Corporate Immigration Law News

• 23Jun

  Positive News From USCIS and Updates From the AILA Annual Conference 2021

  USCIS News Comments Off on Positive News From USCIS and Updates From the AILA Annual Conference 2021

  Foreign nationals, employers and immigration practitioners do not need any reminders that the last four years have been a regulatory and administrative nightmare for anyone seeking to secure an immigration benefit. From the horrors of family separations to historical processing delays and from unlawful interpretations of laws and regulations to a significant increase in Requests for Evidence, rejections of properly filed petitions, and denials of lawfully filed applications and petitions, foreign nationals and their families, employers, communities and advocates have suffered. The Trump Administration’s policies wreaked havoc on the U.S. Citizenship andImmigration Services (USCIS) and the Department of State (DOS), which, when paired with the global pandemic caused by COVID-19, have resulted in unprecedented hardships for many stakeholders in the U.S. immigration system.

  When President Biden, whose campaign promised to reform our immigration system to one that was fair and compassionate, took office, we were all very excited. However, as we noted after President Biden’s first 100 days in office, change was slow and many of the changes made to that point were cosmetic or otherwise low hanging fruit that did not create meaningful reform.We had yet to see any significant policy changes and USCIS continued to operate much like it had under the Trump Administration — clearly approvable cases were being denied, the agency was interpreting and applying immigration laws and regulations in an arbitrary and capricious manner, and processing delays continued to grow to all time historic levels. Read more:

  If you have any questions, please do not hesitate to contact Lin R. Walker.

• 11May

  Seven US Law Firms Drop H-1B Lawsuit Against USCIS

  H-1B Visa News Comments Off on Seven US Law Firms Drop H-1B Lawsuit Against USCIS

  A group of seven U.S. businesses Monday announced they have voluntarily dismissed an H-1B lawsuit against the U.S. Citizenship and Immigration Services (“USCIS”) after the federal agency agreed to accept and adjudicate previous decisions on H-1B nonimmigrant petitions previously rejected by the agency.

  This lawsuit, filed in the U.S. District Court for the District of Massachusetts, by Meyner and Landis LLP and co-counsel, Mintz Levin and other firms, alleged the rejections were unlawful, and  that USCIS acted in an arbitrary and capricious manner in refusing to accept timely and properly filed H-1B petitions subject to the annual statutory cap.  More specifically, USCIS arbitrarily rejected H-1B petitions filed after October 1 simply because the H-1B worker’s intended employment start date—naturally—also fell after October 1.

  Based on this timeline, USCIS created an absurd choice: foreign workers needed to start on October 1 (and not a day later), or the U.S. employer was required to misrepresent the intended employment start-date by “back-dating” the petition.

  Moreover, USCIS was inconsistent in not rejecting these petitions across the board—as some with an employment start date after October 1 were accepted without issue. There is no law, regulation or form instruction that require an employer to specify only an October 1 start date in the H-1B petition.

  On April 29, 2021, the U.S. employers voluntarily dismissed the lawsuit after USCIS agreed to accept and adjudicate the H-1B petitions that the agency had previously rejected, and the employers had received receipt notices for their refiled petitions.

  “We fully expected and received swift justice from USCIS for our client, RCI, and the other representative clients in this litigation who had fallen victim to the Service’s arbitrary and capricious attempt to reject certain cap-subject H-1B petitions but not others,” said Scott Malyk, Partner, Meyner and Landis LLP, Newark, NJ. “The agency had improperly rejected some H-1B petitions simply because the H-1B worker’s intended start date fell after October 1.  This meant foreign workers were required to either start on October 1 (and not a day later) or the business, under the USCIS’ regime, was required to otherwise misrepresent the employment start-date by ‘back-dating’ the petition.  On behalf of our client, we refused to do so and, thus, were left with no choice but to seek the appropriate remedy in the District Court.”

  If you have any questions, please do not hesitate to contact Anthony F. Siliato, Scott R. Malyk or Lin R. Walker.

• 25Feb

  Premium Processing Now Permitted for the E-3 Visa Classification, Reserved For Australian Nationals

  E-3 Australian Nationals Comments Off on Premium Processing Now Permitted for the E-3 Visa Classification, Reserved For Australian Nationals

  USCIS has just announced that effective February 24, 2021, Australian nationals requesting a change of status to an E-3 visa classification or extension of stay for someone who is currently in the United States in valid E-3 status may now, for the first time ever, request premium processing of that petition. This is a meaningful development for our Australian clients and their employers, as standard processing times for E-3 petitions filed with the USCIS Service Center have ballooned to more than 6 months, effectively precluding E-3 holders from changing jobs and renewing driver’s licenses, oftentimes compelling clients to travel abroad (during COVID) to apply for the renewal at the US Embassies abroad.

  The USCIS premium processing service allows petitioners to pay an additional filing fee of $2,500 to expedite the adjudication of certain forms. In exchange for paying for this expedited process, USCIS will render a decision within 15 business days of filing.

  By way of background, the E-3 classification allows Australian citizens (but not Australian permanent residents) to enter and work in the United States in a specialty occupation (i.e.; a professional level position) for up to two (2) years. The E-3 classification also allows the dependents of the principal applicant to enter the United States in E-3D status and further permits the spouse of the principal applicant to apply for his/her own work authorization once in the United States. Further details can be found here.

  If you have any questions, please do not hesitate to contact Anthony F. Siliato, Scott R. Malyk or Lin R. Walker.

• 29Jan

  Biden Administration Maintains Travel Restrictions for Schengen Area, U.K., Ireland, Brazil, China, and Iran and Adds South Africa

  Uncategorized Comments Off on Biden Administration Maintains Travel Restrictions for Schengen Area, U.K., Ireland, Brazil, China, and Iran and Adds South Africa

  On January 25, 2021, President Biden issued a Presidential Proclamation maintaining travel restrictions on individuals from the Schengen Area, U.K., Ireland, and Brazil. This Proclamation further adds restrictions on individuals from South Africa and reiterates that previous restrictions implemented by the Trump Administration remain in effect for China (Proclamation 9984) and for Iran (Proclamation 9992).

  More specifically, this Proclamation restricts and suspends the entry into the United States, as immigrants or nonimmigrants, of noncitizens of the United States who were physically present within the Schengen Area, the U.K. (excluding overseas territories outside of Europe), Ireland, Brazil, and South Africa during the 14-day period preceding their entry or attempted entry into the United States.

  For additional details click here.

  If you have any questions, please do not hesitate to contact Anthony F. Siliato, Scott R. Malyk or Lin R. Walker.

• 20Jan

  U.S. Department of Labor Publishes Final Rule Affecting Prevailing Wages

  DOL News Comments Off on U.S. Department of Labor Publishes Final Rule Affecting Prevailing Wages

  On January 14, 2021, the U.S. Department of Labor (“DOL”) published its final rule, entitled “Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States”, which affects the prevailing wages of H-1B, H-1B1 and E-3 nonimmigrant visa classifications and permanent labor certifications (PERM applications) for employment-based 2nd preference (EB-2) and 3rd preference (EB-3) applications. The final rule will go into effect on March 15, 2021, but its implementation will occur in transitions beginning June 30, 2021. According to the DOL, such final rule is required to “allow the Department to more effectively ensure the employment of immigrant and nonimmigrant workers admitted or otherwise provided status through the above-referenced programs does not adversely affect the wages and job opportunities of U.S. workers.” 86 Fed. Reg. 3608 (January 14, 2021).

  This rule was initially published as an Interim Final Rule (“IFR”) that was immediately effective on October 8, 2020, but was struck down on December 1, 2020 along with the Department of Homeland Security (“DHS”) IFR that amended the requirements for H-1B classification. The DOL IFR dramatically increased prevailing wage levels, where Level 1 wages increased from the 17th percentile to the 45th percentile; Level 2 wages increased from the 34th percentile to the 62nd percentile; Level 3 wages increased from the 50th percentile to the 78th percentile; and Level 4 wages increased from the 67th percentile to the 95th percentile. 85 Fed. Reg. 63872 (October 8, 2020).

  On December 1, 2020, in Chamber of Commerce et al. v. DHS, et al., the U.S. District Court for the Northern District of California set aside the DOL and DHS IFRs, stating that they were issued in violation of the Administrative Procedure Act (“APA”). In addition, on December 14, 2020, in Purdue University, et al. v. Scalia, et al., the U.S. District Court for the District of Columbia ordered the DOL to reissue prevailing wage determinations using the prevailing wage levels that existed on October 7, 2020, finding that the IFR violated the APA. The DOL republished the pre-IFR prevailing wage rates on December 9, 2020.

  In its January 14th final rule, the DOL made amendments to the IFR, which it claims now meets the requirements of the APA stating “The Department is satisfied that it meets the APA’s objective requirements necessary for the promulgation of a final rule in this case. Specifically, the Department’s IFR provided sufficient notice to the public by allowing for a 30 day comment period; “gave interested persons an opportunity to participate in the rule making through submission of written data, views or arguments”; the rule contained a “concise general statement of their basis and purpose”; and the rule will be published more than 30 days before it becomes effective.” 86 Fed. Reg. 3612 (January 14, 2021).

  See table illustration and additional details here.

  If you have any questions, please do not hesitate to contact Anthony F. Siliato, Scott R. Malyk or Lin R. Walker.

• 08Jan

  CLIENT ALERT: Trump Administration Extends Suspension of Visa Issuance to Certain Nonimmigrants

  Uncategorized Comments Off on CLIENT ALERT: Trump Administration Extends Suspension of Visa Issuance to Certain Nonimmigrants

  Hours before it was set to expire, the Trump Administration extended Presidential Proclamation 10052, suspending the issuance of certain nonimmigrant visas at U.S Consulates around the world.

  More specifically, such Proclamation effects individuals who are currently outside the United States, and do not already possess a valid nonimmigrant visa (valid as of June 22, 2020, or earlier). Such individuals may not be issued a visa in the following nonimmigrant visa classifications:

  a. H-1B or H-2B (including H-4 dependents);

  b. J-1, interns, trainees, teachers, camp counselors, au pairs, or summer work travel program participants, (including J-2 dependents); and

  c. L -1 (including L-2 dependents)

  The suspension on entry to the U.S. does NOT apply to:

  a. Any lawful permanent resident of the United States;

  b. Any alien who is the spouse or child, of a United States citizen;

  c. Any alien seeking to enter the United States to provide temporary labor or services essential to the United States food supply chain; and

  d. Any alien whose entry would be in the national interest.

  Originally signed on June 22, 2020 (and valid as of that date), the restriction on nonimmigrant visa issuance was set to expire on December 31, 2020 at 11:59pm, and is now extended through March 31, 2021.

  This Proclamation does not affect extensions of stay or changes of status filed with the USCIS Service Centers in the above referenced nonimmigrant visa categories.

  Our continued advice to all nonimmigrant visa holders in the United States is to avoid non-essential travel as we cannot guarantee there won’t be any adverse decisions by border officers, even in the case of individuals who are currently permitted to travel and re-enter the U.S.  We also cannot guarantee that significant changes will not occur while an individual is outside the U.S. which may preclude their re-entry to the U.S.

  Please note that the new incoming Federal Administration will have the authority to reverse the above described restrictions at any point and, as such, the extension of such restrictions may not remain in place throughout its currently defined duration.  We will continue to provide updates and developments as they become available.

  If you have any questions, please do not hesitate to contact Anthony F. Siliato or Scott R. Malyk.

• 15Dec

  USCIS Provides Update on Receipt Notice Delays

  USCIS News Comments Off on USCIS Provides Update on Receipt Notice Delays

  USCIS Provides Update on Receipt Notice Delays for Forms Filed with USCIS Lockbox

  USCIS issued a stakeholder message noting that a significant increase in filings in recent weeks and facility capacity restrictions as a result of the COVID-19 pandemic is causing “significant delays for processing receipt notices” for forms and applications filed with the USCIS Lockbox.

  The USCIS lockbox facilities have received a significant increase in filings in recent weeks. This increase, along with facility capacity restrictions necessary to protect the health and safety of the lockbox workforce during the COVID-19 pandemic, is causing significant delays for processing receipt notices.

  Further details can be found here.

  If you have any questions, please do not hesitate to contact Anthony F. Siliato or Scott R. Malyk.

• 24Apr

  Client Alert: Proclamation Effecting Immigrants Outside the United States

  Uncategorized Comments Off on Client Alert: Proclamation Effecting Immigrants Outside the United States

  The proclamation becomes effective on Thursday, April 23, 2020 at 11:59 PM (ET), and suspends the entry of any individual seeking to enter the U.S. as an immigrant who:

  ● Is outside the United States on the effective date of the proclamation;

  ● Does not have a valid immigrant visa on the effective date; and

  ● Does not have a valid official travel document (such as a transportation letter, boarding foil, or advance parole document) on the effective date, or issued on any date thereafter that permits travel to the United States to seek entry or admission.

  The following categories are exempted from the proclamation:

  1. Lawful permanent residents (LPR)

  2. Individuals and their spouses or children seeking to enter the U.S. on an immigrant visa as a physician, nurse, or other healthcare professional to perform work essential to combating, recovering from, or otherwise alleviating the effects of the COVID-19 outbreak (as determined by the Secretaries of State and Department of Homeland Security (DHS), or their respective designees)

  3. Individuals applying for a visa to enter the U.S. pursuant to the EB-5 immigrant investor visa program

  4. Spouses of U.S. citizens

  5. Children of U.S. citizens under the age of 21 and prospective adoptees seeking to enter on an IR-4 orIH-4 visa American Immigration Council AILA Doc. No. 20042201. (Posted 4/22/20)

  6. Individuals who would further important U.S. law enforcement objectives (as determined by the Secretaries of DHS and State based on the recommendation of the Attorney General (AG), or their respective designees)

  7. Members of the U.S. Armed Forces and their spouses and children

  8. Individuals and their spouses or children eligible for Special Immigrant Visas as an Afghan or Iraqi translator/interpreter or U.S. Government Employee (SI or SQ classification)

  9. Individuals whose entry would be in the national interest (as determined by the Secretaries of State and DHS, or their respective designees)

  Discretion. It is within the discretion of the consular officer to determine if an individual is within one of the exempted categories outlined above.

  Nonimmigrant visa (work visa) holders are not included in the proclamation. However, Section 6 the proclamation requires that within 30 days of the effective date, the Secretaries of Labor and DHS, in consultation with the Secretary of State, shall review nonimmigrant (work visa) programs and recommend to the President other appropriate measures to stimulate the U.S. economy and ensure “the prioritization, hiring and employment” of U.S. workers.

  Asylum seekers are not included in the ban. The proclamation states that it does not limit the ability of individuals to apply for asylum, refugee status, withholding of removal or protection under the Convention Against Torture.

  Prioritized Removal. Individuals who circumvent the application of this proclamation through fraud, willful misrepresentation or illegal entry will be prioritized for removal.

  Expiration. The proclamation expires 60 days from its effective date and may be continued as necessary. Within 50 days from the effective date, the Secretary of DHS shall, in consultation with the Secretaries of State and Labor, recommend whether the President should continue or modify the proclamation.

  Severability Clause. If any provision of the proclamation, or the application of any provision to any person or circumstance, is held to be invalid, the remainder of the proclamation shall not be affected.

  Summary of Effect on Employers of Foreign Nationals.

  The Proclamation has a very limited effect at this time on the employment of foreign nationals by employers. It only affects a foreign national who is currently abroad and intends to enter the U.S. as a permanent resident and does not already possess a green card or a valid immigrant visa. However, we must await the issuance of any future executive order or proclamation contemplated by that part of the Proclamation which requires DOL and DHS to review the nonimmigrant (work visa) categories. We will keep you posted!

  We will continue to provide updates as they become available.

  If you have any questions, please do not hesitate to contact Anthony F. Siliato or Scott R. Malyk.

• 30Mar

  USCIS Expands Flexibility for Responding to USCIS Requests

  USCIS News Comments Off on USCIS Expands Flexibility for Responding to USCIS Requests

  In response to the Coronavirus (COVID-19) pandemic, U.S. Citizenship and Immigration Services announced that it adopted measures to assist applicants and petitioners who are responding to certain Requests for Evidence (RFE) and Notices of Intent to Deny (NOID). This alert clarifies that this flexibility also applies to certain Notices of Intent to Revoke (NOIR) and Notices of Intent to Terminate (NOIT) regional investment centers, as well as certain filing date requirements for Form I-290B, Notice of Appeal or Motion.

  Notice/Request/Decision Issuance Date:

  This flexibility applies to an RFE, NOID, NOIR, NOIT or appealable decision within AAO jurisdiction and the issuance date listed on the request, notice or decision is between March 1, 2020 and May 1, 2020, inclusive.

  Response Due Date: 

  Any response to an RFE, NOID, NOIR, or NOIT received within 60 calendar days after the response due date set in the request or notice will be considered by USCIS before any action is taken. Any Form I-290B received up to 60 calendar days from the date of the decision will be considered by USCIS before it takes any action.

  USCIS is adopting several measures to protect our workforce and community, and to minimize the immigration consequences for those seeking immigration benefits during this time.

  USCIS will provide further updates as the situation develops and will continue to follow CDC guidance. Education and precautions are the strongest tools against COVID-19 infection. Please visit uscis.gov/coronavirus for latest facts and other USCIS updates.

  If you have any questions, please do not hesitate to contact Anthony F. Siliato or Scott R. Malyk.

• 20Mar

  FY 2021 H-1B CAP REGISTRATION IS CLOSED – A Post-Mortem Evaluation

  H-1B Visa News Comments Off on FY 2021 H-1B CAP REGISTRATION IS CLOSED – A Post-Mortem Evaluation

  It’s a year of uncharted waters.  A new on-line registration process for the FY21 H-1B Cap and a viral pandemic that has changed the way we are conducting everyday business.

  Regardless of the havoc that COVID-19 has wreaked on our way of living and conducting business, the USCIS has continued its operations, and the FY21 H-1B cap registrations continued to be filed on-line until the deadline of today, March 20, 2020, at 12:00pm EST.

  While we cannot fully assess the overall utility and success of the new registration process until the results of the lottery are completed and shared, in looking back at the last 20 days, we can say that the on-line platform was largely successful, while saving our clients the expense of preparing and filing full H-1B petitions in order for their candidates to be considered in the H-1B lottery.

  The on-line registration opened on Sunday, March 1, 2020 at 12 noon, EST.  The most notable technological glitch occurred in the completion of the Notice of Representation (Form G-28) where attorneys were forced to choose between submitting the registrations as early as possible due to fear of an overall system crash (which required attorneys to wrongly indicated that they were unauthorized to practice law or under an order of suspension) or exercise patience and wait until the glitch was fixed by USCIS.  The Immigration Law Group at Meyner and Landis chose the latter, which was the correct choice, as after a number of practitioners sounded alarm bells, USCIS rectified the issue within in 3-4 days.

  Overall, the platform functioned well and, for the most part, the interface and process followed the protocols outlined in the webinars conducted by the USCIS prior to opening of the registration period.

  Our primary criticisms with the USCIS Registration platform, while minor, are as follows:

  • Attorneys were able to “Add a Client” but when beginning a registration form, the client name had to be re-entered.  Similarly, once a registration was submitted, if a company added new beneficiaries, there was no pre-population of company information so that all company information had to be re-entered again, increasing the likelihood of typographical errors.
  • The system did not allow employers to modify the “account type” that they had created, so if the employer created the wrong account type, they were forced to open a new account under a different email address.
  • Once the G-28 has been initiated, the registration form became un-editable. If a change needed to be made, the registration had to be deleted and prepared anew.

  Given the fact that there are growing pains with all new processes and all new on-line platforms have technological issues, our overall assessment of the H-1B registration process (pre-lottery results) is positive.

  We will update our assessment once the results of the lottery are posted.

  If you have any questions, please do not hesitate to contact Anthony F. Siliato or Scott R. Malyk.

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