News07/26/2016 - 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.
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:
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:
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:
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:
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:
Please contact us at your earliest convenience if you have any questions concerning the above. Again, timing is everything.
12/31/2015 - New Rules Proposed
Employment-Based Immigration to be Impacted by DHS Proposals
As we close out a year poised for much anticipated immigration reform, we are anticipating that the Department of Homeland Security (DHS) will be publishing in the Federal Register today (December 31, 2015), a laundry list of changes that will impact the employment-based immigration world. DHS has entitled this “Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers.” Among these changes are DHS’s treatment of employment authorization documents (EAD), grant of grace periods to some nonimmigrants, and also codification of some of the current practices regarding H-1B extensions. Once these proposals are published, there is a sixty-day comment period. While this is a good foretaste of what is to come, it is not law yet. Below are some highlights:
The above information has been provided for informational purposes only. As indicated previously, the above are mere proposals and are not law yet. Regardless, you should always consult with your Clark Lau LLC attorney to determine the best immigration options available to you at any given time. Also, a special thanks is extended to the Alliance of Business Immigration Lawyers (www.abil.com), of which Vince is a member, for sharing their insights. Stay tuned for more updates and have a great immigration year!
12/24/2015 - ESTA Changes Now Law
Changes to the Visa Waiver Program (ESTA) Now Law
Amendments to the Visa Waiver Program (ESTA) were enacted into law on December 17, 2015. The ESTA program allows citizens from a list of designated countries which the U.S. government deems has sufficient security checks and measures, to enter the U.S. for up to 90 days for pleasure or for business (not for work however) without first applying for a visa at an U.S. consulate abroad. The amendments include the following:
This information has been provided for educational purposes only. For specifics about your situation, please contact Clark Lau LLC directly.
12/09/2015 - ESTA Program Challenged
Proposed Challenges to the Visa Waiver Program (ESTA)
Yesterday the U.S. House of Representatives passed H.R. 158 which poses amendments to the Visa Waiver Program (ESTA). The bill must now be passed by the U.S. Senate and then signed into law by President Obama, or if vetoed by him, voted by both houses of Congress to override the veto. The main takeaway is that the amendments are not law. With that said, it is still worth taking a look at what the proposals include.
The ESTA program allows citizens from a list of designated countries which our government deems has sufficient security checks and measures, to enter the U.S. for up to 90 days for pleasure or for business (not for work however) without first applying for a visa at an U.S. consulate abroad. H.R. 158 proposes to make amendments to this program in the following ways:
Again, the above are amendments proposed and passed by the House of Representatives, but not yet law. Nonetheless, we hope that this educational insight will help you understand the concerns around the ESTA program. This information has been provided for educational purposes only. For specifics about your situation, please contact Clark Lau LLC directly.
12/07/2015 - Global Entry Comes to Kendall Square
Clark Lau LLC announces special Global Entry Registration Event on January 26, 2016. In conjunction with the Cambridge Innovation Center and the Kendall Square Association, Clark Lau LLC has arranged a special registration event with the U.S. Customs and Border Protection for onsite interviews at the CIC (101 Main Street, 14th Floor) in Kendall Square for the second step of the Global Entry registration program.
What is Global Entry?
Global Entry is a U.S. Customs and Border Protection (CBP) program that allows expedited clearance for pre-approved, low-risk travelers upon arrival in the United States. Participants may enter the United States by using automated kiosks located at select airports.
Global Entry is open to U.S. citizens, U.S. lawful permanent residents, Dutch citizens, South Korean citizens, and Mexican nationals. (Canadian citizens and residents may enjoy Global Entry benefits through membership in the NEXUS program.)
How to apply for Global Entry:
What You Will Need to Apply:
For more information about Global Entry: http://www.cbp.gov/global-entry/about
For more information about Clark Lau LLC and its immigration and employer compliance services: www.ClarkLau.com
For more information about the Kendall Square Association: www.kendallsq.org
For more information about the Cambridge Innovation Center: http://cic.us
12/04/2015 - Employee vs. Contractor
Form I-9, Employees, and Independent Contractors
As the government is on the verge of converting the 2-page Form I-9 to 19 pages, it will be turning what is already complex into something which has the potential to be even more of a challenge for employers to complete. All employers must complete Forms I-9 for their employees. Independent contractors are exempt from this requirement.
The use of the different labels just to avoid completing Forms I-9 however is not to be taken lightly. To shed some light into this often faced situation, one should consider a recent ruling by the United States Department of Justice Executive Office for Immigration Review, Office of the Chief Administrative Hear Officer (“OCAHO”) for a case where the definitions of “independent contractor” and “employee” were disputed by the two parties involved. The U.S. Department of Homeland Security, Immigration and Customs Enforcement (“ICE”) filed a complaint against Mr. Saidabror Siddikov d/b/a Beyond Cleaning Services. In their complaint, ICE alleged that Mr. Siddikov had failed to complete I-9 forms for six of his workers and sought $6600 in penalties, but Mr. Siddikov maintained that each worker was an independent contractor and did not need to complete an I-9.
In its motion, the government argued that a worker cannot be classified as an employee or independent contractor based on an arbitrary decision made by the employer. Instead, ICE asserted that the “right of control” was the most important factor in determining an individual’s status. Citing Breaux and Daigle, Inc. v. United States, No. CIV. 88-1535, 1989 WL 119058 (E.D. La. May 17, 1989), a case in which unskilled crab pickers were deemed to be employees, ICE claimed that Beyond Cleaning Services controlled the work of the six individuals, “as it identifies customers, it has the customers provide all the tools for the job, the customers set the hours exclusively, and the workers are paid by the hour rather than by the job.” Due to this perceived level of control, the government argued that Mr. Siddikov had failed to prepare, retain, or present I-9 forms for these six employees.
In his answer denying the allegations, Mr.Siddikov used the Internal Revenue Service’s criteria for assigning status as an employee or independent contractor for each of the six individuals. He argued that while he assigned the workers to specific jobs, he did not provide direction on the equipment, number of workers, where necessary supplies could be purchased, or what tasks each individual needed to complete. Also, he claimed that he did not have ongoing relationships with four of the six employees, two of the employees ran their own companies, and that he never evaluated the work of any of the individuals. Mr. Siddikov provided detailed descriptions of his work relationships with each individual and described their work outside of the scope of their involvement with Beyond Cleaning Services.
OCAHO recognized that this case required the employment of the following three levels of analysis: regulations, OCAHO past decisions, and principles of agency law discussed in federal cases.
These six workers were not supervised or controlled by Beyond Cleaning Services as the regulatory definition of employee would require, common law factors agreed with the Respondent, and none of these workers were economically dependent on Beyond Cleaning Services. After examining the, “totality of the circumstances”, Administrative Law Judge Ellen K. Thomas acknowledged that although many contemporary workers fall into a gray area between employers and independent contractors, Beyond Cleaning Services properly classified the six individuals as independent contractors.
The above information has been provided to you for educational purposes only. Please feel free to contact the Clark Lau LLC team to assess your particular circumstances. We assist employers in remaining compliant with hiring and immigration requirements.
Special thanks to Clark Lau team member Lucas Sutherland for contributing to this post.
11/30/2015 - Clark Lau LLC Awarded American Leadership Award
Clark Lau LLC has been selected by the American Economic Institute (AEI) for a 2015 American Leadership Award for Consumer Solutions. AEI identifies firms that have demonstrated excellence in their respective fields and achieved commercial recognition. (See Press Release: http://aefgh.org/PressRelease/b_id/UY7ZLH).
11/30/2015 - Holiday Travel Tips
Traveling to the United States
As the holiday season approaches, travel is on the minds of many. We take this opportunity to discuss some of the issues involved with traveling to the United States. Any time an individual enters the United States, the individual must obtain permission from the U.S. government. This permission is known as a “visa.” For most, visiting the U.S. for business requires obtaining the B-1 visa and for pleasure requires the B-2 visa. Both visa types require the individual to articulate a specific purpose and duration for the trip and provide convincing evidence that the individual will be returning home afterwards.
The B-1 visa is issued for those coming to the country for the purpose of business. Examples of this include foreign nationals engaging in commercial transactions such as negotiating contracts, litigation, consulting with clients, or meeting with business associates; visitors participating in scientific, educational, professional, religious, or business conventions; personal or domestic servants who accompany returning United States citizens or other certain nonimmigrant visa holders; professional athletes; and many more.
B-2 visas are issued for those coming to the U.S. for pleasure. Those admissible while holding this visa include tourists, those visiting friends and relatives socially, visitors coming for health and medical purposes, participants in conventions of social organizations, participants in amateur musical and sports events with no remuneration, and many others.
Both B-1 and B-2 individuals must provide sufficient evidence to show that their temporary stay in the U.S. has no intention of becoming permanent. In order to fulfill this requirement, the United States Citizenship and Immigration Services (“USCIS”) requires the individual to prove that their foreign residence is their home, and in most cases for the B-1, that the principal place of business and actual profits are accrued predominately in a foreign country.
One of the major concerns about the B-1/B-2 visa is the process of issuing the visa. In order to receive the visa, an individual must set up an interview with a consular officer. At the time of the interview, the officer reviews the reasons for obtaining a visa, and the evidence pertaining to nonimmigrant intent – that is, whether the individual will be returning home. Visa issuance is entirely up to the consular officer at the time of the interview and therefore it is in the applicant’s best interest to provide as much detailed information initially as possible.
While an individual may reapply after a denial, our experience has shown that reapplying for the B-1/B-2 visa carries a greater hurdle than the initial application. The issue stems from the consular officer’s file of the interview with the foreign national. After each visit to the consulate, the officer will leave notes on a foreign national’s file. These notes can prohibit an individual from reapplying for the same visa, given that the new officer (or even the same officer as before) will have access to the notes as to why the visa was not granted in the first place. Already, there is a prejudice that the applicant must overcome. Therefore reapplying without new evidence and further details will not help a case.
Please note that for citizens of select countries, there is a visa waiver program (ESTA) that acts similar to the B-1/B-2 visa, but bypasses the application at the consular office. More information about this program can be found at the following link: https://esta.cbp.dhs.gov/esta/
The above information has been provided for informational purposes only. As always, your particular facts may warrant a different route. Please contact Clark Lau LLC to determine what is best for your situation.
Special thanks to Clark Lau Team Member Shannon Lee for contributing to this post.
11/24/2015 - USCIS Proposes Job Change Guidance
More Job Flexibility Proposed?
The United States Citizenship and Immigration Services (USCIS) just released a draft to help its officers in deciding whether an individual can keep his or her green card application after changing jobs.
Under employment-based immigration, one can self-petition based on one’s record of accomplishments or have an employer file based on the results of a labor-market test (PERM) or transfer within a multinational company. These options require filing the Form I-140 immigrant petition and then the Form I-485 adjustment of status application. One cannot file the I-485 application however until a visa number is available for one’s preference category and for one’s country of birth. Congress sets an annual limit on visa numbers and a high demand from certain countries, e.g., China and India, results in long waiting times. Given that I-140s are usually based on specific job opportunities, the long waiting times practically translate into not allowing the individuals from changing their jobs, even with the same employer. In 2000, Congress enacted the “American Competitiveness in the Twenty-First Century Act of 2000” (AC21) which provided some flexibility. AC21 would allow an individual to change jobs under the following circumstances:
Since 2000, there has been minimal guidance on what is “same or similar.” In November 2014, President Obama announced that his goal was to provide some guidance and flexibility in this area. USCIS just issued a draft proposal for commenting on this very topic.
USCIS proposed that its officers would have to determine whether someone who had changed jobs had changed to one that was in the “same or similar” occupation. If so, then the individual could keep the pending application. If not, then the individual would have abandoned the application and start all over.
USCIS indicated that “same” would mean that the jobs were “identical,” “resembling in every relevant respect,” or “the same kind of category or thing.”
As for “similar,” USCIS proposed that officers should look at the totality of the circumstances. These circumstances include the following:
The above is just a proposal at this time, but once finalized it is welcomed guidance. Attorneys at Clark Lau LLC have been using the first test, i.e., the SOC codes, in assisting employers and individuals in determining whether a new job is of the “same or similar” occupation and whether employers and individuals could keep an ongoing application. We will continue to do so and will keep you updated as to any further changes or guidance. The above is provided as information only; please do not hesitate to contact your Clark Lau LLC attorney to see how the above could impact your specific facts.
11/10/2015 - Clark Lau LLC Best Employer Immigration Compliance USA
AI Legal announced its 2015 awards and awarded Clark Lau LLC "Best for Employer Immigration Compliance - USA." Congratulations to the team!