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The Business Executive Program will be retired April 1, the U.S. Mission to India announced Monday.
The BEP was established in the 1990s to facilitate visa processing for Indian companies requiring a high number of U.S. business visas. In announcing the program’s demise, the U.S. Mission cited a number of changes within the U.S. Mission and the Indian business community.
Existing BEP appointments will be honored beyond the April 1 end date, but all BEP logins will be disabled as of that day. After April 1, all companies will be required to make appointments through the U.S. government’s Consular Team India appointments contractor at www.ustraveldocs.com/in. Those with urgent business needs are advised to apply for expedited appointments by visiting www.ustraveldocs.com/in/in-niv-expeditedappointment.asp.
The changes the U.S. Mission cited when announcing the end of BEP included outsourcing the process for making visa appointments, shifting to a system that allows for same-day interviews and creating a call center to answer applicants’ questions. The nature of international business itself has changed, the U.S. Mission said, such that many companies that are “industry leaders and strong U.S. commercial partners” are left out of BEP because of “BEP’s strict admission criterion.”
To qualify for BEP, companies were required to have physical locations in India and had to “demonstrate a need (for) a significant number of visas per year.”
BAL Analysis: The U.S. Mission framed the development as a way to best help all legitimate Indian business travelers by doing away with an outdated program. Though the program is ending, U.S. authorities have said they will “continue to prioritize business visas” for Indian business travelers to the U.S. BAL is unsure whether the demise of this “trusted company program” will negatively impact companies that were members of BEP. BAL will continue to follow the issue and update clients as needed.
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.
IMPACT – LOW
What is the change? Venezuela is no longer extending visa-exempt status to American visitors and will reduce the staff of the U.S. Embassy in Caracas.
What does the change mean? American citizens must apply for tourist visas at their nearest Venezuelan consulate and fulfill all visa requirements before traveling, including greater documentation and payment of new government visa fees.
Background: Venezuelan President Nicolas Maduro announced the new restrictions Feb. 27.
In addition to removing Americans from the list of travelers who are visa-exempt, the new rules will impose visa fees on American tourists and limit the number of staff at the U.S. Embassy in Caracas. Maduro said the measures reciprocate the fees (US$160) Venezuelans pay to apply for visas to enter the U.S. Previously, Americans could enter Venezuela visa-free for up to 90 days.
Relations between the two countries have soured as they continue to exchange accusations. Maduro has blamed Venezuela’s domestic instability on American meddling. In 2002, former president Hugo Chavez fingered former president George W. Bush for being behind a coup attempt that ousted him from power for 48 hours.
The U.S. recently banned several top Venezuelan officials accused of human rights abuses from traveling to the U.S. In response, Maduro will also ban a number of American politicians from entering Venezuela, including Bush, former vice president Dick Cheney, former CIA director George Tenet and Congress members Ileana Ros-Lehtinen, Robert Menendez and Marco Rubio.
BAL Analysis: America travelers will have to allow more time before travel to complete the consular visa process, while Venezuelan nationals should anticipate significantly longer lines and slower processing of visa applications to the U.S.
This alert has been provided by BAL Global Practice group and our network provider located in Venezuela. For additional information please contact your BAL attorney.
On Wednesday, President Barack Obama signed legislation to fund the U.S. Department of Homeland Security through September, ending the possibility of the agency’s partial closure for this fiscal year.
The House of Representatives passed the funding measure 257-167 Tuesday. The Senate had previously approved the legislation.
The House’s approval of a “clean” funding bill without immigration riders ended weeks of Congressional wrangling over DHS. Republicans had sought to tie DHS funding to reversal of Obama’s executive actions to provide relief from deportation to approximately 5 million undocumented immigrants.
The timing of the vote Tuesday came as a surprise to many people, since the new spending deadline was not until Friday. A partial shutdown of DHS was averted by just hours last Friday, when Congress extended funding for one week.
Obama’s immigration policies, meanwhile, remain tied up in court. A federal judge in Texas temporarily blocked a key part of the program Feb. 16. The Obama administration is appealing the ruling.
A bill that would require all U.S. employers to participate in the E-Verify program was approved Tuesday by the House Judiciary Committee. The legislation faces strong opposition from Democrats who argue that it could have a very negative effect on the agricultural sector. The bill passed out of committee along a party line vote of 20-13 with no amendments added during markup and will now move to the House floor.
Sponsored by Rep. Lamar Smith, R-Texas, the Legal Workforce Act (H.R. 1147), would replace the current paper-based I-9 system with a completely electronic check on worker eligibility. It would gradually phase in mandatory participation for new hires in six-month increments from the date of enactment based on business size. All businesses, including agricultural businesses, would be expected to fully participate after three years. The legislation would raise penalties on employers who knowingly hire immigrants who are not authorized to work, but it would also provide “safe harbor” from prosecution to employers who use E-Verify in good faith and receive an incorrect eligibility confirmation through no fault of their own.
BAL Analysis: The current bill enjoys widespread GOP support in the House, but it remains to be seen whether and how quickly it would be brought for a full vote on the House floor. It would likely face an uphill battle in the Senate, where more minority votes are needed for ultimate passage.
Meanwhile, participation in E-Verify continues to grow across the country with approximately 580,000 American employers currently enrolled, and it is generally viewed favorably. Mandatory participation is more controversial because of perceptions that certain sectors, particularly agriculture, would face serious difficulties in hiring a fully legal workforce using E-Verify without a concurrent increase in low-skilled or agricultural visas.
BAL is monitoring all legislative developments in Congress and will continue to provide updates as additional information becomes available. For more frequent updates and news, follow us on our BAL Government Affairs Twitter page.
For additional information or questions:
Lynden Melmed, Partner Washington D.C. Direct 202.842.5830 lmelmed@bal.com
Christiana Kern, Legislative Analyst Direct 202.842.5831 ckern@bal.com
A shutdown of the Department of Homeland Security was averted late Friday night when the U.S. House of Representatives passed a compromise measure that will fund the agency until midnight Friday.
Congress must vote again on Friday to keep the agency running.
In the event of a shutdown, many DHS operations would continue running, including processing of visa applications and petitions and all Immigration and Customs Enforcement operations. However, employers would most likely not be able to use E-Verify during a DHS shutdown.
The DHS funding dispute stems from President Barack Obama’s immigration executive actions in November that would provide relief from deportation to approximately 5 million undocumented immigrants. Congressional Republicans sought to scuttle the plan by defunding DHS.
The Senate passed a “clean” bill to fund DHS through the end of the fiscal year without immigration attachments, but a House measure to fund DHS for three weeks failed. The one-week funding measure passed as a stopgap.
The Department of Homeland Security faced the likelihood of a partial shutdown Friday, after the House of Representatives voted down a bill to keep the agency running for three weeks.
Funding for DHS expires at midnight.
Even in the event of a shutdown many DHS operations will continue running. Immigration and Customs Enforcement detention and enforcement operations will continue and U.S. Citizenship and Immigration Services will continue processing applications and petitions. E-Verify, on the other hand, will likely be put on hold, and the CIS Ombudsman’s Office will likely close until funding is restored.
The battle over DHS funding stems from Obama’s executive actions to provide relief from deportation to roughly 5 million undocumented immigrants, with Congressional Republicans aiming to tie DHS funding to reversing Obama’s policies.
The debate over funding continued even as the Obama administration backed off from implementing the measures after a federal judge in Texas issued a ruling temporarily blocking a key part of the program last week.
BAL will continue to pay close attention to this and other developments in Congress and will provide updates as additional information becomes available. For more frequent updates and news, follow us on our BAL Government Affairs Twitter page.
A federal court in Seattle has ruled that the position of “market research analyst” falls within the definition of “specialty occupation” for purposes of obtaining an H-1B visa.
In a rare move, the court found that U.S. Citizenship and Immigration Services abused its discretion in denying the visa petition and further ordered the agency to grant the H-1B petition.
USCIS “failed to articulate a satisfactory explanation for [its] denial based on the record it had before it,” wrote U.S. District Court Judge Ricardo S. Martinez in an 11-page ruling. “USCIS thus abused its discretion in reaching a decision that was not in accordance with its own interpretation of the statutory and regulatory framework, and its decision shall be reversed.”
The employer in the case, Raj & Company, based in Yakima, Wash., sought to sponsor Rashma Kajal, a citizen of Fiji, for the position of market research analyst to assess opportunities to expand its hotel and convenience store business. The company filed a petition for an H-1B visa on behalf of Kajal, who holds a bachelor of science degree and a certificate in business management and marketing from Brigham Young University–Hawaii. USCIS responded with a request for evidence, and the company submitted additional information about its business operations, need for the position, industry practices and the company’s history of employing a market research analyst.
Employers sponsoring foreign nationals for H-1B petitions must show that the positions meet legal definitions of “specialty occupations.” The immigration statute defines a specialty occupation as requiring “highly specialized knowledge” and at least a bachelor’s degree in the specified specialty or its equivalent as a minimum requirement for entry into the occupation.
USCIS denied the employer’s petition, finding that market research analyst did not qualify as a specialty occupation. The agency determined that even though a bachelor’s degree is typically needed for the position, the position does not require a degree in a specific specialty as a normal minimum for entry into the occupation.
The court, however, said the statute’s definition of specialty occupation “does not require a single, specifically tailored and titled degree,” evidenced by the fact that the statute allows an equivalent to be accepted where a specifically tailored degree is not available.
“While an agency has considerable leeway to interpret statutes and regulations it enforces, it is not at liberty to read plain language out of a statute,” the court said.
This is the second court to strike down a USCIS denial of an H-1B petition for a market research analyst based on the definition of specialty occupation. In 2012, a federal court in Ohio similarly found that USCIS wrongly denied an H-1B petition filed by a company that offered a market research analyst position to a 25-year-old foreign national who graduated from a U.S. university with a bachelor of science degree in marketing and finance, and completed coursework in financial and managerial accounting, spreadsheets, databases, statistical concepts, marketing behavior, marketing research, and money markets. That court also ordered USCIS to grant the H-1B petition.
“The knowledge and not the title of the degree is what is important,” U.S. District Court Judge Gregory L. Frost wrote in that ruling. “Diplomas rarely come bearing occupation-specific majors.”
BAL Analysis: The court cases are a direct result of a recent change in interpretation of “specialty occupation” by the Administrative Appeals Office. Since 2009, the AAO has repeatedly imposed a requirement of a single, specific academic degree in a tailored major – a departure from its long-held interpretation that specialized knowledge can be gained through coursework in various academic disciplines regardless of the label or title on the academic degree. Where agency interpretation improperly narrows the definition of visa criteria, employers may resort to federal courts to review visa denials. Two courts have now reinforced the AAO’s previous interpretation that the plain meaning of the immigration statute and regulations, as well as the Labor Department’s definitions of job qualifications in its Occupational Outlook Handbook, do not require a specially tailored academic degree to qualify as an H-1B specialty occupation.
A divided Supreme Court Monday heard arguments in a closely watched case involving a California woman who argues that she has a right to know why her husband was denied a visa to come to the United States.
Fauzia Din, a U.S. citizen, married an Afghan man in 2006 and had hoped to bring him to the U.S. to live with her. The State Department rejected his visa application, however, citing a federal law that bars entry to foreigners involved in “terrorist activities.” The government has not elaborated further and has maintained that it does not have to do so.
“All we’re saying is, there’s a liberty interest in not being arbitrarily denied the opportunity to live with your spouse through the erroneous application or interpretation of law by an executive decision,” Mark Haddad, Din’s attorney, told the court.
The government said Supreme Court precedent is on its side.
“This court has repeatedly held that the power to exclude aliens is inherent in sovereignty and necessary to defending the nation against encroachments and dangers,” said Edwin Kneedler, the government’s attorney. “It is a power exercised by the political branches of government.”
The justices are weighing both whether visa denials can be subject to judicial review and whether a person can bring a lawsuit on behalf of a spouse when the spouse’s visa is denied. The case reached the Supreme Court after the U.S. Court of Appeals for the 9th Circuit held that Din was entitled to a “facially legitimate reason” for her husband’s visa denial.
A number of justices expressed skepticism, but Din’s argument did seem to garner some sympathy from others. Justice Sonia Sotomayor pressed the government by asking whether a spouse should have judicial recourse in cases where “someone [is] caught up in an administrative nightmare” because of a mistake.
The court’s more conservative judges were less inclined to see things from Din’s point of view. When Justice Stephen Breyer suggested a visa could be rejected for merely offering the wrong people a place to stay, Justice Antonin Scalia jumped in and said, “Enough for me.”
Chief Justice John Roberts and Scalia both pushed Din’s attorney on whether courts could see a flood of claims from other relatives – or even fiancés – if the court sided with Din.
“In this case,” Haddad responded, “where … there’s no question at all about the validity of the marriage, we are in the heartland of what this court has recognized is an important constitutional right.”
The case, Kerry v. Din, has been widely followed. The American Immigration Lawyers Association and the National Immigrant Justice Center filed an amicus brief describing the importance of the case.
“Absent at least limited judicial review, manifest injustice inevitably will result,” the organizations wrote in their brief, “particularly in circumstances, like those in this case, where a consular official explains the denial of a visa application by offering only a bald citation to a broad and multi-faceted statutory provision.”
A federal jury has awarded $14 million to five Indian nationals working for a U.S. company under the temporary-worker visa program. The jury found the employer, along with a labor recruiter and an immigration attorney, liable for luring foreign workers to the U.S. with false promises of permanent residency in violation of labor trafficking, fraud, racketeering and discrimination laws.
The verdict is part of a recent government focus on anti-trafficking. Last month, Congress introduced several bills aimed at preventing labor abuses of foreign workers.
According to the lawsuit, Signal International, a marine construction and repair company, began recruiting hundreds of workers from India in 2006 to work in welding, pipefitting and the repairing of oil rigs damaged by Hurricane Katrina the previous year. Each of the five plaintiffs paid the recruiter and lawyer $10,000 to $20,000 in exchange for promises of green cards for themselves and their families. The workers were actually brought to the U.S. on the H-2B visa program for temporary or seasonal workers whose maximum stay is three years. In addition, Signal charged each worker $1,050 per month to stay in tightly packed, guarded labor camps where they were required to live.
“This historic verdict puts American companies on notice that if they exploit the flaws in our temporary worker program, they will be held accountable and punished,” said Chandra Bhatnagar, one of the lawyers who represented the workers, in a statement. Bhatnager is a senior staff attorney with the American Civil Liberties Union Human Rights Program. The four-week trial concludes the first case in a series of cases that constitute one of the largest anti-labor-trafficking efforts in U.S. history, according to the Southern Poverty Law Center, another legal organization that represented the plaintiffs.
Anti-trafficking has become a high-profile issue in recent years. Last month, the new Congress introduced more than a dozen bills targeting human trafficking. In 2012, President Barack Obama issued an executive order to tighten regulations to prevent human trafficking by employers engaged in federal government contracts. And Obama’s recent immigration executive actions include a proposal for federal agencies, including the Labor Department, Department of Homeland Security and the Justice Department, to form a working group to strengthen enforcement of labor and immigration laws and encourage workers to cooperate with investigations. A fact sheet posted on the Labor Department website says that the working group will create clearer rules and protections for workers regardless of immigration status, including strengthening processes to stay removal and provide work authorization to undocumented workers who complain about workplace conditions.
BAL Analysis: The jury verdict and flurry of legislative proposals on this issue is a compliance reminder to employers, especially those who rely on recruiters abroad. While the H-2B guest-worker program has been the focus of the litigation and policy initiatives, employers recruiting foreign workers in other programs, including high-skilled workers, should be cognizant of the increased activity in this area.
Under a final rule announced today, certain H-4 dependent spouses of H-1B visa holders will be able to apply for work authorization beginning May 26.
The new H-4 regulation extends work authorization to H-4 dependent spouses, as long as the primary H-1B worker is at a certain stage of the green card process. Under prior regulations, H-4 spouses were not allowed to work. The new rule will only apply to H-4 dependent spouses of principal H-1B holders who have an approved Form I-140 petition or have been granted extensions of stay beyond the normal six-year period under the American Competitiveness in the Twenty-first Century Act of 2000 (AC21).
According to U.S. Citizenship and Immigration Services director Leon Rodriguez, it “makes perfect sense” to allow spouses of this category of visa holders to legally work in the U.S.
“It helps U.S. businesses keep their highly skilled workers by increasing the chances these workers will choose to stay in this country during the transition from temporary workers to permanent residents,” he said. ” It also provides more economic stability and better quality of life for the affected families.” USCIS prioritized finalizing the regulation after President Barack Obama announced several initiatives to modernize visa programs with his other immigration executive actions last November.
Starting May 26, eligible H-4 spouses may apply for work authorization using the existing procedures by filing a Form I-765 application for an Employment Authorization Document (EAD) with supporting evidence and a $380 fee. Once the application is approved, the H-4 dependent spouse will receive an EAD card from USCIS and may begin working. Currently, it is taking USCIS three months to process I-765 applications, meaning that the earliest time when new H-4 EAD applicants could expect to receive their cards would likely be toward the end of August.
DHS now estimates that as many as 179,600 H-4 visa holders will be eligible to apply for work authorization during the first year of the rule’s implementation and that 55,000 more will be eligible annually in subsequent years. The new rule consolidates policy on spousal work authorization by allowing spouses of H-1B nonimmigrants to apply for work permits, which is in line with current policy for spouses in the L, E-1, and E-2 visa categories.
For additional information or questions, please contact: