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Additional restrictions on entry into the U.S. may be expected soon. Initial indications are that the Administration is considering barring H-1B, H-2B, L-1, and J-1 status among other non-immigrant visa categories.

On April 22, 2020, President Donald Trump issued the “Proclamation Suspending Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following COVID-19 Outbreak.”

Business and advocacy groups continue to argue that these measures will harm, rather than help, the economy. Like all of the other COVID-related restrictions, indications are that there will be a number of exceptions, including exceptions for healthcare workers and those involved in the food supply chain. However, it is unclear how the exceptions would be implemented.

Jackson Lewis attorneys will continue to follow this issue and provide updates as soon as they become available. In the meantime, if you have employees who are abroad with currently valid non-immigrant visas, consider bringing them back to the United States sooner rather than later. Please contact a Jackson Lewis attorney with any questions.

Online FY 2021 Diversity Lottery registration began on Wednesday, October 2, 2019 at noon (EDT) and ends on Tuesday, November 5, 2019 at noon (EDT).  This year, 55,000 Diversity Visas (DVs) will be available.  The Diversity Lottery provides visas to people from countries with historically low rates of immigration to the U.S.

There is no cost to register but individuals may not submit more than one application.  Doing so will lead to disqualification.  Eligibility requirements are set out on the Diversity Lottery website.

This year, individuals from the following countries are not eligible because they do not have historically low rates of immigration to the U.S.:

Bangladesh, Brazil, Canada, China (mainland-born), Colombia, Dominican Republic, El Salvador, Guatemala, Haiti, India, Jamaica, Mexico, Nigeria, Pakistan, Philippines, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam.

Persons born in Hong Kong SAR, Macau SAR, and Taiwan are eligible.

Eligible individuals may apply at www.dvlottery.state.gov.

USCIS has announced that the 2020 Diversity Lottery will open for registration at noon EST on October 3, 2018 and run until noon EST on November 6, 2018.  Fifty thousand green cards will be available.

Eligibility requirements are set out in the Federal Register. This year, individuals from the following countries are not eligible:  Bangladesh, Brazil, Canada, China (mainland-born), Colombia, Dominican Republic, El Salvador, Haiti, India, Jamaica, Mexico, Nigeria, Pakistan, Peru, Philippines, South Korea, UK (except Northern Ireland) and its dependent territories, and Vietnam.

Eligible individuals may apply at dvlottery.state.gov.

Travelling to another country for medical procedures, or medical tourism, is a growth industry both as an export and an import. U.S. citizens may travel for medical treatments that are less expensive and patients with means come to the U.S. for high-quality services that may not be available abroad. Paying full cost for the services provides a healthy stream of income for some U.S. healthcare facilities.

But high-quality medical treatment is not the only attraction for a particular type of medical tourist. As one of a few countries that grants citizenship to any person born on American soil, a cottage industry has developed around birth tourism. Pregnant women by the thousands from countries that includes China, Taiwan, Saudi Arabia, South Korea, Nigeria, Turkey, Russia, Brazil, and Mexico come to the U.S. every year to give birth to U.S. citizens.

Although President Donald Trump has railed against “anchor babies,” there is no law that prohibits foreign nationals from coming to the U.S. to give birth, although many end up committing immigration fraud by misrepresenting the purpose of their visits to gain entry or obtain an appropriate visa.

Some who come to the U.S. to give birth find themselves in less than ideal situations (in terms of housing and medical care) and may even be putting their babies at medical risk. But, for the wealthy among them, birth tourism can be a luxurious semi-vacation and an investment in the future for their children and their families. Spending up to $80,000 for birth tourism packages advertised online, these mothers-in-waiting also visit shopping centers and restaurants and contribute to the economy in the areas where they congregate, particularly in California, New York, and Florida.

U.S. officials, however, are cracking down on the birth tourism industry for tax fraud, contractual breaches, immigration fraud (helping birth tourists get visas under false pretenses), and even zoning violations. ICE officials have raided “birth hotels” in California and has been reported that at Los Angeles International Airport, CBP has been tightening security particularly for pregnant Chinese women who are trying to enter the country.

One of the biggest advantages of having a U.S. citizen child is that once that child reaches the age of 21, he or she could sponsor for a Green Card the parents who “gave” the child U.S. citizenship in the first place. That family unity benefit, called “chain migration” by Trump, is another one of the immigration programs that Trump would like to eliminate.

 

Registration for the Department of State’s Diversity Lottery will be opened from noon EDT on October 3, 2017, to noon EDT on November 7, 2017.

This program makes 50,000 immigrant visas available to individuals from countries with low rates of immigration to the U.S. The lottery registration and application process is conducted completely online and the eligibility requirements are minimal. There is no fee to register for the lottery. Random selection of qualified lottery applications will begin on May 1, 2018.

Eligible individuals must have:

  • At least a high school education or its equivalent; or
  • Two years of work experience within the past five years in an occupation that requires at least two years of training or experience to perform.

Individuals cannot apply if they were born in any of the following countries:

  • Bangladesh
  • Brazil
  • Canada
  • China, mainland-born (those born in Hong Kong SAR, Macau SAR, and Taiwan are eligible)
  • Colombia
  • Dominican Republic
  • El Salvador
  • Haiti
  • India
  • Jamaica
  • Mexico
  • Nigeria
  • Pakistan
  • Peru
  • Philippines
  • South Korea
  • United Kingdom (except Northern Ireland) and its dependent territories
  • Vietnam

These countries are not eligible because more than 50,000 natives from those countries have emigrated to the U.S. in the past five years.

If you were not born in a qualifying country, you might still be eligible if:

  • Your spouse was born in an eligible country
  • Neither of your parents was born or legally resident in the country of your birth at the time of your birth, in which case you could claim eligibility based upon one of your parents’ countries of birth

Full details on how to apply to the Diversity Lottery (DV-2019) can be found on the Department of State website, which includes Frequently Asked Questions: https://travel.state.gov/content/visas/en/immigrate/diversity-visa/instructions.html

President Donald Trump has said he wants to eliminate the diversity lottery and he supports the RAISE Act. The Act would eliminate the program. Nevertheless, for this year, the program remains intact.

The U.S. Department of State has announced that applications for the upcoming Diversity Visa (DV-2018) Lottery will be accepted electronically between noon EDT, October 4, 2016, and noon EDT, November 7, 2016.

The Diversity Immigrant Visa Lottery is administered annually by the Department of State and provides up to 55,000 Diversity Visas each fiscal year to persons from countries with low rates of immigration to the United States. For fiscal year 2018, 50,000 Diversity Visas will be available.

Persons seeking to apply must register electronically during the registration period. Paper entries and mail-in requests for Diversity Visa Lottery registration are not accepted. There is no registration fee for the DV Lottery. Applicants will be able to check if their entries have been selected from May 2, 2017, through September 30, 2018.

For DV-2018, nationals of the following 18 countries are not eligible to apply because they sent a total of more than 50,000 immigrants to the U.S. in the previous five years: Bangladesh, Brazil, Canada, China (mainland-born), Colombia, Dominican Republic, El Salvador, Haiti, India, Jamaica, Mexico, Nigeria, Pakistan, Peru, Philippines, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam. Individuals born in Hong Kong SAR, Macau SAR, and Taiwan are eligible. Ecuador has been added to the DV-2018 list of eligible countries.

For more information on how to apply electronically for the DV-2018 lottery, please contact the Jackson Lewis Immigration Practice Group.

 

A federal appeals court in Washington, D.C.,   has rejected U.S. Citizen and Immigration Services’ determination that “inherent knowledge a person gains as a result of his or her upbringing, family and community traditions, and overall assimilation to one’s native culture necessarily falls into the realm of general knowledge” and therefore cannot not considered “specialized knowledge” as required for L-1B, intra-company transfer visa.  In its October 21, 2014 decision, the U.S. Court of Appeals for the District of Columbia Circuit reversed a  district court’s decision granting summary judgment for the government and remanded the case for further proceedings. Fogo De Chao (Holdings) Inc v. U.S. Department of Homeland Security, No. 13-5301 (D.C. Cir. Oct. 21, 2014).

In 2010, Fogo de Chao applied for an L-1B visa on behalf of Rones Gasparetto, a Brazilian churrasqueiro, a restaurant employee who cooks a variety of meats on skewers resting on a support over charcoal embers or wood, in one Brazilian version of this food preparation technique.  Mr. Gasparetto had been employed as a “Churrasqueiro Chef” in Sao Paulo, Brazil since May 1, 2007, and had worked in the same capacity in another of Fogo de Chao’s Brazilian affiliates from June 2006 through February 2007.  He was able to perform the duties of “Churrasqueiro Chef” as a result of both his training with the company and his rural upbringing participating in the churrasco tradition in southern Brazil.  USCIS concluded that the petition that Mr. Gasparetto’s culinary skills, knowledge of his native regional culture, and “authenticity” gained through his life experiences could not, as a matter of law, constitute “specialized knowledge” of the company’s product.  The district court deferred to USCIS’ interpretation of “specialized knowledge under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). See Fogo De Chao Churrascaria, LLC v. Department of Homeland Security, 959 F. Supp. 2d 32, 44–49 & n.5 (D.D.C. 2013).

The appellate court, however, concluded that the USCIS determination, which had been issued through a non-precedential decision by the Administrative Appeals Office, was not entitled to deference.  The court reasoned that nothing in the statute precludes culturally acquired knowledge from being taken into account as “specialized knowledge” for L-1B visa consideration.  Similarly, the court found that established USCIS policy and guidance regarding “specialized knowledge” in no way categorically excludes cultural knowledge from this determination.   This decision could broaden the range of professionals eligible for transferee specialized knowledge visas.

AUTHOR:  Harry J. Joe.

Despite USCIS’s 251 prior approvals of L-1B Specialized Knowledge Visa Petitions filed by Fogo De Chao for gaucho chefs, a federal District Court in Washington, D.C., upheld the USCIS’s denial of such a petition for Rones Gasparetto  and found the agency’s interpretation of “specialized knowledge” was not arbitrary, capricious or unreasonable.  Fogo De Chao Churrascaria, LLC v. U.S. Department of Homeland Security, et al., No. 10-1024 (D.D.C. Aug. 9, 2013).
 
USCIS denied Fogo’s petition because Fogo did not provide sufficient evidence to establish that Gasparetto would be employed in a position requiring or involving specialized knowledge and that he possessed specialized knowledge. The decision went to USCIS’s Administrative Appeals Office for clarification of the application of the statute and regulation that defines specialized knowledge.
 
The AAO found that specialized knowledge could not be determined using a bright-line test, but that Congress created a standard requiring USCIS to make a factual determination on a case-by-case basis. The AAO also found there was insufficient evidence that the offered position required specialized knowledge according to the interpretive guidelines in the Memorandum of James A. Puleo, Exec. Assoc. Comm’r, INS, Interpretation of Specialized Knowledge (Mar. 9, 1994) and Memorandum of Fujie Ohata, Dir. Service Center Operations, USCIS, Interpretation of Specialized Knowledge for Chefs and Specialty Cooks Seeking L-1B Status,(Sept. 9, 2004). Finally, the AAO found the evidence did not establish Gasparetto possessed specialized knowledge, but that he had general cultural knowledge, values and culinary skills acquired as a result of cultural upbringing in Brazil. Moreover, the AAO noted Fogo had not provided evidence that Gasparetto had been employed as a Gaucho Chef at its restaurant in Brazil.
 
Fogo challenged USCIS’s interpretation of specialized knowledge. It argued that the Congressional definition of “specialized knowledge” as being “special knowledge of the company product and its application in international markets” or “advanced level of knowledge of processes and procedures of the company” was not clear. The federal District Court agreed, saying the definition was circular and inherently ambiguous, and could not have a plain meaning.  It rejected Fogo’s argument, however, that the legislative history supported a broadened interpretation of specialized knowledge.
 
As the statutory definition of specialized knowledge was ambiguous, the only remaining issue for the Court was whether the AAO’s interpretation of specialized knowledge was based on a permissible construction. It found the reliance on the Puleo and Ohata memoranda, legislative history and applicable regulations was reasonable and entitled to deference. 
 
Fogo’s remaining arguments that the agency’s actions violated provisions of the Administrative Procedure Act were rejected.
 
This case underscores the difficulty that petitioning employers have in seeking to judicially challenge an administrative denial of an L-1B Specialized Knowledge visa petition. In a similar case, the Fifth Circuit Court of Appeals affirmed the denial of L-1B petitions for certain Brazilian chefs trained to cook in the gaucho manner in Boi Na Braza Atlanta LLC v. Upchurch, 194 F. App’x 248 (5th Cir. 2006). It affirmed the finding that the denials were based on proper consideration of the evidence, legislative history, the agency’s interpretive memoranda and regulations. 
 
L-1B Specialized Knowledge Visa Petitions are particularly complex and face numerous evidentiary hurdles described in the Puleo Memorandum, which, barring Congressional action, will continue to govern the adjudication of L-1B petitions.