The long-awaited final rule to modernize and improve several aspects of employment-based nonimmigrant and immigrant visa programs, in order to retain EB-1, EB-2 and EB-3 immigrant workers and high-skilled nonimmigrant workers, is moving forward and has made it through the OMB review process.  It was published in the Federal Register on November 18, 2016 and will be effective in 60 days.   USCIS has also amended regulations to better enable U.S. employers to hire and retain certain foreign workers who are beneficiaries of approved employment-based immigrant visa petitions and are waiting to become lawful permanent residents. This rule goes into effect on Jan. 17, 2017, just before President Obama leaves office.

Among other things, DHS is amending its regulations to:

• Clarifies and improves longstanding DHS policies and practices implementing sections of the American Competitiveness in the Twenty-First Century Act and the American Competitiveness and Workforce Improvement Act related to certain foreign workers, which will enhance USCIS’ consistency in adjudication.

• Better enables U.S. employers to employ and retain high-skilled workers who are beneficiaries of approved employment-based immigrant visa petitions (Form I-140 petitions) while also providing stability and job flexibility to these workers. The rule increases the ability of these workers to further their careers by accepting promotions, changing positions with current employers, changing employers and pursuing other employment opportunities.   This means that you can use the previous employer’s I-140 petition to extend your H-1B with a new employer even if it is withdrawn (as long as it was withdrawn more than 180 days after approval), or in the event of the termination of the employer’s business.  So, there is no I-140 portability; you will still need a new labor certification and I-140 petition to file your adjustment of status application.

• The final rule provides two grace periods of up to 10 days, consistent with those already available to individuals in 13 some nonimmigrant classifications, to individuals in the E-1, E-2, E-3, L-1, and TN classifications. The rule allows an initial grace period of up to 10 days prior to the start of an authorized validity period, allowing nonimmigrants in the above classifications a reasonable amount of time to enter the US and prepare to begin employment. The rule also allows a second grace period of up to 10 days after the end of an authorized validity period, which provides a reasonable amount of time to depart the US or take other actions to extend, change, or maintain lawful status.

• Establishes a grace period of up to 60 consecutive days during each authorized validity period for certain high-skilled nonimmigrant workers when their employment ends before the end of their authorized validity period provided their authorized stay is valid for at least 60 days after such cessation. If not, the grace period will end on the date the authorized date is set to expire. This will obviously enable own to more readily pursue new employment and an extension of their nonimmigrant status.

• The Final rule allows allows certain high-skilled individuals in the United States  to apply for work authorization, given:

1. They are the principal beneficiaries of an approved Form I-140 petition,
2. An immigrant visa is not authorized for issuance for their priority date, and
3. They can demonstrate compelling circumstances exist that justify DHS issuing an employment authorization document in its discretion. Such employment authorization may only be renewed in limited circumstances and only in one year increments.

• Automatically extends the employment authorization in the same category and validity of Employment Authorization Documents for up to 180 days from the date of the prior EAD’s expiry (EADs or Form I-766’s) or until djudication of the EAD nrenewal application, for certain individuals who apply on time to renew their EADs.  The Form I-9 rule is also updated to permit an I-797 receipt notice to be accepted as a permissible I-9 document, in conjunction with the expired EAD, to re-verify the foreign national’s work authorization. This additional 180-day period will not apply to those categories that first require the approval of an underlying application before the EAD renewal can be adjudicated.

• Eliminates the regulatory provision that requires USCIS to adjudicate the Form I-765, Application for Employment Authorization, within 90 days of filing and that authorizes interim EADs in cases where such adjudications are not conducted within the 90-day timeframe.

• Clarifies various policies and procedures related to the adjudication of H-1B petitions, including, among other things, providing H-1B status beyond the six year authorized period of admission, determining cap exemptions and counting workers under the H-1B cap program.

For more information, please refer here for the Final Rule.  If you have any questions, please contact our office.  We will continue to keep you posted on the implementation of these new policies.

USCIS is seeking public comments on a proposed rule that would modernize and improve certain important aspects of employment-based nonimmigrant and immigrant visa programs. USCIS is also proposing regulatory amendments to better enable U.S. employers to hire and retain certain foreign workers who are beneficiaries of approved employment-based immigrant visa petitions and are waiting to become lawful permanent residents (LPRs).

Read the notice of proposed rulemaking published in the Federal Register on December 31, 2015: Retention of EB-1, EB-2 and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers. The public has until February 29, 2016 to comment.

Among other things, the DHS proposals to amend its regulations entail the following:

…  To clarify and improve longstanding agency policies and procedures implementing sections of the American Competitiveness in the Twenty-First Century Act (AC21) and the American Competitiveness and Workforce Improvement Act (ACWIA) related to certain foreign workers, which will enhance USCIS’ consistency in adjudication.
…  To better enable U.S. employers to employ and retain certain foreign workers who are beneficiaries of approved employment based immigrant visa petitions (I-140 petitions) while also providing stability and job flexibility to these workers. The proposed rule will increase the ability of such workers to further their careers by accepting promotions, making position changes with current employers, changing employers, and pursuing other employment opportunities.
…  To improve job portability for certain beneficiaries of approved I-140 petitions by limiting the grounds for automatic revocation of petition approval
…  To clarify when individuals may keep their priority date to use when applying for adjustment of status to lawful permanent residence, including when USCIS has revoked the approval of their approved I 140 petitions because the employer withdrew the petition or because the employer’s business shut down.
…  To allow certain high-skilled individuals in the United States in E-3, H-1B, H-1B1, L-1, or O-1 nonimmigrant status to apply for one year of unrestricted employment authorization if they:

1.         Are the beneficiaries of an approved I-140 petition,

2.         Remain unable to adjust status due to visa unavailability, and

3.         Can demonstrate that compelling circumstances exist which justify issuing an employment authorization document.

Such employment authorization may only be renewed in limited circumstances.

…  To clarify various policies and procedures related to the adjudication of H-1B petitions, including, among other things, extensions of status, determining cap exemptions and counting workers under the H-1B visa cap, H-1B portability, licensure requirements, clarification concerning which H-1B nonimmigrants are exempt from the statutory cap to ensure that those who are contributing to US research and the education of Americans may remain in the USA; and protections for whistleblowers.
…  To establish a one-time grace period during an authorized validity period of up to 60 days for certain high-skilled nonimmigrant workers whenever their employment ends so that they may more readily pursue new employment and an extension of their nonimmigrant status.

These proposed changes do not take effect with the publication of the notice of proposed rulemaking. Instead, they would take effect on the date indicated in the final rule when the final rule is published in the Federal Register.  Here is the proposed rule.  To submit comments, follow the instructions.  You may submit comments, identified by DHS Docket No. USCIS-2015-0008, by one of the following methods:

Federal eRulemaking Portal: You may submit comments to USCIS by visiting http://www.regulations.gov. Follow the instructions for submitting comments.  By email: You may submit comments directly to USCIS by emailing them to: USCISFRComment@dhs.gov. Please include DHS Docket No. USCIS-2015-0008 in the subject line of the message.

The Department of Labor:  Modernizing the Permanent Labor Certification Program (PERM)

DOL is engaging in rule making that will consider options to modernize the PERM program to be more compatible to changes in the US workforce, to further align the program design with the objectives of the US immigration system and the needs of workers and employers, and to enhance the integrity of the labor certification process.  This is not expected to be proposed until April 2016.

USCIS has partnered with business experts to ‘supposedly’ improve the way they approach the employment-based and high-skilled visa categories used by immigrant entrepreneurs. We’d really like to hope for the best on this that something major occurs as a result of opening up to public expertise and excellence in order to relax the restrictive business immigration environment that is prevalent at this time.

Director Alejandro Mayorkas kicked-off this innovative program, called the Entrepreneurs in Residence (EIR) initiative, with an Information Summit in Silicon Valley in February. Now, USCIS has entered a new phase of the initiative by bringing together the EIR Tactical Team. For 90 days this collaborative team, comprised of both USCIS employees and entrepreneurs from the private sector, will identify opportunities where USCIS can streamline pathways for foreign entrepreneurs. Team members began their work at USCIS in late March.

Last week, they traveled to the California Service Center and met with USCIS officers to discuss the visa categories most often used by immigrant entrepreneurs: H-1B, L-1 E-1, E-2, and O-1.

We direct you to Team Member bios here.

Our talented team at Immigration Solutions that handles our Extraordinary Ability Arts, Entertainment and Sports visa practice for the USA, understands the unique time lines and needs associated when working with people of accomplishment.  We work hand in hand with the principal applicant, their representatives and the employer/sponsor to develop and design compelling and convincing casework based upon each client’s extraordinary skills and abilities in their particular field of endeavor.

There are O-1 visas for extraordinary ability in the arts which include any field of creative activity or endeavor such as, but not limited to, fine arts, visual arts, culinary arts, and performing arts; those engaged in the field of arts include not only the principal creators and performers but other essential persons such as, but not limited to, directors, set designers, lighting designers, sound designers, choreographers,  conductors, composers, musicians, orchestrators, coaches, arrangers, musical supervisors, costume designers, makeup artists, flight masters, stage technicians, animal trainers, etc.

Extraordinary achievement with respect to motion picture and television productions, as commonly defined in the industry, means a very high level of accomplishment in the motion picture or television industry evidenced by a degree of skill and recognition significantly above that ordinarily encountered to the extent that the person is recognized as outstanding, notable, or leading in the motion picture or television field.

Extraordinary ability with respect to those in the  sciences, education, business or athletics requires that applicants demonstrate that they possess a level of expertise indicating that the person is one of a small percentage who has risen to the top of the field of endeavor.

It’s important to understand the various options available to artists seeking sponsorship (a US employer), which is not necessarily required for this visa classification.  An itinerary of upcoming events can often times be used in lieu of a direct employer-employee arrangement.  A US-based agent can file a petition for artists and entertainers who are considered ‘self-employed’ and are represented by agents who manage and arrange employment on their behalf for several project employers.  Another workable situation is where a foreign employer authorizes an agent to act on its behalf.

A US agent can assume the role of the actual employer of the artist; can be the representative of both the artist and the employer(s); or, a person or entity authorized by the employer to act on its behalf as its agent.

Please contact us by email at info@immigrationsolution.net, and let us know your thoughts and ideas.  We will send you our checklists and together assess your eligibility for either the O-1 visa or the EB-1 green-card (permanent residence).

Not only do several immigration fees increase as of 11/23/2010, but a revised I-129 (Petition for Nonimmigrant Worker) will make its debut on 11/23/2010 as well, and will become mandatory beginning December 22nd.  USCIS will accept previous editions of the form for 30 days or until December 21, 2010.

The new I-129 petition has been months in the making, and is the first major overhaul of the petition in years. When it is implemented, employers will see new questions and compliance issues, particularly for H-1B and L-1 filings.  The petition is used for temporary workers in a variety of nonimmigrant visa classifications.

The revised form will be available on 11/23/2010 on www.uscis.gov

The Obama Administration is considering ways that it could act without Congressional approval  – some options to provide immigration relief, should comprehensive immigration reform legislation not pass.

In an internal memo to Alejandro N. Mayorkas, the Director of USCIS, from the Offices of Chief Counsel and Policy and Strategy lay out some suggestions that USCIS might undertake within the current structure of the law without having to wait for Congress to pass legislation. Some of the key suggestions include the following:

1. Provide work authorization for H-4 dependent spouses if the H-1 applicant has an application for permanent residence and has extended beyond the 6 year limit. Currently H-4 dependents have to wait for the filing of an I-485 application to get work authorization, however, that can’t be done unless the priority date is current.

2. Expand the ‘dual intent” doctrine to non-immigrants such as TN’s, F-1, O and P and E visa holders. This could be especially helpful for applicants in TN status (such as registered nurses) who have delayed filing an I-140 petition because of concerns about traveling since TN is not currently a “dual intent” status.

3. Create a grace period ranging from 45 to 90 days for most of the non-immigrant categories. This would be especially helpful for H-1B applicants who wish to do an H-1B transfer if they lose a job and soon find a new job.  Currentf law holds the person to be “out of status” and subjects the H-1B applicant to returning to their home country to get a new visa stamped.

4. Eliminate unlawful presence (3 year and 10 year bar) for adjustment of status applicants. This would allow applicants who are subject to the bar on re-entry to freely travel and re-enter the U.S. to resume their application.

5. Expand premium processing to all employment-based cases. USCIS noted that they do not have a current backlog in cases so they are equipped to expand their premium processing unit.

6. Utilize deferred inspection to applicants whose removal is not in the public interest. This allows a “stay” in the U.S. to buy time for the applicant to have some form of legislative relief in the future.

7. Expand the EB-5 investor visa program. This program provides permanent residence to foreign nationals who invest in a U.S. business that creates at least 10 jobs, however, the program has been underutilized. The USCIS views this program as an important tool to revitalize the U.S. economy.

8. Extend work authorization on EADs when an extension is filed. This would allow automatic 240-day work authorization for an applicant who files an EAD extension before the current one expires. Currently the renewed EAD must be approved by the time the current one expires for the foreign national to continue to lawfully work.

USCIS believes these options are immediately at their disposal or can be quickly implemented through notice in the Federal Register based upon current authority. There is no word yet whether USCIS will implement these suggestions.

Supporters of comprehensive immigration reform are certain to welcome any effort by the Obama administration to unilaterally open pathways to citizenship for many currently in the country illegally. But the draft is also sure to outrage immigration-restriction groups.

Christopher Bentley, a USCIS spokesperson, said that internal memos help the agency “do the thinking that leads to important changes; some of them are adopted and others are rejected” and that “nobody should mistake deliberation and exchange of ideas for final decisions.”

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Immigration Solutions provides US and global visa services to individuals and employers throughout the USA and abroad.  We specialize in business immigration and have a depth of experience in the IT, health care, sports, and arts & entertainment, amongst others.

To stay in touch with us, see below.

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Arizona Immigration Law Could Cost US World Cup

As reported in The Arizona Republic, the US bid to host the 2018 or the 2022 World Cup may be jeopardized by plans to include as one of the 18 venues the University of Phoenix Stadium if awarded the two World Cups.

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Arts Community Submit Comments to Immigration Services

On May 11, USCIS opened a public comment period, inviting feedback regarding a specific area of artist visa processing (the O-1 Visa) concerning the amount of time allowable between multiple engagements in a single visa approval period.  Here is a copy of the draft memo open for public comment.  Dance USA, in partnership with the National Performing Arts Visa Working Group, submitted comments to USCIS on May 24th.

Dance USA reports on questions by Senator Orrin Hatch (R-UT) to USCIS Director Alejandro Mayorkas regarding problems with arts visa processing:

On Tuesday, May 11, the Senate Subcommittee on Immigration held an oversight hearing on USCIS. Senator Hatch (R-UT) questioned USCIS Director Mayorkas about O and P visas, the ARTS Act, the increase in Requests for More Evidence and denials of artist visas, and the inconsistent processing at the California Processing Center. Director Mayorkas responded that he is fully aware of the challenges that petitioners are experiencing and he is working to fix the problems. He stated that USCIS is beginning a broad review of the O and P visa processing system. Senator Hatch underscored that the problems surrounding artist visas are hurting the cultural affairs of our country and that his staff receives a lot of work from constituents on this issue. Other subcommittee members at the meeting included Sen. Feinstein (D-CA), Sen. Cornyn (R-TX), Sen. Sessions (R-AL), Sen. Franken (D-MN), and Sen. Leahy (D-VT).

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A Soccer World Cup Ticket is a Visa to South Africa

Addressing the joint committees on the state of readiness for the 2010 FIFA World Cup, Home Affairs Minister Nkosazana Dlamini-Zuma said free event visas would be awarded to those with a valid FIFA World Cup ticket, while dedicated lanes would be set aside for those coming to the tournament, Bua news agency reported. For more

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Fila Launches in Guyana

Top local athletes, basketball star Akeem Kanhai, bodybuilder Sylvon Gardener and sprinter Alicia Fortune are the new faces of the popular Italian Sportswear Company FILA In Guyana.  The sportswear was launched Friday May 14th at Giftland OfficeMax the sole authorized distributor in Guyana.

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Jamaica Reggae Stars Denied Visas

The island nation is abuzz with reports that the U.S. has cancelled visas for a number of top entertainers. At least one major concert has been postponed, and some say it’s all about the extradition of a politically connected drug lord.

The apparent visa revocations are hitting the Jamaican music scene in Southern California and elsewhere in the U.S., according to music industry sources. Producers of the 13th Annual Seabreeze Festival, which has traditionally offered a lineup of reggae performers in Long Beach, recently said their decision to postpone the July 11 event owed in part to the “uncertainty of guaranteeing artist performance based on the current visa revocation issue surrounding Jamaican Dancehall Reggae artists.”

Reports making the rounds in Jamaica say that at least five top reggae entertainers have had their U.S. visas revoked in recent months. The Jamaica Star and various blogs have reported that Bounty Killer, Beenie Man, Adonia, Ricky Trooper, and Movado have seen their permission to travel to the U.S. cancelled. Other reports say that two other well-known reggae artists — Eek-a-Mouse and Sizzla — have also had their visas revoked.

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Why Work with us?

Immigration Solutions provides US and global immigration services and solutions to the arts, entertainment and sports industries, amongst others.  Our staff is accustomed to dealing with celebrated personalities and brands and we have successfully obtained visas for actors, directors, athletes, coaches, sports broadcasters and other individuals of accomplishment and renown.

We understand the unique needs associated with working with celebrities and high profile personalities and we maintain distinct focus on building a bridge between the needs of our clients and their global business opportunities.

If you’d like to consult with us or become a client of our office, please contact us at info@immigrationsolution.net or call 562 612.3996.