The U.S. Embassy in Israel has announced that the necessary agreement has been signed and Israeli citizens will be able to apply for an E-2 Visa as of May 1, 2019. This is an important announcement for the Israeli high-tech sector and the U.S. economy because it opens new possibilities for Israelis wishing to create start-ups in the U.S. or open subsidiaries in the U.S.

President Barack Obama had signed legislation in 2012 allowing nationals of Israel to apply for E-2 treaty investor status, with the caveat that the benefit would not be available until Israel provided similar status to U.S. nationals. In 2014, the Israeli government passed such a bill, but the necessary regulations were not enacted until June 2018. The U.S. Department of State has determined the Israeli legislation (the B-5 Visa) was reciprocal.

Israelis have been eligible for E-1 Treaty Trader status since 1949; however, that status requires the Israeli company to have been engaged in substantial trade. It also requires such trade to be principally between the U.S. and the treaty country. Neither of these requirements could be easily met by a start-up or even a more mature company that is planning on growing in the U.S.

Israel has long been known as “Start-Up Nation” (based on a book by the same name published in 2009). Israel has the largest per capita number of start-ups of any country – by a margin. In Israel, there is one start-up for every 1,400 people. In France, 0.112, and in Germany, 0.056. The area between Tel Aviv and Haifa, known as “Silicon Wadi,” is one of the world’s best start-up environments, second only to Silicon Valley in the U.S.

To qualify for an E-2 visa, an individual must, among other things:

  • Be a national of a treaty country;
  • Invest a “substantial” amount of capital; and
  • Have at least a 50-percent ownership interest in the enterprise or have operational control.

Further, the investment must be at risk and the funds must not directly or indirectly result from criminal activity.

The U.S. Embassy in Israel has directed Israelis who wish to apply for E-2 visas to submit all application materials by mail to the Embassy’s Branch Office in Tel Aviv. Jackson Lewis attorneys are available to assist in this process.

 

Because some of the 9/11 terrorists used fraudulent driver’s licenses to travel, Congress passed the REAL ID Act in 2005 to comply with the 9/11 Commission’s recommendation that the federal government establish minimum standards for the issuance of forms of identification, such as state driver’s licenses. After many starts, stops, and delays, the deadline set by the government for full enforcement of the Act is October 1, 2020. By that date, individuals must have compliant IDs in order to access certain federal facilities, enter nuclear power plants, and, importantly, board any commercial aircraft – even for in-country flights.

Acceptable identification would include passports, border ID cards, trusted traveler cards, permanent resident cards, and REAL ID-compliant driver’s licenses, among others. For a state driver’s license to be REAL ID-compliant, states must verify that the individual applying for the license is legally in the U.S. and biometrics were used for identification purposes. This was easier said than done. It required setting up new databases and new technologies. Not only is that an expensive proposition for states, many have expressed privacy concerns and some state legislatures blocked compliance.

While most individuals have been able to board aircrafts with state-issued driver’s licenses if the state was compliant with REAL ID or if the state was granted an extension to become compliant, by October 1, 2020, individuals must have identification compliant with REAL ID standards to even pass through security. Minors under 18, travelling with an adult with REAL ID-compliant identification, will not need such documentation.

Most, but not all, REAL ID-compliant driver’s licenses have a black or gold star on the front. States will not automatically send individuals compliant driver’s licenses. Individuals must apply in person and bring identifying documentation, such as a birth certificate or a passport. Individuals with a passport, or one of the other designated documents, may not need a REAL ID-compliant driver’s license. Although DHS has not recommended which form of identification is “best,” the State Department has been encouraging all U.S. citizens to apply for passports. Currently, about 40 percent of Americans have passports. Of course, passports are more expensive than REAL ID-compliant driver’s licenses, but they serve other purposes, such as for international travel.

TSA has launched a public-awareness campaign, including new signs that will be popping up at airports around the country.

Please contact Jackson Lewis with any questions.

 

USCIS announced that as of April 10, 2019, it received 201,011 H-1B petitions for the FY 2020 cap season — more than enough to meet both the regular (65,000) and the advanced degree exemption (20,000) caps.

At the same time, the denial rate for H-1B petitions reportedly hit 32 percent in the first quarter of 2019.

Since the “cap” was established, FY 2017 was the high point, with 236,000 petitions filed. By FY 2019, the numbers decreased to 190,098. This year marks a change in direction with approximately 10,000 more petitions filed.

USCIS allowed petitioners who were filing cap cases requesting a change of status to concurrently file premium processing requests. Premium processing receipt notices are starting to come in. At least some of those receipts note that the service center will adjudicate the cases within 15 calendar days of the “received date” in the notice. But USCIS previously announced that in order “to prioritize data entry for cap-subject H-1B petitions, USCIS will not begin premium processing for these petitions immediately. USCIS will begin premium processing for these petitions no later than May 20, 2019, and will notify the public before premium processing begins for these petitions.” The notices and the announcement appear contradictory.

We will follow this matter and provide updates as they become available.

The Social Security Administration (SSA) No-Match letters to employers are notifications from SSA that an individual employee’s W-2 form does not match SSA’s records. The letters also inform employers that corrections are necessary and direct employers to use the SSA’s Business Services Online (BSO) database, which requires registration, to find out exactly which employees came up as “mismatched” and to respond.

What are some of the reasons that there might be a “mismatch”?

  • An administrative error or typo
  • Misspelled names
  • Numbers reversed
  • Name change due, for instance, to marriage
  • Fraudulent social security card

Upon receipt of a No-Match letter, an employer must walk a narrow path. Receipt of a No-Match letter without more does not indicate that the employee intentionally provided incorrect information and does not adversely affect employment. At the same time, ICE routinely inquires about receipt of No-Match letters as part of an I-9 audit. Accordingly, upon receipt of the letter, employers should consider appropriate follow-up consistent with government instructions.

Basic steps employers should take include:

  • Compare the SSA information with the individual’s other employment records – is there a scrivener’s error?
  • If the employer’s records match, notify the employee in writing and ask the employee to check the name and number on his or her Social Security card.
  • If the information on the card matches the No-Match letter, notify the employee in writing to resolve the no match with SSA.
  • Document all steps taken to comply with the No-Match requirements.

Jackson Lewis attorneys are available to assist you.

 

On May 20, 2019, USCIS will begin premium processing for cap-subject H-1B cases that were filed concurrently with Form I-907 premium processing requests. Under the Premium Processing Service, USCIS guarantees 15-calendar-day processing. That means the first premium processing adjudications should start coming out by the end of May or beginning of June.

This is the first stage in USCIS’ “two-phased approach.” During the first phase, USCIS will premium process only cap-subject cases that are requesting a change of status. Any change of status petitions that were filed without requests for premium processing may request premium processing with an interfiling beginning May 20, 2019. The second phase, premium processing for all other cap-subject H-1B petitions, will not begin before June 2019.

At this time, premium processing for H-1B petitions that are exempt from the cap, such as extension of stay requests, remains available.

Between May 20 and June 3, 2019, USCIS will not use pre-paid mailers to send out final notices regarding cases that are premium processed. Instead, regular mail will be used. USCIS states that this method will be faster and more efficient, given the surge of applications, since the use of regular mail is automated, whereas using pre-paid mailers requires a manual process. How long this will continue is not known, although USCIS plans to start using pre-paid mailers after June 3rd, if operationally feasible.

Please contact Jackson Lewis if you have any questions.

President Donald Trump has extended the wind-down period for termination of Deferred Enforced Departure (DED) status for beneficiaries from Liberia from March 31, 2019, to March 30, 2020.

DED, like Temporary Protected Status (TPS), allows individuals from certain nations to remain in the United States, despite being otherwise removable, because of civil or political strife or conflict in their native countries. Liberia is currently the only country covered under DED and the Administration had decided to terminate Liberia’s DED as of March 31, 2019.

In response to this termination decision, a lawsuit was filed in Massachusetts federal court challenging the government’s actions, claiming the decision was discriminatory and violated the beneficiaries’ rights to due process. The plaintiffs sought emergency injunctive relief. On March 25, 2019, the government filed a brief opposing that request. Then, on March 28, 2019, President Trump issued a Presidential Memorandum reversing course. “Upon further reflection and review, I have decided that it is in the foreign policy interest of the United States to extend the wind-down period for an additional 12 months, through March 30, 2020 . . . .”

Liberian DED beneficiaries, if they meet all eligibility requirements, will be able to remain in the United States until March 30, 2020, and will be able to maintain work authorization. The President also noted that the extension will give the Congress time to pursue remedial legislation.

The plaintiffs reportedly plan to continue to pursue their lawsuit, but not their motion for emergency relief.

According to USCIS, Secretary Kirstjen Nielsen will publish a notice in the Federal Register with information regarding the extension of DED status and the extension of work authorization.

For additional guidance, please contact Jackson Lewis.

The FY 2020 H-1B cap cases have been filed and 85,000 will be selected for adjudication. “Winning the lottery” is no longer considered the biggest hurdle, however.

Back in FY 2005, about 95% of all selected cases were approved and only about 22.3% received Requests for Evidence (RFEs). Recent USCIS statistics show that by FY 2018, only 84.5% of the cases were approved and 38% received RFEs, of which 62.3% were approved. By FY 2019, the chances of approval were even lower — 75.4% of cases were approved and 60% received RFEs, of which 61.5% were approved. In other words, about 40% of cases that received RFEs were withdrawn or denied.

The increase in RFEs and denials is one of the consequences of the Administration’s focus on protecting U.S. workers and the implementation of President Donald Trump’s “Buy American, Hire American” Executive Order (BAHA). Policies stemming from BAHA have included, among other things:

The “top ten” most popular RFEs (in order) from FY 2018 raised the following questions:

  • Is the position a specialty occupation?
  • Is there a proper employer-employee relationship?
  • Is there sufficient work for the employee at an off-site location?
  • Is the beneficiary qualified to perform the duties of the position?
  • Has the beneficiary properly maintained status?
  • Is there sufficient work for the employee in-house?
  • Does the LCA correspond properly to the position’s duties?
  • Is the beneficiary eligible for the extension based upon AC21?
  • Has the employer met the itinerary requirement for third-party locations?
  • Were the required fees filed?

Since 2014, USCIS has had to conduct a lottery every year. In the first year, 124,000 petitions were received. The numbers subsequently peaked at 236,000, but the numbers have decreased since then. Last year, about 190,000 cap petitions were filed. The recent decrease can be attributed in part to the growing uncertainty that employers face if they choose to petition USCIS for an H-1B worker.

Soon we will know how many cap cases have been filed for FY 2020, see the new crop of RFEs, and learn USCIS’ latest challenges. The public will also have a chance to see which companies are filing H-1B cases, how many they are filing, and what their approval rates are. This, along with recent changes to the LCA process, is part of the Administration’s focus on transparency.

Please contact Jackson Lewis with any questions.

 

In 2016, a married gay couple in Canada became parents of twins using a surrogate mother. One father is a U.S. citizen, the other an Israeli citizen. The two fathers made a decision to contribute one embryo each to the surrogate mother so the twins would be biologically related to each of them. However, that turned out to be a determinative factor when the parents went to the U.S. Consulate in Toronto to register the twins for U.S. citizenship. Only one of the twins, Aidan, who was biologically related to his U.S. citizen father, was granted a U.S. passport. The family was devastated by this decision. When the Dvash-Banks family decided to move to California, the other twin, Ethan, had to enter as a visitor on a B visa. His B visa eventually expired, leaving him “undocumented.”

With regard to children born in wedlock, section 301 of the Immigration and Nationality Act states that a “child born outside of the United States . . . acquires citizenship at birth if at the time of birth one parent is a foreign national and the other parent is a U.S. citizen; and the U.S. citizen parent was physically present in the United States for at least 5 years, including at least 2 years after 14 years of age.” Section 309, which applies to children born out of wedlock, requires, among other things, that “blood relationship between the child and the father is established by clear and convincing evidence.” The State Department, in its published policy, apparently reads the “blood relationship” clause into section 301 and would not budge on that policy for the Dvash-Bankses.

The Dvash-Bankses challenged the Department of State’s (DOS) decision with regard to Ethan in the U.S. District Court, Central District of California. In response to a motion for summary judgement, Judge John F. Walter declared that Ethan was a U.S. citizen and ordered DOS to issue him a U.S. passport as soon as possible. The order applied only to Ethan and did not prevent DOS from applying its “blood relationship” policy to other families. In post-summary judgement proceedings, the Dvash-Bankses argued, “The State Department’s refusal to approve [Ethan’s] applications . . . and its persistence in litigating this action full-bore to summary judgement, was manifestly unreasonable and not substantially justified.” The Judge awarded $1.3 in attorney’s fees and costs to the couple.

Ethan’s fathers believe that a straight couple who had used assistive reproductive technology would never have been asked to submit to a DNA test, as they were required to do by DOS. In a similar case, a lesbian couple of one U.S. citizen and one Italian citizen whose children were born in London brought a claim in the federal district court in D.C. – using the same lawyers who represented the Dvash-Banks family.

The 2020 decennial census is scheduled to begin on April 1, 2020, but several cases challenging the Administration’s decision to include a citizenship question in the census are putting the Administration’s June 30, 2019, “go to print” deadline at risk.  The question asks, “Is this person a citizen of the United States?”

The case that is furthest along was filed in U.S. District Court for the Southern District of New York, New York, et al. v. U.S. Department of Commerce. Plaintiffs in 18 states, the District of Columbia, 15 cities and counties, the U.S. Conference of Mayors, and a group of NGOs filed suit challenging the inclusion of the citizenship question. After a bench trial, the judge, in a 277-page opinion, enjoined the U.S. Department of Commerce from including that question on the census primarily because of violations of the Administration Procedures Act (APA). But, on January 25, 2019, the Administration filed an appeal asking the U.S. Supreme Court to review the case directly because the Census Bureau needed to make its June 30th deadline. On February 15, 2019, the Supreme Court granted that request and set oral argument for April 23, 2019.

On March 6, following in the footsteps of the New York case, California federal Judge Richard Seeborg, in a 126-page opinion, blocked the Administration from adding the citizenship question to the census not only because of APA violations, but also on the basis of the Constitution. That court held that the citizenship question violated the “enumeration clause,” which requires an “actual enumeration” of the country’s population. The court said the question would discourage participation and thereby lead to an inaccurate count. The Administration has not yet acted to appeal this case.

Meanwhile, in a federal court in Maryland, the Mexican American Legislative Caucus, the Senate Hispanic Caucus, and several non-profit advocates for Latino and Asian residents are arguing that the inclusion of the citizenship question will improperly lead to an undercount of immigrants and people of color. The plaintiffs also allege a conspiracy to include the question based “on animus against Hispanics and immigrants.” The case is still pending.

All of the plaintiffs in these cases allege that a great deal is at stake because the inclusion of the citizenship question will discourage participation – particularly by immigrants – and affect:

  • The boundaries of Congressional Districts;
  • The number of Congressional Representatives per state;
  • The number of Electoral College votes per state; and
  • The amount of federal funding to states for programs, including low-income housing, medical assistance, and infrastructure projects.

Even some Census Bureau officials opined that the question will chill participation. Judge Seeborg stated, “In short, the inclusion of the citizenship question on the 2020 census threatens the very foundation of our democratic system . . . .”

We will continue to follow the progress of these litigations and provide updates as they become available.