Premium Processing Service Resumes for All Types of H-1B Petitions

Today USCIS announced that Premium Processing is resumed for all types of H-1B Petitions. Accordingly, Petitioner may now upgrade or file H-1B Transfers, Extensions, Amendments, or New Not Subject to CAP Petitions under Premium Processing. Upon receipt of the request for Premium Processing, USCIS guarantees a fifteen (15) calendar day processing time.[1] If USCIS is unable to meet this deadline, the Service Center will refund the fee upon adjudication of the petition and continue in Premium Processing. If you would like our assistance in upgrading an H-1B Petition to Premium Processing, please contact your Sr. Paralegal and Associate Attorney who will initiate the case.

[1] https://www.uscis.gov/news/news-releases/premium-processing-now-available-all-petitioners-seeking-h-1b-visas

President Trump Rescinds DACA Protection

By Paul Reifler Messenger, Esq.[1]

On September 5, 2017 Attorney General Jeff Sessions announced that the Deferred Action for Childhood Arrivals (DACA) Program would be repealed.[2]  DACA was a program announced on June 15, 2012 by President Barack Obama as a way to protect a narrow category of undocumented immigrants from the threat of removal.

DACA was available to people who entered the U.S. before their 16th Birthday, were present prior to June 2007 and were currently enrolled in school or serving in the U.S. military.  It also required applicants to not have committed a felony or serious misdemeanor.[3] President Obama began the program due to a significant amount of undocumented immigrants who were brought to the U.S. as children and have become productive members of their community.  DACA recipients were not in valid status through no fault of their own, due to decisions made on their behalf when they were minors.  President Obama instituted this rule using his power of Executive Action.  While many praised his effort, some believed this Executive Actions was an overreach of Executive Authority and impeded on Congress’ responsibility to pass immigration laws.

Approximately 800,000 people received DACA protection allowing recipients to join the work force.  Attorney General Sessions and the Trump Administration based their decision to repeal the DACA program on the grounds that President Obama lacked the authority to grant the protection in the first place.[4]  While there may be legitimate constitutional questions about President Obama’s authority as President and it’s limits, the Trump Administration has put a significant number of people in legal limbo.

President Trump has delayed the implementation of the repeal for six months to allow congress to pass a permanent solution. Ramineni Law Associates, LLC strongly condemns President Trump’s decision to use a large group of people to make a point.  DACA recipients are law abiding people and according to a recent figure 95% of the recipients are in the workplace.  Many economists have estimated that the economic loss of removing DACA recipients from the work place would be $215 Billion in lost economic output.  Further, the cost of deporting DACA recipients is estimated to be between $280 billion to $430 billion.[5]

By the very definition of DACA, the recipients of the program are people who did not choose to be undocumented and are living productive lives.  While it is vital to this country to enforce immigration laws, it cannot be ignored that there are people without valid status because of the actions of their parents. We urge congress to act on the recent proposal to pass DACA protections as law.[6]  It would go against established notions of fairness and justice to take away legal status to a large group of people after giving them protection against deportation.

Our office will be following developments on this issue and if you have any questions about the repeal of DACA, please contact our office at (617) 500-9981, or at Paul@Raminenilaw.com.

 

[1] Paul Reifler Messenger, Esq. is an Associate Attorney in the Non-Immigrant Visa Department at Ramineni Law Associates, LLC.  He can be reached at 617-500-9978 or at Paul@raminenilaw.com.  He has been with Ramineni Law Associates since November of 2016.  He is licensed to practice in Massachusetts and is a 2010 graduate of Hofstra University School of Law.

[2] https://www.uscis.gov/daca2017

[3] https://www.uscis.gov/archive/consideration-deferred-action-childhood-arrivals-daca#guidelines

[4] https://www.dhs.gov/news/2017/09/05/memorandum-rescission-daca

[5] https://www.cnbc.com/2017/09/05/daca-deportations-could-cost-us-economy-more-than-400-billion.html

[6][6] https://www.nytimes.com/2017/09/13/us/politics/trump-dinner-schumer-pelosi-daca-obamacare.html?mcubz=0

Porting a Beneficiary’s Priority Date Can Be a Document Intensive Procedure. Let RLA help you!

By Dayna Lally[i]

Ramineni Law Associates, LLC has received numerous requests from Petitioners seeking to port the priority date of earlier filed I-140 petitions. The priority date for employment-based immigration petitions is either:

  • The date the labor certification (“PERM”) is filed with DOL (for EB-2 and EB-3 petitions); or
  • The date the I-140 petition is filed with USCIS (for EB-1 petitions).

Retaining the priority date of an earlier filed I-140 petition is critical for EB preference immigrants who have long waiting periods.

USCIS provides the following tip for preparing a request to port an earlier priority date:

If the beneficiary may be entitled to an earlier priority date based on a previously approved Form I-140, please provide a statement about it. Include a copy of the approval notice (Form I-797) for the previous Form I-140.[ii]

The process seems simple, based on the above instructions. What the above instructions fail to indicate is that when requesting to port an earlier priority date, Petitioners must also demonstrate the ability to pay the beneficiary’s proffered wage from the priority date as well as the relevant offered wages to all other I-140 beneficiaries until each beneficiary obtains lawful permanent residence.

This is a document-intensive procedure which involves analyzing corporate tax returns, calculating net income and/or net current assets, comparing Form W-2 wages to proffered wages, and many other financial considerations.

USCIS further complicated the procedure to port earlier priority dates by issuing Requests for Evidence (“RFEs”) asking Petitioners to demonstrate the ability to pay the proffered wage to all Form I-140 and Form I-129 beneficiaries. We at RLA strongly believe that such requests are not in conformity with current regulations. An employer need not establish ability to pay nonimmigrant workers, however, not responding to concerns raised by USCIS in an RFE could ultimately result in a denial.

If you are interested in porting the priority date of a beneficiary’s previously approved I-140 petition, please contact our office at 617-600-7201 or dayna@raminenilaw.com.

[i] Dayna Lally, Esq. is an Associate Attorney in the I-140 Department at Ramineni Law Associates, LLC.  She can be reached at 617-600-7201 or dayna@raminenilaw.com.  Ms. Lally earned her J.D. from New England Law | Boston and is admitted to practice law in the Commonwealth of Massachusetts and the state of Michigan.

[ii] https://www.uscis.gov/forms/petition-filing-and-processing-procedures-form-i-140-immigrant-petition-alien-worker

Consular visa denial, what to do when your visa application is denied

By Srinivas Ramineni, Esq.[1]

 Most of us have come across, whether personally or through a friend, a situation where a visa application is denied by a Consular officer. Very little help is out there when a visa application is denied. So, let’s examine the procedure for applying for visas, visa denials and options available for applicants after visa denial.

Procedure for applying for a nonimmigrant visa at a U.S. Consulate: We will not delve in to requirements of each consulate here, but only discuss the process at a high level in the interests of keeping this article short.  Unless you are visa exempt, you must go through the consular review process. Generally, the process begins when an applicant completes from DS-160 and submits it with a request for an interview date. On the date of the interview, you will be first asked to have your fingers scanned.[2] Generally, you are required to apply for a visa at a Consulate that has jurisdiction over the place of your residence.[3] However, this does not limit a person from applying at any consulate as consulates cannot refuse applicants solely on the basis that applicant was an out-of-district applicant.[4][5] Consular officers are allowed to consider all available information to establish a reasonable belief to deny a visa. While Consular officers are required to act upon every visa application, there have been instances of delay where courts have gotten involved to speed up the process. Consular officer will have already have gathered information regarding your eligibility or may do so during the interview. Upon considering all evidence, if an Consular officer issues a visa, an electronic version is created for access by DHS officers at the port of entry and a machine-readable visa is issued to the applicant.

Visa denials: When a visa denied, Consular officers are required to provide to the applicant a timely written notice of the denial. The denial must state the basis for the denial and list all the specific provisions of the law.[6] Specifically, before denying a visa the Consular officer should (a) give the applicant an opportunity to be interviewed in person with every reasonable opportunity to establish eligibility to receive a visa (b) refer to the specific section of law under which visa is being refused and the underlying factual basis (unless facts are classified or secrets) and (c) explain the refusal in person.[7]  All visa refusals are reviewed by a consular supervisor on the same day or as soon as possible to ensure compliance with all applicable laws and procedures.[8]

Options available when a visa application is denied: First, Applicants are allowed a period of one year to submit additional evidence and seek reconsideration.[9] After such additional documents are presented to the Consular officer, they are allowed 120 days to review the additional information provided.[10] Second, while factual assertions of a consular officer are not subject to review, the applicant or the applicant’s counsel may seek an advisory opinion from Department of State on any legal issue.[11]Third, an Applicant may ask for judicial review. This option is available under limited circumstances. Even though Consular decisions are not reviewable by a Court there are several exceptions to this rule. As evident from above, seeking a reconsideration of a visa denial or challenging it in a court could be costly and laborious. Applicants and/or Employers can avoid the many pitfalls of immigration laws by retaining a knowledgeable counsel.

If you or your employee has received a visa denial, we can assist you in various ways, including, but, not limited to, challenging the denial in a Court. You may contact me or any one of our experienced team at (617) 830 4545 or ramineni@raminenilaw.com.

[1] About the Author: Srinivas Ramineni is the Founding and Managing Attorney of Ramineni Law Associates a Business Immigration Law Firm. His practice focuses on Employment Based Business Immigration Law.  Attorney Ramineni graduated from Suffolk University of Law School and is licensed as an attorney in the Commonwealth of Massachusetts. Attorney Ramineni would be happy to hear from you at (617) 830 4545 or ramineni@raminenilaw.com.

[2] There are exceptions, if you are diplomat, under the age of 14 or over the age 80 unless you are from Mexico or Yemen (all citizens of these two countries must submit fingerprints irrespective of their age), physically unable to go to the consulate on medical grounds or physically unable to have their fingerprints taken

[3]See 22 CFR §41.101

[4] See 9 FAMe 403.2-4(B(2)(a)-(b)

[5] NIV overstays must return to their country of nationality for visa stamping

[6] INA §212(b)

[7] See 78 No. 26 Interpreter Releases 1145-47

[8] 22 CFR §41.121(c)

[9] 22 CFR §41.81(e)

[10] 22 CFR §41.113(i)

[11] See 9 FAMe 103.4-2

Making Your Case with USCIS: Tips on Presenting Your Petition

By: Taimoor Choudhry, Esq.[1]

Under the Immigration and Nationality Act (INA), the Applicant or Petitioner, whichever is applicable, bears the evidentiary burden. This entails two things: (1) satisfying the burden of production, by putting forth documentary evidence in support of the petition and (2) meeting the standard of proof, convincing the fact finder that the evidence produced supports the matter being asserted to a certain degree. Under current immigration law, this standard is “preponderance of the evidence.” According to this standard:

If Petitioner submits relevant, probative, and credible evidence that leads the director to believe that the claim is “probably true” or more likely than not, the applicant or petitioner has satisfied the standard or proof.”[2]

In other words, the action sought should be granted if the probability of it occurring is more than 50 percent. Unfortunately, this standard is difficult to apply and generally should be administered by someone who has obtained a standard legal education or its equivalent in significant legal experience. In civil proceedings, it is generally a judge that administers this standard of proof to evidence produced. Under certain immigration proceedings—i.e., adjudication of an H-1B Petition—the standard is applied by officers who may or may not possess a standard legal education or extensive legal experience. Consequently, special thought should be placed on how a matter is presented in an immigration proceeding. Or it may be the case that an Applicant or a Petitioner may have met the burden of production, but, failed because it could not persuade an untrained set of eyes.

Therefore, significant time and effort must be placed on how an Applicant or Petitioner presents evidence to the USCIS. Inserting a footnote to explain Beneficiary’s living arrangement at an offsite work location or adding circumstantial evidence, i.e., prior purchase orders to bolster the long-term nature of a project, could mean the difference between an Approval and a Request for Evidence.[3] At Ramineni Law Associates, our experienced attorneys, and adequate resources permit us to focus on the minutest of details. Our quality is never comprised, as we strive to help applicants and petitioners meet their evidentiary standard and prove more likely than not the truth of the matter asserted. If you would like to receive a carefully tailored application/petition for a variety of different visa categories, please contact our office for a consultation. Our talented and diverse set of attorneys can carefully craft an application/petition whether it is for a simple or the most complex of cases. We can be reached at (617) 500-9981, or Taimoor@raminenilaw.com.

 

[1]Taimoor J. Choudhry, Esq. is an Associate Attorney in the Non-Immigrant Visa Department at Ramineni Law Associates, LLC.  He has been with Ramineni Law Associates, LLC since July of 2016. He graduated from Penn State Law and is licensed to practice in the State of New York and Massachusetts. He can be reached at Taimoor@raminenilaw.com or (617) 300-8134

[2]See Memorandum to Regional Directors, William R. Yates, Assoc. Director of Field Operations, HQ 70/33.1 (Jan. 11, 2006) at 2.

[3] “Request for Evidence is  made when an application/petition is lacking required documentation/evidence (initial evidence) or the officer needs more documentation/evidence (additional evidence) to determine an applicant’s eligibility for the benefit sought.” See https://egov.uscis.gov/cris/Dashboard/CaseStatus/BucketDescriptions.do

Requests for Evidence – The H-1B Specialty Occupation Requirement

By Daniel Carpenter, Esq.[1]

The Buy American, Hire American Executive Order, issued by the Trump administration to, “promote economic growth, create good jobs at decent wages…create higher wages and employment rates for workers in the United States…”[2] has brought with it a shift in adjudicatory scrutiny of H-1B and similar non-immigrant petitions. This increased scrutiny has carried with it a heightened level of complexity in Requests for Evidence (“RFE”) issued by the United States Citizenship and Immigration Service (“USCIS”).

Our team of attorneys have seen an increase in RFEs questioning whether an H-1B position, that an employer is hiring the foreign national for, actually qualifies as a “specialty occupation.” Among other requirements, which are not explored in the context of this article, one requirement for an employer who wishes to hire a foreign national under the H-1B visa program is, the petitioning employer must show that the position qualifies as a specialty occupation. Regulations define a specialty occupation as,

…theoretical and practical application of a body of highly specialized knowledge and attainment of a baccalaureate or higher degree or its equivalent as a minimum requirement for entry into the occupation in the United States, and who is qualified to perform services in the specialty occupation because he or she has attained a baccalaureate or higher degree or its equivalent in the specialty occupation.[3]

The petitioning employer must be able to prove to USCIS, by a preponderance of the evidence[4], that;

  1. The position they intend to hire the beneficiary of an H-1B petition for requires at a minimum a bachelor’s degree, or equivalent;
  2. It is common in the industry for that particular type of position to require a bachelor’s degree; and
  3. The job duties to be performed are so specialized and complex that the knowledge gained through obtaining a bachelor degree or higher prepares the beneficiary to perform those specialized skills.[5]

For example, if a petitioning company is attempting to hire a computer systems analyst to work at an end-client location under the H-1B program, the company must be able to prove to USCIS that the job duties that the employee will be performing for the end-client are specialized and complex for that specific position. The job duties must not be broad or generic duties performed by computer systems analysts. In addition, the company must be able to show that they have a practice of hiring computer systems analysts only with a bachelor’s degree or higher and that it is common for most computer systems analysts to have at a minimum a bachelor’s degree.

When responding to these complex RFEs our team of attorneys at Ramineni Law Associates work closely with petitioning employers to craft a response to attempt to overcome the burden of an RFE and produce a positive outcome. Our team provides comprehensive responses to specialty occupation issues raised by USCIS and creates specialized arguments to establish that the position that an H-1B employer is hiring for is in fact a specialty occupation position as defined by current regulations.

When creating a response to an RFE, it is important that the documentation that will be submitted along with an RFE response is provided to our office as soon as possible upon receipt of an RFE. This will allow our attorneys suitable time to review the documentation and provide a thorough response to questions raised by USCIS in a RFE such as specialty occupation issues among other issues. If you, or your employer, have been issued a RFE of would like a consultation regarding an RFE, please contact our team of Attorneys at (617) 500-9981 or daniel@raminenilaw.com.

 

[1] Daniel Carpenter, Esq. is an Associate Attorney of the greater Boston law firm of Ramineni Law Associates. He assists employers, nonimmigrants, and their dependents, with business immigration and related matters. He can be reached at daniel@raminenilaw.com or (617) 500-9981. He has been with Ramineni Law Associates, LLC since 2016. He is licensed to practice in the State of Massachusetts, and a 2016 graduate of Suffolk University Law School.

[2] Exec. Order No. 13788, 82 Fed. Reg. 18,837(Apr. 18, 2017) available at https://www.federalregister.gov/documents/2017/04/21/2017-08311/buy-american-and-hire-american.

[3] 8 CFR 214.2(h)(4)(i)(A)(1).

[4] See U.S. v. Cardoso-Fonseca, 480 U.S. 421 (1987) (defining “more likely than not” as a greater than 50 percent probability of something occurring).

[5] 8 CFR 214.2(h)(4)(iii)(A).

CLIENT ALERT: USCIS Resumes Premium Processing for H-1B Quota Petitions Only

On September 18, 2017, USCIS announced it would resume premium processing for all petitions filed in the FY 2018 fiscal quota.  However, premium processing is still suspended for petitions not filed in the quota, including extensions, amendments, transfers, and new NOT subject to cap filings.  At this time only the below categories may be premium processed:

  • Conrad 30 Waiver program;
  • Interested government agency waivers;
  • Certain H-1B petitions, not subject to the CAP (i.e. Non-Profit or Higher Education Sector); and
  • Petitions filed in the FY 2018 fiscal quota (i.e. on April 1, 2017).

With regard to all other H-1B Petitions not covered by the above, USCIS stated the following:

USCIS plans to resume premium processing for all other remaining H‑1B petitions not subject to the FY 2018 cap, as agency workloads permit. However, remaining petitioners may submit a request to expedite their application if they meet the specific agency criteria. USCIS reviews all expedite requests on a case-by-case basis, and requests are granted at the discretion of the office leadership.[1]

Our office will continue to monitor premium processing services being resumed, and keep our clients updated.  If you wish to upgrade one, or multiple petitions filed in the CAP, we encourage you to contact your Case Manager, with a consolidated list of candidates for whom you wish to process in premium.  We look forward to assisting you through this process.

[1] See https://www.uscis.gov/news/news-releases/uscis-resumes-premium-processing-some-categories-applicants-seeking-h-1b-visas (last viewed September 19, 2017).

New Form I-9 Required, Beginning September 18, 2017

By: Crystal Conway[1]

 Beginning Monday, September 18, 2017, Employers are required to start using the new Form I-9, Employment Eligibility Verification, with edition date of 7/17/2017.

The below changes were made to Form I-9 and its instructions:

Changes to Form I-9 Instructions:

  • USCIS changed references to the Office of Special Counsel for Immigration-Related Unfair Employment Practices to its new name, Immigrant and Employee Rights Section; and
  • USCIS removed “the end of” from the phrase “the first day of employment.”

Changes to List of Acceptable Documents on Form I-9:

  • USCIS added the Consular Report of Birth Abroad (Form FS-240) to List C. Employers completing Form I-9 on a computer will be able to select Form FS-240 from the drop-down menus available in List C of Sections 2 and 3. E-Verify users will also be able to select Form FS-240 when creating a case for an employee who has presented this document.
  • USCIS combined all the certifications of report of birth issued by the Department of State (Form FS-545, Form DS-1350, and Form FS-240) into selection C #2 in List C.
  • USCIS renumbered all List C documents except the Social Security card.[2]

Current employees are not required to complete the new Form I-9. The new Form I-9 is intended for new employees, reverification of employment authorization, and employees who were rehired after three (3) years from the date the original Form I-9 was executed.

It is important to note that Section 1 of Form I-9 must be completed by the employee. Employees must enter in “N/A” for all fields that are not applicable, and should refrain from using white-out to correct mistakes. Employers must retain executed copies of Form I-9 for three (3) years after the date of hire or one (1) year after the date the employment ended (whichever is later). Employers may be fined if Form I-9 is not properly completed and retained.

The updated Form I-9 and detailed instructions can be found at the following: https://www.uscis.gov/i-9. If you have any concerns about completing a Form I-9, or would like an audit of your current I-9 files, please contact our office at (617) 600-7195, or at Crystal@Raminenilaw.com.

 

[1] Ms. Crystal Conway is the Managing Paralegal of the I-140/AOS Department at Ramineni Law Associates, LLC. She has been with Ramineni Law Associates, LLC since September 2012. Please note that Ms. Conway is not a licensed attorney.

[2] AILA Doc. No. 17080131

CAP-GAP Extensions in F-1/OPT Status, and Project Termination, While H-1B CAP Petition Pending

Michelle Shepard, Esq. [1]

On March 3, 2017, USCIS announced they would suspend the H-1B premium processing service relied on heavily during each FY quota. This suspension raised many complications for I.T. Consulting companies and F-1 Students who rely on CAP-GAP.  USCIS has not set a date for a return of the service as it relates to CAP-Subject H-1B Petitions.

Cap-Gap Extensions:

The regulations provide that:

            Where the F-1 timely files a C/S to H-1B and the H-1B cap has been reached, F-1 status and employment authorization (if in OPT) is automatically extended until Sept. 30th of the following fiscal year, thus eliminating the “gap” between the time the F-1 would have expired and the Oct. 1 H-1B start date. 8 C.F.R. 214.2(f)(5)(vi)(A).

Importantly, from a procedural standpoint, in general the student must contact their DSO, present a copy of their H-1B receipt notice, and will be issued a CAP-GAP I-20 showing an extension of their status.  Failure to obtain this extended I-20 may result in a status violation, despite “automatic extension.” Id.  A number of instances can arise complicating CAP-GAP extensions, such as denial, or failure to have an approved petition by Sept. 30th.

USCIS denies, revokes, or rejects the petition on or before Sept. 30th:  The F-1 student will have the standard sixty-day (60) grace period to depart the U.S. If a petition was denied for fraud or misrepresentation, the student must depart immediately and will not be afforded a grace period.

Petition remains pending on Sept. 30th:  The suspension of premium processing in March 2017 will likely lead to thousands of petitions without a decision on Sept. 30th. In general, if the H-1B petition is not approved by October 1st, F-1/OPT extension will be extended, but will not include work authorization.  Accordingly, a student may remain in the U.S. and await adjudication, but will have no authorization to work. This is likely to be the scenario for many F-1 students on Sept. 30th who have a pending, but unapproved H-1B petitions by Oct. 1.  If this is the case, the student should immediately contact their DSO.

Project Changes While CAP H-1B Pending:

Given the fast paced nature of the I.T. industry and each individual project, often times a project may end before adjudication of the RFE. This more often than not leads to a denial in the H-1B CAP petition.  However, success is highly dependent on a number of factors including the new location of the project, job responsibilities, etc.

If you, or your employer, have been issued a RFE or would like a consultation regarding status during the pending CAP petition, please contact our office at: MShepard@RamineniLaw.com, or (617) 500-9981.

[1] Michelle Shepard, Esq. is the Non-immigrant Visa Department Managing Attorney at Ramineni Law Associates, LLC.  She can be reached at (617) 500-9983 or mshepard@raminenilaw.com.   She has been with Ramineni Law Associates, LLC since 2010, and Managing the NIV Dept. since the Fall of 2012. She is a licensed to practice in the State of Massachusetts, and a 2012 graduate of New England Law | Boston.

USCIS DELAYS IMPLEMENTATION OF THE INTERNATIONAL ENTREPRENEUR RULE

By Paul Reifler Messenger, Esq.[1]

On July 11, 2017, the Department of Homeland Security (DHS) announced that it was delaying the effective date of the International Entrepreneur Rule (IER) from July 17, 2017 until March 14, 2018.  DHS has increased the period in which stakeholders could comment on the rule after the final rule was published on January 17, 2017.  The IER was conceived as a status in which an Entrepreneur who has invested at least $250,000 in a U.S. Business would be admitted as a parolee to grow the business.  The criteria are as follows:

  • The applicant possesses a substantial ownership interest in a start-up entity created within the past five years in the United States that has substantial potential for rapid growth and job creation;
  • The applicant has a central and active role in the start-up entity such that the applicant is well-positioned to substantially assist with the growth and success of the business;
  • The applicant can prove that his or her stay will provide a significant public benefit to the United States based on the applicant’s role as an entrepreneur of the start-up entity by:
  • Showing that the start-up entity has received a significant investment of capital from certain qualified U.S. investors with established records of successful investments;
  • Showing that the start-up entity has received significant awards or grants for economic development, research and development, or job creation (or other types of grants or awards typically given to start-up entities) from federal, state or local government entities that regularly provide such awards or grants to start-up entities; or
  • Showing that they partially meet either or both of the previous two requirements and providing additional reliable and compelling evidence of the start-up entity’s substantial potential for rapid growth and job creation. [2]

The IER could have been a valuable opportunity for International Entrepreneurs who had no other opportunity to work in the U.S. to grow their investment.  For example, Indian nationals cannot apply for an E-2 visa, and the IER could have been used by Indian Nationals to grow U.S. businesses that would in turn create jobs.

DHS has asserted that they are delaying implementation of the rule so that it can be considered in light of President Trump’s Executive Order 13767.  Not only is this a setback to potential growth in the U.S. economy, but the delay also violates the Administrative Procedure Act (APA).  The APA requires that delaying a rule to take effect only occur if it is “impracticable, unnecessary, or contrary to the Public Interest.”[3]  DHS has asserted that the IER is contrary to the Public Interest because DHS would incur expenditures that would not be recouped from filing fees and that implementation of the rule would confuse the public and waste the resources of multiple stakeholders.[4]  These reasons seem illogical as stakeholders have had 180 days since the final rule was published on January 17, 2017.  In their own announcement of the rule, USCIS estimated that 2,940 entrepreneurs would be eligible annually for this status.  It is confusing to understand why DHS now wants to preclude those investors from assisting to grow the U.S. economy.  As of now, DHS still plans to move forward with the IER, and we will continue to monitor events and provide updates on any changes.  If you have any questions about how the IER works and if you believe you are eligible once implemented, please contact our office at (617) 500-9981, or at Paul@Raminenilaw.com.

 

[1] Paul Reifler Messenger, Esq. is an Associate Attorney in the Non-Immigrant Visa Department at Ramineni Law Associates, LLC.  He can be reached at 617-500-9978 or at Paul@raminenilaw.com.  He has been with Ramineni Law Associates since November of 2016.  He is licensed to practice in Massachusetts and is a 2010 graduate of Hofstra University School of Law.

[2] 82 Fed. Reg. at 31887.

[3] 7 USC §553(b)(B).

[4] 82 Fed. Reg. at 31888.