September 2016 Newsletter
In This Issue
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:
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.
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.
New Passport Rules Set for Sex Offenders/Tax Delinquents
Certain convicted sex offenders may either have their passports denied or revoked under new State Department guidelines. The same rules would apply to those with a lot of tax debt and individuals who seek a U.S. passport without a correct and valid Social Security number.
The new rules impact those identified as sexual offenders under International Megan’s Law, those who the U.S. Treasury has identified as having a “seriously delinquent” tax debt and those who either do not include a Social Security number on their passport applications or who knowingly provide an incorrect number during the application process.
Under the terms of 2015’s Fixing America’s Surface Transportation Act, or FAST Act, those who owe the U.S. Internal Revenue Service at least $50,000 may find themselves with their passports revoked or without an opportunity to obtain a new one, should the IRS certify to the State Department that the person has a “seriously delinquent” bill, according to the notice.
Under the FAST Act, the new regulations also call for passports to be denied to those who do not include their Social Security numbers on applications, or who intentionally, recklessly, willfully or negligently provide invalid or incorrect Social Security numbers on the applications, according to the publication.
International Megan’s Law, signed by President Barack Obama in February, requires that the passports of those convicted of sexual offenses against minors contain an identifier. Under the new rules, offenders may not have passport cards, as the cards are not physically able to have the specific identifier that the law requires, according to the publication.
Under International Megan’s Law, passport applicants who are covered as sex offenders under the regulation do not report their status to the State Department during the application process. Instead, the department is obligated to get the information from other government sources.
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I-130 Checklists for Filing in London
The USCIS Field Office in the US Embassy, London has updated its checklists for filing I-130 immigrant petitions on behalf of foreign national relatives: Spouse, Child and Parent.
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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.
Read the announcement.
Read additional details.
To review the features of this new iCERT System enhancement, see the Quick Start Technical Guide.
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September Visa Bulletin Shows Movement in Final Action Dates
The Department of State's Visa Bulletin for the month of September 2016 shows much movement in the final action dates for various employment categories. For example, in August, the EB-1 final action date for China was January 1, 2010; in September it is Current. The August EB-2 final action date for China was January 1, 2010; in September it has moved forward to June 1, 2013. Dates in several categories were specified in August for El Salvador, Guatemala, and Honduras; in September, that column has been dropped and all chargeability areas except those listed for China-mainland born, India, Mexico, and Philippines are Current.
Read the Visa Bulletin for September 2016.
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USCIS To Allow Additional Applicants for Provisional Waiver Process
U.S. Citizenship and Immigration Services (USCIS) announced a final rule, effective August 29, 2016, that expands the existing provisional waiver process to allow certain individuals who are family members of U.S. citizens and lawful permanent residents (LPRs) and who are statutorily eligible for immigrant visas to more easily navigate the immigration process.
USCIS noted that the provisional waiver process "promotes family unity by reducing the time eligible individuals are separated from their family members while they complete immigration processing abroad, while also improving administrative efficiency."
The agency said the final rule builds on a process established in 2013 to support family unity. Under that process, certain immediate relatives of U.S. citizens can apply for provisional waivers of the unlawful presence ground of inadmissibility, based on the extreme hardship their U.S. citizen spouses or parents would suffer if the waiver were not granted. The final rule expands eligibility for the provisional waiver process to all individuals who are statutorily eligible for the waiver of the unlawful presence ground of inadmissibility. Until now, only immediate relatives of U.S. citizens were eligible to seek such provisional waivers before departing the United States for the processing of their immigrant visas. Those eligible for the provisional waiver process under the 2013 rule are only a subset of those eligible for the waiver under the statute.
To qualify for a provisional waiver, applicants must establish that their U.S. citizen or lawful permanent resident spouses or parents would experience "extreme hardship" if the applicants are not allowed to return to the United States.
USCIS said it expects to update its Policy Manual "in the coming weeks" to provide guidance on how it makes "extreme hardship" determinations. The final rule also makes changes to Form I-601A, Application for Provisional Unlawful Presence Waiver. These changes will go into effect along with the final rule.
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Government Agency Links
Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State's latest Visa Bulletin with the most recent cut-off dates for visa numbers:
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