In November 2014, President Obama announced a series of immigration-related Executive Actions. One action item that had yet to see any movement was the allowance of a special parole to foreign nationals seeking to start companies in the U.S. provided they intend to hire U.S. workers and have adequate funding. Earlier this month, the Department of Homeland Security (DHS) submitted a proposed rule to the Office of Management and Budget (OMB) to establish such a program. The understanding is it will grant, on a case-by-case basis, parole for certain inventors, researchers, and entrepreneurs who will establish a U.S. start-up entity, and who have been awarded substantial U.S. investor financing or otherwise hold the promise of innovation and job creation through the development of new technologies or the pursuit of cutting edge research. While this is an important step for the startup community we need to see the full text of the proposed legislation before we can advise on its suitability for clients. We will provide updates as they become available.
While USCIS has been conduct Fraud Detection and National Security (FDNS) employer site visits since 2009, USCIS has indicated that employers may be experiencing an increase in site visits related to filings for H-1B, L-1, and R-1 petitions. FDNS is legally authorized to conduct announced site visits to verify evidence submitted in support of the petition to ensure compliance with the relevant regulations. As these visits are unannounced and random, we recommend that employers have a plan in place with building reception which includes contacting HR whenever a government agent requests to visit any employee (Note: typically such investigators ask for the employee first, and we do not recommend employees meet individually with these officers). We also recommend that employers contact their immigration counsel with any questions or concerns, and cooperate with the government official conducting the site visit.
On August 8, 2016, the Department of State released the September 2016 Visa Bulletin. This bulletin showed no progression for any area in the EB-1 category. In addition, EB-2 India was the only chargeability area to have an advance in its final action date, which progressed from 15Nov04 to 22Feb05. However, several changes were made to the EB-3 category. The EB-3 category for all countries has slightly progressed, with a priority date of 01May16 for all chargeability areas except China, India, and the Philippines (01Jan10, 08Nov04, and 15Mar16 respectively). As with months past, USCIS has indicated it will only allow applications to be filed based on the first chart. As October 1, 2016 marks the start of the next government fiscal year, we anticipate most categories that were hit by rollbacks in the last 2-3 months will move forward to April or May 2016 bulletin dates.
On July 29th, USCIS published a final rule in the Federal Register expanding the class of individuals eligible to request a provisional waiver of inadmissibility based on unlawful presence before departing the U.S. for consular processing – the change expands coverage to include legal permanent resident spouses and parents as qualifying under the program. This rule will go into effect August 29, 2016. This expands the current program which had limited eligibility to immediate relatives of U.S. citizens. Immediate relatives are recognized as spouses, parents, or unmarried children under the age of 21. A provisional waiver is helpful for undocumented people in the U.S. who are fearful of leaving the U.S. to process a family based green card without knowing if they will get a waiver, or have concerns about leaving the U.S. for a lengthy period of time – the provisional waiver solves these issues. The provisional waiver requirements remain unchanged – the applicant must still show that denial of admission would result in extreme hardship to the U. S./Permanent Resident citizen spouse, parent, or child. These changes will be reflected in the Form I-601A, Application for Provisional Unlawful Presence Waiver, beginning August 29th.
** This newsletter/memo is provided for informational and discussion purposes only. It does not act as a substitute for direct legal contact on an individual basis **