News

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:  http://www.pli.edu/Content/Seminar/49th_Annual_Immigration_and_Naturalization/_/N-4kZ1z11htn?ID=260063&t=AKU6_FCLTY



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.

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



10/04/2016 - Diversity Lottery 2018 Now Open

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

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



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

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

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

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



08/31/2016 - USCIS Ombudsman Telephone Conference

USCIS Ombudsman Telephone Conference

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

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

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

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



08/27/2016 - New Option for Entrepreneurs Proposed

New Option for Entrepreneurs?

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



08/24/2016 - Most Innovative Immigration Law Firm

Corporate America News just announced its 2016 Legal Elite Awards.  

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

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



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

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

Free gift to the first 200 attendees!

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



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

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

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

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



07/01/2016 - Global Entry and Easier Travel

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



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

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

https://youtu.be/85z7rUVPWKI



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

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



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

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



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

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

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



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

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

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

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

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

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

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