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 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 Immigration and Nationality Act of 1965 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
- 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;
- 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
- 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:
- the visa applicant must be a citizen of the treaty country;
- 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);
- 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;
- 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
- 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:
- 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 forth 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
- 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 forth under FCN treaties.
The United States, Canada and Mexico are currently renegotiating NAFTA. It is uncertain what changes may be made to the immigration provisions of NAFTA in a renegotiated agreement.
Singapore and Chile free trade agreement H-1B1
In 2004, the United States enacted free trade implementation acts relating to Singapore and Chile.30 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 for the H-1B visa.
Australian E-3 specialty occupation
In 2005, the United States entered into a free trade agreement with Australia.31 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.32
III THE YEAR IN REVIEW
In April 2017, President Donald Trump issued his Buy American and Hire American Executive Order (the Executive Order), in keeping with his ‘America First’ campaign pledges. The Order instructed agency heads to propose new rules and guidance to protect the interests of US workers, superseding or revising previous immigration rules and guidance where appropriate.33 While the Order did not result in any new legislation during the year, the administration was able to impact legal employment-based immigration through its interpretation of existing regulations and issuance of new policy memoranda. Employers and foreign workers felt the impact of these new policies at various stages of the immigration process, including new hires, visa extensions and green card applications. Below is a summary of some administration policies in 2017–2018 that had a serious effect on employment-based immigration.
i Non-immigrant visa impact
The Executive Order specifically targeted the H-1B visa category, instructing agencies to ‘suggest reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries’.34 Several months after the Order was issued, USCIS seemed to apply a more restrictive interpretation of existing legislation that impacted employers seeking new H-1B visas for foreign nationals. H-1B petitions that were accepted in the Fiscal Year 2018 lottery in April 2017 received an unprecedented number of ‘requests for evidence’ (RFEs), an estimated 40 per cent increase over the same period last year.35 The RFEs focused on entry-level positions and particular occupations such as computer programmers or market research analysts, which USCIS claimed were not ‘specialty occupations’ because they did not require a degree in a specific field.36 Denial rates increased about 10 per cent over last year, to almost 18 per cent.37
Despite these setbacks during the FY2018 H-1B season, the need for H-1B workers in 2018 has not abated. The FY2019 filing season opened on 1 April 2018 and, by 6 April 2018, USCIS announced that the cap had been reached.38 Employers will be waiting in the months to come to see whether their petitions will be selected in the lottery and, if so, whether they will be approved or face another round of RFEs.
USCIS also took aim at the TN visa category, which was created under NAFTA. In November and December 2017, it issued a policy memo and press release advising that the TN Economist category is no longer available to individuals who work primarily in other occupations related to the field of economics, such as financial analysts, marketing analysts and market research analysts.39 Employers had to quickly reassess their TN Economist employees and the risk of travelling during the holiday season, and plan for alternate visa categories such as the H-1B.
USCIS has made it more difficult for employers to predict outcomes by rescinding a policy from 2004 that gave deference to prior petition approvals for extension petitions involving the same parties and underlying facts.40 A new policy memorandum issued in October 201741 emphasises that the burden of proof rests with the petitioner and officers must thoroughly review the petition and supporting evidence to determine eligibility for the benefit sought, without giving deference to prior approvals. The new policy appears to have affected H-1B petitions in particular, when employers are filing for extensions for their existing employees or new petitions for new hires who already hold H-1B status with another employer. The higher risk of RFEs and denials has undercut the ‘H-1B portability’ regulation of 2001, which has previously allowed H-1B workers to transfer to a new employer upon filing a change-of-employer petition rather than waiting for an approval of that petition.42
ii Green card applications
Applicants for permanent residence (green card) are facing additional scrutiny and delays because of new administrative policies. Interviews for employment-based green card applicants were introduced in October 2017.43 USCIS indicated this change is in response to President Trump’s Executive Order Protecting the Nation from Foreign Terrorist Entry into the United States.44 The interview requirement has added to delays while cases are transferred from regional service centres to local offices to be scheduled for appointments. Additional travel restrictions,45 as well as lengthening processing times for green card applications,46 have created obstacles to business people in the final phases of the green card process.
iii Travel ban
President Trump’s attempts to institute a travel ban on citizens of some Muslim-majority countries continued to be challenged in the courts throughout 2017 and 2018. The latest version of the ban, issued in September 2017, added two non-Muslim countries – North Korea and Venezuela – to the original list, which includes Chad, Iran, Libya, Somalia, Syria and Yemen.47 In December 2017, the Supreme Court confirmed that this version of the ban could be enforced while legal challenges proceed in the lower courts.48 The Supreme Court is scheduled to hear oral arguments soon on whether the ban violates immigration law as well as the Establishment Clause of the Constitution.49
iv Worksite raids
On the enforcement side, DHS’s Immigration and Customs Enforcement (ICE) unit has been conducting more raids on businesses to seek out unauthorised workers.50 The ICE director expressed a goal of quadrupling its raids and prosecuting the employers that hire illegal workers, as well as detaining and removing the unauthorised workers.51 USCIS has also proposed an increase in the number of employer site visits it conducts in FY2018 from 10,000 to 20,000, pursuing a new programme that combines random compliance visits and for-cause visits based on detected fraud.52
v Suspension of protective programmes
In 2017–2018, President Trump ended several programmes that had been instituted by prior administrations. On 4 September 2017, his attorney general announced the rescission of the Deferred Action for Childhood Arrivals (DACA) programme, which granted a reprieve from deportation and work authorisation to 800,000 people who were brought to the United States without authorisation when they were minors.53 The DACA programme was created in 2012 by the administration of President Barack Obama.54 The Trump administration’s rescission, which was to go into effect on 4 March 2018, has been challenged in court and is currently on hold.55 President Trump urged Congress to propose legislation to save the ‘Dreamers’, as they are known.56 Prominent business leaders expressed their support for DACA and called on Congress to save the programme,57 but Republicans and Democrats were unable to pass a bill before the deadline.58
The Trump administration also recently announced the end of Temporary Protected Status (TPS) for four countries: El Salvador, Haiti, Nicaragua and Sudan.59 TPS allows citizens of certain countries to remain in the United States when conditions in their country prevent them from returning safely, such as civil war or a natural disaster.60 An estimated 300,000 people are currently in the United States with TPS status, many employed in fields such as healthcare that could be negatively impacted by the loss of workers.61
vi Other challenges to legal immigration
President Trump has continued his attack on the other paths of legal immigration: family-based immigration, the Diversity Immigrant Visa Program (the DV Program) and asylum. Family reunification – one of the primary goals of current US immigration policy, as described in Section I of this chapter – has been negatively rebranded by President Trump and his supporters as ‘chain migration’.62 In his State of the Union address and subsequent communications, he has expressed the goal of limiting sponsorship to immediate family members (spouses and minor children).63 Under current immigration policy, US citizens can also sponsor parents, adult children and siblings; and permanent residents can sponsor spouses and children.64
The president also spoke about two New York City terror attacks that he said ‘were made possible by the visa lottery and chain migration’, as one of the accused attackers reportedly immigrated via the DV Program and the other through family sponsorship.65
In the area of asylum, the State Department set the cap on annual refugee admissions at 45,000, the lowest since 1980.66 In the first three months of the fiscal year, only 5,000 refugees had been admitted, reflecting a severe restriction on admissions from countries such as Iran, Iraq, Somalia and Syria.67
The positions of this administration culminated in a revised mission statement issued by USCIS in early 2018: the words ‘a nation of immigrants’ were stripped from the statement.68
IV EMPLOYER SPONSORSHIP
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.69 The petition is typically adjudicated within three to six months. After approval, the foreign worker must apply for a visa at a US consulate.70 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 visas are available to specialty occupation workers.71 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. The Trump Administration is studying this policy and is expected to roll back the privilege.72 As a result, over 200,000 H-4 spouses may lose their employment authorisation.73
The O-1 visa is available to persons of extraordinary ability in the sciences, arts, education, business or athletics.74 To qualify, the foreign worker must demonstrate sustained national or international acclaim by satisfying a number of criteria listed in USCIS regulations.75
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.
The L-1 non-immigrant visa is available for intra-company transferees.76 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.77
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.78 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.79
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).80
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.
- first employment-based preference (EB-1): multinational executives and managers, aliens of extraordinary ability or outstanding professors or researchers;
- second employment-based preference (EB-2): aliens who possess an advanced degree or have exceptional ability; or
- 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.83 Since demand often exceeds supply, especially in the EB-3 category, immigrant visas can be unavailable for several years.84
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 21.85 Alternatively, they may apply for immigrant visas at a US consulate in the country of their nationality or most recent overseas residence.86
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.87 The LCA requires the employer to attest that:
- the non-immigrant will be paid the required wage;
- the employment of the non-immigrant will not adversely affect the working conditions of workers similarly employed in the area of intended employment;
- as of the date of filing the LCA, there is no strike or lockout involving the position; and
- 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.88 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.89 Wage violations may be subject to fines or disbarment from the H-1B (or E-3) programmes, or both of these sanctions.90
Labour certification for permanent residents
A labour market test is generally required to sponsor foreign workers in the EB-2 and EB-3 categories.91 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.92 Under the PERM regulations, the employer must conduct specified recruitment activities for 60 days.93 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.94
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 numbers95 and be eligible for future social security payments.96 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.97
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.98
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.99
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:100
- investment of at least US$1 million in a ‘new commercial enterprise’ (or US$500,000 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 average);
- creation of full-time employment for at least 10 new workers who must be direct employees of the commercial enterprise; and
- 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:101
- investment by the foreign national of US$500,000; and
- 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.102 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 was met for the first time in fiscal year 2015.103
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.104 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.105 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:
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.106 The criteria are comparable to those of the O-1 non-immigrant visa,107 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).108 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.109 Exceptional ability is a degree of expertise that is significantly above that ordinarily encountered in the sciences, arts or business.110
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.111
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
Throughout 2017, President Trump’s tweets and speeches on the travel bans, DACA or the border wall with Mexico often dominated the news cycle. However, his administration’s behind-the-scene actions and policy memos have had a greater impact on employers and the employees they wish to sponsor for work visas or green cards. Trump has been able to achieve many of his goals of restricting legal immigration without the need for congressional action or judicial decisions. In the year ahead, employers will need to strategise and prepare for continued scrutiny of work visa petitions and green card applications, RFEs and denials, and increased worksite inspections.
1 Stephen J O Maltby and Ellen L Poreda are partners 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, 2016 Yearbook of Immigration Statistics (2015), Table 1: www.dhs.gov/immigration-statistics/yearbook/2016/table1.
8 Id., Table 25: www.dhs.gov/immigration-statistics/yearbook/2016/table25.
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:
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:
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).
30 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).
31 United States–Australia Free Trade Agreement Implementation Act, Pub. L. No. 108–286, 118 Stat. 919 (2004).
32 INA, Section 214(e)(16).
35 http://www.aila.org/infonet/talking-to-clients-current-state-h-1b-adjudication?utm_source=aila.org&utm_medium=InfoNet%20Search; https://www.reuters.com/article/us-usa-immigration-employment-insight/trump-Administration-red-tape-tangles-up-visas-for-skilled-foreigners-data-shows-idUSKCN1BV0G8.
42 INA, Section 214(n).
45 Practice Alert: USCIS Is Denying Pending Forms I-131 for Abandonment Due to International Travel, AILA Doc. No. 17081867.
48 SCOTUS Order 583 U.S., 4 December 2017.
55 Regents of the University of California, et al. v. Dep’t of Homeland Security, et al., No. 3:17-cv-05211.
64 INA Sec. 203. [8 U.S.C. 1153].
68 https://www.uscis.gov/aboutus. The former mission statement stated: ‘USCIS secures America’s promise as a nation of immigrants by providing accurate and useful information to our customers, granting immigration and citizenship benefits, promoting an awareness and understanding of citizenship, and ensuring the integrity of our immigration system.’ The USCIS director who announced the new mission statement is the son and son-in-law of immigrants, as he noted in his confirmation proceeding testimony.https://www.judiciary.senate.gov/imo/media/doc/05-24-17%20Cissna%20Testimony.pdf.
69 INA, Section 214(c)(1).
70 INA, Section 212(a)(7)(B).
71 INA, Sections 101(a)(15)(H), 214(i)(1).
72 Save Jobs USA v. Dep’t of Homeland Security, No. 15-cv-615 (D.D.C. 2018).
74 INA, Section 101(a)(15)(O); 8 CFR, Section 214.2(o)(1)(i).
75 8 CFR, Section 214.2(o)(3)(iii).
76 INA, Section 101 (a)(15)(L); 8 CFR, Section 214.2(l)(1)(i).
77 INA, Section 214(c)(2)(E).
78 8 CFR, Section 214.2(l)(12).
79 8 CFR, Section 214.2(l)(15)(ii).
80 INA, Section 214(c)(2)(A); 8 CFR, Section 214.2(l)(4)(i).
81 INA, Section 204(a).
82 INA, Section 203(b); 8 CFR, Section 204.5.
83 INA, Section 201(d).
84 INA, Section 203(b), (e); see US Department of State, Visa Bulletin (April 2011), www.travel.state.gov/visa/bulletin/bulletin_5368.html.
85 INA, Section 245.
86 22 CFR, Section 42.61(a).
87 INA, Section 212(n)(1); INA, Section 212(t)(1); 20 CFR, Section 655.730(d).
88 INA, Section 212(n)(1)(A), (t)(1)(A).
89 20 CFR, Section 655.760.
90 INA, Section 212(n)(2)(C),(t)(3)(C).
91 INA, Section 212(a)(5)(A).
92 20 CFR, Section 656.10.
93 20 CFR, Section 656.17(e).
94 INA, Section 212(a)(9)(B)(i).
95 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.
96 Social Security Protection Act, Pub. L. No. 108-203, 118 Stat. 493 (2004).
97 8 CFR, Sections 655.731, 665.710.
98 INA, Section 214(c)(5).
99 INA, Section 316.
100 INA, Section 203(b)(5).
101 8 CFR, Section 204.6(m).
104 8 CFR, Section 204.6(l).
105 8 CFR, Section 216.6.
106 INA, Section 203(b)(1).
107 INA, Section 101(a)(15)(o).
108 INA, Section 203(b)(2)(A) and (B).
109 8 CFR, Section 204.5(k)4)(ii).
110 8 CFR, Section 204.5(k)(2).
111 8 CFR, Section 204.5(k)(3); Matter of New York State Dep’t of Transp., 22 I&N December 215 (Comm’r 1998).