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IMPACT – MEDIUM
What is the change? The Israeli government has agreed to reciprocal terms with the U.S. on investor visas.
What does the change mean? The decision clears the way for Israel to offer investor visas to U.S. nationals under terms that are similar to those of the U.S. E-2 treaty investor program for which Israeli citizens will be eligible.
Background: The two countries have been in discussion over the visas since 2012, when the U.S. moved to make Israelis eligible for investor visas but required reciprocal rules. In 2014, Israel also approved a decision to offer investor visas to Americans, but implementation stalled because Israel was required to make changes to its regulations in order to parallel the U.S. rules. The Israeli government has now accepted the changes required by the U.S. and is poised to implement the visas once procedures are in place.
The U.S. E-2 treaty investor visas allow certain foreign nationals to enter the U.S. for purposes of making a substantial investment in a bona fide new or existing business in which they have at least 50 percent ownership or control.
BAL Analysis: In the coming months, interested investors can expect procedures to be published and a start date to be announced for the visas.
This alert has been provided by the BAL Global Practice group and our network provider located in Israel. For additional information, please contact your BAL attorney.
Copyright © 2017 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.
U.S. Citizenship and Immigration Services said Thursday that it will accept previous versions of immigration forms until Feb. 21 after new forms were posted Dec. 23.
Key points:
Background: USCIS released dozens of new forms Dec. 23, including the following:
Initially, the USCIS website indicated that no prior versions of the forms would be accepted, with the exception of Form I-129 (Petition for Nonimmigrant Worker). The agency’s statement Thursday, however, made it clear that with the exception of Form N-400 a grace period lasting until Feb. 21 will be honored.
BAL Analysis: USCIS’s clarification that old forms will continue to be accepted until Feb. 21 is welcome news, but the agency also made it clear that applicants must adhere to the new fee schedule and that only the Dec. 23 form will be accepted for Form N-400 filings.
This alert has been provided by the BAL U.S. Practice group. For additional information, please contact BerryApplemanLeiden@bal.com.
Copyright © 2016 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.
The Board of Immigration Appeals on Tuesday certified as precedent a new set of standards established by the USCIS Administrative Appeals Office for establishing whether there is a national interest in waiving the labor certification for EB-2 immigrants, members of the professions holding an advanced degree. These new standards, outlined in the new decision, Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016), should make it easier to waive the certification than the earlier standards, which had been in place since 1998.
The new case states that USCIS may grant a national interest waiver if the petitioner demonstrates:
Background: EB-2 immigrants qualifying as members of the professions holding an advanced degree are required to obtain a labor certificate unless the petitioner can establish it is in the “national interest” to waive this requirement. The new rules should make it easier to waive the labor certification.
BAL Analysis: The case explains a number of ways in which the new rule will make it easier to support a national interest waiver. First, by changing the criteria from “national in scope” to “national importance,” it clarifies that it is not necessary to establish that the position will have a nationwide geographic impact. For example, the case states that a substantial positive economic impact in an economically depressed area can have national importance even if it is geographically limited. Second, it changes the focus from the nature of the employment to the qualifications—education, skills, experience and knowledge—of the applicant. Finally, it rejects the need to show that national interest would be harmed if a labor certification was required. The case points out that this last requirement was sometimes used to require evidence similar to what would be required in a labor certification, and made it overly difficult for self-employed individuals to qualify. The case states that this last change was made in part to assist entrepreneurs and other self-employed applicants to qualify for the waiver. This alert has been provided by the BAL U.S. Practice group. For additional information, please contact BerryApplemanLeiden@bal.com.
Without notice Friday, U.S. Citizenship and Immigration Services released new versions of dozens of forms with an effective date of Dec. 23, 2016.
Forms for which new versions were released Friday include:
BAL Analysis: The release of the new forms was unannounced and an unusual move on the part of USCIS. BAL continues to seek information on the matter and will keep clients updated when new information becomes available.
The Department of Homeland Security published a final rule Friday in the Federal Register that eliminates regulations that created the National Security Entry-Exit Registration System (NSEERS), a program introduced in 2002 that required nonimmigrants from designated predominantly Arab and Muslim countries to complete special registration procedures when traveling to the U.S.
Background: NSEERS was introduced in 2002 and required males over 16 years old from 25 designated countries to be fingerprinted and photographed upon arrival and report their whereabouts within 30 days and every year thereafter. A DHS public notice in 2011 stated that the agency would no longer require NSEERS registration and removed all countries from the designated list. In 2012, the Office of the Inspector General of DHS recommended that the program be eliminated, citing a strain on resources and ineffectual functioning of the program.
BAL Analysis: President-elect Trump has said he will impose “extreme vetting” on travelers from certain regions, which could take the form of reviving the post-Sept. 11 “special registration” procedures. The removal of previous regulations would make it more difficult for the incoming administration to reinstate the NSEERS program, however. BAL continues to follow immigration-related policies of the incoming administration.
This alert has been provided by the BAL U.S. Practice group. For additional information, please contact your BAL attorney.
U.S. Citizenship and Immigration Services has announced that in January it will only accept employment-based adjustment-of-status applications based on the Application Final Action Dates chart.
The Dates for Filing chart, published in the State Department’s January Visa Bulletin, will not apply. Employment-based immigrants must follow the Application Final Action Dates chart (below) to determine if they are eligible to file their adjustment-of-status petitions with USCIS. Only applicants with priority dates earlier than the dates listed in the chart will be permitted to file their applications for adjustment of status in January.
Application Final Action Dates for Employment-Based Preference Cases:
This marks the first time in the 2017 fiscal year that the Dates for Filing chart will not apply to employment-based filings. Family-based immigrants, however, will be permitted to use the Dates for Filing chart applicable to family-sponsored immigrants, which also is contained in the January Visa Bulletin.
Employers are reminded to begin preparing now for H-1B cap season to ensure that their petitions are ready to be filed before the first day of filing, which is April 3, 2017.
While speculation continues about what the Trump administration may do to potentially limit the H-1B visa program, no concrete changes have been proposed at this time that would affect the coming cap season. While employers should leave open the possibility of changes before the start of the filing period, they should prepare to proceed as normal in the meantime.
Volume is expected to be high again this year, due to the usual drivers such as skills shortages, low unemployment and a stronger economy, with the additional uncertainty about the new administration and potential restrictions on H-1B visas in coming years.
As in the past four years, this season’s H-1B cap petitions are likely to be selected by lottery, which occurs when the number of petitions filed in the first week of the filling period exceeds the annual caps. The annual H-1B cap is 65,000 for undergraduate-degree holders, with an additional 20,000 for individuals holding advanced degrees from U.S. educational institutions. Last year, USCIS received nearly 236,000 H-1B petitions for the 85,000 visas available.
With early planning, employers can ensure that they have enough time to complete their petitions well in advance of the first day of filing. Here are a few steps employers should take now:
Employers should assess their workforce needs and identify H-1B candidates who will be subject to the cap. The H-1B cap applies to foreign workers who are seeking new H-1B status, such as newly graduating foreign students in the U.S. or overseas workers who are seeking to start work in the U.S. with H-1B status. The cap does not affect individuals who were counted against the cap during the previous six years or those seeking to extend their H-1B status or change employers.
Employers should work with their recruiters to finalize job offers for potential H-1B employees planning to start work Oct. 1, 2017. Special attention should be given to individuals in the U.S. whose current visa status is due to expire. These may include students in F-1/Optional Practical Training (OPT) status, intracompany transferees on L-1B visas, Australian nationals on E-3 visas, and Canadian and Mexican NAFTA professionals on TN visas.
Employers should send descriptions of the prospective H-1B employee’s position, including job duties and the position’s minimum qualifications, to their BAL attorney as soon as they are complete. Job descriptions are required for the Labor Condition Application for Nonimmigrant Workers (LCA), a prerequisite to the filing of the H-1B petition in which an employer promises to pay at least the prevailing wage for the occupation. While the Labor Department normally takes seven days to certify an LCA, it may take longer depending on the offered salary, prevailing wage and specifics of each case.
Employers and individuals should not leave document collection and preparation to the last minute. In particular, foreign academic transcripts, certificates and other educational documents are among the most time-consuming to prepare because official versions must be obtained, translated and evaluated to show that the candidate has earned the equivalent of at least a U.S. bachelor’s degree. In addition, prospective H-1B candidates who do not have a formal degree must gather and provide evidence of sufficient years of experience so that an official educational equivalency document may be prepared.
Companies are encouraged to explore potential alternatives to the H-1B category with their BAL attorney early in the season to allow enough time to pursue other avenues, such as other visa categories, for workers who do not obtain an H-1B visa. After the close of this cap season, employers must wait until April 2018 to file H-1B cap petitions again.
BAL Analysis: Employers and individuals can maximize their chances of filing within the first week of April by planning early. In addition to the steps listed above, employers should make sure they have budgeted for the higher immigration-related filing fees that take effect Friday.
New filing fees for petitions and applications filed with U.S. Citizenship and Immigration Services take effect Dec. 23.
Some of the new fees for employment-related petitions and applications are listed below:
BAL Analysis: Employers and affected foreign nationals should budget for the new fees and make sure that filings postmarked or submitted on and after Dec. 23 include the appropriate filing fees.
Four key immigration programs have been extended without alteration after Congress passed a short-term budget bill this past weekend.
The programs were set to expire Dec. 9 after Congress passed a stopgap spending measure Sept. 30, at the end of the fiscal year. The immigration programs, along with other federal government programs, have now been extended again through April 28, 2017.
The programs that were extended are:
E-Verify. E-Verify is the electronic system that employers use to verify employees’ authorization to work in the U.S. The system compares information from an employee’s Form I-9, Employment Eligibility Verification, to U.S. Department of Homeland Security and Social Security Administration data. Certain employers who enter into contracts with the federal government are legally required to participate in E-Verify, and some states have enacted laws mandating wider participation.
The extension of the programs described above applies not only to principal visa applicants, but also to spouses and dependent children. Notably, the spending bill did not reinstate a “returning worker” exemption in the H-2B nonimmigrant visa program that lapsed at the end of the 2016 fiscal year.
BAL Analysis: The spending bill will extend the programs listed above through April 28, but Congress must approve a longer-term budget bill for them to be extended beyond that.
Priority cutoff dates for India EB-2, China EB-2 and most EB-3 categories will advance modestly, according to the State Department’s January Visa Bulletin.
Key movements in priority cutoff dates:
Additional notes: All EB-1 categories will remain current. All EB-2 categories other than India and China will also remain current.
The State Department also released its Dates for Filing chart for January 2016. Applicants seeking to file for adjustment of status are reminded that the chart does not take effect until USCIS confirms it via a web posting in the next week or so. BAL will update clients once the State Department confirms whether the chart can be used in January.