Search results for: economy

Reps. Maria Elvira Salazar (R-Fla.) and Veronica Escobar (D-Tex.) introduced a bipartisan immigration bill in the House of Representatives May 23. The bill, called the Dignity Act of 2023, would provide a path to citizenship for undocumented immigrants, update the legal immigration process, and establish “humanitarian campuses” on the U.S. border that would process asylum claims in 60 days.

The bill is one of a few bipartisan immigration proposals to be introduced in Congress since the Comprehensive Immigration Reform efforts of 2013. It is also the first bill to include a path to citizenship for adult undocumented immigrants and changes legal immigration pathways that have prevented many from acquiring visas.

This immigration bill, like other immigration legislation, will face challenges to passage. House Republican leaders have said that they will not consider any immigration legislation until a border security plan has passed both chambers.

Some of the Dignity Act’s key provisions aim to:

  • End illegal immigration: The bill would provide $25 billion to secure the border, expedite asylum processing, and implement mandatory E-Verify. This provision seeks to reduce the number of undocumented immigrants in the United States, thus reducing the strain on social services and increasing tax revenue.
  • Give dignity to undocumented immigrants: The bill would create a seven-year temporary legal status for undocumented immigrants who pass a background check and pay a fine. This would allow undocumented immigrants to work legally, travel freely, and access government services.
  • Protect American workers: The bill would create a fund to train and upskill American workers and would require immigrants to train or retrain at least one American worker, aiming to ensure that American workers have the skills they need to compete in the global economy.
  • Grow the economy: The bill would increase high-skilled visa opportunities, improve ports of entry, and support American agriculture, seeking to attract talented immigrants to the United States, boost trade, and create jobs.
  • Address legal immigration: The bill would change the legal immigration system, aiming to make it easier for businesses to hire the workers they need. It would add additional immigrant visa numbers and change the world-wide quota system, add a returning worker exception to increase H-2B numbers, and make changes to high-skilled immigration.

Reactions to the Dignity Act

The Dignity Act has received mixed reactions. Some immigration advocates have praised the bill as a major step forward, while others have criticized it for not going far enough. Immigration advocates who support the bill say that it is a comprehensive and fair proposal that would finally provide a path to citizenship for millions of undocumented immigrants. They also say that the bill would improve the legal immigration process and make it more efficient and fairer. Immigration advocates who criticize the bill say it is insufficient, noting it does not include enough protections for asylum-seekers and it does not do enough to address the root causes of migration.

Legislative Updates

  • Bicameral Bills Introduced: The Citizenship for Essential Workers Act has been introduced in both the House and Senate by lawmakers including Sen. Alex Padilla and Rep. Joaquin Castro. The bill aims to create a pathway to citizenship for over five million essential workers and their families who helped keep Americans safe, fed, and healthy during the COVID-19 pandemic.
  • Florida Immigration Bill – Florida passed a sweeping new immigration bill that, among other things, mandates the use of E-Verify beginning July 1, 2023 for all private employers of more than 25 employees. See GT Alert.
  • Afghan Humanitarian Parole – The Biden administration will permit tens of thousands of Afghans brought to the United States after the Taliban takeover to renew their work permits and humanitarian parole for two more years.

USCIS Publishes FAQs on Parole Programs for Cubans, Haitians, Venezuelans, and Nicaraguans

  • The FAQs clarify that supporters must hold lawful status in the United States; therefore, individuals with pending TPS or asylum applications are not eligible to be supporters.
  • Businesses and organizations may serve as supporters.
  • Cubans, Haitians, Venezuelans, and Nicaraguans who are permanent residents or dual nationals of any other country or hold refugee status in any other country are not eligible to be sponsored via this process.

COVID-19 Vaccine Requirement for International Travelers to U.S. Ending May 11

  • The White House announcement explained that the vaccination requirement is ending the same day that the COVID-19 public emergency ends. Beginning May 12, 2023, international travelers to the U.S. no longer need to provide proof that they are fully vaccinated against COVID-19. See GT Alert.
  • Similarly, the Department of Homeland Security said that beginning May 12, 2023, it will no longer require non-U.S. travelers entering the United States via land ports of entry and ferry terminals to be fully vaccinated against COVID-19.

USCIS Plans to Improve H-1B Electronic Registration Process with Upcoming ‘H-1B Modernization Rule’

  • In announcing the registration numbers for the fiscal year 2024 process, USCIS said it was investigating fraud in the FY 2023 and 2024 H-1B electronic registration processes.
  • USCIS reported 780,884 total registrations this year, which is a significant increase from last year’s 483,927 total registrations. This year, 110,791 registrations were selected. See blog post.
  • The agency confirmed its commitment to the H-1B program, citing its value to the immigration system and economy, and said it was “working on an upcoming H-1B modernization rule that will propose, among other improvements, bolstering the H-1B registration process to reduce the possibility of misuse and fraud in the H-1B registration system.”

On Nov. 2, former U.S. Ambassador to Portugal and Greenberg Traurig Senior Counsel Robert Sherman hosted Francisco Duarte Lopes, the current Portuguese Ambassador to the United States, at the firm’s Boston office. The meeting was attended by Kate Kalmykov, Co-Chair of the Immigration & Compliance Practice, members of the GT Boston office, and business leaders working in various sectors of the Portuguese economy including biotech, life sciences, technology, tourism, and education.

GT Immigration & Compliance attorneys represent investors from the United States and other countries seeking to participate in Portugal’s Golden Visa program, giving applicants the opportunity to obtain Portuguese permanent residency and, eventually, an EU passport. GT attorneys also provide tax counseling, estate planning, and strategic consultative advice, and they represent both individual and corporate clients interested in investing and developing business opportunities in Portugal.

Robert Sherman, Francisco Duarte Lopes, and Kate Kalmykov.
Robert Sherman, Francisco Duarte Lopes, and Kate Kalmykov.

On Jan. 21, 2022, U.S. Citizenship and Immigration Services (USCIS) updated the USCIS Policy Manual with additional guidance on how USCIS evaluates eligibility for the O-1A “extraordinary ability” visa category. O-1A visas are reserved for individuals with an extraordinary ability in the sciences, education, business, or athletics.

According to a recent White House press release, the O-1A policy update is a part of the Biden administration’s broader effort to “remove barriers to legal immigration” and “advance predictability and clarity for pathways for international STEM scholars, students, researchers, and experts to contribute to innovation and job creation efforts across America.” To this end, the USCIS’ latest O-1A policy update clarifies how the agency evaluates evidence submitted in support of an O-1A petition. Specifically, USCIS provides examples of evidence that may satisfy the O-1A evidentiary criteria, with a focus on O-1 petitions for individuals showcasing extraordinary ability within STEM fields.

Along with providing examples of evidence that may satisfy the O-1A criteria, USCIS’ policy update includes a discussion of considerations relevant to evaluating such evidence, with a focus on the highly technical nature of STEM fields and the complexity of the evidence often submitted. For example, the new guidance includes a discussion on considerations that can help determine whether a Ph.D. scholarship amounts to a nationally or internationally recognized award for excellence within the field of endeavor.

The update also emphasizes USCIS’ pre-existing policy of allowing petitioners to submit evidence that is of comparable significance in situations where a particular O-1A criterion does not readily apply to a specific occupation. To provide further clarification, USCIS’ update includes examples of comparable evidence that may be submitted in support of petitions for beneficiaries working in STEM fields.

Though this policy update is intended to “advance predictability and clarity” in the adjudication of STEM-related O-1A petitions, much will depend on how USCIS’ adjudicating officers apply the new policy update in practice.

On May 10, 2021, U.S. Citizenship and Immigration Services (USCIS) announced that the Department of Homeland Security (DHS) is withdrawing a 2018 notice of proposed rulemaking that proposed to remove the International Entrepreneur (IE) parole program from DHS regulations. The IE parole program provides a temporary immigration pathway for foreign entrepreneurs who have founded companies in the United States attracting venture capital or other funding that may benefit the nation by growing and adding jobs to the U.S. economy. First introduced in 2017, the IE parole program will continue to offer foreign entrepreneurs the opportunity to create and develop start-up entities with high growth potential in the United States. The IE parole program seeks to strengthen and grow the United States’ economy through increased capital spending, innovation, and job creation.

Under the IE program, parole may be granted to up to three entrepreneurs per start-up entity, as well as their spouses and children. Parole authorizes the beneficiary the right to enter and stay in the United States, for a specific period of time granted by DHS. The IE program is not a typical immigration pathway, but it fills a gap for entrepreneurs that more common immigration statuses do not satisfy. Entrepreneurs granted parole are eligible to work only for their start-up business, and their spouses may apply for employment authorization in the United States, though their children are not eligible for such authorization based on this parole.

International Entrepreneur parole program applicants must show that they:

  1. Possess a substantial ownership interest in a start-up entity created within the past five years in the United States that has substantial potential for rapid growth and job creation.
  2. Have a central and active role in the start-up entity such that they are well-positioned to substantially assist with the growth and success of the business.
  3. Will provide a significant public benefit to the United States based on their role as an entrepreneur of the start-up entity by showing that:
    • The start-up entity has received a significant investment of capital from certain qualified U.S. investors with established records of successful investments;
    • The start-up entity has received significant awards or grants for economic development, research and development, or job creation (or other types of grants or awards typically given to start-up entities) from federal, state, or local government entities that regularly provide such awards or grants to start-up entities; or
    • They partially meet either or both of the previous two requirements and provide additional reliable and compelling evidence of the start-up entity’s substantial potential for rapid growth and job creation.
  1. Otherwise merit a favorable exercise of discretion.

If the application is successful, DHS will grant the applicant parole for an initial period of 30 months, with an option for an additional 30-month extension if the business continues to grow.

The initial IE final rule was published on Jan. 17, 2017 as a way for the federal government to attract entrepreneurs to launch successful startups in the United States. It was initially scheduled to take effect on July 17, 2017. Prior to the effective date, DHS published a final rule to delay the implementation date of the IE final rule to March 14, 2018. However, in December 2017, a federal court vacated the delay, requiring USCIS to begin accepting international entrepreneur parole applications consistent with the IE final rule. Since then, the program has been up and running, and USCIS continues to accept and adjudicate applications consistent with existing DHS regulations.

This latest announcement from USCIS establishes the continuity of the International Entrepreneur parole program and the benefits it offers to foreign-born entrepreneurs and the U.S. economy as a whole.

On Dec. 1, 2020, the United States District Court for the Northern District of California granted an order for partial summary judgment on behalf of the plaintiff, the U.S. Chamber of Commerce, in this lawsuit challenging interim final regulations recently issued by the U.S. Department of Labor (DOL) and the U.S. Department of Homeland Security (DHS). The defendant, DHS, was denied cross-motion.

This case, Chamber of Commerce of the United States of America, et.al., v. United States Department of Homeland Security, et. al., was heard by the court regarding a challenge to both DHS and DOL’s new interim final rules – one that affected the H-1B program (Strengthening the H-1B Nonimmigrant Visa Classification Program), and one that affected the wage-setting system for H-1B and E-3 petitions and PERM applications (Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States). The U.S. Chamber of Commerce requested the court set aside both rules under the Administrative Procedure Act (APA).

As background, both the DHS and DOL invoked the APA’s good cause exception and issued the rules without notice and comment. The DOL rule went into effect immediately, and the DHS rule is effective Dec. 7, 2020. The DHS and DOL cited COVID-19 and ongoing economic concerns to enact both rules on an emergency basis, asserting that the U.S. economy and U.S. workers needed the protection.

The court, in its analysis, found that neither the DHS nor DOL has shown good cause to excuse notice and comment. The good cause exception has a high bar and is usually invoked only in the event of emergencies. The court found that if it were an emergency, the agencies would not have waited six months for this “immediate” action, and in fact, the proposed changes to the H-1B program had been on the agenda for quite some time. Moreover, the rules implemented are not a temporary “fix” for the pandemic, but rather, would stay for posterity. In addition, the job statistics presented showed that the job losses were not as significantly impacted in the occupations where H-1B workers are employed.

  • For the very reasons set out above, the court set aside both rules on the basis that they violated the APA.

USCIS and DOL have yet to issue guidance on the following two questions:

  1. When the wages will revert to normal;
  2. For those prevailing wage determinations issued with the higher wage, whether they will be reissued.

Over the last four years the U.S. immigration policy has been through many drastic changes. The Trump Administration from the beginning promised significant reforms with an overarching theme of one its seminal Executive Orders of 2017 – Buy American Hire American.

Business immigration practitioners and employers that rely on their guidance have experienced significant upheavals in the way non-immigrant and immigrant visa processes are administered. There has been a sea of changes driven by proposed legislation to focus on Merit-Based Immigration to Executive Actions rolling back current programs and policies to protect the U.S. economy and U.S. workers, especially during a pandemic.

What would a new Administration led by Joe Biden and Kamala Harris do to change the current state of play?

Experience with the Obama/Biden Administration and a review of the stated immigration plans of the Biden/Harris campaign indicate that we might see the following:

Executive Actions

  • Reversal of Travel Ban Proclamations banning entry from those present in the Schengen area, U.K., Ireland, Brazil, Iran, and China
  • Reversal of the Ban on the Issuance of Immigrant Visas and Non-immigrant L-1 and H-1 Visas
  • Reversal of the Ban on Certain Students from China
  • Reinstatement of the DACA Program
  • New TPS Designations
  • Review of Interim Final and Proposed Rules impacting the H-1B and PERM programs
  • Withdrawal of Guidance Memorandums on Respecting Precedent in Adjudication of USCIS cases
  • Review of F-1 and J-1 proposed rules on Duration of Status
  • Additional Funding for USCIS/DOL/DHS
  • EB-5 Reform – Nullifying the EB-5 Rule and pushing for legislative reform
  • Withdrawal of Public Charge Attestations from those seeking certain Immigration Benefits

Litigation

  • In-depth review of current cases challenging immigration rules and the position of DHS/USCIS/DOJ

Legislation

  • Attempts to Pass HR 6 providing relief to DACA and TPS beneficiaries
  • A push to pass the Elimination of Per Country Quotas – The Fairness in High Skilled Immigration Act
  • Comprehensive Immigration Reform to include Reform of the NIV and IV Systems
  • EB-5 Reform – Nullifying the EB-5 Rule and pushing for legislative reform

While Inauguration Day isn’t until Jan. 20, 2021, and there is a lot to be sorted out between now and then, it is safe to say that a Biden Harris Administration would handle business immigration policy in a dramatically different way.

On June 22, 2020, President Trump issued a Proclamation, that will be effective on June 24, 2020, suspending the entry of those seeking to enter the United States in certain nonimmigrant statuses. The reasoning behind the issuance of this Proclamation is to not burden the American economy and the healthcare system while it is recovering from COVID-19 and to protect U.S. workers.  He also extended the previous proclamation on Immigrant Visas through the end of 2020. 

President Trump, through the Proclamation, declares the following:

Extends the Immigrant Visa Proclamation:

The Proclamation banning the entry of certain immigrants has been extended to the end of the year, Dec. 31, 2020, and may be continued as necessary.  For more information, please visit our prior blog post.

Effective Dates:

The Proclamation will be effective as of 11:59pm June 24, 2020, and will expire Dec. 31, 2020.  The Proclamation may be continued as necessary.

Application:

1 – The immediate suspension of nonimmigrants entering the United States who are outside the United States, for the following categories:  H-1B (and dependents), H-2B (and dependents), J visa (for intern, trainee, teacher, camp counselor, au pair, or summer work travel program) and dependents; and L visa (and dependents).  This applies only to those who are outside the U.S. on the effective date of the proclamation, do not have a nonimmigrant visa valid as of the effective date, and do not have an official travel document that was valid that permits entry into the United States.

2 – The Proclamation will not apply to the following: those who are lawful permanent residents; any person who is the spouse or child of a U.S. citizen; any person seeking to enter the U.S. to provide temporary labor or services essential to the U.S. food supply chain; or any person whose entry would be in the national interest.

Implementation:

The consular officer will be the one to make the decision in his or her discretion whether the applicant has established eligibility pursuant to the exceptions listed above.  The Secretaries of State, Labor, and Homeland Security will be responsible for establishing the standards to define individuals who may be covered the exception of entry in the “national interest.”  This could mean to include those who are critical to national security of the U.S., involved with medical care, medical research, or necessary to facilitate the continued economic recovery of the U.S.

Any person who attempts to circumvent the Proclamation through fraud, willful misrepresentation, or illegal entry will be assessed by DHS for removal.  This Proclamation will not limit the ability of one to seek asylum, refugee status, withholding of removal, or protection under Convention Against Torture.

Additional Measures

In addition, the following agencies are tasked with the following:

  1. Secretary of Health and Human Services:  Provide guidance to implement measures to reduce the risk that aliens seeking admission could spread SARS-CoV-2 in the United States.
  2. Secretary of Labor:  Consider promulgating regulations for the PERM and H-1B programs.
  3. Secretary of Homeland Security:  Ensure that aliens seeking admission into the United States have registered biographical and biometrics information and ensure that prompt removal and deportation is conducted for those who have been ordered to do so.  In addition, the promulgation of regulations for the H-1B program is recommended.

Timing:

The Proclamation will expire on Dec. 31, 2020, and may be continued as necessary.

Additional Notes:

Most U.S. consulates and embassies responsible for issuing immigrant visas are closed at the moment due to COVID-19 safety measures.

On May 29, 2020, President Trump issued a proclamation (the “Proclamation”) suspending entry of citizens of the People’s Republic of China (“PRC”) who meet both of the following criteria: (A) the individual is seeking to enter the U.S. on F or J nonimmigrant status; and (B) the individual has an association with an entity in the PRC that implements or supports the PRC’s “military-civil fusion strategy” (a “PRC Military Entity”): (i) the individual has received or currently receives funding from a PRC Military Entity; (ii) the individual has been employed or is currently employed by a PRC Military Entity; (iii) the individual studied or currently studies at a PRC Military Entity; (iv) the individual has conducted research on behalf of or currently conducts research on behalf of a PRC Military Entity; or (v) the individual has conducted research at or currently conducts research at a PRC Military Entity

Similar to other proclamations the Trump administration has issued recently regarding immigration, the Proclamation contains a number of exceptions. Chiefly, the Proclamation provides an exception for students pursuing undergraduate study, and therefore it will generally affect graduate students and doctoral researchers. Additionally, the Proclamation excepts the following individuals, among others as more fully defined in the Proclamation:

  1. Spouses of U.S. citizens or lawful permanent residents (i.e. green card holders);
  2. Any individual who is a member of the U.S. Armed Forces;
  3. Any individual who is a spouse or child of a member of the U.S. armed forces;
  4. Any individual whose entry would be in the national interest or would further law enforcement objectives; and
  5. Any individual who is studying or conducting research in a field involving information that would not contribute to the PRC’s military‑civil fusion strategy, as determined by the Secretary of State and the Secretary of Homeland Security, in consultation with the appropriate executive departments and agencies (agencies);

The exception for individual’s studying or conducting research in a field involving information that would not contribute to the PRC’s military‑civil fusion strategy appears to provide wide discretion for the Secretary of State and the Secretary of Homeland Security to except individuals from this proclamation. The Proclamation does not define “military-civil fusion strategy.” Secretary of State Michael R. Pompeo has previously described it as “technology-seeking” by the Chinese military and also “the ruthless acquisition and systematic diversion to military purposes of technologies such as artificial intelligence, quantum computing, aviation and aerospace, Big Data applications, and civil nuclear power.” Therefore, entities with ties to the Chinese Military may be considered by the U.S. government to be PRC Military Entities, and any individual who falls under the association categories listed above may be subject to the Proclamation.

To implement the Proclamation, the president has directed the Secretary of State or his designee to establish standards and procedures to identify individuals subject to this Proclamation. The practical effect of this direction may be enhanced scrutiny of F and J visa applicants who hold PRC citizenship. While the terms of the Proclamation may appear narrow, the additional documentation burdens and challenges that the Secretary of State may create by implementing the Proclamation could potentially have a chilling effect with respect to PRC citizens seeking F and J visas, regardless of whether they fall under the terms of the Proclamation. As such, the Proclamation may lead to a reduction in the number of PRC citizens who attempt to study in the United States; there are currently over 350,000 such students.  A decline in that number would likely result in a negative economic impact on the U.S., as the economic impact of citizens of the PRC studying in the U.S. and their families was recently estimated by the NAFSA: Association of International Educators that economic impact at $13 billion.

 

As part of the implementation, the Secretary of State is also directed to consider whether any citizens of the PRC currently in the United States would be subject to the Proclamation and should have their visas revoked. This may affect PRC citizens currently living and working in the United States on F or J visa status, as well as their employers, if any, and the schools they attend. The Proclamation also directs the Secretary and State and Homeland Security to review other nonimmigrant and immigrant visa programs to determine if they pose a risk with respect to the PRC’s acquisitions of sensitive U.S. technologies and intellectual property, and to take action generally to further mitigate any risks posed by the PRC’s acquisitions of sensitive U.S. technologies and intellectual property. Similarly, the Secretary and State and Homeland Security are directed to consider issuing updated regulations and guidance regarding the inadmissibility of individuals seeking entry to the United States who are or have been a member of the Communist or any other totalitarian party.

The Proclamation is effective at noon on June 1, 2020, and has no expiration date. As with other proclamations, nothing in the Proclamation limits the ability of an individual to seek asylum, refugee status, withholding of removal, or protection under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

On April 22, 2020, President Trump issued a Proclamation that will come into effect April 23, 2020, which suspends the entry of those seeking to immigrate into the United States. The reasoning behind the issuance of this Proclamation is to not burden the American economy and the healthcare system while it is recovering from Coronavirus Disease 2019 (COVID-19) and to protect U.S. workers.  Lawful Permanent Residents have “open market” employment authorization that allows them to work at any job, and this Proclamation is to limit temporarily the number of immigrant visas issued. 

President Trump, through the Proclamation, declares the following:

Effective Date: 

The Proclamation will be effective as of 11:59pm, April 23, 2020. 

Application:

1 – The immediate suspension of immigrants entering the United States who are outside the United States, do not have an immigrant visa valid as of the effective date, and do not have an official travel document that was valid that permits entry into the United States.

2 – The Proclamation will not apply to the following: those who are lawful permanent residents; any person seeking to enter the United States as a physician, nurse, or other healthcare professional, or in healthcare position related to combatting COVID-19; any person entering the United States as an immigrant pursuant to the EB-5 program; any person who is the spouse of a U.S. citizen; any person who is under 21 and is the child of a U.S. citizen; any person whose entry would further U.S. law enforcement objectives; any member of the U.S. Armed forces (along with spouse and children); or any person whose entry would be in the national interest.

Implementation:

The consular officer will be the one to make the decision in his or her discretion whether the applicant has established eligibility.  Any person who attempts to circumvent the Proclamation through fraud, willful misrepresentation, or illegal entry will be assessed by DHS for removal.  This Proclamation will not limit the ability of one to seek asylum, refugee status, withholding of removal, or protection under Convention Against Torture. 

Timing:

The Proclamation will expire in 60 days from April 23, 2020, and may be continued as necessary.  No later than 50 days after April 23, 2020, the secretaries of Homeland Security, State, and Labor may recommend to the president whether to continue the Proclamation.

Additional Measures:

Within 30 days of April 23, 2020, the Secretaries of Homeland Security, State, and Labor will review nonimmigrant programs to recommend additional measures in prioritizing the hiring and employment of U.S. workers 

Additional Notes:

Most U.S. consulates and embassies responsible for issuing immigrant visas are closed at the moment due to COVID-19 safety measures. 

Read more related to the Proclamation here.