ICE to Ramp Up Workplace Inspections – Are Your I-9s in Order?

Throughout 2017, President Trump has signed a series of executive orders that promise to strictly enforce existing immigration laws. Pursuant to these orders, the Department of Homeland Security, which encompasses U.S. Citizenship and Immigration Services (USCIS) and Immigration and Customs Enforcement (ICE), has increased unannounced worksite visits. Recent statements from a top ICE official indicate that the frequency of these site visits will soon increase.

US Customs and Border Protection

During an address to the Heritage Foundation, Acting Immigration and Customs Enforcement Director Tom Homan stated that he has directed Homeland Security Investigations (HSI), to potentially quadruple worksite enforcement actions within the next year. This follows a significant increase of worksite investigations by HSI, the stated focus of which is to curtail the employment of undocumented immigrants. “We’ve already increased the number of inspections in work site operations, you will see that significantly increase this next fiscal year,” Homan elaborated.

Currently, ICE’s official policy for HSI investigations is unchanged from the Obama Administration, which prioritizes targeting employers that use undocumented labor as a business model, engage in human smuggling, mistreat employees, commit identity fraud, launder money, or are otherwise involved in criminal activity. In practice, an HSI workplace inspection is not limited to only these issues.

ICE also conducts audits of Forms I-9 to ensure that workers have the appropriate employment authorization. Employers who have taken steps to ensure their workforce is lawfully authorized to work in the United States may still face penalties stemming from an ICE audit. Omissions and errors on I-9s can result in administrative sanctions, civil penalties, and fines ranging from $110 to $1,100 for each violation. Employers could find themselves sanctioned or fined for seemingly minor errors such as missing information, failure to check boxes, or untimely completion of the form.

Given this increased risk, employers of foreign nationals should take steps to ensure they are in full compliance with immigration documentation requirements. A proactive audit of your I-9 files is the best way to avoid penalties in the event of an ICE site visit. We would be happy to conduct a thorough audit of your I-9 documents at your offices to ensure your business complies with federal law. Please contact us at (617) 720-5855 to discuss the process and schedule an audit.

Executive Order and Travel Ban for Certain Foreign Nationals

trump-signitureOn January 27, 2017, President Donald Trump issued an executive order titled “Protecting the Nation from Foreign Terrorist Entry into the United States.” Among several provisions, Section 3 of the Order “suspends” immigrant and nonimmigrant entry of nationals from “certain designated countries” for 90 days from the date of the order. The Executive Order applies to all individuals “from” Iran, Iraq, Syria, Libya, Somalia, Sudan, and Yemen. This includes lawful permanent residents (LPRs), nonimmigrant visa holders, immigrant visa holders, refugees, asylees, and others. U.S. Embassies and Consular Posts have also been instructed to immediately suspend issuance of nonimmigrant and immigrant visas for nationals of these countries, and those with scheduled interviews are being canceled.

The order does not define what it means to be “from” a designated country. Therefore, many attorneys are erring on the side of caution, and interpret the order to affect anyone who holds a passport from one of the seven countries. This includes dual citizens who hold passports from a designated country, as well as a non-designated country. It has not been made clear if people who have merely traveled to one of the countries are affected.

After the 90 days have elapsed, travel will not be automatically reinstated. Instead, the Department of Homeland Security (DHS) is required to report whether countries have provided information “needed…for the adjudication of any…benefit under the INA…to determine that the individual seeking the benefit is who the individual claims to be and is not a security or public safety threat.” If not, the country will have 60 days to comply, or the travel ban will become indefinite.

On Sunday, the American Civil Liberties Union and attorneys from the American Immigration Lawyers Association filed suit across the country to halt the executive order. A federal judge in New York granted a nationwide stay of removal, preventing deportation for individuals affected by the order with valid visas and approved refugee applications. A federal court in Massachusetts went further, barring federal officials from detaining or removing individuals subject to the executive order for seven days. Therefore, Logan Airport may be the safest port of entry this week. Additionally, a judge in Virginia ordered federal officials to provide lawyers access to “all legal permanent residents being detained at Dulles International Airport” and barred deportation of affected individuals for the next seven days. Finally, in Washington, a federal judge barred the federal government from deporting two individuals affected by the order.

Also on Sunday, Department of Homeland Security Secretary John Kelly issued a statement that DHS will ensure “that all individuals affected by the executive orders, including those affected by the court orders, are being provided all rights afforded under the law.” Although Sec. Kelly confirmed that U.S. Customs and Border Protection will continue to comply with the order, he confirmed that “absent the receipt of derogatory information indicating a serious threat to public safety and welfare, lawful permanent resident status will be a dispositive factor in our case-by-case determinations” to admit people to the United States, finding their admission to be “in the national interest.” Beyond lawful permanent residents, Sec. Kelly confirmed that DHS will continue to enforce the executive order while complying with judicial orders.

If you, a family member, or one of your employees holds a passport from Iran, Iraq, Libya, Somalia, Sudan, Syria, or Yemen, we urge them not to travel internationally for the time being. If you are currently in the United States, the safest thing you can do is remain in place. Although Secretary Kelly’s statement seems to allow for LPRs to enter the country, CBP is still authorized to use their discretion in admitting people at airports and the border. Some LPRs have reported CBP officers pressuring them to sign I-407 forms at the airport, which relinquishes their LPR status. If CBP presents you with this form, DO NOT SIGN IT. Your LPR status will be revoked and you will be removed from the country. Nonimmigrants from the seven designated countries who attempt to enter the U.S. will be allowed to withdraw their application for admission. If they opt not to withdraw, the nonimmigrant will be placed into expedited removal, and will be barred from the United States for five years.

Although this situation is alarming, attorneys from the ACLU and AILA are working tirelessly on the behalf of foreign nationals from the seven designated countries. This situation is fluid, and may change, for better or worse, at any time. We will keep you updated as information becomes available. Please do not hesitate to contact us with questions or concerns about this issue.

FY 2018 H-1B Cap Season Has Begun…Are You Prepared?

Each year, USCIS accepts 85,000 new H-1B cases for processing starting in April. 65,000 of these cases are for applicants who possess a Bachelor’s degree and 20,000 are reserved for those who hold a Master’s degree or higher from a U.S. institution of higher learning. Since the demand for H-1Bs is always higher than the 85,000 available visas, USCIS accepts cases through a lottery process, running from April 3rd to April 7th. If your H-1B petition is selected and approved, the beneficiary’s H-1B status will be effective as of October 1, 2017.

Due to the short filing window for filing and substantial amount of preparation required, employers should begin planning their H-1B strategy as soon as possible. If your company is considering an H-1B visa for an existing or potential employee, please contact us for more information. Our attorneys are highly experienced with H-1B petitions and will be happy to assist you and your company through the next two months. Any employer or foreign national who has been through the H-1B cap process in the past knows it can be a stressful experience. We can help to make it as smooth and successful as possible!

New Rule Provides a Variety of Benefits and Obligations to Employment-Based Immigrants and Nonimmigrants

A new rule will go into effect on January 17, 2017 that aims to amend the Department of Homeland Security’s regulations for certain employment-based immigrant and nonimmigrant visa programs.

A new rule published in the Federal Register on November 18, 2016 aims to amend the Department of Homeland Security’s regulations for certain employment-based immigrant and nonimmigrant visa programs. The rule, titled “Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers,” will become final on January 17, 2017, and will clarify prior regulations while granting new benefits to immigrant and nonimmigrant beneficiaries and their family members. The rule’s provisions will enhance and clarify a number of provisions affecting H-1B employees and beneficiaries of I-140 immigrant visa petitions, including:

  • Certain nonimmigrant principal beneficiaries (specifically, those in E-3, H-1B,         H-1B1, L-1, or O-1 status), and their dependent spouses and children, will be eligible to apply for employment authorization if the principal applicant’s approved I-140 is subject to an immigrant visa backlog, provided that the applicants demonstrate “compelling circumstances”. Although the rule does not define “compelling circumstances” and describes it as a “case-by-case” determination, DHS lists several examples, such as:
    • Serious illness or disability faced by the nonimmigrant worker or his or her dependent;
    • Employer retaliation against the nonimmigrant worker;
    • Other substantial harm to the applicant;
    • Significant disruption to the employer.

The grant of employment authorization will be valid for one year, and may be extended if  the applicant continues to face compelling circumstances and the approved I-140      continues to be subject to an immigrant visa backlog.

  • The rule also eliminates the regulatory requirement for 90-day adjudication timeframe and issuance of interim EADs and replaces it with a provision allowing for the automatic extension of EADs for up to 180 days for certain workers filing timely renewal requests.
  • Certain workers with approved Form I-140 petitions in the EB-1, EB-2, and EB-3 categories who are subject to visa backlogs will no longer be subject to automatic revocation based on the petitioner’s withdrawal or termination of their business, provided that the petition has been approved for 180 days or more, or 180 days or more after the associated application for adjustment of status has been filed. The approved I-140 may only be used for portability purposes if an adjustment of status application has not been filed.
  • Workers may also retain their priority dates from previously approved Form I-140 petitions, and transfer those dates to new and subsequently approved I-140 petitions, except when USCIS revokes approval of the petition for material error, fraud, or willful misrepresentation of a material fact, or revocation of the underlying Labor Certification.
  • USCIS will now determine a worker’s ability to “port” to a new employer by virtue of an approved I-140 petition through a new form, Supplement J to Form I-485, Confirmation of Bona Fide Job Offer or Request for Job Portability under INA Section 204(j). Supplement J will assist USCIS in confirming that the job offer described in the I-140 is still available at the time of filing for adjustment of status, as well as determining eligibility for job portability for a new offer of employment in a “same or similar” occupational classification as the approved I-140.
  • Allowing certain nonimmigrants (specifically, those holding E-1, E-2, E-3, L-1, or TN status) a grace period of up to 10 days before and after their validity period, and a grace period upon cessation of employment on which the foreign national’s classification was based, for up to 60 days or until the end of their authorized validity period. This will allow them to maintain nonimmigrant status when faced with termination of employment to wrap up affairs, find new employment, or change to a different nonimmigrant classification without potentially accruing unlawful presence.

Final Rule Regarding USCIS Fee Increase to Be Published October 24, 2016

As we wrote in a previous blog, USCIS published a proposed rule that will raise fees for most applications. After a comment period that ended on July 5, 2016, the final rule will be published in the Federal Register on October 24, 2016. The new fee schedule will go into effect 60 days from publishing on December 23, 2016.

The new fees show little to no change from the earlier proposed rule, despite numerous comments submitted from individuals, organizations, public policy groups, and members of Congress who felt the increases were either too steep or unfair. So, what are the highlights of the new rule and what can applicants expect moving forward?

Notable Increased Fees

The new fee schedule shows an average increase of 21% across all applications. However, this ranges from applications with no change to others with steep increases of 100% or more (for example, Form I-526, Immigrant Petition by Alien Entrepreneur, will jump from a $1,500 filing fee to $3,675). Some commonly filed applications that will see an increase:

  • Form I-129, Petition for a Nonimmigrant Worker – $460 (currently $325)
  • Form I-130, Petition for Alien Relative – $535 (currently $420)
  • Form I-131, Application for Travel Document – $575 (currently $360)
  • Form I-140, Immigrant Petition for Alien Worker – $700 (currently $580)
  • Form I-485, Application for Register Permanent Residence or Adjust Status – $1,140 (currently $985)
  • Form I-765, Application for Employment Authorization – $410 (currently $380)
  • Form N-400, Application for Naturalization – $640 (currently $595)
  • Form N-600, Application for Certification of Citizenship – $1,170 (currently $600)

The USCIS Immigrant Fee, which Immigrant Visa beneficiaries pay for issuance of their Permanent Resident Card upon entry to the United States, will also increase from $165 to $200.

Three-Level Fee for Form N-400

Form N-400, Application for Naturalization, will see an increase in its standard fee from $595 to $640. However, applicants who meet the requirements of Immigration and Nationality Act sections 328 (U.S. military service during peacetime) or 329 (U.S. military service during hostilities) will continue to be exempt from the N-400 filing fee, as well as applicants with approved fee waivers. Finally, USCIS will charge a reduced filing fee of $320 for naturalization applicants with a family income greater than 150% and not more than 200% of the Federal Poverty Guidelines.

USCIS Rejections for Dishonored Checks or Missing Biometric Fees

The new rule will also remove regulatory provisions at 8 CFR 103.2(a)(7)(ii)(D) that prevent USCIS from rejecting an immigration or naturalization benefit request paid with a dishonored check or lacking the required biometric services fee until the applicant has been provided an opportunity to correct the deficient payment. Under the final rule, USCIS will submit all initially rejected payments to the applicant’s bank account a second time for it to clear or be rejected. If the check is rejected again following resubmission by USCIS, the case will be rejected for fee nonpayment. If the case is approved and the payment discrepancy is discovered later, USCIS will send a notice of intent to revoke the approval.

Proposed DHS Rule Could Provide New Immigration Options to High-Skilled Foreign Entrepreneurs

As discussed in our prior blogs, immigration options for highly-skilled and entrepreneurial foreign nationals are becoming limited. The H-1B visa program has been reduced to a lottery, leaving one’s future employment in the United States up to chance. The troubled EB-5 program continues to be scrutinized by lawmakers and the public. Meanwhile, Congress has been unwilling to address employment-based immigration as a means to strengthen the United States economy and provide immigration options to highly skilled foreign businesspeople and students.

In light of the above, the Department of Homeland Security (DHS) published a proposed rule in the Federal Register to authorize a grant of parole for foreign nationals “to increase and enhance entrepreneurship, innovation, and job creation in the United States.” The International Entrepreneur Rule is specifically aimed at the founders of start-up entities “whose entry into the United States would provide a significant public benefit through the substantial and demonstrated potential for rapid growth and job creation.” The proposed rule is an attempt to implement President Obama’s Immigration Accountability Executive Action regarding enhanced options for foreign entrepreneurs.

Under the proposed rule, an applicant must have a 15% or more ownership interest, as well as an “active and central role,” in a business entity formed within three years preceding the filing of the application. The business must have “substantial potential for rapid growth and job creation” to warrant the grant of parole, and must meet one of the three following criteria to qualify:

  1. The start-up entity received significant capital financing (at least $345,000) from U.S. investors with established records of successful investments; or
  2. The start-up entity received significant awards or grants (at least $100,000) from certain U.S. Federal, State, or local government entities; or
  3. The applicant partially meets one or more of the above criteria, and can provide “additional reliable and compelling evidence that his or her parole would provide a significant public benefit.”

If granted, the applicant would receive an initial parole period of two years to manage and expand the business, and will be eligible for an addition three year re-parole based on certain criteria. Parole would also grant immediate employment authorization to applicants, as well as their spouses.

The rule is currently in a 45-day comment period, after which DHS will finalize the final rule for Entrepreneurial Parole. The attorneys at the Law Offices of Leslie Creedy are closely monitoring its progress, and are hopeful that the final rule will provide many of the proposed benefits to foreign entrepreneurs and the U.S. economy. If you would like to discuss whether you may qualify for Entrepreneurial Parole, or are interested in submitting a comment before October 9, 2016, please do not hesitate to contact us.

Employment-Based Immigration Reform Bill is a Mixed Bag – Who Would Be Helped and Who Would Be Harmed?

The H-1B visa program has been a contentious issue in Washington’s debate on immigration reform. Over the past year, Representative Zoe Lofgren has attempted to gain bipartisan support for the High-Skilled Integrity and Fairness Act of 2015. The bill contains many proposals that would radically overhaul employment-based immigration. Many of the provisions are helpful, and would potentially expand eligibility for employment-based permanent residence and grant additional protections to H-1B workers, including:

  • Elimination of “per country” caps for employment-based immigrant visas, or green cards, reducing the backlog of employment-based immigrant visa processing and ensure that employers can permanently hire the most skilled workers based on their skills and qualifications, rather than national origin. Currently, employment-based immigrant visas are capped at 140,000 a year, with no more than 7% from any one country, which has resulted in a huge backlog for applicants from India and China.
  • Expanding “dual intent” to F-1 students, O-1 workers with extraordinary ability, and free trade visa holders (E-3, TN, and H-1B1), so they are not denied visas based on perceived intent that they may pursue permanent residency.
  • Requiring employers to provide H-1B workers with copies of their immigration paperwork within three years of filing with the government, and prohibiting liquidated damages against H-1B workers who cease employment with a current employer prior to an agreed-upon date.
  • Splitting the current H-1B cap process in two, creating two start dates for new H-1B visas in a fiscal year, instead of one per year on October 1. This would allow employers to petition for employees based on more current workforce needs, rather than 6 to 18 months in the future.
  • Reserving 20% of new H-1B visas per year for small and start-up employers, or those with 50 or fewer employees, ensuring that emerging businesses can retain their most skilled employees.

However, two proposals specific to the H-1B program, while seemingly well-intentioned, could have a harmful effect on all employers hoping to employ skilled foreign nationals. Rep. Lofgren’s bill proposes to redefine H-1B dependency and drastically change employer exemptions. Currently, employers are defined as H-1B dependent based on the amount of H-1B workers in proportion to their total employees (Defined here by the Department of Labor). Employers who are found to be H-1B dependent are subject to additional attestation requirements and filing fees. However, H-1B workers are considered “exempt” from the dependency calculation if the worker holds a master’s degree or higher, earns annual wages of at least $60,000, or both.

Rep. Lofgren’s bill would set the threshold for H-1B dependency at 15% of the employer’s workforce. Also, instead of $60,000, the new H-1B dependent wage exemption level would be set at the 35th percentile above the median for the most recent national annual wage for the Department of Labor Occupational Employment’s Computer and Mathematical Occupations category, which is approximately $130,000. H-1B workers with Master’s degrees will no longer be exempt from calculating H-1B dependency. Under this new proposal, unless an employee is paid $130,000 or more, they will count toward an employer’s H-1B dependency. Although most employers are non-dependent because of the current exemptions, this change could render them H-1B dependent.

The bill also proposes to prioritize allocation of H-1B visas each fiscal year, with preference first to employers that hire mainly U.S. workers, and then to H-1B dependent employers, with further preference based on payment of wages at 150 to 200% of each prevailing wage level (click here for more about prevailing wage levels). For example, if a company attempted to file an H-1B cap petition for a Software Developer in Boston, they would need to pay an entry-level (Level I) employee between $111,603 and $148,804 to receive preference for their petition. However, coupled with the new H-1B dependency rules, many small to mid-sized companies could be branded dependent and subject to this wage requirement, unless they could afford a $130,000 salary for an exemption.

In the wake of highly-publicized abuse of the H-1B program, citizens and members of Congress alike are rightly asking questions aimed at companies that use H-1Bs to pay low wages and undercut American workers. However, according to a USCIS report to Congress, the average annual compensation for H-1B workers is $84,000, and the median salary continues to increase from $72,000 in FY 2013 to $75,000 in FY 2014. According to the U.S. Census Bureau, this is on par with the average American annual income of $72,824 for workers with advanced degrees, and exceeds the median household income of $63,813 for the general population. Additionally, the majority of H-1B workers exceed the educational requirement of a Bachelor’s degree, with 55% of applicants holding a Master’s degree or higher.  Most new H-1B visa petitions are for foreign-born graduates of U.S. educational institutions, not “outsourced” labor.

The uncertainty of the H-1B lottery process has resulted in some employers, mainly smaller and mid-sized American companies, abandoning their attempts at hiring H-1B workers. The low H-1B cap and resulting lottery have reduced attempts by American companies to employ the “best and brightest” in the world to chance. While Rep. Lofgren’s bill contains many provisions that are indeed helpful, the provisions regarding allocation of H-1B visas and redefinition of H-1B dependency, coupled with the current H-1B visa cap, will only serve to make employment-based immigration more difficult for American employers, and could have the effect of making the U.S. increasingly unattractive for talented and highly-skilled foreign nationals. We at the Law Offices of Leslie Creedy believe that real change will come when the H-1B visa cap is raised.

My H-1B Cap Petition Was Not Accepted…Now What?

On May 2, 2016 USCIS announced that it completed data entry of all Fiscal Year 2017 H-1B cap-subject petitions. If you have not received notification by now that your petition was accepted, it is highly likely that yours was not selected and will be returned. The H-1B visa has emerged as the most popular nonimmigrant employment category for U.S. employers, allowing companies to recruit recent foreign graduates of U.S. universities and providing a path to permanent residence. However, in recent years, they have also become a highly sought-after and difficult to obtain classification. H-1Bs are limited, or “capped”, at 65,000 new cases per year, with an additional allotment of 20,000 for graduates of U.S. Master’s degree programs. Each year, the demand for new H-1Bs has increasingly exceeded this limitation, with upward of 236,000 petitions filed this year. This leaves over 150,000 applicants, nearly two-thirds, rejected from USCIS’s randomized lottery acceptance process. While some bipartisan efforts have emerged to raise the cap to meet the demands of U.S. employers and foreign students who wish to pursue a post-graduate career, Congress is overwhelmingly unwilling to increase the number of new H-1Bs.

The current scheme leaves many faced with the very real possibility that they will run out of time in F-1 post-completion Optional Practical Training or other work-authorized status. Many of this year’s rejected cases represent their second or third attempt for H-1B status. If you have found yourself in this difficult circumstance, you may have other options available that can allow you to remain employed in the United States. Below is a listing of just some of the options that we have secured for diverse professionals from across the world:

STEM OPT Extension

As explained in our earlier blog post, the rules regarding STEM OPT extensions changed as of May 10, 2016, increasing the extension period from 17 to 24 months. This can help students remain authorized for employment while possibly allowing two more attempts at acceptance in future H-1B lotteries. However, the STEM extension process is much more complicated than previous years, requiring preparation of a formal training plan on Form I-983, as well as new attestation requirements for both students and employers. This requires cooperation from students and employers to ensure that the training plan is both accurate and adhered to, and that it also meets legal requirements. If you are considering a STEM extension and need additional guidance through the process, we would be happy to speak with you and assist.

Back to School

Did you know that all of the 30 fastest-growing occupations in the next decade will require at least some background in STEM? It’s no wonder that 50% of post-graduate degrees in STEM at U.S. universities are awarded to foreign nationals. Master’s degrees from a U.S. college or university, particularly ones in a STEM discipline, can prolong your employment authorization, enhance your employability, and increase your chances of obtaining an H-1B visa upon graduation. As mentioned above, USCIS allots an additional 20,000 H-1B visas for graduates of U.S. Master’s programs, which may help your chances of obtaining an H-1B. In the meantime, while you are earning your degree, you may also remain employed throughout your Master’s program via Curricular Practical Training. A U.S. Master’s degree in a STEM field is also a viable option for liberal arts graduates who are not eligible for a STEM extension. A STEM degree in a Master’s program that combines business and technology, such as Management Information Systems, can be very helpful to your job search. Additionally, a Master’s degree in a STEM field will entitle a graduate to a STEM OPT extension after graduation. Although pursuing post-graduate education carries many benefits, the potential financial burden is substantial, and it is a serious decision that requires significant consideration.

J-1 Trainee or Intern

J-1 visas are offered for specific areas in the private and public sector to provide for cultural exchange. In certain circumstances, the J-1 Trainee and Intern categories can serve as an alternative to an H-1B. However, an important distinction from the H-1B visa is that their educational credentials must have been earned outside of the United States. Also, while J-1 Trainees and Interns can be paid, it is important to remember that the foreign national must take part in a bona fide training program, the details of which must be completed and submitted to the Department of State through a DOS-certified sponsor. When considering the possibility of a J-1 visa, one must keep in mind the two-year home residency requirement of Section 212(e) of the Immigration and Nationality Act. Based on one’s home country and the subject matter of their training program, you may be required to return to your home country for two years before you are allowed to pursue an H-1B visa or permanent residence in the United States.

L-1 Intracompany Transferee

If you have worked for a branch, affiliate, subsidiary, or parent company of your potential employer for more than one year out of the past three years, you may qualify for an L-1 intracompany transferee visa. The L-1 visa has two subcategories: L-1A for executives and managers, and L-1B for workers with “specialized knowledge” gained at the entity abroad. The position in the U.S. must be either managerial or utilize that same specialized knowledge gained abroad. An L-1B visa is valid for five years while an L-1A is valid for seven. Other attractive aspects of the L-1 visa are that spouses in L-2 dependent status are eligible for employment authorization and, like H-1Bs, they are “dual intent”, meaning you may seek permanent resident status without violating nonimmigrant status.

E-2 Treaty Investor

According to the Partnership for a New American Economy, immigrants start 25% of all businesses in seven of the eight fastest-growing sectors of the U.S. economy. If you are a citizen of a country that maintains a treaty of commerce and navigation with the United States and you have the means to make a significant investment in the United States, you may qualify as an E-2 Treaty Investor. As an E-2 Treaty Investor, you must develop and direct the operations of an enterprise in which you have invested a substantial amount of capital. Although there is no set minimum level of investment, it must substantial and engaged in a real operating enterprise that exists before applying for E-2 status.

O-1 Visa for Extraordinary Ability

The O-1 visa is for foreign nationals who possess extraordinary ability in the sciences, education, business, athletics, or in the arts, motion picture, or television industry. Generally, extraordinary ability is demonstrated by sustained national or international acclaim with a job opportunity in the United States to work in that area of extraordinary ability. On its face, the O-1 category is difficult to prove; one must show that they are “one of the small percentage who has risen to the very top of the field of endeavor.” However, USCIS requires that you must meet at least three of eight listed criteria, which you can view here. If you think you may qualify for an O-1 visa or would like to learn more about the process, we would be happy to provide you with a consultation.

Trade Agreement Visas – TN, H-1B1, and E-3

If you are a national of Canada, Mexico, Chile, Singapore, or Australia, you may qualify for a visa based on a trade agreement between the United States and your country.

Canadian and Mexican NAFTA Professionals

Under the North American Free Trade Agreement (NAFTA), citizens of Canada and Mexico may be eligible for TN status. As a TN professional, you will be permitted to enter the United States and work in prearranged business activities for U.S. or foreign employers. A unique characteristic of the TN visa is that applicants must qualify to work in an occupational category on the Designated Profession List for TN Status. Generally, each of these professions require a baccalaureate degree as an entry-level requirement. As Canadian citizens do not need visas, they can apply for TN status directly at a U.S. port of entry (airport or border crossing). Mexican citizens can apply in person at a U.S. consulate in Mexico.

H-1B1 for Chile and Singapore

A variant of the H-1B visa, the H-1B1 was introduced as part of free trade agreements with Chile and Singapore. In many ways, the visa’s requirements are similar to the H-1B visa. The foreign national must come to the United States to work in a “specialty occupation” requiring a bachelor’s degree. H-1B1s are even subject to their own cap, with 1,400 allotted for Chilean nationals and 5,400 for Singaporean nationals. However, like the TN, H-1B1 beneficiaries can apply for their visa directly at a U.S. Embassy in their home country. Also, the H-1B1 is valid only for one year and can be renewed indefinitely in one-year increments, unlike the H-1B visa, which is subject to a six-year limit.

E-3 Visas for Australians

Under the Australia-United States Free Trade Agreement, the E-3 visa program began in 2005 for Australian citizens. It is similar in many respects to the H-1B visa, requiring a specialty occupation, a bachelor’s degree or foreign equivalent, and a certified Labor Condition Application. However, there are certain unique benefits. Spouses of E-3 visa holders may work in the United States unrestricted, even if they are not Australian citizens. The E-3 visa is also renewable indefinitely in two-year increments.

Employment Authorization for H-4 Dependent Spouses

If you are the spouse of an H-1B worker, you may be eligible for employment authorization. Generally, H-4 dependents of H-1B beneficiaries are not allowed to work in the United States. However, as of May 26, 2015, if an H-1B nonimmigrant is the beneficiary of an approved Form I-140, their H-4 spouse can file Form I-765 for an Employment Authorization Card.

Family-based Permanent Residence

Other than employment-based petitions, family-based immigration is the primary path to permanent residence in the United States. If you are married to a U.S. citizen, you are eligible to adjust status to permanent residence through filing Form I-130, Petition for Alien Relative, and Form I-485, Application to Register Permanent Residence or Adjust Status. However, USCIS applies a great deal of scrutiny to marriage-based permanent residence cases to ensure it is a “bona fide” marriage, or one that is not entered into for immigration benefits or based on fraud. If USCIS even suspects that a marriage is illegitimate, it can result in an unpleasant application process, ranging from surprise home visits by immigration officers to court proceedings and removal from the United States. You should only consider this option if you are in a legitimate marriage and want to remain in the United States with your spouse.

If you believe you qualify for one of the categories listed above or would like to learn more about your options, please do not hesitate to contact us for a consultation. We have assisted people from across the world in solving their unique immigration problems, and we would be happy to help you.

USCIS Publishes Proposed Rule Increasing Filing Fees

Today, USCIS published a proposed rule in the Federal Register that will increase filing fees for most applications. The agency last increased its filing fees in 2010. The proposed rule is open for written comment until July 5, 2016.

USCIS is funded almost entirely by filing fees, with direct congressional appropriations accounting for just 1% of the agency’s budget. This funding structure serves as the primary justification for the fee increase. As explained in the proposed rule:

“USCIS calculates its fees to recover the full cost of USCIS operations, which do not include the limited appropriated funds provided by Congress. USCIS anticipates if it continues to operate at current fee levels, it will experience an annual shortfall of $560 million between IEFA (Immigration Examinations Fees Account) revenues and costs. This projected shortfall poses a risk of degrading USCIS operations funded by IEFA revenue. The proposed rule would eliminate this risk by ensuring full cost recovery.”

USCIS has recognized the need for increased staffing and resources, opening the Potomac Service Center in Arlington, Virginia in 2015. However, the fees are a necessary component in addressing long processing times and a growing backlog of nonimmigrant and immigrant cases.

Although each application will experience a different change, the rule will result in an overall fee increase of 21%. Notable changes include:

  • I-129, Petition for Nonimmigrant Worker – Increase from $325 to $460 (42% increase)
  • I-130, Petition for Alien Relative – Increase from $420 to $535 (27% increase)
  • I-131, Application for Travel Document – Increase from $360 to $575 (60% increase)
  • I-140, Immigrant Petition for Alien Worker – Increase from $580 to $700 (21% increase)

The most significant increases are the fees for applications associated with the EB-5 Immigrant Investor Program. Perhaps in reaction to the SEC’s investigation of EB-5-related investments at the Jay Peak ski resort in Vermont and continued congressional scrutiny of the program, the filing fee for  Form I-526, Immigrant Petition by Alien Entrepreneur, would increase by 145% from $1,500 to $3,675. The fee for Form I-924, Application for Regional Center Designation Under the Immigrant Investor Program, would make a 186% jump from $6,230 to $17,795.

The new rule also proposes to establish a three-level fee for Form N-400, Application for Naturalization. First, USCIS would increase the standard fee from $595 to $640. Second, the agency would continue to charge no fee to applicants who meet the requirements of Sections 328 or 329 of the Immigration and Nationality Act (INA) with respect to military service and applicants with approved fee waivers. Third, USCIS would charge a reduced fee of $320 for naturalization applicants with family income greater than 150 percent and not more than 200 percent of the Federal Poverty Guidelines. This change has been proposed to increase access to United States citizenship.

Another change would be the procedure for accepting applications with checks that have been dishonored or lack the required biometrics fee. Currently, regulations prevent USCIS from rejecting these cases until the applicant has been provided an opportunity to correct the deficiency in their payment. Under the proposed rule, USCIS will be able to reject the case entirely until proper payment has been submitted.

We have included a table of all proposed fee increases. We will continue to monitor the situation as it develops.

Proposed Fees by Immigration Benefit
Immigration Benefit Request Current Fee Proposed Fee Delta ($) Percent Change
G-1041 Genealogy Index Search Request $20 $65 $45 225%
G-1041A Genealogy Records Request (Copy from Microfilm) $20 $65 $45 225%
G-1041A Genealogy Records Request (Copy from Textual Record) $35 $65 $30 86%
I-90 Application to Replace Permanent Resident Card $365 $455 $90 25%
I-102 Application for Replacement/Initial Nonimmigrant Arrival/Departure Document $330 $445 $115 35%
I-129 Petition for a Nonimmigrant Worker $325 $460 $135 42%
I-129F Petition for Alien Fiancé(e) $340 $535 $195 57%
I-130 Petition for Alien Relative $420 $535 $115 27%
I-131/I-131A Application for Travel Document $360 $575 $215 60%
I-140 Immigrant Petition for Alien Worker $580 $700 $120 21%
I-290B Notice of Appeal or Motion $630 $675 $45 7%
I-360 Petition for Amerasian Widow(er) or Special Immigrant $405 $435 $30 7%
I-485 Application to Register Permanent Residence or Adjust Status $985 $1,140 $155 16%
I-526 Immigrant Petition by Alien Entrepreneur $1,500 $3,675 $2,175 145%
I-539 Application to Extend/Change Nonimmigrant Status $290 $370 $80 28%
I-600/600A/800/800A Orphan Petitions $720 $775 $55 8%
I-601A Application for Provisional Unlawful Presence Waiver $585 $630 $45 8%
I-687 Application for Status as a Temporary Resident under Section 245A of the Immigration and Nationality Act $1,130 $1,130 $0 0%
I-690 Application for Waiver of Grounds of Inadmissibility $200 $715 $515 258%
I-694 Notice of Appeal of Decision $755 $890 $135 18%
I-698 Application to Adjust Status from Temporary to Permanent Resident (Under Section 245A of the INA) $1,020 $1,670 $650 64%
I-751 Petition to Remove Conditions on Residence $505 $595 $90 18%
I-765 Application for Employment Authorization $380 $410 $30 8%
I-800A Supp. 3 Request for Action on Approved Form I-800A $360 $385 $25 7%
I-817 Application for Family Unity Benefits $435 $600 $165 38%
I-824 Application for Action on an Approved Application or Petition $405 $465 $60 15%
I-829 Petition by Entrepreneur to Remove Conditions $3,750 $3,750 $0 0%
I-910 Application for Civil Surgeon Designation $615 $785 $170 28%
I-924 Application for Regional Center Designation Under the Immigrant Investor Program $6,230 $17,795 $11,565 186%
I-924A Annual Certification of Regional Center $0 $3,035 $3,035 N/A
I-929 Petition for Qualifying Family Member of U-1 Nonimmigrant $215 $230 $15 7%
N-300 Application to File Declaration of Intention $250 $270 $20 8%
N-336 Request for Hearing on a Decision in Naturalization Proceedings $650 $700 $50 8%
N-400 Application for Naturalization $595 $640 $45 8%
N-470 Application to Preserve Residence for Naturalization Purposes $330 $355 $25 8%
N-565 Application for Replacement Naturalization/Citizenship Document $345 $555 $210 61%
N-600/N-600K Application for Certificate of Citizenship $600 $1,170 $570 95%
I-191, I-192, I-193, I-212, I-601, I-602, I-612 Waiver Forms $585 $930 $345 59%
  USCIS Immigrant Fee $165 $220 $55 33%
  Biometric Services $85 $85 $0 0%

DHS Releases New STEM OPT Extension Regulations – How Will You Be Affected?

After much uncertainty and ongoing litigation, the Department of Homeland Security has published new regulations that increase the Optional Practical Training (OPT) extension period from 17 months to 24 months for STEM (Science, Technology, Engineering, and Mathematics) graduates in F-1 nonimmigrant status. However, one of the rules – which takes effect from May 10, 2016 – creates new procedures and obligations for both students and employers. United States Citizenship and Immigration Services (USCIS) will continue to adjudicate 17-month STEM extensions through May 9, 2016. Starting May 10, all requests will be processed based on the new 24-month regulations.

The regulations create new attestation requirements for employers of STEM OPT holders, specifically the creation and maintenance of a detailed “individualized training plan” through Form I-983, administered by Immigration and Customs Enforcement (ICE), which is a separate component from the I-765 Application for Employment Authorization. The I-983 requires employers to certify that they are paying STEM OPT beneficiaries a wage that is commensurate with similarly situated U.S. workers. The form also requires employers to describe the student’s “training program” as part of OPT, including a description of the student’s role at the company, their goals and objectives in relation to skills and education, employer oversight during the OPT period, and evaluations and assessments by both the employer and student. An overview of the new form is available at https://studyinthestates.dhs.gov/form-i-983-overview. If a student has filed or will file their STEM OPT extension and it will be pending on May 10, 2016, USCIS will issue a Request for Evidence (RFE). The RFE will allow the student to request the full 24-month extension, and will request submission of a new Form I-20 reflecting the 24-month extension based on a completed Form I-983.

Employers must ensure compliance with the regulations throughout the OPT period, certifying adherence to training and payment, and reporting terminations and material changes (such as changes in hours, compensation and terminations) to the student’s Designated Student Officer (DSO) at the institution that granted their degree. Employers should also note that ICE may conduct site visits to verify that the details of the student’s employment match those listed on the I-983, and violations can result in fines and criminal penalties.

Students are also responsible for accurate reporting and compliance with the new regulations. Every six months, students must communicate with their DSO to confirm that their SEVIS record accurately reflects their current circumstance, including their mailing address, employer’s name and address, and status of current employment. Students are also responsible for submitting annual self-evaluations to their DSO about the progression of their training experience. Students must report any material changes of their training to their DSO, including changes of work hours, pay, training objectives, and, most importantly, a change of employer or unemployment. Students may also report employer noncompliance and violations directly to ICE.

If you are an employer or an applicant for a STEM OPT extension and you would like to know more about your responsibilities under the new regulations, please do not hesitate to contact us.