The Department of State’s Visa Bulletin for October 2016 currently notes the expiration of visas available to certain workers in the fourth and fifth employment preference categories.
A proposed rule could allow qualified international entrepreneurs to temporarily enter the United States to start and monitor their businesses.
An update to the iCERT system will now allow employers to submit documentation electronically.
ICE has continued its support for Syrian F-1 students by extending and expanding its earlier notice.
Sens. Grassley, Leahy Oppose Reauthorization of Unaltered EB-5 Regional Center Program; Rep. Goodlatte Introduces EB-5 Reform Bill
The EB-5 Regional Center program continues to experience turmoil in search for reform.
The agency hopes to provide greater transparency and dissemination of information between government agencies and the general public.
The numerical limitation for the CNMI-Only Transitional Worker (CW-1) is set at 12,998 for FY 2017.
FEMA fact sheets are available to individuals who lost or had documents damaged by recent flooding.
The new list accurately reflects the Department of Homeland Security’s organizational structure.
1. State Dept. Announces Expiration of Two Employment-Based Visa Categories
The Department of State’s Visa Bulletin for the month of October 2016 announced the expiration at the end of September of the employment fourth preference “Certain Religious Workers (SR)” category and the I-5 and R-5 employment fifth preference categories.
Employment fourth preference SR. The non-minister special immigrant program expires on September 30, 2016. No SR visas may be issued overseas, or final action taken on adjustment of status cases, after midnight on September 29, 2016. Visas issued before that date will only be issued with a validity date of September 29, 2016, and all individuals seeking admission as non-minister special immigrants must be admitted into the United States by midnight on September 29, 2016.
The final action date for this category has been listed as “Unavailable” for October. The Visa Bulletin notes that if there is legislative action extending this category for FY 2017, the final action date would immediately become “Current” for October for all countries except El Salvador, Guatemala, and Honduras, which would be subject to a June 15, 2015, final action date.
Employment fifth preference I5 and R5. I5 and R5 visas may be issued until the “close of business” on September 30, 2016, and may be issued for the full validity period. No I5 or R5 visas may be issued overseas, or final action taken on adjustment of status cases, after September 30, 2016.
The final action dates for the I5 and R5 categories have been listed as “Unavailable” for October. If there is legislative action extending them for FY 2017, the final action dates would immediately become “Current” for October for all countries except China-mainland born I5 and R5, which would be subject to a February 22, 2014, final action date.
Congress is expected to extend the EB-4 special religious worker and EB-5 immigrant investor categories as part of a bill to fund the federal government temporarily past September 30. The temporary extension is likely to last until early December. Stay tuned.[Back to Top]
2. USCIS Proposes Rule on Parole for Certain International Entrepreneurs
U.S. Citizenship and Immigration Services (USCIS) has published a proposed rule allowing certain international entrepreneurs to be considered for parole (temporary permission to be in the United States) so they may start or scale their businesses in the United States.
The proposed rule would allow the Department of Homeland Security (DHS) to use its existing discretionary statutory parole authority for entrepreneurs of startup entities whose stay in the United States would provide a “significant public benefit through the substantial and demonstrated potential for rapid business growth and job creation.” Under this proposed rule, DHS may 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; and
- Whose startup has substantial and demonstrated potential for rapid business growth and job creation, as evidenced by:
- Receiving significant investment of capital (at least $345,000) from certain qualified U.S. investors with established records of successful investments;
- Receiving significant awards or grants (at least $100,000) from certain federal, state, or local government entities; or
- Partially satisfying one or both of the above criteria in addition to other reliable and compelling evidence of the startup entity’s substantial potential for rapid growth and job creation.
Under the proposed rule, entrepreneurs may be granted an initial stay of up to two years to oversee and grow their startup entities in the United States. A subsequent request for re-parole (for up to three additional years) would be considered only if the entrepreneur and the startup entity continue to provide a significant public benefit as evidenced by substantial increases in capital investment, revenue, or job creation.
USCIS proposes that once the application for entrepreneurial parole is approved, the applicant and family members must leave the United States to be granted parole; they may not change to nonimmigrant status within the United States. Proving eligibility as an International Entrepreneur will require a $1,200 filing fee, completion of an Application for Entrepreneur Parole (Form I-941) and the submission of extensive evidence. USCIS will review the evidence and approve or deny the application with no right of rehearing or appeal.
Reaction. Some believe that venture capitalists and foreign entrepreneurs may be disappointed by this proposed rule. They may see the benefit of entrepreneurial parole as too little and too short in return for the substantial effort needed to meet the requirements. Moreover, they may be disappointed to learn that the USCIS proposal fails to take into account the harm associated with a revocation of parole (whether based on material business changes or otherwise) and the absence of any administrative or judicial review. Also disappointing is the fact that the proposed regulation would offer no pathway to lawful permanent resident status. However, if USCIS receives compelling and substantiated comments, the final rule could become a viable avenue to jump-starting innovation, job creation, and economic growth.
While this proposed rule may be useful for entrepreneurs to obtain temporary status in the United States, it does not provide any path to permanent residence. Entrepreneurs who want to live and work in the United States permanently will have to await guidance on a permanent residence option—national interest waivers for entrepreneurs. Guidance on that is expected shortly. Stay tuned.
The U.S. Alliance for International Entrepreneurs (USAIE) has written a summary and initial analysis of the proposed international entrepreneurs rule, available on the USAIE website at http://usaie.org/uscis-proposes-international-entrepreneur-rule-usaie-summary/.
Meanwhile, the notice of proposed rulemaking in the Federal Register invites public comment for 45 days, after which USCIS will address the comments received. The proposed rule does not take effect with the publication of the notice of proposed rulemaking. It will take effect on the date indicated in the final rule when it is published in the Federal Register. The proposed rule is at https://www.federalregister.gov/articles/2016/08/31/2016-20663/international-entrepreneur-rule.[Back to Top]
3. ETA Announces iCERT Enhancement to Streamline H-2A, H-2B Processes for Employers
The Department of Labor’s Employment and Training Administration (ETA) has implemented a new enhancement to the iCERT Visa Portal System related to the submission of applications for temporary labor certification under the H-2A and H-2B temporary visa programs.
The enhancement is intended to reduce burdens on employers and streamline processing of applications. As of August 26, 2016, the iCERT system permits submission of electronic documentation at the time of filing and while an H-2A or H-2B application is pending review.
ETA believes this new feature will eliminate the need for the employer (or, if applicable, its authorized agent or attorney) to submit responsive documents via U.S. mail, email, or fax, and will result in a more efficient review of applications by connecting the responsive documents directly to the Office of Foreign Labor Certification (OFLC) analysts assigned to the application.
ETA also noted that this new feature will enable an iCERT account holder to view all its pending H-2A or H-2B applications and select the application for which it wishes to upload documents electronically. Once a pending application is selected, the iCERT account holder associates one or more electronic documents with a response type (e.g., Response to NOD, Response to NOA) for more efficient storage and retrieval by the OFLC analyst assigned to the application. To maximize electronic security, the iCERT system will only accept electronic documents in Microsoft Word (.doc or .docx), Adobe Acrobat Portable Document Format (.pdf), or text (.txt) file formats.
The announcement can be found here. Additional details are available here. To review the features of this new iCERT System enhancement, see the Quick Start Technical Guide at https://www.foreignlaborcert.doleta.gov/pdf/iCERT_Quick-Start-Technical-Guide_Customer_Document_Upload_Enhancement.pdf.[Back to Top]
4. ICE Extends and Adds to Employment Authorization for Certain Syrian F-1 Nonimmigrant Students
In an earlier notice, the Department of Homeland Security’s Bureau of Immigration and Customs Enforcement (ICE) suspended certain requirements for F-1 nonimmigrant students whose country of citizenship is Syria and who have been experiencing severe economic hardship as a direct result of the civil war in Syria since March 2011.
A new notice extends the effective date of that notice and expands the application of such suspension to students whose country of citizenship is Syria and who lawfully obtained F-1 nonimmigrant student status between the date of the original notice and September 9, 2016. The new notice was effective September 9, 2016, and will remain in effect until March 31, 2018.
F-1 nonimmigrant students granted employment authorization through the notice will continue to be deemed to be engaged in a “full course of study” for the duration of their employment authorization if they satisfy the minimum course load requirement. This notice applies exclusively to F-1 nonimmigrant students whose country of citizenship is Syria and who were lawfully present in the United States in F-1 nonimmigrant status on or after April 3, 2012, through September 9, 2016, under INA § 101(a)(15)(F)(i), 8 USC § 1101(a)(15)(F)(i); and are:
- Enrolled in an institution that is Student and Exchange Visitor Program (SEVP)-certified for enrollment of F-1 students,
- Currently maintaining F-1 status, and
- Experiencing severe economic hardship as a direct result of the ongoing civil unrest in Syria since March 2011.
ICE records show that as of August 2016, approximately 700 Syrian F-1 visa holders in active status are covered by this notice.[Back to Top]
5. Sens. Grassley, Leahy Oppose Reauthorization of Unaltered EB-5 Regional Center Program; Rep. Goodlatte Introduces EB-5 Reform Bill
A lot has been happening the last few days in the EB-5 world. The regional center part of the EB-5 immigrant investor green card program is scheduled to expire on September 30, 2016.
On September 8, Sens. Chuck Grassley (R-Iowa) and Patrick Leahy (D-Vt.), chair and ranking member of the Senate Judiciary Committee, respectively, wrote a letter to Senate leadership opposing a straight reauthorization of the EB-5 regional center program without any changes. According to the letter, the EB-5 regional center program “has become plagued with fraud and abuse, and if not reformed it should be allowed to expire on September 30th.”
Then, late Friday afternoon, September 9, Rep. Bob Goodlatte (R-Va.), chair of the House Judiciary Committee, released a draft of an EB-5 reform bill. The 123-page bill would make significant changes to the EB-5 program, such as increasing the minimum investment amount from the current $500,000 to $800,000, and adding anti-fraud and securities law oversight provisions. The bill was re-released on September 12 with Rep. John Conyers (D-Mich.) as a co-sponsor. The revised bill contains a two-page addition for good faith defrauded investors. The revised bill was introduced as H.R. 5992.
Among other things, the bill would:
- Reauthorize the EB-5 regional center program for five years, until September 30, 2021
- Set aside 4,000 EB-5 visas for rural and “priority urban investment” areas to take effect October 1, 2016
- Allow investors 180 days after a regional center is terminated or debarred to associate the new commercial enterprise (NCE) with a new regional center or to invest in a new NCE
- Require investors to be at least 18 years old, effective after enactment
- Require an EB-5 investor’s tax returns for the last seven years
A section-by-section summary of the draft Goodlatte bill is at http://millermayer.com/immigration-lawyers/eb-5/observer/initial-analysis-and-summary-goodlatte-eb-5-bill-91216.[Back to Top]
6. OFLC Publishes Names, Other Info on Foreign Labor Recruiters
The Office of Foreign Labor Certification (OFLC) is publishing a list of the names of foreign labor recruiters and the identity and location of persons or entities hired by or working for the recruiter that employers have indicated they engaged, or planned to engage, in recruiting prospective H-2B nonagricultural workers to perform the work described on their Form ETA-9142B, H-2B Application for Temporary Employment Certification.
By providing this Foreign Labor Recruiter List, OFLC said the agency “is providing a greater level of transparency to the H-2B worker recruitment process and facilitating information sharing between the Department and other agencies and the public.” Among other things, by maintaining and publishing a list of foreign labor recruiters, OFLC said it “is better poised to enforce recruitment violations, and workers are better protected against fraudulent recruiting schemes by enabling them to verify whether a recruiter is in fact recruiting for legitimate H-2B job opportunities in the United States.” OFLC noted that it “does not endorse or vouch for any foreign labor agent or recruiter” on the list, and inclusion does not signify that the recruiter is complying with the H-2B program. “The list is simply a list of current recruiters being used by employers in the H-2B program,” OFLC said.
OFLC noted that the list identifies the last six digits of the Chicago National Processing Center case number associated with the Form(s) ETA-9142B in which an employer identified the foreign labor recruiter. The six-digit number can be used to look up the H-2B Job Order and Application for Temporary Employment Certification in the H-2B Public Job Registry located at https://icert.doleta.gov/index.cfm?event=ehLCJRExternal.dspQuickJobOrderSearch by entering the number into the ETA Case Number field, selecting “H-2B” in the Case Type field, and clicking on “Search.”
FAQs on the list have been posted as “2015 H-2B IFR FAQs Round 16” at https://www.foreignlaborcert.doleta.gov/pdf/Round-16_Foreign_Labor_Recruiter.pdf.[Back to Top]
7. DHS Announces Annual Limit for CNMI Transitional Workers
The Department of Homeland Security (DHS) announced on September 2, 2016, that the numerical limitation for the Commonwealth of the Northern Mariana Islands (CNMI)-Only Transitional Worker (CW-1) nonimmigrant classification for fiscal year (FY) 2017 (October 1, 2016, through September 30, 2017) is set at 12,998.
The notice announces the mandated annual reduction of the CW-1 numerical limitation and provides additional information about the new CW-1 numerical limit. Under the CW-1 program, employers in the CNMI can apply for temporary permission to employ foreign nationals who are ineligible for any existing employment-based nonimmigrant category under the Immigration and Nationality Act. The CW program is in effect until December 31, 2019.
DHS said it reduced the FY 2017 CW-1 cap by one to meet the CNMI’s existing labor market needs and provide opportunity for potential growth, while meeting a statutory requirement to reduce the cap each year. Because the cap was reached for FY 2016 on May 5, 2016, DHS decided “to preserve the status quo, or current conditions, rather than aggressively reduce CW-1 numbers for FY 2017.” The agency encourages CW-1 employers to file a petition for a CW-1 nonimmigrant worker as early as possible within 6 months of the proposed start date of employment. USCIS said it will reject a petition if it is filed more than 6 months in advance.
DHS reminded CNMI employers that the CW-1 program requires that the foreign worker be ineligible for any other employment-based nonimmigrant visa classification under U.S. immigration law, such as the H-2B classification for temporary or seasonal workers and the H-1B classification for workers in a specialty occupation. DHS urged CNMI employers to reevaluate whether their employees are eligible for any other existing employment-based nonimmigrant category and, if so, to use other U.S. nonimmigrant classifications when appropriate. For workers employed in the CNMI, there is no cap on H-2B or H-1B visas during the transition period ending December 31, 2019.
The announcement does not affect the status of current CW-1 workers unless their employer files for an extension of their current authorized period of stay. Approved petitions with an employment start date between October 1, 2016, and September 30, 2017, will generally count toward the 12,998 cap. The cap applies only to CW-1 principals. It does not directly affect anyone currently holding CW-2 status, which is for spouses and minor children of CW-1 nonimmigrants. However, CW-2 nonimmigrants may be indirectly affected because their status depends upon that of the principal CW-1.
A related announcement is at https://www.uscis.gov/news/news-releases/fiscal-year-2017-cap-set-cnmi-only-transitional-workers.[Back to Top]
8. DHS Alerts Employers Re Documentation Options in Wake of Flooding
The Department of Homeland Security (DHS) issued a notice on September 9, 2016, stating that the agency “is aware of the hardship and ongoing recovery efforts resulting from the recent flooding in areas such as Louisiana and Texas.”
DHS noted that individuals from these affected areas who need to replace lost or damaged documents can consult Federal Emergency Management Agency (FEMA) fact sheets for information on replacing lost or damaged documents in Louisiana (Louisiana Link) or Texas (Texas Link).
DHS reminded employers that they must complete Form I-9, Employment Eligibility Verification and, if enrolled in E-Verify, must create a case in E-Verify for all newly hired employees, including those affected by the flooding. DHS also reminded employers that they must accept receipts from employees who choose to present them when completing the I-9.
More details can be found here.[Back to Top]
9. DHS Updates Lists of Officials Authorized to Perform Various Immigration Functions
The Department of Homeland Security (DHS) amended its regulations on September 9, 2016, to update provisions that list specific immigration officials authorized to perform various immigration functions, including the issuance of notices to appear, warrants of removal, and arrest warrants. DHS said the lists are outdated and do not reflect the current DHS organizational structure, so the agency updated the lists with the specific officials who are currently authorized to perform these various functions. DHS is also making some technical corrections to update nomenclature and outdated references in the affected provisions.
The notice can be found here.[Back to Top]
10. Klasko News
Rankings and Listings
H. Ronald Klasko and William A. Stock Selected for Inclusion in Best Lawyers in America 2017
Klasko Immigration Law Partners is pleased to announce that H. Ronald Klasko (Ron) and William A. Stock (Bill) have been selected by their peers for inclusion in The Best lawyers in America 2017 (Copyright 2017 by Woodward/White, Inc. of Aiken SC) in the area of Immigration Law.
Since it was first published in 1983, Best Lawyers® has become universally regarded as the definitive guide to legal excellence. Best Lawyers lists are compiled based on an exhaustive peer-review evaluation. Over 83,000 leading attorneys globally are eligible to vote and for the 2017 Edition of The Best Lawyers in America©, 7.3 million votes were analyzed. Lawyers are not required or allowed to pay a fee to be listed; therefore, inclusion in Best Lawyers is considered a singular honor.
On the Airways
Ron Klasko to Appear on Executive Leaders Radio
Ron will be a guest on Executive Leaders Radio Program on October 7, 2016. The show will air locally in Philadelphia on WCHE/1520AM and nationally on Radio America.
Editorials and In Quotes
Bill Stock, AILA President, Reaction to Trump Speech on Fox News
Bill Stock thinks Donald Trump is in a fantasy world when it comes to his immigration stance. Trump’s anti-immigration rhetoric plays well to hardline groups but Trump has provided little details on a comprehensive policy but rather is focusing on an enforcement only approach. To read Bill’s full editorial, click here.
Bill Stock Interviewed by Law360 on Immigration Regulations
Bill Stock, president of the American Immigration Lawyers Association and founding partner at Klasko Immigration Law Partners, was quoted in a story by Allissa Wickham for Law360 entitled “Immigration Regulations To Watch Before Obama Exits Office” published August 12, 2016. Bill expresses optimism the new proposed regulation to boost job portability will take effect soon and will be key in clarifying when high-skilled employees are able to maintain priority dates. Sign up for a free seven-day trial on Law360 to read the article.
Upcoming Speaking Engagements
H. Ronald Klasko
Ron will be presenting at the AILA Central Florida Chapter Annual Conference from October 14-15. He will participate in the sessions “Strategies for Working Around the H-1B Shortage” and “Visa Options for Foreign National Investors.” For more information and to register for this conference, click here.
On October 17, Ron will participate in the Global Citizenship Seminar hosted by Henley & Partners in Miami. The seminar will examine the latest international trends and developments in residence and citizenship planning, and showcase the top-ranked residence and citizenship-by-investment programs in the world including the UK, Portugal, Malta, Cyprus, Caribbean, Canada and the US. Ron will discuss “United States EB-5 and E2 Alternatives” at the seminar.
From October 18-20, Ron will be in Amsterdam, Netherlands speaking at the AILA Rome District – EMEA Chapter Fall Conference. Ron will serve as discussion leader on “The Wolf of Wall Street: EB-5 Visa” and will discuss EB-5 legislation, choosing and working with a regional center, among other topical subjects.
Ron will speak at the AILA 2016 EB-5 Investors Summit in Washington, DC from October 24-25. Ron will serve as a panelist on the session “Due Diligence and Market Considerations in EB-5 Cases.” One of the most critical decisions an investor must make involves navigating the myriad of EB-5 offerings for the purpose of investment-based immigration. This session will present the framework for investors engaged in performing due diligence on EB-5 projects, as well as an overview of the legal requirements and issues. Ron will also be a panelist on “Best Practices: Managing the Risk in EB-5 Practice.” In the high stakes world of EB-5 practice, are you ready to handle the risks of client complaints and potential lawsuits? Even if a lawsuit is unfounded, and if you carry malpractice insurance, defending yourself against such allegations is very disruptive to your practice and law firm. Learn how to avoid complaints and to effectively defend malpractice allegations if they do arise. For more information on this summit, click here.
On October 26, Ron will speak to MBA students at The Wharton School of the University of Pennsylvania. The seminar will address topics applicable to the audience, including options for investing in or starting a business, and will include a question and answer session.
Recent Speaking Engagements
Elise A. Fialkowski
Elise presented at the Pennsylvania Bar Institute’s Bi-Annual Immigration Law Forum on O-1/EB-1/NIW topics at the Wanamaker Building in Philadelphia on September 23. For more information on this forum, click here.
Klasko’s Fall 2016 EB-5 Seminar
Nearly 175 real estate developers, EB-5 regional centers and other members of the EB-5 industry attended Klasko Immigration Law Partners’ full day seminar entitled “EB-5 at a Crossroads.”
This full day seminar was held on September 9, 2016 and focused on EB-5 Regional Centers and Developers interested in capitalizing projects with EB-5 financing. This seminar provided the latest information and addressed the new EB-5 legislation on the horizon, new administrative compliance initiatives instituted by USCIS, unexpected impacts of quota backlogs, failed and fraudulent projects focusing new attention on EB-5 compliance protections, changes in customary escrow arrangements, redeployment of investor funds, and important changes in the project marketing landscape, among other cutting edge topics.
H. Ronald Klasko
Ron participated in the “Lazy Days of Summer” Interactive CLE Series presented by Catholic Legal Services on August 26, 2016 in Miami, Florida. Ron moderated the session “A-Z, E-2 to EB-5” and discussed considerations for contemplating prospective E to EB-5 petitions, nuances in direct EB-5 filings, EB-5 legislative initiatives, problem consulates/cases and considerations for USCIS v. consular processing, among other topics. Ron was also a panelist on “Alternatives to the H Visa and Ways Around the H Cap” and covered H1B1, E3, TN, H3 and J and considerations. For more information on these topics, contact Ron at firstname.lastname@example.org.
Best Places to Work
Klasko Immigration Named Among 2016 Best Places to Work
Klasko Immigration Law Partners is pleased to announce that the firm was recently named one of the 2016 Best Places to Work by the Philadelphia Business Journal.
According to the Craig Ey, Editor of the Business Journal, “This year, we had a record number of applications for Best Places to Work and every company included here had to reach a statistical benchmark to be included. It’s not an easy benchmark to meet.”
Firm Managing Partner Ron Klasko said, “We founded this firm 12 years ago and one of our biggest priorities has always been to create a terrific work environment in which all our employees could flourish. This recognition is very important and gratifying to us.”
Added firm Executive Director Raymond Wulk, “We invest in our employees. Not only do we want the best trained employees, but we also want happy and healthy employees too. To that end, we have regular training programs to keep our legal and paralegal staff current on the issues and challenges facing our industry. We also provide social events for our employees, nutritional counseling, subsidized gym memberships, an employee assistance program and several other initiatives that we hope demonstrate how much we care about all of our employees. The investments we make in our people not only makes Klasko a better place to work, it makes us a better law firm for our clients.”
“Proposed Rule May Help Attract More International Entrepreneurs” authored by Bill Stock appeared in the September 20, 2016 edition of The Legal Intelligencer. In this article, Bill discusses a proposed rule that would grant parole to certain international entrepreneurs so they could manage and develop startup companies in the United States, eliminating many of the hurdles they currently face. To read the full article, click here.
You May Have Missed: Blog Posts & Alerts
- EB-5 Legislation Teleconference – Join Us Wednesday, September 14 to Discuss EB-5 Bill
September 12, 2016
- Proposed Rule to Benefit International Entrepreneurs
August 31, 2016 by Michele G. Madera
This newsletter was prepared with the assistance of ABIL, the Alliance of Business Immigration Lawyers, of which Klasko Immigration Law Partners is an active member.[Back to Top]