Category Archives: Immigration

H-1B Cap Reached for Fiscal Year 2019

Today, April 6, 2018, the U.S. Citizenship and Immigration Services (“USCIS”) announced that it has received more H-1B cap petitions than the statutory available visas for both the general cap of 65,000 available H-1B visas and the additional 20,000 for U.S. advanced degree exemption, also known as the “master’s cap.” Therefore as mandated, USCIS will run a computerized random selection lottery to choose the petitions that will be selected for processing.… More

New Portal for F-1 International Students and an Update on Potential Changes to OPT Rules

International students studying in the U.S. (typically in F-1 nonimmigrant status) must comply with many federal regulations while studying and working in the U.S. Much of their information is coordinated through their school’s designated school official (“DSO”), who reports the F-1 student’s information using the U.S. Immigration Customs Enforcement’s (“ICE”) database called the Student and Exchange Visitor Information System (“SEVIS”), which stores and reports information about the F-1 student’s immigration status.… More

Border Searches of Travelers’ Electronic Devices Remain an Evolving Area of U.S. Law

Last year, we provided an update on the Trump administration’s controversial ramp up of border searches and inspections of electronic devices of travelers applying for admission to the U.S. A variety of travelers have since challenged U.S. Department of Homeland Security (“DHS’), alleging fourth amendment violations. In fact, U.S. Customs and Border Protection (CBP) issued another directive earlier this year that further clarified their authority to search electronic devices.… More

Lottery and H-1Bs: “Give Your Dream a Chance”

“Give your dream a chance” is the state of New Jersey’s lottery slogan.  “Somebody’s gotta win” is the Massachusetts state lottery slogan.  In fact, each state has its own slogan, and these two just happen to resonate with me.  These slogans refer to each state’s random cash lottery options, where you can pay to play and, maybe if you are lucky, win.  For U.S. employers who want to employ global talent this year,… More

Is “Merit-Based” Immigration Code for Something Else?

U.S. Citizenship and Immigration Services (USCIS) hosted a DHS stakeholders call entitled “H-1B Cap and Filing Tips Stakeholder Engagementthat I participated in on March 6. It made me think about “merit-based” immigration and how we have not seen movement of any real proposals by the Trump administration – or his supporters in Congress.  I wondered what they have in mind for merit-based immigration and would it actually work for my clients,… More

SCOTUS Overturns Decision on Bond Hearings for Detainees Subject to Indefinite Detention

Do noncitizens detained for a long time while their cases are pending have the right to a hearing to determine whether they can be released on bond? This was the question posed in the Jennings v. Rodriguez case, a constitutional class-action challenge against federal immigration statutes requiring the detention of certain noncitizens while they defend their right to stay in the United States. The Supreme Court issued its 5-3 decision on February 27,… More

USCIS Tightens the Rules Related to H-1B Visas for Third Party Worksites

On February 22, 2018, the U.S. Citizenship and Immigration Services (USCIS) issued a new policy memo making it more restrictive for H-1B employers who have their consultants work at third party work sites to fulfil client projects. The new policy memo updates the January 2010 agency memo that outlined the guidelines in determining “Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements,” which is also called Neufeld memo.… More

Crackdown on Business Travelers from Visa Waiver Countries

The Visa Waiver Program (“VWP”) allows citizens of 38 countries to travel to the U.S. for business or pleasure without having to obtain a formal visa by obtaining a pre-clearance known as Electronic System of Travel Authorization (“ESTA”). The ESTA registration is valid for two years and allows stays of up to 90 days per visit. Approximately 20 million visitors a year participate through this program. DHS automatically screens all ESTA information against numerous U.S.… More

What U.S. Employers Need to Know About the FY 2019 H-1B Visa Cap Season

It’s the time of year when U.S. employers are preparing for the upcoming H-1B cap petition filing season. While it appeared that USCIS was considering revising the H-1B lottery process for this fiscal year by adding a new online pre-registration step, USCIS recently confirmed that there are no changes to the process at this time. USCIS will begin accepting H-1B cap-subject petitions in the same manner as they have in years past,… More

Seismic Business Immigration Policy Shift in the Works for 2018

New changes to H-1B Lottery; H-4 EADs on the chopping block; AC 21 H-1B extensions in trouble; and how to plan for it all
Changes to the H-1B Program and the H-1B Visa Lottery

The Department of Homeland Security (DHS) plans to revise the lottery process for the upcoming fiscal year. The announcement may come as early as next month. It proposes a pre-registration system for cap-subject H-1B visa applicants.… More

2017 Immigration Policy Roundup

This year saw significant changes to immigration policy in the United States. Here is a brief roundup of recent developments that companies should continue to monitor in 2018.

The Travel Ban
BACKGROUND

President Trump issued the third revision of his travel ban entitled “Presidential Proclamation Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or Other Public-Safety Threats” on September 24,… More

The Fate of the International Entrepreneur Rule Remains Uncertain, But There May Be Hope

The Obama-era International Entrepreneur Rule (“IE Rule”), which had been scheduled to go into effect on July 17, 2017, would allow qualifying foreign entrepreneurs to come to the US to establish, oversee, and grow their businesses. To be eligible, applicants would have to demonstrate:

  • At least a 10 percent ownership in the business and a central role in its operations; and
  • That the company has received a “significant investment” of $250,000 or more from qualified US investors or significant grants from government entities,…
  • More

Supreme Court Stays Injunction Blocking President Trump’s Third Travel Ban

President Trump issued the third revision of his travel ban entitled “Presidential Proclamation Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or Other Public-Safety Threats” on September 24, 2017. This proclamation suspends entry into the United States under most circumstances for nationals of Iran, Libya, Somalia, Syria, Yemen, Chad, and North Korea. It also suspends entry into the United States for certain officials of the Venezuelan government and their immediate family members.… More

Protect and Grow American Jobs Act: New H-1B Bill Targeted at Dependent Employers

On November 15, 2017, the House Judiciary Committee approved The Protect and Grow American Jobs Act (H.R. 170), which primarily affects “H-1B dependent” employers. The bill revises the definition of a dependent H-1B employer to include all employers which have a workforce that is more than 20% percent H-1B employees (an improvement over the current 15% test). However, if a company qualifies as an H-1B dependent employer,… More

All Signs Point to an Increase in Worksite Enforcement in 2018

U.S. Immigration and Customs Enforcement Acting Director Thomas Homan recently announced that ICE would increase worksite audits by “four or five times” in the next year. This comes after a January Executive order and a more recent statement by ICE announcing plans to hire 10,000 new worksite enforcement officers. Worksite inspections involve auditing of the employer’s Form I-9 records and other related investigations. Acting Director Homan also indicated that worksite investigations will involve the arrest and removal of any employees who do not have valid work authorization.… More

What Employers Need to Know About Employment-Based Green Card Interviews

Based on President Trump’s Executive Order 13780, “Protecting the Nation from Foreign Terrorist Entry Into the United States,” USCIS has implemented a new policy to interview all employment-based adjustment of status applicants where the application was filed after March 6, 2017. For applications filed prior to that date, USCIS appears to be randomly selecting some applications for an interview.

USCIS Service Centers will continue to adjudicate the underlying I-140 Petition.… More

USCIS Reverses Policy on Temporary Visa Extensions

On Monday, October 23, 2017, U.S. Citizenship and Immigration Services (USCIS) reversed a long-standing policy regarding non-immigrant extension petitions. Historically, as memorialized in an April 23, 2004 USCIS policy guidance, USCIS officers adjudicating a non-immigrant H-1B, L-1, TN-1, or O-1 visa petitions were instructed to give deference to the findings of a previously approved petition, as long as the key elements underlying the petition were unchanged and there was no evidence of a material error or fraud related to the prior determination.… More

President Trump Issues a New Travel Ban

On September 24, 2017, President Trump issued the third version of his travel ban entitled “Presidential Proclamation Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or Other Public-Safety Threats.” This order suspends entry into the United States under most circumstances for nationals of Iran, Libya, Somalia, Syria, Yemen, Chad, and North Korea. It also suspends entry into the United States for certain officials of the Venezuelan government and their immediate family members.… More

USCIS Resumes Premium Processing for Cap Subject H-1B Petitions

As of Tuesday, September 19, 2017, the U.S. Citizenship and Immigration Services (USCIS) resumed accepting requests for premium processing for cap subject petitions. The process is only available for pending petitions, not new submissions, since USCIS received enough petitions in April to meet the FY 2018 cap. Premium processing of H1B visas was suspended in April to handle the huge rush of new petitions. However,… More

President Trump Rescinds the DACA (“Dreamer”) Program

On September 5, Attorney General Jeff Sessions announced the Trump Administration’s decision to rescind the Deferred Action for Childhood Arrivals (DACA) program that had been in place since June 15, 2012. The Trump Administration states it will delay enforcement of this decision for six months, allowing Congress a window of opportunity to pass legislation to protect undocumented immigrants who are currently covered by the program.… More

USCIS Announces Expanded In-Person Interview Requirement

US Citizenship and Immigration Service (USCIS) has announced that beginning October 1, 2017, it will require far more people to appear at its offices for in-person interviews – a change that could potentially impact hundreds of thousands of people applying for permanent residence status.

Specifically, USCIS will be phasing in interviews for all employment-based green card applicants as well as asylees and refugees who are petitioning for a spouse or child to join them in the United States.… More

Supreme Court Narrows, But Declines to Stay, Injunctions Blocking Travel Ban Executive Order

On June 26, 2017, the U.S. Supreme Court entered an order that narrowed, but declined to stay, two preliminary injunctions prohibiting enforcement of various provisions of President Trump’s March 6, 2017 Executive Order entitled “Protecting the Nation from Foreign Terrorist Entry into the United States” (the “EO-2”). Nationals of Iran, Libya, Somalia, Sudan, Syria and Yemen can continue to enter the U.S.… More

Border Searches of Your Electronic Devices — What Rights Do You Have?

The United States government has reported that border searches of electronic devices in the U.S. increased from 4,764 in 2015 to 23,877 in 2016. Because electronic devices have immense data storage capacity and can hold confidential information, trade secrets and data otherwise protected by attorney-client privilege, these searches have raised alarm for individuals, and the companies that employ them, when traveling. Adding social media and cloud storage into the mix,… More

Federal Courts Block New Travel Ban Executive Order

On March 15, 2017, federal courts in Maryland, Hawaii and Washington heard arguments on motions to preliminarily enjoin the New Executive Order (“New EO”), which was issued by President Trump on March 6, 2017. Judge Derrick K. Watson of the U.S. District Court for the District of Hawaii was the first to issue such an order (as described below), which essentially prevents implementation of the New EO’s travel and refugee restrictions.… More

President Trump Issues New Travel Ban Executive Order

On March 6, 2017, President Trump issued a new Executive Order entitled, “Protecting the Nation from Foreign Terrorist Entry into the United States” (the “New EO”). The New EO expressly “revok[es]” and “replac[es]” the President’s January 27, 2017 Executive Order of the same name (the “Original EO”). As described below, the New EO effectively bans the issuance of new visas to nationals of six countries for at least 90 days.… More

USCIS Suspends Premium Processing for ALL H-1B Petitions

Late Friday, March 3, the United States Citizenship and Immigration Services (USCIS) announced that it was indefinitely suspending premium processing for ALL H-1B petitions filed on or after April 3, 2017. This suspension would mean that no FY 2018 cap-subject H-1B petitions could be filed under premium processing.  The same exclusion would apply to H-1B extension petitions, H-1B Change of Employer amendment/extension petitions, and H-1B Cap exempt petitions filed on or after April 3.… More

Another Executive Order on Immigration Expected

Within the next week, President Trump is expected to issue another Executive Order (“EO”) concerning high-skilled workers and foreign students, most likely to be titled “Protecting American Jobs and Workers by Strengthening the Integrity of Foreign Workers Visa Programs.” Unlike the EO that was signed last Friday, which imposed an immediate travel ban on foreign nationals from seven countries, it appears that this new EO is not expected to immediately terminate any individual’s work authorization or visa status,… More

Travel Alert Under President Trump’s Immigration Executive Order

On January 27, 2017, President Trump signed an Executive Order entitled “Protecting the Nation from Foreign Terrorist Entry Into the United States” relating to visa issuance, screening procedures, and refugees coming to the U.S. The implementation of this Order in the first 48 hours caused confusion at airports across the country. It was understood that Section 3 of the Order “suspends” for 90 days the admission of both permanent resident green card holders and nonimmigrant temporary visa holders (H-1B,… More

Watch: Labor & Employment Webinar

The past year has been busy in the labor and employment law field. Foley Hoag recently presented a webinar detailing the latest legal developments.

Watch the recording:

:

Topics discussed include:

  • Upcoming changes to the overtime regulations
  • The expansion of the “joint employer” doctrine
  • The increasingly aggressive EEOC
  • Legislative initiatives to change non-compete law
  • Pay equity laws
  • Current issues in immigration laws

Speakers: