News

Trump’s Proclamation Regarding Chinese Students and Researchers – Who Is Impacted?

05.31.20

On Friday, May 29, 2020, President Trump issued a proclamation that would restrict entry of certain Chinese students and researchers seeking to enter the U.S. in F-1 or J-1 nonimmigrant status. His concern was that the People’s Republic of China’s (“PRC”) “acquisition of sensitive United States technologies and intellectual property to modernize its military is a threat to our Nation’s long-term economic vitality and the safety and security of the American people … The PRC authorities use some Chinese students, mostly post‑graduate students and post-doctorate researchers, to operate as non-traditional collectors of intellectual property. Thus, students or researchers from the PRC studying or researching beyond the undergraduate level who are or have been associated with the [People’s Liberation Army] are at high risk of being exploited or co-opted by the PRC authorities and provide particular cause for concern.”

As of 12:00 PM Eastern Daylight Savings Time on June 1, 2020, any PRC national seeking to enter the United States in F-1 and J-1 status “to study or conduct research in the United States, except for a student seeking to pursue undergraduate study, and who either receives funding from or who currently is employed by, studies at, or conducts research at or on behalf of, or has been employed by, studied at, or conducted research at or on behalf of, an entity in the PRC that implements or supports the PRC's ‘military-civil fusion strategy’” is prohibited from entering the United States. (Note that those entering the United States for undergraduate studies are not restricted.)

The term “military-civil fusion strategy” means actions by or at the behest of the PRC to acquire and divert foreign technologies, specifically critical and emerging technologies, to incorporate into and advance the PRC's military capabilities.

Exceptions to this Proclamation include the following:

  • any lawful permanent resident of the United States (“LPR” or green card holder);
  • any spouse of a U.S. citizen or LPR;
  • any member of the U.S. Armed Forces and anyone who is a spouse or child of a member of the U.S. Armed Forces;
  • anyone whose travel falls within the scope of section 11 of the United Nations Headquarters Agreement or who would otherwise be allowed entry into the United States pursuant to United States obligations under applicable international agreements;
  • anyone who is studying or conducting research in a field involving information that would not contribute to the PRC's military‑civil fusion strategy, as determined by the Secretary of State and the Secretary of Homeland Security, in consultation with the appropriate executive departments and agencies (agencies);
  • anyone whose entry would further important U.S. law enforcement objectives, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees, based on a recommendation of the Attorney General or his designee; or
  • anyone whose entry would be in the national interest, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees.

While no specific termination date has been provided, there is a 60-day review date to determine the effectiveness of the above and whether further action would be needed.

The above contains only highlights of the proclamation and has been provided for informational purposes only. Please contact your Clark Lau LLC attorney to determine whether the above applies to your circumstances.

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Travel Restrictions for those from Brazil

05.24.20

The current administration just added Brazil to the list of countries with travel restrictions. As of 11:59 PM on May 28, 2020, travelers who have been to Brazil within the last 14 days will also be prohibited from entering the U.S. Brazil joins the U.K., Ireland, the People’s Republic of China (excluding Hong Kong and Macau), Iran, and countries from the Schengen region (Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, and Switzerland) on this list.

Again, some of the exceptions to the travel restrictions include the following:

  • U.S. Citizens and Lawful Permanent Residents of the United States (green card holders);
  • Spouses of U.S. Citizens and Lawful Permanent Residents;
  • Parents/Legal Guardians of U.S. Citizens and Lawful Permanent Residents, so long as the U.S. Citizen or Legal Permanent Resident is unmarried and under the age of 21;
  • Sibling of U.S. Citizens and Lawful Permanent Residents, so long as both are under the age of 21;
  • Child, foster child, or ward of U.S. Citizens and Lawful Permanent Residents or prospective adoptee;
  • Members of the U.S. Armed Forces and spouses and children of members of the U.S. Armed Forces;
  • Individuals traveling at the invitation of the U.S. Government for a purpose related to containment or mitigation of the virus;
  • Certain individuals entering the U.S. for government business, law enforcement objectives, or in the national interest;
  • Individuals whose entry would not pose a significant risk of introducing, transmitting, or spreading the virus, as determined by the Secretary of Health and Human Services, through the CDC Director or his designee.

Clark Lau LLC is monitoring the above and related developments. The above is provided for educational purposes only and does not constitute legal advice. Please contact your Clark Lau LLC attorney to see whether the above impacts your circumstances.

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What Trump Really Meant

04.22.20

On Monday night, President Trump sent out a tweet indicating that he would “suspend” immigration. On Tuesday night during his regular briefing, he indicates that this would only apply to individuals seeking permanent residency into the United States. A lot of questions however still remained. Today, we actually get to see the Executive Order and here’s what he really meant.

When does this take effect?

11:59PM (Eastern Daylight Savings Time) on April, 23, 2020.

How long will this last?

60 days, but subject to review and possible renewal.

Who is affected?

Individuals seeking to enter the U.S. as immigrants (i.e., legal permanent residents, also referred to as “green card holders”) who meet the following:

  • Are outside of the U.S. as of April 23, 2020 AND
  • Do not have an immigrant visa in their passport issued by the U.S. Consulate or an official travel document such as a transportation letter, an appropriate boarding foil, or an advance parole document effective on April 23, 2020 or issued on any date thereafter.


Are there exceptions?

Yes.


Who are exempt?

The suspension of entry into the U.S. does not apply to the following categories of people:

(i) any person already a lawful permanent resident (also referred to as “green card holders”) of the United States;

(ii) any person seeking to enter the U.S. on an immigrant visa as a physician, nurse, or other healthcare professional; to perform medical research or other research intended to combat the spread of COVID-19; or to perform work essential to combating, recovering from, or otherwise alleviating the effects of the COVID-19 outbreak, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees; and any spouse and unmarried children under 21 years old of any such alien who are accompanying or following to join the alien;

(iii) any person applying for a visa to enter the U.S. pursuant to the EB-5 Immigrant Investor Program;

(iv) any person who is the spouse of a U.S. citizen;

(v) any person who is under 21 years old and is the child of a U.S. citizen, or who is a prospective adoptee seeking to enter the United States pursuant to the IR-4 or IH-4 visa classifications;

(vi) any person whose entry would further important U.S. law enforcement objectives, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees, based on a recommendation of the Attorney General or his designee;

(vii) any member of the U.S. Armed Forces and any spouse and children of a member of the U.S. Armed Forces;

(viii) any person seeking to enter the U.S. pursuant to a Special Immigrant Visa in the SI or SQ classification, subject to such conditions as the Secretary of State may impose, and any spouse and children of any such individual; or

(ix) any person whose entry would be in the national interest, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees.

The above has been provided for informational purposes only. Please consult your Clark Lau LLC attorney to see how the above may apply to your particular circumstances.

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What Trump's Order Does Not Do

04.21.20

On Monday, April 20, 2020 President Trump sent a tweet indicating that he would sign an Executive Order suspending immigration to the United States temporarily.


Just tonight, the President clarified that his Executive Order would only apply to those individuals seeking permanent residency (green cards) in the United States and the suspension would be for an initial 60 days. His Executive Order does not impact nonimmigrant visas such as H-1Bs, TNs, L-1s, and other visas that allow US employers to access foreign talent. It is also our understanding that the Executive Order does not apply to those seeking permanent residency already in the United States.


The above was provided for informational purposes only. Please stay tuned as we learn more and see the actual Executive Order.

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USCIS Publishes Results of H-1B Lottery for FY2021

04.01.20

USCIS announced on Friday, March 27, 2020 that they had completed the H-1B lottery for the upcoming fiscal year. Each year, 85,000 visa numbers are available for individuals who are not already in H-1B status and who have been offered specialty occupation positions by U.S. employers. (Certain employers such as colleges, universities, government research organizations, or non-profit research organizations are exempt from this lottery.) 20,000 of these numbers are allocated to those with at least a U.S. Master’s degree. (Please note that of the total 85,000, 5800 however are reserved for those who are applying under the H-1B1 program – specialty occupation workers of Chilean or Singaporean citizenship. In theory, when these numbers are not used, they are returned to the H-1B pool.) Over the weekend, employers and their attorneys were informed of the results.

USCIS released statistics today indicating that there were nearly 275,000 registrations with 46% of the registrants with at least a U.S. Master’s degree. For more details, check out the link:

https://www.uscis.gov/news/news-releases/fy-2021-h-1b-cap-petitions-may-be-filed-april-1

The above was provided for educational purposes only. Please contact Clark Lau LLC if you have any questions and how the above may apply to your specific circumstances.

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COVID-19 and WFH

03.21.20

Our world is full of acronyms and the two latest ones are COVID-19 (Corona Virus Disease 2019) and WFH (work from home). Needless to say, COVID-19 has disrupted our lives in all aspects and many have shifted either voluntarily or mandatorily to a WFH situation. In the immigration context, not only are there many more acronyms but additional considerations arise for employers as far as how to remain compliant with all the rules.

The first step of the H-1B (specialty occupation), H-1B1 (Singaporean/Chilean specialty occupation), and E-3 (Australian specialty occupation) nonimmigrant/short-term visa programs requires an employer to file an application with the U.S. Department of Labor (DOL). The specific application, the Labor Condition Application (LCA), contains four attestations, one of which is to notify other workers in the same occupation in the same area of intended employment of the filing of the nonimmigrant petition and another of which is the payment of a required wage.

With WFH, employers have been asking how they can properly comply with the notification process. DOL issued a Frequently Asked Questions (FAQ) on Friday, March 20, 2020 which reminds employers that they may use electronic means to comply with the requirements. DOL also took the opportunity to provide employers with extensions up to May 12, 2020 to respond to ongoing deadlines with their different programs if the original deadline fell between March 13, 2020 and May 12, 2020.

Given the fact that a lot of businesses cannot operate as usual, employers also have questions concerning layoffs, terminations, and payment of wages. The H-1B rules indicate that an employer must continue paying the employee regardless of whether there is work. No specific guidance has been provided just yet allowing for any special dispensation.

Further, if the employer terminates the employee before the end of the visa petition period, the rules require an employer to pay for reasonable return transportation costs. The employee’s status also ends, with a short grace-period of no more than the shorter of 60 days or the end of the visa petition period. If you find yourself in this situation, be sure to contact competent counsel to ensure compliance and to find answers to these and other related questions.

COVID-19 and WFH and many other related fact patterns are raising novel issues and challenges for employers. Stay tuned as we learn more.

Additional Resources:

From the Office of Foreign Labor Certification, U.S. Department of Labor:

https://www.foreignlaborcert.doleta.gov/pdf/DOL-OFLC_COVID-19_FAQs_Round%201_03.20.2020.pdf

From the Wage and Hour Division, U.S. Department of Labor:

https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/whdfs62I.pdf

The above has been provided for informational purposes only and does not constitute legal advice. Please contact your Clark Lau LLC attorney or competent immigration counsel for guidance specific to your situation.

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Clark Lau LLC and COVID-19. Doing Business, Not as Usual.

03.20.20

There’s no denying that COVID-19 has disrupted every aspect of our lives, from professional to personal. Our top priorities include the health and safety of our team members as well as delivering uninterrupted service to our clients. These unusual times require us to find new and innovative ways to do business.

Clark Lau LLC has team members working from home. Technology allows us to continue to conduct phone and video consultations with clients, to respond to inquiries concerning employer compliance during these unprecedented times, to report on late breaking changes to immigration practice and policies, and to continue to prepare and file immigration petitions and applications. (Due to the fact that immigration filings must still be done via paper, team members drop by the office on an as-needed-basis only.) We also continue to meet amongst ourselves via video conferences to share our collective knowledge, to trouble-shoot difficult and novel issues, and to ensure that we continue to work as a team. We believe that a firm built on mutual trust and cooperation serves our clients best, and we continue to foster that environment through regular one-on-one and all-team video conferences. (And even lunch hangouts ... online of course!)

While we all hope that the COVID-19 pandemic will end soon, we believe that the current times will only make us stronger and help us develop even more creative, more efficient, and more effective ways of serving you.

We wish you and your family good health throughout this period.

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UK and Ireland Join the List

03.14.20

The current administration just announced that, as of 11:59 PM Monday March 16, 2020, travelers who have been to the United Kingdom or Ireland within the last 14 days will also be prohibited from entering the U.S. The U.K. and Ireland join the list of countries that include the People’s Republic of China (excluding Hong Kong and Macau), Iran, and countries from the Schengen region (Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, and Switzerland) on this list.

We have also received reports that ESTA registrations are being revoked, without prejudice, for the time being to minimize attempts restricted travels may make to enter the U.S. These individuals should be able to register for ESTA once again after the restrictions are lifted.

Again, some of the exceptions to the travel restrictions include the following:

  • U.S. Citizens and Lawful Permanent Residents of the United States (green card holders);
  • Spouses of U.S. Citizens and Lawful Permanent Residents;
  • Parents/Legal Guardians of U.S. Citizens and Lawful Permanent Residents, so long as the U.S. Citizen or Legal Permanent Resident is unmarried and under the age of 21;
  • Sibling of U.S. Citizens and Lawful Permanent Residents, so long as both are under the age of 21;
  • Child, foster child, or ward of U.S. Citizens and Lawful Permanent Residents or prospective adoptee;
  • Members of the U.S. Armed Forces and spouses and children of members of the U.S. Armed Forces;
  • Individuals traveling at the invitation of the U.S. Government for a purpose related to containment or mitigation of the virus;
  • Certain individuals entering the U.S. for government business, law enforcement objectives, or in the national interest;
  • Individuals whose entry would not pose a significant risk of introducing, transmitting, or spreading the virus, as determined by the Secretary of Health and Human Services, through the CDC Director or his designee.

Clark Lau LLC is monitoring the above and related developments. The above is provided for educational purposes only and does not constitute legal advice. Please contact your Clark Lau LLC attorney to see whether the above impacts your circumstances.

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Travel Restrictions for those from Europe

03.12.20

President Trump issued another Presidential Proclamation as of March 11, 2020 restricting the entry of certain individuals who are attempting to enter the United States and who have been in any of the 26 Schengen countries within 14 days of their attempt to enter. This proclamation adds to the prior two proclamations that restrict entry for those who have been in the People’s Republic of China (excluding Hong Kong and Macau) and Iran. Notably, the UK and Ireland are not included.

Certain exceptions to the travel restrictions include the following:

  • U.S. Citizens and Lawful Permanent Residents of the United States (green card holders);
  • Spouses of U.S. Citizens and Lawful Permanent Residents;
  • Parents/Legal Guardians of U.S. Citizens and Lawful Permanent Residents, so long as the U.S. Citizen or Legal Permanent Resident is unmarried and under the age of 21;
  • Sibling of U.S. Citizens and Lawful Permanent Residents, so long as both are under the age of 21;
  • Child, foster child, or ward of U.S. Citizens and Lawful Permanent Residents or prospective adoptee;
  • Members of the U.S. Armed Forces and spouses and children of members of the U.S. Armed Forces;
  • Individuals traveling at the invitation of the U.S. Government for a purpose related to containment or mitigation of the virus;
  • Certain individuals entering the U.S. for government business, law enforcement objectives, or in the national interest;
  • Individuals whose entry would not pose a significant risk of introducing, transmitting, or spreading the virus, as determined by the Secretary of Health and Human Services, through the CDC Director or his designee.

Clark Lau LLC is monitoring the above and related developments and how this will impact those seeking admission to the U.S. and those who are here for a limited duration, such as those in ESTA and tourist visas.

The above is provided for educational purposes only and does not constitute legal advice. Please contact your Clark Lau LLC attorney to see whether the above impacts your circumstances.

See the link below for the full text:

https://www.whitehouse.gov/presidential-actions/proclamation-suspension-entry-immigrants-nonimmigrants-certain-additional-persons-pose-risk-transmitting-2019-novel-coronavirus/

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H-1B Lottery Timeline 2020

02.17.20

While there are 65,000 H-1B numbers available each year, and an additional 20,000 for those with at least a U.S. Master’s degree, there has not been enough to meet market demands. As a result, employers have had to plan ahead. In fact, in the past several years, employers have had to prepare complete petitions, along with supporting documentation, and file them as far as six months in advance to have a chance at a lottery system that determines whether their petitions would even be reviewed. The chance of success has hovered around 30-40%. (This refers to the success rate of being chosen for processing, not the actual success rate of the petition.)

This year, the United States Citizenship and Immigration Services (USCIS) announced on December 6, 2019 that they will be employing a new electronic registration system which will require employers first to register their cases between March 1, 2020 and March 20, 2020 noon EST. (This avoids having to prepare a complete filing prior to knowing whether the petition would even be reviewed by an officer.) Once the registration period is closed, USCIS will conduct a lottery to determine which cases will have the opportunity to proceed with filing an actual petition. This is the first time that USCIS is employing this system and they have been releasing information about the process piecemeal over the course of the last few weeks. To date, the actual relevant components of the system are not fully live yet. Below are some key dates for your reference.

February 24: Petitioners will be able to create H-1B registrant accounts. We will provide you with more detailed instructions regarding the creation of such accounts. Please note that each employer (as designated by separate Federal Employer Identification Numbers) must create a separate account.

In the meantime, attorneys will also be able to create separate accounts.

March 1: H-1B registration period opens at noon EST.

During the registration period, attorneys will be able to help prepare draft registrations of all of your employees. Once the drafts are complete, attorneys will be able to share these with you via your H-1B registrant account. You will have the opportunity to review and “sign off” on the registration list before the attorneys submit the official registration. Please note that without your “sign off” attorneys will not be able to register your cases. Therefore, please ensure that you have email access during this period.

March 20: H-1B registration period closes at noon EST. Please note that there is no difference whether one registers on the first day or last day of the registration period. Our firm has elected to wait a few days before registering cases to avoid any technical problems that may arise during the first few days.

March 31: Date by which USCIS intends to notify selected registrants.

April 1: The earliest date that FY 2021 H-1B cap-subject petitions may be filed. Employers will have a 90-day period to file a complete H-1B petition.

Stay tuned for more updates.

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