The February 2017 issue of New Jersey Lawyer magazine, published by the New Jersey State Bar Association, is focused exclusively on U.S. Immigration Law. Meyner and Landis LLP is pleased that its article on employment-business immigration law, entitled, “Tips to Effectively Recruit, Retain and Terminate Foreign Workers”, by partners Scott R. Malyk and Anthony F. Siliato, is included in that issue. The full text of the article is available here: Tips on Foreign Workers.
24FebUncategorized Comments Off on Tips to Effectively Recruit, Retain and Terminate Foreign Workers
07FebGlobal Immigration Comments Off on Trump Executive Order Update
On February 3, 2017, the United States District Court for the Western District of Washington issued a temporary restraining order, prohibiting the federal government from enforcing President Trump’s January 27th Executive Order on a nationwide basis; specifically, the 90-day travel ban on “immigrants and nonimmigrants” from designated countries, the 120-day ban on the U.S. refugee program, and the indefinite suspension of Syrian refugee admissions. All U.S. land and air ports of entry are prohibited from enforcing these portions of the EO until further order from the court.
DOS: DOS has confirmed that assuming there are no other issues in the case, provisionally revoked visas have been reversed and are once again valid for travel.
CBP: All CBP Field Offices have been instructed to immediately resume inspection of travelers under standard policies and procedures. All airlines and terminal operators have been notified to permit boarding of all passengers without regard to nationality.
Individuals who arrived last weekend and had their visas physically cancelled as a result of the EO will not need to reapply for a new visa and absent any other admissibility issues will receive an I-193 waiver (Application for Waiver of Passport and/or Visa) upon arrival to the U.S. For those traveling by air, airlines have been instructed to contact CBP to receive authorization to permit boarding.
The Trump administration declared its intention to file an emergency stay of the order “at the earliest possible time.”
31JanH-1B Visa News, L-1 Visa News, L-1 Visas, O-1 Visas Comments Off on INTERNATIONAL TRAVEL ALERT: President Trump’s Executive Order On Immigration
On late Friday afternoon, January 27th, President Trump issued a controversial Executive Order entitled, “Protecting The Nation From Foreign Terrorist Entry into the United States” (hereinafter “the Order”). The Order calls for an immediate ban on entry for all foreign nationals from seven (7) countries: Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen. The Order provides that the travel ban will remain in place for a period of 90 days, while reserving the right to extend such ban beyond 90 days. The Order, as written, applies to refugees, nonimmigrant visa holders (e.g.; H-1B, L-1A, L-1B, E-3, TN-1, TN-2, O-1), U.S. lawful permanent residents (green card holders) and dual nationals (excluding, however, those foreign nationals traveling on diplomatic visas, North Atlantic Treaty Organization visas, C-2 visas for travel to the United Nations, and G-1, G-2, G-3, and G-4 visas). The Order also serves to halt all visa issuance to citizens of the seven (7) enumerated countries as well.
Interpretations and clarifications of the Executive Order are constantly evolving each day and hour as we receive news as to how the Order is being followed by the State Department and the U.S. Customs and Border Protection (“CBP”) ports of entry.
DHS Update Provides Some Clarification
The Department of Homeland Security (“DHS”) posted an Update on January 29 stating that the ban will only apply if traveling with a passport from one of the 7 countries. As such, being a dual citizen of one of the banned countries alone will not subject the individual to an entry bar if such individual travels with a passport from a country other than one of the listed 7. The same Update advises that the ban does not apply to U.S. permanent residents – even if they were born in one of the 7 countries or may have a claim to citizenship in one of the 7 countries.
What Does This Mean For The U.S. Employer?
- Employers should immediately suspend all business-related international travel from/to the United States for any non-U.S. citizen employee who is only a citizen of one of the enumerated countries and not a U.S. permanent resident.
- Employers should advise any non-U.S. citizen employee who is only a citizen of one of the enumerated countries and not a U.S. permanent resident to remain in the United States and to not engage in any personal international travel.
- Given the uncertainty created by the Order, and (notwithstanding the recent DHS Update) the conflicting reports we are receiving from some CBP offices, we would strongly encourage employers to suspend all business-related international travel for any non-U.S. citizen employee who is a citizen of one of the enumerated countries — even if he/she has (a) passport from a non-banned country, together with a valid non-immigrant visa, advance parole travel document or re-entry permit or (b) a green card.
- Along those same lines, if you employ individuals who are citizens of any of the seven (7) countries listed in the Order and who are already outside of the United States, such employees may encounter difficulty at some CBP ports of entry at the present time – even if they travel with (a) passport from a non-banned country, together with a valid non-immigrant visa, advance parole travel document or re-entry permit or (b) a green card.
- For all other foreign national employees (i.e.; citizens of countries not covered in the Order), the conservative approach is to postpone all visa appointments at U.S. Consulates abroad for the time being unless absolutely necessary. Based on the suspension of the Visa Interview Waiver Program included in the Order, we anticipate visa wait times to increase significantly at all U.S. Consulates abroad, but especially at the consular posts closest to the United States in Canada and elsewhere. If you feel a visa application is absolutely necessary, please be prepared for unexpected delays (i.e.; administrative processing delays) which may require your employees to remain outside of the United States for an extended period of time.
- Please also advise all foreign national employees seeking to re-enter the United States from a trip abroad to carry all the necessary paperwork (i.e., copy of most recent approval notice, copy of most recent petition, employment verification letter and some recent paystubs). They should expect to experience delays and heightened scrutiny by CBP Officers during the inspection/admission process. If they have been charged with any criminal matters, including a DUI (either in the U.S. or abroad), they should carry original certified copies of the court disposition providing details on the charges, the resolution, and evidence that the matter was satisfactorily resolved.
- If, upon attempting to enter the United States, an employee is detained by CBP and CBP refuses to admit the employee into the Unites States, the employee should be given the option to withdraw his/her application for admission or to consult with an immigration attorney.
As one might expect, there exists much confusion among CBP Officers as to the enforcement of the Executive Order, specifically as to who should be kept out of the country. We will provide updates on the implementation and/or interpretations of the Executive Order as they arise, as well as anecdotal evidence as we become aware of the same through our national association AILA and our colleagues.
If you have any questions in connection with any of the foregoing, please contact our firm’s Immigration Law Group at (973) 602-3440.
14DecAdjustment of Status, H-1B Visa News, I-485, L-1 Visas, USCIS Policy Updates Comments Off on USCIS Publishes Final Rule For Certain Employment-Based Immigrant and Nonimmigrant Visa Programs
The United States Citizenship and Immigration Service (“USCIS”) issued a new regulation on November 18, 2016, entitled “Retention of EB-1, EB-2 and EB-3 Immigrant Workers and Program Improvements Affecting High Skilled Nonimmigrant Workers” in an effort to clarify, modernize and improve several aspects of certain employment-based nonimmigrant and immigrant visa programs. Such efforts, while not fully comprehensive, will provide clarification to practitioners (by codifying existing USCIS adjudicative practices) while providing some long-awaited relief to those high-skilled workers born in the heavily backlogged countries (India and China) who are, often times, forced to make employment decisions contrary to their best interests for professional growth and development (e.g.; accepting positions with other employers) in order to preserve their U.S. immigration status under the current rigid, inflexible system. The new regulations are slated to go into effect on January 17, 2017.
Here are some of the highlights of the new regulation:
Clarify longstanding USCIS policies and practices implementing sections of the American Competitiveness in the Twenty-First Century Act (“AC21”) and the American Competitiveness and Workforce Improvement Act (“ACWIA”) related to certain foreign workers, which will, in turn, enhance USCIS’ consistency in adjudication: Specifically, the ability of the beneficiary of a labor certification that was filed more than 365 days prior to the end of the sixth year under section 106(a) of AC21 to seek a one (1) year H-1B extension beyond the sixth year. The rule also confirms the ability of the beneficiary of an approved I-140 petition to seek a three (3) year extension beyond the sixth year if the priority date has not become current under 104(c) of AC21.
Improve job portability for certain beneficiaries of approved Form I-140 petitions by maintaining an I-140 petition’s validity under certain circumstances despite an employer’s withdrawal of the approved I-140 petition or the termination of the employer’s business: Specifically, I-140 petitions which have been approved for more than 180 days (prior to withdrawal) will be (i) valid for purposes of seeking 3 year H-1B extensions beyond the sixth-year limitation under 104(c) of AC21 and (ii) valid for green card portability (including retention and porting of the priority date) even in the event the sponsoring employer withdraws the approved I-140 or goes out of business. However, revocation by USCIS for a finding of fraud, misrepresentation or material error will void the I-140 for portability.
Allow certain high-skilled workers in the United States in valid E-3, H-1B, H-1B1, L-1 or O-1 nonimmigrant status, including any applicable grace period, to apply for an employment authorization document (EAD) for “compelling circumstances”: The new regulation creates a new category of EAD available to certain high skilled workers (i) who are the principal beneficiaries of an approved Form I-140 petition; (ii) who are unable to adjust status because an immigrant visa is available based on their priority date, and (iii) who are able to demonstrate that “compelling circumstances” exist that justify DHS issuing an employment authorization document in its discretion. Such employment authorization may only be renewed in limited circumstances and only in one year increments.
Offer a Grace Period Post-Termination for those working pursuant to certain, qualifying nonimmigrant visa classifications (H-1B, H-1B1, E-1, E-2, E-3, L-1, O-1, TN-1): The new regulation establishes a grace period of up to 60 days following termination of employment before the end of their authorized period of stay. This will allow qualifying workers and their dependents time to (i) seek new employment (e.g.; seek an H-1B transfer); (ii) change status to another visa classification (e.g.; B-1 or B-2); or (iii) depart the United States if necessary. This, of course, allows high-skilled nonimmigrant workers and their families the opportunity to more readily pursue new employment and an extension of their nonimmigrant status.
H-1B licensing: The new regulation will provide flexibility in H-1B cases for professions requiring a license. For H-1B petitions where a license is a requirement to practice the profession, USCIS will look to see if a license application has been filed (and not necessarily obtained because a state or locality requires a social security number or the issuance of an EAD before accepting or approving such licensing requests). Also, the licensing requirement will be considered to be met for H-1B purposes if an unlicensed H-1B worker will be working in a state that allows individuals to work under the supervision of a licensed senior or supervisory personnel.
Automatic extension of employment authorization for certain classes of pending EAD renewals: The new regulation permits automatic and continued employment authorization (for up to 180 days) for certain classes of Employment Authorization Document (“EAD”) renewals when the renewal application is timely-filed and remains pending after the expiration of the current EAD. Importantly, this only applies to certain categories of EAD, e.g..; EADs for adjustment of status applicants, refugees and asylees while H-4, L-2 and similar EADs are not eligible.
If you have any questions about the new regulation or its potential effect on you or any of your employees, please do not hesitate to contact us. Please follow us on Twitter @ML_Immigration to stay tuned for further developments.
13DecFirm News Comments Off on Siliato Recognized in “Best Lawyers” and “International Who’s Who”
We are pleased to announce that Anthony F. Siliato was recognized in the 2017 Edition of U.S. News & World Report – Best Lawyers In America. He was also recognized by Who’s Who Legal: The International Who’s Who of Corporate Immigration Lawyers (2017).
Meyner and Landis LLP received the highest ranking available (a Tier 1 ranking) in the 2017 Edition of U.S. News & World Report – Best Lawyers “Best Law Firms in New Jersey” for Immigration Law.
07NovH-1B Visa News, H-3 Visas, I-9 Compliance, L-1 Visa News, L-1 Visas, USCIS News Comments Off on Employer Alert: Plan To Increase Your Immigration Budgets For 2017 – USCIS Has, Once Again, Increased Filing Fees
U.S. Citizenship and Immigration Services (“USCIS” or the “Service”) recently announced a final rule that will (in some cases, dramatically) increase the filing fees required for most employment-based (and family-based) immigration applications and petitions filed with the Service. The new fees will become effective December 23, 2016.
According to USCIS, this is the first fee increase in six (6) years, since November 2010, necessary to “recover the full cost of services provided by USCIS”, including costs associated with fraud detection and national security, customer service and case processing, and providing services without charge to refugee and asylum applicants and to other customers eligible for fee waivers or exemptions.
The final rule contains a table summarizing current and new fees, summarized below. Under the new rule, any application or petition mailed, postmarked or otherwise filed on or after December 23, 2016 must include the new fees.
Form Title Current Fee New Fee I-129/I-129CW Petition for a Nonimmigrant Worker $325 $460 I-131/I-131A Application for Travel Document $360 $575 I-140 Immigrant Petition for Alien Worker $580 $700 I-485
*Includes the cost of Forms I-765 and I-131 filed concurrently, but does not include $85 biometrics fee
Application to Register Permanent Residence or Adjust Status $985* $1,140* I-485 Application to Register Permanent Residence or Adjust status (certain applicants under the age of 14 years) $635 $750 I-526 Immigrant Petition for Alien Entrepreneur $1,500 $3,675 I-539 Application to Extend/Change Nonimmigrant Status $290 $370 I-765 Application for Employment Authorization $380 $410 I-90 Application to Replace Permanent Resident Card $365 $455 I-129F Petition for Alien Fiancé(e) $340 $535 I-130 Petition for Alien Relative $420 $535 I-751 Petition to Remove Conditions on Residence $505 $595 N-400 Application for Naturalization $595 $640
If you have any questions about the filing fee increases, or about any other immigration matter, please do not hesitate to contact us.Of particular note to employers, the filing fee for Form I-129 (used in certain H, L, TN and E-3 classification requests) will increase from $325 to $460 (representing ~ 42% increase); the filing fee for Form I-140 (Immigrant Petition for Alien Worker) will increase from $580 to $700 (representing ~ 20% increase); and the filing fee for a travel document will increase from $360 to $575 (representing a ~60% increase!). We can only hope that the increase in fees will result in a reduction in processing times for employment-based petitions (e.g.; a reduction in the current 12-13 month processing time of H-1B extensions!)
Please follow us on Twitter @ML_Immigration to stay tuned for further developments.
06JunFirm News Comments Off on Malyk Named First Vice Chair of NJSBA Immigration Law Section
Scott R. Malyk has been named First Vice Chair of the New Jersey State Bar Association’s Immigration Law Section. He is a Partner with Meyner and Landis LLP in Newark, NJ and is a member of the firm’s Immigration Law Group. He specializes in all aspects of corporate and business-related immigration law. Scott represents domestic and multinational corporations and their employees, providing guidance in connection with the hiring, transfer and retention of international personnel worldwide. This includes counseling business clients in areas of worksite compliance, including I-9 audits and investigations, H-1B public access file compliance and electronic verification (E-Verify) requirements.
09MayDOL News, H-1B Visa News Comments Off on Preparing for the New STEM OPT Regulations, Effective May 10!
As many of you are still reeling from abysmal H-1B cap results as a result of a record number (236,000) of H-1B cap-subject filings this year, we must now turn our attention immediately to define viable alternative visa options for those foreign graduates who were not fortunate enough to be selected in the H-1B lottery. The purpose of this update is to discuss recent regulatory changes, effective May 10, 2016, to one of the most common alternatives to the H-1B classification, the STEM/OPT extension.
In the past, one of the common alternatives to the H-1B classification for employers with recent foreign national university graduates who were not selected in the H-1B lottery, but who possess qualifying Science, Technology, Engineering or Math degrees (so-called “STEM” degrees), was the ability for that foreign graduate to apply for a 17 month STEM extension of their Optional Practical Training (OPT) work authorization. Until recently, the requirements to secure this STEM/OPT extension were simple and did not require any extensive involvement of the employer. Specifically, the regulatory requirements were as follows:
- The graduate completed and received a qualifying STEM degree from an accredited U.S. college or university that related to their employment; and
- The employer was registered with E-Verify.
Unfortunately, the days of the straightforward STEM/OPT work authorization extension process are now behind us. In exchange for agreeing to lengthen the STEM/OPT period of work authorization (from 17 months to 24 months), there is a new, somewhat rigorous regulatory scheme, effective tomorrow, May 10, that now requires additional cooperation from the employer by way of an affirmative filing made by the employer.
More specifically, beginning on May 10, any qualifying STEM graduate wishing to apply for his/her STEM/OPT extension is responsible for the demonstrating the following:
- The employee received his/her STEM degree from an accredited college/university that is Student and Exchange Visitor Program-certified (SEVIS registered);
- The employee must have previously been granted regular OPT work authorization that remains effective;
- The employee must apply for the Form I-765 employment authorization renewal/extension up to 90 days before the student’s current regular OPT period expires;
- The employee must apply for the Form I-765 employment authorization renewal/extension within 60 days after the student’s Designated School Official’s (DSO) enters into SEVIS the DSO’s recommendation to extend the OPT; and
- The employee must make certain his/her employer is registered with, and actually utilizing, the E-Verify system.
Please note: If your 17-month STEM/OPT extension was already approved, in order to request the balance of the 24 month extension (the additional 7 months), you must have at least 150 calendar days remaining prior to the end of your 17-month STEM/OPT extension at the time you file the Form I-765.
In order to obtain the DSO’s OPT extension recommendation (#4 above), the graduate, together with the employer, must now complete and submit to the DSO the newly-minted Form I-983 Formal Training Plan for STEM OPT Students. The Form I-983 is a mandatory application and requires both the employee and employer to satisfy several new training and verification requirements. With regard to the employer, the Form I-983 requires you to attest, under penalty of perjury, the following:
- The employer is providing an internship or job opportunity that is commensurate with those of similarly-situated U.S. workers in terms of duties, hours, and compensation;
- The employer possesses sufficient resources and trained personnel to provide the appropriate training;
- The employment of the student will not replace any U.S. worker;
- The training program will assist the student in the student’s (degree-related) training objectives;
- The employer agrees to provide adequate notice to the DSO of any material changes to the student’s participation in the program (i.e. pay, work hours, corporate changes, terminations, etc.);
- The employer and student agree to prepare and submit a detailed and goal-oriented formal training plan measuring the employer’s oversight and the training measures and achievements reached by the student related to their STEM degree; and
- The employer will agree to provide annual reviews of the students’ formal training plan confirming the achievements reached under the program.
Here are the benefits of the new STEM/OPT regulations:
- An increased STEM/OPT work authorization period from the previous 17 months to 24 months (thus allowing these students potentially 3 “bites of the apple” in the H-1B lottery with an aggregate post-graduate OPT period of 36 months);
- It allows those currently employed under a STEM/OPT extension to remain employed for the duration of the 17 month EAD extension and also permits them to file for an additional 7 month extension (provided additional requirements are met);
- It extends the period of permissible unemployment to 150 days during the combined 36 months of regular and STEM OPT work-authorized period;
- It permits the student to remain employed for up to 180 days while the STEM/OPT extension request is pending if the current EAD card expires; and
- It allows students currently employed pursuant to the standard 12 month OPT period based on non-STEM degrees to be the eligible to file for the 24 month STEM/OPT extension if that student previously received a U.S. STEM degree.
On the downside, these newly-minted STEM/OPT regulations have added reporting requirements for the student and employer to maintain compliance with these STEM/OPT training programs (under the threat of DHS audit). Some of the most salient reporting requirements include the following:
- The STEM/OPT student must report to his/her DSO multiple times per year;
- The employer must prepare (and sanction) a formal training program and plan for submission to DSO for approval; and
- The employer must report material changes to any approved training plans.
The next few days, weeks and months are bound to be hectic and unsettling to your foreign graduate OPT and STEM/OPT employees who will, no doubt, be inquiring as to whether your business will assist them in navigating these new regulations. While we will be reaching out separately to each of our clients to discuss options for your foreign graduates who were not selected in the H-1B lottery, we would strongly urge you to contact us for assistance with navigating these uncharted waters, especially completing and submitting the new Form I-983 Formal Training Plans.
22MarH-1B Visa News, OPT, PERM Comments Off on STEM OPT Period Of Post-Grad Work Authorization Extended To 36 Months
On March 11, the Department of Homeland Security (DHS) issued the highly anticipated final rule permitting qualifying F-1 foreign students with science, technology, engineering and math (STEM) degrees earned in the United States to extend their optional practical training (OPT) work authorization period by 24 months, in addition to the 12-month standard period of OPT available for all F-1 foreign graduates in all fields. This 24-month extension effectively replaces the 17-month STEM OPT extension previously available under the prior regulation. The new rule will become effective on May 10, 2016.
The net result of this new STEM OPT rule is that qualifying STEM graduates will now receive an aggregate of 36 months of STEM OPT work authorization in the United States, thereby permitting foreign students to remain in the United States after graduation to work and receive practical training relating to one’s respective field of study. The new STEM OPT extension also offers employers an additional 7 months to review the performance of foreign STEM OPT workers prior to deciding whether to pursue temporary (H-1B) or permanent employment (green card) sponsorship. Thus, the new rule allows STEM graduates and employers more flexibility and makes the United States an even more attractive destination for potential STEM international students.
Practical Effect Of The New Rule:
Beginning on May 10, U.S. Citizenship and Immigration Services (USCIS) will issue Requests for Further Evidence (RFEs) asking students with pending STEM OPT extension applications whether they wish to amend their application from 17 to 24 months. Alternatively, students with pending applications also have the option to withdraw and re-file a new application with a 24-month request, but with the caveat that a student can only apply for a STEM OPT extension if post-completion OPT has not yet expired.
Students who have already received a 17-month STEM EAD will be able to file for a 7-month extension between May 10, 2016 and August 8, 2016, so long as 150 days still exist before the expiration of their 17-month STEM EAD and they file within 60 days of the date their Designated School Official (DSO) enters the recommendation for the 24-month STEM OPT extension into the student’s SEVIS record and other requirements are met, and they meet all other requirements for the 24-month STEM OPT extension.
The new STEM OPT rule, in combination with the existing H-1B cap-gap rules, will now permit many qualifying STEM graduates 3 “bites at the apple” at the H-1B lottery instead of 2. With the possibility of 3 full years of work authorization, some employers may opt to pursue sponsorship for permanent residency (for STEM graduates who are from countries with available visa numbers) rather than rely on obtaining work authorization through the highly coveted H-1B program.
Consistent with the former rule, STEM OPT extensions are only available for students working for employers who are participating in the E-Verify program. The new STEM OPT rule also adds increased oversight of the STEM OPT program, including: (i) individualized training plans developed by the employer and the student; (ii) regular student reporting to the college/university’s DSO; (iii) completion by the employer of an attestation that the student will not replace U.S. workers; (iv) a requirement that STEM OPT students are offered the same terms and conditions (including compensation) as similarly situated U.S. workers; and (v) limitation of the extension to students with degrees from accredited schools.
The new rule was drafted in order to resolve the challenge to the faulty administrative process utilized to pass the STEM OPT rule created under the Bush Administration. In addition to reviving the STEM OPT extension in compliance with required rulemaking procedures, DHS took the opportunity to extend the validity period. This is certainly a welcome result, especially when one considers the grim 33% chance a foreign national graduate faced last year in connection with being selected in the H-1B lottery.
If you have any questions about the STEM OPT extension or its potential effect on the H-1B cap, or would like to discuss appropriate alternatives to the H-1B category, please do not hesitate to contact us.
Please follow us on Twitter @ML_Immigration to stay tuned for further developments.
28JanUncategorized Comments Off on District Court Grants DHS’ Requested Relief To Extend The Stay of STEM OPT Program For An Additional 90 Days, Through May 10, 2016
In a largely anticipated move, the US District Court for the District of Columbia granted DHS’ motion to extend the Stay Order of the STEM OPT program, permitting the program to continue to exist under its current regime for an additional 90 days.
In August 2015, the STEM OPT program, which allows foreign national graduates of U.S. universities to extend their post-graduate work authorization an additional 17 months if (i) the graduate’s degree falls within the list of approved STEM disciplines and (ii) the STEM employer is enrolled in E-Verify; was dissolved by the District Court on procedural grounds. Such dissolution, however, was initially stayed for six (6) months to allow DHS time to fix the program’s procedural deficiencies. With the recently granted extension of the stay, the District Court has now ensured that the current STEM OPT regulations will remain in effect until May 10, 2016, and has further given DHS some additional time to vet the overwhelming volume of public comments it received about the existing program and to make any necessary changes.
While this decision was not a surprising one, it does come as welcome news to the more than 23,000 STEM OPT participants currently working in the United States. In particular, if the stay was not granted beyond April 1, many of the STEM OPT graduates would no longer have been eligible to apply for H-1B visas under this year’s H-1B cap as many would no longer be work authorized leading up to the April 1 filing date and, thus, would no longer be eligible for the automatic OPT extension provided by the “Cap Gap” measure initiated by USCIS.
This process, however, is far from over, as DHS will still need to review the public comments on its newly proposed STEM OPT amendments and implement a final rule by May 10, 2016. Our firm will continue to monitor the progress of the STEM OPT program and will keep you updated on any new developments. Stay tuned!