Immigration Update, the U.S. Elections, and Prospects for Reform in 2017 October 5, 2016
With You Today Michael F. Turansick Partner mturansick@fragomen.com Kevin C. Aiston Partner kaiston@fragomen.com FRAGOMEN, DEL REY, BERNSEN & LOEWY, LLP 333 West Wacker Drive, 15 th Floor Chicago, IL 60606 312-263-6101 2
Agenda The Problem for Business Immigration Temporary work visa and employment-based green card numerical limits insufficient to meet demand Total Processing Backlogs Huge and Growing Some Good News The Problem Solvers The Candidates Positions on Immigration Can Either Candidate Succeed? The Solution: Reform of Employment-Based Immigration System Recent history of reform attempts Current legislative proposals Developments related to travel into the U.S. New restrictions on use of VWP for travelers to countries of concern Global Entry expanded to German citizens generally Key Points in German Immigration and Contrasts with U.S. 3
The Problem for Business Immigration 4
H-1B Filing Trends No. of H-1B Filings Received in First Week of Filing Period 250,000 200,000 150,000 100,000 50,000 0 FY2009 FY2010 FY2011 FY2012 FY2013 FY2014 FY2015 FY2016 FY2017 No. of H-1B Filings Received in First Week of Filing Period No. of Months Until H-1B Cap Reached 12 9 6 3 0 FY2009 FY2010 FY2011 FY2012 FY2013 FY2014 FY2015 FY2016 FY2017 No. of Months Until H-1B Cap Reached 5
Backlog Due to U.S. Employment- Based Green Card Numerical Limits (as of October 2016) 12 10 9.75 11.6 8 Years 6 4 2 0 EB1 (All) 0 0 EB2 4.6 0.3 3.75 EB2 China EB2 India EB3 EB3 China 5.8 EB3 Phil. EB3 India Wait in years for cases being approved now 6
Not All the News is Bad: Executive Actions to Improve Business Immigration 7
Executive Action on Business / Employment-Based Immigration May 2016 Regulation Expanding STEM OPT Program Increased maximum OPT period from 29 months to 3 years Allows 3 or possibly even 4 bites at H-1B lottery apple Significant new compliance & enforcement provisions Detailed training plan, attestations of commensurate pay and no US worker displacement, possible govt. site visits Initiatives to Reduce Negative Impact of EB PR Backlogs Oct. 2015: Bifurcated Visa Bulletin introduced, to allow filing of adjustment earlier and maximize use of available numbers May 2015: H-4 EAD for spouses of FNs in green card process March 2016: Guidance on portability for adjustment applicants Proposed AC21 regulation (released Dec. 2015) Retain priority date after job change if prior employer withdraws petition Potential for EAD with approved non-current PR petition in limited circumstances, if compelling circumstances are shown 8
Executive Action for Entrepreneurs Proposed Regulation on Parole for Entrepreneurs (Aug. 2016) Up to 5-year stay for qualifying foreign inventors, researchers & entrepreneurs who create qualifying start-up FN must have at least 15% ownership & play active/central role Start-up must have received either: At least $345K from U.S. investors with established record of successful past investments, or At least $100K in grants/awards from federal/state/local govt. Initial approval for 2 years; need to meet specific metrics for additional investment, or increased job creation or revenue to obtain 3 year extension Need to qualify in an existing EB category to pursue green card Proposal to liberalize National Interest Waiver (NIW) standards For foreign investors, researchers, and start-up founders, to facilitate self-sponsored green card exempt from labor market test 9
The Problem Solvers 10
The U.S. Presidential Candidates 11
Clinton s Positions Promises to introduce CIR bill within first 100 days in office Focus is on pathway to citizenship for undocumented Largely silent on business immigration needs, but supported 2006 CIR proposal and 2013 Senate CIR bill Skilled Nonimmigrant and PR Workers: In 2006 as Senator, voted for CIR bill that would have increased both H- 1B cap and EB green card numbers Supported H-1B increase in 2007 speech to Silicon Valley execs Has said CIR must include highly skilled workers In June, said that, as part of CIR, US should staple green card to FNs US STEM advanced degrees Has said she d support start-up / foreign entrepreneur visas Largely keeping silent at the moment, but likely would support (or not oppose) increase in skilled worker temporary visas and green cards in exchange for legalization of undocumented 12
Clinton s Positions The Undocumented Supports path to citizenship for undocumented Would keep DACA, and defend President s authority to implement expanded DACA and DAPA If Congress fails to act on CIR, would extend deferred action to other groups, e.g., parents of DACA dreamers, those w/ history of serving community, victims of extreme labor violations Abolish 3/10 year bar for those unlawfully present 180 days or > Enforcement Measures Focus removals on FNs who pose violent threat to public safety Voted in 2006 to build 700 miles of fencing on Mexican border Supported 2006 and 2013 CIR bills that included enhanced enforcement, e.g., mandatory E-Verify, stronger border security, increased penalties for employing unauthorized workers 13
Trump s Positions Opposed to CIR as amnesty, cheap labor, open borders Appears opposed to all major CIR components except enforcement piece Three main priorities Secure the border with wall across southern border Enforce the immigration laws Any plan must improve jobs, wages & security for Americans Not favorably disposed to H-1B Thinks program being abused and US workers being pushed out of highpaying jobs by cheap foreign labor Doesn t see skilled worker shortage opposes cap increase Wants to require higher wages & introduce labor market test H-1B petitions should be mailed to unemployment office, not USCIS 14
Trump s Positions Employment-Based Green Cards Has called for reduction in current levels of legal immigration Wants employers to hire from pool of unemployed US workers first before FNs can be given green cards The Undocumented Remove criminal aliens immediately (he estimates 2 million) Would rescind current DACA, and DAPA & expanded DACA Has backed away from earlier talk of removing all undocumented Enhanced Enforcement Measures US-Mexico wall: Propose reg prohibiting or impounding remittances by undocumented to cover cost or to persuade Mexico to pay Nationwide E-Verify, triple # of ICE officers, track visa holders Suspension of entry from areas w/history of exporting terrorism End birthright citizenship to end magnet for illegal immigration 15
Current Electoral College Projections 16
U.S. Senate Projections 17
The Potential Solution: Reform of Business Immigration System 18
Bills to Address Backlogs Immigration Innovation ( I-Squared ) Act (S. 153) - would: Increase H-1B cap from 65K base to 115K to 195K Would exempt all US advanced degree cases from cap (vs. current 20K exemption usually allocated by lottery) Recapture of unused EB green card numbers Exclude from EB PR limits: dependent family members; US STEM advanced degree holders; and EB1 priority workers Staple Act (HR 2181) Would exempt US STEM PhD grads with US job offer related to their degree from both EB green card limits & H-1B cap STEM Jobs Act of 2015 (S. 98) Would allocate 55K EB PR numbers to STEM advanced degree grads Start Up Act (S. 181) Would add 50K green cards for STEM advanced degree grads 75K green cards for alien entrepreneurs 19
Proposed Restrictive Legislation: Durbin-Grassley H/L Visa Reform Act New Restrictions on H-1B and L-1 Categories: No displacement of US worker 180 days before or after placement of H or L worker (not counting FN training time) No contracting out services of H-1B or L-1 worker to another employer, unless DOL waiver through showing: Secondary employer won t: replace US worker with H/L worker; or displace US worker w/in 180 days before or after (not counting FN training time); or principally control or supervise H/L worker Workforce can t be > 50% H-1B or L-1 workers (if 50 employees or >) Enhanced enforcement (investigations, audits, much higher fines) New Restrictions on H-1B Category Stricter degree requirement: equivalent experience not acceptable Higher wage requirement New labor market test post job 30 days on DOL website Lottery replaced by preferences w/focus on education & salary New Restrictions on L-1 Category Same wage requirement as for H-1B, if assignment > 1 yr. Stricter standard for (already stringent) specialized knowledge rqt. 20
Ameliorative Bills Yet to Be Introduced SKILLS Visa Act Increase H-1B cap from 85K to 195K? Increase EB green card limit from 140K to 235K? Issa-Lofgren Bill Possible increase in H-1B cap Replace random selection with quota preference based on wage Greater priority to petitions with higher wages May eliminate per-country quotas on employment-based immigrant visas for advanced-degree holders 21
Developments related to travel into the U.S. 22
New Security-Related Limits on VWP New (Dec. 2015) law prohibits VWP travel for: Dual nationals of VWP country and Iran, Iraq, Sudan or Syria Citizens of VWP countries who, since March 1, 2011, have been to countries of concern, currently: Iran, Iraq, Sudan, Syria, Libya, Somalia or Yemen, unless exemption applies or waiver granted Exemptions: military/official govt. travel for VWP country Case-by-Case Waivers possible (thru ESTA reapplication) if: Travel to Iraq/Syria/Iran/Sudan was either: For international org, regional org, or sub-national govt. For humanitarian NGO As a journalist for reporting purposes Travel to Iraq for legitimate business-related purposes Travel to Iran for legitimate business purposes after 7/14/2015 Travel to any of the 7 countries of concern if a Global Entry member Individuals not eligible for VWP need to apply for visa 23
Global Entry for Germans Global Entry: CBP program allowing expedited US immigration and customs clearance for pre-approved low-risk travelers Use automated kiosk upon arrival; 59 airports now participate 2013: Pilot program for Germans who were members of ABG+ (former German trusted traveler program) As of Feb. 2016, German citizens in general eligible to apply for Global Entry (and US citizens eligible for Germany s counterpart EasyPASS program) German Global Entry applicants need to first visit EasyPASS enrollment center in Germany for vetting by German federal police Then apply online to Global Entry, undergo background check and interview/fingerprinting/photo at Global Entry enrollment center Enrollment for 5 years at a time (but EasyPASS re-vet after 2 nd year) 24
Key Points in German Immigration and Contrasts with US 25
International Assignees Germany Intra-Corporate Transfer (ICT) Managers or Specialized Knowledge 1 year of prior employment Can be outside OR inside Germany Degree generally required Must stay on foreign (home) payroll Minimum salary requirement (est. EUR 36,000 to 42,000) 1 for 1 reciprocity required on inbound & outbound transfers U.S. L-1 Intracompany Transferee Managers or Specialized Knowledge 1 year of prior employment MUST be outside U.S. Degree generally not required Can be on foreign or local payroll No minimum salary requirement (under current law) No requirement to have any outbound transfers 26
Skilled/Professional Workers Germany U.S. Local Hire Permit or Blue Card H-1B Visa No quotas 85,000 annual limit Local German contract and on German payroll University degree required Blue card degree must be recognized No labor market test Minimum salary requirements Blue Card: EUR 49,600 (or EUR 38,688 for shortage occupation) Can be employed locally or from abroad Degree or equivalent comb. of education/experience No labor market test (yet) Salary must meet higher of actual or prevailing wage 27
Favored Nationalities Germany Generally work authorized EU/EEA/Swiss Best Friends Work Permit US, Canada, Japan, S. Korea Austr. & NZ, 3 Eur. Microstates Local hires or int l assignees For any type of position No degree or special qualifications required Market test w/lesser skilled jobs No time limit on overall stay Salary requirements U.S. Generally work authorized Micronesia/Palau/Marshall Isl. FTA Countries Canada/Mexico TN, Australia E-3, Chile/Singapore H-1B1 Local hires or int l assignees Professional positions Degree or other specific qualification required No labor market test No time limit on overall stay Salary requirements, except TN 28
Other Differences Germany Permanent Residence No quotas No labor market test After 5 yrs. paying in pension fund After 21 mos. possible w/blue card Derivative Dependents Opp. sex partner must be married Same sex partner - civil union ok Children up to 18 Special Processes Original documents required Documents require apostille Local registration after arrival U.S. Permanent Residence Quotas apply Labor market test the norm Timeline for PR varies greatly Derivative Dependents Opp. sex partner must be married Same sex partner must be married Children under 21 Special Processes Usually can use photocopies Authentication not required No local registration after arrival 29
Other Points to Be Aware of Apostille/Legalization/Registration Process U.S. documents generally require only apostille, not verification Apostille: 1-2 weeks Verification: 12-14 weeks in country, much more if from 3 rd country U.S. citizens need apostilled & translated birth certificate for local registration after arrival in German due to U.S. passport anomaly German immigration authorities generally won t speak English Possible sources of processing delays Increased workload due to refugee crisis: est. delay of 4 weeks Prior residence in Germany: likely 4 to 8 week processing delay Appointment delays at U.S. consulates Fastest: Chicago next day is possible Worst: New York 3 to 5 months Can request expedited appointment, or if American or other best friends national, travel visa free and complete process in Germany but won t be able to start work for 2-4 weeks 30
Questions? 31