probably will not even consider reviewing the DACA cases until the fall and, if it grants review, a decision might not come down until sometime in 2020.

For now, the “Dreamers” can continue to renew their status, but they also will have to continue to live with the uncertainty. There is always the possibility that Congress will pass legislation that might provide a permanent solution for the “Dreamers,” but the legislative route has been bumpy. While numerous deals have been proposed regarding a DACA solution, stumbling blocks continue to appear in the form of unacceptable “quid pro quos.” Indeed, DACA was even a pawn in the most recent government shutdown.

Jackson Lewis attorneys will continue to provide updates as more information become available.

 

Bill in Congress Aimed at Protecting H-4 Employment as Program Rescission Progresses

Concerns regarding the rescission of the H-4 EAD Rule have heightened in the wake of the publication of the Department of Homeland Security’s Spring 2019 Regulatory Agenda. In response, two California congresswomen, Representatives Anna Eshoo (D-Cal.) and Zoe Lofgren (D-Cal.), reintroduced a bill to protect those work authorizations – The H-4 Employment Protection Act. Both Eshoo and Lofgren represent the Bay Area of California, a region that would be particularly hard hit by the elimination of H-4 EADs.

The proposed DHS rule rescinding H-4 EADs is still under review by the Office of Management and Budget (OMB). The deadline for completing this review is June 20, 2019. If OMB approves the proposed rule, it will be published in the Federal Register and the public Notice-and-Comment Period will begin. The comment period generally lasts 30 to 60 days. This time frame, however, could be shorter, or even eliminated, in certain situations.

L. Francis Cissna, former Director of USCIS, had previously stated, “[T]he public will be given an opportunity to provide feedback during a notice and comment period on any revisions to the regulations that DHS determines are appropriate, including revisions relating to the H-4 Rule.” But Cissna, at the request of President Donald Trump, tendered his resignation as of June 1, 2019. Cissna instituted many changes regarding legal immigration in pursuit of the President’s stated goal of protecting U.S. workers. Ken Cuccinelli, the former attorney general of Virginia, may be in line to be the next Director of USCIS. Cuccinelli has been described as an immigration hardliner. How he, or whoever succeeds Cissna, will handle the upcoming Notice-and-Comment Period is yet to be seen.

Jackson Lewis attorneys will continue to provide updates regarding the new rule that could affect approximately 100,000 spouses, their families, and their employers.

H-1B, H-4, Fees on Latest Regulatory Agenda from DHS

According to the Department of Homeland Security’s Spring 2019 Regulatory Agenda, changes to business immigration are on the way, particularly with regard to H-1B visas. It is unclear, however, when these rules will actually come to fruition.

Strengthening the H-1B Nonimmigrant Visa Classification Program

DHS wants to redefine what constitutes a “specialty occupation” and an appropriate “employer-employee” relationship. The plan is to propose regulations by August 2019. When this rule goes into effect, the change may not be noticeable because USCIS has already been using the proposed definitions in Requests for Additional Evidence that it has been issuing over the course of the past year.

H-4 EAD Rescission

The proposed H-4 EAD rescission rule had an expected publication date of May 2019. In February 2019, DHS took the first step toward publication by sending the rule to the Office of Management and Budget for review. While the proposed rule reportedly has not yet been approved by the White House Office of Information and Regulatory Affairs, DHS reportedly has received new economic analyses that must be reviewed before the proposed rule can be rolled out. Eliminating H-4 EADs for the close to 100,000 spouses who have them is expected to decrease tax revenues and lead to a drop in general economic activity that would not be balanced out by any predictable increase in job opportunities for U.S. workers.

Fees

Before the end of the summer, DHS plans to issue a rule regarding fees for the next year’s Cap H-1B pre-registration process. The pre-registration process was free under the original plan. In response to concerns that large companies would benefit most from free pre-registration, as they would be able to increase the numbers of pre-registrations that they file, DHS will propose adding a fee to the process. How large or small the fee actually is, and which companies will benefit, is yet to be seen. USCIS also plans to update (and increase) all of its filing fees within the next few months. The fee increases may be substantial, because petition and application numbers are down from previous years.

Other upcoming rules include the EB-5 Modernization Rule, an update to the Adjustment of Status process, the final elimination of the International Entrepreneur rule, and enhanced enforcement of public charge regulations. Jackson Lewis attorneys will continue to provide updates on these and others developments as they become available.

 

Insights: Pros and Cons of Registering for E-Verify

Immigration enforcement is a major focus of attention of the Trump Administration – including in the business immigration context. One measure of this interest is the increase in I-9 audits. ICE reported that worksite investigations surged in FY 2018 by “300 to 750 percent” over FY 2017. Given that, many employers are considering whether to register for E-Verify.

E-Verify is the federal web-based system that allows enrolled employers to confirm the eligibility of their employees to work in the United States based upon the presented documentation. The employer must still complete Form I-9s for each employee, even if E-verify is utilized.

Whether registering for E-Verify is right for your company will depend upon a number of factors. Below are some of the “pros and cons” to consider.

Pros

  1. Some state and federal government contractors are required to use E-Verify. The E-Verify requirement is specified in the contract. Although E-Verify is currently voluntary for most employers, some states require its use and the federal government may make it mandatory for some companies.
  2. Registered companies can offer eligible foreign student-employees in F-1 visa status an additional 24 months of optional practical training. This can be useful in recruitment and retention because it allows a company to continue to employ F-1 STEM students who do not “win” the H-1B lottery. It also allows a company to employ certain STEM students for up to 36 months without petitioning for an H-1B.
  3. Using E-Verify may help companies avoid receiving Social Security “No-Match” letters.
  4. After the initial weeks on E-Verify and the TNC process, employers generally report that it is not difficult and that results are immediate.

Cons

  1. Signing up for E-Verify allows the SSA and DHS to audit your data. E-Verify’s Monitoring and Compliance unit reviews the data every 30 days to determine if normal statistical parameters are met. If E-Verify spots issues, it will notify the appropriate government agency that an audit should be conducted. SSA, ICE, USCIS, and the IER all have MOUs (Memoranda of Understanding) with E-Verify that allows data to be shared, which leads to audits by these agencies.
  2. ICE has confirmed that E-Verify has no bearing in an I-9 audit and will not impact the outcome of an audit. In other words, the use of E-Verify by a company will not decrease the chance of an I-9 audit fine.
  3. More than one staff member in the company will have to be trained to use E-Verify and they must keep up-to-date on changes. This may be costly and time-consuming.
  4. E-Verify may generate erroneous non-confirmations of work authorization.
  5. The E-Verify system has had maintenance issues, and is periodically off-line, therefore timeliness of submissions may be affected.
  6. E-Verify is not available when the U.S. government is “shut down.” After the database is opened for use again, there is often a very short period during which users can submit data for employees hired during the shut-down, which can tax company resources.

If you have questions about whether E-Verify is right for your company, Jackson Lewis attorneys are available to assist you.

Lawsuits Against USCIS Seek Suspected New Policies for Handling H-1B Petitions

Volume “impact litigation” in the U.S. District Court for the District of Columbia may lead to details of the basis of alleged, unannounced, new USCIS policies regarding the H-1B visa program.

Attorneys are alleging that USCIS is using new policies to adjudicate H-1B petitions, without properly completing the required notice-and-comment procedures for administrative rule changes and without basis for any regulatory change. The lawsuits, through the pretrial discovery process, seek to uncover the purported policy changes or directives by which USCIS is operating.

“Impact litigation,” also known as strategic litigation, is used to effectuate change when an issue affects more than one individual. Using this strategy, ITServe Alliance, a nonprofit trade association for IT services, staffing, and consulting organizations, is challenging new USCIS policies on their substance, as well as on the manner in which they were promulgated. These policies require employers who want to hire H-1B workers to work at third-party worksites to deliver documentation proving a bona fide employer-employee relationship, as well as itineraries demonstrating definite assignments during the full period of the H-1B petition.

The H-1B RFE and denial is at an all-time high, but it is particularly high (34% – 80%) for consulting firms that place workers at third-party sites. ITServe Alliance’s lawsuit alleges that USCIS’ new policies are an “overreach.” Judge Rosemary M. Collyer, who is presiding over this and similar cases, suggested that the Administration simply does not want these workers in the country.

When individual companies file cases in federal courts challenging denials, USCIS often settles the case and rescinds the denial. While that is a good individual result, it does nothing regarding the underlying policies and future adjudications. That is where impact litigation comes in. Approximately 60 cases have been filed in the U.S. District Court for the District of Columbia challenging USCIS’ actions regarding H-1B petitions for consulting or staffing companies. The cases have all been consolidated as ITServe Alliance v. USCIS. Unlike class action cases, which often are quite prolonged, volume impact litigation does not require the group to establish that they are a proper “class” – something that would have been very difficult since each H-1B case is different.

It has been reported that Judge Collyer is contemplating ordering discovery to determine whether USCIS is treating consulting and staffing companies differently. This was an unexpected, but welcomed, development for ITServe Alliance and others interested in learning more about the inner workings of USCIS.

Jackson Lewis will continue to follow this case and provide updates as they become available.

U.S. Customs and Border Protection Begins Using Alphanumeric Format for I-94 Numbers

In response to the depletion of numeric-only numbers for Form I-94 arrival/departure records, U.S. Customs and Border Protection (CBP) began to use alphanumeric “numbers” (i.e., composed of letters and numbers) in May 2019. This change has no impact on the validity of I-94 cards and numbers already issued, which will remain valid until their expiration dates.

Since 2013, the United States has been utilizing electronic Form I-94 to keep track of foreign nationals’ U.S. entry and exit records. This initiative was an effort to streamline the entry process through automation. This also enabled travelers to access their own electronic travel records online and to help increase accuracy and transparency of records. Travelers have been able to access their electronic I-94 Arrival Record (an 11-digit numerical code) to verify immigration status or employment authorization directly through CBP’s website. Travelers also are able to access their five-year travel history to the U.S. there as well. Under the new CBP format, the first 9 digits and the 11th digit will be made up of numbers, while the 10th digit will be a letter.

The rest of the arrival process remains the same. Upon arrival in the U.S., a CBP officer will inspect the foreign national and, if entry is granted, the officer will stamp the foreign national’s travel document (usually, a passport) with the date of admission, class of admission (i.e., visa category), and the date by which the traveler has to depart the U.S. (absent any extension). If the traveler requires a paper I-94, CBP can accommodate that by a secondary inspection process (which often means a long wait and additional questioning). Travelers arriving at land borders are still processed the “old” way – paper I-94s are issued. The U.S. has requested that those who are issued (or still have) a paper I-94 surrender it to their commercial carrier or to CBP upon exiting the U.S. CBP estimated that elimination of paper I-94 records would save $15.5 million a year, as well as 20 seconds of wait time per traveler entry.

Please contact your Jackson Lewis attorney with any questions.

Trump Introduces Outlines of Immigration Reform in Advance of 2020 Campaign

President Donald Trump has introduced the broad outlines of his proposal for immigration reform. The “merit and heart system” focuses on security and establishing a more fully merit-based system for permanent residence (“green card”) status.

What do we know about the proposal so far?

In terms of security, it includes:

  • Construction of parts of the Southern Border Wall at 33 key areas to thwart drug and human trafficking
  • Further restrictions on asylum claims
  • Allowing longer detentions of immigrant families at the border

In terms of legal immigration, it includes:

  • No reduction in overall numbers of immigrants, but a change in priorities
  • Family based immigration will be reduced – only spouses and children will go to the “front of the line”
  • Merit-based immigration will be increased
  • Similar to naturalization requirements, merit-based immigration would include an English-language requirement and a civics test

According to the President, the new criteria will be “crystal clear.”  The merit-based system will focus on younger workers who can contribute to the economy for a longer period time who also possess:

  • Valuable skills
  • Job offers
  • Advanced education
  • Ability to create jobs for U.S. workers
  • Higher wages
  • Financial self-sufficiency

The security proposals are not apt to gain much Democratic support.  Moreover, the proposal does not include some items key to bi-partisan support.  There is no mention of the over 11 million undocumented individuals currently in the U.S. and there is no mention of the “Dreamers.”

Jared Kushner, White House Advisor, has worked on this proposal for months.  Whether it will morph into a bill or simply be used by Congress as it works to come to some sort agreement is yet to be seen.  Regardless of its prospects of ever becoming law, the expectation is that this proposal will be a key part of President Trump’s 2020 campaign messaging.

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