I INTRODUCTION TO THE IMMIGRATION FRAMEWORK

i Legislation and policy

US immigration policy has multiple goals. First, it reunites families by admitting immigrants whose relatives are already in the United States.2 Second, it admits foreign workers to perform labour, generally taking into consideration the availability and working conditions of US workers.3 Third, it provides a refuge for those facing persecution on account of their race, religion, nationality, membership of a particular social group or political opinion.4 Finally, it promotes diversity in the immigrant pool by randomly providing visas to immigrants from countries with low rates of immigration to the United States.5

This policy provides two pathways for admission to the United States: aliens may be admitted as immigrants on a permanent basis or as non-immigrants for a temporary period.6 Immigrants are called lawful permanent residents (LPRs) and have an immigrant visa often referred to as a 'green card'. LPRs have full civil rights to work in the United States. Over 1 million new immigrants are admitted to the United States each year.7 Non-immigrants are admitted for a particular activity and for a finite period. Certain non-immigrants may work in the United States depending on their visa classification. In recent years, approximately 180 million non-immigrants have been admitted to the United States.8

ii The immigration authorities

US immigration laws can be found in the Immigration and Nationality Act (INA), as amended.9 The INA brought together all the nation's statutes on immigration and naturalisation, and it remains the basic body of immigration law. The INA included a national origins quota system of immigrant selection, quota-free restrictions for the western hemisphere, quota preferences for relatives and skilled persons, and security protections against criminals and subversives.

Since 1952 the INA has been amended countless times by legislation, although its structure has remained intact. Significant amendments are outlined below.

In 1965, the INA of that year abolished the national origins system and set annual limits on immigration and a per-country quota.10 By equalising immigration policies, the effect was to shift immigration from Europe to Asia and to South and Central America.

In 1986 the INA was amended again by the Immigration Reform and Control Act (IRCA).11 To curtail the rising tide of illegal immigration, the law imposed civil and criminal penalties on employers who knowingly hired aliens not authorised to work and required employers to verify the identity and work eligibility of all employees through the completion of Employment Eligibility Verification Form I-9 at the time of hiring.

In the same year, the Immigration Marriage Fraud Amendments Act was passed to prevent marriages intended solely to gain immigration benefits.12 It established a two-year period of 'conditional residence' for foreign nationals who marry a US citizen, at the end of which the US citizen spouse must petition the government to remove the conditional status.

The Immigration Act of 199013 substantially changed the preference system for immigrants by establishing new categories with separate caps for employment-based immigration and family-sponsored immigrants. It removed quotas for immediate relatives and established a diversity programme for immigrants from countries with low rates of immigration. It also created a cap on H-1B and H-2B non-immigrant workers and required employers to file a labour condition application (LCA) with the US Department of Labor (DOL) regarding wages and other working conditions for H-1B workers. The law also created new non-immigrant visa categories: the O visa for persons of extraordinary ability and the P visa for certain types of entertainers.

In 1996, the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA)14 was passed, which expanded the categories of offences for which aliens could be deported, eliminated certain waivers of deportation and established a new bar to admission, of three or 10 years, for aliens who had been unlawfully present in the United States for six months or one year, respectively.

In addition to federal immigration law, the United States has witnessed the proliferation of state and local immigration laws.15 These have emerged because of the perceived failure of the federal government to control the migration of undocumented persons to the United States or the removal of persons unlawfully in the United States. However, under the Commerce Clause of the US Constitution,16 the regulation and enforcement of immigration matters fall within the purview of the federal government, and federal courts have historically struck down state and local attempts to regulate immigration with some limited exceptions.17 For example, the Supreme Court upheld an Arizona provision that requires state law enforcement officials to determine the immigration status of anyone they stop or arrest if they have reason to suspect that the individual might be in the country illegally, but struck down all other provisions on the grounds that they were pre-empted by federal law.18

Several US agencies implement and enforce immigration law.

Through its Bureau of Consular Affairs, the US Department of State processes immigrant and non-immigrant visa applications.19

In 2003, the Department of Homeland Security (DHS) was created with separate branches to administer immigration laws:20

  1. US Citizenship and Immigration Services (USCIS) is the agency responsible for the processing of all immigrant and non-immigrant visa petitions and applications by aliens who are already in the United States;
  2. US Customs and Border Protection (USCBP) operates at the nation's borders, airports and seaports and is responsible for determining the admissibility of arriving aliens and for determining the length of stay; and
  3. US Immigration and Customs and Enforcement has authority to detain and remove illegal aliens and enforces the IRCA.

The DOL's Employment and Training Administration21 processes permanent labour certification applications filed by employers seeking to employ foreign workers permanently in the United States. It also processes LCAs filed by employers wishing to employ H-1B workers.

Finally, the US Department of Health and Human Services22 determines the admissibility of aliens on health grounds.

II INTERNATIONAL TREATY OBLIGATIONS

i Immigration benefits pursuant to treaties of friendship, commerce and navigation

The United States has entered into treaties of friendship, commerce and navigation (FCN) with 82 countries.23 Nationals of these countries may be eligible for non-immigrant E visas as traders or investors, or employees of qualifying trader or investor enterprises.

The individual or enterprise must submit an application to the US consulate in the country of their nationality to qualify the trading or investment activity. The following criteria24 must be met:

  1. the visa applicant must be a citizen of the treaty country;
  2. if applicable, the trading or investment enterprise must also be a national of the treaty country (citizens of the treaty country must own at least 50 per cent of the business);
  3. treaty trader applicants must show they will be in the United States solely to carry on substantial trade, which is international in scope, principally conducted between the United States and the foreign state of which the alien is a national;
  4. treaty investor applicants must show they have invested or are actively in the process of investing a substantial amount of capital in a bona fide enterprise in the United States (not a small amount of capital in a marginal enterprise merely to earn a living) and are seeking entry solely to develop and direct the enterprise; and
  5. employees of trading and investment enterprises must serve in a managerial or executive role or as employees with 'essential skills'.

E visas may be valid for up to five years and holders are admitted to the United States for two years upon each entry.25 Holders must leave the United States after termination of status, but there is no upper time limit on renewal or extension of stay.

Spouses and children under 21 are entitled to 'E-derivative' visas. Spouses may apply for work authorisation upon arrival in the United States.26

ii Immigration benefits pursuant to trade agreements

Immigration benefits accrue to certain nationals under trade agreements with the United States as follows.

North American Free Trade Agreement

In 1994, the United States implemented the North American Free Trade Agreement (NAFTA) with Canada and Mexico.27 NAFTA is a historic accord governing the largest trilateral trade relationship in the world and covers trade in goods, services and investments. NAFTA facilitates the movement of US, Canadian and Mexican business persons across each country's border through streamlined procedures.

Pursuant to NAFTA, citizens of Canada and Mexico are eligible for temporary US work visas in the following categories:

  1. Trade NAFTA (TN) visa:28 the TN is limited to Canadian or Mexican professionals. A professional is a business person seeking entry to engage in a business activity at a professional level in one of 60 professions set out in Appendix 1603.D.1 to Annex 1603 of NAFTA. These include medical professionals, scientists, teachers and a broad range of other general professionals such as accountants, computer systems analysts, landscape architects and social workers. The qualification requirements are specified in NAFTA and generally include a baccalaureate degree in a directly related field, with some exceptions. Services must be rendered for an entity in the United States; self-employment is not permitted; and
  2. L-1 intracompany transfer visa and E-1 and E-2 treaty trader and investor visas:29 pursuant to NAFTA, Canadian and Mexican citizens may qualify for L-1 intra-company transferee visas, meeting the same criteria as discussed in Section IV, under the L-1 visa category, or the E-1 treaty trader or E-2 treaty investor visa as previously set out under FCN treaties.

The United States, Canada and Mexico renegotiated NAFTA in 2018 and signed a new regional trade pact on 30 November 2018, known as the United States–Mexico–Canada Agreement (USMCA).30 Both the US House of Representatives and US Senate passed the trade agreement prior to President Trump signing the law into effect on 29 January 2020.31 NAFTA remains in effect until Canada's parliament endorses USMCA. The US Trade Representative confirmed that USMCA does not require changes to US immigration laws and does not change access to visas between the three countries.32

Singapore and Chile free trade agreement H-1B1

In 2004, the United States enacted free trade implementation acts relating to Singapore and Chile.33 These acts created a new H-1B1 specialty occupation visa category with an annual cap of 5,400 visas for Singaporeans and 1,400 visas for Chileans. The 6,800 quota is counted against the annual 65,000 H-1B quota, described in Section IV. The criteria for the H-1B1 visas are the same as those for the H-1B visa.

Australian E-3 specialty occupation

In 2005, the United States entered into a free trade agreement with Australia.34 As a result, the E-3 visa category became available to Australian nationals who will be employed in the United States in a 'specialty occupation'. There is an annual quota of 10,500 E-3 visas, but the quota has never been met. To qualify, the US position generally must require a specific baccalaureate or higher degree (or its equivalent) as the minimum entry-level requirement and the employee must possess such a degree, or its equivalent through well-documented employment experience.

E-3 visas may be issued for up to two years. There is no limit on extensions.

Spouses and children under 21 are entitled to E-3 derivative visas. E-3 spouses may apply for work authorisation upon arrival in the United States.35

III THE YEAR IN REVIEW

Major changes in immigration policy and procedure continued to roll out at a rapid pace in 2019.

i Implementation of the H-1B cap electronic registration process

On 9 January 2020, USCIS published a Federal Register notice announcing the implementation of the H-1B registration process for the fiscal year (FY) 2021 cap selection process.36 The process requires petitioners to register electronically and pay a US$10 registration fee with USCIS between 1 March 2020 and 20 March 2020.37 Following the registration period, USCIS will randomly select registrants who will then be eligible to file H–1B cap-subject petitions.38 USCIS intends to notify those selected by 31 March 2020. Petitioners selected in the H-1B lottery will then have 90 days from 1 April 2020 to file the H-1B petition with USCIS.39

ii Increase in requests for evidence and denials from USCIS

The Buy American, Hire American (BAHA) Executive Order, the USCIS 2017 policy memo that rescinded the long-standing deference policy afforded to visa extensions40 and related policy memos issued by USCIS continued to bring about a significant influx of requests for evidence (RFEs), denials and civil lawsuits on business immigration cases in 2019.

H-1B

H-1B petition approval rates showed modest improvement. In FY 2019, 15.2 per cent of H-1B petitions were denied.41 Further, 40.2 per cent of petitions received an RFE, up 2 per cent from FY 2018.42 Only 65 per cent of petitions that received an RFE were ultimately approved.43

L-1

L-1 petitions continue to be one of the more difficult visa categories to apply for, with approval rates down and an increase in RFEs. In FY 2019, 28.1 per cent of L-1 petitions were denied, up 6 per cent from FY 2018 and 13.1 per cent from FY 2016.44 Moreover, 54.3 per cent of petitions received an RFE, up 8.7 per cent from the previous year.45 Only 50.8 percent of petitions that received an RFE were ultimately approved.46

O-1

Similarly, O-1 petition approval rates dropped and the number of RFEs increased. In FY 2019, 9.2 per cent of O-1 petitions were denied, up 2 per cent from FY 2018.47 Further, 26.4 per cent of O-1 petitions received an RFE, up 3.5 per cent from the previous year.48

iii Emergence of covid-19

The disease covid-19, which results from a novel coronavirus, was first reported in Wuhan, China, on 31 December 2019.49 In response to the subsequent global covid-19 pandemic, on 31 January 2020, President Trump signed Proclamation 9984 titled 'Proclamation on Suspension of Entry as Immigrants and Nonimmigrants of Persons who Pose a Risk of Transmitting 2019 Novel Coronavirus'.50 Since then, President Trump has signed a series of proclamations in rapid succession suspending entry of non-immigrant and immigrant visas from Iran, Italy, Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden and Switzerland.51 President Trump later added the United Kingdom and Ireland to this list and announced that the border between Canada and the United States would close to non-essential travel.52

Additionally, multinational corporations have enacted travel restrictions53 to try to diminish the risk to their employees of exposure to the coronavirus. The restrictions will almost certainly lead to an increase in L-1 applications submitted at USCIS service centres rather than companies utilising their approved corporate Blanket L petitions at embassies and consulates abroad, ultimately leading to longer USCIS processing times.

iv Public Charge rule

DHS, on 14 August 2019, published the final Inadmissibility on Public Charge Grounds rule codifying regulations governing the application of the public charge inadmissibility ground under INA Section 212(a)(4).54 The final rule dramatically changes the standard in determining whether an applicant for adjustment of status (AOS) or admission is 'likely at any time to become a public charge' and inadmissible to the United States. USCIS detached the consideration of whether a foreign national is primarily dependent on public benefits, redefining public charge as a non-citizen that receives or is likely to receive one or more of the specified public benefits, for more than 12 months in the aggregate within any 36-month period. Two benefits in one month count as two months.55 The final rule at Section 212.21(b) of Title 8 of the Code of Federal Regulations defines a public benefit as '[a]ny federal, state, local or tribal cash assistance for income maintenance.'56

USCIS adjudicators will apply a complex totality of circumstances test that weighs the foreign national's age, health, family status, education, skills, assets, resources and financial status, taking into account a broad range of factors. Further, USCIS will interpret 'likely at any time' to mean it is 'more likely than not' that the foreign national, at any time in the future, will receive one or more public benefits as defined by the rule.57

State injunctions and the US Supreme Court's ruling

Several nationwide injunctions halted the rule prior to its enactment. On 27 January 2020, the Supreme Court granted the Trump administration's request for a stay, allowing the rule to go into effect while enduring litigation continues on the merits of the rule.58 On 24 February 2020, USCIS announced that it would implement the rule nationwide.59 The rule only applies to foreign nationals who filed applications after 24 February 2020.

In March 2020, a US federal judge ruled unlawful President Trump's appointment in 2019 of Ken Cuccinelli as new acting head of USCIS. Cuccinelli has rigorously defended the public charge rule, notoriously subverting the poem on the plaque attached to the Statue of Liberty by stating, '[g]ive me your tired and your poor who can stand on their own two feet and who will not become a public charge.'60

Consequences and forms

The final rule is vastly more restrictive than previous policy and may result in considerably higher denial rates of AOS applications subject to public charge determinations. Further, the multi-factor test gives adjudicators considerable discretion and may produce inconsistent adjudications. In addition, the rule will prove onerous for both foreign nationals and the government as it requires the submission of a lengthy Form I-944, Declaration of Self-Sufficiency. USCIS' review of hundreds of thousands of these new forms each year will further slow USCIS' already delayed case processing.

v Trump administration's restrictive immigration policies

Travel ban

On 26 June 2018, the Supreme Court upheld the Trump administration's ban restricting non-immigrant and immigrant entry for certain foreign nationals who are citizens or nationals of seven countries: Iran, Libya, North Korea, Somalia, Syria, Venezuela and Yemen.61 On 31 January 2020, the Trump administration issued Presidential Proclamation 9983,62 expanding the ban to include certain foreign nationals of the following six countries: Eritrea, Myanmar and Tanzania; and Kyrgyzstan, Nigeria and Sudan, which are predominately Muslim.

Iran

On 3 January 2020, US military assassinated Iranian general Qasem Soleimani.63 Following the assassination, Iran retaliated with several attacks on US military personnel stationed in Iraq. Although Iranian nationals are among those affected by the travel ban, Iranians applying for F, J and M student visas are exempt.64 Following the attacks, it was reported that Iranian nationals applying under the above-mentioned visa categories experienced an increase in visa denials and revocations, as well as long administrative processing waiting times.65 Even more surprising were reports of US citizens having been detained and subjected to heavy vetting at the Customs and Border Protection Peace Arch border crossing in Blaine, Washington, after trying to re-enter the United States from Canada.66

New York State Trusted Traveler Program applicants

On 6 February 2020, in response to New York's 'Green Light Law',67 DHS announced that New York residents would no longer be eligible to apply for or renew their Trusted Traveler Programs, such as Global Entry, NEXUS, SENTRI and FAST.68 On 10 February 2020, New York's Attorney General filed a lawsuit in federal court challenging the decision as 'political retribution for the State's enactment of legislation that the federal government disfavors'.69 The lawsuit is ongoing.

IV EMPLOYER SPONSORSHIP

i Non-immigrants

In addition to non-immigrant visas offered through the treaties described in Section II, US immigration law offers several other non-immigrant visa classifications that may be used for new hires or intra-company transferees.

For each classification, US employers must file a petition with USCIS to demonstrate eligibility.70 The petition is typically adjudicated within three to six months. After approval, the foreign worker must apply for a visa at a US consulate.71 Workers already in the United States may also be eligible for a change of status. If the petition is denied by USCIS, an appeal may be filed with USCIS's Administrative Appeals Office. Adverse decisions on visa applications by the US consul are generally non-reviewable.

Useful non-immigrant visa classifications include the following.

H-1B visa

H-1B visas are available to specialty occupation workers.72 To qualify, the position in the United States generally must require a specific baccalaureate or higher degree (or its equivalent) as the minimum entry-level requirement; and the employee must possess such a degree, or its equivalent through well-documented employment experience.

There is an annual quota of 65,000 first-time H-1B visa recipients. An additional 20,000 H-1B visas are available for graduates of US universities with master's degrees and higher. These visas are allocated in the order in which the petitions are received. Petitions are accepted on 1 April each year for the fiscal year starting on 1 October.

Spouses and children under 21 are entitled to H-4 visas. Certain H-4 spouses are eligible for employment if the primary H-1B worker is in the process of applying for permanent residence. As discussed in Section III, the Trump administration is studying this policy and is expected to roll back the privilege.73 As a result, over 200,000 H-4 spouses may lose their employment authorisation.74

O-1 visa

The O-1 visa is available to persons of extraordinary ability in the sciences, arts, education, business or athletics.75 To qualify, the foreign worker must demonstrate sustained national or international acclaim by satisfying a number of criteria listed in USCIS regulations.76

The O-1 visa may be granted for an initial period of up to three years and may be renewed in annual increments without limit.

L-1 visa

The L-1 non-immigrant visa is available for intra-company transferees.77 To qualify, the employee must be employed by the company overseas for one full year in the past three years in an executive, managerial or specialised knowledge capacity; and the employee must be transferred to a US branch, subsidiary or affiliate of the overseas company to work in an executive, managerial or specialised knowledge capacity.

Spouses and children under 21 are entitled to L-2 derivative visas. L-2 spouses may apply for work authorisation upon arrival in the United States.78

L-1 petitions are approved for an initial period of three years. L-1B specialised knowledge employees may obtain a two-year extension for a maximum of five years, while L-1A executives and managers may obtain extensions in two-year increments, up to a maximum of seven years.79 A specialised knowledge employee promoted to a managerial role may be eligible for a change in classification from L-1B to L-1A and a corresponding two-year extension, providing the change is made before the employee reaches 4.5 years in L-1 status.80

Certain employers with large offices in the United States or who sponsor a significant number of intra-company transferees each year may apply to USCIS for 'L Blanket' approval, which permits them to bypass filing individual petitions with USCIS for each transfer and instead file an L Blanket petition directly at a US consulate. To qualify as an L Blanket employer, USCIS requires evidence that an office in the United States has been doing business for at least one year; that the organisation has three or more domestic and foreign branches, subsidiaries or affiliates; and that it is sufficiently large in terms of US employees (at least 1,000) or intra-company transferees (at least 10 in the previous 12 months) or in terms of annual sales (at least US$25 million).81

ii Immigrants

For foreign employees, the path to permanent resident status follows two steps: a petition to USCIS to become a preference immigrant; and an application for an immigrant visa.

Preference petition

A preference petition is required for employees intending to immigrate to the United States.82 The petition classifies the employee within one of the following immigration preference categories:83

  1. first employment-based preference (EB-1): multinational executives and managers, aliens of extraordinary ability or outstanding professors or researchers;
  2. second employment-based preference (EB-2): aliens who possess an advanced degree or have exceptional ability; or
  3. third employment-based preference (EB-3): members of the professions possessing a bachelor's degree and skilled workers.

Employment-based immigrant visas are limited to an annual quota of 140,000 visas.84 Since demand often exceeds supply, especially in the EB-3 category, immigrant visas can be unavailable for several years.85

Application for an immigrant visa

An application for adjustment of status may be filed with USCIS by foreign nationals seeking immigrant visas and their spouses and unmarried children under the age of 21.86 Alternatively, they may apply for immigrant visas at a US consulate in the country of their nationality or most recent overseas residence.87

iii Labour market regulation

The DOL regulates the employment of foreign workers under both non-immigrant and immigrant visas. A labour market test is generally not required to sponsor a non-immigrant worker but may be required to sponsor a worker for permanent residence.

LCAs for non-immigrant H-1B and E-3 visas

Before applying for an H-1B or E-3 visa, the US employer must file an LCA with the DOL.88 The LCA requires the employer to attest that:

  1. the non-immigrant will be paid the required wage;
  2. the employment of the non-immigrant will not adversely affect the working conditions of workers similarly employed in the area of intended employment;
  3. as of the date of filing the LCA, there is no strike or lockout involving the position; and
  4. notice of the position has been provided to the bargaining representative or has been posted in a conspicuous place where the non-immigrant will be employed.

For H-1B and E-3 visas, employers must ensure they pay the foreign workers the DOL's required wage for the particular occupation and region.89 The LCA attestations, data on the required wage determination and the salary for the position must be maintained in a public access file available for inspection by the public or the DOL's wage and hour inspectors.90 Wage violations may be subject to fines or disbarment from the H-1B (or E-3) programmes, or both of these sanctions.91

Labour certification for permanent residents

A labour market test is generally required to sponsor foreign workers in the EB-2 and EB-3 categories.92 Prior to filing the preference petition, an employer must apply for permanent employment certification (PERM labour certification) with the DOL. To obtain a PERM labour certification approval, the employer must document the shortage of US workers who are able, willing and qualified to perform the job duties.93 Under the PERM regulations, the employer must conduct specified recruitment activities for 60 days.94 If no qualified, willing and able US workers are identified through the recruitment efforts, the employer may proceed with the PERM labour certification application, which can be completed and submitted online to the DOL. Processing times range from four to six months. The DOL can audit the applications up to five years from the filing date. Audited cases can take over one year for review.

iv Rights and duties of sponsored employees

Non-immigrant workers must be employed in the position described in the sponsoring petition, not work for another employer and ensure they do not remain in the United States beyond the date of admission indicated on their arrival or departure record issued by USCBP. They may apply for an extension or change of visa status with USCIS before the end of their current period of admission. Overstays may bar future entry to the United States, as mandated by IIRIRA.95

Non-immigrant workers may reside and work in the United States for the sponsoring employer for the period of admission as determined by USCBP upon their entry. They may apply for social security numbers96 and be eligible for future social security payments.97 H-1B employees are entitled to receive the wage indicated in the employer's LCA filed with the DOL (see above). They may lodge a complaint with the DOL if they are not receiving the stated wage or have been 'benched' by the employer.98

If an employer terminates the employment of an H-1B or O-1 worker before the end of the approved period of validity, the employee is entitled to payment for the cost of transportation to his or her country of residence.99

LPRs generally have full civil rights to work in the United States for any employer. They have no political rights, but may apply for US naturalisation after having satisfied residence and physical presence requirements.100

V INVESTORS, SKILLED MIGRANTS AND ENTREPRENEURS

i Immigrant investors

Foreign nationals who invest significant sums of money in US enterprises may qualify for permanent resident status in the immigrant investor category, known as the fifth employment-based preference category (EB-5). There are two investment options within EB-5: creation of a new US enterprise or investment in a regional centre.

Creation of a new US enterprise

The primary eligibility requirements are:101

  1. investment of at least US$1.8 million in a 'new commercial enterprise'102 (or US$900,000 if in a 'targeted commercial area', which includes a rural area or an area that has experienced unemployment of at least 150 per cent of the national average103);
  2. creation of full-time employment for at least 10 new workers who must be direct employees of the commercial enterprise; and
  3. active management of the enterprise, through day-to-day managerial control or policy formulation.

Investment in a regional centre

Regional centres are investment opportunities that have been 'pre-approved' by USCIS with respect to the more stringent criteria listed above (new enterprise, job creation, targeted commercial area). Eligibility criteria include:104

  1. investment by the foreign national of US$900,000; and
  2. the enterprise must create full-time employment for at least 10 new workers; however, indirect job creation is permitted (vendors, contractors, etc.).

The types of investments in regional centres are varied and include enterprises that rescue troubled wineries in California, farm tropical fruits in Hawaii and develop tourism industries in Vermont.105 Active investment is not required, therefore the foreign national may be a limited partner.

There is an annual quota of approximately 10,000 immigrant investor visas, which has been met every year since fiscal year 2015.106

The permanent resident process for the EB-5 category consists of two parts: the petition to be classified as an investor and the individual applications of the petitioner and his or her spouse and any unmarried children under the age of 21 for an immigrant visa. After approval of an immigrant investor petition and the immigrant visa applications, conditional US permanent residence is granted for two years.107 At the conclusion of this period, the foreign national must demonstrate that the money has been invested and that the enterprise remains viable and continues to employ 10 workers.108 If these conditions are not satisfied, the permanent residence will be terminated.

ii Self-sponsored immigrant petitions

Most employment-based routes for permanent residence require an employer to sponsor the foreign national and conduct a labour market test. Two categories permit the foreign national to self-sponsor without the need for a labour certification:

Extraordinary ability

Individuals of extraordinary ability in the sciences, arts, education, business or athletics may apply for permanent residence without an employer sponsor in the EB-1 immigrant category.109 The criteria are comparable to those of the O-1 non-immigrant visa,110 although USCIS often imposes a higher standard of review because of the permanent immigration benefit that is to be obtained.

National interest waiver

Foreign nationals may file petitions in the EB-2 category seeking a national interest waiver (a request that PERM labour certification be waived because it is in the interests of the United States).111 Although the jobs that qualify for a national interest waiver are not defined by statute, national interest waivers may be granted to those who have exceptional ability and whose employment in the United States would be in the national interest.112 Exceptional ability is a degree of expertise that is significantly above that ordinarily encountered in the sciences, arts or business.113

A foreign national seeking a national interest waiver must meet at least three of the criteria listed in USCIS's regulations and demonstrate that the national interest would be greatly served if he or she worked permanently in the United States.114

As with the EB-5 investor, the permanent resident process for EB-1 extraordinary ability and EB-2 national interest waiver categories consists of two parts: the petition to be classified as an alien of extraordinary ability or an alien eligible for national interest waiver, and the individual applications of the petitioner, his or her spouse and any unmarried children under the age of 21 for an immigrant visa.

VI OUTLOOK AND CONCLUSIONS

Much like the previous year, the Trump administration's BAHA Executive Order has rippled through the US immigration system in 2019. It should be no surprise that President Trump has pushed to make good on his central campaign promises the year before a presidential election. The year 2019 brought about once again a combination of restrictive rule-making, policy memoranda and operational changes meant to protect the economic interests of US workers and prevent fraud and abuse within the immigration system. The Trump administration's policies, often cited as xenophobic in nature, are linked to ongoing racial violence within the United States. President Trump, referring to the coronavirus responsible for the disease covid-19 as the 'Chinese virus', has even gone to the length of blaming Democrats for exaggerating the impact of the covid-19 pandemic, claiming Democrats have tried to instil fear to impact the outcome of the 2020 presidential election.

In terms of employment-based immigration, international student enrolment at US universities declined by more than 10 per cent between 2015 and 2019.115 Moreover, and as outlined above, denial and RFE rates continue to rise. Because it is a presidential election year, it is difficult to determine what 2020 might look like in regard to immigration policy. At present, there is no way to predict the outcome of the 2020 election. If President Trump is re-elected, the administration is likely to carry on with its restrictive policy changes, creating difficult challenges for the US immigration system. The immigration policies of the presumptive Democratic Party nominee, Joe Biden, are substantially different from those of President Trump,116 although former frontrunner Democratic candidate Bernie Sanders and Biden themselves disagreed over specific immigration policies, such as physical barriers at the US–Mexico border, deportation and criminal penalties for those who are apprehended while crossing the border.117 Senator Sanders had even stated that he would abolish Immigration and Customs Enforcement, the US immigration agency, and redistribute its duties to other agencies.118 Former White House chief of staff Mick Mulvaney admitted that America needs more immigrants when he was recently quoted as stating: '[w]e are desperate – desperate – for more people. We are running out of people to fuel the economic growth that we've had in our nation over the last four years.'119 (He was removed from his post two weeks later.)

Despite this need, the administration's actions behind the scenes (including the influx of new restrictive policy memos, regulations and executive orders, heightened scrutiny, severe processing backlogs and increased denials of immigration benefits) have erected an 'invisible wall', creating significant obstacles to legal avenues of immigration that have the potential to negatively impact employers and the employees they wish to sponsor for work visas or green cards.


Footnotes

1 Stephen J O Maltby and Ellen L Poreda are partners and Jake Paul Minster is an associate at Gibney, Anthony & Flaherty LLP.

2 The Immigration and Nationality Act 1952 (INA), Section 203(a).

3 INA, Section 203(b).

4 INA, Sections 207 to 208.

5 INA, Section 203(c).

6 INA, Section 101(a)(15).

7 US Department of Homeland Security, Office of Immigration Statistics, '2018 Yearbook of Immigration Statistics' (2018), Table 1: www.dhs.gov/immigration-statistics/yearbook/2018.

9 INA, Pub. L. No. 82–414, 66 Stat. 162 (1952).

10 INA, Pub. L. No. 89–236, 79 Stat. 911 (1965).

11 Immigration Reform and Control Act, Pub. L. No. 99–603, 100 Stat. 3359 (1986).

12 Immigration Marriage Fraud Amendments, Pub. L. No. 99–639, 100 Stat. 3537 (1986).

13 Immigration Act, Pub. L. No. 101–649, 104 Stat. 4978 (1990).

14 Illegal Immigration Reform and Immigrant Responsibility Act, Pub. L. No. 104–208, 110 Stat. 3009 (1996).

15 See National Conference of State Legislatures, 2015 Immigration Report (2016), available at:www.ncsl.org/documents/statefed/ImmigrationReport2015Final_Feb2016.pdf.

16 US Constitution Article 1, Section 7, cl. 43.

17 Head Money Cases, 112 US 580 (1884).

18 Arizona v. United States, 567 U.S 339 (2012).

19 INA, Sections 221 to 222.

20 INA, Section 103.

21 INA, Section 212(a)(5)(A), (n).

22 INA Section 212(a)(1).

23 For a list of countries with FCN treaties, see 9 Foreign Affairs Manual 402.9-10, available at: https://fam.state.gov/searchapps/viewer?format=html&query=E%20treaty&links=E,TREATI&url=/FAM/09FAM/09FAM040209.html#M402_9_2.

24 INA Section 101(a)(15)(E); 8 Code of Federal Regulations (CFR). Section 214.2(e).

25 8 CFR, Section 214.2(e)(19).

26 INA, Section 214(e)(16).

27 North American Free Trade Agreement Implementation Act, Pub. L. No. 103–182, 107 Stat. 2057 (1993).

28 INA, Section 203(e)(2); 8 CFR, Section 214.6(c).

29 8 CFR, Section 214.2(l)(17)(i).

33 United States–Chile Free Trade Agreement Implementation Act, Pub. L. No. 108–77, 117 Stat. 909 (2003); United States–Singapore Free Trade Agreement Act, Pub. L. No. 108–78, 117 Stat. 948 (2003).

34 United States–Australia Free Trade Agreement Implementation Act, Pub. L. No. 108–286, 118 Stat. 919 (2004).

35 INA, Section 214(e)(16).

37 85 F.R. 1176-77 (January 9, 2020).

38 id.

39 84 F.R. 889 (January 31, 2019).

40 PM-602-0151: Rescission of Guidance Regarding Deference to Prior Determinations of Eligibility in the Adjudication of Petitions for Extension of Nonimmigrant Status (October 23, 2017).

42 id.

43 id.

44 id.

45 id.

46 id.

47 id.

48 id.

50 85 F.R. 6709-12, (Feb. 5, 2020).

52 id.

54 84 F.R. 41292 (August 14, 2019).

55 id. Federally funded Medicaid, the Supplemental Nutrition Assistance Program (SNAP, formerly known as food stamps), Section 8 housing assistance and federally subsidised housing will be used as evidence of inadmissibility.

56 8 CFR 212.21(b)

57 id.

59 id.

60 https://thehill.com/hilltv/rising/457319-cucinelli-defends-controversial-remarks-statue-of-liberty-poem. Cuccinelli tweaked Emma Lazarus' poem etched on the Statue of Liberty, which reads: 'Give me your tired, your poor, Your huddled masses yearning to breathe free, The wretched refuse of your teeming shore. Send these, the homeless, tempest-tost to me, I lift my lamp beside the golden door!'

62 F.R. 85 6699-6707 (February 5, 2020)

63 See US drone strike ordered by Trump kills top Iranian commander in Baghdad, available at: https://www.cnn.com/2020/01/02/middleeast/baghdad-airport-rockets/index.html.

64 See Resources on the Travel and Refugee Bans, AILA Doc. 17052501, available at: https://www.aila.org/advomedia/issues/all/executive-actions-on-the-muslim-and-refugee-bans.

65 See DOS Practice pointer: Administrative Processing, AILA Doc. 12091850, available at: aila.org/infonet/dospractice-pointer-administrative-processing.

66 See U.S. Stops Dozens of Iranian-Americans Returning From Canada, available at: https://www.nytimes.com/2020/01/05/us/politics/iranian-americans-border.html.

69 State of New York v. Wolf, February 10, 2020.

70 INA, Section 214(c)(1).

71 INA, Section 212(a)(7)(B).

72 INA, Sections 101(a)(15)(H), 214(i)(1).

73 Save Jobs USA v. Dep't of Homeland Security, No. 15-cv-615 (D.D.C. 2018).

75 INA, Section 101(a)(15)(O); 8 CFR, Section 214.2(o)(1)(i).

76 8 CFR, Section 214.2(o)(3)(iii).

77 INA, Section 101 (a)(15)(L); 8 CFR, Section 214.2(l)(1)(i).

78 INA, Section 214(c)(2)(E).

79 8 CFR, Section 214.2(l)(12).

80 8 CFR, Section 214.2(l)(15)(ii).

81 INA, Section 214(c)(2)(A); 8 CFR, Section 214.2(l)(4)(i).

82 INA, Section 204(a).

83 INA, Section 203(b); 8 CFR, Section 204.5.

84 INA, Section 201(d).

85 INA, Section 203(b), (e); see US Department of State, Visa Bulletin (April 2011), www.travel.state.gov/visa/bulletin/bulletin_5368.html.

86 INA, Section 245.

87 22 CFR, Section 42.61(a).

88 INA, Section 212(n)(1); INA, Section 212(t)(1); 20 CFR, Section 655.730(d).

89 INA, Section 212(n)(1)(A), (t)(1)(A).

90 20 CFR, Section 655.760.

91 INA, Section 212(n)(2)(C),(t)(3)(C).

92 INA, Section 212(a)(5)(A).

93 20 CFR, Section 656.10.

94 20 CFR, Section 656.17(e).

95 INA, Section 212(a)(9)(B)(i).

96 See US Social Security Administration, Social Security Numbers for Noncitizens, SSA Publication No. 05–10096 (March 2018), www.ssa.gov/pubs/EN-05-10096.pdf.

97 Social Security Protection Act, Pub. L. No. 108-203, 118 Stat. 493 (2004).

98 8 CFR, Sections 655.731, 665.710.

99 INA, Section 214(c)(5).

100 INA, Section 316.

101 INA, Section 203(b)(5).

102 8 CFR 204.6(f)(1).

103 8 CFR 204.6(f)(2).

104 8 CFR, Section 204.6(m).

105 www.uscis.gov (search 'Immigrant Investor Regional Centers').

107 8 CFR, Section 204.6(l).

108 8 CFR, Section 216.6.

109 INA, Section 203(b)(1).

110 INA, Section 101(a)(15)(o).

111 INA, Section 203(b)(2)(A) and (B).

112 8 CFR, Section 204.5(k)4)(ii).

113 8 CFR, Section 204.5(k)(2).

114 8 CFR, Section 204.5(k)(3); Matter of New York State Dep't of Transp., 22 I&N December 215 (Comm'r 1998).

117 id.

118 id.