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

  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 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
  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 forth 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 NAFTA remains in effect until the US Congress votes on an implementing bill. 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.31

Singapore and Chile free trade agreement H-1B1

In 2004, the United States enacted free trade implementation acts relating to Singapore and Chile.32 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.33 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.34

III THE YEAR IN REVIEW

i Overhaul of H-1B cap lottery selection process

On 31 January 2019, the DHS published a final rule amending regulations governing the H-1B cap selection process. Some changes took effect for H-1B cap petitions filed in fiscal year 2020, while other changes will be implemented for cap petitions filed in fiscal year 2021.35

Reversal of H-1B cap lottery

For the first time this year, USCIS reversed the order of the H-1B cap lottery. Currently, there are two H-1B cap lotteries: the regular H-1B cap lottery and the H-1B cap lottery for US advanced-degree holders, for which an additional 20,000 visas are available. Historically, USCIS has held the advanced degree lottery first and petitions not selected were added to the regular lottery. The new rule reversed the lotteries. USCIS conducted the regular lottery first, and upon completion, USCIS conducted the advanced degree cap lottery for beneficiaries holding advanced degrees from US universities. USCIS predicts that this change will result in 16 per cent more advanced-degree holders being selected in the H-1B regular lottery.36

Implementation of H-1B cap electronic registration requirement postponed

The final rule will also introduce an electronic registration requirement for petitioners seeking to file H-1B cap-subject petitions; however, this registration requirement was suspended for the fiscal year 2020 H-1B cap season. USCIS expects to implement this registration requirement for future cap seasons, once user testing has been completed and it is ensured that the system and process are fully functional.37

ii Increase in requests for evidence and denials from USCIS

The rollout of the Buy American, Hire American (BAHA) Executive Order and related policy memos issued by USCIS brought about a significant influx of requests for evidence (RFEs), denials and civil lawsuits on business immigration cases across the board in 2018. Among the visa categories most scrutinised by USCIS were the H-1B and L-1 work visas. In 2018, the National Foundation for American Policy reported that in the fourth quarter of fiscal year 2017, USCIS issued an RFE in nearly 70 per cent of the H-1B petitions filed with the agency.38 Fourth quarter RFE's nearly equalled the number issued in the first three quarters combined.39 L-1A and L-1B denials increased by 67 per cent and 32 per cent respectively between the first and fourth quarters of fiscal year 2017.40 While the 2018 statistics for RFE and denial rates have not yet been released, the NAFP report confirms that high rates of RFE's and denials continue to rise.41

iii H-4 employment authorisation documents likely ended in 2019

Work permits allowing certain spouses of H-1B visa holders may finally come to an end in 2019. Under current rules, the H-4 EAD programme allows for some H-4 dependent spouses to apply for an employment authorisation document (EAD) card allowing them to work in the United States if their spouse holds an H-1B work visa and has an approved I-140 immigrant visa petition.42 The case Save Jobs USA v. US Department of Homeland Security has sought to overturn this programme, but has been held in abeyance since the DHS announced its proposal to rescind the programme.43 On 17 December 2018, the court removed the case from abeyance requiring DHS to file a legal brief by 18 March 2019.44 This court deadline recently prompted DHS to issue a proposed regulation rescinding the programme to avoid defending it in court.45 The proposed regulation was sent to the White House Office of Management and Budget for review on 20 February 2019.46

iv Surge in ICE worksite enforcement investigations

Criminal investigations, business audits and arrests by US Immigration and Customs Enforcement (ICE) surged in 2018, following a commitment made by the agency in late 2017 to boost its worksite enforcement efforts across the country.47 Worksite investigations, I-9 audits, and criminal and administrative worksite-related arrests surged by 300 to 750 per cent over the previous year.48 According to Derek N Benner, executive associate director of Homeland Security Investigations, the agency is currently increasing its investigation efforts in order to create a culture of compliance among employers.49

v Retrogression of the EB-1 category

For the first time in recent years, the employment-based first preference (EB-1) category encountered prolonged retrogression for all countries causing filing delays in green card applications for multinational executives and managers, individuals of extraordinary ability, and outstanding researchers.50 Historically, the EB-1 category has remained current for all countries, while visa retrogression has been severe for foreign nationals born in China and India, particularly in the employment-based second and third (EB-2 and EB-3) preference categories resulting in multi-year waits to file green card applications.51 Cut-off dates for the EB-1 category began in April 2018 and have continued well into 2019.52 In contrast, the typically backlogged EB-2 and EB-3 categories have remained current in recent months for all countries except oversubscribed countries, including India and China.53 This unprecedented shift in visa backlogs has seen entry-level workers being issued green cards before Nobel Prize-winning scientists. Higher than usual demand for immigrant visas in typically undersubscribed employment-based categories appears to have triggered this alarming shift.54

vi Restrictive USCIS Policy Memoranda

Unlawful presence memo for F-1, J-1 and M-1 visa holders

On 10 May 2018, USCIS issued a policy memorandum changing the way the agency calculates unlawful presence for those who were in student (F non-immigrant), exchange visitor (J non-immigrant), or vocational student (M non-immigrant) status.55 After receiving feedback during a 30-day public comment period ending on 11 June 2018, USCIS published a final revised policy memorandum, which took effect on 9 August 2018.56 The new policy memorandum, which supersedes prior 2009 guidance, states that F, J and M non-immigrants can accrue unlawful presence, without a formal finding by USCIS or immigration judge, the day they undertake an unlawful activity, such as working without authorisation, no longer pursuing a course of study or failure to maintain status.57 A group of students and universities have sued the agency seeking to vacate this new policy;58 however, the new revised final memorandum remains in full effect until the court issues a final decision.

Notice to Appear policy memorandum

On 1 October 2018, USCIS implemented its 28 June 2018 policy memorandum, Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens (NTA Policy Memo).59 USCIS plans to implement the NTA Policy Memo on an incremental basis.60 Pursuant to the policy, USCIS may issue an NTA to a foreign national whose Form I-485, Application to Register Permanent Residence or Adjust Status, or Form I-539, Application to Extend/Change Nonimmigrant Status, is denied, where the foreign national applicant does not have valid underlying immigration status.61 The policy will apply to I-485 and I-539 applications filed prior to the 1 October 2018 implementation date, as well as applications filed on or after that date.62 By way of background, an NTA is a charging document issued to a foreign national that initiates removal proceedings, requiring the individual to appear before an immigration judge to determine whether he or she should be removed from the United States.63 USCIS stated that, at this time, it will not apply the NTA Policy Memo to employment-based petitions (e.g., Form I-129, Petition for Nonimmigrant Worker) and humanitarian applications, but it is expected to do so at a future date.64 USCIS did not provide a timeline for expanding the policy to other petitions and applications.65

Memorandum on USCIS adjudicators' broader discretion to deny cases

On 13 July 2018, USCIS issued the Policy Memorandum granting USCIS adjudicators the authority to deny a petition, request or application without first issuing an RFE or notice of intent to deny (NOID) if sufficient initial evidence is not submitted at the time of filing.66 The new policy raises significant concerns of cases being denied in error without giving opportunities to applicants to rectify the deficiency through the RFE or NOID response process. The new policy applies to all applications filed after 11 September 2018.67

vii Suspension and partial reinstatement of premium processing for H-1B petitions

In its efforts to reduce overall H-1B processing times, USCIS expanded and extended the suspension of the premium processing service for most H-1B petitions filed in 2018. On 11 September 2018, USCIS extended the suspension of the premium processing service for all pending H-1B cap cases filed in fiscal year 2019 and expanded the suspension of the premium processing service to practically all H-1B petitions filed at the Vermont and California service centres, with the exception of certain cap-exempt filings.68 The first two months of 2019 saw a partial reinstatement of the premium processing service for H-1B petitions. On 28 January 2019, USCIS resumed the premium processing service for all fiscal year 2019 cap-subject H-1B petitions69 and on 19 February 2019, resumed the premium processing service for all H-1B petitions filed on or before 21 December 2018.70 At the time of writing, the premium processing service remained suspended for H-1B changes of employer, amendments, and non-cap subject changes of status filed on or after 22 December 2018.71 USCIS anticipates resuming premium processing for remaining categories of H-1B petitions as workloads permit.72

viii Supreme Court upholds president's 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.73 The decision lifts the temporary injunctions issued by the lower courts, and remands the cases for hearing on the merits subject to the Supreme Court's interpretation of the Constitution and immigration laws.74 Key elements of the majority's decision include the following:

  1. The president has lawfully exercised the broad discretion granted to him by Congress to suspend the entry of aliens to the United States for purposes of national security.75
  2. The court found the travel restrictions were justified by national security concerns; as such, the plaintiffs could not demonstrate a likelihood of success on the merits of their claim that the travel ban violates the Establishment Clause of the Constitution (which generally prohibits the government from discriminating on the grounds of religion).76

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.77 The petition is typically adjudicated within three to six months. After approval, the foreign worker must apply for a visa at a US consulate.78 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.79 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.iii, the Trump administration is studying this policy and is expected to roll back the privilege.80 As a result, over 200,000 H-4 spouses may lose their employment authorisation.81

O-1 visa

The O-1 visa is available to persons of extraordinary ability in the sciences, arts, education, business or athletics.82 To qualify, the foreign worker must demonstrate sustained national or international acclaim by satisfying a number of criteria listed in USCIS regulations.83

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.84 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.85

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.86 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.87

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).88

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.89 The petition classifies the employee within one of the following immigration preference categories:90

  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.91 Since demand often exceeds supply, especially in the EB-3 category, immigrant visas can be unavailable for several years.92

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 21.93 Alternatively, they may apply for immigrant visas at a US consulate in the country of their nationality or most recent overseas residence.94

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.95 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.96 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.97 Wage violations may be subject to fines or disbarment from the H-1B (or E-3) programmes, or both of these sanctions.98

Labour certification for permanent residents

A labour market test is generally required to sponsor foreign workers in the EB-2 and EB-3 categories.99 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.100 Under the PERM regulations, the employer must conduct specified recruitment activities for 60 days.101 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.102

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 numbers103 and be eligible for future social security payments.104 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.105

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.106

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.107

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:108

  1. 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);
  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:109

  1. investment by the foreign national of US$500,000; 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.110 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 2015.111

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.112 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.113 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.114 The criteria are comparable to those of the O-1 non-immigrant visa,115 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).116 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.117 Exceptional ability is a degree of expertise that is significantly above that ordinarily encountered in the sciences, arts or business.118

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.119

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

The most dramatic immigration developments that took place in 2018 were the implementation of the Trump administration's 'zero tolerance policy' resulting in the widespread separation of parents and children arriving together at the Mexico–United States border and a partial government shutdown used as a strategy for building a physical barrier to deter border crossings. However, the administration's actions behind the scenes, such as 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 towards legal avenues of immigration, which have the potential to negatively impact employers and the employees they wish to sponsor for work visas or green cards.

In the year ahead, the Trump administration will likely carry on with its restrictive policy changes, creating difficult challenges to our immigration system. US companies and their highly skilled foreign employees can anticipate continued attacks on the H-1B visa programme as USCIS continues to narrow the definition of a 'specialty occupation', resulting in higher than usual denial rates. In her testimony before the House Judiciary Committee, Homeland Security Secretary Kirstjen Nielsen made it clear that USCIS would keep viewing high-skilled foreign-born professionals more as threats to US workers than as assets to the US economy.120

Despite the ongoing threats to the H-1B programme, US employers have fought back by suing USCIS over its widespread policy shifts in its adjudication process.121 An increase in litigation over denials is likely to continue in 2019,122 especially if and when proposed regulations redefining what is considered a 'speciality occupation' is passed,123 along with the cancellation of work permits for spouses of H-1B visa holders.124


Footnotes

1Stephen J O Maltby and Ellen L Poreda are partners, and Michelle C Guardado is an associate at Gibney, Anthony & Flaherty LLP.

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

3INA, Section 203(b).

4INA, Sections 207 to 208.

5INA, Section 203(c).

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

7US Department of Homeland Security, Office of Immigration Statistics, '2017 Yearbook of Immigration Statistics' (2017), Table 1: www.dhs.gov/immigration-statistics/yearbook/2017.

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

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

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

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

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

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

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

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

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

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

19INA, Sections 221 to 222.

20INA, Section 103.

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

22INA Section 212(a)(1).

23For 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.

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

258 CFR, Section 214.2(e)(19).

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

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

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

298 CFR, Section 214.2(l)(17)(i).

32United 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).

33United States–Australia Free Trade Agreement Implementation Act, Pub. L. No. 108–286, 118 Stat. 919 (2004).

34INA, Section 214(e)(16).

37id.

39id.

40id.

41id.

428 CFR 214.2(h)(9)(iv).

43'IT Workers Renew Challenge to H-1B Spouse Work Rule' by Suzanne Monyak, Law360, 17 January 2019 https://www.law360.com/articles/1119519.

44'Court Grants Motion to Revise Briefing Schedule', AILA Doc. No. 15052675, 23 January 2019
https://www.aila.org/infonet/dist-ct-save-jobs-usa-v-dhs.

46id.

48id.

51id.

54Check-in with DOS's Charlie Oppenheim: 13 September 2018, AILA Doc. No. 14071499.

56id.

61id.

62id.

63INA 239(a)(1).

65id.

67id.

71id.

72id.

74id.

75id.

76id.

77INA, Section 214(c)(1).

78INA, Section 212(a)(7)(B).

79INA, Sections 101(a)(15)(H), 214(i)(1).

80Save Jobs USA v. Dep't of Homeland Security, No. 15-cv-615 (D.D.C. 2018).

82INA, Section 101(a)(15)(O); 8 CFR, Section 214.2(o)(1)(i).

838 CFR, Section 214.2(o)(3)(iii).

84INA, Section 101 (a)(15)(L); 8 CFR, Section 214.2(l)(1)(i).

85INA, Section 214(c)(2)(E).

868 CFR, Section 214.2(l)(12).

878 CFR, Section 214.2(l)(15)(ii).

88INA, Section 214(c)(2)(A); 8 CFR, Section 214.2(l)(4)(i).

89INA, Section 204(a).

90INA, Section 203(b); 8 CFR, Section 204.5.

91INA, Section 201(d).

92INA, Section 203(b), (e); see US Department of State, Visa Bulletin (April 2011), www.travel.state.gov/visa/bulletin/bulletin_5368.html.

93INA, Section 245.

9422 CFR, Section 42.61(a).

95INA, Section 212(n)(1); INA, Section 212(t)(1); 20 CFR, Section 655.730(d).

96INA, Section 212(n)(1)(A), (t)(1)(A).

9720 CFR, Section 655.760.

98INA, Section 212(n)(2)(C),(t)(3)(C).

99INA, Section 212(a)(5)(A).

10020 CFR, Section 656.10.

10120 CFR, Section 656.17(e).

102INA, Section 212(a)(9)(B)(i).

103See US Social Security Administration, Social Security Numbers for Noncitizens, SSA Publication No. 05–10096 (March 2018), www.ssa.gov/pubs/EN-05-10096.pdf.

104Social Security Protection Act, Pub. L. No. 108-203, 118 Stat. 493 (2004).

1058 CFR, Sections 655.731, 665.710.

106INA, Section 214(c)(5).

107INA, Section 316.

108INA, Section 203(b)(5).

1098 CFR, Section 204.6(m).

110www.uscis.gov (search 'Immigrant Investor Regional Centers').

1128 CFR, Section 204.6(l).

1138 CFR, Section 216.6.

114INA, Section 203(b)(1).

115INA, Section 101(a)(15)(o).

116INA, Section 203(b)(2)(A) and (B).

1178 CFR, Section 204.5(k)4)(ii).

1188 CFR, Section 204.5(k)(2).

1198 CFR, Section 204.5(k)(3); Matter of New York State Dep't of Transp., 22 I&N December 215 (Comm'r 1998).

122id.