New York residents may no longer be able to enroll (or re-enroll) in Global Entry and other Trusted Traveler Programs, according to recent action by the Department of Homeland Security (“DHS”).
On February 5, 2020, Acting Homeland Security Secretary Chad Wolf announced DHS was suspending enrollment in Global Entry, NEXUS, SENTRI, and FAST for all New York state residents. This announcement does not affect residents of other U.S. states and jurisdictions who may continue to use, enroll or re-enroll in these programs. No information was provided regarding how long the suspension would be in effect, although the way the DHS letter to New York state officials was worded makes it seems further discussions between DHS and those officials may be possible. The stated reason for the restriction is New York’s denial of access to DHS of its Department of Motor Vehicle data for immigration enforcement and criminal history/involvement purposes. An open question remains as to whether grounds exist to bring court action or some other form of legal challenge given DHS invoking law enforcement considerations as the basis for its actions. (more…)
On January 31, 2020, the USCIS issued a new Form I-9, Employment Eligibility Verification with edition date 10/21/2019. The form is effective immediately.The new Form I-9 is available on the USCIS website at https://www.uscis.gov/i-9.
The form includes the following updates:
Revisions related to the List of Acceptable Documents on Form I-9:
Added the Consular Report of Birth Abroad (Form FS-240) to List C. Employers completing Form I-9 on a computer will be able to select Form FS-240 from the drop-down menus available in List C of Sections 2 and 3. E-Verify users will also be able to select Form FS-240 when creating a case for an employee who has presented this document for Form I-9.
Combined all the certifications of report of birth issued by the Department of State (Form FS-545, Form DS-1350, and Form FS-240) into selection C #2 in List C.
Renumbered all List C documents except the Social Security card. For example, the employment authorization document issued by the Department of Homeland Security on List C changed from List C #8 to List C #7.
Today, the U.S. Department of State (DOS) changed the reciprocity schedule for France to reflect decreased E-1, E-2, and L-1 visa validity periods. Specifically, effective November 12, 2019, E-1 and E-2 visas are now limited to a validity of only 25 months per visa issuance. Similarly, L-1 visasare now limited to a validity of only 17 months per visa issuance. Until this change, E and L visas have had validity for 60 months.
In general, different types of U.S. nonimmigrant visas have different allowable validity periods depending on the nationality of the applicant, because the Immigration and Nationality Act (INA) requires the DOS to set country-specific visa policies based on reciprocity. The validity periods, number of entries, and visa fees for different types of visas are based on each country’s treatment of similar classes of U.S. visitors to its territory, as well as national security, immigration, and other considerations. Since August 2019, there have been announcements by the U.S. Embassy in France regarding decreased E visa validity periods for French nationals. According to the U.S. Embassy in France’s website at that time, the reduction in validity time on E visas was implemented to correspond with the “treatment afforded to U.S. citizens by the Government of France”. However, until today, the DOS has not changed the reciprocity schedule to reflect the changes. (more…)
U.S. Immigration and Customs Enforcement (“ICE”) has recently increased site visits for employers who employ F-1 students under STEM OPT (short for Science, Technology, Engineering, Mathematics Optional Practical Training) work authorization. While ICE has had this authority since the STEM regulations were passed in 2016, the agency only recently started conducting site visits to ensure that employers and F-1 students remain in compliance with the regulations governing F-1 STEM OPT work authorization.
What Is STEM OPT?
STEM OPT allows eligible F-1 visa students with STEM degrees from accredited U.S. colleges or universities to apply for an additional 24 months of Occupational Practical Training. This is in addition to the initial, one-year post-completion OPT granted to all non-STEM-degree F-1 students. In addition to the STEM degree requirements, the F-1 visa student must secure employment with a bona fide employer, work a minimum of 20 hours per week for that employer, and the employer must provide a formal, practical training and learning program within the STEM field which is related to the F-1 student’s degree. Details of the training program are outlined by the employer on Form I-983, which is submitted to and approved by the Designated School Official at the F-1 student’s academic institution.
On May 31, 2019, the US Department of State updated their Form DS-160 (online nonimmigrant visa application) and Form DS-260 (online immigrant visa application) to collect social media identifiers for those applying for nonimmigrant and immigrant visas. Applicants for US visas are now being asked to provide all social media identifiers they have used within the past five (5) years. This update was announced in a statement to the press by a US Department of State official on June 1, 2019.
A social media “handle” or “identifier” is any name used by the individual on social media platforms including, but not limited to, Facebook, Twitter, and Instagram. The updated visa application forms currently employ a drop-down menu which list the specific social media platforms for which identifiers are being requested. An example of the drop-down menu from online visa application form can be seen below: (more…)
Pursuant to a recent announcement by the U.S. Embassy in Israel, E-2 Investor visas will be available to Israeli citizens starting May 1, 2019. While the bill granting Israeli citizens eligibility for the United States E-2 Treaty Investor visa was signed into law in 2012, the availability of visas was delayed by lengthy negotiations over the final terms of the reciprocal agreement between Israel and the United States. Fortunately, the terms of the reciprocal agreement between the two countries have now been finalized, allowing for the issuance of E-2 investor visas to Israel citizens starting in May.
The E-2 investor visa is available to citizens of qualifying countries who are actively engaged in the development and direction of a United States enterprise. In order to qualify for the E-2 visa, the foreign investor must have already invested, or be in the process of investing, a substantial amount of capital into the United States company. Although the list of qualifying nations for the E-2 visa includes over 70 countries, that list did not include Israel – until now. (more…)
There are many ways employers may run afoul of the anti-discrimination provisions in U.S. immigration law. As a very clear starting point, the general rule for a long time has been and remains an employer may not make hiring, firing, or recruitment / referral decisions based on a worker’s citizenship status. However, there are notable exceptions and the one relevant here relates to controlled goods.
For these purposes, the definition of controlled goods includes their documentation – typically referred to as technical data – and means those goods which are subject to either the International Traffic in Arms (ITAR) or Export Administration Regulations (EAR) laws and regulations. ITAR is the export license restrictions which regulate military and defense articles, whereas BIS controls other higher tech exports which are subject to export license restrictions. As part of their regulatory regimes, both agencies (and some others of more limited scope) regulate when and how non-U.S. persons may gain access to either the actual good, the technical data or both, and require some form of notice to and pre-approval by the agency. (more…)
Changes are in the works related to the processing of H-1B visa petitions, and employers intending to file such petitions should be aware. On Monday, December 3, 2018, the U.S. Citizenship and Immigration Services (USCIS) announced a proposal to change the annual cap-subject H-1B visa petition filing system in two significant ways: (1) the establishment of an online H-1B registration system; and (2) a major change in the procedures related to the annual H-1B visa cap lottery.
By law, the number of new H-1B visa petitions for professional worker beneficiaries is capped at 65,000 annually, with an additional 20,000 set aside for individuals with advanced degrees from U.S. universities. Advanced degrees are considered to be master’s degrees or higher. Certain employers, such as hospitals, non-profit research institutions and universities are exempt from this annual cap. As a result of this limitation on H-1B filings, the USCIS receives well in excess of the allowable number of petitions at the beginning of each year’s filing season, April 1. Accordingly, a random lottery has taken place in early April of each year. Employers are notified over the next few months if their petitions are among the lucky 85,000 selected. The numbers are daunting – approximately 198,000 petitions where received in fiscal year 2017, and approximately 236,000 in fiscal year 2016. (more…)
The USCIS announced today that it is extending its ban on premium processing on certain H-1B petitions. Premium Processing allows an employer to seek an adjudication of a visa petition within 15 days upon payment of an additional filing fee, currently $1,225 (increasing to $1,410 on October 1, 2018). Employers should review their current and upcoming H-1B visa needs to determine how the ban will impact their matters, so they can plan accordingly.
To be specific, USCIS estimated earlier this year it would reinstate Premium Processing for H-1B cap cases in September 2018 (in roughly two weeks from now). The suspension of Premium Processing for Fiscal Year 2019 H-1B Cap Petitions is now expected to be extended through at least February 19, 2019. USCIS expects this suspension will help reduce the processing time for H-1Bs by allowing it to process long-pending petitions. In addition, USCIS states that the temporary suspension will allow them to be more responsive to petitions with time-sensitive start dates, as well as to prioritize adjudication of H-1B extension of status cases that are nearing their 240-day work authorization limit dates. (more…)
You did everything right. You got into the best school, you got the necessary work experience, you found an employer willing to sponsor you for an H-1B visa, and you filed on April 1. However, despite all your work, your case was not selected as part of this year’s H-1B lottery. Through forces beyond your control, you are now back to square one, wondering whether you must now leave the United States.
But wait! There may still be an alternative visa option available to you within the alphabet soup of U.S. work visas. So, before throwing in the towel and packing your bags, you may want to consider the list of alternative U.S. work visa categories below. One of these alternative visas may offer you the best chance for future employment in the United States – and while the list is not conclusive, it represents the most likely options for you to secure U.S. work authorization. (more…)