July 19, 2024 - Weekly Immigration News Update

Dear Clients and Colleagues,

We hope this newsletter finds you well. In this edition, we bring you important updates on various immigration matters. Please take a moment to review the following key highlights:

USCIS Updates Public Information on the International Entrepreneur Rule

In January 2017, USCIS issued the International Entrepreneur Final Rule, enabling noncitizen entrepreneurs to obtain a period of authorized stay in the U.S. if they can demonstrate their business venture would provide significant public benefit. The Department of Homeland Security estimates that 2,940 entrepreneurs will be eligible annually.

Basics of the Program from USCIS

• Eligibility: Entrepreneurs living abroad or already in the U.S. can apply.
• Start-up Criteria: Businesses must have been formed in the U.S. within the past five years.
• Growth Potential: Entities must show potential for rapid growth and job creation, evidenced by at least $264,147 in qualified investments, $105,659 in government grants, or alternative evidence.
• Work Authorization: Entrepreneurs can work only for their start-up. Their spouses may apply for employment authorization, but children are not eligible.
• Parole Period: Initial parole is up to 2? years, with a possible extension to a maximum of 5 years based on further benchmarks in funding, job creation, or revenue.
• Entrepreneur Limit: Up to three entrepreneurs per start-up can receive parole.

Despite its promise, the program has seen limited uptake with only 94 applications since FY2021, reflecting uncertainty among potential applicants and adjudicators. USCIS has updated its webpage to streamline the application process, aiming to provide clarity and expedite new applications, particularly for entrepreneurs in AI and emerging technologies.

USCIS Issues Policy Guidance on Children's Acquisition of Citizenship

USCIS has updated its guidance on children's acquisition of citizenship, incorporating feedback from the public and the U.S. Supreme Court decision in Sessions v. Morales-Santana. Key updates include:

• Motion to Reopen: Applicants denied a Certificate of Citizenship can file a motion to reopen if eligible under new policies.
• Physical Presence: A U.S. citizen parent can meet physical presence requirements regardless of immigration status.
• Out of Wedlock Births: Clarifies physical presence requirements for parents of children born out of wedlock.
• Legal Parentage: Requires legal recognition of parentage at the child's birth.
• Under-18 Conditions: Conditions for citizenship must be met before the child turns 18, including on their 18th birthday.
• Evidence of Citizenship: Accepts valid U.S. passports or Consular Reports of Birth Abroad as evidence of citizenship.
• Nested Claims: Officers must determine the citizenship status of an applicant's parents or grandparents when unclear.
• Stepchildren: Stepchildren subjected to battery or extreme cruelty by a U.S. citizen stepparent need not maintain that relationship for naturalization applications.

These updates, effective immediately, apply to all pending or newly filed applications.

USCIS Issues Guidance on Noncompliance with EB-5 Regional Center Program

USCIS has updated its policy guidance for noncompliance with EB-5 Regional Centers, incorporating reforms from the EB-5 Reform and Integrity Act of 2022. The guidance addresses sanctions for noncompliant entities, explains what constitutes threats to national interest or fraud, and outlines protections for good-faith pre-RIA investors.

Updated Practice Alert on New 212(d)(3) Waiver Guidance

The Department of State has updated the Foreign Affairs Manual to provide consular officers with guidance on adjudicating 212(d)(3) waivers. The update follows President Biden's announcement easing the visa application process for U.S. college graduates. The new guidelines prioritize waivers for applicants with U.S. degrees or credentials seeking employment in related fields, emphasizing significant U.S. public interest.

NIW Under Biden's Initiative for STEM Applicants

Following President Biden's executive order to restore faith in the U.S. legal immigration system, USCIS has issued guidance favoring NIW applications for STEM professionals. Special consideration is given to those in critical and emerging technologies. However, the future of this policy remains uncertain, as it can be revoked by a new administration without congressional approval. Eligible individuals should act quickly to benefit from this policy.

To apply for a National Interest Waiver (NIW) under President Biden's initiative for STEM applicants, follow these steps:

1. Determine Eligibility
2. Gather Documentation
3. Prepare Form I-140
4. Prepare Form ETA-750B
5. Compile Supporting Documents...Read More

Traveling with H-1B Status: A Simple Guide

Traveling internationally with H-1B status can be tricky. Here's a straightforward checklist and some essential tips to help you prepare. Note that some airports, like Chicago, and pre-flight immigration stations, such as Abu Dhabi, can be particularly strict for H-1B holders, especially those working at client sites or for smaller companies.

H-1B Travel Document Checklist

• Valid I-797 Approval Notice: This shows your approved H-1B status.
• Supporting Documents: Include the forms and letters submitted with your H-1B application (like the I-129 form and Labor Condition Application). End client letter if you are placed at a third party client site.?
• Recent Paystubs: Bring paystubs from the last three months from your employer.?
• Form I-612 Waiver Approval: If you previously had a J-1/J-2 visa and needed a waiver to switch to H-1B, bring this approval notice.

Important Documents

• Passport: Your passport must be valid for at least six months beyond your planned re-entry date to the U.S. Check if your country has an agreement with the U.S. that extends passport validity automatically.
• Visa Stamp: Except for Canadians, everyone needs a valid H-1B visa stamp in their passport. You can only get or renew this stamp at a U.S. embassy or consulate outside the U.S. There's a limited pilot program for some visa renewals within the U.S., but details are still emerging.

I-94 Record

When you enter the U.S., you'll get an I-94 form that shows your allowed stay. Always check the departure date on your I-94 to ensure it matches your H-1B approval.

Traveling During H-1B Changes

• Pending Status Change: Avoid traveling abroad if you're changing to H-1B from another status (like F-1 or J-1). Traveling can mess up your application.
• Extension of H-1B: If you're extending your H-1B status, talk to your legal adviser before making travel plans. Traveling can affect your extension process.

Changing Employers

• New Job: If you're switching employers and traveling during this time, keep in mind:If you return before your current H-1B with the old employer expires and have a valid visa, you should be fine. However, the Start Date of your H-1B transfer does have serious implications.If you travel after the new H-1B is approved, carry the new approval notice. Your visa might still show your old employer's name, but present the new approval at the border.

Passport and I-94 Validity

• Passport Expiry: If your passport expires before your H-1B end date, your stay in the U.S. will be shortened to your passport's expiration date. You'll need to renew your passport and might have to travel outside the U.S. to extend your stay to match your H-1B approval.
• I-94 Validity:?Always check your I-94 validity to avoid losing your H-1B status and work authorization. Sometimes, officers may give a 10-day grace period at the end of your I-94 validity.

Airports and Pre-Flight Immigration

• Restrictive Locations: Be aware that certain airports and pre-flight immigration stations can be more restrictive for H-1B holders, particularly those working at client sites or for smaller companies. It's important to have all your documentation in order and be prepared for additional scrutiny at these locations.

For any travel-related questions or complications, always consult with your legal adviser to ensure smooth travels.

We hope you find this information valuable. If you have any questions or require legal assistance related to any of these updates, please don't hesitate to contact us. We are here to help.

Sincerely,

Keshab Raj Seadie, Esq.

Law Offices of Keshab Raj Seadie, P.C.

Disclaimer: This newsletter is intended for informational purposes only and does not constitute legal advice. Always consult an attorney for personalized advice.