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The partial shutdown of the U.S. federal government is in its second month and is beginning to affect some immigration-related services that impact employers, travelers and U.S. missions abroad.
On Thursday, the Senate failed to pass two competing bills aimed at ending the shutdown. A prolonged shutdown could have a widespread impact on immigration services. Government operations that are funded through budget appropriations are suspended, but services funded by fees are not affected until their fee-based funding runs out.
Key points:
BAL Analysis: Employers and international travelers should plan for a potentially lengthy shutdown as lawmakers appear far from agreement on how to break the impasse. In particular, companies using E-Verify are reminded that they are still required to fulfil all Form I-9 obligations while E-Verify is unavailable. BAL recommends that companies maintain their lists of new hires since Dec. 22, 2018 to ensure that all new hires are properly submitted to E-Verify when the system reopens. Companies should notify employees who are traveling to the U.S. to make sure that their I-94 stamp correctly reflects their permitted duration of stay in the U.S. before leaving the immigration entry gate, as CBP has limited resources to correct or update any errors.
This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com
Copyright © 2019 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com.
IMPACT – HIGH
Venezuelan President Nicolas Maduro has announced that he is cutting all political and diplomatic ties with the United States and has ordered all diplomatic personnel to leave the country within 72 hours.
Background: Maduro’s announcement came hours after President Donald Trump officially recognized opposition leader Juan Guaido as Venezuela’s president.
BAL Analysis: Companies are encouraged to account for critical personnel in Venezuela and anticipate that U.S. consular services in Venezuela will be suspended until further notice.
This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.
The Supreme Court has not announced whether it will be reviewing the Trump Administration’s termination of Deferred Action for Childhood Arrivals (DACA), which means it probably will not consider the case this term. The Court could still accept the case for review and place it on the docket for the fall.
Please note that this update is from the first Trump administration in 2019. There are currently no updates regarding the status of DACA in 2025.
Background: The Trump administration ended the DACA program in December 2017 with a delayed termination date of Mar. 5, 2018, claiming the Obama-era program was unconstitutional. Meanwhile, lawsuits are pending in lower courts that allege that the decision to end DACA was unconstitutional and in violation of the Administrative Procedure Act. Another case, which Texas and several other states filed, sought to immediately terminate DACA. In November 2018, the Trump administration requested Supreme Court review.
BAL Analysis: The Supreme Court neither granted nor denied the request for review of the case. Given the Court’s typical timelines, the earliest the Supreme Court could take the case is next term, which begins Oct. 7. For the time being, DHS will continue to accept renewal DACA applications, but not new DACA applications while the litigation proceeds. Congress could also pass a legislative measure reinstating the program.
U.S. Citizenship and Immigration Services has announced that in February it will follow the State Department’s Final Action Dates chart, as published in the February Visa Bulletin, to determine whether employment-based applicants are eligible to file for adjustment of status.
Application Final Action Dates for Employment-Based Preference Cases:
Family-based immigrants will use the Dates for Filing chart applicable to family-sponsored immigrants, which was also published in the February Visa Bulletin.
BAL Analysis: Although in recent months USCIS has used the State Department’s Dates for Filing chart, the reversion to the use of Final Action Dates was expected. USCIS recently indicated that based on current trends in inventory and visa use, it anticipated having to use the Final Action Dates as early as February. Employment-based green card applicants who are currently able to file in January should do so before the end of the month.
Copyright © 2018 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com.
Priority-date cutoffs for all EB-1 categories will advance by about two months based on Final Action Dates in February, according to the State Department’s February Visa Bulletin. EB-2 China will also advance by two months, while EB-3 China will advance by only three weeks. For Indian nationals, the EB-3 category will advance by nearly two months, while EB-2 will advance by only five days.
Key movements:
EB-1
EB-2
EB-3
Additional notes: The EB-4 category for religious workers (other than ministers) and the EB-5 Regional Center (I5 and R5) Immigrant Investor program lapsed as of Dec. 21, 2018 when the temporary spending measure funding expired. If Congress extends the EB-4 category for fiscal year 2019, the final action date would immediately become current in February for all countries except El Salvador, Guatemala and Honduras which would be subject to a March 1, 2016 final action date, and for Mexico, which would be subject to a Sept. 1, 2017 final action date. If Congress extends the EB-5 Regional Center program, the final action date would become current for February except for China, which would be subject to a Sept.1, 2014 final action date, and for Vietnam, which would be subject to a June 15, 2016 final action date.
Guatemala
Honduras
The State Department has released its Dates for Filing chart for January and USCIS will confirm via a web posting whether it will follow the chart in determining filing eligibility for adjustment of status applicants.
BAL Analysis: The February Visa Bulletin predicts the following monthly movements in final action priority-date cutoffs for employment-based categories in upcoming months: EB-1 worldwide is expected to advance up by up to two months, while EB-1 China and India are expected to see monthly advancement of one month. EB-2 worldwide is expected to remain current for the foreseeable future, while EB-2 China is expected to advance up to three months and EB-2 India up to one week. EB-3 worldwide and Mexico are expected to remain current, while EB-3 China is expected to advance up to three weeks, and EB-3 India is expected to advance up to three months. EB-3 Philippines will advance rapidly to generate demand.
For adjustment of status applicants, in recent months USCIS has used the Dates for Filing Chart, which lists priority-date cutoffs that are normally earlier than the final action dates. However, USCIS has indicated that it anticipates using the “final action” date in February: “Based on current trends in inventory and visa use, USCIS anticipates that applicants in the employment-based preference categories will have to use the Final Action Dates chart as soon as February 2019.” BAL will report if USCIS decides to continue its previous practice of using Dates for Filing for February adjustment of status applicants.
The proposed rule to reform the H-1B lottery has moved to the next stage of the regulatory process. U.S. Citizenship and Immigration Services (USCIS) sent the final version to the Office of Management and Budget (OMB) for review on Friday, Jan. 11.
The proposed regulation, which USCIS published Dec. 3, would make two changes to the H-1B lottery process: (1) reversing the order of the regular and advanced-degree lotteries to increase the likelihood that individuals holding U.S. advanced degrees would be selected, and (2) introducing a mandatory online registration system for employers seeking to sponsor H-1B candidates under the annual cap. The agency accepted comments from the public until Jan. 2 and sent the final version of the proposed rule to OMB on Friday. An FAQ on the proposal is available here.
BAL Analysis: Though USCIS will likely publish the final regulation before the fiscal year 2020 cap filing window opens on April 1, it remains unclear whether the agency will require use of the online registration system this year. Companies should continue to prepare for the upcoming H-1B cap season. BAL is monitoring the progress of the rule and will continue to provide updates on timeline and implementation.
In an early morning tweet Friday, President Donald Trump said that “H-1B holders in the United States can rest assured that changes are soon coming which will bring both simplicity and certainty to your stay, including a potential path to citizenship. We want to encourage talented and highly skilled people to pursue career options in the U.S.”
The message has caused confusion among business groups that advocate for greater H-1B access as well as among anti-immigration groups who favor restricting the H-1B category.
BAL Analysis: There is no evidence that the Trump administration is altering the course of its H-1B policy of the past two years, which has been generally to restrict access for foreign skilled workers. The public comment period on the proposed H-1B regulation that affects how H-1B cap-subject petitions are selected ended Jan. 2 and a final rule is expected in coming months.
An increasingly competitive talent market and heightened scrutiny in traditional visa categories such as the H-1B, have compelled many employers to consider alternative strategies to recruit and retain foreign talent in the United States. One frequently overlooked option is the E-2 “Treaty Investor” visa. Though traditionally used for individual investors or smaller companies branching into the U.S., the E-2 also provides an important route for large employers to move managers and other essential talent into the U.S. and retain them while avoiding the unpredictable adjudication trends occurring in other visa categories.
E-2s are limited to employers and employees who are nationals of a country holding a treaty with the U.S. The primary challenge for larger employers is establishing the qualifying nationality of the corporate entity making the investment, which requires documentation of majority ownership by nationals of the treaty country. Publicly traded companies are generally presumed to hold the nationality of the country where they are listed. According to Forbes’ Global 2000 ranking, 70% of the largest 2,000 public companies are listed or majority-owned outside the U.S. Many of these companies are listed in treaty countries, such as Japan, the U.K. and South Korea, and would likely benefit from E-2 visas for a large percentage of their workforces. In other words, the E-2 category not only lends itself well to organizations in the early stages of operating in the U.S.—it also offers flexibility to some large organizations that other visa categories do not.
The basic E-2 criteria are: 1) the petitioning employer or investor must be a national of a treaty country, 2) the employer or investor must have made or be actively in the process of making a qualifying investment in the U.S., 3) the sponsored employee must share the nationality of the treaty country, and 4) the position offered to the employee must be an executive (supervisory) role or for providing essential services.
Here’s an example of how the E-2 could be leveraged: a large Japanese electronics company that is expanding into the U.S. may need executive leadership and essential employees from headquarters to steward the newly opened U.S. entity (or entities) through important early-stage activities. As business needs evolve, the parent may then need to move specialized engineering staff into the U.S. to train local hires on the company’s products, manufacturing processes, research goals, or other critical business needs. The E-2 visa category would enable the corporate parent to leverage its talent quickly, adapting to these market needs in the U.S. in real time, without the delays or challenges of categories like the H-1B or L-1. Unlike the L-1, a more familiar alternative to H-1Bs, the E-2 does not require the employee to have been previously employed with the petitioning employer abroad. What makes this category challenging for many companies is the nationality criteria—in addition to proving the corporate entity’s qualifying nationality, employees must share the nationality of the employer to be eligible for E-2 visas. In our example, only Japanese nationals would be eligible as E-2 employees. The typical process for pursuing an E-2 is to file directly with a U.S. consulate, and although the process varies by location, generally a company files an initial registration and, once registered, enjoys an expedited process for subsequent employees.
In an increasingly challenging U.S. immigration climate, BAL encourages all employers to engage proactively with counsel to assess all options. While the oft-overlooked E-2 may not be a solution for all, it does provide a critical route for many employers.
The information contained here is meant to be informational, and while BAL has made every effort to ensure the accuracy of the information, it is not promised or guaranteed to be complete. Readers of this information should not act upon any information contained on this alert/blog without seeking professional counsel. This alert does not constitute legal advice or create an attorney-client relationship. Any reference to prior results, does not imply or guarantee similar future outcomes.
The Labor Department‘s iCERT portal posted an update Thursday evening regarding the current system outage.
Background: The outage began Jan. 1, the first day of the semi-annual filing period for H-2B temporary labor certifications, and was caused by a spike in demand for H-2B certifications. Thursday’s announcement indicated that the agency is currently testing the system to process a record number of applications and has made 50 servers available.
BAL Analysis: Employers should anticipate delays even after the system reopens and works through the large number of applications. The outage affects employers filing H-1B, H-1B1 and E-3 nonimmigrant petitions for which the labor condition application (LCA) is a prerequisite and PERM labor certification cases in which a prevailing wage determination is required.
The Labor Department’s iCERT portal is experiencing a system outage due to unprecedented user demand starting Jan. 1. The agency has not indicated how long the outage will last, but said it would provide an update Thursday.
Background: The outage began Jan. 1, the first day of the semiannual filing period for H-2B temporary labor certifications, caused by a spike in demand for H-2B certifications. The Labor Department announced that it is working to have the system ready within a few days to accept a record number of H-2B applications.
BAL Analysis: Employers should anticipate delays as the agency works to reopen the system. The inability to file labor condition applications (LCAs) affects employers filing H-1B, H-1B1 and E-3 nonimmigrant petitions for which the LCA is a prerequisite, and the inability to file prevailing wage requests affects PERM labor certification cases in which a prevailing wage determination is required.