Labor & Employment Law Update

The election results are in and many are wondering what to expect for business employment immigration. With relatively little information available at this point, it can be challenging to speculate about what is going to happen. What we do know may be gleaned from President-Elect Trump’s first administration.

Traveling to the U.S. can be grueling. By the time you arrive at Customs and Border Protection, all you want is to get through and be on your way. But diligence and a little extra time at CBP can save you headaches, money, and unnecessary travel later on.

With the summer travel season around the corner, we are fielding many travel and visa application questions. Here are answers to your most frequently asked questions.

For H-1B visa holders, the logistics of traveling home for a wedding can be almost as challenging to plan as the wedding.

A man who traveled to India for a wedding had to remain there for weeks to get a visa to return to the US. He had to apply for the visa in India, have an interview, and then wait 3 weeks for the consulate to vet his application and return the passport with the visa foil. The waiting time caused him to postpone a major business deal.

Consulate and embassy waiting times have ballooned to eight, nine, or even twelve months in some places including Mexico and Canada – and that’s ...

Facing a stubborn backlog and an influx of immigrants seeking refuge, United States Citizenship and Immigration Services (USCIS) proposed a rule featuring a new fee schedule in January 2023. The proposed fee schedule includes sharp increases in fees for H-1B visas, green cards, and naturalization.

USCIS has deferred the final ruling on the fees until early 2024. The steep increases are worthy of your attention now, by filing for your green card or naturalization before the fees rise.

Why Immigration Fees Are Rising

USCIS’s current fees went into effect on December 23, 2016. Fees ...

In the immigration community, autumn brings a new-year sense of renewal. A new US government fiscal year beginning October 1 means a fresh start to the annual allocation of green cards for those looking to apply. But application backlogs which have grown for countries like mainland China and India have tempered that October optimism. A new wrinkle added to the application process this year has made it trickier.

The final phase of the green card application involves an Adjustment of Status (AOS). While their AOS is pending, applicants cannot leave the US without permission, a document called Advance Parole.

The H-1B season is off and running! Though United States Citizenship and Immigrations Services (USCIS) has not specified the dates the online lottery will be open this year, we know it will occur in March. I recommend that all petitions be ready for submission by March 1.

In 1986, the Reagan administration instituted use of the I-9 Immigrant form, requiring employers to verify their employees’ identity and eligibility to work. While the concept was simple and the current form was meant to be simple, compliance has been anything but simple and I-9 forms can feel like a minefield.

USCIS has announced a few measures to ease the backlog of Employment Authorization Document (EAD) cards. These may feel like baby steps. But they are steps in the right direction.

With the New Year upon us, it is time to begin the initial H-1B process for any interested companies or organizations with foreign workers. Now is the time to see if anyone will need assistance with an H-1B petition. 

In 2019, USCIS implemented a new electronic registration system for employers seeking to file H-1B cap-subject petitions for foreign national employees. Last year, the registration period for foreign nationals ran from March 9 to March 25, 2021. We anticipate a similar timeframe this year. Once the registration period is over, the US Citizenship and Immigration ...

In December 2018, I got an unpleasant surprise: My first – and only – H-1B petition denial in my over 20+ years of practicing immigration law.

The petition was on behalf of an operations research analyst. I had done the same petition for other operations research analysts at this company. USCIS had approved them all, some all the way to green cards.

In this case I prepped the client, submitted a thorough petition, and responded to all requests for evidence. Unfortunately, this unpleasant surprise was not a shock. USCIS’s scrutiny had intensified and as many thought it was ...

As soon as the Biden administration announced it would ease travel restrictions in early November, my phone began ringing non-stop and email notifications started pinging like popcorn. If you work in Human Resources, you may know what I mean because it is likely your phone and email were ringing first.

HR clients were sending the messages on behalf of their foreign national workers and students who were asking if they could travel. Questions like “Can I go home for Christmas?” and “Is it safe to travel home in late November?”

Unfortunately, while the easing of restrictions is ...

With H-1B season upon us, it is time to review the visa status expirations for foreign national employees. There may be some who will need to change visa status to H-1B for continued employment with your company. For example, an F-1 international student who is employed based on his/her optional practical training may need H-1B sponsorship. Now is the time to see if anyone will need assistance with an H-1B petition. 

As you know, last year USCIS implemented a new electronic registration system for employers seeking to file H-1B cap-subject petitions for their foreign national ...

Last November I mentioned that the Trump Administration enacted over 400 immigration policy changes during its tenure. The changes added burdens to visa petitions, delayed processing, and made life more challenging for everyone in the immigration community.

Executive Order Highlights

President Biden signed a slew of prepared executive orders when he took office. Some of the orders that affect the immigrant community include:

• the preservation and plans to “fortify” the Deferred Action for Childhood Arrivals (DACA) program;
• cessation of border wall construction; and
• a ...

The Trump administration has enacted more than 400 immigration policy changes. That’s one change every 3.65 days the administration has been in office.

Weary from the whiplash of changes and weight of additional work, many are wondering how President-Elect Joe Biden will approach immigration policy.

Here are my thoughts on four issues affecting clients:

The Quickest Change Will Likely Be Better Visa Processing Times

COVID-19 will still slow processing as many U.S. Citizenship & Immigration Services (USCIS) employees are working from home. But without the anti-immigration ...

The U.S. immigration system has always been something of an obstacle course. Recent developments have made it more like an intricate labyrinth with detours, hidden delays, and dead ends if you are not careful. Here are some recent developments and how they are affecting visa compliance and processing.

USCIS Budget Crisis

USCIS is a fee-driven agency. Fees pay 96% of its operating costs. It claims the coronavirus has caused a devastating budget shortfall. For four months they threatened to furlough 13,000 of their 20,000 employees. Ironically, a congressional inquiry showed USCIS ...

U.S. Immigration laws and regulations have always required immigration attorneys to have a certain level of creativity to problem solve. Keeping current on regulation changes, combined with creativity, helped me navigate the paths to my clients’ goals even when they took unexpected turns.

The COVID-19 pandemic has taken creative problem solving and preparedness to a whole new level.

Here are six situations I am helping clients navigate.

Work-from-Home Effect on H-1Bs

U.S. Citizenship and Immigration Services (USCIS) is a traditional organization that has not caught up with ...

On February 3, 2020 a coding flaw in a mobile app delayed the tabulation and reporting of the Iowa Democratic Caucus results.

This high-profile failure reminds us that technological glitches can show up any time but especially when a system is put to extreme use.

This reminder is the guiding principle for an H-1B preparation strategy this year. A sound strategy involves planning for glitches with back up measures to ensure as smooth an H-1B filing experience as possible.

New changes to the H-1B filing process may introduce several speed bumps to the process of filing petitions.

After the implementation of the General Data Protection Regulation (GDPR) in May 2018, U.S. academic institutions continue to grapple with compliance issues. Institutions must address areas where there is exposure to risk and train their employees to minimize that exposure.

One area of risk is the flow of data. Who on campus is the gatekeeper handling the data? Most universities will have a Data Protection Officer (DPO) as required by Article 37 of the GDPR. Other campus GDPR actors may include University Counsel, Information Technology Officers, Information Security ...

In May, we reported on Illinois becoming the eleventh state to permit recreational marijuana beginning January 1, 2020. Noncitizens in these eleven states and the District of Columbia may reasonably conclude that using marijuana in accordance with state law will have no bearing on immigration status. Unfortunately, that is a wrong assumption. Federal law controls immigration, and it remains a federal offense to possess marijuana. For the unsuspecting foreign national, this is a legal distinction that many will not understand. Customs and Border Protection (CBP) Officers ...

A U.S. Citizenship and Immigration Services (USCIS) memorandum-issued policy is at the heart of a court case challenging recent H-1B visa denials.

The “Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites” memo was issued on February 20, 2018 without any notice or comment period required by the Administrative Procedure Act (APA). The memo directs adjudicators to ensure a contractor has actual and exclusive “control” of the contractor’s employees at the third-party site as a criterion for visa approval. This requirement comes ...

The Department of Homeland Security (DHS) announced a proposed rule on November 30, 2018 that would require H-1B cap subject petitioners to register electronically with USCIS which would then conduct the annual H-1B lottery from the pool of timely-filed registrants.

The registration window would open 14 days before the H-1B filing window opens on April 1 and remain open for 14 days after that date. Petitioners selected during the lottery would be notified that they are eligible to file their petition and would have a 60-day window to do so.

The proposed rule would also reverse the order ...

After a decade of rapid growth which saw the international student population increase 85 percent to over a million students, the number of newly arriving international students fell 3 percent in the 2016-2017 academic year.

President Trump’s campaign rhetoric and subsequent action as President have contributed to substantial declines in international student enrollment for the current academic year. Across the country the number of new international students declined an average of 7 percent according to a study of about 500 campuses by the Institute of International ...

If you are planning to file H-1B applications for your employees this year, now is the time to start the process. While the filing deadline is April 2, 2018, it’s not too early to begin the application, which involves several time consuming steps. As in recent years, the H-1B cap season may be met with an overwhelming number of petitions within a week of the April 2^nd deadline. If you plan to file for an H-1B visa this year, starting early will enable us to provide your petition with the best possible shot at winning the lottery and obtaining a visa. We recommend starting to prepare the H-1B ...

While the H-1B petitions submitted for the lottery this cap season were still in transit to the U.S. Citizenship and Immigration Services (USCIS), both the USCIS and the Department of Labor (DOL) announced several measures aimed at detecting H-1B visa fraud and abuses.

1. Beginning April 3, 2017, USCIS is taking a more targeted approach when making site visits across the country to H-1B petitioners and the worksites of H-1B employees. The focus will be on the following: (1) cases where USCIS cannot validate an employer’s basic business information through commercially available ...

A new proposed rule represents a hopeful change for foreign entrepreneurs looking to stay in the U.S. to start and grow their businesses.

Currently the only routes for foreign entrepreneurs to obtain a visa involve huge risk. Those routes, via a Treaty E visa or the EB-5 visa program, require applicants to make significant investments upfront and essentially build their businesses to satisfy the visa criteria, with no guarantee that a visa will be granted.

One of my clients, who sold all-terrain vehicles, imported several of these vehicles and related equipment, not knowing if he ...

U.S. Citizenship and Immigration Services (USCIS) announced on April 7, 2016, that it received significantly more H-1B petitions than allowed under the statutory cap for fiscal year (FY) 2017. U.S. businesses use the H-1B program to employ foreign workers in occupations that require highly specialized knowledge in fields such as science, engineering and computer programming. The number of petitions filed this year, 236,000, exceeded last year’s high of 233,000 petitions.

The USCIS began to issue receipt notices using the random, computer generated selection process or ...

H-1B employee mobility makes USCIS uncomfortable.

In fact, on April 9, 2015, the USCIS Administrative Appeals Office (AAO) set a new precedent via the Matter of Simeio Solutions LLC. The AAO determined that a worksite relocation outside of the intended area of employment on the original H-1B petition qualifies as a material change to the petition. H-1B employers are now required to file an amended petition for the employee before placing them at the new worksite. The U.S. Citizenship and Immigration Services finalized guidance based on the Simeio Solutions decision in ...

Moments after President Obama announced that he would be expediting H-4 work authorizations last November, I received a call from a client inquiring about how to start the application process for his wife.  I can understand their desire to jump on the opportunity. The green card acquisition process can drag on for years, testing the patience of many foreign nationals and frustrating their spouses who want to work, but who cannot by law. A dependent spouse’s inability to work can strain the couple’s economic viability and their marriage and prompt them to consider moving to ...

Did you watch the President address the nation live last week? On November 20, 2014, President Obama announced a series of executive actions, including cracking down on illegal immigration at the border, prioritizing deportation of felons (details of which are still unclear), and requiring certain undocumented immigrants to pass a criminal background check and pay taxes in order to temporarily stay in the U.S. without fear of deportation.

The initiatives include:

– Deferred Action for Parents (DAP). Parents of U.S. citizens and legal permanent residents (LPR’s of any ...

In May 2014, the Department of Homeland Security announced a proposed rule to allow for work authorization for certain spouses of H-1B visa holders. The work permit is called an Employment Authorization Document or EAD. No time frame has yet been finalized for this benefit.

Employment authorization could be extended to H-4 nonimmigrant spouses in the following situations:

(1) The principal H-1B spouse is the beneficiary of an approved 1-140 Immigrant Petition; or

(2) the H-1B nonimmigrant’s period of stay is authorized under sections 106(a) and/or (b) of the American ...

U.S. Citizenship and Immigration Services (USCIS) announced on April 7, 2014 that it had received a sufficient number of H-1B petitions to reach the statutory cap for fiscal year 2015, which begins on October 1, 2014. USCIS also received more than the limit of 20,000 H-1B petitions filed under the U.S. advance degree exemption. Approximately 172,500 H-1B petitions were received by USCIS during the filing period, which began on April 1, 2014. On April 10, 2014, USCIS completed a computer generated random selection process, or lottery, to select enough petitions to meet the 65,000 ...