News11/15/2017 - What is a Functional Manager?
New USCIS Guidelines on Functional Managers
Whether someone can be defined as a “functional manager” in the world of U.S. immigration is relevant when a company is trying to transfer an individual from one entity abroad to a U.S. entity. It is also a relevant question when a company is seeking to sponsor a similar individual for a green card. On November 8, 2017, U.S. Citizenship and Immigration Services (USCIS) released a new policy memorandum in response to the decision in Matter of G- Inc. of the Administrative Appeals Office (AAO) which addresses this very question.
In Matter of G- Inc., the AAO defines a “functional manager” and provides a set of criteria which must be met in order to demonstrate that an individual is a functional manager. In summary, functional managers are individuals who manage or direct an important function for a business or organization. This is different from what the AAO refers to as a “personnel manager,” which is a person responsible for managing other supervisory, professional, or managerial people rather than a particular function.
To fulfill the definition of a functional manager, the following criteria must be met:
(1)the function is a clearly defined activity;
(2)the function is “essential,” i.e., core to the organization;
(3)the beneficiary will primarily manage, as opposed to perform, the function;
(4)the beneficiary will act at a senior level within the organizational hierarchy or with respect to the function managed; and
(5)the beneficiary will exercise discretion over the function’s day-to-day operations.
So when thinking of whether an individual is a functional manager one must first determine whether one’s function is a defined and critical piece to the organization and then whether she meets the definition based on her job duties and level in the organization. Without both, the criteria cannot be met. Practically this does not greatly change previous practices and requirements. However, it does provide a clearer definition on how to meet the definition of a functional manager and what type of evidence to provide.
The above information has been provided for educational purposes only by Clark Lau LLC (www.clarklau.com). Please feel free to contact a knowledgeable immigration attorney as to how the above may apply to one’s particular circumstances.
11/14/2017 - Who's Who Legal Corporate Immigration Announced
Attorney Erin Hogan has been selected to be a part of Who’s Who Legal: Corporate Immigration 2018. Erin joins Managing Partner Vincent Lau and Senior Counsel Steven Clark in this distinction. Each year Who’s Who Legal identifies the foremost legal practitioners in business law based on comprehensive, independent research and peer-reviews. For more information about our team, check out https://www.clarklau.com/index.cfm/AboutUs/OurTeam
11/01/2017 - Best Lawyers Ranking
Clark Lau LLC has been recognized in the 2018 Best Lawyers rankings as top listed in Massachusetts in Immigration Law and also top listed in Cambridge in Immigration Law. Additionally, all five of its attorneys have been recognized among the best lawyers in immigration law. Senior Counsel Steven Clark has been recognized in this category since 1990 and Managing Partner Vincent Lau has been recognized in this category since 2010. For more information about the firm, check out www.clarklau.com
10/04/2017 - Eric Lockwood Speaks on Transatlantic Business
On October 16, Attorney Eric Lockwood will participate in a panel discussion entitled “Mindful Management of Your Transatlantic Business,” sponsored by the British American Business Council of New England. He will provide an immigration law perspective as he joins three other speakers, along with the British General Consul Harriet Cross, in discussing the cultural, communication and operational challenges in managing a transatlantic business. The event will be hosted by Talent Works Ltd, at 201 Jones Road in Waltham, MA. Additional information about how to register for this event can be found here: http://www.babcne.org/
09/29/2017 - Clark Lau Turns Five
While Clark Lau LLC’s predecessor firm (Flynn & Clark PC was founded in 1976), Clark Lau was established on October 1, 2012. A special thanks goes to the strong support Clark Lau has received over the last five years from its clients nationally and internationally and from the broader immigration legal community. Clark Lau has been ranked as one of the “Best Law Firms” by U.S. News and World Report and all five of its attorneys are recognized as “Best Lawyers.”
Clark Lau looks forward to continuing its commitment to providing effective, sensible, and responsive immigration solutions. While professional services become more and more automated, Clark Lau embraces technology in order to spend its time on face-to-face and high-touch immigration services. Read more as to why Clark Lau should be your choice: https://www.clarklau.com/index.cfm/AboutUs/WhyChooseUs
09/27/2017 - Presidential Proclamation and New Travel Restrictions
On Sunday, September 24, 2017, President Trump issued a presidential proclamation (“proclamation”) whereby he sets forth specific travel restrictions for individuals from the following seven countries: Chad, Iran, Libya, North Korea, Syria, Venezuela, and Yemen. These restrictions start October 18, 2017. President Trump indicates that these restrictions arise out of a consideration of whether the government of these countries is cooperating with the U.S. and whether the information sharing and identity-management protocols of each country allow for effective screening and vetting protocols and procedures of the United States. The U.S. government has just completed a review of the practices of over 200 countries and its conclusion is that the governments of these seven countries do not sufficiently meet the standards necessary for our national security and public safety. Unlike prior Executive Orders on travel, this proclamation provides country-specific restrictions. What follows is quick summary of the restrictions; please note also the exceptions.
What are the countries impacted?
The proclamation recognizes that immigrants, i.e., those seeking visas to enter the United States as legal permanent residents, also known as green card holders, and nonimmigrants, those coming to the U.S. for a specific, temporary purpose require different levels of screening. For these reasons, the proclamation sets forth not only countries that are impacted but also the type of visa applicants.
Individuals from the seven countries meeting the conditions above and those who:
Waivers are granted on a case-by-case basis and will consider circumstances where denial would cause the foreign national undue hardship; entry would not pose a threat to the national security or public safety of the United States; and entry would be in the national interest.
Other factors for waivers include the following: the foreign national has previously been admitted to the United States for a continuous period of work, study, or other long-term activity, is outside the United States on the applicable effective date, seeks to reenter the United States to resume that activity, and the denial of reentry would impair that activity; the foreign national has previously established significant contacts with the United States but is outside the United States on the applicable effective date for work, study, or other lawful activity; the foreign national seeks to enter the United States for significant business or professional obligations and the denial of entry would impair those obligations; the foreign national seeks to enter the United States to visit or reside with a close family member (e.g., a spouse, child, or parent) who is a United States citizen, lawful permanent resident, or alien lawfully admitted on a valid nonimmigrant visa, and the denial of entry would cause the foreign national undue hardship; the foreign national is an infant, a young child or adoptee, an individual needing urgent medical care, or someone whose entry is otherwise justified by the special circumstances of the case; the foreign national has been employed by, or on behalf of, the United States Government (or is an eligible dependent of such an employee), and the foreign national can document that he or she has provided faithful and valuable service to the United States Government; the foreign national is traveling for purposes related to an international organization designated under the International Organizations Immunities Act (“IOIA”), 22 U.S.C. 288 et seq., traveling for purposes of conducting meetings or business with the United States Government, or traveling to conduct business on behalf of an international organization not designated under the IOIA; the foreign national is a Canadian permanent resident who applies for a visa at a location within Canada; the foreign national is traveling as a United States Government-sponsored exchange visitor; or the foreign national is traveling to the United States, at the request of a United States Government department or agency, for legitimate law enforcement, foreign policy, or national security purposes.
Will these restrictions change?
The proclamation charges the Departments of State and Homeland Security to conduct ongoing assessments and to develop further protocols and procedures. They are to report back within 180 days, but they are also allowed to lift any restrictions if they are satisfied with the cooperation, information sharing, and protocols of certain countries.
What about those immigrant and nonimmigrant visas that have already been issued?
They will not be revoked. Additionally, the proclamation indicates that “any individual whose visa was marked revoked or marked canceled as a result of Executive Order 13769 of January 27, 2017 (Protecting the Nation from Foreign Terrorist Entry into the United States), shall be entitled to a travel document confirming that the individual is permitted to travel to the United States and seek entry under the terms and conditions of the visa marked revoked or marked canceled. Any prior cancellation or revocation of a visa that was solely pursuant to Executive Order 13769 shall not be the basis of inadmissibility for any future determination about entry or admissibility.”
What about an individual who has been granted asylum, who has been admitted as a refugee, or granted withholding of removal or protection under the Convention Against Torture?
The proclamation does not apply to an individual who has been granted asylum by the United States, to a refugee who has already been admitted to the United States, or to an individual granted withholding of removal or protection under the Convention Against Torture.
The above information has been provided for educational purposes only. Please stay tuned as more details and updates become available. Please also contact your Clark Lau LLC attorney to determine how your particular circumstances may be impacted.
09/06/2017 - Responding to the Rescission of Deferred Action for Childhood Arrivals (“DACA”)
As of yesterday, the White House announced that it would be rescinding the DACA program. We are sure that you have come across a lot of information in the news and on the internet. Let us try to answer some of the more common questions raised.
What were the previous guidelines for granting DACA?
DACA was a program instituted by President Obama via Executive Order in June 2012. Individuals who met the following criteria were eligible for DACA, which essentially meant that, while the government had the legal basis for deporting individuals who had no valid permission to remain in the United States, the government would not do so for the time being, i.e., they would “defer the action.” In the meantime, DACA individuals would be eligible to apply for employment authorization and travel permission.
Criteria included the following:
What happens to those who have DACA benefits?
Those who have valid DACA benefits, such as employment authorization and travel permission can continue to keep these benefits and use them until the expiration dates. If the actual documentation is lost, individuals can apply for new ones, but only with the same validity dates. USCIS has cautioned however that those with travel permission will be subject to the discretion of the officers at the border to determine the admissibility of the individuals when they return. That is, it is impossible that the travel permission will not be honored.
Clark Lau LLC advises that you check with your attorneys before making any travel plans.
Can anyone still file for or seek an extension of such benefits?
Applications for initial DACA benefits, including employment authorization documents, received by USCIS by yesterday September 5, 2017 will be adjudicated on a case-by-case basis. Pending applications for travel permission however will not be processed; any fees filed will be refunded.
Pending applications for renewal of DACA benefits received as of September 5, 2017 and applications for renewals filed by October 5, 2017 where individuals have benefits expiring between September 5, 2017 and March 5, 2018 will be adjudicated on a case-by-case basis.
What happens next?
Please note that the above information has been provided by Clark Lau LLC for educational purposes only. Please consult your Clark Lau LLC attorney to determine how these changes may or may not impact your circumstances.
08/31/2017 - End of Summer, End of J-1 Students?
As the summer season draws to a close, undoubtedly many of you may have taken family to various tourist attractions across the United States and undoubtedly you may have run across young people serving as theme park ride attendants, lifeguards, tour guides, and the like. Alternatively, you may have sent your children off to summer camp, where many young camp counselors lead them in both active and educational opportunities that kept them occupied for days on end. Many of these young people were here in the United States as cultural exchange students in the J-1 program. According to some sources, this may be the last summer for them.
In compliance with President Trump’s Executive Order “Buy American and Hire American” the government has been called to reexamine a number of immigration programs which could impact jobs for Americans. According to a Wall Street Journal article published over the weekend on August 27, 2017, this includes the possibility of terminating some forms of the J-1 program: summer work-travel program, au pair program, camp counselors, interns, and trainees. The summer work-travel program brings many of the students stationed at resorts and theme parks across the country. The au pair program brings individuals into private homes to care for young children while attending classes. Camp counselors staff many of the summer camps across the country. Additionally, interns and trainees, who are either enrolled in college or who just graduated, come to the U.S. for a few months to obtain specific training in their field of study before returning home to pursue other career options. While the J-1 program has been created by statute, its different programs can be changed by Executive Order. There is no official word from the White House yet, but stay tuned.
Clark Lau LLC provides the above for informational purposes only. Please contact your Clark Lau attorney as to how this may impact your particular circumstances. Please stay tuned for more updates as they arise.
08/29/2017 - In-Person Interviews for Employment-Based Cases
USCIS Expands In-Person Interview Requirement for Certain Green Card Applications
In seeking legal permanent residence, i.e., a green card, an individual who is in the United States usually submits a Form I-485, Application to Adjust or Register Status as a Permanent Resident. One can file a Form I-485 based on marriage, employment, accomplishment, and investment. Relatives of asylees/refugees who are in the United States may also file petitions (Form I-730) to join their asylee/refugee family members. To date, in-person interviews have been limited to marriage-based cases. For other types of cases, once the government has reviewed all of the necessary documents and has screened the individual via background and medical checks, permanent residency is granted.
USCIS announced today that as of October 1, 2017, they will start expanding the types of cases that will be subject to an in-person interview. These will include employment-based cases and asylee/refugee cases. This change is to comply with Executive Order 13780, entitled “Protecting the Nation From Foreign Terrorist Entry into the United States.” USCIS has added that they will further expand in-person interviews to other immigration benefits. Please stay tuned.
Clark Lau LLC has provided the above information for informational purposes only. We will closely monitor how this will impact current pending and future applications. If you have any questions, please do not hesitate to contact your Clark Lau LLC attorney. Please stay tuned for the latest updates.
08/18/2017 - Vince Lau Speaking on Green Cards
Vince Lau serves as discussion leader at AILA PERM/H-2B Practice Conference in Seattle today and speaks on practice tips and strategies to get the prevailing wage determination correct and timely in connection with an employment-based green card process.
08/11/2017 - Clark Lau LLC Attorneys Edit Immigration Practice Manual
Clark Lau LLC attorneys serve as editors of the latest edition of the Immigration Practice Manual published by Massachusetts Continuing Legal Education. This manual covers a wide range of immigration practice areas and provides the latest in legal theory and practical tips. Check out the latest edition: https://www.mcle.org/product/catalog/code/2050236B00
08/09/2017 - Vince Lau Joins BC Law Alumni Board
Vince Lau recently joined the Boston College Law School Alumni Board. One of his first official duties was to attend a screening of "Abacus: Small Enough to Jail" which is a documentary about a community bank owned and run by the family of BC alumnae. This was the only bank that was indicted for mortgage fraud during the 2008 financial crisis. You can catch the documentary on PBS this fall.
In the meantime, read Vince's reactions: https://bclawimpact.org/2017/08/09/a-film-to-make-our-alma-mater-proud/
08/02/2017 - RAISE Act - New Immigration Rules?
RAISE Act Endorsed by Trump
On August 2, 2017, President Trump endorsed a bill that aims to limit legal immigration to the United States. The proposed Reforming American Immigration for Strong Employment Act (“RAISE”) was initially introduced in April 2017. If implemented, the bill would change the existing process for legal immigration by limiting the number of immigrants entering the United States to 500,000 per year. It would also grant permanent residence on the basis of merit. This system would give preference to highly-skilled English-speaking immigrants and limit family-based preference immigration categories. Under this proposed bill, U.S. citizens and Legal Permanent Residents would not be able to petition for their adult children, and U.S. citizens would not be able to petition for their siblings. In addition, the proposed bill would limit the number of refugees allowed to enter the United States to 50,000 per year and end the diversity visa lottery program.
Please note that this is only a proposed bill and there has not been any immediate changes to the existing immigration laws. We expect this bill to face some strong resistance when it comes to a vote. For now, if you have any immigration concerns, please contact an immigration attorney to discuss the particulars of your case. This information has been provided for informational purposes only by Clark Lau LLC.
07/28/2017 - Vince Lau Appointed as Vice Chair
The American Immigration Lawyers Association (AILA) is the national association of more than 15,000 attorneys and law professors who practice and teach immigration law. AILA member attorneys represent U.S. families seeking permanent residence for close family members, as well as U.S. businesses seeking talent from the global marketplace. AILA members also represent foreign students, entertainers, athletes, and asylum seekers, often on a pro bono basis. Founded in 1946, AILA is a nonpartisan, not-for-profit organization that provides continuing legal education, information, professional services, and expertise through its 39 chapters and over 50 national committees. (www.aila.org)
Among one of AILA's most active committees is its U.S. Department of Labor (DOL) liaison committee. While the committee does not address individual case resolutions, it does work with the different components of the DOL touching upon the various employment-based immigration benefits and processes. Having been a member on the DOL liaison committee for the past several years, starting this summer Vince has been appointed as the Vice Chair of the committee with a particular responsibility over the H-1B and PERM processes.
07/17/2017 - International Entrepreneur Rule On Hold
International Entrepreneur Rule On Hold
In January, the Federal Register announced that a new option for entrepreneurs, the International Entrepreneur Rule, would take effect on July 17, 2017 (today). [Please see our postings on August 27, 2016 and January 17, 2017 below.] This generated a lot of hope and excitement for the entrepreneur committee, until last week when the Federal Register announced that the effective date of this rule would be put on hold until March 14, 2018 in order that the public may provide feedback in response to the possibility of rescinding this rule. While this outcome is not a surprise given the current political climate, it is also not likely that the rule will take effect in March.
Individuals who were hoping to benefit from the International Entrepreneur Rule however are not without other options. Options such as the E-1, E-2, and other nonimmigrant visas still remain viable short-term options for individuals to consider. Likewise, depending on the level of experience and accomplishment of the entrepreneur, the individual may also want to consider any of the short-term and long-term accomplishment-based visa options. In fact, in the big picture, these options may offer a more stable and long-term alternative solution to the proposed International Entrepreneur Rule.
The above information has been provided for educational purposes only. Please contact your Clark Lau LLC attorney to consider the facts of your situation and what options are available to you.
07/14/2017 - Clark Lau LLC Welcomes Courtney Fields
Clark Lau LLC welcomes new team member Courtney Fields!
Check out Courtney’s bio as well as the qualifications of the rest of the Clark Lau LLC team! We’re here to partner with you as you tackle your immigration needs!
07/14/2017 - ABA Publishes Erin Hogan Article
American Bar Association features Clark Lau LLC Attorney Erin Hogan’s article on achievement-based immigrant visas.
Check out more about this option for a green card: Click here
06/29/2017 - Travel Ban Update
What is a Bona Fide Relationship?
The U.S. Supreme Court issued a decision on Monday regarding whether the temporary injunctions entered by the lower courts against Executive Order 13780, “Protecting the Nation From Foreign Terrorist Entry Into the United States,” commonly known as the Travel Ban, should be upheld. In short, the Supreme Court indicated the Travel Ban should not apply to individuals who have “any bona fide relationship with a person or entity in the United States.” The Travel Ban could however be applied to those without such a connection. Additionally, where the Executive Order suspended the U.S. refugee program, the Supreme Court is allowing those with similar bona fide relationships to enter the U.S.
Stay tuned. Please note that the above information has been provided for educational purposes, not legal advice. Please contact your Clark Lau LLC attorney to determine how this may apply to your specific situations.
06/26/2017 - US Supreme Court Partially Upholds Travel Ban
Travel Ban Upheld in Part by the Supreme Court for Now
The U.S. Supreme Court issued a decision today regarding whether the temporary injunctions entered by the lower courts against Executive Order 13780, “Protecting the Nation From Foreign Terrorist Entry Into the United States,” commonly known as the Travel Ban, should be upheld. In short, the Supreme Court indicated the Travel Ban should not apply to individuals who have “any bona fide relationship with a person or entity in the United States.” The Travel Ban could however be applied to those without such a connection. Additionally, where the Executive Order suspended the U.S. refugee program, the Supreme Court is allowing those with similar bona fide relationships to enter the U.S.
Similar to deciding other temporary injunctions, the Supreme Court had to weigh the following factors: (1) the likelihood of success of the challenge and (2) the harm that would be caused if no quick action were taken. Based on this balancing, the Supreme Court allowed only part of the Travel Ban to be enforced. This is a temporary decision and the Supreme Court has said that it will revisit this matter when it returns from its recess in October. Of legal note is that some members of the Supreme Court believed that the group exempt from the Travel Ban was too broad.
What This Decision Means:
The Executive Order prohibited the entry of individuals from six different countries (Libya, Iran, Somalia, Sudan, Syria, and Yemen) for at least 90 days. The Supreme Court is now allowing individuals from these countries to enter the U.S. so long as these individuals can demonstrate a “bona fide relationship with a person or an entity in the United States.”
The Supreme Court reasoned that a sufficient “bona fide relationship” must be similar to those held by the individuals who brought the lawsuits against the Travel Ban.
Examples include the following:
Should you have any questions concerning the above update, which should not be construed as legal advice, please contact Clark Lau LLC to see how this may impact your specific circumstances.
06/01/2017 - Clark Lau Joins Thousands in 5K Run
Last night, members of the Clark Lau team joined thousands from Greater Boston area law firms in the 10th Annual Lawyers Have Heart 5K which raised close to $300,000 for the American Heart Association. This is the team's third run and we look forward to continuing our support in the years to come.
05/22/2017 - Vince Lau Speaks in Minneapolis
Vince Lau joins Kate Wasylik and Sarah Peterson at the AILA Upper Midwest Chapter Conference and addresses the audience on the latest trends on the PERM process. The PERM process is the labor market test required of most employment-based immigration options.
05/16/2017 - Eric Lockwood Speaks on U.S. Citizenship
Clark Lau LLC Attorney Eric Lockwood speaks at the Massachusetts Continuing Legal Education 16th Annual Employment-Based Immigation Law Conference. Eric covered the basics and the more complex matters one encounters in seeking U.S. citizenship.
05/08/2017 - Vincent Lau Speaks on L-1 Blanket Petition Trends and Challenges
Clark Lau LLC Managing Partner Vincent Lau just finished speaking on L-1 Blanket Petition trends and challenges at the AILA Rome District Chapter Conference in Brussels. Vince was joined by the Nonimmigrant Visa Unit Chief of the U.S. Consulate (Brussels) Kim Durand-Proud, Ellen Freeman of K&L Gates, David Grunblatt of Proskauer, and Dana Davidson of Davidson Law Group.
04/18/2017 - H-1Bs and the New Executive Order
Today President Trump signed a new Executive Order entitled “Buy American, Hire American.” In addition to setting out the administration’s preference to have all federal agencies review their policies to maximize purchasing goods, products, and materials produced in the United States, this Executive Order specifically calls for a review of the current H-1B program. The stated purpose is “to create higher wages and employment rates for workers in the United States, and to protect their economic interests.”
The current H-1B program requires there to be (1) a U.S. employer; (2) a specialty occupation position, which is defined as a job that has duties that are so complex that normally a bachelor’s or higher degree in a specific field is required for the position; (3) a qualified beneficiary; and (4) a required wage, which is the higher of what the U.S. Department of Labor deems as the prevailing wage for the occupation in that area of employment or what the employer is actually paying similarly situated employees, including U.S. workers.
The Executive Order has asked the Secretary of State, the Attorney General, the Secretary of Labor, and the Secretary of Homeland Security to “as soon as practicable, and consistent with applicable law, propose new rules and issue new guidance, to supersede or revise previous rules and guidance if appropriate, to protect the interests of United States workers in the administration of our immigration system, including through the prevention of fraud or abuse.” Moreover, the Executive Order asks for reforms “to help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.”
The Executive Order does not go further nor does it set forth a timeframe for any H-1B reforms. The Executive Order only requires that action be taken “as soon as practicable.”
The above has been provided for educational purposes only. Please stay tuned and we will keep you up to date. Please also contact your Clark Lau LLC attorneys if you have any questions regarding how this may apply to your particular situation.
04/17/2017 - H-1B Lottery Completed
USCIS announced today that it received 199,000 H-1B petitions for Fiscal Year 2018. This is less than what was received last fiscal year, i.e., over 230,000. The number of visas available remains the same however. There are 65,000 visa numbers available for general H-1B petitions and 20,000 additional visas for those with advanced U.S. degrees.
USCIS reports that it ran a computer-generated random selection process on April 11, 2017. Over the next few weeks, USCIS will be generating receipts for those petitions chosen for processing. Our office has also been monitoring whether USCIS has cashed any of the checks for filing fees associated with each particular petition. We have noticed that more and more checks are being cleared, but we caution assuming that a petition has therefore been selected for processing until an actual receipt notice has been issued.
Please stay tuned for more updates. The above information has been provided for informational purposes only. Please contact Clark Lau LLC to see how this applies to your particular situation.
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