04/13/2019 - Update to H-1B Lottery Process

USCIS announced this past week that they have not only received more petitions than there are available H-1B visa numbers (85,000) but they have also completed their lottery selection process.  For those petitioners who have selected to use the Premium Processing option, which is an additional $1410 in government filing fees, they are already receiving notification as to whether their petitions have been selected in the lottery for substantive processing.  For those who have not selected Premium Processing, or for those petitions not available for Premium Processing, it is still a waiting game.  (Premium Processing is an option for employers to pay an additional filing fee for USCIS to generate a response, whether a decision or a request for more information, within 15 days of the receipt of the petition.  Under the H-1B lottery process, the 15-day clock does not technically start upon receipt of the petition due to the high volume of petitions USCIS receives during the first week of April.)
In prior communications, we announced that the H-1B demand had decreased.  This was incorrect.  The numbers have actually been fluctuating.  In FY2017 (April 2016), employers filed 236,000 petitions.  In FY2018, employers filed 199,000 petitions.  In FY2019, employers file 190,098 petitions.  This April, for FY2020, employers file 201,000 petitions.  Regardless, these numbers show a demand much greater than the allotted 85,000 that are available.
The above has been provided for informational purposes only.

04/12/2019 - USCIS Completes H-1B Lottery

USCIS just announced that they received 201,000 H-1B petitions at the beginning of this month which exceeds the number of H-1B visa numbers available for Fiscal Year 2020.  This is no surprise given that employers have been filing H-1B petitions that have exceeded the number available each year for many years now.  What is interesting is that the actual number of H-1B petitions that have been filed with USCIS continues to decrease.  There were 233,000 last year and 236,000 the year before.

Despite the decrease in petition numbers, there still is not enough H-1B visa numbers to meet the demand.  For this reason, USCIS continues to use an established lottery system to select 65,000 petitions for review, and then another 20,000 petitions for those remaining where the beneficiary has at least a US Master’s degree.  Please note that while the lottery system has been in place for some time now, the order of selection this year is new.  This order gives preference to those petitions with beneficiaries who have at least a US Master’s degree.  Starting next year, a completely new process, which will include an electronic pre-registration system, will come into play.  In the meantime, over the next few weeks, employers and employees alike wait to see whether their petitions have been selected for processing.

The above has been provided for informational purposes only.

12/05/2018 - Proposed H-1B Registration Process

Employers filing H-1B petitions for individuals who have never had H-1B status have had to wait for the availability of a visa number, unless the employer is exempt.  (Exempt employers include institutions of higher education, non-profit research organizations, and government research organizations.)  Over the last few years, there has been a shortage of H-1B visa numbers to meet the demands.  As a result, employers have had to participate in a lottery process that started April 1 each year (six months before the first day of each fiscal year October 1) to attempt to secure a number.
Earlier this month, USCIS published proposed regulations regarding an electronic registration process for the H-1B lottery.  Right now, we are in a 30-day comment period that will end the first week of January 2019.  USCIS is hoping that they will be able to implement the registration process for Fiscal Year 2020, that is, for the filing period that starts April 1, 2019.  Below are some highlights.
  • All H-1B petitions to be entered into the lottery will be subject to an electronic registration process.
  • USCIS will announce the registration period at least 30 days in advance of the start of the process and the process will be at least 14 days long.
  • The intention is to start the registration process in advance of April 1, 2019.
  • There is no fee proposed for the registration process.
  • In order to participate in the registration process, an employer must provide the following:
    • Employer’s name, Federal Employer Identification Number (FEIN), and Employer’s mailing address;
    • Employer’s authorized representative’s name, job title, and contact information (telephone number and email address);
    • Beneficiary’s full name, date of birth, country of birth, country of citizenship, gender, and passport number;
    • Whether the Beneficiary has obtained at least a Master’s degree or higher from an institution of higher education in the United States;
    • Employer’s attorney or representative; and
    • Possible additional information to be determined by USCIS.
  • Employers will be able to register each beneficiary only once and must attest to employing the individual in connection with a bona fide job offer if selected in the process.
  • If one is not selected in the process, one will have to re-register in the following year.  No preference will be given to those who were registered previously.
  • USCIS will consider all of the petitions (regardless of whether the individual has a U.S. master’s degree or higher) and select what they believe will be enough to meet the initial 65,000 H-1B visa allotment.  Then, USCIS will consider those remaining petitions where the beneficiary has a U.S. master’s degree or higher, and conduct a lottery for enough petitions to meet the 20,000 allotment.  This is different from the current order and the stated goal is to ensure that more H-1Bs are given to those who have at least a U.S. master’s degree or higher.
  • Employers will be notified of selection via an email and of where and when to file the actual petition.
  • If selected USCIS is proposing to provide employers with a 60-day window within which to file the H-1B petition.  USCIS may stagger the filing windows to accommodate its workforce.  USCIS believes that this 60-day window will be enough time for an employer to file a Labor Condition Application with the US Department of Labor and then file the H-1B petition.
As we are still in a comment period, any of the above proposals may change. Please stay tuned and we will keep you updated.  The above has been provided for educational purposes only. 

11/30/2018 - USMCA - Minimal Immigration Impact

Teaders of the U.S., Canada, and Mexico have just signed off on the renegotiated version of the North American Free Trade Agreement (NAFTA), now named the United States-Mexico-Canada Agreement (USMCA), while attending the G20 Summit today. While the respective governments will have to ratify the agreement, the burning question from the immigration standpoint is how will this impact the nonimmigrant TN visa classification which allows citizens of Canada and Mexico to enter the US to work for US employers under a prescribed list of occupations.
Based on what we see, other than updating some headings and terms, the answer is that there will be little impact. The nonimmigrant option remains and the occupational classifications remain the same, with the addition to the list of “Actuary” and “Plant Pathologist” which was approved back in 2003. 
This information was provided for educational purposes; stay tuned for more.

11/17/2018 - New Registration System for H-1B?

The H-1B visa classification is one of the most popular work-authorized temporary work visas available.  H-1Bs are available where there is a U.S. employer; where the position offered is a “specialty occupation,” that is, one cannot perform the duties without having a degree in a specific field of study; where the individual has the degree (or equivalent work experience) in that specific field; and where the employer is willing to pay a required wage.  For now, there is generally no labor market test.  The H-1B is so popular that individuals not already in H-1B status must have their employers file a petition in a lottery each spring for a chance at obtaining an H-1B number.  There are only 20,000 numbers available each year for those with advanced U.S. degrees and 65,000 for all others.  About 30-35% of those trying for a number are selected for processing, and there is no guarantee that the government would approve the petitions based on their merits due to shifting adjudicatory standards under the current administration. 
There have been talks over the years regarding changing the H-1B system given the demand for them.  One of the more talked about options is to have a pre-registration system for employers so that employers would not have to complete the whole H-1B filing process, only to find out through a lottery system that their petitions were not chosen for processing.  This fall, when the Department of Homeland Security (DHS) provided an overview of some of the upcoming regulatory changes, it indicated the following:
The Department of Homeland Security proposes to amend its regulations governing petitions filed on behalf of H-1B beneficiaries who may be counted under section 214(g)(1)(A) of the Immigration and Nationality Act (INA) ("H-1B regular cap") or under section 214(g)(5)(C) of the INA ("H-1B master's cap"). This rule proposes to establish an electronic registration program for petitions subject to numerical limitations for the H-1B nonimmigrant classification. This action is being considered because the demand for H-1B specialty occupation workers by U.S. employers has often exceeded the numerical limitation. This rule is intended to allow U.S. Citizenship and Immigration Services (USCIS) to more efficiently manage the intake and selection process for these H-1B petitions.
While the DHS had indicated that they would be publishing the new rule in October 2018 for the public to comment, and so that there would be enough time to implement it for the upcoming H-1B lottery (April 1, 2019), to date, nothing has been published yet.  What is of interest, however, is that on November 16, during a public meeting, USCIS Director Francis Cissna said that DHS is still aiming to publish a rule in time for this upcoming H-1B lottery.  Details of this rule have not been released yet, but our sources, the American Immigration Lawyers Association (AILA) believes that the rule will mirror what was proposed back in 2011 whereby an employer would undergo an electronic registration process that would take about 30-minutes, then USCIS would select the number of registrations that it believes would use up the allotment of H-1B numbers, and then notify the employer that it may proceed with preparing and filing both steps of the H-1B process (the ETA Form 9035 Labor Condition Application and the Form I-129 Petition for Nonimmigrant Worker).
We will keep a close watch on this developing story.  In the meantime, regardless of the actual procedure, we do encourage all employers to look ahead and consider whether any of their current employees and any upcoming hires will need an H-1B number.  These typically are those who are not currently in H-1B status, especially recent international student graduates (F-1s).
The above information was provided for educational purposes only.

10/25/2018 - Vince Lau Named Top Lawyer

Clark Lau LLC is pleased to announce that Managing Partner Vince Lau has been named by Marquis’ Who’s Who as a Top Lawyer.  According to Vince, “What makes one a ‘Top Lawyer’ is the strong support and backing he receives from the team at work.”

06/18/2018 - Vince Lau Joins Government Speakers

Vince Lau joins government speakers Bill Rabung (Director of Operations of the Department of Labor's Office of Foreign Labor Certification) and Judge Paul Almanza (Associate Chief Administrative Judge of the Department of Labor's Office of Administrative Law Judges) at AILA's Annual Immigration Conference to discuss latest updates in connection with employment-based green cards.

04/12/2018 - H-1b Cap Reached and Lotteries Completed

USCIS announced today that not only has the H-1b cap been reached but that it has completed both its US Master’s degree H-1b cap and regular H-1b cap lotteries.  They will now start processing the selected petitions and will be returning those that have not been chosen. 
Given that USCIS has suspended premium processing for H-1b cap cases, it may take a while before employers will receive further news about a particular petition.  
In the meantime, no official processing time has been issued.  USCIS did announce however they received 190,098 petitions this year for the 85,000 available visas.  This is down from the 199,000 filed last year.
If any H-1b cap petition beneficiary needs to do any international travel, please do not hesitate to contact us first to determine if there is any impact on the filed H-1b petition.
Please stay tuned!
(This information was posted for educational purposes only.)

02/02/2018 - Magaly Rojas Navarro Speaks on Wages

Magaly Rojas Navarro spoke on a national webinar organized by the American Immigration Lawyers Association (AILA) on January 18, 2018. She joined members of AILA's Department of Labor Liaison Committee in discussing how an employer could meet wage requirements in H-1B and PERM cases using alternative sources such as private wage surveys.

02/02/2018 - Vince Lau Speaks on Green Card Process

Vince Lau spoke today at the American Immigration Lawyers Association's (AILA) Midyear Conference.  As Vice Chair of AILA's Department of Labor Liaison Committee, he shared insights on the current U.S. Department of Labor processes including how to handle obtaining a prevailing wage determination in connection with an employer-sponsored green card case.

01/23/2018 - Planning for H-1Bs

While the government is still dealing with the current fiscal year and its budget, it’s not too early to consider any potential H-1Bs for FY2019.
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, 2018, employers may file petitions to request numbers as early as six months in advance, i.e., April 1, 2018.  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. During the last few fiscal years, 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, 2018 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, and despite reported rumors of changes to the H-1B program, USCIS has not made any announcements regarding changes to the requirements or the process and we anticipate that USCIS will continue processing H-1B petitions as before. 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.

12/14/2017 - International Entrepreneur Rule Back for Now

On December 1, 2017, a district court reinstated an option available for entrepreneurs created under the Obama Administration but put on hold by the Trump Administration.  Today, the U.S. Citizenship and Immigration Services announced that they would be accepting applications under this option.  Concurrently, however, they are also proposing to end this option.  As a result, it is uncertain whether this option will last, and if so, in what form.  Below is a summary of the current form of this option.

The International Entrepreneur Rule ("IER") would allow individuals, and their families, who meet 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.
IER 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 must 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.
The above information has been provided for educational purposes only.  To see whether this option is appropriate for your circumstances please contact Clark Lau LLC.

12/05/2017 - Travel Ban and Entrepreneur Parole Back in Play

Yesterday, on December 4, 2017, the U.S. Supreme Court lifted the restrictions that lower courts had imposed on implementing President Trump’s latest travel ban. Arguments to whether the travel ban will stay will be conducted in the lower courts.  (See details under Clark Lau entry of 9/27/2017.)
Additionally, the Obama Administration had fashioned a rule that would offer entrepreneurs an opportunity to conduct business in the U.S. if a certain threshold of capital and operations were reached (“Entrepreneur Parole”).  The rule was to take effect in July 2017, but the Trump Administration halted it with its “Delay Rule.”  A district court in D.C. ruled on Friday, December 1, 2017, that this Delay Rule did not follow proper procedures and therefore the Entrepreneur Parole rule should be in place.  Details for implementation are expected. (See details under Clark Lau entry of 8/27/2016.)
The above information has been provided for educational purposes only.  Please contact your Clark Lau attorneys to see how the above information impacts your particular circumstances.

12/05/2017 - Magaly Rojas Navarro Speaks on PERM

Magaly Rojas Navarro will be speaking at the Massachusetts Continuing Legal Education ("MCLE") Annual Conference on Immigration today.  Magaly will be providing insight into the overall PERM process.  This is an annual event where new and seasoned attorneys attend find out about the latest developments in immigration law.

11/28/2017 - Vince Lau Quoted in Boston Globe regarding H-1Bs

The shortage of H-1B visa numbers each fiscal year has negatively impacted the way employers do business, especially in the IT field.  As another H-1B season approaches during in early 2018, and with the current administration taking a harder line on interpretation of H-1B rules, employers are bracing themselves.

?Vince Lau comments on the situation in the Boston Globe today:

11/15/2017 - What is a Functional Manager?

New USCIS Guidelines on Functional Managers
Whether someone can be defined as a “functional manager” in the world of U.S. immigration is relevant when a company is trying to transfer an individual from one entity abroad to a U.S. entity.  It is also a relevant question when a company is seeking to sponsor a similar individual for a green card.  On November 8, 2017, U.S. Citizenship and Immigration Services (USCIS) released a new policy memorandum in response to the decision in Matter of G- Inc. of the Administrative Appeals Office (AAO) which addresses this very question.
In Matter of G- Inc., the AAO defines a “functional manager” and provides a set of criteria which must be met in order to demonstrate that an individual is a functional manager. In summary, functional managers are individuals who manage or direct an important function for a business or organization. This is different from what the AAO refers to as a “personnel manager,” which is a person responsible for managing other supervisory, professional, or managerial people rather than a particular function.
To fulfill the definition of a functional manager, the following criteria must be met:
(1)the function is a clearly defined activity;
(2)the function is “essential,” i.e., core to the organization;
(3)the beneficiary will primarily manage, as opposed to perform, the function;
(4)the beneficiary will act at a senior level within the organizational hierarchy or with respect to the function managed; and
(5)the beneficiary will exercise discretion over the function’s day-to-day operations.
So when thinking of whether an individual is a functional manager one must first determine whether one’s function is a defined and critical piece to the organization and then whether she meets the definition based on her job duties and level in the organization. Without both, the criteria cannot be met. Practically this does not greatly change previous practices and requirements. However, it does provide a clearer definition on how to meet the definition of a functional manager and what type of evidence to provide.
The above information has been provided for educational purposes only by Clark Lau LLC (  Please feel free to contact a knowledgeable immigration attorney as to how the above may apply to one’s particular circumstances.

11/14/2017 - Who's Who Legal Corporate Immigration Announced

Attorney Erin Hogan has been selected to be a part of Who’s Who Legal: Corporate Immigration 2018. Erin joins Managing Partner Vincent Lau and Senior Counsel Steven Clark in this distinction. Each year Who’s Who Legal identifies the foremost legal practitioners in business law based on comprehensive, independent research and peer-reviews. For more information about our team, check out

11/01/2017 - Best Lawyers Ranking

Clark Lau LLC has been recognized in the 2018 Best Lawyers rankings as top listed in Massachusetts in Immigration Law and also top listed in Cambridge in Immigration Law.  Additionally, all five of its attorneys have been recognized among the best lawyers in immigration law.  Senior Counsel Steven Clark has been recognized in this category since 1990 and Managing Partner Vincent Lau has been recognized in this category since 2010.  For more information about the firm, check out

10/04/2017 - Eric Lockwood Speaks on Transatlantic Business

On October 16, Attorney Eric Lockwood will participate in a panel discussion entitled “Mindful Management of Your Transatlantic Business,” sponsored by the British American Business Council of New England. He will provide an immigration law perspective as he joins three other speakers, along with the British General Consul Harriet Cross, in discussing the cultural, communication and operational challenges in managing a transatlantic business. The event will be hosted by Talent Works Ltd,  at 201 Jones Road in Waltham, MA. Additional information about how to register for this event can be found here:

09/29/2017 - Clark Lau Turns Five

While Clark Lau LLC’s predecessor firm (Flynn & Clark PC was founded in 1976), Clark Lau was established on October 1, 2012.  A special thanks goes to the strong support Clark Lau has received over the last five years from its clients nationally and internationally and from the broader immigration legal community.  Clark Lau has been ranked as one of the “Best Law Firms” by U.S. News and World Report and all five of its attorneys are recognized as “Best Lawyers.”
Clark Lau looks forward to continuing its commitment to providing effective, sensible, and responsive immigration solutions.  While professional services become more and more automated, Clark Lau embraces technology in order to spend its time on face-to-face and high-touch immigration services.  Read more as to why Clark Lau should be your choice:

09/27/2017 - Presidential Proclamation and New Travel Restrictions

On Sunday, September 24, 2017, President Trump issued a presidential proclamation (“proclamation”) whereby he sets forth specific travel restrictions for individuals from the following seven countries:  Chad, Iran, Libya, North Korea, Syria, Venezuela, and Yemen.  These restrictions start October 18, 2017.  President Trump indicates that these restrictions arise out of a consideration of whether the government of these countries is cooperating with the U.S. and whether the information sharing and identity-management protocols of each country allow for effective screening and vetting protocols and procedures of the United States.  The U.S. government has just completed a review of the practices of over 200 countries and its conclusion is that the governments of these seven countries do not sufficiently meet the standards necessary for our national security and public safety.  Unlike prior Executive Orders on travel, this proclamation provides country-specific restrictions.  What follows is quick summary of the restrictions; please note also the exceptions.
What are the countries impacted?
The proclamation recognizes that immigrants, i.e., those seeking visas to enter the United States as legal permanent residents, also known as green card holders, and nonimmigrants, those coming to the U.S. for a specific, temporary purpose require different levels of screening.  For these reasons, the proclamation sets forth not only countries that are impacted but also the type of visa applicants.
  1. Immigrants.
  2. Nonimmigrants holding business (B-1), tourist (B-2), and business/tourist (B-1/B-2) visas.
  1. Immigrants.
  2. Nonimmigrants, except those under valid student (F and M) and exchange visitor (J) visas, although such individuals should be subject to enhanced screening and vetting requirements.
  1. Immigrants.
  2. Nonimmigrants on business (B-1), tourist (B-2), and business/tourist (B-1/B-2) visas.
North Korea:
  1. Immigrants.
  2. Nonimmigrants.
  1. Immigrants.
  2. Nonimmigrants.
  1. Officials of government agencies, including the Ministry of the Popular Power for Interior, Justice and Peace; the Administrative Service of Identification, Migration and Immigration; the Scientific, Penal and Criminal Investigation Service Corps; the Bolivarian National Intelligence Service; and the Ministry of the Popular Power for Foreign Relations and their immediate family members, as nonimmigrants on business (B-1), tourist (B-2), and business/tourist (B-1/B-2) visas.
  2. All else should be subject to appropriate additional measures to ensure traveler information remains current. 
  1. Immigrants.
  2. Nonimmigrants on business (B-1), tourist (B-2), and business/tourist (B-1/B-2) visas.
  1. Immigrants.
  2. Nonimmigrants will be subject to additional scrutiny “to determine if applicants are connected to terrorist organizations or otherwise pose a threat to the national security or public safety of the United States.”
When does this proclamation take effect?
  1. There are two “applicable effective dates” and times: 3:30PM (Eastern Daylight Savings Time) on September 24, 2017 and 12:01AM (EDT) on October 18, 2017.
  2. For those individuals who were impacted by the prior Executive Order 13780 (see Clark Lau LLC news alert dated 6/29/2017), this proclamation is now in effect.  The new travel restrictions listed above, do not take place until October 18, 2017.
Who are the individuals impacted?

Individuals from the seven countries meeting the conditions above and those who:
  1. are outside the United States on the applicable effective date; 
  2. do not have a valid visa on the applicable effective date; and
  3. do not qualify for a visa or other valid travel document.
Who are the individuals exempt from the travel restrictions?
  1. Any lawful permanent resident, i.e., green card holder, of the United States;
  2. Any foreign national who is admitted to or paroled into the United States on or after the applicable effective date (see below);
  3. Any foreign national who has a document other than a visa, such as a transportation letter, an appropriate boarding foil, or an advance parole document, valid on the applicable effective date or issued on any date thereafter, that permits him or her to travel to the United States and seek entry or admission;
  4. Any dual national of a country designated when the individual is traveling on a passport issued by a non-designated country;
  5. Any foreign national traveling on a diplomatic or diplomatic-type visa, North Atlantic Treaty Organization visa, C-2 visa for travel to the United Nations, or G-1, G-2, G-3, or G-4 visa; or
  6. Any foreign national who has been granted asylum by the United States; any refugee who has already been admitted to the United States; or any individual who has been granted withholding of removal, advance parole, or protection under the Convention Against Torture.
Under what circumstances can one seek a waiver of the travel restrictions?

Waivers are granted on a case-by-case basis and will consider circumstances where denial would cause the foreign national undue hardship; entry would not pose a threat to the national security or public safety of the United States; and entry would be in the national interest.

Other factors for waivers include the following: the foreign national has previously been admitted to the United States for a continuous period of work, study, or other long-term activity, is outside the United States on the applicable effective date, seeks to reenter the United States to resume that activity, and the denial of reentry would impair that activity; the foreign national has previously established significant contacts with the United States but is outside the United States on the applicable effective date for work, study, or other lawful activity; the foreign national seeks to enter the United States for significant business or professional obligations and the denial of entry would impair those obligations; the foreign national seeks to enter the United States to visit or reside with a close family member (e.g., a spouse, child, or parent) who is a United States citizen, lawful permanent resident, or alien lawfully admitted on a valid nonimmigrant visa, and the denial of entry would cause the foreign national undue hardship; the foreign national is an infant, a young child or adoptee, an individual needing urgent medical care, or someone whose entry is otherwise justified by the special circumstances of the case; the foreign national has been employed by, or on behalf of, the United States Government (or is an eligible dependent of such an employee), and the foreign national can document that he or she has provided faithful and valuable service to the United States Government; the foreign national is traveling for purposes related to an international organization designated under the International Organizations Immunities Act (“IOIA”), 22 U.S.C. 288 et seq., traveling for purposes of conducting meetings or business with the United States Government, or traveling to conduct business on behalf of an international organization not designated under the IOIA; the foreign national is a Canadian permanent resident who applies for a visa at a location within Canada; the foreign national is traveling as a United States Government-sponsored exchange visitor; or the foreign national is traveling to the United States, at the request of a United States Government department or agency, for legitimate law enforcement, foreign policy, or national security purposes.

Will these restrictions change?

The proclamation charges the Departments of State and Homeland Security to conduct ongoing assessments and to develop further protocols and procedures.  They are to report back within 180 days, but they are also allowed to lift any restrictions if they are satisfied with the cooperation, information sharing, and protocols of certain countries.

What about those immigrant and nonimmigrant visas that have already been issued?

They will not be revoked.  Additionally, the proclamation indicates that “any individual whose visa was marked revoked or marked canceled as a result of Executive Order 13769 of January 27, 2017 (Protecting the Nation from Foreign Terrorist Entry into the United States), shall be entitled to a travel document confirming that the individual is permitted to travel to the United States and seek entry under the terms and conditions of the visa marked revoked or marked canceled.  Any prior cancellation or revocation of a visa that was solely pursuant to Executive Order 13769 shall not be the basis of inadmissibility for any future determination about entry or admissibility.”

What about an individual who has been granted asylum, who has been admitted as a refugee, or granted withholding of removal or protection under the Convention Against Torture?

The proclamation does not apply to an individual who has been granted asylum by the United States, to a refugee who has already been admitted to the United States, or to an individual granted withholding of removal or protection under the Convention Against Torture.  

The above information has been provided for educational purposes only.  Please stay tuned as more details and updates become available.  Please also contact your Clark Lau LLC attorney to determine how your particular circumstances may be impacted.

09/06/2017 - Responding to the Rescission of Deferred Action for Childhood Arrivals (“DACA”)

As of yesterday, the White House announced that it would be rescinding the DACA program.  We are sure that you have come across a lot of information in the news and on the internet.  Let us try to answer some of the more common questions raised.
What were the previous guidelines for granting DACA?
DACA was a program instituted by President Obama via Executive Order in June 2012.  Individuals who met the following criteria were eligible for DACA, which essentially meant that, while the government had the legal basis for deporting individuals who had no valid permission to remain in the United States, the government would not do so for the time being, i.e., they would “defer the action.”  In the meantime, DACA individuals would be eligible to apply for employment authorization and travel permission.
Criteria included the following:
  • Were under the age of 31 as of June 15, 2012;
  • Came to the United States before reaching 16th birthday;
  • Continuously resided in the United States since June 15, 2007, up to the present time;
  • Were physically present in the United States on June 15, 2012, and at the time of applying for DACA with USCIS;
  • Had no lawful status on June 15, 2012;
  • Are currently in school, have graduated, or obtained a certificate of completion from high school, have obtained a General Educational Development (“GED”) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
  • Have not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.
What happens to those who have DACA benefits?
Those who have valid DACA benefits, such as employment authorization and travel permission can continue to keep these benefits and use them until the expiration dates.  If the actual documentation is lost, individuals can apply for new ones, but only with the same validity dates. USCIS has cautioned however that those with travel permission will be subject to the discretion of the officers at the border to determine the admissibility of the individuals when they return.  That is, it is impossible that the travel permission will not be honored.
Clark Lau LLC advises that you check with your attorneys before making any travel plans.
Can anyone still file for or seek an extension of such benefits?
Applications for initial DACA benefits, including employment authorization documents, received by USCIS by yesterday September 5, 2017 will be adjudicated on a case-by-case basis.  Pending applications for travel permission however will not be processed; any fees filed will be refunded.
Pending applications for renewal of DACA benefits received as of September 5, 2017 and applications for renewals filed by October 5, 2017 where individuals have benefits expiring between September 5, 2017 and March 5, 2018 will be adjudicated on a case-by-case basis.
What happens next?
  • Validity of DACA Benefits?  Please note that DACA is not a grant of legal immigration status for individuals; it is only a deferral of the government’s action against them.  The government continues to exercise its discretion as to whether or not to defer the removal of individuals.  Additionally, those with the limited employment authorization and travel permission benefits will no longer have these benefits once the documents expire.
  • Congressional Action?  The White House has tasked Congress to take legislative action; we will monitor what Congress does.
  • Lawsuits?  Already, the Attorney Generals from a number of states have filed a lawsuit against the President to have the courts stop the rescission of DACA.
  • Credibility of Information?  There will be many questions raised by the sudden change in policy.  As a result, it is very important that you consult competent legal counsel regarding your circumstances and what should be done.  As with all information, please also check the validity of any information and the reputation of the source of the information you obtain.
Please note that the above information has been provided by Clark Lau LLC for educational purposes only.  Please consult your Clark Lau LLC attorney to determine how these changes may or may not impact your circumstances. 

08/31/2017 - End of Summer, End of J-1 Students?

As the summer season draws to a close, undoubtedly many of you may have taken family to various tourist attractions across the United States and undoubtedly you may have run across young people serving as theme park ride attendants, lifeguards, tour guides, and the like.  Alternatively, you may have sent your children off to summer camp, where many young camp counselors lead them in both active and educational opportunities that kept them occupied for days on end.  Many of these young people were here in the United States as cultural exchange students in the J-1 program.  According to some sources, this may be the last summer for them.
In compliance with President Trump’s Executive Order “Buy American and Hire American” the government has been called to reexamine a number of immigration programs which could impact jobs for Americans.  According to a Wall Street Journal article published over the weekend on August 27, 2017, this includes the possibility of terminating some forms of the J-1 program: summer work-travel program, au pair program, camp counselors, interns, and trainees.  The summer work-travel program brings many of the students stationed at resorts and theme parks across the country.  The au pair program brings individuals into private homes to care for young children while attending classes.  Camp counselors staff many of the summer camps across the country.  Additionally, interns and trainees, who are either enrolled in college or who just graduated, come to the U.S. for a few months to obtain specific training in their field of study before returning home to pursue other career options.  While the J-1 program has been created by statute, its different programs can be changed by Executive Order.  There is no official word from the White House yet, but stay tuned.
Clark Lau LLC provides the above for informational purposes only.  Please contact your Clark Lau attorney as to how this may impact your particular circumstances.  Please stay tuned for more updates as they arise.

08/29/2017 - In-Person Interviews for Employment-Based Cases

USCIS Expands In-Person Interview Requirement for Certain Green Card Applications
In seeking legal permanent residence, i.e., a green card, an individual who is in the United States usually submits a Form I-485, Application to Adjust or Register Status as a Permanent Resident.  One can file a Form I-485 based on marriage, employment, accomplishment, and investment.  Relatives of asylees/refugees who are in the United States may also file petitions (Form I-730) to join their asylee/refugee family members.  To date, in-person interviews have been limited to marriage-based cases.  For other types of cases, once the government has reviewed all of the necessary documents and has screened the individual via background and medical checks, permanent residency is granted.
USCIS announced today that as of October 1, 2017, they will start expanding the types of cases that will be subject to an in-person interview.  These will include employment-based cases and asylee/refugee cases.  This change is to comply with Executive Order 13780, entitled “Protecting the Nation From Foreign Terrorist Entry into the United States.”  USCIS has added that they will further expand in-person interviews to other immigration benefits.  Please stay tuned.
Clark Lau LLC has provided the above information for informational purposes only.  We will closely monitor how this will impact current pending and future applications.  If you have any questions, please do not hesitate to contact your Clark Lau LLC attorney.  Please stay tuned for the latest updates.


08/18/2017 - Vince Lau Speaking on Green Cards

Vince Lau serves as discussion leader at AILA PERM/H-2B Practice Conference in Seattle today and speaks on practice tips and strategies to get the prevailing wage determination correct and timely in connection with an employment-based green card process.