Corporate Immigration Law News

• 12Feb

  U.S. Citizenship & Immigration Services to Implement Public Charge Inadmissibility Rule

  USCIS News Comments Off on U.S. Citizenship & Immigration Services to Implement Public Charge Inadmissibility Rule

  What is it?

  On August 14, 2019, the U.S. Department of Homeland Security (“DHS”) published the Inadmissibility on Public Charge Grounds rule (“Public Charge Rule”), which codified the public charge grounds of inadmissibility found in the Immigration and Nationality Act (“INA”) at §212(a)(4). INA §212(a)(4) reads in relevant part: “Any alien who, in the opinion of the consular officer at the time of application for a visa, or in the opinion of the Attorney General at the time of application for admission or adjustment of status, is likely at any time to become a public charge is inadmissible… In determining whether an alien is inadmissible under this paragraph, the consular officer or the Attorney General shall at a minimum consider the alien’s age; health; family status; assets, resources, and financial status; and education and skills.” (Emphasis added)

  Who does it apply to?

  The Public Charge Rule applies to foreign nationals seeking admission to the United States as either immigrants (permanent residents) or nonimmigrants (temporary workers), applicants for adjustment of status to lawful permanent resident status, and foreign nationals in the United States who apply for a change or extension of their nonimmigrant status.

  DHS will only apply the Public Charge Rule to the direct receipt of benefits by a foreign national for their own benefit, or where the foreign national is a listed beneficiary of a public benefit. DHS will also not attribute the receipt of a public benefit by one or more members of the foreign national’s household to the foreign national unless they are also a listed beneficiary of the public benefit. Any income derived from such benefits received by other household members will not be considered as part of the foreign national’s household income.

  The Public Charge Rule does not apply to the following groups: U.S. citizens, even if they are related to the foreign national who is subject to the Public Charge rule; Refugees; Asylees; Afghans and Iraqis with special immigrant visas; Certain  nonimmigrant trafficking and crime victims, individuals applying under the Violence Against Women Act; Special immigrant juveniles (“SIJ”); a foreign national (and their spouse and/or children) who received designated public benefits (listed below) who is enlisted in the U.S. armed forces, is serving in active duty, or in any of the Ready Reserve components of the U.S. armed forces; Children, including adopted children, who will acquire U.S. citizenship under INA section 320, 8 USC §1431; or other foreign nationals who DHS has granted a waiver of public charge inadmissibility.

  When does it go into effect?

  On February 24, 2020, U.S Citizenship & Immigration Services (“USCIS”) will implement the Public Charge Rule, except in Illinois, where the rule remains enjoined by a federal court as of January 30, 2020 . The final rule will apply only to applications and petitions postmarked (or submitted electronically) on or after February 24, 2020.

  For full details and a list of forms please click here.

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

• 06Feb

  Department of Homeland Security Suspends New Enrollment/Re-Enrollment in CBP Trusted Traveler Programs for New York Residents

  Uncategorized Comments Off on Department of Homeland Security Suspends New Enrollment/Re-Enrollment in CBP Trusted Traveler Programs for New York Residents

  In response to New York State implementing the Driver’s License Access and Privacy Act (Green Light Law), Acting Secretary Chad F. Wolf announced that New York residents will no longer be eligible to apply for or renew their enrollment in certain Trusted Traveler Programs like Global Entry. The law prohibits the Department of Motor Vehicles (DMV) from sharing information with U.S. Department of Homeland Security (DHS), preventing DHS from fully vetting New York residents. The Acting Secretary informed State officials by letter of the change.

  “New York’s ‘Green Light Law’ is ill-conceived and the Department is forced to take this action to ensure the integrity of our Trusted Traveler Programs. It’s very clear: this irresponsible action has consequences,” said Acting Secretary Chad Wolf. “An aspect of the law which I’m most concerned about is that it prohibits the DMV from providing ICE and CBP with important data used in law enforcement, trade, travel, and homeland security. ICE uses the information as they investigate and build cases against terrorists, and criminals who commit child sexual exploitation, human trafficking, and financial crimes. Unfortunately, because of this law, they can no longer do that.” Full text of the DHS letter to the State of New York is available online here.

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

• 30Jan

  Visa Reciprocity Changes for Australia

  Department of State Comments Off on Visa Reciprocity Changes for Australia

  On December 23, 2019, without prior notice, the U.S. Department of State (“DOS”) published significant changes to the Visa Reciprocity schedule for Australia, impacting both the validity period of certain visas as well as additional fees that are now required of applicants upon approval of their visa applications at the U.S. Embassies abroad. According to the DOS, “The United States strives to eliminate visa issuance fees whenever possible, however, when a foreign government imposes these fees on U.S. citizens for certain types of visas, the United States will impose a “reciprocal” fee on citizens of that country for similar types of visas.”  This reciprocity arrangement also serves to shorten the validity periods of various nonimmigrant visas. Read full details here.

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

• 19Dec

  Wishing All of You a Joyful Holiday and a Prosperous New Year

  Firm News Comments Off on Wishing All of You a Joyful Holiday and a Prosperous New Year

  In lieu of sending cards, we will be donating to the Community Food Bank of New Jersey in support of the “Lawyers Feeding New Jersey” program.

  

• 11Dec

  Client Alert Update: H-1B Lottery for 2020 Registration Announcement

  H-1B Visa News Comments Off on Client Alert Update: H-1B Lottery for 2020 Registration Announcement

  Further to our recent Client Alert, U.S. Citizenship and Immigration Services confirmed through its announcement on December 6th, that employers seeking to file H-1B cap subject petitions must first electronically register the company and pay the associated $10 H-1B registration fee per H-1B candidate before filing a petition for the fiscal year 2021 H-1B cap.

  According to the announcement, USCIS will open an initial registration period from March 1 through March 20, 2020.

  * During this initial registration period, prospective employers or their authorized representatives must electronically submit a separate registration naming each employee for whom they seek to file an H-1B cap-subject petition.

  * USCIS will then randomly select the number of registrations needed to reach the H-1B numerical allocations after the initial registration period closes, but no later than March 31, 2020.

  * Prospective petitioners with lottery-selected registrations will be eligible to file a cap-subject petition only for the employee named in the selected registration.

  Once the H-1B registration system has been implemented, and when registration is required, the agency will not consider a cap-subject petition properly filed unless it is based on a valid registration selection for the same beneficiary, and the appropriate fiscal year. Additionally, although petitioners can register multiple employees during a single online submission, duplicate registrations  by an employer for the same beneficiary in the same fiscal year will be discarded. USCIS claims it will conduct outreach and training prior to the initial implementation of the registration system to allow the public the opportunity to familiarize themselves with the electronic registration process. USCIS will also provide guidance on how to use the registration system and prepare registrations before opening the registration system for the initial registration period.

  DHS intends to publish a notice in the Federal Register in the coming weeks to formally announce implementation of the H-1B registration process.

  For more information on the H-1B registration system, please do not hesitate to contact Anthony F. Siliato or Scott R. Malyk.

• 06Dec

  Client Alert: H-1B Lottery for 2020 A New Registration Process

  H-1B Visa News Comments Off on Client Alert: H-1B Lottery for 2020 A New Registration Process

  DHS recently published a final rule to establish an electronic registration program for H-1B petitions that requires a $10 registration fee per H-1B candidate for the April 2020 cap season (FY 2021). The primary purpose of the regulation is to conduct the lottery in such a matter so that employers will know in advance of filing a full H-1B petition whether the candidate has been selected in the lottery, which will then necessitate submitting a complete H-1B filing for each selected candidate with USCIS within 90 days of receiving such notice.

  It is important to note that, consistent with prior rules,  multiple employers (e.g. affiliate companies) will be eligible to submit a candidate registration on behalf of the same employee, so there is a new level of strategy that can be considered for certain “must have” employees who may be facing difficult situations, including those having to leave the United States due to impending post-completion OPT expirations and/or those engaging in risky full-time CPT to “buy time” for a possible H-1B cap selection.

  While we await confirmation whether or not the H-1B registration program will be active for the upcoming cap season, we are advising clients to anticipate as if the new program will be implemented. Read additional details here.

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

• 27Sep

  Thinking Outside the Box: U.S. Immigration Options for Cybersecurity Experts

  O-1 Visas Comments Off on Thinking Outside the Box: U.S. Immigration Options for Cybersecurity Experts
  

  Scott Malyk              Lin Walker

  A decade ago, very few people outside of the Information Technology (IT) industry knew what cybersecurity was or even considered it something worth worrying about. Many of us naively believed that with the right passwords, encryption software and firewalls, our data and information would be secure.

  In recent years, however, our world has become far more technologically advanced and, as a consequence, technologically dependent. Nearly every occupation and industry has developed some use for artificial intelligence, a big data platform, or web-based application, whether it is banking, retail, pharmaceutical, medical, legal or agricultural. Most organizations that generate significant data store work product/files on servers or in the “cloud”. With the advent of e-commerce and electronic file storage, we can now share photos and documents as well as make financial transactions from our phones, computers, and other smart devices.

  While these advances in technology have made our lives easier in many respects, they have also created significant opportunities for individuals and organizations to use the same technology to commit cybercrimes. Although cybersecurity is neither a new or emerging field, there has been something of a collective epiphany in the United States regarding the essential and significant role it plays in our everyday lives, particularly since 2016. Since that time, there have been daily reports of cybersecurity crimes, ranging from denials of service, to hacks and breaches of personal, financial and confidential information, to election meddling. Read full text here:

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

• 25Sep

  Employer Alert: On-Site Inspections for STEM OPT Employment

  OPT, Worksite Enforcement Comments Off on Employer Alert: On-Site Inspections for STEM OPT Employment

  There are recent reports that ICE has started to conduct on-site inspections for STEM Optional Practical Training (OPT) employment. According to DHS’s Study in the States website, the site visit will address how the salary of STEM OPT employees is determined, whether there is sufficient structure to provide supervision and training of the employee, and the nature of the employer/employee relationship at any third party worksites. The website states the following:

  Site visits will be limited to checking information related to student STEM OPT employment and ensuring that students and employers are engaged in work-based learning experiences that are consistent with the information supplied on the student’s Form I-983.

  As these compliance site visits are a new practice, it is important to refer back to the STEM OPT regulation preamble which describes the expected scope of a DHS site visit:

  The employer site visit is intended to ensure that each employer meets program requirements, including that they are complying with their attestations and that they possess the ability and resources to provide structured and guided work-based learning experiences outlined in students’ Training Plans. Site visits will be performed at the discretion of DHS either randomly or when DHS determines that such an action is needed. Based on previous on-site-reviews to schools, DHS estimates that an employer site visit may include review of records and questions for the supervisor, and will take five hours per employer.

  At this point, based on the few inspections conducted, the length of the site visits appears to be in the range of 1-2 hours rather than 5 hours. ICE has typically given two days’ notice by emailing the STEM OPT worker’s manager. We do not expect ICE to give notice if the site visit is based on a complaint. ICE’s SEVP officers have conducted the site visits thus far. Read more:

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

• 24Sep

  HR/Legal Alert – DHS Moves Closer to Launching its H-1B Cap Registration System

  H-1B Visa News Comments Off on HR/Legal Alert – DHS Moves Closer to Launching its H-1B Cap Registration System

  The Department of Homeland Security (“DHS”) recently moved closer to launching its  new electronic registration system for allocating the annual limit on H-1B cap cases. The current procedures require employers to prepare and submit fully documented cases without any assurance that those cases will be selected within the H-1B cap. DHS then returns the many H-1B cases that are not selected. This burdensome procedure may finally be coming to an end. DHS is in the midst of making the following bold changes to the H-1B cap selection procedures. Read details here.

  If you have questions in connection with any of the foregoing, please do not hesitate to contact Anthony F. Siliato or Scott R. Malyk.

• 22Aug

  Immigration Law Partners Recognized for Inclusion in Best Lawyers 2020

  Firm News Comments Off on Immigration Law Partners Recognized for Inclusion in Best Lawyers 2020

  Anthony Siliato and Scott Malyk were recognized by their peers for inclusion in The Best Lawyers in America© 2020 Edition, in the Immigration Law practice area. Since it was first published in 1983, Best Lawyers® has become universally regarded as the definitive guide to legal excellence.

  Best Lawyers lists are compiled based on an exhaustive peer-review evaluation. Almost 94,000 industry leading lawyers are eligible to vote (from around the world), and Best Lawyers has received more than 11 million evaluations on the legal abilities of other lawyers based on their specific practice areas around the world. For the 2020 Edition of The Best Lawyers in America©, 8.3 million votes were analyzed, which resulted in more than 62,000 leading lawyers being included in the new edition. Lawyers are not required or allowed to pay a fee to be listed; therefore inclusion in Best Lawyers is considered a singular honor. Corporate Counsel Magazine has called Best Lawyers “the most respected referral list of attorneys in practice.”

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