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A BROKEN Immigration System: The New Year’s Eve H-2B Debacle

computercrashYou can’t make this stuff up.  This is the world that I and a few other local colleagues of mine work in.

So, I asked my wife what she wanted to do to bring in the New Year (not that we usually do anything more than have dinner with some close friends), with the caveat that no matter what it was, I had to be home … in front of my computer … at midnight … because I had work to do. That’s right, many of my colleagues and I (on the East coast anyway) were at our offices or at our homes in front of our computers working as the clock struck midnight.  And then mayhem ensued, and I promise you, it was not fireworks or noisemakers.  Let me explain.

One of the visa programs that some of my clients use is the H-2B nonimmigrant visa program.  The H-2B nonimmigrant visa allows foreign nationals who are citizens of certain named countries (with limited exceptions) to accept “temporary” non-agricultural employment in the United States (e.g., landscape workers, ski resort employees, etc.).  Before doing so, however, the sponsoring employer must first obtain a temporary labor certification from the U.S. Department of Labor (“USDOL”) by establishing that there were no willing, able, and qualified U.S. workers available during a recruitment period.

Like some other visa programs, there is an annual numerical limitation for this visa program; specifically there are 66,000 H-2B visas that are available in each government fiscal year.  Also like some other visa programs, there are more companies filing applications for a temporary labor certification from the USDOL than there are visa numbers available.

Of the 66,000 worker positions that are available annually, 33,000 are allocated to each half of the fiscal year. This allows industries that traditionally have opposite seasons (e.g., summer beach resorts v. winter ski resorts) to have a “fair” chance at participating in the H-2B program to obtain necessary temporary workers.  Because of the incredible demand associated with the H-2B program (indeed even our President allegedly uses this program for his resorts), H-2B applications are now date and time stamped to the millisecond in order to establish the order of submission.  Applications are processed by the USDOL in the order that they’re received.  And for the second half of the government’s 2018 – 2019 fiscal year, the period for filing a temporary labor certification with the USDOL commenced one millisecond past midnight on New Years Eve.[1]

As the New Year rang in, the USDOL later reported that there were applications for 97,800 workers that were about to be filed by an “unprecedented volume of simultaneous system users.”[2]  The USDOL noted there were 22,900 server login attempts on January 1, 2019 versus a mere 721 attempts in the same period on January 1, 2018.  Not surprisingly, the government’s online filing system crashed. The exchange that went on over the next couple of hours, well past midnight, on the American Immigration Lawyer Service’s (“AILA”) H-2B attorney Listserv, bordered on a combination of sad, pathetic, and ridiculous.  It was also really so unnecessary.

Readers of this piece know how much I long for meaningful reform to our immigration system.  There are many substantive examples that I’ve written about over the past few years.  This is not one of them.  This is a procedural reform, somewhat selfishly written for sure (as anyone who knows me knows that I can barely stay up to 9:00 pm on a normal day), but it’s important.

What kind of program requires employers (or yes, even their attorneys) to sit by their computer at the stroke of midnight, on New Years Eve no less, requiring them to hit “submit”, tens and sometimes hundreds of times, so they can participate in a visa program to fill necessary positions with their company?  And in today’s day and age, what kind of government is so ill-equipped to handle the unprecedented volume that they themselves created?  Was the system not adequately stress tested?  Was no one monitoring it (perhaps in light of the current government shut down)?

As annoying as this whole debacle has been, it’s not missing New Years that bothers me.  Everyone who knows me knows that I’m usually sleeping at the stroke of midnight in any event.  It’s that our government can’t come up with a better and more equitable system within which employers and their counsel can work to get things done.  It really is ridiculous. The H-2B program is an absolutely necessary program for many employers.  The process for participating in it, however, is unnecessarily cumbersome and needs to be reformed

[1]For those companies (or their attorneys) filing outside of the eastern time zone, the filing time was an hour earlier for each time zone west you go.

[2]  At that time, the USDOL indicated that employers had prepared 5,400 H-2B applications, which were in a queue to be submitted to the USDOL, seeking a total of 97,800 workers.

Immigration Reform 2.0: President Trump’s Proposal for Dreamers

??????????????????????????????????????????????????????????????????????????????????????????????Should the title be Immigration Reform 2.0 or 22.0?  Maybe Immigration Reform Redux?  Really, how many times have we started down this road, only to be disappointed (or, at least that’s the way I feel anyway)?  Well, we’re starting down this path … yet again (albeit with some difficulty).  So what’s the latest iteration?

On January 25, 2018, the Trump Administration House released its “Framework on Immigration Reform and Border Security”, a one-page outline of its plan to legalize the status of so-called “Dreamers” in exchange for what it calls sweeping reforms to the immigration system.   The reforms are hardly sweeping, but they are dramatic.

The President’s framework proposes significant cuts to the “legal” immigration system (i.e., U.S. citizen or lawful permanent resident family members sponsoring their own qualified family members, e.g., possibly spouses, children, parents and siblings).  This is referred to as eliminating “chain migration” or as the White House is calling it, “protecting the nuclear family.”[1] The President is also looking for massive funding for border security and interior enforcement, including $25 billion for the border wall as well as more spending for Customs & Border Patrol and Immigration & Customs Enforcement agents.  The President is also calling for the elimination of the Diversity Visa Lottery Program.

In exchange for all of this, the President’s plan would offer legal status to young people who currently have DACA status or who are otherwise DACA-eligible (estimated to be about 1.8 million people), including an opportunity to apply for citizenship after waiting a minimum of 10 years.

Not surprisingly, there’s been a public outcry against it from the Democrats and their progressive base.  The official statement from the American Immigration Lawyers Association (“AILA”) reads as follows:

This proposal isn’t a serious effort to reach a deal on the crisis created by the administration when it terminated the DACA program. The dubious relief it offers to a questionable number of Dreamers is dwarfed by its offensive assault on families, the waste of tens of billions of taxpayer dollars on harsh enforcement that does next to nothing to improve national security, and a repudiation of Constitutional principles of due process. This proposal is completely untethered from common sense, decency, or American values.

There are several angles from which I could argue against the President’s “framework”, but I will limit myself to his efforts to end what he calls “chain migration” and the economics of that.

Every year, over 1 million new immigrants (i.e., Green Card holders) are admitted to the United States.[2]  About half of these individuals are the first in their family to permanently settle in the United States.  The other half are joining their family members who arrived earlier.  This is commonly known as “chain migration.”  The starting point for these new immigrants may have been different (e.g., the family-based Green Card process, the employment-based Green Card process, or perhaps refugees who were resettled in the United States, among other possibilities).  Ultimately, though, these permanent residents and perhaps eventual citizens of the United States can thereafter start to bring their own or other family-members to the United States.

The contributions of family-based immigrants to our U.S. economy, to our local communities, and frankly to the national fabric are great.  The data suggests that they account for a significant portion of the United States’ domestic economic growth, contribute to the well-being of our current and future labor force, and play a key role in business development and community improvement.  They are also the most upwardly mobile segments of the labor force.  Here’s some data from the Migration Policy Institute.

  • Immigrants accounted for 17%, or 27.6 million, of the 161.8 million persons in the civilian labor force in 2016.[3]
  • Of the 26.2 million employed foreign-born workers ages 16 and older in 2016, the largest share, at almost 32%, worked in management, professional, and related occupations.

A 2016 panel put together by the National Academies of Science Engineering and Medicine found that “immigration is integral to the nation’s economic growth. The inflow of labor supply has helped the United States avoid the problems facing other economies that have stagnated as a result of unfavorable demographics, particularly the effects of an aging workforce and reduced consumption by older residents.”  Among its findings:

  • Immigration has an overall positive impact on long-run economic growth in the U.S.
  • In terms of fiscal impacts, while first-generation immigrants are more costly to governments, mainly at the state and local levels, than are the native-born, in large part due to the costs of educating their children, as adults, however, the children of immigrants (the second generation) are among the strongest economic and fiscal contributors in the U.S. population, contributing more in taxes than either their parents or the rest of the native-born population.

I could go on, and I am sure that those who oppose my views would come up with their own data to contradict mine.

In 1965, liberals and conservatives in Congress compromised their differences and created an immigration model that would favor “family unification.” That’s the system we have today.  By no means is it perfect.  If we restrict it, however, we will no doubt negatively impact our country’s economic growth.

Family-based immigration is essential to our economic growth, not only because of immigrants’ contributions in the workforce, but because the current policy does indeed attract the talent we hope to bring and need to bring from around the world. The United States trains entrepreneurs and other highly skilled individuals from across the world at our renowned universities. We want them to stay, to build companies and drive innovation right here in the United States.  Consider, for example, that the current CEO’s of Tesla, Google, and Amazon were all born overseas.  Many well-known companies would not exist at all if our immigration system had not enabled their founders or their parents to move to the United States in the first place.

If we create obstacles for individuals to bring their relatives to the United States, we will no doubt lose them to other countries with more progressive immigration regimes.  We need to remind ourselves that “chain migration” is not a threat to the United States, but rather an essential economic strategy.

 

 

[1]  The White House officially defines this as follows:  The process by which foreign nationals permanently resettle within the U.S. and subsequently bring over their foreign relatives, who then have the opportunity to bring over their foreign relatives, and so on until entire extended families are resettled in the country.

[2] In 2016, about 1.49 million foreign-born individuals moved to the United States, which was a 7 percent increase from the 1.38 million that entered in 2015.

[3] “Civilian labor force” is defined as civilian persons ages 16 and older who were either employed or unemployed but looking for work in the week prior to participation in the U.S. Census Bureau’s American Community Survey (ACS) and Decennial Census.

What is this “Diversity Visa Program” that President Trump is Talking About?

dreamstime_xs_62076674-copyOn Halloween, 2017, an Uzbek immigrant purposely killed eight people in New York City with a rental truck he rented from The Home Depot as he drove down a bike path in lower Manhattan and mowed down several people before crashing into a school bus.  Reports indicated that the 29-year-old Uzbek immigrant, Sayfullo Saipov, had entered the United States through what is called the “Diversity Visa Lottery Program” (the “DV program”).

The dust had barely settled on the tragedy, and President Trump tweeted, “The terrorist came into our country through what is called the ‘Diversity Visa Lottery Program,’ a Chuck Schumer beauty. I want merit based.”  Not surprisingly, Senator Schumer immediately shot back, “I guess it’s not too soon to politicize a tragedy.”

So what exactly is the DV program that’s now being politicized?  The diversity immigrant category was added to the Immigration and Nationality Act (“INA”) by the Immigration Act of 1990.  Its purpose was to stimulate “new seed” immigration (basically, to foster new, more varied, immigration from under-represented parts of the world).

To accomplish this, the DV program makes 50,000 immigrant visas (i.e., “Green Cards”) available annually to individuals of countries from which immigrant admissions were lower than a total of 50,000 over the preceding five years. The visas are divided among six global geographic regions according to the relative populations of the regions, with their allocation weighted in favor of countries in regions that were under-represented among immigrant admissions to the United States during the past five years. The INA limits each country to 7%, or 3,850, of the total, and further provides that Northern Ireland be treated as a separate foreign state for DV program purposes.

The qualifications are quite (or I should say deceptively) simple.  First, an individual needs to be from a country that is allowed to participate in the DV program.  Second, the principal DV applicant must have a high school education, or its equivalent, or two years of qualifying work experience as defined under U.S. law.[1]   The program has its supporters and detractors.  Its supporters argue that the DV program provides “new seed” immigrants for an immigration system that’s weighted disproportionately in favor of family-based immigrants from a handful of countries.  Detractors argue that the program is vulnerable to fraud and misuse and, as President Trump is now tweeting, is potentially an avenue for terrorists, noting the difficulties of performing background checks in many of the countries eligible for the diversity lottery.[2]  The program’s supporters counter that background checks for criminal and national security matters are performed on all prospective immigrants seeking to come to the United States, including those who have won diversity visas.

We’re now in the 2019 DV program.  Approximately 14 million people around the world will apply for a visa.[3]  Only 0.3% of them will be successful.  Anecdotally the DV program has been referred to as the “golden ticket”.

We can debate the policy of whether the DV program should stay or go.  While the President quickly pointed his finger at Senator Schumer for being responsible for the DV program, what he failed (of course) to point out was that the legislation was overwhelming supported by Congress in 1990, and then signed into law by then Republican President George H.W. Bush.  President Trump also failed to mention that proposed legislation passed by the Senate in 2014 (but which did not pass the House), led by the now defunct Gang of Eight (of which Sen. Schumer was a member), would have canceled this program.

In my view, canceling the DV program is not the answer to our problems, and will not make our country safer.  The same laws are in effect to screen potential immigrants from all countries, regardless of the type visa that they enter the United States.  Rather than pointing fingers in the aftermath of this terrible tragedy (which the President was not willing to do after the Las Vegas shooting when gun control would have been at issue), we should focus on the root causes to prevent future attacks and to protect all Americans from those who seek to do us harm.

 

[1] An individual qualifying with work experience must have two years of experience in the last five years in an occupation which, by U.S. Department of Labor (“USDOL”) definitions, requires at least two years of training or experience that is designated as Job Zone 4 or 5, classified in a Specific Vocational Preparation (“SVP”) rating of 7.0 or higher.  The USDOL provides information on job duties, knowledge and skills, education and training, and other occupational characteristics on their website http://www.onetonline.org/. The O*Net online database groups work experience into five “job zones”.  While many occupations are listed, only certain specified occupations qualify for the DV Program.

[2] In the “for what it’s worth” column, nationals of Uzbekistan have not been singled-out in any of President Trump’s travel ban associated executive orders … so far.

[3] In FY2015, the last year for which statistics are available, close to 14.5 million people from around the world applied for the 50,000 available visas.

U.S.C.I.S. Proposes the International Entrepreneur Rule

imm_2I originally wrote about this last Fall, but given the current events in Washington, the general chaotic environment that my colleagues and I are practicing in, and the great concern that clients are showing about their future prospects of remaining in the United States (whether they are here lawfully or not), I thought it appropriate to provide a positive update for the alien entrepreneurs out there.

On January 17, 2017, the Department of Homeland Security (“DHS”) published a final rule to improve the ability of certain alien start-up founders to begin growing their companies within the United States and help improve our nation’s economy through increased capital spending, innovation and job creation.

Under the new rule, effective July 17, 2017, DHS may use its “parole” authority to grant a foreign national a period of authorized stay (that is, temporary permission to be in the United States), on a case-by-case basis, to those alien entrepreneurs who demonstrate that their stay in the United States would provide a significant public benefit through the potential for rapid business growth and job creation. Those who are eligible may be granted a stay in the United States for up to 30 months, with the possibility to extend the period for an additional 30 months if they meet certain criteria, and in the discretion of DHS.

Here are the specifics. An applicant for parole would need to demonstrate that he or she meets the following criteria.

1. First, that the applicant possesses 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. Second, that the applicant has a central and active role in the start-up entity such that the applicant is well-positioned to substantially assist with the growth and success of the business.

3. Third, that the applicant can prove that his or her stay will provide a significant public benefit to the United States based on the applicant’s role as an entrepreneur of the start-up entity by:

A. 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;

B. showing that 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

C. showing that they partially meet either or both of the previous two requirements and providing additional reliable and compelling evidence of the start-up entity’s substantial potential for rapid growth and job creation.

Under the rule, parole eligibility may be extended to up to three entrepreneurs per start-up entity, as well as their spouses and children. It is important to note that alien entrepreneurs will be only be eligible to work for their start-up business.

This recently published final rule is a legacy of former President Obama. Some of you will recall that back in 2014, because of Congressional inaction, former President Obama vowed to take whatever steps he could, short of legislation, to advance his immigration agenda, and in this case, to make it easier for alien entrepreneurs to start up or scale up their businesses. Well, he made good on his promise. (Let’s hope our current president keeps this in place, or even improves upon it. There has been a smattering of news that suggests that he may try to kill it.)

A few other important points related to all of this. First, and significantly, there is no required wage obligation for the alien entrepreneur parole beneficiary. However, to maintain parolee status, the alien entrepreneur must maintain a household income that is greater than 400 percent of the federal poverty line for his or her household size as defined by the U.S. Department of Health and Human Services (“HHS”). HHS revises these guidelines annually.

The new rule also requires the alien entrepreneurs to immediately notify U.S. Citizenship and Immigration Services (“USCIS”) of any material changes that could reasonably affect USCIS’s determination that the alien entrepreneur provides, or continues to provide, a significant public benefit to the U.S.
Finally, USCIS has indicated that the required investment and revenue amounts will be automatically adjusted every three (3) years by the Consumer Price Index and USCIS will post the required amounts on its website.

As I have previously mentioned, the investment thresholds appear not to be overly-burdensome. The rule also seems to recognize that new businesses are not all funded the same way, and provides flexibility for entrepreneurs using new or novel funding models.

So that’s the good news. The bad news continues to be that there’s no “next step” for when the entrepreneur’s parole period comes to an end. That is, unless a foreign national has a vehicle in place to become a lawful permanent resident (i.e., a Green Card holder), under the rule, they will not be allowed to change their status from their parole status to some other type of lawful nonimmigrant status while they’re in the United States. That means the entrepreneur would have to leave the United States, try to apply for a temporary visa abroad, and then re-enter the United States (assuming that’s even a viable option).

So, progress? Yes. Panacea for foreign national entrepreneurs? Not totally, but it is for sure a step in the right direction. Let’s hope it stays in place and Congress and our President improve upon it.

It’s H-1B Visa Filing Season, but is it “Cheap Labor”?

????????????????????????????????????????????????????????????????????????????????????????????????????Here we go again. The start of the H-1B nonimmigrant visa filing season is once again upon us. And once again, immigration practitioners around the country are having difficult conversations with their clients who wish to hire foreign nationals into what are called “specialty occupation” positions. But this year, with President Trump in office, will the conversations be different than in previous years?

As always, a (reminder) primer is in order. The H-1B nonimmigrant visa is a temporary visa that allows employers to petition for highly educated foreign professionals to work in “specialty occupations” (e.g., architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts). These positions typically require at least a bachelor’s degree or the equivalent for entry into the field. Typically, a foreign worker with an H-1B visa is admitted to the United States for a period of up to three years, and his or her visa may be extended for a maximum of six years. (There are some exceptions to this.)

Notwithstanding what you read in the news, before an employer can file an H-1B petition with U.S. Citizenship and Immigration Services (“USCIS”), the employer must first take steps to ensure that hiring the foreign worker will not harm U.S. workers. First, employers must attest, on a Labor Condition Application (“LCA”) filed with and certified by the U.S. Department of Labor (“DOL”), that employment of the H-1B worker will not adversely affect the wages and working conditions of similarly employed U.S. workers. (More on this below.) Employers must also provide existing workers with notice of their intention to hire an H-1B worker.

Since the H-1B category was created in 1990, Congress has limited the number of H-1B visas made available during each government fiscal year. The current annual cap is 65,000 visas, with 20,000 additional visas for foreign professionals who have graduated with a Master’s or Doctoral degree from a U.S. university. As I have indicated in previous articles, in recent years, the H-1B cap has been reached only a few days after the visas were made available.

Over the past year or so, now President Trump has spoken a lot about our immigration system, his theme being that we need to protect American workers. Although a lot of attention was placed on “building a wall” on our Southern Border, and making “Mexico pay for it”, a good deal was also said about overhauling other aspects of our immigration system, including the H-1B program.

During his campaign for president, then candidate Trump said the H-1B visa program was a “cheap labor program” that takes jobs from Americans workers.

Megyn Kelly asked about highly-skilled immigration. The H-1B program is neither high-skilled nor immigration: these are temporary foreign workers, imported from abroad, for the explicit purpose of substituting for American workers at lower pay. I remain totally committed to eliminating rampant, widespread H-1B abuse and ending outrageous practices such as those that occurred at Disney in Florida when Americans were forced to train their foreign replacements. I will end forever the use of the H-1B as a cheap labor program, and institute an absolute requirement to hire American workers first for every visa and immigration program. No exceptions.”

“Cheap labor program”? Reality or myth?

I’ve written so much about this in the past couple of years my head is about to spin. There is a plethora (yes, a plethora) of evidence that foreign workers fill a critical need in our labor market, particularly in the STEM fields (i.e., Science, Technology, Engineering and Math). Foreign workers, including skilled foreign workers, help create new jobs and new opportunities for economic expansion.

So how do H-1B workers impact wages? Well, for starters, here are a few things to consider. As I noted above, prior to filing an H-1B petition with USCIS on behalf of a foreign worker, the employer must first file and have certified an LCA with the DOL. The LCA contains several attestations that the employer is required by law to make before the DOL may certify the LCA.

These attestations include, among others, that the employer will pay the required wage rate to the H-1B workers employed pursuant to the LCA. The required wage rate must be the greater of (1) the actual wage level paid by the employer to all other individuals at the job site “with similar experience and qualifications for the specific employment in question,” or (2) the prevailing wage level for the occupation in the area of intended employment. Cheap labor program? I think not.

Another attestation the employer must make is that it will offer the same benefits package on the same basis to similarly employed U.S. workers and H-1B workers. Eligibility and participation criteria must be the same for all workers. H-1B workers cannot be denied benefits because they are “temporary employees.” The employer must also attest that employment of H-1B workers will not adversely affect the working conditions of workers similarly employed in the area of intended employment.

A violation of any one or more of these attestation can result in serious penalties to the employer, and ultimately in debarment from participating in the H-1B program.

So, what is the empirical evidence as to wages? According to one study, H-1B-driven increases in STEM workers were associated with a significant increase in wages for college-educated, U.S.-born workers in 219 U.S. cities. In fact, a one percentage point increase in foreign STEM workers’ share of a city’s total employment was associated with increases in wages of 7 to 8 percentage points paid to both STEM and non-STEM college-educated natives, while non-college educated workers saw an increase of 3 to 4 percentage points.

What else you ask? According to another study, from 2009 to 2011, wage growth for U.S.-born workers with at least a bachelor’s degree was nominal, but wage growth for workers in occupations with large numbers of H-1B petitions was substantially higher.

There is other data as well. And not only do H-1B workers positively impact wages, they positively impact employment rates as well.

Bottom line, there are too many myths (dare I say “fake news”) perpetuated about the H-1B visa category, and not enough focus on the important contributions H-1B workers make to the U.S. economy.

U.S.C.I.S. Proposes the International Entrepreneur Rule

imm_3I think my colleagues in the immigration bar will agree that in order to achieve your client’s immigration goal, whatever it may be (e.g., a “Green Card,” citizenship, or whatever), sometimes you need to take baby-steps (e.g., enter the U.S. on a temporary visa before you try to obtain a Green Card). I’ve over-simplified the example, but the point remains the same. And sometimes, unfortunately, there are a lot of baby-steps that need to be taken during the process.

Here’s another issue. I recently had a conversation with a client about how to get a prospective hire into the United States to he could work for the client (in the absence of any immediately available H-1B nonimmigrant worker visa numbers). I told my client he had two (2) options. First, he could wait until Spring, 2017, file a petition with to U.S. Citizenship and Immigration Services (“USCIS”) to qualify his prospective hire as an H-1B nonimmigrant worker, hope that petition would be one of the lucky 65,000 petitions selected by USCIS, and then wait for an October 1, 2017 start date. His second option would be to engage in what I described as some “creative lawyering” and hope for the best. His immediate response to the latter was, “that sounds expensive.” And it would be, with no assurances that it would work.

Alas this is often what my colleagues and I would have to explain to foreign national entrepreneurs when they want to be part of a “start-up” company, either as an investor-owner and/or as an employee. The path to permanent residence (i.e., a Green Card) is not easy, usually time-consuming (i.e., years and years and years), often expensive, and unfortunately, never a sure thing.

Well that may soon be changing, at least in terms of getting away from “creative lawyering.” On August 26, 2016, USCIS announced the proposal of a new rule, which would
allow certain international entrepreneurs to be considered for “parole” (that is, temporary permission to be in the United States) so that they may start-up or scale their businesses in the United States.

The new rule would allow DHS to use its existing discretionary statutory parole authority for entrepreneurs of startup entities whose stay in the United States would provide a significant public benefit through the substantial and demonstrated potential for rapid business growth and job creation. Under the rule, DHS may parole, on a case-by-case basis, eligible entrepreneurs of startup enterprises: (a) who have a significant ownership interest in the startup (at least 15 percent) and have an active and central role to its operations; (b) whose startup was formed in the United States within the past three (3) years; and (c) whose startup has substantial and demonstrated potential for rapid business growth and job creation, as evidenced by: (1) receiving significant investment of capital (i.e., at least $345,000.00) from certain qualified U.S. investors with established records of successful investments; (2) receiving significant awards or grants (i.e., at least $100,000.00) from certain federal, state or local government entities; or (3) partially satisfying one or both of the prior two criteria in addition to other reliable and compelling evidence of the startup entity’s substantial potential for rapid growth and job creation.

Under the rule, foreign national entrepreneurs may be granted an initial stay of up to two (2) years to oversee and grow their startup entity in the United States. In addition, USCIS would entertain a later request for re-parole (for up to three [3] additional years) if the foreign national entrepreneur and the startup entity continue to provide a significant public benefit as evidenced by substantial increases in capital investment, revenue or job creation.

In general, most commentators agree that the proposed parole period is very reasonable, and the investment thresholds appear not to be overly burdensome. Indeed, the proposed rule seems to recognize that new businesses are not all funded the same way, and provides flexibility for entrepreneurs using new or novel funding models.

While the rule is not yet final, my primary concern is next steps once an entrepreneur’s parole period comes to an end. That is, unless a foreign national has a vehicle in place to become a permanent resident, under the proposed rule, they will not be allowed to change their status from their parole status to some other type of lawful nonimmigrant status while they’re in the United States. That means the entrepreneur would have to leave the United States, try to apply for a temporary visa abroad, and then re-enter the United States (assuming this is even a viable option).

While this is not the panacea perhaps foreign national entrepreneurs would hope for, it’s definitely a step in the right direction. Stay tuned for the final rule.

Provisional Waivers Promote Family Unity

??????????????????????????????????????????????????????????????????????????????????????????????Back to the law. Although the Supreme Court ruled against the Obama Administration in the case Texas v. United States, 15-674, one of the immigration “reforms” that the Obama Administration proposed back in November, 2014, which happily was not part of the lawsuit, was recently implemented. Specifically, expanding the use of “provisional unlawful presence waivers” beyond spouses and minor children of U.S. citizens to also include the spouses and minor children of lawful permanent residents (commonly known as LPR’s or Green Card holders) as well as the adult children of U.S. citizens, and clarifying the “extreme hardship” standard that must be met to obtain this waiver.

In general, aliens who are lawfully present in the United States who have spouses or parents that are U.S. citizens or Green Card holders may be eligible to apply for an immigrant visa with a U.S. embassy or consulate outside the United States, or apply for “adjustment of status” with U.S. Citizenship and Immigration Services (“USCIS”) in the United States. In order to obtain an immigrant visa, the alien is required to depart the United States so that he or she can apply for his or her visa at a U.S. embassy or consulate outside the United States.

However, those aliens who have been unlawfully present in the United States prior to their departure generally trigger a three (3) or ten (10) year bar from returning to the United States if the alien has been unlawfully present in the United States for more than 180 days (the three year bar) or one (1) year or more (the ten year bar).

Under current law, these bars from returning to the United States can be “waived” if the denial of the alien’s admission to the United States would result in “extreme hardship” to the alien’s U.S. citizen spouse or parents. However, the time involved in an alien obtaining a waiver, and the attendant risk associated with the alien having to leave the United States not knowing whether he or she will actually receive the waiver and be able to return to the United States, has kept many unlawfully present aliens who could legalize their status in the United States from doing so.

To deal with this issue, in 2013, the Obama Administration began allowing spouses or children of U.S. citizens who are unlawfully present in the United States to request and obtain “provisional waivers” of the three and ten year bars to their admission while they are in the United States. (Once approved, they still need to leave the United States to apply for an obtain their immigrant visa.) This relief, however, was not available to the spouses and children of LPR’s. Until now.

On July 29, 2016, the Department of Homeland Security (“DHS”) published a final rule expanding eligibility for provisional unlawful presence waivers to all individuals who are statutorily eligible for an unlawful presence waiver and who can establish extreme hardship to a U.S. citizen or LPR spouse or parent.

The provisional waiver process is meant to promote family unity by reducing the time that eligible individuals are separated from their family members while they complete immigration processing abroad. The provisional waiver process is a welcome contrast to the normal waiver application process, which requires aliens to first depart the United States and then apply for a waiver. Under the normal process, the alien may be outside the United States for many months, waiting for a decision on their waiver application. This separation, and the uncertainty of whether the waiver will actually be approved, has caused many individuals to simply forgo the opportunity legalize their status. The provisional waiver process eliminates most (but sometimes not all) of the uncertainty by allowing for pre-approval of the waiver prior to the alien’s departure from the United States.

I always counsel my clients that it’s much easier to fight their battles with DHS when they’re physically in the United States. These new regulations now allow them to do so. This is a very welcome change.

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