When Immigration Matters

Immigration Reform: What it means for Highly Skilled Foreign Workers

Posted by Karen-Lee Pollak on Mon, Dec 01, 2014 @ 9:00 AM

immigration reform, executive actionAs part of President Obama’s executive action, he has ordered new policies and regulations to be implemented which will benefit highly-skilled foreign workers by enabling businesses to more easily hire and retain these workers and allow them to make natural career progressions with their employers or seek similar opportunities within the United States thereby creating increased career stability for those foreign workers waiting for green cards. 

The November 20, 2014 memorandum from DHS Secretary Jeh Charles Johnson to USCIS Director Leon Rodriguez (the Memorandum) outlines these new policies and regulations and includes the following: Modernizing the Employment-Based Immigrant Visa System and increasing Worker Portability. 

One of the biggest gripes with the current visa system is the long waits for Immigrant visas or green cards due to outdated numerical limits established almost a quarter of a century ago.  These numerical limits do not cater for the visa demands of today.  For example, a foreign worker with an advanced degree who is a citizen of India is currently waiting almost 10 years for an Immigrant visa to be available according to the November 2014 visa bulletin.  This numerical limit is juxtaposed against an immigration system which also has failed to issue all available immigrant visas for a fiscal year.

The resulting backlogs prevent US. employers from attracting and retaining some of the best and brightest highly-skilled workers who are often educated in the United States.  Often a highly-skilled foreign worker’s time in temporary non-immigrant status runs out before the backlog becomes current.  For example, a L1b intracompany employee with specialized knowledge only has 5 years in L1b status but it is currently taking at least a minimum of 11 years, according to November 2014 visa bulletin, to obtain a green card assuming that person is an citizen of india, has a Bachelor Degree and has four years of experience. 

This makes little sense especially where as part of the Green Card process, the employer has to test the labor market and show the unavailability of US. workers.  That process in itself is disingenuous as it requires the employer to spend substantial time and money advertising and recruiting for a job and making applicants waste time on interviewing for a job which has already been filled.  Only after that charade can an employer file a labor certification with the Department of Labor which is currently taking in the best case scenario 8 months to be adjudicated. 

The permanent labor certification process delays the filing of the Green Card application with USCIS.  This delay is further exacerbated by the unavailability of immigrant visas for workers from certain countries.  Not only are wait times an inconvenience for these workers but these wait times are an impediment to their natural career progression.  Workers can only change jobs if the job “is in the same or similar occupation”.  The uncertainty of what this phrase really means often prevents workers from accepting promotions or accepting better job opportunities.  

Secretary Jeh Jonson proposes the following solutions in his Memorandum:

 USCIS should continue to work with the Department of State to ensure that all immigrant visas authorized by Congress are issued when there is a sufficient demand.

  • Improve the current system to determine when visas are available to applicants during a current fiscal year. 
  • USCIS must issue policy and regulatory changes to provide stability to beneficiaries of employment-based immigrant petitions.
  • Specifically, USCIS must clarify and amend its regulations to ensure that approved long-standing visa petitions remain valid in certain circumstances where the employee has changed jobs or has obtained a promotion to a supervisory position.

 In addition to these proposals, it is expected that regulations will be enacted that will allow workers with approved immigrant petitions who are unable to file adjustment of status applications due to visa quota backlogs to obtain the benefits of adjustment of status applications such as employment authorization and advanced parole.  This will help foreign workers evade the capricious adjudication of renewal of non-immigrant when they travel abroad and allow employees to switch employers.

Reforming Optical training for Foreign Students and Graduates of US. Universities.

Under current regulations, foreign students on F-1 visas may request 12 months of additional F-1 visa status for optional practical training (OPT).  OPT allows a student to obtain temporary work in their field of study to gain practical experience.  It must be approved by the educational institution and may occur before or after graduation. Students in the science, technology, education or mathematical (STEM) fields can obtain an additional 17 months of OPT for a total of 29 months. This extension has helped the United States in retaining some of its most talented STEM graduates from departing the United States and taking their skills overseas.  

The November 20, 2014 Memorandum recommends that USCIS develop regulations for notice and comment that expands the degree programs eligible for OPT and extends the time period and use of OPT for foreign STEM students and graduates including extending post-Masters OPT where only the first degree is in a STEM field.

Promoting Start-Ups, Research and Development in the US.

President Obama has underscored the importance of enhancing employment opportunities for foreign inventors, researchers and founders of start-ups wishing to create jobs and conduct research and development in the United States.  The November 20, 2014 Memorandum recommends two administrative improvements to our employment-based immigrant system for this purpose:

The National Interest Waiver which provides aliens with advanced degrees or exceptional ability to apply for green cards without employer sponsorship if their job is in the national interest, is one of the most underutilized visas.  USCIS is directed to issue guidance or regulations to clarify the standard by which a National Interest Waiver can be granted for the purpose of promoting its greater use in benefitting the US. Economy.

  1. USCIS is directed under its “significant public benefit” parole authority to propose a program that will permit DHS to grant parole status on a case-by-case basis to researchers, inventors and founders of start-up businesses who have obtained significant US. funding or otherwise hold the promise of job creation and innovation through the development of new technologies or cutting-edge research. Parole in these instances would help entrepreneurs start businesses in the United States instead of abroad. 

Bringing Greater Consistency to the L1B Program. Many multinational companies bring employees to the United States who have specialized knowledge in the company’s products or processes.  This visa is known as the L1B visa.  Inconsistent adjudications of these visas has created uncertainty for many companies relying on bringing foreign employees with specialized knowledge to the United States.  USCIS is directed to issue a policy memorandum that clarifies exactly what is meant by “specialized knowledge” to provide greater consistency in the adjudication of L1B petitions and to enhance companies’ confidence in the program.

These provisions, once implemented, will help alleviate some of the problems produced by our broken immigration system but it is really the duty of Congress to finish the job.  The only provision that has a projected timeline is the plan to give employment authorization to certain spouses of long time H-1B visa holders who have been approved for permanent residency (issued in May of this year). We anticipate the final rule to be published this month or in early January 2015. Regulations which have a limited impact can be issued as interim rules and take effect immediately. However, most regulations require the publication of a proposed rule with a 30 to 60-day comment period. Afterwards, the government agency must cull though public comments and decide if revisions to the proposed regulation are in order.

Of particular note is the Department of Labor’s (DOL) announcement, separate and apart from the November 20 Memorandum, that it will modernize the PERM regulations.  DOL has announced it will initiate a review of the decade old PERM program and relevant regulations. As part of this review, the Department will seek input on the current regulation, including how it could be modernized to be more responsive to changes in the national workforce.

Specifically, the Department will seek input on the following:

Options for identifying labor force occupational shortages and surpluses and methods for aligning domestic worker recruitment requirements with demonstrated shortages and surpluses;

  • Methods and practices designed to modernize U.S. worker recruitment requirements;   
  • Processes to clarify employer obligations to insure PERM positions are fully open to U.S. workers;
  • Ranges of case processing timeframes and possibilities for premium processing; and
  • Application submission and review process and feasibility for efficiently addressing nonmaterial errors.

While we are excited about these proposed changes, we can only be cautiously optimistic.  Historically, promised policy guidelines often take years to be issued or have never materialized. USCIS specifically states on its website that “USCIS and other agencies and offices are responsible for implementing these initiatives as soon as possible.  Some of these initiatives will be implemented over the next several months and some will take longer.”  The challenge for the business community, foreign workers and all stakeholders is to make sure that these measures are initiated, drafted, and implemented in a timely fashion.

Employment Authorization for Spouses of H-1B Visa Holders?

Posted by Karen-Lee Pollak on Tue, May 06, 2014 @ 11:06 AM

H1_B, DHS, USCIS H-4Today May , 2014, the Department of Homeland Security (DHS) today announced the publication of two proposed rules, including a rule to extend employment authorization to spouses of certain H-1B workers, and a proposal to enhance opportunities for certain groups of highly-skilled workers by removing obstacles to their remaining in the United States. It is hoped that Together these actions will help attract new businesses and new investment to the U.S. and ensure that the U.S. has the most skilled workforce in the world.

“The proposed rules announced today provide important support to U.S. businesses while also supporting economic growth here in the U.S.,” said Deputy Secretary Alejandro Mayorkas. 

“These steps will help the U.S. maintain competitiveness with other countries in our efforts to attract the best and the brightest high-skilled workers from around the world to support companies here at home. Businesses continue to need these high-skilled workers, and these rules ensure we do not cede the upper hand to other countries competing for the same talent.”

“These two proposed rule changes are an integral part of the Administration’s efforts to strengthen entrepreneurship and innovation, and to help the United States attract and retain highly skilled immigrants,” said U.S. Secretary of Commerce Penny Pritzker. “The fact is, we must do more to retain and attract world-class talent to the United States and these regulations put us on a path to doing that. These actions promise to unleash more of the extraordinary contributions that immigrants have always made to America’s innovation economy.”

Both Notices of Proposed Rulemaking will soon publish in the Federal Register. DHS encourages the public to comment on the proposed rules through www.regulations.gov.  All public comments will be considered before the final rules are published and go into effect.

Proposed Rule to Extend Employment Authorization to Spouses of Certain H-1B Workers

This proposed rule will amend existing regulations to allow H-4 dependent spouses of certain principal H-1B workers to request employment authorization.

U.S. businesses use the H-1B program to employ foreign workers in specialty occupations that require theoretical or technical expertise in specialized fields such as science, engineering or computer programming.  Frequently, employers will petition for an immigrant visa for an H-1B worker, which enables individuals to become lawful permanent residents.  Lawful permanent residents are generally eligible to become naturalized U.S. citizens after five years.

Under existing regulations, DHS does not extend employment authorization to dependents (also known as H-4 nonimmigrants) of H-1B nonimmigrant workers. The change proposed by DHS, would allow H-4 dependent spouses of certain H-1B nonimmigrant workers to request employment authorization, as long as the H-1B worker has already started the process of seeking lawful permanent residence through employment.

Eligible individuals would include H-4 dependent spouses of principal H-1B workers who:

  • Are the beneficiaries of an approved Form I-140, Immigrant Petition for Alien Worker; or
  • Have been granted an extension of their authorized period of stay in the United States under the American Competitiveness in the Twenty-first Century Act of 2000 (AC21) as amended by the 21st Century Department of Justice Appropriations Authorization Act. AC21 permits H-1B workers seeking lawful permanent residence to work and remain in the United States beyond the six-year limit.

Proposal to Enhance Opportunities for Highly-Skilled Workers
This proposed regulatory change would enhance opportunities for certain groups of highly-skilled and transitional workers by removing obstacles to their remaining in the United States.   

Specifically, the change to the regulation would regulation would:

  • Update the regulations to include nonimmigrant high-skilled specialty occupation professionals from Chile and Singapore (H-1B1) and from Australia (E-3) in the list of classes of aliens authorized for employment incident to status with a specific employer,
  • Clarify that H-1B1 and principal E-3 nonimmigrants are allowed to work without having to separately apply to DHS for employment authorization. 
  • Allow E-3, H-1B1 and CW-1 nonimmigrant workers up to 240 days of continued work authorization beyond the expiration date noted on their Form I-94, Arrival/Departure Record, while the extension request is pending.

It would affect workers in specialty occupation nonimmigrant classifications for professionals from Chile and Singapore (H-1B1) and Australia (E-3), as well as Commonwealth of the Northern Mariana Island (CNMI)-Only Transitional Workers (CW-1).

Under current regulations, employers of workers in E-3,  H-1B1, or CW-1 status must generally file a petition requesting the extension of the employee’s status well before the initial authorized duration of status expires.

Finally, this proposal would also expand the current list of evidentiary criteria for employment-based first preference (EB-1) outstanding professors and researchers to allow the submission of evidence comparable to the other forms of evidence already listed in the regulations.  This proposal would harmonize the regulations for EB-1 outstanding professors and researchers with other employment-based immigrant categories that already allow for submission of comparable evidence. 

Together these actions will help attract new businesses and new investment to the U.S. and ensure that the U.S. has the most skilled workforce in the world.

“The proposed rules announced today provide important support to U.S. businesses while also supporting economic growth here in the U.S.,” said Deputy Secretary Alejandro Mayorkas.  “These steps will help the U.S. maintain competitiveness with other countries in our efforts to attract the best and the brightest high-skilled workers from around the world to support companies here at home. Businesses continue to need these high-skilled workers, and these rules ensure we do not cede the upper hand to other countries competing for the same talent.”

“These two proposed rule changes are an integral part of the Administration’s efforts to strengthen entrepreneurship and innovation, and to help the United States attract and retain highly skilled immigrants,” said U.S. Secretary of Commerce Penny Pritzker. “The fact is, we must do more to retain and attract world-class talent to the United States and these regulations put us on a path to doing that. These actions promise to unleash more of the extraordinary contributions that immigrants have always made to America’s innovation economy.”

Both Notices of Proposed Rulemaking will soon publish in the Federal Register. DHS encourages the public to comment on the proposed rules through www.regulations.gov.  All public comments will be considered before the final rules are published and go into effect.

Proposed Rule to Extend Employment Authorization to Spouses of Certain H-1B Workers

This proposed rule will amend existing regulations to allow H-4 dependent spouses of certain principal H-1B workers to request employment authorization.

U.S. businesses use the H-1B program to employ foreign workers in specialty occupations that require theoretical or technical expertise in specialized fields such as science, engineering or computer programming.  Frequently, employers will petition for an immigrant visa for an H-1B worker, which enables individuals to become lawful permanent residents.  Lawful permanent residents are generally eligible to become naturalized U.S. citizens after five years.

Under existing regulations, DHS does not extend employment authorization to dependents (also known as H-4 nonimmigrants) of H-1B nonimmigrant workers. The change proposed by DHS, would allow H-4 dependent spouses of certain H-1B nonimmigrant workers to request employment authorization, as long as the H-1B worker has already started the process of seeking lawful permanent residence through employment.

Eligible individuals would include H-4 dependent spouses of principal H-1B workers who:

  • Are the beneficiaries of an approved Form I-140, Immigrant Petition for Alien Worker; or
  • Have been granted an extension of their authorized period of stay in the United States under the American Competitiveness in the Twenty-first Century Act of 2000 (AC21) as amended by the 21st Century Department of Justice Appropriations Authorization Act. AC21 permits H-1B workers seeking lawful permanent residence to work and remain in the United States beyond the six-year limit.

Proposal to Enhance Opportunities for Highly-Skilled Workers
This proposed regulatory change would enhance opportunities for certain groups of highly-skilled and transitional workers by removing obstacles to their remaining in the United States.   

Specifically, the change to the regulation would regulation would:

  • Update the regulations to include nonimmigrant high-skilled specialty occupation professionals from Chile and Singapore (H-1B1) and from Australia (E-3) in the list of classes of aliens authorized for employment incident to status with a specific employer,
  • Clarify that H-1B1 and principal E-3 nonimmigrants are allowed to work without having to separately apply to DHS for employment authorization. 
  • Allow E-3, H-1B1 and CW-1 nonimmigrant workers up to 240 days of continued work authorization beyond the expiration date noted on their Form I-94, Arrival/Departure Record, while the extension request is pending.

It would affect workers in specialty occupation nonimmigrant classifications for professionals from Chile and Singapore (H-1B1) and Australia (E-3), as well as Commonwealth of the Northern Mariana Island (CNMI)-Only Transitional Workers (CW-1).

Under current regulations, employers of workers in E-3,  H-1B1, or CW-1 status must generally file a petition requesting the extension of the employee’s status well before the initial authorized duration of status expires.

Finally, this proposal would also expand the current list of evidentiary criteria for employment-based first preference (EB-1) outstanding professors and researchers to allow the submission of evidence comparable to the other forms of evidence already listed in the regulations.  This proposal would harmonize the regulations for EB-1 outstanding professors and researchers with other employment-based immigrant categories that already allow for submission of comparable evidence. 

Immigration Reform Bill is Here!!!

Posted by Karen-Lee Pollak on Wed, Apr 17, 2013 @ 9:50 AM
comprehensive immigration reform, CIRAs a framework for reform, this is closer than we've come in years to meaningful change," said AILA President Laura Lichter

We commends the Senate "Gang of Eight" for introducing its bipartisan immigration reform proposal, allowing the Senate Judiciary Committee to forge ahead on the "markup" process. A proposal like this is a necessary first step in any path forward to create a common-sense immigration system that will meet the needs of the U.S. economy, businesses, and families, and integrate into our society aspiring Americans who work hard and want only a better life for themselves and their families.

http://www.schumer.senate.gov/forms/immigration.pdf

In many ways, the language contained in the 844 page legislation reflects key issues AILA sees as necessary to any successful immigration reform, such as border and interior enforcement, legalization, backlog reduction, asylum, family unification, and both current and future business needs.

"Is it perfect? No compromise measure ever is. Is it a good bill? Yes, for the most part it is, and perhaps it is even a great bill in some respects. We do see some further changes that are desirable, and as we delve more deeply into the details, I'm sure we'll find some needed tweaks. But as a framework for reform, this is closer than we've come in years to meaningful change," said AILA President Laura Lichter. She continued, "This bill does not shy away from addressing the difficult issues embedded in current immigration policy. It's a good start, and I hope that by continuing to work across the aisle, the Senate can pass a bill that will meet our nation's needs and the House will follow suit."

Immigration Innovation Act - Increases to H-1B Cap and Other Changes

Posted by Karen-Lee Pollak on Thu, Jan 31, 2013 @ 3:19 PM

Karen-Lee PollakIMMIGRATION INNOVATION (I2) ACT OF 2013 

ORRIN HATCH (R-UTAH), AMY KLOBUCHAR (D-MINN.), MARCO RUBIO (R-FLA.), CHRIS COONS (D-DEL.)

The Immigration Innovation (I2) Act of 2013 was introduced on January 29, 2013 by Sens. Hatch (R-UT), Klobuchar (D-MN), Rubio (R-FL), and Coons (D-DE). Among other things, the bill proposes increasing the H-1B cap, authorizing employment for spouses of H-1B visa holders, recapturing green card numbers, allowing dual intent for student visa holders, and reforming fees on H-1B visas and employment-based green cards.

What this Act Proposes?

Employment-Based Nonimmigrant H-1B Visas

  • Increase H-1B cap from 65,000 to 115,000
  • Establish a market-based H-1B escalator, so that the cap can adjust – up or down – to the demands of the economy (includes a 300,000 ceiling on the ability of the escalator to move)
    • If the cap is hit in the first 45 days when petitions may be filed, an additional 20,000 H-1B visas will be made available immediately.  
    • If the cap is hit in the first 60 days when petitions may be filed, an additional 15,000 H-1B visas will be made available immediately.  
    • If the cap is hit in the first 90 days when petitions may be filed, an additional 10,000 H-1B visas will be made available immediately.  
    • If the cap is hit during the 185-day period ending on the 275th day on which petitions may be filed, and additional 5,000 H-1B will be made available immediately. 
  • Uncap the existing U.S. advanced degree exemption (currently limited to 20,000 per year)
  • Authorize employment for dependent spouses of H-1B visa holders
  • Increase portability of high skilled foreign workers by:
    • Removing impediments and costs of changing employers;
    • Establishing a clear transition period for foreign workers as they change jobs; and,
    • Restoring visa revalidation for E, H, L, O, and P nonimmigrant visa categories

 Student Visas

  • Allow dual intent for foreign students at U.S. colleges and universities to provide the certainty they need to ensure their future in the United States

 Immigrant Visas and Green Cards

  • Enable the recapture of green card numbers that were approved by Congress in previous years but were not used
  • Exempt certain categories of persons from the employment-based green card cap:
    • Dependents of employment-based immigrant visa recipients
    • U.S. STEM advance degree holders
    • Persons with extraordinary ability
    • Outstanding professors and researchers
  • Provide for the roll-over of unused employment-based immigrant visa numbers to the following fiscal year so future visas are not lost due to bureaucratic delays
  • Eliminate annual per-country limits for employment based visa petitioners and adjust per-country caps for family-based immigrant visas

 U.S. STEM Education & Worker Retraining Initiative

  • Reform fees on H-1B visas and employment-based green cards; use money from these fees to fund a grant program to promote STEM education and worker retraining to be administered by the states

Immigration: USCIS Announces New Employment Authorization Document

Posted by Karen-Lee Pollak on Tue, Oct 25, 2011 @ 1:52 PM

As part of USCIS’s ongoing efforts to enhance the integrity of the immigration system, the state-of-the-art technology incorporated into the new documents will deter counterfeiting, obstruct tampering, and facilitate quick and accurate authentication. USCIS begins issuing the new EADs today October 24, 2011 and will begin using the redesigned certificates on Oct. 30. The agency anticipates that more than 1 million people will receive the new documents over the next year. 

"These enhanced documents are more secure than ever," said Director Mayorkas. "They advance our efforts to safeguard against fraud and protect the integrity of the immigration system."

The new features of the EAD will better equip workers, employers and law enforcement officials to recognize the card as definitive proof of authorization to work in the United States. 

USCIS worked closely with the Immigration and Customs Enforcement Forensic Document Laboratory to incorporate technology and tactile features in order to deter fraud and facilitate card authentication.                 

EAD Card Specimen

Additionally, USCIS employs a new and more secure printing process for its redesigned Certificate of Citizenship that renders the certificate more tamper-proof. 

Although the look and feel of the documents is new, the manner in which an applicant applies for and receives them will not change. USCIS will replace EADs already in circulation as individuals apply for their renewal or replacement. All previously issued EADs remain valid until the expiration date printed on the card. Previously issued Certificates of Citizenship remain valid indefinitely.

USCIS to Issue Employment Authorization and Advance Parole Card for Adjustment of Status Applicants

Posted by Karen Pollak on Wed, Feb 16, 2011 @ 9:04 AM

WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) today announced that it is now issuing employment and travel authorization on a single card for certain applicants filing an Application to Register Permanent Residence or Adjust Status, Form I-485. This new card represents a significant improvement from the current practice of issuing paper Advance Parole documents.

immigration lawyers in dallas texasThe card looks similar to the current Employment Authorization Document (EAD) but will include text that reads, “Serves as I-512 Advance Parole.” A card with this text will serve as both an employment authorization and Advance Parole document. The new card is also more secure and more durable than the current paper Advance Parole document.

An applicant may receive this card when he or she files an Application for Employment Authorization, Form I-765, and an Application for Travel Document, Form I-131, concurrently with or after filing Form I-485. USCIS will continue to issue separate EAD and Advance Parole documents as warranted. Employers may accept the new card as a List A document when completing the Employment Eligibility Verification, Form I-9.

As with the current Advance Parole document, obtaining a combined Advance Parole and employment authorization card allows an applicant for adjustment of status to travel abroad and return to the U.S. without abandoning the pending adjustment application. Upon returning to the U.S., the individual who travels with the card must present the card to request parole through the port-of-entry. The decision to parole the individual is made at the port-of-entry. Individuals who have been unlawfully present in the U.S. and subsequently depart and seek re-entry through a grant of parole may be inadmissible and ineligible to adjust their status.

For more information about the EAD and Advance Parole card, see the related Questions and Answers. For more information on USCIS and its programs, visit www.uscis.gov.

Employing International Workers 2010 Edition Available in Book Stores

Posted by Karen Pollak on Thu, Jun 03, 2010 @ 5:13 PM
Immigration Lawyer Karen Pollak

I was honored to a write a chapter for the 2010 edition of the book Employing International Workers.  Specifically, the chapter I wrote relates to what employers need to know when employing foreign nationals.  It is titled “Key Issues an Employer needs to Understand When Sponsoring an Employee for a Non-Immigrant Visa or Green Card”.   It is really an informative book for those involved in the immigration process.  It is now available in book stores.  

We are providing free access for our readers to the chapter I wrote.  I hope you find it useful. 

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