DHS Finalizes International Entrepreneur Rule

Posted in Department of Homeland Security, Immigration Law

20229_Carousel-InventionOn Jan. 17, 2017, the Department of Homeland Security (DHS) published its final rule to implement discretionary parole authority to increase, promote, and encourage entrepreneurship, innovation, and job creation in the United States. This final rule will add new regulatory provisions that will allow DHS to grant parole in certain circumstances and by discretion to entrepreneurs of start-up entities who are able to show through evidence the potential for business growth, job creation, and public benefit to the United States. Potential may be evidenced by the receipt of capital investment from U.S. investors or obtaining awards or grants from government entities. The criteria will be discussed in more detail below. If the parole is granted, the entrepreneur will be allowed a temporary stay of up to 30 months that may be extended for an additional 30 months. The final rule will be effective on July 16, 2017.

Requirements to qualify for parole for entrepreneurs:

  • Meet the definition of entrepreneur:  An entrepreneur is defined as an alien who possesses a substantial ownership interest in a start-up entity and is actively engaged in the operations of the entity, and who has the qualifications to perform such duties. A substantial ownership interest means possession of at least 10 percent of the start-up entity for the first parole application, and at least 5 percent ownership interest if applying for a renewal of the parole.  During the initial period of parole, the entrepreneur must maintain at least 5 percent ownership interest in the entity, and during the subsequent period of re-parole, may reduce the ownership interest, but must always maintain an ownership interest in the entity.
  • Entity must meet the definition of start-up entity:  A start-up entity is defined as an entity created within the five years immediately preceding the filing of the alien’s initial parole application. If the entity has received a grant, award, or investment, then it will be considered as recently formed if it was created within five years preceding the receipt of the above-mentioned items.
  • Definition of a government award or grant: This means an award or grant for economic development, research and development, or job creation that has been given by a U.S. federal, state, or local government entity.

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Important News for Israeli Investors and Entrepreneurs

Posted in Visas

israel flagIn much anticipated news for both the United States and Israeli companies and entrepreneurs, Israeli nationals will soon become eligible for the E-2 Treaty Investor visas. The Israeli authorities have announced that the procedures and rules for the B-5 investor visa for U.S. citizens are expected to be released in March 2017. One of the vital effects of the B-5 visa implementation and availability is that it will enable the reciprocal availability of the E-2 visas for Israeli citizens.

The E-2 Treaty Investor visa aims to provide foreign nationals and corporate entities with a path to invest in the U.S. economy through reciprocal treaties of commerce. Where available, this visa option allows investors and employees of the same nationality to live in the United States and work for the U.S. enterprise.  In addition to the requirement that the majority ownership of the enterprise must be held by nationals of the treaty country, E-2 visa requirements include a substantial investment into the U.S. enterprise, as well as the entity’s growth and expansion.

President Obama first signed the legislation adding Israel to the list of approximately 80 other countries eligible for E-2 treaty investor visas in 2012. However, the implementation of this law was on hold, awaiting Israel to likewise ratify the treaty serving as the basis of E-2 eligibility. The reciprocal terms and conditions included the availability of a reciprocal visa path for U.S. investors to Israel. On Aug. 13, 2014, the Israeli Knesset ratified the necessary legislation to enable E-2 visa availability to Israeli nationals. Subsequent to the ratification, the Israeli authorities took additional time to confirm the details of the legislation and its implementation.

With the recent announcement that the B-5 investor visa procedures and rules are anticipated to be released in March of this year, the much anticipated E-2 Treaty Investor visa availability is expected to be released around the same time. GT will continue to provide updates on this key issue as they become available and is available to answer any questions regarding E-2 visa eligibility.

DHS Extends TPS Status for Citizens of Yemen

Posted in Department of Homeland Security, Employment Authorization, Temporary Protected Status

YEMENBy notice published in the Federal Register on Jan. 4, 2017, the Department of Homeland Security (DHS) announced that it will extend the Temporary Protected Status (TPS) for citizens of the Republic of Yemen for another 18 months (to September 2018). This extension allows qualified citizens of the Republic of Yemen to continue to stay in the United States, obtain employment authorization, and defer deportation for this additional period. The decision by DHS was based on the determination that the continuing armed conflict and the extraordinary and temporary conditions in Yemen presents its citizens from returning in safety. DHS initially placed Yemen on the protected list in 2015 as a response to the civil war that caused a major humanitarian crisis.

Citizens of Yemen who meet certain requirements must apply with U.S. Citizenships and Immigration Services to obtain the TPS. Each applicant must undergo security checks before they are granted TPS.

Greenberg Traurig’s Laura Reiff Featured in Law360

Posted in E-Verify, Firm News

REIFFLIn this Law360 article, Greenberg Traurig Shareholder Laura Reiff  discusses immigration legislation and regulations to watch in 2017.  Reiff addresses the Legal Workforce Act, requiring employers to use E-Verify, the BRIDGE Act, and EB-5. To read the full article, click here.

U.S. Department of Justice Issues Final Rule for Enforcing Anti-Discrimination Provisions of the Immigration and Nationality Act

Posted in Immigration and Nationality Act

This week the U.S Department of Justice’s Civil Rights Division (DOJ) released a final rule implementing the anti-discrimination provisions of the Immigration and Nationality Act (INA) found at 8 U.S.C. 1324(b).  These INA provisions were originally enacted to ensure the rights of foreign nationals working for covered employers and have resulted in regulations still in force today. One such regulation includes the prohibition on requesting more or different documents – or rejecting valid documents – to evidence identity and U.S. work authorization for I-9 and E-Verify purposes, when such requests are made with the purpose or intent of discriminating against an individual. DOJ received 47 comments in response to the rule before it became final. All comments received, DOJ’s responses to those comments, and the text of the final rule are available in the Federal Register, Vol. 81, No. 243, Page 91768

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The Potential for Unprecedented Use of the Congressional Review Act to Roll Back Obama Administration Rules

Posted in GT Alert

Much attention has been focused of late on the impact that the incoming president will have on President Obama’s executive orders and rulemaking relative to a great number of issues where the president determined that he could not work with the Republican Congress. President-elect Trump has repeatedly promised to ’roll back’ virtually all of the rules and regulations promulgated by the current President. While the new president can rescind executive orders within minutes of the inaugural ceremony, any effort to roll back a final rule is ordinarily subject to the same process that those rules were subject to when created, which includes notice, a period for public comment and litigation. This process can take years. Examples of rules that may be ripe for scrutiny include virtually all rulemaking related to Clean Power, Waters of the U.S., Labor and Employment, and the Affordable Care Act.

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January 2017 – Monthly AILA Check-In with Charlie Oppenheim

Posted in Check-In with Charlie Oppenheim, EB-3, U.S. Department of State ("DOS")

VisaAfter the release of the January Visa Bulletin, the chief of the Visa Control and Reporting Division for the U.S. Department of States (DOS), Mr. Charlie Oppenheim, provided his predictions on future movement in the employment-based green card categories. His predictions, made to the American Immigration Lawyers Association (AILA), are summarized below:

EB-1 China and India

In the January 2017 Bulletin, final action dates for all chargeability areas, including China and India, will remain current, however, based on current demand, Charlie predicts that a final action cutoff date will need to be imposed for EB-1 China and EB-1 India later this fiscal year.

EB-2

The EB-2 final action dates for all chargeability areas except those listed, El Salvador, Guatemala, Honduras, Mexico and the Philippines remain current in the January Bulletin. The final action cutoff dates for EB-2 China and India have progressed to Oct. 15, 2012 and April 15, 2008, respectively.

Charlie expects to impose a final action cutoff date for EB-2 Worldwide at some point due to the sizable demand across all chargeability areas. EB-2 China has already exceeded its quarterly limit, so any major forward movement for this category is unlikely. Charlie remains hopeful that EB-2 India will recover to the Nov. 22, 2008, final action date from May 2015, but EB-3 upgrades may set-back such recovery.

EB-3

Demand in the Worldwide EB-3 category has dropped, enabling Charlie to advance the category in January across all chargeability areas. Charlie predicts that when EB-2 Worldwide becomes subject to a final action cutoff date, we may see “an EB-3 downgrade phenomenon” which only numbers for China have seen until this point.

EB-5 China

Charlie expects continued advancement for the EB-5 category for China, but the progress will be slow, up to only a few weeks at a time. The demand for EB-5 Worldwide is very high. In the past, China captured approximately 80 percent of the available numbers for this category, whereas last year, China’s share of EB-5 Worldwide decreased to 75 percent.

REMINDER: New USCIS Fees go into Effect Today

Posted in USCIS

shutterstock_396494140The new U.S. Citizenship and Immigration Services (USCIS) Fee Schedule, which was first proposed May 4, 2016, and subsequently adopted as final Oct. 24, 2016, has gone into effect. Filing fees for various types of immigrant and nonimmigrant petitions and applications are increasing by an average of 21 percent; until this change, fees had not increased since November 2010. New cases that fail to include filing fee checks reflecting the increased fee schedule will be rejected by USCIS. For more information, please find our previous blog published on Inside Business Immigration here and the official new fee schedule available here.

Greenberg Traurig’s Business Immigration and Compliance Team Wishes Our Clients and Colleagues Happy Holidays and a Happy New Year

Posted in Firm News

Greenberg Traurig’s Business Immigration and Compliance team thanks our clients, colleagues and fellow industry members for a successful 2016 and look forward to the new year ahead. Happy Holidays and a Happy New Year.

Reminder: Many USCIS Filing Fees Will Increase on December 23, 2016

Posted in Department of Homeland Security, EB-5 Program, EB-5 Regional Center, USCIS

On May 4, 2016, the Department of Homeland Security (DHS) published a notice of proposed rulemaking in the Federal Register inviting public comment on a proposed increase in the U.S. Citizenship and Immigration Services (USCIS) Fee Schedule, which we previously wrote about. This proposed rule was subsequently adopted as final on Oct. 24, 2016, and is set to go into effect later this month.

On Dec. 23, 2016, the fees will increase for many applications and petitions filed with USCIS. The following is an overview of the fee increases for common filings:

Imm blogUSCIS fees will increase by an average of 21 percent. However, as evidenced by the above chart, petitions and applications under the EB-5 program are subject to the highest fee increases, with hikes of more than 100 percent for Forms I-526 and I-924 as well as the introduction of a new fee of $3,035 for filing the Form I-924A. EB-5 regional centers are required to file a Form I-924A annually (this year, by Dec. 29, 2016) or on request to demonstrate continued eligibility for their designation and there was previously no fee associated with this filing.

USCIS has not adjusted its filing fee schedule since Nov. 2010. As it is funded entirely by application and petition fees, the Service maintains that this significant increase in filing fees is necessary in order to pay for the higher cost of case processing, fraud detection, national security and customer service. It is our hope that with these improvements will also come faster processing times.

We recommend submitting all imminent filings to USCIS well in advance of this scheduled fee increase; all petitions must be sent out by Dec. 21, 2016 as Dec. 22, 2016 is the last date that USCIS will accept the current filing fees. Starting Dec. 23, 2016, USCIS will reject cases that do not include filing fee checks reflecting the increased fee schedule.

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