July 30, 2021

USCIS Selects Additional  FY 2022 H-1B Cap Registrations: What Employers and Foreign Nationals Need to Know

USCIS conducted a second lottery for the fiscal year (FY) 2022 H-1B cap on July 28, 2021 and has notified employers that additional registrations have been selected.  Employers with selected registrations from the second lottery may file an H-1B petition for the beneficiary of a selected registration during the 90-day period running from  August 2, 2021 to November 3,  2021.

USCIS conducted its initial  H-1B cap lottery  in March 2021, and selected employers had a 90-day window during which to file H-1B cap petitions for selected beneficiaries.  The second lottery was conducted because the number of H-1B petitions ultimately submitted and  approved during the initial H-1B filing period (April 1, 2021 to June 30, 2021) were not sufficient to meet the annual statutory H-1B cap.   H-1B cap registrations that were not selected in the initial lottery remained in a reserve and the July lottery was conducted from this reserve. USCIS has not announced how many additional registrations were selected from the reserve.

What This Means for Employers and Foreign Nationals:

  • Employers with selected registrations will see updates in their myUSCIS accounts, including a selection notice and details of when and where to file the H-1B cap petition.
  • Only employers with selected registrations may file H-1B cap-subject petitions for FY 2022 and only for the beneficiary named in the applicable selected registration notice; no substitution of beneficiaries is permitted.
  • An H-1B cap-subject petition for a selected registration must be properly filed at the designated  service center and within the filing period(August 2, 2021 to November 3, 2021)  specified on the relevant registration selection notice.
  • Online filing is not available for H-1B petitions. Petitioners must file by paper and must include a printed copy of the applicable registration selection notice with the FY 2022 H-1B cap-subject petition.
  • Registration selection only indicates that employers are eligible to file H-1B cap-subject petitions; it does not signify that the petition will be approved.
  • Petitioners filing H-1B cap-subject petitions, including those eligible for the advanced degree exemption, must submit evidence and establish eligibility for approval based on existing statutory and regulatory requirements.

For more information, please contact your designated Gibney representative or email info@gibney.com.

July 26, 2021

Understanding Intracompany Transferee Visas and the Associated Green Card Sponsorship Process

Quick Take from Hasta La Visa, Baby Podcast Episode 1: Down The Hall and to the Left: Intracompany Transferees and Home Alone 2

In Episode 1 we discuss the characteristics and differences of L-1A and L-1B Intracompany Transferee visas and the Employment Based First Preference multinational manager green card sponsorship process.

In this quick take article, we break down what employers need to know about these options for transferring and retaining employees from affiliated companies into the U.S.

L-1A Nonimmigrant Visa for Executive or Manager

The L-1A visa status provides a pathway for a multinational corporation to transfer an executive or manager from one of its foreign offices to one of its affiliated U.S. offices. Foreign companies that do not yet have an affiliated U.S. office can also transfer an executive or manager to the U.S. to establish a new office.

L-1B Nonimmigrant Visa for Employees with Specialized Knowledge

The L-1B visa status allows a multinational corporation to transfer a professional employee with “specialized knowledge” from one of its foreign offices to one of its affiliated U.S. offices. Specialized knowledge refers to either special knowledge possessed by an individual of the company’s product, service, research, equipment, techniques, management, or other interests and its application to international markets, or an advanced level of knowledge or expertise in the organization’s processes and procedures.

How can employers apply for an L-1A or L-1B nonimmigrant visa on behalf of an employee?

Employers can file a Form I-129, Petition for a Nonimmigrant Worker on behalf of their employee with the U.S. Citizenship and Immigration Services. They must have a qualifying relationship with a foreign company, and either be actively doing business or planning to do business as an employer in the U.S. and at least one other country for the duration of the employee’s stay in the U.S.

How do employees qualify for an L-1A or L-1B nonimmigrant visa?

  • Employees must have been working for a qualifying organization abroad for at least one continuous year within the three years immediately before admission to the U.S.
  • For the L-1A Intracompany Transferee Executive or Manager visa classification, the employee must be entering the U.S. to provide professional services in an executive or managerial capacity for a branch of the same employer or one of its qualifying organizations in the U.S.
  • For the L-1B Intracompany Specialized Knowledge visa classification, they must have special knowledge of the company product, service, research, equipment, techniques, management, or other interests or expertise in their processes and procedures.

Employment-Based First Preference Multinational Executive or Manager Green Card Sponsorship Process

This is a fast track Green Card sponsorship process, typically applicable to those who are already in L-1A visa status. The sponsored employee must have worked for an affiliate of the sponsoring employer abroad in an executive or managerial capacity and then be working in the U.S. for the affiliate in a similar executive or managerial capacity. Employers must complete and file a Form I-140 Immigration petition on behalf of the sponsored employee with U.S. Citizenship and Immigration Services.

About Hasta La Visa, Baby: This podcast presents real world U.S. immigration law concepts by doing a deep-dive into the relationship between U.S. immigration law and fictitious characters in popular television and film.

July 14, 2021

Understanding Intracompany Transferee Visas and the Associated Green Card Sponsorship Process  

In Episode 1 of the Hasta La Visa, Baby Podcast, we discuss the characteristics and differences of L-1A and L-1B Intracompany Transferee visas. We also highlight the Employment Based First Preference multinational manager green card sponsorship process. In this quick take article, we break down what employers need to know about these options for transferring and retaining employees from affiliated companies into the U.S.

L-1A Nonimmigrant Visa for Executive or Manager

The L-1A visa status provides a pathway for a multinational corporation to transfer an executive or manager from one of its foreign offices to one of its affiliated U.S. offices. Foreign companies that do not yet have an affiliated U.S. office can also transfer an executive or manager to the U.S. to establish a new office.

L-1B Nonimmigrant Visa for Employees with Specialized Knowledge

The L-1B visa status allows a multinational corporation to transfer a professional employee with “specialized knowledge” from one of its foreign offices to one of its affiliated U.S. offices. Specialized knowledge refers to either special knowledge possessed by an individual of the company’s product, service, research, equipment, techniques, management, or other interests and its application to international markets, or an advanced level of knowledge or expertise in the organization’s processes and procedures.

How can employers can apply for an L-1A or L-1B nonimmigrant visa on behalf of an employee?

Employers can file a Form I-129, Petition for a Nonimmigrant Worker on behalf of their employee with the U.S. Citizenship and Immigration Services. They must have a qualifying relationship with a foreign company, and either be actively doing business or planning to do business as an employer in the U.S. and at least one other country for the duration of the employee’s stay in the U.S.

How do employees qualify for an L-1A or L-1B nonimmigrant visa?

  • Employees must have been working for a qualifying organization abroad for at least one continuous year within the three years immediately before admission to the U.S.
  • For the L-1A Intracompany Transferee Executive or Manager visa classification, the employee must be entering the U.S. to provide professional services in an executive or managerial capacity for a branch of the same employer or one of its qualifying organizations in the U.S. .
  • For the L-1B Intracompany Specialized Knowledge visa classification, they must have special knowledge of the company product, service, research, equipment, techniques, management, or other interests or expertise in their processes and procedures.

Employment Based First Preference Multinational Executive or Manager Green Card Sponsorship Process

This is a fast track Green Card sponsorship process, typically applicable to those who are already in L-1A visa status. The sponsored employee must have worked for an affiliate of the sponsoring employer abroad in an executive or managerial capacity and then be working in the U.S. for the affiliate in a similar executive or managerial capacity. Employers must complete and file a Form I-140 Immigration petition on behalf of the sponsored employee with U.S. Citizenship and Immigration Services.

For further information on these visa principles, please be sure to download and listen to:

Hasta La Visa, Baby Episode 1: Down the Hall and to the Left: Intracompany Transferees and Home Alone 2
In this episode, Shai and Roderick discuss the 1992 holiday blockbuster, Home Alone 2: Lost in New York. In this episode, Shai and Roderick explore the character known as Mr. Hector, played by Tim Curry. Mr. Hector is a UK national, the concierge at the Plaza hotel in New York and one of the main antagonists of Kevin McCallister, played by Macaulay Culkin. Shai and Roderick will attempt to solve what Mr. Hector’s visa status may have been and will provide insight into what type of immigration advice they would give Mr. Hector if he visited them for a consultation.

The visa categories they will explore in this episode include L-1A, L-1B, and the I-140 multinational manager process. Plus, what happens when a hotel concierge gets a little too personal and a few takeaways from one of the “greatest” cameos of all time.

 

 

 

July 7, 2021

State Department Extends Validity of National Interest Exceptions

The U.S. Department of State has extended the validity of National Interest Exceptions (NIEs) for travelers from China, Iran, India, Brazil, South Africa, the Schengen Area, Ireland and the United Kingdom whose admission to the U.S. is restricted by COVID-related regional travel bans.

Under the new policy, NIEs are now valid for multiple entries during the 12 month period following the date of approval. The policy applies retroactively to NIEs that were previously approved or granted in connection with a visa application. Previously NIEs were valid for one entry within 30 days of approval.

What does this mean for travelers?

Travelers who have been  granted an NIE may be admitted to the U.S. pursuant to the NIE for a period of up to 12 months from the date of approval provided that the travel to the U.S. is consistent with the purpose for which the NIE was originally granted.  If required for the class of admission, the traveler must also have a valid visa along with the NIE.   Travelers without a valid visa will be required to apply for a new visa and a new NIE.

NIE qualifying criteria includes:

  • Providing vital support or executive direction for significant economic activity in the U.S.;
  • Journalism;
  • Travel due to extraordinary humanitarian circumstances; or
  • Travel to support national security or public health.

NIEs have become increasingly difficult to obtain as the U.S. consulates abroad have struggled to meet the demand for consular services due to COVID-related closures, staffing shortages, restrictive qualifying criteria, and backlogged visa and NIE applications. Extending the validity of NIEs, including that of previously issued NIEs, should help to relieve some of the demand for consular services while facilitating critical travel to the U.S.

Gibney is closely monitoring the impact of the new policy and will provide updates as they become available.  For additional information, please contact your designated Gibney representative or email info@gibney.com.

 

 

 

June 16, 2021

USCIS Issues Policies to Improve Immigration Services: What Employers and Foreign Nationals Need to Know

U.S. Citizenship and Immigration Services (USCIS) announced three new policy updates to the USCIS Policy Manual aimed at improving access to immigration benefits. The updated policies:

  • Clarify the criteria for expedited processing of benefit applications;
  • Address guidance regarding Request for Evidence (RFE) and Notice of Intent to Deny (NOID) issuance; and,
  • Increase the validity period for initial and renewal employment authorization documents (EADs) for certain noncitizens with pending adjustment of status applications.

These policy initiatives were taken pursuant to  Executive Order (E.O.) 14012, “Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans.” Issued by President Biden on February 2, 2021, the order directs federal agencies to identify strategies to eliminate barriers that impede access to immigration benefits.

What Employers and Foreign Nationals Need to Know

Expedited Processing

Applicants and petitioners may request that USCIS expedite the adjudication of immigration benefit requests even if premium processing is otherwise available for the application. USCIS reviews these requests on a case-by-case basis. The updated expedite policy clarifies the criteria and circumstances under which USCIS will generally consider expedite requests. It restores the ability of nonprofit organizations to request expedited processing if the beneficiary will further U.S. cultural and social interests. It also clarifies that expedited processing for noncitizens pending removal or in removal proceedings is coordinated between USCIS and U.S. Immigration and Customs Enforcement (ICE).

Requests for Evidence and Notices of Intent to Deny

The updated RFE and NOID guidance rescinds a Trump-era policy that permitted officers to deny certain benefit requests outright instead of first issuing an RFE or NOID.  The updated guidance instructs officers to issue a RFE or NOID when additional evidence could potentially demonstrate eligibility for an immigration benefit, rather than simply denying the benefit request. This practice helps to ensure that those requesting benefits  have an opportunity to correct simple mistakes or unintentional omissions. This was USCIS policy from 2013 until 2018, when it was rescinded by the Trump Administration. With this action, the 2013 guidance is restored.

Employment Authorization Documents

 

Updated policy guidance increases the validity period for initial and renewal Employment Authorization Document (EADs) from one year to two years for certain adjustment of status applicants. The goal is to significantly lessen the number of employment authorization applications filed with USCIS, allowing USCIS to shift limited resources to other priority areas.

Gibney welcomes these developments and will closely monitor their impact. We will continue to report on additional initiatives to improve and modernize the U.S. immigration system.  For additional information, please contact your designated Gibney representative or email info@gibney.com.

June 3, 2021

DHS Extends Form I-9 Flexibility for Remote Employees to August 31, 2021

The U.S. Department of Homeland Security (DHS) has extended a policy providing employers with flexibility in meeting certain Form I-9 Employment Verification requirements.  The policy, initially implemented in March 2020, relaxes the requirement to review Form I-9 identity and employment verification documents for remote workers “in-person” during the pandemic. The guidance, which was set to expire May 31, 2021, has now  been extended to August 31, 2021.

Who does the Policy Affect?

Form I-9 in-person inspection rules were relaxed for any U.S. employer who converted to a total remote working schedule for all employees due to COVID-19. The policy states that “if there are employees physically present at a work location, no exceptions are being implemented at this time for in-person verification of identity and employment eligibility documentation for Form I-9.“ However, according to the policy, DHS will consider exceptions if newly-hired employees are subject to COVID-19 quarantine or lockdown protocols.

The current extension includes guidance for employees hired on or after June 1, 2021 working exclusively in a remote setting due to COVID-19-related precautions. Those employees are temporarily exempt from the physical inspection requirements associated with the Employment Eligibility Verification (Form I-9) until they undertake non-remote employment on a regular, consistent, or predictable basis, or the extension of the flexibilities related to such requirements is terminated, whichever is earlier.

How Should Qualifying Employers Proceed?

Remote employees must complete Section 1 of Form I-9 and choose identity and work-authorization documents from List A/B/C. Within three (3) business days of hire, remote employers must inspect the employee’s documents over video link, email, fax, etc., and complete Section 2 of Form I-9. Employers must retain copies of any documents inspected remotely. Employers should enter “COVID-19” as the reason for the physical inspection delay in the Section 2 Additional Information field.

After normal operations resume and employees return to the office, employers will have three (3) business days to physically examine the same documents previously reviewed electronically/remotely. Once the documents have been physically inspected, the employer should add “documents physically examined” with the date of inspection to the Section 2 Additional Information field on the Form I-9, or to Section 3, as appropriate.

Qualifying employers who use this option must be prepared to provide DHS with written documentation of their remote onboarding and telework policy. DHS reminds employers that, as a general matter for remote workers (even before the pandemic), a company may designate anyone to serve as an “authorized representative” of the company for completion of Section 2, including the in-person inspection of documents. Rather than relying on the temporary pandemic policy for a remote workforce, an employer may consider utilizing an authorized representative to inspect the employee’s documents in-person with three (3) days of hire, in accordance with pre-existing rules permitting the use of authorized representatives to perform this function. The employer is liable for any violations in connection with the form or the verification process, including any violations in connection with the form or the verification process.

Looking Ahead

Employers should anticipate that DHS will terminate the  flexibility to verify Form I-9 documents virtually  as pandemic restrictions are lifted.  Because employers who have availed themselves of the relaxed rules will have only three (3) business days to physically examine documents when normal operations resume,  employers may wish to designate agents to physically inspect documents now for those hired and verified remotely since March 2020.  Keep in mind, though, as noted above, that employers are liable for any violations or errors made by the designated authorized representative during the verification process.

Gibney is closely monitoring changes to employment eligibility verification policy and procedures and will provide updates as they become available. If you have questions regarding this alert or the Form I-9 process generally, please contact your Gibney representative or email info@gibney.com.

May 14, 2021

Biden Administration Revives International Entrepreneur Immigration Program

The Department of Homeland Security (DHS)  announced it is restoring the Obama-era International Entrepreneur Rule (IER), allowing certain foreign national entrepreneurs the opportunity to launch qualifying start-up businesses in the U.S.  The IER was published in January 2017 with an intended effective date of July 2017, but the Trump Administration published a rule delaying its implementation. Because the Trump Administration never issued a final rule removing the IER, the Biden Administration was able to withdraw the proposed removal rule  and continue the program consistent with its  initiative to remove barriers to lawful immigration.

How it Works and Who Qualifies

The IER  permits DHS to use its discretionary  parole authority to grant a limited period of authorized stay  to foreign nationals  pursuing qualifying business opportunities in the U.S. if they can show that their stay in the U.S. will provide a significant public benefit through their business venture.

Individuals applying for International  Entrepreneur parole must demonstrate that they:

  • Possess  substantial ownership interest in a start-up entity created within the last five years that has substantial potential for rapid growth and job creation.
  • Have a central and active role in the start-up entity.

Will provide a significant public benefit to the U.S. based on their role as an entrepreneur by showing:

    • the start-up entity has received a significant investment of capital from qualified U.S. investors;
    • the start-up entity has received significant award or grants for economic development, research and development, or job creation from federal, state or legal government entities; OR
    • they partially meet either or both of the above two requirements and provide additional compelling evidence of the entity’s potential for growth and job creation
  • Otherwise merit a favorable exercise of discretion.

Qualifying entrepreneurs  may be  granted parole for an initial period of 30 months and may only work for their start-up businesses. An additional parole period of 30 months may be granted if certain business metrics are met.  One entity may support up to three (3) International Entrepreneur parolees. Spouses and children of entrepreneur parolees are also eligible for parole and spouses may apply for work authorization once admitted to the U.S.

Important Considerations

Revival of the International Entrepreneur Parole program helps to fill a gap in U.S. immigration law with respect to attracting and welcoming foreign entrepreneurs. However, it is important to understand how status as a parolee differs from lawful nonimmigrant status and the implications for long-term immigration planning. For additional information about International Entrepreneur Parole and other visa potential visa options and considerations related to starting a business in the U.S., please contact your designated Gibney representative or email info@gibney.com.

May 14, 2021

DOL Prevailing Wage Rule Postponed

The Department of Labor (DOL)  has further postponed the effective date of its prevailing wage final rule to November 14, 2022.   The final rule significantly increases prevailing wage requirements  for permanent resident and H-1B, H-1B1 and E-3 nonimmigrant visa sponsorship.  Under the revised timeline, transition to the new, higher wage tiers will commence January 1, 2023.

Background

The prevailing wage final  rule was published by the Trump Administration in January  2021, and was set to take effect on March 15, 2021.  Upon taking office, the Biden Administration  postponed the effective date of the rule for 60 days, until May 14, 2021, and solicited additional  public comments concerning the rule and the wage computation methodology.  With publication of the May 13, 2021 DOL notice, the effective date of the rule is further postponed to November 2022.

The rule revises the calculus to determine prevailing wage levels  for labor condition applications required for the H-1B, H-1B1 and E-3 temporary visa programs, and prevailing wage determinations required for the PERM labor certification program. The rule would  significantly increase threshold wage requirements for employers across the four tiers of prevailing wages utilized by the Department of Labor in connection with these visa programs.

Looking Ahead

Employers can welcome the 18-month reprieve on implementation of restructured wage levels for labor condition applications and prevailing wage determinations.  In the interim, the Department of Labor will consider the rule’s legal and policy impact and will gather additional wage data.  Notably, an earlier interim final version of the  rule implemented  by the Trump Administration in October 2020 was  invalidated by a federal court as unlawful on procedural grounds. That rule had higher wage tiers than the current version.  Nonetheless, the current version of the rule is also the subject of legal challenges.  It is possible that the rule will be modified further before taking effect.

For additional information, please contact your designated Gibney representative or email info@gibney.com.

 

 

 

 

May 11, 2021

DHS Will Restart the International Entrepreneur Parole Program to Provide Opportunities for Foreign Entrepreneurs

U.S. Citizenship and Immigration Services (USCIS) announced that the Department of Homeland Security (DHS) is withdrawing a 2018 notice to remove the International Entrepreneur (IE) parole program from DHS regulations. The IE parole program provides a viable means for foreign entrepreneurs to establish and develop their start-up entities in the US. Under the International Entrepreneur Rule (IER), DHS can grant a period of authorized stay, on a case-by-case basis, to foreign entrepreneurs who demonstrate that their stay in the US would provide a significant public benefit through their business venture.

This decision to retain the program is consistent with President Biden’s Executive Order 14012: “Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans.” The executive order requires the Secretary of Homeland Security to “identify any agency actions that fail to promote access to the legal immigration system.”

What this Means Foreign Entrepreneurs

  • Under the IE program, parole may be granted to up to three entrepreneurs per start-up entity, as well as their spouses and children.
  • Entrepreneurs granted parole are eligible to work only for their start-up business.
  • Spouses may apply for employment authorization in the US, but their children are not eligible for such authorization based on this parole.

Who is Eligible for the Program?

Entrepreneurs applying for parole under this rule must demonstrate that they:

  • Possess a significant ownership interest in a start-up entity created in the US within the past five years that has substantial potential for rapid growth and job creation.
  • Have a central and active role in the entity and are well-positioned to assist with the growth and success of the business.
  • Will provide a significant public benefit to the US based on their role as an entrepreneur of the start-up entity by showing that that start-up entity has received:
    • A significant capital investment from qualified U.S. investors with established records of successful investments;
    • Significant awards or grants for economic development, research and development, or job creation (or other types of grants or awards typically given to start-up entities) from federal, state, or local government entities that regularly provide such awards or grants to start-up entities; or
    • They partially meet either or both of the prior two requirements and with reliable evidence of the potential for rapid growth and job creation.
  • Otherwise merit a favorable exercise of discretion

Additional information on eligibility and application requirements is available on the International Entrepreneur Parole page.

May 4, 2021

USCIS to Suspend Biometric Requirements for Certain E, H-4, and L-2 Applicants

U.S. Citizenship and Immigration Services (USCIS) intends to suspend collecting biometrics for individuals requesting E, H-4 and L-2 status on Form I-539, Application to Extend/Change Nonimmigrant Status. The policy, projected to take effect May 17, 2021, is expected to reduce adjudication backlogs and improve processing times for these applications, as well as for associated applications for Employment Authorization Documents  (EADs) filed on Form I-765.

Background

In March 2019, USICS implemented a nationwide requirement for H-4 and L-2  applicants to attend an appointment at a local Application Support Center (ASC) to submit biometrics, including fingerprints, photographs and digital signatures.  This requirement significantly delayed adjudication of these applications and associated applications for work authorization filed on Form I-765.  The problem was compounded by closure of ASC locations due to the COVID-19 pandemic.  Though ASCs have reopened,  many operate at reduced levels due to ongoing health and safety protocols, and are dealing with unprecedented backlogs. USCIS reports that 123,000 H-4 and L-2 applications are pending adjudication, with an additional  57,500 applications for EADS backlogged.

Agency Action

In response to lawsuits stemming from the delays, and recognition of the significant  backlogs and ensuing hardships created, USCIS is deploying additional officers to adjudicate  I-539 applications for H-4 and L-2 status and implementing the policy to suspend temporarily  biometrics requirements  for individuals requesting an extension of stay in, of change of status to, H-4, L-2, E-1, E-2 and E-3 nonimmigrant status.

The new policy is expected to begin May 17, 2021, and remain in effect for two years, to May 17, 2023, subject to extension or revocation by the USCIS Director.

The policy will apply only to I-539 Applications for H-4, L-2, E-1, E-2, and E-3 status pending as of the effective date of the policy that have not yet been issued  a biometric appointment notice, and new applications received by USCIS after the effective date of the policy.  If an applicant has received a biometrics appointment for a pending application, failure to attend the biometrics appointment may result in denial of the application. USCIS will also retain discretion to require biometrics for any case for identity verification and other screening purposes.

For additional information, please contact your designated Gibney representative or email info@gibney.com.