Immigration

ICE To Increase STEM OPT Worksite Inspections

US Customs and Border Protection

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By Benjamin Lau and David Rugendorf

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.

What Is a Site Visit? (more…)

Critical Restrictions on French Nationals (E Visas)

Worker is applying for Visa to Paris France.

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By Frida P. Glucoft and Janice Luo

On August 20, 2019, the U.S. Department of State (DOS) announced that the reciprocity schedule for France will be revised for E visas to decrease validity periods. Specifically, effective August 29, 2019, E visas will be limited to a validity of only 15 months. Until this change, E 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. (more…)

US Visa Applicants Now Required To Provide Social Media Identifiers

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By Benjamin Lau and David Rugendorf.

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…)

Warning to Employers When Staffing Special Projects

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By Susan Kohn Ross and Frida P. Glucoft

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…)

H-1B Visas: Employers Be Aware of Potential Changes

U.S. Citizenship and Immigration Services envelope, white folder for naturalization certificate on table with American flag

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By David S. Rugendorf

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…)

USCIS Extends (and Expands) Premium Processing Ban

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By David S. Rugendorf

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…)

My H-1B Was Rejected In The Lottery! What Now?

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By Benjamin Lau and John E. Exner IV

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…)

Your Driver’s License Is Still Valid For Domestic Air Travel, At Least For Now

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By Benjamin Lau and David S. Rugendorf

As the Department of Homeland Security continues to phase in the requirements of the REAL ID Act, some domestic airline travelers may be prohibited from using their state-issued driver’s license or ID card in order to board their flight.

After January 22, 2018, state-issued driver’s licenses and IDs may be used for domestic airline travel only if they were issued by a state which is in compliance with the REAL ID Act or has been granted an extension by the Secretary of Homeland Security. Currently, all 50 US states, Puerto Rico, Guam, and the US Virgin Islands are either in compliance with the REAL ID Act or have been granted an extension by the Secretary of Homeland Security.  The only US nationals impacted by the January 22, 2018 date are individuals who possess driver’s licenses or IDs issued by American Samoa or the Northern Mariana Islands. (more…)

Hold That Call International Travelers: CBP Doubles Down on Airport Searches of Electronic Devices

Man Checking Mobile Is Charged At Airport Security Check

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By David S. Rugendorf and Frida P. Glucoft

Many international travelers express surprise when, after arriving at LAX, JFK or other US airports or land borders, the US Customs and Border Protection (CBP) officer directs them to hand over their smartphone, laptop or related electronics device for a search. As disconcerting and invasive as it may be to have a uniformed total stranger work his or her way through one’s e-mails, photos and hard drive, one should be aware that it is generally within the authority of immigration and customs officials to conduct such searches. Just as one’s person and luggage is subject to search upon arrival to the US, so are one’s electronic devices. International travelers should be forewarned that these types of searches may become more commonplace than they already are. CBP reports that in 2017, it conducted more than 30,000 electronics device searches at airports and land borders, almost double the amount of searches it conducted in 2016. Now with a fresh policy in place, it is safe to expect this upward trend to continue. (more…)

California Passes Immigrant Worker Protection Act

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By Janice Luo and Justine Lazarus

California Governor Jerry Brown has signed the Immigrant Worker Protection Act (AB 450), which restricts public and private employers in California from admitting immigration inspectors to the workplace without a judicial warrant.  It also requires employers to notify their employees before and after certain immigration inspections take place.  The new law, which adds Sections 7285.1, 7285.2, and 7285.3 to the California Government Code, and Sections 90.2 and 1019.2 to the California Labor Code, will take effect on January 1, 2018.

In conflict with the U.S. Immigration and Customs Enforcement’s (ICE) plans to increase enforcement actions under the Immigration Reform and Control Act (IRCA), which includes criminal and civil penalties for employers who knowingly employ unauthorized workers; the new California law seeks to protect foreign workers from unfair immigration-related practices, potentially causing problems for employers who must comply with federal and state laws.  (more…)