Immigration Considerations due to COVID-19 for E-1/2, L-1, O-1, TN and F-1 Student workers

As employers work through issues related to the COVID-19 pandemic, it is important to evaluate the immigration considerations for employees on various work visas. Some of the most common alternatives to H-1B visas include foreign nationals who hold E-1, E-2, L-1, O-1, TN, and F-1 visas. While these types of work visas do not have the same legal requirements relating to prevailing wages and changes in work locations as H-1B visas, there are important considerations for these employees as well.

AAO National Interest Waiver Decision May Open Doors for a Broader Group of Professionals and Entrepreneurs Seeking Green Cards

On December 27, 2016, the Administrative Appeals Office (AAO) —the appellate body for U.S. Citizenship and Immigration Services (USCIS)—announced a new standard for National Interest Waiver visa petitions in a precedent decision, Matter of Dhanasar. This reassessment comes after almost 20 years of the standard announced in Matter of New York State Department of Transportation (NYSDOT) that has admittedly left many “uncertain what ultimately is the relevant inquiry.”

A Reminder on Voting Rules for Non-U.S. Citizens

As the 2016 presidential election approaches, election reminders abound encouraging everyone to get out and vote on November 8th. Largely focused on the importance of participation, these messages do not typically distinguish between U.S. citizens, lawful permanent residents (LPR), and individuals in the United States pursuant to temporary nonimmigrant visas. In fact, it is critically important for LPRs and temporary nonimmigrants to understand the negative consequences that involvement in the election process could have on their U.S. immigration status.

A Modern Makeover for the PERM Program

The U.S. Department of Labor’s (DOL) electronic permanent labor certification system (PERM) as we know it has been in existence for the past 10 years. This year, the Office of Foreign Labor Certification (OFLC) is expected to publish new regulations aiming to modernize the current PERM program to better meet the needs and practices of employers. The OFLC has expressed a desire to see the final regulation published before the end of President Barack Obama’s term, meaning action on the proposed rule would need to happen soon—potentially by the end of summer.

U.S. Diversity Visa Lottery Offers Alternative Immigration Path for Employees Subject to Backlogs

The U.S. Department of State opened the Diversity Visa (DV) lottery registration for FY 2017 at noon eastern standard time (EST) on October 1, 2015. It will close on Tuesday, November 3, 2015, at noon (EST). The DV program allows individuals from countries with historically low rates of immigration to the United States to obtain lawful permanent residence or a green card in the United States. Registration for the lottery is free.

EB Filing Dates Pushed Back in Revised October 2015 Visa Bulletin

On September 25, 2015, the U.S. Department of State (DOS) issued a revised Visa Bulletin for October 2015 that supersedes the original Bulletin dated September 9, 2015. In the current Bulletin, the dates for certain categories on the “Dates for Filing of Employment-Based Visa Applications” chart retrogressed from the dates on the original Bulletin.

Unanticipated Retrogression of Visa Numbers for China and India in September 2015

The U.S. Department of State recently released its September 2015 Visa Bulletin, reflecting a significant retrogression for China and India in the employment-based Second Preference category (EB-2). The EB-2 category for mainland China and India retrogressed to January 1, 2006. This is a retrogression of over seven years for China (from December 15, 2013) and close to three years for India (from October 1, 2008). In contrast, employment-based Third Preference categories for China and India advanced over six months, from June 1, 2004 to December 22, 2004.

Court Finds STEM OPT Extension Rule to Be Deficient: Vacatur Stayed Temporarily to Allow DHS to Cure

On August 12, 2015, in Washington Alliance of Technology Workers v. U.S. Department of Homeland Security et al., No. 14-529 (August 12, 2015), Judge Ellen Segal Huvelle of the U.S. District Court for the District of Columbia vacated the 2008 Department of Homeland Security (DHS) rule extending Optional Practical Training (OPT) for science, technology, engineering, and mathematics (STEM) students. The court found the rule to be deficient because it was not subjected to public notice and comment procedures as required by law, and no emergency exception applied to relieve it of that obligation.

USCIS Issues Final Guidance on Recent AAO Decision in Simeio

On Tuesday, July 21, 2015, U.S. Citizenship and Immigration Services (USCIS) issued its final guidance on the recent Administrative Appeals Office (AAO) decision in Matter of Simeio Solutions, LLC. Under Simeio, employers must file an amended H-1B petition, along with an updated Labor Condition Application (LCA), if an H-1B worker is moved to a location different from the one listed on the petition.