U.S. Citizenship and Immigration Services (USCIS) may require employers to file amended H-1B visa petitions when relocating employees to new locations and did not fail to follow or otherwise circumvent rulemaking requirements in doing so, the U.S. Circuit Court for the District of Columbia has ruled. ITServe Alliance Inc. v. DHS, No. 22-5074 (June 27, 2023).

The H-1B nonimmigrant visa classification is for “specialty occupation” employees working under facts, terms, and conditions of employment, as certified by the U.S. Department of Labor and approved by USCIS. Just as in other employer-employee relationships, H-1B employers sometimes may need to change some fact, term, or condition of their H-1B employees’ previously approved employment. This may include a change in work location.

In 2015, in an administrative ruling in Matter of Simeio Solutions LLC, PM-602-0120, USCIS confirmed that changes in an H-1B worker’s employment location can be a “material change” requiring employers to file amended petitions. This ruling led to increased filing fees and paperwork for employers “materially changing” their employees’ work locations.

In December 2020, information technology industry group ITServe, which represents member companies that often have needs to change employees’ work locations, filed suit challenging Matter of Simeio Solutions LLC as “procedurally defective rulemaking.” In February 2022, the U.S. District Court for the District of Columbia ruled USCIS had not run afoul of the Administrative Procedure Act’s notice and comment period in issuing its decision.

In ITServe Alliance Inc. v. DHS, the D.C. Circuit Court agreed, concluding that Matter of Simeio Solutions, LLC constitutes “an informal adjudication resting on USCIS’s interpretation of the material change regulation” and “functions like a judicial decision interpreting an agency regulation and then applying it to resolve a case or controversy.” The three-judge panel further stated the applicable regulation on “material change” allows USCIS to “monitor changing facts,” understanding that facts, terms, and conditions of employment, when modified, are subject to further review and adjudication by the agency.

The consequence for employers is that one approved H-1B petition is not necessarily sufficient to cover the full temporal period of approval if an employee’s work location changes within that time frame and amended petitions may be necessary when such material changes occur. While employers likely have been proceeding accordingly since Matter of Simeio Solutions, LLC, the D.C. Circuit’s ruling confirms the procedural soundness of USCIS’s requirements.

If you have questions as to whether an H-1B amended petition is necessary, please reach out to your Jackson Lewis attorney.

Certain foreign entrepreneurs have a new pathway available to enter the United States to develop a business concept through a start-up company. Entrepreneurs who will have a central and active role in a start-up company that has attracted private investment or government funding may benefit from the International Entrepreneur Parole (IEP) program. While complex and imperfect, the IEP program creates a remedy for certain foreign entrepreneurs who can demonstrate potential for rapid business growth and job creation.

This is the first of a series of three commentaries examining the legal basis for the IEP, reviewing the program requirements, discussing the necessary documentary evidence, and describing application procedures.

The Challenge

The current immigration selection system used in the United States was created by the Immigration Act of 1990. The provisions of that late 20th century Act often fail to serve the economic needs of the third decade of the 21st century. Immigration options for foreign professionals or entrepreneurs are extremely circumscribed by outdated quota limitations of the nonimmigrant H-1B visa category, the unavailability of temporary immigration options for many entrepreneurs, and the lengthy agency processing time currently required for most immigrant visa categories. These limitations leave foreign innovators in many cases without a visa option to enter and remain in the United States, while actively participating in the development a business concept.

The recognized need for reform of the legal immigration system is effectively precluded in the highly charged political environment resulting from illegal immigration. The IEP program was created as an executive branch initiative in the absence of legislative action.

The Response

The Immigration and Nationality Act (INA) delegates to the executive branch of the federal government a wide range of discretionary authority to implement its provisions. The Department of Homeland Security (DHS) has authority, pursuant to INA 212(d)(5), to parole foreign persons into the United States for urgent humanitarian reasons or significant public benefit.

The parole authority provided by 212(d)(5) does not confer a particular status or even a right to remain in the United States. Instead, a grant of parole is a discretionary determination by DHS that an individual’s presence in the United States will satisfy a humanitarian need or significant public benefit.

Finding a significant public benefit in the entry to the United States by foreign entrepreneurs who will be instrumental in facilitating rapid growth and job creation by a start-up company, DHS published the IEP regulations on January 17, 2017, creating a framework for granting parole to such persons. The regulation suffered a lengthy and complicated path to full implementation. On May 29, 2018, under a new presidential administration, DHS published a proposed rule to rescind the IEP. Subsequently, on May 11, 2021, under the current presidential administration, DHS withdrew its proposed rescission of the IEP regulation, clearing the way for its full implementation.

The federal agency within DHS with responsibility for adjudicating applications for benefits is U.S. Citizenship and Immigration Services (USCIS). On March 10, 2023, USCIS published new chapters in its Policy Manual with detailed criteria, required evidence, and procedures used to seek eligibility for IEP.

The regulations promulgated by DHS and the policy for their implementation outlined in the USCIS Policy Manual combine to create a complex set of rules with a significant amount of documentary evidence required for a successful application. Together, these rules limit the number of international entrepreneurs who may benefit from the program. Given the discretionary nature of permission to enter and remain in the United States based on parole authority and the documentary requirements of the IEP program, caution with its use is appropriate. For those who satisfy the requirements, however, the IEP program creates a new, viable option to enter the United State to develop a business concept.

Requirements for International Entrepreneur Parole (IEP)

There are four groups of criteria set forth in the regulations creating the IEP program. These requirements apply to the entrepreneur, the start-up enterprise, the investment sources, and the need to demonstrate a significant public benefit.

Entrepreneur

Foreign entrepreneurs seeking parole to develop a business concept in the United States must be able to demonstrate they will have a central and active role in the start-up company. An entrepreneur must be well-positioned to substantially assist the growth and success of the start-up. The individual must demonstrate knowledge, skills, education, or experience that is key to developing the business concept.

The entrepreneur must have a substantial ownership interest in the start-up company. In this context, this means that the entrepreneur must hold a minimum 10% ownership interest at the time that USCIS adjudicates the application for IEP. After USCIS approves the application, the ownership interest can diminish to less than 10% during an initial period of 30 months. However, the entrepreneur’s ownership interest in the start-up cannot fall below 5%.

Up to three international entrepreneur owners may participate in a qualifying start-up. Each entrepreneur would be required to hold a minimum 10% ownership interest in the entity at the time USCIS adjudicates each IEP application.

An international entrepreneur can be both an owner and an employee of the start-up company. Stated differently, the entrepreneur can perform a central and active role by providing executive strategic vision and leadership, through technological expertise, or both.

Start-Up Entity

A qualifying start-up company can be organized in any form of business entity, such as a corporation or limited liability company. The start-up must be conducting business in United States and may engage in virtually any legal activity, except trading in securities or other financial instruments.

To qualify as a start-up, the company cannot be formed more than five years before the IEP application is filed with USCIS. The start-up must be able to demonstrate potential for rapid growth and job creation. Importantly, the start-up must have received qualifying investment funds within the 18-month period before the parole application is filed. The minimum investment amount depends on the source of the investment funds.

Investment Source

Investment funds in a start-up enterprise that will support a successful IEP application must be derived from specific sources. There are three possibilities. These include certain individual investors, government awards or grants, or a combination of either individual or government funds plus compelling evidence of substantial potential for rapid growth.

                            Individual Investors

Qualifying investors include U.S. citizens, permanent residents, or a company in the United States majority-owned by U.S. citizens or permanent residents. However, citizenship or resident status, alone, is insufficient to demonstrate that an individual or group of individuals are qualifying investors to support an IEP application.

Qualifying investors must be able to demonstrate that they have regularly made investments in start-up enterprises during the five-year period before the application for IEP is filed. Regulations governing the IEP process mandate certain minimum investments in start-ups must have been made previously by the investor.

The required amount is adjusted at three-year intervals based on the Consumer Price Index (CPI). As a result, the investment minimums described throughout the IEP regulations are not expressed as round numbers. For example, to qualify as an investor, an individual or company currently must be able to demonstrate previous investments equal to or greater than $633,952.00. This minimum investment amount must have included at least two start-ups each of which created at least five jobs or generated at least $528,293.00 in revenue with average annualized growth equal to or greater than 20%.

The minimum individual investment in a start-up company is $264,147.00. These funds must be received by the start-up within the 18-month period before the application for IEP is filed.

Certain investment funds do not qualify to be counted toward the required IEP minimum. These include funds contributed by the entrepreneur or the entrepreneur’s family, foreign source funds, funds from certain individuals or companies that engaged in violations of securities laws, or unlawfully gained funds.

The exclusion of funds contributed by a foreign entrepreneur from the minimum investment requirement does not preclude payment of such funds into the start-up company. Indeed, the entrepreneur is required to hold a minimum 10% ownership in the company. However, the IEP program is structured to value the entrepreneurs’ expertise more than their cash. The entrepreneur can contribute intellectual property or technical skill in exchange for an ownership interest.

                            Government Awards or Grants

A start-up company may receive funds from certain government sources, rather than from individuals. Qualifying funds may come from federal, state, or local government. Funds dedicated to economic development, research, or job creation may qualify as investment funds for an IEP start-up.

The minimum government award or grant needed is $105,659.00. As with individual investments, funds must be received within the 18-month period before an IEP application is filed.

                            Alternative Funding Option

It is possible for an international entrepreneur to be excused from the minimum funding requirements if funds received from qualifying investors or government sources only partially satisfy the usual criteria. To qualify for this exception, the entrepreneur must provide other reliable and compelling evidence that the start-up has substantial potential for rapid growth and job creation.

Significant Public Benefit

There is no statutory or regulatory definition of circumstances establishing a significant public benefit. Instead, DHS makes discretionary determinations on a case-by-case basis in view of the totality of the circumstances surrounding a given request for parole. The significance of this completely discretionary, vaguely defined requirement will be further explored in the next part of this series addressing documents to be assembled to support an IEP application.

Please contact a Jackson Lewis attorney if you have any questions.

Years ago, people employed in manufacturing were seen as bit players in an industrial machine, but no longer. Many manufacturing jobs today require high-level STEM (science, technology, engineering, and math) skills. 

Despite encouraging U.S. students, veterans, and those in underrepresented communities to pursue careers in manufacturing, not enough prospective employees are available. 

Manufacturers have their eyes on foreign national students and others from abroad who have the necessary skills notwithstanding the difficulties of this route. Indeed, it is becoming more difficult because some U.S. immigration law is as outmoded as the idea that employees in manufacturing are easily found in the U.S. labor pool. Any manufacturer looking to employ foreign talent must understand the H-1B visa and its alternatives.

Please see our full publication here.

On June 13, 2023, the Department of Homeland (DHS) announced that it would extend Temporary Protected Status (TPS) for 18 months for current beneficiaries from El Salvador, Honduras, Nepal and Nicaragua.

Soon-to-be-published Federal Register notices will explain the eligibility criteria, timelines, and procedures necessary for current beneficiaries to re-register for TPS. Indications are that individuals in TPS will need to re-register for TPS in order to be eligible for the extensions. No action should be taken by employers or employees until those notices are available. In conjunction with these re-registrations, it appears that Employment Authorization Documents (EADs) will be automatically extended.  

These four countries have been subject to TPS extensions based upon pending litigation.

Secretary of Homeland Security Alejandro N. Mayorkas stated:

Through the extension of Temporary Protected Status, we are able to offer continued safety and protection to current beneficiaries who are nationals of El Salvador, Honduras, Nepal, and Nicaragua who are already present in the United States and cannot return because of the impacts of environmental disasters . . . .

El Salvador

TPS will be extended until March 9, 2025. Only current beneficiaries who have continuously resided in the United States since February 13, 2001, will be able to re-register.

Honduras

TPS will be extended until July 5, 2025. Only current beneficiaries who have continuously resided in the United States since December 30, 1998, will be eligible to re-register.

Nepal

TPS will be extended until June 24, 2025. Only current beneficiaries who have continuously resided in the United States since June 24, 2015, will be eligible to re-register.

Nicaragua

TPS will be extended until July 5, 2025. Only current beneficiaries who have continuously resided in the United States since December 30, 1998, will be eligible to re-register.

You can find further information about TPS work authorization for all covered countries by using our TPS tool.

If you have any questions about TPS work authorization and how to complete Forms I-9 Employment Eligibility Verification or make E-Verify submissions, Jackson Lewis attorneys are available to assist.

Jackson Lewis will provide updates as they become available.

An alliance of U.S. technical workers has petitioned the U.S. Supreme Court to find the OPT and STEM OPT programs invalid.

Since 2014, WashTech has been challenging the validity of OPT and STEM OPT through litigation. The alliance’s major concern is the allegation that the programs harm U.S. workers. Questions about the validity of these programs seemed to end in October 2022, when the U.S. Court of Appeals for the D.C. Circuit held the programs were valid. That was not the end of the uncertainty. In May 2023, WashTech sought certiorari in the U.S. Supreme Court. A number of amicus briefs have been filed in support of WashTech, including one from several Republican Senators – headed on the brief by Senator Ted Cruz of Texas.

Senator Cruz argues that the Obama-era expansion of OPT is contrary to the limits in the Immigration and Nationality Act (INA) on temporary employment visas, that F-1 visas are valid only for individuals who are bona fide students, and that the ruling below actually undermines other provisions of the INA regarding maintenance of status.

STEM industries continue to struggle to find enough highly skilled workers to fill positions. Recognizing the importance of STEM to the U.S. economy, the Biden administration has made policy changes to expand opportunities for STEM graduates.

Jackson Lewis attorneys will provide updates as they become available.

As demand for talent surges in the fast-growing life sciences industry, U.S. employers continue to face challenges in their search for immigration options to retain their high-skilled foreign workers. Please see our full publication here.

The Department of State has delayed the effective date of the increase in consular fees from May 30, 2023, to June 17, 2023 (to provide a 60-day delay after the final rule was received by Congress).

The most relevant fee increases remain:

Visa TypeCurrent FeeRevised Fee
Non-petition-based nonimmigrant visas: B/1-B/2, F, M and J$160$185 ($25 increase)
Petition-based nonimmigrant visas: H, L, O, P, Q, and R$190$205 ($15 increase)
E nonimmigrant visas$205$315 ($110 increase)

Jackson Lewis attorney are available to assist with any questions or concerns about the new fees, consular processing, or the submission of visa applications at consulates abroad.

With the end of the COVID-19 National Emergency in the United States, the Student and Exchange Visitor Program (SEVP) has reinstated its preexisting policy regarding online classes.

Accordingly, for the 2023-24 academic year (starting fall 2023), students will have to comply with the SEVP’s pre-COVID-19 restrictions. Students will be able to complete the 2022-23 academic year under the COVID-19 flexibilities – including through any summer session.

For F-1 students, per 8 CFR 214.2(f)(6)(i)(G), this means:

No more than the equivalent of one class or three credits per session, term, semester, trimester, or quarter may be counted toward the full course of study requirement if the class is taken on-line or through distance education and does not require the student’s physical attendance for classes, examination or other purposes integral to completion of the class …. If the F-1 student’s course of study is in a language study program, no on-line or distance education classes may be considered to count toward a student’s full course of study requirement.

For M-1 students, per 8 CFR 214.2(m)(9)(v), this means:

No on-line or distance education classes may be considered to count toward an M-1 student’s full course of study requirement if such classes do not require the student’s physical attendance for classes, examination or other purposes integral to completion of the class.

The SEVP always intended its COVID-19 flexibilities to be temporary measures meant to allow students to continue their studies with as little disruption as possible during a time of significant and changing travel restrictions, as well as substantial shifts in teaching methods.

This is just one of a number of COVID-19 flexibilities and restrictions that have terminated with the end of COVID-19 National Emergency, including I-9 flexibility and COVID-19 travel restrictions.

Jackson Lewis attorneys are available to assist with any questions regarding the termination of any and all COVID-19 flexibilities.

Beginning on June 1, 2023, filers submitting PERM Applications for Permanent Employment Certification must submit the revised ETA-9089 in the Foreign Labor Application Gateway (FLAG) system, the U.S. Department of Labor’s (DOL) Office of Foreign Labor Certification (OFLC) has announced.

A U.S. employer hiring a foreign worker and petitioning for that worker to be eligible for lawful permanent resident status must use Form ETA-9089. OFLC will not accept the previous version of Form ETA-9089 after May 31, 2023.

DOL is seeking to streamline the labor certification process with its revised ETA-9089. Filers will be required to enter the Prevailing Wage Determination number, for example, so that information from the prevailing wage can be automatically populated into the ETA 9089.

Problems already have been raised with pre-populating forms, including the inability of counsel to file an ETA-9089 on behalf of a client if the underlying prevailing wage (ETA 9141) had been filed by different counsel. Pre-population also limits the ability to properly describe the worksites. This is particularly important these days given that telecommuting and hybrid work have become ubiquitous. DOL has not indicated whether it intends to address this and other issues before June 1.

Changes observed on the revised form include:

  • The new form asks for the number of employees on payroll in the area of intended employment (the current form asks for total number of employees).
  • The new form includes a question regarding dual representation – Has the employer contracted with an agent or attorney that also represents the sponsored foreign worker?
  • The new form asks for type of worksite location: whether employer’s business premises; employer’s private household; or employee’s private residence.
  • For all worksite locations, the new form asks for the MSA/OES area code and title.
  • The new form reinstates the Kellogg language and asks if employee qualifies for the job opportunity by the virtue of the employer’s alternative requirements. If so, the form asks if the employer is willing to accept any suitable combination of education, training, and experience.

Finally, the new form requires filers to complete an additional appendix and to provide a business necessity justification when affirmatively answering the following:

  • Whether the job opportunity requires the worker to live on the employer’s premises.
  • Whether the job opportunity involves a combination of occupations.
  • Whether proficiency in a foreign language is required or preferred to perform the job duties.
  • Whether the job requirements exceed the SVP level assigned to the occupation as shown in the O*NET Job Zones.
  • Whether the employer used a credentialing service to qualify the foreign worker’s education or experience requirements.
  • Whether the employer received payment of any kind for the submission of this application.
  • Whether the employer had a layoff in the occupation involved in the application or in a related occupation within the six months immediately preceding the filing of the application in the area of intended employment.

Previously, DOL would raise issues surrounding these questions in a post-filing audit, if at all. Under the revised ETA-9089, employers must provide a justification at the time of filing for any of the above issues to which they are required to answer “yes.” Many employers may be answering in the affirmative to the question on “whether the job requirements exceed the SVP level assigned to the occupation as shown in the O*NET Job Zones.” Employers commonly require a higher-level degree or more years of experience than what is considered “normal” by DOL. Thus, a large majority of filings will require including a business necessity justification. Employers should be prepared to work closely with their immigration attorneys to navigate the complexities surrounding the revised ETA-9089.

Jackson Lewis attorneys are closely monitoring PERM-related issues. If you have any specific questions regarding these developments, please reach out to your Jackson Lewis attorney.

As of July 1, 2023, all private employers in Florida with 25 or more employees will be required to use E-Verify, the federal government’s database for verifying work authorization. Enforcement of this new E-Verify requirement will begin one year after enactment on July 1, 2024.

These employers also must:

  • Certify E-Verify participation on the company’s first state tax service provider report each year; and
  • Retain proof of the E-Verify verification for at least three years from the date of hire.

Employee leasing companies will be responsible for E-Verify verification, unless the responsibility is transferred to the client company by agreement.

Employers should expect random audits as well as enforcement based upon complaints. Initially employers will have 30 days to cure any noncompliance. Multiple violations within a 24-month period will lead to fines and suspensions.

E-Verify is not new to Florida employers. The Florida law in place since 2021 already required all private employers to use E-Verify or require documentation in accordance with Form I-9, Employment Eligibility Verification, from new hires. Further, most public contractors were subject to E-Verify.

The new E-Verify law is part of a larger, sweeping immigration bill that, among other things:

  • Invalidates out-of-state driver’s licenses issued to people without legal status in the United States;
  • Requires certain hospitals to collect patient immigration status and provide quarterly reports; and
  • Penalizes through business license suspensions and fines the employment of unauthorized workers. Enrollment in E-Verify, however, creates a rebuttable presumption that the employer has not violated the state law that prohibits the employment of unauthorized workers. Employers who use only the Form I-9 process can establish an affirmative defense to the same.

Private employers in Florida with 25 or more employees or those who plan to bid on public contracts should be prepared to comply with the new law by updating their onboarding and new hire practices and registering with E-Verify. It also will be important to train at least one staff member on how to use E-Verify if the employer has not used the system in the past.

Using E-Verify does not mean that employers do not have an obligation to complete I-9 forms for each new hire. Form I-9 employment eligibility verification is and continues to be an independent requirement under federal law.

Using E-Verify allows the Social Security Agency and the Department of Homeland Security to more easily audit a company’s data to determine if normal statistical parameters are met. But, one particular benefit of using E-Verify is that the employer can offer up to two years of STEM OPT to trainees. This can be quite beneficial to employers and foreign students, especially because H-1B visas can be hard to come by.

Jackson Lewis attorneys are available to assist employers in setting up appropriate employment verification policies, conducting internal compliance audits, and training staff.