Court Vacates Rule Favoring High-Wage Earners in H-1B Cap Selection Process

A federal district court has struck down a legacy Trump administration rule that would have replaced the annual H-1B cap lottery with a scheme to favor high-wage earners.

If implemented, the rule would have adversely impacted employers wishing to sponsor  H-1B petitions for entry level professionals positions with corresponding entry level wages, including petitions for recent foreign student graduates from U.S. universities.   The rule would have also harmed non-profit institutions, including many hospitals, and small businesses unable to compete with larger enterprises offering higher wages.  Inevitably foreign students graduates, including scientists, heath care professionals, IT professionals and others, would be required to depart the U.S. after graduation  with this key immigration option eliminated.

Notably, the Biden administration did not abandon the rule when it took office, but only delayed its implementation to December 31, 2021.  The U.S. Chamber of Commerce led a group of plaintiffs that included universities other organizations challenging the legality of the rule, and this week, the court agreed with plaintiffs that Acting Secretary of the Department of Homeland Security (DHS) Chad Wolf was not lawfully appointed at the time the rule was promulgated, and thus had no authority to issue the rule.  The court did not address whether the Immigration and Nationality Act allows DHS to prioritize the selection of H-1B visas based on wages or another factor, one of the arguments alleged by the plaintiffs.

Looking Ahead

The rule is not inconsistent with the  Biden administration’s stated aim to incentive higher wages for nonimmigrant and high-skilled workers. The administration does have the option of promulgating another rule – this time with a lawfully appointed Secretary of Homeland Security – but even so, such a rule is unlikely to be implemented before the  fiscal year 2023 H-1B cap registration period which commences in March 2022.  A similar rule favoring high wage earners would also face the same substantive legal challenges, particularly that such a proposal is inconsistent with, and flatly contradicted by, the Immigration and Nationality Act.

The case is U.S. Chamber of Commerce v. Department of Homeland Security, Case No. 20-cv-07331 (N.D. Ca., March 19, 2021).

 

Hasta La Visa, Baby Episode 9: Pivot! – Treaty Trader Visas with Paolo from Friends

In this episode, Shai and Roderick order in at Central Perk coffee shop to figure out what type of U.S. visa status Paolo, Rachel’s love interest in season 1 and season 2 of the all-time classic sitcom, Friends, could have possibly had. In addition to analyzing Paolo’s leather jackets, tight sweaters, and obnoxiously long hair, the Immigration principles they will cover include the E-1 Treaty Trader visa and Single Intent and Dual Intent visa status. Plus, Shai and Roderick debate Friends vs. Seinfeld. And, a very special guest…

Listen to this podcast on:

Apple | Spotify | Stitcher TuneIn | Amazon

ABOUT THE HASTA LA VISA, BABY PODCAST

The Hasta La Visa, Baby podcast presents real world U.S. immigration law concepts in a fun and unique  format. This series is a deep-dive into the relationship between U.S. immigration law and fictitious characters from popular television shows and films. Hosted by Gibney Immigration Group attorneys Shai Dayan and Roderick Potts, each episode focuses on a featured character from a well-known show or film and guides listeners through an in-depth and entertaining exploration into the possible U.S. visa status that the character may have held while in the U.S.

New COVID-19 Vaccination Requirement for Green Card Applicants

Effective October 1, 2021, by order of the Centers for Disease Control (CDC),  USCIS and the U.S. Department of State will require individuals applying for permanent resident status to be vaccinated for COVID-19, with limited exceptions.  Refugees are also covered by the order.  Proof of full COVID-19 vaccination will be required along with the other vaccination requirements already in place in connection with green card applications.

Who is Impacted?

If the medical exam is completed before October 1, 2021, and the exam results are within the validity period (typically 2 years from completion with some exceptions), COVID-19 vaccination is not required.

Exemptions

Blanket waivers of the vaccination requirement are available if

  • The vaccination is not age appropriate.  This includes applicants younger than the lowest age limit for the approved COVID-19 vaccine formulations in use.
  • The vaccination is medically contraindicated.
  • The applicant does not have access to one of the approved COVID-19 vaccines in their country.

In all instances, the request for exemption must be documented.

Applicants may also apply for an individual waiver of the vaccine requirement on religious or moral grounds. USCIS will make the determination as to whether an individual waiver will be granted. If the wavier is denied and the individual is not vaccinated, the individual will be deemed inadmissible, and ineligible for lawful permanent resident status.

Proof of Vaccination and Associated Requirements

Approved COVID-19 vaccines  are those authorized for emergency use by the U.S. Food and Drug Administration  or those  listed for emergency use by the World Health Organization.

Written documentation proving vaccination is required. This may include:

  • An official vaccination record.
  • A medical chart with physician entries pertaining to the vaccination.
  • Appropriate medical personnel attestation.

An individual’s personal attestation that they have been vaccinated is not sufficient.  Additionally, an individual may not be exempted from the vaccination requirement on the basis of testing that establishes immunity  or recovery from prior COVID-19 infection.

Finally, keep in mind that proof of vaccination does not exempt international travelers from the requirement to present proof of a negative COVID-19 test prior to boarding an international flight to the U.S.

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

Hasta La Visa, Baby Episode 8: I Said Good Day! – Student Visas and the Marriage Based Green Card Sponsorship Process with Fez from That ’70s Show

In this episode, Shai and Roderick hang out with the gang from the television comedy, That ’70s Show. They focus on Point Place, Wisconsin’s favorite foreign exchange student, Fez, played by Wilmer Valderama. In addition to exploring Fez’s obsession with candy, the immigration principles they will cover include: F-1 Student Visas, the J-1 Exchange Visitor Program, and the Marriage Based Green Card sponsorship process. Plus, Shai and Roderick reminisce about their favorite high school jobs.

Listen to this podcast on:

Apple | Spotify | Stitcher TuneIn | Amazon

ABOUT THE HASTA LA VISA, BABY PODCAST

The Hasta La Visa, Baby podcast presents real world U.S. immigration law concepts in a fun and unique  format. This series is a deep-dive into the relationship between U.S. immigration law and fictitious characters from popular television shows and films. Hosted by Gibney Immigration Group attorneys Shai Dayan and Roderick Potts, each episode focuses on a featured character from a well-known show or film and guides listeners through an in-depth and entertaining exploration into the possible U.S. visa status that the character may have held while in the U.S.

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.

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.

Hasta La Visa, Baby Episode 7: Wax On, Wax Off – Lessons from and a History of Japanese Immigration to the U.S. through Mr. Myagi in The Karate Kid

In this episode, Shai and Roderick dive deep into 1984’s The Karate Kid. They specifically focus on how the character of Mr. Myagi allegedly immigrated from Japan to the U.S. during the 1940s. The Immigration and Nationality principles they will explore include Japanese U.S. Immigration history, the Immigration Act of 1924, the Immigration and Nationality Acts of 1952 and 1965, and Japanese internment camps during World War II. Plus, Shai and Roderick debate whether or not The Karate Kid movie sequels, re-make, and the television show spin-off, Cobra Kai, are any good.

Listen to this podcast on:

Apple | Spotify | Stitcher TuneIn | Amazon

About the Hasta La Visa, Baby Podcast

The Hasta La Visa, Baby podcast presents real world U.S. immigration law concepts in a fun and unique  format. This series is a deep-dive into the relationship between U.S. immigration law and fictitious characters from popular television shows and films. Hosted by Gibney Immigration Group attorneys Shai Dayan and Roderick Potts, each episode focuses on a featured character from a well-known show or film and guides listeners through an in-depth and entertaining exploration into the possible U.S. visa status that the character may have held while in the U.S.

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.

 

 

 

Immigration Partner Claire Razzolini Featured in JD Supra’s Q&A with Top Thought Leaders

Immigration Partner Claire Razzolini  was featured in JD Supra’s Q&A with Top Thought Leaders. The article is part of JD Supra’s discussion series  on successful thought leadership with JD Supra’s Readers’ Choice award recipients.

In the article, Claire discusses her approach to writing about immigration to help clients during an unpredictable time and to “use the developments as a launching point to help them better understand and plan for this lack of predictability.”
Read the Q&A here.

Claire was recognized in the 2021 JD Supra Reader’s Choice Awards as the top author on the subject of immigration.

About the JD Supra Reader’s Choice Awards

The awards highlight authors and firms who were read by C-suite executives, in-house counsel, media, and other professionals across the JD Supra platform during 2020. Last year, more than 60,000 authors published their insights and commentary on JD Supra. The awards recognize 265 thought leaders for achieving the highest visibility and engagement among readers for their particular expertise.