News

10/26/2016 - New Travel Requirements for Chinese Nationals

Electronic Visa Update System for Chinese Nationals

Effective November 29, Chinese nationals holding a 10-year U.S. visitor visa (e.g., class B-1, B-2, or B-1/B-2) must enroll in the Electronic Visa Update System (EVUS) prior to traveling to the United States on or after November 29.  EVUS is an automated system that determines eligibility to travel to the United States for temporary business or pleasure on a 10-year B-1, B-2, or B-1/B-2 visitor visa. Enrolling with EVUS is a requirement under U.S. Immigration law. 

In the initial phase of EVUS, only Chinese nationals who are traveling on a passport issued by the People’s Republic of China will need to enroll. Those with a Hong Kong SAR, Macau SAR, or Taiwan passport are not subject to the new requirement.
Chinese nationals who were issued a B-1, B-2, or B-1/B-2 visa prior to November 29, 2016 must enroll by December 14, 2016. If the B-1, B-2, or B-1/B-2 visa is issued on or after November 29, 2016, Chinese nationals will need to enroll in SEVUS when they receive the visa and before traveling to the United States. Failure to enroll or re-enroll will result in an automatic provisional revocation of the visa.  The visa may be reinstated once the visa holder successfully enrolls in the system. 

Please note that after November 28, Chinese nationals will need to present proof of compliance with EVUS while traveling on a 10-year visa, otherwise they will not be permitted to obtain a boarding pass or enter through a land port of entry.

To enroll, please visit www.evus.gov  and enter the requested passport, visa, as well as other biographical and employment information. The system can take up to 72 hours to adjudicate the enrollment. Once enrollment is successful, the applicant will be issued a notification of compliance valid for two years or until the applicant’s passport or visa has expired, whichever occurs first.  The fee to enroll in EVUS is $8 or approximately 53 RMB. 
For more information, please visit www.cbp.gov/EVUS
 
The above information has been provided for educational purposes.  If you have further questions concerning the above or other immigration matters, please do not hesitate to contact Clark Lau LLC (www.clarklau.com)



10/12/2016 - BBA Seminar: Managing a Global Workforce


Managing a Global Workforce: The Intersection of Employment, Immigration, Export Controls, and Data Privacy Laws
 
Managing Partner Vince Lau joined experts Judy Polacheck, Kent D.B. Sinclair, and Roland Shrull  in discussing the range of legal issues surrounding managing a global workforce on Wednesday, October 5, 2016.



10/12/2016 - Immigration Strategies for Entrepreneurs

Immigration Strategies for Entrepreneurs

At the Clear Law Institute, Managing Partner Vince Lau speaks on the various visa options that one should explore when embarking on a new enterprise.

Some visa options are more suited for entrepreneurs than others.

http://clearlawinstitute.com/shop/webinars/immigration-strategies-for-entrepreneurs-what-works-and-what-does-not-work/



10/04/2016 - Diversity Lottery 2018 Now Open

Online registration for the Diversity Immigrant Visa Program opened on October 4, 2016 and will remain open through November 7, 2016 until 12:00 noon, Eastern Standard Time. Eligible applicants can now complete their online registration.
 
The Diversity Immigrant Visa Program, often referred to as the “Diversity Lottery,” is a congressionally mandated program administered by the Department of State. The purpose of the program is to provide an opportunity for nationals from countries where there is a historically low rate of immigration to immigrate to the United States and become permanent residents. The spirit behind this program is to create a more diverse country.
 
This year 50,000 Diversity Visas are available. In order to be eligible for the program an individual must meet two requirements:
  1. The individual must be born in a qualifying country (see instructions for limited exceptions to this requirement); and
  2. The individual must meet the educational/work experience requirement by having either:
    1. At least a high school education or its equivalent, defined as the successful completion of a 12-year course of formal elementary and secondary education; or
    2. Two years of work experience within the past five years in an occupation requiring at least two years of training or experience to perform.
 
Additionally, all individuals must be admissible to the United States.
 
Natives of the following countries are not eligible to apply due to the high volume of immigrants from these countries: Bangladesh, Brazil, Canada, China (mainland-born), Colombia, Dominican Republic, Ecuador, El Salvador, Haiti, India, Jamaica, Mexico, Nigeria, Pakistan, Peru, Philippines, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam.
 
There is no cost to register for this program. Individuals with more than one entry will be disqualified. The Department of State warns applicants against waiting until the last week of registration to apply, as heavy user traffic may cause website delays and technical issues.
 
More information about the Diversity Lottery program and how to apply can be found here: https://travel.state.gov/content/visas/en/immigrate/diversity-visa/instructions.html#below. The instructions (available in several languages) also provide further information on which nationals are eligible for this program. 

Please note that the above has been provided for educational purposes only.  Please contact Clark Lau LLC for more information.
 



09/06/2016 - Vince Speaks on Prevailing Wage Strategies

Managing Partner Vincent Lau will be joining national experts Ian Wagreich of Chicago, Illinois and Maggie Murphy of Austin, Texas on Thursday, September 8, 2016 on an American Immigration Lawyers Association panel addressing prevailing wage challenges and strategies in connection with permanent resident options for employees.  

Prevailing wage is the wage at or above which an employer must offer a foreign national employee in seeking legal permanent residency, i.e., a green card.  Due to a host of reasons, employers are facing an uphill battle in obtaining timely and accurate prevailing wage determinations from the U.S. Department of Labor.  Without a workable prevailing wage determination, the process comes to a stand still.

As a member of the AILA Department of Labor Liaison Committee, Vince will be sharing his insights on the panel.



08/31/2016 - USCIS Ombudsman Telephone Conference

USCIS Ombudsman Telephone Conference

The Ombudsman Office was created independent of USCIS and its role has been to work with USCIS stakeholders in resolving processing problems.  

On 8/31/2016, Vince joined Steve Springer of the National Association of Foreign Student Advisers (NAFSA) and the Ombudsman Office in providing stakeholders an update and the impact of long delays in USCIS' processing of employment authorization document applications (Form I-765), H-1B extensions, and change of status applications (I-539).  The telephone conference was to bring to USCIS' attention to the negative impact and frustrations international student advisers and private practitioners face.

The telephone conference also allowed for a Question & Answer period at the end.  There were over 1000 parties who called into the telephone conference.

Clark Lau remains committed in providing clients with the most up-to-date information and the best service and advocacy.  Stay tuned for more updates.



08/27/2016 - New Option for Entrepreneurs Proposed

New Option for Entrepreneurs?

Among the many different immigration proposals set forth by President Obama’s Executive Action in November 2015 was one which would provide entrepreneurs an opportunity to remain in the United States to oversee their start-ups.  This week the Department of Homeland Security (“DHS”) released a proposed rule, entitled the International Entrepreneur Rule, which would allow individuals, and their families, who met certain criteria to be admitted, to remain, and to work in the United States for an initial period of up to two years, with the possibility of an extension of up to three years.  The work permission would allow the applicant to work for the start-up entity only but would also extend work permission to his/her spouse. The public will have 45 days to comment on the rule.  For now, this is just a proposal, so stay tuned for the final results.
 
The proposed rule does not provide a new status to individuals but instead provides more flexibility to the government in granting “parole,” i.e., permission to enter the United States, for entrepreneurs who meet certain criteria and “whose entry into the United States would provide a significant public benefit through the substantial and demonstrated potential for rapid business growth and job creation.”  Such criteria include the following:
  • Business entity was recently formed, i.e., within three-years of the application date, and has substantial potential for rapid growth as evidenced by a range of documents;
  • Applicant has a substantial ownership interest, i.e., at least 15% ownership at the time of the application, and maintains at least 10% throughout the parole period, in the business entity and has an active and central role to be able to advance the business (proposal is that no more than three applicants can benefit from one entity); and
  • Business entity has
    • received substantial investment, i.e., at least $345,000 within the 365 days prior to the application, from U.S. individual or organizational investors with established records of successful investments as defined by multiple factors including job creation and revenue growth or
    • received substantial awards or grants, i.e., at least $100,000, from certain Federal, State, or local government entities.
Alternatively, if the applicant cannot fully satisfy all of the requirements above, the applicant additionally can demonstrate that his/her parole into the U.S. would “provide a significant public benefit,” i.e., rapid growth and job creation.
 
Applicants would be able to apply for an initial parole period of up to two years by filing a newly created Application for Entrepreneur Parole, Form I-941, along with supporting evidence to meet each of the criteria above and a proposed fee of $1200.  (There will be an additional fee for biometrics to be captured.)  Spouses and children would file Form I-131.  Spouses would file Form I-765 for employment authorization, while the principal applicant would not need a separate application or document for employment authorization.  Applicants however must maintain a household income which is at least 400% greater than the Federal poverty line for his/her household size as defined by the Department of Health and Human Services.  Should there be any material changes to the circumstances which served as the basis for the application approval, the applicant would need to file a new Form I-941.
 
After the initial grant, if the applicant can show that additional time would serve a “significant public benefit,” an applicant may receive up to an additional three years of parole.  An applicant must file for re-parole before the expiration of the initial parole.  Criteria include the following:
  • Business continues to be a start-up entity as evidenced by its revenue growth and investment attraction; 
  • Applicant continues to be an entrepreneur through substantial ownership (at least 10%) and central role in the business;
  • Business continues to have substantial potential for rapid growth and job creation through receipt of additional funding ($500,000 during the initial parole period), revenue generation ($500,000 in annual revenue, with at least 20% average annual growth during the parole period), or job creation (at least 10 full-time jobs filled by non-family U.S. workers for at least 1 year).
If an applicant does not meet the above fully, the applicant may provide “reliable and compelling” evidence of the business’ continued substantial potential for rapid growth and job creation.
 
As indicated from the start, the above rule and details are still proposals.  With that said, there is hope.  Please stay tuned to see how all of the above pans out.
 



08/24/2016 - Most Innovative Immigration Law Firm

Corporate America News just announced its 2016 Legal Elite Awards.  

Thank you for selecting Clark Lau LLC as the "Most Innovative Immigration Law Firm - Massachusetts."

We look forward to helping employers/employees, entrepreneurs, artists, musicians, researchers, and professionals from all walks of life in developing U.S. immigration strategies that work and that help them achieve their goals and dreams.



07/27/2016 - Clark Lau LLC Sponsors Family Film Night

Come join us on August 11, 2016 at 7PM in Kendall Square for a great family event!  Clark Lau LLC joins the Cambridge Arts Council and the Kendall Square Association for a Family Film Night.  

Free gift to the first 200 attendees!

Come check us out:  https://www.kendallsq.org/film-night/



07/26/2016 - Clark Lau LLC Welcomes New Paralegals

Clark Lau LLC welcomes three new paralegals to its team:
Kodjo Kumi who is a graduate of Brown University;
Molly O'Shea who is a graduate of Georgetown University; and
Lucas J. Thoreson who is a graduate of Williams College.

In addition, as of this fall, team members Shannon Lee and Lucas Sutherland will continue with Clark Lau LLC as Law Clerks as they attend law school at Northeastern University and Boston University, respectively.

Check out our website for details about all of our team members.



07/01/2016 - Global Entry and Easier Travel

Summer is a season marked with travel.  Heightened security around the globe and long security lines at airports only add to the frustration and inconvenience of travel.  While traveling continues to take its toll on most, the Global Entry program could help ease some of the inconveniences.
 
What is Global Entry?
 
Global Entry is one of the different “trusted traveler” programs offered by the United States government.  For those who travel with Global Entry, reentering the U.S. after international travel is made easier and faster by visiting a kiosk where fingerprints are taken and a few questions answered instead of waiting in long lines to speak to an actual U.S. customs and border protection officer.  Additionally, Global Entry holders are able to go through security check via the “TSA Pre-Check” line at airports.  Significant time is saved through this benefit.  While traveling in certain countries abroad, having Global Entry also means faster processing through immigration.
 
Who is eligible for it?
 
All United States citizens and permanent residents are eligible to sign up for Global Entry.  Additionally, citizens of the U.K., Germany, the Netherlands, Panama, South Korea, Mexico, and Singapore are eligible.  (Canadians have access to the same benefits through another trusted traveller program, NEXUS.)  The list of countries change on a regular basis so it is always worth checking to see whether any new countries have been added (https://www.cbp.gov/travel/trusted-traveler-programs/global-entry/eligibility).
 
How does one sign up?
 
To apply for Global Entry, one must create an online account via https://goes-app.cbp.dhs.gov/main/goes, complete a lengthy online questionnaire, and pay the application fee, which is currently $100.  (Some organizations and credit card companies will reimburse people for Global Entry application fees.  If one travels even just a few times, this fee could be worth it given that some airlines charge $10-25 to obtain TSA pre-check status for each leg of a trip.)  Usually after 5-7 days, one will receive notification concerning the status of one’s application.  If the application is conditionally approved, then the individual must schedule an appointment to appear at a Global Entry Enrollment Center.  These are all over the country.  Wait time for an available interview at any given location varies.  One does not need to have an appointment at the Global Entry Enrollment Center closest to one’s home; one can have the appointment any of the locations.  The interview usually lasts about 5 minutes.  If all goes well, the actual Global Entry card will arrive in the mail in about 1 week.  Global Entry privileges are valid for at least 5 years.
 
In the winter of 2016, Clark Lau LLC joined the Kendall Square Association and the Cambridge Innovation Center to host an offsite event serving as a Global Entry Enrollment Center.  Please watch out for this again in the Fall of 2016.
 
The above information has been provided for educational purposes only.  Please check with the Global Entry website (https://www.cbp.gov/travel/trusted-traveler-programs/global-entry) for complete details and also feel free to contact Clark Lau LLC (www.clarklau.com) for more information.
 
 



06/15/2016 - 5 Ways of Getting a US Green Card

Managing Partner Vince Lau explains 5 ways of obtaining legal permanent residency (a/k/a green card) in the US.

https://youtu.be/85z7rUVPWKI



05/01/2016 - More "Work" for Everyone

Starting May 10, 2016, certain individuals who are in the United States in F-1 (international student) status will be able to “work” longer, via an extension of their current employment authorization.  Currently, when F-1 students graduate, they are eligible to apply for employment authorization called “Optional Practical Training” (OPT).  OPT generally lasts for 12-months and a student must be engaged in employment that is related to his or her field of study.  In April 2008 the Department of Homeland Security (DHS) announced an option for students to seek an additional 17-months if the student received a U.S. degree in a science, technology, engineering, or mathematics (STEM) field and his or her employer was enrolled in DHS and the Social Security Administration’s E-Verify program.  In March 2016, DHS announced that it would replace the 17-month program with a 24-month program to take effect May 10, 2016.  (The initial 12-month program would remain intact.)  While this increases a STEM graduate’s employment authorization from 12-months to 36-months in the aggregate, there are trade-offs and more “work” for the students, for the employers, and for the Designated Student Officers (DSOs) at the schools from which the students graduate.
 
More “Work” for Students
 
When an F-1 student graduates, he or she is eligible to apply for 12 months of employment authorization, upon recommendation by his or her DSO.  This is available to all F-1 students, regardless of their fields of study.  This option remains intact for everyone.
 
Starting May 10, 2016, an F-1 student who has just completed a STEM degree, or at least completed a STEM degree prior to the current one, may apply for an additional 24 months of employment authorization if his or her employer is enrolled in the E-Verify program and all parties agree to a predetermined training plan (Form I-983) related to the student’s degree.
 
A traditional employer-employee relationship must exist.  Therefore self-sponsorship is not eligible.  An F-1 student may change employers, so long as all employers are enrolled in the E-Verify program and so long as the F-1 student notifies his or her DSO within 10 days of the change.  An F-1 student however may not have concurrent employment, which is a departure from the 12-month OPT rules.
 
An F-1 student must also sign under penalty of perjury that the student has reviewed, understands, and will adhere to the training plan; will notify the DSO if the employer is not providing the training as prescribed in the training plan; understands that DHS can revoke the employment authorization if the student is not in compliance with the training plan; and will notify the DSO of any material changes to the training plan and submit a modified training plan within 10 days of the change.
 
 
The training plan itself is a joint product of the student employee and employer.  The plan must provide the following:
  • Activities in which the employee will engage and how such activities relate to the STEM degree;
  • Specific skills, knowledge, and techniques the student will learn and apply;
  • Training goals and objectives and how and when the student will accomplish these;
  • Means by which the employer will provide oversight and supervision and by which the employer will measure the student’s accomplishment of the goals and objectives.
 
In addition to the above, an F-1 student must conduct self-evaluations at the end of each 12-month period and have the employer sign off on the evaluation.  Such evaluations must also be submitted to the DSO.
 
More “Work” for Employers
 
Under this new benefit, a traditional employer-employee relationship must exist. The employer must also have a Federal Employer Identification Number, must employ the the F-1 student for at least 20 hours per week, and must compensate the individual.  An unpaid, volunteer position cannot be the basis for the STEM OPT extension.  DHS’s definition of compensation is broader than just wages, but the employer must compensate the F-1 student comparable to U.S. workers with comparable skills and experience and comparable job duties.
 
Similar to the student, the employer must also attest to certain conditions under penalty of perjury.  These include the fact that the employer has reviewed, understands, and will follow the training plan; will notify the DSO of any material changes; and will notify the DSO within 5 days of the termination or departure of the F-1 student.  Additionally, the employer attests to the fact that the training plan is directly related to the student’s STEM degree; the student will receive onsite supervision and training by the employer’s staff; the employer has sufficient resources for carrying out the plan; the student will not replace a full-time, temporary, or permanent U.S. worker; the terms and conditions of the position offered to the student are commensurate to those of similarly situated U.S. workers; and the training plan is in compliance with all Federal and state requirements.  The employer is also put on notice that DHS may follow-up on compliance via phone or site visits.
 
More “Work” for DSOs
 
While the training plan is mainly between the employee and the employer, the new plan engages the DSO throughout the process.  The DSO by default acts as a monitor.  Once the employer and employee have completed the training plan on Form I-983, the DSO acts must review the plan.  If the DSO is satisfied with the plan, the DSO will need to issue a newly endorsed Form I-20 recommending the training plan before the student applies to DHS for the additional 24-months of STEM OPT employment authorization.  Whenever there are any changes the employee and employer must notify the DSO within 10 days.  Whenever the student leaves the employ of the employer, the employer must notify the DSO within 5 days.
 
The take away from this is that while the new OPT STEM extension program allows for more employment authorization, there is tighter monitoring and more involvement by all parties – the student/employee, the employer, and the DSO.  The above has been provided as educational information only.  Each student and employer’s circumstances are different; please consult Clark Lau LLC to see whether and how the above applies to you.
 
 



04/20/2016 - Canada's New Travel Requirement

Canada’s new travel requirement:  Electronic Travel Authorization
 
Effective March 15, 2016, certain international travelers will need an entry document called an Electronic Travel Authorization (eTA) to travel by air to Canada.   This applies to visa-exempt foreign nationals, in other words, non-Canadians who are not required to have a visa to enter Canada. The requirement only applies to those traveling by air, not those traveling by land or sea.  It does not apply to citizens of the United States (those with U.S. residency (Green Cards) will require an eTA).  Thus, if you require a visa to enter Canada or you are a U.S. citizen, you will not require an eTA. 
 
What is the purpose of the eTA?
 
The implementation of the eTA program is a result of the Canada-United States Perimeter Security and Economic Competitiveness Action Plan.   In essence, the eTA is a security measure that allows the Canadian authorities to screen foreign travellers before they arrive in order to ensure that they are not inadmissible to Canada.  In the absence of such a pre-screening measure, visa-exempt foreign nationals are not systematically screened for admissibility until they arrive at a Canadian port of entry.  The eTA will allow the Canadian authorities to lessen the expense and delay to travellers, airlines and the Canadian government caused by the significant volume of travellers being deemed inadmissible when arriving at Canadian ports of entry.   Reasons for inadmissibility include membership in terrorist groups, participation in war crimes or crimes against humanity, membership in organized crime groups, criminality, or public health risks.  The United States has already implemented a similar travel authorization program.  Travellers will need to show the eTA before boarding a flight to Canada, or they will not be permitted to fly to Canada.
 
It is important to note that the requirement to obtain an eTA does not dispense with any other authorizations or requirements applicable to the traveler such as work permits or study permits.  In addition, the traveler remains subject to examination by the Canada Border Services Agency upon arrival in Canada.
 
Who will need an eTA?
 
Citizens of the following countries will need an eTA to travel to Canada by air as of March 15, 2016: Andorra; Antigua and Barbuda; Australia; Austria; Bahamas; Barbados; Belgium; British citizens*; Brunei; Chile; Croatia; Cyprus; Czech Republic; Denmark; Estonia; Finland; France; Germany; Greece; Hong Kong*; Hungary; Iceland; Ireland; Israel*; Italy; Japan; Republic of Korea; Latvia; Liechtenstein; Lithuania; Luxembourg; Malta; Monaco; Netherlands; New Zealand; Norway; Papua New Guinea; Poland; Portugal; Samoa; San Marino; Singapore; Slovakia; Slovenia; Solomon Islands; Spain; Sweden; Switzerland; Taiwan* and Vatican City (Holy See)* - - best to always consult the Canadian government’s website: http://www.cic.gc.ca/english/visit/visas.asp#wb-sec
 
* Please note that certain citizens of these countries do require Visas to travel to Canada and hence would not need an eTA
 
Certain individuals are exempt from the eTA requirement.  This group includes individuals who hold a valid Canadian temporary resident visa, members of the British Royal Family, and certain foreign nationals seeking only to transit through Canada as a passenger on a flight stopping in Canada for the purpose of refueling, among others.
 
 
How to get an eTA?
 
Applicants can access the eTA application online at www.canada.ca/eTA.   Applicants will have to provide passport details, basic personal information, responses to background questions and contact information.   The online application process also allows the applicant to indicate whether there are any additional details pertinent to the application, where applicants can indicate any urgent need to travel to Canada, if applicable.   No documents are required for the eTA application.  The Canadian authorities may request additional documents later, to be submitted manually.  Once the application is submitted, the applicant will receive an automated email confirming receipt and containing an application number and a link by which the applicant can check the status of the application.  The cost is CAD$7.00.   Applicants who are unable to submit the application electronically because of a physical or mental disability may do so by other means, including a paper form of application.
 
The eTA itself is an electronic document.  There is no paper evidence or counterfoil provided to the applicant upon approval.  Air carriers have access to the Canada Border Security Agency’s database to confirm the presence of an eTA prior to boarding the aircraft.  Before a boarding pass is issued, the air carrier must receive an “ok to board” message from the CBSA database.
 
How long will it take to process and eTA?
 
Most eTA applications are approved within minutes of applying.  However, some requests may need more time to process. If this is the case for an application, one can expect an email from Citizenship and Immigration Canada within 72 hours that tells you what the next steps are.
 
 
How long is the eTA valid?
 
The eTA is linked to the applicant’s passport. It is valid for five years or until the passport expires, whichever occurs first.   The same passport used to obtain the eTA must be used for travel with the eTA.
 
The above information has been provided for informational purposes only and has been provided courtesy of Gomberg Dalfen S.E.N.C. located in Montreal, Canada.  For information about Gomberg Dalfen, please visit: http://gombergdalfen.ca/index.html
 
 
 
 
 



04/12/2016 - USCIS Completes H-1B Lottery for FY2017

U.S. Citizenship and Immigration Services (“USCIS”) just announced that it has completed its lottery for the limited number of H-1B visas available for Fiscal Year 2017.  This year, USCIS received 236,000 petitions within the first five days of the filing season.  Regulations indicate that if they receive more than the allotment of 85,000 H-1B visas (20,000 for those with advanced U.S. degrees and 65,000 for anyone else who was not chosen among the 20,000) then a lottery will be conducted.
 
On April 9, USCIS used a computer-generated lottery process to select enough petitions to meet the 85,000 available visas. USCIS has just started issuing electronic receipts for those H-1B petitions filed via Premium Processing today.  USCIS has indicated that they will attempt to complete processing H-1B petitions filed via premium processing by May 16, 2016.  There is no proposed timeline for the rest of the petitions.  For those petitions not chosen in the lottery, USCIS will reject and return all unselected petitions with their filing fees.
Clark Lau LLC will notify you once we receive any news from USCIS regarding your particular petition. 

Despite the cap having been reached, USCIS will continue to receive H-1B petitions for those individuals who have been previously granted an H-1B and are now seeking a change of employer, whose employer is exempt from the visa limitation, or who are seeking an extension of existing H-1B status.  Please contact Clark Lau LLC if you need to file an H-1B petition to determine whether you can file and whether there are any other options.
 



03/28/2016 - Finalized Rules on Impact of Changing Jobs on Green Card Process

USCIS Finalizes Guidance on "Same or Similar" Occupation and Job Portability

On March 18, 2016, U.S. Citizenship and Immigration Services (USCIS) finalized guidance, effective March 21, on determining whether a new job is in the "same or similar" occupational classification with respect to job portability. The policy memorandum instructs USCIS employees on how to use the Department of Labor's Standard Occupational Classification (SOC) codes and other evidence to determine if a new job is in the same or a similar occupational classification as the original job offer in an Immigrant Petition for Alien Worker (Form I-140) submitted to USCIS.

The memo notes that such adjudications "require individualized assessments that consider the totality of the circumstances and are based on a preponderance of the evidence presented." The memo states that SOC codes "provide some measure of objectivity in such assessments and thus can help address uncertainty in the portability determination process." Although the memo focuses on how to interpret and apply SOC codes, it points out that nothing in the memo "is intended to make SOC codes or their descriptions the only factor or a mandatory factor in portability determinations or to otherwise limit USCIS' flexibility to consider other relevant evidence."

Despite those assurances, some commenters expressed concerns that the guidance could have the practical effect of leading to a rigid application of SOC codes to "same or similar" determinations. The Alliance of Business Immigration Lawyers (ABIL) referred to comments it submitted on February 29, 2016, regarding a Department of Homeland Security (DHS) proposed rule issued on December 31, 2015, "Retention of EB-1, EB-2 and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers." DHS proposed a new 8 CFR § 245.25 intended to "clarify and improve" policies and procedures related to the job portability provisions of § 106(c) of American Competitiveness in the Twenty-First Century Act (AC21). ABIL believes that the proposed 8 CFR § 245.25(c) takes an overly narrow interpretation of the term "same or similar" and results in an interpretation of INA § 204(j) (created by AC21) that is "more inflexible than current practice, lessens job flexibility, and takes much-needed discretion away from USCIS adjudicators." See #2, "Job Portability Under AC21 for Certain Applicants for Adjustment of Status," at http://www.abil.com/articles/ABIL%20Comment%20-%20Retention%20of%20Immigrant%20Workers%20&%20Program%20Improvements%20%2802.29.16%29.pdf.

The memo is at https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2016/Final_Same_or_Similar_Policy_Final_Memorandum_3-18-16.pdf

The above information is for educational and informational purposes only.  Please remember to consult your Clark Lau LLC attorney to see how this may apply to you.  A special thanks to the Alliance of Business Immigration Lawyers (ABIL), of which Vince Lau is a member, for sharing its insights.



03/23/2016 - Magaly Rojas Navarro Is Running

Our own Magaly Rojas Navarro will be running the Boston Marathon on April 18, 2016 for the first time.  In between preparing her PERM applications and H-1B petitions for the H-1B cap season, Magaly spends her mornings training and preparing for this year's Boston Marathon.  She is also running on behalf of PAIR (Political Asylum and Immigrant Representation) Project.  

Read her story here:  http://www.jhextramile.com/from-peru-to-the-boston-marathon-magaly-rojas/



03/22/2016 - Vince Lau Appointed to KSA Board

At the Kendall Square Association's 8th Annual Meeting today, Vince Lau joined representatives from other Kendall Square organizations such as Twitter, Facebook, Google, MIT, Boston Properties, and the like as an appointed member of the Kendall Square Association board for a three-year term.  With these members, the KSA aims to foster more opportunities for technology and community to interact.  Having been in Kendall Square for almost 20 years, Clark Lau LLC stands behind these goals.



03/09/2016 - New F-1 OPT Rules

DHS Releases Amended F-1 OPT Regulations to go into Effect May 10, 2016
 
Today the Department of Homeland Security (DHS) released amended regulations, which will expand optional practical training (“OPT”) for students with U.S. degrees in science, technology, engineering, or mathematics (“STEM”) and create new obligations for F-1 students and F-1 employers starting May 10, 2016.
Extension period to increase from 17 to 24 months. Under the amended regulations, F-1 STEM students will be able to extend OPT for an additional 24 months beyond the initial 12-months, replacing the 2008 regulation that  allowed F-1 STEM students to receive a 17-month extension of OPT, providing work authorization for employment related to their field of study.
Reporting requirements for F-1 students and university officials. New reporting requirements include a six-month validation requirement, confirming the F-1 student applicant’s application for work authorization through the OPT program. Second, F-1 students will be required to complete an annual self-evaluation for designated school officials to review. Third, there is an affirmative requirement for both F-1 students to report any change in employment status or material departure from the adopted Training Plan. This is in addition to the previous requirement for F-1 employers to report similar changes to the designated school officials within five business days, which remains in effect for F-1 employers.
F-1 Employers Required to complete formal Training Plan with F-1 Student. The new regulations will also increase DHS oversight over the OPT program. In addition to the previous E-Verify requirement, F-1 employers will be required to complete a formal Training Plan, Form I-983, and comply with new wage requirements. F-1 employers will be required to set out the terms and condition of employment, including the specific duties, hours, and compensation.
As part of the Training Plan, F-1 employers will attest that the F-1 employee is paid a salary commensurate with similarly situated workers and that: “(1) it has sufficient resources and trained personnel available to provide appropriate training in connection with the specified opportunity; (2) the student will not replace a full- or part-time, temporary or permanent U.S. worker; and (3) the opportunity will help the student attain his or her training objectives.”
DHS to conduct on-site visits. The new regulations state that DHS has discretion to conduct employer site visits to ensure F-1 employers meet the requirements of the OPT program. Generally, DHS will be required to provide notice 48 hours prior to the inspection, unless the visit is conducted in response to a complaint or evidence of noncompliance.
Cap-Gap Extension language clarified. DHS has revised the Cap-Gap extension regulation to clarify that the extension for F-1 students with pending H-1B petitions and requests for change of status will temporarily extend the OPT period until October 1, the beginning of the new fiscal year.
 
The above information has been provided for informational purposes only.  You should always consult with your Clark Lau LLC attorney to determine how this impacts your specific situation and what your options are.  Also, a special thanks is extended to the Alliance of Business Immigration Lawyers (www.abil.com) of which Vince Lau is a member, for sharing their insights.
 



03/01/2016 - Vince Advises on Student Travel

International travel for non-US students can be very tricky.  Vince was invited to contribute to a student blog addressing travel issues.  This is most relevant as Spring Break is upon many college and university students:

http://blog.peertransfer.com/2016/02/19/traveling-abroad-as-an-international-student/?mkt_tok=3RkMMJWWfF9wsRomrfCcI63Em2iQPJWpsrB0B%2FDC18kX3RUrJ7iffkz6htBZF5s8TM3DWVdHXqNY6kEIT7E%3D

 



02/18/2016 - Alternatives to H-1B

Alternatives to H-1B
 
Employers who desire to keep talent in the U.S. must apply for employment authorization for these individuals.  One of the most popular employment authorization options is the H-1B visa classification.  If an individual does not already have an H-1B visa, his/her employer must file a petition for a new one.  Congress limits the number of new H-1B visas to 85,000 a year. 
 
While the federal fiscal year does not start until October 1, the rules allow an employer to file as early as six months in advance for an H-1B visa.  As a result, April 1 is when employers may file for a new H-1B.  The rules also indicate that if, within the first five days of filing, USCIS receives more than the 85,000, it will subject all received petitions to a lottery.  In April 2015, only about 30% of the petitions were selected for processing.  We anticipate that the percentage will be even lower this year.
 
With that said, employers are looking for alternatives.  In connection with the Alliance of Business Immigration Lawyers (www.abil.com), Vince Lau provides a short video of the alternatives to the H-1B visa. 

Check out the video: https://youtu.be/i8b6ApwtmcU  This information is provided for educational purposes only.  Options will depend on your particular circumstances so do not hesitate to contact Clark Lau LLC for a solution best tailored to your circumstances.
 
At this point, it is still not too late to start the process for filing a new H-1B petition by April 1.  Please note that the H-1B process is a two-step process and therefore time must be allowed for completing the steps timely.  If you are interested in obtaining an H-1B, please contact Clark Lau LLC as soon as possible.



02/17/2016 - Magaly Rojas Navarro Shares Her Story at Suffolk

Magaly Rojas Navarro will be speaking at an event, “Uncorked, Storytelling and Wine tasting,” hosted by the Suffolk University Women in Leadership Network and the National Association of Women MBAs on March 10, 2016. She will be sharing her personal story as an immigrant in the United States.  As a first generational immigrant family, her parents created a better life for their children. Their motivation, values, and expectations inspired her to attend college and pursue a legal education at Suffolk University Law School. Magaly’s life story impacts how she works with clients. 



01/22/2016 - Changes to Visa Waiver Program

The United States began implementing new changes to the Visa Waiver Program (VWP) on January 21, 2016.  These changes are set out in the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015, which was passed by Congress in December 2015 and signed into law by President Barack Obama.
 
These new changes impose further restrictions on those who have been qualifying under the Visa Waiver Program. The following people are no longer eligible to participate in the program:
 
 
  1. Nationals of VWP countries who have traveled to or been present in Iran, Iraq, Sudan, or Syria on or after March 1, 2011 (with limited exceptions for travel for diplomatic or military purposes in the service of a VWP country); or
  2. Nationals of VWP countries are also nationals of Iran, Iraq, Sudan, or Syria.
 
The stated goal of the Act is to prevent potential terrorists from entering the U.S. using the VWP.
 
The Act does provide for the Secretary of Homeland Security to waive these restrictions for some individuals. Who qualifies for a waiver is determined on a case-by-case basis. Situations in which a person may be eligible for a waiver include:
 
 
  1. Individuals who traveled to Iran, Iraq, Sudan, or Syria on behalf of international organizations, regional organizations, and sub-national governments on official duty;
  2. Individuals who traveled to Iran, Iraq, Sudan, or Syria on behalf of a humanitarian NGO on official duty;
  3. Individuals who traveled to Iran, Iraq, Sudan, or Syria as a journalist for reporting purposes;
  4. Individuals who traveled to Iran for legitimate business-related purposes following the conclusion of the Join Comprehension Plan of Action (July 14, 2015); and
  5. Individuals who have traveled to Iraq for legitimate business-related purposes.
 
It is unclear at this point whether a person who is a national of one of the above-listed countries can receive a waiver of this restriction.
 
For those who currently have a valid Electronic System for Travel Authorization (ESTAs) but are now not eligible due to the new changes, their ESTAs will be revoked. Travelers who are facing this situation are expected to be notified of this change in the upcoming days. It is expected that this change will affect thousands of people.
 
Those who are no longer eligible for the VWP will still have the opportunity to apply for a tourist visa through the standard tourist visa application procedures.
 
If you have any questions concerning these changes, please do not hesitate to contact Clark Lau LLC.  This information is provided for informational purposes only.  Each person’s circumstances are different.
 



01/15/2016 - Expanded Rules for Outstanding Researchers

Department of Homeland Security Changes Regulations to EB-1B Outstanding Professors and Researchers

By Erin Hogan

Today the Department of Homeland Security published a final rule revising its regulations on certain highly skilled worker visa categories in an attempt to make it easier for those workers to remain working in the U.S. In addition to changes made to the H1-B1, E-3, and CW-1 nonimmigrant classifications, DHS made changes to the immigrant classification for employment-based first preference outstanding professors and researchers (EB-1B). 

The EB-1B category allows outstanding professors and researchers (hereinafter referred to collectively as “researchers”) to seek permanent residency in the U.S. if they can meet certain criteria. The researcher must have at least three years of experience in teaching or research in the academic field of her expertise. The researcher must also be entering the U.S. to pursue tenure or tenure track teaching, or to pursue a comparable research position at a university of other institution of higher education. 

In addition to these criteria, the researcher must be able to demonstrate that she can meet at least two out of the following criteria:

Evidence of receipt of major prizes or awards for outstanding achievement

Evidence of membership in associations that require their members to demonstrate outstanding achievement

Evidence of published material in professional publications written by others about the alien's work in the academic field

Evidence of participation, either on a panel or individually, as a judge of the work of others in the same or allied academic field

Evidence of original scientific or scholarly research contributions in the field

Evidence of authorship of scholarly books or articles (in scholarly journals with international circulation) in the field

The revised regulations are now allowing for applicants to submit “comparable evidence” to the enumerated list. This is similar to what has been allowed for other EB-1 categories. This change allows for more flexibility and additional ways for researchers to demonstrate that they are outstanding researchers in their academic field. 

DHS summarized the benefits of this change in that it provided equity for EB-1 outstanding researchers relative to other employment-based immigrants, that it may help U.S. employers recruit EB-1 outstanding researchers, that it is not quantified criterion, and that there may be qualitative benefits. 

This change will allow for researchers to provide comparable evidence demonstrating their outstanding skills that would otherwise not fit in to the traditional criteria. DHS provided the examples of submitting evidence of important patents or prestigious peer-reviewed funding grants. This is a welcomed change for many who have had impressive accomplishments in the academic world but not necessarily accomplishments that would fit within the standard criteria. 

The published rule can be found here: https://www.gpo.gov/fdsys/pkg/FR-2016-01-15/pdf/2016-00478.pdf



01/11/2016 - Are You Ready for More H-1Bs?

Timing is everything.  Congress sets a limit on the number of H-1B visas available each year.  While the H-1B numbers for the next fiscal year do not become available until October 1, 2016, employers may file petitions to request numbers as early as six months in advance, i.e., April 1, 2016.  As a result, we are writing to encourage employers to review their hiring needs and determine whether they should initiate H-1B processing for anticipated hires, or even recent hires in other nonimmigrant status now. This past fiscal year, we ran out of H-1B numbers within the first five days of filing!  We anticipate that the numbers will run out in early April again this year.
 
(Please note that the H-1B process consists of two steps: (1) filing the Labor Condition Application with the U.S. Department of Labor which takes at least 10 days to process and (2) filing the actual H-1B petition with the U.S. Citizenship and Immigration Services.  For this reason, employers will need to contact us no later than February 1, 2016 to ensure sufficient time to process the H-1B petition for timely filing.)
 
Every time an employer hires an individual for a specialty occupation an H-1B number must be available.  (An exception arises where the individual is already with another employer in H-1B status, but this employer cannot be a university/college or a non-profit government research organization.)  When numbers run out, the employer has to wait until the next fiscal year to file for an H-1B.  In some cases there may be no other nonimmigrant visa option for the individual and the individual may have to leave the U.S. or, at least, not be able to work for the employer until a year later.
 
You should consider filing an H-1B this April if the following applies:
  • You are looking to hire an individual who is not in H-1B status already
  • You are hiring an individual who is already in H-1B status, but is currently employed with a college/university (this situation requires a new H-1B number)
  • You are hiring an individual who is already in H-1B status, but is with a non-profit government research organization (this situation requires a new H-1B number)
  • Your employee is in F-1 Student Status
  • Your employee is in L-1B Status and is considering seeking legal permanent residency in the United States
  • Your employee is in another nonimmigrant status and may want to seek legal permanent residency in the United States
 
Please contact us at your earliest convenience if you have any questions concerning the above.  Again, timing is everything.