USCIS proposes new rule regarding temporary admission to United States for international entrepreneurs

News Release from Jewell Stewart & Pratt PC U.S. Citizenship and Immigration Services (USCIS) is proposing a new rule that would allow certain international entrepreneurs to be considered for parole – temporary permission to be in the United States – so that they may start or scale their businesses here. The rule would guide the use of parole on a case-by-case basis with respect to entrepreneurs of start-up entities whose entry into the United States would provide a significant public benefit. Under this rule, the Department of Homeland Security would be able to parole, on a case-by-case basis, eligible entrepreneurs of startup enterprises:

  • Who have a significant ownership interest in the startup (at least 15 percent) and have an active and central role to its operations.
  • Whose startup was formed in the United States within the past three years.
  • Whose startup has substantial and demonstrated potential for rapid business growth and job creation – as demonstrated by receipt of significant investment from qualified U.S. investors, or receipt of significant awards from certain government entities (or other evidence, if either or both of these criteria is partially satisfied.)

If granted, parole would provide an initial stay of up to two years (extendable up to an additional three years) to facilitate the applicant’s ability to oversee and grow the start-up entity. A subsequent request for re-parole would be considered only when the entrepreneur and the start-up entity continue to provide a significant public benefit, as evidenced by substantial increases in capital investment, revenue, or job creation.

Once the notice of proposed rulemaking is published in the Federal Register, the public will have 45 days from the date of publication to comment. Read USCIS’ full press release on its website, here.

© Jewell Stewart & Pratt PC 2016

Unannounced USCIS site visits to workplaces where H-1B and L-1 workers are employed

News Release from Jewell Stewart & Pratt PC The following post excerpts and adapts an American Immigration Lawyers Association (AILA) posting dated July 26, 2016 (AILA InfoNet Doc. No. 16072604).

In a prior post we drew attention to site visits by the Fraud Detection and National Security directorate (FDNS) of the U.S. Citizenship and Immigration Services (USCIS). This program still operates: employers agree, by signing Form I-129 “Petition for Nonimmigrant Worker,” that “supporting evidence submitted may be verified by USCIS through any means determined appropriate… including but not limited to, on-site compliance reviews.”

These site visits are conducted without notice and are typically complete in less than an hour. They consist of one or more of three stages: a meeting with a staff member of the employer, a look at the premises, and a meeting with the employee beneficiary of the visa petition. The purpose of the visit is to verify the employer’s existence, the validity of the information in the visa petition, and whether the foreign national is complying with the terms of the visa petition. The inspector may ask for documentation to compare with the information in the visa petition, and may wish to address any inconsistencies discovered.

The American Immigration Lawyers’ Association has compiled a list of helpful practice pointers to prepare for a site visit, some of which we summarize here:

  1. Employers should be aware of the possibility of site visits, and should have policies and procedures in place to react to them effectively.
  2. Employers and H-1B employees should be certain that the information contained in their visa petition is accurate.
  3. Employers should record the USCIS site inspector’s name, title, and contact information to ensure that post-visit communications are directed correctly.
  4. The employer’s staff members who are designated to handle a site visit should know where to find copies of visa petitions quickly.
  5. Employers should bear in mind at all times that material changes to job duties (and in the case of H-1Bs, changes to work location) require amended petitions, and that failure to file an amended petition before such a change occurs can have consequences for the employee’s legal status.
  6. An employer should be ready to explain any apparent discrepancies between the visa petitions and other documents the USCIS inspector may ask to see. (Example: L-1 companies may legally pay part of the beneficiary’s salary through the foreign employer; so a U.S. pay statement may not necessarily match the salary listed in the petition.)
  7. If during the site visit, the employer or H-1B employee is unsure of an answer to a question, they should ask for additional time and offer to follow-up later with the officer, rather than guessing.

In the event of a site visit by USCIS, employers should contact their immigration attorney immediately. Though most visits are unannounced and FDNS will not reschedule a visit to accommodate counsel, counsel is allowed to be present during a site visit, and might be permitted to participate via telephone. If counsel cannot attend the site visit, the employer should write a detailed description of what happened, to be shared with counsel afterwards.

© Jewell Stewart & Pratt PC 2016

Jewell Stewart & Pratt attorneys selected for inclusion in Super Lawyers ®

News Release from Jewell Stewart & Pratt PC Jewell Stewart & Pratt is pleased to announce that three of its lawyers have been selected for inclusion in Northern California Super Lawyers ® in 2016. Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The selection process includes independent research, peer nominations and peer evaluations.

Phyllis Jewell, a principal of the firm and its Managing Attorney, has been selected in Super Lawyers from 2004 to 2013, 2015, and now again in 2016. Only 5 percent of lawyers in a state are selected for inclusion in Super Lawyers. Principal Claire Pratt and associate Chris Beckerson were selected as Rising Stars in 2015, and have been selected again in 2016. To be eligible for inclusion in Rising Stars, a candidate must be either 40 years old or younger or in practice for 10 years or less. No more than 2.5 percent of lawyers in a state are named to Rising Stars.

Congratulations to Phyllis, Claire, and Chris!

© Jewell Stewart & Pratt PC 2016

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Extraordinary visa wait times at U.S. consular posts in India

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News Release from Jewell Stewart & Pratt PC The American Immigration Lawyers Association (AILA) has reported that U.S. Consular Posts in India are experiencing extraordinary wait times for nonimmigrant visa interview appointments. The wait times for all categories other than B, F, and J are currently:

These wait times are likely to continue, if not worsen, during the summer. Indian nationals who are considering obtaining a new visa may therefore wish to defer that travel until the backlogs have subsided; or, if their travel is essential, to be prepared for long delays in the scheduling of visa interviews. AILA provides the following helpful reminders:

  • The Mission India visa appointment system allows requests for expedited appointments. First priority goes to cases with humanitarian issues. Second priority goes to business emergencies; such requests must include reasons why the need to travel is urgent, why advance planning was not possible, the impact to the business if the travel does not occur, etc.
  • Applicants for a petition-based visa must have already obtained USCIS approval of the underlying petition before requesting an interview.
  • If an Indian national has reason to travel to another jurisdiction, applying outside of India as a Third Country National may be an option. Such applications are mostly likely to be successful in petition-based cases where INA §214(b) does not apply (i.e., H-1B and L-1).

Jewell Stewart & Pratt will continue to monitor progress and will report significant developments here.

AILA members can access the original post at www.aila.org (doc. no. 16061330, dated June 13, 2016).

© Jewell Stewart & Pratt PC 2016

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H-1B Cap update – USCIS reports 236,000 H-1B petitions received

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News Release from Jewell Stewart & Pratt PC

Today USCIS announced that it received over 236,000 H-1B petitions in the filing period that began on April 1. On April 9 USCIS used a computer-generated random selection process (commonly known as a “lottery”) to select a sufficient number of petitions needed to meet the cap. USCIS says that it conducted the selection process for advanced degree exemption petitions first; all advanced degree petitions not selected were then made part of the random selection process for the 65,000 limit. Any petitions not randomly selected will be rejected and returned with the filing fees.

© Jewell Stewart & Pratt PC 2016

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H-1B Cap reached, lottery triggered

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News Release from Jewell Stewart & Pratt PC

U.S. Citizenship and Immigration Services (USCIS) announced today that it has received a sufficient number of H-1B petitions to reach the statutory cap for fiscal year (FY) 2017. USCIS has also received more than 20,000 H-1B petitions filed on behalf of persons exempt from the cap under the U.S. advanced degree exemption. USCIS will not accept H-1B petitions subject to the FY 2017 cap or the advanced degree exemption after today.

USCIS will use a computer-generated random selection process (commonly known as the “lottery”) for all FY 2017 cap-subject petitions received through April 7, 2016. The agency will conduct the selection process for advanced degree exemption petitions first. All advanced degree petitions not selected will be part of the random selection process for the 65,000 limit. Due to the high number of petitions received, USCIS is not yet able to announce the exact day of the random selection process.

USCIS is expected to provide more detailed information about the H-1B cap soon.

© Jewell Stewart & Pratt PC 2016

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New regulation on F-1 STEM OPT extensions, effective May 10, 2016

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On March 11, 2016, the U.S. Department of Homeland Security published a Final Rule, effective May 10, 2016, 81 Fed. Reg. 13039 (March 11, 2016), that provides requirements and procedures for 24-month extensions to post-completion Optional Practical Training (OPT) work authorization of foreign nationals who are in F-1 student visa status with U.S. degrees in fields of Science, Technology, Engineering, and Mathematics (“STEM” fields). The new regulation also contains transition provisions for approved and pending STEM OPT applications filed under prior regulations. Finally, the new regulation carries over the “cap gap” work authorization and status extension provisions that existed under prior rules.

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STEM OPT cut-off of 02/12/2016 is postponed to 05/10/2016

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On January 23, 2016, the federal district court in Washington Alliance of Technology Workers v. U.S. Department of Homeland Security, No. 1:14-CV-00529 (ESH), Document 51 (D. D.C. January 23, 2016), granted a motion by the U.S. Department of Homeland Security to postpone the effective date of the court’s vacatur of DHS’s 2008 STEM OPT regulation from February 12, 2016 until May 10, 2016. In effect, this leaves existing grants of STEM OPT in place until May 10, 2016, and allows DHS temporarily (until May 10, 2016) to continue accepting STEM OPT applications under its 2008 rules. In the meantime, DHS is expected to review the ~50,500 comments it received in response to the proposed replacement regulation it published in October 2015 and to adopt a final rule governing STEM OPT.

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Visa Waiver Program eligibility changes

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The 2016 Consolidated Appropriations Act was signed into law on December 18, 2015.  In addition to funding the U.S. federal government through the 2016 fiscal year, it includes far-reaching, immediately effective changes to the Visa Waiver Program.  As background, citizens of the 38 countries participating in the Visa Waiver Program (“VWP”) may come to the United States as visitors for business or pleasure without first obtaining visitors’ (B-1 or B-2) visas in their passports.  They may visit the U.S. for periods of up to 90 days, provided that they are eligible for admission as visitors under applicable law.