Corporate Immigration Law News

• 11Jun

  New Zealand Nationals Are Now Eligible for Treaty Investor and Treaty Trader Visas

  Uncategorized Comments Off on New Zealand Nationals Are Now Eligible for Treaty Investor and Treaty Trader Visas

  Certain New Zealand nationals can now request a change of status to the E-1 nonimmigrant trader classification and the E-2 nonimmigrant investor classification under Public Law 115-226. Beginning June 10, eligible New Zealand nationals already in the United States in a lawful nonimmigrant status can file Form I-129, Petition for a Nonimmigrant Worker, to request a change of status to E-1 or E-2 classification, or a qualifying employer can file Form I-129 on their behalf. Spouses and unmarried children under 21 years of age of E-1 and E-2 nonimmigrants, and employees who are already in the United States, may also seek to change status to E-1 or E-2 classification as dependents by filing Form I-539, Application to Extend/Change Nonimmigrant Status.

  Any Form I-129 and Form I-539 for a New Zealand national requesting a change of status to E-1 or E-2 classification filed prior to June 10, 2019, will be rejected, but may be refiled, together with the required fee, on or after June 10.

  The E-1 and E-2 nonimmigrant classifications are open to citizens of countries with which the United States has a treaty of commerce and navigation or similar agreement, and in certain other cases, such as here, where Congress has enacted legislation. E-1 status allows citizens of certain countries to be admitted to the United States solely to engage in international trade on their own behalf. E-1 status is also available to certain employees of such traders or qualifying organizations. E-2 status allows citizens of certain countries to be admitted to the United States when they are investing substantial capital in a U.S. business. E-2 status is also available to certain employees of such investors or qualifying organizations.

  For more on the E-1 and E-2 classifications, see our E-1 Treaty Traders page and E-2 Treaty Investors page.

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

• 03May

  HR Tip of the Week: Consequences of Unlawful Employment on Foreign National (F-1) Students

  Uncategorized Comments Off on HR Tip of the Week: Consequences of Unlawful Employment on Foreign National (F-1) Students

  Throughout the United States, the months of May and June usually mark the completion of the Spring semester for college and university students and the beginning of summer vacation. It is a time when many students seek employment opportunities to gain additional funding for the school year as well as experience in the real-world. Unfortunately, such opportunities can also present significant legal challenges for F-1 students who are not authorized to work in the United States.

  The priorities of the agencies involved in administering and managing immigration benefits (U.S. Citizenship & Immigration Services (USCIS), U.S. Immigration & Customs Enforcement (ICE), U.S. Customs & Border Protection (CBP), and U.S. Department of State (DHS)) have changed and there is heightened emphasis on enforcement. An issue gaining increased attention and enforcement is unauthorized employment, where a foreign national is lawfully admitted in a nonimmigrant classification, but violates the terms of his or her status by working. One of the visa classifications we see experiencing this issue most often are individuals admitted in F-1 (student) status with a grant of optional practical training (OPT) or curricular practical training (CPT). Read full article 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.

• 25Mar

  Join Us At New Jersey’s Top Advanced Immigration Law Event On April 17

  Uncategorized Comments Off on Join Us At New Jersey’s Top Advanced Immigration Law Event On April 17

  Each year, NJICLE’s comprehensive Immigration Conference provides an in-depth exploration of the most pressing concerns confronted by Immigration Law Attorneys, Employment Lawyers, Human Resource Representatives and In-House Counsel, and offers effective strategies for dealing with those concerns.

  This Conference presents a rare opportunity to hear directly from heads of the governmental agencies (Ombudsmen of USCIS, CBP, ICE, CIS, DOS) who directly affect immigration/labor policy and procedure. You won’t find a better opportunity to catch up on all of the latest developments – this one-day program is packed with information that will help you navigate changes in the law and meet current challenges.

  This year we will be reviewing recent and significant changes to US immigration policies and how they will shape America’s immigration policy going forward. Representatives from various key governmental agencies responsible for implementing these changes, together with prominent attorneys who are involved with organizations that have been spearheading many of the efforts to address issues under the new administration, are expected to attend. Don’t miss out on this essential advanced annual immigration conference – make your plans to attend today. Register here.

• 22Mar

  HR/Legal Alert: USCIS Announces Premium Processing Eligibility for Specific Types of Fiscal Year 2020 H-1B Cap Petition Filings

  H-1B Visa News Comments Off on HR/Legal Alert: USCIS Announces Premium Processing Eligibility for Specific Types of Fiscal Year 2020 H-1B Cap Petition Filings

  On March 19, 2019, U.S. Citizenship and Immigration Services (“USCIS”) announced that it will accept premium processing requests (i.e., Form I-907, Request for Premium Processing Service + an additional $1,410 USCIS filing fee) for fiscal year (“FY”) 2020 H-1B cap-subject petitions filed on April 1-5, 2019, but only if the petition meets two (2) conditions. Specifically, the sponsoring employer must (i) request a “change of status” on the Form I-129 [meaning the H-1B candidate must be physically present in the U.S. at the time of filing] and (ii) file the Form I-129 concurrently with the Form I-907 [meaning later requests for conversions to premium processing will not be accepted until June 2019]. For additional details click here.

  If you have questions in connection with any of the foregoing, please contact Anthony F. Siliato and Scott R. Malyk of our firm’s Immigration Law Group.

• 14Mar

  Highly Anticipated H-1B Cap Season Is Closer Than You Think

  H-1B Visa News Comments Off on Highly Anticipated H-1B Cap Season Is Closer Than You Think

  This is a reminder to all U.S. employers of the rapidly approaching April 2019 deadline for the filing of H-1B cap cases for Fiscal Year 2020. USCIS will start accepting cap-subject petitions on Monday, April 1, 2019.

  Given continued pent-up demand, we fully expect the H-1B cap to be reached during the first week of April.  As usual, USCIS will continue to accept petitions during the first five (5) business days; i.e., through Friday April 5, 2019.  As such, we strongly encourage you to identify any employees who may require H-1B sponsorship and contact us as soon as possible to begin preparing your H-1B petitions for a timely filing.

  Assess Your Cap-Subject H-1B Needs:

  H-1B visas are available for specialty (professional) occupations requiring at least the attainment of a bachelor’s degree or its equivalent in a relevant discipline. For current or prospective employees, U.S.- based employers should take the time to consider who the Company may need to sponsor for an H-1B for Fiscal Year 2020.

  Here are some of the most common candidates for an H-1B under the annual cap:

  • F-1 visa holders (student interns / recent graduates) who are working for you pursuant to an Employment Authorization Document issued in connection with an approved period of post-grad Optional Practical Training (OPT);

  • F-1 visa holders (student interns) who are working for you while in school pursuant to university-approved Curricular Practical Training (CPT);

  • J-1 visa holders (interns/trainees) whose training programs will expire and who will need a change their status from J-1 to H-1B in order to continue working for you;

  • TN employees (Canadian and/or Mexican NAFTA professionals) who may desire an H-1B if applying for adjustment of status to that of a lawful permanent resident;

  • L-1B visa holders (intra-company transferees with specialized knowledge) approaching the end of their initial 3 years of L-1B eligibility who may need to switch to an H-1B to gain an additional year of work authorization and for whom a change of status is a necessary component to planning your long-term strategy of pursuing lawful permanent residence for that employee;

  • O-1 visa holders who are coming up for expiration within the next year as O-1s are renewable in only 1 year increments (as compared to a 3 year period for an approved H-1B); and

  • Potential candidates who are living and working abroad and have not been previously counted against the H-1B cap.

  PLEASE NOTE: the H-1B cap applies only to “new” H-1B petitions. As such, current H-1B employees seeking to file an extension of stay or existing H-1B workers for whom you may desire to file an H-1B transfer petition are not subject to the H-1B cap.

  The Importance of Early Preparation:

  As you may know, as a result of the Trump Administration’s Buy American, Hire American (BAHA) Executive Order and related policies, H-1B petitions are now facing a heightened level of scrutiny leading to a significant increase in the number of Requests for Further Evidence (RFE) and even denials.  As such, gathering the necessary supporting documentation and preparing the H-1B visa petition are much more labor intensive than before.  Early preparation is therefore essential.

  If you have any questions about the H-1B visa cap, or would like to discuss appropriate alternatives to the H-1B category, please do not hesitate to contact Anthony F. Siliato or Scott R. Malyk.

• 13Mar

  USCIS Resumes Premium Processing for All H-1B Petitions

  H-1B Visa News Comments Off on USCIS Resumes Premium Processing for All H-1B Petitions

  

  USCIS announced yesterday that it will resume premium processing on Tuesday, March 12, for all H-1B petitions.

  When an H-1B petitioner requests the premium (or expedited) processing service by filing a Form I-907 and paying an additional USCIS filing fee of $1,410, USCIS will guarantee an adjudication (either an approval or the issuance of a request for additional evidence) within 15 calendar days of the filing date.  A request for premium processing can be done in conjunction with the initial filing of the H-1B petition or, alternatively, a pending case can be converted to premium processing to expedite its adjudication.  Likewise, if you have received a request for additional evidence (RFE) on a pending H-1B petition, you can include the request for conversion to premium processing with the RFE response so that the case may be adjudicated within 15 calendar days from the Service’s receipt of the RFE response.

  While USCIS’ announcement indicates that all H-1B petitions are eligible for premium processing, it is not yet clear whether or not H-1B petitions filed in April under this year’s cap are eligible.  Clarification should come shortly in this regard.

  If the USCIS does not take adjudicative action within the 15 calendar day processing time, upon request, the Service will refund the petitioner’s premium processing service fee and will continue with expedited processing of the petition.

  For additional information on the resumption of premium processing click here to access the USCIS website.

  If you have questions in connection with any of the foregoing, please contact Anthony F. Siliato and Scott R. Malyk of our firm’s Immigration Law Group.

• 05Mar

  Scott Malyk Speaks to NJBIZ on Employer Audits by USCIS FDNS in Connection with H-1B Visa Filings

  H-1B Visa News Comments Off on Scott Malyk Speaks to NJBIZ on Employer Audits by USCIS FDNS in Connection with H-1B Visa Filings

  A federal judge in Newark is presiding over a lawsuit brought by employers against the federal government over H-1B visas

  A technology business association is fighting a legal battle in Newark, New Jersey against the federal government over the bureaucracy’s handling of H-1B, or specialty occupation, visas.

  The Small and Medium Enterprise Consortium is accusing the government of changing its requirements to prove an employee-employer relationship, therefore making initial H-1B visas or visa extension much harder than before.  (Read full text of the article here.)

  If you have questions in connection with any of the foregoing, please contact Anthony F. Siliato and Scott R. Malyk of our firm’s Immigration Law Group.

• 27Feb

  HR/LEGAL ALERT: H4 Spouses May Lose Employment Authorization – Will This Affect Any Of Your Employees?

  H-1B Visa News Comments Off on HR/LEGAL ALERT: H4 Spouses May Lose Employment Authorization – Will This Affect Any Of Your Employees?

  On February 25, 2015, under the Obama Administration, U.S. Department of Homeland Security (“DHS”) published a final rule extending employment authorization to certain H-4 dependent spouses of H-1B nonimmigrants who were seeking lawful permanent resident status based on their employment in the United States. Currently, it is estimated that approximately 91,000 foreign nationals are employed in the United States with H-4 Employment Authorization Documents (“EADs”).

  On February 20, 2019, DHS moved forward with its efforts to revoke employment authorization for such H-4 dependent spouses by sending a proposed rule to eliminate eligibility for H-4 dependent spouse employment to the Office of Management and Budget (“OMB”) for review. It should be noted that the details of the proposed rule have not yet been published so we do not yet know the specifics relating to several key provisions, including the effective date of the rule and whether there will be a grandfathering clause (that will prohibit first time H-4 EAD applications, but will continue to grant extensions of work authorization to H-4 spouses who already have EADs). Read more:

  If you have questions in connection with any of the foregoing, please contact Anthony F. Siliato and Scott R. Malyk of our firm’s Immigration Law Group.

• 27Feb

  HR Tip of the Week: Be Proactive With Tracking I-94 Expiration Dates

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  Be Proactive In Tracking Form I-94 Expiration Dates For Each Of Your Foreign National Employees

  Except for U.S. Citizens and green card holders, all foreign nationals who enter the United States are issued a new Form I-94 Arrival/Departure record (I-94) upon every entry. In 2013, U.S. Customs and Border Protection (CBP) chose to automate this process, and the automated process is, unfortunately, riddled with errors. For example, a CBP officer may enter an incorrect expiration date on the I-94, or input the wrong class of admission. Such errors, if undetected, may result in grave consequences for your employee and your organization and, thus, should be promptly identified and corrected. Read more:

• 20Feb

  USCIS Resumes Premium Processing for H-1B Petitions Filed on or before Dec. 21, 2018

  H-1B Visa News Comments Off on USCIS Resumes Premium Processing for H-1B Petitions Filed on or before Dec. 21, 2018

  USCIS will resume premium processing on Tuesday, Feb. 19, for all H-1B petitions filed on or before Dec. 21, 2018. If you received a transfer notice for a pending H-1B petition, and you are requesting premium processing service, you must submit the premium processing request to the service center now handling the petition. You should also include a copy of the transfer notice with your premium processing request to avoid possible delays associated with the receipt of your premium processing request. Additionally, if you received a request for evidence (RFE) for a pending petition, you should also include the RFE response with the premium processing request. If your petition was transferred and you send your premium processing request to the wrong center, USCIS will forward it to the petition’s current location. However, the premium processing clock will not start until the premium processing request has been received at the correct center.

  If you have questions in connection with any of the foregoing, please contact Anthony F. Siliato and Scott R. Malyk of our firm’s Immigration Law Group.

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