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Summary of Recently Enacted Immigration Regulations

The Following Notes Were  Provided by Mike I. Serotte,
Senior Partner, Serotte Law, Immigration Lawyers

For more information, feel free to contact us at info@serottelaw.com

Columbia University assumes no authorship of this article.  Take the following as very high-level guidance and consult your attorney.

 

Some Inconvenience…

Trump’s Executive Order on Immigration
The President’s Order restricts entry to the U.S. for citizens of Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen. We recommend that if any employee is a citizen of one of those countries, and is on F1-OPT, H1B, or another nonimmigrant status, they should not leave the U.S.

  • Permanent Residents (Green Card holders) who are citizens of one of those countries will likely be questioned in Secondary Inspection, but ultimately admitted.
  • Dual Nationals, like a Canadian who was born in one of those countries, will also be put through normal inspection, provided they present their (Canadian) passport.
  • Applicants for Naturalization will not be affected.

For updated information on the restrictions, see the CBP web site.

Some good stuff…

60-Day Grace Period after a H-1B Job Ends
H-1B workers now have a 60-day grace period after a job ends to transition to another H-1B employer. This gives you more flexibility in hiring H-1B workers. Previously, H-1B workers only had a 10-day grace period.

EAD Issued with Approved I-140 with “Compelling Circumstances”
It is now possible for people with an approved I-140 immigrant visa petition to receive an Employment Authorization Document (EAD) if there are “compelling circumstances.”  This is particularly good news for Indian and Chinese citizens who have an approved I-140 petition but whose priority date is not yet current.

Automatic 180-Day EAD Extension
The new rule provides a 180-day automatic extension when an EAD extension application is timely filed before the current EAD expires. This will be a huge benefit because USCIS often takes more than 90 days to adjudicate such extension requests.  NOTE:  This automatic extension does not cover EADs for spouses of L-1, J-1, H-1B, and E-1/E-2 workers.

Changing Jobs while in H-1B Status/Green Cards Pending
The new rule also clarifies key provisions about being able to change jobs while in H-1B status, change employers toward the end of the green card process, and for Chinese and Indian employees, to keep old “priority dates” from a prior green card application filed with a previous employer.

Cap Exempt H-1Bs
A particularly positive part of the new rules is that USCIS has kept intact the regulation permitting private companies to obtain a cap-exempt H-1B when it locates its H-1B employee “at” a university, a nonprofit research organization, or a government research organization.  This could include university-owned properties such as incubator or accelerator space.

National Interest Waiver (EB-2 Green Card)
A new, “precedent” decision (Matter of Dhanasar) will make NIW green cards more accessible in general, and specifically for entrepreneurs.

Summary of a Possible Executive Orders regarding Immigration

A number of proposed Executive Orders yet to be signed, suggests reversing some of former president Obama’s EOs on immigration, including the H4 EAD, DACA EAD, and International Entrepreneur Parole. A few comments to keep in mind while the Trump Administration sets its new agenda:

The International Entrepreneur Parole
The ruling was never implemented (scheduled for July 2017), thus, the impact of reversing this ruling is minimal. This reversal was expected and less consequential than the decision of Matter of Dhanasar, a National Interest Waiver precedent decision, which helps qualified international entrepreneurs significantly. Precedent decisions are binding on DHS employees in all future proceedings involving similar issues.

Site Visits for H1B, L1 and E2 visas holders
This was targeted towards the use of those visas by outsourcing companies, and American companies that bring in the “low-tech” workers. If enacted, it will certainly have a negative effect on outsourcing companies. On the other hand, we anticipate it will open up wider distribution and more options for H-1B visa employment.

H2B
This likely refers to a better system for short-term agricultural and seasonal workers, also knows as “guest-workers.” We don’t see this affecting you.

B1 Business Visitor
The proposal will likely clarify what foreign employees can (and cannot) do when they enter as Business Visitors. As an example, if you are currently living in India, and working for an Indian company, you can enter as a visitor to do “work” under certain circumstances. This has been a strategy to overcome the H1B Cap and difficulty getting IT companies L1B visas. Re-defining this will likely help international companies with non-software products manufactured overseas and sold in the US, as well as international entrepreneurs.

National Interest Waivers
The proposed EO referenced “National Interest” as a benchmark for improving the immigration system. National Interest refers to exceptional ability in the sciences, arts, or business, and activity that will substantially benefit prospectively the national economy, cultural or educational. Under the new, Precedent Decision, National Interest means: (1) a proposed endeavor has both substantial merit and national importance; and (2) that the foreign national is well positioned to advance the proposed endeavor. If the Trump Administration takes this into consideration when applying National Interest to new regulations, this will benefit the “highly-educated and highly skilled” foreign nationals, favored towards U.S. educated individuals.

H1B
The proposed EO focused on the “best and the brightest” which could mean an end or limitations to foreign nationals who are educated outside the U.S. It also talks about being “more efficient” which could mean the end of the H1B Lottery. That could be replaced with an auction process, or limited allocation to specific employers and opening it up to American owned companies (not a sub or affiliate of a foreign company)

Two-Year Evaluation Review
The EO mentions a 2-year plan to cover all nonimmigrant visas to determine what negatively affects U.S. workers.  For example, some companies use the  L1B and E visas to bring over foreign workers, mostly computer programmers, and enter into contracts with US companies to supply resources. With the E and the L visas, there is no annual cap, and no prevailing wages (unlike H1B) so wages can even be below DOL Prevailing Wages.

F1 Students and OPT
Graduating foreign students are eligible for one (1) year employment though Optional Practical Training (OPT). OPT doesn’t require Prevailing Wages. It is likely new regulations may requires some wage level for OPT graduates.

For more information, feel free to contact us at info@serottelaw.com

 

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