On January 5, 2018, the U.S. Customs and Border Protection (CBP) announced two new traveler compliance initiatives, making it easier for Visa Waiver Program (VWP) travelers to check the status of their stay in the U.S. A new feature added to the I-94 website allows VWP travelers to check their admission date, inform them regarding how many days they have remaining in the U.S., and how many days they have remained beyond their expiration date. In addition, to prevent an overstay, the CBP now sends an email reminder 10 days prior to the expiration alerting the VWP traveler who remains in the U.S. that his I-94 will expire. These new features are available under the “View Compliance” tab on the I-94 website. Travelers should expect to receive email notifications from Staycompliancefirstname.lastname@example.org, and CBP warns that any email not originating from this address may be fraudulent or a phishing scam.
On January 16, 2018, the Board of Alien Labor Certification Appeals (BALCA) reversed a denial of an Employer’s labor certification. After filing an Application for Permanent Employment Certification (PERM Application) to sponsor a foreign national for permanent employment in the U.S. for the position of “Mathematics Teacher,” the Certifying Officer (CO) denied the PERM Application finding the word “interested” for three candidates on its recruitment results chart was a generalized statement that does not reveal the specific lawful job-related reason for rejection. It was uncontested that the Employer offered multiple positions for the job opportunity.
Under 20 C.F.R. 656.1(a)(1), the CO may only certify a PERM Application if at the time of the application, there are not sufficient U.S. workers who are able, willing, qualified and available. The employer must certify that the job has been and is clearly open to any U.S. worker and the U.S. applicants were rejected for lawful job-related reasons. Focusing in this case on whether the Employer provided lawful job-related reasons for rejection, BALCA cited cases where the employer made it clear from the outset that multiple positions were involved. In such cases, where qualified applicants were hired in addition to the foreign national, the Board ordered a grant of certification. It then cited to 20 C.F.R. 656.17(g)(1), establishing that an employer may hire U.S. workers and still have the need for foreign labor certification. Considering the Employer’s recruitment report, BALCA found the Employer did not reject the three applicants’, and even if these applicants were hired there would still be a need to hire more applicants. Thus, by denoting “interested,” the Employer did not violate the regulations.
On January 17, 2017, the Department of Homeland Security (DHS), under the Obama Administration, announced an International Entrepreneur Rule (IER) which would become effective on July 17, 2017. Subsequently, however, the Trump Administration delayed the implementation of the rule until March 14, 2018. After litigation over its implementation ensued, the U.S. District Court for the District of Columbia in National Venture Capital Association v. Duke vacated the DHS’ final rule to delay the effective date forcing the Trump Administration to implement the rule immediately. While the DHS is abiding by a Federal Court Order to implement the rule, it is simultaneously seeking rescission of IER. The DHS has stated that “… the rule is not the appropriate vehicle for attracting and retaining international entrepreneurs and does not adequately protect U.S. investors and U.S. workers.”
Currently in effect, IER permits foreign entrepreneurs to obtain parole status in the U.S. Under the IER, DHS may “use its parole authority to grant a period of authorized stay, on a case-by-case basis, to foreign entrepreneurs demonstrating their stay in the U.S. would provide a significant public benefit through their business venture and that they merit a favorable exercise of discretion.”
Entrepreneurs eligible under the rule and granted parole will be eligible to work only for their start-up business. The spouses and children of the foreign entrepreneur may also be eligible for parole. Spouses may apply for work authorization once present in the United States as parolees. However, dependent children are not eligible to work. IER parole may be granted for up to three entrepreneurs per start-up entity.
Entrepreneurs applying for parole under this rule must demonstrate that they:
A spouse or child of an entrepreneur applying for parole under this rule must demonstrate that he or she:
©2024 Masuda, Funai, Eifert & Mitchell, Ltd. All rights reserved. This publication should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended solely for informational purposes and you should not act or rely upon information contained herein without consulting a lawyer for advice. This publication may constitute Advertising Material.