News

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.

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.

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.

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.

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.

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: http://www.bostonglobe.com/business/2017/11/27/indian-giant-infosys-plans-add-office-and-jobs-providence/zn8pT5PkdM3EDLnR7YE8eO/story.html?event=event25

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 (www.clarklau.com). Please feel free to contact a knowledgeable immigration attorney as to how the above may apply to one's particular circumstances.

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 www.clarklau.com

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: http://www.babcne.org/

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: https://www.clarklau.com/index.cfm/AboutUs/WhyChooseUs