News & Resources
Archive by Year: 2017
USCIS has published a policy memorandum regarding the adjudication of TN petitions filed under the economist category. As the policy memo notes:
One of the professions listed is “Economist” and it requires a baccalaureate or licenciatura degree. See 8 CFR 214.6(c). However, NAFTA does not include an in-depth description of an economist. The lack of a description has raised questions and led to inconsistent adjudications about whether certain types of analysts, and persons engaged in other occupations, such as financial analysts, market research analysts and marketing specialists qualify under the economist profession.
The policy memorandum seeks to limit the application of the Economist category to positions typically classified under the Occupational Outlook Handbook and SOC code classifications as financial analysts and market research analysts. By excluding these positions, USCIS is also seeking to limit the scope of the Economist category to the definitions available in the Occupational Outlook Handbook for economists.
Economists generally specialize in either microeconomics (analyzing the behavior of individuals and firms with the aim of understanding the relationships between supply and demand) or macroeconomics (analyzing aggregated indicators to determine how different sectors of the economy relate to each other). In addition to these two broad focus areas, economists may apply economic analysis to issues in a variety of fields, such as labor, international trade, development, econometrics, education, health, and industrial organization, among other fields. Further, the Department of Labor’s Standard Occupational Classification (SOC) system defines economists as conducting research, preparing reports, or formulating plans to address economic problems related to the production and distribution of goods and services or monetary and fiscal policy. Economists may collect and process economic and statistical data using sampling techniques and econometric methods.
Notably, the Economist category is the only occupation listed in NAFTA that has a financial element outside of the Accountant category. This policy will inevitably hurt the ability of financial services firms to hire TN employees. The memorandum is a further reflection of the USCIS's consistent push to limit the use and applicability of existing visa categories.
This memorandum only applies to USCIS and is not binding on TN adjudications for Canadians conducted by CBP and for Mexicans conducted at Department of State consulates. However, these other agencies will inevitably be aware of the memorandum and may find its argument persuasive in adjudicating Economist categorized petitions.
In recent years, there has been an increased focus on I-9 compliance as many high-profile corporations have been fined for I-9 violations. While properly completing the I-9 is key in terms of avoiding liability in the event of a government audit, employers may also open themselves to liability if the documents required to complete the I-9s are not properly collected. It is key for employers to allow employees to decide which documents they will present for I-9 purposes and for employers to treat all new hires consistently in I-9 completion and document collection. Employers should not request specific documents from non-citizens and subsequently allow U.S. citizens to choose which documents they present. Requesting excessive documents can lead to claims of document abuse being brought by employees against the company. A finding that a company has engaged in these practices can lead to fines similar to those issued for improper completion of the form itself. The document abuse provision requires all employers to treat workers in the same manner during the I-9 verification process regardless of their citizenship status or national origin.
Below are some best practices for HRs and companies to ensure that I-9s are administered in a uniform manner to all employees:
- Create a uniform policy for I-9 completion which applies across the board to all new hires.
- Present the list of acceptable documents to the new hire and advise that they are free to choose any documents on the list to present. For a link to the complete form I-9 along with the list of acceptable documents, please visit: https://www.uscis.gov/i-9 .
- If a new hire provides documents which cannot be found on the list of acceptable documents, re-direct them to the list of acceptable documents and advise that the document(s) which are presented must be found on the list. Under no circumstances should a company tell the new hire which documents they should provide as that choice is strictly the employee’s.
Uniform application of these procedures will limit an employer’s exposure to potential claims of document abuse while allowing the employee to choose the documents which they would like to present.
As, always, if you are in doubt regarding a document or establishing proper I-9 procedure, please reach out to your designated Meltzer Hellrung Attorney.
Travel Ban 3.0 Update
On December 4, 2017 the U.S. Supreme Court issued two orders staying preliminary injunctions issued against President Trump’s September 24, 2017 Presidential Proclamation. The stay of these injunctions allows the Trump administration to proceed with implementing their most recent travel ban order. The following eight countries are immediately subject to travel restrictions: Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen. Nationals of Iraq are also subject to additional screening but not explicitly suspended from entry into the U.S. The suspension of entry does not apply to the following nationals from the above-named countries:
- Lawful Permanent Residents (aka green card holders) of the United States from the designated countries
- Foreign nationals who are currently admitted into the United States
- Foreign nationals with advance parole
- Dual nationals of a designated country traveling on the passport of the non-designated country
- Foreign nationals on diplomatic visas
- Foreign nationals who have been granted asylum and refugees who have already been admitted into the U.S.
Previously issued visas will not be revoked; however, new visas for nationals of Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen will not be issued in immigrant and certain nonimmigrant categories. Countries can be removed from this list once the Secretary of Homeland Security is satisfied after consulting with the Secretary of State and the Attorney General that the information necessary from the country to ensure the proper vetting of its nationals is made available.
We advise against international travel for nationals of the eight countries listed above who currently have nonimmigrant visas unless they also possess an advance parole document and use this document to re-enter the U.S. Individuals from Iraq on nonimmigrant visas are able to travel internationally but should be prepared for additional screening when seeking admission into the U.S.
For additional information on this topic, please refer to the following link from the department of homeland security: https://www.dhs.gov/news/2017/09/24/fact-sheet-president-s-proclamation-enhancing-vetting-capabilities-and-processes
As always, if you or your employees have any questions about travelling during the holidays or at other times during the year, reach out to your designated Meltzer Hellrung attorney.
On December 1st a Federal District Court made the Entrepreneur Immigration Rule effective immediately. We are proud to represent Occasion, one of the plaintiffs who successfully challenged the government’s delay of the implementation of the rule. The Federal Court found that the delay of the implementation of the rule violated the Administrative Procedure Act. We are excited to help Occasion file one of the first petitions for parole for a founder.
The Department of Homeland Security will grant parole and work authorization to entrepreneurs for up to 30 months. Entrepreneurs will be able to apply for an extension for an additional 30 months.
A summary of the qualifications for an initial application is below:
New Company: The company must have been formed within 5 years of the date of filing the parole application.
Applicant is an Entrepreneur: The applicant must own at least 10% of the company and have “an active and central role in the operations and future growth of the entity, such that the alien is well-positioned, due to his or her knowledge, skills, or experience, to substantially assist the entity with the growth and success of its business.”
Significant US Capital Investment or Government Funding: The government lists three scenarios in which a company may qualify:
- The company has received investment capital from US investors with established records of successful investments totaling $250,000 or more. These investments must come from investors such as venture capital firms, angel investors, or start-up accelerators. These investment numbers will be re-calibrated every three years.
- The company has received Federal, State or local government grants or awards totaling $100,000 or more.
- Alternative: Provide “additional reliable and compelling evidence” of the company’s “substantial potential for rapid growth and job creation.”
Additional criteria will apply to a renewal application as listed below:
Applicant is an Entrepreneur: The ownership percentage required is diluted to 5%.
Significant US Capital Investment or Government Funding: To file for renewal an applicant will have to demonstrate one or more of the following:
- At least $500,000 in additional qualifying funding since initial parole period was granted.
- Revenue generation of $500,000 per year or more with average annualized revenue growth of at least 20%.
- Substantial job growth, at least 5 full-time jobs (35 hours per week) have been created since the grant or parole.
- Alternative catch-all still available.