Search results for: Employment Visas

The Department of State (DOS) recently released a cable summarizing USCIS policy guidance on H-1B visa petitions that involve a change in place of employment. As we reported previously, a Restrictive AAO Decision held that a change in the place of employment of a beneficiary to a geographical area requiring a new LCA may affect eligibility for H-1B status, and further, denotes a material change under the Code of Federal Regulations. USCIS later issued a Policy Memorandum in July 21, 2015, confirming the need for both a new LCA and an H-1B Amendment Petition, stating that the employee can begin working at the new location as soon as the petition is filed with USCIS.  This memorandum also sets forth the criteria for when an H-1B amendment is required. Prior to this precedent AAO decision and USCIS Policy Memorandum, if there was a change in the area of employment for an H-1B worker,  it was acceptable for an employer to post a new LCA and record the change of are of intended employment, without having to file an H-1B amendment petition. Since this AAO decision, employers are required to file both a new LCA with DOL and an H-1B amendment with USCIS, to reflect these changes.

The DOS cable advises consular officers on how to handle H-1B visa applications where an H-1B amendment may have been required. The cable also discusses when an amended or new petition is required. Before any H-1B worker makes a visa application at a U.S. Consulate abroad, employers should confirm that the place(s) of employment is (are) accurately reflected on the H-1B worker’s filing documents.

The UK Home Office just announced changes to simplify the application process for Chinese nationals applying for UK business visas. This change follows intense pressure from the UK business community who want to encourage Chinese investment in the United Kingdom.

Chinese nationals may now apply for a UK business visa by completing an application form, providing an invitation letter from a UK entity, and a company letter confirming employment in China. It should be noted that only members of the China-Britain Business Council and the British Chamber of Commerce in China, as well as members of the Confederation of British Industry (CBI) and companies referred by the UK Trade & Investment (UKTI) are eligible to benefit from the new rules.

Continue Reading Getting UK Business Visas for Chinese Nationals Just got Easier

The Department of State (“DOS”) released the March 2014 Visa Bulletin, which continues to show forward movement for Worldwide and Chinese EB-3 employment-based categories. Specifically, the Worldwide category has moved 4.5 years over the last year which is a welcomed development. Continued forward EB-3 Worldwide movement is not expected in the next few months and retrogression is likely. Unfortunately, for Indian nationals there was only a very slight movement forward of 2 weeks for the EB-3 category and no movement for EB-2 from the February 2014 to March 2014 Visa Bulletin.

In the next few months, EB-3 China and Mexico will likely continue to match the Worldwide dates. No forward movement is estimated for EB-3 India, and EB-3 Philippines is projected to have slight movement forward of 3-6 weeks. EB-3 Worldwide, China, and Mexico applicants with a current priority date should consider filing their Adjustment of Status applicants now as EB-3 priority dates may retrogress in the next few months.

For the EB-2 category, the Department of State continues to predict no forward movement for India EB-2, slight movement of 3-5 weeks for EB-2 China, and Worldwide will remain current. EB-1 is also expected to remain current.

We will continue to monitor Visa Bulletin movement on this blog and will provide updates when the April Visa Bulletin is released (in approximately 3 weeks).

As immigration reform moved toward approval by the Senate Judiciary Committee on May 21, 2013, another stand-alone bill (H.R. 2131) has been introduced by Rep. Darrell Issa (R-Calif.) in the House.  Mr. Issa is the chairman of the House Oversight Committee but, more importantly to the immigration reform debate, he sits on the House Judiciary Committee.  Mr. Issa’s “Skills Visa Act” includes, among other things, provisions that will impact the EB-5 program, and also proposes two other programs that would give entrepreneurs alternatives for pursuing permanent residence. 

The EB-5 Changes Include:

  • Permanent Reauthorization: The bill would make the program permanent. It is currently set to sunset in 2015 absent Congressional reauthorization.
  • Minimum investment: The minimum investment amounts would be increased to reflect the change in the value of the dollar from the program’s creation in 1990 to the present day and would be prospectively indexed for future inflation. This could increase the base amounts of investment by almost $300,000 initially.
  • Job Creation: USCIS currently requires that the job creation requirement be met two years after the grant of a conditional green card when an investor seeks the removal of the conditional status of their permanent residence or “at a reasonable time thereafter.”  The bill states that the required jobs must actually exist at the time that the conditional status is removed and allows USCIS to extend the conditional status for an extra year in order to give an investor additional time to create the required jobs.
  • Targeted Employment Areas: In an effort to prevent the “gerrymandering” of low-unemployment areas into targeted employment areas, the bill provides that 1) the relevant “targeted employment area” must fit entirely within a geographical unit that the U.S. Department of Labor has determined has an unemployment rate of at least 150 percent of the national rate; 2) the U.S. Secretary of Labor shall set forth a uniform methodology for determining whether an area qualifies as having unemployment of at least 150 percent of the national rate; and 3) USCIS will not be bound by the decision of any other entity that a particular area has experienced high unemployment. This provision could hamper TEA designations.
  • Fraud Deterrence: In order to deter fraud, the bill bars persons from involvement in regional centers who 1) have committed crimes that are considered aggravated felonies under the Immigration and Nationality Act (INA); 2) would be inadmissible pursuant to the security and terrorism-related grounds of inadmissibility (if they were aliens seeking admission); or 3) have been convicted of criminal securities fraud or have been found to have engaged in civil securities fraud. Additionally, the section clarifies and expands the U.S. Department of Homeland Security’s (DHS) authority to perform criminal record and background checks on regional center managers, owners, administrators, promoters, and others who have significant responsibility in the regional center. DHS may terminate regional centers from participation in the investor visa program if prohibited persons are involved in the centers or if the centers provide false information in the context of background checks.
  • Securities Compliance: The bill requires regional centers to certify compliance with Federal securities laws. USCIS could terminate regional centers for failure to make the necessary certifications or for securities law violations.

Changes to Permanent Residence Options:

As noted above, the bill creates two new permanent residence options for foreign entrepreneurs. 

  • The first program is for venture capital-backed entrepreneurs who attract investment of at least $500,000 from a qualified venture-capital operating company or at least $100,000 from a qualified angel investor.   The entrepreneur would be given conditional permanent residence for up to three years to create jobs for at least five U.S. workers and two years to raise an additional $1,000,000 in capital or generate not less than $1,000,000 in revenue.
  • The second program is for foreign entrepreneurs who have been operating businesses in the U.S. under the E-2 treaty investor non-immigrant visa program.   This program would make permanent residence available to E-2 treaty investors who have maintained their status for a minimum of 10 years and have created jobs for at least five U.S. workers for a minimum of 10 years.

The global demand for non-immigrant U.S. visas skyrocketed during the COVID-19 health emergency, when travel was halted and U.S. embassies and consulates closed. Even after reopening, U.S. embassies and consulates are still reporting significant delays in many locations including Brazil, India, Mexico, and others. More recently, the U.S. State Department announced that new processing initiatives, including Saturday visa appointments at some consulates in India, and more visa interview waivers, have addressed these delays. While the wait times at many consulates have dropped significantly, the wait time is still long and continues to affect business and leisure travelers. The most severe wait times often impact B-1 business and visitor visas, which the State Department has determined to be “lower priority” than other types of visas such as student or employment visas, such as the H-1B, L-1, and so forth. For example, the current wait time for a B-1/B-2 visa in Mumbai is 707 days; in Chennai, it’s 640 days. The wait period for H, L, O, P, Q visas is 69 days in Mumbai and 224 days in Chennai. Applicants can track general visa wait times on the State Department website.

Immigrant visas, otherwise called “green cards,” were also severely impacted by COVID-19 shutdowns but still remain at an all-time high, which is keeping families apart and businesspeople outside the United States. According to the State Department’s “National Visa Center (NVC) Immigrant Visa Backlog Report,” more than 400,000 cases are pending at the National Visa Center waiting for immigrant visa interviews at a U.S. consulate.

In a recent bipartisan letter to the State Department, U.S. Sens. Amy Klobuchar, Dan Sullivan, Jacky Rosen, John Cornyn, Cory A. Booker, and Jerry Moran stressed how these delays are severely impacting U.S. businesses and universities in the United States. This also has a financial impact on the nation. While the letter acknowledges the administration’s effort to decrease these wait times, it still urges the State Department to continue to take important steps to decrease the wait times even further and also requests that the State Department respond to these concerns by March 10, 2023.

Late on April 20, President Trump tweeted his intention to issue an Executive Order (EO) that “temporarily” suspends immigration into the United States. The proposed suspension may be issued in two EOs that address the following:

  • 60-day travel ban EO: The first EO may consist of a 60-day ban on the issuance of immigrant visas, with carveouts for immigrant visas for immediate family members of U.S. citizens. This 60-day travel ban EO may not address the issuance of non-immigrant visas, including temporary employment visas
  • Non-immigrant visa EO: The second EO may address the issuance of non-immigrant visas. The specific duration of this travel ban is not yet known, but it may be in effect for a 90-day period.

The EOs could follow the same framework as the previous travel bans issued by President Trump, including iterations of the 2017 travel ban, and the recent travel bans concerning countries that are hit hardest by Coronavirus Disease 2019 (COVID-19), such as China and the Schengen area countries. The proposed EOs could run for an initial validity period — potentially 60 to 90 days — and may bar the admission of all foreign nationals seeking entry into the United States, while providing certain exceptions to lawful permanent residents (green card holders), and immediate family members of U.S. citizens who also possess immigrant visas.

President Trump’s authority to issue an immigration travel ban is outlined in Section 212(f) of the Immigration and Nationality Act, which states that “whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he deems necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.”

Though the president does not have absolute authority to ban all foreign national travelers into the United States for any reason, the United States Supreme Court has recognized the president’s authority to suspend immigration into the United States for a class of aliens, or all aliens for that matter, if the president finds that their entry into the United States would be detrimental to the United States. While little is known about the substance and scope of the proposed EOs that President Trump will issue, or when the EOs will be issued, his authority to issue the travel ban may be upheld on grounds of public health and protection of the U.S. economy and American workforce from rising unemployment.

The following questions are outstanding at this time:

  • How long will the EOs remain in effect, once signed? Based on prior travel bans, the proposed EOs could have an initial effective period of 60 to 90 days.
  • Who will be affected by the proposed EOs? The proposed EOs may match previous travel ban EOs; U.S. citizens and lawful permanent residents (green card holders) may be exempted from the proposed EOs and allowed to enter the United States. However, the proposed EOs could impose a broader travel restriction for foreign nationals who hold temporary non-immigrant visas, such as B-1, H-1B, or L-1 visas, and foreign nationals who hold immigrant visas. Foreign nationals outside the United States may be required to remain abroad until the travel ban expires or is lifted.
  • Will the proposed EOs affect foreign nationals who are already physically in the United States on non-immigrant visas? With President Trump’s previous travel ban EOs, foreign nationals who were already in the United States at the time the travel bans were issued were not required to leave the United States or cease working, if they were on a temporary employment visa. The proposed EOs may follow this same framework by allowing foreign nationals in the United States to remain, and importantly, continue working if on a temporary employment visa. There is some speculation that H-1B dependent employers will need to re-certify that this H-1B worker will not displace a U.S. worker.
  • Will the proposed EOs affect immigration filings pending with the U.S. Department of Labor (PERM/labor certifications) or the U.S. Citizenship and Immigration Services (USCIS)? At this time, no guidance is available as to whether the DOL or USCIS will continue processing pending cases. The DOL and USCIS may increase audits or requests for evidence concerning those applications that involve green card sponsorship as a measure to protect the U.S. economy and the American workforce.
  • Will the EOs affect foreign-national students applying for F-1 student visas? The EOs may have an impact on foreign nationals applying for F-1 student visas. Specifically, foreign-national students applying for F-1 student visas to enter the United States to attend university may experience delays to secure an F-1 visa appointment at U.S. Embassies and Consulates due to appointment backlogs created by COVID-19. Universities in the United States may decide to implement remote study options or delay the start of the Fall 2020 semester until later in the academic year.

President Trump may issue and sign the proposed EOs this week. Companies may consider continuing to prepare and file temporary employment visa extension cases with USCIS. Both the DOL and USCIS have indicated over the last several weeks that their offices will remain open and process cases as normal despite COVID-19.

U.S. Embassies and Consulates may remain closed or suspend visa appointments for a temporary period — potentially an initial period of 60 to 90 days — once the proposed EOs are issued and signed by President Trump.

As we reported earlier this month, South Africa instituted some important changes to its immigration laws this year. South Africa has utilized the familiar “carrot and stick” approach in its immigration overhaul: while it has extended the validity of its major employment visas, South Africa has also imposed additional immigration compliance requirements and penalties on both employers and visa holders. Global employers should particularly be aware of the following:

New requirements for all sponsoring employers. South Africa now requires all companies that employ visa holders to maintain the following on file: a certified copy of the foreigner’s passport; a copy of the visa or permanent residency permit; proof of the capacity in which the foreigner is or was employed; a copy of the foreigner’s IRP5 form or certificate of earnings and job description, respectively.

Continue Reading South Africa Tightens its Immigration Laws

On October 1, 2014, the Minister of Home Affairs revealed the new Draft Work Permit Policy which offers new categories of work permits. The goal of the new work permit policy is to restore economic health to Bermuda and create job opportunities for local Bermudians. Minister of Home Affairs intends the new policy to come into effect on December 1, 2014, and in the meantime, is open to receiving feedback regarding the new policy before it is finalized.

Continue Reading Bermuda Reveals New Draft Work Permit Policy

with Nataliya Binshteyn

According to the White House, President Obama will unveil his plan for comprehensive immigration reform during a visit to Nevada on Tuesday, January 29. Calling reform “a top priority” of his second term, the president will call for legislation that creates a path to citizenship for the millions of undocumented immigrants currently living in the United States.

According to House Democratic Caucus Chair Xavier Becerra (D-California), President Obama’s recent meeting with senior members of the Congressional Hispanic Caucus (CHC) underscores “the great sense of urgency” around this issue, described as the president’s “top legislative priority.” The CHC’s recently released nine-point plan for comprehensive reform includes a pathway to permanent residency and eventual citizenship for undocumented immigrants, new employment visas for skilled workers, and the creation of an employment verification system for workplace compliance with immigration law. The proposal is expected to serve as a blueprint for the president’s plan, which does not appear to contain provisions for a temporary guest worker program.

According to reports, the president’s announcement will not include the bipartisan Senate working group proposals also scheduled for release next week. One of the Congressional leaders spearheading this effort, Senator Marco Rubio (R-Florida), has also proposed a plan that contemplates citizenship for undocumented immigrants currently living in the United States. Senator Rubio’s proposal, which deviates from the Republican party’s long-held position that offering citizenship to undocumented immigrants could amount to amnesty, includes a series of steps for obtaining legal status, such as fines, back taxes, background checks, and a lengthy probationary period. For its part, the White House stated that it sees a “new willingness” to effect bipartisan progress on comprehensive immigration reform and hopes that the “dynamic” of partisan gridlock “has changed.”

The registration period for the fiscal year (FY) 2025 H-1B cap petitions opened at noon ET March 6, 2024, and will continue to run through noon ET March 22, 2024. Employers seeking to file an H-1B cap-subject petition must electronically register during this period using a U.S. Citizenship and Immigration Services (USCIS) online account. The registration process includes basic information about the prospective petitioner and each beneficiary along with a $10 registration fee for each beneficiary. The registration process for FY 2025 is governed by the final rule published Feb. 2, 2024, which took effect March 4, 2024.

The final rule includes a new beneficiary-centric selection process to ensure all beneficiaries have an equal chance of selection. Under the new process, registrations will be selected by unique beneficiary rather than by registration. As part of the registration process this year, each beneficiary must provide a valid passport that matches the registration details. See our February 2024 blog post for additional information on the new passport expiration requirements.

As with prior years, it is expected that USCIS will receive enough registrations during the registration period to meet the 65,000 H-1B cap, with an additional 20,000 visas available for those who possess a U.S. master’s degree or higher from an accredited U.S. institution. If the cap is reached, USCIS will conduct a random lottery of the registrations it receives following the close of the registration period. Petitioners will receive an electronic notification if their registration has been selected and can move forward with filing the H-1B petition for only those beneficiaries named on the selection notice. 

H-1B cap-subject petitions for those registrations that are selected in the initial drawing can be filed between April 1, 2024, and June 30, 2024. USCIS clarifies in the final rule that requesting an H-1B cap employment start date after Oct. 1 of the relevant fiscal year is permissible. Petitioners that have received H-1B selections will be able to use their USCIS organizational account to electronically file any H-1B petitions that were selected in the process, or they can file a traditional paper filing of the H-1B petition that is sent to USCIS by mail or courier.