By: Angelo A. Paparelli

Seyfarth Synopsis: This is the first installment in a series of recommendations to the Biden Administration on immigration reform previously published by the Cato Institute in “Deregulating Legal Immigration: A Blueprint for Agency Action.”  A total of five installments will be published on a weekly basis. Please stay tuned for additional updates.

Eliminate Bars to Entrepreneurship

The Department of Labor (DOL) should affirm that an owner of a company is legally distinct from the company itself and should define entrepreneurship as a Schedule A occupation not needing a labor certification. USCIS should rescind its currently enjoined H-1B interim final rule, which restricts self​sponsorship by owners, and the Justice Department should stop defending it.[i]

Even though immigrants are disproportionately likely to start businesses or be self‐​employed,[ii] DOL and USCIS make it all but impossible for immigrant entrepreneurs to establish companies that can sponsor the entrepreneurs for green cards or other work visas, a prohibition that hampers job creation and entrepreneurship. The law requires employers sponsoring most foreign workers for green cards to first obtain a permanent labor certification from DOL that finds no qualified U.S. workers were available for the position.[iii] But DOL can pre‐​certify certain jobs as Schedule A occupations if no harm to U.S. workers would result from them being filled without a rigorous and time‐​intensive labor market test.[iv] A job that was created through a foreign worker’s commercially reasonable investment should automatically qualify as such a job.

DOL has also created a strong presumption against granting a labor certification in situations where there is any “alien influence and control over the job opportunity” on the dubious assumption that no job opportunity can be “bona fide” if the sponsored immigrant has any significant ownership role in the company.[v] DOL should rescind this regulation and formally recognize the distinction between the corporate entity and the owner of the company. These changes would allow immigrant entrepreneurs to start businesses and have those businesses sponsor them for green cards.

Unlike DOL, USCIS claims to respect the centuries‐​old distinction between a corporate entity and the owner of that entity, yet USCIS still makes it difficult for entrepreneurs to have their companies sponsor themselves for nonimmigrant visas (e.g., H-1B and O visas). In 2010, USCIS announced that self‐​employed workers could not receive nonimmigrant work visas because a company they own cannot possibly “employ” them as the law requires—a conclusion that flouts its own binding and well‐​settled legal precedents.[vi] While litigation forced USCIS to rescind this policy in 2020,[vii] it is currently attempting to place this standard into its H-1B regulations in a rule that a federal district court enjoined in December 2020.[viii] USCIS should rescind the rule—and the Justice Department should cease defending it—to allow immigrant entrepreneurs to have their companies more easily sponsor them. Once the rule is rescinded, USCIS should explicitly recognize eligibility to grant employment‐​based immigration benefits to entrepreneurs.[ix]

 

[i] For more background, see Angelo Paparelli, “Hey, Immigration Bureaucrats: Corporations Are NOT People!,” Nation of Immigrators (blog), October 14, 2012.

[ii] Robert W. Fairlie, “Immigrant Entrepreneurs and Small Business Owners, and Their Access to Financial Capital,” Small Business Administration Office of Advocacy, May 2012.

[iii] 8 USC § 1182(a)(5)(A)(i) and (ii) (2018).

[iv] 20 CFR § 656.5 (2019).

[v] 20 CFR § 656.17(l) (2019). For instance, see Department of Labor, Matter of Step by Step Day Care LLC, 2012-PER-00737, September 25, 2015.

[vi] Donald Neufeld, “Determining Employer‐Employee Relationship for Adjudication of H-1B Petitions, Including Third‐Party Site Placements,” U.S. Citizenship and Immigration Services, January 8, 2010. Contradicting: Matter of Aphrodite Investments Limited (1980), Matter of Tessel (1980), Matter of Allan Gee, Inc. (1979), and Matter of M– (1958).

[vii] U.S. Citizenship and Immigration Services, “Rescission of Policy Memoranda,” Policy Memorandum, PM-602‑0114, June 17, 2020.

[viii] 85 Federal Register 63918, (October 8, 2020); and Chamber of Commerce v. DHS, 20‐cv‐07331‐JSW (N.D. California, 2020).

[ix] U.S. Citizenship and Immigration Services, “Entrepreneur Visa Guide,” 2013; U.S. Citizenship and Immigration Services, “Employment‐Based Second Preference Immigrant Visa Category, Frequently Asked Questions regarding Entrepreneurs and the Employment‐Based Second Preference Immigrant Visa Category,” August 2, 2011; and Alejandro Mayorkas, “Encouraging Entrepreneurs and High Skilled Workers to Bolster the U.S. Economy and Spur Job Growth,” The Beacon (blog), U.S. Citizenship and Immigration Services, August 2, 2011.

By: Dawn M. Lurie

Seyfarth Synopsis: This announcement extends the flexibilities in rules relating to Form I-9 compliance that was initially granted last year. It also expands the scope of the “in-person” exemption benefit to certain employees, and offers flexibility for companies that are phasing back in employees, as doing so will no longer trigger the in-person requirement for all new hires.  While an improvement in the overall dialogue, the guidance leaves uncertainty regarding the end of I-9 virtual flexibility, and as such, employers should consider moving away from the virtual completion model while continuing to heavily document current practices.

With employers impatiently waiting, the U.S. Immigration and Customs Enforcement (ICE) announced (at 2:00 PM EST on March 31, 2021) another sixty (60) day extension of the flexibilities in rules related to Form I-9 compliance, initially granted in March 2020. These flexibilities have been extended until May 31, 2021. The announcement was expected, as a portion of the American workforce is still very much remote, including much of the federal government in Washington, D.C.  However, the delay in the announcement was disappointing, causing unnecessary stress on already fragile H.R. departments. Continue Reading ICE Warms to the Cold Realities of COVID-19: Latest I-9 Virtual Flexibility Guidance Extended to May 31, 2021

By Angelo A. Paparelli and Tieranny L. Cutler

At the urging of President Biden, two members of Congress – Senator Robert Menendez and Representative Linda Sanchez – introduced companion 353-page bills last month in the Senate and the House entitled the “U.S. Citizenship Act of 2021.”

Presented as a comprehensive modernization of our nation’s long outdated immigration laws, this proposed legislation – uniformly lauded by Democrats and opposed by Republicans – features many provisions that U.S. employers may welcome, including, as this White House Fact Sheet details, a path to legal status, employment authorization, and eventually, American citizenship, for some 11 million undocumented noncitizens; relief for Dreamers, persons in Temporary Protected Status, and immigrant farmworkers; and improvements to the legal, employment-based immigration system. Continue Reading Beware the Employer Risks Nesting in President Biden’s Comprehensive Immigration Reform Bill

The Biden Administration: Enforcement Actions Affecting Labor & Employment
Tuesday, March 23, 2021 – 2:00-3:00 p.m. EST

The Biden Administration has gotten off to a busy start with a wide array of executive actions and policy directives. In this webinar, Seyfarth subject matter experts will discuss what employers can expect regarding the enforcement in the areas covered by these directives and how that will effect business moving forward.

Register today!

By: Angelo A. Paparelli  

“America is back, the trans-Atlantic alliance is back.” – So declared President Biden on February 23, 2021.  Apparently, however, Antony J. Blinken, the newly installed U.S. Secretary of State (DOS), didn’t get the memo.  On March 2, 2021, he “rescinded the previous national interest determination regarding categories of travelers eligible for exceptions under Presidential Proclamation (PP) 10143 [relating] to the Schengen Area, United Kingdom, and Ireland.” As DOS’s announcement of the rescission noted, PP 10143, issued on January 25, 2021, restricted the issuance of visas and U.S. entry to “certain technical experts and specialists, senior-level managers and executives, treaty-traders and investors, professional athletes, and their dependents.”

NIEs for travelers from these Trans-Atlantic countries had been granted (at times with relative ease at some U.S. embassies and consular posts) based on previous State Department guidance. Under the prior guidance, executives, managers and specialists in the E-1 and E-2 (treaty traders and investors), H-1B (specialty occupation workers) and L-1 (intracompany transferees) visa categories, whose visit could be shown as likely to confer “substantial economic benefit” on the U.S., would often be approved. (For background, see this blog post (“Pursuing a National Interest Exception to the Presidential Entry Bans on Economic Grounds — Not A Fool’s Errand,” and slide deck, “Getting Your Key Employees Back to the U.S. under the National Interest Exceptions” to Presidential Proclamations ~ A Conversation about Eligibility and Process.”) Continue Reading Why? Oh My! State Department Makes It Harder for Travelers from the Schengen Area, UK, and Ireland to Receive National Interest Exceptions (NIEs) under Pandemic-Based Visa and Entry Bans

By Angelo A. Paparelli and Dawn Lurie

Globe-hoppers of the world, too long cabined and constrained by the pandemic, are exhilarated at the prospect of imminent foreign travel.  Many have received the vaccine and are poised to fly far away for business or pleasure.  The vaccinated among us, however, should not buy that airline ticket just yet – unless you know before you go how you will be treated at your foreign destination upon arrival, and upon departure.

Entry and Exit

Increasingly, as multiple variants of COVID-19 are identified, national governments worldwide have tightened entry protocols, and some have imposed exit restrictions.  France, for example, has announced new requirements when departing the country. See “[What is:] Can I leave France?”  – a Jeopardy-style question whose answer is: “You can only travel from France to a country outside the European space if you have pressing grounds for travel, or if you are travelling to your country of origin or residence.” Continue Reading Hey, Immigration Lawyer: Get Me a Coronavirus Passport

By Angelo A. Paparelli

The English nursery rhyme was wrong.  Not only do sticks and stones break our bones, but words can also hurt us.  A lot.  This is the lesson recently imparted by Tracy Renaud, the Acting Director of U.S. Citizenship and Immigration Services (USCIS).  In a recent internal memorandum, Renaud is insisting on a new set of descriptors for the foreign citizens whom her agency serves, banishing into exile the word, “alien,” and the phrase, “illegal alien.” Henceforth, USCIS will use more inclusive language such as “noncitizen,” “undocumented noncitizen,” or “undocumented individual.” See the reports in Axios and BuzzFeed News.

This is a welcome change.  For far too long, the exhausting and fearsome journey of U.S. immigration has been made more difficult by the hurtful taunt, “alien,” a word employed throughout the Immigration and Nationality Act (INA).  Reportedly, the Biden Administration in its comprehensive reform bill would likewise excise the offensive word, and substitute “noncitizen” at every point where  “alien” now appears in the INA, the U.S. Code, uncodified statutes, and all agency regulations and executive branch communications (something California did in 2015, while opting instead for “foreign national,” rather than “noncitizen”).  In addition, we understand that U.S. Immigration and Customs Enforcement officers have likewise received instructions to remove the word, “alien,” from its template notices to employers that, following a Form I-9 (Employment Eligibility Verification)  investigation, “unauthorized aliens” have been found on the employer’s payroll. Continue Reading Inclusive Immigration: USCIS Nixes “Alien” Terminology But Much More Must Be Done

By Tieranny Cutler and Dawn Lurie

Earlier this week, on January 26, 2021, the Student and Exchange Visitor Program (SEVP) rescinded its  intention, announced less than two weeks earlier, to develop an OPT Employment Compliance Unit. Immigration and Customs Enforcement’s (ICE) compliance-focused plan included close collaboration with other government agencies.

According to SEVP, following additional reviews of ICE’s current Optional Practical Training (OPT) compliance efforts, much of the work to be designated to the OPT Employment Compliance Unit is already being performed by SEVP and therefore they determined the additional unit is not needed.  While we are uncertain as to the internal discourse leading up to the quick rescission, it is likely that new administration team members reviewed the optics of the unit, the timing of the announcement (a week before the inauguration), and the potential impact on foreign students wanting to study in the U.S., before deciding to reconsider the rollout of the unit.  While humanitarian actions, including the focus on DACA and TPS have been the initial focus of the Biden administration, we are hopeful that they will turn to business and employer issues in an effort to keep the U.S. competitive globally. We expect an enforcement-minded, but practical approach; this early action should not be viewed as an indicator of anything otherwise. Continue Reading Compliance Whiplash: ICE Establishes, and then Rescinds, Plan to Create OPT Employment Compliance Unit

By Jason Burritt and Jake Campbell

Seyfarth Synopsis: The Office of Information and Regulatory Affairs within the Office of Management and Budget announced that the long-pending rule to rescind work authorization for certain H-4 holders has been withdrawn. The withdrawal means that H-4 holders whose spouses have reached certain steps within the employment-based green card process can continue to file for Employment Authorization Documents (EADs).

After a multiple-year undertaking to rescind work authorization for certain H-4 spouses, the United States Citizenship & Immigration Services (USCIS) confirmed on January 25, 2021 that it has officially withdrawn the proposed rule that sought to rescind this class of work authorization. The regulation promulgated in 2015 allows an H-4 holder to file for a work permit (EAD) if the H-1B spouse is the beneficiary of an approved I-140 petition and cannot adjust status due to per-country limitations or if the H-1B spouse has been granted a post-sixth year H-1B extension of status under sections 106(a) and (b) of the American Competitiveness in the 21st Century Act of 2000.

In December 2017, the Trump administration announced in its regulatory agenda that it sought to withdraw the regulation promulgated in 2015 under the Obama administration. In February 2019, the Trump administration published a rule to rescind the H-4 EAD regulation. The regulation has remained pending with the Office of Management and Budget, which reviews proposed rules for impact on the economy (among other reasons), and was never issued as a final regulation.

New or initial H-4 EAD applications can be concurrently filed with an H-4 nonimmigrant change of status or extension of stay application or, alternatively, as an individual application, provided eligibility requirements are met. H-4 EAD renewal applications can be filed up to six months before the EAD expiration.

Continue Reading The Cloud over H-4 EADs Has Finally Been Lifted

By Tieranny L. Cutler and Jason E. Burritt

Seyfarth Synopsis:  The President’s order, which reinstates and expands travel restrictions imposed by the prior administration, will continue to have a significant impact on international travel for foreign nationals, as well as impact the transfer of global talent by U.S. corporations from these regions.  The travel restriction does not apply to U.S. citizens, lawful permanent residents, or individuals with certain relationships to U.S. citizens or lawful permanent residents.

On Monday, January 25, 2021, President Biden issued a proclamation to prohibit the entry into the U.S. by all foreign nationals, immigrant or nonimmigrant, who were physically present within the Schengen Area, the United Kingdom, Ireland, Brazil, or South Africa during the 14-day period preceding their entry or attempted entry into the U.S.

As detailed in earlier Seyfarth announcements, this is not the first travel restriction to be implemented as a result of the novel coronavirus referred to as “COVID-19.”  Nearly a year ago, on January 31, 2020, former President Trump implemented a similar travel restriction for foreign nationals traveling from China, and an additional restriction on February 29, 2020, limiting travel from Iran.  Both of these travel restrictions remain active.  On March 11, 2020, the former president issued a proclamation to suspend travel to the U.S. by all foreign nationals traveling to the U.S. who were present in the Schengen Area within the 14-day period prior to their attempted arrival.  Immediately prior to his departure from office, former President Trump terminated his prior orders prohibiting travel from Europe and Brazil, which termination was set to take effect on January 26.  Through the present proclamation, the Biden administration reinstates the travel restrictions for the Schengen Area, Brazil, Ireland, and United Kingdom, and expands the list to include South Africa.

Certain foreign nationals will not be subject to the most recent set of travel restrictions.  Notable exceptions include:

  • Lawful permanent residents (“Green Card” holders);
  • Spouses of U.S. citizens or lawful permanent residents;
  • Parents or guardians of U.S. citizens or lawful permanent residents who are unmarried and under twenty-one years old;
  • Siblings of U.S. citizens or lawful permanent residents, provided that both individuals are unmarried and under twenty-one years old; and
  • U.S. military personnel, along with their spouses and children.

Similar to the order imposed by his predecessor, President Biden’s proclamation has also reserved an exception for any foreign national who has received an invitation from the U.S. government to enter the United States for a cause related to the containment or mitigation of the virus.  Further exceptions are detailed in the proclamation itself.

Following its implementation at 12:01 a.m. EST on Tuesday, January 26, 2021, this travel restriction will remain in effect until terminated by the President.

Seyfarth will issue subsequent alerts as the situation continues to develop.  Should you have any questions, please contact one of the authors or your Seyfarth contact.

Continue Reading Previous Travel Restrictions Reinstated and Expanded As a Result of COVID-19