News

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.




04/08/2017 - FY2018 H-1B Cap Reached

On Monday, April 3, 2017, the United States Citizenship and Immigration Services (“USCIS”) started receiving H-1B petitions for Fiscal Year 2018 filed by employers on behalf of individuals who have never been in H-1B status, or whose prior employer was a cap-exempt employer, i.e., colleges, universities, and non-profit or government research organizations.  

There are 65,000 visa numbers available, with an additional 20,000 for those beneficiaries with U.S. advanced degrees.  (Please note that 5800 of the 65,000 however are allocated to the H-1B1 program, reserved for citizens of Singapore and Chile.)  Yesterday afternoon USCIS announced that the cap has been reached, i.e., more than 65,000 petitions (and more than 20,000 petitions for individuals with U.S. advanced degrees) were received.  Last year, over 230,000 petitions were received within the first five days of filing.  The rule is that if more petitions than the available number of visas are received, then a lottery will be conducted to determine which of the petitions will be processed.

USCIS should be making an announcement regarding the lottery shortly.  Stay tuned for more updates!  

Please note that this information has been provided for educational purposes only.  Contact your Clark Lau LLC attorney regarding the specifics of your situation.




03/31/2017 - H-1B Petitions Ready to Go!


USCIS will be accepting H-1B petitions for the 2018 Fiscal Year starting Monday, April 3, 2017 until Friday, April 7, 2017.  Assuming they will receive more than visa numbers available (20,000 petitions for individuals with U.S. Master’s degrees and 65,000 “regular” petitions), they will be conducting a lottery soon after all of the petitions have been properly received. 
 
A special thanks to all of our clients who have worked with us to get their petitions ready to go!  Good luck!

Stay tuned right here for up to the minute news on FY18 H-1B Processing!



03/15/2017 - Temporary Retraining Order Against New Executive Order

Just hours before President Trump's revised Executive Order (Number 13,780, see Clark Lau LLC post on March 7, 2017), which restricts the entry of certain foreign nationals from certain countries and suspends entry of individuals from the US refugee program for specified periods of time, was to take effect, a federal judge in Hawaii issued a national temporary restraining order which suspends the implementation of the new Executive Order.  The judge found that the arguments of those opposing the Executive Order had a "strong likelihood of success" and that "irreparable injury" would occur if the suspension was not granted.

Stay tuned for more!



03/14/2017 - President's Executive Order Inspires a Community to Help

Managing Partner Vince Lau received an email from a friend and colleague Brian Eng in Portland, Maine just a few days after President Trump signed an Executive Order regarding travel restrictions.  This ban impacted the daughter of an Iraqi translator; the family was trying to reunite with the daughter.  

Check out the story that aired on WBUR:
http://www.wbur.org/kindworld/2017/03/14/kind-world-35-a-beginning




03/12/2017 - Who's Who Legal Corporate Immigration Announced

Clark Lau LLC Managing Partner Vincent Lau and Senior Counsel Steven Clark continue to be on the roster of Who’s Who Legal Corporate Immigration

Thank you for all your support!  We remain dedicated to providing you with quality and responsive immigration solutions, for individuals and for employers.



03/07/2017 - President Issues New Executive Order

On March 6, 2017, President issued a new Executive Order entitled “Protecting the Nation From Foreign Terrorist Entry into the United States,” which essentially revoked his previous Executive Order 13769 issued on January 27, 2017.  This new Executive Order seeks to address the concerns raised by the 9th Circuit Court of Appeals while continue to limit the entry of certain nationals into the United States.  The new Executive Order becomes effective on March 16, 2017.
The most notable provisions in the new Executive Order are the following:
  • Nationals from Iran, Libya, Somalia, Sudan, Syrian, and Yemen will not be allowed to enter the United States for 90 days from the effective date of the new Executive Order if they “are outside of the United Sates on the effective date of the order, did not have a valid visa at 5:00 pm EST on January 27, 2017, and did not have a valid visa on the effective date of this order.”  (Notably nationals from Iraq have been omitted from this revised list.)
  • The restriction will not apply to nationals from the aforementioned countries if (1) they are lawful permanent residents of the United States; (2) they are admitted or paroled into the United States on or after March 16, 2017; (3) they have documents other than a visa (i.e., advance parole document) that allows them to enter the United States if the documents are valid on March 16, 2017, or are issued thereafter; (4) they are dual nationals of another country and they are “traveling on a passport issued by a non-designated country;” (5) they are foreign nationals traveling on a diplomatic or diplomatic-type of visa;  or (6) they have been granted asylum or have been admitted to the U.S. as refugees, or have been granted withholding of removal, advance parole, or protection under the Convention Against Torture.
  • The Secretary of State, the Attorney General, or the Secretary of Homeland Security may also provide to the President the names of additional countries whose nationals may pose a threat to the security or welfare of the United States.
  • On a case-by-case basis, a consular officer or U.S. Customs and Border Protection (CBP) may issue a visa, or permit the entry of a foreign national for whom entry has been suspended, if denying the entry would cause undue hardship, the entry does not pose a threat to the national security, and it would be in the national interest to allow the foreign national to enter the U.S. Foreign nationals who would be able to apply for case-by-case waivers to the Executive Order may include those previously admitted to the United States for “a continuous period of work, study, or other long-term activity;” those with “significant business or professional obligations;” and those seeking to visit or live with family.
  • The travel of refugees to the U.S. under the United Sates Refugee Admissions Program (USRAP) will be suspended for 120 days after the Executive Order becomes effective, but this provision will not be applicable to those who have been formally scheduled to resettle to the United States as long as it is scheduled before the effective date of this new Executive Order.
  • Only 50,000 refugees will be allowed to enter in the fiscal year 2017.
  • The Visa Interview Waiver Program is immediately suspended. (This is a program that allows individuals who are applying for a visa at a consulate abroad to bypass an in-person interview.  This is not to be confused with the Visa Waiver Program, also known as ESTA, which allows individuals to travel to the U.S. for up to 90 days if they are from certain countries without first obtaining an actual visa stamp from a consular office.)
  • Any immigrant or nonimmigrant visa issued before the effective date of this Executive Order will not be revoked pursuant to this Executive Order.
  • If an individual’s visa was marked revoked or canceled as a result of the previous Executive Order 13769, the individual will be “entitled to a new travel document to enter the United States” and any prior cancellation or revocation of a visa solely pursuant to the previous Executive Order will not be the basis of inadmissibility for any future determination regarding entry or admissibility.
  • The new Executive Order will not be applicable to those who have been granted asylum, a refugee who is already in the U.S., or an individual who is granted withholding of removal or protection under the Convention Against Torture.
Please note that the above has been offered for educational purposes only.  Please contact Clark Lau LLC to determine how the above may impact your particular circumstances.



03/03/2017 - USCIS Suspends Premium Processing for H-1Bs

USCIS just announced hours ago that it will not honor any requests for premium processing of any H-1B petitions received on or after April 3, 2017.  The suspension is reported to be “up to six months” and USCIS will notify the public when this suspension is lifted.  USCIS reports that this suspension is to allow for the processing of backlogged H-1B cases.

What does this mean?

•    Premium processing is the option for a petitioner to request that USCIS provide a response to its H-1B petition within 15 days of filing by paying an additional processing fee of $1225.
•    Given that H-1B cap cases cannot be filed until April 3, 2017, a petitioner filing an H-1B cap case can no longer request premium processing. (An H-1B cap case is one where the beneficiary is seeking H-1B status for the first time or has not held H-1B status within the last six years.)
•    Any other H-1B petition, such as a change of employer or an extension, also will not be able to seek premium processing.
•    H-1B cap exempt petitions, such as those where the petitioner is a college, university, government research organization, or non-profit research organization, also are prohibited from seeking premium processing.
•    Premium processing for other eligible immigration benefits (e.g., L-1, O-1, TN, E-1/E-2, I-140 immigrant petitions, among others) will continue.

The above has been provided by Clark Lau LLC for informational purposes only.  Please contact your Clark Lau LLC attorney to see how the above may impact your circumstances.




02/09/2017 - Temporary Order Prevails

Temporary Order Against the Executive Order Remains

On Friday, February 3, 2017, a federal court in Washington State issued a temporary order which prohibits the enforcement of certain provisions of the Executive Order signed by President Trump on January 27, 2017: refusal of entry of individuals from the seven countries; refusal of admission of refugees, including those from Syria; and allowing for prioritizing refugee claims based on certain religion.

On Tuesday, February 7, 2017, the government argued to an appeals court that the Executive Order should be implemented and that the temporary order issued by the federal court in Washington State should not be honored.

Just today, Thursday, February 9, 2017, the appeals court came back with a decision indicating that it was not convinced by the arguments of the government and the temporary order prohibiting the implementation of the Executive Order stands for the time being.
 
Therefore, according to the temporary order, individuals from the seven countries (Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen) with immigrant or nonimmigrant visas and refugees, including those from Syria, may enter the United States while the temporary order is valid.  Please note that this is not the end.  The government may seek an appeal or take other action to block the temporary order.  The process continues; stay tuned!
 
Please note that the above information has been provided for educational purposes only and is current as of February 9, 2017 and is subject to change.  Please consult Clark Lau LLC regarding your particulars and the latest in developments before making any travel plans.
 
 





02/06/2017 - Update on Trump's Immigration Executive Order

On Friday, January 27, 2017, President Trump signed an Executive Order entitled, “Protecting the Nation from Foreign Terrorist Entry into the United States.”  In the week that followed much confusion and complication have ensued for international travels.  While matters are still in flux, and your Clark Lau team continues to monitor its latest developments, including a current federal court order issued by a court in Washington state that has national impact and that could be challenged, below are highlights of the Executive Order and some practical implications in regards to international travel.

Highlights of the Executive Order

•    Suspend issuance of visas and immigration benefits to nationals of Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen (hereinafter “the seven countries”)
•    Suspend entry of immigrants and nonimmigrants of individuals from the seven countries for 90 days, excluding those with diplomatic visas, NATO visas, C-2 visas to travel to the United Nations, and G-1, G-2, G-3, and G-4 visas
•    Review existing system to determine what information is needed to verify identity of a visa/immigration applicant and whether such an individual is a security or public safety threat
•    Produce a report regarding the above necessary information within 30 days of the Executive Order
•    Request all foreign governments to provide the determined information as a result of the above report and ban entry of individuals from those governments which fail to comply within 60 days of the report until compliance
•    Make an exception on a case-by-case basis for those of “national interest”
•    Reevaluate U.S. Refugee Admissions Program
•    Suspend entry of refugees for 120 days
•    Once refugee admission is resumed, may prioritize refugee claims made by individuals on the basis of religious-based persecution provided that the religion of the individual is a minority religion in the individual’s country
•    Suspend entry of Syrian refugees all together
•    Admit no more than 50,000 refugees
•    Expedite completion of a biometrics entry-exit tracking system for all foreign nationals
•    Suspend current visa interview waiver program whereby requiring in-person interviews for all visa applications
•    Ensure reciprocity of terms between U.S. visas and those issued by foreign governments to U.S. citizens 

Practical Implications

•    Term “immigrants” has been clarified by the White House not to include those who hold U.S. green cards
•    Internal agency information has indicated that implementation of the Executive Order would suspend processing applications and petitions where the beneficiary is from one of the seven countries
•    Dual citizens, i.e., those who have a passport of one of the seven countries and of another country, should travel using the passport of the other country
•    Keep in mind that underlying concern of the Executive Order is national security threatened by those “from” the seven countries.  It is not clear what the term “from” means and therefore, even if an individual is not a citizen of the seven countries, please be mindful of international travel where the individual has connections – political, commercial, or social – to any of those seven countries
•    Also keep in mind that despite court orders and subsequent policy clarifications, practically, individuals have been denied boarding airplanes because of miscommunication/misunderstanding of the latest state of affairs by airlines
•    As of Friday, February 3, 2017, a federal court in Washington state issued a temporary order which prohibits the enforcement of certain provisions of the Executive Order: refusal of entry of individuals from the seven countries; refusal of admission of refugees, including those from Syria; and allowing for prioritizing refugee claims based on certain religion 
•    Therefore, according to the temporary order, individuals from the seven countries with immigrant or nonimmigrant visas and refugees, including those from Syria, may enter the United States while the temporary order is valid

Please note that the above information has been provided for educational purposes only and is current as of February 6, 2017 and is subject to change.  Please consult your Clark Lau LLC attorney regarding your particulars and the latest in developments before making any travel plans.




02/06/2017 - H-1B Filing Season 2017

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, 2017, employers may file petitions to request numbers as early as six months in advance, i.e., April 1, 2017.  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 March 1, 2017 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 also note that as of the writing of this, USCIS has indicated that despite the Executive Order signed by the President on January 27, 2017, it will continue processing applications and petitions regardless of the country of origin of the beneficiary. Please stay tuned. ***
 
The above information has been provided for educational purposes only.  Please contact us at your earliest convenience if you have any questions concerning the above and how the information may apply to your particular circumstances.



02/06/2017 - New USCIS Update

New USCIS Information in connection with Executive Order
 
*** Please also note that as of the writing of this, USCIS has indicated that despite the Executive Order signed by the President on January 27, 2017, it will continue processing applications and petitions regardless of the country of origin of the beneficiary. Please stay tuned. ***
 
The above information has been provided for educational purposes only.  Please contact us at your earliest convenience if you have any questions concerning the above and how the information may apply to your particular circumstances.



01/28/2017 - Executive Order and Travel Impact

Additional Executive Order Impacting Travel
 
Yesterday afternoon President Trump signed another Executive Order; this one is entitled “Protecting the Nation from Foreign Terrorist Entry into the United States” and takes effect immediately.
 
Of note is the fact that this Executive Order bans the entry of nonimmigrants (people who have different visa status) and immigrants (people who already have U.S. green cards) from entering the United States if they are from certain designated countries.  Reports indicate that this has also been practically applying to dual citizens.  Such countries include Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen.  This ban takes effect immediately and is good for 90 days.  It is not clear whether the ban will be lifted after the 90 days. 
 
While technically the Executive Order grants officers at airports and ports of entry discretion to make exceptions if they find the individual not a security risk, not detrimental to the interests of the U.S., and in the national interest of the U.S., it is unknown  as to whether, or under what circumstances, such discretion is being exercised.  We are receiving reports nationally of a wide range of results.  Some individuals are admitted without issue, others are released after hours of questioning, and others are turned away.  We will continue to monitor the situation. 
 
Clark Lau’s recommendation at this point is to avoid travel.
 
In addition to the ban on entry of nonimmigrants and immigrants, the Executive Order restricts the admission of refugees to the United States.
 
The order further instructs the Secretary of Homeland Security, in consultation with the Secretary of State and Director of National Intelligence, to take steps to ensure that visa applicants are not a threat to national security. To do this, the Secretary will request additional information from the applicant’s home country before issuing the visa, unless it is in the national interest to issue a visa to the applicant.  Likewise, the administration will implement uniform screening standards to “ensure the applicant is who he claims to be, evaluate the likelihood of the applicant’s ability to become a positive contributing member of society, and assess whether or not the applicant has the intent to commit criminal or terrorist acts after entering the United States.” In addition, the Secretary of State will immediately suspend the Visa Interview Waiver Program and require that all applicants seeking a nonimmigrant visa undergo an in-person interview. Apart from restricting visa issuance procedures, the order will also seek to suspend all refugee admissions for 120 days while the administration determines which countries pose the least risk. The order will make an exception for asylum applicants who are applying on the basis of religious-based persecution, as long as the applicant’s religion “is a minority religion in the individual’s country of nationality.” Likewise, the total refugee admissions will be capped at 50,000 for the 2017 fiscal year.  
 
The above information has been provided for educational purposes only.  Please contact Clark Lau LLC for how such details may impact your particular circumstances.  Please stay tuned.
 
 
 



01/28/2017 - Executive Order Halted

Federal Court Halts Executive Order
 
Tonight a federal court in New York granted a motion which temporarily halts the effects of the Executive Order banning the entry of certain individuals (see posting from earlier).  This order retrains the U.S. government from removing any individuals with a refugee application already approved by the United States Citizenship and Immigration Services, holders of valid immigrant visas (green cards), nonimmigrant visas, and “other individuals from Iraq, Syria, Iran, Sudan, Libya, Somalia, and Yemen  legally authorized to enter the United States.”  With that said, and in light of uncertainties ahead, Clark Lau cautions individuals fitting into these categories against traveling for the time being.
 
The above has been provided for informational purposes only.  Please contact your Clark Lau LLC attorney to determine how this information may affect your particular circumstances.



01/25/2017 - Executive Orders Impacting Immigration

Today, President Trump signed two executive orders that will affect our current immigration system and many individuals who are in the United States without status.  Through these orders, President Trump seeks to curtail immigration efforts and keep his campaign promise to build a wall in the southern border. Among many of the provisions in these orders, the most notable provisions are the following:
 
  • The Secretary of Homeland Security (“Secretary”) will begin construction of a physical wall between the United States and Mexico;
  • The Secretary will immediately construct facilities near the southern border to detain foreign nationals entering the United States;
  • Asylum officers and immigration judges will be assigned to the detention facilities to expedite the individual’s claims of eligibility to remain in the United States and expedite the removal of such individuals if their claims are rejected; 
  • The Secretary will hire 5,000 new border agents and 10,000 new immigration officers;
  • The Secretary will end “catch and release” practices where people caught for being in unlawful immigration status are released while they wait for a hearing with an immigration judge;
  • The Secretary, with the consent of state and local officials, will authorize state and local authorities to perform functions of immigration officers by investigating, apprehending, and detaining foreign nationals in the United States;
  • The Attorney General and Secretary will strip federal grants offered to “sanctuary jurisdictions” that do not allow their police departments to help US Immigration and Customs Enforcement (“ICE”) detain and deport immigrants;
  • The Secretary will issue a weekly report of “a comprehensive list of criminal actions committed by aliens and any jurisdiction that ignored or otherwise failed to honor any detainers with respect to such aliens;”
  • The Secretary will restore the Secure Communities program; and
  • The Secretary will create an office at ICE to support victims of crimes committed by removable aliens.  
 
According to our sources, we believe that President Trump will be signing other executive orders which include those that impact the issuance of visas to individuals from countries determined to be high risk; restrict the admission of refugees to the United States; immediately suspend the visa interview waiver program at some consulates; evaluate and revamp the H-1B, L-1, E-2, and B-1 nonimmigrant visa programs; review employment authorization document issuance; terminate the Deferred Action for Childhood Arrival (“DACA”) program; and re-examine employment authorization issued to foreign students.  Please stay tuned and we will keep you posted.
 
Please note that the above has been offered for educational purposes only.  Please contact Clark Lau LLC to determine how the above may impact your particular circumstances.



01/17/2017 - New Options for Entrepreneurs Formalized

New Options for Entrepreneurs Formalized
 
Back in August we reported that the Department of Homeland Security (“DHS”) proposed an “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 two years, with a possible extension of three years.  Today, the DHS published that proposal as a final rule which will take effect on July 17, 2017.  Please see our posting of August 27, 2016 for highlights. (http://www.clarklau.com/index.cfm/News/dspNewsDetail/66)
 
Please consult Clark Lau LLC to for more information and whether this applies to your specific situations.  The above has been provided for educational purposes only.



01/02/2017 - Positive Change for National Interest Waivers

Good News for the New Year
 
Happy New Year!  It’s always good to start the new year off with a bit of good news.  Clark Lau LLC assists many individuals in seeking permanent residency in the U.S.  While most are employer- or family-sponsored, there are those who are able to self-sponsor based on their own accomplishments.  One such avenue is the National Interest Waiver (“NIW”) route.  Due to one’s accomplishments, one may be able to waive the labor certification application, i.e., waive having to prove to the U.S. Department of Labor that there is a shortage of U.S. workers in his/her work.
 
Just last week, the Administrative Appeals Office (“AAO”) of the U.S. Citizenship and Immigration Services (“USCIS”) in a recent decision – Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016) (“Dhanasar”) – set forth a new legal framework for adjudicating NIWs, overruling the legal standard that had been established in Matter of New York State Dep’t of Transp., 22 I&N Dec. 215 (Acting Assoc. Comm’r 1998) (“NYSDOT”). Dhanasar provides a clearer analytical framework and additional flexibility to those seeking a NIW. 

The AAO explained that a NIW may be granted under the new framework if the following criteria are met: 1) the foreign national’s proposed endeavor has both substantial merit and national importance; 2) he or she is well positioned to advance the proposed endeavor; and 3) that, on balance, it would be beneficial to the U.S. to waive the job offer and labor certification requirements.

In its decision, the AAO provided a breakdown of what is required for each of the three prongs. Regarding the first prong, “substantial merit” may be shown through work in a wide range of fields, such as business, technology or medicine, and the activity need not result in economic benefits to the U.S.; the furtherance of human knowledge, on its own, may be sufficient.
Moreover, whether a proposed endeavor is of “national importance” is not evaluated strictly on whether a large geographic area of the country will benefit. In other words, an endeavor that might only benefit a specific geographic area – for instance, an area of high unemployment where the proposed endeavor could employ U.S. workers – could pass muster under the new framework.

The AAO explained that the second prong focuses on the achievements of the foreign national in the relevant field, as well as a plan for future activities and the interest of potential customers, users and investors in the foreign national’s work. Here, recognizing the unpredictability of certain ventures, the AAO commented that petitioners are not required to show that their endeavors are more likely than not to succeed, only that they are well positioned to advance the proposed endeavor.

Finally, the third prong provides a more flexible balancing test that weighs the interest in protecting the domestic labor supply against the benefits to the national interest from the foreign national’s contributions. Unlike the third prong in NYSDOT, which required a showing of harm to the national interest or a comparison against U.S. workers in the petitioner’s field, the third prong of the new framework requires only that there be a net benefit to the United States by waiving the job offer and labor certification requirements. Relevant factors include whether it is impractical for the foreign national to secure a job offer or for the petitioner to obtain a labor certification and whether the United States would still benefit from the foreign national’s contributions, even if qualified U.S. workers were available for the proposed endeavor.
While Dhanasar will not radically alter our approach to national interest waiver cases, it does provide us with additional flexibility in partnering with our clients to develop a sound case strategy.

The above has been provided for educational purposes.  To find out how this may impact you under your specific circumstances, please contact Clark Lau LLC. 
 


 



12/01/2016 - Vincent Lau Speaks on Employer-Sponsored Green Cards

On December 6, 2017, Vincent Lau will be speaking on a panel entitled “Permanent Labor Certification (PERM) Modernization – Current Adjudication Trends and Anticipated Changes” via the Practicing Law Institute in New York, and televised to cities such as Philadelphia, Pittsburgh,  Nashville, Atlanta, Columbus, and Cleveland.  The panel will discuss strategies in working with the U.S. Department of Labor when it comes to seeking permanent residency (“green cards”) for employees.  For more information, check out:  https://goo.gl/Jt6fmP
 



11/18/2016 - Good News for Those Who Wait?

Good News for Those Who Wait
 
Can it be true?  Sixty days before the Obama Administration is out, the Department of Homeland Security (“DHS”) is publishing new regulations in the Federal Register today.  These will take effect on January 17, 2017 and will provide benefits to many who are already in the long queue for employment-based permanent residency.  In addition to clarifying and affirming long-standing DHS practices relating to H-1B extensions and exemptions, certain nonimmigrant classifications are now going to have two 10-day grace periods on either ends of the authorized period of stay, while others will also gain a 60-day grace period at the end.  The final rule also provides for a 180-day automatic extension of the employment authorization document if a timely application for renewal has been filed.
 
Highlights of Changes
 
10-day Nonimmigrant Grace Periods
Nonimmigrants in the E-1, E-2, E-3, L-1, and TN status will now have a 10-day grace period to enter the U.S. before starting one’s job and another 10-day grace period to wrap up one’s affairs before leaving.  (Current regulations indicate that an officer at the border has the discretion to grant a 10-day grace period at the end of one’s H-1B period of stay.  This is not always granted however.)
 
60-day Nonimmigrant Grace Period
A welcome relief to many who may find themselves suddenly terminated is a 60-day grace period granted to those individuals in the E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, and TN classifications.  This means that individuals who have been terminated by their employers will now have up to 60 days to have a new employer file a petition on their behalf.  (This is similar to the 60-day grace period afforded F-1 international students.)
 
Automatic Extension of EADs
While striking the rule that requires DHS to adjudicate an application for employment authorization document (“EAD”) within 90 days, the final rule allows for an 180-day extension where a request for a renewal of an EAD under the same category has been timely filed.  
 
Retention of Employment-Based Immigrant Visa Petitions
The final rule provides that a Form I-140 which had been approved for 180 days or more will remain valid and not automatically revoked based on the withdrawal by the petitioner or the termination of the petitioner’s business, unless it was revoked for fraud, willful misrepresentation of a material fact, the invalidation or revocation of a labor certification, or material error.
 
Eligibility for Employment Authorization in Compelling Circumstances
Where an individual is in E-3, H-1B, H-1B1, L-1, or O-1 status, has an approved Form I-140, and who is awaiting an immigrant visa number to complete her permanent residency process, the individual is eligible for an EAD under “compelling circumstances.”  (Currently, an individual must wait until there is an immigrant visa number before she is able to file Form I-485 adjustment of status application and concurrently request an EAD.  For some, this new rule speeds up the process for obtaining an EAD by years.)
 
H-1B Approvals without Meeting Licensing Requirement
Under normal circumstances, an H-1B individual must be qualified for the specialty occupation at the time of filing the H-1B petition.  This includes having obtained the degree and any necessary licenses to perform the duties of the specialty occupation.  DHS however has made exceptions and has approved H-1B petitions where the individual did not yet have her license if she could show that but for a technical reason she could not obtain a license necessary to perform the specialty occupation.  The final rule affirms this practice and also explains the evidence needed meet the exception.
 
Highlights of Clarifications
 
H-1B Extensions under AC21
While normally one would max out after being in the U.S. for six years in H-1B time, the American Competitiveness in the Twenty-First Century Act (“AC21”) allows an individual who is the beneficiary of a labor certification application filed more than 365 days ago to extend her H-1B stay by at least one year.  It also allows one who is the beneficiary of an approved Form I-140 immigrant petition to extend her H-1B stay by three years if there is no immigrant visa number available to her to complete her permanent residency application.  The final rule sets forth regulations for these statutory provisions.
 
INA 204(j) Portability
This allows individuals with approved Forms I-140 to change to a job of the same or similar occupation where the Form I-485 adjustment of status application has been filed and pending for more than 180 days.  The final rule addresses how one can prove eligibility under such portability.
 
H-1B Portability
Employers can employ individuals who are already in H-1B status upon the filing of non-frivolous petitions.  The final rule also explains “bridging” where one is the subject of a string of such H-1B filings.
 
H-1B Six-Year Cap
The final rule clarifies how individuals are counted against the H-1B six-year cap, including how they may recapture time spent outside of the U.S. at any time before reaching the six-year cap.  It also clarifies that the labor certification, and some instances the Form I-140, does not have to be pending 365 days when the six-year cap is reached.  Instead, the operative time is when the exemption would take effect.  Likewise, under the option to extend an H-1B an additional three years, the unavailability of an immigrant visa number must exist at the time the petition seeking the extension is filed, not at the time the petition is adjudicated.
 
H-1B Cap Exemptions
The final rule clarifies how to determine if an H-1B nonimmigrant worker is exempt from the H-1B cap based on employment at a nonprofit entity related to or affiliated with an institution of higher education. While the final rule indicates that, where there is a formal affiliation agreement, shared ownership and control does not need to be proven, the “fundamental activity” of the nonprofit entity must directly contribute to the research or educational mission of the institution of higher education.  Additionally, the final rule clarifies that the term “governmental research organization” includes state and local government research entities.
 
Protections for H-1B Whistleblowers
The final rule addresses conditions for protecting H-1B nonimmigrant workers in the course of aiding in the investigation of violations of the Labor Condition Application (“LCA”).
 
The above information has been provided for educational purposes only and should not be construed as legal advice.  As the final rule is implemented, there is sure to be further clarification and guidance.  Please consult your Clark Lau LLC attorney for more information, and stay tuned for further changes and updates.
 



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.
https://goo.gl/7kz8Hb

 



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.