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Oregon’s J-1 Waiver Program for Physicians

Tuesday, February 14th, 2017 by W. Scott Railton

The Oregon J-1 Waiver Program for physicians traditionally is slower than many states to fill its statutorily allotted 30 Conrad recommendations. In 2016, Oregon used all 30 of its slots. Indications are that the slots will all be used again by the end of the current fiscal year. In comparison, Washington State has filled its slots the last few years, typically by around mid-year. Alaska, Montana, and Idaho have used the program sparingly.

The Oregon program has a $2000 application fee, which helps the State administer the program. The recommendations are managed by the Oregon Primary Care Office, which is part of the Oregon Health Authority’s Office for Health Policy and Research. The signatory to the recommendations is currently Director Marc Overbeck. The Program Coordinator is Dia Shuhart (503-373-0364). Oregon keeps track of applications as they are being prepared, and so it is a good idea to contact Ms. Shuhart before proceeding with an application. Certain rules have changed, and such communication is encouraged.

The Oregon regulations for their J-1 program can be found at OAR-409-035. Some points of note:

• Applications are adjudicated on first come, first served basis. The State regulations say the case will be handled within 15 days. Usually it is faster, if everything is in place.

• Oregon will grant FLEX spots. None were granted in 2015, and four in 2016. The applications should be vetted with the State ahead of time.

• Placement priority is with primary care, including Family Medicine, General Internal Medicine, Pediatrics, OB/GYN and General Psychiatrists.

• If a health care facility is located in a Medically Underserved Area (MUA) or Medically Underserved Population (MUP) that is not a Health Professional Shortage Area (HPSA) or if the request is for a flex option, then the facility must obtain prior approval from the Authority and provide documentation substantiating the area’s need for a physician.

• At least 40 percent of patients must be Medicaid, Medicare or other low income patients. At least 26% of the 40% must be Medicaid eligible, either through the Oregon Health Plan or through low income Medicare dual eligibility. Low income, uninsured is defined as 200% or less of the current Federal Poverty Guidelines. Note: The 26% requirement is subject to change at the start of each program year, depending on the statewide percentage of Medicaid enrollees.

• Medicaid patients must represent a share of the overall facility’s patient population equal to or greater than the statewide percentage of the population eligible for Medicaid at the beginning of each program year as determined by the Authority. If this is not the case, a plan must be presented.

• Document attempts to actively recruit an American doctor for at least six months prior to submission of the application.

• Eighty percent of the slots allotted for each federal fiscal year are reserved for primary care physicians as defined in OAR 409-035-0010. Applications from community health centers with HPSA scores below 7 and from mental health facilities shall receive priority. The rules also state a preference for geographic distribution of the slots, and a cap of six per employer. The rules leave latitude for the program to adjust priorities according to changing needs.

Applications are mailed to:

Physician Visa Waiver Program
OHA-Health Policy & Analytics
500 Summer Street NE, E-65
Salem, OR 97301

Program details are subject to change. We are happy to assist, as need be. Oregon’s program website is here:

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President Trump’s Executive Orders

Saturday, February 4th, 2017 by W. Scott Railton

As widely reported, three Executive Orders affecting immigration have been issued by President Trump’s new administration. Additional draft memos, heavy on enforcement, have also been leaked. We are following these administrative developments on a daily basis, and are available to discuss. While we of course want national security, we stand with immigrants and our proud national heritage of being a welcoming country. America is not just a nation of immigrants; America is THE nation of immigrants. We hope this continues, and will fight to make it so. Immigration is our strength as a nation.

Executive Orders are not statutes. They are orders to the administration on how to implement existing law, though Presidents may effectively make law with some orders. The Republicans were highly critical of the Obama Administration for its executive orders and actions regarding immigration. Texas and a number of other states challenged the constitutional validity of Obama’s actions, ending with a 4-4 split in the Supreme Court.

Now the shoe is on the other foot. President Trump’s executive actions are completely different, but courts are already restraining parts of them. Today, Judge James Robart of the Western District of Washington issued a temporary restraining order on the temporary ban placed upon nationals of Syria, Iraq, Iran, Somalia, Yemen, Sudan and Libya. Washington State, joined by Minnesota, alleged violations of the First Amendment (Establishment Clause), the Fifth Amendment’s Equal Protection and Due Process clauses, the Immigration and Nationality Act, the Administrative Procedures Act, the Convention Against Torture, et al. The judge determined the States are likely to prevail, and there is risk of irreparable harm to citizens of the State. These risks included immediate harm to families, the high tech industry, and education, amongst others. The Order is effective nationwide, on a temporary basis, and the matter is now before the Ninth Circuit Court of Appeals.

Meanwhile, in Boston, a federal judge today refused to extend the temporary restraining order which was issued last week. Litigation has ensued in other jurisdictions, such as Chicago. And so it goes, elsewhere around the country.

The order imposing certain travel and refugee bans was not properly vetted, and the rollout has been described as amateurish.  By most reports, agencies struggled with aspects of the orders, such as whether the bans applied to permanent residents and dual nationals.  No consideration was given for special immigrants, who have acted as interpreters in the fight against terrorism. The complete ban has caught students, including doctors in the middle of their residencies, unawares. Some of the issues are getting addressed, but smart policy requires careful review, and some of the mistakes were clearly avoidable.

Where Obama was accused of creating a blanket amnesty, Trump is instituting blanket bans of immigrants classes (refugees for 120 days, Syrian refugees indefinitely, et al.), and effectively those of the Muslim religion from specified countries. The orders are justifiably criticized for omitting several countries which have originated terrorists. Clearly, President Trump is pushing forward with fulfilling his campaign promises, and is intent on showing he will be a President of action. Campaign politics and sound government policy are two very different things sometimes.

So far, the State Department revoked somewhere between 60,000 and 100,000 visas from the seven countries, depending on the report. After Judge Robart’s decision, the Department of State is reporting that these are reinstated, unless physically revoked. Persons departing the country on a revoked visa will have to interview again for a new visa. Travel is therefore inadvisable in most affected cases. In light of last weekend’s events, it may be advisable to consult with an immigration attorney before traveling abroad, at least in the short term until things settle down.

Trump said he’d build a wall and Mexico would pay for it. He said we are going to get control of the border. His executive order on border security calls for an increase in 5000 Customs and Border Patrol agents. CBP is already the largest law enforcement agency in the U.S. The agency’s union endorsed him, a fact he proudly touted. Perhaps this is because his election would be good for them, as it seems is the case.

There will be a large effort to  build detention facilities along the border, if Congress appropriates the funds. The growth in the detention business over the past 10 yeas has already been exponential. The Obama Administration deported over 400,000 persons per year. These numbers may reflect “catch and release” actions—a practice Trump has now stricken. There will be a lot of jobs and construction related to this burgeoning detention business. Immigration enforcement, whether it be detention or walls, is big business for contractors.

Locally, know that the Trump Transition Team asked CBP for information about building a wall on the U.S.-Canada side. Nothing definite, and it seems unlikely. It appears they were just looking to identify what studies have been done. The border security order also calls, once again, for the implementation of an entry-exit system, to better keep track of arriavals and departures in the air, land, sea, and in between. The government has been working on this since at least 1996. Some progress has been made as technology has improved, and the work continues, apparently.

The complete ban on refugees to the U.S. is horrific, given the U.S.’s means to accommodate, and its role as a leader in the world. The world is in the midst of the greatest refugee crisis since World War II. The U.S. has a role to play with its allies in accommodating refugees, and that role is being shirked. National security concerns are understandable, but over 2/3 of the refugees are women and children. There are better ways. The refugee program involves two to three years of vetting and waiting—it is not the likely path of entry for a terrorist.

The “Enhancing Public Safety in the Interior of the U.S.” Executive Order calls for 10,000 more Immigration and Customs Enforcement (ICE) agents. ICE is the agency that handles interior enforcement. The enforcement priorities have been elevated from serious crimes to now anyone who has been arrested. This is a significant change in immigration policy, albeit not unexpected with Trump’s election. Adding boots on the ground, a wall, and detention facilities will require significant Congressional appropriations. The intent may be there from the White House, but actual implementation will take some time. In the meantime, there is concern that the agency will begin to conduct worksite raids and be generally more emboldened. It is important that undocumented and persons otherwise out of status know your rights.

The Trump administration wants to reinvigorate the 287(g) program, which makes local law enforcement immigration enforcement. In Washington State, I’ve mainly heard great resistance to this. In Whatcom County, sitting on the border, the perennial question on these programs, right or wrong, is where’s the funding?

Trump is also going after the “sanctuary cities”, by threatening their federal funding. This will be harder than it sounds, and there will be some wait and see. The issues include precisely what it means to “inhibit” a federal effort, and also there is Supreme Court law which says limitations of this sort need to be focused on related programs, rather than wholesale funding cuts.  Federal immigration holds, strictly for immigration purposes, has been held to violate the 4th Amendment, which potentially makes municipalities liable it tort for holding a person too long.

Still to come: possible renegotiation of NAFTA, which has the potential to have great impact on locally, with regard to workers and cross-border business travel. Also, we’re still waiting to hear what the Administration will do about the Deferred Action for Childhood Arrival program. It seems this is on hold for the moment. And, there’s a leaked White House memo calling for evaluation of all business class nonimmigrant statuses, and the enforcement of certain employer compliance measures. We are also watching for changes to trusted traveler programs such as Global Entry and NEXUS, as we understand some statuses have been revoked.

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Bridge Act for DREAMers Receiving Bipartisan Support

Tuesday, January 17th, 2017 by W. Scott Railton

The Bar Removal of Immigrants who Dream and Grow the Economy (BRIDGE) Act has been introduced in the Senate, with an increased showing of bipartisan support. The incoming Trump Administration has said it will end the Deferred Action for Childhood Arrival (DACA) program, which Republicans deem to be an overreach of presidential authority. The Supreme Court split 4-4 on this question, in last term’s U.S. v. Texas et al.

So, now comes the BRIDGE Act, cosponsored by Senators Lisa Murkowski (R-AK), Dianne Feinstein (D-CA), Jeff Flake (R-AZ), Kamala Harris (D-CA), and Chuck Schumer (D-NY). A companion bill has been introduced in the House.

The BRIDGE Act does not legalize status, but it would allow qualifying undocumented young people to apply for work authorization for three years, just like DACA. Further, it provides that information submitted will not be used against the applicants, with some exceptions, such as national security. Approximately 750,000 people have applied for benefits under the DACA program since 2012.

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Matter of T-O-S-U- : Precedent H-1B Decision for Physicians of National or International Renown

Saturday, January 7th, 2017 by W. Scott Railton

USCIS has announced new evidentiary standards for determining whether a physician is one of national or international renown for H-1B purposes, through the adoption of Matter of T-O-S-U- (AAO Jan. 4, 2017), as a precedent decision of the Administration Appeals Office.

8 CFR § 214.2(h)(4)(viii) requires that international graduates of medical schools meet certain criteria for H-1B classification, in addition to those which are required of all specialty occupation nonimmigrants. In particular, the law requires that physicians have passed Steps 1, 2, and 3 of the USMLEs, or the predecessor Federation Licensing Examination. Exception is made for “physicians of national or international renown,” but there was very limited guidance prior to Matter of T-O-S-U- as to what this phrase exactly means.
Matter of T-O-S-U- lays out criteria, which while not exclusive, is highly instructive.

Specifically, the case suggests that petitioners provide the following, as excerpted:

B. Evidence

The regulations do not currently provide a list of the specific types of evidence for demonstrating that an alien is a physician of national or international renown under 8 C.F.R. §214.2(h)(4)(viii)(C). We therefore reviewed and took into account the types of documentation that are often persuasive in establishing eligibility for these cases, as well as the categories of probative evidence that are described in the regulations for other classifications involving national or international renown, recognition, or acclaim, including H-1B distinguished merit and ability (models), O-1 extraordinary ability, P-1 internationally recognized, and labor certification under Schedule A, Group II Aliens of Exceptional Ability in Sciences or Arts. See 8 C.F.R. §§ 204.5(h)(3), 214.2(h)(4)(vii)(C), (o)(3)(iii)-(v), (p)(4)(ii)(B), (p)(4)(iii)(B)(3). The following is a non-exhaustive list of evidence that, depending on the qualitative nature of the evidence, may establish eligibility for the exemption at 8 C.F.R. § 214.2(h)(4)(viii)(C):

Documentation of the beneficiary’s receipt of nationally or internationally recognized prizes or awards in the field of medicine;
• Evidence of the beneficiary’s authorship of scientific or scholarly articles in the field of medicine published in professional journals, major trade publications, or other major media;
• Published material about the beneficiary’s work in the medical field that appears in professional journals, major trade publications, or other major media (which includes the title, date, and author of such material);
• Evidence that the beneficiary has been employed in a critical, leading, or essential capacity for organizations or establishments that have distinguished reputations in the field of medicine;
• Evidence of the beneficiary serving as a speaker or panelist at medical conferences;
• Evidence of the beneficiary’s participation as a judge of the work of others in the medical field;
• Documentation of the beneficiary’s membership in medical associations, which require significant achievements of their members, as judged by recognized experts in the field of medicine;
• Evidence that the beneficiary has received recognition for his/her achievements or contributions from recognized authorities in the field of medicine; and
• Any other evidence demonstrating the beneficiary’s achievements, contributions, and/or acclaim in the medical field.

This criteria still leaves much for interpretation. In the confusing world of merits-based immigration, it can be difficult to discern the difference between one who is “extraordinary,” “exceptional,” “outstanding,” “renowned” and other similar characterizations of accomplishment. In Footnote 11 of the decision, the T-O-T-S-U- Court expressly says that “national or international renown” standard is not the same as required to demonstrate extraordinary ability. Footnote 11 also recognizes the standard is not the same as for determining that an “alien is of exceptional ability in the sciences.”  I found it also noteworthy that one criteria is having served as a panelist or speaker at a medical conference. In likelihood, having spoken a few times will not be enough to establish national or international renown, but a pattern of speaking, combined with other supporting material, may make a compelling case.

My initial conclusion:  the T-O-S-U- standards seem akin to the extraordinary alien standards, without quite the same rigor of showing three or more category qualifications. In the case at hand, which was approved, the Court gives a great deal of weight to one particular article, “which garnered numerous independent ciations by peers in professional journals, major trade publications, and other major media.”

The criteria leaves much to interpretation, and the agency will probably remain somewhat inconsistent on minimum showings for these types of petitions. The decision is helpful as a starting point for determining eligibility, where guidance has formerly been almost completely absent.

Link to decision:  Matter of T-O-S-U-, with January 4, 2017 Policy Memorandum

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National Interest Waiver Receives New Adjudication Test

Wednesday, December 28th, 2016 by W. Scott Railton

The Administrative Appeals Office issued a landmark decision today, overturning the old standard of adjudication for national interest waiver petitions, and replacing it with a legal test that on first blush seems more permissive.  The decision is Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016), which expressly vacates the longstanding Matter of New York State Department of Transportation, 22 I&N Dec. 215 (Acting Assoc. Comm’r 1998). The Department of Homeland Security has designated the decision as a precedent, to be followed by adjudicators.

As per the Dhanasar decision, USCIS may now grant a national interest waiver if the petitioner demonstrates: (1) that the foreign national’s proposed endeavor has both substantial merit and national importance; (2) that he or she is well positioned to advance the proposed endeavor; and (3) that, on balance, it would be beneficial to the United States to waive the requirement of a job offer and thus of a labor certification.

The Administrative Appeals Office clearly wanted to move away from requiring petitioners to establish geographic national benefit. The decision notes that the old standard restated requirements, creating more confusion with each restatement, for petitioners and adjudicators alike. I have to agree, and it is refreshing to see the Administrative Appeals Office take such a candid review of its own decision. Over the years, we’ve had to evaluate the likelihood of success for these cases based on adjudication trends, which have varied quite a bit over time.

The new standard presents its own evidentiary challenges.  How will the agency decide if work will be of “substantial merit” and “national importance”? In the Dhanasar case, the petitioner works in research and development of air and space propulsion systems, which should benefit national defense.  Further, Dhanasar will work at a University, where they will be able to disseminate their research, and rather easily meet the second prong concerning being well positioned to advance the proposed endeavor.  The AAO chose a case which is easy to approve on the facts, based on the revised tests. We’ll have to see how adjudicators apply these new standards in less obvious cases.

The clear statement of the new adjudication test is an improvement, as is the decreased emphasis on geographic impact. It is also an improvement to not require proofs that the national interest will be harmed by requiring a labor certification, and by explicitly requiring a comparison of the petitioner to other workers in the field. The decision notes that the new test will be more accommodating for self-employed individuals and entrepreneurs.

Still, I don’t think the gates have opened wide. The key adjudication standards- “both substantial merit and national importance,” “well-positioned,” and “beneficial to the U.S. to waive the requirement” – leave much to interpretation, case-by-case. No doubt, this is intentional on the AAO’s part, who seem to focus on not excluding certain worthy candidates, which would happen with  NYSDOT‘s flawed construction. The key beneficiaries of this decision may be the self-employed, and those in higher educated professions with traditionally localized focuses, such as certain physicians, engineers, architects, and the like.


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USCIS Filing Fees Rise Again

Thursday, December 22nd, 2016 by W. Scott Railton

On December 23rd, USCIS filing fees for most types of petitions will rise again.  I took a look back at petitions filed in the early 2000s, and the I-129 filing fee then for an H-1B was a straight $130.

Times have changed.  The base filing fee will be $460.  For H-1Bs, all new petitioners must then pay an additional $500 fraud fee.  If you have   25 or more full-time employees, and are not “cap-exempt,” there’s an additional $1500 ACWIA fee.  Many employers also opt for the 15 day “premium processing” fee, for another $1225, since the agency will otherwise take 6 months to adjudicate the petition.  Then, there’s the lawyer’s fee, if one is hired to help.

Here’s a brief list of the increases for some of the petitions we file:

  • I-129 Temporary Worker:  Was $325   Now $460
  • I-140 Petition for Alien Worker (permanent):  Was $580   Now $700
  • I-130 Petition for Alien Relative:  Was $420   Now $535
  • I-485 Adjustment of Status:  Was $985   Now $1140
  • N-400 Naturalization:  Was $595   Now $640
  • I-90 Permanent Resident Card renewal:  Was $365   Now $455

The full list of fees can be found at

In the next year, there will probably be a fair amount of discussion and press coverage on foreign labor employment by U.S. companies.  Businesses usually operate with a profit motive, and will not look outside the local labor market, or pay more than they have to, to hire qualified workers.  There is a significant cost to hiring non-U.S. labor, which involves filing fees, legal fees, legal exposure in some cases, and timing factors.  In our experience, businesses invest a fair amount of time and resources if they determine they wish to hire a non-citizen candidate.

Here’s USCIS’s latest press release on the fee changes:

USCIS reminds applicants and petitioners to pay our new fees with forms postmarked or filed on or after Dec. 23, 2016, or we will not be able to accept the filings. We will only accept previous fees if they are postmarked Dec. 22 or earlier.

Beginning on Dec. 23, you will no longer have a 14-day grace period to correct a failed fee payment. USCIS will immediately reject a benefit request for nonpayment. We will also no longer hold benefit requests submitted without the correct biometric services fees. You must pay biometric services fees, if applicable, at the time of filing. We will reject a benefit request if it is received without the correct biometric services fee, as specified in the form instructions.

Along with the fee changes, we are introducing a reduced fee option for certain low-income naturalization applicants who do not qualify for a fee waiver. For eligibility details and filing instructions, see Form I-942, Request for Reduced Fee, and Form N-400, Application for Naturalization.

USCIS is funded almost entirely by fees. Read our Oct. 24 news release about our first fee increase in 6 years, which is needed to recover the full cost of services. These include the costs associated with fraud detection and national security, customer service and case processing, and providing services without charge or fee waivers and exemptions for those who are eligible.


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Highly Anticipated PERM Modernization Rule Withdrawn

Monday, December 19th, 2016 by W. Scott Railton

The Department of Labor reports that it has withdrawn its Notice of Proposed Rulemaking and Schedule A Request for Information from OMB/OIRA review.

The PERM rules are in great need of revision and modernization. The most common complaint that we hear, and which was articulated in stakeholder meetings, is that the required job postings in Sunday newspapers of general circulation is not reflective of current recruiting practices. Newspapers in major metropolitan areas charge thousands of dollars for two well-written Sunday postings.

The final PERM rules were published on December 27, 2004, and PERM program was launched on March 28, 2005. Since that time, any kinks in the system have been worked out through the dissemination of FAQ memos, as well as BALCA decisions. The memos and decisions frequently focus on sections of the ETA-9089 form, and the ways to properly fill out the form.

In the decade that has passed since the implementation of the PERM rules, the world of business and recruiting has changed. Modernization of the PERM process is sorely needed, for fairness, to speed up the processes, and to lower the costs.

We will have to wait and see how things will change with the incoming Trump Administration and the PERM system. The implementation of any new rule will have to go through the full OMB review and rule-making process.

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Trump’s Team of Restrictionists

Tuesday, December 6th, 2016 by W. Scott Railton

the-white-house-1623005_1280We’re following the Trump transition with great interest. Unsurprisingly, most of the appointees are anti-immigration. Persons opposed to immigration are sometimes called “restrictionists,” since they favor immigration restrictions. Obama had his “team of rivals;” Trump is building his team of restrictionists.

Here’s a brief rundown on the appointees so far:

Steve Bannon, Chairman of Breitbart News, has been named Trump’s Chief Strategist, on equal footing with the White House Chief of Staff. Mr. Bannon’s anti-immigration and anti-globalism/nationalism views are a matter of record. For instance, he has been critical of the fact that there are so many CEOs in Silicon Valley who are immigrants. He’s probably the most criticized appointee so far, based on charges of racism.

Long-time Alabama Senator Jeff Sessions will be nominated to head the Department of Justice, as U.S. Attorney General. The DOJ runs the immigration courts. For as long as I’ve been involved in immigration advocacy, Senator Sessions has been one of the leading voices for restricting immigration in the Senate. He has stood in the way of many key reform bills, including various versions of the DREAM Act.

Rep. Tom Price of Georgia has been tapped for Health and Human Services Secretary. He is on the record as favoring eliminating birthright citizenship and requiring that government services be only offered in English.

National Security Advisor appointee Michael Flynn tweeted in February that “Fear of Muslims is RATIONAL.” He has expressed strong opposition to admitting Muslim refugees.

And then there’s Ben Carson, former Presidential candidate and now Trump’s Housing and Urban Development appointee. He has said, if elected, that he would eliminate any benefits that might attract persons to enter illegally.

Not to forget Vice-President Mike Pence. He has a 100% voting record on immigration, according to the Federation for American Immigration Reform. The Southern Poverty Law Center has called FAIR a hate group. Pence supports the wall, ending birthright citizenship, and declaring English as the official language of the U.S.

There’s more to come, too.

Kris Kobach, currently the Secretary of State for Kansas, has been a key advisor to Trump on immigration, and is reportedly in consideration for leadership roles. He is the architect of several anti-immigration state plans, such as Arizona’s SB 1070, which was litigated in the Supreme Court. Kobach supports bringing back NSEERs—a failed registry system—and building the wall. He’s been mentioned as a possible DHS pick, and regardless, is sure to be a continuing advisor on immigration matters.

Also, there is the matter of a vacancy on the U.S. Supreme Court. If President-elect Trump keeps his word, we’ll see an appointee in the mold of Justice Scalia, an original constructionist of the Constitution. Six of the current justices are over sixty-five years old, and two – Ginsburg and Kennedy – are over eighty. Key immigration decisions this last term have covered administrative actions by President Obama on immigration, and how long persons can be detained (months? years?) while awaiting immigration proceedings.

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New Rules Affecting Work Eligibility and Portability for High Skilled Workers

Friday, November 18th, 2016 by W. Scott Railton

The Department of Homeland Security published its final rule today for modernizing the employment based immigration. The rule will take effect 60 days from today, which should be right before the change in the administrations. This rule is a big deal for employment immigration. It is also just plain big, weighing in at 94 pages in the Federal Register.

It institutes many changes. Broadly speaking, the rule affects cap-exempt determinations for H-1Bs, creates grace periods for certain situations, revokes the 90 day EAD rule, and creates a compelling circumstances EAD. The rule will probably lead to more self-petitions from professionals, typically under the national interest waiver category. It will take some time to sort through all of it, but the general impression is the rule will make improvements upon the employment based immigration system.

Unless….of course, the Trump Administration takes steps to revoke the rule. The Trump Administration and the key people involved with immigration have loudly been anti-immigration, whether legal or illegal. There is some chance therefore that steps may be taken to roll back this and other rules.

Here’s USCIS’s announcement on the rule, with more particulars:

USCIS Publishes Final Rule For Certain Employment-Based Immigrant and Nonimmigrant Visa Programs

WASHINGTON— USCIS has published a final rule to modernize and improve several aspects of certain employment-based nonimmigrant and immigrant visa programs. 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.
Among other things, DHS is amending its regulations to:
• Clarify and improve 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 enable 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.

• Improve job portability for certain beneficiaries of approved Form I-140 petitions by maintaining a petition’s validity under certain circumstances despite an employer’s withdrawal of the approved petition or the termination of the employer’s business.

• Clarify and expand when individuals may keep their priority date when applying for adjustment of status to lawful permanent residence.

• Allow certain high-skilled individuals in the United States with E-3, H-1B, H-1B1, L-1 or O-1 nonimmigrant status, including any applicable grace period, to apply for employment authorization for a limited period if:
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.

• Clarify 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, H-1B portability, licensure requirements and protections for whistleblowers.

• Establish two grace periods of up to 10 days for individuals in the E-1, E-2, E-3, L-1, and TN nonimmigrant classifications to provide a reasonable amount of time for these individuals to prepare to begin employment in the country and to depart the United States or take other actions to extend, change, or otherwise maintain lawful status.

• Establish 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, so they may more readily pursue new employment and an extension of their nonimmigrant status.

• Automatically extend the employment authorization and validity of Employment Authorization Documents (EADs or Form I-766s) for certain individuals who apply on time to renew their EADs.

• Eliminate 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.

For more information, visit the Working in the U.S. page or read the rule in the Federal Register. USCIS plans to host a national stakeholder engagement regarding this final rule. Visit this page to sign up for an email alert to receive the invitation from the USCIS Public Engagement Division.

For more information on USCIS and its programs, please visit or follow us on Twitter (@uscis), YouTube (/uscis), Facebook(/uscis), and the USCIS blog The Beacon.


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Trump’s Immigration Reforms, Speculatively

Friday, November 11th, 2016 by W. Scott Railton

President-Elect Trump says, “We’re going to look very strongly at immigration.” Immigration and border security were cornerstone issues of his campaign. The Republicans have majorities in the Senate and the House, and he has the ability to appoint at least one Supreme Court judge immediately. The path seems pretty clear for major immigration reforms.

We’ve been receiving client queries, understandably concerned. I think we have to anticipate some pretty big changes, most of which will restrict immigration. Some of these changes may come very early in the administration, while others will take some time.

Here are a few thoughts:

• The Deferred Action for Childhood Arrivals (DACA) program is in jeopardy. This is a program created by the Obama administration without Congressional approval. Trump has threatened to undo many executive orders, and this program will receive scrutiny. Each case has to be evaluated on its own, but non-profit organizations which we respect are advising, generally, to not file new cases for DACA benefits, not travel on advance parole, and consider renewal applications on a case-by-case basis.

• NAFTA TN categories may receive new scrutiny. Trump was very, very critical of NAFTA during his campaign. NAFTA includes provisions for the TN work authorization for certain professions. There is some discussion among experts that even if NAFTA is scrapped, a Canadian Trade Agreement would be possible. Canada has already expressed interest in re-negotiations and improving the terms of the trade deal. From my perspective, there is much room to improve upon the TN schedule of professions, but HR departments and employers would be harmed by doing away with the category. For example, lots of hospitals take advantage of the RN category.

• Expect changes to the H-1B Specialty Occupation program. Trump’s team of advisors have been critical of this program for a long time. I imagine they’ll raise filing fees and/or cut quota numbers; heighten compliance measures; and perhaps introduce a soft labor market test. It might take some time to do this, but legislation of this sort is already drafted.

• Executive Orders issued concerning immigration may be stricken on “Day 1,” according to Trump. Countervailing order may be issued in some cases.

• There will likely be proposals to revise the immigrant visa quota system, with a greater emphasis on merit and employment based immigration, as opposed to family-based immigration.

• Some sort of wall on the southern border will be proposed. A hallmark of Trump’s campaign was that he would build a wall, and Mexico would pay for it. Cost of the border security measures will be the issue, and it will likely be cash-grab for defense contractors.

• A repeal of the Affordable Care Act may impact some immigrants. Any extension of government aid to immigrants will likely be curtailed.

• Electronic work authorization verification (E.g. E-Verify) will be first encouraged, perhaps through incentives, and required after legislation passes.

• Various temporary work authorization programs may be limited or cut (e.g. Temporary Protected Status, H-4 work authorization, temporary work authorization while applications are pending). Regulations related to these programs may be changed relatively quickly via emergency processes.

• Immigration Court proceedings may be streamlined, as far as the administration can get away with, similar to how things were after 9/11.

• Many immigrant advocacy groups are publishing advisories. We like the Northwest Immigrant Rights Project and their work. The National Immigration Law Center is another good organization.

• Senator Mitch McConnell said this week that immigration discussions will be conducted behind closed doors, and then presumably pushed through Congress. The Center for Immigration Studies is a well-known think-tank in favor of reducing immigration, and has published various ideas on how to do so. They have been waiting a long time to help re-write U.S. immigration law, and this seems to be their time.

U.S. immigration is what we do. We will of course be following developments closely, periodically posting here, and writing and speaking elsewhere on the subject. Now is a time when employers really want to pay close attention to potential changes in the law, and make themselves heard when necessary. Changes will have both intended and unintended consequences, and may come fast. Now is also a time to consider whether employer compliance with immigration law is in good shape. We can help.

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Posted in General, Scott Railton |

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