Final Rule on Start-Up Entrepreneurs Delayed until Next Year

As part of its review of rules promulgated under the Obama administration near the end of his term, the Trump administration has put on hold the final rule regarding allowing start-up Entrepreneurs to temporarily come to the US and start up a company.   The final rule was put on hold until March 14, 2018.  In the meantime, the Trump administration is soliciting comments on a proposal to revoke the rule.

While the new rule was somewhat limited (it applied to entrepreneurs with a start-up in the US that was less than 3 years old and had received substantial investment from US investors or substantial grants from US government entities AND only provided a parole document as opposed to an actual visa and more standard status), it was an important rule to allow more people to come to the US and start substantial businesses that would help our economy and provide employment to US citizens.  There really was no downside the rule considering the amounts of investment required and the documentation needed to show that the company has the potential for rapid business growth and, therefore, the ability to hire substantial US workers.

However, because the new administration ordered USCIS to only use its parole authority in strict humanitarian circumstances, it appears that this new rule will be revoked prior to being implemented.  The only possibility for a reprieve would be if there is a change to the executive order regarding the use of parole authority by USCIS.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

Supreme Court partially lifts Travel Ban Injunction

images-1Today the Supreme Court agreed to hear an appeal from the US Government arguing that the injunction placed on the Executive Order that banned travel from 6 majority muslim countries was should be lifted.  In agreeing to take the case, the Supreme Court also looked at whether the current temporary injunction should stay in effect.  The Court determined that the injunction on the travel ban and the refugee ban should stay in effect insofar as it affected people who were similarly situated as the Plaintiff’s in the case – that is to say foreigners with familial or other ties to the US (through organizations or companies).  However the Supreme Court lifted the injunction (allowing the travel ban to be put into place) for everyone else, that is to say those with NO such ties to the US.  Why did the Court lift the ban in certain cases? Basically, the Court weighted the harm to persons affected by the travel ban and refugee ban with the interests of our Government as described by the current administration.  The Court agreed with the lower Courts that the interests of the Plaintiff’s and those similarly situated to the Plaintiff’s, outweighed the interests of the Government.  But for those with no ties to the US, the Court found that the interest of our Government outweighed the interests of those individuals.

I think that there are two additional questions to ask here:  First, what does the above mean and how will it be implemented?  The second question is, does this ruling allow for any indication of how the Court will rule on the injunction itself?

To answer the first question, it is a little hard to say how the Department of Homeland Security will read the decision, however it appears that the Court only meant to narrowly lift the injunction.  Anyone who has relatives in the US or a job in the US, or a job offer, or other relationship with an organization or business in the US is still covered by the injunction.  It is only those people who have no relationship with any person or organization for whom the Ban can now be put into place.  This is a narrowly drawn exception to the injunction currently in place, and many people will not be covered by the Travel Ban.

In terms of whether or not this tips the hand of the Court in terms of  how they may rule on the case when it comes before them, I think it shows that a majority of the Court will, most likely, uphold the injunction.  But this is just my opinion, and we will have to see what happens.

Lastly, for those who are from one of the six named countries, please, please, please, call your immigration attorney before traveling outside the US so that they can discuss any potential issues with you.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

EB1 for China and India Backlogging in June, 2017

Unknown.jpegThe June, 2017 Visa Bulletin was released and the biggest change is that both India and China are now backlogged in EB-1 category.  Below are all the changes and further information about this new backlog.  We are also including updates from Charlie Oppenheim from the Department of State on projected future movements for the various immigrant visa categories.

Employment Based Immigrant Visas

EB1:  India and China Backlogged to January 1, 2012.  All other countries Current.  The reason for this backlog are several fold.  First, India and China have already used up about one half of ALL immigrant visas for the EB1 category already.  Second, there has been high usage in EB-4 and EB-5 categories.  Normally, all left over visas from EB-4 and EB-5 will roll over to the EB-1 category (and down to EB-2 if applicable.  However, because of the high usage in those categories, there are no visas to roll over.  Lastly, there has been significantly high demand in the EB-2 category for India and China, which prompts more people from those countries to file EB-1 applications if they can.  At this point, Charlie is very hopeful that India and China will go Current in this category again come October 1, 2017, the beginning of the new fiscal year.

EB2:  China moved forward about a month to March 1, 2013 and India moved forward a little more than 1 week to July 1, 2008.  All other countries are Current.  Right now India and China are both limited to their per country allocation in this category (approximately 2, 810 immigrant visas).  Both are expected to use up their allocations by the end of the fiscal year.  Additionally, worldwide EB2 will backlog by July or August (at the latest) but note, it will go current again come October 1, 2017.

EB3: China held steady at October 1, 2014, India moved forward about 2 months to May 15, 2005 and the Philippines moved forward about four months to May 1, 2013.  All other countries moved forward 1 month to April 15, 2017.  For China, Charlie is keeping it steady on October 1, 2014 for as long as possible.  China may backlog at some point, but Charlie is not certain.  Worldwide demand in this area is fairly steady so it should keep up as it has all year.  India is expected to move forward steadily in this category as long as Worldwide demand, and especially Mexico demand remains as low as it has been.

Family Immigrant Visas

Not much to say here, most categories moved forward about 1 week to 1 month, no more than that.  The only indications that Charlie gave were that F4 (Brothers and Sisters of Citizens) may move forward more significantly this fiscal year.  If you are waiting for that category keep an eye on it in the coming months.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

Remember: Cap-Gap Extension continues until Rejection Notice Received

For those of you who filed for an H-1B while on OPT, you may be wondering what happens if your case was not selected.  USCIS has stated that, upon their receiving the H-1B case, you can remain in the US and your work authorization is extended, but, as of this point, over one month after your case was filed, you still do not know if your case was accepted or not.  Can you keep working? When do you need to stop working?

According to USCIS (See Here), your Cap-Gap extension continues UNTIL you receive the rejection notice.  Once you receive the rejection notice you will have the standard 60 day grace period allotted to all F-1 students.   The 60 day grace period starts from the date of rejection NOT the date you received the notice.

If you have any further questions, please let us know.  Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

USCIS Finishes Data Entry for ALL 2018 Cap Subject H-1Bs

USCIS announced on Wednesday that it has finished data entry for all cap subject applications it has accepted for the 2018 fiscal year.  USCIS will now begin sending back those applications not selected and will be transferring cases from Vermont to California to even the H-1B case load between the service centers.  While not all receipts have been received by everyone as of yet, if your check has not yet been cashed, or you do not receive the receipt in the next several days, most likely your case was not accepted into the Cap.

Hopefully USCIS will be able to update us within 1-2 months on how quickly they are getting through the H-1B cap cases and current backlog to give everyone a better idea of how long it will take for them to get through all the cap cases (i.e. will they complete this before October 1, 2017 or not).  We will update you as soon as we receive any additional information.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

 

New Presidential Executive Order “Buy American, Hire American”

Many of you know that yesterday President Trump signed a new executive order.  The idea of this order was to ensure that Federal grants and procurements go, first and foremost, to American companies and that the government focuses on ensuring that qualified Americans are hired prior to foreigners.  In terms of Immigration consequences, the executive order says the following:

Sec. 5. Ensuring the Integrity of the Immigration System in Order to “Hire American.” (a) In order to advance the policy outlined in section 2(b) of this order, the Secretary of State, the Attorney General, the Secretary of Labor, and the Secretary of Homeland Security shall, as soon as practicable, and consistent with applicable law, propose new rules and issue new guidance, to supersede or revise previous rules and guidance if appropriate, to protect the interests of United States workers in the administration of our immigration system, including through the prevention of fraud or abuse.

(b) In order to promote the proper functioning of the H-1B visa program, the Secretary of State, the Attorney General, the Secretary of Labor, and the Secretary of Homeland Security shall, as soon as practicable, suggest reforms to help ensure that H-1B visas are awarded to the most- skilled or highest-paid petition beneficiaries.

In other words, at this time there is no effect on the H-1B program.  However, in the future, after the proposed suggested changes are given to the President, there is the possibility that some changes could be made.

It is important to keep in mind, however, that most changes would require congressional approval, meaning that it could take a while, if they are approved at all.  Changed that do not require congressional approval would need to go through the rule making process, meaning that they would take several months  for those to be sent out and to go through the rule making process.  We will keep you updated on any proposed changes.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.