Immigration Under the Trump Administration

Immigration continues to be front page news, but just as important are the unpublished changes and trends in the direction that our current federal government is heading with respect to immigration matters. Here are a few highlights/thoughts:

1.        President Trump is going to focus his efforts on securing the southern border and deporting undocumented criminals.  Our government will be less forgiving than the Obama administration was regarding the collateral damage of many undocumented people, who have committed no crimes at all, being rounded up and deported along the way.

2.        As for business immigration matters, our President will pursue his “America First” policy, and H-1Bs, L-1s, E-2s, and all green cards including PERMS will likely become more onerous, and USCIS will adjudicate each petition more harshly.   That said, we think we will continue to see the high level of approvals that we do now, as our firm is not working with the kinds of employers who are cheating the system or who should fear hiring the talent they need.

3.        This week USCIS issued a press release entitled “USCIS Announces Further Measures to Detect H-1B Visa Fraud and Abuse.”  This announcement states that USCIS has created a new system for Americans to report suspected fraud within the H-1B visa program; and states that USCIS will increase its current program of auditing H-1B employers, concentrating its efforts on:

  • employers who are “H-1B Dependent,” which means an employer whose overall workforce contains a high percentage of H-1B employees.
  • employers who farm out H-1B workers to third party locations.
  • employers whose basic company information cannot be verified by USCIS through commercially available data.  For many years, USCIS has used only one source of commercially available data to check on a company’s existence, address, and main product or service:  the Dun & Bradstreet database, which offers information on more than 230 million business’s credit history, risk exposure, and business sales and marketing.  Our firm has always suggested that our clients register with D&B if they are going to file an L-1 visa petition, and as of now we are doing the same for each company who is filing H-1B petitions as well.

4.        Last week USCIS issued a Policy Memorandum to its adjudicating officers regarding H-1B petitions filed for Computer Programmers.  This Memo clarifies what has long been USCIS policy:  most general computer programming positions are not “specialty occupations” that may be awarded H-1B approvals, because the job duties do not require one to have a specialized bachelor’s degree in a CS-related field.  Our law firm has known this for more than ten years, and we never file H-1B petitions for a job title of “computer programmer.” All of our IT-related H-1B petitions are for Software Developers, Software Engineers, and other jobs where the job duties are well developed and clearly require a specialized degree in a CS-related field.   We see no reason for concern about this new guidance from USCIS.

5.        We do not see any super-fast changes in the immigration laws or regulations.  The President has spoken of requiring higher wages for H-1Bs and L-1s, and there has been mention of new requirements to do a mini-PERM for each H and L to prove that there are no US workers available before a U.S. employer can hire a new H or L worker.  However, these kinds of changes could take several years to implement, and there is not an agreement on such moves in the current Congress.  These changes cannot be made by an Executive Order, but rather require Congressional action and/or the following of strict rule-making procedures.

6.        We urge our clients to be more diligent about compliance with rules and regulations of the Department of Labor, Department of Homeland Security, and Department of State.  Please call us to schedule a conference about what can be done.

7.        Our office is gearing up to reach out to Congress when we can to fight for our clients’ right to hire the best and brightest in the world, as long as they do not undercut the American workforce.   We are moving ahead full speed to meet the non-ending demand for foreign talent.

Jeff Goldman Immigration Update 4-6

On the Executive Order issued by President Trump

While we all want to be sure that the United States is safe from terrorists, we should be able to depend upon our President to issue well thought-out orders that comply with the U.S. Constitution. The Executive Orders on refugees and visas issued by the Trump Administration last week does neither. On January 29, I was interviewed by CBS Boston about the weekend’s events. See the interview below and read the article here. For a thorough understanding of what has happened over the past several days, please read this article written by conservative columnist Benjamin Wittes.

New California Office

Jeff Goldman Immigration is pleased to announce the opening of its California office at the Bovet Professional Center in San Mateo.

Together with its Massachusetts office at the Cambridge Innovation Center, the new location will focus exclusively on all aspects of U.S. Immigration and Nationality Law as it relates to business including providing counsel for start-up, mid-size and Fortune-500 companies to solve complex and routine immigration matters.

“For the past 25 years, East Coast companies and their corporate lawyers have relied on our firm for our high level of experience, prompt attention to client needs and innovative solutions,” said Jeff Goldman. “Our new location in Silicon Valley, which arises out of client demand, positions us to continue to offer expert advice on immigration strategies for businesses at the leading edge of the innovation economy, including technology, life science and medical device companies, as well as individual scientists, entrepreneurs and founders.”

DHS Proposes New Rules to Assist Immigrant Entrepreneurs and Innovators

On August 26, 2016, the U.S. Department of Homeland Security published proposed regulations to implement President Obama’s Executive Order of November 2014, authorizing DHS to institute a program permitting certain entrepreneurs and innovators to receive “parole”, or special permission, to enter the U.S. to work at start-up companies that provide “significant public benefit through the substantial and demonstrated potential for rapid business growth and job creation.”

DHS started a 45-day comment period, accepting comments from the public regarding this proposed rule. DHS is hopeful to digest the comments and issue a Final Rule before the end of 2016, and at that time DHS will announce a date when entrepreneurs and innovators can begin to request this parole.

The proposed rule states that in addition to providing evidence documenting the significant public benefit, the entrepreneur or innovator must also document:

  • the receipt of significant capital investment from U.S. investors with established records of successful investments; or
  • having obtaining significant awards or grants from certain Federal, State or local government entities.

If granted, parole would provide a temporary initial stay of two years (which may be extended by up to an additional 3 years) to facilitate the applicant’s ability to oversee and grow his or her start-up entity in the United States.

The Law Offices of Jeff Goldman will be submitting comments to the proposed rule and we will be organizing a teleconference in early September for any of our clients or partners in the innovation economy who would like to help us brainstorm helpful comments to send to DHS. Please let us know if you would like to join our efforts.

Immigration Update on Changes to STEM OPT Rule

A new rule from the U.S. Department of Homeland Security became effective for a 24-month STEM OPT (Science, Technology, Engineering and Math Optional Practical Training) period. Pursuant to this rule, foreign students who have earned STEM degrees from schools that are accredited by a U.S. Department of Education-recognized accrediting agency and that are certified by the Student and Exchange Visitor Program (SEVP), and who have been granted OPT and are currently in the valid period of OPT, can quality for a 24-month extension of their OPT.

In addition to extending the STEM OPT period from 17 to 24 months, the new rule imposes additional obligations on employers. Specifically, the employer must now:

  1. Report material changes on the employment to the STEM OPT student’s Designated School Official (DSO) within five business days
  2. Implement a formal training program to augment the student’s academic learning through practical experience
  3. Provide an opportunity that is commensurate with those of similarly situated U.S. workers in duties, hours and compensation
  4. Complete the appropriate sections of Form I-983, Mentoring and Training Plan. In this form, the employers must attest that:
    • They have enough resources and trained personnel available to train the foreign student
    • The student will not replace a full- or part-time, temporary or permanent U.S. worker
    • Working will help the foreign student attain his or her training objectives
  5. Prove that there is a bona-fide employer–employee relationship.

U.S. Immigration and Customs Enforcement may now visit employers’ worksites to verify whether all STEM OPT requirements are met.

The obligation to be enrolled in E-Verify did not change under the new rule.

Preparing Form I-983 and devising an appropriate training program are complex tasks. Our office can assist in completing this form, and in providing training sessions for HR departments. We also have strategies for start-up founders to learn how to comply with the employer–employee relationship requirement. Please contact us with any questions.

New Rule, New Requirements for Extended Optional Practical Training Period for Foreign Students

A new rule from the U.S. Department of Homeland Security became effective for a 24-month STEM OPT (Science, Technology, Engineering and Math Optional Practical Training) period. Pursuant to this rule, foreign students who have earned STEM degrees from schools that are accredited by a U.S. Department of Education-recognized accrediting agency and that are certified by the Student and Exchange Visitor Program (SEVP), and who have been granted OPT and are currently in the valid period of OPT, can quality for a 24-month extension of their OPT.

In addition to extending the STEM OPT period from 17 to 24 months, the new rule imposes additional obligations on employers. Specifically, the employer must now:

  1. Report material changes on the employment to the STEM OPT student’s Designated School Official (DSO) within five business days
  2. Implement a formal training program to augment the student’s academic learning through practical experience
  3. Provide an opportunity that is commensurate with those of similarly situated U.S. workers in duties, hours and compensation
  4. Complete the appropriate sections of Form I-983, Mentoring and Training Plan. In this form, the employers must attest that:
    • They have enough resources and trained personnel available to train the foreign student
    • The student will not replace a full- or part-time, temporary or permanent U.S. worker
    • Working will help the foreign student attain his or her training objectives
  5. Prove that there is a bona-fide employer–employee relationship.

U.S. Immigration and Customs Enforcement may now visit employers’ worksites to verify whether all STEM OPT requirements are met.

The obligation to be enrolled in E-Verify did not change under the new rule.

Preparing Form I-983 and devising an appropriate training program are complex tasks. Our office can assist in completing this form, and in providing training sessions for your HR department. We also have strategies for start-up founders to learn how to comply with the employer–employee relationship requirement. Please contact us with any questions.

Didn’t Win the H-1B Visa Lottery? Consider Plan B

In July 2015 Jay received the bad news: his H-1B visa petition did not win the annual H-1B lottery. His OPT was expired and his 60-day grace period was down to two weeks. After we met to discuss Plan B options, Jay enrolled in a master’s degree program that offered CPT work authorization during his first semester. His F-1 status was extended and both Jay and his employer were thrilled. Now, as Jay is set to graduate next month, he waits on edge as receipts announcing the winners of this year’s H-1B lottery arrive daily at my office, none yet with Jay’s name.

Nearly two-thirds of the 237,000 H-1B petitions filed this year with the U.S. Citizenship and Immigration Services will not win the lottery, and I receive daily phone calls from those who fear that they will not be among the winners. I offer my thoughts, which often include some “Plan B” options that many of the callers did not know about: O-1 visas for people of extraordinary ability or achievement, for which we are getting a lot of approvals; E-2 visas for treaty investors; and J-1 visas for trainees and interns.

Sometimes the best option is for a client’s spouse to receive an E-2, L-1 or J-1 visa, which allow for a spouse to work. Last year we had a client who lost the H-1B lottery and after we heard that his wife had a managerial job in Paris with a multinational company, we were able to get the wife an L-1 visa to work for the U.S. office of her company, and our client received an L-2 visa with a work authorization card. Everyone is happy.

Many clients have also had success in obtaining “cap-exempt H-1B” visas under either of two options:

If a cap-exempt organization such as a university obtains a part-time H-1B for a foreign national employee, then any U.S. employer (even a private company who is not normally cap-exempt) may piggyback on the cap-exempt H-1B and immediately file for its own full-time, cap-exempt H-1B with the employee working concurrently for both the cap-exempt organization and the private company.
Any U.S. employer, including a private company that is not normally cap-exempt, may immediately file its own cap-exempt H-1B if the private company locates the foreign national worker “at a cap-exempt organization” (such as renting a seat at a University’s Innovation Center), as long as it is true that the job duties of this employee directly and predominately further the normal, primary or essential purpose, mission, objectives or function of the cap-exempt organization.

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